REPORT Nº 5/02*
SERGIO SCHIAVINI AND MARÍA
TERESA SCHNACK DE SCHIAVINI
February 27, 2002
1. On February 3, 1998, the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission,” the “Commission,” or the “IACHR”) received a complaint that the “Comisión de Familiares de Víctimas Indefensas de la Violencia Social e Institucional de la República Argentina COFAVI” [Argentine Commission of Families of Defenseless Victims of Social and Institutional Violence], the “Centro de Estudios Legales y Sociales CELS” [the Center for Legal and Social Studies], the Center for Justice and International Law (CEJIL), and Human Rights Watch/Americas, hereinafter the petitioners, filed against the Republic of Argentina (hereinafter “the State,” the Government” or “Argentina”). The complaint concerned the death of Sergio Andrés Schiavini on May 29, 1991, during a clash between members of the Buenos Aires Provincial Police and a gang of thieves. The latter were holding a number of people hostage inside a patisserie, one of whom was the young Schiavini. The petition also denounced the failure to provide judicial protection and denial of the guarantees of due process, and the persecution that María Teresa Schnack has suffered since the death of her son, Sergio Schiavini, because of her actions to press for investigation.
2. The petitioners contend that the State is responsible for violating the rights to life, humane treatment, a fair trial and judicial protection, recognized in Articles 4, 5, 8 and 25, respectively, of the American Convention on Human rights (hereinafter the “Convention” or the “American Convention”), all in relation to its general obligation to respect the rights recognized in the Convention and ensure their free and full exercise to all persons subject to its jurisdiction, recognized in Article 1(1) of the Convention, to the detriment of Sergio Andrés Schiavini and his mother María Teresa Schnack de Schiavini (hereinafter “the victims”).
The State asked the Commission to declare the petition
inadmissible on the grounds of a failure to exhaust the local remedies
supposedly available under domestic law; subsidiarily, should the
Commission find that the local remedies were exhausted, the State asks
that the petition be declared inadmissible on the grounds that it was
lodged after the deadline established in Article 46(1)(b) of the
Without prejudging the merits of the complaint, the Commission
concludes in this report that the petition is admissible inasmuch as it
meets the requirements established in Articles 46 and 47 of the
Convention. The Commission will, therefore, proceed with the
analysis of the alleged violations of Articles 4, 5, 8, 25 and 1(1) of
PROCESSING WITH THE COMMISSION
In communications dated January 14, 1999, the Commission informed
the petitioners that the processing of the petition had been initiated
and sent the pertinent parts of the petition to the State. It gave
the Government 90 days to provide whatever information it deemed
relevant concerning the facts denounced and the requirement of
exhaustion of domestic remedies. On May 7, 1999, the State
requested an extension of the deadline for submitting the corresponding
information. By note of May 10, 1999, the Commission acceded to
the State’s request by granting it a 60-day extension. It also
informed the petitioners that this action had been taken.
The Government submitted its response to the complaint via a
communication dated July 7, 1999. The pertinent parts were then
forwarded to the petitioners on July 9, 1999, with the request that they
submit the corresponding comments with regard to the State’s answer.
On August 6, 1999, the petitioners asked the Commission for a 30-day
extension of the deadline for submitting their observations, which the
Commission granted by note of August 9, 1999.
On September 8, 1999, the petitioners submitted their
observations on the State’s answer. Those observations were
forwarded to the Government by a communication dated September 13, 1999.
In that note the Commission advised the State that it had 60 days in
which to supply additional information or make observations on the
The State submitted its observations in a communication dated
November 19, 1999. The pertinent parts were then forwarded to the
petitioners on November 24, 1999. They were advised that they had 30
days in which to submit their views on the State’s observations or to
provide additional information. On January 21, 2000, the
petitioners requested that the deadline for submitting their
observations be extended. The Commission granted them a 45-day
extension by a letter dated February 14, 2000.
On March 3, 2000, the Commission received another communication
from the petitioners, this one containing their observations on the
State’s latest submission. The pertinent parts of that memorial
were sent to the State on May 10, 2000.
