Report No. 5 (2009) IACHR. Case No. 11.400 (Argentina)

• Case Number: 11.400
• Year: 2009
• Report Number: 5
• Respondent State: Argentina
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Josefina Ghiringhelli De Margaroli y Eolo Margaroli

REPORT No. 5/09 CASE 11.400 MERITS JOSEFINA GHIRINGHELLI de MARGAROLI and EOLO MARGAROLI ARGENTINA March 16, 2009 I. SUMMARY 1. On October 31, 1994, the Inter-American Commission on Human Rights (hereafter "the Commission," the "Inter-American Commission," or the "IACHR") received a petition lodged by lawyers Silvia Hass and Alicia Olivera (hereafter "the petitioners"), against the Argentine Republic (hereafter "the State," the "Argentine State," or "Argentina"), for violation of the following rights protected in the American Convention on Human Rights (hereafter "the American Convention" or “the Convention"): the right to a fair trial (Article 8.1) and the right to property (Article 21) to the detriment of Josefina Ghiringhelli de Margaroli and Eolo Margaroli (hereafter “the victims”). In 1997 Josefina Margaroli, daughter of the victims, and Sergio Luís Maculan began representing them. 2. In its Report on Admissibility Nº 104/99, the Commission said that the petitioners’ arguments describe facts that, if true, could possibly constitute violations of the right to a fair trial (Article 8.1) and the right to property (Article 21) set forth in the Convention. 3. The petitioners state that they are the owners of real property in Argentina’s federal capital, on which they began construction of an eight-story building with plans approved by the municipal authorities in 1977. A municipal ordinance in 1979 affected the setback of the property and limited the size of the building, so in 1981 the owners filed an “inverse or irregular” expropriation action against the Municipality of Buenos Aires. They obtained a final ruling in their favor in 1985, which ordered the municipality to pay compensation for the strip of land expropriated and to compensate Mr. and Mrs. Margaroli for the damages caused by the partial expropriation of the land. They say that in compliance with this judgment the petitioners were compensated for the expropriated land at the end of 1985, and later the municipality registered the title of the property, so it was unavailable and could not be encumbered. However, in 1989, when the 1985 ruling was still being executed because the direct damages had not yet been compensated, the Municipality of Buenos Aires issued a new municipal ordinance declaring the property unencumbered, because there was no longer of public utility. The petitioners say they challenged this measure in court, obtaining a favorable ruling on appeal, which was overturned by the Supreme Court on April 12, 1994. 4. The petitioners state that the Supreme Court decision of April 12, 1994, violated the principle of res judicata established in Article 8.1 of the Pact of San José by revoking the final judgment of April 22, 1985. As regards Article 21 of the Convention, the petitioners argue that in the instant case the right to property suffered a double assault: first against the expectation for the use and enjoyment of the property with the consequent loss of income, and second against the rights derived from the final judgment of April 22, 1985. The petitioners say that although they were deprived of the use and enjoyment of their property for more than 16 years they have not received fair compensation for this deprivation. 5. The State argues that none of the rights recognized in the American Convention have been violated to the detriment of the petitioners. The State says that the petitioners failed to give the Municipality of Buenos Aires possession of the expropriated property by not giving the appropriate impetus for execution of the 1985 ruling, knowing that until the expropriation was fully implemented it could be revoked based on Article 29 of the Expropriation Law. The State argues that res judicata in the area of expropriation is not equivalent to the general legal criteria on the matter. Furthermore, the State says that the National Civil Appeals Chamber, in its decision of June 11, 1991, validated termination of the expropriation, without objection from the petitioners. Moreover, the State says in its observations on the merits that it ratifies the validity of the reservation made with regard to Article 21 of the Convention at the time of ratification of the American Convention. 6. In this Report, the Commission concludes that the State of Argentina did not violate Articles 21.2 and 8.1 of the American Convention, in connection with the provisions of Article 1.1 of that treaty, to the detriment of Mr. and Mrs. Margaroli. II PROCESSING BY THE COMMISSION AFTER THE REPORT ON ADMISSIBILITY 7. The Commission approved its Report on Admissibility Nº 104/99 on September 27, 1999. The report was transmitted to the parties in a note of October 12, 1999. 