September 30, 1994
1. On June
10, 1987 the President of Panama's National Bar Association, Chiriqui
Chapter, presented a complaint to this Commission stating that there had
been a violation of rights protected by the American Convention on Human
Rights, particularly Articles 8 and 25, in the case of attorneys
Guillermo Mosquera Palacios, Nelson Caballero Jiménez, Elzebir Troya de
Di Vito, Rosalinda Ross de González, hereinafter termed "the
Circuit Judges," and Beatriz Méndez de Rodríguez, hereinafter
termed "the Municipal Judge," the dismissal of whom, without
due process, had also infringed the independence of the judicial branch
and the corresponding rights and guarantees.
is divided for judicial purposes into districts, circuits, and
district involved in this case has a Superior Court in which the six
circuit judges of Chiriqui Province sit‑‑judges who are
appointed and dismissed by that superior court at a meeting in the
Accord Chamber. The circuit
judges in turn meet in that room to appoint and dismiss the municipal
claim states that:
January 6, 1987, the President of the Fourth Superior Court of Justice
of the Third Judicial District, attorney Ricardo E. Jurado de la
Espriella‑‑hereinafter "the President of the Superior
Court"‑‑attempted in a telephone call to pressure the
Municipal Judge to rule in favor of one of the parties to a case within
her jurisdiction. The Judge
refused to do so.
b) In the
face of that refusal, the President of the Superior Court joined forces
with two other judges from the same court and on January 20 sent a
communication (#38) to the Circuit Judges, ordering them to apply the
disciplinary measures stipulated by law to the Municipal Judge for a
lack of respect vis‑à‑vis the President of the Court.
The circuit judges felt that they should first hear the Municipal
Judge, pursuant to Art. 32 of the Constitution, which governs due
President of the Superior Court then ordered the judges to carry out the
summary dismissal of the Municipal Judge.
Four of the six district
judges refused to do so and as a result were dismissed by means of Order
#266, which was signed by the President and two magistrates of the
Superior Court at a meeting in the Accord Room on February 5, 1987.
In the same order, the Court appointed new circuit judges, who
upon instructions from the Superior Court judges in turn dismissed and
replaced the Municipal Judge.
of internal remedies: the
plaintiffs state that they appealed the decision of the Superior Court
judges, but the plea was rejected by that Court, which granted the
corresponding appeal in the General Affairs Division of the Supreme
Court on February 27. That
appeal had not yet been resolved on the date of the claim, June 9, 1987,
despite expiry of the legal deadline.
accusation also notes that at the time they were dismissed, two of the
Circuit Judges were protected by the Maternity Leave Privilege since
less than a year had elapsed since they had borne children, whereas the
statute provides that a working mother who returns to her job after
giving birth may not be dismissed for a period of one year.
claim states that based on Art. 50 of the Constitution, a request for
the special remedy of amparo of Constitutional Guarantees was presented
to the Supreme Court against the aforementioned dismissal orders.
It was not granted, on the grounds that an ordinary remedy was in
progress in that court‑‑despite the fact that the term
allowed by law had expired and it had not yet been resolved.
claim is based on a number of factors:
the acts described here and the court order in question
constitute a direct violation on the part of the Panamanian Government,
a signatory to the American Convention on Human Rights, of the
provisions contained in Articles 8 and 25 ... by contravening the
principle of the
independence of magistrates and judges, their irremovability
without due cause, the sacred privilege of maternity, and the
universal right to due process, as mandated by the Constitution of the
Republic of Panama.
Commission transmitted the complaint to the Government of Panama, which
submitted its reply on October 16 and 19, 1987.
Government's response is divided into two parts: an introduction, which
presents constitutional norms applicable to the judiciary, and
transcribes Title VII relative to the administration of justice; and a
report addressing the specific case.
report states that:
office of judge embodied in Law 9 of 1963 was suspended by Official
Decree 140 of 1963, which says:
all officers of the court will be placed on temporary duty until
such time as a new Judicial Code shall hand down new rules governing the appointment of judges, the text of which shall regulate all
matters relative to the admission, tenure, prerogatives, sanctions, and
dismissal of such personnel. When
Official Decree 140 of 1969 took effect, all members admitted to the
judiciary were appointed without compulsory rules on competition:
accordingly they were directly and freely appointed by the
nominating officials ... who in performing this function act
independently and autonomously.
