César Cabrejos Bernuy v. Peru, Case 11.800, Report No. 110/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 1175 (2000).
CÉSAR CABREJOS BERNUY
March 7, 2001
By means of a submission presented to the Inter-American Commission
on Human Rights (hereafter the IACHR, the Commission,
or the Inter-American Commission), on August 28, 1997, the nongovernmental
organization Asociación Pro Derechos
Humanos [Association for Human Rights], APRODEH, charged that the Republic
of Peru (hereafter "Peru", "the State" or "the Peruvian
State") violated the right to effective judicial protection enshrined
in Article 25 of the American Convention on Human Rights (hereafter "the
Convention" or "the American Convention"), to the prejudice
of Mr. César Cabrejos Bernuy, by failing to carry out rulings of the Supreme
Court of Justice and the Second Civil Chamber of the Supreme Court Justice
of Lima, which on two occasions had ordered his reinstatement to the position
of Colonel of the National Police of Peru, and with respect to which the authorities
twice reinstated the petitioner in his position, but then immediately forced
him into retirement, reproducing in each case the respective administrative
order. The IACHR concludes that
Peru has violated Article 25 and 1(1) of the Convention, and makes the pertinent
recommendations to the Peruvian State.
PROCEEDINGS BEFORE THE COMMISSION
On September 2, 1997, the Commission opened the case, transmitted the
pertinent portions of the complaint to the Peruvian State, and requested information
within a period of 90 days. Peru
responded in December 3, 1997. The
Commission sent the petitioner the pertinent portions of the State's response
on Dec. 17, 1997. The petitioner
did not submit any observations to the State's response.
On May 4, 1999, during its 103rd regular session, the IACHR adopted
Admissibility Report Nº 75/99 on the present case.
The Commission sent the Admissibility Report to the parties on May
12, 1999, and placed itself at their disposal in order to seek a friendly
settlement to the case.
On July 23, 1999, the State denied any responsibility in the case and
rejected the offer of friendly settlement.
The Commission advised the petitioner of this response on August 31,
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioner maintains that Mr. César Cabrejos Bernuy had 22 years
of service in the National Police of Peru, when, on July 31, 1990, he was
sent into retirement, because of a presumed replacement of personnel, together
with 94 other colonels of the National Police.
The petitioner declares that this retirement took place in the context
of a widespread publicity campaign in the mass media, in which the retirement
of these officers was presented as a moral instruction thereby affecting the
right of Mr. César Cabrejos Bernuy to his honor and good reputation.
Mr. César Cabrejos Bernuy appealed the decision to remove him from
his post, by means of an administrative appeal, followed by a judicial appeal,
filling an amparo suit which was
accepted by the Constitutional and Social Chamber of the Supreme Court of
Justice in a ruling handed down on June 5, 1992.
This decision ordered the reinstatement of Mr. César Cabrejos Bernuy.
The petitioner maintains that, despite repeated requests to the judicial
branch to enforce the sentence, efforts that included intervening with the
Congress, the judicial order was not carried out.
It indicates that on December 28, 1995, by means of Supreme Resolution
Nº 1389-95-IN/PNP, the National Police ordered the reinstatement of Mr. César
Cabrejos Bernuy on active duty, effective December 27 of that year.
The petitioner alleges that, nevertheless, by Supreme Resolution Nº
1445-95-IN/PNP of December 29, 1995, the National Police once again placed
Mr. César Cabrejos Bernuy in retirement, as of December 27, 1995, with the
same excuse, i.e. replacement of personnel.
In the face of this situation, Mr. César Cabrejos Bernuy turned first
to the Fifth Civil Court of Lima and later to the Second Civil Chamber of
the Supreme Court of Justice of Lima, which on May 7, 1996, issued a ruling
declaring inapplicable the second administrative resolution that had once
again placed him in retirement.
petitioner declares that, subsequently, Mr. César Cabrejos Bernuy was reinstated
by Supreme Resolution Nº 0227-97-IN/PNP of March 19, 1997.
