Report No. 30 (1997) IACHR. Case No. 10.087 (Argentina)

• Case Number: 10.087
• Year: 1997
• Report Number: 30
• Respondent State: Argentina
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Gustavo Carranza

OEA/Ser.L/V/II.98; doc. 6 rev.; 13 April 1998; Original: Spanish REPORT Nº 30/97 CASE 10.087 G.C. ARGENTINA () September 30, 1997 I. BACKGROUND 1. On August 31, 1987, Mr. G.C. filed a petition with the Inter-American Commission on Human Rights (hereinafter "the Commission") against the Republic of Argentina (hereinafter "the State"), alleging that the refusal of the Supreme Court of that country to hear his appeal against a decision of the Superior Court of Justice of the Province of Chubut (hereinafter "the Superior C. of Chubut"), constituted a violation of the following provisions of the American Convention on Human Rights (hereinafter "the American Convention"): the right to a fair trial (Article 8 ), right to privacy (Article 11), the right to have access to public service (Article 23(1)(c)), and the right to judicial protection (Article 25). 2. The petitioner had instituted suit in the provincial courts seeking the nullification of a decree issued by the previous military government that had ordered his removal in 1976 as a lower court judge of the Province of Chubut, as well as the recovery of material and moral damages resulting therefrom. 3. His case was declared "non-justiciable" by the Superior Court of Chubut on July 1, 1986, invoking jurisprudence of the Supreme Court of Argentina in a similar case (S., G. v. National Government, July 3, 1984) which held that the courts were not competent to rule on the fairness, wisdom or efficacy of the measures ordering the removal of magistrates, the claim underlying this litigation, as these were eminently political acts of a de facto government. 4. He appealed that decision to the Supreme Court of Argentina, which dismissed his appeal on February 24, 1987, on the ground that the petitioner had not presented any new arguments meriting review of the criteria set forth by the Superior Court of Chubut regarding the lack of competence of the J. to adjudicate matters of such a nature. 5. The petitioner alleged that the Argentine Supreme Court's decision denied him access to the courts, thereby violating the guarantee contained in Article 25 of the American Convention. He therefore requested that the case be submitted to the Inter-American Court of Human Rights, so that he be compensated for the consequences of the measure or situation that violated those rights. II. PROCEEDINGS BEFORE THE COMMISSION 6. On July 6, 1988, the State sent its reply concerning this case, requesting that the petition be declared inadmissible. The reply noted that the Argentine State's ratification of the American Convention on August 14, 1984, was subsequent to the dismissal of the judge, the act that prompted this complaint. Therefore, the allegation concerns actions that occurred before the American Convention entered into force for Argentina. 7. The reply also pointed to the fact that both international doctrine and jurisprudence were unanimous on the principle of the nonretroactivity of the treaties, citing the Vienna Convention on the Law of Treaties in this regard. 8. The State concluded that the petitioner could not seek damages for his removal on J. 17, 1976, since by that time he was no longer a constitutional judge but a "de facto judge" and that under the present democratic system, such conduct would be unlawful, although at the time it was not. 9. On J. 14, 1988, the S.'s reply was forwarded to the petitioner. He presented his observations on August 29, 1988. The petitioner stated that the Argentine domestic courts have violated the right that the American Convention accords to all individuals, which is the right to a hearing by a C. for the determination of his rights and obligations of a civil, labor, fiscal or any other nature (Article 8). 10. He further said that there was never any decision by the courts on the merits of the issue raised precisely because it was declared non-justiciable; the rulings being challenged were rendered subsequent to Argentina's ratification of the American Convention. 11. When the Superior Court of Chubut formally admitted the case, it determined how it would be handled and referred the case to the provincial S.. The attorney for the province appeared in court, but did not contest the case, since he did not dispute the facts as alleged. H., the petitioner considers that the J. denied him the right to a court decision on the merits of the case when it declared the matter "non-justiciable." 