B.

Position of the State

13.
The State asserts that the petitioner was not dismissed nor was he subject to disciplinary
action rather that his removal came about because his appointment, which was of a provisional nature, was
concluded.
14.
The State explains that, in keeping with Peruvian legislation, the provisional post that the
petitioner held is a position of trust, which is temporary and does not give rise to any additional rights beyond
those inherent to such post. According to the State, Law No. 24041, which provides that “public servants hired
for permanent posts, may not be fired or dismissed, except for the reasons specified under Legislative Decree
276,” is applicable. Such law, however, according to the State, does not cover those who hold “political or trust”
positions. As a result, the State contends that the petitioner’s removal from his position as a provisional
prosecutor does not constitute a violation of any conventional or constitutional right, and was ordered by the
Attorney General’s office of the Nation in exercise of the powers conferred thereon by law.
15.
The State indicates that it did not commit a violation of the judicial guarantees and protection
recognized under Articles 8 and 25 of the American Convention, inasmuch as the petitioner had access to each
and every one of the judicial bodies where he brought actions, where he was able to make use of his “right to
respond” and was afforded the guarantees of due process.
16.
As to the principle of legality protected under Article 9 of the Convention, the State asserts
that said right was not violated as the decisions that upheld the termination of the petitioner’s provisional
employment are grounded in the law that governs the positions of such nature.
17.
Furthermore, with regard to the right to equality before the law protected by Article 24, the
State indicates that while Peruvian case law provides for the right to equality, such right does not include under
any circumstances equal criteria for dismissing provisional prosecutors as compared to permanent ones.
18.
Finally, the State considers that as the petitioner obtained unfavorable rulings domestically,
he is seeking to use the Commission as a “fourth instance” to review the criterion that has already been decided
on by Peruvian judicial bodies with regard to provisional prosecutors. The State contends that the decision to
remove the petitioner from his position, as well as the domestic rulings handed down with regard to the
petitioner’s removal from his position as provisional prosecutor, are completely valid and grounded in the
Peruvian legal system.
IV.

ANALYSIS REGARDING COMPETENCE AND ADMISSIBLITY

A.

Competence

19.
The petitioner has standing, in principle, by Article 44 of the American Convention to present
petitions to the Commission. The petition identifies as an alleged victim, an individual, with regard to whom
the Peruvian State committed to respect and ensure the rights enshrined in the American Convention. As
regards the State, the Commission notes that Peru has been a State party to the American Convention since July
28, 1978, when it deposited its instrument of ratification. Thus, the commission is competent ratione personae
to review the petition.
20.
Furthermore, the Commission is competent ratione loci to examine the petition inasmuch as
it alleges violations of rights protected under the American Convention that purportedly took place in Peru, a
State party to said Convention. The Commission is competent ratione temporis, given that the obligation to
respect and ensure the rights protected under the American Convention was already in effect for the State on
the date upon when the facts alleged in the petition presumably occurred. Lastly, the Commission is competent
ratione materiae because the petition denounces potential violations of human rights protected under the
American Convention.

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