Workers of the Metropolitan Municipality of Lima and the Municipal Services Company of Lima v. Peru, Case 12.084, Report No. 85/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 266 (2001).
REPORT No. 85/01
WORKERS OF THE METROPOLITAN MUNICIPALITY OF LIMA
AND THE MUNICIPAL SERVICES COMPANY OF LIMA, PERU
October 10, 2001
On January 13, 1999, the Inter-American Commission on Human Rights
(hereinafter referred to as the Inter-American Commission, Commission,
or IACHR) received a petition from the Union of Municipal Workers
of Lima (SITRAMUN-LIMA), the Federation of Municipal Workers of Peru (FETRAMUNP),
and the Lay-Offs Committee of the Municipal Maintenance Services Company of
Lima (ESMLL) (hereinafter referred to as petitioners) against
the Republic of Peru (hereinafter Peru, Peruvian State,
or State). The petitioners
allege that the Metropolitan Municipality of Lima has failed to comply with
judicial decisions ordering it to re-employ laid-off workers (employees and
laborers), to rescind wage reductions, and to comply with collective labor
agreements. The petitioners maintain
that these instances of noncompliance constitute a violation by the Peruvian
State of the right to judicial protection established in Article 25 of the
American Convention on Human Rights (hereinafter referred to as the American
Convention or Convention).
The state has not responded to this petition.
The IACHR, pursuant to the provisions of Articles 46 and 47 of the
American Convention, decided to admit the petition inasmuch as possible violations
of Articles 1(1) and 25(2.c) of the American Convention are concerned, and
to initiate procedures to determine the merits of the case.
The Commission also decided to notify the parties of this decision
and to publish it and include it in its Annual Report to the OAS General Assembly.
PROCEDURES OF THE COMMISSION
On January 19, 1999, the Commission sent the pertinent portions of
the complaint to the Peruvian State and asked it to submit information within
a period of 90 days. On March
4, 1999, a hearing was held by the IACHR at the petitioners request.
On April 14, 1999, the Mayor of Lima, Mr. Alberto Andrade Carmona,
submitted an amicus curiae response,
both on his own behalf and on behalf of the Metropolitan Municipality of Lima.
On April 19, 1999, the Peruvian State requested that the time for submitting
information be extended. On June
4, 1999, the Commission granted the request for an extension of 90 days, counting
from the date the extension was granted.
On June 9, 1999, the IACHR made itself available to the parties to
initiate friendly settlement proceedings.
This was accepted by both parties.
On June 11, 1999, the Commission sent additional information provided
by the petitioners to the State and asked it to submit information within
60 days, counting from that date. On
September 10, 1999, the IACHR advised the State that it agreed to suspend
the deadline set in the letters from the IACHR dated June 4 and 11, 1999.
Between September 1999 and June 2000, the parties reported periodically
to the Inter-American Commission on the status of the negotiations they were
conducting to seek a possible friendly settlement.
On October 13, 2000, a working meeting was held between the IACHR and
both parties at IACHR headquarters.
At that meeting, the petitioners reported that on March 15, 2000, they
had reached an agreement on a friendly settlement with the State, and that
they had signed a document to that effect.
The State indicated that the persons who had signed the document pertaining
to the friendly settlement had acted beyond their authority, and that it did
not recognize that document as valid.
On October 31, 2000, the State requested the IACHR to go on with friendly
settlement proceedings. On November
3, 2000, the Commission confirmed to both parties that it was prepared to
assist in seeking a friendly settlement, and it established a period of 17
days for that purpose. On November
20, 2000, the State asked the IACHR to consider the friendly settlement process
as concluded, and the petitioners presented the same request on November 24,
On April 6, 2001, the State reported that it had set up a multisectoral
negotiating committee to be in charge of seeking possible solutions in an
attempt to conclude a friendly settlement in the present case.
On June 4, 2001, the Commission was informed that, by Ministerial Resolution
N° 114-2001-PCM, the State had
decided to consider the work of that multisectoral committee as finished,
and to have the present case resolved on the basis of the decision adopted
by the Inter-American Commission on Human Rights in accordance with the procedure
On August 24, 2001, the Commission formally concluded its participation
in the friendly settlement procedure in the present case and advised the State
that the suspension of the deadlines referred to in the IACHRs letter
of September 20, 1999, was null and void.
At the same time, the IACHR requested that the State file its response
to the petition within thirty days.
The State responded on September 21, 2001.
POSITION OF THE PARTIES
Position of the petitioners
They allege that the Metropolitan Municipality of Lima has not complied
with the judicial decisions ordering it to re-employ the workers (employees
and laborers) who had been laid off, to rescind the wage reductions, and to
comply with collective labor agreements.
