investigation of human rights violations, the Court has indicated that this entails the
State’s obligation to guarantee that the victims or their next of kin have “extensive
possibilities of being heard” “at all stages of the respective proceedings [so that] they
can state their claims and present probative elements, and that these are examined fully
and genuinely by the authorities before they make a ruling on the facts, responsibilities,
punishments and reparations.”215
121. In this regard, the European Court of Human Rights has indicated that the
requirements that a person “be heard fairly, publicly and within a reasonable time, by an
independent and impartial court” can be compared to the right to a fair “trial” or “judicial
proceedings.” In this regard, the European Court has developed the criterion that fair
proceedings presume that the organ responsible for administering justice conducts “a
proper examination of the submissions, arguments and evidence adduced by the parties,
without prejudice to its assessment of whether they are relevant to its decision.”216
122. The examination required in the instant case calls for the Court to clarify the
scope of the right to be heard established in Article 8(1) of the American Convention.
This right entails, on the one hand, a formal and procedural aspect that ensures access
to the competent body to determine the right that is claimed, respecting due procedural
guarantees (such as the presentation of arguments and the provision of evidence). On
the other hand, this right includes a material aspect of protection which means that the
State must guarantee that the decision produced by the proceedings satisfies the end
for which it was conceived. The latter does not mean that the right must always be
granted, but rather that the capacity of the body to produce the result for which it was
conceived be guaranteed.
123. Taking into account the alleged violations in the instant case, the Court will
examine first the elements relating to the material aspect of the right to be heard in the
procedure before the administrative body (the Central Bank), and will then consider the
alleged violations of due procedural guarantees in the said administrative procedure and
in the judicial proceedings before the Contentious-Administrative Tribunal.
124. The Court notes that the facts of the instant case refer to administrative and
judicial proceedings intended, respectively, to apply and review the application of article
31 of Law 17,613. This norm was intended to address the situation of clients of the
Banco de Montevideo who were not registered as creditors in the bank’s accounting
records, because they had placements in other financial institutions, by granting them
the possibility to claim their inclusion as creditors of the bank with the same rights as
those granted to depositors with a checking, savings or fixed term account.
125. This norm stipulated that the same rights that this law provided for the
depositors of the Banco de Montevideo and the Banco La Caja Obrera would be granted
to those “depositors” “whose deposits had been transferred to other institutions”
“without their consent” (supra para. 77). According to the decisions issued by the Board
of the Central Bank and the Contentious-Administrative Tribunal, the norm called for
three requirements to be fulfilled cumulatively (supra para. 93).
215
Case of Ximenes Lopes v. Brazil. Merits, reparations and costs. Judgment of July 4, 2006. Series C No.
149, para. 193, and Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs. Judgment of
May 11, 2007. Series C No. 163, paras. 193 and 195. Also, cf. Case of the Ituango Massacres v. Colombia,
supra note 24, para. 296, and Case of Baldeón García v. Peru. Merits, reparations and costs. Judgment of April
6, 2006. Series C No. 147, para. 146.
216
ECHR, Kraska v. Switzerland. Judgment of 19 April 1993, Series A No. 254-B. App. No. 13942/88,
para. 30; Van de Hurk v. the Netherlands. Judgment of 19 April 1994, Series A No. 288. App. No. 16034/90,
para. 59; Van Kück v. Germany. Judgment of 12 June 2003. App. No. 35968/97, para. 48, 2003-VII, and
Krasulya v. Russia. Judgment of 22 February 2007. App. No. 12365/03. para. 50.
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