The State filed its third presentation of observations on May 23,
2000. Its contents were forwarded to the petitioners by note of
May 30, 2000.
In a communication dated September 29, 2000, the petitioners
supplied the Commission with additional information. That
information was sent to the State on October 10, 2000, with a request
that any observations in response be submitted within 60 days. In a
communication of December 15, 2000, the State requested an extension of
the deadline for submitting its observations. By communication
dated December 18, 2000, it was granted a 30-day extension.
The Government responded to the petitioners’ most recent
submission by a communication dated January 26, 2001, the pertinent
parts of which were sent to the interested parties on March 26, 2001.
The latter were given 30 days to submit their observations.
By note of May 29, 2001, the petitioners forwarded their
observations on the Government’s most recent submission. In a
letter dated June 27, 2001, they supplied additional information
relevant to the case. The pertinent parts of those communications
were forwarded to the State on September 10, 2001, with a one month time
period within which to make its observations. The State was also
asked to supply copies of the judicial file in the case concerning the
death of young Schiavini within that same one-month period. As of
the date of the present report, those copies have not been supplied.
Argentina answered the petitioners’ latest submissions on October 10,
2001. The State’s response was sent to the petitioners on
October 23, 2001.
At the petitioners’ request, the Commission convened the
parties for a hearing held during its 113th regular session
to discuss matters related to the petition’s admissibility and to take
direct testimony from Mrs. María Teresa de Schiavini. The hearing
was held on November 15, 2001. At that time the State presented
additional information concerning the case.
The information supplied by the State at the hearing on November
15, 2001, was sent to the petitioners via a communication dated December
3, 2001. The petitioners were given one month in which to submit
their observations. On January 2, 2002, the petitioners submitted
a communication reiterating previously stated positions. This was
transmitted to the State for its information.
POSITION OF THE PARTIES
The position of the petitioners
17. The petitioners
contend that the State is responsible for Mr. Sergio Schiavini’s death
due to the bullet wounds he sustained during the clash between the
police and a gang of thieves who had taken Schiavini and others hostage.
They assert that Argentina failed to comply with its duty to adequately
investigate this homicide, as a result of which the victim’s family
was denied justice
18. The petitioners
report that at approximately 1:30 a.m. on May 29, 1991, four armed
subjects entered the patisserie “Dalí”, located at the intersection
of Sáenz and Pellegrini streets in the county of Lomas de Zamora,
Province of Buenos Aires. Their intention was to hold up the
business. Once inside, they threatened the owner of the business,
its customers and employees, and stole the money and personal effects of
all those present (some 20 people in total).
19. According to
the petitioners, the thieves had just about completed the theft of the
money and personal effects of the people inside the patisserie when a
Buenos Aires Police patrol car drove up. One of the thieves
noticed the patrol car and alerted his associates. Following a brief
conversation, the thieves decided to hold off the three police officers
in the patrol car, and then get away.
20. The petitioners
report that the three police officers got out of the patrol car and, in
a loud voice, ordered the thieves to surrender. The thieves fired
a gunshot in reply. That shot was followed by a prolonged exchange
of fire. Within a few short minutes, another 15 to 17 patrol cars
arrived on the scene, and around 45 more police officers, some in
uniform, others in civilian dress. They, too, opened fire on the
patisserie “Dalí”, using highly sophisticated and heavy weaponry.
The petitioners contend that the armed confrontation lasted more than 30
minutes. They indicate that, during that time, not one
police official took command of the operation in order to protect the
lives and safety of the 20 hostages inside the patisserie.
21. The petitioners
argue that the police firepower was excessive. The gunfire left
bullet holes from the floor up to even the signs that the patisserie had
mounted on the roof of the building. They argue that the action
was so out of control that, at one point, the police officers who had
positioned themselves on Sáenz Street opened fire on their fellow
police officers positioned on Pellegrini Street; one of the police
officers even shot up his own vehicle. In short, the petitioners contend
that the measures taken by the Buenos Aires Police in response to the
one shot fired by the thieves were completely disproportionate.