Nevertheless, by Supreme Resolution Nº 0234-97-IN/PNP of March 26 of
that same year, he was once again placed in retirement, for the reason of
replacement of personnel.
petitioner charges that the situation constitutes a clear and reiterated failure
to abide by judicial decisions, thereby violating Mr. César Cabrejos Bernuy's
right to effective judicial protection, as enshrined in Article 25 of the
Position of the State
State maintains that it has not violated the right to effective judicial protection
in the case of Mr. César Cabrejos Bernuy.
It declares that it has not failed to enforce the ruling of the Constitutional
and Social Chamber of the Supreme Court of Justice of June 5, 1992. According to the State, "Mr. César Cabrejos Bernuy was
reinstated in active service by means of Supreme Resolution Nº 0227-97-IN/PNP
of March 19, 1997, pursuant to the judicial order suspending the effects of
the administrative order that had placed him in retirement".
Nevertheless, for the Peruvian State this judicial ruling was not considered
as preventing the respective authority from issuing another order of retirement.
State indicates that retirement as a result of replacement of officers, as
in the present case, is expressly permitted in Article 53 of Legislative Decree
Nº 745 of 1999, which provides that "in order to ensure the constant
renewal of senior personnel, officers may be placed in retirement status,
in accordance with needs as determined by the National Police."
State alleges that the last decision to place Mr. César Cabrejos Bernuy in
retirement, Supreme Resolution Nº 0234/97 of March 26, 1997, has not been
challenged, and that therefore he must present a new writ amparo
against that third resolution, as he did against the previous two, in order
to exhaust domestic remedies.
Competence and Admissibility
competence of the Commission to hear this case and the admissibility of the
petition under analysis have already been established in Admissibility Report
Nº 75/99, which the Commission approved during its 103rd regular session.
Facts of the Case
Commission notes that the parties do not dispute the facts of the present
case. Consequently, the IACHR
considers it established that Mr. César Cabrejos Bernuy, a colonel in the
National Police of Peru, was placed in retirement on July 31, 1990. He challenged
the retirement order, through the administrative route and subsequently through
the judicial route, by bringing an amparo
suit before the Constitutional and Social Chamber of the Supreme Court of
Justice, which was accepted on June 5, 1992 in a ruling that ordered the reinstatement
of Mr. César Cabrejos Bernuy in his position as an officer of the National
Police of Peru.
December 28, 1995, i.e. more than three years after the reinstatement ruling
issued by the Supreme Court of Justice, the National Police of Peru, by means
of Supreme Resolution Nº 1389-95-IN/PNP, ordered the reinstatement of Mr.
César Cabrejos Bernuy in active service as of December 27 of that year.
Immediately, however, by means of Supreme Resolution Nº 1445-95-IN/PNP
of December 29, 1995, the National Police once again placed Mr. César Cabrejos
Bernuy in retirement status, as of December 27 1995, for the same grounds,
i.e. replacement of personnel.
the situation, Mr. César Cabrejos Bernuy appealed first to the Fifth Civil
Court of Lima and subsequently to a Superior Court.
The latter court declared the second administrative decision of December
29, 1995, placing him once again in retirement, to be inapplicable, and by
virtue of this decision the National Police again reinstated Mr. César Cabrejos
Bernuy, by means of Supreme Resolution Nº 0227-97-IN/PNP of March 19, 1997.
A few days later, however, by means of Supreme Resolution Nº 0234-97-IN/PNP
of March 26 of that year, the National Police of Peru once more placed Mr.
César Cabrejos Bernuy in retirement status, for the same grounds, i.e. replacement
Considerations of Law
there is no dispute over the facts of the case, the Commission will now declare
its position on the substance of the matter, which is to determine whether
the alleged failure to carry out the ruling of the Supreme Court of Justice
of Peru, of June 5, 1992, ordering the reinstatement of Mr. César Cabrejos
Bernuy in his position as a colonel in the National Police of Peru, constituted
a violation by the Peruvian State of the right to effect of judicial protection
enshrined in Article 25 of the American Convention.
enforceability of rights and liberties in a democratic system requires a juridical
and institutional order in which laws override the discretion of governments
and in which there is control of some institutions by others, i.e., in which
the rule of law exists.