The declaration that the plaintiffs no longer occupied those
positions took place during the period in which Official Decree 140 was
b) As of
April 2, 1987 (subsequent to Order #266 for dismissal), Laws 29 of 1984
and 18 of 1986 were in effect: they
adopt the Judicial Code and restore the office of judge in accordance
with the rules embodied in Articles 198 through 215 of the National
Constitution (of 1972, amended in 1978 and 1983), constitutional
provisions that establish legal reservations.
The plaintiffs were thus "declared no longer present
in the performance of their duties by the respective nominating
of the remedies of domestic jurisdiction:
the report notes that in opposing "the administrative action
of the nominating authority," the plaintiffs:
...sought annulment proceedings against the Fourth Division of
the Supreme Court (General Matters), which were duly ruled on in a
declaration of lack of competence....leaving them the appropriate means
afforded by our law: the
remedy of unconstitutionality vs. the plenary Court (consisting of
nine magistrates...) and the administrative remedy vis‑à‑vis
the Third Contentious‑Administrative Division (consisting of three
justices who deal with contentious-administrative and labor remedies).
Consequently, the means of challenge available in our legal
system have not been exhausted...nor has the Supreme Court issued an
in‑depth opinion on the matter; so that at this stage of the
proceedings [the Commission]
is constrained from expressing an opinion prior to such pronouncements,
should any be appropriate. (Underlining
in the original text).
report also indicates the response from the Government, setting
forth its action in the case in regard to the due process
embodied in Art. 32 of the
Constitution and the interpretation of that principle in the Supreme
Court's opinion of February 20, 1984, to the effect that the
constitutional guarantee of
due process includes:
right of jurisdiction, i.e., the right of every person to appear
before the state jurisdictional organ to seek justice and the
restoration of individual rights when the person deems those rights to
have been infringed; and
right of every individual to be apprised of the arguments adduced
against his request to be heard, to defend himself, to be provided with
legal assistance, produce evidence, and obtain a judgment that will
resolve the case in timely fashion.
of the proceedings before the natural judge;
of a procedure established by law for the type of process in question,
ensuring defence in the trial, the bilateral nature of the hearing, and
the equality of the parties to the case.
(Underlining from the original text).
Government of Panama attached to its response dated October 19, 1988
several affidavits from the Secretary of the Supreme Court issued on
October 2 to the effect that:
plenary of the Court decided on February 26, 1987 to abstain in the
matter of the constitutional amparo presented against Order #266
of the Fourth Superior Court of Chiriqui "because the action that
is the subject of the accusation cannot be contested by the means
remedy of this type has been presented for such purpose to the Court's
Contentious Administrative Division 3;
July 4, 1988 decision of the General Affairs Division concerning the
remedy of rescission presented on February 26 of this year by the two
circuit judges against the dismissal, which also invokes protection of
the Maternity Law, in which it abstains from a ruling, and
recommends that this matter be referred to the proper channels;
similar decision by the General Affairs Division to abstain in
regard to the remedy of rescission presented by the two circuit judges.
those last two decisions, the Supreme Court maintains that:
decision taken by the district judges on February 5 was made
before the new Judicial Code‑‑which restored the
office of judges that had existed under Law 9 of 1963 and that was
suspended by Official Decree Nº 140 of May 30, 1969‑‑went
there was no constitutional violation in this instance because the issue
is not a penal trial but an administrative act calling for the dismissal
of public servants, so that they would have access to other means to
protect the rights that had supposedly been trampled.
has been no violation of Art. 207 of the Constitution, which sets forth
the independence of judges in their functions, since the issue is not an
order restricting the free exercise of the judicial function, but an
administrative act of the nominating agency dismissing them.
has been no violation of Art. 208 of the Constitution, which stipulates
that judges may not be dismissed or suspended or transferred except in
cases indicated in the law and with the formalities prescribed,
because this is a programmatic principle which must be developed
by means of a formal law governing its application; and although the
constitutional precept existed at the time the dismissal took place, the
law regulating the office of judges‑‑which, as noted above,
was restored on April 1, 1987‑‑had not yet been enacted.
