Dismissed Congressional Employees v. Peru, Case 11.830 and 12.038, Report No. 52/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 335 (2000).


REPORT Nº 52/00
CASES 11.830 and 12.038


June 15, 2001


I.          SUMMARY 

1.          The instant report on admissibility covers Cases 11.830 and 12.038, which have been combined because they concern the same events, namely the dismissal of a group of 257 employees of the National Congress of the Republic of Peru (hereinafter “Peru”, “the State” or “the Peruvian State”), who attempted, by means of domestic legal remedies, to impugn two executive decisions issued in 1992, whereby a total of 1,117 employees of that Congress were dismissed. The petitioners claim that Peru violated, to the detriment of the aforementioned 257 dismissed employees, who pursued the remedies under domestic law, the rights to a fair trial and judicial protection enshrined in Articles 8 and 25 of the American Convention on Human Rights (hereinafter the “Convention” or the “American Convention”). The State contended that the case was inadmissible for failure to exhaust domestic remedies. The Inter-American Commission on Human Rights (hereinafter “the Commission”, “the Inter-American Commission” or “the IACHR”) considers that the situation that must be taken into account, in order to determine if domestic remedies have been exhausted, is that which exists at the moment of adopting a decision on admissibility, and decides to admit the petitions as regards the alleged violations of the rights to a fair trial and to judicial protection enshrined in Articles 8 and 25, respectively, of the American Convention on Human Rights, without prejudging the merits of the matter. 


          2.          The petition relating to Case 11.830, originally lodged as an application for precautionary measures by Messrs. Adolfo Fernández Sare, Angela Valdéz Rivera, Roberto Ribotte Rodríguez, María Huaranga Soto, and Manuel Carranza Rodríguez, both in their own name, and on behalf of other dismissed congressional employees, was received by the IACHR on October 18, 1997. The Commission opened the case on November 10, 1997, transmitted the pertinent portions of the petition to the State, and requested it for information to be submitted within a period of 90 days.  Peru replied on January 26, 1998. On March 26, 1998, the petitioners lodged a petition with the Commission that reproduced the alleged facts contained in the original application for precautionary measures, as well as submitting a copy of a judgment delivered by the Constitutional Court on November 24, 1997, published in  the official gazette, “El Peruano,” on January 12, 1998.  

          3.          On February 4, 1999, Pedro Antonio Quiñones Seminario and Augusto Salomón Bellindo Orihuela, both former congressional employees asked to named as co-petitioners in the case. Both parties submitted additional information and observations on different occasions. In a communication of October 20, 1999, the Bar Association of Lima asked to be named as co-petitioner in the case and presented letters from various former congressional employees requesting that they be represented by the said Bar Association in Case 11.830 before the IACHR.  

4.          In addition, the petition relating to Case 12.038 was received by the IACHR on July 10, 1998. That petition was lodged by Messrs. Zoila Luz Begazo Salazar, Jorge Luis Pacheco Munayco, and 19 other persons, acting both in their own name and on behalf of other employees dismissed from the Congress.  The Commission opened the case on August  4, 1998, transmitted the pertinent portions of the petition to the Peruvian State, and requested it for information to be submitted within a period of 90 days.  Peru applied for an extension in which to respond and, this granted, did so on November 11, 1998. On June 28, 1999, the Commission received an amicus curiae brief from the National Ombudsman [of Peru]. 

          5.          On June 9, 2000, the Commission, in accordance with the provisions set forth in Article 40(2) of its Regulations, combined the petitions relating to Cases 11.830 and 12.038, and decided to continue to hear them in the proceedings in Case 11.830. At the same time, the IACHR advised both Peru and all of the petitioners of that fact.    


A.          Position of the petitioners          

          6.          The petitioners claim that on April 5, 1992, the head of the Executive Branch of the Peruvian Government, Alberto Fujimori, ordered the dissolution of Congress and the complete reorganization of the Judicial Branch, the Constitutional Court, the National Judiciary Council, the Office of the Attorney General, and the Office of the Inspector General. The petitioners assert that such a situation led to the arbitrary removal of officials and employees who had been appointed to their posts in accordance with regulations that predated April 5, 1992. 

