92.
Finally, the IACHR recalls that the State had the general obligation to provide effective judicial
remedies to the people alleging they are the victims of human rights violations (Article 25), which shall be
substantiated pursuant to legal due process regulations (Article 8.1). For an effective remedy to exist it is not
sufficient for it to be legally foreseen but it must be really suitable for establishing if a human rights violation
was committed and provide what is necessary to solve it.95 Moreover, the Court indicated that the confusion
and contradiction in domestic regulations might place the alleged victims in a vulnerability situation, as they
cannot have a simple and effective remedy as a consequence of contradictory regulations.96
93.
In the present case, the IACHR recalls that the legal framework in force established that “at
legal court, the NCM’s decisions could not be overturned” in matters of assessments and ratifications of judges
and prosecutors, and it also indicated that the said decisions were “unchallengeable.” The foregoing implies
that, at the time of the facts, there was no remedy in the Peruvian legislation that would allow an integral review
of the NCM’s resolutions and there was no possibility of filing for a judicial remedy in view of a potential human
rights violation included in the said resolutions.
94.
In spite of the abovementioned, the Commission takes cognizance that the alleged victims
Cuya Lavy, Díaz Alvarado, and Rodríguez Ricse filed for an appeal petition against the NCM’s resolution, through
which their non-ratification was ordered.
95.
In the case of Jorge Luis Cuya Lavy, the motion of appeal was rejected, since it was considered
that the NCM’s resolutions could not be overturned, regarding the assessment and ratification of judges. Finally,
the special remedy was declared inadmissible, since it was estimated that the ratification function could only
be exceptionally overturned in the cases of irregular exercise.
96.
In the case of Jean Aubert Díaz Alvarado and Marta Silvana Rodriguez Ricse, both of them were
not ratified in 2001 and they filed for a motion of appeal in 2006, when this possibility was enabled due to the
judicial change of December 2004; however, the Constitutional Court finally rejected them, since it estimated
that the actions were prescribed as the 60-day deadline, which was foreseen in Article 44 of the Code of
Constitutional Procedure, expired.
97.
The Commission takes cognizance of what the State indicated regarding the fact that the writ
of amparo was effective in other cases similar to the petitioners’; however, the State also acknowledged that
during the time of the events, “the legislation and case law were completely divided,” which produced
uncertainty on the amparo’s legal basis, or not, when the legal framework explicitly denied that possibility, but
in practice, some judicial bodies did accept its legal basis against the assessment and ratification resolutions of
the NCM.
98.
Due to the foregoing, the Commission estimates that the alleged victims did not have a remedy
to challenge the decision ordering their non-ratification in their roles as judges and prosecutors, and that
produced their dismissals, denying them the possibility of an integral review of both the facts and the law of
the decision. Furthermore, neither did they have the effective judicial remedy foreseen in the American
Convention to achieve the protection of the allegedly violated human rights.
99.
By virtue of the previous reasons, the Commission concludes that the Peruvian State violated the
right to appeal against a judgment and the right to legal protection established in Articles 8.2 h) and 25.1 of the
American Convention, in relation to the obligations established in Articles 1.1 and 2 of this document, to the detriment
of Jorge Luis Cuya Lavy, Jean Aubert Díaz Alvarado, Marta Silvana Rodríguez Ricse, and Walter Antonio
Valenzuela Cerna.
95 IAHR
Court, Case Workers dismissed from Congress (Aguado Alfaro and others). Judgment on Preliminary Exceptions, Merits,
Reparations, and Indemnities. Judgment of November 24, 2006. Series C No. 158. Para. 125; IAHR Court, Case Yakye Axa Indigenous
Community. Judgment of June 17, 2005. Series C No. 125. Para. 61; IAHR Court, Case "Cinco Pensionistas". Judgment of February 28, 2003.
Series C No. 98. Para. 136.
96 IAHR Court. Case Maldonado Ordóñez vs. Guatemala. Preliminary Exception, Merits, Reparations, and Indemnities. Judgment of May 3,
2016. Series C No. 311, para. 120.
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