"Declaration of Santiago," adopted in 1959 by the Fifth Meeting
of Consultation of Ministers of Foreign Affairs of member States of the OAS,
noted that "the principal of the prevalence of law must be ensured through
the independence of the branches of government and surveillance over the legality
of acts of government by jurisdictional organs of the State."
the inter-American system of human rights, the proper functioning of the judicial
branch is an essential element for preventing the abuse of power by other
State organs, and therefore, for the protection of human rights.
The fundamental corollary of human rights is the possibility to turn
to judicial bodies for the enforcement of rights.
The judicial branch is undeniably the fundamental organ for the protection
of human rights.
the judicial branch is to serve effectively as an organ for the control, guarantee
and protection of human rights, it must not only be constituted formally,
but it also has to be independent and impartial, and its rulings must be carried
out. This constitutes a right
that member states of the OAS, and in particular States Parties to the American
Convention, have the obligation to respect and to guarantee for all persons
under their jurisdiction.
execution of sentences of the judicial branch is intimately linked, therefore,
with the very concept of the judicial function of the State.
The principle of that function is to ensure social peace
and harmony by seeing to
the enforcement of law and guaranteeing judicial order and individual liberty
in concrete cases, by means of decisions that are binding on the parties to
the proceedings. The corollary
of the jurisdictional function is that judicial decisions must be carried
out, in either a voluntary or coercive manner, with the assistance of the
forces of public order if necessary.
Failure to carry out judicial rulings not only affects juridical security
but also threatens the essential principles of the rule of law.
Ensuring the execution of judicial judgments thus constitutes a fundamental
aspect that is the very essence of the rule of law.
American Convention establishes the following:
25. Judicial Protection
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the Constitution or
laws of the State concerned or by this Convention, even though such violation
may have been committed by persons acting in the course of their official
The States Parties undertake:
To ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of
To develop the possibilities of judicial remedies; and
ensure that the competent authority shall enforce such remedies when granted.
importance of the right to judicial protection has been reiterated by the
Inter-American Court of Human Rights on various occasions. It
has ruled, for example, that this right "constitutes one of the basic
pillars, not only of the American Convention, but of the rule of law itself
in a democratic society in the sense of the Convention."
Inter-American Court has also indicated, with respect to compliance by States
with the obligation assumed under Article 25 of the Convention, that:
remedy that proves illusory because of the general conditions prevailing in
the country, or even the particular circumstances of a given case, cannot
be considered effective. This
could be the case, for example, when practice has shown its ineffectiveness:
when the judicial power lacks the necessary independence to render impartial
decisions or the means to carry out its judgments; or any other situation
that constitutes a denial of justice, as when there is an unjustified delay
in the decision, or when, for any reason, the alleged victim is denied access
to a judicial remedy.
25 of the Convention refers directly to the criterion of effectiveness of
the judicial remedy, which is not exhausted by the ruling on the substance
of the case, but by the enforcement of such ruling.
In this respect, Juan Manuel Campo Cabal has noted, with respect to
the criterion of effectiveness of judicial remedy, that
effectiveness of the sentence must be seen as a guarantee for persons subject
to the administration of the State.
The State must, by all the means available to it, not only provide
a jurisdictional forum for its citizens to hear any complaints that they wish
to bring before a court, but must also guarantee in some manner that the effects
of the ruling will be implemented, since otherwise we would be faced with
the clear ineffectiveness of the right to jurisdictional protection.
effectiveness of the remedy, as a right, is precisely what is enshrined in
the final clause of Article 25 of the Convention, which establishes the obligation
of the State to guarantee the enforcement of decisions when such remedies
are granted. This obligation
is the culmination of the fundamental right to judicial protection.
obligation of the State to guarantee the enforcement of judicial rulings takes
on special importance when it is the State itself that must carry out the
ruling, whether this is to be done through the executive, legislative or judicial
branch, at the provincial or municipal level, through the central administration
or the decentralized structure, through public enterprises or institutes,
or any similar body, since such bodies are part of the State and generally
enjoy procedural privileges, such as freedom from embargo for their assets.
These bodies may be inclined to use their power and their privileges
in an effort to ignore judicial rulings that go against them.
