In the Baena Ricardo et
al case,
The Inter-American Court of Human
Rights (hereinafter “the Court” or “the Inter-American Court”), composed of
the following judges*:
Antônio A. Cançado Trindade, President
Máximo Pacheco Gómez, Vice-President
Hernán Salgado Pesantes, Judge
Oliver Jackman, Judge
Alirio Abreu Burelli, Judge, and
Carlos Vicente de Roux Rengifo, Judge
also present,
Manuel E. Ventura Robles, Secretary
and
Renzo Pomi, Deputy Secretary
in accordance with Article 36.6
of its Rules of Procedure (hereinafter “the Rules of Procedure”), delivers
the following judgement on the preliminary objections filed by the State of
Panama (hereinafter “the State” or “Panama”).
I
1. This case was referred to the Court by the Inter-American Commission
on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”)
on January 16, 1998. It derived from petition number 11,325, received by the
Secretariat of the Commission on February 22, 1994.
II
2. In the following paragraphs, the Court summarizes the facts
alleged by the Commission in the application that are relevant for considering
the preliminary objections.
a) on October 16, 1990, the State Enterprise
Trade Union Coordination Agency presented to the Government of Panama, at
that time under the presidency of Guillermo Endara, a list of petitions on
labor-related issues regarding certain proposed changes in its political program
of government that, according to trade union leaders, affected the workers;
b) on November 16, 1990, the State rejected
all the requests referred to in the previous subparagraph and, as a result,
the State Enterprise Trade Union Coordination Agency called for a march on
December 4, 1990, and a 24-hour work stoppage the following day. These actions were taken as a “protest movement”,
owing to the rejection of the requests made to the President of the Republic;
c) on December 4, 1990, the planned march
was held. Concurrently, the former
head of the National Police Force, Colonel Eduardo Herrera Hassán, and other
members of the armed forces who had been detained, escaped from the prison
on “Flamingo prison island” and took the principal barracks of the National
Police Force during the night of the same day and part of the following day. The State related this act to the march organized
by the trade union leaders and therefore the latter decided to suspend the
work stoppage on December 5, 1990, at 7.30 a.m. Despite this, the State considered that the
trade union action amounted to “an accessory involvement” aimed at overthrowing
the “constitutionally installed Government” and proposed the mass dismissal
of all the workers who had taken part in the march; to this end, it sent a
draft law to the Legislative Assembly;
d) on December 10, 1990[1],
without waiting for the approval of the Legislative Assembly and, if appropriate,
the entry into force of the said law, the State began a “systematic policy
of mass dismissals of public enterprise workers, which concluded with the
dismissal of the 270 petitioners in the instant case”, who worked for the
following public institutions: the National Port Authority, the Bayano State
Cement Company, the National Telecommunications Institute, the National Institute
for Renewable Natural Resources, the Institute of Hydraulic Resources and
Electrification, the Institute for Water Supply and Sewage Systems, the Ministry
of Public Works and the Ministry of Education;
e) on December 14, 1990, the Legislative
Assembly approved the draft law presented by the Executive and called it Law
25; under this law, “measures are adopted in order to protect democracy and
the legal constitutional order in Government institutions” retroactive to
December 1990 (article 5, Law 25) (cfr:
draft law, annex 14 of the application).
Owing to this, the labor-related procedure in a Labor Tribunal, which
should have been followed, according to the legislation in force when the
events occurred (and when the majority of the dismissals took place), was
replaced by “a special claim under administrative law, totally alien to the
labor sphere”. The claims were totally
rejected by the Supreme Court’s Chamber for actions under administrative law.
f) the 270 dismissed workers presented their
claims in accordance with the laws in force; however, these claims were processed
under the procedure created by Law 25, under the argument that the former
laws had been annulled or partially modified.
III
3. On February 22, 1994, the Secretariat of the Commission received
a petition from the Panamanian Human Rights Committee on behalf of 270 public
employees dismissed as a consequence of Law 25 of December 14, 1990.
On July 6, 1994, the Commission informed the State of the petition
and requested it to present the corresponding information within 90 days.
4. On July 24 and October 19, 1994, the Commission sent the State
additional information presented by the complainant and, in the latter communication,
requested it to adopt the pertinent measures to present all its reports within
60 days.
5. On September 9, 1994, Panama presented its reply to the Commission,
which forwarded it to the complainant on October 25, 1994, and on January
24, 1995, the complainant presented its observations to this document, which
were forwarded to the State on January 31, 1995.
6. On February 14, 1995, the State presented its observations
to the additional information that the Commission had forwarded on October
19, 1994, and on March 1, 1995, the Commission forwarded them to complainant.
7. On April 7, 1995, the Commission made itself available to the
parties in order to reach a friendly settlement. Although both the State and the petitioners informed the Commission
that they were interested in reaching a friendly settlement, after almost
three years during which three meetings were held to try and reach a settlement,
“the Commission considered that the action for settlement had been exhausted
and initiated the legal proceeding”.
8. On October 16, 1997, during its 97th session, the
Commission approved Report No. 37/97, which was forwarded to the State on
October 17, 1997. In this report,
the Commission concluded:
148. That the acts of the State public authorities
by which the Legislative Assembly adopted Law 25 of December 14, 1990, the
Judiciary declared that it was almost completely constitutional and the Executive
applied it and on the basis of which the human rights of the petitioners were
violated and all their claims were rejected are incompatible with the provisions
of the American Convention on Human Rights.
