Report No. 25 (2021) IACHR. Petition No. 673-09 (Argentina)

• Case Type: Admissibility
• Respondent State: Argentina
• Court: Inter-American Comission of Human Rights

REPORT No. 25/21

PETITION 673-09

REPORT ON ADMISSIBILITY

CLAUDIO ALBERTO OGOLMA AND FAMILY

ARGENTINA

OEA/Ser.L/V/II.

D.. 29

2 M.2.021

Original: Spanish

Approved electronically by the Commission on M.2., 2021.

Cite as: IACHR, Report No. 25/21, Petition 673-09. A.. Claudio Alberto Ogolma and family. Argentina. M.2., 2021.

www.cidh.org

I. INFORMATION ABOUT THE PETITION

Petitioner	Mercedes Ogolma
Alleged victim	Claudio Alberto Ogolma and family
Respondent S.	Argentina
Rights invoked	Articles 4 (right to life), 17 (rights of the family), 19 (rights of the child), 24 (right to equal protection), 25 (right to judicial protection) of the American Convention on Human Rights1

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition	May 25, 2009
N. of the petition	October 1, 2014
S.’s first response	February 6, 2017
N. of the possible archiving of the petition	November 16, 2018
Response to the notification regarding the possible archiving of the petition	December 17, 2018

III. COMPETENCE

Ratione personae:	Yes
Ratione loci:	Yes
Ratione temporis:	Yes
Ratione materiae:	Yes, American Convention (deposit of instrument of ratification made on September 5, 1984)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and international res judicata	No
Rights declared admissible	Articles 4 (Life), 8 (Fair Trial), 17 (rights of the family), 19 (Rights of the Child), 24 (right to equal protection) 25 (Judicial Protection) of the Convention, in connection with Article 1.1 (Obligation to respect rights) of the same instrument
E. or exception to the exhaustion of remedies	Yes, in terms of Section VI
Timeliness of the petition	Yes, in terms of Section VI

V. SUMMARY OF ALLEGED FACTS

1. The petition alleges that in the early morning of January 5, 2008, C.A.O., a 15 year-old (the alleged victim) was fatally shot by a police officer attached to the Santa Fe Police (in the province of Santa Fe, Argentina). According to the petition, the fatal shooting of the alleged victim was a result of excessive force used by the police. In this regard, the petition further alleges that contrary to the narrative of the police, the shooting was unwarranted; and that the subsequent judicial proceedings (that investigated the shooting) were vitiated by arbitrariness.

2. According to the petition, the narrative presented by the police affirmed that four police officers in two police cars were on patrol on Juan Jose Paso Street when they observed two males in a confrontation with a couple – (C.E.G. and J.A.G.. On seeing the police officers, the couple asked for help from the police, indicating that two youths had attempted to rob them. According to this account, M.G. had sustained a cut to his face as a result of the encounter. The petition further states that the police narrative claims that one of the youths (who turned out to be the alleged victim) ran in a easterly direction on J.J.P.S., pursued by police officers. S., according to the police narrative, (a) one of the police officers – L.L. accosted the alleged victim, calling out to him in a loud voice; (b) in response, the alleged victim attacked L.L. – punching her with one hand, stabbing her in the neck, shirt, and bullet-proof vest with a piece of glass, and attempted to take away L.L.’s firearm. In the struggle, the firearm was discharged – resulting in a fatal wound to the alleged victim. Prior to, or during this struggle, another police officer called for reinforcements. Following the shooting, the alleged victim was ultimately taken by the police to a hospital (Hospital de Emergencias Clemente Alvareze- HECA) which refused to accept him because he was already dead. The body was subsequently taken by the police to El Instituto Médico Legal.

3. According to the record, a judicial investigation was initiated by a Jueza de Instruccion (Examining Judge) to determine whether there was a case of simple homicide against L.L.. On August 12, 2008, the judge held that the use of lethal force by L.L. was justified and that there were no other less aggressive means of repelling the attack from the alleged victim. The judge noted that L.L. faced an imminent threat to her life by virtue of the attack.

4. D. with this ruling, the petitioner persuaded the prosecutor (La Fiscalía de Cámara N˚3) to appeal to La Sala I de la Cámara de Apelaciones en lo Penal de R.. On November 20, 2008, this court affirmed the ruling of the lower court, that the fatal shooting of the alleged victim was justified as a matter of self-defense. According to the petitioner, she received notification of this judgment on December 2, 2008. The petitioner impugns the judicial proceedings, principally because of the failure of the courts to address or reconcile conflicting or contradictory testimony. In this regard, the petitioner contends, for example, that L.L. claimed that the alleged victim held a piece of glass in his left hand, whereas J.A.G. states that the alleged victim had the glass in his right hand. The petitioner also mentions contradictions in statements made by other police officers who were allegedly present during the incident. In this regard, the petitioner mentions two officers. In relation to one of the police officers, the petitioner states that in his initial statement he stated he was the first to pursue the alleged victim, but in the subsequent official police report, it is stated that he was the last person (police officer) to pursue the alleged victim. Regarding the other police officers, the petitioner contends that he initially stated that, on seeing a struggle between the alleged victim and L.L. that he remained in his patrol car to call for support from other police units. H., in a subsequent statement, the petitioner claims that this officer said that he did not see the struggle.

5. The petitioner complains that there are contradictions regarding the time that the body of the alleged victim was taken from the scene of the incident. In this regard, the petitioner indicates that the testimony presented indicates two different times: 2:15 and 5:00. M. generally, the petitioner complains that the court failed to require or consider other evidence (to clarify the facts) such as a report from the HECA to determine the time of arrival of the body of the alleged victim. The petitioner also mentions that the court did not request or take into account any police reports to establish or corroborate the existence of any request by Giovinetto to call for reinforcements. The petitioner also points to the absence of any finding as to whether the alleged victim was right-handed or left-handed, or whether he had a piece of glass in either his right or left hand. Further, the petitioner alleges that it was never proved that the alleged victim attacked L.L. or attempted to take her firearm.

6. The S. argues that the complaint of the petitioner amounts to no more than a disagreement with decisions of the domestic courts, and that to entertain the petitioner’s claim would violate the Commission’s fourth instance formula. In this regard, the S. emphasizes that criminal proceedings were initiated against L.L., which examined all of the relevant evidence before concluding that L.L.’s use of lethal force was justified. The S. emphasizes that the domestic proceedings took place in accordance with its international guarantees of due process and judicial protection; and that it is not for the Commission to act as superior tribunal to review the decisions of domestic tribunals which have complied with these international guarantees.

7. As for the processing of the petition, the S. observes that the Commission’s delay in forwarding the complaint once it was submitted by the petitioner. Referring to arguments presents in other petitions3, the S. believes that the Commission should refrain from further analysis of the petition and archive the case.

VI. EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

8. It appears that the principal complaint of the petitioner relates to the process and outcome of the judicial criminal proceedings that took place against the police officer responsible for fatally shooting the alleged victim. In that respect, there is no disagreement that these proceedings culminated in a ruling by the Sala I de la Cámara de Apelaciones en lo Penal de R. on November...