The international responsibility of the State arises immediately when the
internationally illegal act attributed to it is committed, although it can only
be demanded once the State has had the opportunity to correct it by its
own means. Possible subsequent reparation under domestic legal venue
does not inhibit the Commission or the Court from hearing the case that
has already begun under the American Convention. Therefore, the Court
cannot accept the position of the State that it duly investigated, to find
that the State has not violated the Convention.5
54.
The violations of the American Convention alleged by the petitioners
were said to have been committed in December 1997 and thereafter; the petition was
lodged with the Commission on March 8, 2002, that is to say, subsequent to the
enactment of laws that established commissions for the review of dismissals, and prior
to the emergence of results stemming from the compensation awarded to five of the
petitioners through the program established by law No. 27803. Therefore, the
Commission may take cognizance of the matter to determine, by examining whether
the State had the opportunity to redress the harm caused and what measures it
adopted to that end, whether or not an international violation attributable to the State
occurred and if so whether its international responsibility has been engaged.
55.
Under Article 48(b) of the Convention, before proceeding to its analysis of
a case’s merits, the Commission must “ascertain whether the grounds for the petition or
communication still exist.” Thus, the legal question that must be answered is whether
the petitioners’ acceptance of the measures offered by the State altered the petition
originally filed to an extent that the grounds for the petition no longer exist.
56.
The original claim brought by the petitioners alleged the State’s
international responsibility for violation of the rights of due process, the principle of
legality and judicial protection, by virtue of its wrongful dismissal of the 15 persons
named as victims in the petition. Subsequently, a number of measures were adopted
by the State to redress the damage caused to the irregularly dismissed former
employees. The State’s contention is that as a result of these measures and the
voluntary acceptance of them by some of the petitioners in the case, those that
consented to the measures taken by the State to find a domestic solution to the claims
resulting from the collective dismissal. For their part, the petitioners allege that while
a number of them entered their names on the National List of Irregularly Dismissed
Former Government Employees and several had allegedly received the benefits that
the law in question granted, those benefits were allegedly not commensurate with the
degree of harm caused by the violation of their rights under the Convention.
57.
Having established that the existence of a program of compensation
does not preclude its examination of the case, the Commission will follow the case law
established by the Inter-American Court of Human Rights in the Case of the Dismissed
Congressional Employees v. Peru. In that decision, the Court held that “in …
international proceedings, determination of the effects of some of the alleged victims
having returned to work in the institution from which they had allegedly been dismissed,
and also the validity of their claims for reinstatement, correspond to considerations that
belong to the stages on merits and, possibly, reparations.”6 The Commission will defer
5 I/A Court H.R., Case of the Gómez Paquiyauri Brothers. Judgment of July 8 ,2004. Series C No. 110, par.
75.
6 I/A Court H.R., I/A Court H.R., Case of the Dismissed Congressional Employees, Judgment of November
24, 2006, (Preliminary Objections, Merits, Reparations and Costs), Judgment of November 24, 2006. Series
C No. 158, par. 70.
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