INTER-AMERICAN COURT OF HUMAN RIGHTS. CASE OF GUTIÉRREZ AND FAMILY v. ARGENTINA JUDGMENT OF NOVEMBER 25, (Merits, reparations and costs) - PDF

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INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF GUTIÉRREZ AND FAMILY v. ARGENTINA JUDGMENT OF NOVEMBER 25, 2013 (Merits, reparations and costs) In the case of Gutiérrez and family, the Inter-American Court

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INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF GUTIÉRREZ AND FAMILY v. ARGENTINA JUDGMENT OF NOVEMBER 25, 2013 (Merits, reparations and costs) In the case of Gutiérrez and family, the Inter-American Court of Human Rights (hereinafter the Inter-American Court or the Court ), composed of the following judges: Diego García-Sayán, President Manuel E. Ventura Robles, Vice President Alberto Pérez Pérez, Judge Eduardo Vio Grossi, Judge Roberto F. Caldas, Judge Humberto Antonio Sierra Porto, Judge, and Eduardo Ferrer Mac-Gregor Poisot, Judge; also present, Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary, pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter the American Convention or the Convention ) and Articles 31, 32, 62 to 65 and 67 of the Rules of Procedure of the Court (hereinafter also the Rules of Procedure ), delivers this Judgment, structured as follows: I. TABLE OF CONTENTS I. INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTEError! Bookmark not defined. II. PROCEEDINGS BEFORE THE COURT... Error! Bookmark not defined. III. COMPETENCE... 7 IV. THE STATE S ACKNOWLEDGEMENT OF INTERNATIONAL RESPONSIBILITY AND THE AGREEMENT ON REPARATIONS... Error! Bookmark not defined. A. Arguments of the parties and of the Commission... 8 B. Considerations of the Court V. PRIOR CONSIDERATIONS... Error! Bookmark not defined. A. Determination of the factual framework... Error! Bookmark not defined. B. Regarding the alleged structural deficiencies... Error! Bookmark not defined. VI. EVIDENCE... Error! Bookmark not defined. A. Documentary, testimonial and expert evidence... Error! Bookmark not defined. B. Admission of the evidence... Error! Bookmark not defined. B.1. Admission of the documentary evidence B.2. Admission of the statements and the expert opinionserror! Bookmark not defined. VII. FACTS... Error! Bookmark not defined. A. Preliminary investigation and oral proceeding stage (1994 to 1998)Error! Bookmark not defined. A.1. Preliminary investigation stage... Error! Bookmark not defined. A.2. Oral proceeding... Error! Bookmark not defined. A.3. Remedies filed after the oral proceeding B. Other investigations conducted between 1994 and B.1. Administrative Inquiry No /94 Police of the province of Buenos Aires B.2. Administrative Inquiry No /94 Federal Police B.3. Investigation of the Special Investigative Commission of the National Congress B.4. Proceedings No. 57,927, report of unlawful coercionerror! Bookmark not defined. C. Investigations undertaken as of C.1. Disciplinary investigation... Error! Bookmark not defined. C.2. Criminal investigation... Error! Bookmark not defined. VIII. MERITS... Error! Bookmark not defined. VIII-1 RIGHT TO LIFE IN RELATION TO THE OBLIGATION TO RESPECT RIGHTS Error! Bookmark not defined. A. Arguments of the parties and of the Commission B. Considerations of the Court VIII-2 RIGHTS TO JUDICIAL GUARANTEES AND TO JUDICIAL PROTECTION, IN RELATION TO THE OBLIGATION TO RESPECT AND ENSURE RIGHTS A. Arguments of the parties and of the Commission B. Considerations of the Court B.1. Omissions in following up lines of investigation and in collecting evidence 40 B.2 Irregularities and obstructions within the investigations and the criminal proceedings. 42 B.3. Reasonable time B.4 Consequences of the deficiencies in the investigation of the facts B.5. Conclusions VIII-3 RIGHT TO PERSONAL INTEGRITY OF THE VICTIM S NEXT OF KIN... Error! Bookmark not defined. A. Arguments of the parties and of the Commission B. Considerations of the Court IX. REPARATIONS... Error! Bookmark not defined. A. Injured party B. Obligation to investigate, and identify, prosecute and punish, as appropriate, the perpetrators and masterminds of the facts related to the execution of Jorge Omar Gutiérrez 54 C. Measures of satisfaction and guarantees of non-repetitionerror! Bookmark not defined. C.1. Satisfaction... Error! Bookmark not defined. C.1.1. Public act to acknowledge international responsibility and public apology Error! Bookmark not defined. C.1.2. Publication and dissemination of the Judgment Error! Bookmark not defined. C.1.3. Measures to conserve and indicate the warehouse and the police precinct where the events occurred C.1.4. Establishment of the National Day to Combat Drug-trafficking... Error! Bookmark not defined. C.2. Guarantees of non-repetition... Error! Bookmark not defined. C.2.1. Training for police agents... Error! Bookmark not defined. C.2.2. Regulation and implementation of external control mechanisms for the federal police forces, improvements in the investigative capacity of the system of justice, establishment of the Judicial