91
130. The general directors and the boards of directors of the State enterprises are
not either judges or tribunals in a strict sense; however, in the instant case the
decisions adopted by them affected rights of the workers, for which reason it was
indispensable for said authorities to comply with what was stipulated in Article 8 of
the Convention.
131. Despite the State’s allegation that there was no administrative career in
Panama at the time of the events in the instant case (December 1990) and that,
consequently, administrative discretionality which permitted the free appointment
and removal of public servants prevailed, this Tribunal feels that the due process
must be safeguarded in any circumstance where an administrative sanction is
imposed on a worker. In this respect it is important to distinguish between
discretional powers, which the governments may have to remove personnel in strict
consistency with the needs of public services, and the attributions related to punitive
power, since the latter may be exercised only subject to the due process.
132. In the case under study, the punitive administrative act is the content of the
dismissal note delivered to the 270 workers of the following State institutions:
National
Port
Authority,
Bayano
Cement
State
Enterprise,
National
Telecommunications Institute, National Renewable Natural Resources Institute,
National Water and Sewerage Institute, Water Resources and Electric Power
Institute, Ministry of Public Works, and Ministry of Education.
133. The victims of this cause were not subjected to an administrative proceeding
prior to the dismissal sanction. The President of the Republic determined that there
was a link between the work stoppage of the State workers and the movement of
colonel Eduardo Herrera-Hassán and, on such basis, he ordered that the workers
who had taken part in said work stoppage be dismissed, in presumption of their
guilt. Even the method used to determine who had participated in the organisation,
convocation or implementation of the national work stoppage held December 5,
1990, that is, the identification of those charged, by the official of each institution,
using in some cases “reports” prepared by different heads at the institution, was a
denial to the workers of a formal proceeding prior to dismissal. Once the worker who
had supposedly violated the rule was identified, she or he was dismissed by the
delivery of a letter, without being allowed to present arguments and evidence for her
or his defence. Once the sanction was imposed, the public servant had the
possibility to request reconsideration of the measure to the same authority that had
dismissed her or him, as well as to appeal before the immediate superior of said
authority. However, as shown by the evidence in the instant case, not all remedies
filed were even answered, which implies a violation of the right to appeal.
134. The Court is not oblivious to the fact that the dismissals, made without the
guarantees of Article 8 of the Convention, had serious social and economic
consequences for the persons dismissed and their relatives and dependants, such as
the loss of income and a reduction of the living pattern. There is no doubt that, in
applying a sanction with such serious consequences, the State should have ensured
to the worker a due process with the guarantees provided for in the American
Convention.
B.
THE JUDICIAL PROCEEDING
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