7
a)
Whether the Court, in its determination of the 45 victims out of the
288 persons considered by the Commission, excludes the remaining 243
victims from the Judgment of the Court despite they were able to prove the
existence of dismissal orders evidencing that they were dismissed under
Resolution No. 575. Moreover, they stated that “the above-mentioned
judgment includes a general order that should be fulfilled regarding to all
those SITRAMUN members who were dismissed under Mayoral Resolution No.
575, and that the beneficiaries thereof are individuals that can be
determined.” To this respect, they attached copy of the orders of dismissal of
Pablo Gonza Tito and Marcelino Isidro Huere and further stated that they were
dismissed under Resolution No. 575;
b)
Whether “the request for execution of the judgment by the Peruvian
State […] is limited to those 45 persons determined by the Court in Paragraph
249 or to all the victims affected by Municipality Resolution No. 575 according
to paragraph 248 of the Judgment of the Court of February 7, 2006”; and
c)
Whether according to paragraph 227 of the Judgment of the Court “the
Peruvian State should set aside the rights protected by the judgments
awarded to [those persons] whose names are not included in the judgment
delivered by the Court on February 7, 2006.”
Arguments of the Inter-American Commission
32.
The Commission argued that:
a)
Regarding to the workers who were dismissed for striking declared
illegal to which judgment of November 16, 1998 refer and who were not
declared victims by the Court, a similar principle to that used in the case of
Montero-Aranguren et al. should be applied so that “any ruling made in
connection with the violations committed against them and any pertinent
compensation at this international stage does not eliminate or hinder the
effective protection of their individual interests in the domestic venue;"
b)
Two different judicial adjudication processes may be distinguished in
the paragraphs of the Judgment; on the one hand, the issue of whether the
failure by the State to comply with local rulings violates the provisions of the
Convention, based on generic standards regarding the declaration of the
victims of said violation; and, on the other hand, the specific identity of those
who have proven before the Court their capacity as victims of said violation;
c)
For the case of the victims of the judgment delivered on November 16,
1998, the Court sets the standard of evidence adopted according to
paragraph 249 of the Judgment, i.e. submission of a dismissal order. In its
report on the merits "based on the allegations presented by the parties in the
proceedings and impliedly accepted by means of the acknowledgement of
international responsibility” made by the State, the Commission considered as
victims those 288 persons “who had declared to have been adversely affected
as a result of the failure to comply with the judgment of November 16, 1998”,
regardless of whether they had filed the related dismissal orders;