Bs. As., 10/1/91
VISTO AND CONSIDERING:
That at the beginning of the previous administration a large number of persons who had been deprived of their liberty by the provision of the NATIONAL EXECUTIVE PODER made claims for compensation for damages to the Federal Justice. In all cases, I deal with lawsuits against the NATIONAL STATE because of its extracontractual responsibility.
Without prejudice to the existence of cases in which the JUDICIAL POWER considered all the legal ends to be accredited and, consequently, rendered a ruling in favour of the actors, the existence of another number of cases in which the prescription institute prevented the satisfaction of the alleged claims.
In fact, in the cases mentioned lastly, the judges checked the deprivation of liberty, established that the conditions under which they were developed were contrary to law but also determined that the claims were late in the light of article 4037 of the Civil Code which states that the action prescribes the DOS (2) years.
That some of the claims invoked article 3980 of the Code on the understanding that even the advent of democracy there were severe limitations to initiate any judicial remedy against the Argentine State. The Supreme Court of Justice of the Nation did not give rise to the demands by noting 250as it did in judgments 250:676, 251:270, 269:51, etc.. that the course of time cannot be inoperable for the purposes of legal guardianship of rights, without a specific law that establishes it. In this order of ideas, it established that the computation of the two years of limitation provided for in article 4237 of the Civil Code must be carried out from the moment the actors regain freedom.
That a small number of these actors filed their claims with the INTER-American COMMISSION on Human Rights, pursuant to article 44 of the American Convention on Human Rights, adopted by law No. 23.054 and entered into force for the country on 5 September 1984.
That the GOVERNMENT ARGENTINO expressed before that international forum that, despite the fact that the rules applicable to the cases raised therein led to the rejection of the claims of the petitioners, by the rule of the prescription institute, recognized in article 46 (1) (b) of the American Convention, the NACIONAL EXECUTIVE PODER had adopted the political decision to propel, exhausted the legal path of the subjective rights field, the special sanction of
That the beneficiaries of this rule are all persons who had been placed at the disposal of the NATIONAL EXECUTIVE POWER by act emanating from it, by 10 December 1983 and who, having initiated proceedings for compensation for damages for that reason before 10 December 1985, would not have been satisfied that the statute of limitations had been established by a final judgement.
As can be seen, the scope of personal validity of the present includes a detainee at the disposal of the NATIONAL EXECUTIVE PODER until the restoration of the rule of law. It is also required that judicial action has been initiated during the first two years of the previous constitutional government, which entails a period of time equal to that provided for in article 4037 of the Civil Code, which has passed in an area of full force of democratic institutions. Obviously it is necessary that the action has been declared prescripted by a firm sentence since if not the claims would have been received judicially.
It is also expected that the benefits of the person who, by meeting the other established requirements, will be subject to judicial proceedings at the time of entry into force of the present. To this end, the option is provided between various alternatives, from the withdrawal of the action and the right to compensation to the conclusion of the judgement trial that rejects the requirement for a statute of limitations, for which the required requirements are detailed.
That the expected benefit is equivalent to the thirty-fifth of the monthly remuneration allocated to the highest level of the scale for the civilian staff of the national civil service, approved by decree 1428 of 22 February 1973 or replaced it, for each day the measure lasted for each beneficiary.
It explicitly provides for cases in which the victim has died or suffered serious injuries within the meaning of article 91 of the Criminal Code during the period of the measure in question. In both cases, the benefit will include not only the time that the measure lasted but also an increase in the single fact of death or the most serious injury, which has been estimated to be equal in merit to the particular circumstances of the cases in question.
That the perception of profit puede which can also be requested by the beneficiaries of the deceased victims . imports the waiver of any right of compensation for damages on the grounds of deprivation of liberty, arrest, disposition of the NATIONAL EXECUTIVE PODER, death or injury and shall be excluding any other benefit or compensation for the same concept.
