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1. The authors of the
communication (initial submission of 17 July 2002) are Eduardo Mariategui,
Mirta Honorina Mattiusi de Mariategui, Francisco José Mariategui and Alicia
Beatriz Fernández de Mariategui, all Argentinean citizens. They claim to be
victims of violations by Argentina to articles 2, paragraphs 2 and 3, and
articles 14 and 26 of the Covenant. They are not represented by counsel. The
Optional Protocol entered into force for Argentina on 8 November 1986.
FACTUAL BACKGROUND
2.1 The authors are the owners of the enterprise "Mariategui Sociedad
Anónima Comercial Industrial Minera Agropecuaria Constructora" (referred to
hereinafter as the company), which is a limited company created in 1976, and
the legal successor of "Mariategui Usandizaga S.A.C.I.M.A.C. another limited
company created by the two first authors in 1970. The company participated
in take-over bids and became the contract-winning company for the
construction of public works for provincial governments in Argentina. The
authors allege that these authorities as well as the national government
have failed to comply with the contracts for the past 35 years and are
indebted to the company for 1.727.883.277.388.410.000.000 (!) US dollars.
The authors allege that they are the State's principal private creditors in
Argentina.
2.2 Public work for the Province of Neuquén, allegedly financed by the
National Fund for Housing: the contract for the execution of this public
work was signed in March 1976. The costs of construction allegedly rose
disproportionately, but the company finished the works in February 1977. On
9 February 1977, the authorities of the Province of Neuquen issued a
provisional certificate acknowledging the receipt of the construction. On 17
May 1982, they issued a definitive certificate of acknowledgement. In
November 1985, the company filed an administrative complaint with the
Governor of the Province of Neuquén. In April 1986, the company filed a suit
before the Arbitral Tribunal set out in Law 12.910. On 26 September 1987,
the Arbitral Tribunal (Tribunal Arbitral de Obras Públicas) decided that it
lacked jurisdiction to entertain the complaint. On 28 December 1990, the
company filed an independent claim in the National Supreme Court of Justice
(Corte Suprema de Justicia de la Nación), which in June 1992, decided that
it lacked jurisdiction and that the complainant company should have filed
its claim in the local courts established in the contract. In May 1993, the
company sued the State of Argentina and the Province of Neuquén in the
Superior Court of the Province of Neuquén. On 12 July 1994 the Superior
Court decided that it had no jurisdiction to hear the case. On 3 February
1995, the Superior Court admitted the appeal filed by the company against
the judgment of 12 July 1994. This appeal was dismissed by the Supreme Court
of Justice, which considered that the complainant had not properly addressed
the matter to the Court for Administrative Affairs of First Instance. On 4
July 1996, two years late, the company filed a complaint in the Court for
Administrative Affairs of First Instance. In December 1997, the latter
declared itself incompetent to handle the complaint and returned the case
file to the Supreme Court. The authors allege that the Supreme Court of
Justice "has done nothing" on their complaint from 1997 to the time of the
submission of their complaint to the Committee.
2.3 Bus station of Piedra de Aguila, Neuquén: a contract was signed on 13
February 1976 between the Province of Neuquén and Mariategui & Usandizaga
S.A.C.I.M.A.C, and funded by the National Fund for Transportation.
Construction ended in September 1977. The company considered that the costs
for carrying out the work had risen disproportionately and, on 7 October
1988, filed and administrative claim against the Province of Neuquén, which
was dismissed in 1989, for having been filed out of time. In June 1992, the
company filed a separate suit in the National Supreme Court of Justice,
against the National Government and that of the Province of Neuquén. By
judgment of 24 September 1998, the National Supreme Court of Justice
dismissed the suit against the National Government, finding that the latter
could not be sued, because the evidence before the court was inconclusive as
to whether the National Government had indeed participated in the allocation
of funds from the National Fund for Transportation to the Province of
Neuquén. The Court also decided that it lacked jurisdiction to entertain the
complaint against the Province, based on the fact that, according to
contractual terms, the ordinary courts of the Province were competent
tribunals to hear the case.