General Affairs Court decided to abstain from considering the remedy of amparo
of constitutional guarantees presented by the judges, leaving intact the
plaintiffs' right to have recourse to such action, for the following
the respective articles would appear to assign competence to that court
in this instance, this would be a mistake, for it is not the appeal of a
correctional sanction (underlined in the opinion)
that is at issue, but "a dismissal, the administrative act
of the nominating authority which is not subject to the rules of due
process because it does not comprise a penal proceeding, a correctional
measure, or a policy matter as cited in Art. 32 of the
has been no violation of Art. 207 of the Constitution:
that article addresses the "independence of judges in regard
to the powers conferred on them by the Constitution and the law in
matters of jurisprudence on which they draw as a basis for handing down
an opinion, unswayed by the dictates of higher officials, and subject
only to the provisions of the Constitution and the law.
Such independence does not obtain in administrative matters.
The independence of judges ... constitutes a guarantee or minimum
requirement for the proper conduct in imparting justice, which places
justices and judges in the margin of politics and the dictates of other
regard to Article 208 of the Constitution, that which was set forth in
its decision as regards the writ presented by the Judges is repeated,
which is summarized above in 7 (d).
10. The plaintiffs'
representative, speaking also as President of the Chiriqui Chapter of
the National Bar Association, responded to the government's remarks,
cited above. After
restating the events giving rise to this case, he spoke at length of the
exhaustion of domestic remedies.
In so doing, he explained and documented the presentation of:
remedies of repeal based on unconstitutionality presented to the
Fourth Superior Court, its rejection thereof, and the appeal that was
also rejected by the General Affairs Division of the Supreme Court;
remedy of amparo (Art. 50 of the Constitution), presented to the Supreme
Court in plenary, and the rejection thereof based on the existence of an
appeal which was pending before the General Affairs Division of that
Court; and a discussion of the impossibility and futility of further
recourse through contentious administrative channels for the reasons
stated in the following point.
11. He considers that
the contentious‑administrative route would be useless because:
contentious‑administrative remedy presumes the existence of
Court had issued an opinion that dismissal of the judges was legal,
alleging that Decree Nº 140 had suspended Law Nº 9 (which embodies and
regulates the rights of judges).
the Court's position rules out the possibility of any alternative
proceedings since, on the one hand, this would require recourse to a
remedy which presupposes an illegal act; and, on the other, this court
has already pronounced in favor of the legality of that act, i.e., the
12. The claimant
presents the following summary of his legal arguments:
Constitution and the Pact of San Jose guarantee the right to judicial
independence, the right to due process, the right to be heard, the right
to be protected from arbitrary dismissal, and other judicial safeguards
Nº 140‑1969 was rescinded in 1972 upon the adoption of the new
Constitution. Articles 192
and 193 thereof take precedence over the suspension of key provisions of
Law 9‑1963, regulating the office of judges, prescribed in that
suspension of the provisions of Law 9 was nullified, and Law Nº 9 again
entered into full effect. He
bases his argument, inter alia, on Art. 35 of Panama's Civil Code, which
The Constitution is a law that reforms and rescinds
pre‑existing legislation. All
legal provisions issued prior to the Constitution the tenor of which is
clearly contrary to the letter and spirit thereof shall be set aside as
Supreme Court has upheld the action of the Fourth Superior Court, even
going to such extremes as to contradict its own previous decisions
regarding the independence of judges.
of the judges was not part of a program to restructure the judicial
system but the result of arbitrary action on the part of the Superior
Court, upheld by the Supreme Court.
13. The Government
responded to the petitioners' observations on June 16, 1988.
In its response, the Government:
- repeated that not all of the domestic remedies have been
exhausted because the General Affairs Division of the Court refused to
consider the remedy, maintaining that it was not a correctional sanction
(which would be within its purview),
but an administrative act, which is the province of the
- furthermore, the suspension established by Decree 140 did not
apply to the entire contents of Law 9 of 1963, but to some of its
- accordingly the Government requests a verdict of
inadmissibility to be issued, pursuant to Art. 46 of the Convention and
Art. 37 of the Regulations.