149. That, with regard to the 270 persons in whose
name this case has been filed, the State of Panama has failed to comply with
its obligations under the following provisions of the American Convention
on Human Rights: Article 8 (Right to a Fair Trial), Article 9 (Freedom from
Ex Post Facto Laws), Article 10 (Right to Compensation), Article 15 (Right
of Assembly), Article 16 (Freedom of Association)), Article 24 (Right to Equal
Protection), and Article 25 (Right to Judicial Protection).
150. That, with regard to these same persons, the State
of Panama has failed to comply with its obligation to recognize and guarantee
the rights contained in Articles 8 and 25, in relation to Article 1.1 and
2 of the American Convention on Human Rights, to which Panama is a State Party.
151. That the State has not complied with the provisions
of Article 2 of the American Convention on Human Rights, since it has not
adapted its legislation to the provisions of the Convention.
Moreover, the Commission determined:
1. To recommend to the Panamanian State that it should
order the reinstatement of the workers dismissed under Law 25 of December
14, 1900, identified in paragraph 5 of this report, in their respective positions
or in others with the same conditions as those in which they were working
at the time they were dismissed; that it should recognize their back pay and
other fringe benefits to which they have a right; and that it should pay them
compensation for the damage caused by their unjustified dismissal.
2. To recommend to the State that, pursuant to the
constitutional and legislative procedures in force, it should adopt all necessary
measures to make the rights and guarantees contained in the American Convention
on Human Rights fully effective.
3. To recommend to the State that it should modify,
repeal or permanently annul the said Law 25.
4.
To recommend to the State that the expression “to punish without prior
trial” in Article 33 of the Panamanian Constitution should be duly interpreted,
in order to comply with the obligation assumed by the Republic of Panama to
adapt the provisions of its legislation to those of the Convention.
5. To recommend that the rule contained in Article
43 of the Panamanian Constitution that permits ex post facto laws for reasons
of “public order” or “social interest”, should be amended and/or interpreted,
pursuant to Article 9 of the American Convention, to the effect that “no one
shall be convicted of any act or omission that did not constitute a criminal
offense, under the applicable law, at the time it was committed”.
6. To forward this report to the State, which shall
not be authorized to publish it, granting the State a period of two months
to adopt the above recommendations. The
period shall commence from the day on which the report is transmitted.
7.
To inform the petitioner of the adoption of an Article 50 report in
this case.
The Commission forwarded the said report to the State, and
granted it a period of sixty days in which to inform it of the measures adopted
to comply with the above-mentioned recommendations.
9. On December 10, 1997, the State rejected the Commission’s report,
alleging “legal reasons and …[of domestic law that impede it] from executing
the recommendations of the honorable Inter-American Commission on Human Rights”.
10. On January
14, 1998, the Commission, in the minutes of a conference telephone call, decided
to refer the case to the Court.
IV
11. On January 16, 1998, the Commission presented the application
to the Court in which it invoked Articles 50 and 51 of the American Convention
on Human Rights (hereinafter “the Convention” or the “Inter-American Convention”),
and Articles 2, 26 et seq. of the Rules of Procedure of the Court.
The Commission submitted the case for the Court to decide if there
had been a violation of the following articles of the Convention: 8 (Right
to a Fair Trial); 9 (Freedom from Ex Post Facto Laws); 10 (Right to Compensation);
15 (Right of Assembly); 16 (Freedom of Association); and 25 (Right to Judicial
Protection) in relation to Articles 1.1, 2 and 33 and 50.2 (Duty of the State
to comply in good faith with the recommendations issued by the Commission in
its reports).
Furthermore, it requested the
Court to declare that Law 25 and the provision contained in Article 43 of
the Panamanian Constitution are contrary to the Convention, because they allow
laws to be retroactive and that, in consequence, they should be modified or
repealed in accordance with Article 2 of the said Convention. The Commission also requested the Court to require the State to
reestablish the 270 workers in the exercise of their rights and to make reparations
to and compensate the victims or their families for the acts committed by
its agents, as established in Article 63.1 of the Convention.
Lastly, the Commission requested
that the State should be condemned to pay the costs and expenses of the proceeding.
12. The Commission appointed Carlos Ayala Corao and Hélio Bicudo
as its Delegates, Jorge E. Taiana and Manuel Velasco-Clark as its Advisors,
and Minerva Gómez, Ariel Dulitzky, Viviana Krsticevic and Marcela Matamoros
as their assistants. In a note received
by the Secretariat of the Court (hereinafter “the Secretariat”) on June 18,
1998, Marcela Matamoros advised that she was withdrawing from the instant
case.
13. On January 28, 1998, once the President of the Court (hereinafter
“the President”) had made a preliminary examination of the application, the
Secretariat notified it to the State, and informed it of the time limits for
replying to it, opposing preliminary objections and appointing its representatives.
Moreover, the State was invited to name a Judge
ad hoc.
14. On February 20, 1998, Panama appointed Rolando Adolfo Reyna Rodríguez
as the Judge ad hoc.
15. On February 27, 1998, the State appointed Carlos Vargas Pizarro
as its Agent.
16. After having requested two extensions to the period for presenting
preliminary objections, the State filed the following on April 17, 1998:
1. Inadmissibility of the
application owing to non-compliance with the provisions of Article 51 of the
Convention, which state that in order to refer a contested case to the Court,
the Commission must adopt the respective resolution;
2. Inadmissibility of the
application because the subject of the application is the replication of a
petition that has already been examined by the International Labor Organization
(hereinafter “the ILO”);
3. Inadmissibility of the
application because the Commission has violated the rule of confidentiality,
by transmitting a copy of Report No. 37/97 to the petitioners;
4. Expiry of the application
filed before the Court;
and requested that the Court should
declare the application inadmissible and order the case to be closed.