In this regard, the petitioners reported in their original complaint
that, as of that point in time, the Metropolitan Municipality of Lima had
failed to comply with the following decisions:
judgment of February 6, 1997, issued by the Corporate Court Specializing in
Public Law [Sala Corporativa Especializada
en Derecho Público]; in execution of that decision, on June 13, 1997,
the competent lower court [Juzgado de Primera Instancia] ordered the Metropolitan Municipality
of Lima to reinstate over 400 workers in that municipality who had been affected
by various resolutions according to which said workers were dismissed for
redundancy. These dismissal resolutions
were issued pursuant to Mayoral Resolution N° 033-A-96, dated January 16,
1996, which ordered a workers evaluation process.
judgment of September 23, 1998, issued by the Corporate Court Specializing
in Public Law; in execution of that decision, on November 19, 1998, the competent
lower court ordered the Metropolitan Municipality of Lima to reinstate the
workers in that municipality affected by Resolution No. 3776, issued on December
7, 1996, pursuant to which 318 workers of the Municipality of Lima had been
dismissed. The plaintiffs in the proceeding that gave rise to those decisions
were Mrs. Victoria Lavaro Yaca and others.
judgment of November 16, 1998, issued by the Corporate Court Specializing
in Public Law; in execution of that decision, on December 23, 1998, the competent
lower court ordered the Metropolitan Municipality of Lima to reinstate 483
workers of that municipality affected by various resolutions providing for
the dismissal of those workers, on the basis of Mayoral Resolution No. 575
dated April 1, 1996. That Resolution had declared a strike illegal and had warned
workers not to participate in it, on threat of administrative sanctions.
judgment of December 10, 1997, issued by the Constitutional Court, in application
of which the competent lower court, on October 19, 1998, ordered that the
Metropolitan Municipality of Lima settle, for the benefit of its workers,
the difference corresponding to the reduction in their wages that had been
approved by Mayoral Resolution N° 044-A-96, which resulted in a thirty percent
decrease in the wages and pensions of all the workers.
judgment issued on November 18, 1998 by the Corporate Court Specializing in
Public Law, in execution of which the competent lower court, on December 22,
1998, ordered that the Metropolitan Municipality of Lima comply with the collective
labor agreements concluded between 1989 and 1995, including their effects
on wages and other compensation, and the unpaid wages from September to December
judgment issued on July 27, 1998 by the Corporate Court Specializing in Public
Law, in execution of which on September 22, 1998, the competent lower court
ordered the Metropolitan Municipality of Lima to rescind Ordinance Nº 117
dated July 4, 1997, which provided for the continued application of Law 26093
and for the continued practice of evaluations and for further dismissals for
judgment of April 3, 1998, issued by the Constitutional Court, which ordered
the reinstatement to the Metropolitan Municipality of Lima of 16 workers who
had been dismissed pursuant to Mayoral Resolutions Nº 572, 914, 1041, 1028,
1048, 1085, 1124, 1249, 1250, 1254, 1255, 1259, 1300, 1306, 1366, 1370, 1963,
1970, 1971, and 1988.
judgment of July 14, 1998, issued by the Corporate Court Specializing in Public
Law, in execution of which the lower court, on September 24, 1998, ordered
the Metropolitan Municipality of Lima to reinstate five workers who were dismissed
by Mayoral Resolutions Nos. 786, 895, 899, 1252, and 1260.
judgment of May 13, 1998, issued by the Constitutional Court, in execution
of which the lower court, on November 30, 1998, ordered the Metropolitan Municipality
of Lima to reinstate four workers who were dismissed by Mayoral Resolutions
Nº 848, 911, 1037, and 2020.
judgment of October 16, 1998, issued by the Constitutional Court, which ordered
the Metropolitan Municipality of Lima to reinstate a worker who was dismissed
by Mayoral Resolution N° 1151.
judgment of June 6, 1997, issued by the Corporate Court Specializing in Public
Law, in execution of which, on January 19, 1998, the competent lower court
ordered the Metropolitan Municipality of Lima to reinstate three workers of
that municipality who had not reached an agreement with the Municipality regarding
compliance with the aforesaid decision and who insisted on their reinstatement,
in accordance with the decision referred to.
judgment dated July 8, 1998, issued by the Constitutional Court, in execution
of which the competent lower court, on November 25, 1998, ordered the Metropolitan
Municipality of Lima to reinstate the workers of the Municipal Maintenance
Services Company of Lima (ESMLL) who had not collected their social benefits.
Position of the State
The State did not file a response to the allegations by the petitioners,
nor did it question the admissibility of the petition under consideration.
In its response dated September 21, 2001, the State indicated that
it had decided to wait for the decision to be adopted by the honorable
The Commission undertook an analysis of the requirements for admissibility
of a petition, as established in the American Convention.
Competence of the Commission
ratione personae, ratione loci, ratione temporis, and ratione
The petitioners are authorized by Article 44 of the American Convention
to lodge complaints with the IACHR.
According to the petition, the presumed victims are private individuals,
in respect of whom Peru has undertaken a commitment to respect and guarantee
the rights enshrined in the American Convention.
