manager recorded that Jorge Marenales had given instructions not to renew his share in
a deposit certificate that matured on June 20, 2002. In the above-mentioned brief
presented by the members of the Advisory Commission in the criminal proceedings filed
against them (supra para. 181), when referring to the case of Mr. Marenales, they
indicated that, even though he had given instructions that, on the date maturity of his
share, his funds be left “on demand”; in other words that they should be placed in the
respective account, “[t]his could not be done because, precisely on June 20, 2002, the
Central Bank instructed the Banco de Montevideo not to pay the TCB CD.” Based on
these elements, it is evident that the determinant factor in the rejection of this case was
that the date of maturity of the share in the certificate was June 20, 2002, which this
Court finds entails an arbitrary and discriminatory treatment with regard to at least one
of the 22 cases admitted.249 The representatives highlighted that one of the cases
admitted contradicts the decision in the case of Mr. Marenales, because that case was
accepted, because the claim was admitted under article 31 of Law 17,613, even though
the placement also matured on June 20, 2002. The review of the file of the said
petitioner who was accepted reveals that, in that case, the claim was admitted in
relation to a share in certificates of deposit that matured on June 20, 2002, because
consent had not been given for renewal. The Court finds no rational and objective
reason that would justify the difference in treatment of the two cases in application of
the same norm. It therefore concludes that, in the case of Mr. Marenales, adequate
reasoning was not guaranteed that would allow verification that the criteria used to
determine the requirement of absence of consent was applied objectively, which
constitutes a violation of Articles 1(1) and 8(1) of the American Convention.
185. Therefore, regarding the alleged discriminatory treatment owing to the
application of a new criterion in the 22 cases that were accepted, the Court concludes
that the Central Bank’s conduct did not constitute arbitrary and discriminatory
treatment, because its acceptance was based on the analysis of the requirements
established in article 31 of Law 17,613 and not on the application of a new criterion that
only benefited some petitioners. Consequently, the State did not violate Article 8(1) of
the American Convention, in relation to Article 1(1) thereof. Regarding the alleged
arbitrary or discriminatory treatment received by four alleged victims identified by the
representatives, the Court concludes that it does not have sufficient evidence to
determine the existence of this arbitrary or discriminatory treatment with regard to
Oscar Pivovar and Alba Fernández. However, the Court concludes that the victims Jorge
Marenales and Alicia Barbani Duarte did suffer arbitrary and discriminatory treatment,
because the State did not guarantee an adequate reasoning of the decisions of the
Central Bank that decided their claims under article 31 of Law 17,613 that would allow
verification of the objective application of the criteria used to determine the requirement
of absence of consent, and this constitutes a violation the right to non-discriminatory
treatment, in relation to the procedural guarantee of adequate reasoning, protected by
Articles 1(1) and 8(1) of the American Convention to the detriment of Alicia Barbani
Duarte and Jorge Marenales.
B.2.d) Alleged lack of information concerning evidence
Arguments of the parties
186. The Inter-American Commission argued that there had been a “selective inclusion
of witnesses” when examining the cases that were admitted. The Advisory Commission
249
The Central Bank’s decision that decided the said petition, expressly affirmed that the testimony
received and the documents in the file “reveal express instruction not to renew in TCB [… so that i]n the case
of the document […] that matured on June 20, 2002, it should be understood that no consent was given to
renew it.” Consequently, in this case the petitioners were granted the rights recognized in article 31 of Law
17,613. Cf. Case of María Julia Boeri Bottero and María del Rosario Delmonte Boeri (File No. 2003/0708) (file
of attachments to the application, volumes V and XIII, attachments 12 (C) and 12 (G), folios 4982 to 5070 and
folios 9561 to 9640).
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