REPORT Nº 105/06
October 21, 2006
January 16, 2001, the Inter-American Commission on Human Rights
(hereinafter "the Commission", or "the Inter-American Commission", or "IACHR")
received a complaint filed by Mr. Hugo Mollinedo Valencia (hereinafter
"the petitioner") on behalf of Mr. Guillermo Jaulis Cancho (hereinafter
"the alleged victim") asserting the international liability of the
Republic of Peru (hereinafter "Peru," "the State," or "the Peruvian
State") claiming that the Peruvian National Police had arbitrarily
punished Mr. Guillermo Jaulis Cancho by ordering his transfer to
"non-active status" (situación de disponibilidad) pursuant to the
issuance of a directorial resolution focusing on the party's alleged
perpetration of acts harmful to the honor and decorum of the
institution, by virtue of the fact that he was allegedly responsible for
the escape of prisoners in his custody, for which crime the party in
question has since been acquitted by the appropriate judicial authority.
petitioner alleges that the State is responsible for having violated the
rights enshrined in Articles 8 (Right to a Fair Trial), Article 11
(Right to Privacy), Article 17 (Rights of the Family), Article 19
(Rights of the Child), Article 26 (Progressive Development), and Article
29 (Restrictions Regarding Interpretation), of the American Convention
on Human Rights (hereinafter the "Convention" or "American Convention")
in conjunction with Article 1.1 (Obligation to Respect Rights) set forth
in the aforesaid instrument. Also according to the petitioner, the State
allegedly violated the right to work as enshrined in Article 6 of the
International Pact on Economic, Social and Cultural Rights. With regard
to admissibility requirements, the petitioner asserts that the ruling in
the supreme court appeal issued by the Constitutional Court on July 19,
2000 exhausted the domestic remedies, and that the petition to the
Commission was submitted within the 6-month period allowed for the
Peruvian State, however, argues that criminal liability, administrative
liability, and where appropriate, civil liability, are separate and
independent issues, and that Mr. Jaulis Cancho's administrative
responsibility for allegedly committing the crime of letting prisoners
escape was established internally, as a result of which he was
disciplined by means of transfer to "non-active status." The State has
submitted no arguments regarding the admissibility of the claim under
analyzing the available information, and verifying compliance with the
admissibility requirements set forth in Articles 46 and 47 of the
American Convention, the Commission declares the case inadmissible given
that the facts alleged by the petitioner do not tend to establish a
violation of the rights guaranteed by the American Convention or of the
Pact of San Salvador. Accordingly, IACRH finds the petition inadmissible
under Article 47.b of the American Convention; it has also decided to
forward the report to the parties, to publish it, and order its
publication in the Annual Report.
BY THE COMMISSION
January 16, 2001, the Commission received the petition dated December
28, 2000. On December 9, 2002, IACHR began processing the petition under
number 32/01 and forwarded the relevant portions of the complaint to the
State, with a two-month deadline for submitting observations in
accordance with the appropriate rules of procedure.
March 4, 2003, the State submitted its observations to the petition in
Report No. 10-2003 CNDH/JUS-SE. These observations were forwarded to the
petitioner on March 5, 2003. The petitioner was given a period of one
month to respond.
April 14, 2003, the petitioner presented his observations to the
above-mentioned state report. The petitioner furnished additional
information in a letter dated June 19, 2004, received at the IACHR
Executive Secretariat on July 27, 2004.
OF THE PARTIES
petitioner alleges international responsibility of the Peruvian State on
the grounds that the National Police arbitrarily punished Mr. Guillermo
Jaulis Cancho by imposing a punishment entailing the latter's removal
from office or "transfer to nonactive status" on grounds of his
allegedly having committed the crime of letting prisoners escape. As a
result, the alleged victim has been arbitrarily deprived of his ability
to do his job as a police officer, and for that reason, he has been
deprived of the livelihood which has enabled him to be the breadwinner
for his family.
the petitioner points out that on December 23, 1992, the alleged victim
received notice of the official letter dated December 16, 1992, which
provided for his "transfer to non-active status as a disciplinary
measure" pursuant to the provisions of Directorial Resolution No.
