Report No. 68 (1999) IACHR. Petition No. 11.709 (Argentina)

• Report Number: 68
• Petition Number: 11.709
• Year: 1999
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Respondent State: Argentina
• Alleged Victim: Luis María Gotelli

REPORT Nº 68/99; CASE 11.709; L.M.G., Jr.; ARGENTINA; May 14, 1999 I. SUMMARY 1. On December 13, 1996, Mr. L.M.G., Jr. (hereinafter “the petitioner”) submitted a petition to the Inter-American Commission on Human R.s (hereinafter “the Commission” or “the Inter-American Commission”) against the Argentine Republic (hereinafter “the S.,” “the A.S.,” or “Argentina”), alleging that it violated rights set forth in the American Convention on Human R.s (hereinafter “the Convention” or “the American Convention”) with respect to both himself and his family. 2. The petitioner alleges that during proceedings in the case “Complaint by Tulio Franzosi regarding irregularities at Banco de Italia y Río de La Plata,” brought against him and his family before National First-Instance Federal Criminal and Correctional Court Nº 2, their right to a fair trial (Article 8(1)) was violated by the fact that the trial had lasted longer than 12 years and was still going on. He also claims that this delay negatively affected the rights of presumption of innocence (Article 8(2)), defense (Article 8(2)(d)), the nonextension of punishments to other persons (Article 5(3)), the family (Article 17), the aim of imprisonment being reform and social adaptation (Article 5(6), respect for honor and recognition of dignity (Article 11(1), equality before the law (Article 24), and simple and prompt recourse (Article 25(1) enshrined in the American Convention. 3. Following the Commission’s offer to make itself available to the parties in order to reach a friendly settlement in this case, on the day of the hearing granted by the Commission during its 97th regular session, October 6, 1997, the parties signed an agreement which was filed with the Commission’s secretariat that same day. In this agreement, the S. recognized that in the petitioner’s case and within the aforesaid context, “the right to be tried within a reasonable period (Article 8(1) of the Convention) was violated” and it promised to disassociate him from the criminal proceedings. S., on September 15, 1998, in light of the S.’s noncompliance, the petitioner asked the Commission to continue with the steps set forth in its Regulations and issue a report under Article 50 of the Convention. 4. The Commission decided to first analyze the admissibility of the case prior to issuing a report under Article 50 of the Convention. It thus concluded that it was competent to examine the matter and that the petitioner’s allegations regarding the violation of the right to due process caused by the delay in the criminal investigation (Article 8(1), of the right to the presumption of innocence (Article 8(2), and of the right of defense (Article 8(2)(d) were admissible under the terms of Articles 46 and 47 of the Convention. 5. H., the Commission ruled that under Article 47(b) of the Convention, the claims alleging violations of the right to humane treatment (Article 5(3), of the right of imprisonment being aimed at reform and social adaptation (Article 5(6)), and of the rights of the family (Article 17) were inadmissible. The Commission also ruled that the petitioner’s allegations regarding violations of the right of honor (Article 11(1)), of equality before the law (Article 24), and to effective recourse (Article 25(1) were inadmissible under Article 47(c) of the Convention. II. PROCESSING BY THE COMMISSION 6. On December 17, 1996, the Commission opened this case, sent the relevant parts of the complaint to the S., and asked it to supply information. After the Commission had granted several extensions, the S. submitted its comments on J. 17, 1997; these were sent to the petitioner on J. 26, who was given a period of 30 days to formulate his reply. On July 24, 1997, the petitioner submitted his comments on the S.’s reply. 7. On July 29, 1997, the Commission sent the petitioner’s reply to the S. and granted it a 30-day period for submitting its comments. In the same note, the Commission made itself available to the parties with a view to reaching a friendly settlement under Article 48(1)(f) of the Convention and Articles 45(1) and 45(2) of its Regulations in light of the nature of this case and within a framework of full respect toward the objective and purpose of the Convention. On September 2, 1997, the S. accepted the friendly settlement procedure and reserved the right to “consider and improve the legal arguments” already set forth in the initial document at a later date specifically during the friendly settlement procedure. On September 15, 1997, this communication was transmitted to the petitioner. 