22. The petition
states that the criminals used a number of the hostages, Sergio Andrés
Schiavini among them, as human shields against the shots fired by the
Police. The petitioners state that the thieves decided to give up
when they ran out of bullets and called out to the police requesting the
presence of a judge. They told the police that they had a number
of hostages. Even so, the Police continued to shoot, without any
regard for the lives of the hostages.
23. The petitioners
contend that when Sergio Andrés Schiavini tried to leave the
patisserie, he headed for the main entrance, which faces Carlos
Pellegrini street. Although he had his hands in the air, the
police positioned on the sidewalk opened fire. He eventually died
from the serious wounds he sustained in the area of the right eyebrow
and right thigh. Then, more than thirty minutes after the shooting
started, one of the officers present on the scene fired teargas into the
patisserie. With that, the petitioners assert, the exchange of
gunfire came to a stop. That exchange left hostages José Porta
(the owner of the shop), Juan Carlos Cáceres and Sergio Schiavini
wounded, and the material damage done was extensive.
24. According to
the petitioners, Mr. Schiavini was rushed to Luisa Gandulfo Hospital in
Lomas de Zamora, where he died at around 8:15 a.m. on May 29, 1991.
A number of physicians worked to save his life, but he died from the
very serious bullet wound he sustained in the area of the right eye.
25. The petitioners
assert that a criminal case was instituted to investigate the “Dalí”
assault, the wounds sustained by some of the hostages and the death of
Mr. Sergio Schiavini. They allege that the father of one of the
police officers who participated in the shootout acted as police
examiner in charge of compiling material evidence and arresting
26. The petitioners
believe that the purpose of the initial investigation was to eliminate
any evidence that would implicate the police in the excessive use of
force in the shootout on May 29, 1991. They contend that not
all those who participated in the event were identified, arrested or
charged; instead only 15 officers were prosecuted, and then on charges
of homicide resulting from a fight, as if Mr. Schiavini had been an
intentional participant in the clash. The petitioners contend that
the police personnel in charge of gathering evidence at the scene of the
shootout were the very same police officers who had participated in it.
27. According to
the petitioners, the autopsy done on the body of Mr. Schiavini was so
flawed that two other autopsies eventually had to be conducted to
determine where the bullets that shot the victim were fired from.
They explain that when the first autopsy was done, no photographs or
x-rays of the victim’s skull were taken, and the bones of the right
orbital cavity were destroyed using a hammer and chisel, a fact
uncovered during the second autopsy and later admitted by the experts
who took part in the first autopsy and who eventually stood trial on
charges of destruction of evidence. The petitioners assert that
during the second autopsy, the hands and head of the body were removed,
supposedly for subsequent analysis. These were then retained in
the Morgue of the Judiciary for several months for no reason. The
petitioners state that at the time of the third autopsy, requested by
the physicians on trial for destruction of evidence, it was found that
Mr. Schiavini’s tomb had been violated and that the bones of the
cranium, particularly the right orbital cavity, were either missing or
28. According to
the petitioners, it was not until May 16, 1997 that a judgment was
delivered in the homicide of Sergio Schiavini. Only the thieves
were convicted, and only of the crime of larceny. They were given
sentences of 16 to 18 years in prison. The police officers
involved in the shootout were acquitted for lack of evidence, even
though their conduct was considered excessive, wrong and illegitimate.
29. The petitioners
contend that, among others, the following constitute arbitrary judicial
actions attributable to the State: the failure to take or consider
certain evidentiary measures; the refusal to allow the family’s
defense attorney to question the witnesses; the fact that persons with a
direct or indirect interest in the case were in charge of the
investigation; the irregularities in the proceedings conducted for the
oral arguments hearing; the contradictions contained in the judgment
from the murder trial; the acquittal of the police officers involved in
the shootout; and the acquittal of the physicians who destroyed evidence
related to Mr. Schiavini’s murder.
