7
summary, the petitioners say that even if it were true that Mr. Mohamed passed another vehicle
at the intersection, there is no regulation that would prohibit this on a one-way street with
traffic lights, so it is illegal to convict him of this.
19.
With respect to Article 8, the petitioners state that the appropriate remedy to
challenge the type of constitutional violations mentioned in the above paragraphs was the
extraordinary appeal to the Supreme Court, according to Article 14 of Law 48, enacted in 1863.
This provision gives the Supreme Court jurisdiction to consider challenges to decisions that are
allegedly unconstitutional. However, they argue that the remedy was not effective, because it
was rejected without consideration of the merits. They maintain that, under the terms of Article
8 of the American Convention, Mr. Mohamed had a right to have his conviction reviewed. They
contend that the Supreme Court’s rejection of their appeal, absent examination of the merits,
violated Mr. Mohamed’s right to be heard with due process. They note that the Supreme Court
rejected the special appeal as “insubstantial and lacking transcendence,” when what had been
placed before it was a violation of rights under both national and international law.
20.
The petitioners note that when they filed a further motion seeking to revoke that
decision of rejection, the Supreme Court rejected the motion as inapplicable, invoking Article
280 of the federal Civil and Commercial Procedure Code. They say that in 1992 the Supreme
Court itself had accepted this remedy in a similar case. Therefore, they consider that the lack of
access to a remedy violated Mr. Mohamed’s right as recognized in Article 8 of the American
Convention.
21.
They state that as a result of the verdict that revoked Mr. Mohamed’s acquittal,
gave him a three-year suspended prison sentence, and disqualified him from driving any vehicle
for eight years, he was fired from his job, causing great suffering to him and his family. They
say that in view of the foregoing, he could not provide for his children, who were bereft of
minimum resources for their support.
22.
As reparations, the petitioners request, inter alia, compensation for the harm
suffered by Mr. Mohamed and his four sons, including emotional and psychological damage, loss
of present and future income; and legislation to amend Article 280 of the Civil and Commercial
Procedure Code.
B.
The State
23.
The State maintains that there was no ex post facto imposition of liability in the
present case, and that the judicial proceedings respected the requirements of due process.
24.
With respect to the right to freedom from ex post facto laws, the State affirms
that Mr. Mohamed was convicted, not on the basis of transit regulations, but on the basis of
Article 84 of the Criminal Code. It adds that Mr. Mohamed was convicted for failure to carry out
his responsibilities as a motorist; objective duties of care that are a matter of international
practice. The State notes that the conduct in question, namely passing another vehicle at an
intersection, is prohibited precisely to preserve all drivers’ visibility and control. A pedestrian died
as a result of this illegal conduct. It says this conduct was prohibited in general under the terms
of Article 84 of the Criminal Code, in full effect at the time of the facts. This was confirmed in
the text of the verdict, which said that the following facts were noted in connection with the
death of a third party: “violation of the objective duty of care was punishable because Mohamed
failed to observe the law that prohibits passing another vehicle at an intersection, precisely to
law are inapplicable to the facts of the present case. They add that Article 42 of Decree 692/92 says that
“common regulations on intersections do not apply“ to streets with traffic lights. They also cite jurisprudence of
Argentine courts (the Ghirardi decision of 1975) which declared the 1948 ordinance inapplicable.