Public Defender of Peru, who prepared a report on non-enforcement of rulings
by the State administration and Peru, noted in that report that:
it is left to the discretion of the administration to carry out sentences,
the very notion of the rule of law is at risk, and conditions are created
for a regime that is arbitrary and unpredictable, contrary to constitutional
principles such as the separation of powers or the autonomy of the judicial
branch. In turn, this violates
the right to equality that all parties to the proceedings must enjoy, by subordinating
the execution of the ruling to the will of one of the parties, paradoxically
the losing party.
an organ of the State does not wish to carry out a judicial ruling that has
gone against it, it may try to ignore the ruling by simply failing to observe
it, or it may opt for more or less elaborate methods that will lead to the
same objective of rendering the ruling ineffective, while trying to maintain
a certain appearance of formal validity in its proceedings.
such method is known as the "reproduction or reissue of administrative
acts," which consists of "formal reproduction by the administration
of administrative acts identical to those that were set aside or provisionally
suspended by the administrative judge."
The IACHR considers it relevant, by way of illustration, to analyze
this notion in comparative law.
interesting example with respect to the legislative treatment of this notion
is found in Colombian legislation, where the Código
Contencioso Administrativo [Administrative Disputes Code] establishes
act that has been annulled or suspended may be reproduced by the person who
issued it if it retains the same essential features as the one annulled or
suspended, unless, subsequent to the ruling, the legal foundations for the
annulment or suspension have disappeared.
effects of any such act taken in violation of the foregoing precepts must
be suspended provisionally. The suspension order, in this case, must be communicated and
respected immediately, even if an appeal is brought
other legislation, such as that of Spain, the law does not regulate the matter
expressly, but does so indirectly through general standards applicable to
cases of reissue of administrative acts.
Thus, law 29 of 1998, Regulations Governing the Administrative Disputes
Jurisdiction, declares that "acts and provisions contrary to court rulings
are automatically null and void, if they are issued for the purpose of avoiding
That is to say, administrative acts that reproduce acts set aside by
a judicial ruling are considered null and void from the outset, by the simple
fact that they are contrary to a ruling and their ultimate purpose is to avoid
complying with a ruling.
the other hand, there are countries where the issue of the reproduction of
administrative acts is not regulated expressly by legislation, but has been
the object of study by doctrine and jurisprudence.
Venezuela, for example, is one of the countries with interesting jurisprudence
in this area. The Supreme Court
of Justice of Venezuela has explained that the reproduction or reissue of
administrative acts occurs when:
new act is issued by a public authority that is identical in its content and
purpose to one previously issued by the same authority, or by another within
its own sphere of competence, the objective of which reflects the presumed
intent of the body issuing the act to reaffirm the contents of its original
decision, when the mechanisms for exercising control over legitimacy before
the competent body have already produced a decision.
Venezuelan Supreme Court Justice has indicated, with respect to this question,
the administration is faced with a ruling against it by a court, and attempts
to ignore its duty by issuing a new act that, while different to the one rejected,
reproduces the same effect and has the same purpose, the court, at the request
of the affected party, may and must, as an extension of its original decision,
declare the suspension or annulment of the new act and order the public entity
to fulfill the ruling in its entirety.
) If the following
assumptions pertain, the effects of a ruling may extend to a distinct, but
essentially similar, act from that originally challenged: a) if the act reproduced
contains the essence of the provision or provisions suspended; b) if the reasons
underlying the judicial decision have not disappeared; c) if the act reproduced
has been issued by the same authority; and d) if the applicant has been party
to the initial proceedings.
IACHR must stress that the study of the doctrine and jurisprudence on the
institution of reproduction or reissue of administrative acts appears to indicate
that, in principle, extension of the suspension or nullity of the act reproduced
requires a judicial declaration, since administrative acts enjoy the presumption
of legality. The presumption
of legality requires that all administrative acts be considered legal and
valid unless declared otherwise by a court.
Therefore, if an administrative act is to be deemed null, it must have
been declared as such by the administrative disputes jurisdiction or its equivalent,
and this requires a judicial declaration of nullity of the entire act, even
if such act is a reproduction of an act already declared null and void.
the Commission notes that the appeal for nullity is only meaningful to the
extent that the administration does not continuously avoid fulfillment of
the ruling, since if the administration fails repeatedly to respect the judicial
decision, by constantly issuing new administrative acts, and if the interested
party must enter a new objection every time, this would tend toward an interminable
cycle of ineffective appeals that, far from protecting rights, would place
the right to effective protection in jeopardy.