14. To provide the
Commission with an example, and without thereby implying an
acknowledgment of admissibility, the Government also adduces that:
- the lack of grounds of a law, as stated in Art. 35 of the Civil
Code (see 12.3 above), must be established by the Supreme Court, the
organ that exercises centralized control of constitutionality; and the
Supreme Court has not abolished Decree Nº 140 by means of a
constitutional judgment. Accordingly,
it was still in effect at the time the case started.
15. [The Government]
maintains that the petitioner is attempting, by means of this case, to
pit the Commission against the Panamanian Government for political
16. On August 22,
1988, the petitioners presented their comments on the Government's reply
of June 16, repeating
- that domestic remedies had been exhausted, given the multiple
and related rejections their various recourses to the Supreme Court had
- and that the Supreme Court's statement that the guarantees of
judicial independence and stability and due process established in the
Constitution comprise a programmatic principle that is not applicable to
this case because the office of judge is not regulated also constitutes
a violation of the American Convention on Human Rights requirement that
internal legislation be brought into line with the provisions of the
17. In a hearing
before the Commission at its 74th session, the petitioners asked the
Commission to issue an opinion, based on Art. 37.2 of its Regulations,
to the effect that
the phrase "shall not be applicable" in Art. 37.2
excludes the requirement in paragraph 1 concerning the exhaustion of
remedies under domestic jurisdiction, and the petitioners are not
obliged to invoke and exhaust internal resources that are theoretically
available to them if the conditions cited in Art. 37.2 obtain.
position adopted in this respect is that "...petitioners addressing
international fora are not under obligation to invoke internal remedies
theoretically available to them if attempts to do so would, from a
practical standpoint, be futile."
They cite international jurisprudence and previous resolutions of
the Commission in this respect. (Rep.
29/86, Case 9102, Nicaragua; Rep. 20/87 Case 9449, Peru; and Rep. 17/87
Case 9426 Peru.)
The claimants' response to those arguments follows.
...In rejecting the remedy invoked by the petitioners, the
Supreme Court (General Affairs Division) declares itself incompetent and
suggests that the matter lies within the purview of
contentious‑administrative affairs, at the same
time stating that "the Division (General Affairs), following
principles established by the plenary of the Court, considers that there
has been no violation of Article 208 of the National Constitution."
The Court's position leaves no room for any alternative
proceedings whatsoever since, on the one hand, this would require
invocation of a remedy which presupposes an illegal act; and, on
the other, the Court has already issued an opinion endorsing the
legality of that act, i.e., the dismissals.
The Fourth Superior Court predicated its rejection of the
annulment and appeal on the premise of its incompetence, stating that
the General Affairs Division of the Supreme Court was the competent
judicial body to hear the question of arbitrary dismissal.
Once again, the petitioners followed the procedures indicated by
the Panamanian tribunals to no avail.
The Government based its statement to the effect that domestic
remedies had been exhausted on the failure of the petitioners to invoke
the remedies of unconstitutionality and contentious business falling
within the competence of the administrative courts.
Our response to the latter is included in the statements made in
the preceding paragraph. Without
prejudice to the intention to invoke the remedy of unconstitutionality
as the only channel whereby the petitioners might have elicited a
substantive decision regarding the unlawful and arbitrary dismissals,
previous cases brought before the Supreme Court demonstrate the
contrary. In circumstances
almost identical to the case of the petitioners, the Supreme Court ruled
on the suit brought by attorney Luis A. Esposito against unlawful
dismissal by the Fourth Superior Court in David, Province of Chiriqui
(verdict of February 13, 1978), in which a petition for amparo of the
same type as the one submitted by the claimants was presented and
rejected by the Court.
At the same time when the Court rejected the remedy of amparo
sought by the petitioners, alleging that recourse thereto was not
appropriate because of the existence of an ordinary appeal which was
pending, one of the divisions of that same Court before which the
aforementioned recourse was pending allowed the deadline established by
law for deciding on the remedy to lapse; and that division took no
action until the claimants brought the present case before the
Inter‑American Commission on Human Rights, at which time it issued
an opinion rejecting the action on the grounds that it did not fall
within the division's competence.
18. On January 25,
1989 the petitioners proposed as an option that the mechanism envisaged
in Art. 45 of the Commission's regulations be activated to reach an
amicable solution between the parties.