          7.          The petitioners say that the congressional personnel were laid off from their jobs by Executive Decisions Nos. 1303-A-92-CACL and 1303-B-92-CACL, which provided for the dismissal of a total of 1,117 congressional employees and were published on December 31, 1992, in the official gazette, “El Peruano”. They claim that the dismissal was carried out without the least respect for the guarantees of due process, and that it was totally arbitrary inasmuch as it was not supported by any of the grounds provided for in the regulations in force at the time. 

          8.          The petitioners say that a group of 234 former congressional employees filed an amparo suit appealing the aforesaid executive decisions, which was heard by the 28th Civil Court of Lima. By judgment of June 26, 1995, that court upheld the petition and ordered that the employees who instituted the aforesaid proceeding be reinstated in their jobs.   

          9.          The petitioners say that the Fifth Chamber for Civil Matters of the Superior Court of Lima, on hearing the appeal filed against the lower court decision, delivered a new judgment on February 21, 1996, and reversed the decision of the lower court. The petitioners filed a special appeal [recurso extraordinario] with the Constitutional Court against that judgment. At the time the petition was lodged with the Commission, a decision was pending on the appeal. 

          10.          The petitioners say that the Constitutional Court issued a decision on November 24, 1997, that was published in the official gazette, "El Peruano," on January 12, 1998, and upheld the judgment of the appellate court. In the course of the trial other employees had joined the amparo suit, with the upshot that the above decision of the Constitutional Court finally applied to the 257 employees whose names are mentioned in the annex to the instant report. The petitioners add that the evidence they presented to the Constitutional Court was not accorded its due value. They mention their disagreement with the legal reasoning used in the above-mentioned judgment of the appellate court and in the aforesaid decision of the Constitutional Court, and declared that it amounted overall to a violation of the rights to a fair trial and judicial protection recognized in Articles 8 and 25 of the American Convention. They say that the Constitutional Court was not and impartial tribunal, due to the removal of three of its members by the Congress, and to the fact that the remaining judges of that court lacked the requisite independence and impartiality to hear the case.   

B.          Position of the State  

          11.          With respect to Case 11.830, the State claimed that the proceedings in connection with the amparo suit brought by the petitioners were continuing before the Constitutional Court, and that the delay in reaching a decision was due to the need to safeguard the procedural guarantees of the parties involved. The State added that the claimants acted improperly in appealing to international jurisdiction, when there were available to them suitable procedural mechanisms under domestic law for challenging any acts or decisions that threaten or injure fundamental rights. 

          12.          With regard to the formal requirements for its admission, the State said that petition lodged by the petitioners had to be examined independently of their initial application for precautionary measures. The State claimed that the allegations made in the petition are unfounded. As to violation of the guarantee of due process, the State maintained that the petitioners did not during the proceedings before the courts file any action designed to stop the alleged violation of due process.  Accordingly, the Peruvian State considered that the failure to pursue the remedies provided by domestic law resulted in the loss of the right to petition the IACHR.          

          13.     The State argued that in the domestic sphere the Peruvian state has undergone a process of modernization and that, more specifically, the Congress has been redesigned, which has led to a 50% reduction in the overall number of members of Congress and the axing of a large number of jobs.  

          14.          The State held that the petition is inadmissible inasmuch as domestic remedies had not been exhausted at the time it was lodged.          

            15.          As to Case 12.038, the State requested its joinder to Case 11.830, since both concerned the same events and the same allegedly injured persons.

III.          ANALYSIS  

A. The Commission’s Competence ratione personae, ratione materiae and ratione temporis             

          16.          Under Article 44 of the American Convention the petitioners are entitled to lodge petitions with the IACHR.[1] Those petitions name as alleged victims individuals, in respect of whom Peru undertook to respect and ensure the rights enshrined in the Convention.[2] Insofar as the State is concerned, the Commission observes that Peru became a state party to the American Convention upon ratifying it on July 28, 1978. Accordingly, the Commission is competent ratione personae to examine the petitions. 