It should be noted that the objective of the present is not to establish compensation, as this would involve abolishing the judicial function. It is therefore to give a solution of equity to situations in which strict and objective application of legal norms leads to unequitable results.
That in this context, the Government endorses the distinction made by the Inter-American Court of Human Rights in its judgments of July 21, 1989, setting compensatory compensation in the cases "VELAZQUEZ RODRIGUEZ" and "GODINEZ CRUZ", without prejudice to recalling that the facts that motivate the deprivation of liberty here are not the same as that give rise to such judgments.
That the NATIONAL EXECUTIVE POWER proposed the sanction of a law that would solve the situations described by the Message No. 1484 of 3 August 1990.
That this project is considered by the Honorable Congress of the Nation.
That the recess of that Body allows to assume that the project cannot be treated by both Chambers prior to 8 February 1991, the date on which the Inter-American Commission on HUMAN has set a hearing to reach a conciliatory solution, as a step before its final pronouncement.
That at the hearing held for the same purpose during the month of May 1990, the NATIONAL EXECUTIVE POWER informed the Commission of its intention to promote a rule that would give an equitable solution to the problems raised, a decision that was set out in Decree No. 798/90 and in the aforementioned Message No. 1484/90.
That in the face of that demonstration by the Argentine Government, the Commission postponed the dictation of its resolution, a situation which calls for the urgent adoption of a solution to the subject, since the Argentine Republic must honour the commitment made to the signing of the American Convention on Human Rights, and contribute with equity to alleviate unfair suffering.
If the present measure is not adopted, the country could be sanctioned internationally, with the significant consequences of this, which is why the state of necessity that authorizes the Executive Power to dictate rules of legislative substance is here fully accredited.
That the exercise of legislative functions by the executive branch, when the need is made present and the urgency justifies it, is supported by the best constitutional doctrine. Thus Joaquín V. González has said in his "Manual de la Constitución Argentina" that "can the EJECUTIVE PODER, in dictating general regulations or resolutions, invade the legislative sphere, or in exceptional or urgent cases, believe necessary to anticipate the sanction of a law" (in accordance with the same sense Bielsa Rafael-Administrative Law, T°1, page 309). The case law of the Supreme Court of Justice of the Nation has also given it favorable acceptance (falls 11:405; 23:257).
THE PRESIDENT OF THE ARGENTINA NATION
RIGHT:Article 1 Artículo Persons who have been placed at the disposal of the NATIONAL EXECUTIVE POWER for an act emanating from the State of siege may benefit from the benefits of this decree, provided that they meet the requirements required in the following articles. Art. 2o o Persons mentioned in the previous article shall meet the following requirements:
(a) have been made available to the NATIONAL EXECUTIVE POWER by 10 December 1983.
(b) To have tried for damages, prior to 10 December 1985.
(c) that the action had been declared prescripted by a final judgement.Art. 3o o The benefits of this decree may also be accepted by persons whose claims are pending at the time of their entry into force, provided that they meet the requirements of articles 1 and 2 (a) and (b) and those required in the following article. Art. 4o Persons referred to in the previous article may choose:
(a) Continue the proceedings of their trials until final judgement is obtained. If the application for a statute of limitations is rejected, the benefits of this decree may be accepted, making the corresponding request to the Ministry of the Interior;
(b) Desist from the action and the right to benefit from this decree, as indicated in the last part of the preceding paragraph. This option may be exercised only when the litis is blocked in the trial and has mediated a response to the claim, or when the time has been declared to do so by firm self. In the circumstances of this subparagraph, it shall also be credited that the action has not expired, and if the relevant incident is in place, its final resolution shall be awaited. Dismissing action and law in cases covered by this rule, the costs shall be imposed in the order caused. Before the proceedings and the law are dismissed, the court shall be heard by the counterpart, by means of an order which shall be notified personally or by a certificate.