Police of the province of Buenos Aires, and of effective protection systems for victims and witnesses D. Compensation D.1. Pecuniary damage D.1.1. Consequential damage D.1.2. Loss of earnings D.1.3. Damage to the family wealth... Error! Bookmark not defined. D.2. Non-pecuniary damage E. Costs and expenses... Error! Bookmark not defined. E.1. Arguments of the parties... Error! Bookmark not defined. E.2. Considerations of the Court F. Other measures requested... Error! Bookmark not defined. G. Method of complying with the payments ordered... Error! Bookmark not defined. X. OPERATIVE PARAGRAPHS I INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE 1. The case submitted to the Court. On August 19, 2011, under the provisions of Articles 51 and 61 of the American Convention, the Inter-American Commission on Human Rights (hereinafter the Inter-American Commission or the Commission ) submitted to the jurisdiction of the Court the case of Jorge Omar Gutiérrez and family against the Argentine Republic (hereinafter the State or Argentina ). According to the Commission, the case concerns the murder, on August 29, 1994, of Assistant Commissioner Gutiérrez who was investigating a case of corruption, subsequently known as [the] case of the parallel customs house, in which important businessmen and high-ranking government officials were involved. An investigation had been opened in the ordinary criminal jurisdiction into the events on which that case was based, in which presumably there were fundamental irregularities. However, [e]ven though the investigation was fraught with irregularities and concealment measures, and despite the creation of a special committee by the Chamber of Deputies [of the National Congress], the State failed to adopt the necessary measures to clarify the facts and the corresponding responsibilities. Thus, 17 years after the execution of Assistant Commissioner Jorge Omar Gutiérrez, there is still no certainty about the circumstances of his death, and no one has been sanctioned for the incident. Lastly, the Commission affirmed that the human rights violations committed against Jorge Omar Gutiérrez and his family persisted as a result of the alleged absence of an effective investigation by the judicial authorities into the participation of State agents in the murder of Mr. Gutiérrez. 2. Proceedings before the Commission. The proceedings before the Commission were as follows: a. Petition. On May 12, 1999, the Centro de Estudios Legales y Sociales (CELS) lodged the initial petition, which was expanded by CELS, the Center for Justice and International Law (CEJIL), and Nilda del Valle Maldonado de Gutiérrez and Francisco Gutiérrez on October 6 that year. b. Admissibility Report. On February 20, 2003, the Inter-American Commission approved Admissibility Report No. 1/03. 1 c. Merits Report. On March 31, 2011, the Commission issued Merits Report No. 63/11, pursuant to Article 50 of the Convention (hereinafter the Merits Report or Report No. 63/11 ), in which it reached a series of conclusions and made several recommendations to the State: c.1. Conclusions. The Commission concluded that the State was responsible for the violation of: The right to life recognized in Article 4 of the American Convention, in relation to Article 1(1) thereof, to the detriment of Jorge Omar Gutiérrez, and The rights to personal integrity, judicial guarantees and judicial protection recognized in Articles 5, 8 and 25 of the American Convention, in relation to Article 1(1) thereof, to the detriment of his family members Nilda del Valle Maldonado (his widow), Jorge Gabriel Gutiérrez, David Gutiérrez and Marilin Verónica Gutiérrez (his three children), and Francisco Gutiérrez (his brother). 1 Admissibility Report No. 1/03 (file before the Commission, folios 1353 to 1380). In this report, the Commission concluded that it was competent to examine the claims submitted by the petitioners concerning the presumed violation of Articles 4, 5, 8 and 25 of the American Convention, in relation to Article 1(1) thereof. 4 c.2. Recommendations. Consequently, the Commission made the following recommendations to the State: Conduct a complete, impartial, effective and prompt investigation of the facts with the goal of establishing the identities of the perpetrators and the masterminds, as well as all individuals who participated in the facts related to the execution of Jorge Omar Gutiérrez, and punishing them. Conduct a full, impartial, effective and prompt investigation into the individuals belonging to different State bodies who have been involved in the investigations and proceedings carried out with regard to the facts of this case in order to determine responsibility (administrative, disciplinary, criminal, or of any other kind that may apply) for the deficiencies in the investigation, processing of the facts, and obstructions that have resulted in impunity. Provide adequate reparations to the next of kin of Jorge Omar Gutiérrez for the violations of their human rights. 