REPORT No. 109/13
CASE 12.182
FRIENDLY SETTLEMENT
FLORENTINO ROJAS
ARGENTINA
November 5, 2013
I.
SUMMARY
1.
On June 5, 1997, the Inter-American Commission on Human Rights (hereinafter, “the
Inter-American Commission”, “the Commission” or “IACHR”) received a petition lodged by Florentino
Rojas, José Sergio del Franco and Pablo Ignacio Pita (herinafter, “the petitioners”) in which they invoke
the international responsibility of the Republic of Argentina (hereinafter “Argentina”, “the Argentinean
State” or “the State”) for the alleged violations of the rights to equal protection and judicial protection,
established, respectively in articles 24 and 25, of the American Convention on Human Rights
(hereinafter “the American Convention” or “the Convention”, against Mr. Florentino Rojas.
2.
The petitioners indicated that on July 7, 1973, Mr. Florentino Rojas suffered an accident
that resulted in a permanent disability of 85%, while he was returning home, after completing his
workday at the conscription. Because of this, Mr. Florentino Rojas requested a military pension in the
administrative instance, which was denied. Later, he initiated a judicial process that culminated in a
sentence in which the National Court of First Instance in Contentious Administrative Federal Matters No.
5, declared that the injuries suffered by Mr. Florentino Rojas were related to acts of service, thus
condemning the Argentinean Army to grant him a military pension. The petitioners indicated that the
National Court of Appeals in Contentious Administrative Matters, revoked, in second instance, the
resolution issued by the National Court of First Instance, indicating that the accident did not occurred
while he was on duty, therefore deeming not appropriate to grant him a pension. The petitioners also
noted that the Supreme Court of Justice of the Nation rejected an special appeal, on the basis of article
280 of the Civil Procedure Code, for purely formal reasons, without going into the merits of the case.
3.
The petitioners alleged that the national legislation, on pension issued, is discriminating
against conscripts, like Mr. Florentino Rojas, since, to access a military pension, they must prove not
only the disability, but that it happened while on duty; while soldiers that had been admitted voluntarily
only have to prove the disability. They also alleged excessive delay in the processing of the judicial and
administrative claims that were filed in the domestic jurisdiction.
4.
On November 23, 2009, the parties signed a friendly settlement agreement.
5.
Pursuant to Articles 49 of the Convention and 40(5) of the Commission’s Rules of
Procedure, this friendly settlement report includes a summary of the petitioners’ allegations and the
transcription of the friendly settlement reached on November 23, 2009 between the petitioners and
representatives of the Argentinean State. Having reviewed the conformity of the commitments adopted
by the parties as well as their compliance with the principles set forth in the Convention, the
Commission decides to notify the parties, make the report public, and include it in its Annual Report to
the General Assembly of the Organization of American States.
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II.
PROCESSING BY THE COMMISSION
6.
The petition was presented on June 5, 1997, before the national office of the OAS in
Buenos Aires, Argentina. The IACHR forwarded the pertinent parts of the petition to the Argentinean
State on Junes 17, 1999 and asked to present a response within a period of 3 months. The State
presented its observations through communications dated December 14, 1999; August 31, 2000; March
21 and September 21, 2001 and October 1, 2002. Later, the Commission received additional information
from the State on April 29 and November 4, 2009. On January 27, 2010, the Commission received a copy
of the friendly settlement agreement signed between the National Government and Mr. Florentino
Rojas on November 23, 2009. The IACHR received additional information on March 16, July 1 and
November 21, 2011; July 17 and October 19, 2012 and; January 4, February 22 and May 10, 2013. On
June 12, 2013, the State presented before the IACHR copy of the Decree No. 445/13, by which the
President of the Nation, decrees approved the Friendly Settlement Agreement signed between the
petitioner Florentino Rojas and the National Government.
7.
