REPORT
Nº 85/01 CASE
12.084 WORKERS
OF THE METROPOLITAN MUNICIPALITY OF LIMA AND
THE MUNICIPAL SERVICES COMPANY OF LIMA, PERU October
10, 2001
I.
SUMMARY
1.
On January 13, 1999, the Inter-American Commission on Human Rights
(hereinafter referred to as the “Inter-American Commission,”
“Commission,” or “IACHR”) received a petition from the Union of
Municipal Workers of Lima (SITRAMUN-LIMA), the Federation of Municipal
Workers of Peru (FETRAMUNP), and the Lay-Offs Committee of the Municipal
Maintenance Services Company of Lima (ESMLL) (hereinafter referred to as
“petitioners”) against the Republic of Peru (hereinafter “Peru,”
“Peruvian State,” or “State”).
The petitioners allege that the Metropolitan Municipality of Lima
has failed to comply with judicial decisions ordering it to re-employ
laid-off workers (employees and laborers), to rescind wage reductions, and
to comply with collective labor agreements.
The petitioners maintain that these instances of noncompliance
constitute a violation by the Peruvian State of the right to judicial
protection established in Article 25 of the American Convention on Human
Rights (hereinafter referred to as the “American Convention” or
“Convention”).
2.
The state has not responded to this petition. 3.
The IACHR, pursuant to the provisions of Articles 46 and 47 of the
American Convention, decided to admit the petition inasmuch as possible
violations of Articles 1(1) and 25(2.c) of the American Convention are
concerned, and to initiate procedures to determine the merits of the case.
The Commission also decided to notify the parties of this decision
and to publish it and include it in its Annual Report to the OAS General
Assembly.
II.
PROCEDURES OF THE COMMISSION 4.
On January 19, 1999, the Commission sent the pertinent portions of
the complaint to the Peruvian State and asked it to submit information
within a period of 90 days. On
March 4, 1999, a hearing was held by the IACHR at the petitioners’
request. On April 14, 1999,
the Mayor of Lima, Mr. Alberto Andrade Carmona, submitted an amicus
curiae response, both on his own behalf and on behalf of the
Metropolitan Municipality of Lima. On
April 19, 1999, the Peruvian State requested that the time for submitting
information be extended. On
June 4, 1999, the Commission granted the request for an extension of 90
days, counting from the date the extension was granted.
On June 9, 1999, the IACHR made itself available to the parties to
initiate friendly settlement proceedings.
This was accepted by both parties. 5.
On June 11, 1999, the Commission sent additional information
provided by the petitioners to the State and asked it to submit
information within 60 days, counting from that date.
On September 10, 1999, the IACHR advised the State that it agreed
to suspend the deadline set in the letters from the IACHR dated June 4 and
11, 1999. 6.
Between September 1999 and June 2000, the parties reported
periodically to the Inter-American Commission on the status of the
negotiations they were conducting to seek a possible friendly settlement.
On October 13, 2000, a working meeting was held between the IACHR
and both parties at IACHR headquarters.
At that meeting, the petitioners reported that on March 15, 2000,
they had reached an agreement on a friendly settlement with the State, and
that they had signed a document to that effect.
The State indicated that the persons who had signed the document
pertaining to the friendly settlement had acted beyond their authority,
and that it did not recognize that document as valid. 7.
On October 31, 2000, the State requested the IACHR to go on with
friendly settlement proceedings. On
November 3, 2000, the Commission confirmed to both parties that it was
prepared to assist in seeking a friendly settlement, and it established a
period of 17 days for that purpose. On
November 20, 2000, the State asked the IACHR to consider the friendly
settlement process as concluded, and the petitioners presented the same
request on November 24, 2000. 8.
On April 6, 2001, the State reported that it had set up a
multisectoral negotiating committee to be in charge of seeking possible
solutions in an attempt to conclude a friendly settlement in the present
case. On June 4, 2001, the
Commission was informed that, by Ministerial Resolution N° 114-2001-PCM,
the State had decided to consider the work of that multisectoral
committee as finished, and “to have the present case resolved on the
basis of the decision adopted by the Inter-American Commission on Human
Rights in accordance with the procedure in effect.” 9.
On August 24, 2001, the Commission formally concluded its
participation in the friendly settlement procedure in the present case and
advised the State that the suspension of the deadlines referred to in the
IACHR’s letter of September 20, 1999, was null and void.
