JOSÉ RODRÍGUEZ DAÑÍN
March 6, 2008
1. On May 4, 2005 the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) received a complaint lodged by Mr. José Rodríguez Dañín on his own behalf (hereinafter “the petitioner” or “the alleged victim”) against the State of Bolivia (hereinafter “the State,” “the Bolivian State,” or “Bolivia”) for the alleged violation of the rights established in Articles 23.1.c and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”).
2. The petitioner alleged that he was arbitrarily fired from his post as Socio-Environmental Manager of the National Highway Service (hereinafter “the SNC”) on several occasions, the first of which occurred on December 10, 2003, and the most recent in 2007. According to the petitioner, although he had favorable court protection rulings that ordered his reinstatement in the position and payment of lost salary and benefits, the appropriate authorities have not honored them. He also alleged that in December 2005, in order to reach a conciliation settlement that would reinstate him, the President of the SNC forced him to sign a postdated resignation and a document abandoning proceedings in the Commission and in the courts that were considering an action for disobedience of a court order.
3. For its part, the Bolivian State argued that it had complied with the first court decision of reinstatement in the position, and that the alleged victim failed to come to the entity to assume it. It also stated that compliance with the second court decision was in the hands of the liquidator of the agency, since its name was changed to the Bolivian Highway Administration. Nonetheless, in a latter communication, the State said it has no economic obligation with Mr. Rodríguez Dañín because the amparo decision on his favor was revoked by the Constitutional Court through the ex officio review procedure. The State underlined that Mr. Rodríguez Dañín’s post was one of free appointment and removal under domestic law, so his dismissal cannot be considered arbitrary. Concerning the exhaustion of domestic remedies, the State said they are in full force and the petitioner must await the outcome of the criminal trial of the Ex-President of the SNC for the offense of disobedience of a court order. On its most recent communication, the State alleged that the petitioner did not exhaust adequately the administrative remedies and that he presented the amparo in a wrong way because it is a subsidiary and exceptional remedy.
4. After analyzing the parties’ positions, the Commission concludes that although it is competent to consider the alleged victim’s complaint, the case is inadmissible in the light of Articles 46 and 47 of the American Convention. The Commission therefore decides to transmit this Report of Inadmissibility to the parties, to publish it, and to include it in its Annual Report.
II. PROCESSING BY THE COMMISSION
5. On May 4, 2005, the Commission received the petition, the pertinent parts of which were forwarded to the State on June 28, 2005. On July 6, 2005, the Commission received a communication from the petitioner specifying the objective of his petition.
6. On October 3, 2005, the State asked for an extension of time to present its comments, which was granted on October 11, 2005. On November 15, 2005, a communication was received from the State, in which it presented its observations on the initial petition and requested that it be ruled inadmissible for lack of prior exhaustion of domestic remedies and because there was no violation whatsoever of the Convention.
7. On November 21, 2005, a communication was received from petitioner with additional information on the facts of the case. On December 1, 2005, the Commission forwarded to the petitioner the State’s note of November 15, 2005, and placed itself at the disposal of the parties with a view to reaching a friendly settlement.
8. On December 13, 2005, a communication was received from the petitioner with additional information and a request that the petition be declared admissible. On December 19, 2005, the Commission notified the State that it had ceased its intervention in the friendly settlement procedure.
9. On December 22, 2005, a communication was received from the State, which transmitted a copy of the resolution for reinstatement of the petitioner in his post, and a copy of the petitioner’s abandonment of proceedings by the Commission. In the same note it asked the Commission to close the case.
10. On December 30, 2005, the petitioner sent a note renouncing his abandonment of proceedings by the Commission and his interest in the Commission’s resuming its efforts to achieve a friendly settlement. On January 18, 2006, the Commission asked the parties to submit a copy of the signed agreement, if any, and the report on the status of compliance with it.
11. On February 16, 2006, information was received from the petitioner, indicating that efforts at conciliation with the State had failed, and requesting that processing on the petition continue.
12. On February 23, 2006, the State sent a communication that was forwarded to the petitioner on March 28, 2006, with a deadline of one month to present any comments.
13. On March 27, 2006, the State was sent the petitioner’s note of January 25, 2006, with a deadline of one month to present any comments.
