Inter-American Court of Human Rights
CasE OF Barbani Duarte et al.
v.URUGUAY
judgment of october 13, 2011
(Merits, reparations and costs)
In the case of Barbani Duarte et al.,
the Inter-American Court of Human Rights (hereinafter “the Inter-American Court”or “the Court”), composed of the following judges:[1]
Diego García-Sayán, President
Manuel E. Ventura Robles, Judge
Margarette May Macaulay, Judge
Rhadys Abreu Blondet, Judge, and
Eduardo Vio Grossi, Judge;
also present[2],
Pablo Saavedra Alessandri, Secretary,
pursuant toArticles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or“the American Convention”) andArticles 31, 32, 65and 67 of the Rules of Procedure of the Court[3] (hereinafter “the Rules of Procedure”), delivers this judgment, structured as follows:
Table of contents
/ ParagraphsI.Introduction of the case and purpose of the dispute
/ 1- PROCEEDINGS BEFORE THE COURT
- COMPETENCE
- EVIDENCE
- Documentary, testimonial and expert evidence
- Admission of the evidence
B.2 Admission of the testimonial and expert evidence / 16
17
19
21
27
V.PRIOR CONSIDERATIONS
A. Regarding the facts of the case
B. Regarding the determination of the alleged victims
C.Regarding the alleged“failure to exhaust domestic remedies” / 31
32
42
52
VI.RIGHTS TO JUDICIAL GUARANTEES, JUDICIAL PROTECTION AND TO EQUAL PROTECTION, IN RELATION TO THE OBLIGATION TO RESPECT AND GUARANTEERIGHTS
- Proven facts in relation to the alleged violations of the guarantees of due process and judicial protection
A.2.Facts related to the Banco de Montevideo, the proceedings under article 31of Law No. 17,613 and the alleged victims in this case
B.Right to be heard and due procedural guarantees
B.1. Materialaspect of the right to be heard in the procedure before the administrative body (the Central Bank)
B.2.Due procedural guarantees before the Central Bankand the Contentious-Administrative Tribunal
B.2.a) Alleged “presumption of consent” by application of “disqualifying criteria”
B.2.b) Alleged new criterionarbitrarily applied by the Advisory Commission in favor of 22 cases
B.2.c) Procedural guarantee of adequatereasoning
B.2.d) Alleged lack of information concerning probative elements
C.Judicial protection
C.1.The appeal for annulment before the Contentious-Administrative Tribunal
C.2.Other alleged judicial remedies available
D. Conclusion of the Court concerningChapter VI / 60
61
62
65
115
129
148
149
165
173
186
195
221
232
VII.RIGHT TO PROPERTY IN RELATION TO THE OBLIGATION TO GUARANTEE RIGHTS
Arguments of the parties
Considerations of the Court / 233
236
VIII. REPARATIONS (APPLICATION OF ARTICLE 63(1) OF THE AMERICAN CONVENTION)
A.Injured party
B.Measures of reparation
B.1. Measure of satisfaction and guarantee of non-repetition
B.1.a)Guarantee of due process and judicial protection in the determination of the rights of the victimsB.1.b)Publication and dissemination of the judgment
B.2.Compensation for non-pecuniary damage
B.3.Other claims for reparations
B.4.Costs and expenses
C.Means of compliance with the payments ordered
/ 239242
243
244
252
254
261
266
273
- OPERATIVE PARAGRAPHS
Annex with regard to the victims
Dissenting opinion of Judge Eduardo Vio Grossi and concurring opinions ofJudges Diego García-Sayán, Margarette May Macaulay, and Rhadys Abreu Blondet.
I
Introduction of the case and PURPOSE of the dispute
1.On March 16, 2010,the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) submittedan application against the Oriental Republic of Uruguay (hereinafter “the State” or“Uruguay”), under Articles 51 and 61 of the Convention, in relation to case 12,587. The initial petition was lodged before the Inter-American Commissionon October 17, 2003, by Alicia Barbani Duarte and María del Huerto Breccia Farro, on behalf of themselves and in representation of a group of clients of the Banco de Montevideo S.A.in Uruguay (hereinafter “Banco de Montevideo” or“the Banco de Montevideo”). On October 27, 2006,the Inter-American Commission approved Admissibility Report No. 123/06[4] and, on November 9, 2009, it approved the Report on Merits No. 107/09, in accordance withArticle 50 of the American Convention.[5] This report was sent to the State on December 16, 2009, and the State was granted two months to provide information on the measures adopted to comply with the recommendations made in the report. On March 12, 2010,the Inter-American Commission considered thatthe Statehad not complied with the recommendations made in the Report on Merits and therefore decided to submit the instant case to the jurisdiction of the Inter-American Court.The Inter-American Commissionappointed María Silvia Guillén, Commissioner, and Santiago A. Canton, Executive Secretary, as delegates and Elizabeth Abi-Mershed, Assistant Executive Secretary, and Christina Cerna and Lilly Ching, lawyers of the Executive Secretariat, as legal advisers.
