131. For their part, the representatives indicated that “the Advisory Commission, in a
discretionary manner, failed to take into account that the consent of most of the
depositors was invalid when it was given.” They added that “[t]he Advisory Commission,
by admitting that it was not empowered to consider whether the consent was invalid,
[…] automatically left all the depositors without protection [contrary to] the spirit of
article 31 of Law 17,613.” In addition, they indicated that the Advisory Commission’s
actions violated the guarantees of due process because “[t]he depositors ha[d] the right
to have [their] problem dealt with integrally and decided within the framework of an
impartial Advisory Commission that did not place a limit on its own powers.”
132. Uruguay indicated that the concept of the common good had inspired Law No.
17,613 “and determined the State’s conduct when creating additional mechanisms to
those that already existed,” by adding to the existing juridical regime, “an administrative
procedure that would provide an additional guarantee to the said petitioners; namely, an
administrative body competent to analyze each case by receiving the pertinent evidence
and, without the need to resort to the courts, deciding those cases in which it was
proved that the legal requirements had been fulfilled.” The State added that “[i]f the
interested party did not find the [Advisory] Commission’s decision satisfactory, he
continued to have all the guarantees of an independent jurisdiction.” Regarding the
reasons why the administrative body had not ruled on the alleged defects of consent and
the obligation to inform, Uruguay affirmed that it was not correct to argue that the
Advisory Commission had limited its own powers, because “as any public body, its
actions were governed by the principle of specialization, and this prevented it from
exceeding the mandate established by the legislator”; however, any claim based on
another reason could be formulated by the alleged victims through the courts.
Considerations of the Court
133. In December 2002, the State promulgated Law 17,613, seeking to respond to
different situations that had arisen as a result of the banking crisis that had occurred in
Uruguay that year and the imminent liquidation of several private financial
intermediation institutions, including the Banco de Montevideo and the Banco La Caja
Obrera. Under article 31 of this law, the State created a special administrative procedure
to determine the rights of “depositors” of these Banks whose savings “had been
transferred to other institutions” “without their consent.” This procedure would function
for a certain time exclusively to decide the rights of those in this situation. The Court has
already referred to the two rights that would be determined using this procedure (supra
para. 126). Consequently, the importance that this special administrative remedy would
have in determining the rights of the alleged victims in this case is evident, as well as
the significance that the State guarantee that the procedure would be able to satisfy the
purpose and the result for which it was conceived.
134. In this regard, the Court has verified that the requirement established in article
31 of Law 17,613, compliance with which was determinant for the petitions to be
accepted by the Central Bank, was that the transfers had been carried out “without their
consent.” The Court has verified the arguments of the Inter-American Commission and
the representatives that the said administrative body, when examining this requirement,
decided to examine only the elements from which consent could be inferred, but
expressly inhibited itself from examining the arguments and evidence that could prove
that the consent that had been verified was defective. In this regard, in some of the
decisions submitted to the Court, it is clear that the Board of the Central Bank of
Uruguay expressly established that “annulment of the acceptance of the investment and
of any contractual responsibility for the unsuccessful operations carried out involving
error, fraud or serious negligence, necessarily constitute[d] jurisdictional decisions that
exceed[ed] the sphere of the powers granted to the Central Bank of Uruguay under
article 31 of Law 17,613” (supra para. 95). In this regard, the testimony of Mr. Durán
Martínez, member of the Advisory Commission, reveals that, in exercising its functions
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