In this regard, it should be underlined, also as a fact, that the commission required by
article 31 “must ‘advise the Board of the Central Bank of Uruguay, insofar as the
legislator granted the latter the authority to determine the status as depositor of the
Banco de Montevideo S.A (in liquidation) and La Caja Obrera S.A. (in liquidation), in
the situation established in the first paragraph of [article 31 of Law 17,613].’ The
purpose of the Advisory Commission was to ‘make recommendations,’ but its decisions
were not binding for the Board [of the Central Bank], which could diverge from them
for well-founded reasons.”6
It is also a fact of the case that an appeal before the Contentious-Administrative
Tribunal was admissible against the decisions adopted by the Bank under article 31,
and this was filed by some of the interested parties.7
Lastly, it should also be recalled that the judgment “notes that, in this case, no
violation has been alleged regarding the creation of the special administrative
procedure under article 31 […], or with regard to the requirements established in this
norm in order to benefit from it” and that, in the instant case, what must be
“determined is whether, in the procedures in which the said norm was applied, the
guarantees of due process and judicial protection […] were violated,”8 and it concluded
“that the special administrative procedure was ineffective, in light of what it had to
determine […], because the Central Bank made an incomplete analysis of the merits of
the petitions, which meant that the State violated the substantive sphere of the right
to be heard protected by Article 8(1) of the American Convention, in relation to Article
1(1) thereof, to the detriment of the 539 persons who filed a petition under article 31
of Law 17,613, indicated in the Annex on victims to this judgment.”9
It is precisely with regard to the meaning and scope that the judgment accords to the
provisions of this norm, thus making it applicable to the corresponding decisions taken
by the Bank, that I present this dissenting opinion.
B. Interpretation of Article 8(1) of the Convention
Based on the foregoing, it is now appropriate to analyze the text of the said Article
8(1) of the Convention (hereinafter, Article 8(1)), which reads:
“Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial judge or tribunal,
previously established by law, in the substantiation of any accusation of a criminal
nature made against him or for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.”
There are several ways of interpreting this article.
6
Para. 79.
7
Para. 103.
8
Para. 115.
9
Para. 142.
3