Report No. 28 (2019) IACHR. Petition No. 155-08 (Perú)

• Year: 2019
• Petition Number: 155-08
• Report Number: 28
• Respondent State: Perú
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Rodrigo Díaz Latorre

REPORT No. 28/19

PETITION 155-08

REPORT ON ADMISSIBILITY

RODRIGO DÍAZ LATORRE

PERU

OEA/Ser.L/V/II.

D.. 33

16 March 2019

Original: Spanish

Electronically approved by the Commission on March 16, 2019.

Cite as: IACHR, Report No. 28/19. Petition 155-08. A.. Rodrigo Díaz Latorre. P.. March 16, 2019.

www.cidh.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Rodrigo Díaz Latorre
:	Rodrigo Díaz Latorre
Respondent S.:	P.1
Rights invoked:	Articles 8 (fair trial), 11 (privacy), and 25 (judicial protection) of the American Convention on Human Rights,2 in relation to its Articles 1(1) and 2

II. PROCEDURE BEFORE THE IACHR³

Filing of the petition:	February 13, 2008
N. of the petition to the S.:	J. 15, 2014
S.’s first response:	A. 16, 2014
Additional observations from the petitioner:	J. 19, 2017
Additional observations from the S.:	March 9, 2018
N. of the possible archiving of the petition:	May 26, 2017
Petitioner’s response to the notification regarding the possible archiving of the petition:	J. 19, 2017

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (deposit of ratification instrument made on J. 28, 1978)

IV. ANALYSIS OF DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible:	Articles 8 (fair trial), 11 (privacy), 23 (right to participate in Government), 25 (judicial protection), and 26 (progressive development) of the American Convention, in relation to its Articles 1(1) and 2
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., on August 13, 2007
Timeliness of submission:	Y., on February 13, 2008

V. FACTS ALLEGED

1. The petitioner, who had been a judge since 1984 and had been Head Criminal Judge of the Judicial District of Lima since 1994, states that in August 2002, the National Council of the Judiciary (hereinafter “CNM”), without affording him the opportunity to be heard or to defend himself, passed a resolution that lacked motivation and was nonappealable, through which it decided to not confirm him in his position.

2. He claims that the resolution’s lack of motivation, its nonappealable nature, and the lack of an administrative proceeding violate due process and the presumption of innocence. In addition, he says that this has negatively affected his honor, good name, and life plan, and that his non-confirmation resulted in his perpetual disqualification to work in the administration of justice. T., he considers that the S. is to be held responsible for violating his rights and that he should be reinstated and obtain compensation for the wages and employment benefits he has stopped receiving, as well as for moral damages and damages to his life plan.

3. According to the petitioner, in September 2002, he filed a motion for reconsideration of judgment, which was rejected by the CNM, as it considered it was unnecessary to motivate a confirmation of non-confirmation decision. L., the CNM considered that this decision was not a punishment, so it was not necessary for a defense to be presented. In November 2002, the petitioner filed for a writ of amparo requesting the nullity of CNM’s resolution due to its lack of motivation, non-compliance with the right to a defense, and the violation of the presumption of innocence. As reparation, he requested his reinstatement in his position, the payment of the wages he had stopped receiving, employment benefits, and compensation for damages to his honor and good name.

4. The writ of amparo was dismissed in the first instance, since it was considered that the non-confirmation was not a punishment, which would require motivation, but rather a decision based on the lack of confidence, which does not depend on the defense an individual might present. As it was not a punishment, the court of first instance considered that the petitioner’s good name had not been damaged and the presumption of innocence had not been violated, and that the lack of defense had no impact on the decision. S. decision was appealed and confirmed in the second instance in 2006.

5. The Petitioner filed for a grievances remedy before the Constitutional Court. On March 21, 2007, this Court observed that, at the time of the petitioner’s non-confirmation, such decisions need not be motivated and that situation changed when it was acknowledged that this kind of resolution should be motivated and provide the interested party with the opportunity to be heard. H., it observed that, according to Judgment STC 3361-2004-AA/TC, the need to motivate non-confirmation resolutions was to be applied to resolutions issued after the 2004 judgment and had no impact on previously passed resolutions. Due to the foregoing, the Constitutional Court rejected the motion.

6. For its part, the S. indicates that, even though non-confirmation decisions lacked motivation at the time, several legislative changes have been made to require the motivation of these decisions, to require the interested party to be heard, and to allow CNM resolutions to be appealed when they lack motivation or have been passed without a previous hearing of the interested party. In this regard, the Court states that the P.vian Code of Procedure was modified in 2004 in order to stipulate that CNM resolutions would not be appealable if they were motivated and passed with a previous hearing of the interested party; requirements that previously did not exist. In addition, on J. 1, 2005, the CNM approved the Regulations Governing the Assessment and Confirmation of Judges of the Judicial Branch and Prosecutors of the Prosecutor’s Office, which acknowledges the need for such resolutions to be motivated, the right to be heard, the right to a reasonable period of assessment and confirmation, as well as to personal interviews, which are now recorded through magnetic or optical means.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

7. The IACHR observes that the only reference the S. makes to exhaustion of domestic remedies exhaustion is linked to the fact that, due to legislative changes, it is now permitted to challenge CNM resolutions that lack motivation by means of a special remedy due to possible violations of due process. H., the S. does not indicate whether this remedy might be used by the petitioner in order to challenge the lack of motivation of a resolution passed before the legislative change.

8. The IACHR notes that the petitioner has lodged different appeals to challenge 2002 resolution, in which...