30. The petitioners affirm that even though complaints were filed promptly to report the threats, persecution and harassment against the Schiavini family, particularly against the victim’s mother for having pressed for the investigation and eventual punishment of those responsible for the murder, those complaints were not properly investigated.
31. The petitioners
maintain that the petition satisfies the admissibility requirements
established in the American Convention and the Commission’s Rules of
Procedure. They point out that the victim’s next of kin were never
able to get the courts to clarify the facts denounced because the
competent authorities did not conduct a proper investigation. The
petitioners argue that the system of criminal procedure in force in the
Province of Buenos Aires at the time did not afford Mr. Schiavini’s
family the guarantees of due process of law necessary for the
determination of the rights of the victim or even their own rights as
his next of kin, to have the facts of the case clarified, those
responsible punished and to receive compensation.
The State’s position
The State, for its part, contends that Mr. Sergio Andrés
Schiavini sustained the bullet wounds that ultimately caused his death
while being held hostage by the thieves who entered the premises of the
“Dalí” patisserie in the early morning hours of May 29, 1991.
It affirms that the clash that occurred between the robbers and the
police left only three people wounded. The
shots that wounded those three people were all fired by the criminals.
The State points out that it was not lack of control or
coordination or apparent lack of skill on the part of the police
officers that put Mr. Schiavini’s life in peril, or in greater peril
than it was in at the hands of the criminals. It denies that the
police investigation was intended to erase any evidence that might point
to excessive force on the part of the police or implicate them in
Schiavini’s death. It also denies that members of the judicial
branch of government failed to honor their obligation to investigate the
facts; attempted to destroy evidence; desecrated the victim’s body;
failed to conduct a fair trial to punish the guilty parties; or that its
agents harassed or persecuted the Schiavini family in any way.
According to the State, it was shown at trial that the thieves
fired the shots that wounded Mr. Schiavini and the other two hostages
wounded. Those thieves were prosecuted and sentenced according to
the law. The State, therefore, cannot be accused of violating
Articles 4 and 5 of the Convention. The State also contends that the
victim’s next of kin were able to intervene in all phases of the court
proceeding, to propose experts and appoint attorneys, as well as to file
suit against the persons convicted under criminal law of the murder to
seek financial compensation.
The State contends that the Commission should declare the
petition inadmissible because the petitioners failed to properly exhaust
local remedies in the criminal case that resulted in the conviction of
the persons alleged to be responsible for Sergio Schiavini’s death. In
the Government’s opinion, the remedy invoked by the victim’s next of
kin – a recurso de inaplicabilidad de la ley -- was not filed
within the time period prescribed in Article 361 of the Code of Criminal
Procedure of the Province of Buenos Aires in force at that time.
It also points out that even though Article 87 of the Code of Criminal
Procedure expressly limited the intervention of the injured private
parties in the proceedings, it is no less true that under certain
circumstances, a court could grant an appeal filed by the family.
The State contends that because the alleged aggrieved parties did
not attach to their submission the copies necessary to effect the
necessary transfers, as required under Articles 257 and 120 of the
National Code of Civil and Commercial Procedure, the high court was
unable to grant certiorari in response to the extraordinary federal
appeal filed by Mr. Schiavini’s family once the recurso de
inaplicabilidad de la ley was denied. The Government contends
that at the time, it notified the petitioners that they were required to
supply the copies in question within 48 hours. That notification
was directed to the case file, since under the procedural law in force
at the time the court was under no obligation to serve notification at
the registered domicile. It therefore considers that this federal
extraordinary appeal, too, was filed incorrectly, and was denied
accordingly, a fact not attributable to the State but to the
carelessness of the petitioners themselves.
According to the State, the petitioners were also late in filing
an appeal of complaint [recurso de queja], which is why the
Supreme Court refused to hear it. In short, the State considers
that, as evidenced by the petitioners’ own statements, the appeals
used by the next of kin of Sergio Schiavini were either filed late or
did not meet the requirements stipulated by law. For these
reasons, the State considers that the petition should be declared
In addition, the Argentine State argues that the petition is
inadmissible because it was lodged after the expiration of the six-month
time period provided for in Article 46(1)(b) of the American Convention.