2.According to the Commission, this case relates to the alleged international responsibility of the Statefor failing to provide “a group of depositors of theBanco de Montevideo”with an impartial hearing for their claims before theAdvisory Commission created underLaw17,613, Financial System Reform Law,or bythe Contentious-Administrative Tribunal, concerning the transfer of their funds from the Banco de Montevideo[…]to the Trade Commerce Bank [in the Cayman Islands]without consulting them,[and also] the failure to provide the alleged victims with a simple and prompt remedy to examine all the factual and legal issues relating to the dispute before it.”
3.The Commissionasked the Court to declare the international responsibility of the State of Uruguay for violation of Articles 8(1) (Right to a Fair Trial) and 25(1) (Right to Judicial Protection) of the Convention, in relation to Article 1(1) thereof. The Commission also asked the Court to order the State to adopt specific measures of reparation, and to pay the costs and expenses.
4.The application was notified to the Stateand tothe representativeson July 8, 2010.At that time, the parties were advised that, as established inArticle 34(3) of the Court’s previous Rules of Procedure,[6] applicable to this case in accordance with Article 79(2) of the current Rules of Procedure, if the alleged victimsdid not have a duly accredited legal representative, “the Commission,in its capacity as guarantor of the public interest under the American Convention, shall represent the alleged victims in the proceedings in order to ensure that they enjoy legal defense.”
5.On September 2, 2010,Alicia Barbani Duarte and María del Huerto Breccia Farro, alleged victims and representatives of some of the alleged victims in this case (hereinafter “the representatives”), submitted to the Court their brief with pleadings, motions and evidence (hereinafter “pleadings and motions brief”) underArticle 40 of the Court’s Rules of Procedure.The representatives indicated thatthey endorsed“fully” the facts described in the application and asked the Court to declare the international responsibility of the Statefor the violation ofArticles 8(1) (Right to a Fair Trial), 25(1) (Right to Judicial Protection), 21 (Right to Property) and 24 (Right to Equal Protection) of the American Convention, in relation toArticle1(1) thereof. Consequently, they requested that the Court order various measures of reparation.
6.On November 26, 2010,Uruguaysubmitted to the Court its brief answering the application brief and with observations on the pleadings and motions brief (hereinafter “answering brief”). In this brief, the State rejected the inclusion of the alleged violations of Articles 21 (Right to Property) and 24 (Right to Equal Protection) of the Convention, alleged bythe representativesin theirpleadings and motions brief, as part of the purpose of this case,because the Inter-American Commission had not included the said alleged violations in its application or in its Report on Merits. In addition, the State contested all the claims presented by the Commissionand the facts on which they were founded, as well as the facts alleged by the representativesofthe alleged victims; denied its international responsibilityfor the alleged violations ofArticles8(1) and25(1) of the American Convention in relation to Article1(1) thereof, to the detriment of the alleged victimsidentified in the application brief,and also, subsidiarily, itsinternational responsibilityfor the alleged violations ofArticles 21 and 24 of the American Convention in relation to Article1(1) thereof, to the detriment ofthe alleged victimsidentified in the application brief. Regarding the reparationsrequested by the Commission andthe representatives, the Stateasked the Court to reject all of them.On August 13, 2010, the Stateappointed Carlos Mata, as its Agent, and Daniel Artecona and Vivina Pérez Benech as Deputy Agents.
