28.
The State argues that it is not within the competence of the IACHR to take cognizance of
positions related to the constitutionality of the domestic law, and that it cannot sit as a court of appeals to
examine alleged errors of law or of fact that may have been made by the domestic courts acting within their
jurisdiction. It states, however, that the IACHR has the authority to examine whether the effects of a measure
violate the human rights recognized in the American Convention.
29.
It argues that the judgment that rejected the extraordinary remedy brought against the
resolution of the CNACAFis dated June 30, 1999, and that the petition was filed with the IACHR on June 27,
2000, accordingly the petition should be considered time-barred. In response to the petitioner’s allegation
about having filed a complaint appeal before the Court, the State responds that this does not appear in the
record, which means it must be set aside in the analysis.
30.
The State further alleges that the instant petition is a duplication of the petition in the case of
MarcelinoHanríquezet al., decided by the Commission in its Report No. 73/00, which discarded the positions
put forth by the same petitioners Carsen. It considers that there is identity with the instant petition in subject
matter and petitioners.
31.
It alleges that while that case included nuances related to the alleged arbitrary nature of Mr.
Hanríquez’s detention and the capacity of the judges who were involved in the events in respect of
independence, impartiality, and judge acting properly within his jurisdiction, its object revolved around the
supposed incompatibility of Law No. 24,043 with the right to equality enshrined in the National Constitution
and the American Convention.
32.
The alleges that the IACHR decided once and for all the dispute raised by the petitioners,
accordingly it should not be repeated, as per the grounds of inadmissibility set forth at Article 47(d) of the
American Convention and Article 33(b) of the IACHR’s Rules of Procedure.
33.
It argues that just as in the case cited, the petitioners do not deny that the situation alleged by
Mr. Almeida does not fit within the provisions of Law No. 24,043, but that they call into question that the benefit
provided for by the provision for the days of informal “release under surveillance” was not considered to reach
him, with which, and in substance, this petition is a nuanced duplication of the line of argument already rejected
by the IACHR.
34.
It argues that one cannot infer a violation of the right to equality before the law, particularly
if one considers that Mr. Almeida was effectively compensated for the days that could be accredited as
compatible with the criteria set forth by the provision. In this respect, it alleges that the criteria of Law No.
24,043 identify beneficiaries of a specific reparation regime that was of general application to all cases in which
there were similar detentions. It further argues that a regime of administrative reparations, not compulsory
but voluntary, does not entail a violation of the right to equality before the law. It notes that this mechanism
evaluates whether the situation of the individual fits within the terms of the provision and whether the
reparation set forth therein was enforceable, generally, by any person upon a showing that he or she has
suffered those circumstances.
35.
It argues that Article 24 of the American Convention entails the obligation to ensure equal
treatment under the law to those who are in reasonably like circumstances, accordingly that guarantee does
not keep the legislator from considering differently situations he or she considers to be different, so long as
such distinctions are not formulated using arbitrary criteria.
36.
The State further argues that it has not been proven, before the competent authorities, that
Mr. Almeida had in effect suffered such “release under surveillance,” claiming that his mere witness statement,
taken in another case, was suitable and sufficient to validate payment of the compensation sought.
37.
Mr. Almeida argues that with the return to the rule of law in 1983, he could have attempted to
bring an action for damages in pursuit of compensation, an action that was not exhausted, which is another
reason the petition is inadmissible.