3
The case of the supervening facts is distinct. These latter are presented after any of
the following written documents are submitted: complaint; submissions, arguments and
evidences, and reply to the complaint. In such hypothesis, the information ought to be
forwarded to the Tribunal in any stage of the process before the decision of the Judgment".
10.
As to the juridical elements themselves of the complaint, the Court has decided
in Judgment, in a distinct way, in the following terms (par. 155):
"As to the incorporation of other rights, distinct from the ones already contained in
the complaint presented by the Commission, the Court considers that the petitioners may
invoke those rights. They are the titulaires of all the rights set forth in the American
Convention, and not to admit it would be an undue restriction to their condition of subjects of
the International Law of Human Rights. It is understood that the aforesaid, concerning other
rights, pertains to the facts already contained in the complaint".
11.
The Court has, in this way, with all prudence, taken a step forward in this
respect, in the direction claimed by the individual petitioners. It has done so withiout
prejudice to the right of defence of the respondent State and without minimizing the
relevant role of the Commission in the course of the contentious procedure. In fact, in
any circumstances the right of defence of the State is preserved, as the State counts on
a time-limit of two months to reply the complaint lodged by the Commission with the
Court, as well as a prudencial time-limit to present its observations to the brief of
submissions, arguments and evidences of the representatives of the alleged victims and
their relatives. On some occasions the time-limit to submit the reply to the complaint
and the observations to the brief of the representatives of the alleged victims and their
relatives has been the same, it thus being possible to present in a same brief the two
lines of arguments.
12.
In the present case of the Five Pensioners versus Peru, the State had the
opportunity, and in effect took the initiative, of presenting various briefs5. Accordingly,
the principle of the contradictorio has been fully preserved. The important point, in this
respect, is that the respondent State always has the occasion to exercise fully its right
of defence. Moreover, in any case, as pointed out by the Court in the present Judgment,
any right added by the petitioners to those already referred to in the complaint
5
.
Thus, the respondent State presented, in the present case, the following briefs on the merits of the
case: brief of 15.03.2002, of reply to the complaint; brief of 22.04.2002, of observations to the brief of
submissions, arguments and evidences of the representatives of the alleged victims and their relatives; brief of
22.05.2002, whereby it referred to the information of the Comission pertaining to the compliance with the
judgments issued by the Supreme Court of Justice and by the Constitutional Tribunal of Peru and the
derrogation of Article 5 of the Decree-Law n. 25792; brief of 02.09.2002, whereby it referred to the alleged
non-exhaustion of remedies of domestic law referred to in the reply to the complaint; brief of 02.09.2002,
whereby it expressed its considerations on the proposal of friendly settlement presented by the representatives
of the alleged victims and their relatives before the Executive Secretariat of the National Commission of Human
Rights of the Ministry of Justice of Peru and on the amicus curiae presented by the Office of the Ombudsman
(Defensoría del Pueblo) during the handling of the case before the Commission; brief of 29.10.2002, whereby it
submitted its final written arguments; brief of 29.10.2002, whereby it presented a document titled "Explicación
de los Regímenes Laborales y Pensionarios que se Aplican en la República del Perú y Análisis Específico de la
Situación de Cada Uno de los Pensionistas"; and brief of 07.11.2002, whereby it referred to the expertise
presented before the Court by Mr. Máximo Jesús Atauje Montes. Besides those briefs, the Peruvian State
presented other briefs limited to the handling of the case, as well as pertaining to the evidence.
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