available domestic remedies that are appropriate and efficient for remedying the alleged
violation.
48.
With regard to compliance with the requirement of previous
exhaustion of domestic law remedies provided for in Article 46.1.a of the American
Convention, the petitioners indicate that “the situation of mistrust with regard to the
administration of justice in Peru, led the Consolidated Petroleum Workers Union of Peru
for PETROPERU S.A. to seek redress from many agencies.” The petitioners point out
that with a Judicial Branch largely conditioned by the Executive Branch, they brought
multiple motions domestically to give the State the opportunity to resolve the violations
via its own means. However, they state that the remedies they were obliged to exhaust
were those suitable, appropriate, and effective and these did not exist in Peru at the
time the events occurred, as per their allegations.
49.
The State points out that the petitioners had access to judicial
remedies before independent courts. In the State’s opinion, the judicial decisions
denying the claims of the petitioners were not the result of a Judicial Branch that lacked
independence and impartiality, but rather due to lack of compliance with procedural
requirements as set forth in legislation and to the insufficiency of the petitioners’
arguments.
50.
The Commission observes that with regard to the actions that the
petitioners say they have undertaken, that there is an action for amparo requesting
non-application of Executive Decree 72-25-PCM, via which the Board of Directors of
Petróleos de Perú was authorized to make use of Decree 26120, by finding that it
violated their constitutional rights to work and to due process. 15 The petitioners alleged
in their motion that since they had not been duly notified of the personnel reduction
process, in spite of repeated petitions to the Labor Authority, their constitutional rights
to guarantees of due process and defense had been infringed, because they did not
know the reasons or the procedures on which the dismissals were based.16
51.
According to the evidence alleged by the parties, the IACHR finds that
on March 18, 1996, the Specialized Civil Court of Talara declared the complaint
“INADMISSIBLE” on the argument that even if Article 3 of Law 23506 states that
guarantee actions apply in the case of a violation or threat based on a norm that is
incompatible with the Constitution, Article 200 of the Constitution states that the “action
for amparo” is not filed against legal norms, nor against judicial decisions issued in a
regular proceeding.” Thus, the judge believed that it was “evident that the Executive
Decree being questioned involves a general declaration, therefore the amparo is not the
relevant appropriate means.”
52.
On July 3, 1996, the Second Civil Division of Piura rendered the lower
court judgment “UPHELD on its own merits […] and because it is pursuant to the Law;
the Action for Amparo is not the appropriate means for declaring the Constitutionality of
15 The petitioners based their request on Article 3 of Law 23506 which states: “Article 3.—Admissibility of
the action with regard to unconstitutional rules. The guarantee actions are applicable even if the violation or
threat is based on a rule that is incompatible with the Constitution. In this instance, failure to apply the
norm shall be determined in the same proceeding.”
16 The petitioners pointed out that they were not notified of the order admitting the file submitted by the
company to the Regional Labor Authority and that “since there is no admission order, we were not notified of
the procedure that was initiated, so that we could exercise our right to defense in accordance with Article
139 (3) and (4) of the Constitution, which establishes that no one can be subjected to procedures other than
those previously established, as well as the publicity of the processes.”
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