REPORT Nº 88/07
PETITION 630-06
INADMISSIBILITY
ERICK D. BRAVO
DUTARY
PANAMA
October 17, 2007
I.
SUMMARY
1. On
July 26, 2006, the Inter-American Commission on Human Rights
(hereinafter referred to as “the Commission”) received a petition lodged
by Andrés Pizarro Sotomayor, the lawyer of the presumptive victim and
Erick D. Bravo Dutary (hereinafter referred to as “the petitioners”) in
which they claim that Mr. Bravo was suspended from his post as
Deputy-Director of the Technical Judicial Police as a result of a
decision taken by the Attorney-General, on the basis of his supposed
improper interference in the investigation of a homicide.
The petitioners allege that Mr. Bravo, by law, could only be suspended
or removed from his post by the Attorney General, following a favorable
opinion in this regard issued by the Fourth Chamber of the Supreme
Court, a procedure that was not followed in this specific case.
2. The
petitioners alleged that Mr. Bravo has been the object of an illegal and
arbitrary suspension by the Attorney General, as a disciplinary measure,
which included the suspension of his salary, by means of Resolution No.
30 dated March 15, 2005, for a period of 18 months in violation of
Articles 8(1), 8(2)(b), (c), (d), (f), 8(4), (Right to a Fair Trial), 9
(Freedom from Ex Post Facto Laws), 11 (Right to Privacy), 21 (Right to
Property), 23 (Right to Participate in Government) and 25 (Right to
Judicial Protection) in conjunction with Article 1(1) of the American
Convention on Human Rights (hereinafter “American Convention”).
3. The
State responded to the petition on November 13, 2006 and informed the
Commission that the Attorney General, Ana Matilde Gómez Ruiloba, basing
herself on Articles 1 and 20 of Law No. 16 of 1991, requested the
President of the Fourth Chamber of the Supreme Court to order the
immediate suspension or removal of Mr. Bravo from the post of Deputy
Director of the Technical Judicial Police based on a set of facts that
alleged his improper interference in the investigation of a homicide.
The State noted that Mr. Bravo had filed a request for reconsideration
of Resolution 30, a suit before the respective administrative body, and
an amparo, all of which had been resolved against him. The State
alleged that domestic remedies had not been exhausted since a
contentious administrative proceeding is pending before the Third
Chamber of the Supreme Court.
4. The
petitioners claim, for their part, that the amparo is to be
decided rapidly, normally in 15 days and that there has been an
unwarranted delay on the part of the Supreme Court in deciding the
amparo (i.e. 23 months) and that the contentious
administrative proceeding has been pending since June 3, 2005, for over
two years, comprising an unwarranted delay in the adjudication of his
rights and constituting an exception to the exhaustion requirement for
the admissibility of a petition. The petitioners allege that Mr.
Bravo’s due process rights were violated in that the established
procedures and protections were not followed and afforded to him and
that he was removed from his post by means of the adoption of a law on
December 20, 2006, that can only be described as a retroactive
application of the law (bill of attainder), the purpose of which was to
remove him from his post by skirting the legal procedures established by
law to protect his rights.
5. After
analyzing the positions of the parties, the Commission concludes that
it has jurisdiction to decide on the complaint presented by the
petitioners and that the case is inadmissible, under Article 47 (a) of
the American Convention for failure to comply with the provisions of
Article 46 (1) (a) in that domestic remedies have not been exhausted.
II.
PROCESSING BY THE COMMISSION
6. The
original petition was filed on July 26, 2006 and then presented, in
person, by Mr. Bravo on August 21, 2006 and registered as Petition No.
630 of 2006. On September 11, 2006, the Commission communicated the
petition to the State in accordance with Article 30(3) of its Rules of
Procedure and granted the State a two-month period within which to
reply.
7. On
September 26, 2006, the Commission informed the petitioners that the
hearing they had requested during the 126º period of sessions had been
denied due to the large volume of such requests. On September 29, 2006,
October 2, and October 24, 2006, the petitioners submitted additional
information to the Commission.
8. On
November 14, 2006, the Commission received the State’s response to the
petition, which was transmitted to the petitioners on November 29,
2006. On November 29, 2006, the Commission received additional
information from the State with regard to the case and submitted three
files that were in process before the Supreme Court. On December 5,
2006, the Commission requested the petitioners to present their
observations on the State’s response within the period of one month.
On January 3, 2007, the petitioners submitted their observations to the
State’s response, and on January 9, 2007, these observations were
transmitted to the State.
9.
Simultaneously the petitioners requested precautionary measures in
anticipation of the adoption of Law Nº 53 which resulted in Mr. Bravo’s
removal from his post, skirting the procedures established by the
existing laws. The request for precautionary measures (MC 366/06) was
therefore rejected for failure to comply with the requirements. On
April 2, the petitioners presented additional evidence, including a
CD-Rom with a compilation of press clippings on the case, and a request
for information on the status of the petition. This information was
transmitted to the State on April 9, 2007.