Notice of that petition was sent to the Government with a request
that it answer within 30 days. The
Government replied on March 2, stating once again that it considered the
claim inadmissible because all of the remedies of domestic jurisdiction
had not been exhausted.
19. On June 19, 1990
the petitioners repeated their request that:
the claim be admitted; the Commission exhaust every means at its
disposal to arrive at an amicable solution; and the restitutional and
reparational measures requested previously be taken into account.
The petition was then transmitted to the Government of Panama,
which reiterated its previous position on October 10, 1989.
WITH RESPECT TO ADMISSIBILITY:
20. That the petition
was submitted within the period allotted and in accordance with the
formal conditions prescribed by Art. 32 of the Commission's Regulations.
21. That the
petitioners presented the remedy of rescission for decision of the
Superior Court and, upon its rejection thereof submitted an appeal, as
instructed by that body, to the General Affairs Division of the Supreme
22. That given that
Division's delay in rendering a judgment, they lodged the remedy of
amparo with the plenary of the Court, but it was rejected on the premise
that the regular remedy was still being processed.
23. That in
considering the special remedy, the Supreme Court considered that the
dismissal had been an administrative‑‑not a
correctional‑-act, thus eliminating the possibility of a
motivating causal connection between the decision of dismissal and the
conversation between the Municipal Judge and the President of the
Superior Court, and the order for dismissal due to lack of respect, sent
by that court to the circuit judges and their refusal to hear the case.
That in its analysis, the Supreme Court had closely examined the
substance of the matter and had issued its decision.
24. That in addition,
the statement that the Official Order was in force and applicable to the
case‑‑and the guarantees of tenure and protection on behalf
of the dismissed judges were thus suspended‑made it futile to
institute the contentious matter falling within the competence of the
25. That Art. 212 of
Panama's Constitution, pursuant to applicable principles of
international law, establishes as a tenet of procedural guidance the
of paperwork, procedural economy, and the elimination of formalities.
object of the suit is acknowledgment of the rights set forth in
WITH RESPECT TO THE SUBSTANCE:
26. That the current
suspension of the guarantees of tenure and independence of judges,
ordered by Decree Nº 140 of 1969, on which the decision to dismiss the
circuit judges and the Municipal Judge was based, and its
confirmation‑‑implicit in the Supreme Court's decision to
abstain from reviewing the case‑‑leave the dismissed judges
in a defenseless situation and deprived of the guarantees set forth in
Articles 8, 23, and 25 of the American Convention on Human Rights.
27. That the
provisions of Panama's Constitution call for and establish a system of
guarantees in respect to due process and judicial independence that was
regulated by Law 9 of 1963; and that suspension of the pertinent
provisions for eighteen years (from 1969 to 1987) represents an
involution that threatens the rights recognized in the American
Convention, to which Panama is a State Party‑‑particularly
the obligation to bring domestic legislation in line with the principles
and norms established in that Convention.
Article 2. Duty to
Adopt Domestic Law Provisions
Where the exercise of any of the rights or freedoms referred to
in Article 1 is not already ensured by legislative or other provisions,
the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effect to
those rights or freedoms.
28. That this
situation likewise prevents the enjoyment of the right recognized in
Article 23.1.c of the Convention "to have access, under general
conditions of equality, to the public service of his country,"
because that equality must be backed up by guarantees assuring that it
29. Both the Municipal
Judge and the Circuit Judges were penalized by their dismissal without
being heard and as a consequence of acts that have at no time been
denied by the Government of Panama.
30. That the
importance of these acts is augmented by the need for all states to
maintain an independent judiciary that is able to provide guarantees
ensuring the enjoyment of the rights established in the Convention.
SUBMISSIONS RECEIVED PURSUANT TO TRANSMISSION OF THE ARTICLE 50
31. On January 5,
1991, the Government of Panama filed observations in response to the
report prepared and adopted by the Commission pursuant to Article 50 of
the American Convention. The
Government informed the Commission that measures had been taken to
reform the procedures for appointing all judges as a means of restoring
confidence in the judicial system. Candidates for judicial office under the new system were
evaluated through a merit-based system.