For their part, the petitioners sent their observations through communications received
on February 21, 2000; December 29, 2000; June 9, 2001; December 4, 2001 and April 29, 2009. Later,
the Commission received additional information on October 1st, 2nd and 8. 2009; January 4, February 17,
May 30 and August 10, 2011; August 8, 2012 and April 15, 2013.
8.
On August 4, 2009, during the 135th Ordinary Period of Sessions, the Commission
approved the Admissibility Report No. 64/09 in which decides to declare the case admissible in relation
to the violations of the rights recognized in articles 8(1) and 25, in relation to article 1(1) of the American
Convention. The petitioners requested to go to a friendly settlement on October 8, 2009 and sent
communications on October 1 and 2, 2009, on January 4, February 17, May 30 and August10, 2011,
August 8, 2012 to April 15, 2013, which were forwarded to the State. For its part, the State submitted
additional information on November 4, 2009 stating that the parties were negotiating the terms of an
amicable solution. The January 27, 2010, sending the friendly settlement agreement, and additional
information on March 16, July 1 and November 21, 2012, July 17 and October 19, 2012, and January 4,
February 22, May 10, June 12 and October 18 2013, all such communications were sent to the
petitioners.
III.
ALLEGED FACTS
9.
The petitioners indicated that on July 7, 1973, Mr. Florentino Rojas suffered a car
accident while he was returning home after completing his workday in the conscription. Due to this
situation, Mr. Florentino Rojas requested a military pension in the administrative instance, and an
administrative file was initiated under the name “Rojas Florentino c/ Estado Nacional (Ejército
Argentino) s/ pension military”. On June 28, 1985 he received a notification in which they denied the
pension on the grounds that his condition was not related to any act of service.
10.
The petitioners indicated that on August 19, 1985, Mr. Rojas filed a notice of appeal,
however, he could not supported it because the authorities systematically denied him the opportunity
to see the administrative proceedings, despite having submitted an order for immediate dispatch to see
them. In this situation, the petitioners filed a claim for constitutional protection (Amparo) against the
Medical Command of the Argentinean Army in order to be allowed to see the proceedings. On
December 16, 1986, the claim was declared admissible and Mr. Florentino Rojas had access to the
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proceedings. On May 28, 1987, the Argentinean Army ratified the administrative decision of not
granting him the pension.
11.
The petitioners presented a lawsuit (they do not indicate the date of the lawsuit) before
the National Court of First Instance in Federal Contentious Administrative Matters N° 5. On March 16,
1994, the court stated that the injuries suffered by Mr. Florentino Rojas were related to acts in service
because they were considered “in itinere”, and it ordered the Argentinean Army to grant him the
military pension. The Argentinean Army brought an appeal before the National Chamber of Appeals in
Contentious Administrative Matters and, on October 17, 1994, the judgment of first instance was
revoked because the court considered that the injuries suffered by Mr. Rojas were not related to acts of
service. The petitioners indicated that during the process, all the evidence submitted by Mr. Florentino
Rojas disappeared and that the resolution of the Chamber of Appeals was based on transcriptions of the
file. The petitioners also alleged that during the process, the judge did not conduct a complete and
effective analysis of the evidence and took into consideration facts that did not correspond to the reality
of the events.
12.
In the petition, the petitioners indicated that the right of equality before the law was
violated because, when it comes to military pensions, conscripts must prove that the event that caused
the disability occurred during an act of service, a condition that is not required to members of the army
that join the ranks voluntarily.
13.
Mr. Rojas indicated that the accident left him with a disability of 85% in the civil order
and useless to any service in the military. He stated that he suffers from paraparesis caused by spinal
injury in level D 12 and that, up to the date of the filing of his petition, 24 years had elapsed since the
accident without being able to make the Argentine State to assume responsibility.
14.
The petitioners indicated that they filed an extraordinary appeal before the Supreme
Court that was declared inadmissible on November 5, 1996, on the grounds of article 280 of the Code of
Civil and Commercial Procedure1. They alleged that 4 out 9 judges qualified the judgment as “arbitrary
because it omits without reason the assessment of the factual circumstances that could determine the
application to the case of the doctrine mentioned in paragraph 4°), which entails its disqualification as a
judicial act”.