The petitioners tacitly consented to the lower court’s ruling of May
20, 1997. The ruling became final on that date because the
reservation provided for in Article 361 of the Code of Criminal
Procedure of the Province of Buenos Aires was not filed.
However, it was not until February 3, 1998 that the petition was lodged
with the Commission.
Concerning criminal case No. 30,193, “Amoroso re complaint,”
brought against the physicians who conducted the first autopsy on the
body of Sergio Schiavini and who were charged with destruction of
evidence and adulteration of the findings, the State asserts that the
rights of the victim’s family were not affected. To support its
claim it points out that the alleged aggrieved parties appointed experts
and did not challenge the verdict of acquittal delivered on November 17,
1994. Here again, the Government argues that the petition was
filed after the six-month period provided for under Article 46(1)(b) of
the American Convention had expired.
Finally, the State contends that the supposed persecution and
harassment of the Schiavini family, particularly Mrs. Teresa Schnack,
has not been proved. The State initially argued that the alleged
victim failed to indicate whether any complaint had been filed with the
authorities and if so what the outcome had been. Consequently, it
argued that this allegation of the petitioners should be rejected as
generic. Since that time, the State has not supplied any
additional information on the investigations undertaken into this
ANALYSIS ON ADMISSIBILITY
Competence of the Commission ratione personae, ratione
materiae, ratione temporis and ratione loci
41. The Commission
is competent to examine the petition in question. Under Article 44 of
the Convention and Article 23 of the Rules of Procedure of the
Commission, the petitioners are authorized to file complaints alleging
violations of rights protected under the American Convention. The
alleged victims, Sergio Andrés Schiavini and María Teresa Schnack, are
persons whose rights were protected under the Convention, the provisions
of which the State had undertaken to respect. Argentina has been
subject to the jurisdiction of the Commission, under the terms of the
Convention, since September 5, 1984, the date on which it deposited its
instrument of ratification.
42. Inasmuch as the
petitioners have filed complaints alleging violation of Articles 4, 5,
8, 25 and 1(1) of the American Convention, the Commission is competent ratione
materiae to examine the complaint.
43. The Commission
is competent ratione temporis to examine the complaints because
the petition alleges facts that occurred since May 29, 1991, the date on
which Mr. Schiavini sustained the injuries that ultimately produced his
death. The facts alleged, therefore, occurred subsequent to the
date on which Argentina’s obligations as a State party to the American
Convention took effect.
Finally, the Commission is competent ratione loci, given
that the petition indicates that the alleged victims were under the
jurisdiction of the Argentine State at the time the alleged events
occurred, which reportedly took place within the territory of that
Exhaustion of local remedies
46(1)(a) of the American Convention provides that the admissibility of a
petition depends directly of the fact “that the remedies under
domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law.”
Both the Inter-American Court of Human Rights (hereinafter “the
Court”) and the Commission have repeatedly held that “(…)
under the generally recognized principles of international law and
international practice, the rule which requires the prior exhaustion of
domestic remedies is designed for the benefit of the State for that rule
seeks to excuse the State from having to respond to charges before an
international body for acts imputed to it before it has had the
opportunity to remedy them by internal means.
However, the very same Convention provides that this provision will not
apply when there are no local remedies to be exhausted, whether because
of factual circumstances or points of law. To be more specific,
Article 46(2) provides exceptions to the general principle of exhaustion
of local remedies when the domestic law of the State concerned does not
afford due process of law for the protection of the right or rights that
have allegedly been violated; when the party alleging violation of his
rights has been denied access to the remedies under domestic law or has
been prevented from exhausting them; or when there has been unwarranted
in rendering a final judgment under the aforementioned remedies.
