REPORT Nº 2/08

PETITION 506-05

INADMISSIBILITY

JOSÉ RODRÍGUEZ DAÑÍN

BOLIVIA

March 6, 2008

I.                    SUMMARY

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 Rodríguez Dañín because the amparo decision on his favor was revoked by the Constitutional Court through the ex officio review procedure.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.[1]

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.

40.              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.
 

B.                  The State

41.              The State described the facts as indicated in the following paragraphs. It said that on November 12, 2001, Mr. José Rodríguez Dañín was appointed Socio-Environmental Manger of the SNC.

42.              It stated that on October 21, 2003, for “cause”, the President of the SNC directed the General Manager to intervene with the Social-Environmental Manager, which resulted in the memorandum of December 10, 2003, which dismissed Mr. Rodríguez Dañín in order to “maintain the proper functioning of the organization.”

43.              The State said that on April 14, 2004, Mr. Rodríguez Dañín filed an appeal for constitutional protection [amparo], which was granted on April 19, 2004, by the Social and Administrative Chamber of the La Paz District Superior Court. That ruling ordered restitution of the petitioner to his post of Socio-Environmental Manager.

44.              It said that on April 20, 2004, the President of the SNC issued a resolution reinstating Mr. Rodríguez Dañín in his post, and on that same date he was reinstated by memorandum, which the petitioner was told about on April 23, 2004, when he came to the agency; he was informed of the memorandum’s existence but refused to accept it and did not later resume the duties of his post. The State therefore argued that the petitioner received effective legal protection but did not exercise his protected right.

45.              On the exhaustion of domestic remedies, and responding to the petitioner’s argument regarding the application of the exceptions in Article 46.2.a and c, the State maintained that the Bolivian legal system affords efficient, rapid, and timely mechanisms to guarantee effective legal protection. In this regard it mentioned two remedies, i.e., criminal proceedings to determine compliance or noncompliance with decisions regarding constitutional protection and habeas corpus, and a request to the Constitutional Court for application of mandatory, progressive, and pecuniary sanctions to ensure full compliance with the obligation.

46.              By virtue of the foregoing, the State argued that remedies under domestic law have not been exhausted, because the criminal proceeding chosen by the petitioner to establish the alleged noncompliance by the President of the SNC with the constitutional protection in his favor is still pending. The State said that this remedy is in the “initial phase” (preparatory phase), and has not yet reached the stage of trial and possible remedies. It added that under the Bolivian Penal Procedure Code criminal proceedings have a maximum duration of three years, a period of time that has not elapsed in this case.

47.              In its latest communication, the State said that on January 18, 2006, after Mr. Rodríguez Dañín’s effective reinstatement, he submitted a notarized letter of resignation from the post of Socio-Environmental Manager of the SNC, and that on March 31, 2006, he was sent a memorandum of appreciation for his service to the agency with the following text: “By means of this memorandum, and considering that the position that you have held to this date is one of free appointment as provided in Law 2027 of the Civil Service Statute and the ruling of the Civil Service Office (…), your services are terminated as of this date.”

48.              The State said that as a result of this memorandum, on April 6, 2006, Architect Magy Duarte Rocabado was appointed to the post and Mr. Rodríguez Dañín filed a petition for revocation of that appointment on April 13, 2006, four days after the legal lapse expired. The State emphasized that under domestic legislation, the position of Socio-Environmental Manager is one of free appointment and dismissal.

49.              In its note of March 27, 2007, the State said that given that the SNC had been now become the Bolivian Highway Administration, payment of the salary for the months of April to August of 2006, which was ordered by the La Paz District Superior Court in another protection resolution, is now the responsibility of the liquidator of the former National Highway Service. Later, on March 5, 2008, the State said it has no economic obligation with Mr. Rodríguez Dañín because on December 20, 2007, the Constitutional Court revoked the amparo decision in his favor.

50.              The State emphasized that the mentioned Court revoked the amparo decision, based on the inadmissibility of the amparo when there are other remedies available, being in the instant case, the revocatoria and jerárquico administrative remedies, as well as the eventual claim in the ordinary jurisdiction. It argued that, in consequence, the petitioner did not exhaust the remedies available. On the State’s consideration, once the legal lapse expired, the petitioner erroneously pretended to use an extraordinary and subsidiary remedy (amparo) which is inadmissible for situations like the petitioner’s.        

IV.                ANALYSIS OF ADMISSIBILITY

A.            The Commission’s competence ratione personae, ratione materiae, ratione temporis, and ratione loci

51.              The petitioner is eligible under Article 44 of the American Convention to submit petitions to the Commission on his own behalf, because he has been under the jurisdiction of the Bolivian State from the onset of the occurrence of the alleged facts. The State of Bolivia ratified the American Convention on July 19, 1979. The Commission therefore has ratione personae competence to examine the petition.

52.              The Commission has ratione loci competence to consider the petition, because it alleges that violations of rights guaranteed in the American Convention took place in a state party to that treaty.

53.              In addition, the Commission has ratione temporis competence inasmuch as the duty to respect and guarantee the rights recognized in the American Convention was in force for the State at the time of the facts alleged in the petition.

54.              Finally, the Commission has ratione materiae competence because the petition alleges violations of rights protected in the American Convention.

