Report No. 39 (2021) IACHR. Petition No. 245-03 (Argentina)

• Year: 2021
• Case Type: Friendly Settlements
• Respondent State: Argentina
• Court: Inter-American Comission of Human Rights

REPORT No. 39/21

PETITION 245-03

FRIENDLY SETTLEMENT REPORT

WALTER MAURO YÁÑEZ

ARGENTINA

OEA/Ser.L/V/II.

D.. 43

19 M. 2021

Original: Spanish

Approved electronically by the Commission on M. 19, 2021.

Cite as: IACHR, Report No. 39/21, Petition 245-03. Friendly Settlement. W.M.Y.. Argentina. M. 19, 2021.

www.cidh.org

REPORT No. 39/21

PETITION P-245-03

FRIENDLY SETTLEMENT REPORT

WALTER MAURO YÁÑEZ

ARGENTINA

MARCH 19, 2021

1. SUMMARY AND RELEVANT PROCEEDINGS OF THE FRIENDLY SETTLEMENT PROCESS

1. On April 2, 2003, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “IACHR”) received a petition presented by P.G.S.C., A.G. and D.L. on behalf of Mrs. Norma Del Carmen Yáñez (hereinafter "the petitioners"), which alleged the international responsibility of the Argentine Republic (hereinafter "S." or "A.S." or "Argentina"), for the violation of human rights enshrined in Articles 4 ( right to life), 8 (fair trial) and 25 (judicial protection) in relation to Articles 1.1 (obligation to respect the rights and guarantees included in the Convention) of the American Convention on Human Rights (hereinafter “the American Convention", "ACHR" or the "Convention"), to the detriment of W.M.Y., (hereinafter "alleged victim"), who died on M. 11, 2001, as a result of a gunshot wound, presumably fired by an Infantry Agent from the Mendoza Police Station, who, together with his father, appeared as owners of a pantry-type shop, which had been broken into by four young people, including the alleged victim.

2. On July 21, 2005, the parties began their pursuit of a friendly settlement. A. several meetings held between the parties, the petitioners submitted to the S. a proposal for monetary and non-monetary reparations, ratifying their interest in arriving at a Friendly Settlement Agreement (hereinafter “FSA” or “Agreement”).

3. On November 3, 2009, the parties signed a Friendly Settlement Act, through which the A.S. recognized its international responsibility for the human rights violations committed to the detriment of W.M.Y..

4. In accordance with what was stated by the parties, on January 8, 2013, Decree No. 2265 was published, approving the Friendly Settlement Agreement of November 3, 2009 and its R.M. of July 16, 2012.

5. On the other hand, and in accordance with the provisions of the provincial Constitution, on September 21, 2005, Law No. 8813 was published, through which the Legislative Power ratified the aforementioned Decree.

6. On August 18, 2020, the S. reported the signing of the Friendly Settlement Agreement between the petitioner and the national S., indicating that the agreed reparation measures had been fully complied with. T., they requested the Commission to approve the FSA signed on July 29, 2020.

7. In this friendly settlement report, as established in Article 49 of the Convention and in Article 40.5 of the Commission's Rules of Procedure, a review of the facts alleged by the petitioner is made and the friendly settlement agreement signed on July 29, 2020 by the petitioners and the A.S. is transcribed. L., the Agreement signed between the parties is approved and the publication of this report in the Annual Report of the IACHR to the General Assembly of the Organization of American S.s is agreed.

2. THE FACTS ALLEGED

8. According to the petitioners' allegations, on Sunday, M. 11, 2001, at around 6 a.m., in the Cooperativa de B. neighborhood, in the Department of Guaymallén, four young men, including W.M.Y., allegedly tried to enter a pantry-type shop. A. by the neighbors, the owner of the business, Mr. Rosendo Salvador Cabrillana and his son (D.A.C., Infantry Agent of the Mendoza Police Station) reportedly went to the place in the former's truck. The group of youngsters allegedly fled after recognizing the two men upon their arrival.

9. According to the defendant's version, the young men had allegedly opened fire on him and his father, ignoring the command "POLICE STOP", allegedly forcing him to draw and operate the regulation weapon in self-defense. As a result, young W.M.D.Y., aged 20, would have been mortally wounded.

10. According to the version of those who accompanied the victim, the defendant had opened fire without giving the command of "POLICE STOP", and while they fled completely unarmed, the alleged victim was found still alive by the defendant and his father moments after the shooting, who, upon seeing him, allegedly put him in their truck to take him to the Central Hospital, where he allegedly died hours later. Later, Agent Cabrillana went to the police station to submit his weapon.