4526-92-DG-PNP/DIPER. Accordingly, the petitioner wishes to point out
that the preamble to the resolution establishes the following:
have established that the party appealing the action has engaged in
serious actions which have undermined institutional discipline, duty,
honor, decorum, morality, and prestige by virtue of his having allegedly
perpetrated the crime of letting prisoners escape, by allowing prisoner
Juan Laura Coronado to escape.
with this situation, the petitioner indicates that on January 11, 1993
Mr. Guillermo Jaulis Cancho filed an appeal requesting reconsideration (recurso
de reconsideración) of the above-mentioned Directorial Resolution on
the grounds that the authorities "had not investigated the matter
sufficiently, nor had they identified the personal administrative
responsibility" of the individuals who were on guard duty on March 4,
1992, on which date the prisoners had escaped, and on the grounds that
the prisoner's escape had occurred during the period of time in which
he, Mr. Jaulis Cancho, was not on duty. On March 30, 1994, Mr. Jaulis
Cancho was served notice of the Directorial Resolution dated December
30, 1993, which denied his appeal for reconsideration was denied.
the petitioner alleges that at the same time the administrative
proceedings were set in motion, a criminal investigation was opened
under court-martial jurisdiction, on grounds of the alleged crime of
"permitting prisoners escape." In those proceedings, the petitioner
declares that pursuant to a decision dated May 17, 1994, the Second
Chamber of the Second Judicial Zone of the Police System acquitted Mr.
Guillermo Jaulis Cancho, stating specifically that "in the case against
the defendant, no criminal liability is found regarding the crime under
investigation, with the result that he must be acquitted." The
petitioner notes that the aforesaid decision has acquired final (res
judicata) status inasmuch as it has not been appealed.
to the acquittal, on April 25, 1994, Mr. Jaulis Cancho lodged an appeal
(recurso de apelación) against the Directorial Resolution which
had ordered his mandatory retirement. The documents attached to the
petition reveal that on that particular occasion, the applicant
specifically argued that it had been made impossible for him to assert
his right to a defense under administrative law, on the following
If the provisions set forth in the By Laws of the
Board of Investigation had been complied with, and if the evidence in my
defense and my statement to the Board of Investigation had been received
in a timely fashion, my transfer to non-active status would not have
been recommended, nor would I have personally incurred any penalty, for
I would have been allowed to refute the charges against me, just as I
was able to refute them in the judicial proceedings instituted against
me on these same grounds.
notes that the appeal (recurso de apelación) was decided against
Mr. Jaulis Cancho pursuant to a Ministerial Resolution dated May 17,
response to this Resolution, the petitioner indicates that on August 16,
1995, Mr. Jaulis Cancho presented a special appeal (demanda de
impugnación) before the Court Specializing in Civil Affairs
challenging the Administrative Resolutions. The petitioner points out
that the complaint was lodged against the Office of the Ministry of the
Interior and against the Office of the General Director of the National
Police, and in it, the alleged victim specifically requested that the
administrative resolutions in question be declared invalid and that he
be reinstated on active duty with the National Police, with financial
compensation for the entire time that he was wrongly placed on
petition states that on June 23, 1997, the 17th Court Specializing in
Civil Affairs handed down a ruling favorable to Mr. Jaulis Cancho,
specifically stating that:
“(…) at the time the administrative penalty was
imposed on petitioner Jaulis Cancho, his responsibility for the crime in
question had not been sufficiently established (...) and so inasmuch as
the party at that time was the "alleged" perpetrator of a crime, the law
made no provision for imposing a penalty as severe as the one that was
imposed upon him (...) and consequently we find the action against
petitioner Guillermo Jaulis Cancho to be irregular, since the Resolution
rejecting the special appeal (recurso de apelación) makes no
attempt to evaluate the evidence submitted (the acquittal ruling) which
is sufficient in and of itself to invalidate the resolutions issued in
the administrative proceedings that had been instituted against him”.
