Cesar Cabrejos Bernuy v. Peru, Case 11.800, Report No. 75/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 258 (1999).
CESAR CABREJOS BERNUY
May 4, 1999
On August 28, 1997, a petition was filed before the Inter-American
Commission on Human Rights (hereinafter "the Commission”) by the nongovernmental
organization, Asociación Pro Derechos
Humanos (APRODEH), denouncing that the Republic of Peru (hereinafter “Peru,”
“the State,” or “the Peruvian State”) had violated the human rights of Mr.
César Cabrejos Bernuy (hereinafter the “petitioner”), by failing to comply
with a court order to reinstate him in the position of Colonel in the National
Police. The petitioner alleges
that, through contempt of court, the State infringed his right to judicial
protection, established in Article 25 of the American Convention on Human
Rights (hereinafter the “Convention” or the “American Convention”). The State
alleges that the case is inadmissible, claiming the victim failed to exhaust
domestic remedies. The Commission believes that the requirement to exhaust
domestic remedies is not applicable here, finds the case admissible, and decides
to conduct an in-depth examination into the matter and to place itself at
the disposal of the parties involved, with a view to reaching a friendly settlement
on the basis of respect for the human rights enshrined in the Convention.
II. PROCEEDINGS BEFORE THE COMMISSION
On September 2, 1997, the Commission opened the case, forwarded the
pertinent parts of the petition to the Peruvian State, and requested the latter
to provide information within a period of 90 days.
The State responded on December 3, 1997, and, on December 17th,
the Commission forwarded to the petitioner the pertinent parts of the Peruvian
State’s response. The petitioner
did not present any observations regarding the State’s response.
III. POSITIONS OF THE PARTIES
The petitioner claims that Mr. César Cabrejos Bernuy had served in
the National Police for 22 years when, on July 31, 1990, he was relieved of
duty, along with 94 other colonels of the National Police, as part of a supposed
The petitioner says that the aforesaid discharge took place amid a
big media campaign, in which the discharge of the officers was presented as
an anti-moral measure, thereby affecting his right to
honor and reputation.
Mr. Cabrejos Bernuy instituted administrative proceedings against the
decision to discharge him, and later, in a judicial proceeding, filed a writ
of amparo, which was admitted by the Chamber of Constitutional and Social
Matters of the Supreme Court of Justice on June 5, 1992.
The aforementioned decision ordered the reinstatement of Mr. Cabrejos
The petitioner claims that, despite repeated requests to the Judiciary
for the judgment to be complied with--and even the intervention of the Congress--the
Police did not comply with the court order.
Finally, on December 28, 1995, through Supreme Resolution Nº 1389-95-IN/PNP
the National Police ordered the victim’s return to active service, effective
December 27 of the same year.
However, by order of Supreme Resolution Nº 1445-95-IN/PNP of December
29, 1995, effective as of December 27, 1995, Mr. Cabrejos Bernuy was again
relieved of duty by the National Police, again on grounds of a staff reorganization.
Faced with this situation, Mr. Cabrejos Bernuy went first before the Fifth
Civil Court in Lima and then before the Superior Court.
The latter declared inapplicable the new administrative resolution
which prescribed that the victim be relieved of duty.
The petition says that subsequently Mr. Cabrejos Bernuy was again reinstated,
under Supreme Resolution Nº 0227-97-IN/PNP of March 19, 1997.
However, by means of Supreme Resolution Nº 0237-97-IN/PNP of March
26, 1997 of the same year, he was again relieved of duty once more on grounds
of staff reorganization.
In light of this situation of manifest and repeated disobedience of
court decisions, the petitioner considers that his right to judicial guarantees
and to effective judicial protection, embodied in Article 25 of the Convention,
has been violated.
The Peruvian State maintains that the petitioner did not exhaust the
domestic remedies offered under Peruvian Law since he did not institute another
amparo proceeding against the third resolution relieving him of duty
and, consequently, that the petition should be declared inadmissible.
IV. ANALYSIS OF ADMISSIBILITY
The Commission must analyze the admissibility requirements for a petition
set forth in the Convention.
Competence ratione materiae, ratione personae, and ratione temporis of the Commission
With regard to subject matter jurisdiction, the Commission finds that
the events set forth by the petitioner, which went undisputed by the State,
show that there is a final judgment dated June 5, 1992 ordering the reinstatement
of Mr. Cabrejos Bernuy to his position within the National Police. The petitioner
claims that this order has not been executed and that although the National
Police had decided twice to reinstate Mr. Cabrejos Bernuy to his position,
in reality he never was reinstated, since immediately afterwards new resolutions
were passed relieving him of duty.
Article 25 of the Convention specifically stipulates that States parties
undertake to ensure that the competent authorities enforce any remedies stemming
from simple and prompt recourse, or any other effective recourse, for protection
against acts that violate a person's basic rights. The Commission therefore
has competence ratione materiae
to decide whether or not the alleged failure to enforce the June 5, 1992 decision
of the Chamber of Constitutional and Social Matters of the Supreme Court of
Justice, resulting from the writ of amparo
filed by Mr. Cabrejos Bernuy, constitutes a violation by the Peruvian State
of Article 25 of the Convention. Consequently, in the matter raised by the
petitioner, the Commission is competent ratione
personae to hear this case.
Regarding competence ratione
personae, the Commission finds that the petitioner is accusing the Peruvian
State of violating human rights enshrined in Article 25 of the Convention.
