Report No. 83 (2009) IACHR. Case No. 11.732 (Argentina)

• Year: 2009
• Report Number: 83
• Case Number: 11.732
• Court: Inter-American Comission of Human Rights
• Respondent State: Argentina
• Case Type: Merits
• Alleged Victim: Horacio Anibal Schillizzi Moreno

REPORT No. 83/09 CASE 11.732 MERITS (ART. 51) H.A.S.M. ARGENTINA AUGUST 6, 2009 I. SUMMARY 1. On February 20, 1997, the Inter-American Commission on Human Rights (hereinafter the "Inter-American Commission”, the "Commission" or “the IACHR”) received a petition from the Bar Association of the Federal Capital of Argentina (Colegio Público de Abogados de la Capital Federal, hereinafter "Colegio Público"), the Legal and Social Studies Center (Centro de Estudios Legales y Sociales, CELS), and the Center for Justice and International Law, CEJIL (hereinafter "the petitioners"), against the Argentine Republic (hereinafter "the S." or "Argentina"), for the alleged violation of the rights to: humane treatment (Article 5), personal liberty (Article 7), judicial guarantee (Article 8), equality before the law (Article 24), and judicial protection (Article 25), established in the American Convention on Human Rights (hereinafter the "Convention" or the "American Convention"), to the detriment of Mr. H.A.S.M.. 2. The principal allegations submitted in the petition note that, upon a motion for recusation, on August 17, 1995, the judges of C. "F" of the National Court of Appeals in Civil Matters for the Federal Capital (hereinafter the "Court") sentenced Mr. S. to three days of detention for "maneuvers aimed at obstructing justice." The petitioners allege that the detention order was carried out without respect for judicial guarantee, arguing the court was not impartial, no grounds were given for the decision, the court did not allow the right of defense, and there was no judicial review of the sentence. The petitioners also argue that the detention was arbitrary and illegal, violating the right to personal liberty, and that the judicial authorities' rejection of the request that the disciplinary measure be served under house arrest violated the right to humane treatment, and the right to equality before the law. 3. For its part, the S. noted that the sanction imposed on Mr. S. was a punishment for the abusive exercise of the right of recusation and that, pursuant to legislation in force, the civil courts were competent to impose said sanction. T.S. alleges that Act 1285/58 provides that collegial courts and judges may punish lawyers obstructing justice to detention for up to 5 days. In addition, the S. adds that M.S.M. did not effectively challenge the disciplinary measure imposed on him through the available domestic remedies. 4. In its Admissibility Report Nº 22/00, the Commission decided that the petitioner’s allegations of alleged violations of Articles 1, 7, 8, and 25 of the American Convention were admissible, as they met the requirements set forth in Articles 47(b) of the Convention as well as in Articles 31 and 41(b) of the Regulation of the Commission, as they describe incidents that could tend to establish a violation of rights protected by the Convention. In addition, the Commission decided to declare inadmissible the petitioner’s allegations of violations to the rights set forth in Articles 5 and 24 of the Convention, as they do not characterize violations of the Convention, pursuant to the provisions of Article 47(b) of the Convention. In addition, the Commission decided to postpone a decision on compliance with the requirement set forth in Article 46(1)(a) of the Convention until there is a ruling on the alleged violations of Articles 8 and 25 of the Convention in the examination of the merits of the case. 5. As regards the admitted claims, the petitioners argue that the S. is responsible for imposing on Mr. S. an arbitrary punishment of deprivation of liberty, and for having ordered the sanction without affording him the guarantee of due process. T.S. maintains that its courts acted in keeping with the requirements of national and international law since the disciplinary measure imposed on Mr. S. was based on legislation in force and he had full access to the remedies of domestic jurisdiction. 6. In this Report, the Commission concludes the S. is responsible for having violated Mr. S.’s rights to protection and judicial guarantee under Articles 8 and 25 of the Convention and relating to Article 1(1) of this Convention. F., the IACHR establishes that there are not sufficient grounds within the submissions of the parties to find violations to the right to personal liberty under Article 7 of the American Convention. II. PROCEEDINGS BEFORE THE COMMISSION AFTER THE ADMISSIBILITY REPORT 7. The Commission adopted its Admissibility Report Nº 22/00 dated M. 7, 2000. The report was forwarded to the parties via communication on M. 8, 2000. In the fifth decision of the admissibility report, the Commission decided to make itself available to the parties for the purpose of reaching a friendly settlement and to invite the parties to state their position with respect to such a possibility. 