deposit, such as those described [above], had not been proved.”231 However, the Court
has also verified that these rejections are not based only on the fact that the petitioner
did not have one of the said three accounts. For its part, the Contentious-Administrative
Tribunal also took into account, in order to verify the first requirement relating to the
status as “depositor,” that the petitioner had a checking, fixed-term or savings
account.232
155. Regarding the third requirement, the Court has verified that the Advisory
Commission and the Board of the Central Bank understood that consent had been given
based on the following elements (supra para. 94): (i) the signature of contracts with
general instructions for the administration of investments under which the Banco de
Montevideo was authorized to manage, on behalf of and at the responsibility of the
client, placements in securities issued by an offshore institution; (ii) the existence of
specific instructions by which the client authorized the Banco de Montevideo to buy
certificates of deposit or other products; (iii) the proven regularity of using this type of
operation, and (iv) the absence of objections or observations by the client on the bank
statements that showed the transfer or the placement of deposits in certificates of
deposit of the Trade & Commerce Bank.
156. For its part, the Contentious-Administrative Tribunal considered that the consent
required by article 31 of Law 17,613 could be express or implied. Like the Central Bank
(supra para. 155), the Contentious-Administrative Tribunal understood that the
petitioners had given consent based on elements such as: (i) signed contracts of
“General Conditions for Administration of Investments”; (ii) specific instructions given by
clients to the Banco de Montevideo; (iii) the reception by the petitioner of bank
statements showing the respective operation, without the petitioner raising objections or
making observations, as established in article 35 of Law 6,895; (iv) the interest rates
enjoyed by the petitioner, for his share in the certificates of deposit or other product, in
the understanding that they enjoyed interest rates that were considerably higher than
those offered on fixed-term deposits in the Banco de Montevideo and were also
significantly higher than market rates, and (v) the petitioner’s investment profile or
regularity in regard to such operations (supra paras. 105 and 106). The first two
elements were considered elements of express consent and, regarding the others, it
indicated that they could constitute forms of implied consent under banking practice. In
this regard, the Contentious-Administrative Tribunal indicated repeatedly that, under
banking law, both banking norms and banking practice were applicable, so that “implied
consent, and verbal orders by the clients, even by telephone, constitute a reiterated
practice under banking law that has given rise to general awareness (‘opinio juris’) of
their existence and compulsory nature.”
157. In this regard, this Court observes that, contrary to the arguments of the
representatives, the wording of the norm required verification of the absence of consent
in each specific case, which meant that each claim had to be examined individually. Also,
231
Cf. inter alia, the following cases of alleged victims whose evidence is in the file of attachments to the
State’s final written arguments, volume I, attachment 3: Schaich, Rodolfo (File No. 2003/0266) (folios 30154
and 30155); De la Fuente, María del Carmen (File No. 2003/0609) (folios 30192 and 30193); Talamini, Alberto
and Norma Martínez (File No. 2003/0562) (folios 30239 and 30240); Oxandabarat, Gloria (File No. 2003/0554)
(folios 30247 and 30248); Pastorino Pecotiello, José Ángel (File No. 2003/0545) (folios 30255 and 30256);
Saturno Barra, Cecilia (File No. 2003/0502) (folios 30278 and 30279), and Lorenzo Fernández, Eugenio (File
No. 2003/0718) (folios 30329 and 30330).
232
Cf. inter alia, Judgment No. 713 of the Contentious-Administrative Tribunal of October 25, 2006, in
proceedings entitled “Azparren, Ana v. the Central Bank of Uruguay. Appeal for annulment” (file of
attachments to the answer, volume III, attachment 27, folio 13912); Judgment No. 828 of the ContentiousAdministrative Tribunal of December 13, 2006, in proceedings entitled “Lijtenstein, Fabiana et al. v. the
Central Bank of Uruguay. Appeal for annulment” (file of attachments to the answer, volume V, attachment 27,
folio 15064), and Judgment No. 691 of the Contentious-Administrative Tribunal of September 16, 2010, in
proceedings entitled “Clemata José et al. v. the Central Bank of Uruguay. Appeal for annulment” (file of
attachments to the answer, volume III, attachment 27, folios 13876 to 13878).
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