46. In the instant
case, although the Public Prosecutor’s Office had delivered an
indictment in trial Nº 31,360, “Villarroel, Miguel et al. re
aggravated robbery and homicide,” it did not appeal the ruling handed
down on May 16, 1997 which acquitted the police officers involved in the
shootout that left Sergio Schiavini mortally wounded. When this
happened, notwithstanding that they lacked procedural standing,
the family of the victim attempted to seek review of the decision on
appeal. Accordingly, they filed the following recourses: 1) an
appeal challenging the applicability of the law (an extraordinary appeal
at the provincial level), filed on May 30, 1997 and denied on June 6,
1997 on the grounds that it was filed after the deadline; 2) an
extraordinary federal appeal, filed on June 23, 1997 and denied on
August 19, 1997, and 3) an appeal of complaint, filed on September 10,
1997 and denied on September 22, 1997.
47. In summary,
what the State argues is that the petitioners improperly filed the
appeals that were supposedly available to them to challenge the lower
court ruling delivered in criminal trial Nº 31,360, “Villarroel,
Miguel et al. re aggravated robbery and homicide.” The State
also alleges that the petitioners did not challenge the legitimacy of
the verdict of acquittal delivered in trial Nº 30,193 “Amoroso re
complaint.” The State therefore concludes that the
petition should be declared inadmissible.
48. For their part,
the petitioners assert that under the criminal procedural law in effect
at the time in the Province of Buenos Aires, they did not have standing
to file any appeal against the ruling delivered in case Nº 31,360
“Villarroel, Miguel et al. re aggravated robbery and homicide.” The
petitioners contend that lacking such standing, they did not have
effective access to the remedies under domestic law. Nevertheless,
they did try to give the State the opportunity to review the ruling and
awaited the outcome of appeals that were not available to them directly.
As they explain, under the existing criminal procedural law, it was the
Public Prosecutor’s Office that had the standing to challenge the
verdict. Under the law in force at that time, if the Public
Prosecutor’s Office intended to challenge the verdict of the court, it
was to so inform the court within three days of the notification of
judgment. But the Public Prosecutor’s Office did not invoke that
competence. Even though the petitioners filed their appeal
challenging the applicability of the law within the 10-day period
required under Article 361 of the Code of Criminal Procedure of the
Province of Buenos Aires, the aforementioned three-day deadline to
notify the court had passed and the petitioners’ challenge was denied
on that account.
49. This Commission
has already held that: “In terms of the burden of proof with respect
to the requirements of Article 46, it should be noted that, when a
petitioner alleges that he or she is unable to prove exhaustion, Article
31 of the Commission's Rules of Procedure establishes that the burden
then shifts to the State to demonstrate which specific domestic remedies
remain to be exhausted and offer effective relief for the harm alleged.
Where the State then makes a showing that a certain remedy should have
been used, the burden shifts back to the petitioner to show that it was
exhausted or that one of the exceptions under Article 46 applies.”
50. As for the
filing of appeals against the trial verdict in criminal case Nº 31,360
“Villarroel, Miguel et al. re aggravated robbery and homicide,” the
Commission notes that the State has not clarified how those appeals
could have been filed and effectively pursued under the then applicable
law in the Province of Buenos Aires. The pertinent part of Article
87 of the Code of Criminal Procedure of the Province of Buenos Aires was
private party wronged by a crime that the State must prosecute may
intervene in the criminal trial, either on his own –assisted by legal
counsel- or through an attorney acting on his behalf, but only with
the faculties that this code prescribes… (emphasis added by the
faculties did not include the authority to challenge a verdict of
conviction or to file an appeal challenging the applicability of a law,
provided for in Article 350 of the Code of Criminal Procedure, or
follow-up appeals when an appeal challenging the applicability of a law
51. At the hearing held on November 15, 2001, the
State pointed out that there is some precedent in the case law of the
Argentine courts, where a private party who was a crime victim filed an
appeal to challenge the applicability of the law, and the appeal was
granted. Therefore, in the instant case, had the appeals
challenging the verdict of trial No. 31,360 been filed on time, the
domestic courts might have granted them. Here, the Commission
concurs with the finding of the European Court of Human Rights in the
judgment in the Brozicek v. Italy case:
only remedies that Article 26 of the Convention requires be exhausted
are those that are available and sufficient and relate to the breaches
the circumstances of the case, the Court does not consider that the
appeal in question was sufficiently available. At the time, the
possibility of bringing such an appeal was not expressly provided for in
the legislation, but was based only on judicial interpretation of
Articles 500 and 199 of the Code of Criminal Procedure in the version
then in force. (emphasis added by the Commission).
