30
61.
It is important to emphasize that:
[t]he general duty of Article 2 of the American Convention implies the adoption of
measures in two ways. On the one hand, derogation of rules and practices of any kind
that imply the violation of guarantees in the Convention. On the other hand, the
issuance of rules and the development of practices leading to an effective enforcement
of said guarantees.106
62.
The foregoing notwithstanding, the Court also observes that: Argentina has
domestic laws that require payment of exorbitant amounts in the form of filing fees
and fees for attorneys and experts, fees that far exceed the amount that would
reasonably be needed to cover the court costs and expenses of the administration of
justice and equitable remuneration for qualified professional services. But Argentina
also has laws on the books that authorize judges to reduce the figure for filing fees
and professional fees to amounts that make them reasonable and fair. The InterAmerican Court knows for a fact that Argentina’s Supreme Court has invoked the
possibility of applying the provisions of international treaties in domestic court cases,
which has meant that in a number of proceedings, the judges have applied the
provisions of the American Convention directly, modifying, wherever necessary, the
scope of the domestic laws.107 This being the case, this Court finds no reason to
conclude that the State has failed to comply with Article 2 of the Convention
because. taken as a whole, its legal system does not necessarily obstruct the right of
access to the courts. All the same, the State should expunge from its legal system
those provisions that could in any way serve as the basis for levying filing fees and
figuring professional fees that, being disproportionate and excessive, obstruct full
access to the courts. At the same time, it should adopt a series of measures so that
the filing fee and professional fees do not become obstacles to effective observance
and exercise of the rights to judicial guarantees and to judicial protection, both
protected under the American Convention.
*
*
*
B) SUBSTANTIVE MATTERS
63.
It is difficult to determine whether the judgment the Supreme Court of
Argentina delivered on September 7, 1996, constitutes per se a violation of the
Convention. This would be true only if the judgment itself were arbitrary. In
general, a judgment must be the reasoned derivation of the law, based on the facts
of the case. But a judgment may be a reasoned derivation of the law and still be
arbitrary. An arbitrary ruling would observe all the formalities of a court ruling, but
its flaws would be so serious as to vitiate it as a jurisdictional act. In the instant
case, the judgment delivered by the Argentine Supreme Court is based upon the
norms governing the validity and nullity of legal acts, mainly on the analysis of the
1982 agreement and on the extinction of an obligation due to the running of the
statute of limitations that should apply if that agreement is invalid. In this Court’s
view, the judgment delivered by the Argentine Supreme Court cannot be regarded as
an arbitrary ruling.
106
107
Cf. Durand and Ugarte Case, supra note 97, par.137.
Ekmedjian, Miguel Angel c/Sofovich, Gerardo y otros, Supreme Court of Argentina, Case No.
E.64.XXIII, Judgment of 7 July 1992.
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