objection.15
20. The pleading of the representatives, whereby the state called into question the competence
of this Court, was to ask the Court to assess whether the laws adopted subsequent to the time of
the fact and not applied in the proceeding brought against Mr. Gorigoitía were compatible with the
Convention. In this regard, the Court notes that the judgment whereby Mr. Gorigoitía was
sentenced was adopted on September 12, 1997, by the First Criminal Chamber of Mendoza
(hereinafter “the First Chamber”) (infra para. 30), and that the cassation appeal filed by his
defense was resolved on December 19, 1997 (infra para. 35). Likewise, that the criminal
procedure legislation in force at the time of the facts was the Code of Criminal Procedure of the
Province of Mendoza, Law 1908 of 1950, and the National Criminal Procedure Code, Law 23,984
of 1991. The Court notes that cassation appeals in the province of Mendoza are currently governed
by the Code of Criminal Procedure of the Province of Mendoza, Law 6730 of 1999, amended by
Law 9040 of 2018, and at the national level, they are governed by the Criminal Procedure Code
of the Argentine Nation, Law 27,063 of 2014.
21. In relation to the foregoing, the Court recalls that the contentious jurisdiction of the Court is
not intended to review national legislation in the abstract, but is exercised to resolve specific cases
in which it is alleged that an act attributable to the state is contrary to Convention.16 However,
the Court notes that one of the aspects of analysis in this case consists of determining whether
regulations governing the cassation appeal in the Province of Mendoza at the time of the facts—
which was applied to Mr. Gorigoitía—and subsequent actions aimed at ensuring a comprehensive
review of cassation appeals are compatible with the American Convention. Analysis of this issue
corresponds to the merits of the matter, specifically the duty of the state to adopt domestic legal
effects in terms of Article 2 of the Convention. Therefore, the Court dismisses the state's
preliminary objection.
V
PRELIMINARY CONSIDERATIONS
22.
The representatives of Mr. Gorigoitía asked the Court for measures of reparation for his
relatives. However, in its Report on the Merits, the Inter-American Commission did not indicate
which of Mr. Gorigoitía’s relatives were to be included as alleged victims. The Court will therefore
classify the representatives’ request as a preliminary consideration.
A. Determination of the alleged victims
A.1 Arguments of the parties and observations of the Commission
23. The Commission indicated in Report on the Merits 98/17 that the alleged victim in this case
is Oscar Raúl Gorigoitía. The representatives stated in their pleadings and motions brief that the
family of Mr. Gorigoitía—comprising his wife, Berta Montenegro, and his three children—were
impacted by the arbitrary process in the form of “public shame over a crime committed by a
member of the Mendoza Police” due to "disappointment with the criminal process, the closure of
the procedural channels, the end of his status as a police officer, the economic difficulties" and
"facing health problems". In this sense, they asked that they be granted "the retirement benefit
corresponding to Oscar Gorigoitía, and his social security benefits for his wife and son”; a "training
scholarship for Nicolás Gorigoitía”; and "free family therapy provided to Oscar Gorigoitía and his
Cf. Case of Castañeda Gutman v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
August 6, 2008. Series C No. 184, para. 39 and Case of Herzog et al. v. Brazil. Preliminary Objections, Merits, Reparations,
and Costs. Judgment of March 15, 2018. Series C No. 353, para. 80.
16
Cf. Case of Genie Lacayo v. Nicaragua. Preliminary Objections. Judgment of January 27, 1995. Series C No. 21,
para. 50, and Case of Terrones Silva et al. v. Peru. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
September 26, 2018. Series C No. 360, para. 219.
15
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