of one of the plaintiff’s lawyers was pending a decision].” 303 In addition, in March 2008, the
Supreme Court of Justice of the province of Buenos Aires decided to admonish one of the
judges when noting that “there had been a delay in deciding the request to declare the expiry
of the evidence stage, because, although the case file was away from the court on two
occasion, a considerable delay had still been verified.” 304 The Supreme Court also sanctioned
another judge for the delay in the interlocutory proceeding relating to fees.
178. The Court finds that this lack of diligence of the authorities is especially relevant when
considering that the presumed victims have been subject to a precautionary measure of a
general injunction on property for more than 17 years, based on possible civil damages. 305
According to the applicable domestic laws, this type of measure entails a “general prohibition
to sell or encumber property” and is not limited to a specific amount. 306 The Court recalls that
the adoption of precautionary measures involving private property does not constitute per se
a violation of the right to property, even when it does represent a limitation of this right, to
the extent that it affects an individual’s ability to dispose freely of his property. 307
179. In this case, the Court observes that the two measures imposed on Messrs. Mémoli
were ordered based on the Code of Civil and Commercial Procedure of the province of Buenos
Aires, 308 thus they were established by law. In addition, according to domestic law, this
measure seeks to ensure a right that is in dispute in a civil proceeding, 309 in this case, the
right to compensation for the alleged harm caused; consequently, it meets the requirement of
a permissible objective under the Convention. Furthermore, it is clear that the general
prohibition to sell or encumber property is appropriate to guarantee this objective.
180. Nevertheless, the Court notes that the domestic judicial authorities did not establish
the possibility of moderating the impact of the duration of the civil proceeding on the ability of
the presumed victims to dispose of their property, nor did they take into account that,
303
Decision of April 6, 1999 (file of annexes to the answer, annex 1, folio 1946).
304
Judgment of the Supreme Court of Justice of the province of Buenos Aires of March 12, 2008 (file of
annexes to the Merits Report, annex 25, folio 313).
305
This measure was initially decided in the context of the criminal proceeding in order to safeguard an eventual
lawsuit for damages. In 2001, the measure was lifted during the criminal proceeding and, a month and a half later,
new measures were ordered, now in the context of the civil proceeding. The measure has continued in force from that
time until today. The said measure has been re-registered on two occasions. The Court has no information on whether
the measure ceased to be valid at any time between these re-registrations (supra paras. 109 to 112).
306
Article 228 of the Code of Civil and Commercial Procedure of the province of Buenos Aires establishes:
“General injunction on property. In all cases in which, although an embargo is in order, this cannot be executed
because the debtor’s assets are not know, or because these do not cover the amount of the credit claimed, the
general injunction on the sale or encumbrance of his property may be requested, which shall be annulled provided
that the debtor provides sufficient assets to be embargoed or an adequate guarantee.” Decree Law 7425/69, Code
of Civil and Commercial Procedure of the province of Buenos Aires, art. 228 (annexes to the representatives’ final
written arguments, folio 2911, available at http://www.gob.gba.gov.ar/legislacion/legislacion/l-7425.html).
307
Cf. Case of Chaparro Álvarez et al. v. Ecuador. Preliminary objections, merits, reparations and costs.
Judgment of November 21, 2007. Series C No. 171, para. 187.
308
Cf. Decree Law 7425/69, Code of Civil and Commercial Procedure of the province of Buenos Aires, art. 228
(annexes
to
the
representatives’
final
written
arguments,
folio
2911,
available
at
http://www.gob.gba.gov.ar/legislacion/legislacion/l-7425.html).
309
Article 195 of the Code of Civil and Commercial Procedure of the province of Buenos Aires establishes
that: “[p]recautionary measures may be requested before or after the complaint has been concluded, unless the
law stipulates that they should be requested previously. The brief shall indicate the right that it is sought to
protect, the measure requested, the legal provision on which it is based, and compliance with the specific
requirements corresponding to the measure requested.” Cf. Decree Law 7425/69, Code of Civil and Commercial
Procedure of the province of Buenos Aires, art. 195 (annexes to the representatives’ final written arguments, folio
2907, available at http://www.gob.gba.gov.ar/legislacion/legislacion/l-7425.html).
68
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