6
execution process that some victims have pursued within the domestic jurisdiction. They
reiterated that the State sought to justify its lack of compliance on the grounds of its
domestic legislation, since “the lack of budget credit [stated by the Ministry of Economy and
Finance], due to deficient State management, does not constitute a valid reason to not
comply with the payment of the amounts owed.” They alleged that the workers have had to
endure the lack of compliance, having to file several initiatives before the Judicial Branch, in
some cases, by means of precautionary measures to obtain partial payments through the
seizure and auction of some State property. In other cases, an order to pay this debt was
issued by the 27 Juzgado Especializado en lo Civil [27 Court Specialized in Civil Matters] of
the Superior Court of Justice to the Ministry of Justice. Also, they manifested their concern
that on May 3, 2010, the President of the Republic sent Bill No. 4006/2009-PE to the
Congress of the Republic, in order “to establish, among other things, that compliance with
supranational judgments shall not be adjusted to the term set forth in the judgments issued
by the respective bodies (for example in the case of reference, a year after notification), but
rather it shall only be subject to the norms of domestic law and, in particular, to the terms
of the Texto Unico Ordenado de la Ley [Sole Ordered Text of the Law] that regulates the
Administrative Contentious procedure (Supreme Decree No. 013-2008-JUS) and Article 70
of Law No. 28411, General Law of the National Budget System, that considers substantially
longer terms, that can be extended up to five years.” The common interveners alleged that
these provisions are contrary to the duty assumed by the State by ratifying the American
Convention.
13.
Furthermore, the interveners requested that the Court declare the lack of compliance
of the State with that ordered in the Judgment and that the State “has committed a new
violation” of the right recognized in Article 25(2)(c) of the Convention, and therefore, they
requested the Court “provide for the corresponding remedies and means of reparation,” and
to inform the OAS General Assembly of this.
14.
The common interveners submitted a communication on December 16, 2009, from
the Ombudsman’s Office, addressed to the President of the Council of Ministers, through
which the former noted the lack of compliance by the State, that remains “both regarding
the amount explicitly set as non-pecuniary damages in the ruling of the Court […] as well as
the amount to be set (in the event that the unjust dismissal is verified) by the ’independent
and impartial body’ referred to in paragraph 4” of the operative paragraphs of the
Judgment. Consequently, the Ombudsman recommended the adoption of the necessary
measures in order to “authorize the Ministry of Economy and Finances to assign the
budgetary resources to comply with the judgment […], as well as that set forth in the Fortyfifth Final Provision of the Public Sector Budget Law] for the 2009 fiscal period.”
15.
The Commission observed that “there is no evidence of effective action” to comply
with that stipulated by the Court, and that it expects that the payment obstacles be
overcome as soon as possible. It also expressed its concern regarding the information
received regarding the bill that “tries to govern the compliance with the international
obligations, assumed by the State in good faith, by the rules of domestic law of the State
which is responsible for the violation that led to the reparation measure.” Likewise, it
observed that there is no evidence of efforts carried out by the State to complete the
internal links and coordination to give effect to the reparation measure ordered, in such a
manner that the procedures are an effective way [of] mitigating the human rights violation
that the victims have suffered and not merely the execution of formal actions.”
16.
The Court observes that, after the time passed since the Judgment was issued, the
payments awarded as non-pecuniary damages have not been made by the State, despite
the provisions made by the Tribunal and the State’s manifestations during the hearing and
in its briefs. It is necessary to stress that despite the provision in the Budget Law of 2009,
the Ministry of Economy and Finance has communicated that they do not have the
necessary resources, as noted by the Ombudsman’s Office (supra Considering Clause 13).
The Court reiterates that it is essential that the State carry out the necessary procedures to
make such payments as soon as possible. Likewise, since the State has defaulted, it shall
inform of the procedures started to effectively comply with this operative paragraph, as well
as the provisions applicable to cover the respective moratorium interest, in accordance with
paragraph 161 of the Judgment.