National Federation of Maritime and Port Workers of Peru, Félix Campos Caipo, Sergio Valdivia Ayala, Asisclo Chinapro Fernández, Víctor Briceño Miranda et al v. Peru, Case 12.319, Report No. 86/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 273 (2001).
FEDERATION OF MARITIME AND PORT
OF PERU (FEMAPOR)
CAMPOS CAIPO, SERGIO VALDIVIA AYALA,
ASISCLO CHINAPRO FERNÁNDEZ, VÍCTOR BRICEÑO MIRANDA AND OTHERS
4.101 MARITIME AND RIVER WORKERS
October 10, 2001
On November 10, 1998, the Inter-American Commission on Human Rights
(hereinafter Inter-American Commission, Commission,
or IACHR) received a petition lodged by the National Federation
of Maritime and Port Workers of Peru (FEMAPOR) (hereinafter petitioner)
against the Republic of Peru (hereinafter Peru, Peruvian
State, or State).
The petitioner alleges that the Peruvian State has failed to comply
with the decision of the Supreme Court of the Republic dated February 12,
1992. The petitioner maintains
that this noncompliance constitutes a violation by Peru of the human rights
of the Maritime and Port Workers of Peru and their family members.
The State has not questioned the admissibility of the petition.
Pursuant to the provisions of Articles 46 and 47 of the American Convention
on Human Rights (hereinafter referred to as American Convention
or Convention), the IACHR decided to admit the petition, insofar
as possible violations of Articles 1(1) and 25(2)(c) of the American Convention
are concerned. The Commission
further 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
The IACHR received the petition on November 10, 1998. On December 17,
1999, the petitioner submitted the additional information requested by the
Commission. On August 17, 2000, the IACHR transmitted the relevant parts
of the complaint to the Peruvian State and asked it to submit information
within a period of 90 days. On
April 23, 2001, the IACHR made itself available to the parties to initiate
a friendly settlement procedure.
On May 18, 2001, the Commission reiterated its request to the State
for information. On June 25,
2001, the State submitted its response.
POSITION OF THE PARTIES
Position of the petitioner
Petitioner states that up to March 11, 1991, the approximately 4,106
maritime workers, who are organized locally into unions and affiliated nationally
with FEMAPOR, were working on a rotation basis, according to the pertinent
legal provisions. In this way,
they assured that the various port jobs were performed exclusively by those
workers, who were duly registered with their unions at each port and were
working for many different employers, including maritime agencies, shipping
companies, and the National Ports Company [Empresa
Nacional de Puertos], and administered by the Maritime Labor Control Commission,
[Comisión Controladora del Trabajo Marítimo] (CCTM), an agency belonging
to the Ministry of Defense, which was established by Supreme Decree in 1935.
Petitioner reports that by another Supreme Decree (N° 054-91 PCM),
dated March 11, 1991, the government appointed a Dissolution Committee responsible
for liquidating the above-mentioned Maritime Labor Control Commission
(CCTM). To do this, the Committee
first had to perform the following functions:
a) Sell the assets of the CCTM and the Maritime and River Labor Offices
that were not transferred to the Ministry of Defense and the Ministry of Transportation
and Communications, pursuant to Supreme Decree N° 054-91-PCM;
b) Recover the debit balances charged to employers and other debts
of CCTM and its offices; c) Pay the social benefits and entitlements of the
workers in the different maritime unions under the jurisdiction of the agencies
referred to; d) Pay the social benefits and entitlements of the administrative
workers employed by CCTM and the river offices; e) Determine the method of
payment of pensions to beneficiaries of the Vested Rights Fund of the former
welfare system, stevedores registered at Callao port (FODASA); and f) Perform
other tasks that were part of the liquidation process.
Petitioner further states that to ensure that these jobs were performed,
which always used to be the joint responsibility of the CCTM and the Employers,
the government, supported by the provisions of Article 4 of the referenced
Supreme Decree N° 054-91 PCM, issued Ministerial Resolution N° 303-91 TC/15.03,
which established that the many different employers were required to pay a
contribution that amounted to an average of US$1,300,000.00 a month.
Petitioner indicated that since the liquidation procedure performed
by the Dissolution Committee of the CCTM resulted in extremely small payments
for the maritime workers, FEMAPOR initiated amparo
proceedings, to ensure that CCTM would compute the payments correctly.