8. At a hearing held on October 6, 1997, during the Commission’s 97th regular session, the representatives of the petitioner and the S. reported that their talks had led to an agreement, which was set down in writing that same day. This agreement’s recitals show that the S.’s reply of J. 17, 1997 recognized that “in the petitioner’s case and within the aforesaid context, the right to be tried within a reasonable period (Article 8(1) of the Convention) was violated.” In the agreement the parties stipulated that “the Government will take every step toward definitively disassociating the petitioner from the aforesaid proceedings within the briefest possible time,” and that a report on compliance with this was to be given to the Commission within a maximum of 75 days. 9. On December 26, 1997, the S. told the Commission that further to the parties’ agreement, Mr. Gotelli’s lawyers submitted a document requesting that the statute of limitations be applied to the proceedings against him. The basis for that request was a ruling handed down by the National Federal Criminal and Correctional Appeals Chamber in the Federal Capital in a similar case, which was at that time pending a decision from the office of the national attorney general. H., on September 15, 1998, the petitioner told the Commission that, “given the Argentine Government’s obvious noncompliance with the commitment to reach a friendly settlement made before this honorable Commission after recognizing the justice of the claim, I am forced to request that this negotiating procedure be terminated.” He also asked the Commission to continue “with the relevant procedure under Article 50 of the Convention.” This communication was transmitted to the S. on September 28, 1998, with a 60-day period for it to submit its comments. On December 2, 1998, the S. requested an extension to the period allotted for its reply; consequently, a 45-day extension was granted on December 14, 1998. 10. On January 29, 1999, the S. reported that it was taking the appropriate steps, which had been delayed on account of the summer recess. A request by the S. for an additional extension on M. 5, 1999, was granted on M. 8, 1999, for a period of 30 days. On April 13, 1999, the S. again requested an extension and was awarded a further 30 days. III. POSITIONS OF THE PARTIES A. The petitioner’s position 11. The petitioner stated that on May 24, 1985, M.T.F. filed a complaint with National First-Instance Investigating Criminal Court Nº 20, accusing the petitioner’s family of several crimes proscribed by Articles 173.7, 300, and 301 of the Criminal Code (hereinafter referred to by its Spanish abbreviation “CP”), because they held senior posts at the Banco de Italia y Río de la Plata (hereinafter “the BIRP”), and against senior managers, shareholders, and guarantors of corporations that received loans from that bank, including the petitioner. The issue brought before the court was the alleged asset stripping or bankruptcy suffered by the BIRP as a result of the policy adopted by its senior management in granting those companies enormous loans, in both pesos and dollars, which had never been repaid to the bank. The BIRP was liquidated by the Central Bank of the Argentine Republic (hereinafter “the BCRA”). 12. The petitioner explained the different judicial rulings and decisions handed down since the start of the proceedings. With regard to the decision on admissibility, the most salient of these were the following: on August 23, 1985, the court ordered the start of investigatory proceedings, with the BCRA acting as complainant; on September 29, 1985, National First-Instance Federal Criminal and Correctional Court Nº 2 was given exclusive competence over the matter; on M. 12, 1986, that court ordered the petitioner and other persons to be brought to trial and, on February 23, 1987, it ordered an expert accounting audit to be conducted. 13. On April 8, 1987, the office of the national attorney general assigned an assistant prosecutor to the proceedings and, on J. 16, 1987, the case prosecutors asked the accused to provide the investigation with statements. On September 22, 1987, the court ordered the expert accountants to begin the audit it had requested and, on November 12, 1987, the petitioner gave his statement. On M. 31, 1989, the expert accountants told the court that there had been delays and complications in conducting the audit and, on M. 17, 1989, the court instructed the BCRA liquidator in charge of the BIRP to provide the expert accountants with the documents needed to finish the audit. 14. On May 9, 1989, the court ordered the preventive arrest of several individuals, including the petitioner, against which their attorneys filed dismissal motions and appeals. On J. 30, 1989, the National Federal Criminal and Correctional Appeals Chamber summoned the parties to state their case, which took place at a hearing on September 12, 1989. On September 28, 1989, the chamber ordered the court to send it the main trial documents and, on October 12, 1989, it sent the documents to the prosecutor for him to offer an opinion on the remedies filed. On November 6, 1989, before the appeals chamber, the petitioner accused the first-instance and appeal prosecutors of obstructing the expert...