IV. ANALYSIS OF ADMISSIBILITY A. Competence

B. Exhaustion of Domestic Remedies

57. 
    Article 46.1.(a) of the American Convention provides that for a complaint lodged with the Inter-American Commission in accordance with Article 44 of the Convention to be admissible, it is necessary to have pursued and exhausted the domestic remedies in accordance with generally recognized principles of international law. The purpose of this requirement is to allow domestic authorities to hear about the alleged violation of a protected right and, if appropriate, to provide a solution before it is heard in an international venue.
    

58. 
    The requirement of prior exhaustion of domestic remedies is applicable when within the domestic system there is effective and adequate recourse available to remedy the alleged violation. In this respect, Article 46.2 establishes that the requirement is not applicable when the domestic legislation of the State concerned does not afford due process of law for the protection of the right that has allegedly been violated; or when the remedies under domestic law were not accessible to the alleged victim; or when there has been unwarranted delay in issuing a decision under the aforementioned remedies. As provided for in Article 31 of the Rules of Procedure of the Commission, when the petitioner claims one of these exceptions, it is up to the State to prove that domestic remedies have not been previously exhausted, unless that is clearly evident from the record.⁵
    

59. 
    The Peruvian State lodged a lack of exhaustion of domestic remedies exception, alleging that in the process of enforcement of judgment there were still actions pending resolution. In the State’s opinion, the petitioners’ demands were under study in the domestic proceedings and, hence, a ruling issued by the Commission would, in effect, turn the Commission into a fourth instance. The three arguments offered by the State to justify the length of the process were: i) the initial position of the Judicial Branch that in order to execute the judgment it was necessary for the beneficiaries to file individual claims in the administrative venue; ii) the lack of clarity as to which persons were members of the Association at the time the amparo petition was lodged; and iii) the multiple challenges filed as a result of the controversy over the expert reports.
    

60. 
    For their part, the petitioners alleged that the very actions that the Peruvian State alleges are pending are precisely the actions and measures being used by the SUNAT to delay the enforcement of judgment. In that respect, the petitioners requested that the Commission rule that the petitioners were exempt from exhausting the domestic remedies under the exemptions established in Article 46.2 (a) and (c) of the American Convention.
    

61. 
    The Commission observes that since January 21, 1997, and during the subsequent four and a half years, the judicial authorities that intervened in the enforcement of judgment process limited themselves to trying to determine which authority was responsible for enforcing the judgment and what was the prescribed legal procedure to accomplish it. This indecision continued until May 10, 2001, when, as a result of an amparo remedy lodged by the Association, the Constitutional Court ordered the case reinstated in the enforcement of judgment stage, that is, back to the point when the ruling of January 21, 1997, was issued.⁶
    

62. 
    According to the information supplied by the parties, eleven months after the ruling on the amparo petition, on April 11, 2002, the Sixty-third Civil Court of Lima issued a decision ordering that the SUNAT and the Ministry of Economy and Finance enforce in full the judgment of the Constitutional Court within a prescribed period of time.⁷ Information contained in the case file clearly indicates that, given the lack of response, this requirement was reiterated twice, on May 30^{th 8} and on June 24^th, 2002.⁹
    

63. 
    The information contained in the case file also indicated that it was not until September 23, 2002, that a decision was made to request an expert report to calculate the amounts owed.¹⁰ From that moment on, the expert reports were challenged by the SUNAT, an entity that, through a variety of legal avenues, objected to the criteria on which the expert reports had been based to date.
    

64. 
    It does not fall to the Commission to analyze if the criteria followed in the expert reports were appropriate or not, or to determine the specific amounts owed to the alleged victims because that is the role of the judicial authorities responsible for enforcing the judgment. The Commission’s analysis must only determine whether the alleged victims had access to effective legal remedy to have the judgment in their favor enforced.
    

65. 
    In that respect, and without prejudging the merits of the case, the Commission considers that the twelve and a half years delay, from October 25, 1996¹¹ to date, can be attributed prima facie to: i) the appeals filed by the state entities being sued; ii) the delay of the judicial authorities to rule on the remedies which, as evidenced by the available information, led to the process being held back for long periods of time; and iii) to the lack of clarity within the Judicial Branch with regard to the legal process to be followed to enforce the judgment. As indicated above, this confusion among the different judges which was finally resolved by the Constitutional Court consumed the first four years of the enforcement process.
    

66. 
    Based on the preceding, the Commission considers that the petitioners are exempt from exhausting the domestic remedies because the enforcement of judgment process constituted an unjustified delay under the provisions of Article 46.2 (c) of the American Convention.
    