The Government reported that the petitioners in this case had
been considered under this new system.
As a result, petitioners Nelson Caballero and Elzebir Troya de Di
Vito had been selected for judicial positions.
Two additional petitioners, Guillermo Mosquera and Beatriz Mendez
de Rodriguez, were working for other Government offices and were not
considered. The fifth
petitioner, attorney Rosalinda Ross de Gonzalez, had been considered as
a candidate, but had not been appointed.
32. On April 30, 1991,
petitioners responded to the above submission, maintaining that the
Government's actions did not comply with the Commission's
asserted that the Government of Panama failed to implement legislative
measures to establish the stability and independence of the judiciary.
Rather, they alleged, laws had been passed having a contrary
effect. They noted the
passage of Cabinet Decree #17 of January 24, 1990 and Law #25 of
December 1990 which vest complete discretion in the judicial hierarchy
to appoint and remove judges, in contravention to the right to due
process and irremovability absent just cause set forth in the
petitioners' representatives also maintained that although two of the
former judges had been reappointed to judicial positions, none had been
placed back in the exact positions from which they had been dismissed.
Moreover, petitioners assert that attorneys Caballero and Troya
were reappointed through the competitive selection process, not as a
result of measures taken to replace them in their previously held
emphasized that none of the professional and economic damage sustained
as a result of the summary dismissals had been repaired.
33. On July 8, 1991,
the Government submitted a lengthy elaboration of its observations on
the case. First, the Government agreed that the firing of these judges
by authorities of the previous administration had constituted a
violation of internal law. The
Government stated that, in taking steps to reform the judiciary, it had
taken into account the situation of judicial officers who had been
unfairly dismissed or sanctioned by the former regime.
Of the twelve members affected (including the petitioners), seven
had been reinstated or placed in similar judicial positions.
The Government repeated that two of the petitioners in this case
had been reintegrated into the judiciary, and two others were serving in
different government positions. The
fifth petitioner, Rosalinda Ross de Gonzalez, had not been reappointed
because of complaints previously filed against her by litigants.
34. The submission
included a compilation of laws and regulations elaborated and presented
by the Supreme Court as a legislative initiative to strengthen the rule
of law, guarantee the independence of the judiciary and improve the
judicial process. The
Government indicated that it was taking measures to legislatively ensure
the independence of the judiciary in conformity with the Constitution,
and stated that petitioners' interpretation of Cabinet Decree 17 and Law
25 was incorrect. The
Government expressed that, as the violations complained of in this case
were caused by actions of the previous regime in the first months of
1987, the Commission's consideration of the violations in 1990, after
the return of democracy to Panama, was untimely and unfair.
Given the difficult economic situation in Panama, and given that
those responsible for the violative acts were part of a prior regime
that had acted without legitimacy, the Government argued that it had no
ability or obligation to repair the economic damage sustained by the
35. Pursuant to a
requested extension of time, the petitioners responded to the
Government's elaborated observations on December 16, 1991.
The response was transmitted to the Government on June 30, 1992
(following a requested translation into Spanish).
Petitioners first reported that the Supreme Court of Panama had
issued an opinion on June 22, 1991, concerning the allegedly
unconstitutional firing of Rosalinda Ross de Gonzalez.
The Court's decision characterized the Constitutional provision
at issue as having been suspended and inapplicable at the time of her
firing, but set forth that the Superior Court had accused her
"without legal foundation," and without indicating a
justifiable basis. Ms. Ross
had not, however, been reappointed to her previously held position.
Petitioners emphasized that the current Government has a
continuing obligation to repair the violations concerned, regardless of
whether they were committed by the previous regime.
36. A hearing
concerning this stage of the case was held during the Commission's
February, 1992 period of sessions.
Representatives of both parties were present.
37. By a note of
September 4, 1992, the Commission requested that the Government present
any information deemed pertinent to the petitioners' response within 30
days. The Government's
communication, dated September 14, 1992, principally reiterated points
raised in previous submissions, and during the hearing held on this
38. Article 51 of the
American Convention states that when the Commission sets forth its
opinion on a question presented, it may also recommend that the state
concerned take certain "measures that are incumbent upon it to
remedy the situation examined."