8. By note SG 320 of J. 27, 2001, the S. submitted its observations referring to Report Nº 22/00, which was forwarded to the petitioners via communication on September 10, 2001, granting them two months to send their response. 9. In a communication dated October 23, 2001, the petitioners forwarded additional information relating to the case, including Mr. S. Moreno’s refusal to receive any kind of monetary reparation “in order to facilitate a friendly settlement process.” In this respect, the petitioners reported to the Commission that a meeting took place with the S. to initiate a friendly settlement process. Said communication was forwarded to the S. on November 16 of the same year. On the same date, the Commission granted the petitioners a one-month extension to present their observations on the merits of the case, which were received on December 17, 2001. 10. In a communication dated October 16, 2002, the Commission forwarded the observations submitted by the petitioners to the S.. Via note SG 495 dated December 2, 2002, the S. forwarded additional observations regarding the case to the Commission. Said information was forwarded to the petitioners via communication on February 24, 2003, and in turn they sent observations on May 9, 2003. It should be noted that, although the petitioners reported a meeting with the S., the S. never sent information to the Commission indicating its disposition to begin a dialogue to search for a friendly settlement on the matter.; III. POSITIONS OF THE PARTIES A. Position of the petitioners 11. Since their initial submissions, the petitioners have referred to the arbitrary nature of the decision by C. "F" of the National Court of Appeals in Civil Matters for the Federal Capital in the proceedings "Banco Credit Lyonnais Argentina S.A. v. La Escisión S.A. re: Recusation with cause" of August 17, 1995, in which the Court refused to admit the recusation pursued by Mr. S. –who, in his role as attorney, had defended one of the parties to the trial- declared it to be malicious, and sentenced him to three days of detention for “maneuvers aimed at obstructing justice.” 12. The petitioners allege that the Court imposed the disciplinary measure on Mr. S. without respect for the guarantee of due process, and that when a measure imposed administratively is comparable in its gravity to a criminal sentence, the presumption of innocence and all other guarantees provided for criminal proceedings must be respected. The petitioners allege that if there existed criminal conduct meriting a prison sentence, Mr. S. should have been referred to the competent authorities to pursue a criminal proceeding, following the due process guarantees to determine whether or not a punishment was necessary. 13. With respect to the arguments of the S., the petitioners note that the differentiation between crime and breach in no way contributes to determine the obligation of the S. to respect the right of the accused to a hearing with due guarantees and within a reasonable time, by a competent, independent, and impartial judge or tribunal. The petitioners allege that, whether a crime or breach, the Civil Law Court should have made the corresponding complaint before the penal sphere or before the correctional justice system in order to ensure Mr. S.’s right to due process, allowing him to defend himself and present evidence. 14. In the same regard, petitioners add that it is the content of the disciplinary measure, rather than its denomination, that imposes respect for guarantees. A., for the purposes of Article 8 of the American Convention, the use of the term crime including breach must be understood to be validating the possibility of the S. –under the pretext of applying administrative law and not criminal law- to deprive the liberty of an individual without the guarantees stipulated by the Convention. H., the petitioners add that it approaches the absurd to establish a principle stipulating that it is preferable to commit crimes rather than breaches in order to be protected by procedural guarantees. 15. A., the petitioners allege that the Court did not duly substantiate its decision to punish Mr. S. for exercising the right of recusation and violated his right to defense when it took the view that the exercise of this right obstructed the civil proceedings in which he was defending one of the parties. The petitioners add that the judges lacked impartiality, as they were bothered, affected, or offended by the recusations presented by Mr. S. against three C.s of the Court, and, consequently, had a personal interest in imposing the disciplinary measure. 16. The petitioners indicate that, even as such, they do not come before the Commission to debate the reasons and grounds the Court would have had to consider Mr. S.M.s procedural conduct abusive, ratherthe authority of the courts is questioned insofar as imposing detention...