11. These events allegedly resulted in case No. 90.922 “Prosecutor v / Cabrillana Daniel A. p / Attempt of Aggravated Robbery followed by death”, filed in the Seventh Investigating Court, of the First Judicial District of the Province of Mendoza. On April 11, 2001, the Investigating J. ruled that there was insufficient evidence to proceed to trial and released the defendant from house arrest. Later, on April 18, the Office of Public Prosecutor alleged the nullity of the witness statements of those who had participated in the attempt of aggravated robbery, on account of their status as defendants in the proceedings of the case, as well as the ruling of insufficient evidence to proceed to trial, for having been based on the same statements.

12. On April 20, 2001, after the ruling of insufficient evidence to proceed to trial had been issued, the autopsy performed on the corpse of W.M.Y. was added to the record, which allegedly determined that the cause of death was a “hypovolemic shock, internal hemorrhage and a gunshot wound from the back to front”. According to the petitioners, on May 14, 2001, the J. ruled on the motion for nullity, declaring null all the actions requested by the Office of the Public Prosecutor. S., on May 15, 2001, the J. issued a new order of insufficient evidence to proceed to trial t and release from house arrest.

13. On October 26, 2001, the Central Hospital was requested to send the alleged victim's medical record, which was attached to the file on February 1, 2002. As indicated by the petitioners, on November 21, 2001, they allegedly asked the J. to issue an indictment against the accused. On November 26, 2001, the case against the defendant was dismissed, as the period of the extraordinary extension had expired, and the J. understood the situation of doubt regarding the facts under investigation had not changed. The petitioners reported that they had allegedly appealed this dismissal and that this appeal had been rejected. T., they allegedly filed a new appeal, which also was allegedly rejected by the J..

14. C., not having received a favorable response, the petitioners filed a writ of certiorari with the Supreme Court of Justice of the Province of Mendoza, which also rejected the petition filed by the petitioners.

III. FRIENDLY SETTLEMENT

15. On July 29, 2020, the parties signed a friendly settlement agreement. The text of the friendly settlement agreement sent to the IACHR is included below:

FRIENDLY SETTLEMENT AGREEMENT PETITION P-245-03

Walter Mauro Yáñez

In the Autonomous City of Buenos Aires, Argentine Republic, on July 29, 2020, the parties to Petition P. 245-03 “W.M.Y. vs. REPÚBLICA ARGENTINA” from the registry of the Inter-American Commission on Human Rights, represented in this act by Dr. P.S., for the petitioners, and Dr. Andrea POCHAK —Under-Secretary for Protection and International Liaison of Human Rights of the Nation—, Dr. G.L.K. —National Director of International Legal Affairs in Human Rights— of the National Secretariat for Human Rights, and Dr. A.J.S. —Director of International Litigation in Human Rights of the Ministry of Foreign Relations, International Trade and Worship—, for the ARGENTINE STATE, in its capacity as a party to the American Convention on Human Rights, acting by express mandate of Article 99 paragraph 11 of the Argentine Constitution, agree to enter into this FRIENDLY SETTLEMENT AGREEMENT.

I. The friendly settlement process between the petitioners and the Government of the Province of Mendoza.

A. As was duly communicated to the Illustrious Inter-American Commission on Human Rights, the petitioners and the provincial authorities opened a space for dialogue to explore a friendly settlement on the matter.

B. In the framework of said dialogue, the Province of Mendoza and the petitioners reached a Friendly Settlement Agreement which was approved by Provincial Decree No. 2265, published on January 8, 2013 and later ratified by Law No. 8813 published on September 21, 2015, in accordance with the provisions of the Provincial Constitution.

C. The text of the Agreement is reproduced below.

“1) That in light of the time elapsed since the signing of the minutes at pages. 98/99, dated November 3, 2009; the parties meet in order to fully ratify it in accordance with the clauses set forth therein, with the exception that the clause under which OSEP coverage was requested is eliminated in conformity with the withdrawal of such request made at page. 118. To this end, the aforementioned provisions are transcribed:

1. Rescind point 4 of Minutes No. 1 of the friendly settlement efforts, dated February 19, 2008, added to page. 11 of administrative file N ° 4604-S-07- 00100.

2. Continue with the friendly settlement process, provided for in Article 41 (Sic) of the...