After the period prescribed for such measures to be taken has
expired, Article 51.3 states that the Commission shall decide
"whether the state has taken adequate measures and whether to
publish its report."
39. The submissions of
the Government indicate, on the one hand, that it has done everything
required to repair the violations in this case.
The Government asserts that it has taken measures to reform the
system for appointing judges, as well as legislative measures to
reestablish the independence of the judiciary.
Two petitioners were reappointed to judicial positions, two had
taken other government positions, and one was not reappointed because
litigants had lodged complaints against her.
On the other hand, the Government continues to maintain that for
the Commission to hold it responsible for the violations committed by a
previous regime would be both inappropriate and unfair.
40. As to the issue of
compliance, it appears from the submissions of the parties that Panama
has implemented a merit-based system for the selection of judges.
Two of the petitioners, Nelson Caballero and Elzebir Troya de Di
Vito, have been reinstated in judicial positions.
Further, the Commission is aware that a number of legislative
measures were initiated with the aim of reestablishing the independence
of the judiciary.
41. While the
Commission has taken note of and commends the various legislative
efforts initiated and pursued by the Government, the critical importance
of a stable and independent judiciary requires that these measures be
fully implemented. The Commission recognizes that such a process may not be
accomplished immediately. However,
the measures recommended to reinstate and compensate the petitioners
could and should have been undertaken and realized expeditiously.
It appears that three of the petitioners have yet to be offered
reinstatement, and none have received any compensation for the economic
and professional harm they sustained as a result of the violations in
42. The Government of
Panama has maintained throughout the processing of this case that, while
they have taken the measures required to fulfill the Commission's
recommendations, the responsibility for the violations rested with a
previous administration. In fact, there was continuity in the administrative apparatus
of the state during the time in question.
Wholly aside from that, the Commission observes that Article 1 of
the American Convention sets forth the undertaking of States Parties
first, to respect the rights and freedoms recognized, and second, to
ensure the free and full exercise of those rights.
The latter obligation refers to the state's duty to prevent,
investigate and punish human rights violations.
The consequence of this duty is the continuing responsibility of
the state to "attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation of
human rights." (Velásquez
Rodríguez Case, Judgment of July 29, 1988, para. 166.)
43. The Commission
hereby reiterates the fundamental point that the responsibility of a
state for human rights violations is of a continuing nature.
The Commission finds the language adopted by Inter-American Court
in the Velásquez Rodríguez case particularly applicable to this case:
According to the principle of continuity of the State in
international law, responsibility exists both independently of changes
of government over a period of time and continuously from the time of
the act that creates responsibility to the time that the act was
declared illegal. The
foregoing is also valid in the area of human rights although, from an
ethical point of view, the attitude of the new government may be much
more respectful of those rights than that of the government in power
when the violations occurred.
(Judgment of July 29, 1988,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
the Government of Panama bears responsibility for the facts denounced in
this case: the firing of Circuit Judges Guillermo Mosquera, Nelson
Caballero, Elzebir Troya de Di Vito and Rosalinda Ross de Gonzalez on
February 5, 1987, and of Municipal Judge Beatriz Mendez de Rodriguez on
February 8, 1987. These
actions constituted violations of the right to judicial guarantees and
the right to have equal access to the public service of one's country,
respectively set forth in Articles 8 and 23.1 of the American
Convention, for which the Government of Panama bears responsibility.
the suspension from 1969 to 1987 of the Constitutional provisions
establishing a system of guarantees concerning due process and judicial
independence constituted a violation of the Article 2 obligation to
adopt such domestic legal measures as are required to give effect to the
rights and freedoms recognized in the American Convention.
recommend to the Government of Panama that it take the necessary
reinstate those petitioners who are not currently serving in the
judiciary to the judicial positions previously held, or to positions
compensate each of the petitioners for economic and professional harm
sustained as a consequence of the violation of their human rights under
Articles 8 and 23.1 of the American Convention;
continue pursuing the reestablishment and safeguarding of the
independence and stability of the judiciary through legislative measures
and other action.
4. To publish this report, pursuant to Article 48 of the Commission's Regulations and Article 51.3 of the Convention, because the Government of Panama did not adopt measures to correct the situation denounced within the time period.