Liliana Zambrano Pacheco v. Peru, Petition 12.203, Report No. 95/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 402 (2001).
LILIANA ZAMBRANO PACHECO
The Inter-American Commission on Human Rights (hereinafter the Commission,
the Inter-American Commission, or the IACHR) received
a petition, dated June 25, 1998, lodged by Mrs. Liliana Zambrano Pacheco (hereinafter
the petitioner), alleging that the Republic of Peru (hereinafter
Peru, the State, or the Peruvian State)
had violated her human rights by unlawfully relieving her of her duties as
an administrative official with the Arequipa Municipal Council.
The Peruvian State maintains that the petition is inadmissible as it
was not lodged within the six-month period allowed under Article 46(1)(b)
of the American Convention on Human Rights (hereinafter the Convention
or the American Convention).
In keeping with Articles 46(1)(b) and 47(a) of the American Convention,
the IACHR decides to declare the petition inadmissible.
The Commission also decides to notify the parties of this decision,
to publish it, and to include it in its Annual Report to the OAS General Assembly.
PROCESSING BY THE COMMISSION
On June 25, 1998, the petitioner sent her petition to the Inter-American
Court of Human Rights in Costa Rica.
The Inter-American Court received the petition on July 1, 1998, and
forwarded it to the IACHR on July 2, 1998.
The IACHR received it on July 27, 1998.
On August 27, 1999, the Commission decided to open the case, pursuant
to the Regulations then in force, transmitted the pertinent parts of the petition
to the Peruvian State, and requested that it present information within 90
days. On November 26, 1999, the
Peruvian State forwarded its reply. On February 16, 2000, the petitioner submitted
observations on the States reply. On May 3, 2000, the State provided
POSITION OF THE PARTIES
Position of the petitioner
The petitioner indicates that, in 1980, she was hired by the Arequipa
Municipal Council as an administrative official, a time when the Civil Service
Statute and Career Scale established by Legislative Decree 11377 was in force.
She adds that, pursuant to that decree, the aptitude and ability of public
officials was evaluated at the time of their entry into government service.
She states that on December 28, 1992, the Government of Peru issued
Legislative Decree 26093, which provides that all Peruvian public officials,
regardless of date of entry into government service, were to be evaluated
every six months, and that those who did not meet the standard were to be
relieved of their duties on the grounds of redundancy.
The petitioner alleges that, through retroactive application of Legislative
Decree 26093 and application of the second paragraph of the eighth transitory
and final provision of Law 26553, the Mayor of Arequipa Municipal Council,
Roger Cáceres Pérez, decided to implement a staff evaluation program.
She indicates that, in application of that program, she, along with
all municipal government officials, was required to take an evaluation exam.
Had she refused, she could have been dismissed for failure to take
the exam. She alleges that the
examination was marked by the Arequipa Municipal Council officials themselves,
exclusively on the basis of the criteria of those public officials subordinate
to the Mayor of Arequipa.
She states that the Mayor availed himself of the occasion to relieve
of their duties all workers who had not found favor with him or did not share
his political views and that, to that end, he issued Municipal Resolution
Nº 279-E-96, which, as of December 1, 1996, made the petitioner redundant,
alleging that she had not attained the minimum standard in the evaluation.
She alleges that the resolution relieving her of her duties failed
to mention that the written exam had not been made available to her so that
she could check the mark she had been given, and that it also failed to mention
that, as a career official who had obtained her position through public competitive
examination, she was not required to take the examination, and its marking
was irrelevant in her case.
She indicates that, having exhausted the administrative appeals procedure,
she applied for a writ of amparo
against the Mayor of Arequipa for violation of her constitutional rights of
employment, due process, and against retroactive application of the law, requesting
that the said municipal resolution relieving her of her public duties be declared
inapplicable and that she be reinstated in her position, with all allowable
She states that, in judgment Nº 16-97, issued by the First Civil Court
of Arequipa, on January 10, 1997, this court of first instance found in her
favor, established that the said resolution relieving her of her duties did
not apply, and ordered that she be reinstated as a public official, with back
payment plus interest.
She indicates that Arequipa Municipal Council appealed against that
decision to the First Civil Chamber of the Superior Court of Justice of Arequipa.
That court issued its decision on February 27, 1997, overturning the
lower courts decision and finding that a writ of amparo
was not the appropriate instrument to establish the legality of administrative
She states that an appeal was lodged with the Constitutional Court
against the decision of the Superior Court.
