43
the decree laws where it was considered necessary, the Government began to include
a provision that prevented the use of the amparo procedure” (supra para. 81(g)).69
118. Regarding the provisions called into question by the Commission and by the
common intervenors in these proceedings, the State declared that:
During the period of the process to streamline the personnel of the National Congress of
the Peruvian Republic, legal and administrative provisions were in force, which are at
issue in these proceedings, that violated the rights embodied in Articles 1(1) and 2 of
the American Convention.
Article 9 of Decree Law No. 25640, which has been called into question in these
proceedings, violated the provisions of Articles 8(1) and 25(1) of the American
Convention.
[…] It could be understood that the mere issuance of article 9 [of the said] Decree […]
and article 27 of Resolution 1239-A-92CACL were incompatible with the Convention.
119. The Court finds it evident that the alleged victims were affected by the
provisions under consideration in the international proceedings. The prohibition to
contest the effects of Decree Law No. 25640, contained in the said article 9,
constituted a norm of immediate application, since the people it affected were
prevented ab initio from contesting any effect they deemed prejudicial to their
interests. The Court finds that, in a democratic society, a norm containing a
prohibition to contest the possible effects of its application or interpretation cannot be
considered a valid limitation of the right of those affected by the decree to a genuine
and effective access to justice, which cannot be arbitrarily restricted, reduced or
annulled in light of Articles 8 and 25 of the Convention, in relation to Articles 1(1) and
2 thereof.70
120. In the context described above, article 9 of Decree Law No. 26540 and article
27 of Resolution 1239-A-CACL of the Administrative Commission helped promote a
climate of absence of judicial protection and legal security that, to a great extent,
prevented or hindered the persons affected from determining with reasonable clarity
the appropriate proceeding to which they could or should resort to reclaim the rights
they considered violated.
*
*
*
121. Indeed, this situation of lack of judicial protection and legal certainty which
resulted, in particular, from the entry into force of article 9 of Decree Law No. 25640,
was reflected by the fact that, for more than two years, the alleged victims did not
attempt to file an action for amparo. It was not until March 1995, that the alleged
victims filed an action of this type before the Lima Twenty-eighth Civil Court. That
court examined the merits of the allegations, and declared the amparo admissible
and the decisions providing for the dismissal of the appellants inapplicable (supra
para. 89(21)). However, the Prosecutor General appealed the judgment before the
Fifth Civil Chamber of the Superior Court of Justice, which revoked it and declared
69
In this regard, the expert witness listed 17 decree laws that contain a similar provision.
70
Cf., in this regard, Case of Goiburú et al., supra note 8, para. 131; Juridical Status and Rights of
Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003. Series A No. 18, para. 126;
Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human
Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9.
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