Therefore, in terms of Article 25 of the American Convention, the IACHR
considers that when administrative acts, once annulled, are repeatedly reissued,
the presumption of legality of such acts disappears in favor of the individual's
right to effective judicial protection.
writer José María del Castillo Velasco notes, with respect to the limits on
administrative authority, that these
indicated by the laws, by the indisputable principles of justice and by the
needs that the public power must satisfy with respect to its administration,
and above all by a profound respect for liberty and the rights of the individual
and of the people.
light of the foregoing, the reissue of administrative acts clearly represents
a failure to comply with a ruling that the State wishes to ignore.
reissue of administrative acts has to do with the abuse of power, which has
already been analyzed by the IACHR in previous cases, including one related
to the persecution of an individual though successive inspections, the bringing
of nine criminal charges, and the issuing of seven detention orders against
In this respect, the Commission pointed to the concept of abuse of
power described by the French author Alibert, as:
deed of an administrative agent who, acting within his competence and respecting
the requirements of legislation, uses his power in cases, for reasons and
purposes other than those for which that power was conferred upon him,
or to retain the form of jurisprudence, or for a purpose other than the public
interest or the good of the service.
Violation of the right to judicial protection
25 of the American Convention, quoted above, establishes the right of any
person to simple and prompt recourse, or any other effective recourse, to
a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the Constitution or laws of the State concerned
or by this Convention, and also requires that States must "insure that
the competent authority shall enforce such remedies when granted."
Commission considers the facts of the present case to constitute a clear violation
by the Peruvian State, to the prejudice of Mr. César Cabrejos Bernuy, of the
right to judicial protection enshrined in Article 25(c) of the American Convention,
whereby Peru undertook to "ensure that the competent authority shall
enforce such remedies when granted".
In fact, although Mr. César Cabrejos Bernuy had access to a remedy
that resulted in a ruling by the Supreme Court of Justice on June 5, 1992,
ordering his reinstatement as a colonel in the National Police of Peru, the
State failed to guarantee the enforcement of the decision.
repetitions produced on December 29, 1995, and March 19, 1997, of the administrative
act of July 31, 1990, whereby Mr. César Cabrejos Bernuy was sent into retirement,
have prevented real execution of the judicial order for reinstatement, of
June 5, 1992. Such actions imply
a clear situation of repetition or reissue of an administrative act, explained
above, whereby the Peruvian State, through the National Police of Peru, has
evaded its duty to carry out the ruling of the Supreme Court of Justice of
June 5, 1992, ordering the reinstatement of Mr. César Cabrejos Bernuy in his
position as a colonel of the National Police of Peru.
subsequent to the ruling of the Supreme Court Justice the National Police
of Peru issued two supreme resolutions reinstating Mr. César Cabrejos Bernuy,
that reinstatement never materialized in practice, because he never returned
to his position. The continued
reproduction of resolutions of removal issued by the administration have constituted
continuous evasion of the judicial ruling.
Mr. César Cabrejos Bernuy has been obliged to take action against two
identical retirement orders, and although he was successful in both cases,
the State organ proceeded to issue a third resolution identical to the previous
ones. The IACHR considers that
it would be useless for Mr. César Cabrejos Bernuy to continue appealing this
latest decision, when the administration has shown in its actions that if
he did so, it would simply issue a new resolution of identical content.
This attitude on the part of the National Police of Peru constitutes
an affront to the judicial branch and makes it absolutely unnecessary to insist
that the victim continue with judicial proceedings that, as already demonstrated,
have failed to remedy his situation.
this respect, it should be noted that it was precisely because of the ineffectiveness
of domestic remedies that the IACHR stated in its report on the admissibility
of the case that:
the case under study, the State maintains that in order to exhaust domestic
remedies the victim must attempt bring a new appeal for protection against
the third retirement order. The IACHR considers this argument to be groundless.
In fact, the petitioner's complaint does not refer to the third retirement
order against Mr. César Cabrejos Bernuy, issued on March 26, 1997, but against
the continued failure of the State to carry out the ruling of the Constitutional
and Social Chamber of the Supreme Court of Justice dated June 5, 1992, which
ordered his reinstatement.