Petitioner adduced that on February 12, 1992, the Supreme Court of
the Republic issued a decision in favor of the plaintiff.
In compliance with that decision, the government issued Special Supreme
Decree N° 030-PCM/92, dated April 4, 1992, by which the CCTM Dissolution Committee
was required to take steps to ensure that the maritime workers would
receive the higher remuneration stipulated by the court; a situation which
entails the restructuring of the basis for calculation and social benefits,
in the relevant cases. Petitioner
added that the new figure for liquidation computed by that Committee amounted
Petitioner stated that in execution of that decision, the relevant
judge granted to FEMAPOR attachment of the following assets that had been
the property of the former CCTM: a) Bank funds amounting to US$3,040,745.89;
b) Real estate valued at a total of US$384,583.47; c) Furnishings and
movable assets valued at about US$20,150.69, for a total of approximately
US$3,445,485.05. Petitioner added that as a result of the foregoing, the outstanding
balance for collection amounted to US$44,060,949.65, not including interest
Petitioner alleged that even though the amounts required to cancel
the outstanding debt had not yet been collected, the government, in apparent
contradiction to the order of the Judiciary and its own laws, issued Decree-Law
Nº 25702 on September 2, 1992. Articles
1 and 2 of that Decree-Law derogated 24 tax provisions, and, mixed in with
them, it also derogated two provisions pertaining to the liquidation process
of the former CCTM and, more importantly, payment of the social benefits referred
to, or in other words, Article 4 of Supreme Decree N° 054-91 PCM and Ministerial
Resolution N° 303-91 TC/15.03. They
added, however, that the second paragraph of Article 4 of that Decree-Law
N° 25702 established as follows: Other
entities that were to receive the taxes derogated under this Decree-Law and
not included in the previous paragraph may submit a request to the Ministry
of Economy and Finance, within a period not to exceed 30 calendar days, counting
from the date this law enters into force, to the effect that the Ministry
allocate to it an amount equivalent to the funds that it failed to collect
as a result of this Decree-Law.
Petitioner pointed out that on September 24, 1992, that is within the
period established by Article 4 of Decree-Law N° 25702, the petitioners delivered
official letters Nos. 114-92 and 117-92, to the Ministry of Transportation
and the Ministry of Economy, respectively.
In those letters, FEMAPOR formally requested that the derogated legal
provisions be reinstated or, failing that, that they do as follows pursuant
to Article 4 of Decree-Law N° 25702: a) Allocate an amount equivalent to the
total settlement of maritime and river workers social benefits and entitlements;
b) Allocate monthly amounts, starting in January 1993, equivalent to the pension
statements of pensioners in the systems administered by the liquidated system.
Petitioner states that the provisions of Decree-Law N° 25702, in the
part derogating Article 4 of Supreme Decree N° 054-91 PCM, and the provisions
of Ministerial Resolution N° 303-91 TC/15.03, in regard to the provisions
of its Article 4, constitute a subrogation of the Ministry of Economy and
Finance, as the entity with specific responsibility for payment of social
benefits and entitlements of maritime workers incumbent on the obligated Ministry
prior to issuance of Decree-Law Nº 25702, since both Ministries are inseparable
parts of the Peruvian State.
Petitioner states that, as a consequence, on August 11, 1997, FEMAPOR
requested that, in execution of the judgment issued by the Supreme Court on
February 12, 1992 as res judicata, the Ministry of Economy and Finance be summoned to make
the payment of the amount owed the maritime and river workers, under penalty
of otherwise hindering attachment of government property. Petitioner added
that both the competent judge as well as the two vocales [voting members] of the Civil Division of the High Court of
Callao decided to exonerate the Ministry of Economy and Finance of that legal
responsibility, without taking into account the existence of Decree-Law Nº
25702. Petitioner indicated that
there was a dissenting vote by one of the vocales,
and even though the Civil Division sitting in judgment should have called
one or two more vocales, as required,
until obtaining the concurrence of three vocales,
it did not do so. Petitioner
indicated that it filed a complaint in this regard with the Social Constitutional
Division of the Supreme Court.
In an addition to its complaint dated February 12, 2000, petitioner
stated that on December 28, 1999, it received a decision from the Social Constitutional
Division of the Supreme Court, which found the complaint lodged to be without
merit and closed the record.
