REPORT N° 82/07

PETITION 269-05

MIGUEL ANGEL MONCADA OSORIO AND JAMES DAVID ROCHA TERRAZA

FRIENDLY SETTLEMENT

BOLIVIA

October 15, 2007

I.          EXECUTIVE SUMMARY

1.        On March 14, 2005 the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition submitted by the Ombudsman of the Republic of Bolivia (hereinafter “the petitioner”), alleging the responsibility of the Republic of Bolivia (hereinafter “the State” or “the Bolivian State”) for failure to respect a ruling of amparo issued by the Superior Court of Justice of La Paz (Amparo Tribunal) in favor of Messrs. Miguel Angel Moncada Osorio and James David Rocha Terraza (hereinafter "the alleged victims").

2.        The petitioner argued that the State was responsible for violating the alleged victims’ rights to a fair trial, to participate in government, and to judicial protection, established in Articles 8, 23 and 25 of the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”) respectively, and in Article XIV of the American Declaration on the Rights and Duties of Man. He claimed that the victims had exhausted domestic remedies established in Bolivian legislation by filing an appeal for Constitutional amparo which was decided in their favor by the Superior Court of Justice of La Paz.

3.        On June 8, 2007 the Bolivian State signed a consent agreement (acuerdo transaccional) in which it undertook to reach a friendly settlement pursuant to Articles 48(1)(f) and 49 of the American Convention. In a letter of September 3, 2003, the Ombudsman of Bolivia asked the IACHR to close the case, on the grounds that the friendly settlement had been fulfilled.

4.        In this friendly settlement report, pursuant to Article 49 of the American Convention and Article 41(5) of the Commission's Rules of Procedure, the IACHR summarizes the facts alleged by the petitioner and the friendly settlement that was reached. The Commission decides to publish this report in its Annual Report to the OAS General Assembly, and to notify it to the parties.

II.         PROCEEDINGS BEFORE THE COMMISSION

5.        On March 14, 2005 the Commission received a petition submitted by the Ombudsman of the Republic of Bolivia, alleging failure to uphold judicial rulings, with consequent violation of the rights of Messrs. Miguel Angel Moncada Osorio and James David Rocha Terraza.

6.        The Commission registered the petition under number 269-05 and on June 28, 2005 it requested additional information from the petitioner, who responded on August 10, 2006.

7.        On January 19, 2007 the IACHR received updated information from the petitioner.

8.        On January 30, 2007 the Commission transmitted to the State the pertinent portions of the petition, giving it two months to submit its response, pursuant to Article 30.3 of the rules of procedure.

9.        On April 9, 2007 the IACHR received a request from the State for a 30-day extension to submit its observations on the petition. On April 16, 2007 the IACHR granted the extension requested by the State, and so advised the petitioner.

10.       On April 18, 2007 the IACHR received additional information from the petitioner, which it remitted to the State on May 7, 2007.

11.       On June 15, 2007, the IACHR received a letter from the petitioner indicating his interest in having P-269/05 processed and concluded in accordance with the friendly settlement procedure, on the grounds that Messrs. Moncada and Rocha had signed a consent agreement with the Ministry of Public Works, Services and Housing, the Ministry of Justice, and the Ministry of Foreign Relations and Worship, on June 8, 2007.

12.       On July 19, 2007 the Commission received a letter from the State, attaching a copy of the consent agreement signed between the parties.

13.       On July 24, 2007 the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement in the matter, pursuant to Article 48(1)(f) of the American Convention.

14.       On August 10, 2007 the IACHR received a letter from the petitioner indicating his interest in pursuing the friendly settlement process. On September 3, the petitioner advised the Commission that the Bolivian State had fulfilled all the commitments assumed in the consent agreement of June 8, 2007, and asked the IACHR to issue a friendly settlement report pursuant to Article 49 of the Convention. The petitioner accompanied that letter with two notes, dated August 21, 2007, from Messrs. Moncada and Rocha, in which they declared:

Recognizing that the Bolivian State, through the Ministry of Public Works, Services and Housing, has complied fully with the commitments assumed in the consent agreement signed by myself and the Ministry of Public Works, Services and Housing, the Ministry of Justice and the Ministry of Foreign Relations and Worship on June 8, 2007, I wish to advise you that I am in agreement with the settlement reached, and that the Bolivian State has no further obligations pending with myself in relation to petition 269-05 Miguel Angel Moncada and James Rocha versus Bolivia, and our claims referred to therein.

