-81punishment of those responsible for such non-compliance constitute an
alarming and continuing pattern of denial of justice;”
d)
“the Municipality of Lima has failed to abide by all the judgments
rendered by the Sala de Derecho Público (Public Law Chamber) of the Corte
Superior de Lima (Supreme Court of Lima) and the Tribunal Constitucional
(Constitutional Court) that admitted the appeals for legal protection requested
by the [alleged] victims from 1996.” Even though all judgments passed on to
acquire the authority of a final judgment, none of them have been complied
with by the Municipality of Lima;
e)
when the State has purported to comply with some court decisions
ordering the reinstatement of workers to their jobs, “it has done so by
providing that in the event there is no vacancy or budget availability, the
worker will have to request an authorization for job creation along with the
respective budget availability, remaining on call in the meantime without pay
and subject to new assessment.” The State has thus shifted onto the alleged
victims the burden of complying with an obligation which is not theirs;
f)
the State has failed to prove in court in absolutely none of the cases
that the judgments it disregarded have resulted from an act of illegal collusion
between the legal representatives of the SITRAMUN-LIMA or its legal counsel
and the judicial authorities responsible for said court decisions;
g)
as regards the closing down of ESMLL, the Consejo Provincial de Lima
(Provincial Council of Lima) issued Agreement-in-Council No. 166, dated June
10, 2004, whereby it adopted a legislative initiative, the ‘Bill declaring the
dissolution and winding up of the Empresa de Servicios Municipales de
Limpieza de Lima (ESMLL) (Lima Municipal Cleaning Services Corporation)
ESMLL’ for approval by the Congress of Peru. This bill clearly indicates the
intention of the Municipality of Lima to “legitimize” the illegal closing down of
the corporation, and is a reaction to the judgment rendered by the Tribunal
Constitucional (Constitutional Court) on July 8, 1998, declaring Agreement-inCouncil No. 036 null and void;
h)
as regards the reinstatement of ESMLL employees ordered by the
Tribunal Constitucional (Constitutional Court), the Municipality of Lima
assumed that said court order allowed the interpretation that the payment
made to said workers by the Liquidation Board, constituted per se the
collection of social benefits on the part of some of the alleged victims,
something which would exclude them from the reinstatement order. The
alleged victims of ESMLL that were part of the amparo proceeding and who
collected an amount of money as so-called social benefits may not be excluded
from the scope of the judgment given that such exclusion would render the
remedy sought by the aggrieved parties illusory and ineffectual, which is
contrary to the requirements of the recourse provided for in Article 8 of the
Convention. After filing the complaint, a large No. of plaintiffs collected an
amount of money as settlement of social benefits. It should not be considered
that such act constitutes an implied waiver, in the sense of abandoning the
cause of action stated in the complaint, for, according to the Peruvian legal
system, an action may only be waived by means of an express document
bearing a signature authenticated before the relevant court, since Article 341
of the Code of Civil Procedure of Peru sets forth that waiver is not presumed.
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