138. In this regard, the Court finds it relevant to note that judicial proceedings were
conducted against the Banco de Montevideo in the civil courts (supra para. 107). In
these proceedings, the courts did not apply article 31 of Law 17,613, but rather decided
the actions filed under, inter alia, damages or breach of contract. To decide the claims of
the plaintiffs, these ordinary courts analyzed the alleged defects of consent and the
Banco de Montevideo’s obligation to provide adequate information, which was the
deciding element in finding whether or not consent had been given (supra paras. 108 to
114). In addition, the Court notes that, when making their analysis, these courts
considered that the personal characteristics of the plaintiffs were relevant (supra para.
113). It is pertinent to underline that, in cases involving alleged victims in which the
Banco de Montevideo was found responsible in the ordinary jurisdiction owing to defects
of consent or absence of consent, the courts considered that these situations were
constituted because, for example, when the petitioners were giving their consent, the
Banco de Montevideo had not provided them with sufficient information, or because the
clients had not given a general instruction or authorization for the bank to act as a
broker on their behalf (supra paras. 110 and 111). Furthermore, in at least six cases
before the ordinary jurisdiction in which the Banco de Montevideo was not found
responsible, the courts examined the said bank’s obligation to provide full and truthful
information to its clients (supra para. 114). This analysis made by the courts of the
ordinary jurisdiction confirms the relevance of a complete analysis of consent.
139. Regarding the creation of the procedure under article 31 of Law 17,613 in the
administrative sphere, it is important to emphasize that, when the bill was submitted to
the Senate, it was explained that the idea of including this article was precisely to avoid
individuals who would be protected by this norm having “to continue to file judicial
actions to defend their rights.”222 The Court understands that this procedure was
designed to prevent possible beneficiaries from having to resort to the courts to protect
their rights, and to ensure that their petitions were decided as promptly as possible by
an administrative body with the required technical capability to analyze their situation.
140. The Court takes note of the State’s explanation regarding the limitations imposed
by the principle of specialization in Uruguay (supra para. 132), as well as the reasons
why, under this law, it was decided that the competent body to determine the rights it
established would be an administrative rather than a judicial body. In this regard, the
Court stresses that article 31 granted rights to certain persons who fulfilled the
requirements stipulated in this article. The State could have delegated the determination
of these rights to judicial bodies under ordinary proceedings if the latter were the only
competent organs to decide on certain aspects of the dispute; but instead it decided to
create a special procedure and delegate decisions to an administrative body that
allegedly had limitations in this regard. The Court finds that, when creating a special
procedure to determine the said rights, Uruguay should have ensured that the body
entrusted with determining them had the necessary competence to make a complete
analysis of the requirements established in article 31 of Law 17,613.
141. Since, in the instant case, it has been proved that the administrative body
decided not to analyze elements that could invalidate or impair consent, the Court finds
that this resulted in an incomplete analysis of the third requirement of article 31 of Law
17,613, which had a direct impact on the decision of whether to accept the petitions of
the alleged victims. Any determination of whether consent had been given that did not
take into account elements that could impair or invalidate it, such as the alleged defects
of consent and non-compliance with the obligation to provide complete and truthful
information, was incorrect.
222
Intervention of Senator Gallinal in the 75th special session of the Senate held on December 20 and
21, 2002 (file of attachments to the answer, volume II, attachment 20, folio 13232).
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