Convention since July 28, 1978, when it deposited its instrument of ratification. The
Commission, therefore, has competence ratione personae to examine the complaint.
28.
The Commission is competent ratione loci to hear the petition, as it
alleges the violation of rights protected under the American Convention that would
have occurred in the jurisdiction of the State. The Commission is also competent
ratione temporis to hear the complaint, because the obligation to respect and
guarantee the rights protected under the American Convention was already in effect
for the State on the date of the events alleged in the petition. Lastly, the Commission
is competent ratione materiae, because the petition alleges possible violations of
human rights protected by the American Convention.
B.
Exhaustion of domestic resources
29.
Regarding fulfillment of the requirement to exhaust domestic
remedies set forth in Article 46(1)(a) of the American Convention, the petitioners
allege that they had initiated and exhausted a petition seeking amparo relief to the
Constitutional Tribunal, which handed down its final judgment on March 3, 1998. The
petitioners indicated that, with a judiciary largely dependent on the Executive Branch,
they pursued multiple appeals in the domestic system to give the State the opportunity
to resolve the violations through its own means. The petitioners indicate, however,
that the requirement was to exhaust ideal, adequate, effective remedies and that such
remedies did not exist in Peru at the time these events occurred.
30.
The State, in turn, alleges that the petitioners did not use all legal
mechanisms provided for under domestic legislation. Specifically, it argues that the
petitioners “still had available to them the legal mechanisms established in Law No.
27803”.
31.
In this regard, the Commission considers pertinent to note firstly that
in order to determine fulfillment of the requirement under the Convention that
domestic remedies be exhausted, the subject of the complaint must be specified and
the remedies that were pursued must be analyzed. Along these lines, the Commission
said that the subject of the complaint in this case is the alleged arbitrary dismissal of
the petitioners from their positions at ENAPU due to failure to observe due process and
the ensuing lack of judicial protection.
32.
In order to determine the appropriate domestic procedural steps to
follow, the Commission deems it appropriate to consider that the present petition is
based on the alleged violation of the guarantees of due process and judicial protection
in the process that culminated with the alleged victims’ dismissal from the posts they
held in a State-owned company. The Commission finds that the petitioners lodged a
petition seeking amparo relief as a valid means of challenging violations of guarantees
and rights established in the Constitution. In that regard, the IACHR considers it
important to underscore that such an action is provided for under Peru’s legal system
as a way to protect constitutional guarantees 12 aimed at “returning the situation to
how it was prior to the violation or threat of violation of a constitutional right.”13 The
Commission also notes that the Law regulating amparo procedures provides for its use
even in cases in which “the violation or threat of violation is based on a legal norm not
Rivadeneyra Alva, Antonio Tomás Rodríguez Valdivia, Isi Antonia Rosas Meléndez, Renzo Torero Lizarbe,
José Fermín Urcia Cruzado, Alfredo Vásquez Colacci, and Rufino Ysique Reque.
12 1993 Constitution of Peru, Title V: Constitutional Guarantees, Art. 200.
13 Law No. 23506 (Art.1).
7