II
PROCEEDINGS BEFORE THE COURT
7.Following the presentation of the principal briefs (supraparas.1, 5 and 6), as well as others forwarded by the parties, the President of the Court, in an Order dated January 31, 2011,[7] required that the testimony of seven witnesses, three of whom were proposed by the representatives and four by the State, be received by means of sworn statements made before a notary public (affidavits). The Commission, the representatives and the Statewere allowed to formulate questions to the said witnesses and expert witnesses before they gave their respective testimony and expert opinion, and also to submit observations on such testimony and opinions.[8]In addition, in the said Order, the Presidentasked that the Statepresent certain documentary evidence, pursuant to Article 58(b) of the Rules of Procedure. He also convened the parties to a public hearing to receive the testimony of two witnesses, one proposed by the representatives and the other by the State, and two expert witnesses, one proposed by the Inter-American Commission and the other by the State, as well as the observations and final oral arguments of the Inter-American Commission, the representatives and the State, respectively, on the merits and possible reparations and costs in the instant case.
8.On February 4, 2011,the representativesforwarded a piece of documentary evidence that allegedly related to supervening facts relevant to the case. On February 14, 2011,the State presented its observations concerning the alleged superveningevidencepresented by the representatives, and also provided the documentary evidencerequested by the President of the Court in his Order (suprapara.7), together with its observations on the latter. The Inter-American Commissiondid not submit observations on either the alleged supervening evidence or the helpful evidence that the President of the Court had asked the State to provide in his Order (supra para. 7).
9.On February 16, 2011,the representatives and the Stateforwarded the affidavits. On February 28,2011, the State and the representativessubmitted their observations on the statements forwarded by the other party.On that occasion, the representatives presented their observations on the helpful evidence presented by the State (supraparas.7 and 8).In addition, on February 28, 2011, the Inter-American Commissionindicated that it had no observations to make concerning the affidavitsforwarded by the State and the representatives.
10.The public hearing was held on February 21 and 22, 2011, during the Court’s ninetieth regular session which took place at the seat of the Court.[9] During this hearing the Court, basedon the provisions of Article 58(a) of its Rules of Procedure, required the parties to present certain helpful documentation and explanations.
11.On March 8, 2011, the President of the Court requested the parties to submit certain helpful information, documentation and explanations, some of it related to the determination of the alleged victims.[10]
12.On March 23, 2011,the representatives and the Stateforwarded their final written arguments and the Inter-American Commission presented its final written observations on this case. In addition, on that occasion,the representatives and the Stateresponded to the questions raised by the judges during the public hearing (supra para. 10), as well as to the request for helpful evidence made by the President of the Courtin notes of the Court’s Secretariat dated March 8, 2011 (supra para. 11). The Commissiondid not present all the information requested by the President of the Court in the said note of the Secretariat. These briefs were forwarded to the parties, who were given the opportunity to present any observations they deemed pertinent on the information and attachments forwarded in response to the requests for helpful evidence by the Court and its President (supra paras. 10 and 11).
13.On April 25, 2011, the Commissionsubmitted its observations on new information and documents sent by the other parties, some of which had been requested by the President of the Court as helpful evidence (supra paras. 10 and 11. The representativesforwarded their observations on April 25 and May 13, 2011, while the Statesubmitted themon May 6 and 13, 2011. Together with their observations, the representatives and the State forwarded certain new information and documentation in relation to the alleged victimsin this case and, consequently, the parties were allowed to present any observations they deemed pertinent. On June 15, 2011,the Commission, the representatives and the Statepresented their respective observations.
14.On September 23, 2011, the President of the Court asked the Inter-American Commission, the representatives and the State to submit specific information and documentation regarding the determination of the alleged victims, as well as in relation to the evidence provided on the latter. The representatives and the State presented the requested information on September 29, 2011. The Inter-American Commission responded to this request on October 7, 2011, but did not refer to all the information that the President of the Court had required.
III
COMPETENCE
15.The Inter-American Court is competent to hear this case, under Article 62(3) of the Convention, because Uruguayhas been a State Party to the American Convention since April 19, 1985, and accepted the compulsory jurisdiction of the Court on the same date.