“As well, pursuant to clause 3 .2 of that consent agreement, which reads "All commitments of both parties having been totally fulfilled, the Bolivian State will ask the IACHR, through the Ministry of Foreign Relations and Worship, to issue a friendly settlement report, pursuant to Article 49 of the American Convention on Human Rights, in order to terminate proceedings under petition P-269-05 Miguel Angel Moncada and James Rocha versus Bolivia", I hereby request the Ombudsman to ask the Inter-American Commission on Human Rights to issue that friendly settlement report.

15.       The communications cited in the previous paragraph were transmitted to the State on September 17, 2007.

III.        THE FACTS

16.       The Ombudsman, representing Miguel Angel Moncada and James Rocha, declared that the alleged victims were working as career employees of the Ministry of Services and Public Works, since March 10, 2003 and August 12, 2003 respectively, and that on April 15, 2004 the two were notified by memorandum from the Deputy Minister of Basic Services that their positions had been eliminated and that they would be dismissed from the institution in 30 days.

17.       The petitioner reported that each of the alleged victims filed appeals against those memorandums, and that both appeals were rejected by administrative resolutions issued by the Deputy Minister of Basic Services. By virtue of those decisions, the alleged victims Rocha and Moncada filed hierarchical appeals against the Memorandums and the Administrative Resolutions, before the Superintendency of the Civil Service on April 30, 2004 and on May 12, 2004 respectively.

18.       According to the petitioner, on June 28, 2004 and on July 6, 2004 the Superintendency of the Civil Service decided those appeals in favor of the appellants, and issued administrative resolutions revoking the administrative acts contained in the memorandums and the administrative resolutions of the Deputy Minister of Basic Services, ordering the immediate reinstatement of Messrs. Rocha and Moncada.

19.       The petitioner maintains that the alleged victims were reinstated in positions at a lower level, with lower salaries and different functions. They refused to sign the agreement of reinstatement, on the grounds that their reinstatement was not in accordance with the decision of the Superintendency of the Civil Service.

20.       On July 29, 2004 the alleged victims wrote to the Ministry of Services and Public Works and to the Superintendent of the Civil Service declaring that they were not in accord with the terms of their reinstatement, because that meant a lower-level position and a salary cut of nearly 50% from what they had been receiving earlier.

21.       On August 2, 2004 the alleged victims filed an appeal for Constitutional amparo against the decision to reinstate them at lower levels and salaries, and on August 26, 2004 the First Criminal Chamber of the Superior Court of Justice of La Paz (Amparo Tribunal) upheld the appeal in part, ordering the authorities to reinstate the alleged victims in strict compliance with the rules of professional dignity and stability in the public service.

22.       As a result of this decision, on September 21, 2004 a new memorandum was issued to the alleged victims, reinstating them as of that date in the position of Director of Management and Reform in the case of Mr. Moncada, and Director of Project Management, in the case of Mr. Rocha. However, the petitioner reports, those new memorandums were again inconsistent with the administrative resolutions of the Superintendency of the Civil Service and with the decisions of amparo, for both officials were reinstated as temporary rather than as permanent employees.

23.       On December 14, 2004, in an automatic review of the ruling of the First Criminal Chamber of the Supreme Court of Justice, the Constitutional Tribunal of Bolivia issued judgment 1911/2004-R dismissing the appeal of amparo on the grounds that this was not the appropriate route for enforcing final resolutions relating to administrative procedures.[1] On December 22, 2004 the General Director of Administrative Matters of the Ministry of Services and Public Works issued a new memorandum to the alleged victims, indicating that, in compliance with the decision of the Constitutional Tribunal, he was revoking and canceling the memorandum of September 21, 2004, thereby dismissing them again from their positions in the Ministry.

