The Inter-American Commission on Human Rights (hereinafter the
“Commission,” the “Inter-American Commission,” or the “IACHR”)
received a petition, dated June 25, 1998, lodged by Mrs. Liliana Zambrano
Pacheco (hereinafter the “petitioner”), alleging that the Republic of
Peru (hereinafter “Peru,” the “State,” or the “Peruvian
State”) had violated her human rights by unlawfully relieving her of her
duties as an administrative official with the Arequipa Municipal Council.
The Peruvian State maintains that the petition is inadmissible as
it was not lodged within the six-month period allowed under Article
46(1)(b) of the American Convention on Human Rights (hereinafter “the
Convention” or “the American Convention”).
In keeping with Articles 46(1)(b) and 47(a) of the American
Convention, the IACHR decides to declare the petition inadmissible.
The Commission also decides to notify the parties of this decision,
to publish it, and to include it in its Annual Report to the OAS General
PROCESSING BY THE COMMISSION
On June 25, 1998, the petitioner sent her petition to the
Inter-American Court of Human Rights in Costa Rica.
The Inter-American Court received the petition on July 1, 1998, and
forwarded it to the IACHR on July 2, 1998.
The IACHR received it on July 27, 1998.
On August 27, 1999, the Commission decided to open the case,
pursuant to the Regulations then in force, transmitted the pertinent parts
of the petition to the Peruvian State, and requested that it present
information within 90 days. On
November 26, 1999, the Peruvian State forwarded its reply. On February 16,
2000, the petitioner submitted observations on the State’s reply. On May
3, 2000, the State provided additional information.
POSITION OF THE PARTIES
Position of the petitioner
The petitioner indicates that, in 1980, she was hired by the
Arequipa Municipal Council as an administrative official, a time when the
Civil Service Statute and Career Scale established by Legislative Decree
11377 was in force. She adds that, pursuant to that decree, the aptitude
and ability of public officials was evaluated at the time of their entry
into government service.
She states that on December 28, 1992, the Government of Peru issued
Legislative Decree 26093, which provides that all Peruvian public
officials, regardless of date of entry into government service, were to be
evaluated every six months, and that those who did not meet the standard
were to be relieved of their duties on the grounds of redundancy.
The petitioner alleges that, through retroactive application of
Legislative Decree 26093 and application of the second paragraph of the
eighth transitory and final provision of Law 26553, the Mayor of Arequipa
Municipal Council, Roger Cáceres Pérez, decided to implement a staff
She indicates that, in application of that program, she, along with
all municipal government officials, was required to take an evaluation
exam. Had she refused, she
could have been dismissed for failure to take the exam.
She alleges that the examination was marked by the Arequipa
Municipal Council officials themselves, “exclusively on the basis of the
criteria of those public officials subordinate to the Mayor of Arequipa.”
She states that the Mayor availed himself of the occasion to
relieve of their duties all workers who had not found favor with him or
did not share his political views and that, to that end, he issued
Municipal Resolution Nº 279-E-96, which, as of December 1, 1996, made the
petitioner redundant, alleging that she had not attained the minimum
standard in the evaluation.
She alleges that the resolution relieving her of her duties failed
to mention that the written exam had not been made available to her so
that she could check the mark she had been given, and that it also failed
to mention that, as a career official who had obtained her position
through public competitive examination, she was not required to take the
examination, and its marking was irrelevant in her case.
She indicates that, having exhausted the administrative appeals
procedure, she applied for a writ of amparo
against the Mayor of Arequipa for violation of her constitutional rights
of employment, due process, and against retroactive application of the
law, requesting that the said municipal resolution relieving her of her
public duties be declared inapplicable and that she be reinstated in her
position, with all allowable back payments.
She states that, in judgment Nº 16-97, issued by the First Civil
Court of Arequipa, on January 10, 1997, this court of first instance found
in her favor, established that the said resolution relieving her of her
duties did not apply, and ordered that she be reinstated as a public
official, with back payment plus interest.
She indicates that Arequipa Municipal Council appealed against that
decision to the First Civil Chamber of the Superior Court of Justice of
Arequipa. That court issued
its decision on February 27, 1997, overturning the lower court’s
decision and finding that a writ of amparo
was not the appropriate instrument to establish the legality of
She states that an appeal was lodged with the Constitutional Court
against the decision of the Superior Court.
