The complaint
Authority resolution No. 002412 of 4 April 1991
establishing the criteria to be used for declaring that
the Authority was overstaffed.
3.
The author alleges a violation of article 25 (c)
of the Covenant, since the National Customs
Authority’s resolution led to his dismissal without
just cause. The resolution violated the principle of
the hierarchy of norms, since it was contrary to the
provisions of article 35 of Legislative Decree
No. 276, the Public Service Act, which establishes
70 as the maximum age for employment in public
service. Moreover, article 48 of the 1979
Constitution, which was in force at the time,
recognizes the right to security of employment. The
author also refers to the excessive length of the
procedure, as well as the fact that the judiciary was
under investigation by President Fujimori’s Special
Commission on Reorganization of the Government,
which naturally brought the work of the Supreme
Court to a standstill.
4.3 While article 48 of the Constitution, which
was invoked by the author, guarantees the right to
security of employment, it also points out that a
worker can be dismissed for just cause provided in
the law and duly proven. In the present case, there
was just cause for dismissing the author, since he
was terminated due to reorganization.
4.4 The State party declares that it has not
violated article 25 (c) of the Covenant, since the
author was not deprived of access, on general terms
of equality, to public service in his country, as
demonstrated by his 11 years of service in a public
institution. His dismissal was motivated by objective
reasons based on a reorganization of public bodies.
Issues and proceedings before the Committee
The State party’s observations
Consideration of admissibility
4.1 In its observations of 22 April 2002, the State
party states that it has no objections to the
admissibility of the communication. With regard to
the merits, it points out that the Supreme Decree of 8
January 1991, in which the Executive announced the
reorganization of all public bodies, including ones in
the central Government, regional governments,
decentralized public institutions, development
corporations and special projects, was legally
supported by article 211 of the 1979 Constitution
and was decided upon in view of overstaffing and
with the aim of securing the country’s economic
stability and financial balance. In this context, the
Supreme Decree of 14 March 1991 announced the
reorganization of the National Customs Authority in
order to improve customs services as part of the
process of liberalization of foreign trade. That
reorganization plan called, among other things, for
the streamlining of personnel, indicating that staff
not joining in the voluntary resignation programme
would be declared redundant and laid off because of
restructuring. The Customs Authority issued
resolution 2412 on 4 April 1991, establishing the
criteria to be taken into account for announcing the
redundancy of employees who had not joined in the
voluntary resignation programme, identifying among
others staff who had reached the age limit defined in
the rules of Decree Law No. 20530 and 19990, i.e.,
55 years for women and 60 for men.
5.1 Before considering any claim contained in a
communication, the Human Rights Committee must,
in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is
admissible under the Optional Protocol to the
Covenant.
5.2 The Committee has ascertained, as it is
required to do under article 5, paragraph 2 (a), of the
Optional Protocol, that the same matter has not been
submitted to another procedure of international
investigation or settlement.
5.3 The Committee notes that the State party
indicates that it has no objections to the admissibility
of the communication. There being no obstacle in
this respect the Committee considers that the
communication is admissible and that the issue
raised by the author should be considered on the
merits.
Consideration of the merits
6.1 The Human Rights Committee has considered
the present communication in the light of all the
information made available to it by the parties, as
provided for in article 5, paragraph 1, of the Optional
Protocol.
6.2 The question raised by the author is whether
his dismissal from public service for reasons relating
to the reorganization of public bodies constitutes a
violation of article 25 (c) of the Covenant. Article 25
(c) recognizes for every citizen the right to have
access, on general terms of equality, to public
service in his country, without any of the distinctions
mentioned in article 2, paragraph 1, namely race,
colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or
other status. To ensure access on general terms of
4.2 Resolution No. 6338, which declared the
author redundant and terminated his employment as
of 6 September 1991, was in keeping with the legal
framework governing the reorganization of the
customs service and respected the principle of the
hierarchy of norms, which was: article 211 of the
Constitution; Supreme Decree No. 043-91-EF of 14
March 1991 concerning the reorganization of the
National Customs Authority; and National Customs
66
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