10. The Commission received additional observations from the State
on July 5, 2007 with regard to the petitioners’ observations of April 2,
2007. The State’s response included, as attachments, the March 2, 2007
decision of the Panamanian Supreme Court, which rejected the
petitioners’ request for amparo and the May 10, 2007 decision of
the Fourth Chamber of the Supreme Court, which declared that the subject
matter presented to it for decision was rendered moot by the
promulgation of Law No. 53 of December 20, 2006, published in the
Official Gazette on December 21, 2006, by which the Attorney General
acquired the competence to appoint and remove the Director and the
Deputy Director of the Technical Judicial Police for a period of 180
days. This information was transmitted to the petitioners on July 16,
2007 and the petitioners presented their observations thereto on July
18, 2007 by electronic mail and on July 19, 2007 by courier with the
relevant annexes. The observations of the petitioners were transmitted
to the State on July 20, 2007 and no further information was received
with regards to the admissibility of the complaint.
III. POSITIONS
OF THE PARTIES
A. The
Position of the Petitioners
11. By means
of Resolution Nº 011 of December 13, 2002, Erick Bravo had been named
Deputy Director of the Technical Judicial Police, in accordance with
Article 20 of Law Nº 2 of January 6, 1999 for the fixed period of seven
years. Such appointments, for a specified number of years, pursuant to
Article 307 of the Constitution, the petitioners alleged, do not form
part of the national civil service. Consequently, the petitioners
argue, the dispositions governing the national civil service do not
apply to posts such as his.
12. On March
5, 2005, the dead body of Vanesa Márquez Fawcet was found, and a police
investigation was initiated, pursuant to Law Nº 16 of 1991, in order to
establish the cause of her death.
13. As a
result of the investigation, Inspector Rubén Darío Feuillebois, the
Chief in charge of the Division of Crimes against Life and Personal
Integrity of the Technical Judicial Police, lawyer Jaime Jácome,
Director General of the investigative body and Luis Alberto Martínez
Sánchez, Auxiliary Prosecutor of Panama, personally handed the Attorney
General, Ana Matilde Gomez Ruiloba, at 11:30 pm on March 11, 2005, a
report alleging irregular actions that were supposedly taken during the
preliminary investigation by Erick Bravo, the Deputy Director of the
Police.
14. On March
13, 2005, one day before the Attorney General requested the Fourth
Chamber of the Supreme Court to suspend and remove Erick Bravo, on the
front page of the Sunday issue of the newspaper “El Panamá América”
the headline: “The separation of a director of the PTJ will be
ordered”. The petitioners allege that the contents of the newspaper
article were totally false and that it adversely affected his honor and
reputation.
15. The
petitioners allege that the Attorney General, relying exclusively on the
information provided by the above mentioned functionaries (see
para. 13, supra) and without giving Mr. Bravo the opportunity to
respond to the charges, presented, on March 14, 2005, a request to the
Fourth Chamber of the Supreme Court for the suspension and removal of
Erick Bravo from the post of Deputy Director of the Technical Judicial
Police.
16. The
Fourth Chamber, by means of a Resolution issued on March 14, 2005
rejected the request for removal, noting that Article 42 of the Rules of
Procedure of the PTJ require that: “The removal of a functionary will be
preceded by an investigation designed to clarify the charges which are
attributed to him, in which he will be permitted to exercise the right
to defense . . .”. In this context, the Resolution noted: “In attention
to this norm, when no investigation has been carried out, the Court
considers that the Attorney General cannot remove Mr. Bravo from the
post which he is occupying.”
17. In the
Resolution of March 14, 2005, the Fourth Chamber indicated that the
measure: “ may result in the suspension of the post without salary,
among other disciplinary measures, pursuant to the provisions of Article
40 of the same Rules of Procedure, pursuant to which this Chamber finds
no objection to the ordering of the same.”
Further on, the Resolution specifies that the Fourth Chamber “has no
objection to the suspension of Mr. Bravo, should it be considered
appropriate by the Attorney General.”
18. The
following day, the Attorney General issued Resolution Nº 30 of March 15,
2005, in which she ordered the “suspension of Erick Bravo from the post
of Deputy Director of the Technical Judicial Police, until the
investigations that are designed to establish the disciplinary
responsibility that may be attributed to him shall be completed.” The
petitioners allege that this resolution applies a disciplinary sanction,
in that Article 20 of Law Nº 16 of 1991, modified by Law Nº 2 of 1999,
establishes that the Director and the Deputy Director of the PTJ “may
only be suspended or removed from their posts” pursuant to the Internal
Rules of Procedure.
