emphasized that the alleged violation of Article 8(4) is based on the factual framework
presented by the Commission in the Report on the Merits (supra paras. 21 and 22).
26.
In order to rule on the arguments raised by Argentina, the Court refers to its
constant case law. This Court has held that alleged victims and their representatives
may invoke the violation of rights other than those included in the Merits Report,
provided that they adhere to the facts contained in said document, inasmuch as the
presumed victims are entitled to the rights enshrined in the Convention.13 The
application of the aforementioned criteria in the present case requires the Court to
ascertain whether the alleged violation of Article 8(4) of the Convention refers to the
facts included in the factual context presented by the Commission in its Report on the
Merits.
27.
The representatives allege the violation of the principle of ne bis in idem arguing
that allowing an appeal against an acquittal by a party other than the accused, is to
allow a double prosecution which violates this principle (infra para. 77).
28.
The Court finds that the alleged the violation of Article 8(4) of the Convention is
related to the factual framework established by the Commission in the Report on the
Merits, since it refers to facts established by the judgments rendered in the criminal
proceedings against Mr. Mohamed. In said Report, the Commission considered proven
that Mr. Mohamed was acquitted of the charge of manslaughter in a judgment issued on
August 30, 1994, by the National Correctional Court No.3, Secretariat N° 60 of the
Federal Capital, and that this judgment was appealed and that, in a second instance
proceeding, on February 22, 1995, the First Chamber of the National Court of Appeals on
Criminal and Correctional Matters overturned the acquittal and found Mr. Mohamed
guilty of the crime of manslaughter. The Court finds that, upon alleging a violation of
Article 8(4) of the Convention, the representatives referred to the same facts mentioned
by the Commission in its Report on the Merits, but in their legal arguments they
characterize these as an alleged violation of the principle of ne bis idem.
29.
Therefore, the Court rejects the preliminary objection filed by the State and,
accordingly, in its analysis of the merits, it will rule on the alleged violation of Article
8(4) of the Convention as argued by the representatives.
IV
JURISDICTION
30.
The Inter-American Court has jurisdiction to hear this case, under the terms of
Article 62(3) of the American Convention on Human Rights, given that Argentina is a
State Party to the American Convention since September 5, 1984 and accepted the
contentious jurisdiction of the Court on that same date.
V
EVIDENCE
31.
Based on the provisions of Articles 46, 47, 48, 50, 57, 58 and 59 of its Rules of
Procedure, and on its case law regarding evidence and assessment thereof14, the Court
will examine and assess the documentary evidence submitted by the parties and the
Commission at the different procedural stages, the statement of the alleged victim, the
13
Cf. Case of the Five Pensioners v. Peru. Merits, Reparations and Costs. Judgment of February 28,
2003. Series C No. 98, para. 155, and Case of Vélez Restrepo and Family v. Colombia. Preliminary Objection,
Merits, Reparations and Costs, para. 47.
14
Cf. Case of the “White Van” (Paniagua Morales et al) V. Guatemala. Merits. Judgment of March 8,
1998. Series C No. 37, paras. 69 to 76, and Case of Nadege Dorzema et al. v. Dominican Republic. Merits,
Reparations and Costs. Judgment of October 24, 2011. Series C No. 251, para. 13.
10