Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 342, Juin 2006

892. The Committee last examined this complaint at its June 2004 meeting and on that occasion presented an interim report to the Governing Body [see 334th Report, paras. 681-699].

1. 893. The Government sent partial observations in communications dated 17 and 25 January and 18 February 2005.
2. 894. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 895. At its meeting in June 2004, the Committee formulated the following recommendations [see 334th Report, para. 699]:
2. – With regard to the mass dismissal of 1,117 workers at the Congress of the Republic, 257 of whom lodged a complaint before the Inter-American Commission on Human Rights, the Committee requests the Government to keep it informed of the outcome of the report of the Inter-American Commission on Human Rights and of the decisions taken by the Executive Commission established in accordance with Decree No. 27803.
3. – With regard to the declaration of a state of emergency on 28 May 2003, which involved, according to the allegations, the suspension of the right to assembly, the severe repression of the demonstrations, the realization of investigations and searches of trade union headquarters without the authorization of trade union officials and without legal warrants and the arrest of more than 150 trade union officials and workers of the United Trade Union of Educational Workers of Peru (SUTEP), the Peruvian Union of Higher Education Teachers (SIDESP), the Unified Trade Union of Education Centre Workers (SUTACE), the National Federation of Education Administrative Workers (FENTASE) and the National Board of Irrigation Users, the Committee requests the Government: (1) to take measures to ensure that an independent investigation is carried out into the repression exerted by the security forces during the demonstrations, and to send its observations in this respect; and (2) to inform it whether the trade union officials arrested have been released and, if they are still in custody, to ensure that they benefit from due procedural guarantees, and to inform it of the state of the proceedings under way.
4. B. The Government’s reply
5. 896. In its communication of 17 January 2005, the Government states that, as part of the amicable settlement phase of the proceedings currently under way before the Inter-American Commission on Human Rights of the Organization of American States (OAS), a proposal for a definitive settlement was put forward to the former employees making the claim; they did not accept the proposal, and made a counter proposal to which the Executive objected. The Congress of the Republic expressed the view that the claim of the former workers should be referred to the Inter-American Commission on Human Rights for a final decision.
6. 897. The Government adds that the Inter-American Commission on Human Rights is pursuing direct discussions with representatives of the workers concerned with a view to finding a solution. The Government states that additional observations should be sent once the analysis undertaken by the Ministry of Justice and the Congress of the final report of the Inter-American Commission on Human Rights is available. As regards the total number of congressional workers dismissed, it should be noted that in accordance with Decree No. 27803, by a decision of the Executive Commission established in accordance with that Decree, they have been included in the national register of wrongfully dismissed workers, which enables them to avail themselves of one of the entitlements provided for by the Decree (reinstatement or transfer, financial compensation, early retirement or retraining), a total of 324 former Congress workers being concerned.
7. 898. In its communication of 25 January 2005, the Government sends the report of the Inter-American Commission on Human Rights of the OAS on case No. 11830 – dismissed congressional workers. In the report, the Commission sets out its conclusion and recommendations in relation to the case, addressed to the Government of Peru. The report concludes that the State is responsible for violating the right to judicial protection and judicial guarantees; the report specifically recommends “Ensuring that the congressional workers named in the annex to this report have access to simple, rapid and effective judicial procedures to review their claims in relation to the termination of their employment ...”, and that “such procedures must be subject to judicial guarantees and lead to a ruling as to the merits of the claims made”. The report also states that the official view regarding the opinion expressed by the Commission is still awaited from the Ministry of Justice and the Congress, which are the competent national authorities in this area.
8. 899. In its communication of 18 February 2005, the Government states that the Senior Clerk (Oficial Mayor) of Congress has given his assessment of report 78/04 of the Inter-American Commission on Human Rights in case No. 11830 along the following lines: since the report’s first recommendation is that the former congressional workers should be guaranteed the right to petition the courts for a review of their dismissals, the national Congress takes the view that, on the basis of the Code of Constitutional Procedure, according to which the character of res judicata can be attributed only to a constitutional ruling on the substance of a given claim, it may be possible for these claims to be reviewed in new constitutional proceedings.
9. 900. The Government adds that the possibility of coming to an amicable agreement with the complainants is being considered. This requires funds to be made available out of the existing budget, which would be a matter for the Ministry of Economics and Finances, or by some arrangement involving a budget increase by act of Congress.

C. The Committee’s conclusions

1. 901. The Committee recalls that the allegations in the present case refer to: (1) the mass dismissal of 1,117 workers at the Congress of the Republic, some 257 of whom have lodged a complaint with the Inter-American Commission on Human Rights; and (2) the declaration of a state of emergency on 28 May 2003, which is claimed to have involved the suspension of the right to assembly, the brutal repression of demonstrations, investigations and registration of trade union headquarters without the authorization of union officials or judicial warrants, and the detention of more than 150 union officials and workers from SUTEP, SIDESP, SUTACE, FENTASE and the National Board of Irrigation Users.
2. 902. As regards the mass dismissal of 1,117 workers at the Congress of the Republic, of whom 257 lodged a complaint with the Inter-American Commission on Human Rights, the Committee notes the Government’s information to the effect that: (1) the Inter-American Commission on Human Rights of the OAS has recommended that the Government guarantee that workers named in the report have recourse to simple, rapid and effective procedures for reviewing their claims in relation to the termination of their employment, and that such procedures should be subject to legal guarantees and lead to a ruling on the merits of the claims made; (2) the Senior Clerk (Oficial Mayor) of Congress has stated that, in the light of the Code of Constitutional Procedure, according to which only constitutional rulings on the substance of a given claim can have the character of a res judicata, it may be possible for these claims to be reviewed in new constitutional proceedings; (3) by a decision of the Executive Commission, the congressional workers who were dismissed have been included in the national register of workers who have been wrongfully dismissed, and can thus avail themselves of one of the entitlements provided for by Decree No. 27803 (reinstatement or transfer, financial compensation, early retirement, retraining); and (4) consideration is being given to the possibility of reaching an amicable settlement with the workers who have lodged a complaint with the Inter-American Commission on Human Rights.
3. 903. In this regard, while taking note of the report of the Inter-American Commission on Human Rights published in October 2004, provided by the Government in its communication of 25 January 2005, the Committee requests the Government to inform it whether the workers in question have availed themselves of the judicial remedies to which the Commission refers – and, if that is the case, to inform it of the final outcome of such proceedings – or whether an amicable agreement has been reached between the parties.
4. 904. As regards the declaration of a state of emergency on 28 May 2003, which is claimed to have involved the suspension of the right to assemble, the brutal repression of demonstrations, the carrying out of investigations and searches of union headquarters without the authorization of trade union officials or any judicial warrants, and the detention of more than 150 trade union officials and members from SUTEP, SIDESP, SUTACE, FENTASE and the National Board of Irrigation Users, the Committee deeply regrets that the Government has not provided the observations requested. The Committee expects that all the detainees have been released, and once again urges the Government to carry out an independent investigation into all these allegations and to keep it informed of the outcome.