19. The Fourth Chamber admitted the Attorney General’s request,
pursuant to Article 20 of Law 16. The decision states that the Attorney
General sought the suspension or removal of Erick Bravo due to his
alleged improper interference in the criminal investigation of the death
of Vanessa Marquez. The Court considers that the Attorney General’s
request is for “suspension or removal” and states that when the norm is
clear that these disciplinary measures exclude each other, as is set
forth in Article 34 of the Internal Rules of 1994, pursuant to which
they are four kinds of sanctions that may be imposed upon the members of
the PTJ: 1) private reprimand; 2) written reprimand; 3) suspension
without salary; 4) removal from the post.
20. The
Fourth Chamber stated that the Attorney General, as a special request,
asked the Court to order “the immediate suspension” of Mr. Bravo until
the issue of his removal is decided. The Court notes that this request
is “completely inappropriate” pursuant to Article 20 of Law 16. Article
20 provides that the Director and Deputy Director of the PTJ are to be
designated and removed at the discretion of the plenary of the Supreme
Court.
21. Article 20 of Law 16, however, was amended by Law No. 2 of
January 6, 1999, which provides that the Director and Deputy Director
will be designated by the President of the Supreme Court and can only be
“suspended or removed” from their posts by the Attorney General,
following the favorable opinion of the Fourth Chamber. The Court, in
its March 14, 2005 decision, then proceeds to decide whether suspension
or removal is the more appropriate measure and looks to the Internal
Rules. Article 42 of the Internal Rules provides that the removal of a
functionary must be preceded by an investigation designed to clarify the
charges and in which he is permitted the right to defend himself. Since
Mr. Bravo’s case was not investigated, the Court concludes that a
suspension would be more appropriate. Article 42 of the Internal Rules
specifically provides that an investigation must precede removal, but
there is no corresponding provision of the Internal Rules to the effect
that a suspension must be preceded by an investigation.
22. According
to the petitioners, the Attorney General issued Resolution 30 in
violation of the American Convention, in that the Resolution ordered, in
numeral 1: “To initiate a disciplinary investigation against the Deputy
Director of the Technical Judicial Police, for the purpose of
determining the existence or irregularities that could have involved the
infraction of ethical, judicial norms and the prohibitions on
functionaries of this body, according to Law Nº 16 of 1991, the Internal
Rules of Procedure of the Technical Judicial Police and the Judicial
Code, as well as in order to determine his responsibility.” The
petitioners argue that the Attorney General, on the same day that she
decreed the suspension sanction, ordered the opening of a disciplinary
investigation, for the purpose of collecting evidence that would
convince the Fourth Chamber of the Supreme Court to apply the sanction
of firing or removing the functionary. The petitioners argued that this
constitutes a second punishment for the same facts. It should be
remembered, the petitioners argued, that the first sanction, -the
suspension- was ordered without a previous hearing that would have
allowed Mr. Bravo the opportunity to defend himself.
23. The
petitioners note that Article 45 of Law 16 of July 9, 1999, provides
that when there is a complaint for alleged wrongdoing, the functionary’s
supervisor has the obligation “to hear the charges and the defense to
the charges.” In this case, they allege, the supervisor only heard the
charges and did not even communicate to Mr. Bravo the existence of
reports alleging his wrongdoing and did not give him the opportunity to
defend himself.
24. On March
16, 2005, an article was published in the edition of “Mi Diario” with
the headline: “PTJ needs a Deputy Director who is fit for the job” and
specifically affirmed that “The chief of the Department of Justice made
it perfectly clear that the best thing would be to replace Mr. Bravo
with a person from outside who would be more fit for the job.” This
behavior on the part of the Attorney General, according to the
petitioners, reveals her unusual interest in removing and replacing Mr.
Bravo, without having initiated the disciplinary investigation, as the
Organic Law of the PTJ and its Internal Rules of Procedure require.
25. On March
17, 2005, Erick Bravo was notified that the disciplinary investigation
had been ordered opened on March 15th. On that date, he
presented a writ to have the Resolution reconsidered, the only recourse
available to him, by law, to challenge the Resolution.
26. On April
5, 2005, by Resolution Nº 33, the Attorney General confirmed the
decision adopted in Resolution Nº 30 of March 15, 2005. On the same day
the investigation was initiated, Erick Bravo was given five days within
which to present his defense and the evidence he considered necessary
with regard to the facts that gave rise to this administrative
disciplinary action.
27. On June
3, 2005, the Attorney General, by means of Note PGN-SG-086-05, sent to
the Fourth Chamber the file containing the disciplinary procedure
followed against Mr. Bravo, so that the Court could decide whether or
not his removal from the post was warranted. At the time that this
petition was presented to the Commission, July 26, 2005, the Court had
not acted.
28. In
addition to the request for reconsideration, the petitioners stated that
on April 20, 2005 Mr. Bravo presented an amparo for the
protection of his constitutional rights, and, on June 3, 2005, a
complaint before the Administrative Tribunal, and they alleged in their
petition that neither of these remedies had been decided, amounting to a
denial of justice.
