Exec. Decr. 72-95-PCM (29 of -95) and rendering this legal provision inapplicable; even
less so because said norm results from a regular proceeding.”
53.
Second, the parties sent a copy to the Commission of an
administrative dispute proceeding initiated by the petitioners before the Second Division
of the Superior Court of Piura against the decisions rendered in the personnel reduction
process, pursuant to the provisions of Article 148 of the Peruvian Constitution. 17
54.
On February 26, 1996, the Second Division declared the complaint
based on the provisions of Article 427(6) of the Civil Procedure Code inadmissible. Said
article provides that the complaint must be declared inadmissible if the “demand for
relief was juristically or physically impossible.” The Division used as reasons for
inadmissibility of the motion the fact that the complaint had not been signed by the
allegedly injured workers, that it had not been proven that the injured workers were
members of the union, and that the decision from the administrative dispute proceeding
had not been specified in detail.
55.
Lastly, the Commission notes that during March 1996, 82 motions
were filed to nullify the dismissals before the Talara Labor Court in which the workers
requested reinstatement to their posts arguing that they had been dismissed as an
administrative action under the purview of a repealed law. They also alleged that the
dismissals were null because they violated the workers’ due process, because they had
not been given the procedural remedies or options that the company had mentioned in
its collective dismissal request initiated before the Labor Conflict Prevention and
Settlement Office and the Labor and Social Promotion Regional Office of Piura.
56.
On May 8, 1997, the Sullana Decentralized Mixed Court declared the
motion to nullify “without merit” in its role as a court of second instance. The Mixed
Court believed that it could not accede to the complainants’ claim, so long as the
“reinstatement of employment has been reduced in the neoliberal and free market
system to three specific cases: discrimination, unionism, and maternity […] and these
reasons have been neither invoked nor proven by the author.”
57.
In this regard, the petitioners maintain that on May 28, 1997, the
date on which notification was given of the judgment of the Sullana Decentralized Mixed
Court, “three members of the Constitutional Court had been dismissed, in a clear
violation of the rights enshrined in the American Convention.” Thus, the petitioners
allege that “with an incomplete court, whose composition did not guarantee
independent and impartial decisions, they decided not to continue their case in national
courts because they could not be guaranteed justice in Peru.” They also state that the
Executive Decree could not be the object of an actionable complaint of
unconstitutionality before the Constitutional Court because it lacked the force of law.
58.
With a view toward determining the appropriate procedural means
within the Commission’s internal laws, it is necessary to determine first the purpose of
the petition submitted for it to hear. The petition is based on the alleged violation of
the guarantees to due process and judicial protection of the alleged victims in the
personnel reduction process that culminated with their dismissals from the posts they
were performing at a state company. As per this point, the Commission deems it
relevant to verify whether the matter before it was submitted to domestic courts
17 Article 148 sets forth that “administrative decisions that are final are susceptible to challenge via the
administrative dispute process.”
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