In connection, the petitioner argues that on that
basis, the Court decided "to find merit in the challenge with particular
reference to the invalidation of the administrative resolutions and
consequently, it found the resolutions null and void; it ordered the
immediate reinstatement of the alleged victim to active duty status with
the National Police, and awarded the petitioner such salary, bonuses,
and other benefits as the petitioner had been deprived of beginning from
the time when he was transferred to non-active status; and the court
ordered payment of compensation in the amount of new soles 20,000."
Regarding the latter matter of compensation, the petitioner indicates
that Mr. Jaulis Cancho lodged a special appeal (recurso de apelación)
on the grounds that he considered it “insufficient”.
The petitioner notes that this decision was
also appealed by the adverse party, and that on March 9, 1998 the
Specialized Temporary Superior Corporative Court (Sala Superior
Corporativa Transitoria Especializada) found the appeal lacking in
merit, declaring that "the breach of discipline which triggered the
penalty imposed upon the named petitioner, has been disproven, as a
result of which the challenged administrative resolutions are null and
void" and that although the "Law on the Status of National Police
Personnel provides that transfer to non-active status on account of
disciplinary proceedings be carried out independently of criminal
penalties, this does not mean that the administrative action is
extraneous to the outcome of the criminal proceedings (....) especially
if we consider that in the case under consideration here, the facts
asserted as a basis for the aforesaid administrative action have been
thoroughly disproven in these proceedings.”
The petitioner indicates that in response to
this favorable appellate decision, the Office of the Chief State Counsel
(Procurador Público) of the Ministry of the Interior filed a
another appeal (Recurso de Casación), which was decided on July
19, 2000 by the Constitutional and Social Law Chamber of the Supreme
Court which found against the alleged victim and ruled that this
particular appeal did have merit, on the grounds that:
criminal investigation is a tool which makes it
possible to determine the liability of the perpetrator for the acts for
which he is charged by virtue of having committed an offense under
criminal law (en la vía penal), which is no basis for
invalidating the penalty assessed against the appellant on grounds of
his liability under administrative law (en la vía administrativa)
on the grounds that he engaged in serious acts detrimental to
institutional discipline, duty, honor, decorum, morality, and prestige,
as has duly been found to have occurred in the case before us here based
on evidence invoked in the administrative proceedings, and which are not
a matter for Supreme Court review, inasmuch as appeals to the supreme
court (recursos de casación) deal with points of law rather than
questions of fact and assessment of evidence.
Based upon the foregoing, the petitioner
requests the Commission declare that the State of Peru is responsible
for violating the rights envisaged in Article 8 (Right to a Fair Trial),
Article 11 (Right to Privacy), Article 17 (Rights of the Family),
Article 19 (Rights of the Child), Article 26 (Progressive Development),
and Article 29 (Restrictions Regarding Interpretation) of the American
With regard to the right to a fair trial set
forth under Article 8 of the Convention, the petitioner notes that the
alleged victim incurred a penalty under administrative law and yet was
simultaneously acquitted under regular criminal law for the same cause.
That notwithstanding, the petitioner claims that the appeal filed to
invalidate the administrative penalty was decided against the alleged
victim on the basis of a misinterpretation of Article 40 of Decree Law
745 on the Status of Police Officers which formally establishes that
criminal penalties, and administrative penalties, are independent.
In relation to the right to privacy, the
petitioner believes that these rights have been violated in a manner
prejudicial to Mr. Jaulis Cancho inasmuch as the latter was "thrown out
of the Peruvian National Police like an alleged criminal." With respect
to the rights of the family and the child, the petitioner asserts that
the Peruvian authorities arbitrarily left Mr. Jaulis Cancho out of a job
and with no income, and thereby left the members of his family in a
vulnerable position, especially his under-age children. Finally, with
regard to Article 26, the petitioner argues that the State has violated
the alleged victim’s economic, social, and cultural rights by depriving
him of employment arbitrarily. In the same way, the petitioner is
asserting a violation of the right to work enshrined in Article 6 of the
International Pact on Economic, Social and Cultural Rights.
