22
procedure before the Commission automatically generates an acknowledgment of
the facts or of responsibility, or the assumption of the corresponding obligation.
Given the nature of the procedure before the Commission, a State may reach an
understanding and undertake to carry out certain acts without implying by this
that the State accepts as true the facts attributable to it or that it acknowledges
being responsible for the legal consequences of such acts. Specifically, only one
unilateral act of acknowledgment of facts or a clear declaration of responsibility
within the framework of said procedure, upon which the Commission or the
representatives have acted and that, as a consequence, has produced legal
effects, binds the State in that sense and, therefore, is opposable to a procedure
before the Court.
61.
In the instant case, it spring from the case-file before the Commission
that after the State complied with the adjustment of the alleged victims’ pension
in November 2002, the State also pointed out on several occasions that "it must
be clearly established that compliance with the judgments of the Constitutional
Courts have never been considered to be exhausted" and that it was adopting
appropriate measures “to finance the payment of the pensions owed and unpaid
the Association […] refers to.”46 Hence, the State indicated that “the payment of
the owed and unpaid pensions constitutes an economic problem and not a legal
one, since the Comptroller […] does not have the economic resources [to make
the corresponding payment]”47.
62.
Said obligation to pay reimbursements or amounts owed derived, inter
alia, from the following documents issued by different institutions and state
entities during the whole domestic procedure and the procedure before the
Commission:
a)
Bill N° 2029-2007-PE that the Constitutional President of the Republic and
the President of the Council of Ministers submitted to the attention of the President of
Congress of the Republic by means of Official Letter N° 303-2007-PR, of December
27, 2007. Said bill “authorizes the constitution of a deposit for the payment of the
amounts [owed] of the Comptroller General of the Republic”. It should be mentioned
that according to the “Statement of Reason of said Bill, “the position of the Peruvian
State before Case N° 12.357 is basically focused on that [...] ‘the non-compliance
with the judgment of the Constitutional Court is due to a budget reality’; such reality
is, at the present, impossible to deal with” and explicitly refers to the “payment of
amount owed from April 1993 to October 2002" (emphasis added). Furthermore, it
46
Cf. in addition, the Report Nº 34-JUS/CNDH-SE, presented before the Commission on May 2,
2001 by the Permanent Representative of Perú before the Organization of American States
(hereinafter, the “OAS”) by means of Note 7-5/39 of April 27, 2001 concluded that “even though the
Comptroller General took some actions[,] it has still not complied with the judgment of the
Constitutional Court” (record of appendixes to the application, Appendix 1.7, volume 1. pages 181185); Official Letter Nº 247-2006-CG/RH of June 17, 2006, pointed out that the State was adopting
measures necessary to “comply with the order contained in the Judgment of the Constitutional Court
of 1997” (record of Appendixes to the brief of final arguments presented by the representative,
Appendix 6, page 2685); the Report Nº 08-2008-JUS/CNDH-SE-CESAPI, presented before the
Commission on January 16, 2008 by the Permanent Representative of Perú before the OAS by means
of note 7-5-M/21 of January 15, 2007 (sic) concluded that "“in order to comply with the
recommendations made [by the Commission], a bill was proposed to allow making the first payment
in favor of the petitioners and through which the Comptroller General of the Republic was authorized
to exceed the limits established by the General Budget Law” (record of Appendixes to the application,
Appendix 1.61, volume pages 1403-1406) and the Ruling of the Commission on Budget and General
Account of the Republic of December 16, 2008, prepared in relation to Bill Nº 2029/2007-PE,
"proposes the enactment of a norm with the rank of an Act to constitute a deposit of up S/. 4 millions
in order to back up the obligations to pay as a result of the judgments rendered by the Judiciary [in
favor of] 270 discharged and retired employees of the Comptroller General of the Republic” (Record of
appendixes to the brief of final arguments presented by the representative, Appendix 2, pages 26572669).
47
Official Letter Nº 0957-2003-CG/DC of May 30, 2003 issued by the Comptroller General of
the Republic to the National Human Rights Council (Record of Appendixes to the application, Appendix
1.20, pages 303-304).