-22125. The Court has noted that during the proceeding before the Commission the
State did not invoke the failure to exhaust the domestic remedies. On the contrary, it
acknowledged its international responsibility for the violation of Article 25(2)(c) of
the Inter-American Convention. The Commission examined the admissibility of the
petition and issued the Report on Admissibility No. 85/01 on October 10, 2001,
wherein it stated, inter alia, that “[th]e State [had] not filed any objection regarding
the requirement to exhaust the remedies of the domestic jurisdiction.”
126. Therefore, as a consequence of having failed to file a procedurally timely
objection for failure to exhaust the domestic remedies, the Court concludes that Peru
has implicitly waived its right to invoke it, whereby it dismisses the preliminary
objection filed by the State.
127. The Court has noted that the above order of amparo has been in the
enforcement phase for seven years and a half. Since there might be an unwarranted
delay in the enforcement of judgment, this matter is closely related to the merits of
the case, whereby it will be examined together with the alleged violations of the
Convention.
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b) “the list of persons stated in the application does not include any former worker of
Empresa de Servicios Municipales de Limpieza de Lima - ESMLL (Lima Municipal
Cleaning Services Corporation)”
128. The Court dismisses this argument of the State as irrelevant in that it has no
bearing on the alleged objection for “failure to exhaust the previous domestic
remedies.”
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SECOND PRELIMINARY OBJECTION
“lack of legal standing of the complainants to act”
129.
Arguments by the State
a)
it “supports” its objection on Articles 23(1) and 37 of the Court’s Rules
of Procedure and on Agreements No. 87 and 98 of the International Labor
Organization, which set forth trade union autonomy and bar the commission
of acts of interference designed to violate it. The complainants are not
workers of the Municipalidad Metropolitana de Lima (Metropolitan Municipality
of Lima)), nor are they the current representatives of the Sindicato de
Trabajadores Municipales de Lima - SITRAMUN-LIMA (Lima Municipal
Workers’ Union), as they have claimed to be before the Court;
b)
there is no identity or link between those entitled to the rights under
discussion and the complainants, a prerequisite for the existence of a valid
procedural relation between the parties to a case;