The Commission considers that the present case is consistent with the exception
contemplated in Article 46(2)(a) of the Convention, whereby the requirement
of exhaustion of local remedies called for in Article 46(1)(a) of the Convention
is not applicable when "the domestic legislation of the State concerned
does not afford due process of law for the protection of the right or rights
that have allegedly been violated."
IACHR notes that the report entitled "Noncompliance with rulings on the
part of the State administration" prepared by the Public Defender indicates
From the beginning of its functions, the Public Defender's Office has received and issued a large number of complaints against various institutions of the State that have refused to respect rulings, thereby affecting fundamental rights. In the face of this grave situation, it was decided to prepare a report on the issue, and to make specific recommendations to the State entities so that they will comply with court orders.
From the time it began to hear complaints from citizens, Sept. 11 1996, until Sept. 11 1998, the Office of the Public Defender has processed 101 complaints submitted against various State entities for failure to enforce decisions within their control. Of this high number of cases (it should be noted that in some cases a single complaint was submitted by several citizens, with various rulings in their favor), only one-quarter have been resolved satisfactorily for the citizens (24.8 percent of complaints), with full implementation of the judicial order; and in one-tenth of cases (9.9 percent of complaints), rulings have only been partially carried out. It will thus be seen that most of the cases (65.3 percent of complaints) were not resolved in a manner favorable to the citizen, despite the efforts of the Public Defender to overcome the problem.
more than 50 percent of complaints (58 percent) relate to the disregard of
judicial orders of a labor nature. Of
this number, more than half refer to the failure to enforce judicial rulings
ordering the reinstatement of claimants in their respective jobs.
Violation of the duty to respect and guarantee rights
Commission also concludes that the violation by the Peruvian State of the
right to judicial protection enshrined in the American Convention, to the
prejudice of Mr. César Cabrejos Bernuy, implies violation of Article 1(1)
of the American Convention, because it implies failure of the State to fulfill
its obligation to respect the rights and liberties recognized in the Convention
and to guarantee their full and free exercise to all persons within its jurisdiction,
as established in Article 1(1) of the Convention.
V. ACTION SUBSEQUENT TO REPORT Nº 4/00
51. On March 7, 2000, at its 106th regular session, the Commission adopted Report Nº 4/00 (Article 50) on this case. On March 9, 2000, that report, together with the Commission's recommendations, was transmitted to the Peruvian State, which was given a period of two months from the date of transmittal of the report to comply with the recommendations thereof. The State did not report to the Commission by the established deadline on compliance with the report's recommendations.
Under Article 51(1) of the Convention, what the Commission must determine
at this stage of the proceedings is whether the State has settled the matter.
In that connection, the IACHR observes that the Peruvian State has
not shown evidence of compliance with any of the recommendations made by the
Commission in the aforementioned Report Nº 4/00.
For the foregoing reasons, the Commission concludes that the Peruvian
State has continually failed to comply with the ruling of the Supreme Court
of Justice of Peru, dated July 5, 1992, which ordered the reinstatement of
Mr. César Cabrejos Bernuy to his post as a colonel in the National Police
of Peru, and thereby has violated Mr. Cabrejos Bernuy's right to judicial
protection, enshrined in Article 25 of the American Convention, and failed
to fulfill its general duty to respect
and ensure the rights of all
persons subject to its jurisdiction, enshrined in Article 1(1) of the Convention.
the basis of the foregoing analysis and the conclusions of this report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS TO THE
PERUVIAN STATE THE FOLLOWING:
To offer adequate compensation to Mr. César Cabrejos Bernuy, pursuant
to Article 63 of the American Convention, including the moral aspect as well
as the material one, for the violation of his human rights, and in particular,
To carry out the Judicial Order issued by the Constitutional and Social
Chamber of the Supreme Court of Justice on June 5, 1992, reinstating Mr. César
Cabrejos Bernuy in his position as Colonel in the National Police, paying
him his salary and other remuneration owing to him but not paid since the
date of his enforced retirement, and granting him all other benefits to which
he is entitled as a Colonel of the Police, including, as appropriate, those
relating to his pension; or, as a second resort, to pay him the salary and
other remuneration to which he would be entitled as a Colonel of the National
Police, until he is of legal retirement age, paying also in this case his
retroactive salary from the date of his forced retirement, and granting him
all the other economic benefits to which, as a Colonel of the National Police,
he is entitled, including, as appropriate, those relating to his pension.