29. The State, in its submission of additional information to the
Commission on July 5, 2007, included the Supreme Court’s March 2, 2007
rejection of the petitioner’s request for amparo. The Supreme
Court rejected the request for amparo finding that it did not
fulfill the requisites set forth in the law.
30. The
petitioners allege that the prejudice to Mr. Bravo is aggravated by the
fact that as of the date of the present report Mr. Bravo alleges that he
is technically still in the post of Deputy Director of the PTJ, although
for over two years he has been unable to work due to the “suspension”
and he is not receiving his salary and other benefits. The petitioners
allege that Panamanian law (Article 45 of Law 16 and Article 40 of the
Internal Rules of Procedure) only permits a maximum 15-day sanction of
suspension without pay from one’s post. The petitioners argue that in
this case it constitutes an unjust and aberrant situation in that it has
lasted much beyond the 15 days permitted by law. It has been
transformed into an “indefinite” suspension without salary, a measure
that is not contemplated in Panamanian law.
31. On
December 20, 2006, the National Assembly adopted Law Nº 53 which
retroactively suspended the protections set forth in Article 20 of Law
16 of 1991 and permitted the Attorney General, for a period of 180 days,
to summarily remove the Director, the Deputy Director and the Secretary
General of the PTJ from their posts without the prior approval of the
Fourth Chamber of the Supreme Court. This Law was approved on December
20, 2006 and published in the Official Gazette on December 21, 2006, and
on the same day, the Attorney General removed Mr. Bravo from his post.
On December 26, 2006, Mr. Bravo’s lawyer filed a cause of action with
the Supreme Court requesting that Law Nº 53 be declared
unconstitutional.
32. The petitioners note that the decision of the contentious
administrative chamber (Third Chamber) of the Supreme Court is still
pending on the merits of the case. They argue that this remedy has been
pending since June 3, 2005, for over two years and that the petition
should excuse exhaustion due to the unwarranted delay on the part of the
Supreme Court in deciding the matter, pursuant to Article 46 (2)(c ) of
the American Convention. As noted by the former President of Panama,
Guillermo Endara, in the Baena Ricardo et al. case before the
Inter-American Court, “[T]he Third Section [Chamber] of the Supreme
Court [was granted competence], since it is the highest pre-established
authority in labour matters.”
The petitioners note that the Attorney General has five days to respond
to the application filed with the contentious administrative chamber of
the Supreme Court and in the instant case eight months have elapsed
without the Attorney General responding to the application. The
petitioners allege that they have filed several motions to move the
proceedings forward, but that they have been unjustifiably paralyzed.
33. The petitioners note further that with the adoption of Law Nº
53 of December 20, 2006 and the ensuing removal of Mr. Bravo from his
post, they filed an action to have both the removal and Law Nº 53
declared unconstitutional. The petitioners allege that the filing of
the unconstitutionality motion had a suspensive effect in that the
Attorney General could not resolve the request for reconsideration, and
thus the removal of Mr. Bravo, until such time as the Supreme Court
resolved the question of the constitutionality of Law Nº 53. This
judicial action also questioned the retroactive application of Law Nº 53
and the subsequent violations of Mr. Bravo’s right to due process and
non-retroactivity of the norms that prevail in the application of such
sanctions.
34. The petitioners conclude alleging that the adoption of Law Nº
53 of December 20, 2006, and the Attorney General’s Resolution Nº 56 of
December 21, 2006, constituted a retroactive application of the law and
sanctioned Mr. Bravo, by definitive removal from his post for the same
act for which he was suspended from his post, without having conducted
an investigation or provided for the necessary due process guarantees.
The petitioners allege that although the new Law granted the Attorney
General the competence to remove the Deputy Director of the PTJ, they
argue that the articles of the original Law (Law 16 of 1991) remain in
force and require an investigation and respect for due process before
sanctioning a civil servant. Also, the petitioners maintain that Law Nº
53 was applied retroactively, since it was applied to legal situations
that already existed and were covered by existing law.
35. The petitioners allege that Erick Bravo was not informed, in a
timely manner, of the charges presented against him, nor permitted to
defend himself against them, and was deprived of a complete, impartial
and objective investigation of the facts. In addition, they allege that
Mr. Bravo was publicly attacked by the communications media to the point
of questioning his fitness for a post that he had occupied, in an
exemplary fashion, for a period of two years, and that this not only
produced serious damage to his impeccable reputation and good name, but
also left him in the most deplorable state of defenselessness, in
violation of the most elemental legal and constitutional guarantee of
due process. As a consequence of the actions taken against Erick Bravo
the petitioners argue that Panama is responsible internationally for the
violation of articles 8 (right to a fair trial), 9 (freedom from ex post
facto laws), 11 (right to privacy), 21 (right to property) and 25 (right
to judicial protection) of the American Convention in conjunction with
the obligations assumed by the State under Article 1(1) thereof.
