Considerations of the Court
169. The Court reiterates that it is not incumbent on it to rule on the merit of the
alleged victims’ claims under article 31 of Law 17,613 (supra para. 115). In order to
analyze the alleged violations arising from the arbitrary application of an alleged “new”
criterion by the Advisory Commission, the Court must first rule on the factual elements
on which these allegations are based.
170. After analyzing the evidence provided in relation to the procedures before the
Central Bank, the Court considers that, contrary to the allegations of the Inter-American
Commission and the representatives, in the 22 cases of claims accepted, no new
criterion was used and no requirement was established that differed from the provisions
of article 31 of Law 17,613. In these 22 cases, the petitioners were able to prove the
requirement of absence of consent. The Court finds that the fact that they had tried not
to renew their certificate of deposit is part of the requirement of absence of consent,
because there must be consent for both the acquisition of certificates of deposit or
shares in them, and their renewal, since the latter, in reality, constitutes a new
acquisition or, in the terms of article 31, they each constitute a different transfer. The
Court has verified (supra para. 96) that, in these 22 cases, the Board of the Central
Bank considered that the petitioners had proved the absence of consent in relation to
three different situations: in one case, the petitioners proved that they had not given
their consent to the acquisition of the Trade & Commerce Bank certificate of deposit
because the Banco de Montevideo had acquired it “contrary to the specific instruction
received by an account manager” to set up a fixed-term deposit; in 19 cases, the
petitioners proved that, prior to the maturity date of the certificate, they had expressed
their intention not to renew their share in the certificate of deposit, and the renewal was
made against their will, and in two cases, the petitioners were able to prove that their
placements were maintained, even though, before maturity, they had requested the
withdrawal or early buyback of their funds, and they had also proved, in one specific
case, that their initial consent had been given on condition that they could request its
buyback before maturity.
171. The Court also finds that there is no evidence to prove the Inter-American
Commission’s assertion that “the Advisory Commission suggested that some depositors
should return with a witness who could confirm the fact that they had tried not to renew
their placements.” Moreover, from the analysis of the body of evidence, the Court has
verified that it contains no element to support the Inter-American Commission’s
statement that, “[i]n general, the claims that had been accepted had also initially been
rejected due to a ‘disqualifying’ characteristic.” Of the 22 cases admitted by the Board of
the Central Bank, 17 of them were accepted by the said Board’s decision resolving the
initial claim (supra para. 85),238 four of them were accepted in the decision of the Board
238
Cf. the following cases: (1) Emilio Villamil Ramos and Elsa Marialli García (File No. 2003/0532) (file of
attachments to the application, volume XV, attachment 12 (I), folios 11590 to 11593); (2) Carmen García
Pardo (File No. 2003/0908) (file of attachments to the application, volume VII, attachment 12 (D), folios 6445
to 6451); (3) María del Carmen Bacigalupe and Julio Alberto Soler (File No. 2003/0221) (file of attachments to
the application, volume III, attachment 12 (B), folios 3375 to 3436); (4) María Julia Boeri Bottero and María
del Rosario Delmonte Boeri (File No. 2003/0708) (file of attachments to the application, Volumes V and XIII,
Attachments 12 (C) and 12 (G), folios 4982 to 5070 and folios 9561 to 9640); (5) Gabriel Deus Rodríguez (File
No. 2003/1045) (file of attachments to the application, volume VII, attachment 12 (D), folios 6215 and 6216);
(6) Lucía Giambruno (File No. 2003/0327) (file of attachments to the State’s final written arguments, volume
I, attachment 3, folios 30126 and 30127); (7) José Luis Martín Hernández (File No. 2003/0602) (file of
attachments to the application, volume I, attachment 12, folios 2606 to 2619); (8) Rafael Outeiro Silvera and
Jorge Peláez Pla (File No. 2003/1339) (file of attachments to the application, volume VIII, attachment 12,
folios 6726 to 6729); (9) Álvaro Gerardo Pérez Asteggiante (File No. 2003/0438) (file of attachments to the
application, volume XV, attachment 12 (I), folios 10970 to 11035); (10) Erasmo Salvador Petingi Nocella (File
No. 2003/0610) (file of attachments to the application, volume II, attachment 12, folios 2637 to 2695); (11)
Lucía Piñeyrúa Zeni (File No. 2003/0595) (file of attachments to the application, volume IX, attachment 12
(E), folios 7402 to 7405); (12) Lylianne Edith Urdaneta Magri (File No. 2003/0956) (file of attachments to the
application, volume X, attachment 12 (E), folios 8441 to 8444); (13) Néstor Alberto Rosales and Viviana
69