other words, where there are procedural rules that limit the standing to
bring and act upon a given appeal, that standing cannot be conditioned
on court decisions made on a case-by-case basis.
52. Under the rules
of criminal procedure in effect at the time of the events in the
Province of Buenos Aires, the family of Sergio Schiavini did not have
the legal standing necessary to file a challenge. That standing
was reserved for the Public Prosecutor. However, the latter did
not challenge the decision even though it disregarded his indictment.
The Commission considers that the admissibility of the present petition
cannot be conditioned on the exhaustion of remedies that lacked efficacy
because the petitioners were themselves procedurally barred from
It is worth noting that in Argentina an appeal challenging the
applicability of a law is an extraordinary remedy, as stated in Article
362 of the Code of Criminal Procedure of the Province of Buenos Aires in
force at the time the events occurred. It is not the purpose of
such an appeal to remedy alleged serious irregularities in the
investigative stage of a criminal case. The jurisprudence of the
system has established that while in some cases these extraordinary
remedies may be suitable for addressing human rights violations, as a
general rule the only remedies that need be exhausted are those whose
function within the domestic legal system is appropriate for providing
protection to remedy an infringement of a given legal right. All
domestic systems have multiple remedies, but not all are applicable in
all circumstances. If, in a specific case, the remedy is not
appropriate, then obviously it need not be exhausted.
54. For all these
reasons, the Commission concludes that the exceptions provided for in
Article 46(2)(a) and (b) of the American Convention apply in the present
case. As it has on previous occasions, the Commission would like
to point out that the application of the exceptions allowed under
Article 46 of the Convention to determine the admissibility of a
petition does not imply any prejudgment of the merits of the petition.
The criterion used by the Commission to analyze the petition during the
admissibility phase is preliminary in nature. Consequently, while the
Commission concludes that the record of the case supports its
admissibility, the causes and effects that prevented exhaustion of local
remedies will be examined, as appropriate, when dealing with the merits
of the dispute, in order to determine whether they constitute violations
of the American Convention.
Time period for submitting a petition
46(1)(b) of the Convention states that for a petition to be admissible,
it must be lodged within a period of six months from the date on which
the party alleging violation of his rights was notified of the final
judgment. However, Article 46(2) of the Convention and Article
32(2) of the Commission’s Rules of Procedure provide that this “rule
does not apply when it has been impossible to exhaust internal remedies
due to a lack of due process, denial of access to remedies, or
unwarranted delay in issuing a final decision (…) Nor does this rule
apply where the allegations concern a continuing situation--where the
rights of the victim are allegedly affected on an ongoing basis.”
56. In the instant
case, the State has argued that the verdict became final on June 20,
1997 because the petitioners did not properly file their appeals
challenging the verdict in trial Nº 31,360 “Villarroel, Miguel et al
re aggravated robbery and homicide”. Therefore, the State
contends that this petition, which the Commission received on February
3, 1998, was received after the deadline and must be declared
57. In the instant case, the Commission is of the opinion that, in application of Articles 46(2) of the Convention and 32(2) of its Rules of Procedure, the requirement stipulated in Article 46(1)(b) of the American Convention does not apply, for the following reasons: 1) as the petitioners did not have legal standing to challenge the verdicts of the domestic courts, they cannot be required to exhaust those remedies under domestic law; 2) Mr. Schiavini’s family has continued their efforts to obtain a full clarification of the facts; 3) a continuing denial of justice has been alleged; and 4) a failure to properly investigate the complaints of harassment and persecution has been alleged. The Commission therefore finds that the petition was filed within a reasonable time from the date on which the alleged human rights violations occurred.