15.
Similarly, the petitioners indicated that the time in which the administrative and judicial
proceeding were handled, was excessive. They emphasized that 21 years after the accident and the
request of the pension, the State, through the judicial authorities ruled against Mr. Florentino Rojas.
IV.
FRIENDLY SETTLEMENT
16.
On November 23, 2009, a friendly agreement was reached between the petitioner
Florentino Rojas, and the State represented by Dr. Luis Hipólito Alén (Deputy Secretary of Human Rights
Protection), Dr. Andrea Gladys Gualde (National Director of Legal Affairs in the field of Human Rights),
both from the Human Rights Secretariat of the Nation, Dr. Silvia Fernández de Gurmendi (General
1
Article 280.- CALL OF PROCEEDINGS. REJECTION OF EXTRAORDINARY APPEAL. MEMORANDUM IN ORDINARY APPEAL. When the Supreme
Court receives an extraordinary appeal, the reception of the claim will imply the call of proceedings. The Court, in its sound discretion, and
solely with the invocation of this rule, can reject the extraordinary appeal for lack of sufficient federal tort, or when the issues raised prove
insubstantial or lacking in significance”.
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Director of Human Rights), Dr. Alberto Javier Salgado (Director of Human Rights –International
Litigation-) and Dr. Jorge Nelson Cardozo (Cabinet Advisor), of the Ministry of Foreign Relations,
International Trade and Cult, in the following terms:
FRIENDLY SETTLEMENT AGREEMENT
The parties to petition No. 12.182, of the record of the Inter-American Commission on Human
Rights, the petitioner, Mr. Florentino Rojas, and the Government of Argentina, in its capacity as a
State party to the American Convention on Human Rights, hereinafter "the Convention ", acting
under the express mandate of Articles 99 paragraph 11 and 126 of the Constitution of Argentina,
and in order as provided by Article 28 of the Convention, represented by the Deputy Secretary of
Human Rights Protection, Dr . Luis Hipólito Alen, by the National Director of Legal Affairs in the
Field of Human Rights, Dr. Andrea Gladys Gualde, both from the Human Rights Secretariat of the
Nation, by the General Director of Human Rights, Dr. Silvia Fernández de Gurmendi, the General
Director of Human Rights (International Litigation), Dr. Alberto Javier Salgado and the Cabinet
Advisor, Dr. Jorge Nelson Cardozo, all from the Ministry of Foreign Affairs, International Trade
and Cult, have the honor to inform the Honorable Inter-American Commission on Human Rights
that they have reached a friendly settlement of the petition, the content of which is developed
below, requesting that due to the consensus reached herein, the Commission accept and adopt
the report provided for by Article 49 of the Convention.
I. Background of the case before the IACHR
1. On June 17, 1999, the Inter-American Commission forwarded to the State of Argentina the
complaint lodged by the petitioner, in which he alleges that local justice denied him the right to
any compensation for the consequences of the accident he suffered on the street while in the
compulsory military service , which the petitioner considered an accident "in itinere", alleging
violation of a fair trial, and the rights to equal and judicial protection enshrined in Articles 8, 24
and 25 respectively in connection with Article 1.1 of the American Convention on Human Rights.
2. After an exchange of observations between the parties to the proceedings before the
Honorable Inter-American Commission on Human Rights, the Argentine government offered the
petitioner to open a space for dialogue to explore the possibility of reaching a friendly
settlement, under the auspices of the Commission.
II. The friendly settlement procedure
1. In consideration of the particularities of the case, the physical vulnerability of Mr. Rojas-who
as a consequence of the events was crippled with a high percentage of disability, and the
excessive delay in the processing of administrative and judicial proceedings in domestic courts,
which delayed 23 years to be resolved, the Ministry of Foreign Affairs, International Trade and
Cult of Argentina proposed to open a space for dialogue to arrive to an amicable solution.