As to the fulfillment of the admissibility
requirements, the petitioner maintains that the remedies under domestic
law were exhausted by with the ruling of July 19, 2000, handed down by
the Constitutional and Social Law Chamber of the Supreme Court of
Justice, notice of which was served upon him on July 20, 2000, thereby
complying with the requirement that the petition be lodged within a
period a six months from the date on which the party alleging violation
of rights was notified of the final judgment, as specified by the
Finally, it should be noted that in his
observations to the report filed by the State, the petitioner declares
that the supposed resolution of October 15, 1994 was only mentioned by
the State in its report to the Commission, and no notice thereof was
served upon him domestically nor was the matter brought up at any time
in the judicial proceedings pursued by Mr. Jaulis Cancho. In this
connection, the petitioner maintains that the State's arguments whereby
the above-mentioned resolution was issued "to regularize the status" of
Mr. Jaulis Cancho is an attempt to discredit a legal battle of 10 years'
to the State, on March 4, 1992, while the Senior Deputy Officer (Sub-Oficial
de Primera) of the National Police of Peru, Guillermo Jaulis Cancho,
was on duty with the Police Station at the Víctor Larco Herrera
Hospital, Ward 16, prisoner Juan Laura Coronado escaped or fled from
police custody. This triggered administrative investigations against Mr.
Jaulis Cancho to ascertain his alleged responsibility for these actions.
The State asserts that Investigation Case
File No. 004 JS-MSM-MD of March 5, 1992 established that Guillermo
Jaulis Cancho was “the alleged perpetrator responsible for committing
the crime of letting prisoners go free by allowing the escape of
imprisoned terrorist NN, and had thereby engaged in serious acts that
undermine institutional discipline, duty, honor, decorum, morality, and
prestige." As a consequence, the Regional Investigation Council for
Deputy Officers and Specialists of the National Police of Peru, in its
writ No. 1033 of July 31, 1992, recommended that the alleged victim be
transferred "from active duty status to non-active status as a
disciplinary measure." The State indicates that this recommendation was
formalized through the issuance of Directorial Resolution No.
4526-92-DGPNP/DIPER of October 15, 1992.
The State notes that subsequently, pursuant
to Directorial Resolution Nº 4221-93-DGPNP/DIPER of December 30, 1993, a
decision was made to declare without merit the appeal for
reconsideration lodged by Mr. Jaulis Cancho against the Directorial
Resolution mentioned earlier. The State declares that Mr. Jaulis Cancho
was duly served notice of this administrative action.
The State goes on to say that on April 25,
1994, the alleged victim filed a special appeal (recurso de apelación)
against the Directorial Resolution which had dismissed the party's
earlier appeal for reconsideration as lacking in merit. The alleged
victim took this step on the grounds that he had been acquitted (under
criminal law) of the crime of letting prisoners escape. The State notes
that this appeal was likewise found to be without merit pursuant to
Opinion Nº 1326-94-DGPNP-AJ of July 21, 1994. This opinion stated as
follows: "(...) to reject the appeal as lacking in merit, inasmuch as
the [administrative] action in question was issued in accordance with
the law and the appellant has failed to back up his claim by using a
different interpretation of the evidence produced, nor is he addressing
issues of pure law, bearing in mind that the appellant has engaged in
serious actions which jeopardize the reputation and prestige of the
institution, and bearing in mind that administrative actions are
independent of criminal actions."
The State declares that in order to
regularize the interested party's unresolved status, a new Directorial
Resolution Nº 5966-95-DGPNP/DIPER was issued on December 4, 1994,
ordering that the alleged victim be transferred to retirement status by
virtue of the fact that he had reached the maximum period of time that
he was allowed to remain in non-active status, and this regularization
resolution was dated October 15, 1994.
Finally, the State sustains that criminal
liability, administrative liability, and where appropriate, civil
liability, are separate and/or independent issues, and that it has been
internally established that the petitioner was liable, under
administrative law, for the escape of the prisoner, which justified the
penalty imposed irrespective of whether the alleged victim was acquitted
under criminal law.
of the Commission ratione personae,
ratione materiae, ratione temporis, and ratione loci
The petitioner has authority under Article
44 of the American Convention to lodge petitions on behalf of the party
alleging violation of his rights, whose rights, enshrined in the
American Convention, the Peruvian State had undertaken to respect and
guarantee. Peru has been a State party to the American Convention since
July 28, 1978, the date on which it deposited its instrument of
ratification. Accordingly, the Commission has jurisdiction ratione
personae to examine the petition.
