OEA/Ser.L/V/II.
Doc. 45
4 September 2016
Original: Spanish
REPORT No. 40/16
PETITION P-468-02
REPORT ON ADMISSIBILITY
GADALA MARIA DADA ET AL
DOMINICAN REPUBLIC
Approved electronically by the Commission on September 4, 2016
Cite as: IACHR, Report No. 40/16, Petition P-468-02. Admissibility. Gadala Maria Dada et al.
Dominican Republic. September 4, 2016
www.cidh.org
REPORT No. 40/16
PETITION P-468-02
ADMISSIBILITY
GADALA MARIA DADA ET AL.
DOMINICAN REPUBLIC
SEPTEMBER 4, 2016
www.cidh.org
I.
SUMMARY
1.
On June 17, 2002, the Inter-American Commission on Human Rights (hereinafter, “the InterAmerican Commission, “the Commission,” or “the IACHR”) received a petition submitted by Juan Miguel
Castillo Pantaleón (hereinafter, “the petitioner”) against the Dominican Republic (hereinafter, “the Dominican
Republic” or “the State”). The petition was submitted in representation of Arturo Elias Gadala Maria Dada,
Mauricio Roberto Gadala Maria Dada, Ricardo Gadala Maria Dada, Eduardo Gadala Maria Dada, and Carolina
Alicia Gadala Maria Dada (hereinafter, “the alleged victims”),1 who purport the international responsibility of
the State for violations of their right to property for failing to comply with a judgment handed down by the
Court of Appeals of Santiago and upheld by the Supreme Court of Justice; as well as unwarranted delay in
other judicial proceedings.
2.
The petitioner contends that the State has refused to enforce a judgment handed down by
the Court of Appeals of Santiago and upheld by the Supreme Court of Justice of the Dominican Republic, which
ordered the return of the properties expropriated and confiscated from the alleged victims when the
dictatorship of Rafael L. Trujillo ended, thus violating their rights to property and judicial protection. The
petitioner further contends that this refusal, in spite of multiple appeals and attempts on the part of the
family, constitutes an ongoing denial of justice that continues to date. At the time that this report was drafted
the State had not presented its response.
3.
Without prejudging the merits of the complaint, the Commission has decided, after analyzing
the petitioner’s position and in keeping with the requirements set forth in Articles 46 and 47 of the American
Convention on Human Rights (hereinafter, “the American Convention” or “the Convention”) and Articles 31 to
34 of its Rules of Procedure (hereinafter, “the Rules of Procedure”), to rule the petition admissible for
purposes of reviewing the allegations related to the purported violation of the rights enshrined in Articles 8
(right to a fair trial), 21 (right to property), and 25 (right to judicial protection) of the American Convention,
in connection with Article 1 thereof, as well as Articles XXIII (right to property) and XVIII (right to a fair trial)
of the American Declaration of the Rights and Duties of Man (hereinafter, “the American Declaration”). The
IACHR has likewise decided to notify the parties of this decision, to publish it, and to include it in its Annual
Report to the General Assembly of the Organization of American States.
II.
PROCESSING BY THE IACHR
4.
The IACHR received the petition on June 17, 2002. After having completed the review
provided for under Article 26 of the Rules of Procedure, on July 31, 2002, the Executive Secretariat of the
IACHR addressed the petitioner to inform him that in keeping with the information available it was not
possible to process the petition, given that it did not comply with the admissibility requirement regarding the
submission deadline established in Article 46(1)(b) of the Convention.
5.
On November 19, 2002, the IACHR received a brief in which the petitioner presented
additional information. After analyzing the new arguments presented, on November 18, 2013 the IACHR sent
the pertinent parts of the petition to the State, granting it three months to submit its observations, pursuant
to Article 30(3) of its Rules of Procedure. On November 14, 2014, the IACHR repeated its request for
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death.
Through a communication dated August 21, 2003, the petitioner informed the IACHR of Arturo Elias Gadala Maria Dada’s
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information from the State. Nevertheless, as of the date this report’s adoption the State has not submitted
observations.
6.
The petitioner presented additional observations on the following dates: September 22,
2014, February 28, 2014, and February 13, 2015. These communications were duly forwarded to the State.
III.
POSITION OF THE PARTIES
A.
