6
in the budget [indicated by the Ministry of Economy and Finance] due to a failure of State
management, is not a valid reason to fail to comply with the payment of the sums." They
argued that the workers are the ones who have had to bear the failure to comply, appealing
multiple times before the judicial authorities, in some cases seeking precautionary measures
to obtain partial payments through embargo and auction of state goods. In other cases, an
order was issued by the 27th Specialized Civil Court of the Superior Court of Justice of the
Ministry of Justice requiring the debt to be paid. They also expressed their concern because
on May 3, 2010, the President of the Republic sent the Congress of the Republic Bill No.
4006/2009-PE to "establish, among other things, that compliance with supernational
judgments is not carried out according to the deadline decided in the judgments handed
down by the corresponding bodies (for example in the case at issue, one year counting from
its notification), but rather that it be subjected to the provisions of domestic law and, in
particular, to the terms of the Consolidated Text of the Law, which regulates contentious
administrative proceedings (Supreme Decree No. 013-2008-JUS) and Article 70 of Law No.
28411, General Law of the National Budget System, which provides for substantially longer
deadlines extending up to five years." The common interveners argued that these provisions
contradict the duty assumed by the State on ratifying the American Convention.
13. The interveners also requested that the Court rule that the State has failed to comply
with what was ordered in the Judgment and that the State "has committed a new violation"
of the rights recognized in Article 25(2)(c) of the Convention, for which reason he requested
that it "order the corresponding remedies and measures of reparation” and report on them
to the General Assembly of the OAS.
14. The common interveners provide a communication dated December 16, 2009, from
the People’s Ombudsman's Office addressed to the President of the Council of Ministers in
which it observed the State’s noncompliance, which persists "both with regard to the
amount explicitly established in the ruling of the Court for nonpecuniary damage […] as well
as the amount to be determined (in the event that the irregular dismissal is verified) by the
independent and impartial organ referred to in [the Judgment’s operative paragraph
number] 4.” Consequently, the Ombudsman's Office recommended that the necessary
measures be taken to "authorize the Ministry of Economy and Finance to designate the
budgetary resources for complying with the judgment […] and with the provisions of the
Forty-Fifth Final Provision of the Public Sector Budget Act for fiscal year 2009."
15. The Commission observed that "no effective action has been recorded" towards
compliance with what has been ordered and hopes that the obstacles to carrying out the
payments can be overcome as soon as possible. It also expressed its concern with regard to
the information received on a draft bill that “is intended to condition compliance with
international obligations assumed by the State in good faith on the domestic law of the
State responsible for the violation that led to the reparatory measure.” Likewise, it
observed that there is no indication that efforts have been made to make contacts and
coordinate domestically in order to make the reparatory measures that were ordered
effective and in order for the steps taken to effectively mitigate the violation of human
rights that the victims have suffered and not simply represent the execution of formal
actions."
16. The Court observes that in the time that has passed since the Judgment was handed
down, the payments ordered for nonpecuniary damages have not been made by the State,
despite what the Tribunal ordered and what the State expressed during the hearing and in
its briefs. It is necessary to highlight that despite the provision for it in the Budgetary Act of
2009, the Ministry of Economy and Finance has reported that it does not have the necessary
funds, as the People’s Ombudsman's Office itself has noted (supra Considering 13). The
Court reiterates that it is crucial for the State to take the remaining steps to make these
payments as soon as possible. Likewise, given that the State has fallen into arrears, it must
report on the steps taken for effective compliance with this operative paragraph, as well as
on the applicable provisions for covering the corresponding interest on arrears, pursuant to
paragraph 161 of the Judgment.
B)
Request for adoption of provisional measures