14. On March 28, 2006, a copy of the abovementioned note to the State was forwarded to the petitioners, with a deadline of one month to present any comments.
15. On May 2, 2006, another communication was received from the petitioner, which was forwarded to the State on June 6, 2006, with a deadline of one month to present any comments.
16. On July 14, 2006, another communication was received from the petitioner, reiterating the arguments proffered throughout the proceeding. This information was transmitted to the Bolivian State on August 1, 2006, with a deadline of one month to present any comments.
17. On August 4, 2006, the State presented its observations on the petition and petitioner’s additional communication. On August 15, 2006, the Commission forwarded the pertinent parts of the State’s note to the petitioner.
18. On October 5, 2006, the Commission received another communication from the petitioner with his comments, the pertinent parts of which were transmitted to the State on November 8, 2006.
19. On November 27, 2006, an additional note was received from the petitioner, which gave the Commission an update on the facts. This communication was forwarded to the State on December 20, 2006, with a deadline of one month to present any comments.
20. On February 27 and April 26, 2007, notes were received from the petitioner with additional information. The pertinent parts of this information were forwarded to the State on May 21, 2007, with a deadline of one month to present any comments.
21. On March 27, 2007, a communication was received from the State. On May 29, 2007, the Commission requested that the State, based on its latest communication, report on steps taken to pay the salary and benefits that Mr. Rodríguez Dañín failed to receive from April to August of 2006.
22. On June 1, 2007, another communication was received from the petitioner, which was forwarded to the State on June 25, 2007, with a deadline of one month to present any comments. In the same note, the IACHR reiterated to the State the request for information it had made on May 29, 2007.
23. On August 29, 2007, the Commission sent a communication to the petitioner, asking him to report within one month on the status of payment of the salary due him for the months of April to August 2006.
24. On October 25, 2007, a communication was received from the petitioner, which was forwarded to the State on November 13, 2007, with a deadline of one month to present any comments. In the same note the IACHR reiterated to the State the requests for information made on June 25, 2007, and May 29, 2007.
25. On January 7, 2008, the State asked for an extension to respond to the petitioner’s observations, which was granted on January 10, 2008, for an additional 20 days. The State presented its observations on March 5, 2008, including new information.
III. POSITIONS OF THE PARTIES
A. The petitioner
26. The petitioner stated that after participating in and winning a competitive selection process he was appointed to the post of Socio-Environmental Manger by a resolution of the directorate of the SNC on December 5, 2001. He said that on October 21, 2003, while he was on leave, his management position was suspended, and on December 10, 2003, in a resolution and memorandum signed by the President of the SNC, he was arbitrarily fired from his post, and given no indication of the reasons or causes for that action.
27. He stated that he appealed to the Ministry of Services and Public Works, and to the Civil Service Office, seeking revocation of his arbitrary dismissal, but did not receive any reply. On April 17, 2004, he therefore presented an appeal for constitutional legal protection [amparo] against the President of the SNC, which was granted by the First Social and Administrative Chamber of the La Paz District Superior Court. The court ruled the dismissal arbitrary and ordered reinstatement of the alleged victim to his post. The petitioner said that subsequently, on July 1, 2004, the Constitutional Court reviewed the legal protection decision and upheld the operative part of the prior ruling.
28. The petitioner argued that these decisions were not carried out despite orders by judicial authorities to the President of the SNC to comply with them. He said that this official replied on August 4, 2004, stating that he had been reinstated in his post by a resolution and memorandum. However, the petitioner said that he was not properly informed of any of these actions, and that this is reflected in the compliance decision of August 5, 2004, of the First Social and Administrative Chamber of the La Paz District Superior Court, which ruled that the legal protection ruling had not been carried out. He added that based on this declaration of noncompliance, the court turned over the file to the Public Prosecutor’s Office to prosecute the President of the SNC for failure to obey a court order.
29. The petitioner stated that the criminal case opened on November 24, 2005, against the President of the SNC is not an adequate or effective remedy because it pursues a penal sanction against an individual, but not immediate compliance with a court decision in his favor. In this regard he argued that the exception of Article 46.2.a of the Convention applies, because Bolivia’s legislation does not afford due process for ensuring compliance with judicial decisions.