          17.          The Commission is also competent ratione materiae and ratione temporis, inasmuch as the facts alleged in the respective petitions tend to establish violations of rights protected by the American Convention, and by reason of that fact that the events in question have purportedly occurred during or after 1992, when the duty to respect and ensure the rights recognized in the Convention was in force for the Peruvian State.   

B.          Admissibility requirements for the petition 

a.          Exhaustion of domestic remedies 

18.          The Peruvian State claims that the petition in Case 11.830, received by the IACHR on October 18, 1997, was lodged prior to exhaustion of the remedies under domestic law. The decision of the Constitutional Court, which -both parties agree- exhausted the remedies under domestic law, was issued on November 24, 1997, and published on January 12, 1998. 

19.          In respect of the above, the Commission observes that the aforementioned petition was indeed lodged prior to exhaustion of the remedies under domestic law. Such a circumstance, however, is not stand in the way of its admissibility at the current stage of the case. The admissibility requirements to be met by a petition must be examined, generally speaking, at the moment at which the Commission pronounces on its admissibility. Article 46 of the Convention states that “[A]dmission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: a) that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.” With respect to the foregoing, the moment of lodging a petition is distinct from that of pronouncement on its admissibility. Article 33 of the Regulations of the IACHR, for instance, authorizes the Commission to ask the petitioner to complete the requirements omitted in the petition, should the Commission consider that the “petition is inadmissible or incomplete.”  

20.          To accept the argument of Peru to the effect that the aforementioned petition is allegedly inadmissible, inasmuch as at the moment it was lodged the remedies under domestic law had not been exhausted, in spite of the fact that at the present instance, as the Commission is pronouncing on admissibility, those remedies have been exhausted, would imply a formalistic decision totally at odds with the protection of the human rights enshrined in the Convention. Such a decision would also leave the alleged victims in a state of defenselessness, since the Commission would probably be unable to examine their case, even were a new petition concerning the same events to be lodged in the future. The Inter-American Court of Human Rights has held that “[I]t is generally accepted that the procedural system is a means of attaining justice and that the latter cannot be sacrificed for the sake of mere formalities.”

21.          The Commission concludes that the situation that must be taken into consideration in order to determine if the remedies under domestic law have been exhausted is that which exists at the moment of adopting a decision on admissibility. Consequently, the Commission finds that the requirement of exhaustion of the remedies under domestic law provided in Article 46 (1) (a) of the American Convention was met with the decision of the Constitutional Court issued on November 24, 1997, and published on January 12, 1998. 

22.          With respect to the petition in Case 12.038, the Commission observes that said petition was lodged on July 10, 1998, by which date the remedies under domestic law had been duly exhausted.  

b.          Filing Period  

          23.          The Commission finds that in Case 11.830 the petition was lodged prior to the date of the decision that exhausted domestic remedies, whereas in Case 12.038 the petition was received by the IACHR on July 10, 1998, in other words, before six months had elapsed following publication, on January 12, 1998, of the decision of the Constitutional Court that exhausted the remedies under domestic law. Therefore, the requirement established in Article 46 (1) (b) of the American Convention has been met.   

          c.          Duplication of proceedings and res judicata  

          24.          The Commission finds that the subject of the petition is not pending in another international proceeding for settlement, nor is the petition substantially the same as one previously studied by the Commission or by another international organization.  Accordingly, the requirements set forth in Articles 46 (1) (c) and 47 (d) have also been met. 

          d.          Nature of the violations 

          25.          The Commission believes that the facts alleged by the petitioners, if proven true, could constitute violations of rights protected by the American Convention. 

          IV.          CONCLUSIONS 

26.          The Commission concludes that it is competent to take up the petitions under review, and that, pursuant to Articles 46 and 47 of the American Convention, said petitions are admissible in the terms set out above.  

          27.          Based on the factual and legal arguments given above, and without prejudging the merits of the case,  


1.          To declare the above-mentioned petitions admissible as regards the alleged violations of the rights to a fair trial and to judicial protection protected in Articles 8 and 25, respectively, of the American Convention on Human Rights, without prejudging the merits of the matter.  