Duplication of proceedings and res judicata
58. There is
nothing in the case file to suggest that the petition is pending in
another international proceeding for settlement or that it is
substantially the same as one previously studied by the Commission or by
another international organization. Therefore, the requirements
established in Articles 46(1)(c) and 47(d) of the Convention have been
Characterization of the facts alleged
59. The Commission considers that, if proven, the petitioners’ allegations regarding the alleged violations of the rights of Sergio Schiavini and María Teresa Schnack de Schiavini, could constitute violations of the right to life, the right to humane treatment, the right to a fair trial and the right to judicial protection, guaranteed by Articles 4, 5, 8 and 25 of the Convention in relation to Article 1(1) thereof. Furthermore, there is nothing to indicate that the petition is manifestly groundless or out of order. The Commission, therefore, considers that the requirements established in Article 47(b) and (c) of the American Convention have been satisfied.
The Commission concludes that it is competent to hear this case
and that the petition is admissible under the provisions of articles 46
and 47 of the American Convention.
61. Based on the
foregoing arguments of fact and of law, and without prejudging the
merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible with respect to the
alleged violations of Articles 4, 5, 8 and 25, in relation to Article
1(1) of the American Convention on Human Rights.
To notify the State and the petitioners of this decision.
To proceed with its analysis of the merits of the case.
4. To publish this decision and include it in the Annual Report of the IACHR to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., the 27th day of February 2002.
(Signed): Marta Altolaguirre; First Vice-President, Robert K.
Goldman, Julio Prado Vallejo, and Clare K. Roberts, Commission members.
The President of the Commission, Juan E. Méndez, an
Argentine national, did not take part in the discussion of and
decision on this report, in keeping with Article 17(2)(a) of the
Commission’s Rules of Procedure.
The provision in question reads as follows: “Article 361.
The time period for filing appeals challenging constitutionality and
applicability is ten days counted from the date of notification of
judgment. However, if, within three days of notification of
the judgment the parties do not indicate that they will file an
appeal, the judgment shall become final.”
See IACtHR, Exceptions to the Exhaustion of Domestic Remedies
(Article 46(1), 46(2)(a)
of the American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Ser. A No.
11, paragraph 17.
See IACtHR, In the
Matter of Viviana Gallardo et al., Decision of November 13, 1981,
Ser. A No. G 101/81, paragraph 26.
Articles 87 and 350 of the Code of Criminal Procedure of the
Province of Buenos Aires, in force at the time the trial judgment
was handed down did not give an aggrieved private party procedural
standing to file appeals challenging the trial ruling.
IACHR, Report Nº72/01 (Admissibility), Case 11.804, Juan Ángel
Greco, Argentina, October 10, 2001, paragraph 46. See also,
for example, IACtHR, Velásquez Rodríguez Case, Judgment of July
29, 1988, Ser. C No. 4, paragraphs 60 and 64.
ECHR, Brosicek v. Italy Case, Merits and Just Satisfaction
Judgment, December 12th, 1989, Ser. A Nº 167, paragraph
See in this regard, IACtHR, Velásquez Rodríguez Case, Judgment of
July 29, 1988, Ser. C N° 4, paragraph 63; IACHR, Report on
Admissibility Nº 68/01, Case 12.117, Santos Soto Ramírez et al.,
Mexico, June 14, 2001, paragraph 14; and Report Nº 83/01
(Admissibility), Case 11.581, Zulema Tarazona Arriate et al,
Peru, October 10, 2001, paragraph 24.
See IACHR Report Nº 72/01, Op. Cit., paragraph 54; Report Nº
31/99 (Admissibility), Case 11.763, Plan de Sánchez Massacre,
Guatemala, April 16, 1999, paragraphs 29 and 30.