At the same time, the IACHR requested that the State file its
response to the petition within thirty days.
The State responded on September 21, 2001. III.
POSITION OF THE PARTIES A.
Position of the petitioners 10.
They allege that the Metropolitan Municipality of Lima has not
complied with the judicial decisions ordering it to re-employ the workers
(employees and laborers) who had been laid off, to rescind the wage
reductions, and to comply with collective labor agreements.
In this regard, the petitioners reported in their original
complaint that, as of that point in time, the Metropolitan Municipality of
Lima had failed to comply with the following decisions: (i) Final judgment of February 6, 1997, issued by the Corporate Court
Specializing in Public Law [Sala
Corporativa Especializada en Derecho Público]; in execution of that
decision, on June 13, 1997, the competent lower court [Juzgado de Primera Instancia] ordered the Metropolitan Municipality
of Lima to reinstate over 400 workers in that municipality who had been
affected by various resolutions according to which said workers were
dismissed for redundancy. These
dismissal resolutions were issued pursuant to Mayoral Resolution N°
033-A-96, dated January 16, 1996, which ordered a workers’ evaluation
process. (ii) Final judgment of September 23, 1998, issued by the Corporate Court
Specializing in Public Law; in execution of that decision, on November 19,
1998, the competent lower court ordered the Metropolitan Municipality of
Lima to reinstate the workers in that municipality affected by Resolution
No. 3776, issued on December 7, 1996, pursuant to which 318 workers of the
Municipality of Lima had been dismissed. The plaintiffs in the proceeding that gave rise to those
decisions were Mrs. Victoria Lavaro Yaca and others. (iii) Final judgment of November 16, 1998, issued by the Corporate Court
Specializing in Public Law; in execution of that decision, on December 23,
1998, the competent lower court ordered the Metropolitan Municipality of
Lima to reinstate 483 workers of that municipality affected by various
resolutions providing for the dismissal of those workers, on the basis of
Mayoral Resolution No. 575 dated April 1, 1996. That Resolution had declared a strike illegal and had warned
workers not to participate in it, on threat of administrative sanctions. (iv) Final judgment of December 10, 1997, issued by the Constitutional
Court, in application of which the competent lower court, on October 19,
1998, ordered that the Metropolitan Municipality of Lima settle, for the
benefit of its workers, the difference corresponding to the reduction in
their wages that had been approved by Mayoral Resolution N° 044-A-96,
which resulted in a thirty percent decrease in the wages and pensions of
all the workers. (v) Final judgment issued on November 18, 1998 by the Corporate Court
Specializing in Public Law, in execution of which the competent lower
court, on December 22, 1998, ordered that the Metropolitan Municipality of
Lima comply with the collective labor agreements concluded between 1989
and 1995, including their effects on wages and other compensation, and the
unpaid wages from September to December 1995. (vi) Final judgment issued on July 27, 1998 by the Corporate Court
Specializing in Public Law, in execution of which on September 22, 1998,
the competent lower court ordered the Metropolitan Municipality of Lima to
rescind Ordinance Nº 117 dated July 4, 1997, which provided for the
continued application of Law 26093 and for the continued practice of
evaluations and for further dismissals for redundancy. (vii) Final judgment of April 3, 1998, issued by the Constitutional
Court, which ordered the reinstatement to the Metropolitan Municipality of
Lima of 16 workers who had been dismissed pursuant to Mayoral Resolutions
Nº 572, 914, 1041, 1028, 1048, 1085, 1124, 1249, 1250, 1254, 1255, 1259,
1300, 1306, 1366, 1370, 1963, 1970, 1971, and 1988. (viii) Final judgment of July 14, 1998, issued by the Corporate Court
Specializing in Public Law, in execution of which the lower court, on
September 24, 1998, ordered the Metropolitan Municipality of Lima to
reinstate five workers who were dismissed by Mayoral Resolutions Nos. 786,
895, 899, 1252, and 1260. (ix) Final judgment of May 13, 1998, issued by the Constitutional Court,
in execution of which the lower court, on November 30, 1998, ordered the
Metropolitan Municipality of Lima to reinstate four workers who were
dismissed by Mayoral Resolutions Nº 848, 911, 1037, and 2020. (x) Final judgment of October 16, 1998, issued by the Constitutional
Court, which ordered the Metropolitan Municipality of Lima to reinstate a
worker who was dismissed by Mayoral Resolution N° 1151. (xi) Final judgment of June 6, 1997, issued by the Corporate Court
Specializing in Public Law, in execution of which, on January 19, 1998,
the competent lower court ordered the Metropolitan Municipality of Lima to
reinstate three workers of that municipality who had not reached an
agreement with the Municipality regarding compliance with the aforesaid
decision and who insisted on their reinstatement, in accordance with the
decision referred to. (xii) Final judgment dated July 8, 1998, issued by the Constitutional
Court, in execution of which the competent lower court, on November 25,
1998, ordered the Metropolitan Municipality of Lima to reinstate the
workers of the Municipal Maintenance Services Company of Lima (ESMLL) who
had not collected their social benefits. B.
