-20e)
the former ESMLL workers to whom the judgment rendered by the
Tribunal Constitucional (Constitutional Court) on July 8, 1998 makes
reference are included in the application. Their situation was described by the
Commission in paras. 98-100 of the application, when referring to the
judgments which have not been complied with by the State, stating the
names of those former workers in the footnote of page No. 48. Likewise, in
para. 145 of the application the violation of their rights to judicial protection
(Article 25 of the Convention) was alleged. “Besides, such persons are
included in the list of those who are entitled to be redressed [,] which is
included in para. 163 of the application.” Likewise, the powers of attorney
“granted by the former ESMLL workers” were filed; and
f)
at the public hearing held before the Court “the State acknowledged
that the judgment [regarding the former ESMLL workers] was valid and had
not been fulfilled, whereby it implicitly desisted from the preliminary objection
raised.”
118.
Arguments by the common intervener of the alleged victims’ representatives
The common intervener requested the Court that the objection had to be dismissed
and argued that:
a)
the amparo for legal protection filed by the former ESMLL workers was
adjudged and a final and enforceable judgment supporting such workers’
claims was rendered by the Tribunal Constitucional (Constitutional Court) on
July 8, 1998;
b)
in the processing of the case before the Commission, the State did not
contest the facts, challenge the admissibility of the petition made or invoke in
its favor the objection filed with the Court; and
c)
as to the former ESMLL workers “it has been proven that the domestic
remedies have been exhausted, but […] these have been patently
unsuccessful.” Furthermore, given the time that has passed, an exception to
the right to object on the basis of non-exhaustion of the domestic remedies is
applicable due to the unwarranted delay in the enforcement of the judgment.
Considerations of the Court
119. The Arguments by the State as regards the objection for “failure to exhaust
the previous domestic remedies” are based on two main points: a) the failure to
exhaust the domestic remedies as regards the judgment rendered by the Tribunal
Constitucional (Constitutional Court) on July 8, 1998 on the dissolution and winding
up of Empresa de Servicios Municipales de Limpieza de Lima (Lima Municipal
Cleaning Services Corporation) – ESMLL, wherein it ordered the reinstatement of the
workers who had not collected their social benefits to their jobs; and b) the fact that
“the list of persons stated in the application does not include any former ESMLL
worker.”
a) failure to exhaust the domestic remedies