REPORT
Nº 84/01 CASE
12.078 RICARDO
MANUEL SEMOZA DI CARLO PERU October
10, 2001
I.
SUMMARY 1.
On November 12, 1998, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission,” “the Commission,” or
“the IACHR”) received a petition lodged by Mr. Ricardo Manuel Semoza
Di Carlo (hereinafter the “petitioner”) alleging that the Republic of
Peru (hereinafter “Peru,” “the Peruvian State,” or “the
State”) had not complied with the court order to reinstate him with the
National Police of Peru. The petitioner alleges that the Peruvian State’s failure to
comply with the court order constitutes a violation of the right to
judicial protection enshrined in Article 25 of the American Convention on
Human Rights (hereinafter “the American Convention” or “the
Convention”).
2.
The State alleges that the petition is inadmissible, as the
requirement regarding exhaustion of domestic remedies has not been
satisfied. 3.
In keeping with Articles 46 and 47 of the American Convention, the
Commission decides to declare the petition admissible with regard to facts
which, if their veracity is confirmed, would constitute violations of
Articles 1(1) and 25(2)(c) of the American Convention, and to proceed to
examine the merits. The Commission also decides to notify the parties of
this decision, to publish it, and to include it in its Annual Report to
the OAS General Assembly.
II.
PROCEEDINGS BEFORE THE COMMISSION 4.
The IACHR received the petition on November 12, 1998. On January
15, 1999, the IACHR forwarded the pertinent parts of the petition to the
Peruvian State and requested that it present information within 90 days.
On March 17, 1999, the Commission gave the State additional time to
respond. 5.
On July 2, 1999, the State forwarded its reply.
On August 17, 1999, the petitioner submitted observations on the
State’s reply and, on February 8, 2000, the State provided additional
information. 6. On April 23, 2001, the Commission
placed itself at the disposal of the parties with a view to reaching a
friendly settlement of the matter. On
May 10, 2001, the petitioner indicated his consent to participate in the
friendly settlement procedure. On
July 27, 2001, the State indicated that, “as these are the final days of
the government overseeing the transition to democracy, it would be
appropriate for the government taking power to reach a decision on a
possible friendly settlement, as that new government would have
responsibility for complying with the undertakings to be made.”
III.
POSITION OF THE PARTIES A.
Position of the petitioner 7.
The petitioner alleges that in 1990, he was serving as Chief of the
National Police of Peru. He
indicates that Supreme Resolution Nº 315-90-IN-DM, of July 31, 1990,
arbitrarily relieved him of duty.
8.
He states that he filed a writ of amparo
with the Fifth Civil Court of Lima.
He states that, on December 11, 1991, that Court issued a judgment
ordering his reinstatement with the National Police of Peru, and setting
aside the aforementioned Supreme Resolution Nº 315-90-IN-DM, which had
relieved him of duty.
9.
The petitioner alleges that from 1991 to 1995, he sought to have
the aforementioned judgment enforced through applications to the Ministry
of the Interior and writs of mandamus lodged with the competent court.
He states that Supreme Resolution Nº 1461, of December 28, 1995,
ordered his reinstatement, but the following day, Supreme Resolution Nº
1445, of December 29, 1995, again relieved him of duty.
10. Mr.
Semoza Di Carlo alleges that he filed another writ of amparo,
with the 19th Civil Court of Lima, and that that court, on August 22,
1996, again ordered his reinstatement with the National Police of Peru.
11. He
stated that Supreme Decree Nº 085/97/IN/PNP, of October 1, 1997, again
ordered his reinstatement, but eight days later, pursuant to Supreme
Resolution Nº 0867/97/IN/PNP1445, of December 29, 1995, he was again
relieved of duty, without having been effectively reinstated. B.
Position of the State 12. The State alleges that, through Supreme
Resolution Nº 085/97/IN/PNP, of October 1, 1997, Mr. Semoza Di Carlo was
reinstated in the National Police of Peru.
It adds that, in so doing, it complied with the court order to
reinstate Mr. Semoza Di Carlo. 13. It states that on December 29, 1995, through
Supreme Resolution Nº 0867/97/IN/PNP1445, Mr. Semoza Di Carlo was
relieved of duty with the National Police of Peru. 14. It states that Mr. Semoza Di Carlo did not
take any legal action in connection with the said Supreme Resolution Nº
0867/97/IN/PNP1445, of December 29, 1995, which relieved Mr. Semoza Di
Carlo of duty with the National Police of Peru. 15. It alleges that, in view of the foregoing,
and pursuant to the provisions of Article 46(1)(a) of the American
Convention, the petition should be declared inadmissible, as the
requirement regarding exhaustion of domestic remedies has not been
satisfied.
IV.
ANALYSIS OF ADMISSIBILITY 16. The Commission now proceeds to examine the
requirements established in the American Convention for admissibility of a
petition. A.
