21
74.
In this case, the Chamber of Constitutional and Social Law of the Supreme Court
in the judgment of July 21, 1999, taking into account “repeated jurisprudence,” indicated
that Law Decree 25876 was an interpretive law, for which reason it could enter into force
on a prior date despite having been issued on a later date. The Court observes that the
Supreme Court’s ruling does not explain why the law was an interpretive one, nor does it
point to the “repeated case law” that the high court took as grounds at that time.63
Following that ruling, the State acknowledged before the Commission and before this
Court that there was no judicial protection with regard to the retroactive application of
the laws eliminating the salary scale system, in disregard of the “rights and principles
recognized in the Constitution.” (supra para. 17, 18, and 19) For his part, expert witness
Abad Yupanqui, whose comments were not contested by the State, stated that “the
repeated case law of the Judicial Branch recognizing the constitutional validity of Law
Decrees No. 25541 and 25876 constitutes a clear denial of justice, as it does not provide
effective judicial protection under the principles of non-retroactivity of laws and res
judicata.” 64
75.
In this respect, the Court has indicated that Article 25(1) of the Convention
includes an obligation for States Party to guarantee all persons under its jurisdiction
access to an effective judicial remedy against acts that violate their fundamental rights.65
This effectiveness supposes that in addition to the formal existence of the remedies, they
get results or responses to the violations of the rights contemplated in the Convention,
in the Constitution or in laws.66 In this sense, remedies that because of the country’s
general conditions or even because of specific conditions related to the case in question
are illusory cannot be considered effective. This can be the case, for example, when their
uselessness has been demonstrated in practice, due to a lack of means for executing
rulings, or due to any other situation giving rise to a context of denial of justice.67 Thus
constitutional and social law, November 18, 2003 (case file on the Merits, tome III, annex 4, folio 1211), and
ii) when the regulation is interpretive, since “the interpretation made by Congress is understood to be valid
from the moment in which the law being interpreted entered into force. That is to say that the Law that
interprets a prior law takes effect as of the moment the latter entered into force, not from the moment it itself
enters [into force].” Judgment of the Supreme Court of Justice of the Republic of Peru, Chamber of
constitutional and social law, June 20, 2006, (case file on the Merits, tome III, annex 6, folio 1223). According
to case law precedence, the Court observes that the requirements for a law to be deemed interpretive are the
following: “First, it must refer expressly to the prior law. Second, it must establish the sense of that prior law,
enunciating one of the many plausible meanings of the law being interpreted, which, by choice of the legislator,
becomes the authentic meaning to the exclusion of the other interpretations of the prior law. Third, it shall not
add content to the law being interpreted that was not included within its material scope.” Judgment of the
Constitutional Tribunal of Peru dated May 16, 2007, (case file on the Merits, tome III, annex 7, folio 1239).
63
Also, the Tribunal observes that on denying the request of the victims, the Chamber of Constitutional
and Social Law indicated that the automatic salary readjustment systems established through collective
bargaining were abolished. Cf. Judgment of the Chamber of Constitutional and Social Law of the Supreme
Court of Justice, supra note 55, folio 117. However, the victims were not subject to collective bargaining, for
which reason this consideration was not applicable to them. (supra para. 53).
64
Dictamen del perito Samuel B. Abad Yupanqui rendido ante fedatario público de 27 de septiembre de
2010 (case file on the Merits, tome II, folio 441).
65
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987.
Serie C No. 1, para. 91; Case of Rosendo Cantú, supra note 13, para. 164, and Case of Cabrera García and
Montiel Flores, supra note 17, para. 141.
66
Cf. Case of the Constitutional Court v. Peru. Merits, Reparations and Costs. Judgment of January 31,
2001. Series C No. 71, para. 90. Preliminary Objection, Merits, Reparations and Costs. Judgment of October
30, 2008. Serie C No. 187, para. 102; Case of Reverón Trujillo, supra note 23, para. 59, and see also, Judicial
Guarantees in States of Emergency (Arts. 27(2), 25 and (8) American Convention on Human Rights). Advisory
Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 23.
67
Cf. Case of Ivcher Bronstein v. Peru. Merits, Reparations and Costs. Judgment of February 6, 2001.
Series C No. 74, para. 137; Case of Acevedo-Jaramillo et al., supra note 14, para. 213; and Case of Acevedo
Buendía et al (“Discharged and Retired Employees of the Office of the Comptroller”) v. Perú. Preliminary
Objection, Merits, Reparations and Costs. Judgment of July 1, 2009. Serie C No. 198, para. 69.