On August 22, 1997, that Court issued its decision, in which it
also found that there were no grounds for the judgment of the court of
first instance, as it did not consider that the petitioner’s
constitutional rights had been violated.
The petitioner alleges that the instant petition was lodged as soon
as she was notified of the aforementioned decision of the Constitutional
Court of August 22, 1997.
Position of the State
The State notes that, on January 3, 1997, the Arequipa Municipal
Government responded to the writ of amparo
for which the petitioner had made application to the First Civil Court of
Arequipa, claiming that, in evaluating the staff, all requirements had
been satisfied and all regulations followed.
The State indicates that, by decision of January 10, 1997, the
First Civil Court of Arequipa found without substance the objections made
by the aforementioned municipal government and allowed the application for
amparo, considering mainly that “Both Law Nº 11377 and
Legislative Decree 276 applied to the applicant.
Therefore, the provisions of Law 26553 did not apply (…)”.
It states that the respondent municipal government filed an appeal
with the First Civil Chamber of the Superior Court of Justice of Arequipa.
It alleges that, in its decision of February 27, 1997, the Civil
Chamber set aside the lower court’s decision and found the application
for amparo inadmissible, as it considered that “the fact that the
plaintiff had entered into service prior to the issuing of the provisions
ordering the evaluation does not imply that they were retroactively
applied … [and] that the residual remedy of amparo
is not an appropriate instrument to establish the legality of the
administrative steps taken to evaluate staff.”
It states that Mrs. Zambrano Pacheco lodged an appeal to have the
aforementioned judgment reversed (recurso
de casación), “and, therefore, in keeping with the principles of
recognition and respect for due process and the right of legal pluralism (pluralidad
de instancias), observed throughout the process, the action was
brought before the Constitutional Court, pursuant to Article 41 of its
It indicates that the Constitutional Court issued its judgment on
August 22, 1997, “rescinding the decision of the First Civil Chamber of
the Superior Court of Justice of Arequipa, of February 7, 1997, which
found the application for amparo
inadmissible, and amending that decision to read that the grounds for the
application were unsubstantiated,” arguing that Mrs. Zambrano Pacheco
was relieved of her duties pursuant to Decree Law Nº 26093, and that
“there is no evidence or opinion to substantiate the citizen’s claim
that her constitutional rights were violated.”
The State alleges that the petitioner was notified of the
aforementioned judgment of the Constitutional Court “which exhausted the
domestic remedies” on October 28, 1997.
The State indicates that the pertinent parts of the petition were
transmitted to it on August 27, 1999, and that, as the State was given no
indication of the date on which the petition was lodged with the IACHR, it
must be inferred that, “in keeping with the presumption of good faith
and with the initial processing as regulated (…), the date recorded in
the pertinent parts (…) is a transcription of the date of receipt
recorded on the original petition lodged by the petitioner.”
It alleges that, in view of the foregoing, it must be inferred that
the date on which the petition was lodged with the IACHR was August 27,
1999, and that, as the petitioner was notified of said judgment of the
Constitutional Court on October 28, 1997, the petition must be declared
inadmissible, as the period between the two dates was considerably longer
than that allowed under Article 46(1)(b) of the American Convention for
lodging petitions with the IACHR, which is a period of six months from the
date on which the party alleging the violation of his rights was notified
of the decision that exhausted the domestic remedies.
ANALYSIS OF ADMISSIBILITY
The Commission now proceeds to examine the requirements established
in the American Convention for admissibility of a petition.
Competence ratione personae,
ratione loci, ratione temporis, and ratione
materiae of the Commission
27. The petitioner satisfies the requirements for
filing petitions with the IACHR set forth in Article 44 of the American
Convention. The petition
states that the alleged victim is a person whose rights, as enshrined in
the American Convention, Peru undertook to respect and guarantee.
As concerns the State, the Commission notes that Peru has been a
State Party to the American Convention since July 28, 1978, the date of
deposit of its instrument of ratification.
Therefore, the Commission has competence ratione personae to examine the case.
28. The Commission has
competence ratione loci to
examine the case, as the petition alleges violations of rights protected
by the American Convention taking place within the territory of a State
The IACHR has competence ratione
temporis, in that the incidents alleged in the petition took place
when the obligation to respect and guarantee the rights established in the
Convention was in force for the Peruvian State.