Competence ratione materiae,
ratione personae, ratione temporis, and ratione loci of the Commission 17. The petitioner satisfies the requirements for
lodging petitions with the IACHR set forth in Article 44 of the American
Convention. The petition
states that the alleged victim is a person whose rights, as enshrined in
the American Convention, Peru undertook to respect and guarantee.
As concerns the State, the Commission notes that Peru has been a
State Party to the American Convention since July 28, 1978, when it
deposited its instrument of ratification. Therefore, the
Commission has competence ratione
personae to examine the case. 18. The Commission has
competence ratione loci to
examine the case because the petition alleges violations of rights
protected by the American Convention, which would have taken place within
the territory of a State Party to that treaty. 19.
The IACHR has competence ratione
temporis as the facts alleged in the petition took place when the
obligation to respect and guarantee the rights established in the
Convention was in force for the Peruvian State. 20. Lastly, the Commission has competence ratione materiae as the petition alleges violations of human rights
protected by the American Convention. B.
Requirements for admissibility of the petition 1.
Exhaustion
of domestic remedies 21. The petitioner alleges that the judgment of
the Fifth Civil Court of Lima of December 11, 1991, ordering his
reinstatement in the National Police of Peru has not been effectively
enforced, as the two aforementioned resolutions of December 28, 1995 and
October 1, 1997, which ordered his reinstatement, were succeeded by the
two said resolutions of December 29, 1995 and October 9, 1997, which again
relieved Mr. Semoza Di Carlo of duty, without having been effectively
reinstated in the National Police. 22. For its part, the State alleges that the
appropriate step was for the petitioner to institute further legal
proceedings in connection with the third resolution ordering his
retirement. 23.
The IACHR finds that the aforementioned argument of the State is
without substance. In fact,
the petition does not refer to the third resolution, of October 9, 1997,
relieving Mr. Semoza Di Carlo of duty, but rather the ongoing failure to
enforce the judgment of the Fifth Civil Court of Lima, of December 11,
1991, ordering his reinstatement. That
order is the one to be taken into account in analyzing the requirement of
exhaustion of domestic remedies. 24.
The Commission therefore considers that the requirement of Article
46(1)(a) of the American Convention has been met. 2.
Period for lodging the petition 25.
With respect to the requirement of Article 46(1)(b) of the
Convention that the petition must be
lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the decision that
exhausted the domestic remedies, the Commission reiterates its view that: …
failure to enforce a final judgment is an on-going violation by States
that persists as an infraction of Article 25 of the Convention, which sets
forth the right to effective judicial protection. Therefore, in such
cases, the requirement regarding the deadline for lodging a petition, set
forth in Article 46(1)(b) of the American Convention, is not applicable.[1] 26.
It follows from the foregoing that the requirement involving the
period for lodging petitions contained in Article 46(1)(b) of the American
Convention does not apply in this case, wherein the petition lodged with
the IACHR alleges the ongoing failure to enforce the judgment of the Fifth
Civil Court of Lima, of December 11, 1991, ordering the reinstatement of
Mr. Semoza Di Carlo with the National Police of Peru.
The Commission therefore considers that the petition of reference
was lodged within a reasonable period, as provided in Article 32 of its
Regulations, which is equivalent in content to Article 38 of the
Regulations in force at the time the petition was lodged. 3.
Duplication of proceedings and res judicata 27.
The Commission has no knowledge that the subject of the petition is
pending in another international proceeding for settlement, or that it
represents, from a substantive standpoint, a reproduction of an appeal
already examined by the Commission or another international entity.
Therefore, the Commission finds that the requirements of Article 46(1)(c)
and 47(d) of the Convention have been met. 4.
Characterization of the facts 28.
The Commission considers that, if their veracity is confirmed, the
facts alleged by the petitioners may be characterized as violations of the
right to judicial protection enshrined in Article 25(2)(c) of the American
Convention, and the obligation to respect rights enshrined in Article 1(1)
of the said Convention. V.
CONCLUSIONS
29.
The Commission concludes that it is competent to hear this case and
that it is admissible under Articles 46 and 47 of the American Convention. 30. Based on the arguments of fact and law set
forth above, and without prejudging the merits of the case, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
1.
To declare this case admissible with regard to facts which, if
their veracity is confirmed, would constitute violations of Articles 1(1)
and 25(2)(c) of the American Convention on Human Rights.
2.
To notify the parties of this decision. 3.
To examine the merits of the case.
4.
To publish this decision and include it in its Annual Report to the
OAS General Assembly. Done and signed at the headquarters of the Inter-American Commission on Human Rights in Washington, D.C., on this 10th day of October, 2001. (Signed): Claudio Grossman, President, Juan Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President; Commissioners: Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo. [ Table of Contents | Previous | Next ]
[1] Annual Report of the IACHR for 1999, Report Nº 75/99, Cesar Cabrejos Bernuy, Case 11.800 (Peru), para. 22. |