2.          To notify the petitioners and the State of this decision;

3.          To continue with its analysis of the merits of the case

4.           To publish this decision and to include it in its Annual Report to the OAS General Assembly.  

Done and signed at Brasilia, Brazil, on this the 15th day of June 2000.  Signed: Hélio Bicudo, Chair; Claudio Grossman, First Vice Chair; Juan Méndez, Second Vice Chair; Commission Members:  Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.


      [1] Without prejudice to its authority to pronounce on this point in its decision on the merits, the IACHR finds that in the case under review the legal standing of the petitioners has not been questioned.

      [2] In light of the fact that both the petition in Case 11.830 and that in Case 12.038 specifically name a number of ‑persons, while adding the phrase “and others”, and that while processing the case the IACHR has received from the petitioners various lists of names of alleged victims, as well as having also received joinder applications from other persons asking to be named as alleged victims, the IACHR regards as alleged victims all the persons covered by the decision of the Constitutional Court of November 24, 1997, who are specifically named in the annex to the instant report. The foregoing without prejudice to holding as alleged victims the respective relatives of the deceased persons who are on that list, or diminishing such decisions as the IACHR might adopt in respect of other incidents that might arise.

        [3] Inter-Am. Ct.H.R., Cayara Case, Preliminary Objections, Judgment of February 3, 1993, para. 42.