24.       According to the petitioner, the alleged victims pursued administrative appeals against the new dismissal resolutions issued by the Director General of Administrative Affairs of the Ministry of Services and Public Works, and these were decided in their favor by the Civil Service through Administrative Resolutions SSC/IRJ/19/2005 of March 11 and SSC/IRJ/20/2005 of March 14 and Administrative Resolutions SSC/IRJ/26/2005 of April 8 and March 11 SSC/IRJ/27/2005 of  April 11, 2005. In those resolutions the Superintendency of the Civil Service revoked the memorandums whereby the two officials were for the second time relieved of their duties, and ordered their immediate reinstatement in their functions, with retroactive pay to the date of their effective reinstatement. The petitioner maintains that the Ministry of Services failed to comply with these definitive orders, for which reason the petitioner filed a new appeal for Constitutional amparo on 25 July 2005 on behalf of the alleged victims.

25.       On July 29, 2005 the Third Civil Chamber of the Superior Court of Justice of La Paz issued resolution 332/2005, in which it decided "to accept in part the appeal for constitutional amparo presented by Miguel Angel Moncada and James David Rocha Terraza against the Ministry of Basic Services and Public Works and the Director General thereof, and that the two appellants be immediately reinstated, with payment of salary and benefits if any, accrued during the time they were not working, in strict observance of Article 65 of DS 26115 of March 16, 2001. This appeal is denied with respect to the Superintendency of the Civil Service."

26.       On April 12, 2006 the Constitutional Tribunal, reviewing the case, issued judgment 367/2006-R in which it granted the amparo requested. It held that, while the two officials were given public positions in the Ministry of Services and Public Works and received their salaries as appropriate for the year 2005, the Ministry did not pay them the amounts due from 2004, despite signature of an act reconciling accrued remuneration on January 12, 2006 between the two plaintiffs and the administrative personnel of the Ministry of Services and Public Works. Against this background, the petitioner maintains that the Bolivian State has failed to comply fully and effectively with judicial orders in favor of the alleged victims.

27.       On January 19 and on April 16, 2007 the petitioner advised the IACHR that the alleged victims had for a third time been arbitrarily dismissed from their positions on November 21, 2006 by the Ministry of Public Works, Services and Housing. They thereupon filed appeals for revocation, which were denied by the Minister. In December 2006 the alleged victims filed hierarchical appeals which were answered by the Ministry of Public Works, Services and Housing on December 11, in a resolution that ordered the appeal and the entire file submitted for decision to the President of the Republic, in the context of Law 2341 on Administrative Procedure.[2] On December 28, 2006 the Minister of the President’s Office remitted to the Superintendency of the Civil Service for decision the appeal and the documentation submitted by Mr. Moncada. On January 3, 2007 the Deputy Supervisor of the Civil Service rejected the appeal. The same fate befell the appeal filed by Mr. Rocha. The petitioner maintains that the Superintendency of the Civil Service rejected the hierarchical appeals filed by the alleged victims on the grounds that it lacked competence, because the challenges were filed by persons who were neither employees nor candidates of the administrative career, for which reason it was up to the President of the Republic to decide. Although Moncada and Rocha filed the appeals on December 7 and 8, 2006 respectively, the President of the Republic had not decided them as of the date of the petitioner's submission to the IACHR, and the petitioner argues that, since the time limit established by law for deciding such appeals has expired, the alleged victims should be reinstated in their positions in the Ministry of Public Works, Services and Housing.[3]

28.       In June 2007 the petitioner reported that he had contacted the State to reach a friendly settlement, because on June 8, 2007 Messrs. Moncada and Rocha had signed a consent agreement with the Ministry of Public Works, Services and Housing, the Ministry of Justice, and the Ministry of Foreign Affairs and Worship.

29.       On September 3, 2007 the petitioner advised the Commission that the Bolivian State had fulfilled all the commitments assumed in the consent agreement of June 8, 2007.