30. The petitioner said that although at that time he was reinstated to his post, he has been unsuccessful in his conciliatory efforts with the State to obtain payment of lost salary. He reported that in order to reach a definitive settlement on December 3, 2005, his counterpart, the President of the SNC and his legal advisers, forced him to draft “all kinds of documents,” including: a letter of abandonment of the petition lodged with the Commission; a memorandum of abandonment of the criminal action in the Fifth Criminal Sentences Court; and a letter of resignation from the post of Socio-Environmental Manager postdated to January 18, 2006.
31. He stated that on that date he delivered all the required documents, which he had to sign in order to reach an agreement, and he had a date with the other party at the Banco de Crédito to deposit the money owed him. He said that the President of the SNC failed to appear, and the President’s legal counsel “made him sign a receipt” for US$175,000, the amount he received, which was to cover legal fees, salary due him, and part of the damages sustained.
32. He said that he resumed his position as Socio-Environmental Manager on December 6, 2005, and in that capacity undertook a thorough review of the agency’s documents and projects. He said that in view of all the irregularities he encountered, he asked the President of the SNC for a delay in submitting the resignation mentioned in para. 29 supra in order to finish his work, which the President denied.
33. He continued that as a result of the foregoing, he filed a complaint with the Ministry of Labor on December 22, 2005, indicating that the resignation letter had been signed under duress in order to reach a conciliation agreement. He said that an investigation was started on January 9, 2006, in which the President of the SNC replied that he did not know the person who had come in his name to pay the petitioner US$175.000 on December 3, 2005, and asked that Mr. Rodríguez Dañín be investigated, because he could not receive gifts or money from third parties outside the agency.
34. The petitioner added that on January 10, 2006, he submitted a letter withdrawing the resignation he had been forced to sign, but in defiance of the constitutional rulings in his favor he was asked again verbally to submit his resignation on April 3, 2006, within two hours, or else be fired again by memorandum. According to the petitioner, he replied with a latter requesting some legal or administrative explanation.
35. He stated that subsequently, on April 5, 2006, his office was sealed with a transparent adhesive tape that had no reference to any judicial authority to block his access, although there was no administrative proceeding against him nor any audit of his performance as manager. He indicated that he tried to go in the office to gather his belongings and at that time two police officers appeared with SNC officials to block his access, saying that he no longer worked there, without presenting any official document to that effect.
36. According to the petitioner, “the legal or administrative explanation” requested arrived on April 13, 2006. In his opinion, they gave him a totally unacceptable version of the facts and referred to irrelevant regulations, including legislation on public officials who are freely appointed and removed, although he had been appointed by competitive selection. The petitioner said that the following day he went to the offices with a notary public to certify his situation, and at that time learned of a memorandum designating another person to occupy his post as “interim” manager.
37. He noted that faced with this situation he filed an appeal for revocation with the SNC and a higher-level appeal to the Ministry of Services and Public Works, but the Ministry replied justifying the action in a “distorted” and “sarcastic” manner.
38. He said that as a result of this he filed a new petition for protection against the Executive President of the SNC for violation of the right to work, job security, fair remuneration, career service, and legal certainty. He reported that the protection was granted by the Third Criminal Chamber of the La Paz District Superior Court in Resolution No. 63 of 2006 of September 1, 2006, which ordered “that the institution that is the defendant reinstate him today to the position he won by competitive selection, with the abovementioned procedural background, with full social rights in accordance with the aforementioned constitutional provisions, with legal sanctions if there is a recurrence of the arbitrary and illegal dismissal that the plaintiff suffered, as provided by law.”
39. The petitioner stated that reinstatement did not occur “today” but three days after the order, and to date he has not been paid for the “unjustified layoff” despite “repeated requests.” He said that he has not received any salary or benefits owed him for the time that he was arbitrarily dismissed.
The petitioner added that on October 27,
2006, he asked the President of the SNC for authorization to be absent
for four days to help his mother, who was in poor health. He said that
he received verbal approval and processed the leave request, using some
of his vacation time accrued since 2005. He said that although he
presented the necessary documentation to justify his absence, on
November 7, 2007, they gave him another memorandum of dismissal based on
“unauthorized absence.” The petitioner stated that this memorandum was
revoked, but later he was fired again with other employees “who were not
in the career service,” which he said he was.