2 d. Notification to the State. The Merits Report was notified to the Argentine State by a communication of April 19, 2011, granting it two months to report on compliance with the Commission s recommendations. On June 17, 2011, the State requested an extension to present information on progress in the implementation of the recommendations, and it was granted one more month. The State presented the required information on August 1, 2011, when this period had already expired. e. Submission to the Court. On August 19, 2011, considering that, from the information provided, [it would appear that] the State has not adopted specific measures to comply with the recommendations made in the Merits Report, the Commission submitted all the facts and human rights violations described in the Merits Report, owing to the need to obtain justice [ ]. The Commission appointed Luz Patricia Mejía, then Commissioner, and Santiago A. Canton, then the Executive Secretary, as its delegates, and its Deputy Executive Secretary, Elizabeth Abi-Mershed, and Karla I. Quintana Osuna, Paulina Corominas and María Claudia Pulido, lawyers of the Executive Secretariat, as its legal advisers. 3. Request of the Inter-American Commission. Based on the above, the Commission asked the Court to declare the international responsibility of Argentina for the violation of the right to life, recognized in Article 4 of the Convention, in relation to Article 1(1) of this instrument, to the detriment of Jorge Omar Gutiérrez, and the rights to personal integrity, judicial guarantees and judicial protection recognized in Articles 5, 8 and 25 of the Convention, in relation to Article 1(1) thereof, to the detriment of the next of kin of the victim, specifically, his widow, Nilda del Valle Maldonado de Gutiérrez, his three children, Marilin Verónica, Jorge Gabriel and David, all with the surname Gutiérrez, and his brother, Francisco Gutiérrez. In addition, it asked the Court to order the State to provide certain measures of reparation, which will be described and examined in Chapter IX of this Judgment. II PROCEEDINGS BEFORE THE COURT 4. Notification of the State and the representatives. The State and the representatives of the presumed victims were notified of the submission of the case by the Inter-American Commission on January 26, Cf. Merits Report No. 63/11 (merits file, folio 35). 5 5. Brief with pleadings, motions and evidence. On March 26, 2012, the Centro de Estudios Legales y Sociales (hereinafter the representatives of the presumed victims, the representatives or CELS ) forwarded its brief with pleadings, motions and evidence (hereinafter the pleadings and motions brief ). The representatives agreed, in general, with the violations alleged by the Inter-American Commission. However, they included Nilda Gutiérrez, sister of Jorge Omar Gutiérrez, who the Commission had not included as a presumed victim in its Merits Report, as a presumed victim of the violations of the rights contained in Articles 5, 8 and 25 of the Convention. Lastly, they asked the Court to order to State to provide diverse measures of reparation. 6. Answering brief. On July 27, 2012, the State presented its brief answering the submission of the case and with observations on the pleadings and motions brief (hereinafter the answering brief ). In this brief, Argentina indicated its willingness to accept the conclusions of the Merits Report adopted by the Inter-American Commission [ ], as well as the resulting legal consequences. Nevertheless, it indicated that it reject[ed] those passages in the representatives brief that tr[ied] to assimilate the facts of the case to situations of a systematic or general nature. In addition, the State asked the Court to reject some of the evidence offered by the representatives and presented observations on the measures of reparation they had requested. The State appointed Alberto Javier Salgado as its Agent, and Julio Cesar Ayala and Andrea G. Gualde as Deputy Agents. 7. Observations on the acknowledgement of responsibility. On September 28, 2012, the Commission and the representatives, respectively, presented their observations on the acknowledgement of responsibility made by State (supra para. 6). 8. Public hearing and evidence. By an Order of December 20, 2012, 3 the President of the Court (hereinafter the President ) ordered that the statements of five presumed victims and the opinions of eight expert witnesses proposed by the representatives be received by sworn statements before notary public (hereinafter affidavit ). In addition, the President convened the Inter-American Commission, the representatives, and the State to a public hearing to be held on February 5 and 6, 2013, to receive the statement of one presumed victim, and one expert opinion offered by the representatives, as well as to hear the final oral arguments of the representatives and of the State, and the final oral observations of the Commission on the merits, and eventual reparations and costs. 