C. Deadline for submitting the petition

67. Article 46.1(b) of the Convention provides that for a petition to be admissible, it must be lodged within a period of six months from the date on which the interested party was notified of the final judgment in the domestic jurisdiction. This rule does not apply when the Commission finds that any of the exceptions to the exhaustion of domestic remedies established in Article 46.2 of the Convention is applicable. In such cases, the Commission must decide if the petition was filed within a reasonable period of time in accordance with Article 32 of the Commission’s Rules of Procedure.

68. The Peruvian State alleged that this petition was not filed within the prescribed period of time, using October 25, 1993, as the date to determine the deadline. As the parties have asserted and the information contained in the case file confirms, this is the date in which the Supreme Court of Justice issued its decision on the amparo petition siding with the alleged victims. This is precisely the decision the petitioners allege has not been enforced. Therefore, the rights violations alleged by the petitioners would have taken place after the judgment was issued, given that the purpose of the petition was not the amparo proceeding – which was favorable to them – but the lack of enforcement of the final judgment. In that respect, the Commission considers that there are no grounds for this argument.

69. Taking into consideration the active role assumed by the alleged victims in the enforcement of judgment process as well as the fact that, because of its continued nature, the violation still remains unresolved, the Commission considers that the three petitions grouped together were submitted within a reasonable period of time.

D. Duplication of proceedings and international res judicata

70. 
    Article 46.1(c) of the Convention establishes that the admissibility of petitions is subject to the requirement that the matter "is not pending in another international proceeding for settlement” and Article 47.d of the Convention establishes that the Commission will not accept a petition that is substantially the same as one previously studied by the Commission or by another international organization. In this case, neither party has argued that either of those reasons for inadmissibility exist, nor can that be inferred from the case file.
    

E. Characterization of the alleged facts

71. 
    For the purpose of admissibility, the Commission must determine if the petition states facts that tend to establish a violation of rights as established in Article 47.b of the American Convention, if the petition is “manifestly groundless” or if it is “obviously out of order,” as established in paragraph c of the same article. The standard to evaluate these limits is different than the standard required to decide on the merits of a complaint. The Commission must do a prima facie evaluation to examine if the complaint provides grounds to sustain the apparent or potential violation of a right guaranteed by the Convention but not to establish that a violation has occurred. That evaluation is a summary analysis which does not imply prejudging or advancing an opinion on the merits.
    

72. 
    The Peruvian State argued that the facts that motivated the petition do not subsist because they were resolved by the Constitutional Court on May 10, 2001. From the information contained in the case file, the Commission notes that the decision cited by the State determined that the enforcement of judgment process was the appropriate legal avenue to remedy the petition. At the same time, it was decided to return the case to the State which, by judicial order, was required to direct the appropriate authorities to enforce the judgment.¹² Almost nine years have elapsed since that decision was issued and, to this date, the enforcement of judgment process has not been closed. The petitioners continue to allege that the amparo judgment in their favor has not been enforced. The Commission considers that the State’s argument is without grounds and that the available information clearly shows that the facts that motivated the petition subsist to this date.
    

73. 
    In that respect, the Commission considers that if the alleged facts were true, these could constitute a violation of the rights enshrined in Articles 21¹³, 8 and 25 of the American Convention, with regard to the obligations established in Articles 1.1 and 2 of the same instrument.
    

74. 
    Based on the information supplied by the petitioners, the Commission does not have sufficient elements to rule on the possible characterization of a violation of the right enshrined in Article 24 of the American Convention.
    

V. CONCLUSIONS

75. 
    Based on the elements of fact and of law stated herein and, without prejudging the merits of the case, the Inter-American Commission concludes that this case meets the admissibility requirements established in Articles 46 and 47 of the American Convention and therefore,
    

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1. To declare admissible the petition under study, with regard to the rights enshrined in Articles 21, 8 and 25 of the American Convention in connection with the obligations established in Articles 1.1 and 2 of the same instrument.
2. To declare inadmissible the petition under study, with regard to the right enshrined in Article 24 of the American Convention and to Article 9 of the Protocol of San Salvador.
3. To notify the State and the petitioners of this decision.
4. To proceed with the analysis of the merits of the case.
5. To publish this decision and include in its Annual Report to the General Assembly of the OAS.
Done and signed in the city of Washington, D.C., on March 19, 2009.  (Signed): Luz Patricia Mejía Guerrero, President; Víctor E. Abramovich, First Vice-president; Felipe González, Second Vice-president; Sir Clare K. Roberts, Paulo Sérgio Pinheiro, Florentín Meléndez, and Paolo Carozza, members of the Commission.