17. On May 20, 1998, the Commission presented its observations, in
which it requested the Court to reject “the preliminary objections as they
were inadmissible and time-barred” and order “the proceeding on the merits
of the case to continue”.
18. On June 29, 1998, the State presented its reply to the application.
19. On December 14, 1998, the President summoned the State and the
Commission to a public hearing to be held on January 27, 1999, to hear their
points of view on the preliminary objections filed by the former. Furthermore, the President summoned Antonio
Ducreux Sánchez, Deputy Minister of Work of Panama and a witness proposed
by the State, to make a statement during the hearing.
20. On January 19, 1999, the State appointed Jorge Federico Lee as
Deputy Agent.
21. On January 19, 1999, Rolando Adolfo Reyna Rodríguez, in his capacity
as Judge ad hoc in the case, informed
the Court that he “had participated […] [in] the claim JORGE A. MARTINEZ vs. INSTITUTE OF HYDRAULIC
RESOURCES AND ELECTRIFICATION which he had dismissed owing to want of jurisdiction
without beginning to hear the case”. Likewise, he advised that he “[would be] performing the function
of International Maritime Affairs in the Republic of Panama”.
Lastly, he requested the Court
to “determine if [the facts described above] are grounds for impediment”.
22. On January 19, 1999, following the Court’s instructions, the
Secretariat requested Rolando Adolfo Reyna Rodríguez to provide information
on “[the c]haracteristics and objective of the proceeding identified as Jorge
A. Martínez vs. Institute of Hydraulic Resources and Electrification, in which
[…] he participated as President of Settlement and Decision Board No. 4”,
and about the “[l]ocation in the structure of the State of Panama of the ‘International
Maritime Affairs’ office or unit”.
23. On January 22, 1999, in reply to the request dated the previous
day, Rolando Adolfo Reyna Rodríguez informed the Court that the proceeding
in which he took part as President of Settlement and Decision Board No. 4,
was based on the labor claim filed by several of the workers dismissed under
Law 25, which he had rejected for want of jurisdiction. Likewise, he advised that “in Panama, [the]
maritime authority is an autonomous institution devoted to all matters relating
to merchant ships”.
24. The same day, the Court issued an order in which it decided:
1.
To declare that Rolando Adolfo Reyna Rodríguez
is prevented from exercising the function of Judge ad hoc in the instant case.
2. To continue hearing the case with its actual composition.
3. To notify this decision to Rolando Adolfo Reyna
Rodríguez.
25. The public
hearing on preliminary objections was held at the seat of the Supreme Court
of Justice of the Republic of Costa Rica on January 27, 1999.
There appeared before the Court
for the Republic of Panama:
Carlos
Vargas Pizarro, Agent;
Jorge
Federico Lee, Deputy Agent;
Santiago E. O’Donnell, Minister Plenipotentiary of the
Embassy of the Republic of Panama in Costa Rica;
Jorge
Ruiz, Administrative Vice-President of the Institute of Hydraulic Resources
and Electrification; and
for the Inter-American Commission on Human Rights:
Hélio Bicudo, Delegate;
Manuel Velasco Clark, Lawyer;
Viviana Krsticevic, Assistant;
and
Soraya Long, Assistant;
witness proposed by the State:
Antonio Ducreux Sánchez.
26. The Court summarizes the witness’s statement, as follows:
a. Testimony
of Antonio Ducreux Sánchez
(Deputy Minister of Work and Labor Relations of the
Republic of Panama, Panamanian Ambassador to the ILO, Member of the Freedom
of Association Committee, President of the ILO Budget and Finance Committee,
and President of the Committee for Complaints against Latin America in cases
that cannot be considered by the Freedom of Association Committee)
As Panamanian
Ambassador to the ILO Governing Body, it was his responsibility to verify
any complaints presented against Panama, and one of these was the complaint
filed by some of the employees dismissed from SITIRHE and SITINTEL in 1991.
Regarding
the steps taken in relation to the complaint before the ILO, the Freedom of
Association Committee examined the documentation presented by the complainants
and by the State and, towards the end of 1992, recommended to Panama that
it should adopt the measures necessary to reinstate the employees of the two
State institutions who had been dismissed under Law 25 of 1990; that it should
amend the laws that violated some precepts of ILO Conventions 87 and 98; that
it should not take actions contrary to due process; that it should not limit
the freedom of association of any trade union and that it should restore to
the workers the right to organize, the inviolability of trade union premises
and the management of trade union quotas (pages 6, 11 and 14).
Although a judgement of the Supreme
Court of Justice of Panama declared that, under Law 25, the dismissals were
not illegal, the Government that assumed power in 1994 accepted the ILO recommendation
and reinstated most, but not all, of the workers. Panama has not been subjected to international
sanctions for only having complied partially with the recommendations (page
16).
The Freedom
of Association Committee requested the State to “reinstate the workers, according
to its needs”. Panama has complied with the ILO recommendations, in accordance
with its economic capacity. The fact
that the State began to comply with the recommendations halted the possibility
of declaring that it has not complied.
When the
ILO issued the report that included its recommendations to the State, the
latter was obliged to keep the ILO informed on progress with regard to the
recommendations, and Panama has been complying with this obligation since
1992.
The ILO
is the only international instance competent to receive labor complaints. The complaints have to be presented through
an international trade union organization as they cannot be presented directly
by the trade unions, and they are channeled through the ILO Standards Directorate.
Subsequently, according to the dimension of the complaints, they are
transferred to the Freedom of Association Committee, the Experts Committee
or the Tripartite Complaints Committee.
