of the Supreme Court or other courts for malfeasance or misfeasance. The Congress can
therefore dismiss these justices; hence the dismissal was in keeping with the law.3
17. The State maintains that given the subsidiary nature of the international system to protect
human rights, the complaint should be found inadmissible due to a failure to exhaust domestic
remedies.
IV.
ADMISSIBILITY
18. The State made a preliminary objection on the grounds that the petitioners failed to
exhaust domestic remedies, indicating that the events that gave rise to the complaint are the
subject of various proceedings in domestic courts.
19. To this end, the petitioners stated that in this case, the exceptions to the exhaustion of
domestic remedies established in article 46.2 of the Convention apply, on the grounds that
Peru does not have adequate remedies for protecting the rights in question or due process
guaranteeing the due independence and impartiality of the court in hearing this case, in
violation of articles 25 and 8 of the Convention. Furthermore, they allege an unwarranted
delay in deciding upon the complaints filed, since seven months had transpired since the
lodging of the complaints based on the violation of constitutional guarantees, none of which
had received a final ruling. In that regard, the action for the violation of constitutional
guarantees was recently resolved on September 18, 1997 in the court of first instance. It
should be noted that over four months after the date of dismissal, that judgment was
appealed. The Public Law Tribunal of the Superior Court of Lima ruled on the appeal on
February 9, 1998. An extraordinary appeal was lodged before that Tribunal on March 19, 1998
and is still pending eleven months after the dismissal of the justices, without any final
response from the domestic legal system.
20. Eleven months after the dismissal of the justices, the actions for the violation of
constitutional guarantees had still not been ruled on by the courts, thus causing an
unwarranted delay in protecting their rights. As a result, it has created a problem in the
Constitutional Court, which does not have the necessary number of members to hear cases on
the constitutionality of laws.
21. Throughout the process, particularly during the hearing held during the 98th regular
session, the State did not show proof of the existence of adequate and efficient remedies
within the Peruvian legal system that were applicable to the situation of the victims,
particularly given the time that has elapsed without a final ruling on the case. In this regard,
article 46.1 of the Convention states that:
Admission by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
a. that the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.
22. Subparagraph 2 of that article establishes that the provisions on the exhaustion of
domestic remedies shall not be applicable if:
46.2. a. the domestic legislation of the State concerned does not afford due process of
law for the protection of the right or rights that have allegedly been violated;
b. the party alleging violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them; or
c.
there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.
3 In keeping with article 99 of the Constitution of Peru, " It is the province of the Permanent Commission to make accusations
in the Congress against: the President; and …members of the Constitutional Tribunal;… for infraction of the Constitution and
for all crimes committed in the exercise of their functions and for a period of five years after they have ceased their functions."
3