IV.        FRIENDLY SETTLEMENT

30.       The State and the alleged victims have signed the consent agreement, the text of which follows:

CONSENT AGREEMENT

Article 1. The parties. The parties to this agreement are:

1.         The Bolivian State, for the first party, represented by the Minister of Public Works, Services and Housing, Jerges Mercado Suarez, and by other authorities signing this document.

2.         For the other party, James David Rocha Terraza, with CI 765127 CBB and Miguel Angel Moncada Osorio, with CI 2378347 LP, both Bolivian citizens, capable in law, and resident of the city of La Paz.

Article 2. Background. On April 15, 2004 James David Rocha Terraza and Miguel Angel Moncada Osorio were dismissed from their positions in the Ministry of Services and Public Works, whereupon they filed administrative complaints, and the Superintendency of the Civil Service ordered their immediate reinstatement in the same positions they had held. However, the Ministry placed them in different functions, and the two public servants thereupon presented an appeal for constitutional protection (amparo), which was granted by the First Criminal Chamber of the Superior Court of Justice of La Paz on August 26, 2004 through resolution 512/04. On the basis of that legal ruling, the Ministry of Services and Public Works reinstated them in their positions, but as temporary rather than permanent employees.

By means of memorandums MSOP/DGGA/ DDO P053/04 of December 22, 2004 addressed to Miguel Angel Moncada and MSOP/DGGA001/2005 of January 3, 2005 addressed to James Rocha, the Ministry again dismissed both employees from their duties, on the basis of its interpretation of the constitutional judgment 1911/2004-R of December 14, 2004 resulting from the amparo proceedings. As on the previous occasion, the two employees filed appeals for revocation and hierarchical review against the administrative acts dismissing them. On March 11 and 14, 2005, respectively, the Superintendency of the Civil Service issued administrative resolutions SSC/IRJ/19/2005 and SSC/IRJ/20/2005, revoking the memorandums of dismissal and immediately reinstating Miguel Angel Moncada Osorio and James David Rocha Terraza in their functions. Those two resolutions were later supplemented by Administrative Resolutions SSC/IRJ/26/2005 of April 8 and SSC/IRJ/27/2005 of April 11, 2005, in which the Superintendency ordered the Ministry to pay to those persons the remuneration accrued to the date of their actual reinstatement. The Ministry of Services and Public Works did not comply with the decisions of the Superintendency.

In the face of this noncompliance, on July 25, 2005 the Ombudsman, representing the two citizens, again filed an appeal for constitutional amparo. In that appeal, the Ombudsman asked the court, among other things: to order the immediate reinstatement of Miguel Angel Moncada Osorio and James David Rocha Terraza; payment of accrued sums, retroactive to the date of memorandum MSOP/DGGA001/05 of January 3, 2005, in the case of James David Rocha Terraza, and memorandum MSOP/DGGA053/4 of December 22, 2004, in the case of Miguel Angel Moncada Osorio; payment of sums accrued to the date of their actual reinstatement, retroactive to fiscal year 2004; and payment of the Christmas bonus for fiscal year 2004, plus the benefits stipulated by law.

On July 29, 2005, the Third Civil Chamber of the Superior Court of Justice of La Paz granted the amparo appeal through resolution 332/2005. Upon review, on April 12, 2006 the Constitutional Tribunal issued judgment 367/2006-R granting the amparo requested. While the two employees regained positions in the Ministry of Services and Public Works and received their salaries for fiscal year 2005, the ministry did not pay the sums accrued from fiscal year 2004, despite the signing of an Act of Reconciliation of Accrued Remuneration on December 12, 2006 between the two interested parties and the administrative personnel of the Ministry of Services and Public Works.

On November 21, 2006 the two citizens were again dismissed from their positions in the Ministry of Public Works, Services and Housing (the new name of the Ministry, pursuant to Law 3351), by means of memorandums MOPSV DESP O204/2006. On the basis of this new dismissal, citizens Rocha and Moncada launched legal challenges.