The SITIRHE
and SITINTEL unions presented the complaint to the Freedom of Association
Committee, through the International Confederation of Free Trade Unions (CIOSL-ORIT).
The number of workers was not defined to the ILO, as the number of
persons affected varied in the different reports presented, and they were
not individualized in the recommendations of the Freedom of Association Committee.
The complaint, alleging the violation of ILO Conventions 87 and 98,
which refer to freedom of association, only referred to the workers of the
trade unions that presented it, SITIRHE and SITINTEL, and did not mention
the other workers from other trade unions who were affected by Law 25.
The complaint
before the Freedom of Association Committee was restricted to the events that
occurred in December 1990. The ILO
only hears matters of a strictly work-related nature, so that it did not deal
with due legal process as this was outside its competence (page 21).
However,
the point raised with regard to the labor courts of Panama refusing to accept
the complaints of the workers without any legal justification is incorrect,
because there were proceedings before that instance, filed by workers who
considered that they had been unfairly dismissed.
There were no objections to the
statement of the witness, Antonio Ducreux Sánchez, so the Court considers
that the facts that he declared are proved.
V
27. Panama has been a
State Party to the American Convention since June 22, 1978, and recognized
the jurisdiction of the Court on May 9, 1990. Therefore, under the terms of Article 62.3 of
the Convention, the Court is competent to hear the preliminary objections
filed in the instant case.
VI
28. The first objection filed by the State refers to the Commission’s
alleged non-compliance with the provisions of the Convention and the Regulations
of the Commission regarding the decision to refer the case to the Court.
29. To justify this objection, the State presented the arguments
on the facts and legal points that the Court summarizes below:
a) that on October 17, 1997, during its 97th
session, the Commission forwarded to Panama, Report No. 37/97 on case 11,325,
adopted the previous day;
b) that the Commission did not act in accordance with the rules
established in Article 51 of the Convention, and Articles 46.2, 46.3, 46.4,
46.5 and 46.6, 50.1, 47.2 and 73.1.b of the Regulations of the Commission
on the procedure for referring a case to the Court, as no resolution of the
Commission deciding on this referral was recorded;
c) that, according to Articles 50 and 51
of the Convention, the Commission has to prepare two different reports. In this case, the Commission only adopted and
issued the report referred to in Article 50. According to the State, the report referred to in Article 51.1 of
the Convention is of a final nature and is the only instrument in which the
referral of a case to the Court may be stipulated;
d) that at no time did the Commission proceed
according to the procedural rules cited above, since it agreed to refer case
11,325 to the Court “on the basis of on an interpretation of the procedural
rules that was clearly erroneous and in bad faith”, using an informal and
irregular procedure based on a telephone consultation with five of its seven
members, entitled “Minutes of the telephone conference call between members
of the Inter-American Commission on Human Rights to decide on the referral
to the Inter-American Court of Human Rights of the case of the workers of
the State of Panama dismissed under Law 25 of 1990”; and
e) that the minutes of the telephone conference
call between the members of the Commission did not comply with the procedural
formalities, so that it violates the rules of the Convention and its Regulations,
under which there is no authorization for the Commission to hold a “Session-Conference
Call” by telephone, take a decision, and refer a contested case to the Court
in this way.
30. The Court summarizes the arguments of the Commission on the first
objection filed by the State below:
a) that Article 51 of the Convention establishes
two alternatives: the referral of the case to the Court or the preparation
of the corresponding report. The adoption
of one of these alternatives excludes the other;
b) that, in this case, it expressly acknowledges
that it did not adopt the report of Article 51 of the Convention, since this
was not in order as the case had been referred to the Court;
c) that the decision of the Commission
had to be taken while it was not in session since, to the contrary, the three-month
period would have expired;
d) that it took the decision to refer the
case to the Court within a period of three months from the transmittal of
its report to the State, in accordance with the terms of the Convention and
the jurisprudence of the Court;
e) that it proceeded to hold a telephone
conference call, as it has repeatedly done in similar cases, with the participation
of five of its seven members on this occasion;
f) that Panama has never questioned
the authenticity of the minutes of the Commission recording its decision to
refer the case to the Court. It has
only questioned the way in which the adoption of the decision was executed;
g) that it used the procedures established
in the provisions of the Convention and the Regulations, and to this end used
its internal working methods and the facilities offered by modern telecommunications
technology (cf. Paniagua Morales case, Preliminary Objections,
Judgement of January 25, 1996. Series C No. 23, para. 35);
h) that the members of the Commission do
not reside at the seat of the Commission and, as this is not a permanent institution,
it is difficult and unnecessary to hold a special session, particularly when
the possibility that the period for presenting an application may expire is
taken into consideration;
i) that it adapted and interpreted
the provisions of its Regulations in accordance with the needs imposed by
the time limits established in the Convention and the circumstance of not
being a permanent institution;
j) that neither the Convention
nor the Regulations of the Commission nor the Rules of Procedure of the Court
require the Commission to adopt a decision to refer a case to the Court by
a special report that is adopted in the physical presence of all the members
of the Commission, but rather the filing of an application is the expression
of the intention to refer a case to the Court;
k) that it had complied with the formalities
established in the Regulations of the Commission: that the Chairman should
submit the matter to the Commission’s consideration, that the majority of
the members of the Commission should take part in the deliberations, that
the decisions should be adopted by the majority of the participants and that
the Secretariat should write up the minutes;
l) that it could not take
a decision to refer the case to the Court during its 97th session
when it adopted the report under Article 50 of the Convention, because it
would have prejudged Panama’s compliance or non-compliance with its recommendations;
m) that the State knew that, by not complying
with the Commission’s recommendations to provide reparations and compensation
within a period of three months, it ran the risk of the Commission referring
the case to the Court or preparing a report in accordance with Article 51
of the Convention;
n) that the Court’s criterion with regard
to alleged defects in form is that, with regard to the international protection
of human rights, formalities before international organizations do not play
the same role as before local courts;
o) that, according to the theory of implicit
powers, monitoring bodies may use those powers that are inherent in them in
the light of their purpose, although such powers are not expressly mentioned
in their basic texts; and
p) that considerations of a formal nature
may not prejudice justice being done.
