47
104. Based on the foregoing, the Court believes that both the jurisdictional organs
and those of any other nature that exercise functions of a substantially jurisdictional
nature have the obligation to adopt just decisions based on full respect for the
guarantee of due process established in Article 8 of the American Convention 86.
105. In this respect, although Article 8(1) of the Convention alludes to the right of
every person to a hearing by a “competent tribunal” for the “determination of his
rights”, this article is also applicable in situations in which a public rather than a
judicial authority issues resolutions that affect the determination of such rights 87.
106. In this specific case, there are sufficient elements to affirm that, during the
administrative proceedings that were conducted in order to prepare Report No. 00397-IN/05010 (supra para. 76.p), the Migration and Naturalization Directorate did not
inform Mr. Ivcher that his nationalization file could not be found in the institution’s
archives, nor was he asked to present copies in order to reconstruct it; he was not
told about the charges of which he was accused, that is, that he had adulterated this
file and not complied with the requirement of renouncing his Israeli nationality, and,
lastly, he was not allowed to present witnesses to support his position.
107. Despite the foregoing, this Directorate issued the “directorial resolution”
which annulled Mr. Ivcher’s nationality title. This was the culmination of a process
that, as we have indicated, was conducted with the exclusive presence of the public
authorities, in particular the Migration and Naturalization Directorate, and during
which, Mr. Ivcher was prevented from intervening, fully informed, in all the stages,
despite being the person whose rights were being determined.
108. The Court also emphasizes that Mr. Ivcher Bronstein acquired Peruvian
nationality by a “supreme resolution’’, and his nationality title was signed by the
Minister for Foreign Affairs; however, as indicated in the previous section (supra
para. 76.q), Mr. Ivcher lost his nationality as the result of a “directorial resolution”,
which was undoubtedly of lesser rank than the one granting him the corresponding
right.
109. Lastly, the authority that annulled Mr. Ivcher’s nationality title was not
competent. This incompetence arises not only because of its subordinate nature with
regard to the authority that issued the certificate, but from the text of the Peruvian
legislation. Thus, article 110 of the single amended text of the Law of General Norms
of Administrative Procedures establishes that:
The annulment [...] shall be declared by an official of a higher rank than the one that
issued the resolution to be annulled.
In the case of a supreme resolution, the
annulment shall also be declared by a supreme resolution.
110. These considerations are sufficient, in the opinion of the Court, to declare that
the procedure conducted by the Migration and Naturalization Directorate did not
85
Cf. Constitutional Court case, supra note 8, para. 70; and Exceptions to the Exhaustion of
Domestic Remedies (Articles 46(1), 46(2)(a) and 46(2)(b), American Convention on Human Rights).
Advisory Opinion OC-11/90 of August 10, 1990. Series A No. 11, para. 28.
86
87
Cf. Constitucional Tribunal case, supra note 8, para. 71.
Cf. Constitucional Tribunal case, supra note 8, para. 71.
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