challenge the dismissals by means of a writ of amparo or through administrative remedies,”
there existed other domestic means that would have enabled the dismissed employees to
resolve the controversy; for example, an administrative dispute procedure and a class
action. The State also affirmed that the Commission’s allegation of the denial of justice
lacked grounds. It indicated that the Constitutional Court in some decisions, adopted
between 1997 and 1999, exercised a diffuse control of constitutionality of the norms that
authorized the dismissal of the employees by not applying those norms, which indicates that
it was possible to present writs of amparo and obtain a favorable response.
25. The Commission repeated the arguments presented in its Merits Report and recalled
the Court’s case law regarding dismissed employees during the 1990s, in which it was
established that they did not have access to available, suitable and effective remedies that
meet inter-American standards. It affirmed that, on the issue of admissibility, the similarity
of the situation of all the alleged victims was not determined by the judicial proceedings
initiated in the domestic jurisdiction, but rather by the decision on dismissing them by means
of laws that were designed to formalize the dismissals in a context of a lack of access to
effective remedies, Thus, due to the absence of an available, suitable and effective recourse
to exhaust domestic remedies, the Commission considered that it had complied with the
terms of Article 46(2)(b) of the Convention.
26. The representatives recalled that the alleged victims listed in Petition 728-00
expressly availed themselves of the exception found in Article 46 (2)(b) and explained why
they should not be required to file and exhaust the remedies of the domestic jurisdiction; in
particular, because they had well-founded reasons to conclude that, while it is true that in
some cases judges consider administrative dispute procedures to be appropriate, there
existed “absolutely dissimilar” criteria on the procedural course to be followed and that the
suitability of that jurisdiction to question the dismissals was not clear. With respect to a class
action, they emphasized that its purpose is the total or partial non-application of the
challenged norm from the date of the judgment’s execution and that it did not include a
possibility of restitution and, therefore, was not a suitable remedy for the claims of the
employees.
B.2 Considerations of the Court
27. The Court recalls that an objection to the exercise of its jurisdiction based on the
alleged failure to exhaust domestic remedies must be presented during the admissibility
stage of a case before the Commission.14 Therefore, the State must, in the first place, detail
the remedies that, in its opinion, have not been exhausted. In addition, the grounds of a
preliminary objection presented by the State before the Commission during the admissibility
stage must coincide with those presented to the Court.
28. The Commission, on October 24, 2016, transmitted Petition 728-00, which had been
received on December 19, 2000, to the State and granted it a period of three months to
present its observations.15 The Court recalls that this petition refers to the former employees
who did not file a writ of amparo. The State presented its observations on February 1, 2017
in which it opposed the exception to the failure to exhaust domestic remedies and claimed
that “the petitioners had not complied, in a timely and suitable fashion, with filing and
Cf. Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series C No.
1, para. 88 and Cuya Lavy et al. v. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of
September 28, 2021. Series C No. 438, para. 27.
14
Note of the Commission to the Minister of Foreign Affairs of Peru, dated October 24, 2016 (evidence
file, f. 636).
15
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