It also states that “[t]his appeal can be filed once the administrative remedies have
been exhausted….”38
On this basis, the Court merely determined whether the said appeal for annulment
before the said Tribunal was “effective, in the terms of Article 25(1) of the Convention,”
by verifying whether the Bank’s analysis of the requirement of consent was complete
and “conformed to the provisions of article 31 of Law 17,613 for the determination of
the rights that it granted.”39
b. Considerations
In this regard, it should be noted that the judgment expressly indicates that the Court
“does not have the necessary elements to analyze whether, the execution of a judgment
deciding an appeal for annulment, specifically related to the application of article 31 of
Law 17,613, could have been ineffective. This could have occurred if it merely annulled
the administrative decision and failed to determine or recognize the rights established in
the said article.”40 And, previously, it indicates that “[t]he only case that was decided
favorably by the Contentious-Administrative Tribunal was that of two people who are not
alleged victims in the instant case and, although the judgment was provided, no
information was forwarded on the consequences of the annulment of the administrative
decision in relation to the recognition of the rights granted by article 31 of Law
17,613.”41
Furthermore it is relevant to underline that the judgment also indicates that “[o]nly 22
judicial rulings deciding the appeals of 28 alleged victims were provided to the Court,
but neither the appeals nor the judicial case files were provided” so that it examined
“the effectiveness of the appeal for annulment before the Contentious-Administrative
Tribunal based on the judgments provided, domestic law, and the expert appraisal on
the matter,”42 adding that it “does not have sufficient elements to determine whether
the Contentious-Administrative Tribunal’s assessment of the evidence impaired the
effectiveness of the said remedy with regard to the respective claimants.”43
Hence, it can be observed that its assertions in this regard are not sufficiently founded.
This is what occurs, for example, when, on analyzing the other 11 judgments of the
Contentious-Administrative Tribunal, it states that “the arguments submitted regarding
defects of consent or non-compliance with the obligation to provide information were not
verified in order to confirm whether or not these had been constituted” and that
“[h]ence, similarly, […this] tribunal […] made an incomplete examination of the claims
submitted to its consideration,”44 to conclude that the State violated the said Article
25(1) to the detriment of 12 of the individuals who filed the said appeal for annulment.45
The judgment’s ruling on this aspect is insufficiently founded because, in addition, it
departs from what it had indicated as regards, “the Contentious-Administrative Tribunal
considered that the consent required by article 31 of Law 17,613 could be express or
implied”; that, based on this, it “understood that the petitioners had given consent
38
Para. 102.
39
Para. 216.
40
Para. 212.
41
Para. 211.
42
Para. 207.
43
Para. 217.
44
Para. 218.
45
Para. 220.
11
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