Position of the petitioner
7.
The petitioner recounts that in 1953, the Salvadoran investor, Arturo Elias Gadala Maria
Dada, arrived in the Dominican Republic. He was appointed Costa Rica’s chargé d’affaires in the Dominican
Republic from1957 to 1960. The petitioner states that during the time Mr. Gadala Maria Dada resided in the
Dominican Republic he legally purchased the majority of shares in the companies: Industria Nacional del
Vidrio and Fábrica de Sacos y Cordelerías (Fasaco), in addition to founding the companies Sacos y Tejidos
Dominicanos (today Tejidos Antillanos), Sal y Yeso Dominicanos, Fábricas de Aceite Ámbar, Refinería de Sal,
Consorcio Algodonero Dominicano, and Sisal Dominicano.
8.
The petitioner states that after the murder of the dictator Rafael L. Trujillo, on May 30, 1961,
the new President of the Republic, Joaquín Balaguer L., issued decree No. 6957 on July 25, 1961, pursuant to
which the companies Sal y Yeso Dominicanos and Sisal Dominicano were expropriated from Mr. Elias Gadala
Maria.
9.
On February 15, 1962, Law No. 5816 was enacted, which defined the crime of illicit
enrichment as the abuse or usurpation of power or any public function to enrich oneself or others. This Law
also provided that property acquired under the dictatorship would be confiscated and in the event that it was
proven that the property had not been acquired at the expense of the people and the State, it would be
returned. The petitioner states that under this law, Elias Gadala’s remaining properties were confiscated.
10.
According to the petition, on May 26, 1962 Law No. 5924 (General Confiscation of Property)
was enacted, which established a Court of Confiscation competent to determine the legality of property and
the legitimacy of the confiscations carried out by the State. In keeping with the foregoing, the petitioner states
that Elias Gadala went before this Court in order to prove his innocence so that his expropriated and
confiscated property would be returned to him accordingly.
11.
On June 30, 1966, Law No. 289 (Basic Law of the Dominican Corporation for State
Enterprises) was enacted, creating the Dominican Corporation for State Enterprises [Corporación Dominicana
de Empresas Estatales] (CORDE), an institution governed by private law devoted to administering, managing,
and developing enterprises, properties, and rights assigned by the State. The petitioner asserts that Elias
Gadala’s properties made up a significant part of what was assigned to CORDE, even when it was subject to
claims before the Court of Confiscation.
12.
On July 9, 1969, the Court of Appeals of Santiago issued correctional judgment No. 184,
ruling that Elias Gadala Maria had not committed the crime of illicit enrichment, and ordering as a result that
the State, or whoever was concerned, return his properties. This judgment was challenged by the
representative of the Public Prosecution Ministry through a cassation appeal to the Supreme Court of Justice.
This legal remedy was rejected for been extemporaneous, thus upholding the correctional judgement, which,
according to the petitioner, became res judicata on April 15, 1970.
13.
The petitioner recounts that on January 20, 1989, Arturo Elias Gadala Maria Dada died,
leaving as his only heirs and legal successors his children, Arturo Elias Gadala Maria Dada, Mauricio Roberto
Gadala Maria Dada, Ricardo Gadala Maria Dada, Eduardo Gadala Maria Dada, and Carolina Alicia Gadala Maria
Dada, who in this report are the alleged victims.
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14.
The petitioner asserts that no authority has enforced the order issued in correctional
judgement No. 184, which ruled that all of the alleged victims’ properties be returned. The petitioner
indicates that over the years the alleged victims have gone before all the public offices and authorities who
might have any involvement in the resolution of the case. In this regard, by means of a bailiff’s act on June 27,
1980, the Court of Appeals of Santiago ordered the Director General of CORDE, the Board of Directors of
Fabrica de Sacos y Tejidos, as well as the Board of Directors of Fábrica de Aceites de Vegetales and Instituto del
Algodón to obey and enforce the judgment. Additionally, by means of a bailiff’s act on November 23, 1990, the
Court of Appeals of Santiago ordered the Prosecutor General of the Republic, the Secretary of Finance, the
Secretary of Industry and Commerce, and the Director General of CORDE to comply with the said judgment.
