HERMINO SALAS GAMBOA
In the petition presented to the Inter-American Commission on
Human Rights (hereinafter “the Commission”) on March 11, 2002, Mr.
Roger Herminio Salas Gamboa (hereinafter “the petitioner”), alleged
that the Republic of Peru (hereinafter “Peru”, “the State” or
“the Peruvian State”) violated his right to a fair trial, right to
protection of his honor, his political rights, right to equality before
the law and right to judicial protection, all of which are recognized in
Articles 8, 11, 23, 24 and 25, respectively, of the American Convention
on Human Rights (hereinafter “the Convention” or the “American
Convention”), in accordance with Article 1(1) of the abovementioned
international instrument. The
violations alleged are related to irregularities alleged to have been
committed by the National Council of the Magistracy in its decision not
to ratify his appointment as a full judge of the Supreme Court of
Justice of the Republic.
With regard to the admissibility of the petition, the petitioner
argues before the Commission that, according to Article 142 of the
Constitution of 1993 and consistent with Article 1 of Act Nº 26397 of
the Organic Law of the National Council of the Magistracy, the decisions
of the National Council of the Magistracy are not subject to review by a
judicial body and therefore that no domestic remedy remains to be
exhausted. The exception provided for in Article 46(2)(a) and (b) of the
Convention is therefore applicable and the petition was lodged within
the period allowed, having regard to the date of notification.
For its part, the State contends that there has been no violation
whatsoever of the Convention, since the process of ratification of the
appointment of officials of the judicial branch is carried out in
accordance with the provisions of the Constitution.
That proceeding is different from the disciplinary proceedings
which the same organization is authorized to undertake with a view to
dismissing the same officials.
After reviewing the arguments of the parties and the question of
whether the requirements for admissibility provided for in the
Convention were fulfilled, the Commission decided to declare the
petition admissible, in accordance with the provisions of Articles 46
and 47 of the American Convention.
The Commission also decides to notify the parties of this
decision, to publish it and to include it in its annual report to the
General Assembly of the OAS.
PROCESSING BY THE COMMISSION
On April 4, 2002, the Commission received the complaint filed by
Mr. Roger Herminio Salas Gamboa and assigned it Nº 0185/2002.
On September 18, 2002, it transmitted the pertinent parts of the
complaint to the State of Peru and requested the State to provide
information on the matter within a period of 60 days.
On October 15, 2002, the State requested an extension of the time
allowed for replying, and the State granted the extension in its note of
October 23, 2002, which was transmitted to the State on October 26,
2002. The State submitted
its reply on November 26, 2002. On
January 6, 2003, the petitioner submitted additional information
regarding the complaint and requested a hearing at the Commission’s
117th session, which was held from February 17 to March 7,
2003. That request was denied.
The Commission considers that the pertinent information is now
available and that it is therefore in a position to rule on the
admissibility of the petition.
III. POSITIONS OF THE PARTIES
A. The petitioner
The petitioner alleges that, based on the results of a public
competitive examination, he was appointed a member of the Supreme Court
of Justice of Peru in Supreme Decision Nº 105-90-JUS of May 25, 1990.
His appointment was confirmed in Senate Decision Nº 1093-90,
published on September 21, 1990, and the title of Judge conferred on him
on September 19, 1990. He was sworn in to the post on September 27, 1990. All of
these acts took place while the Constitution of 1990 was still in force.
That Constitution did not provide for the periodic reconfirmation
of judges in their posts and guaranteed continuation in service up to
the age of 60 years, provided that the incumbent was of good conduct and
remained suitable for the post.
He alleged that, in those circumstances, he was assigned to the
Second Criminal Chamber of the Supreme Court of Justice of the Republic
and, as the least senior member of the Court, he was required under the
organic law governing the judicial branch to assume the functions of
Examining Magistrate of the Supreme Court with responsibility for
criminal proceedings against senior officials of the nation. Among
others, he was assigned the case brought by the Senate of the Republic
against Dr. Alan García Pérez, former President of Peru, on which he
ruled on December 2, 1991 that there were no grounds for prosecution, a
decision that was confirmed by the higher instances and in respect of
which the Inter-American Commission on Human Rights also pronounced in
Case 11.006 Peru Alan García, with the final report Nº 1250 being
adopted on February 7, 1995.
He further alleged that, following the accession to office of the
Government of Emergency and National Reconstruction, headed by Mr.
Alberto Fujimori Fujimori, on April 5, 1992, himself and twelve other
judges of the Supreme Constitutional Court were dismissed by Decree Law
Nº 25423, published in the Diario
Official El Peruano on April 8, 1992, without any statement of cause
being given. As a result of
this action, he filed for protection and the Constitutional Court
finally ruled on September 27, 1997 that he should be reinstated as a
full judge of the Supreme Court of Justice of the Republic and that the
period during which he did not serve by reason of his suspension without
cause should be recognized for pension purposes.