30. Lastly, the Commission has competence ratione materiae, as the petition alleges violations of human rights
protected by the American Convention.
Requirements for admissibility of the petition
31. The Commission now proceeds to analyze the
requirement for admissibility of the petition set forth in Article
46(1)(b) of the Convention, which provides that:
Admission by the Commission of a petition or communication lodged
in accordance with Articles 44 or 45 shall be subject to the following
requirements: (…) b. that the
petition or communication is 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.
the present matter, the Peruvian State alleges that the petitioner was
notified of the judgment that exhausted the remedies provided by domestic
law on October 28, 1997. In
that connection, the Commission notes that, in answering the State’s
assertion, the petitioner only alleged that she had sent the petition as
soon as she was notified of the judgment of the Constitutional Court, but
did not contradict that assertion, nor did she demonstrate that she had
been notified of that judgment on a date other than that alleged by the
State. In that connection,
the IACHR takes as substantiated that on October 28, 1997, the petitioner
was notified of the Constitutional Court’s judgment of August 22, 1997.
With respect to the date on which the petition was lodged with the
Commission, Peru contends that the pertinent parts of the petition were
transmitted to it on August 27, 1999, and that, as the date on which the
petition was lodged with the IACHR was not indicated on the pertinent
parts of the petition, it must be inferred that it was on that same
date—that is, August 27, 1999—that the petition was lodged with the
In that connection, the Commission must note that the date the
petition was lodged with the IACHR is of course not the same date as the
date of when the pertinent parts of the petition were transmitted to the
State. The IACHR receives petitions through its Executive
Secretariat, studies them, and then sends the State the pertinent parts of
those petitions that comply prima
facie with the applicable requirements.
The effective date for calculation of the period stipulated in
Article 46(1)(b) of the Convention is the date that the petition is lodged
with the Commission, and not that of the transmittal of the pertinent
parts of the petition to the State.
The instant petition contains a certified copy issued by the
Lima-based Serpost postal
company that shows that the petition was sent by the petitioner to the
Inter-American Court of Human Rights, in San José, Costa Rica, on June
The Inter-American Court received the petition on July 1, 1998,
sent it to the IACHR the following day, and notified the petitioner of its
action. The IACHR received
the petition on July 27, 1998, and recorded that date in the register of
In that connection, it should be noted that even if the view more
favorable to the petitioner is taken, which is to take the petition as
presented on June 25, 1998, the proven date of receipt of the petition by
the Inter-American Court, the petition is still time-barred, as there is a
period of seven months and 28 days between October 28, 1997, the date of
notification of the Constitutional Court’s judgment that exhausted
domestic remedies, and June 25, 1998, the date on which the petition was
lodged. That is, the period
of six months established in Article 46(1)(b) of the American Convention
was exceeded by one month and 28 days.
37. For the foregoing reasons, and as the instant
petition was lodged with the Inter-American Commission after the six-month
period established in Article 46(1)(b) of the American Convention, the
Commission concludes that the instant petition is inadmissible.
In view of the foregoing, the IACHR abstains from examining the
other requirements for admissibility contained in the Convention, the
question being moot.
38. The Commission has established that the
petition does not satisfy the requirement of Article 46(1)(b) of the
American Convention. The
Commission therefore concludes that it is inadmissible pursuant to Article
47(a) of the American Convention.
39. Based on the arguments of fact and law set
THE INTER-AMERICAN COMMISSION ON HUMAN
1. To declare this case inadmissible.
2. To notify the petitioner and the State
of this decision.
3. 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 this
10th day of October, 2001. (Signed):
Claudio Grossman, President; Juan Méndez, First Vice-President;
Marta Altolaguirre, Second Vice-President; Commissioners: Hélio Bicudo,
Robert K. Goldman, Julio Prado Vallejo, and Peter Laurie.
In a case in which Peru made the preliminary objection that the
petition was time-barred, arguing that by the time the petition was
transmitted to it, six months had passed, the Inter-American Court of
Human Rights decided that the effective date was the date that the
petition was lodged with the Commission.
See Inter-American Court of Human Rights, Case of Cantoral
Benavides, Preliminary Objections, judgment of September 3, 1998,
paragraphs 36, 37, 39, and 40.
The petition’s heading states that it is addressed to the
“President of the Inter-American Commission on Human Rights.”