IV
EVIDENCE
16.Based on the provisions of Articles 46, 47 and 50 of the Rules of Procedure, as well as on its case law concerningevidence and its assessment,[11] the Court will examine and assess the documentary probative elements forwarded by the parties on different procedural occasions, as well as the testimony and the expert opinions given by means of affidavits and at the public hearing before the Court, as well as the helpful evidence requested by the Court or its President (suprapara.12). To this end, the Court will abide by the principles of sound judicial discretion within the corresponding legal framework.[12]
A. Documentary, testimonial and expert evidence
17.The Court received different documents submitted as evidence by the Inter-American Commission, the representatives and the Stateattached to their principal briefs (supra paras.1, 5 and 6). In addition, the Court received the affidavitsof the witnesses and expert witnesses listed in this section, on the topics mentioned below:
1)Marcelo Arámbulo,witness proposed bythe representatives, who testified on the alleged responsibility of the Central Bankof Uruguay, its alleged failure to exercise comptrollership,and other alleged illegal acts that occurred as a result of the assistance provided to some of the institutions in trouble during the 2002 crisis;
2)Victor Rossi, witness proposed bythe representatives, who testified onthe actions of the Parliamentary Investigating Commission created during the 2002 crisis;
3)Julio Herrera, witness proposed bythe representatives, who testified onthe approval process of Law No. 17,613 and, in particular, on the intentions of the Legislature when adopting this law and itsarticle 31;
4)Fernando Barrán, witness proposed bythe State, who testified onthe circumstances surrounding the 2002 financial crisis in Uruguay, the performance of the Central Bankof Uruguay, the measures adopted during this crisis, the consolidated global monitoring regime, and the operations of theBanco de MontevideoS.A. as abrokerin providing clients withproducts of the Trade Commerce Bank;
5)Jorge Xavier, witness proposed bythe State, who testified onthe situation of the Banco de MontevideoS.A. before and after its intervention and suspension of activities, as well asthe way in which the said bank operated in providing its clientswith products ofthe Trade Commerce Bank inthe Cayman Islands;
6)Rosolina Trucillo, witness proposed bythe State, who testified onthe situation of the Banco de MontevideoS.A. before and after its intervention and suspension of activities, as well as the way in which the said bank operated in providing its clients with theproduct of Trade Commerce Bank in the Cayman Islands, and
7)Julio de Brun, witness proposed bythe State, who testified onthe actions of the Board of the Central Bank, when he presided this institution, with regard to the petitionsfiled under article 31 ofLaw No. 17,613.
18.As regards the evidence rendered at the public hearing, the Court received the testimony of the following persons:
1)Julio Cardozo, witness proposed bythe representatives, who testified on the approval process of Law No. 17,613 and, in particular, on the intentions of the Legislature when adopting this law and its article 31;
2)Augusto Durán Martínez,witness proposed bythe State, member of the Advisory Commission created by article 31 ofLaw No. 17,613, who testified onthe functioning of this committee, the criteria adopted to determine the admissibility or rejection of petitions, and the administrative procedure regime to which the contestation of its decisions was subjectunder both the administrative and the jurisdictional channels;
3)Nélida Mabel Daniele, expert witness proposed bythe Inter-American Commission, specialist in human rights and administrative law, who testified onthe guarantees required in administrative proceedings, the guarantees that must be applied by ad hoccourts in administrative proceedings, and the guarantees required to determine the rights of the individual in light of the American Convention, and
4)Daniel Hugo Martins, expert witness proposed by the State, specialist in administrative law, who testified onthe legal regime of the Central Bankof Uruguay, the Contentious-Administrative Tribunal, and the Judiciary: their institutional status and powers, the system and procedure to appeal their actions, and the administrative and jurisdictional proceedings regime.
B. Admission of the evidence
19.In its final written arguments, the State indicated that the evidence consisting of testimony and documentsconcerning the alleged violations of Articles 21 and 24 of the Convention argued bythe representativeswas“not pertinent,” because said alleged violations were not part of the purposeof the instant case. Furthermore, when presenting the documentaryevidencerequested by the President of the Court in his Order of January 31, 2011 (supraparas.7 and 8), which consisted in an expert appraisal prepared by Marcelo Arámbulo for a domestic criminal proceeding relating to the alleged responsibility of the authorities of the Central Bank of Uruguay for the 2002 banking crisis in Uruguay, the Stateindicated that “the facts to which said expert report refers [were] outside the purpose of these proceedings”; consequently, it should be considered that “the evidence offered [...] at the respective procedural opportunity was not pertinent.”Similarly, with regard to certain documents submitted by the representativestogether with their final written arguments, Uruguay indicated “the absolute inadmissibility and inappropriateness of the presentation of two criminal judgments concerning two former officials of the Central Bank of Uruguay,” because “the specific acts that resulted in these criminal judgments [...] do not bear the slightest relation” to the facts of the instant case.