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Admissibility national association of laid off and retired employees of sunat


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REPORT No. 21/09

PETITIONS 965-98, 638-03 and 1044-04 TOGETHER

ADMISSIBILITY

NATIONAL ASSOCIATION OF LAID OFF AND RETIRED EMPLOYEES OF SUNAT



PERU

March 19, 2009




I. SUMMARY





  1. On November 11, 1998, August 27, 2003 and on October 8, 2004, the Inter-American Commission on Human Rights (hereinafter also “the Inter-American Commission,” “the Commission” or “the IACHR”) received petitions lodged by the Asociacion Nacional de Cesantes y Jubilados de la SUNAT (National Association of Discharged and Retired Employees of SUNAT), a group of six persons,1 and by the Centro de Asesoría Laboral del Perú (Labor Advisory Center of Peru) (hereinafter, “the petitioners”). The first and third petitions were lodged on behalf of the members of the Association (hereinafter also ”the alleged victims”), whereas the second petition was lodged by the plaintiff. These petitions allege the violation by the Republic of Peru (hereinafter "Peru", "the State" or "the Peruvian state") of the rights enshrined in Article 8 (Judicial Guarantees), 24 (Equality before the law) and 25 (Judicial Protection) of the American Convention on Human Rights (hereinafter also “the American Convention,” “the Convention” or the “ACHR”), with regard to the obligations established in Articles 1.1 and 2 of the same instrument, as well as of the right recognized in Article 9 (Right to social security) of the Additional Protocol to the American Convention with regard to Economic, Social and Cultural Rights (hereinafter also “the Protocol of San Salvador”) and to Article XVI (Right to social security) of the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”).




  1. The petitioners also indicated that the National Superintendence of Tax Administration (hereinafter also “SUNAT”) had refrained from enforcing the judgment issued by the Supreme Court of Justice on October 25, 1993, in favor of the alleged victims, which vacated the Third Transitional Provision of Decree Law No. 673 and reinstated their right to receive pensions adjusted to the salary scale of active employees of SUNAT, as well as payment of the increases they did not perceive. The petitioners also alleged that, within the framework of the process to enforce judgments, the judicial authorities were accomplices in the failure to enforce the judgment.




  1. For its part, the Peruvian State argued that, in accordance with the law and the constitution in force, the alleged victims did not qualify for adjustments of pension based on the criteria used for their demand. The State also argued that domestic remedies had not been exhausted because the process was still in the enforcement of judgment stage where the victims had access to the appropriate mechanisms. The State also argued that the petition failed to meet the six-month filing deadline, counting from the date the sentence was issued on October 25, 1993, which, the State alleged, had not been served. Therefore, the State requested that the Commission rule the petition inadmissible.




  1. After examining the position of the parties in light of the admissibility requirements established in Articles 46 and 47 of the American Convention, the Commission concluded that it was competent to hear the complaint lodged and that the petition was admissible based on the alleged violation of the rights enshrined in Articles 21, 8 y 25 of the American Convention with regard to the general obligations established in Articles 1.1 and 2 of the same instrument. The Commission also concluded that the petition was inadmissible with regard to the alleged violation of Article 24 of the American Convention, and of Article 9 of the Protocol of San Salvador. Therefore, the Commission decided to notify the parties, to make public this Admissibility Report and to include it in its Annual Report.



II. PROCESSING BEFORE THE COMMISSION





  1. Due to the fact that the Commission decided to group together petitions 965/98, 638/03 and 1044/04, in May 2007 and in August 2007, processing before the Commission will be described separately for each petition until the date in which the parties were notified of the decision to group the petitions together.


Processing of Petition 965/98


  1. The initial petition was received on November 11, 1998. On November 11, 1999 and on June 30, 2003, the petitioners submitted additional information. On May 8, 2006, the Commission forwarded the relevant sections of the petition to the State and, in accordance with Article 30.3 of the Rules of Procedure, requested that the State submit a response within two months.




  1. The Peruvian State submitted its observations on July 11, 2006, and on July 31, 2006, it submitted the attachments it had listed as forthcoming in the observations.




  1. On August 28, December 13 and December 19, 2006, and on March 19, 2007, the petitioners submitted information. On the latter date, the petitioners informed the Commission that the Centro de Asesoría Laboral (Labor Advisory Center), (CEDAL), had become a co-petitioner. They also requested the grouping together of petitions 965/98, 638/03 and 1044/04, due to the fact that they were based on the same facts.


Processing of Petition 638/03


  1. The initial petition was received on August 27, 2003, which was assigned registration number 638/03. On June 24, 2005, the Commission received an additional communication from the petitioners.




  1. On April 27, 2006, the Commission forwarded the relevant sections of the petition to the Peruvian State and requested that, in accordance with Article 30.3 of the Rules of Procedure, the State submit its response within two months.




  1. On July 7, 2006, the Peruvian State submitted its observations and added its position paper “General Report of the Peruvian State to the Honorable Inter-American Commission on Human Rights with regard to various complaints on the subject of pensions.” On July 12 and July 31, 2006, the State forwarded the corresponding annexes.




  1. On September 7, 2006, and on February 16, 2007, the petitioners submitted additional information.




  1. On November 10, 2006, the State submitted its observations and on November 29, 2006, it forwarded the corresponding annexes. On March 26 and on April 3, 2007, the State submitted additional observations.


Processing of Petition 1044/04


  1. On October 8, 2004, the Commission received a new petition alleging the violation of rights enshrined in Articles 8, 25, 24, 1.1 and 2 of the American Convention to the detriment of 654 former employees of SUNAT. The petition was assigned registration number 1044/04. On February 15, 2005, the petitioners presented additional information.



  1. On March 29, 2005, the Commission forwarded the relevant sections of the petition to the Peruvian State and requested that, in accordance with Article 30.3 of the Rules of Procedure, the State submit its response within a period of two months. The State forwarded its observations on May 31, 2005, and the corresponding annexes on June 14, 2005. On September 2, 2005 and on April 5, 2006, the petitioners submitted additional information.


Processing since grouping the petitions together


  1. On May 7, 2007, the Commission communicated to the parties that petition 1044/04 had been grouped together with petition 965/98. On August 24, 2007, the Commission notified the parties its decision to also group together petition 638/03 and petition 965/98. On September 28, 2007, the petitioners submitted additional information. On July 25 and on December 19, 2007, the Peruvian State submitted additional observations.



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