process and could not contest the dismissal decisions, they could not request review of
said irregularities.
26.
With regard to the requirement of prior exhaustion of domestic
remedies, the petitioners point out that “many actions were initiated, and many
motions were filed to safeguard the victims’ rights.” First, they state that the
Consolidated Petroleum Workers Union of Peru in Talara filed an action for amparo
against the collective dismissal before the Civil Judge of Talara. At the same time, the
adoption of precautionary protection measures was requested. On March 18, 1996,
the judge declared the petition without merit on the argument that the amparo was
not the appropriate means for challenging an Executive Decree that is general in
nature. They point out that faced with this situation; the petitioners challenged the
decision before the Second Civil Division of the Supreme Court of Piura, which upheld
the lower court’s decision. The petitioners point out that they could not appeal this
decision to the Constitutional Court because it had been dismantled by Congress
during the time that the events took place.
27.
Second, the petitioners state that they exhausted a popular action in
which they sought to have Executive Decree 72-95-PCM, which authorized the
company to begin the restructuring process, made inapplicable. The petitioners point
out that it had been declared inadmissible by the Third Civil Division of the Supreme
Court, alleging that the norm under question was general in nature. Third, the
petitioners allege that they filed for an administrative dispute proceeding requesting
that the decisions of the Labor Conflict Prevention and Settlement Office and those of
the Piura Regional Office be declared null. On February 26, 1996, the Second Division
of the Piura Superior Court declared the motion inadmissible because their demand for
relief was “juristically impossible.”
28.
Last, the petitioners allege that they have filed 82 actions before the
Talara Labor Court to nullify the dismissals. They state that on December 27, 1997,
the lower Court declared the motions filed without merit under the argument that the
dismissals followed the procedure set forth in Decree Law No. 26120. On May 7, 1997,
the Sullana Decentralized Mixed Division upheld the joint decision, arguing that
“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.”
29.
In processing the matter with the IACHR, the petitioners have alleged
that the State has recognized “in several ways and through different authorities” their
responsibility for the events of this case. However, the petitioners argue that this
recognition of responsibility has not translated into effective reparation of the rights
violated. Thus, the petitioners indicate that in the Final Report of the Special
Commission on Collective Dismissals, created under Law No. 27452, presided over by
the Ministry of Labor on January 2, 2002, it was stated that:
The procedure […] established in Article 47 of DL 26120, as well as all decree
laws covering the same procedure have infringed on the right to due process by
not allowing for the exercise of the rights of appeal and defense on the part of
the workers. In addition, other constitutional rights have been infringed upon,
such as the right to information, and to non-discrimination [….]7
7 Special Commission on Collective Dismissals, Final Report submitted to the Congress of the Republic on
December 31, 2001, Chapter VI. Number 3.
7