31. The fourth objection filed by the State refers to the expiry
of the application filed before the Court by the Commission.
32. In order to establish this objection, Panama presented the legal
and factual arguments that are summarized below:
a) that the Commission never approved
the report referring the case to the Court mentioned in Article 51.1 of the
Convention, in accordance with the procedure and in the form stipulated in
both the Convention and the corresponding Regulations. To the contrary, it carried out “a series of telephone calls to
five members of the Commission [recorded] in an unofficial and informal document
that THE COMMISSION (has called] ‘MINUTES OF TELEPHONE CONFERENCE...’”;
b) that the application against Panama
suffers from a formal legal defect that “annuls” the referral of case 11,325
to the Court because the three-month period has expired without the corresponding
report having been drawn up and presented as the Convention establishes. Accordingly, the Commission’s right to refer
the case to the Court has expired;
c) that the Commission referred the case
to the Court on the basis of Report No. 37/97 of October 16, 1997, which never
established that, should the State fail to comply with the recommendations,
the case could be referred to the Court;
d) that the Court cannot allow the Commission
to use the time limits arbitrarily, particularly if these are stipulated in
the Convention; and
e) that from the point of view of time
and reasonableness, the period of three months given to the Commission to
refer case 11,325 to the Court, in application of the provisions of Article
51.1 of the Convention and Article 43 of the Commission’s Regulations, expired
after January 16, 1998.
33. The Commission
argued:
a) that this preliminary objection is
closely linked to the first and arises from the State’s conceptual error of
equating the report under Article 51 of the Convention with the application;
b) that the Convention does not require
a report to be prepared on the referral of the case to the Court; to the contrary,
it only requires that the application should be presented within three calendar
months from the date that Report No. 37/97 was transmitted to the State; and
c) that as the alleged facts which would establish
that the Commission’s right to file the application had expired are not grounded,
the Court should reject the objection that has been filed.
34. The Court proceeds to consider the first and fourth preliminary
objections.
35. The State declared that the Commission did not proceed in accordance
with the provisions of the Convention and its Regulations with regard to referring
the case to the Court, because the report mentioned in Article 51.1 of the
Convention is of a final nature and is the only instrument by which the referral
of a case to the Court may be ordered.
36. Article 51 of the Convention states that:
1. If, within a period of three months from the date of the transmittal
of the report of the Commission to the States concerned, the matter has not
either been settled or submitted by the Commission or by the State concerned
to the Court and its jurisdiction accepted, the Commission may, by the vote
of an absolute majority of its members, set forth its opinion and conclusions
concerning the question submitted for its consideration.
37. Article 50 of the Convention concerns the preparation of a report
by the Commission that is transmitted to the State, which may not publish
it; it contains a series of recommendations to be complied with to settle
the matter. If, within the three months
following the transmittal of the report to the State, the matter has not been
settled and the Commission considers that the State did not comply, it has
two options: to refer the case to the Court, by filing an application or to
draw up the report referred to in Article 51 of the Convention, which, by
the vote of an absolute majority of its members, shall set forth its opinion
and conclusions concerning the question submitted for its consideration. As in the Article 50 report, in the Article
51 report, the Commission shall prescribe a period within which the State
must take the necessary measures to comply with the recommendations and, thus,
remedy the situation that is being examined.
Lastly, once this period has expired, the Commission shall determine
whether the State has complied and, if appropriate, decide whether to publish
the report (cfr: Articles 50 and
51 of the Convention). The Court has
already stated that this decision is not discretional, but rather “should
be based on the alternative most favorable for the protection of the human
rights” established in the Convention.
(Certain Attributes of the Inter-American Commission
on Human Rights (Articles 41, 42, 44, 46, 47, 50 and 51 of the American
Convention on Human Rights), Advisory Opinion OC-13/93 of July 16, 1993.
Series A No. 13, para. 54).
38. Once a case has been referred to the Court, the provisions of
Article 51 of the Convention are not applicable, because the filing of an
application is subject to the condition that the report in this article has
not been published. If the Commission
prepares or publishes the report under Article 51, despite having presented
the case to the Court, it is clear that it has applied the Convention improperly.
In view of the foregoing, Panama interpreted the applicable rules erroneously.
39. The Court considers that there is an evident confusion between
filing the application and drawing up the report under Article 51 of the Convention. As the Court has already declared (supra, para. 38), these two options are
mutually exclusive and both are not required for a case to be referred to
this Court.
40. According to the State, the “Minutes of
the telephone conference call between members of the Inter-American Commission
on Human Rights to decide on [the] referral to the Inter-American Court of
Human Rights of the case of the workers of the State of Panama dismissed under
Law 25 of 1990”, “is an informal, irregular procedure based on an interpretation
of the procedural rules that was clearly erroneous and in bad faith”.
In this respect, the Commission declared that it had to take the decision
in this way because, to the contrary, the three-month period would have expired,
and that it did so in accordance with the terms of the Convention, its Regulations
and the jurisprudence of the Court (supra,
para. 30.c, e and j).