1 Justa Virginia Lau Li, Rosa Elvira Cáceres Salazar, Julia Mercedes Alzamora Soto, Carmen Rosa Cristina Loo Reyes de Zegarra, José Leonidas Vásquez Rivera and Dulia M. Bernardo Villanueva.

2 The annexes supplied by the petitioners indicate that on August 27, 1998, in the framework of the process of enforcement of judgment, the Transitional Corporatist Public Law Chamber ruled that it was the Association that had lodged the complaint without identifying its members. The Court also pointed out that, although the right to receive a retirement pension or severance payment had been established by Decree Law 20.530, and that the reinstatement of that right had been ordered, including the adjustment based on the salary scale of SUNAT employees in active service, as well as payment of the increases they had never perceived, in order to make the enforcement of judgment possible (sic) “first of all, it should be borne in mind that the decision of the Supreme Court of Justice is declarative in nature and constitutes res judicata in the sense that restoring the situation to what it was before the complaint was lodged, rules it inapplicable and reinstates the rights derived from the provisions of the Third Transitional Provision of Legislative decree 673, that is, on the limits of transferring to the Ministry of Economy and Finance the obligation to pay the pensions. Second, although it is true that the action has been assigned by judicial decree to the Ministry of Economy and Finance and to the National Superintendence for Tax Administration, these agencies have not been sued directly; however, because they are involved in enforcing the law, they bear responsibility for its impact as, at the opportune time, so will the Pension Normalization Office because of the provisions of Decree Law 817 which approves the Pension System Law under State oversight and which goes into force on April 28, 1996. With this precedent, as the enforcement of judgment in this case proceeds, it is necessary for each member of the petitioning association, duly identified, to begin, at the administrative entity which holds the individual’s pension records, the appropriate proceedings established by law to adjust settlement payments and that will fully comply with their rights which are jurisdictionally recognized by this court.” This decision vacated the ruling that ordered the Ministry of Economy and Finance to enforce the judgment.

3 The annexes submitted by the petitioners indicate that these decisions were adopted by different rulings of the same court. The first, on September 23, 2002, ordered an expert accounting report, and the second, on September 25, 2002, directing the Public Ministry to intervene due to the repeated refusals to enforce the judgment.

4 The alleged victims, identified before the IACHR, are named on Annex No. 1 of this report.

5 IACHR, Report Nº 32/05, petition 642/03, Admissibility, Luis Rolando Cuscul Pivaral and other persons affected by HIV/AIDS, Guatemala, March 7, 2005, paragraphs 33-35; I/A Court H.R., Case of the Mayagna Community (Sumo) Awas Tingni. Preliminary Exceptions, para. 53; Durand and Ugarte Case. Preliminary Exceptions. Judgment of May 28, 1999. Series C No. 50, para. 33; and Cantoral Benavides Case. Preliminary Exceptions. Judgment of September 3, 1998. Series C No. 40, para. 31.

6 Constitutional Court. Judgment dated May 10, 2001. Doc. No. 104-2001-AA/TC. This decision states that: “no one (…) may vacate decisions that have been issued based on res judicata, nor end proceedings that are still in process, nor modify judgments or delay their enforcement; and this does not take effect when the magistrates being sued, through decisions that are being contested on appeals, pretend to vacate the decision issued by the Pension Court on January 21, 1997, which, in strict compliance with procedural law, orders the enforcement of the Supreme Court decision dated October 25, 1993, which is what these filings demand that it be done. 2. The Constitutional Court has the obligation to state that a final judgment based on the fulfillment of a guarantee, is a final judgment with the authority of res judicata, unchangeable ; and, for that reason, it must be executed according to the terms contained in that decision.”

7 Sixty-third Civil Court of Lima. Decision dated April 11, 2002.

8 Sixty-third Civil Court of Lima. Decision dated May 30, 2002.

9 Sixty-third Civil Court of Lima. Decision dated June 24, 2002.

10 Sixty-third Civil Court of Lima. Decision dated September 23, 2002.

11 Date in which the judgment of October 25, 1993, was ruled enforceable.

12 Constitutional Court. Judgment dated May 10, 2001. Doc. No. 104-2001-AA/TC.

13 The Commission considers that if it were proven that the alleged non-enforcement of judgment prevented the alleged victims to have access to effective recourse with regard to their property rights, especially with regard to the pensions adjusted in accordance with the system they were regulated by, the facts could constitute violation of the right to property. See: I/A Court H.R., Case of the “Five Pensioners”. Judgment of February 28, 2003. Series C No. 98.

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