Petitioner stated that failure to comply with the judgment issued on
February 12, 1992 by the Supreme Court caused serious damage to all the workers
affected by that noncompliance, and to their family members, all of whom had
sunk into a situation of poverty that prevented them from satisfying their
minimum needs so that they could live in dignity.
Position of the State
The State indicated that in 1935, a Supreme Decree established the
Maritime Labor Control Commission (CCTM), the agency that regulated, controlled,
and managed the various port activities.
It added that by Supreme Decree N° 054-91-PCM dated March 11, 1991,
the Maritime Labor Control Commission, including the Maritime and River Labor
Offices, was declared to be in dissolution.
It pointed out that, pursuant to that law, the government provided
for the creation of a Dissolution Committee, with responsibility for liquidating
the CCTM. The pertinent provisions
stated as follows:
Article 3.- The Dissolution Committee, shall have the following functions, to be performed within the period of time indicated, effective as of its establishment:
e.- Payment of the social benefits and entitlements of the administrative workers employed by the Maritime and River Control Commission.
Payment of the social benefits and entitlements of the workers in the different
maritime unions under the jurisdiction of the entities referred to.
4.- In the event that the funds administered by the Maritime and River Control
Commission should not suffice to cover the amount required for payment of
the social benefits and entitlements referred to in Art. 3° of this Supreme
Decree, the Ministry of Transportation and Communications is authorized to
issue the necessary legal provisions, for the responsibility of the Maritime
Agents who handle the loading and unloading of the imports and exports, without
prejudice to the administrative responsibilities to be determined in due time.
It stated that by Ministerial Resolution N° 303-91 TC/15.03, the Peruvian
government created a contribution of US$1,300,000,00 a month, to be paid by
all the employers in the sector, in accordance with Article 3 of Supreme Decree
N° 054-91-PCM. It added that
the National Federation of Maritime and Port Workers of Peru (FEMAPOR), a
national federation comprising the local unions engaged in the various port
activities in the country, brought a legal action for amparo
so that the CCTM would proceed with the correct calculations of the amount
It reported that on February 12, 1992, the Supreme Court of the Republic
issued a decision in favor of FEMAPOR, and declared that the decision of the
lower court dated April 12, 1991 was not null and void,
That decision stated that there was merit to the amparo
suit, on the basis of which an additional increase in the basic monthly wages
collected by maritime workers was ordered.
The State reported that, in compliance with the judgment handed down
by the Supreme Court, the government issued Special Supreme Decree N° 030-PCM/92
dated April 4, 1992, providing for the CCTM Dissolution Committee to take
the action required in relation to the higher wages granted by the court to
the maritime workers.
The State further stated that the amount determined in the new liquidation
procedure was approximately US$ 47,506,432.15.
It indicated that since the previous process was in execution of judgment,
it had granted FEMAPOR the attachment of assets that had been the property
of the former CCTM, fixing their amount at US$ 3,445,485.05, thus leaving
the remainder for collection at US$ 44,060,949.65.
The State reported that on September 2, 1992, by Decree-Law N° 25702,
Article 4 of Supreme Decree N° 054-91-PCM and Ministerial Resolution N° 303-91-TC/15.03
were derogated. Both laws referred
to taxes on the loading and unloading of products of international trade meant
to finance the social benefits of workers under the responsibility of the
Maritime and River Labor Control Commission.
It stated that Article 4 of Decree-Law N° 25702 provided as follows:
other entities that were to receive the taxes derogated in this Decree-Law
and not included in the previous paragraph may request that the Ministry of
Economy and Finance, within a period not to exceed 30 calendar days counting
from the date this law takes effect, allocate an amount equivalent to the
resources that they would have collected for that purpose.
The State went on to state that, by Supreme Decree N° 013-92-TCC, the
Ministry of Economy and Finance was authorized to provide the resources needed
to pay the benefits to which the beneficiaries of the vested interest fund
of the former welfare system for stevedores in Callao port were entitled.
It added that FEMAPOR submitted its requests to the Ministry of Economy
and Finance and the Ministry of Transportation within the legal period of
time, on September 24, 1992.