2.4 Extension of the telephonic centre of General Roca in the Province of
Río Negro for the Argentinean National Telephonic Enterprise (ENTEL): the
contract was signed on 12 September 1977 between ENTEL and Mariategui &
Usandizaga S.A.C.I.M.A.C, and the work was finalized in November 1980. Due
to an alleged failure from ENTEL to comply with the contract terms, the
company filed an administrative claim against ENTEL in 1987, which was
dismissed in May 1988. On 25 September1989, the company filed a suit in the
Court for Administrative Affaires of First Instance. While the proceedings
were still pending, ENTEL was privatized. On 26 March 1991, the company
filed a motion to link the buyers of ENTEL's assets to the proceedings. The
purchasing companies (Telefónica Argentina and France Telecom S.A.) filed
motions to disengage themselves from the proceedings. The motions were
finally decided in October 1995 and March 1996, respectively. Apparently,
the proceedings against the buyers are still pending.
2.5 Works for the urban pavement of Municipality of Mercedes: the contract
was concluded between the Municipality and the first and the second authors
in 1969. In 1970, the first author filed an administrative claim against the
Municipality in the Supreme Court of the Province of Buenos Aires (Suprema
Corte de Justicia de la Provincia de Buenos Aires). On 4 October 1977, the
Court ruled for the plaintiff, sentenced the defendants to pay the true
value of the works, and decided that the plaintiff should liquidate the
debt. On 20 December 1977, the Supreme Court of the Province of Buenos Aires
approved the liquidation of the debt made by the plaintiff and set in 160
millions of Argentinean pesos the amount that the defendant should pay. The
court also ordered the plaintiff to calculate the interests of the debt. On
28 February 1978, the court ordered the defendants to pay 346.511.355
Argentinean pesos. On 28 March 1978, however, the court on its own decided
to annul the previous liquidation and ordered a new one. On 18 April 1978,
however, the plaintiff and the defendant settled their dispute by signing an
extrajudicial agreement, according to which the defendant would pay
300.000.000 Argentinean pesos to the plaintiff, a payment that was effected
on 28 April 1978. On 4 June 1978, the Supreme Court of the Province of
Buenos Aires approved the agreement concluded by the parties. On 29 June
1995, the first author filed a suit in the National Supreme Court of Justice
against the National Government, the Government of the Province of Buenos
Aires and the Municipality of Mercedes, for recovery of the damages
allegedly inflicted on him by the judgment of the Supreme Court of the
Province of Buenos Aires, which had allegedly made several mistakes when
handing down its judgment of 4 October 1977 and thereafter in the process of
liquidation of the debt. On 15 April 1996, the plaintiff and his wife
transferred their rights in the lawsuit to Mariategui S.A.C.I.M.A.C. On 14
October 1999, the Supreme Court dismissed the claim, considering that it had
not been filed within the statutory time limits.
2.6 The authors add that a complaint similar to the one submitted to the
Committee was presented in March 1998 to the Inter-American Commission on
Human Rights. On 21 October 1999, the Commission informed the authors that
their case was inadmissible ratione personae, and that it could not review
judicial decisions in which the alleged victim was not an individual but a
company. The Commission added that domestic remedies were exhausted by the
company and not by the authors themselves. The authors asked for the
reconsideration of the decision taken by the Commission, but the latter
dismissed their request. Afterwards, according to the authors, they learned
that the former Executive Secretary and a former member of the Commission
had "obstructed" the examination of their case, and they filed a complaint
for corruption against them in the OAS General Assembly, which did not act
on the matter.
2.7 On 4 July 2003, the Secretariat of the Human Rights Committee sent a
letter to the authors, explaining to them that the Committee was unable to
examine their complaint, because the former could not in principle review
the facts and evidence evaluated by domestic courts and could only examine
complaints submitted by individuals.
2.8 By submission of 3 February 2004, the authors informed that on 13 July
2003 they had filed a complaint in the International Criminal Court against
Argentina for an alleged crime against humanity committed against them. The
complaint was also filed against other OAS member states for their alleged
conspiracy with Argentina. The authors have submitted similar complaints
with the World Bank, the International Monetary Fund, and the Inter-American
Development Bank.
2.9 By submission of 17 March 2004, the authors contend that Argentina
continues to act in bad faith towards them. They explain that the President
of the Republic had assured the IMF that the Argentinean Government would
begin negotiations with private creditors from 22 March 2004 to 16 April
2004, but that they hardly believed in that promise.
