On August 28, 1997, a petition was filed before the
Inter-American Commission on Human Rights (hereinafter "the
Commission”) by the nongovernmental organization, Asociación
Pro Derechos Humanos (APRODEH), denouncing that the Republic of Peru
(hereinafter “Peru,” “the State,” or “the Peruvian State”)
had violated the human rights of Mr. César Cabrejos Bernuy (hereinafter
the “petitioner”), by failing to comply with a court order to
reinstate him in the position of Colonel in the National Police.
The petitioner alleges that, through contempt of court, the State
infringed his right to judicial protection, established in Article 25 of
the American Convention on Human Rights (hereinafter the
“Convention” or the “American Convention”). The State alleges
that the case is inadmissible, claiming the victim failed to exhaust
domestic remedies. The Commission believes that the requirement to
exhaust domestic remedies is not applicable here, finds the case
admissible, and decides to conduct an in-depth examination into the
matter and to place itself at the disposal of the parties involved, with
a view to reaching a friendly settlement on the basis of respect for the
human rights enshrined in the Convention.
II. PROCEEDINGS BEFORE THE
On September 2, 1997, the Commission opened the case, forwarded
the pertinent parts of the petition to the Peruvian State, and requested
the latter to provide information within a period of 90 days.
The State responded on December 3, 1997, and, on December 17th,
the Commission forwarded to the petitioner the pertinent parts of the
Peruvian State’s response. The
petitioner did not present any observations regarding the State’s
III. POSITIONS OF THE PARTIES
The petitioner claims that Mr. César Cabrejos Bernuy had served
in the National Police for 22 years when, on July 31, 1990, he was
relieved of duty, along with 94 other colonels of the National Police,
as part of a supposed staff reorganization.
The petitioner says that the aforesaid discharge took place amid
a big media campaign, in which the discharge of the officers was
presented as an anti-moral measure, thereby affecting his right to
honor and reputation.
Mr. Cabrejos Bernuy instituted administrative proceedings against
the decision to discharge him, and later, in a judicial proceeding,
filed a writ of amparo, which was admitted by the Chamber of Constitutional and
Social Matters of the Supreme Court of Justice on June 5, 1992.
The aforementioned decision ordered the reinstatement of Mr.
The petitioner claims that, despite repeated requests to the
Judiciary for the judgment to be complied with--and even the
intervention of the Congress--the Police did not comply with the court
order. Finally, on December
28, 1995, through Supreme Resolution Nº 1389-95-IN/PNP the National
Police ordered the victim’s return to active service, effective
December 27 of the same year.
However, by order of Supreme Resolution Nº 1445-95-IN/PNP of
December 29, 1995, effective as of December 27, 1995, Mr. Cabrejos
Bernuy was again relieved of duty by the National Police, again on
grounds of a staff reorganization. Faced with this situation, Mr.
Cabrejos Bernuy went first before the Fifth Civil Court in Lima and then
before the Superior Court. The
latter declared inapplicable the new administrative resolution which
prescribed that the victim be relieved of duty.
The petition says that subsequently Mr. Cabrejos Bernuy was again
reinstated, under Supreme Resolution Nº 0227-97-IN/PNP of March 19,
1997. However, by means of
Supreme Resolution Nº 0237-97-IN/PNP of March 26, 1997 of the same
year, he was again relieved of duty once more on grounds of staff
In light of this situation of manifest and repeated disobedience
of court decisions, the petitioner considers that his right to judicial
guarantees and to effective judicial protection, embodied in Article 25
of the Convention, has been violated.
The Peruvian State maintains that the petitioner did not exhaust
the domestic remedies offered under Peruvian Law since he did not
institute another amparo proceeding against the third resolution relieving him of duty
and, consequently, that the petition should be declared inadmissible.
IV. ANALYSIS OF ADMISSIBILITY
The Commission must analyze the admissibility requirements for a
petition set forth in the Convention.
Competence ratione materiae, ratione personae, and ratione temporis of the Commission
With regard to subject matter jurisdiction, the Commission finds
that the events set forth by the petitioner, which went undisputed by
the State, show that there is a final judgment dated June 5, 1992
ordering the reinstatement of Mr. Cabrejos Bernuy to his position within
the National Police. The petitioner claims that this order has not been
executed and that although the National Police had decided twice to
reinstate Mr. Cabrejos Bernuy to his position, in reality he never was
reinstated, since immediately afterwards new resolutions were passed
relieving him of duty.
Article 25 of the Convention specifically stipulates that States
parties undertake to ensure that the competent authorities enforce any
remedies stemming from simple and prompt recourse, or any other
effective recourse, for protection against acts that violate a person's
basic rights. The Commission therefore has competence ratione
materiae to decide whether or not the alleged failure to enforce the
June 5, 1992 decision of the Chamber of Constitutional and Social
Matters of the Supreme Court of Justice, resulting from the writ of amparo
filed by Mr. Cabrejos Bernuy, constitutes a violation by the Peruvian
State of Article 25 of the Convention. Consequently, in the matter
raised by the petitioner, the Commission is competent ratione
personae to hear this case.
