42
raised before the Administrative Commission regarding its own decisions, contradicts
other subsequent acts of Congress itself, which reflect the State’s willingness to
establish the possibility of examining the recourses filed (supra para. 89(16)). Hence,
it is unclear whether these decisions were also removed from the control of other
organs of Congress. This lack of clarity is such that, despite the express prohibition,
some dismissed employees filed the said administrative recourse before Congress
(supra para. 89(15) and (20)). In any case, irrespective of the need to exhaust the
administrative proceeding, the fact that alleged victims filed recourses using this
channel should not be understood to prejudice them in this context, particularly taking
into account that another provision of the decree establishing the “streamlining of
Congress” was in force that prevented filing an action for amparo to counter its effects
(supra paras. 89(4) and 89(9) and infra paras. 117 to 121).
*
*
*
114. The State has also argued that the alleged victims could have resorted to the
administrative-law proceeding, which it considered the adequate and appropriate
domestic remedy for filing their claims and, despite this, it was not used.
115. The Court observes that, according to the information in the file, six
dismissed congressional employees – two who are alleged victims in this case (supra
para. 89(29)) and four who are not – opted to resort to the administrative-law
proceeding to request, inter alia, the annulment of one of the decisions ordering their
dismissal. The actions were declared admissible in only two of these cases, even
though most of the basic facts were almost identical.68 Also, from the said judgments
it is clear that these employees filed recourses for reconsideration and/or of appeal
using the administrative proceeding.
116. Accordingly, from the rulings of the domestic courts in the administrative-law
jurisdiction in the six cases provided to the Court’s file, it is unclear whether it was
necessary to exhaust the administrative proceeding before filing an action before the
courts. In this regard, it is also unclear whether the administrative-law jurisdiction
was viable or appropriate for the alleged victims to be able to contest their dismissal;
consequently, the State cannot defend itself by arguing that the alleged victims have
not attempted it, in order to allege that its obligation to provide an effective recourse
has been fulfilled.
*
*
*
117. In relation to the norms applied to those who were dismissed, it has been
established that article 9 of Decree Law No. 25640 expressly prohibited the possibility
of filing an action for amparo against its effects (supra para. 89(4), 89(9) and 113).
As the expert witness Abad Yupanqui has stated, at the time of the facts “in each of
68
Thus, in November and December 1993 and December 1997, the Supreme Court of Justice
considered inadmissible four administrative-law actions filed by the two alleged victims and another two
persons. Also, in November and December 1995, the Supreme Court considered admissible two of these
actions filed by the other two dismissed employees, who are not alleged victims in this case. From the
November 1995 judgment it is clear that the plaintiff had filed recourses of reconsideration and appeal by
way of the administrative channels, “which had not been decided.”
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