-19b)
a decision by the Corte Superior de Justicia de Lima (High Court of
Justice of Lima) is pending regarding the motion of appeal filed on September
3, 2003 by “ESMLL corporation (in process of winding up)”, against the ruling
issued by the 64º Juzgado Especializado en lo Civil de Lima (64th Specialized
Juzgado Especializado en lo Civil (Court Specializing in Civil Matters) of Lima),
wherein it ordered the reinstatement of 61 applicants to their jobs; and
c)
“the list of persons stated in the application does not include any
former ESMLL worker.”
117.
Arguments by the Commission
The Inter-American Commission requested the Court that the objection be
“dismissed” as “it is not based on factual and legal grounds” and pointed out that:
a)
the Arguments by the State are time-barred and groundless. The
objection should be dismissed on the grounds that it was not filed in due time
before the Commission and that it ignores the express decision adopted by
the Commission on the matter of admissibility in Report No. 85/01 adopted on
October 10, 2001. The State expressed its will to abide by the decision to be
adopted by the Commission. In such report, the Commission examined
carefully the compliance with the conventional admissibility requirements and,
after considering the parties’ views and the evidence produced and having in
mind that the petition addressed the non-compliance with judicial decisions, it
considered that the requirement set forth in Article 46(1)(a) of the American
Convention was met;
b)
at its present evolutionary stage, the Inter-American system provides
for important justifications for the Court not to examine the matters on
admissibility that have been examined by the Commission, thus avoiding the
duplication of a proceeeding which was conducted with all procedural
guarantees;
c)
such objection is also unjustified pursuant to the estoppel principle,
since during the proceeding before the Commission the State acknowledged
its international responsibility for the factual substance of the case, which
prevents Peru from alleging before the Court the failure to exhaust all
previous domestic remedies;
d)
“all judgments which compliance is requested in the instant case are
final and unappealable and have had the effects of res judicata for over six
years, notwithstanding the fact that some of them are still at the enforcement
phase.” In pointing out that a motion of appeal is still pending before the
domestic jurisdiction at the enforcement phase regarding the former ESMLL
workers, “the State acknowledges that after […] more than five years have
passed since the highest judicial authority in the country acknowledged the
rights of the former ESMLL workers and ordered the Municipality of Lima to
reinstate those workers who had not collected their social benefits to their
jobs, […] such workers have not been reinstated, i.e., it has not complied with
the judgment in point;”