2. This process of dialogue initiated in the framework of the working meeting organized by the
Foreign Ministry on April 14, 2007, which was attended by officials from the areas of human
rights from the Ministry of Defense, the Ministry of Justice and Human Rights and the Ministry of
Foreign Affairs, International Trade and Cult and the petitioner.
3. In this context, the Ministry of Foreign Affairs, International Trade and Cult ruled that the
excessive time that took the internal process initiated by Mr. Rojas in the administrative and
judicial instance, was incompatible with international standards in reasonable time and,
therefore, constituted a violation of Articles 8.1 and 25 of the American Convention on Human
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Rights, in connection with Article 1.1 thereof, recommending to start of a consultation process
with the different areas of the state with jurisdiction over the matter.
4. In this framework, the Secretariat of Human Rights of the Ministry of Justice and Human Rights
of the Nation, in a note dated June 8, 2007, informed the Foreign Ministry of the opinion issued
by the Director of International Affairs in Human Rights Issues of the said Ministry, in which it
concluded that "it considers the solution wielded by DIGHU viable, while recommends that the
impulse to be provided to the measures proposed by that organism, to be essentially based on
humanitarian reasons and according to criteria established in the interamerican system ".
5. For its part, the Ministry of Defense of the Republic Argentina, in a note dated June 20, 2007,
through the National Directorate of Human Rights and International Humanitarian Law, said that,
without prejudice to the intervention of the said government agency "would be unnecessary in
light of the friendly settlement proposal (...) it does not find obstacles for further proceedings."
III. Manifestations
1. As a result of the above, and without prejudice to the position taken by the Argentine
government in the context of the proceedings before the Honorable Inter-American Commission
on Human Rights, the subsidiary nature of the international protection agencies and the
international procedural status of the petition, taking into account that the actions filed by the
petitioner before the competent state authorities in relation to the accident that he suffered ,
took 23 years and the state of health of Mr. Rojas and his inability to work resulting from the
allegations, the State Argentina understands that Mr. Florentino Rojas should be assisted for
humanitarian reasons under the regulated mechanism in the following section.
IV. Measures of Humanitarian Assistance
1. The Argentine government understands that Mr. Florentino Rojas should be assisted for
humanitarian reasons and to that end it regulates a mechanism for determining such exceptional
assistance.
2. The parties agree to establish an Arbitration Tribunal "ad-hoc", in order that it may determine
the amount of humanitarian assistance to be granted to the petitioner, as established in section
III of this document, and in accordance with international standards that are applicable.
3. The Tribunal will be composed of three independent experts of recognized competence in the
field of human rights and moral quality, one will be designated by the petitioner, the second will
be proposed by the national State and the third will be proposed by the two experts appointed
by the parties. The Tribunal shall be formed no later than within 30 days of the approval of this
agreement by a National Executive Decree.
4. The procedure to be followed shall be determined by agreement between the parties, the
content of which shall be recorded in minutes and a copy submitted to the Interamerican
Commission on Human Rights. To this end, the parties shall appoint a representative to
participate in the discussions on the procedure. The national State delegate to the Ministry of
Foreign Affairs, International Trade and Worship, and Ministry of Justice and Human Rights, the
appointment of an official in the area with responsibility for human rights in both Ministries.
5. The arbitral award shall be final and unappealable. It shall contain the amount and type of
monetary assistance granted, the beneficiaries thereof, and the determination of costs and fees
incurred in both the procedure carried out at the international level and in the arbitration, must
be subjected to the evaluation of the Human Rights Commission in the framework of the
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monitoring of compliance with the agreement, in order to verify that it conforms to the
applicable international standards. The amounts recognized in the award shall not be seized and
they will be exempt from payment of any tax or other existing or future rate.
6. The petitioner, resignation, definitively and irrevocably, to initiate any other pecuniary claim
against the Federal Government in connection with this case.