12. According to the petitioner, "political questions" were never uncontested matters in the jurisprudence of the Argentine Supreme Court. Political functions reserved exclusively for political departments of the S. cannot be challenged in the courts so long as no conflict is created between the law or deed and the Constitution by virtue of the exercise of those political functions. H., when a law or action of the executive is contrary to those provisions, rights and guarantees that the Constitution upholds, there will always be a legal case which the aggrieved party may choose to take to the courts. 13. The petitioner pointed out that the exclusive authority of the political branches of government are not outside the purview of the courts; when the transgressions that those political branches commit adversely affect matters submitted to the jurisdiction of the court, the case must be examined and a decision rendered. Those S. powers may not invoke exclusive privilege. 14. On September 26, 1988, the petitioner's observations were forwarded to the S., which replied on November 11, 1988. The State restated the same arguments asserting the inapplicability of the American Convention ratione temporis, since the facts that precipitated the petition occurred before the Convention's entry into force. 15. As for the petitioner's allegation that he did not obtain a judicial decision on his claim, the State pointed out that the petitioner's removal from the bench was carried out in accordance with the generalized legal system in force. 16. The State also noted that the rulings of the Superior Court of Chubut and of the Argentine Supreme Court addressed the nature of that act and declared it to be eminently political in nature. C., there was a court decision, and Article 25 of the American Convention was not disregarded. There was due process of law, in accordance with the law. 17. On December 29, 1988, the petitioner forwarded his observations to the State's most recent reply. He said that the State was confusing the facts that gave rise to the complaint with the denial of due process. The facts of the case are very different from the denial of due process that would have enabled the petitioner to assert his rights vis-à-vis the facts that led to the case. He clarified that the denial was not a refusal to institute an action, because there was such an action; the denial of due process was the decision of the Argentine Court declaring his case non-justiciable as a political question, thereby denying him a decision on the merits of his claims. 18. The result, he insisted, was to deny him the due process to which he is entitled under domestic law and the American Convention. The violation of this right occurred on February 24, 1987, with the Supreme Court's ruling that dismissed his complaint on the grounds of non-justiciability, which was rendered subsequent to Argentina's ratification of the American Convention. 19. He also said that the ruling handed down by the Supreme Court did not provide the required "adequate" remedy to which the Inter-American Court of Human Rights has referred to when interpreting the S.'s obligation to ensure the exercise of human rights (Article 1(1) of the American Convention), which "requires the S. to conduct itself so as to effectively ensure the free and full exercise of human rights". 20. The petitioner stated that "a proceeding was conducted, but it was useless and did not address the merits of the case, because the ruling declared that the question before the Court was non-justiciable". If it is not justiciable, then there is no remedy, understood as due process of law to vindicate the right infringed. 21. The petitioner pointed out that illegal and anti-juridical nature of his dismissal, as well as other grounds for his lawsuit, were debated sufficiently during the course of the proceedings before the courts of Chubut. W. prompted the petition filed with the Commission was the fact that the debate never produced any result. The ruling that ought to have established the rights of the litigant based on issues debated in the litis never came out, and failed to be the kind of "useful" exercise that ensures protection of rights. 22. F., the petitioner cited Article 27 of the Vienna Convention on the Law of Treaties, which provides that a S. may not invoke the provisions of its internal law as justification for its failure to perform a treaty or to contend that it is not bound by a treaty. 23. The Commission received further notes from the petitioner on 28 September 1989 and 6 November 1991. On October 21, 1993, the Commission placed itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter. The petitioner accepted on December 16, 1993, but the State rejected it by its letter of August 25, 1994. 24. Both parties restated their respective positions; the S. on January 3, 1995, and the petitioner on March 3 and October 12, 1995. The issue has been fully debated and the arguments of both parties have been clarified. C., the Commission is called upon to issue a report under Article 50 of the American Convention. III. ADMISSIBILITY 25. The alleged violations of Articles 11 and 23(1)(c), invoked in the...