On August 22, 1997, that Court issued its decision, in which it also
found that there were no grounds for the judgment of the court of first instance,
as it did not consider that the petitioners constitutional rights had
The petitioner alleges that the instant petition was lodged as soon
as she was notified of the aforementioned decision of the Constitutional Court
of August 22, 1997.
Position of the State
The State notes that, on January 3, 1997, the Arequipa Municipal Government
responded to the writ of amparo
for which the petitioner had made application to the First Civil Court of
Arequipa, claiming that, in evaluating the staff, all requirements had been
satisfied and all regulations followed.
The State indicates that, by decision of January 10, 1997, the First
Civil Court of Arequipa found without substance the objections made by the
aforementioned municipal government and allowed the application for amparo, considering mainly that Both Law Nº 11377 and Legislative
Decree 276 applied to the applicant.
Therefore, the provisions of Law 26553 did not apply (
It states that the respondent municipal government filed an appeal
with the First Civil Chamber of the Superior Court of Justice of Arequipa.
It alleges that, in its decision of February 27, 1997, the Civil Chamber
set aside the lower courts decision and found the application for amparo inadmissible, as it considered that the fact that the
plaintiff had entered into service prior to the issuing of the provisions
ordering the evaluation does not imply that they were retroactively applied
[and] that the residual remedy of amparo
is not an appropriate instrument to establish the legality of the administrative
steps taken to evaluate staff.
It states that Mrs. Zambrano Pacheco lodged an appeal to have the aforementioned
judgment reversed (recurso de casación),
and, therefore, in keeping with the principles of recognition and respect
for due process and the right of legal pluralism (pluralidad
de instancias), observed throughout the process, the action was brought
before the Constitutional Court, pursuant to Article 41 of its Organic Law.
It indicates that the Constitutional Court issued its judgment on August
22, 1997, rescinding the decision of the First Civil Chamber of the
Superior Court of Justice of Arequipa, of February 7, 1997, which found the
application for amparo inadmissible,
and amending that decision to read that the grounds for the application were
unsubstantiated, arguing that Mrs. Zambrano Pacheco was relieved of
her duties pursuant to Decree Law Nº 26093, and that there is no evidence
or opinion to substantiate the citizens claim that her constitutional
rights were violated.
The State alleges that the petitioner was notified of the aforementioned
judgment of the Constitutional Court which exhausted the domestic remedies
on October 28, 1997.
The State indicates that the pertinent parts of the petition were transmitted
to it on August 27, 1999, and that, as the State was given no indication of
the date on which the petition was lodged with the IACHR, it must be inferred
that, in keeping with the presumption of good faith and with the initial
processing as regulated (
), the date recorded in the pertinent parts
) is a transcription of the date of receipt recorded on the original
petition lodged by the petitioner.
It alleges that, in view of the foregoing, it must be inferred that
the date on which the petition was lodged with the IACHR was August 27, 1999,
and that, as the petitioner was notified of said judgment of the Constitutional
Court on October 28, 1997, the petition must be declared inadmissible, as
the period between the two dates was considerably longer than that allowed
under Article 46(1)(b) of the American Convention for lodging petitions with
the IACHR, which is a period of six months from the date on which the party
alleging the violation of his rights was notified of the decision that exhausted
the domestic remedies.
ANALYSIS OF ADMISSIBILITY
The Commission now proceeds to examine the requirements established
in the American Convention for admissibility of a petition.
Competence ratione personae,
ratione loci, ratione temporis, and ratione
materiae of the Commission
27. The petitioner satisfies the requirements for
filing petitions with the IACHR set forth in Article 44 of the American Convention.
The petition states that the alleged victim is a person whose rights,
as enshrined in the American Convention, Peru undertook to respect and guarantee.
As concerns the State, the Commission notes that Peru has been a State
Party to the American Convention since July 28, 1978, the date of deposit
of its instrument of ratification. Therefore,
the Commission has competence ratione personae to examine the case.
28. The Commission has
competence ratione loci to examine
the case, as the petition alleges violations of rights protected by the American
Convention taking place within the territory of a State Party thereto.
The IACHR has competence ratione
temporis, in that the incidents alleged in the petition took place when
the obligation to respect and guarantee the rights established in the Convention
was in force for the Peruvian State.
30. Lastly, the Commission has competence ratione materiae, as the petition alleges violations of human rights
protected by the American Convention.
Requirements for admissibility of the petition
31. The Commission now proceeds to analyze the
requirement for admissibility of the petition set forth in Article 46(1)(b)
of the Convention, which provides that:
Admission by the Commission of a petition or communication lodged in
accordance with Articles 44 or 45 shall be subject to the following requirements:
) b. that the petition or communication
is lodged within a period of six months from the date on which the party alleging
violation of his rights was notified of the final judgment.
the present matter, the Peruvian State alleges that the petitioner was notified
of the judgment that exhausted the remedies provided by domestic law on October
28, 1997. In that connection,
the Commission notes that, in answering the States assertion, the petitioner
only alleged that she had sent the petition as soon as she was notified of
the judgment of the Constitutional Court, but did not contradict that assertion,
nor did she demonstrate that she had been notified of that judgment on a date
other than that alleged by the State.
In that connection, the IACHR takes as substantiated that on October
28, 1997, the petitioner was notified of the Constitutional Courts judgment
of August 22, 1997.
With respect to the date on which the petition was lodged with the
Commission, Peru contends that the pertinent parts of the petition were transmitted
to it on August 27, 1999, and that, as the date on which the petition was
lodged with the IACHR was not indicated on the pertinent parts of the petition,
it must be inferred that it was on that same datethat is, August 27,
1999that the petition was lodged with the IACHR.
In that connection, the Commission must note that the date the petition
was lodged with the IACHR is of course not the same date as the date of when
the pertinent parts of the petition were transmitted to the State. The IACHR receives petitions through its Executive Secretariat,
studies them, and then sends the State the pertinent parts of those petitions
that comply prima facie with the
applicable requirements. The
effective date for calculation of the period stipulated in Article 46(1)(b)
of the Convention is the date that the petition is lodged with the Commission,
and not that of the transmittal of the pertinent parts of the petition to
The instant petition contains a certified copy issued by the Lima-based
Serpost postal company that shows
that the petition was sent by the petitioner to the Inter-American Court of
Human Rights, in San José, Costa Rica, on June 25, 1998.
The Inter-American Court received the petition on July 1, 1998, sent
it to the IACHR the following day, and notified the petitioner of its action.
The IACHR received the petition on July 27, 1998, and recorded that
date in the register of petitions received.
In that connection, it should be noted that even if the view more favorable
to the petitioner is taken, which is to take the petition as presented on
June 25, 1998, the proven date of receipt of the petition by the Inter-American
Court, the petition is still time-barred, as there is a period of seven months
and 28 days between October 28, 1997, the date of notification of the Constitutional
Courts judgment that exhausted domestic remedies, and June 25, 1998,
the date on which the petition was lodged.
That is, the period of six months established in Article 46(1)(b) of
the American Convention was exceeded by one month and 28 days.
37. For the foregoing reasons, and as the instant
petition was lodged with the Inter-American Commission after the six-month
period established in Article 46(1)(b) of the American Convention, the Commission
concludes that the instant petition is inadmissible.
In view of the foregoing, the IACHR abstains from examining the other
requirements for admissibility contained in the Convention, the question being
38. The Commission has established that the petition
does not satisfy the requirement of Article 46(1)(b) of the American Convention.
The Commission therefore concludes that it is inadmissible pursuant
to Article 47(a) of the American Convention.
39. Based on the arguments of fact and law set
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare this case inadmissible.
2. To notify the petitioner and the State
of this decision.
3. 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 this 10th day of
October, 2001. (Signed):
Claudio Grossman, President; Juan Méndez, First Vice-President; Marta
Altolaguirre, Second Vice-President; Commissioners: Hélio Bicudo, Robert K.
Goldman, Julio Prado Vallejo, and Peter Laurie.
In a case in which Peru made the preliminary objection that the petition
was time-barred, arguing that by the time the petition was transmitted
to it, six months had passed, the Inter-American Court of Human Rights
decided that the effective date was the date that the petition was lodged
with the Commission.
See Inter-American Court of Human Rights, Case of Cantoral Benavides,
Preliminary Objections, judgment of September 3, 1998, paragraphs 36,
37, 39, and 40.
 The petitions heading states that it is addressed to the President of the Inter-American Commission on Human Rights.