B. The
Position of the State
36. In its
response, dated November 13, 2006, the State noted that the Attorney
General sought the immediate suspension and removal of Mr. Bravo from
the post of Deputy Director of the PTJ, based on the seriousness of the
facts alleged regarding Mr. Bravo’s improper interference in the
criminal investigation of the death of Vanessa Marquez. The State
indicated that the Attorney General requested the Supreme Court to order
the immediate suspension of Mr. Bravo from his post as Deputy Director
of the PTJ until the issue of his removal from that post could be
determined, since allowing him to remain in the post would have affected
the normal development and activity of the institution, and, if he were
not removed, he could continue to improperly intervene in a criminal
investigation as sensitive as the homicide of Vanessa Marquez.
37. The State
noted that the Attorney General presented the information and evidence
to the Supreme Court. The State indicated that in response to the
Attorney General’s request for Mr. Bravo’s removal, the Fourth Chamber
of the Supreme Court, in the resolutive part of its decision, stated:
For the reasons expressed
above, the Supreme Court, Fourth Chamber of General Business,
administering justice in the name of the Republic and by authority of
the law, views favorably the Request for Suspension of the post of
Deputy Director of the Judicial Technical Police of Mr. Erick Bravo
Dutary, requested by Dr. Ana Matilde Gomez Ruiloba, Attorney General.
Consequently, by
means of Resolution 30 of March 15, 2005, the Attorney General suspended
Mr. Bravo from his post.
38. The State
requested the Commission to determine that the petition is inadmissible,
inter alia, because domestic remedies have not yet been
exhausted. In particular, the State pointed out that the Fourth Chamber
had not yet issued its decision with regard to the Attorney General’s
request for Mr. Bravo’s removal. In the recent observations from the
State received on July 5, 2007, the State informed the Commission of the
decision of the Fourth Chamber, dated May 10, 2007, whereby the Supreme
Court inhibited itself from deciding the matter, concluding that the
issue has been mooted by the adoption of Law Nº 53 of December 20, 2006,
by which the Attorney General was granted the competence to appoint and
remove both the Director and the Deputy Director of the Judicial
Technical Police (PTJ), for a period of 180 days.
39. The State
noted that on March 17, 2005, Mr. Bravo presented a request for
reconsideration of Resolution 30 that suspended him from his post,
issued on March 15 , 2005, in which an disciplinary investigation is
order for the purpose of determining the existence or not of irregular
acts that could violate ethical or judicial norms or other prohibitions
on functionaries of the Technical Judicial Police, according to Law No.
6 of 1991, the Internal Regulations of the PTJ and the Judicial Code, as
well as for the purpose of determining his responsibility.
40. The State
pointed out that on April 20, 2005, the law firm, Bravo, Dutary and
Associates presented a writ of amparo to protect constitutional
guarantees before the plenary of the Supreme Court, against Resolution
No. 30 of March 15, 2005, by which the Attorney General resolved to
suspend Mr. Bravo from his post until such time as the investigation
could establish disciplinary responsibility. In the additional
observations presented by the State on July 9, 2007, the State included
the decision of the Supreme Court of March 2, 2007, which denied the
amparo requested by the petitioner.
41. The
amparo was presented against Resolution Nº 30 of March 15, 2005,
which suspended Mr. Bravo from his post. The amparo alleged
violations of the guarantees of due process and the presumption of
innocence, set forth in various articles of the Panamanian Constitution
and also in Article 8(1) of the American Convention. The central
argument was that Mr. Bravo had been suspended from his post without
having been permitted to defend himself. The plenary of the Supreme
Court noted that the Resolution of March 14, 2005 was issued by the
Fourth Chamber of the Supreme Court and was in accord with the Attorney
General’s suspension of Mr. Bravo. The Attorney General had requested
Mr. Bravo’s removal, but the Fourth Chamber held that the removal was
not appropriate because an investigation, pursuant to Article 42 of the
Internal Rules of the PTJ had not been carried out; instead, it held
that a suspension was appropriate. Since the suspension was carried out
with the prior approval of the Fourth Chamber, the plenary of the
Supreme Court concluded that it was constitutional since Article 207 of
the Panamanian Constitution provides that amparos will not be
permitted against judgments of the Supreme Court.
42. In
addition, the plenary of the Supreme Court considered that the request
for amparo did not fulfill the necessary requisites. In
particular, the Court pointed out that the suspension was not a
disciplinary sanction but rather an administrative provisional measure
to allow for the possibility of an investigation. Disciplinary
sanctions are set forth in Article 34 (c ) of the Internal Rules of the
PTJ, whereas the administrative provisional sanctions are set forth in
Article 30(b) of the same Rules, as well as in Article 146 of Law 9 of
June 20, 1994.