In addition, the Commission has jurisdiction
ratione loci to consider the petition, because the petition
alleges violations of rights protected under the American Convention
which ostensibly took place under the jurisdiction of the State in
question. The Commission has jurisdiction ratione temporis to
consider the claim because the obligation to respect and guarantee the
rights protected under the American Convention was already in force for
the State of Peru on the date on which the facts alleged in the petition
are supposed to have occurred.
Finally, the Commission has jurisdiction
ratione materiae to try this case, because the petition refers to
possible violations of human rights protected under the American
Convention. With respect to possible violations under the International
Pact on Economic, Social and Cultural Rights, the Commission wishes to
observe that this is an instrument which does not empower the Commission
to apply the Pact in the exercise of its powers within the system of
individual petitions, and accordingly declares that it lacks
jurisdiction ratione materiae to pass judgment on the matter.
requirements for admissibility of the petition
of domestic remedies
46.1.a of the American Convention states that
the Commission of a petition or communication lodged in accordance with
Article 44 shall be subject to the requirement that the remedies under
domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law.
This requirement is designed to ensure that the national authorities can
assess an alleged violation of a protected right, and, if appropriate,
resolve it before it is tried by an international court.
The requirement of
prior exhaustion of remedies is applied when the national system does
actually have available mechanisms that are adequate and effective for
remedying the alleged violation. Thus, Article 46.2 specifies that the
requirement is not applied when the domestic legislation of the state
concerned does not afford due process of law for the protection of the
right or rights that have allegedly been violated; the party alleging
violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them; or there has
been unwarranted delay in rendering a final judgment under the
aforementioned remedies. According to Article 31 of the Rules of
Procedure of the Commission, when the petitioner contends that he or she
is unable to prove compliance with the requirement indicated in this
article, it shall be up to the State concerned to demonstrate to the
Commission that the remedies under domestic law have not been previously
exhausted, unless that is clearly evident from the record.
As may be inferred from the principles of
international law, as reflected in the precedents of the Commission and
the Inter-American Court, the fact remains, in the first instance, that
the defendant State may expressly or tacitly waive the right to invoke
Second, in order for it to be timely, the objection that domestic
remedies have not been exhausted must be raised in the early stages of
the proceedings before the Commission, failing which the interested
State shall be presumed to have tacitly waived the option to avail
itself of this objection.
Third, depending upon the burden of proof applicable in such cases, the
State invoking the objection that domestic remedies have not been
exhausted shall specify which domestic remedies have still to be
exhausted in addition to showing proof of their effectiveness.
Consequently, if the State in question fails to submit timely arguments
concerning this requirement, the State shall be deemed to have waived
its right to invoke failure to exhaust domestic remedies and thus to
have failed to meet its burden of proof in the matter.
In the present case, the State failed to
enclose with its filings any arguments concerning the fulfillment of
admissibility requirements by the petition under consideration here. As
a result, the Commission finds that the State has tacitly waived its
right to assert such a defense.
In any event, the Commission considers that
domestic remedies were conclusively exhausted with the decision by the
Constitutional and Social Law Chamber of the Supreme Court of Justice of
March 13, 2000, which passed a final judgment on the proceedings (acción
de nulidad) seeking to invalidate the resolutions which disciplined
the party alleging violation of his rights and which issued decisions on
the regular appeals under administrative law. Accordingly, the
Commission finds that the requirement of prior exhaustion of domestic
remedies has been met.
for lodging the petition
Article 46.1.b of the Convention states that
admission by the Commission of a petition or communication lodged in
accordance with Articles 44 or 45 shall be subject to the requirement
that the petition be 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 under domestic law.
Based upon the documentation submitted with
the petition, the Commission finds that the decision handed down by the
Constitutional and Social Law Chamber of the Supreme Court of Justice on
March 13, 2000, which exhausted the remedies under domestic law, was
served on the party alleging violation of his rights on July 20, 2000.
