5
November 24, 2006, the Court will now analyze the seven questions raised by FernándezSaré (supra para. 1).
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14.
It is the Court’s view that the first, second, third and sixth questions raised in the
brief submitted by Fernández-Saré are intended to challenge the substantive reasons
supporting the Judgment and are not concerned with specific, concrete issues regarding the
meaning and scope of the Judgment. Accordingly, they do not amount to a request for the
interpretation of a Judgment under Article 67 of the Convention and Articles 29(3) and 59 of
the Rules of Procedure.
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15.
Through his fourth question, Fernández-Saré has inquired into the reasons why no
specific order was included for the State to repeal Decree Law No. 25640 and Resolution No.
1239-A-92-CACL. Said question is aimed at a securing a review of questions of law that
were already analyzed and ruled upon in the Judgment and, therefore, it cannot be
admitted for the purposes of interpretation of the Judgment. This notwithstanding, it should
be noted that, following the Proven Facts section (paragraphs 89(4), 89(9), 89(10) and
89(11)), the Judgment stated as follows:
117.
In relation to the norms applied to those who were dismissed, it has been established
that article 9 of Decree Law No. 25640 expressly prohibited the possibility of filing an action for
amparo against its effects (supra para. 89(4), 89(9), and 113). As the expert witness Abad
Yupanqui has stated, at the time of the facts “in each of the decree laws where it was considered
necessary, the Government began to include a provision that prevented the use of the amparo
procedure” (supra para. 81(g)[…].
118.
Regarding the provisions called into question by the Commission and by the common
intervenors in these proceedings, the State declared that:
During the period of the process to streamline the personnel of the National
Congress of the Peruvian Republic, legal and administrative provisions were in
force, which are at issue in these proceedings, that violated the rights embodied
in Articles 1(1) and 2 of the American Convention.
Article 9 of Decree Law No. 25640, which has been called into question in these
proceedings, violated the provisions of Articles 8(1) and 25(1) of the American
Convention.
[…] It could be understood that the mere issuance of article 9 [of the said]
Decree […] and article 27 of Resolution 1239-A-92CACL were incompatible with
the Convention.
119.
The Court finds it evident that the alleged victims were affected by the provisions under
consideration in the international proceedings. The prohibition to contest the effects of Decree
Law No. 25640, contained in the said article 9, constituted a norm of immediate application, since
the people it affected were prevented ab initio from contesting any effect they deemed prejudicial
to their interests. The Court finds that, in a democratic society, a norm containing a prohibition to
contest the possible effects of its application or interpretation cannot be considered a valid
limitation of the right of those affected by the decree to a genuine and effective access to justice,
which cannot be arbitrarily restricted, reduced or annulled in light of Articles 8 and 25 of the
Convention, in relation to Articles 1(1) and 2 thereof […].
120.
In the context described above, article 9 of Decree Law No. 26540 and article 27 of
Resolution 1239-A-CACL of the Administrative Commission helped promote a climate of absence
of judicial protection and legal security that, to a great extent, prevented or hindered the persons
affected from determining with reasonable clarity the appropriate proceeding to which they could
or should resort to reclaim the rights they considered violated. […]