The Supreme Court cited its judgment in the case of Octavio Nuñez, of
September 7, 2000 as authority for this distinction.
43. Further,
the Court stated that there was no showing of imminent irreparable harm
to merit an amparo. If the petitioner wins his case, the Court
noted, then he has the right to be restored to his post and to be paid
the salary that he was not paid. The Court stressed that what was at
issue was an allegation regarding the application of norms in the
disciplinary process which could not be considered by the plenary of the
Supreme Court because it would denature the writ of amparo,
converting it into a fourth instance recourse. If, in the application
of the law, there is an infraction of due process or errors are
committed, these are situations concerning legality and do not transcend
in importance to reach the level of violations of the constitutional
principle of guarantees of due process. If the impugned order is of an
administrative nature, the Court concluded, the individual should opt
for the contentious administrative recourse rather than an amparo.
44. The State
noted that on June 3, 2005, the law firm Bravo, Dutary and Associates,
in representation of Erick Bravo, presented a complaint before the
relevant contentious administrative (Third) Chamber of the Supreme
Court, requesting nullification of Resolution No. 30 of March 15, 2005.
45. In
summary, the State noted that the petitioners have attempted to
challenge Resolution 30 of March 15, 2005, first, by administrative
means, by presenting a cause of action to the Administrative Tribunal
and second, by constitutional means, by presenting an amparo to
protect constitutional guarantees to the plenary of the Supreme Court.
The State claimed, in contradiction to the petitioners, that the first
action has been resolved whereas the second, the State indicated, is
still pending. In its additional observations presented on July 9,
2007, the State amended its earlier position and stated that the
administrative complaint filed by the petitioner on June 3, 2005, is
still pending. By this complaint, the petitioner seeks the judicial
nullification of Resolution No. 30 of March 15, 2005, by which he was
suspended from his post as Deputy Director of the PTJ without the
requisite guarantees of due process guaranteed to him by Panamanian law.
46. The State
argued that the admissibility requirements established in Article 46 of
the American Convention have not been met, in particular, that the
domestic remedies have not been exhausted.
47. The State
argued that the exceptions to the exhaustion of domestic remedies,
established in Article 46(2) of the American Convention, do not apply in
this case, for the following reasons:
1) Panamanian
law establishes due process for the protection of the rights which it is
alleged have been violated, specifically in Law No. 6 of 1991, the
Internal Rules of Procedure of the Technical Judicial Police and the
Judicial Code, a process which to date has not yet been concluded;
2) Erick
Bravo and his representatives have been granted access to internal
remedies and have not been impeded from exhausting them, as is proven in
the files submitted by the Supreme Court,
48. In
addition, the State argued that there has not been unwarranted delay in
the petitioners’ attempts to exhaust domestic remedies. The State noted
that the petitioners had presented the following remedies to the
domestic Courts:
1) Request for Reconsideration of
Resolution No. 30 of March 15, 2005 of the Attorney General.
The purpose of this remedy was
to seek reconsideration by the Attorney General of his resolution to
suspend Mr. Bravo from his post.
The Attorney General’s Resolution No.
33 of April 5, 2005 resolved this request.
2) Administrative complaint filed
before the Third Chamber of the Supreme Court.
This remedy is to resolve the merits of
Mr. Bravo’s case and is a remedy for reconsideration of the resolution
to suspend Mr. Bravo from his post. The State argues that it has not
been resolved because Mr. Bravo presented a remedy to have Law No. 53
declared unconstitutional and that this matter must be resolved by the
plenary of the Supreme Court before this remedy can be addressed. The
request was filed on June 30, 2005 and is still pending.
3) Proceedings to determine the
suspension and removal of Erick Bravo from his post of Deputy Director
of the Technical Judicial Police before the Fourth Chamber of the
Supreme Court (Disciplinary proceedings).
By decision dated May 10, 2007
the Fourth Chamber of the Supreme Court inhibited itself from deciding
the matter on the basis that the issue had been mooted by the adoption
of Law 53 granting the Attorney General the competence to remove Mr.
Bravo from his post without the necessity of the Fourth Chamber’s
prior agreement.
4) Writ
of amparo for constitutional guarantees presented by the law
firm Bravo, Dutary and Associates before the plenary of the Supreme
Court.
On March 2, 2007, the Supreme Court
decided against admitting the amparo requested by the
petitioner. The petitioner filed the amparo to challenge the
suspension of Mr. Bravo from his post without the prior agreement of
the Fourth Chamber, in violation of two domestic norms and art. 8(1)
of the American Convention. The Court held that an amparo
cannot be used to challenge a decision adopted by the Attorney General
with the prior agreement of the Fourth Chamber of the Supreme Court.
5) Writ
of unconstitutionality.