The petition was lodged on January 16, 2001, and consequently, the
Commission deems that the above-mentioned admissibility requirement has
of proceedings and res judicata at the international level
46.1.b provides that
admission of a
petition or communication is subject to the requirement "that the
subject of the petition or communication is not pending in another
international proceeding for settlement,"
while Article 47.d of the Convention states that the Commission shall
consider inadmissible any petition or not admit a petition when "the
petition or communication is substantially the same as one previously
studied by the Commission or by another international organization." The
record does not suggest that the subject matter of the petition is
awaiting decision in another international proceeding for settlement nor
does it indicate that
the petition is the
same as one previously studied by the Commission or by another
Accordingly, the requirements specified in the above-mentioned articles
are considered to have been met.
the alleged facts
47.b of the Convention establishes that the Commission shall declare
inadmissible a petition when
it does not state
facts that tend to establish a violation of the rights guaranteed by
Accordingly, the Commission shall then analyze whether the facts
denounced on this occasion constitute a violation of the articles of the
Convention invoked by the petitioner.
In the case at hand, the petitioner alleges
violations of the rights enshrined in Articles 8, 11, 17, 19, 26, and 29
of the American Convention, in conjunction with Article 1.1 thereof, in
addition to violation of Article 6 of the International Pact on
Economic, Social and Cultural Rights. For its part, the State maintains
that the proceedings whereby Mr. Guillermo Jaulis Cancho incurred the
penalty of removal from office were conducted in accordance with
internal rules and regulations and with the guarantees of due process.
First, as noted earlier the Commission is
not competent to pass judgment on the International Pact on Economic,
Social and Cultural Rights, and accordingly, the characterization of the
alleged facts will focus strictly on the provisions of the American
Convention. Furthermore, with particular reference to the alleged
violation of the rights enshrined in Articles 11, 17, 19, 26, and 29 of
the American Convention, the Commission finds that the alleged facts do
not correspond to the content of any of these provisions, and in
consequence, the Commission shall rule the case inadmissible with
particular reference to these assertions.
Second, concerning the alleged violation of
the right to a fair trial enshrined in Article 8 of the Convention, the
Commission notes that the petitioner asserts that the alleged victim
incurred a penalty under administrative law while simultaneously being
acquitted of those same charges under criminal law. Notwithstanding the
above, the petitioner alleges that the appeal to the supreme court (recurso
de casación) which the alleged victim filed in an effort to overturn
the administrative penalty was decided against him as the result of a
misinterpretation of Article 40 of Decree Law 745 on the Status of
Police Officers according to which criminal penalties, and
administrative penalties, are separate matters.
For its part, the Peruvian State argues that
criminal liability, administrative liability, and where appropriate,
civil liability, are separate and independent matters, and that Mr. Jaulis
Cancho's administrative liability for allegedly committing the crime of
letting a prisoner escape was established internally, whereupon Mr.
Jaulis Cancho was disciplined through involuntary transfer to
"non-active status" (situación de disponibilidad).
In this connection, the Commission considers
it pertinent to point out that criminal law, and
administrative/disciplinary law, serve entirely different purposes.
Criminal law is designed to pass judgment and, where appropriate, to
punish those responsible for perpetrating crimes or criminal offenses
established under the pertinent criminal codes. In contrast,
administrative/disciplinary law is designed to determine official
responsibility and if necessary to discipline government employees who
fail to fulfill their duties in accordance with pertinent staff
regulations. In this respect, the Commission believes that while the
guarantees of legal due process should be applied in both legal systems,
the latter are nonetheless separate entities and one particular fact or
situation may be analyzed from the perspective of criminal law as well
as from the perspective of disciplinary law, inasmuch as the two
approaches are designed to achieve different objectives and entail the
application of different standards for the assessment of the challenged
This conclusion has been reaffirmed in
various ways in the decisions of European courts, in the sense that it
has been recognized that one particular fact may give rise to criminal
penalties on the one hand, and to administrative penalties on the other
And these can be mutually compatible even if they are imposed on one and
the same person.