B.            Other requirements for admissibility of the petition

            1.          Exhaustion of domestic remedies

55.              Article 46.1.a of the American Convention stipulates that admission by the Inter-American Commission of a petition lodged in accordance with Article 44 de la Convention requires that remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. The purpose of this requirement is to allow national authorities to be seized of the alleged violation of a protected right and, if appropriate, resolve it before it is considered at the international level.

56.              The requirement for prior exhaustion of domestic remedies applies when the domestic legislation affords adequate and effective resources for remedying the alleged violation. In this regard, Article 46.2 stipulates that the requirement shall not be applicable when domestic legislation does not afford due process of law for the protection of the right in question; or when the alleged victim has been denied access to the remedies under domestic law; or when there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. As provided in Article 31 of the Commission’s Rules of Procedure, when the petitioner alleges one of these exceptions, it shall be up to the State to demonstrate that the remedies under domestic law have not been previously exhausted, unless that is clearly evident from the record.^[2]

57.              In situations where evolution of the facts initially presented at the domestic level implies a change in the compliance or noncompliance with admissibility requirements, the Commission has held that admissibility requirements of a petition must be examined at the moment at which the Commission pronounces on its admissibility.[3]

58.              The Commission notes that throughout the processing the petitioner presented several situations that must be taken into account for defining the case’s objective and determining satisfaction of the requirement for exhaustion of domestic remedies: i) His dismissal from his post on December 10, 2003, which was ruled arbitrary by the judge in the protection action, who ordered his reinstatement, a decision upheld by the Constitutional Court; ii) The alleged noncompliance by the appropriate administrative authority with the judge’s protection order; iii) The conciliation process allegedly undertaken with the President of the SNC early in December 2005, during which the petitioner said he was forced to sign documents against his will; iv) His subsequent firing on April 3, 2006, which was ruled arbitrary by the constitutional judge considering another appeal for protection, who ordered his reinstatement and payment of the salary and benefits, which the petitioner says has not been done as of the date of this report; and v) The subsequent dismissals that occurred at the end of 2006 and in 2007.

59.              With regard to the first two points, the Commission considers that they are now outside the objective of the case because they were resolved at the domestic level, given that the respective courts ruled the alleged victim’s dismissal arbitrary and ordered his restitution, which effectively occurred in December 2005, as stated in the submissions of both parties. Moreover, the salary and benefits due the petitioner as a result of this first firing were effectively paid through the conciliation agreement, as declared by the Third Criminal Chamber of the La Paz District Superior Court in its protection ruling of September 1, 2006. 

60.              Concerning the third point, i.e., the alleged illegality of the conciliation agreement of December 2005 and the documents that the petitioner says he was forced to sign by the President of the SNC, the petitioner says he filed a complaint with the Ministry of Labor in December 2005, which led to a criminal investigation that has not been resolved at the domestic level, so the available information indicates that the exceptions set forth in Article 46.2 of the American Convention are not applicable with regard to this remedy. Since domestic legal actions are pending, the Commission considers that on this specific fact remedies under domestic law have not been exhausted, so this element of the petition is inadmissible.

61.              As for the fourth point, i.e., the second dismissal on April 3, 2006, and lack of payment of salary and benefits due the petitioner for April to August 2006, the Commission notes that the petitioner presented an amparo which was decided on his favor in first instance, and later revoked by the Constitutional Court, through an ex officio review procedure. As it was argued by the State and can be read on the text of the last decision, the petitioner presented the administrative remedy four days after the lapse expired, which also implied the legal impossibility to present his claim before the ordinary jurisdiction. Neither from the file, nor from the arguments of the petitioner can be inferred that the remedies mentioned by the State were not adequate or effective. Therefore, la IACHR considers that regarding this issue, the petitioner improperly exhausted domestic remedies

62.              Finally, as regards the fifth point, i.e., the subsequent dismissals from the post, the Commission notes that these were based on premises fundamentally different[4] from the earlier firings and that the petitioner has not presented any remedy to challenge them. Therefore, the IACHR considers that this element of the petition is inadmissible.

63.              By virtue of the foregoing considerations, the Commission concludes that: i) The petitioner’s dismissal on December 10, 2003, is no longer part of the objective of the petition because these matters have been resolved at the domestic level; ii) the dismissal of April 3, 2006, was not properly challenged through the administrative remedies that could led to the ordinary jurisdiction, and iii) Regarding the conciliation agreement of December 2005 and alleged irregularities in connection with it, and the later dismissals from the post, remedies under domestic law have not been exhausted and the Commission must therefore declare petition inadmissible on these points.

64.              In view of the foregoing, the Commission declines, based on separation of subject matter, to examine the remaining admissibility requirements established in the Convention.[5] 

V.         CONCLUSIONS

65.              Based on the de facto and de jure arguments presented above, the Commission considers the petition inadmissible in accordance with the requirements in Articles 46 and 47 of the American Convention.

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

DECIDES:

1.         To declare this petition inadmissible.

2.         To notify the petitioner and the State of this decision.

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

Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on 6^th day of March, 2008. (Signed): Paolo G. Carozza, Chairman; Luz Patricia Mejía Guerrero, First Vice Chairwoman; Felipe González; Second Vice Chairman; Sir Clare K. Roberts, and Florentín Meléndez, members of the Commission.