On December 26, 2006, the petitioner
filed a writ of unconstitutionality to have Law No. 53 declared
unconstitutional by the plenary of the Panamanian Supreme Court. This
remedy is still pending.
The State concluded
that the status of these proceedings is evidence that it is carrying out
its function and obligation of administering justice, pursuant to the
guarantees of due process established in the internal norms of the
State.
49. In
addition, the State reiterated that it is complying with Article 8(1) of
the American Convention, which provides that every person has the right
to a hearing, with due process guarantees and within a reasonable time.
The State pointed out that the definition of a “reasonable time” is not
simple and that it is necessary to examine the particular circumstances
of every case. It noted that the Inter-American Court of Human Rights
shares the criteria established by the European Court of Human Rights,
that in order to determine the “reasonableness” of the time period in
question, it is necessary to consider: 1) the complexity of the case, 2)
the procedural activity of the defendant and 3) the actions of the
judicial authorities. The Inter-American Court, the State noted, added
an additional criterion: the global analysis of the proceedings must be
taken into consideration. Consequently, the State argued, “unwarranted
delay” cannot be found in a situation where the defendant has the
opportunity to access domestic remedies that may effectively resolve the
violations alleged.
50. In
addition, the State noted that the petitioners’ reference to “the
sanction of suspension” by means of Resolution No. 30 of March 15, 2005,
is erroneous. Resolution No. 30 of March 15, 2005 does not involve a
sanction, which in the final analysis, must be determined by the Supreme
Court, but rather it involves a preventive suspension from the post for
the purpose of facilitating the disciplinary investigation set forth in
Article 146 of Law No. 9 of 1994, which governs the administrative
career service. Furthermore, this provisional measure was an urgent
measure designed to avoid the possible aggravation of behavior that
violated the law and for which the defendant was accused and was
necessary to defend the integrity of the Technical Judicial Police. The
State attempted to clarify, therefore, that the provisional measure of
suspension from his post was not a disciplinary sanction.
51. The State
concluded that based on the above considerations, the Commission should
reject a possible violation by the State of the articles of the American
Convention cited by the petitioners and should consider the petition to
be inadmissible for failure to exhaust domestic remedies.
IV.
ANALYSIS CONCERNING JURISDICTION AND ADMISSIBILITY
A. Jurisdiction
1. The
Commission's jurisdiction ratione personae, ratione loci,
ratione temporis, and ratione materiae
52. The
petitioners are entitled, pursuant to Article 44 of the American
Convention, to lodge petitions with the Commission. The petition names
Erick Bravo Dutary as the alleged victim, whose rights under the
American Convention, Panama has pledged to respect and guarantee. As
for the State, the Commission points out that Panama signed the American
Convention on November 22, 1969 and ratified it on June 22, 1978.
Consequently, the Commission has jurisdiction ratione personae to
examine the petition.
53. The
Commission has jurisdiction ratione loci because the alleged
violations are said to have taken place within the territory of a State
party to the American Convention.
54. With
regard to the Commission's jurisdiction ratione temporis to
examine the petition, the facts are said to have occurred as of March
15, 2005, at which time the American Convention was in force in Panama.
55. Finally,
the Commission is competent ratione materiae, because the
petition denounces violations of human rights protected by the American
Convention.
2. Exhaustion
of domestic remedies
56. Article
46(1)(a) of the American Convention states that admission by the
Commission of a petition or communication lodged in accordance with
Article 44 shall be subject to the requirement that the 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 learn of the
alleged violation of a protected right and, in appropriate cases, to
resolve it before it is taken before an international instance.
57. The
requirement of prior exhaustion of remedies is met when the national
system is furnished with remedies that are adequate and effective to
repair the alleged violation. In this connection, the requirement to
exhaust domestic remedies, contained in Article 46(2) of the American
Convention, does not apply when there is denial of justice, viz.,
the domestic legislation of the State concerned does not afford due
process of law for the protection of the right or rights that have
allegedly been violated; the party alleging violation of his rights has
been denied access to the remedies under domestic law or has been
prevented from exhausting them; or there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies. As
indicated by Article 31 of the Commission’s Rules of Procedure, when the
petitioner contends that he or she is unable to prove compliance with
the requirement indicated in this article, it shall be up to the State
concerned to demonstrate to the Commission that the remedies under
domestic law have not been previously exhausted, unless that is clearly
evident from the record.
58. Based on
inferences from the principles of international law, as reflected in
precedents established by the Commission and the Inter-American Court of
Human Rights, it is especially important that the State against which a
claim is being lodged should invoke the plea of non-exhaustion of
domestic remedies in the early stages of the proceedings before the
Commission.
At the same time, given the burden of proof incumbent upon it in such
matters, the State that alleges non-exhaustion should point to the
domestic remedies that need to be exhausted and give proof of their
effectiveness.