He claims that, notwithstanding the aforementioned decision of
the Constitutional Court, the Government of President Fujimori
promulgated a series of decree laws and acts designed to avoid
compliance but that he was finally reinstated on May 14, 2001 together
with other judges who also had not served on the bench during the period
between January 1994 and December 2000.
Upon resumption of his judicial activities, it fell to him by
reason of his seniority to head the Provisional Criminal Chamber of the
Supreme Court of Justice of the Republic.
He alleged that the process of reconfirmation based on Article
150 of the Constitution of 1993 and on Article 1 of Act Nº 26934 is the
responsibility of the National Council of the Magistracy, which performs
this function as the sole authority and whose decisions are not subject
to review by any other judicial body.
The National Council of the Magistracy reviews every seven years the
performance and abilities of judges and prosecutors at all levels
through an evaluation of their conduct and suitability for the
performance of their duties, taking into consideration the completed
workloads of their courts, the merits and reports of the Colleges and
Associations of Attorneys, and the results of an obligatory personal
interview with the judge under evaluation. Should a decision be taken to
remove him from his post, this “does not constitute a penalty nor does
it deprive him of the rights acquired under the law, although it does
prevent him from returning to the judicial branch or to the Department
of Public Prosecution”.
He alleged that he had reached the fifth phase of the
reconfirmation process, which began on June 19, 2001, having been
interviewed by five of the seven members of the Council to whom he
explained his situation, especially the fact that during the seven-year
period after which the law required that he be re-evaluated, he had not
exercised his judicial functions on the bench, since he had been removed
from his post, as a result of which he was unable to show any results of
his judicial activities. The
said interview was completed in thirty minutes and, while it was
supposed to have been videotaped, only one and half minutes (1”30) of
the interview was actually recorded. ”The recording of the interview
is not complete, since the cassette ran out, as was noted when the next
interview began”. He
explained that the decision not to reconfirm him in his post was taken
by the seven judges of the National Council of the Magistracy, two of
whom could not have had sufficient information upon which to base their
decision, since they had not been present at the interview and did not
have a complete recording of the aforementioned interview.
He based his complaint on the fact that the decisions of the
National Council of the Magistracy are arbitrary.
They are not based on legal grounds, nor are the judges being
evaluated informed of the factors that were taken into account in
reaching the decision. There
is no possibility of appealing the decisions or of any judicial review.
The decision makes it impossible thereafter to be reinstated as a
member of the Court and, in his specific case, he had been evaluated
under equal conditions with other judges without having completed seven
years on the bench, precisely because he had been unjustly removed from
his post by the State since 1992 and reinstated after May 2001,
following the ruling of the Constitutional Court.
For its part, the State maintained that, since the petitioner had
not been reconfirmed in his post by the National Council of the
Magistracy, none of his rights had been violated, since the process of
evaluation and reconfirmation had been conducted in accordance with the
provisions of Article 154(2) of the Constitution and that such decisions
are not subject to review by a judicial forum.
It stated further that decisions on the reconfirmation of judges
in their posts constitute an exercise of the discretional authority
conferred on the National Council of the Magistracy by the Constitution
and the Organic Law and that there is no requirement to state the
grounds on which decisions are based, since it is not a disciplinary
action that is comparable to a judicial proceeding in which the
guarantees enshrined in Article 139 (5) of the Constitution of Peru and
Article 8(1) of the American Convention must be respected.
Likewise, the process of reconfirmation does not constitute a
The petitioner was subject to an evaluation process for his
reconfirmation in the post under the same rules as applied to the other
judges and the results were different, since they were individual
proceedings designed to evaluate conduct and suitability in a report on
the final decision. The right to equality was therefore not violated.
Competence of the Commission
The petitioner is entitled under Article 44 of the American
Convention to lodge a complaint with the IACHR.
The petition identifies as the alleged victim an individual, in
respect of whom Peru has undertaken to respect and guarantee the rights
enshrined in the American Convention.
With respect to the State, the Commission notes that Peru has
been a party to the American Convention since September 5, 1984, the
date on which it deposited the corresponding instrument of ratification.
The Commission is therefore competent ratione
personae to consider the petition.
The Commission is competent ratione
loci to hear the petition, insofar as it alleges violations of
rights protected in the American Convention that are alleged to have
taken place within the territory of a State party to the Convention.
The IACHR is also competent ratione
temporis, insofar as the obligation to respect and guarantee the
rights protected by the American Convention was already in force for the
State at the date on which the acts referred to in the petition are
alleged to have occurred. Lastly,
the Commission is competent ratione
materiae, since the petition denounces violations of human rights
protected by the American Convention.
Other requirements for admissibility
Exhaustion of domestic remedies
With regard to this requirement for admissibility, the Commission
notes that in the processing of the case, at no time did the State
assert the objection of non-exhaustion of domestic remedies with respect
to the domestic proceedings instituted against Mr. Roger Herminio Salas
The petitioner alleged, moreover, that the exception provided for
in Article 46(2)(a) of the Convention was applicable to his case insofar
as no other remedy is available under the domestic legislation of Peru
to appeal the decision of the National Council of the Magistracy and
that the State had accepted this in its response.