41. The Court proceeds to analyze the validity
of the minutes of the Commission’s telephone conference call. As regards the
observation of certain formalities, the Court has declared that it is essential
to respect the conditions necessary for the full exercise of procedural rights
and in order to achieve the objectives for which the procedures in the Convention
and the regulations of the Commission and the Court have been established
(cfr: Castillo Petruzzi case, Preliminary Objections.
Judgement of September 4, 1998. Series C No. 41, para. 77; Paniagua Morales et al case, Preliminary Objections.
Judgement of January 25, 1996. Series C No. 23, para. 42; Gangaram Panday case, Preliminary Objections.
Judgement of December 4, 1991. Series C No. 12, para. 18; Godínez Cruz case. Preliminary Objections. Judgement of June 26, 1987. Series C No. 3, para. 36; Fairén Garbi and Solís Corrales case, Preliminary
Objections. Judgement of June 26, 1987. Series C No. 2, para. 38; Velásquez Rodríguez, Preliminary Objections.
Judgement of June 26, 1987. Series
C No. 1, para. 33.)
42. Furthermore, this Court has stated that
[t]he Court must
preserve a fair balance between the protection of human rights, which is the
ultimate purpose of the system, and the legal certainty and procedural equity
that will ensure the stability and reliability of international protection
[because, to the contrary] it would result in the loss of authority and credibility
that are indispensable to organs charged with administering the system of
human rights protection (Cayara case,
Preliminary Objections. Judgement of February 3, 1993.
Series C No. 14, para. 63 and Caballero
Delgado and Santana case, Preliminary Objections. Judgement of January
21, 1994. Series C. No. 17, para. 44).
43. There is no provision in either the Convention, the Rules of
Procedure of the Court or the Regulations of the Commission that determines
how the Commission should decide to refer a case to the Court. In view of this regulatory vacuum, the Commission
has a certain margin of discretion, on condition that the procedural rights
of the parties are respected. This
Court considers that, in the instant case, the Commission complied with the
basic provisions of the Convention in this respect. Justice should not be sacrificed to mere formalities.
It is important that a non-permanent body such as the Commission may
keep abreast of the times and make use of technological advances and modern
electronic means to facilitate its communications, so that it may operate
smoothly and promptly, without endangering legal certainty and procedural
rights (cf. Paniagua Morales case. Preliminary Objections, supra 41, para. 35).
44. The Court therefore rejects the first preliminary objection because
it is unfounded.
45. Regarding the fourth objection, the State declared that, since
the Commission did not adopt the report under Article 51 of the Convention,
the application suffers from a defect that results in the expiry of the three-month
period during which it may be filed. This
objection is closely linked to the first one.
46. Since this Court considers that the minutes of the telephone
conference call are valid and, therefore, the filing of the application too,
it proceeds to reject the fourth preliminary objection also, considering that
the said application was filed within the period established to this effect.
47. The second objection filed by the State refers to the alleged
duplication of international proceedings.
48. In this respect, the State alleged:
A. Arguments on the facts:
1. that the Trade Unions
of Workers of the Institute of Hydraulic Resources and Electrification (hereinafter
“SITIRHE”) and the National Telecommunications Institute (hereinafter “SITINTEL”)
denounced the State before the ILO for enacting Law 25 of 1990 and for the
alleged indiscriminate and mass dismissal of public sector workers who took
part in a work stoppage on December 5, 1990;
2 that the ILO found Panama
guilty of violating a series of international work norms;
3. that the ILO issued
a resolution recommending a series of measures that should be complied with,
under penalty of the application of international sanctions for the violation
of ILO Conventions;
4. that the petitioners
then presented an identical complaint to the Commission on January 18, 1994;
5. that the Commission
did not declare case 11,325 inadmissible, knowing that the ILO had issued
a resolution in 1995 condemning Panama for the mass dismissal of workers and
that, subsequently, “in bad faith”, it omitted to mention the existence of
this procedure for international settlement in its written application to
the Court.
B. Legal grounds:
1. that the Commission
should not have accepted the petition that was presented and that, although
it knew that a duplication of procedures existed, it not only admitted the
said petition but prepared Report No. 37/97 and referred the case to the Court;
2. that the existence of
this duplication affects the admissibility of case 11,325, as Articles 46.1.c,
47.d and 62.3 of the Convention have been violated;
3. that, according to the
articles mentioned above and Article 39.1.a and 39.1.b of the Commission’s
Regulations, there may not be a duplication of procedures for international
settlement, related either to the matter or to the subjects of the complaint;
4. that the European Commission
on Human Rights, when examining cases presented under Article 27.1.b of the
European Convention on Human Rights, which in substance and in drafting is
similar to Article 46.1 of the American Convention, has been constant in refusing
to accept a case that has previously been submitted to the ILO; and
5. that the Commission
acted outside the framework of the inter-American norms and procedures mentioned
above from the moment it knew that the same petition had been presented to
the ILO.
49. Lastly, the State requested the Court to consider, revise and
re-evaluate all the facts involved in this case, in particular those referring
to the duplication of procedures that occurred from the moment that the case
was referred to the ILO and to the Commission; to admit and declare with merit
the preliminary objection filed; to reject the application and to close the
case.