8. In a communication received on November 18, 1999, the petitioners agreed to begin the friendly settlement procedure for which the Commission made itself available as noted in point four of the resolution of Report Nº 104/99. On January 27, 2000, the IACHR received updated information from the petitioners that was transmitted to the State on March 3, 2000. The government, in a note received on March 14, 2000, declined the IACHR’s offer to start the friendly settlement procedure. This note was forwarded to the petitioners on March 28, 2000. 9. The petitioners submitted observations on May 1, 2000, which were transmitted to the State on May 23, 2000. The IACHR received another note from the State on May 2, 2000, which was forwarded to the petitioners on May 15 of that year. The Commission received a communication from the petitioners on June 19, 2000. The State requested an extension in a note received on July 26, 2000. The IACHR granted an extension of 30 days on July 31 of that year. On September 7, 2000, the IACHR acknowledged receipt of the petitioners’ note of August 21 of that year. The State requested another extension on September 5, 2000, which the Commission granted on September 7, 2000, for a period of 60 days. On November 8, 2000, the IACHR acknowledged receipt of the petitioners’ note received on September 28, 2000. On December 8, 2000, the petitioners sent another note to the IACHR. 10. In a communication received on July 31, 2001, the State submitted its observations on the merits, which were transmitted to the petitioners on August 31, 2001, with a deadline of two months to present observations. The petitioners submitted their observations on the merits in a note received on November 21, 2001, which were forwarded to the State on April 26, 2002. The State submitted observations on July 1, 2002, which were transmitted to the petitioners on September 3, 2002. The petitioners sent notes to the IACHR on July 17 and September 25, 2002. The IACHR acknowledged receipt of the latter note on January 8, 2003. Subsequently, the petitioners sent notes to the IACHR on July 2 and 7, 2003. On June 4, 2004, additional information was received from the petitioners, for which the IACHR acknowledged receipt on June 22, 2004. 11. The IACHR received notes from the petitioners on May 4 and June 1, 2005, asking for movement in the case and a prompt decision. Later, on July 9, 2006, the IACHR received another note from the petitioners asking for expedited processing, receipt of which was acknowledged on June 28, 2006. On September 8, 2006, and February 9, 2007, the IACHR received additional communications from the petitioners in the same vein. Receipt of the latter communication was acknowledged on February 26, 2007. Later, on June 15 and August 27, 2007, the petitioners sent more notes that were acknowledged on July 23 and November 2, 2007. On December 18, 2007, the petitioners sent a note that was acknowledged on January 3, 2008. 12. Subsequently, the IACHR requested different information from both the petitioners and the State on September 15, 2008, including copies of the principal records from the respective legal actions. The Commission received a note from the petitioners on October 10, 2008, which was forwarded to the State for its information on January 13, 2009. The State requested a one-month extension in addition to the period initially granted in the note of October 15, 2008. The IACHR did not receive the court records from either the petitioners or the State. III. POSITIONS OF THE PARTIES A. Position of the petitioners 13. In their submissions, the petitioners state that Mr. and Mrs. Margaroli owned real property located at Calle Raulet Nº 113/115/117 in Buenos Aires, Argentina, upon which they decided to build an eight-story building, with 24 apartments and two stores. The Municipality of Buenos Aires approved plans for this building in 1977. 14. The petitioners say that in early 1979 the Municipality of Buenos Aires enacted a municipal ordinance as a result of a general project for urban planning and traffic management. The petitioners state that this ordinance affected the setback of the building, reducing the size of the property. The petitioners say that the 1979 ordinance impacted Mr. and Mrs. Margaroli’ property by removal of a six-meter strip of frontage all along Calle Raulet, and along 60 additional streets. According to the petitioners, this impact could be dealt with by three different procedures: 1) setting the expropriation amount by mutual agreement in an administrative procedure; 2) a legal proceeding of direct expropriation, which means that the expropriator files a petition, the court sets the amount, and the ruling is final; or 3) by “inverse or irregular” expropriation, which is when the party whose rights are affected starts the expropriation proceeding until obtaining a final judgment. 15. In the instant case, the petitioners say that since the structure was already built to the fourth floor, they filed suit for inverse or irregular expropriation, because at any time the State...