Finally, by means of a bailiff’s act on February 21, 1995, the Court of Appeals of Santiago ordered the
President of the Republic, the Office of Legal Counsel of the Executive, the Prosecutor General of the Republic,
the Secretary of Finance, the Secretary of Industry and Commerce, the Director General of CORDE, the
President of the Senate of the Republic, the President of the Chamber of Deputies of the Republic, the
Directorate General of National Property, the Title Registry of the National District, and the Superior Land
Court to comply with the judgment. Nevertheless, these court orders led to no concrete action, which is why
the petitioner alleges that all domestic remedies have been exhausted.
15.
On May 15, 1998, pursuant to Decrees No. 180-98 and 181-98, issued by President Leonel
Antonio Fernández Reyna, several properties held by CORDE were expropriated, including Sacos y Tejidos
Dominicanos (today Tejidos Antillanos), Consorcio Algodonero Dominicano, and Fábricas de Aceite Ámbar,
which previously had been confiscated from Arturo Elias Gadala Maria Dada under Law No. 5816 of February
15, 1962. The petitioner contends that through this triangulation the State was paying itself part of the
compensation owed to the alleged victims, inasmuch as the payment would not come from the State’s funds,
given that CORDE is a parastatal enterprise charged with administering, managing, and developing property
and rights granted by the State itself. For this reason, on May 24, 1998, they filed a case with the Land Court
to have the Decrees declared null and void; the Court refused to hear the case.
16.
With regard to the foregoing, the petitioner states that for five years (1998-2003) the alleged
victims repeatedly went before the Supreme Court of Justice to bring actions challenging the constitutionality
of Decrees No. 180-98 and 181-98. These actions did not lead to any concrete result as a hearing date was not
set and therefore no rulings were issued on the merits of the case. The petitioner indicates that in pursuit of
alternative ways to resolve the case, on February 18, 2000, CORDE proposed a settlement to the alleged
victims for purposes of covering the alleged debt owed for Sacos y Tejidos Dominicanos (today Tejidos
Antillanos), Consorcio Algodonero Dominicano, and Fábricas de Aceite Ámbar. However, this settlement never
went forward due to a change in the enterprise’s management.
17.
The petitioner, through a request to the government of the Dominican Republic for
consultation under Article 15 of Chapter 10 of the Free Trade Agreement between the United States of
America, the Dominican Republic, and several Central American States (“CAFTA-DR”), established that the
authorities of the Dominican Republic owe the alleged victims US$ 1,437,000,000 (almost a billion and a half
dollars) as of March 3, 2008.
18.
In this context, the petitioner recounts that in a meeting on August 13, 2008, with the
Secretary of State of Industry and Commerce, efforts were made to reach a settlement, but several difficulties
were encountered. Indeed, the representatives of the State asserted that the amount of the debt represents
approximately all of the Dominican Republic’s currency reserves. Although the alleged victims stated that
their intention was not to affect the national economy, rather to promote it through the use of the resources
that they received, an agreement could not be reached.
19.
The petitioner asserts that the State has not enforced the judgement of April 15, 1970,
handed down by the Supreme Court of Justice of the Dominican Republic, which upheld the judgment of the
Court of Appeals of Santiago, absolving Arturo Elias Gadala Maria Dada of the crime of illicit enrichment, and
ordering the return of his property. The petitioner alleges that the conduct of the State with regard to all the
appeals and the efforts undertaken in vain constitute an ongoing denial of justice that continues to date.
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20.
Based on the foregoing, the petitioner alleges that the State violated, to the detriment of the
alleged victims, the rights enshrined in Articles 1(1), 21(1), 21(2), 25(c)(2), and 63(1) of the American
Convention.
B.
Position of the State
21.
At the time of this report’s adoption, the State had not provided its observations with respect
to this petition.
IV.
ANALYSIS ON COMPETENCE AND ADMISSIBILITY
A.
Competence
22.
The petitioner is entitled, in principle, to lodge a petition under Article 44 of the American
Convention, in keeping with Article 23 of the Rules of Procedure. The petition indicates that the alleged
victims are individuals, with regard to whom the Dominican Republic committed to respecting and
guaranteeing the rights enshrined in the American Convention. As of the date of the Convention’s ratification
by Dominican Republic on July 18, 1978, the Commission is competent ratione personae to review the
petition. The petition claims the alleged violation of rights enshrined in the American Convention to the
detriment of individuals with regard to whom the Dominican Republic committed to respecting and ensuring
such rights. Based on the foregoing, the IACHR concludes that it is competent ratione personae, ratione loci,
ratione temporis, and ratione materiae to review the facts alleged in this petition.