50. The Commission argued:
a) that, when referring to the issue of lis pendens, Articles 47.d of the Convention
and 39.1.b of the Commission’s Regulations use the expression “substantially
the same” or “essentially duplicates”, respectively;
b) that international jurisprudence has established
that three elements determine if a petition is substantially the same as another
that has previously been resolved, these are: the victim must be the same,
the petition must be based on the same facts, and the legal grounds must be
the same;
c) that none of these three elements is present
in the case referred to the Court, since there are the following differences
between the two proceedings:
1. the subject of the application before
the Court refers to 270 specific victims, while the procedure before the Freedom
of Association Committee does not mention the names of any of the victims
who are the subject of the current application; therefore, none of them has
obtained an individualized response from the Freedom of Association Committee
that would provide personal satisfaction.
2. the case before the Court also refers
to due process, which the Freedom of Association Committee has not examined
or pronounced on, as many of the decisions questioned were issued after the
ILO pronouncement. The claims before
the Committee referred to violations of freedom of association, and before
the Court, the application refers to violations of the Convention; and
3. the rights invoked before the Committee
(related to freedom of association, particularly through violation of ILO
Conventions 87 and 98) do not coincide with those that are invoked before
the Court (related to judicial guarantees, due process, presumption of innocence,
freedom from ex post facto laws, right to compensation, right of assembly,
freedom of association, right to judicial protection, the obligation to comply
with the recommendations of the Commission in good faith, and the general
provisions of Articles 1.1 and 2 of the Convention), and were not the subject
of the petition before the Commission or the application before the Court.
d) that the United Nations Human Rights Committee
has indicated that, if a victim is not individualized, particularly in the
original petition, it should not be considered that there is duplication if
his or her name appears directly and specifically in a second petition;
e) that the State tacitly renounced filing
the objection of duplication because it did not allege it before the Commission
and, thus, precluded its right. According
to the Commission, the State’s position that the Commission should have rejected
the petition as it allegedly knew that grounds for duplication existed, although
Panama did not raise an objection before the Commission, is totally unacceptable,
because it is contrary to the procedural principles emanating from the Convention
and the jurisprudence of the Court;
f) that the inadmissibility of the case
was neither manifest nor evident and that the State had both the right and
the procedural responsibility to file the objection of duplication of proceedings
and prove its merits;
g) that Panama’s failure to make this allegation
promptly, prevented the Commission and the victims from exercising their right
to defend themselves from it;
h) that, in view of the principles of good
faith and procedural equality, the State may not introduce a question of admissibility
that was not alleged before the Commission belatedly and after the statutory
time limit has passed; and
i) that the State had ample opportunity to respond
and file the objection of duplication, but did not invoke it in any of its
appearances, so that, in view of the principles of good faith and procedural
equality, its tacit waiver is presumed and filing the objection before the
Court at this stage of the proceedings is time-barred.
51. The Court proceeds to consider the second
preliminary objection.
52. Article 47 of the American Convention states
that:
The
Commission shall consider inadmissible any petition or communication submitted
under Articles 44 or 45 if:
…
d. the petition or communication is substantially
the same as one previously studied by the Commission or by another international
organization.
53. The phrase “substantially the same” signifies that there should
be identity between the cases. In
order for this identity to exist, the presence of three elements is necessary,
these are: that the parties are the same, that the object of the action is
the same and that the legal grounds are identical. In the instant case there is no duplication
of proceedings.
54. With regard to the subject, the Court has stated that “the concept
of ‘persons’ is related to the active and passive subjects of the violation
and mainly to the latter, that is, the victims”. (Durand and Ugarte case, Preliminary Objections.
Judgement of May 28, 1999. Series C No. 50, para. 43.) In the instant case, only the defendant party
before the ILO Freedom of Association Committee and the Court is the same,
the Panamanian State. The complainant
party (the petitioners) is not identical because, before the Freedom of Association
Committee, it was SITIRHE and SITINTEL, through the International Confederation
of Free Trade Unions, and before the Inter-American Commission on Human Rights,
the Panamanian Human Rights Committee. Nor is their identity as regards the victims,
since the Freedom of Association Committee refers to the SITIRHE and SITINTEL
workers and trade union leaders who were dismissed in general, without individualizing
them specifically. To the contrary,
in the application before the Court, the Commission individualizes 270 alleged
victims. Furthermore, the alleged
victims in the case before the inter-American system are workers from all
the Panamanian State enterprises who were affected by the application of Law
25, and not only from the National Institute of Hydraulic Resources and Electrification
and the National Telecommunications Institute, as in the case before the ILO
(supra, para. 2.d).
55. Regarding the object, when referring to the concept of “facts”,
the Court has established that this corresponds “to the behavior or the event
that is a violation of some human right”. (Durand and Ugarte case, Preliminary Objections, supra 54, para. 43). In this case, the Freedom of Association Committee
did not hear facts that occurred after their pronouncement; facts, such as
the proceedings before the Panamanian Judiciary, that were included in the
application before the Court. Moreover,
the Court observes that, in the public hearing on preliminary objections of
January 27, 1999, Antonio Ducreux Sánchez declared that the complaint before
the Freedom of Association Committee only referred to the events of December
1990.
56. There is no identity either as regards the legal grounds, because
in the application before the Court, violations of the following articles
of the American Convention are alleged: 8 (Right to a Fair Trial); 9 (Freedom
from Ex Post Facto Laws); 10 (Right to Compensation); 15 (Right of Assembly);
16 (Freedom of Association) and 25 (Right to Judicial Protection), in relation
to Articles 1.1, 2, 33 and 50.2. The
claim presented to the Freedom of Association Committee was based on violations
of ILO Conventions 87 (Convention concerning Freedom of Association and Protection
of the Right to Organize) and 98 (Convention concerning the Application of
the Principles of the Right to Organize and to Bargain Collectively).