2.10 On 21 May 2004, the authors informed the Committee that they consider
the Secretariat's standard letter of 4 July 2003 to be null and void because
of formal and substantive errors. They add that the content of the letter
violates the UN Universal Declaration of Human Rights and the Covenant.
2.11 By submission of 1 November 2004, the authors inform that Argentinean
authorities had approved the Administrative Decree on the Restructuring of
National Debt of Private Creditors, and that they had appealed that
regulation for being unconstitutional and illegal. They add that they had
unsuccessfully attempted to have a meeting with the President of the
Republic, and that the Supreme Court of Justice had again ruled that it
lacks jurisdiction on their case.
2.12 By letters of 4 May, 27 May, and 4 November 2004, the Secretariat of
the Committee reiterated to the authors that the initial complaint of July
2002 and their other submissions could not be examined by the Committee. The
authors reply to these letters explaining that they consider them to be null
and void due to alleged formal and substantive shortcomings.
2.13 By submission of 14 January 2005, the authors noted that on 10 December
2004, the Argentinean Government adopted a Decree proposing its private
creditors an alternative to solve the problem of the internal debt. This
Decree was published on 17 January 2005 and granted private creditors 39
days to accept it or to refuse it. The authors contend that the Decree is
null and void from a constitutional point of view.
2.14 By submission of 31 January 2005, the authors sent a letter to the
Chairperson of the Committee insisting that their case be "promptly
examined". By letter of the same date addressed to the UN Secretary General,
the authors complain about "serious irregularities" in the handling of their
case by the Secretariat of the Committee.
THE COMPLAINT
3.1 The authors claim that the State party had violated their right to be
treated with equality and their right to property by not complying with its
contractual obligations. They also claim that there is a denial of justice
in their case because they have litigated for more than 30 years in domestic
courts without getting any relief. They claim that the violations of the
rights of the company constitute simultaneously a violation of their
individual rights. The acts and omissions of the State party are said to
amount to violations of articles 2, 14 and 26 of the Covenant.
3.2 The authors ask the Committee to intervene as a mediator between them
and the government of Argentina. To this effect, they have submitted draft
terms for a "transaction". This offer was opened to the Argentinean
government until 13 April 2005.
3.3 The authors ask the Committee to grant interim measures of protection
against Argentina, ordering the State Party to halt the process of
restructuring the internal indebtedness until the proposal "becomes legal".
They also ask the Committee to provide them "police personnel for the
prevention of crime", because justice has been denied to them for over 34
years.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
4.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its Rules of Procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
4.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2(a), of the Optional Protocol.
4.3 The Committee notes that the authors have submitted the communication
claiming to be victims of violations of their rights under articles 2, 14 an
26, because of the alleged failure of the State Party to redress the damages
caused to them as owners of the company Mariategui S.A.C.I.M.A.C, arising
from the alleged violation of four contracts for the construction of public
works in which the company acted either as the main creditor or as
cessionary of the creditor. However, the Committee considers that the
authors are essentially claiming rights that allegedly belong to a private
company with an entirely separate legal personality, and not to them as
individuals. It recalls its jurisprudence See communication No. 1002/2001,
Franz Wallmann et al. v Austria, Views adopted 1 April 2004, paragraph 8.13;
communication No. 737/1997, Lamagna v Australia, decision of 7 April 1999,
paragraph 6.2; and communication No. 502/1992, S.M v Barbados, decision of
31 March 1994, paragraph 6.2; communication No. 361/1989, A publication and
a private company v Trinidad and Tobago, decision of 14 July 1989, paragraph
3.2; communication Nº 360/1989, A newspaper publishing company v Trinidad
and Tobago, decision of 14 July 1989, paragraph 3.2. that in regard to a
claim such as that at issue in the present case, the authors have no
standing under article 1 of the Optional Protocol. It concludes that
communication is inadmissible ratione personae under that provision.
4.5 The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 1 of the Optional
Protocol;
(b) That this decision shall be transmitted to the State party and to the
authors.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report.
Pursuant to rule 90 of the Committee's rules of procedure, Committee member
Mr. Hipólito Solari-Yrigoyen did not participate in the adoption of the
present Views. |
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