23.
Furthermore, the IACHR notes that it is not competent ratione temporis to apply the
American Convention with respect to events occurred prior to July 18, 1978, when said treaty entered into
force in the Dominican Republic. With regard to those facts, the American Declaration is applicable.
B.
Admissibility requirements
1.
Exhaustion of domestic remedies
24.
Article 46(1)(a) of the American Convention calls for prior exhaustion of the domestic
remedies available, in keeping with the generally recognized principles of international law, as a requirement
for admitting claims of alleged violations thereof. The purpose of this requirement is to allow national
authorities to hear purported violations of protected rights, and, where appropriate, to resolve the matter
before it is heard by an international body.
25.
The subject of this petition is the alleged failure to comply with the judgment handed down
by the Court of Appeals of Santiago on July 9, 1969, ordering the return of Mr. Arturo Elias Gadala Maria
Dada’s properties, which allegedly became res judicata with the judgment of the Supreme Court of Justice on
April 15, 1970, and has been the subject of several subsequent measures and appeals aimed at obtaining
compliance.
26.
According to the information provided by the petitioner, in 1980, 1990, and 1995, the Court
of Appeals of Santiago ordered different public authorities to comply with the judgment. Furthermore,
subsequent to the issuance of Decrees 180-98 y 181-98, which according to the petitioners constitute a
triangulation by the State to pay itself with part of the alleged victims’ property, they filed an action with the
Land Court to have said Decrees declared null and void, which was rejected.
27.
Finally, from 1998 to 2003, the alleged victims lodged several actions challenging the
constitutionality of the Decrees before the Supreme Court of Justice, purportedly without any ruling being
handed down in that respect. Furthermore, the petitioner indicates that in 2000 and 2008 there were
attempts to negotiate with authorities, but they were unsuccessful.
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28.
Based on the information provided by the petitioner, which the State has not challenged, to
date the judgment issued by the Court of Appeals of Santiago on July 9, 1969, ordering the return of the
alleged victims’ property, has yet to be complied with. Furthermore, according to the information provided, it
can be concluded prima facie that the alleged victims brought the legal actions available domestically to have
the judgement enforced, but these remedies were ineffective. Additionally, the information available does not
show the existence of other legal venues for the petitioners to exhaust in order to seek the enforcement of
those judgments delivered in their favor. Therefore, the IACHR concludes that the exception to the exhaustion
of domestic remedies set forth in 46(2)(a) of the American Convention is applicable.
2.
Timeliness of the petition
29.
Article 46(1)(b) of the American Convention provides that for a petition to be admitted by
the Commission, it must be submitted within six month of the date when the alleged victim is notified of the
final decision. In the claim under review, the IACHR has established that the exception to the exhaustion of
domestic remedies applies in keeping with Article 46(2)(a) of the American Convention. In this respect,
Article 32(2) of the Commission’s Rules of Procedure provides that in cases where exceptions to exhaustion
of domestic remedies apply, the petition is to be submitted in a reasonable period of time, at the discretion of
the Commission. To this end, the Commission is to consider the date when the alleged violation of rights
occurred and the circumstances of each case.
30.
The petition before the IACHR was submitted on June 17, 2002. As has already been stated,
subsequent to the judgment whose non-compliance is the subject of this petition, the Court of Appeals of
Santiago issued three orders from 1980 to 1995 to enforce such judgment. Moreover, the alleged victims filed
several constitutional challenges from 1998 to 2003 without obtaining a ruling thereon. Additionally,
according to what is alleged, the State did recognize it had the obligation to solve the purported matter of
expropriation on several occasions, but allegedly did not adopt the necessary measures to solve the situation
at hand.
31.
Therefore, the activity of the alleged victims reveals that they had a legitimate expectation
that the matter would be resolved domestically. Based on the circumstances of the case, and taking into
account that non-compliance with a final judgment constitutes an ongoing violation of the right to effective
judicial protection,2 the IACHR concludes that the present petition complies with the requirement provided
for under Article 32(2) of the Commission’s Rules of Procedure.
