competence,ratione personae, to examine the petition as regards the obligations of the
Uruguayan State vis-à-vis Juan Gelman, Maria Macarena Gelman and Maria Claudia Gelman.
31. The Commission has competence, ratione materiae, because the petitioners alleged
violations of rights protected by the American Convention in Articles 1(1), 2, 4, 5, 7, 8, 11, 17,
18, 19 and 25 said Convention; Articles I, III, IV, V and XII of the Forced Disappearance
Convention and Articles 1, 6, 8, and 11 of Torture Convention. In addition, prior to the
ratification of these Conventions, during the period between August 24, 1976 until April 19,
1985, the petitioners allege that the State violated the following rights set forth in the
American Declaration: the right life, liberty and personal security (Article I), the right to a
family and to protection thereof (Article VI), the right to protection for mothers and children
(Article VII), the right to recognition of juridical personality and civil rights (Article XVII), the
right to a fair trial (Article XVIII), the right to protection from arbitrary arrest (Article XXV) and
the right to due process of law (Article XXVI). Since this case involves the forced
disappearance of Maria Claudia Gelman and it is not clear whether Ms. Gelman was killed prior
to April 19, 1985 (the date of Uruguay’s ratification of the American Convention) or thereafter,
both Articles I of the American Declaration and Articles 4, 5 and 7 of the American Convention
in conjunction with Article 1(1) are implicated.
32. The Commission has competence, ratione temporis, because the obligations of the State to
respect and ensure the rights protected in the American Convention, the Forced Disappearance
Convention and the Torture Convention were in force for the State at the time the events
alleged in the petition are said to have occurred. Uruguay has been a party to the American
Convention since April 19, 1985, to the Forced Disappearance Convention since April 2, 1996
and to the Torture Convention since November 10, 1992. In addition, the Commission
interprets the American Declaration to be legally binding on States Parties until they ratify or
accede to the American Convention.
33. It must be noted that the facts in this case are not yet completely known. Most notably,
the remains of Maria Claudia Gelman have not yet been located. Furthermore, it is not known,
for example, whether Uruguayan officials participated in the detention of Maria Claudia and her
husband in Argentina or whether Uruguayan officials brought her to Uruguay, whether they
collaborated with Argentine officials in the transfer, or whether Argentine officials brought her
to Uruguay and then turned her over to Uruguayan officials. The clarification of the facts is
generally part of the process of a criminal justice proceeding, the purpose of which is to clarify
the facts of the crime and to allocate responsibility therefore. Since the criminal proceedings
were truncated in Uruguay in 1995, the facts have never been satisfactorily determined and
this fact prevents the Commission from defining, at this point, at what moment alleged
Uruguayan responsibility commenced.
34. The Commission has competence, ratione loci, because the petition alleges violations of
rights that occurred in the territory of a State Party to the American Convention. The
petitioners allege that the Uruguayan State has incurred in international responsibility for the
forced disappearance of Maria Claudia Gelman, which began in the year 1976, the suppression
of the identity of Maria Macarena Gelman, followed by the absence of an effective judicial
response for the protection of the rights of Juan Gelman and his relatives by the Uruguayan
State. In addition, should the facts reveal that the Uruguayan authorities functioned in
conjunction with the Argentine authorities in Argentina, under the umbrella of the “Plan
Condor”, in the detention of Maria Claudia and her husband, and the transfer of Maria Claudia
from Argentina to Uruguay, then the Commission could find that the Uruguayan authorities are
also responsible for activities conducted outside of Uruguayan territory, in Argentina, and with
possible Argentine complicity.
B.
Other admissibility requirements
1.
Exhaustion of domestic remedies
35. The Uruguayan Amnesty Law (Ley de Caducidad de la Pretensión Punitiva del Estado, Ley
Nº 15.848) closed off any possibility that military or police officers who committed human
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