-32consequence of corruption.” Furthermore, it requested the Court “that it refuse to
examine the State’s arguments on the alleged errors in fact or in law which the
domestic courts may have made,” since the State “seeks that the Court act as a
court of fourth instance by reviewing the decisions rendered by the domestic
Peruvian Courts.” It further pointed out that “it considers that the Peruvian State has
incurred in an unexplainable contradiction in acknowledging its international
responsibility regarding the judgment of the case of ESMLL but not regarding the
other judgments of the instant case, many of which were rendered by the same
Court in the same year.” Besides, the Commission stated that the Municipality of
Lima availed itself of all available remedies and “[i]f it had sustained its opposition to
the final judgment which dismissed [the] remedy, it could have availed itself of
extraordinary remedies such as sham res judicata. The State does so acknowledge,
and furthermore, it has proven to have done so before this Court. If these legal
extraordinary remedies do not exist under legal provisions or are not effective, it is,
in any case, the Responsibility of the State.”
163. In its turn, the common intervener stated, inter alia, that Peru “has not
judicially proven, in any case whatsoever, that the judgments the enforcement of
which it has disregarded have resulted from an act of illegal collusion between the
legal representatives of SITRAMUN-Lima or the legal advisor thereof and the
jurisdictional authorities who rendered such judicial decisions.” Likewise, it added
that “[it] does not suffice […] that a judgment were rendered in times which, in
general, were characterized by corruption and intimidation; but rather, each case
has to be examined within a particular context which allows for individualizing the
ensuing legal responsibilities.” It further pointed out that “it is unfortunate that,
based exclusively on the statement given by persons who have been prosecuted for
corruption and who have availed themselves of the Effective Collaboration
mechanism, the Peruvian State seeks to justify before this Honorable Court its noncompliance with its the international obligations, through an assumption which would
affect the entire production of the Peruvian judicial system at the time.”
164. The Court has examined the abovementioned evidence submitted by Peru, the
arguments related thereto and the comments made by the Commission and the
common intervener, particularly as regards the following matters:
a)
b)
c)
On December 9, 2002 the Tribunal Constitucional (Constitutional
Court) dismissed the petitions wherein the Municipality of Lima
requested “the review or annulment” of three judgments rendered in
the instant case by the Tribunal Constitucional (Constitutional Court)
between 1997 and 1999, when it was composed of four members
(infra para. 204(93), and pointed out that “the validity of such
judgments was endorsed […] for reasons of domestic legal certainty
[…];”
in referring to the decision made by this Court in the Case of the
Tribunal Constitucional (Constitutional Court) v. Peru the State omits
an important part of the legal grounds regarding the breach of the
principle of fairness; in such case the Court did not state that the
membership of four, instead of seven, in the Tribunal Constitucional
(Constitutional Court) implied in itself a breach of the principle of
fairness;
the Municipality of Lima filed a petition for the annulment of the sham
res judicata regarding one of the final judgments rendered in the
instant case; however, the petition was dismissed as groundless on