To conduct a full, impartial, and effective investigation of the facts,
in order to establish responsibilities for the failure to carry out the ruling
of the Supreme Court of Justice of June 5, 1992, and to pursue such criminal,
administrative, and other procedures as necessary to apply the appropriate
punishment to those responsible, as befits the gravity of the violations in
October 3, 2000 the Commission transmitted Report 60/00--the text of which
precedes--to the Peruvian State and to petitioners, in accordance to Article
51(2) of the Convention, and granted Peru an additional period to comply with
the recommendations set out above. On
November 16, 2000, Peru forwarded the Commission a note in which did not state
that it had taken any action towards compliance with the recommendations made
by the Commission.
to the above considerations, and Articles 51(3) of the American Convention
and 48 of the Commissions Regulations, the Commission decides to reiterate
the conclusion and recommendations set forth in chapters VI and VII above;
to make public the present report and include it in its Annual Report to the
OAS General Assembly. The Commission, according to the norms contained in
the instruments which govern its mandate, will continue evaluating the measures
adopted by the Peruvian State with respect to the above recommendations until
they have been complied with by the Peruvian State.
and signed in the city of Washington, D.C., on the 7th day of the month of
March, 2001 (Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman;
: Marta Altolaguirre, Second Vice-Chair; Commissioners, Robert K. Goldman,
Peter Laurie, and Julio Prado Vallejo.
 IACHR, Annual Report, Report on Paraguay, paragraphs
50 and 51.
 Vescovi, Enrique, Teoria
General del Proceso, Editorial Temis, Bogota, 1984, page. 120.
 Emphasis added.
 See for example, I-A Court, Judicial guaranties in states of emergency, Advisory Opinion OC-9/87
of October 6, 1987, Series A Nº 9, para. 24; Suarez Rosero case, judgment of November 12, 1997, Series C Nº 35,
paras 61-66; Loayza Tamayo case,
judgment of September 17, 1997, Series C Nº 33, paras. 52-55; and Habeas
Corpus under suspension of guarantees, Advisory Opinion OC-8/87 of
October 6, 1987, Series A Nº 8, para.32.
 I-A Court, Suarez
Rosero case, Judgment of November 12, 1997, Series C Nº 35, paras
 I-A Court, Judicial
guaranties in states of emergency, Advisory Opinion OC-9/87 of October
6, 1987, Series A Nº 9, para. 24.
 Campo Cabal, Juan Manuel, Medidas Cautelares en el Contencioso Administrativo, Editorial Temis,
Bogota, 1989, pp 1-4.
 Public Defender, Incumplimiento
de Sentencias por parte da la Administracion Estatal, Lima, October
1998, page 5.
 Ortiz-Alvarez, Luis A., La Proteccion Cautelar en el Contencioso Administrativo, Editorial
Sherwood, Caracas, 1999, page 605.
 Colombian Administrative
Disputes Code, Article 15.
 Law 29 of 1998, Regulations governing the Spanish Administrative
Disputes Jurisdiction, Article 103.
 Supreme Court of Justice, Political-Administrative Chamber,
Judgment Nº 572 of 16 August 1997.
 Supreme Court of Justice, Political-Administrative Chamber,
Judgment Nº 648 of 10 October 1996.
 Del Castillo Velasco, José Maria, Ensayo
sobre el Derecho Administrativo Mexicano, UNAM, Mexico City, 1994,
 IACHR, Annual Report 1996, Report Nº 43/96 Jose
Francisco Gallardo, Case 11.430 (Mexico).
 Alibert, Le controle
jurisdictionnel de lAdministration, Paris, 1926, p. 236, quoted
in IACHR, Annual Report 1996, Report Nº 43/96, op. cit.
 IACHR, Report Nº 75/99 Cesar Cabrejos Bernuy,
Case 11.800 (Peru)
 Public Defender, Incumplimiento
de Sentencias por parte da la Administracion Estatal, Lima, October
1998, pages 1 and 6.