CASES 11.830 AND 12.038



1. Aguado Alfaro, José

48. Chávez García, Bladimir

95. Gonzáles Panuera, Luis

2. Aguilar Rojas, Felix

49. Cherrez Córdova, Rosa

96. Gonzáles Sánchez, Anabel Iris

3. Aguilar Rojas, Gisela

50. Chino Villegas, Wilfredo

97. Grández Alvarado César

4. Albornoz Alva, Luis Rodolfo

51. Chipana Quispe, Tiburcio

98. Guevara Gallo, Rodolfo

5. Alcántara Ramos, Juana

52. Chipana Rodríquez, Luis

99. Guzmán Rebatta, Juan

6. Aliaga Lama, Luis

53. Cisneros Urbina, Esther

100. Hayasshi Bejarano, Folgges Luis

7. Alvarado Achicahuala, Juan

54. Clerque Gonzáles, José

101. Hernández Fernández, Ricardo

8. Alvarado Galván, Eriberto Rodolfo

55. Cobeñas Pariamache, Felix

102. Herrera Madueño, Caro

9. Alvarado Suárez, Mónica Lourdes

56. Colán Villegas, Laura

103. Herrera Rojas, Lucas

10. Alvarez Gutiérrez, Marleni

57. Condezo Espinoza, Antonio

104. Herrera Valdez, Reynaldo

11. Ampuero Ampuero, Victor

58. Córdova Melgarejo, Antonia Elizabeth

105. Hijar Cerpa, Andrés

12. Angeles Ponte, Nancy Violeta

59. Cornelio Dávila, Hipólito

106. Hinojosa Silva, Jesús

13. Araca Sosa, José Raúl

60. Cornelio Figueroa, Daysi

107. Hinostroza Toro, Tito

14. Arcos Díaz, Cecilia

61. Coronado Peña, José Raúl

108. Huamán Cárdenas, Juan

15. Arévalo Torres, Rosa

62. Cuadros Livelli, Manuel

109. Huamán Trinidad, Wilfredo Emilio

16. Arias Infantes, Guillermo

63. Cubas Vásquez, Lupo

110. Huamantumba Vásquez, Mery

17. Arnez Macedo, Daniel

64. De la Cruz Paredes, Marcial

111. Huaraca Vargas, Olimpio

18. Atauje Montes, Máximo

65. De la Cruz Paredes, Walter

112. Huaranga Soto, María

19. Ayala Palomino, Herlinda

66. Del Aguila Chamaya, Dully

113. Hurtado Gutiérrez, Miguel

20. Ballarta Rueda, Alfredo

67. Del Castillo Meza, Victor

114. Ibánez Ortiz, Sara

21. Barba Ureña, Telmo Jaime

68. Delgado Gómez, Juan Francisco

115. Ibarra Nato, Susana

22. Barbarán Quispe, Jaime

69. Delgado Suárez, Raquel

116. Inga Coronado, María

23. Bautista Apolaya, Max

70. Dergán Alcántara, Gloria

117. Infantes Vásquez, María

24. Begazo Salazar, Zoila Luz

71. Dextre Cano, Edgar

118. Jaimes Cano, Marco Antonio

25. Belleza Cabanillas, Inés

72. Dextre Ordóñez, Edison

119. Kitano la Torre, Elsi Judith

26. Bellido Orihuela, Augusto

73. Díaz Campos, Flavio

120. La Cruz Crespo, Carlos

27. Beltrán Aguilar, Leoncio

74. Díaz Céspedes, Nina

121. Loayza Arcos, Lucy

28. Bereche Riojas, Lidia

75. Díaz López, Orlando

122. Lozano Muñoz, Julio

29. Bracamonte Chiringano, Juana

76. Echevarría Flores, Gumercinda

123. Luna Aragón, Elizabeth

30. Bravo Sarco, César Augusto

77. Echevarría Suárez, Ruth Cecilia

124. Magallan Galoc, Jakeline

31. Burga Cardozo, Vilma

78. Elera Molero, Luis

125. Malpartida Gutierrez, Héctor

32. Cabanillas Toro, Guadalupe

79. Erquiñigo Ramón, Santiago

126. Marchena Alva, Jorge

33. Cabrera Enríquez, Alfredo

80. Espinoza Fernández, Féliz

127. Margarito Silva, Manuel

34. Cajusol Bances, Juan

81. Eugenio Centeno, Virginia

128. Marrugarra Neyra, Luis

35. Callirgos Tarazona, Ricardo

82. Fernández Sare, Adolfo

129. Medina Ramírez, Sergio Alejandro

36. Camargo Matensio, Henry

83. Ferradas Nuñez, Pablo Jorge

130. Meléndez Saavedra, Inés

37. Campos Alarcón, Dana

84. Flores Guillén, Lilia Carolina

131. Menacho Salas, Aquilino

38. Cánepa Campos, Rosa

85. Flores Salinas, Javier

132. Mendoza Michuy, Manuel

39. Cárdenas Pinto, Herver Victor

86. Gallegos Ramírez, Luz

133. Molina Ugarte, Noemi

40. Carranza Rodríguez, Manuel

87. Galvez Saldaña, Nélida

134. Montalván Alvarado, César

41. Carrillo Quiñones, Elizabeth

88. Ganoza Rivera, Jorge

135. Montes Pacora, Hugo

42. Castro Salvatierra, Teodoro

89. García Huallpa, Ana María

136. Montes Yacsahuache, Hugo

43. Ccapali Atoccsa, Irene

90. García Vergara, Segundo

137. Montoya Luna, Jaime Jhonny

44. Ccapali Atoccsa, Zenón

91. Gimeno Aleman, Cecilia Victoria