59. In the
instant case, the petitioners invoked the exception established in
Article 46(2) (c ) of the American Convention, alleging that Mr. Erick
Bravo, has suffered unwarranted delay in the resolution of his claims.
As of April 6, 2007, the petitioners alleged that Mr. Bravo had
presented the following claims before the Panamanian courts that have
not been resolved:
1) Contentious-administrative
complaint of full jurisdiction before the Third Chamber of the Supreme
Court. This complaint was presented on June 3, 2005 and still has not
been resolved on the merits. It was admitted by the
(contentious-administrative) Third Chamber of the Court on November 17,
2006, but has not been acted upon despite motions to accelerate
consideration of the matter. The purpose of the remedy is to seek the
nullification of Resolution 30 which suspended Mr. Bravo from his post
and to restore the right violated.
2) Request for reconsideration and a
writ of unconstitutionality against Law No. 53, adopted on December 21,
2006. The petitioners presented a request for reconsideration and a
writ of unconstitutionality against the administrative act of the
Attorney General’s removal of Mr. Bravo from his post and for the
unconstitutionality of the adoption of Law No. 53 based on the argument
that the law cannot be applied retroactively
60. The
State argued that “unwarranted delay” cannot be found in a situation
where the defendant has the opportunity to access domestic remedies that
may effectively resolve the violations alleged. It is clear that the
above remedies could effectively resolve the violations alleged,
however, the American Convention requires that these remedies be
resolved within a reasonable time and that Mr. Bravo not be subjected to
an unwarranted delay as he attempts to vindicate his rights.
61. The
petitioners maintain that Erick Bravo continues technically in the post
of Deputy Director of the PTJ, but due to his protracted suspension, he
is not permitted to perform any of the functions of this post and he has
not been remunerated for a period of approximately two years, despite
the prescriptions of the Internal Rules of Procedure that contemplate a
“suspension without pay” for a maximum of 15 days. The State clarified,
however, that Resolution No. 30 of March 15, 2005 does not involve a
sanction, which in the final analysis, must be determined by the Supreme
Court, but rather it involves a preventive suspension from the post for
the purpose of facilitating the disciplinary investigation. Article
30(b) of the Internal Rules provides that if Mr. Bravo is absolved of
the charges pending against him that he has the right to recuperate the
salary that has been withheld and to be reinstated in his post. The
State further clarified that the suspension without pay imposed upon Mr.
Bravo was not a disciplinary sanction pursuant to Article 34(c ) of the
Internal Rules, but rather a temporal measure to permit a full
investigation.
62. The
nature of the case has changed during the time since the petition was
brought before the Commission. In August 2006, the petitioners alleged
that the Attorney General sought to remove Mr. Bravo from his post in
March 2005, but was unable to do so because of the due process
guarantees provided by Panamanian law and the applicable regulations
that required the prior approval of the Fourth Chamber of the Supreme
Court for such a removal. Lacking the requisite of a prior
investigation into the acts pending against Mr. Bravo, the Supreme Court
was unwilling to grant the necessary prior approval for Mr. Bravo’s
removal, but consented to his suspension, on March 15, 2005, from the
post to permit the carrying out of a disciplinary investigation. In lieu
of carrying out the necessary disciplinary investigation and seeking the
Fourth Chamber’s approval, the National Assembly adopted Law Nº 53 on
December 20, 2006, which empowered the Attorney General to remove both
the Director and Deputy Director of the PTJ for a period of 180 days.
Mr. Bravo was removed from his post the same day that Law Nº 53 was
promulgated. Mr. Bravo has judicially challenged the constitutionality
of Law Nº 53, but that remedy is also still pending and was not filed
until December 2006, less than one year ago.
63. The
existence of two domestic remedies that have not yet been exhausted
requires the Commission to declare this case inadmissible pursuant to
Article 46(1)(a) of the American Convention. A remedy filed by the
petitioners, regarding the constitutionality of Law Nº 53 is pending
before the Supreme Court, and also a remedy regarding the merits is
pending before the Third Chamber of the Supreme Court, the highest
judicial authority in labor matters. Consequently, the rule which
requires the previous exhaustion of domestic remedies, set forth in
Article 46(1)(a) of the American Convention, is applicable to Mr. Bravo
in this case, at least for now.
V.
CONCLUSIONS
64. Based on the arguments of fact and law set forth above
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
DECIDES:
1. To
declare the petition inadmissible.
2. To
notify the State and the petitioner of this decision.
3. To
publish this decision and include it in its Annual Report, to be
presented to the OAS General Assembly.
Done and signed
in the city of Washington, D.C., on the 17th day of the month
of October, 2007. (Signed): Florentín Meléndez, President; Sir Clare K.
Roberts, Evelio Fernández Arévalos, Paulo Sérgio Pinheiro,
and Freddy Gutiérrez,
Commissioners.
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