The withdrawal of the action and the law provided for in subparagraph (b) must be made effective before the completion of the OCHENTA SCIENTY (180) days of the date of entry into force of this decree, and provided that the necessary precautions and requirements are met at that time. With that deadline, the interested parties may exercise only the alternative provided for in subparagraph (a) of this article.Art. 5o o The request for the benefit shall be made to the MINISTERIO DEL INTERIOR, who shall verify in a very short way the performance of the precautions required by the previous articles, and the period that lasted the validity of the measure referred to in article 2 (a).
The resolution that denies the benefit in a total or partial way will be appealed within the TEN (10) days of notification to the National Appeals Chamber in the Federal Administrative Disputes of the Federal Capital. The appeal will be presented and the MINISTERY OF INTERIOR will raise it to the House with its opinion within the fifth day. The Chamber shall decide without further processing within the time limit of VEINTE (20) days of receipt of the proceedings.Art. 6o o The benefit established by this decree shall be equal to the thirty-fourth of the monthly remuneration allocated to the highest level of the scale for the civilian staff of the National Civil Service (adopted by decree 1428 of 22 February 1973, or replacement), for each day that the measure referred to in article 2 (a) lasted for each beneficiary. To this end, the total number of items that make up the salary of the agent subject to retiring contributions shall be considered monthly remuneration, excluding the additional ones (antiquity, title, etc.) and shall be taken for the month in which the benefit is awarded.
For the computation of the period referred to in the preceding paragraph, the act of the executive branch which decreed the measure, or the actual arrest not provided by a court order, if it were previously, and the act that left it definitively without effect, is of a particular character or as a consequence of the cessation of the state of siege.
House arrests or supervised freedoms shall not be regarded as an end to the measure.
Where the persons referred to have died during the period of the measure referred to in article 2 (a), the benefit shall be set in the manner indicated above, computing the period until the time of death. Without prejudice to this, in these cases the benefit will be increased, for the sole fact of death, in an amount equivalent to that provided for in this law for CINCO (5) years of validity of the measure referred to in Article 2 (a).
The benefit of persons who had suffered very serious injuries in the same circumstances, according to the classification of the Criminal Code, will be increased, by that fact, in an amount equal to that provided for in the preceding paragraph, reduced in a TREINTA BY CIENTO (30 %).Art. 7o o The rights granted by this decree may be exercised by the persons referred to in article 1 or, in the event of death, by their beneficiaries. Art. 8o o The request provided for in Article 5 of the present decree shall be made, under the notice of expiry, within the OCHENTA SCIENT (180) days of the date of its entry into force. In the case of article 4 or the application shall be made within the SESENTA (60) days of the final finding of the judgment that rejected the application for a statute of limitations, or of the car that had forfeited the action and the right, according to the cases. Art. 9o o In all cases, the payment must be made effective within the SESENTA (60) days of the granting of the benefit. If the time limit had not been completed, the beneficiary may demand it judicially, without the need for an intimation, procedure or pre-claim, applying the rules governing the execution of the sentence.
The payment shall be materialized, and all its effects shall arise, when the MINISTERY OF INTERIOR deposits it with the order of the judge of the case. It shall be understood by a judge of the case, to whom the trial referred to in article 2 (b).Art. 10. If the benefit is not deposited within the period specified in the previous article, its amount will be updated from the day of its grant to that of the deposit, according to the variation suffered during that period by the consumer price index published by the INDEC, with more interest of the SEIS BY SCIENTY (6 %) per year. For the purposes of the calculation, the rate for the month prior to the granting of profit and the materialization of the deposit shall be taken respectively. Art. 11. The payment of the benefit imports the waiver of any right for compensation for damages due to deprivation of liberty, arrest made available to the Executive Branch, death or injury, and shall be exclusive of any other benefit or compensation for the same concept. Art. 12. Expenditures for the performance of the present shall be covered by general income. Art. 13. Note the HONORABLE CONGRESS OF NATION. Art. 14. Contact, post, give to the National Directorate of the Official Register and archvese. . MENEM. . Julio I. Mera Figueroa. . Antonio E. González.