37
The State’s arguments
98.
Regarding Article 25 of the Convention, the State alleged that:
(a)
Article 27 of Resolution 1239-A-92-CACL “was never applied to the
internal procedures of the Public Administration designed to organize
or operate its own activities or services”;
(b)
Although the complaint by way of the administrative proceeding was
inadmissible, the dismissed employees could have used the judicial
proceeding to assert the rights they considered had been violated;
(c)
The dismissed employees received erroneous advice and filed improper
administrative recourses, eliminating the possibility of filing an action
for amparo within the established time of their own accord;
(d)
The Twenty-eighth Civil Court considered that the action for amparo
had not extinguished because it did not calculate the time from the
date of publication of the resolutions dismissing the congressional
employees;
(e)
The Constitutional Court’s decision was delivered in accordance with
the formalities recognized by the American Convention;
(f)
Neither the judicial ruling that admitted the amparo procedure, nor the
judicial ruling that revoked it, referred to article 9 of Decree Law No.
25640, which was not used to justify the declaration of the
inadmissibility of the action for amparo;
(g)
The dismissed employees included in the resolutions ordering their
dismissal and who filed the respective actions under administrative law
within the legally-defined time period, obtained recognition of their
violated rights, and were reinstated in Congress with recognition of
their loss of earnings from the date of their respective dismissal;
(h)
On December 6, 2002, the Constitutional Court delivered a judgment
in another case in which it confirmed the findings of the judgment
declaring the action for amparo filed by the alleged victims
inadmissible. This shows that, at the time, this court, abided by the
Constitution and the national laws, and
(i)
According to the case law of the Inter-American Court, the InterAmerican Commission has not interpreted the concept of effective
recourse correctly in its application.
99.
With regard to Article 8(1) of the Convention, the State alleged that the
Constitutional Court had observed that, in some cases, it might be admissible for the
extinguishment mechanism to be made more flexible so as to permit the
examination of matters concerning merits. Nevertheless, it made it clear that, in the
case of actions where there is a lack due diligence, such as the action in this case,
together with the incorrect legal advice, it is not possible to dispense with the
application of the procedural requirements.
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