220. Therefore, the Court finds that, in these 11 cases (supra para. 218), the State did
not guarantee the petitioners a judicial remedy that protected them effectively against
the violation of the material sphere of their right to be heard before the administrative
body for the determination of the rights granted by article 31 of Law 17,613.
Consequently, the Court declares that Uruguay violated the right to judicial protection
embodied in Article 25(1) of the American Convention, in relation to Article 1(1) thereof,
to the detriment of Daniel Dendrinos Saquieres, Fabiana Lijtenstein, Jean Leroy, Martín
Guerra, María Ivelice Gigli Rodríguez, Leandro Rama Sienra, Clara Volyvovic, Pablo Raúl
Roure Casas, Marta Rodríguez Lois, Ángel Notaro, Alba Bonifacino and Thomas Máximo
Neuschul.
C.2)
Other alleged judicial remedies available
Arguments of the parties
221. When contesting the alleged violation of judicial protection, the State indicated
that, in addition to the appeal for annulment before the Contentious-Administrative
Tribunal, other effective judicial remedies were available to the alleged victims. Uruguay
indicated that “article 31 does not exhaust the possibility of the TCB Cayman Islands
investors being included as shareholders of the Banco de Montevideo – Bank Assets
Recovery Fund.” It added that “many of them did not use them or, having used them,
their cases were rejected, after proceedings endowed with all the judicial guarantees for
defense and the production of evidence.” Uruguay indicated that several of the said
actions before the courts were successful, enabling some alleged victims to be
considered as shareholders of the respective Recovery Fund. Also, in this regard, it
emphasized that “a significant percentage of the claimants presented their claims as of
2004 and, fundamentally, during 2005 and 2006, so that some proceedings are still
underway.” The State presented figures and documentation with regard to the said
proceedings and the judgments handed down. Lastly, it indicated that an application for
amparo was also available, and was the most simple and prompt remedy under
Uruguayan law for an act “of manifest illegality,” and that this remedy was not used.
222. The representatives indicated that “some depositors” filed actions under “other
domestic judicial remedies in the civil, bankruptcy and criminal sphere,” but “most of
these proceedings are still ongoing and subject to possible cassation.” In this regard,
they indicated that “[a] remedy that takes from 7 to 10 years to decide is not effective.”
Moreover, they stated that most of the alleged victims did not have “the capacity, the
strength of character, the health and the money to continue and obtain proper
counseling on the steps to take in order to evaluate properly to which jurisdiction they
should resort.” They added that “if they really had all the remedies mentioned by the
State within their reach, and if these remedies had really been effective, the legislator
would not have taken the trouble to adopt article 31 and order the creation of an
Advisory Commission to decide their situation in 60 days.”
223. For its part, the Inter-American Commission indicated that, as regards the
remedies identified by the State in its answering brief, one of the minimum guarantees
necessary under the administrative procedure should be the clarity of the path to follow
by the petitioner to reclaim his rights and that, in the instant case, “the State revealed a
lack of clarity in its defense before the inter-American system.” In its final written
arguments, the Commission indicated that “even today it is not clear which remedy
would be effective, or whether such a remedy exists […].”
Considerations of the Court
224. The Court found it proved that at least 136 alleged victims filed actions in the
ordinary jurisdiction against the Banco de Montevideo based on, inter alia, breach of
84