9. Postponement of the public hearing and presentation of an Agreement on Reparations. On December 21 and 26, 2012, the State and the representatives, respectively, advised the Court that they had initiated discussions with a view [ ] to reaching agreement on an agenda of reparations and, therefore, requested the postponement of the public hearing that had been convened, as well as the suspension of the time frames for the production and delivery of the evidence required in the President s Order of December 20, 2012 (supra para. 8). Accordingly, on December 26, 2012, the parties and the Commission were advised that the President had decided to suspend the public hearing and the time frames established in the said Order of December 20, On March 12, 2013, the parties and the Commission were advised of the new time frames for the State to forward its questions to those testifying by affidavit, so that the representatives could forward the said statements, and so that the State could present its observations in this regard. On April 12, 2013, the parties and the Commission were informed that the President had decided to convene the parties to a public hearing on May 21 and 22, Cf. Case of Gutiérrez and family v. Argentina. Convening of a public hearing. Order of the President of the Inter-American Court of Human Rights of December 20, This order is available at: 6 That same day, some of the statements required by affidavit in the President s Order of December 20, 2012, were received. On May 17, 2013 Argentina forwarded the Court an Agreement on Reparations signed by the representatives of the victims and the State. 10. Public hearing. The public hearing was held at the seat of the Court on May 21 and 22, 2013, during the Court s ninety-ninth regular session. 4 During the hearing, the Court asked the parties and the Commission to provide certain clarifications, additional information, and helpful evidence when presenting their final written arguments and observations. 11. Final written arguments and observations. On June 24, 2013, the State and the representatives forwarded their respective final written arguments, and the Commission presented its final written observations. The State and the representatives provided the clarifications requested during the public hearing, and the representatives presented the helpful evidence that had been required (supra para. 10), as well as expense vouchers and other documentation. On July 9, 2013, the State was asked to present a timetable for the tasks mentioned in the Agreement on Reparations of May 17, 2013 (supra para. 9). On July 16, 2013, the State indicated that, when the Court has handed down its judgment, all the parties concerned [ ] will prepare a timetable with the approximate dates for completing each of the points agreed on. 12. Observations on the evidence forwarded with the final written arguments and the requested information. On July 31, 2013, the representatives forwarded their observations on the clarifications, documentation, and helpful evidence requested during the public hearing, and the Commission asked for an extension until August 6, 2013, to present its observations, which was granted. The Commission forwarded its observations on August 7, 2013, after this additional period had expired. 13. Helpful evidence. On August 23, 2013, the Court required the State and the representatives to forward the Criminal Code and the Code of Criminal Procedure applicable in the investigations conducted into the facts of the case. On August 30, 2013, the representatives explained that the information required could be found on specific web pages of the State, and Argentina asked the Court for an extension in this regard. This extension expired on September 9, 2013; however, the State failed to forward the requested information. On October 16, 2013, the Court requested Argentine to provide information, by October 22, 2013, at the latest, on the actual status of case , which, at December 30, 2009, had been before Court of Guarantees No. 5 of the La Plata Judicial Department. The State requested an extension in order to provide this information, and was granted a non-extendible period until October 30, 2013, for this purpose. On October 30, 2013, the State forwarded the requested information, and on November 7, 2013, the Commission and the representatives presented their respective observations. III COMPETENCE 4 At this public hearing, there appeared: for the Inter-American Commission, Silvia Serrano Guzmán, Adviser; for the representatives, Paula Litvachky, Gabriela Kletzel, Luis Valenga; for the Argentine Republic: Javier Salgado, Agent, Director of International Litigation on Human Rights Matters of the Ministry of Foreign Affairs and Worship, Gonzalo Bueno, Legal Adviser of the Department for International Litigation on Human Rights Matters of the Ministry of Foreign Affairs and Worship, Yanina Berra Rocca, official from the Legal Advisory Services Department of the Ministry of Foreign Affairs and Worship, and María Eugenia Carbone, Coordinator of International Legal Affairs of the National Human Rights Secretariat. 7 14. The Inter-American Court is competent to hear this case under Article 62(3
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