the Central Bank to accept or reject the claim in question, a decision of the management that
was “made public in a duly reasoned administrative decision.” The Central Bank, in accordance
with the laws in force, was required to act within a very narrow margin that prevented it from
analyzing aspects that pertained exclusively to the jurisdiction of the judiciary and, therefore,
it was only able to accept those claims that convincingly accredited that the deposit had been
transferred without the permission of the account holder.
19. The State mentioned that under Uruguayan law, when faced with an administrative decision
(such as a resolution of the Central Bank of Uruguay) the person concerned has three
alternatives: i) he gives his express agreement; ii) he does not appeal within 10 days following
its notification or publication in the Official Gazette, in which case his tacit consent is assumed;
or, iii) he files a judicial appeal against the administrative act. Should the person concerned fail
to appeal the decision within the prescribed time limit, that decision is not subsequently open to
review in administrative proceedings inasmuch as his consent implies acceptance of the
administration's decision. Having made that clarification, as a last resort, the petitioners, if such
was their wish, should have brought an action for nullification before the Tribunal for
Contentious-Administrative Disputes to overturn the resolutions of the Central Bank of
Uruguay. The person concerned has 60 days to bring an action for nullification, counted from
the date on which he is notified of the rejection of the official claim filed. Once that time has
expired, the cause of action lapses.
20. In the instant case, the State said that all the petitions presented to the Special Commission
were analyzed. In those cases where it was requested that evidence be produced the opinion
was sought of the Central Bank and the Superintendent of Financial Institutions, and, based on
the evidence found a lawful decision was adopted in a timely manner. Of the petitions that were
rejected by the Commission, “approximately two-thirds consented to the decision.”7 Those
decisions are final and not open to review, while in the case of “others, the appropriate appeals
were lodged.” In connection with the latter, several petitioners have already brought an action
for nullification before the Tribunal for Contentious-Administrative Disputes. Those cases are
currently in process and no final decision has been issued to bring an end to the judicial
proceedings. Therefore, the remedies available under domestic jurisdiction have not been
exhausted. The State also argues that the petitioners cannot invoke any of the exceptions under
Article 46(2) of the American Convention.
21. Furthermore, the State mentioned that anyone who considers himself a victim of the
investments made in the Trade & Commerce Bank in the Cayman Islands also has theoption of
instituting civil proceedings. Thus, several suits for damages arising from contractual and
extra contractual liability, inadmissibility of legal personality, and disregard, have been brought
and are at present in process. To date, no judgment, either favorable or unfavorable, has been
issued and, therefore, the matter is still awaiting a judicial decision. According to the State,
“Moreover, any person who considers himself a victim as a result of his investments in the bank
in the Cayman Islands is still in time to bring a civil suit.
22. As regards criminal proceedings, the State argued that some of the acts that led to the
bank being intervened in June 2002 constituted criminal wrongdoings punishable by law and
were immediately reported to the appropriate judicial authorities, which, in August 2002,
ordered the imprisonment, pending trial, of the Directors of the Banco de Montevideo S.A., and
ordered the same for one of its majority shareholders in December 2003 and, subsequently,
for a number of managers and staff members of the bank in August 2004.
23. Finally, the State argued with respect to the merits of the case, that the petition was
inadmissible and unfounded. The State argued in its defense that its authorities acted in a
7
In the State’s reply dated September 15, 2006, in decision No. 599/05, issued November 18, 2005, by the
Contentious-Administrative Tribunal, the Court states that 1,426 petitions had been filed, only 17 were filed in favor of
the petitioners, 923 consented to the decision, 5 were revoked and those who were unhappy with the decisions were
only 481. These numbers are contradicted by the petitioners who allege that 1,200 petitions were filed, 22 were
decided in favor of the petitioners and that the class that they represent comprises 688 individuals who did not
consent to the decision.
6