Since Peru ratified the Convention on July 28, 1978, the Commission has competence
ratione personae to hear this case, as expressly provided for in Article
33 of the Convention. Regarding
the petitioner, the Commission notes that the Asociación Pro Derechos Humanos (APRODEH) is a legally recognized
nongovernmental organization in Peru and therefore, pursuant to Article 44
of the Convention, may present petitions
to the Commission.
Regarding competence ratione
temporis, the Commission finds that the alleged transgression took place
from 1992 on, i.e. after 1978 when Peru ratified the American Convention.
The Commission therefore finds that it has competence ratione
temporis to hear this case.
Admissibility requirements for the petition
a. Exhaustion of domestic
In his petition, the petitioner argues that the Constitutional and
Social Chamber of the Supreme Court’s decision of June 5, 1992, is binding
and therefore no appeal is required to that end. Furthermore he maintains
that he was reinstated and again relieved on December 28, 1995, and that although
no appeal is required to give effect to a decision emanating from a decision
handed down by the Supreme Court of Justice, the fact is the victim went before
the Fifth Civil Court in Lima and then the Superior Court to request compliance
with the verdict and the Superior Court declared inapplicable the second administrative
resolution that again ordered the victim’s discharge.
Given the above, the petitioner claims that the National Police reinstated
him to his position only to immediately relieve him of duty again, through
a third resolution identical in content to the previous ones.
State maintains that the petitioner should have filed another writ of amparo
against the third resolution relieving him of duty.
The Commission found that "where a State claims that a petitioner
has failed to discharge the requirement of exhaustion, the former bears the
burden of indicating the specific remedies which remain available and effective".
In the case in question, the State argues that in order to exhaust domestic
remedies, the victim would have had to file a new writ of amparo against the third resolution relieving him of duty. The Commission
finds this argument to be groundless. The petitioner's claim does not in fact
refer to the third resolution relieving the victim of duty on March 26, 1997,
but rather to the on-going failure to enforce the judgment of the Chamber
of Constitutional and Social Matters of the Supreme Court of Justice handed
down on June 5, 1992 ordering his reinstatement.
20. Insomuch as the State failed to fulfill
its procedural duty to indicate the specific domestic remedies that remained
available and effective for the victim to have the aforementioned June 5,
1992 judgment of the Supreme Court of Justice enforced, the Commission finds
that this case falls under the exception set forth in Article 46(2)(a) of
the Convention, which stipulates that the requirement to exhaust domestic
remedies set forth 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
b. Deadline for lodging
regards the admissibility requirement established in Article 46(1)(b) of the
Convention that petitions are to be lodged within a period of six months from
the date on which the victim was notified of the final judgment exhausting
domestic remedies, the Commission finds that this requirement is also not
applicable in this case, since the exception set forth in Article 46(2)(a)
of the Convention as stated above is applicable, so is the exception referring
to the time frame in which a petition must be lodged, as set forth in Article
46(2) of the Convention.
Without prejudging the merits of the case, the Commission must add
that failure to enforce a final judgment is an on-going violation by States
that persists as an infraction of Article 25 of the Convention, which sets
forth the right to effective judicial protection. Therefore, in such cases,
the requirement regarding the deadline for lodging a petition, set forth in
Article 46(1)(b) of the American Convention, is not applicable.
c. Duplication of proceedings
and res judicata
To the Commission’s knowledge the subject
of the petition is not pending in another international proceeding for settlement,
nor is it substantially the same as one previously studied by the Commission
or by another international organization. Therefore, the requirements
established in Articles 46(1)(c) and 47(1)(d) are also satisfied.
d. Characterization of
The Commission considers that the facts set out by the petitioner tend
to establish a violation of the rights guaranteed by the Convention, since
as established above, the matter at hand is whether or not the alleged failure
to enforce a judgment of the Supreme Court of Peru constituted a violation
of the Convention on the part of Peru.
The Commission considers that it is competent to receive this case
and that the petition is admissible pursuant to the requirements set forth
in Articles 46 and 47 of the Convention.
Based on the de facto and
de jure arguments set out above, and without this in anyway constituting
a ruling on the merits of the case,
THE INTER-AMERICAN COMMISSION ON
To declare the present case admissible.
To notify the Peruvian State and the petitioner about this decision.
To continue to examine the merits of the case.
4. To place itself at the disposal of the parties, with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in the Convention. The Commission invites both parties to reply on their willingness to initiate such a friendly settlement process.
To publish this decision and include it in the Commission’s Annual
Report to the General Assembly of the Organization of American States.
and signed in the city of Washington, D.C., on the 4h day of the
month of May, 1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First
Vice-Chairman; Claudio Grossman, Second Vice-Chairman; Commissioners: Alvaro
Tirado Mejía, Carlos Ayala Corao and Jean Joseph Exumé.
 IACHR, María Eugenia Morales de Sierra Case, Report Nº 28/98, Case 11.625 (Guatemala) published in the Annual Report of the Commission 1997, paragraph 28. See also Article 37(3) of the Regulations of the Commission and, for example, the Inter-American Court of Human Rights, Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, Series C, Nº 1, Para. 88.
Regarding the alleged on-going failure to enforce the judgment and the
judicial remedies exercised fruitlessly, please see, for the purpose of
comparison, IACHR General Gallardo Case, Report Nº 43/96, Case
11.430 (Mexico), published in the Annual Report of the IACHR 1996,
starting on page 585 in the Spanish text.