10
the document at the appropriate time and, despite this, it did not
submit any objection or observation on the said list.
The common intervenors’ arguments
57.
The common intervenors requested the Court to reject the objection and
argued that:
(a)
The State is attempting to disregard the usual practice in the
processing of individual petitions for the violation of rights embodied in
the Convention, and
(b)
What the State refers to as “adhesion” corresponds to the co-petitioner
mechanism; this relates to third parties who, after the petition has
been lodged before the Commission, express their desire to be
considered petitioners in the case also. This frequent practice of
admitting third parties who have not been named as petitioners is
admissible provided that, as in this case, the original petitioner in the
case does not oppose the admission of the co-petitioner.
The Court’s findings
58.
The State acknowledged, as regards the exhaustion of domestic remedies,
that the “the period referred to in Article 32 of the […] Rules of Procedure [of the
Commission should be] calculated as of January 12, 1998, the date of publication of
the judgment delivered by the Constitutional Court in File No. 338-1996-AA/TC.” In
point of fact, “Adolfo Fernández Saré and another [126] employees dismissed from
the Congress of the Republic of Peru” lodged their petition before the Commission on
March 26, 1998, and, subsequently, other petitions or requests to adhere to the
petitions were presented1 (supra paras. 5 to 12).
59.
From the case file before the Commission, particularly from the contents of its
Admissibility Report No. 52/00 of June 15, 2000 (supra para. 13), it is clear that
“since the petitions in both case 11,830 and case 12,038 specifically name some
individuals adding ‘and others’ and that, during the processing of the case, the
[Commission] received different lists of names of the alleged victims from the
petitioners, as well as adhesion requests from other individuals who asked to be
incorporated as alleged victims, [the Commission] presumed that all those included
in the Constitutional Court’s judgment of November 24, 1997, were alleged victims.”
In other words, at that procedural opportunity, the Commission used “all those
included” in the Constitutional Court’s judgment as a basis for determining the
alleged victims (infra para. 89(21) and 89(24)). In addition, in accordance with the
right of defense and the adversarial principle, the Commission forwarded this
information to the State, which never submitted any objection or observation to the
1
In July 1998, another petition was submitted (12,038) by at least 21 individuals. On February 4,
1999, two people asked to be considered “adherents” to the petition submitted by Mr. Fernández Saré. In
April 1999, Mr. Fernández Saré indicated that there were 200 petitioners. Subsequently, on December 9,
1999, the Lima Lawyers’ Professional Association submitted several lists which included 52 individuals who
appear in the first petition lodged by Mr. Fernández Saré; 16 individuals who, according to the Lawyers’
Professional Association, had not exhausted domestic remedies; 14 individuals who are included in petition
11,830; 13 individuals who are included in petition 12,038; two people who adhered to petition 12,038;
and three people who adhered to petition 12,038 but who, according to the Lawyers’ Professional
Association, had also not exhausted domestic remedies.
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