V. Petitionary
The Government of the Republic of Argentina and the Petitioner celebrate the signing of this
agreement, expressing their full accordance with its content and scope and mutually value the
good will that was evident in the negotiation process. In this regard, it is noted that this
agreement shall be perfected by approval by the National Executive Branch Decree, at which
time it will request the Human Rights Commission ratification of the friendly settlement
agreement reached by the adoption of the report under Article 49 of the American Convention
on Human Rights.
Buenos Aires, November 23, 2009.
V.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
17.
The IACHR reiterates that, under Articles 48(1)(f) and 49 of the Convention, this
procedure has the objective of “reaching a friendly settlement of the matter on the basis of respect for
the human rights recognized in this Convention.” The State’s consent to pursue this avenue is evidence
of its good faith to honor the Convention’s purposes and objectives, based on the principle of pacta sunt
servanda. According to that principle, States must comply in good faith with the obligations undertaken
in treaties. The IACHR also wishes to point out that, with the friendly settlement procedure provided for
in the Convention, individual cases can be settled in a non-contentious manner. In cases involving a
number of countries, the friendly settlement procedure has proven to be a useful vehicle that both
parties can utilize to arrive at a solution.
18. The Inter-American Commission has closely monitored the development of the friendly
settlement arrived at in the present case and greatly values the efforts that both parties made to reach
this settlement, which is compatible with the object and purpose of the Convention.
19.
The Commission notes that the April 19, 2013, Decree No. 445/13 by which it approved
the friendly settlement agreement concluded on November 23, 2009 between the petitioner Florentino
Rojas and the Government of Argentina, whose copy on file.
20. In accordance with the provisions of the friendly settlement agreement, once perfected
the agreement with the approval of the National Executive Branch Decree, the State asked the IACHR to
ratification by adopting the friendly settlement report. In this sense, the June 12, 2013, the Commission
received a communication from the Argentine State requesting the Commission to adopt the report
referred to in Article 49 of the American Convention, in order to initiate the process to give the Mr.
Florentino Rojas remedial measures laid down in paragraph IV of the friendly settlement agreement. For
its part, the petitioner requests that the Commission use its best efforts to monitor compliance with the
agreement.
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21. Regarding the integration of "Ad Hoc" Tribunal referred to Section IV of the Agreement on
Measures of humanitarian assistance, according to information submitted by the State on October 18,
2013, will be every avenue in the process of selecting members. In its submission, the State reported
that the May 27, 2013, the petitioner had filed a candidate to the Secretary of the National Human
Rights to the effect that is one of the members of the "Ad-Hoc" Tribunal but unfortunately the arbitrator
proposed don't have sufficient record to be considered as an independent expert, is not versed in
relation to the inter-American system of human rights protection, and has no publications in the field.
Pursuant to the foregoing, the Commission considers that this undertaking is in the process of
compliance, so that it will continue to monitor.
VI.
CONCLUSIONS
22. Based on the foregoing considerations and by virtue of the procedures provided in Articles
48.1.f and 49 of the American Convention, the Commission wishes to reiterate its deepest appreciation
for the efforts engaged by the parties, and its satisfaction with the achievement of a friendly settlement
agreement in this case, based on the object and purpose of the American Convention.
23.
By virtue of the considerations and conclusions set forth in this Report.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
DECIDES:
1.
To approve the terms of the friendly settlement agreement signed by the parties on
November 23, 2009.
2.
Continue monitoring of pending commitments by the State of Argentina. To this end, to
remind the parties of their obligation to report regularly to the Commission on its implementation.
3.
To make this report public and to include it in the Commission’s Annual Report to the
OAS General Assembly.
Done and signed in the city of Washington, D.C., on the 5th day of November 2013. (Signed): José
de Jesús Orozco Henríquez, President; Tracy Robinson, First Vice-President; Felipe González, Dinah Shelton
(en contra), Rodrigo Escobar Gil, y Rose-Marie Antoine, Members of the Commission.