138. Moreno Gonzáles, Margarita

45. Chala, Sergio Antonio

92. Gonzáles Castillo, Ricardo

139. Mujica Esquivel, Liz

46. Changanaqui Chávez, José

93. Gonzáles Figueroa, Máximo

140. Muñoz Jesús, Berilda

47. Chara Pacheco, Luisa

94. Gonzáles Guillén, Gustavo

141. Murillo de Díaz, Rosa Isabel


142. Navarro Sánchez, Jorge

188. Rivera Martinez, Nelly

234. Urrunaga Linares, Victor Manuel

143. Navarro, Delano Marcelo

189. Rodas Romero, Julio

235. Valdez Rivera, Angela

144. Nizama Zelaya, Víctor

190. Rodríguez Briones, Johel

236. Valdez Tellez, Hilda

145. Núñez Centeno, Victor

191. Rodriguez Campos, Rommy Cecilia

237. Valeriano Sebastián, Bonifacio Ramón

146. Núñez Morales, Carmen

192. Rodríguez Espada, Eugenio

238. Varias Trabanco, Freddy

147. Ordoñez Quispe, Marco Antonio

193. Rodríguez Garcia, Elisa

239. Vásquez Leguía, Oscar

148. Ore León, Jorge

194. Rodríguez Reaño, Vicente Waldo

240. Vásquez Quesada, Juan

149. Orrillo-Vásques Torres, Flavia

195. Rojas Cortez, Victor

241. Vásquez Quiñones, Soledad

150. Ortega Martell, Carlos

196. Rojas Figueroa, Luis

242. Vásquez Sánches, Fidel

151. Owada Amado, Oscar

197. Rojas Vega, Irma

243. Vega Díaz, Ivan Alex

152. Pacheco Munayco, Jorge

198. Roman Toro, Isaías

244. Velásquez Machuca, Edgard

153. Paitán Mauricio, Catalina

199. Romero Chang, María

245. Vereau Palma, Cita

154. Pajares Godoy, Moises

200. Saavedra Ambrosio, José

246. Vera Vitoriño, Elizabeth

155. Paredes Cubas, Rosa

201. Saavedra Mego, Violeta

247. Vidal Vidal, Eva

156. Paredes Cubas, Walter Roberto

202. Saavedra Vega, Armando

248. Villar Contreras, José

157. Páucar Dávila, Rebeca

203. Salas Sobrino, Frida

249. Villareal Rodríguez, Hermelinda

158. Pedreschi de Berróspi, Graciela

204. Salazar Caycho, Eduardo

250. Villegas Guerra, Wilburt

159. Peredo Cavassa, Alicia

205. Salazar Venegas, María

251. Vizcarra Zorrilla, Neyda

160. Peredo Cavassa, Mario

206. Salcedo Olivares, Liduvina

252. Zapata Zapata, Rosario

161. Pérez Guevara, César

207. Sánchez Alarcón, Reyna

253. Zapata Espinoza, Elsa Silvia

162. Pérez Polo, Rosalía

208. Sánchez Campos, Luz

254. Zavaleta Saavedra, Carmen

163. Pereyra Salazar, Walter

209. Sánchez Candia, Raúl

255. Zegarra Castro, David Orlando

164. Pichilingue Romero, Teresa

210. Sánchez Lozano, Juan Carlos

256. Zegarra Zevallos, Segundo

165. Pilco Guerra, Luisa

211. Santibañez Velásquez, Oscar

257. Zumaeta Flores, Ivan

166. Pizarro Sanchez, Consuelo

212. Santisteban, Urmeneta, Ronald


167. Pohll Luna, Amelia Rosario

213. Sarnaqué Vargas, César


168. Polo Castañeda, Agustín Miguel Arturo

214. Silva Baca, Elieberto


169. Purizaca Arámbulo, José

215. Silva Baca, Victor


170. Quineche Díaz, María Elena

216. Silva Delgado, Iván


171. Quiñónes  Atalaya, Lira

217. Sipán Guerra, Javier


172. Quiñónes Díaz, Manuel

218. Solís Martell, Clemencia


173. Quiñónes Seminario, Pedro

219. Solís Retuerto, Wilder


174. Ramírez Cadenas, Jacinta

220. Solís Roca, Eleuterio


175. Ramírez Granados, Margarita

221. Soria Cañas, Edith


176. Ramírez Rodríguez, Mónica Emperatriz

222. Sosa Alvarez, Carmen


177. Ramos de la Cruz, Elmi

223. Soto Santana, Giovanna Elset


178. Ravello Velásquez, John

224. Soto Santana, Walter


179. Retuerto Aranda, Rómulo

225. Sotomayor Vargas, Rubén Javier


180. Revelo Infante, Ronald Luciano

226. Talledo Añazco, Luz Angélica


181. Reyes Caballero, Rubén

227. Torres Hoyo, Lety


182. Ribotte Rodríguez, Roberto

228. Torres Martínez, Juan


183. Rigaid Arevalo, Julio Antonio

229. Torres Prieto, Rolando Alfonso


184. Rivas Cappelletti, Carlos

230. Uchuya Chacaltana, Leoncio


185. Rivas Chara, Jorge Martín

231. Ugarte Pierrend, Juana


186. Rivera Delgado, Bertha

232. Unzueta Medina, Carlos


187. Rivera Loayza, Carmen

233. Urquiza Alcántara, Ronald




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