In this regard, and for the purposes of this report on admissibility,
the Commission considers as presumed victims in this matter all the workers
(employees and laborers) covered by the decisions referred to in paragraph
10 above, or their surviving family members, as applicable.
This does not preclude the possibility that the Commission, having
heard the arguments of the parties on the matter, could make a final determination
as to the presumed victims and the decisions included in the case when it
decides on the merits of the case. As
far as the State is concerned, the Commission observes that Peru has been
a State party to the American Convention since July 28, 1978, the date it
deposited its instrument of ratification.
Therefore, the Commission has competence ratione
personae to consider the petition.
Commission has jurisdiction ratione
loci to consider this petition, because the petition alleges violations
of the rights protected by the American Convention that occurred within the
territory of a state party to that agreement.
The IACHR has jurisdiction ratione
temporis because the events alleged in the petition took place when the
obligation to respect and guarantee the rights established in the Convention
were already in effect in the Peruvian State.
Finally, the Commission has jurisdiction ratione
materiae, because the petition reports violations of human rights protected
by the American Convention.
Requirements for admissibility of the petition
Exhaustion of domestic remedies
The petition under consideration refers to noncompliance with court
decisions which ordered the Metropolitan Municipality of Lima to reinstate
workers (employees and laborers) who had been dismissed, to rescind wage reductions,
and to comply with collective labor agreements.
The State has not submitted any pleas in relation to the requirement
that domestic remedies be exhausted.
On this point, the Inter-American Court has stated that in order
for a plea arguing failure to exhaust domestic remedies to be timely, it must
be submitted in the early stages of the proceeding, and failure to do so may
be presumed as tacit relinquishment by the state in question of its right
to avail itself of that plea.
The Commission considers that the requirement specified in Article
46(1)(a) of the American Convention has been met.
Deadline for lodging the petition
With regard to the requirement in Article 46(1)(b) of the Convention,
which stipulates that the petition must be lodged within a period of six months
from the date on which the victim was notified of the final decision on exhaustion
of domestic remedies, the Commission confirms its position as follows:
with a final judicial decision constitutes a continued violation by the persisting
States and is a permanent infringement
of Article 25 of the Convention, which establishes the right to effective
judicial protection. Consequently,
the requirement pertaining to the period for lodging petitions, as specified
in Article 46(1)(b) of the American Convention, does not apply in these cases.
In accordance with the foregoing, the requirement pertaining to the
period for filing petitions, as specified in Article 46(1)(b) of the American
Convention, is not applicable to the case in point, since what was submitted
to the IACHR for its consideration was an allegation of continued noncompliance
with the judgments issued by the Constitutional Court, the Corporate Court
Specializing in Public Law, and the lower courts, which ordered that the dismissed
workers (employees and laborers) be reinstated, that the wage reductions be
rescinded, and that collective labor agreements be honored. In this regard, the Commission finds that the petition in question
was lodged within a reasonable period of time, pursuant to the terms of Article
32 of its Regulations, equivalent in content to the terms of Article 38 of
the Regulations pertaining to the deadline for presentation of petitions.
Duplication of procedures and res
The Commission understands that the subject of the petition is not
pending other international settlement procedures, nor is it a replication
of another petition already considered by the Commission or another international
organization. Therefore, the requirements established in Articles 46(1)(c)
and 47(d) of the Convention have been met.
Description of the facts
The Commission considers that the statement by the petitioners refers
to facts which, if proven, could represent a violation of the right to judicial
protection established in Article 25(2)(c) of the American Convention, and
a violation of the obligation to respect the rights referred to in Article
1(1) of said Convention.
The Commission concludes that it is competent to consider this petition
and that it is admissible, pursuant to Articles 46 and 47 of the American
On the grounds of the above-mentioned arguments based on the facts
and the law, and without prejudging the merits of the matter,
To declare the petition admissible in respect of possible violations
of Articles 1(1) and 25(2)(c) of the American Convention on Human Rights.
To notify the parties of this decision.
To initiate proceedings on the merits of the case.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human Rights,
in Washington, D.C., on the 10th of October, 2001.
Signed by Claudio Grossman, President; Juan Méndez, First Vice-President;
Marta Altolaguirre, Second Vice-President; and, Commissioners Hélio Bicudo,
Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Inter-American Court of
Human Rights, Velásquez Rodriguez Cae, Preliminary Pleas, Decision of
June 26, 1987, Series C, Nº 1, par. 8; Fairén Garbi and Solis Corrales
Case, Preliminary Pleas, Decision of June 26, 1987, Series C, Nº 2, par.
87; Gangaram Panday Case, Preliminary Pleas, Decision of December 4, 1991,
Series C, Nº 12, par. 38; Loayza Tamayo Case, Preliminary Pleas, Decision
of January 31, 1996, Series C, Nº 25, par. 40.
1998 Annual Report, Report N°
75/99 César Cabrejos Bernuy, Case
11.800 (Peru), par.