Report No. 7 (2012) IACHR. Petition No. 609-98 (Argentina)

• Year: 2012
• Petition Number: 609-98
• Report Number: 7
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Alleged Victim: Guillermo Armando Capo
• Respondent State: Argentina

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REPORT No. 7/12

PETITION 609-98

ADMISSIBILITY

GUILLERMO ARMANDO CAPO

ARGENTINA

March 19, 2012

I. SUMMARY

1. On August 28, 1998, the Inter-American Commission on Human Rights (hereinafter "Inter-American Commission," "Commission," or "CIDH") received a petition from Mr. Guillermo Armando Capo, and by communication of May 20, 2003, attorneys Salvador Heredia and D.V. joined as co-petitioners (hereinafter “the petitioners”). The petition was presented on behalf of Mr. Capo and against the Argentine Republic (hereinafter "Argentina" or "the S. "), for being internationally responsible under the American Convention on Human Rights (hereinafter "American Convention" or “the Convention”), specifically for the alleged violation of the rights of Mr. G.A.C. to personal liberty, judicial guarantees, and equality before the law, protected by Articles 7, 8, and 24 of the American Convention, in relation to Articles 1(1) and 2 of said Convention.

2. The petition indicates that Mr. G.A.C. was prosecuted, convicted, and sentenced to a 15-year prison term and a fine of 20,000 pesos for the criminal offenses of engaging in the sale of narcotic substances in a combination of a series of related criminal acts with criminal association (en concurso real con asociación ilícita). As of the date of his conviction, on August 5, 1999, Mr. Capo was held in pretrial detention for 4 years and 2 months, unable to avail himself of the benefit of release pending conclusion of the trial against him, like any other confined person, since he was charged with commercialization of narcotics.

3. The S. argues that during the time he was in pretrial detention Mr. G.A.C. never applied for release or pursued any constitutional remedy whatsoever against the law he considers discriminatory and in violation of his right to personal liberty. For the S., accordingly, the case should be found inadmissible, for failure to exhaust domestic remedies.

4. A. analyzing the parties’ positions, the Inter-American Commission concludes that it is competent to decide on the claim presented by the petitioners, which is admissible in light of the provisions of Article 46 of the American Convention for Articles 5, 7, 8, 24, 25 thereof, in relation to Articles 1(1) and 2 of the same instrument. Accordingly, the Commission decides to notify the parties, to proceed to analyze the merits in relation to the alleged violations noted above, to publish this admissibility report and include it in its Annual R. to the General Assembly of the OAS.

II. PROCEDURE BEFORE THE COMMISSION

5. The complaint was submitted on August 28, 1998; supplemental information was filed on May 27, 2003. The IACHR forwarded the pertinent parts of the petition to the Argentine S. by note of November 20, 2003, and asked that it submit a response within two months. On December 19, 2003, the S. requested an extension, which was granted; it sent its observations on the petition by note of May 6, 2005. The Commission forwarded that response to the petitioners.

6. The S. submitted additional information by note of December 17, 2008. The petitioners submitted additional observations in a communication received on April 28, 2009. B. communications were duly forwarded.

III. THE PARTIES’ POSITIONS

A. The petitioners

7. According to the account in the petition, on August 5, 1999, Mr. Guillermo Armando Capo was convicted to 15 years in prison, costs, and a fine, for being found criminally liable for the crime of aggravated sale of narcotics, committed in an organized series of related criminal acts with criminal association of the organizer, plus falsification of an identity document.

8. The petitioners indicated that a motion for cassation was brought against the guilty verdict; the motion was rejected on March 23, 2000 and a special appeal (recurso extraordinario) was filed against that ruling before the Supreme Court.

9. T. indicated that Mr. Capo remained in pretrial detention for a total of 4 years and 2 months, making it impossible for him to avail himself of the benefit of release until the conclusion of the trail against him, since he was accused of selling narcotics. T. clarify that this limitation is contained in Article 10 of Law No. 24,390, which, they argue, discriminates to his detriment.

10. In a communication received on May 27, 2003, the petitioners reported that the alleged victim was enjoying the benefit of a temporary furlough and that on April 7, 2003, he applied for inclusion in the probation regime (régimen de semilibertad).

11. The petitioners asserted that the S. of Argentina violated Mr. Capo’s rights to personal liberty, to the presumption of innocence, and to equal treatment before the law.

B. The S.

12. The S. reported that in effect, G.A.C. was arrested on May 29, 1995, and on J.5., 1995; he was arraigned and ordered held in preventive detention. It adds that on August 5, 1999, the victim was convicted and sentenced to 15 years in prison, costs, and a fine, as he was considered criminally liable for the crime of aggravated sale of narcotics, for having been committed in an organized series of related criminal acts along with criminal association with the person considered the organizer, along with falsification of an identity document. It asserted that the National Chamber of Criminal Cassation upheld the judgment of the trial court.

13. The S. argued that the alleged victim did not exhaust domestic remedies since the record of the case does not indicate that it made any request for release putting forth the unreasonableness of the term of pretrial detention, nor did he file a constitutional motion against Law 24,390, which the petitioner considers contrary to the American Convention. The S. reminded the Commission that in cases studied previously, the request for release is the suitable remedy to be exhausted. In addition, it argued that both this procedural mechanism and the constitutional motion constitute effective remedies for remedying the...