Position of the State 11.
The State did not file a response to the allegations by the
petitioners, nor did it question the admissibility of the petition under
consideration. In its
response dated September 21, 2001, the State indicated that “it had
decided to wait for the decision to be adopted by the honorable
Commission.” IV.
ANALYSIS 12.
The Commission undertook an analysis of the requirements for
admissibility of a petition, as established in the American Convention. A.
Competence of the Commission
ratione personae, ratione loci, ratione temporis, and ratione
materiae 13.
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.
In this regard, and for the purposes of this report on
admissibility, the Commission considers as presumed victims in this matter
all the workers (employees and laborers) covered by the decisions referred
to in paragraph 10 above, or their surviving family members, as
applicable. This does not
preclude the possibility that the Commission, having heard the arguments
of the parties on the matter, could make a final determination as to the
presumed victims and the decisions included in the case when it decides on
the merits of the case. 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.
14. The
Commission has jurisdiction ratione
loci to consider this petition, because the petition alleges
violations of the rights protected by the American Convention that
occurred within the territory of a state party to that agreement. 15.
The IACHR has jurisdiction 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 in the Peruvian State. 16.
Finally, the Commission has jurisdiction ratione
materiae, because the petition reports violations of human rights
protected by the American Convention. B.
Requirements for admissibility of the petition 1.
Exhaustion of domestic remedies 17.
The petition under consideration refers to noncompliance with court
decisions which ordered the Metropolitan Municipality of Lima to reinstate
workers (employees and laborers) who had been dismissed, to rescind wage
reductions, and to comply with collective labor agreements. 18.
The State has not submitted any pleas in relation to the
requirement that domestic remedies be exhausted.
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.” 19.
The Commission considers that the requirement specified in Article
46(1)(a) of the American Convention has been met. 2.
Deadline for lodging the petition 20.
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: noncompliance
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.[1] 21.
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 the judgments issued by the Constitutional
Court, the Corporate Court Specializing in Public Law, and the lower
courts, which ordered that the dismissed workers (employees and laborers)
be reinstated, that the wage reductions be rescinded, and that collective
labor agreements be honored. In this regard, the Commission finds that the petition in
question was lodged within a reasonable period of time, pursuant to the
terms of Article 32 of its Regulations, equivalent in content to the terms
of Article 38 of the Regulations pertaining to the deadline for
presentation of petitions. 3.
Duplication of procedures and res
judicata 22.
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. 4.
Description of the facts 23.
The Commission considers that the statement by the petitioners
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. V.
CONCLUSIONS
24.
The Commission concludes that it is competent to consider this
petition and that it is admissible, pursuant to Articles 46 and 47 of the
American Convention. 25.
On the grounds of the above-mentioned arguments based on the facts
and the law, and without prejudging the merits of the matter, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES: 1.
To declare the petition admissible in respect of possible
violations of Articles 1(1) and 25(2)(c) of the American Convention on
Human Rights. 2.
To notify the parties of this decision. 3.
To initiate proceedings on the merits of the case. 4.
To publish this decision and include it in its Annual Report to the
OAS General Assembly. Done
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. [ Table of Contents | Previous | Next ]
[1]
Inter-American Court
of Human Rights, Velásquez Rodriguez Cae, Preliminary Pleas, Decision
of June 26, 1987, Series C, Nº 1, par. 8; Fairén Garbi and Solis
Corrales Case, Preliminary Pleas, Decision of June 26, 1987, Series C,
Nº 2, par. 87; Gangaram Panday Case, Preliminary Pleas, Decision of
December 4, 1991, Series C, Nº 12, par. 38; Loayza Tamayo Case,
Preliminary Pleas, Decision 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. |