ASSOCIATION OF DISCHARGED AND RETIRED STAFF OF THE OFFICE OF THE
COMPTROLLER GENERAL OF THE REPUBLIC OF PERU
NACIONAL DE DESANTES Y JUBILADOS DE LA CONTRALORÍA GENERAL DE LA REPÚBLICA
By a petition lodged with the Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the IACHR”) on November
12, 1998, and enlarged upon on January 24, 2000, the members of the
National Association of Discharged and Retired Staff of the Office of
the Comptroller General of the Republic of Peru [Asociación Nacional
de Cesantes y Jubilados de la Contraloría General de la República del
Perú] and the Labor Advisory Center [Centro de Asesoría Laboral]
(CEDAL) (hereinafter “the petitioners”) denounced that by its
failure to enforce judgments of Peru’s Constitutional Court, the
Republic of Peru (hereinafter “Peru,” “the State,” or “the
Peruvian State”) had violated the right to private property, the right
to a fair trial and the right to judicial protection, recognized in
Articles 21, 8 and 25 of the American Convention on Human Rights
(hereinafter the “Convention” or the “American Convention”), to
the detriment of Isabel Acevedo León and other members of that
Association, and had thereby also violated its generic duty under
Article 1(1) of the Convention to protect the rights recognized therein
and to guarantee their free and full exercise to all persons subject to
The Peruvian State did not file any objection challenging the
admissibility of the petition under study.
Pursuant to Articles 45 and 47 of the Convention, the Commission
hereby decides to admit the petition in regard to the alleged violations
of Articles 8, 21, 25 and 1(1) of the American Convention and to
institute proceedings on the merits of the case.
The Commission also decides to notify the parties of its
decision, to publish it, and to include it in its Annual Report to the
OAS General Assembly.
PROCEEDINGS WITH THE COMMISSION
On January 26, 2001, the Commission forwarded the pertinent parts
of the petition to the Peruvian State and asked that it supply relevant
information within a period of 90 days.
Peru replied on April 27, 2001.
The petitioners provided additional information on June 28, 2001.
III. POSITIONS OF THE PARTIES
The petitioners’ position
The petitioners argue that Mrs. Isabel Acevedo León and the
other petitioners spent their active working years as staff members of
the Office of the Comptroller General of the Republic of Peru.
Since reaching retirement age, and having met the necessary legal
requirements, they had been enjoying–for many years in some cases-the
right to a severance and retirement pension that was readjusted and
renewed to keep pace with the salaries and wages, benefits and bonuses
received by that institution’s active employees.
This was all dictated by the retirement and pension system
regulated by decree law 20,530. As
discharged or retired employees of the Office of the Comptroller General
of the Republic of Peru, they were all enrolled in this retirement and
With passage of Decree Law Nº 25,597, dated July 7, 1992, and by
virtue of Supreme Decree Nº 036-93-EF of March 17, 1993, payment of
their pensions was transferred to the Ministry of Economy and Finance.
With that, the petitioners were denied their right to have their
pensions pegged to the salaries and bonuses of the active staff members
of the Comptroller General’s Office; instead, their pensions were
pegged to the pay scale at the Ministry of Economy and Defense.
The petitioners further contend that on May 27, 1993, they teamed
up with the Association of Discharged and Retired Staff of the Office of
the Comptroller General–of which Mrs. Isabel Acevedo León is
president-and filed a petition of amparo with the Sixth Civil Court of Lima, asserting their right to
have the full-parity pension, severance and retirement system
reinstated, i.e., the system that is readjusted and renewed in
accordance with Decree Law Nº 20,530.
They also requested that Article 5 of Supreme Decree Nº
035-93-EF not be enforced. Under
that Article, the Peruvian State denied them their legally acquired
right to receive the same bonuses and benefits that active staff of the
Comptroller General’s Office receive, in keeping with the law on the
right to the parity adjustable pension guaranteed under Decree Law Nº
The petitioners report that Lima’s Sixth Lower Court denied the
petition of amparo on July 9, 1993. But
that ruling was subsequently overturned by the First Civil Law Chamber
of Lima Superior Court on December 14, 1993, which found that the
provisions of Articles 9.c and 13 of Decree Law 25,597 and Article 5 of
Supreme Decree Nº 036-93 EF did not apply to the petitioners.
It therefore ordered the Office of the Comptroller General to pay
the Association members the pensions, bonuses and benefits to which they
When the Office of the Comptroller filed an appeal to have the
Superior Court’s ruling vacated, the Constitutional and Social Law
Chamber of the Supreme Court issued a ruling on October 3, 1994, wherein
it declared the Superior Court’s December 14, 1993 ruling null and
void, and reaffirmed the lower court ruling.
The petitioners then appealed that ruling by filing an appeal
with the Constitutional Tribunal, whose October 21, 1997 judgment
reversed the judgment handed down by the Constitutional and Social Law
Chamber of the Supreme Court and confirmed in part the judgment
delivered by the First Civil Law Chamber of the Lima Superior Court,
which had upheld the legal grounds of the complaint and expressly
ordered that “the Office of the Comptroller General of the Republic
shall pay the Association members who are the plaintiffs in this case
the same salaries, bonuses and benefits paid to active employees of that
office performing functions identical, similar or equivalent to those
that the discharged or retired staff members performed.”
Upon notification of the Constitutional Tribunal’s judgment on
December 15, 1997, the procedure for enforcement of that judgment was
instituted in the corresponding public law court.
By a ruling dated June 25, 1998, that court ordered that the
judgment be enforced. Since then, successive memoranda, injunctions and other
measures have been used to get the Comptroller’s Office to comply with
the Court’s judgment, all to no avail thus far.
The petitioners contend that the judgement’s enforcement has
been further obstructed since February 12, 1999, when the Superior
Court’s Transitional Corporatist Public Law Chamber declared null and
void all steps taken to execute the Constitutional Court’s ruling of
October 21, 1997, “while reserving the right of the Association of
Discharged and Retired Staff of the Office of the Comptroller General,
to be exercised in the manner prescribed by law.”
The petitioners state that on May 27, 1999, they filed a remedy
of amparo to challenge the decision of the Transitional Corporatist
Public Law Chamber on the grounds that their right to effective judicial
protection had been violated because the principle of res judicata and the obligation to comply with court rulings had
been breached. On January
26, 2001, the Constitutional Court granted their petition of amparo and thereby rendered inapplicable the ruling delivered by the
Lima Superior Court’s Transitional Corporatist Public Law Chamber on
February 12, 1999. It held
that the judgment’s enforcement was to proceed, which meant that the
respective judicial body was to comply, immediately and unconditionally,
with the order contained in the Constitutional Court’s decision of
October 21, 1997.
Thus, the petitioners argue that the ruling of the Constitutional
Court became res judicata as of its issuance.
Yet, despite repeated attempts to get the court ruling enforced,
it has still not been executed. By
its failure to enforce that court ruling, the petitioners contend that
the Peruvian State has violated their right to property, their right to
a fair trial and their right to effective judicial protection,
recognized, respectively, in Articles 21, 8 and 25 of the American
Convention, to the detriment of the members of the Association of
Discharged and Retired Staff of the Office of the Comptroller General of
the Republic of Peru.
B. The State’s
The State has not challenged the admissibility of the petition
The State alleges that the Office of the Comptroller General took
several steps to comply with the court order.
It asked the Ministry of Economy and Finance to put back into the
budget of the Office of the Comptroller General, the appropriation
necessary to cover the pensions of the discharged and retired staff of
the Office of the Comptroller General, beginning with the 2001 budget.
It also adopted a resolution ordering parity between discharged
and retired staff of the Office of the Comptroller General and its
active staff at various levels. However,
it has not yet complied with the ruling of the Constitutional Court.
The Commission will now examine the requirements that the
American Convention establishes for a petition’s admissibility.
The Commission’s competence ratione
materiae, ratione personae and
The Commission is competent ratione
materiae because the petition alleges violations of human rights
protected by the American Convention.
Concerning its competence ratione personae, the Commission notes that the petitioners are
charging the Peruvian State with violations of human rights recognized
in the American Convention. Because
Peru ratified that Convention on July 28, 1978, the Commission is
competent ratione personae to
take cognizance of this petition, by express provision of Article 33 of
the Convention. The
petitioners are non-governmental organizations legally recognized in
Peru and, under Article 44 of the Convention, have the authority to file
petitions with the Commission. Therefore,
insofar as the petitioners are concerned, the Commission is competent ratione
personae to take cognizance of this petition. The alleged victims are natural persons whose
Convention-recognized rights Peru pledged to respect and guarantee.
Therefore, in that respect the Commission is equally competent to
hear the petition under study.
The Commission is competent ratione loci to hear this petition because the alleged
violations of Convention-protected rights were said to have occurred
within the territory of a State party to the Convention.
The IACHR is competent ratione
temporis because by the time the facts alleged in the
petition occurred, the obligation to respect and guarantee the rights
established in the American Convention was already binding upon the
The petition’s admissibility requirements
a. Exhaustion of
The Commission observes that the question it must decide is
whether or not the judgment delivered by Peru’s Constitutional Court
on October 21, 1997, on the amparo
appeal filed by the National Association of Discharged and Retired
Staff of the Office of the Comptroller General of the Republic was
The State never entered any objection regarding the requirement
of exhaustion of local remedies. The Inter-American Court has held that “the objection asserting the non-exhaustion of domestic
remedies, to be timely, must be made at an early stage of the
proceedings by the State entitled to make it, lest a waiver of the
requirement be presumed.”
Hence, the Inter-American Commission presumes that the State
tacitly waived the requirement that local remedies be exhausted, since
it did not file an objection either within established legal time
periods or at the first opportunity it had in the proceeding to lodge
its objection, which was its response to the petition that initiated the
b. Time period for
In the petition under study, the
Commission has established that the Peruvian State waived its right to
argue that domestic remedies had not been exhausted. However, the
Convention’s requirement that domestic remedies be exhausted is
independent of the requirement that the petition be lodged within six
months following the judgment exhausting domestic remedies. The
Commission must therefore decide whether this petition was submitted
within a reasonable time. By virtue of the finding that the State
tacitly waived the exhaustion of domestic remedies requirement, no
specific date can be identified from which to calculate the six month
period. The absence of an identifiable
date does not relieve the Petitioner of the requirement to file
in a timely manner. In this sense, the Commission, taking into account
the particular circumstances of the present case, considers that the
present petition was presented within a reasonable time.
Based on the foregoing, the requirement as to the deadline for
lodging a petition, set forth in Article 46(1)(b) of the American
Convention, does not apply in the instant case.
c. Duplication of
proceeding and res judicata
It is the Commission’s understanding that the subject of the
petition is not pending in another international proceeding for
settlement and is not substantially the same as a petition already
examined by either the Commission or some other international
organization. Hence, the
requirements set forth in Articles 46(1)(c) and 47(d) are also
of the facts
The Commission considers that the petition lodged by the
petitioners states facts that if true could constitute a violation of
rights protected under the Convention since, as established above, the
question put to the Commission is whether the failure to enforce the
judgment of Peru’s Constitutional Court implies the Peruvian State’s
violation of Articles 25, 8, 21 and 1(1) of the American Convention.
The Commission, therefore, is competent to take cognizance of
this petition, which, for the reasons stated above, is admissible under
Articles 46 and 47 of the American Convention.
Therefore, based on the reasons of fact and of law herein given
and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare admissible the petition in regard to the alleged
violations of Articles 8, 25, 21 and 1(1) of the American Convention.
To notify the petitioners and the State of this decision.
To continue with the analysis of the merits of the case.
To place itself at the disposal of the parties with a view to
arriving at a friendly settlement founded upon respect for the rights
protected under the American Convention, and to invite the parties to
express their views on the friendly settlement possibility.
To publish this decision and include it in the Annual Report to
the OAS General Assembly.
Done and signed at the headquarters of the
Inter-American Commission on Human Rights in the city of Washington,
D.C., the 9th day of the month of October in the year 2002.
Signed by Juan Méndez, President; Marta Altolaguirre, First Vice
President; Robert K. Goldman; Julio Prado Vellejo, Clare K. Roberts and
José Zalaquett, Commission members.
Pursuant to the terms of Article 19(2) of the Regulations of the
Commission, Commissioner Susan Villarán, a national of Peru, did
not participate in the discussion or decision on the present case
IACtHR, Velázquez Rodríguez Case, Preliminary Objections, Judgment
of June 26, 1987, Series C, No. 1, para. 88; Fairén Garbi
and Solis Corrales Case, Preliminary Objections, Judgment of
1987, Series C, No..2, para. 87.