3.
Duplication of proceedings and international res judicata
32.
Nothing in the file reveals that the subject matter of this petition is pending in any other
international settlement proceedings, or that it reproduces a petition that has previously been studied by this or
any other international body. Therefore, the causes for inadmissibility set forth under Articles 46(1)(c) and 47(d)
of the Convention are not applicable.
4.
Colorable claim
33.
For purposes of admissibility, the Commission is to decide whether the facts alleged may
characterize a violation of rights, as stipulated in Article 47(b) of the American Convention, or whether the
petition is “manifestly groundless” or “obviously out of order” in keeping with 47(c) thereof. The criteria for
analyzing admissibility differs from that used for analyzing the merits of the petition inasmuch as the
Commission merely conducts a prima facie analysis to determine whether the petitioners establish the
apparent or potential violation of a right guaranteed by the American Convention. It is a question of a cursory
2 IACHR, Report No. 42/06, Inadmissibility, Petition 12.215, Santiago Luis Chávez Córdova, Peru, March 15, 2006, paragraph
16; IACHR, Report No. 82/05, Inadmissibility, Petition 12.169, Efraín Echeverría and Amílcar Mario Acosta Luna, Ecuador, October 24,
2005, paragraph 33.
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analysis that does not imply prejudgment of the merits of the matter or issuance of a preliminary opinion
thereon.
34.
Furthermore, neither the American Convention nor the IACHR Rules of Procedure require
that the petitioner identify the specific rights that have allegedly been violated by the State in the matter
before the Commission, although petitioners may do so. It is the responsibility of the Commission, in keeping
with the system’s case law, to determine in its admissibility reports which provision of the relevant interAmerican instruments are applicable and the violation of which might be established if the alleged facts are
proven to be true through sufficient evidence.
35.
The petitioner contends that the alleged victims have sought, using different legal means, the
enforcement of the judgment handed down by the Court of Appeals of Santiago—which became final with the
Supreme Court of Justice’s decision—which ruled that the property expropriated and confiscated from the
alleged victims was to be returned. The petitioner indicates that the State has not complied with this
judgment. Thus, the petitioner asserts that the rights of the alleged victims enshrined in Articles 1, 21, 25 and
63 of the American Convention have been violated. The State, for its part, has not submitted observations
with respect to this petition, despite having had the procedural opportunity to do so.
36.
In light of the legal and factual evidence presented by the petitioner and the nature of the
matter brought before it, which allegedly describes a situation of ongoing denial of justice, the IACHR
considers that, if proven, the facts alleged may characterize possible violations of the rights protected under
Articles 8, 21, and 25 of the American Convention, in keeping with Article 1 thereof, as well as Articles XVIII
and XXIII of the American Declaration with respect to the alleged violations of the right to property and the
lack of access to justice that purportedly took place prior to the Convention’s entry into force in the
Dominican Republic.
37.
As for the petitioner’s claim regarding the alleged violation of Article 63(1) de la American
Convention, related to the Inter-American Court of Human Right’s authority to order reparations, the
Commission notes that this provision is not applicable at the present stage of proceedings before the InterAmerican System.
V.
CONCLUSIONS
38.
Based on the legal and factual arguments provided for, the Inter-American Commission
concludes that this petition meets the admissibility requirements set forth in Articles 46 and 47 of the
American Convention, without prejudging the merits of the matter.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1.
To declare this petition admissible with respect to Articles 1, 8, 21 and 25 of the American
Convention in connection with the obligations set forth in Article 1 thereof; and in relation to Articles XVIII
and XXIII of the American Declaration;
2.
To notify the parties of this decision;
3.
To continue the analysis of the merits of the matters; and
4.
To publish this decision and include it in its Annual Report to the General Assembly of the
Organization of American States.
Approved by the Inter-American Commission on Human Rights on the 4th day of the month of
September, 2016. (Signed): James L. Cavallaro, President; Francisco José Eguiguren, First Vice President;
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Margarette May Macaulay, Second Vice President; José de Jesús Orozco Henríquez, Paulo Vannuchi,
Esmeralda E. Arosemena Bernal de Troitiño and Enrique Gil Botero, Commissioners.
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