It was formally stated in these letters of request that the derogation
of Article 4 of Supreme Decree N° 054-91-PCM and Ministerial Resolution N°
303-91-TC/15.03 had been done in error, as the resources which they generated
had been confused as taxes. Those
letters included a request that, by annulment of the judgment derogating the
legal provisions in question or by application of Article 4 of Decree-Law
No. 25702, an amount equivalent to the total social benefits and entitlements
be allocated to the maritime and river workers, and, effective January 1992,
the monthly amounts equivalent to the pension schedules of pensioners in the
systems administered by the dissolution system be allocated as well.
The State informed the IACHR that on August 11, 1997, FEMAPOR requested
that, as part of the execution of judgment of the legal action against the
CCTM, the Ministry of Economy and Finance be called upon to pay the amount
owed to the maritime and river workers, under penalty of otherwise hindering
attachment of government property. It
added that by order dated January 15, 1998, the judge found the request formulated
by FEMAPOR without merit, and gave as grounds for his decision the fact that
the request was addressed to the Ministry of Economy and Finance, hence the
request was to be answered by a resolution, as this was the appropriate administrative
The State reported that FEMAPOR appealed the decision of January 15,
1998, which was confirmed by the competent higher court, as it was of the
opinion that the Ministry of Economy and Finance was not petitioned and so
the request was without merit. It added that FEMAPOR requested that a vocal dirigente be designated in this instance, since it was of the
opinion that three votes are required for a decision. FEMAPOR therefore asked that the decision be nullified.
The State indicated that the Court found the request to be without
merit. It added that FEMAPOR
filed an appeal based on procedural violations of the lower court, which was
declared inadmissible. It indicated
that on August 27, 1998, FEMAPOR filed an appeal for refusal by the lower
court to allow the appeal [recurso de
queja] , which the Supreme Court declared inadmissible on January 28,
It concluded by summarizing that by Article 1(I) of Decree-Law Nº 25702,
published in the Official Gazette El
Peruano on September 2, 1992, Article 4 of Supreme Decree N° 054-91-PCM
dated March 9, 1991 and Ministerial Resolution Nº 303-91-TC/15.03 of April
26, 1991 were derogated. These
instruments referred to taxes on the loading and unloading of products of
international trade meant to finance the social benefits of workers under
the responsibility of the Maritime Labor Control Commission and the Maritime
and River Labor Offices. It added
that the Decree-Law in question established in Article 4, second paragraph,
that the entity to receive the taxes, in this case the National Federation
of Maritime and Port Workers of Peru (FEMAPOR), could request the Ministry
of Economy and Finance to allocate an amount equivalent to the resources it
had failed to receive as a result of derogation of Ministerial Resolution
Nº 303-91-TC/15.03 and Article 4 of Supreme Decree Nº 054-91-PCM.
It reported that the Peruvian State has been evaluating financial possibilities
with a view to arriving at a satisfactory solution to the present petition
before the IACHR, using the resources of the Ministry of Economy and Finance. The State added that since the term of office of the
transition government is about to come to an end, any measures to be adopted
would come from the new constitutional government.
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. 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 is competent ratione loci
to consider this petition, because the petition alleges violations of rights
protected by the American Convention that occurred within the territory of
a state party to that agreement.
The IACHR is competent 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 for the Peruvian State.
Finally, the Commission is competent 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 by the Peruvian
State with the decision of the Supreme Court of the Republic dated February
12, 1992. The State did not enter
any pleas in relation to the requirement of exhaustion of domestic remedies.
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 a decision handed down by the Supreme Court of the Republic on February
12, 1992. In this regard, the
Commission finds that the petition under consideration was submitted within
a reasonable period of time, pursuant to the terms of Article 32 of its Regulations,
equivalent in content to Article 38 of the Regulations in force at the time
the complaint was lodged.
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 petitioner 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 examine 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,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
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 Case, Preliminary
Objections, Judgment of June 26, 1987, Series C, Nº 1, par. 8; Fairén
Garbi and Solis Corrales Case, Preliminary Objections, Decision of June
26, 1987, Series C, Nº 2, par. 87; Gangaram Panday Case, Preliminary Objections,
Judgment of December 4, 1991, Series C, Nº 12, par. 38; Loayza Tamayo
Case, Preliminary Objections, Judgment of January 31, 1996, Series C,
Nº 25, par. 40.
IACHR, 1998 Annual Report, Report N°
75/99 César Cabrejos