Therefore, the object is not the same either; particularly as only
the facts concerning the right to freedom of association and workers’ rights
in general were examined by the ILO while the violation of a series of rights
not included in the claim filed before the Freedom of Association Committee,
such as the right to due legal process, was raised before the Court.
57. Furthermore, the nature of the recommendations issued by the
said Committee is different from the judgements delivered by the Inter-American
Court. The former is an action specific
to an organ of the ILO with the legal effect of a recommendation to the States.
The latter is a judgement that, in the terms of the Convention, is
final and not subject to appeal (Article 67) and must be complied with (Article
68.1).
58. In view of these considerations, there is no duplication of proceedings
in this case.
59. Therefore, the Court rejects the second preliminary objection.
VIII
60. The third objection filed by the State refers to the Commission’s
violation of the rule of confidentiality by transmitting a copy of the report
referred to in Article 50 of the Convention to the petitioners.
61. The Court summarizes the State’s arguments justifying this objection,
as follows:
a) that on October 16, 1997, the Commission
adopted Report No. 37/97 and transmitted it to Panama on October 17, 1997,
with an eminently confidential character.
b) that the confidentiality of the report
is established in Article 50.2 of the Convention, and also in the Court’s
Rules of Procedure;
c) that, despite the rule of confidentiality,
the Commission forwarded a copy of the application against Panama submitted
to the Court to the members of SITIRHE;
d) that, according to Article 50.2 of the
Convention, the Commission’s violation of the principle of confidentiality
is contrary to Articles 62.3 and 63.1 of the Convention and to general international
law. Moreover, it states that if the
Court does not reject the application, “there will be a double sanction against
Panama, which is prohibited not only in the context of the inter-American
system, but also by general international law”; and
e) that the violation of the principle of
confidentiality has resulted in the “absolute nullity” of the proceedings
of the Commission before the Court.
62. The Court summarizes the arguments of the Commission with regard
to this objection, as follows:
a) that the State is again confusing the
report under Article 50 of the Convention with the application before the
Court;
b) that it never transmitted a copy of Report
No. 37/97 corresponding to Article 50 of the Convention to the petitioners,
but it did forward them a copy of the application filed before the Court,
requesting their comments on it in accordance with the aim and purpose of
the Convention and its regulatory provisions;
c) that in no part of the Convention, the
Rules of Procedure of the Court or the Regulations of the Commission is it
stated that the application should be confidential or that it may not be transmitted
to the petitioners for their information, and there is no rule on the confidentiality
of proceedings before the Commission or the Court and, it is only expressly
stated that the report under Article 50 of the Convention shall be transmitted
to the State, who shall not be at liberty to publish it;
d) that Article 35 of the Rules of Procedures
of the Court and Article 75 of the Regulations of the Commission establish
that the petitioners shall be notified of the application.
e) that the State erroneously interpreted
the application of Articles 62 and 63 of the Convention, because they do not
refer to the right of defense but to the rights of the individual. Likewise, it declared that the State has not
demonstrated how notification of the application to the petitioners (not that
of Report No. 37/97, which it mentions incorrectly) affected its procedural
rights, which is the essential presumption for a preliminary objection to
be admissible; and
f) that the application must be notified to the petitioners for several
reasons, among these, to ensure the petitioner’s individual guarantee of defense.
63. The court proceeds to consider the third
preliminary objection.
64. The Court observes that it is clear from the evidence which the
State contributed to establish its allegation that what the Commission transmitted
to the petitioners was not Report No. 37/97, but the application, once it
had decided to submit this to the Court (cf. note of the Trade Union of Workers of the Institute of Hydraulic Resources
and Electrification of Panama of February 23, 1998; note of the Trade Union
of Workers of the Institute of Hydraulic Resources and Electrification of
Panama of February 17, 1998). The
Commission took this measure to comply with the provisions of Article 75 of
its Regulations, according to which
[w]hen the Commission
decides to refer a case to the Court, the Executive Secretary shall immediately
notify the petitioner and alleged victim of the Commission’s decision and
offer him the opportunity of making observations in writing on the request
submitted to the Court. The Commission
shall decide on the action to be taken with respect to these observations.
65. Furthermore, the Court notes that this procedure is in accordance
with the provisions of Article 35.1 of its Rules of Procedure, under which
the Secretariat of the Court shall communicate the application to the original
claimant, if known, and to the victim or his next of kin, if appropriate.
66. Consequently, it is not admissible to argue, as the State has
done, that the Commissions’ transmittal of the application to the petitioner
contravenes any provisions of the procedure before the Court or the Commission.
67. In view of the foregoing, the Court rejects the third preliminary
objection because it is without merit.
IX
68. Therefore,
The Court
decides
unanimously,
1. To reject the preliminary objections filed by the State.
2. To continue hearing the instant case.
Done in Spanish and English, the
Spanish text being authentic, in San Jose, Costa Rica, this eighteenth day
of November 1999.
Antônio A. Cançado Trindade
President
Máximo Pacheco-Gómez Hernán Salgado-Pesantes
Oliver Jackman
Alirio Abreu-Burelli
Carlos Vicente de Roux-Rengifo
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A. Cançado Trindade
President
Manuel E. Ventura-Robles
Secretary
* Judge
Sergio García Ramírez informed the Court that for reasons beyond his control,
he was unable to take part in the preparation, deliberation and signature
of this judgement.
[1] According
to page 3 of the application presented by the Commission, “as of December
10, a systematic policy of mass worker dismissals commenced…”, while page
4 of this document mentions that “the victims [were] dismissed as of December
6, 1990”.