Regarding competence ratione
personae, the Commission finds that the petitioner is accusing the
Peruvian State of violating human rights enshrined in Article 25 of the
Convention. Since Peru ratified the Convention on July 28, 1978, the
Commission has competence ratione personae to hear this case, as expressly provided for in
Article 33 of the
Convention. Regarding the petitioner, the Commission notes that the Asociación Pro Derechos Humanos (APRODEH) is a legally recognized
nongovernmental organization in Peru and therefore, pursuant to Article
44 of the Convention, may present
petitions to the Commission.
Regarding competence ratione
temporis, the Commission finds that the alleged transgression took
place from 1992 on, i.e. after 1978 when Peru ratified the American
Convention. The Commission therefore finds that it has competence ratione
temporis to hear this case.
Admissibility requirements for the petition
a. Exhaustion of
In his petition, the petitioner argues that the Constitutional
and Social Chamber of the Supreme Court’s decision of June 5, 1992, is
binding and therefore no appeal is required to that end. Furthermore he
maintains that he was reinstated and again relieved on December 28,
1995, and that although no appeal is required to give effect to a
decision emanating from a decision handed down by the Supreme Court of
Justice, the fact is the victim went before the Fifth Civil Court in
Lima and then the Superior Court to request compliance with the verdict
and the Superior Court declared inapplicable the second administrative
resolution that again ordered the victim’s discharge.
Given the above, the petitioner claims that the National Police
reinstated him to his position only to immediately relieve him of duty
again, through a third resolution identical in content to the previous
State maintains that the petitioner should have filed another writ of amparo
against the third resolution relieving him of duty.
The Commission found that "where a State claims that a
petitioner has failed to discharge the requirement of exhaustion, the
former bears the burden of indicating the specific remedies which remain
available and effective".
In the case in question, the State argues that in order to exhaust
domestic remedies, the victim would have had to file a new writ of amparo against the third resolution relieving him of duty. The
Commission finds this argument to be groundless. The petitioner's claim
does not in fact refer to the third resolution relieving the victim of
duty on March 26, 1997, but rather to the on-going failure to enforce
the judgment of the Chamber of Constitutional and Social Matters of the
Supreme Court of Justice handed down on June 5, 1992 ordering his
20. Insomuch as the State failed to fulfill
its procedural duty to indicate the specific domestic remedies that
remained available and effective for the victim to have the
aforementioned June 5, 1992 judgment of the Supreme Court of Justice
enforced, the Commission finds that this case falls under the exception
set forth in Article 46(2)(a) of the Convention, which stipulates that
the requirement to exhaust domestic remedies set forth in Article
46(1)(a) of the Convention is not applicable 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
b. Deadline for lodging
regards the admissibility requirement established in Article 46(1)(b) of
the Convention that petitions are to be lodged within a period of six
months from the date on which the victim was notified of the final
judgment exhausting domestic remedies, the Commission finds that this
requirement is also not applicable in this case, since the exception set
forth in Article 46(2)(a) of the Convention as stated above is
applicable, so is the exception referring to the time frame in which a
petition must be lodged, as set forth in Article 46(2) of the
Without prejudging the merits of the case, the Commission must
add that failure to enforce a final judgment is an on-going violation by
States that persists as an infraction of Article 25 of the Convention,
which sets forth the right to effective judicial protection. Therefore,
in such cases, the requirement regarding the deadline for lodging a
petition, set forth in Article 46(1)(b) of the American Convention, is
c. Duplication of
proceedings and res judicata
To the Commission’s knowledge the subject
of the petition is not pending in another international proceeding for
settlement, nor is it substantially the same as one previously studied
by the Commission or by another international organization.
Therefore, the requirements established in Articles 46(1)(c) and
47(1)(d) are also satisfied.
d. Characterization of
The Commission considers that the facts set out by the petitioner
tend to establish a violation of the
rights guaranteed by the Convention, since as established above, the
matter at hand is whether or not the alleged failure to enforce a
judgment of the Supreme Court of Peru constituted a violation of the
Convention on the part of Peru.
The Commission considers that it is competent to receive this
case and that the petition is admissible pursuant to the requirements
set forth in Articles 46 and 47 of the Convention.
Based on the de facto
and de jure arguments set out above, and without this in anyway
constituting a ruling on the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible.
To notify the Peruvian State and the petitioner about this
To continue to examine the merits of the case.
4. To place itself at the disposal of the parties, with a view to reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in the Convention. The Commission invites both parties to reply on their willingness to initiate such a friendly settlement process.
To publish this decision and include it in the Commission’s
Annual Report to the General Assembly of the Organization of American
and signed in the city of Washington, D.C., on the 4h day of
the month of May, 1999. (Signed): Robert K. Goldman, Chairman; Hélio
Bicudo, First Vice-Chairman; Claudio Grossman, Second Vice-Chairman;
Commissioners: Alvaro Tirado Mejía, Carlos Ayala Corao and Jean Joseph
 IACHR, María Eugenia Morales de Sierra Case, Report Nº 28/98, Case 11.625 (Guatemala) published in the Annual Report of the Commission 1997, paragraph 28. See also Article 37(3) of the Regulations of the Commission and, for example, the Inter-American Court of Human Rights, Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, Series C, Nº 1, Para. 88.
Regarding the alleged on-going failure to enforce the judgment and
the judicial remedies exercised fruitlessly, please see, for the
purpose of comparison, IACHR General Gallardo Case, Report Nº
43/96, Case 11.430 (Mexico), published in the Annual Report
of the IACHR 1996, starting on page 585 in the Spanish text.