In light of the dismissals and the incomplete compliance with the decisions of the Superintendency of the Civil Service and of the Constitutional Court, citizens Rocha and Moncada, working through the Ombudsman, appealed to the Inter-American system of human rights to complain of violation of Articles XIV of the American Declaration on the Rights and Duties of Man and Articles 8, 23 and 25 of the American Convention on Human Rights. On January 30, 2007, the Inter-American Commission on Human Rights transmitted to the Bolivian State the petition recorded as P-269-05 Miguel Angel Moncada and James Rocha versus Bolivia, giving it two months to present its observations. At the same time, as soon as the Ombudsman became aware of the case of Messrs. Rocha and Moncada, that office held a series of discussions with officials of the ministries of public works, services and housing, justice, and foreign relations and worship in an effort to settle the dispute through conciliation. The present consent agreement is the result of those meetings and, when it has been fulfilled in all its points and commitments, it will terminate proceedings initiated before the Inter-American Commission on Human Rights.

Article 3. Commitments of the parties

1.         Commitments of the Bolivian State

The Bolivian State commits itself in good faith, and within the time limits indicated, to comply strictly with the following commitments:

a)          To pay to James David Rocha Terraza the sum of B. 55,392.12 corresponding to pay accrued for fiscal year 2004 according to the Act of Reconciliation of Accrued Remuneration signed on January 12, 2006 by the interested party and the Ministry of Services and Public Works (today the Ministry of Public Works, Services and Housing). This payment shall be made in three installments, in the months of June, July and August 2007, by the 15th day of each month. From this amount, equivalent to B. 55,392.12, James David Rocha Terraza authorizes the Ministry of Public Works, Services and Housing to withhold the amount of B. 6,750, representing the salary he received between June 16 and July 31, 2005 for services provided to the National Fund for Regional Development. That sum of B. 6,750 will be withheld from the third installment, corresponding to the month of August 2007. Subsequently, the Ministry of Public Works, Services and Housing will transfer this amount of B. 6,750 to the National Fund for Regional Development, and will deliver a legalized receipt for that amount to Mr. James David Rocha Terraza and to the Ministry of Foreign Relations and Worship.

b)         To pay to Miguel Angel Moncada Osorio the sum of B. 64,761.90 corresponding to pay accrued for fiscal year 2004 according to the Act of Reconciliation of Accrued Remuneration signed on January 12, 2006 by the interested party and the Ministry of Services and Public Works (today the Ministry of Public Works, Services and Housing). This payment shall be made in three installments, in the months of June, July and August 2007, by the 15th day of each month.

c)          Upon signature of this consent agreement, the Bolivian State will communicate to the IACHR, through the Ministry of Foreign Relations and Worship, to the effect that petition P-269-05 Miguel Angel Moncada and James Rocha versus Bolivia has entered the friendly settlement procedure governed by Article 41 of the IACHR Rules of Procedure. That communication shall be given within three days after signature of this document.

d)         Once the commitments of both parties have been totally fulfilled, the Bolivian State will ask the IACHR, through the Ministry of Foreign Relations and Worship, to issue a Friendly Settlement Report, pursuant to Article 49 of the American Convention on Human Rights, in order to close the processing of petition P-269-05 Miguel Angel Moncada and James Rocha versus Bolivia.

2.         Commitments of Miguel Angel Moncada Osorio and James David Rocha Terraza

For their part, Miguel Angel Moncada Osorio and James David Rocha Terraza undertake to comply strictly with the following:

a)          To renounce any legal action (administrative, judicial or international) claiming noncompliance with the Administrative Resolutions of the Superintendency of the Civil Service SSC/IRJ/19/2005 of March 11, 2005 and SSC/IRJ/20/2005 of March 14, 2005; SSC/IRJ/26/2005 of April 8 and SSC/IRJ/27/2005 of 11 April 2005; Resolution 332/2005 of the Third Civil Court of the Superior Court of Justice of La Paz, issued on July 29, 2005, and judgment 367/2006-R of the Constitutional Tribunal of April 12, 2006.

b)         To renounce any legal action (administrative, judicial or international) complaining of dismissal by the Ministry of Public Works, Services and Housing through administrative acts contained in memorandums MOPSV DSP O204/2006 of November 21, 2006.