It is for the IACHR to determine whether the State had tacitly
renounced its right to assert the objection.
The Inter-American Court of Human Rights has stated 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."
In the present case, the IACHR therefore determines that the Peruvian
State has not asserted the objection in question in any of its
communications to the Commission, having tacitly renounced its use
insofar as it did not assert the objection expressly and in a timely
manner. The Commission
therefore considers that the requirement provided for in Article
46(1)(a) has been met under the exception contained in Article 46(2)(a)
of the American Convention.
Time allowed for presentation of the petition
In the petition under consideration, the IACHR has concluded that
the State of Peru has tacitly renounced its right to assert the
objection of failure to exhaust domestic remedies.
However, the requirements under the Convention for the exhaustion
of domestic remedies and for the presentation within six months from the
date of notification of the final judgment under domestic law are
independent of each other. The
Inter-American Commission must therefore determine whether the petition
was presented within a reasonable period of time.
The Commission notes that the decision of the National Council of
the Magistrature that is being challenged was handed down on September
18, 2001 and communicated to the petitioner the following day, that is
to say, September 19, 2001. Since
that decision is not subject to review by a judicial body, as the State
acknowledged in its written reply, it is from that date that the
six-month period within which the petitioner is required to lodge his
complaint to the IACHR begins to run. This was effectively done, since
the Commission received the petition of Mr. Roger Herminio Salas Gamboa
on March 11, 2001.
Duplication of proceedings and res
There is no evidence that the matter that is the subject of this
petition is pending in any other international proceeding for settlement
or that it substantially duplicates a previous case that has already
been considered by the Commission or by any other supranational
Characterization of the acts
The Commission considers that the statement of the petitioner is
not manifestly groundless or obviously out of order, since it concerns
acts that the petitioner alleges are violations of Articles 8, 24 and
25, respectively, of the American Convention, in accordance with Article
1(1) of the Convention, as the petitioner indicated in paragraph 13
above, and it is therefore proper to admit the petition in question, in
accordance with the provisions of Article 47(b) and (c) of the
Likewise, the Commission considers that the petitioner did not
specify or allege the violation related to Article 23 of the Convention
and that there would not be sufficient arguments either in reference to
the violation of Article 11 of the Convention, as a result of which it
would not be proper to admit these violations because there are no facts
in the relevant parts of the petition to characterize it as such.
28. Based on the arguments of fact and of law set out above and without prejudice to the substance of the question,
Inter-American COMMISSION ON Human Rights,
To declare admissible the petition presented by Mr. Roger
Herminio Salas Gamboa concerning the alleged violation of Articles 1(1),
8, 24 and 25, respectively, of the American Convention, by the State of
To notify the parties of this decision.
To continue its consideration of the substance of the matter.
To place itself at the disposal of the parties with a view to
reaching a friendly settlement based on respect for the rights
recognized in the American Convention and to invite the parties to take
a decision with respect to that course of action.
To publish this decision and to include it in its annual report
to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C, on February 20, 2003. Signed by Juan Méndez, President; Marta Altolaguirre, First
Vice-President; José Zalaquett, Second Vice-President; and Commission
members: Robert K. Goldman, Julio Prado Vallejo and Clare K. Roberts.
In accordance with the provisions of Article 17(2)(a) of the
Regulations of the Commission, Commission member Susana Villarán, a
national of Peru, did not participate in the discussion or in the
decision adopted in this case.
The report referred to by the petitioner is report Nº 1/95, Case
11.006 Alan García Pérez, of February 7, 1995.
Political Constitution, Article 150.
The National Council of the Magistracy is responsible for the
selection and appointment of judges and prosecutors, except where
the latter are chosen by popular election.
The National Council of the Magistracy is independent and is
governed by its Organic Law (Article 142). Decisions of the National
Electoral Board on election-related matters and decisions of the
National Council of the Magistracy on matters concerning the
evaluation and reconfirmation of judges are not subject to review by
a judicial forum. Act Nº
26.397, Article 2: - the National Council of the Magistracy shall
have competence in matters concerning the selection, appointment,
reconfirmation and dismissal of judges and prosecutors at all
levels, except where the latter are chosen by popular election, in
which case it shall be empowered only to confer the title and to
impose the penalty of dismissal, where appropriate under the law.
Decisions on the matters referred to in the above paragraph
shall not be subject to review by a judicial body.
Its decisions may not be challenged.
Ibid, Act Nº 26.397, Articles 29 and 30.
IACtHR, Case of Velásquez Rodríguez, Preliminary Objections,
Judgment of June 26, 1987. Series
C No. 1, para. 88, Case of Godinez Cruz, Preliminary Objections,
Judgment of June 26, 1987. Series
C Nº 3, para. 90; Case of Fairén Garbi and Solís Corrales,
Preliminary Objections, Judgment of June 26, 1987. Series C Nº 2,
para. 87; Case of Loayza Tamayo, Preliminary Objections,
Judgment of January 31, 1996. Series C Nº 25, para. 40.