Nonetheless, European court decisions have
also delineated the nature of these penalties and the nature of criminal
and administrative proceedings, with each legal sphere being governed by
On that basis, it is possible to argue that the same facts may give rise
to independent proceedings in different jurisdictions, and consequently,
may lead to different results depending on whether the goal is to
determine administrative liability, or criminal liability, regarding one
In light of the foregoing considerations,
the Commission believes that the interpretation and decision of the
Constitutional and Social Law Chamber of the Supreme Court of Justice,
in its decision of March 13, 2000 regarding the separate nature of the
criminal and administrative procedures pursued against Mr. Jaulis Cancho,
entails no violation of the American Human Rights Convention.
arguments submitted by the parties and the evidence in the record point
to no judicial arbitrariness, nor do they suggest that the party
alleging violation of his rights has been prevented from gaining access
to remedies under domestic law in accordance with due process
The Commission finds that in light of the
foregoing considerations, the petition does not state facts that tend to
establish a violation of the rights recognized in the American
Convention and accordingly the petition shall be ruled inadmissible.
Based on the de jure and de facto
arguments set forth above, the Commission considers that the petition is
inadmissible under the requirements established in Article 47.b of the
American Convention, as it fails to state facts tending to establish a
violation of rights protected under the Convention.
COMMISSION ON HUMAN RIGHTS,
1. To declare
this petition inadmissible.
2. To serve
notice of this decision on the petitioners and on the State.
3. To publish
this decision and include it in its Annual Report to the OAS General
Done and signed in the city of Washington, D.C., on the
21st day of the month of October, 2006. (Signed): Evelio
President; Paulo Sérgio Pinheiro,
First Vice-President; Florentín Meléndez, Second Vice-President;
Freddy Gutiérrez Trejo, Paolo Carozza and Víctor E. Abramovich,
IACHR, Report No. 69/05, Petition 960/03. Admissibility, Iván Eladio
Torres (Argentina), October 13, 2005, para. 42;
I/A Court H. R., Case of Ximenes Lopes. Preliminary Objections.
Judgment of November 30, 2005. Series C No. 139, para. 5; I/A Court
H.R., Case of the Moiwana Community.
Judgment of June 15, 2005.
Series C No. 124, para. 49; and I/A Court H. R., Case of
the Serrano Cruz Sisters.. Preliminary Objections. Judgment of
November 23, 2004. Series C No. 118, para. 135.
I/A Court H.R., The Mayagna (Sumo) Awas Tingni Community Case.
Preliminary Objections. Judgment of February 1, 2000. Series C
No. 66, para. 53; I/A Court H.R., Castillo Petruzzi Case.
Preliminary Objections. Judgment of September 4, 1998. Series C
No. 41, para. 56; and I/A Court H.R., Loayza Tamayo Case.
Preliminary Objections. Judgment of January 31, 1996. Series C
No. 25, para. 40. The Commission and the Court found that the early
stages of the proceedings are to be defined as the stage of
admissibility of the proceedings before the Commission, or rather,
prior to any considerations as to the merits. See, for example,
IACHR, Report No. 71/05, petition 543/04, Admissibility, Ever de
Jesús Montero Mindiola, Colombia, October 13, 2005, citing, I/A
Court H. R., Case of Herrera Ulloa. Judgment of July 2, 2004.
Series C No. 107, para. 81.
I/A Court H.R.,
Report Nº 32/05, Petition 642/03, Admissibility. IACHR, Report No.
Luis Rolando Cuscul Pivaral et al. (persons living with
HIV/AIDS), Guatemala, March 7, 2005,
33-35; I/A Court H.R., The Mayagna (Sumo) Awas Tingni Community
Case. Preliminary Objections, supra, Note 3, para. 53;
I/A Court H.R., Durand and Ugarte Case. Preliminary Objections.
Judgment of May 28, 1999. Series C No. 50, para. 33; and Cantoral
Benavides Case. Preliminary Objections. Judgment of September 3,
1998. Series C No. 40, para. 31.
The Constitutional and Social Law Chamber of the Supreme Court of
Justice found as follows in its July 19, 2000 ruling: