Baena Ricardo et al. Case, Judgment of February 2, 2001, Inter-Am Ct. H.R. (Ser. C) No. 72 (2001).


 

 

In the Baena Ricardo et al. case,

 

The Inter-American Court of Human Rights (hereinafter the Court, the Inter-American Court, or the Tribunal), composed of the following judges:

 

            Antnio A. Canado Trindade, President

            Mximo Pacheco-Gmez, Vice-President

            Hernn Salgado-Pesantes, Judge

            Oliver Jackman, Judge

            Alirio Abreu-Burelli, Judge

            Sergio Garca-Ramrez, Judge, and

            Carlos Vicente de-Roux-Rengifo, Judge

 

also present,

 

            Manuel E. Ventura-Robles, Secretary and

            Renzo Pomi, Deputy Secretary

 

in accordance with Articles 29 and 55 of the Rules of Procedure of the Court (hereinafter the Rules of Procedure), delivers the following judgment on the instant case.

 

 

I

INTRODUCTION OF THE CASE

 

1.         On January 16, 1998, the Inter-American Commission on Human Rights (hereinafter the Commission or the Inter-American Commission) referred to the Court a complaint against the Republic of Panama (hereinafter the State or Panama), which derived from petition number 11.325, received by the Secretariat of the Commission on February 22, 1994.  In its application, the Commission invoked Articles 50 and 51 of the American Convention on Human Rights (hereinafter the Convention or the American Convention) and Articles 26 et seq. of the Rules of Procedure.  The Commission submitted this case in order for the Court to decide whether or not Panama had violated Articles 1(1) (Obligation to Respect Rights);  2 (Domestic Legal Effects);  8 (Right to a Fair Trial);  9 (Freedom from Ex Post Facto Laws);  10 (Right to Compensation);  15 (Right of Assembly);  16 (Freedom of Association);  25  (Right to Judicial Protection), and 33 and 50(2) of the Convention, as a result of

 

the events that occurred as of December 6, 1990, and especially as of December 14 of said year (, date), when Law N 25 was passed [on the basis of which] 270 government employees who had participated in a demonstration for labour rights, and who were accused of complicity for perpetrating a military coup, were arbitrarily dismissed.  After [the arbitrary dismissal of said workers], in the procedure pertinent to their complaints and demands, a number of violations of their right to the due process and to judicial protection were committed.

 

2.         In like manner, the Commission requested the Court to declare that Law 25 and the rule contained in Article 43 of the Constitution of Panama were contrary to the Convention, since they permitted the retroactive enforcement of the laws and that, consequently, they should be modified or repealed pursuant to Article 2 of said Convention.  The Commission also requested the Court to require the State to re-establish the 270 workers in the exercise of their rights and to make reparations to and compensate the victims or their families for the acts committed by its agents, as established in Article 63(1) of the Convention.

 

3.         Lastly, the Commission requested that the State should be condemned to pay the costs and expenses of the proceeding.

 

4.         The 270 workers that the Commission considers have been the victims in this case are:  Leonidas A. Baena Ricardo, Alfredo Berrocal Arosemena, Francisco J. Chacn, Arstides Barba Vega, Salvador Vela, Eugenio Delgado, Juan O. Sanjur. Porfirio Real, Luis del Carmen Melgarejo Nez, Juan de Gracia, Csar Aparicio Aguilar, Fernando Dimas, Eugenio Tejada, Felipe Argote, Luis Cabeza, Rolando Graham, Rigoberto Enrquez, Ilda Ortega, Ismael Campbell, Carlos Henry, Toms Morales, Daniel Jos Health, Maricela Rodrguez, Miguel Martnez, Carlos Archibold, Gabino Young, Sergio Marn, Jaime Legal, Enrique Jimnez, Luis Martnez, Jos Corvalan, Fernando Hernndez, Militza de Justavino, Andrs Guerrero, Marco Moscoso, Hildebrando Ortega, Sal Quiroz, Enrique Silvera, Elas Manuel Ortega, Euribiades Marn, Domingo Montenegro Domnguez, Csar Augusto Contreras Prez, Marina Elena Villalobos, Eduardo Cobos, Iraida Castro, Eduardo Williams, Ricardo Simmons, Rolando Miller, Yitus Henry, Guillermo Torralba, Eleno Garca, Alfonso Chambers, Manuel Snchez, Francisco Segura, Jorge Cobos, Jorge Murillo, Ricardo Powel, Antonio Murez, Mara Snchez, Lidia Marn, Gustavo Mendieta, Carlos Mrquez, Hermes Marn, Gustavo Martnez, Alejandrina Gordon, Leonel Angulo, Luis Estribi, Carlos Catline, Orlando Camarena, Errol Vaciannie, Regino Ramrez, Carlos Mendoza, Luis Coronado, Ricardo Rivera, Rolando Roa, Walters Vega, Modier Mndez, Tilcia Paredes, Alexis Daz, Marisol Matos, Rigobeno Isaac, Jorge Aparicio, Ramiro Barba, Eugenio Fuentes, Algis Calvo, Marcos Tovar, Elberto Cobos, Yadira Delgado, Mireya Rodrguez, Ivanor Alonso, Alfonso Fernndez, Rodolfo Campos, Nemesio Nieves, Judith Correa, Edgar de Len, Arnoldo Aguilar, Marisol Landao, Wilfredo Rentera, Segismundo Rodrguez, Pedro Valdez, Ricardo Guisepitt, Javier Muoz, Marcos Guerrero, Nicols Soto, Ernesto Walker, Adela De Gndola, Vctor Julio Carrido, David Clavo, Germn Glvez, Aldo D'andrea, Jorge Rivas,  Hugo Prez, Dimedes Romero, Paulino Villareal,  Euclides Madrid,  Nelson Alvarado, Arturo Gonzlez, Aurelio Gonzlez, Miguel Prado P., Roberto Guerra, Csar De Ovaldia, Luis Bedoya, Jos Guaitoto, Toms Gonzlez, Florentino Cerrin, Carlos Philips, Rmulo Howard, Alexis Caas, Nelson Corts, Roselio Luna, David Jan, Jos Prez, Luis Crdenas, Jorge Alegra, Andrs Alemn, Perlina De Andrade, Luis E. Anava, Santiago Alvarado, Javier Atencio A., Vctor Arauz, Pedro Atencio, lvaro Arauz, Rubn Daro Barraza, Carlos Beamont, Samuel Beluche, Andrs Bermdez, Miguel Bermdez, Luis Benuil, Alba Berrio, Marcos Bracamaya, Mario Brito, Jos Blanco, Vctor Bock, Vctor Buenao, Jaime Batista, Heliodo Bermdez, Luis Batista, Jaime Camarena, Juanerje Carrillo, Robustiano Castro, Ladislao Caraballo, Reynaldo Cerrud, Manuel Corro, Minerva De Campbell, Xiomara Crdenas, Cayetano Cruz, Luciano Contreras, Nataniel  Charles, Domingo De Gracia, Fernando Del Ro G., Antonia De Del Vasto, Manuel Del Vasto, Roberto Escobar, Csar Espino, Jaime Espinosa, Jorge Ferman, Julio Flores, Alexis Garibaldi, Eduardo Gaslin, Rolando Gmez, Antonio Gonzlez, Benito Gonzlez, Eric Gonzlez, Ral Gonzlez R., Evangelista Granja, Rubn Guevara, Alfredo Guerra, Esther Mara Guerra, Rita Guerra, Melva Guerrero, Anbal Herrera, Flix Herrera, Magaly De-Herrera, Manuel Herrera, Pompilio Ibarra, Daniel Jimnez, Rolando Jimnez, Jos A. Kelly, Eric Lara, Dennis Lasso, Dirie Lauch, Luis A. Laure, Gilberto Leguizamo, Darien Linares, Csar Lorenzo, Zilka Lou, Jorge Martnez, Manrique Meja, Luis Miranda, Oran Daro Miranda, Luis Montero, Valentn Morales, Natalio Murillo, Ral Murrieta, Estabana Nash, Amed Navalo, Sergio Ochoa, Antonio Ornano, Gustavo Ortiz, Ornar Oses, Luis Osorio, Miguel A. Osorio, Evelio Otero, Esteban Perea, Medardo Perea, Cristina Prez, Fredy Prez, Rubn Daro Prez, Mario Pino, Giovani Prado, Pablo Prado, Toms Pretel, Juan B. Quijada, Donay Ramos, Dorindo Ros, Iris Magaly Ros, Ricardo Ros, Syldee Ros, Vladimir Ros, Luis Risco, Alidio Rivera, Amos Daro Rodrguez, Anelly De Rodrguez, Isac M. Rodrguez, Ernesto Romero, Sandra L. De Romero, Ramn Ruiz, Benigno Saldaa, Jaime Salinas, Ilka De Snchez, Luis Snchez, Jos Santamara, Cristbal Segundo, Toms Segura, Enrique Sellhom, Teresa De Sierra, Sonia Smith, Elvira De Solrzano. Luis Sosa, Vctor J. Soto, Rafael Tait Yepes, Josefina Tello, Daniel Trejos, Ricardo Trujillo, Luis Tun, Marisina Ubillus, Manuel Valencia, Rodolfo Vence, Jos Villareal y Rodolfo Winter.

 

II

COMPETENCE

 

5.         Panama has been a State Party to the American Convention since June 22, 1978 and recognised the jurisdiction of the Court on May 9, 1990.  Therefore, the Court is competent to hear the instant case.

 

III

PROCEEDING BEFORE THE COMMISSION

 

6.         On February 22, 1994 the Secretariat of the Commission received a petition from the Panamanian Human Rights Committee on behalf of 270 public employees dismissed as a consequence of Law 25 of December 14, 1990. On July 6, 1994 the Commission informed the State of the petition and requested it to present the corresponding information within 90 days.

 

7.        On July 24 and October 19, 1994, the Commission sent the State additional information presented by the complainant and, in the latter communication, requested it to adopt the pertinent measures to present all its reports within 60 days.

8.         On September 9, 1994, Panama presented its reply to the Commission, which forwarded it to the complainant on October 25, 1994, and on January 24, 1995, the complainant presented its observations to this document, which were forwarded to the State on January 31, 1995.

 

9.         On February 14, 1995, the State presented its observations to the additional information that the Commission had forwarded on October 19, 1994, and on March 1, 1995, the Commission forwarded them to complainant.

 

10.       On April 7, 1995 the Commission made itself available to the parties in order to reach a friendly settlement. Although both the State and the petitioners informed the Commission that they were interested in reaching a friendly settlement, after almost three years during which three meetings were held to try and reach a settlement, "the Commission considered that the action for settlement had been exhausted and initiated the legal proceeding."

 

11.       On October 16, 1997, during its 97th session, the Commission approved Report No. 37/97, which was forwarded to the State on October 17, 1997.  In this report, the Commission concluded:

 

148.         That the acts of the State public authorities by which the Legislative Assembly adopted Law 25 of December 14, 1990, the Judiciary declared that it was almost completely constitutional and the Executive applied it and on the basis of which the human rights of the petitioners were violated and all their claims were rejected are incompatible with the provisions of the American Convention on Human Rights.

 

 149.        That, with regard to the 270 persons in whose name this case has been filed, the State of Panama has failed to comply with its obligations under the following provisions of the American Convention on Human Rights:  ArticIe 8 (Right to a Fair trial), Article 9 (Freedom from Ex post Facto Laws), Article 10  (Right to Compensation), Article 15 (Right of Assembly), Article 16 (Freedom of Association), Article 24 (Right to Equal protection), and Article 25 (Right to Judicial Protection).

 

150.  That with regard to these same persons the state of panama has failed to comply with its obligation to recognise and guarantee the rights contained in Articles 8 and 25, in relation to Article 1(1) and 2 of the American Convention on Human Rights, to which Panama is a State Party.

 

151.         That the state has not complied with the provisions of Article 2 of the American Convention on Human Rights, since it has not adapted its legislation to the provisions of the Convention.

 

Moreover, the Commission determined:

 

1.             To recommend to the Panamanian State that it should order the reinstatement of the workers dismissed under Law 25 of December 14, 1990 identified in paragraph 5 of this report, in their respective positions or in others with the same conditions as those in which they were working at the time they were dismissed;  that it should recognise their back pay and other fringe benefits to which they have a right;  and that it should pay them compensation for the damage caused by their unjustified dismissal.

 

 

2.             To recommend to the State that, pursuant to the constitutional and legislative procedures in force, it should adopt all necessary measures to make the rights and guarantees contained in the American Convention on Human Rights fully effective.

 

3.            To recommend to the State that it should modify, repeal or permanently annul the said Law 25.

 

4.            To recommend to the State that the expression "to punish without prior trial" in Article 33 of the Panamanian Constitution should be duly interpreted, in order to comply with the obligation assumed by the Republic of Panama to adapt the provisions of its legislation to those of the Convention.

 

5.            To recommend that the rule contained in Article 43 of the Panamanian Constitution that permits ex post facto laws for reasons of "public order" or "social interest", should be amended and/or interpreted, pursuant to Article 9 of the American Convention, to the effect that "no one shall be convicted of any act or omission that did not constitute a criminal offence, under the applicable law, at the time it was committed."

 

6.            To forward this report to the State, which shall not be authorized to publish it, granting the State a period of two months to adopt the above recommendations.  The period shall commence from the day on which the report is transmitted.

 

7.            To inform the petitioner of the adoption of an Article 50 report in this case.

 

12.       On December 10, 1997, the State rejected the Commission's report, alleging "legal reasons and  ... [of domestic law that impede it] from executing the recommendations of the honourable Inter-American Commission on Human Rights."

 

13.       On January 14, 1998, the Commission, in the minutes of a conference telephone call, decided to refer the case to the Court.

 

 

IV

PROCEEDING BEFORE THE COURT

 

14.       On January 16, 1998, the Commission presented the application to the Court.  The Commission appointed Carlos Ayala-Corao and Hlio Bicudo as its Delegates before this Court, Jorge E. Taiana and Manuel Velasco-Clark as its Advisors, and Minerva Gmez, Ariel Dulitzky, Viviana Kristicevic and Marcela Matamoros as their assistants.  In a note received by the Secretariat of the Court (hereinafter the Secretariat) on June 18, 1998, Marcela Matamoros advised that she was withdrawing from the instant case.

 

15.       On January 28, 1998, once the President of the Court (hereinafter the President") had made a preliminary examination of the application, the Secretariat notified it to the State, and informed it of the time limits for replying to it, opposing preliminary objections and appointing its representatives. Moreover, the State was invited to name a Judge ad hoc.

 

16.       On February 20, 1998, Panama appointed Rolando Adolfo Reyna-Rodriguez as the Judge ad hoc.

 

17.       On February 27, 1998, the State appointed Carlos Vargas-Pizarro as its Agent.

18.       On April 17, 1998, after having requested two extensions to the period for presenting preliminary objections, the State filed four preliminary objections.

 

19.       On May 14, 1998 the State requested an extension of one month to submit its reply to the application.  On May 18, 1998, the Secretariat, in observance of instructions issued by the President, informed the State that the extension had been granted.

 

20.       On May 20, 1998 the Commission presented its observations to the preliminary objections presented by Panama.

 

21.       On June 29, 1998, the State submitted its reply to the application.  It thereby expressed that it was respectful of human rights and that it had not invoked either public order, or social interest as means to suppress, denature or diminish in their real content the rights established in the Convention.  Similarly, it indicated that both, the content, and the application of Law 25 were proportionate to the damage being caused to the organisation of social life in Panama, and to the democratic institutions of the country.  It also indicated that the violation of rights alleged by the petitioners was not real.  It added that Law 25 was passed in full consonance with the provisions of Articles 27, 30 and 32 of the Convention, and the precepts of the Courts jurisprudence.  Lastly, it pointed out that all rules and requirements established by the Convention were complied with in the internal proceedings interposed by the petitioners;  that it was proven that the actions carried out were consistent with the law, international law and the Convention, and that international liability attributable to Panama had not been proven.

 

In its reply, the State requested the Court to declare that it was not liable for the dismissal of the 270 workers;  that because of the failure to prove the violation by Panama of any rule of the Convention, it should not be obliged to pay any type of compensation, nor to reinstate the workers dismissed, especially in view of the fact that some of them had been reinstated, and termination pay and compensation was paid to others pursuant to the law;  that it be allowed to present further evidence, and that the plaintiff be ordered to pay legal fees and expenditures incurred.

 

22.       On July 7, 1998, the Secretariat requested the Commission to deliver, within the shortest possible time, a description of the purpose of the deposition by the witnesses proposed by the Commission, since such information was not included in the application.

 

23.       On July 14, 1998, the Commission informed the Court that it felt that the performance of other actions pertinent to the written procedure was of the utmost importance, to which effect it requested the granting of an additional two months to submit the reply.

 

24.       On July 31, 1998, the Secretariat informed the Commission and the State that, pursuant to Article 38 of the Rules of Procedure, the President granted the former a term of two months for the submission of the reply and that, after the receipt of said brief, it would transmit it to the latter in order that it, within the same time frame, submit the answer to the reply.

 

 

25.       On August 31, 1998, the Commission submitted the description of the objective of the statement by the witnesses offered in its application.

 

26.       On September 30, 1998, the Commission submitted the brief with the reply.

 

27.       On October 29, 1998, the Secretariat, pursuant to instructions issued by the President, requested the Secretary General of the Organization of American States (hereinafter the OAS), to furnish it with any information that would be available on any notification received from the State between November 20 and December 31, 1990, concerning the suspension of guarantees of the Convention, the provisions suspended, the reasons for the suspension, and the date of termination of such suspension.

 

28.       On November 27, 1998, the State requested an extension of one month to submit its answer to the reply.  On December 2, 1998, pursuant to instructions issued by the President, the Secretariat informed the State that the extension had been granted.

 

29.       On December 15, 1998, the Secretariat asked the Assistant Secretary for Legal Affairs of the OAS, Mr. Enrique Lagos, to make any arrangements possible within his sphere of competence to facilitate access by the Court to the information requested from the Secretary General of the OAS on October 29, 1998.

 

30.       On January 7, 1999, in response to the note sent by the Secretariat to the Assistant Secretary for Legal Affairs of the OAS on December 15, 1998, Mr. Jean-Michel Arrighi, Director of the International Law Department of the OAS, sent a letter to the Secretariat informing that no such notification had been received or recorded by that Department concerning the suspension of guarantees of the Convention by the State.

 

31.       On January 8, 1999, the State presented its response brief.

 

32.       On January 19, 1999, Panama appointed Mr. Jorge Federico Lee as alternate Agent.

 

33.       On January 19, 1999, Mr. Rolando Adolfo Reyna-Rodrguez, in his capacity as Judge ad hoc in the case, informed the Court that he was indeed somewhat involved in the JORGE A. MARTNEZ vs. INSTITUTO DE RECURSOS HIDRULICOS Y ELECTRIFICACIN case, which he rejected for lack of jurisdiction, without hearing the case.  He further informed that he would undertake a position relative to International Maritime Affairs of the Republic of Panama.  Lastly, he requested the Court to determine whether the facts previously pointed out constituted grounds for impediment.

 

34.       On January 19, 1999, pursuant to instructions by the Tribunal, the Secretariat requested Mr. Rolando Adolfo Reyna-Rodrguez to inform on the characteristics and objective of the proceedings identified as Jorge A. Martnez vs. Instituto de Recursos Hidrulicos y Electrificacin, where he had some involvement as President of the N 4 Conciliation and Decision Board, and on the position, within the structure of the State of Panama, of the International Maritime Affairs office or section.

 

35.       On January 22, 1999, Mr. Rolando Adolfo Reyna-Rodrguez, in response to the request made on the 19th of the same month and year, informed the Secretariat that the proceedings in which he participated as President of the N 4 Conciliation and Decision Board, were based on a labour action brought by several workers dismissed under Law 25, which he rejected for lack of jurisdiction.  He further informed that the maritime authority in Panama is an autonomous institution devoted to all matters relative to merchant vessels.

 

36.       On that same day, the Court issued an Order whereby it decided:

 

1.                    To declare that Mr. Rolando Adolfo Reyna-Rodrguez may not undertake the position of Judge ad hoc in the instant case.

 

2.                    To continue hearing it as currently constituted.

 

3.                    To notify this decision to Mr. Rolando Adolfo Reyna-Rodrguez.

 

37.       On January 26, 1999, the Ombudsman of Panama, Mr. Italo Isaac Antinori-Bolaos, presented a brief in his capacity as amicus curiae.

 

38.       On January 27, 1999, the Court held a public hearing on preliminary objections at the headquarters of the Supreme Court of the Republic of Costa Rica.

 

39.       On November 18, 1999, the Court entered the Judgment on preliminary objections.  In such Judgment the Tribunal dismissed the preliminary objections filed by the State.

 

40.       Through an Order of the President, of December 7, 1999, the Inter-American Commission and the State were convoked to a public hearing on the merits, which would be held at the Courts headquarters on January 26, 2000, with the purpose of receiving the statements of the witnesses proposed by the Commission, and of the witnesses and expert witnesses offered by the State.  The parties were furthered informed that they could present their final oral arguments on the merits immediately after the receipt of said evidence.

 

41.       On December 15, 1999, pursuant to instructions from its President, the Secretariat informed the State that the evidence mentioned in item IX.d (evidence of reports) of the reply to the application, through which the Court was requested to instruct the private companies Cable & Wireless Panama, S.A., and Panama Ports Company, S.A., to prepare reports relative to the case, should be offered to the Tribunal by the State, in order that the former decide whether or not to incorporate it with the rest of the evidence.  On January 26, 2000, the State sent a note signed by Mr. Jorge Nicolau, Administrative and Product Development Director of Cable & Wireless Panama, S.A., whereby it informed about the workers that said company had rehired.

 

42.       On January 10, 2000, the State submitted the list of witnesses and expert witnesses who would appear at the public hearing on the merits.  By Order of the Court of January 25, 2000, Mr. Feliciano Olmedo-Sanjur was summoned to render his statement as expert witness.

 

43.       On January 13, 2000, the Commission submitted the list of witnesses who would depose at the public hearing on the merits, and informed that Mr. Humberto Ricord, proposed by it and convoked by the Court as a witness, would appear as an expert witness.  On January 14, 2000, pursuant to instructions from the President, the Secretariat requested the State to inform whether it had any objection as to the change in the capacity in which said person would appear.  On January 17, 2000, Panama expressed that it felt that the change requested by the Commission was inconvenient.  On January 19, 2000, the Commission submitted a brief indicating that the purpose of the deposition of Mr. Humberto Ricord, as an expert witness specialising in labour and constitutional law and as university professor, was to clarify the facts of the complaint, and attached his resume.  By Order of the Court of January 24, 2000, Mr. Humberto Ricord was convoked to render his deposition as an expert witness.

 

44.       On January 25, 2000, the State submitted a note whereby it intended to challenge the competence of the President and requested the postponement of the public hearing on the merits.  On that same day, by an Order adopted unanimously, the Court rejected this suggestion and the request to postpone the hearing.

 

45.       On the following day, January 26, 2000, the President opened the public hearing, during which the Court received the declarations of the witnesses and expert witnesses proposed by the Inter-American Commission and the State.

 

There appeared before the Court:

 

For the Inter-American Commission on Human Rights:

 

            Hlio Bicudo, Delegate;

            Carlos Ayala-Corao, Delegate;

            Manuel Velasco Clark, attorney-at-law;

            Cristina Silva, assistant attorney-at-law;

            Viviana Kristicevic, assistant;

            Minerva Gmez, assistant;  and

            Mara Claudia Pulido, assistant.

 

For the State of Panama:

 

            Carlos Vargas Pizarro, Agent;

            Jorge Federico Lee, alternate Agent;

            Virginia Burgoa, Ambassador of Panama to Costa Rica;

Luis Enrique Martnez, Minister Counsellor of the Embassy of Panama in Costa Rica;

Juan Cristbal Ziga, Director, Legal Department of the Ministry of Foreign Affairs;

Iana Quadri-de-Ballard, Deputy Director, Legal Department of the Ministry of Foreign Affairs;

            Juan Antonio Tejado-Mora, advisor;

            Juan Antonio Tejado-Espino, advisor;

            Mara Alejandra Eisenmann, General Secretary, Ministry of Foreign Affairs;

            Harold Maduro, assistant;  and

            Ivonne Valds, assistant.

 

Witnesses proposed by the Inter-American Commission:

 

            Ramn Lima;

            Jos Mauad;

            Rogelio Cruz-Ros;

            Nilsa Chung-de-Gonzlez;

            Manrique Meja;  and

            Luis Bautista.

 

Expert witness proposed by the Inter-American Comission:

 

            Humberto Ricord.

 

Witnesses proposed by the State of Panama:

 

            Guillermo Endara-Galimany;

            Guillermo Ford-Boyd;

            Carlos Lucas-Lpez;

            Jorge De-la-Guardia;  and

            Marta De-Len-de-Bermdez.

 

Expert witnesses proposed by the State of Panama:

 

            Maruja Bravo-Dutary;  and

            Feliciano Olmedo-Sanjur.

 

46.       On April 24, 2000 the Labour Advice Centre of Peru, the Economic and Social Rights Centre, the Legal and Social Studies Centre, and the Colombian Law Professionals Commission submitted a brief in their capacity as amici curiae.

 

47.       On June 6, 2000, pursuant to instructions from the President, the Secretariat informed the Commission and the State that they were to submit the final written arguments on the merits of the case no later than June 11 of the same year.  On July 4 next, the State requested a 15-day extension.  The next day the Secretariat informed the parties that the President had granted the extension requested up to July 28, 2000.

 

48.       On July 17, 2000, Mr. Jacinto Gonzlez-Rodrguez submitted a brief in his capacity as amicus curiae.

 

49.       On July 28, 2000, the Commission submitted its final written arguments.

 

50.       On August 1, 2000, Panama submitted its final written arguments.  Although they were submitted out of schedule, the Court admitted them based on reasonableness and timeliness criteria, and in consideration of the fact that such delay did not harm the balance that the Tribunal must maintain between the protection of human rights and legal security, and procedural equitableness.  Thus, on August 10, 2000, pursuant to instructions from the President, the Secretariat so informed the State.

 

51.       In the same note of August 10, 2000, pursuant to instructions from the President and on the basis of powers conferred as per Article 44 of the Rules of Procedure, the Secretariat requested the State, as evidence to broaden the knowledge on the matter:  the file of the proceedings of the action brought by the Cabinet Council against the workers dismissed pursuant to Law 25 of December 1990;  the file of the proceedings of the Ninth Prosecutorial Agency and the Seventh Penal Circuit Court, Judicial Circuit of Panama, for the crime of "sedition" against the internal personality of the State, a crime defined in Chapter II, Section IX, Book II of the Panamanian Penal Code, which were conducted against Eduardo Herrera-Hassn and others;  the minutes of the deliberations of the Cabinet Council for the month of December 1990, and those held about the discussion on Resolution N 10 of January 23, 1991;  Resolution N 10 of January 23, 1991, of the Cabinet Council;  the judicial files of the actions brought by Eduardo Gasln-Caballero and others, Miguel ngel Osorio and others, Yadira Delgado and others, Luis Anaya and others, Andrs Alemn and others, and Ivanor Alonso and others, which gave rise to the judgments of the Third Administrative Conflicts Section of the Supreme Court;  the judicial file relative to the unconstitutionality action against Law 25 brought by Isaac Rodrguez, and the administrative measures taken by the Ministry of Public Works, the Renewable Natural Resources Institute, the Ministry of Education, the National Telecommunications Institute, the National Water and Sewerage Institute, and the Water Resources and Electric Power Institute, relative to the dismissal of each one of the 270 workers.

 

52.       On September 8, 2000, the Agent of the State sent the President a note in which he expressed "his complete trust in the proceedings conducted by the Court," as well as his "full belief in the impartiality, independence and honourableness of both, the Illustrious President, and all the other judges."

 

53.       On November 22, 2000, the State presented part of the documentation requested by the Court on August 10, 2000, as evidence to broaden the knowledge on the matter.

 

54.       On November 30, 2000, pursuant to instructions from the full Court and as per Article 44 of the Rules of Procedure, the Secretariat requested the Commission to submit, no later than December 13, 2000, the documentary evidence that accredited the request for the payment of costs and expenses contained in its application, as well as the corresponding arguments.  On December 12, 2000, the Commission requested an extension of one month for the submission of said information.  On the 13th of the same month and year, the Secretariat informed the Commission that the President had granted it until January 8, 2001, as a final extension.

 

55.       On December 22, 2000, the State submitted a brief whereby the Minister of the Interior, Ms. Ivonne Young, informed that there was no record, in the files of the Cabinet Council, of the proceedings conducted against the workers dismissed pursuant to Law 25, nor minutes of the deliberations of the Cabinet Council for December 1990, or the deliberations developed about Resolution N 10 of January 23, 1991.

