163. This Court also notes that, in cases of petitioners and plaintiffs who had
authorized the transfer by signing an investment administration contract and had
given specific instructions for the transfers to be made, the said administrative
judicial bodies laid the burden of proving the absence of consent on the petitioners
plaintiffs.
not
not
and
and
164. Despite the foregoing, the representatives did not submit any arguments or
evidence that would allow the Court to analyze a possible violation of the American
Convention arising from this situation.
B.2.b) Alleged new criteria applied arbitrarily by the Advisory
Commission to the benefit of 22 cases
Arguments of the parties
165. The Inter-American Commission argued that the presumption of consent “was
applied [by the Advisory Commission] arbitrarily and subjectively, and this resulted in
the violation of the judicial guarantees of a group of depositors.” In this regard, it
indicated that the Advisory Commission gave preferential treatment to 22 persons who
were able to recover their funds, and whose petitions were accepted, even though they
also fulfilled some of the said disqualifying criteria (supra para. 150). In this regard, it
referred to six types of situations that arose in this regard.236 In particular, it indicated
that, to accept the 22 claims, the Central Bank created “a new criterion” eliminating the
disqualifying factors, which consisted in the depositor proving that he had tried not to
renew his certificate. The Inter-American Commission added that, in so doing, “the
Advisory Commission added eligibility requirements that were not made known to all the
depositors, but only to those whom it accepted, as well as requirements that were
outside the scope of the legislative analysis,” because “the law did not establish any
other requirement to the effect that the depositor had to prove that he had tried not to
renew a placement that had already been made or that the placement was renewed
despite the existence of specific instructions not to renew it.” In general, the claims that
were accepted were also initially rejected because they revealed a “disqualifying”
characteristic, but the Advisory Commission suggested that some depositors return with
a witness who could confirm that they had sought not to renew their placements. The
Inter-American Commission argued that the Advisory Commission “did not ask [the
alleged victims …] whether they had tried not to renew their placements in TCB
certificates of deposit, and even when they made this argument and presented evidence
of it, their claims were rejected because of the presence of one of the per se
disqualifying elements.” The Advisory Commission approved “claims from individual
depositors that were exactly the same as those of the alleged victims that were
rejected.”
166. Contrary to the representatives, the Inter-American Commission did not argue
that Article 24 of the American Convention had been violated (supra para. 3).237
236
The six situations described by the Inter-American Commission are as follows: (i) some depositors
were not disqualified even though they had signed to “General Conditions” contract, which was to cause for
disqualification; (ii) some depositors were disqualified because they had signed to “General Conditions”
contract, considered to cause for disqualification; (iii) some depositors were disqualified because they had
received bank statements; (iv) at least one depositor was disqualified because he had signed to specific
authorization to buy Trade & Commerce Bank deposit certificates, even though this was not one of the criteria
established by the Advisory Commission as to “disqualifier”; (v) at least one depositor was disqualified owing
to the presumption of consent for the transfer of funds, given the existence of bank statements, even though
the information used was insufficient to prove the existence of these accounts, and (vi) most of the 22
depositors accepted by the Advisory Commission had been disqualified at to previous stage owing to the
presence of manifestations that were considered consent; however, following repeated attempts, they were
accepted.
237
In its Report on Merits, the Inter-American Commission considered that it did “not have sufficient
information to conclude that there ha[d] been a discriminatory application of the domestic norm in each case.”
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