c)          To renounce any legal action (administrative, judicial or international) to seek reparations for material or immaterial damage linked to sections a) and b) above.

d)         Once this consent agreement is signed, to communicate to the IACHR, through the Ombudsman, to the effect that petition P-269-05 Miguel Angel Moncada and James Rocha versus Bolivia has entered the friendly settlement procedure governed by Article 41 of the IACHR Cubs on rules of procedure.

e)          Once the commitments of both parties have been totally fulfilled, to ask the IACHR, through the Ministry of Foreign Relations and Worship, to issue a Friendly Settlement Report, pursuant to Article 49 of the American Convention on Human Rights, in order to close the processing of petition P-269-05 Miguel Angel Moncada and James Rocha versus Bolivia.

Article 4. Noncompliance with the commitments agreed. The commitments contained in this consent agreement must be effectively fulfilled within the time limit stipulated for each of them. Noncompliance with one, several or all of these commitments shall be grounds for terminating the friendly settlement procedure before the Inter-American Commission on Human Rights, and both the State, as one party, and Miguel Angel Moncada Osorio and James David Rocha Terraza, through the Ombudsman, as the other party, must immediately inform the Commission that they renounce friendly settlement, which will empower the IACHR to proceed with its processing of the case, to issue the corresponding reports and, if necessary, to submit the matter subsequently to the Inter-American Court of Human Rights.

Article 5. Compliance in good faith and acceptance. The parties freely accept the points agreed and undertake to comply strictly with them in good faith, in witness whereof they affix their signatures to the five copies of this document, which are of equal validity, in the city of La Paz, on this eighth day of June, 2007.

V.         DETERMINATION OF COMPATIBILITY AND COMPLIANCE

31.       By means of a letter received at the IACHR on December 3, 2007, the Ombudsman of Bolivia advised that the Bolivian State has fulfilled the commitments assumed in the consent agreement signed between the parties, and he attached a copy of the alleged victims' statement of concurrence. Consequently, the petitioner requested the Commission to issue a friendly settlement report pursuant to Article 41(5) of its Rules of Procedure and Article 49 of the American Convention. For its part, the State sent to the IACHR a signed copy of the Consent Agreement.

32.       The IACHR again notes that pursuant to Articles 48(1)(f) and 49 of the American Convention, the aim of this procedure is “reaching a friendly settlement of the matter on the basis of respect for the human rights recognized in this Convention.” Accepting this procedure demonstrates the State’s good faith in pursuit of the American Convention’s purposes and goals under the principle of pacta sunt servanda, whereby states are required to comply in good faith with the treaty obligations they assume. It also again points out that the friendly settlement procedure provided for in the American Convention allows individual cases to be concluded in a noncontentious fashion and that in cases from several different countries, it has served as an important dispute settlement vehicle that is available to either party.

33.       The Commission greatly appreciates the efforts of both parties in reaching this settlement, which is compatible with the object and purpose of the American Convention, and considers that, on the basis of the communications presented by the parties, the commitments in the agreement have been fulfilled.

VI.        CONCLUSIONS

34.       On the basis of the preceding considerations, and in light of the procedure stipulated in Articles 48(1)(f) and 49 of the American Convention, the Commission wishes to reiterate its profound appreciation of the efforts made by the parties, and its satisfaction at reaching a friendly settlement in this case, based on the object and purpose of the American Convention.

35.       By virtue of the considerations and conclusions set out in this report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

DECIDES:

1.         To approve the terms of the friendly settlement agreement signed by the parties.

2.         To declare the friendly settlement fulfilled.

3.         To publish this report and include it in its Annual Report to the OAS General Assembly.

Done and signed in the city of Washington, D.C., on the 15^th day of the month of October, 2007.  (Signed):  Florentín Meléndez, President; Paolo G. Carozza, First Vice-President; Víctor E. Abramovich, Second Vice-President; Evelio Fernández Arévalos, Clare K. Roberts and Freddy Gutiérrez, Commissioners.