 

56.       On January 8, 2001, the Commission submitted the documentary evidence that, in its opinion, accredited the request for the payment of costs and expenses contained in its application, as well as the corresponding arguments.  The next day, the Secretariat acknowledged receipt thereof and, pursuant to Instructions from the President, granted the State until January 24, 2001, for the submission of its observations.  On January 12, 2001, the Commission sent, via courier, the appendices missing in the January 8, 2000, brief, which were forwarded on that same day to the State.  On January 24, 2001, the State submitted its observations on the Commission's brief.

 

V

THE EVIDENCE

 

A)  DOCUMENTARY EVIDENCE

 

57.       Together with the application brief (supra paragraphs 1, 2 and 3), the Commission submitted a copy of the 50 documents contained in the 26 appendices.[1]

58.              At the time of submission of its reply to the application (supra, paragraph 21), the State attached a copy of 272 documents contained in 24 appendices.[2]

59.              In its reply brief (supra para. 26), the Commission attached copies of 145 documents contained in 17 appendices.[3]

60.              During the public hearing on the merits held at the Courts seat on January 27, 2000 (supra para. 45), the representatives of the State submitted photocopies of documents, which contained two judgments, handed down by the Supreme Court of Panama.[4]

 

61.       On November 22, 2000, the State submitted several documents, which had been requested by the Court as evidence to broaden the knowledge on the matter, on the basis of Article 44 of the Rules of Procedure (supra para. 53).[5]

62.       The State submitted a note whereby Mr. Jorge Nicolau, Administrative and Product Development Director of Cable & Wireless Panama, S.A., informed about the workers that said company had rehired (supra para. 41).

 

63.       Mr. Jean-Michel Arrighi, Director of the International Law Department of the OAS, sent a note informing that no notice had been received or recorded by that Department concerning the suspension, by Panama, of the guarantees provided for in the Convention (supra, para. 30).

 

64.              Together with the brief relative to costs and expenses requested by the Court, the Commission delivered a copy of the 108 documents contained in the 3 appendices (supra, para. 56).[6]

B) TESTIMONIAL AND EXPERT WITNESS EVIDENCE

 

65.       On January 26, 27 and 28, 2000, the Court received the statements by the witnesses and expert witnesses proposed by the parties in the instant case.  The Court hereby proceeds to summarise the relevant parts of such statements.

 

a.                  Statement by Ramn Lima-Camargo, Vice Minister of the Interior and Justice during the Presidential Administration of Mr. Guillermo Endara-Galimany

 

On November 4 or 5, 1990, the conversations among a group of State workers and the National Government had already failed or were about to fail.  Since the petition presented by the Co-ordinating Organisation of State Enterprise Workers Unions was rejected, the workers carried out a demonstration intended to encourage the National Government to renew the negotiation of the petitions.  The event coincided with the uprising of colonel Eduardo Herrera-Hassn.  Since October, 1990 this colonel had been under detention in a penal facility at Naos and Flamenco Islands, after having been accused of co-ordinating the placing of bombs.  On December 4, 1990, approximately at 5 p.m., a helicopter landed at the facility where colonel Herrera-Hassn was being held, whereupon the latter boarded it and headed for the fort of Tinajitas, formerly a fort of the Defence Forces in San Miguelito.  The witness was at the central headquarters of the Police approximately since 7 p.m. that day.  The Minister of the Interior and the Chief of the National Police were at the Presidency of the Republic at the request of the President.  Approximately at 9 p.m. colonel Herrera-Hassn entered with weapons into the central headquarters of the National Police accompanied by special units of the National Police, and forced its occupants to leave.  He informed the Minister of the Interior over the radio about such entry.  He held interviews with colonel Herrera-Hassn, who expressed he was waiting for some workers.  During the interviews held, the above-mentioned colonel Herrera-Hassn gave him a petition, which he later brought to the Presidency of the Republic.  On December 5, 1990, after the uprising was brought under control, the Ministry of the Interior and Justice commissioned the Chief of the National Police, Mr. Ibrahim Pak, to carry out an internal investigation of the events.  He does not remember any reference, in the Police report, to a possible contact or conversations among the mutineers and the labour leaders.