FEDERATION OF MARITIME AND PORT
OF PERU (FEMAPOR)
CAMPOS CAIPO, SERGIO VALDIVIA AYALA, ASISCLO CHINAPRO FERNÁNDEZ, VÍCTOR
BRICEÑO MIRANDA AND OTHERS
MARITIME AND RIVER WORKERS
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
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
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
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 to US$47,506,432.15.
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 and costs.
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:
Payment of the social benefits and entitlements of the workers in the
different maritime unions under the jurisdiction of the entities referred
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
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 procedure.
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
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
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
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
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 Bernuy, Case 11.800 (Peru), par. 22.