22.
The State further indicated that the petitioner filed an initial tutela action before the
Superior Court of the Judicial District of Cartagena, seeking protection for her right to work, right to
freedom of association, and other rights, and that it was denied on February 25, 2005, considering that
there were other means for annulling the administrative act. It added that the decision was challenged
by the petitioner, but the Supreme Court of Justice upheld the decision of first instance.
23.
It indicated that on July 12, 2005 the petitioner filed an Action for Nullity of the
Administrative Act and reestablishment of the right, in opposition to the resolution relieving her of her
duties, and on October 4, 2005, the Administrative Tribunal of Cartagena rejected the action on grounds
that it was time-barred.
24.
The State said that in July 2005, the petitioner filed a second tutela action before the
Sectional Judicial Council of Bolívar to protect her right to due process and other rights, based on the
argument that the decision that declared she was relieved of her duties did not state its reasoning. It
indicated that in the first instance the Council ruled in favor of the petitioner, thus she was provisionally
reinstated, but that on September 7, 2005, the Superior Judicial Council overturned the ruling on first
instance, considering that the petitioner had previously filed a tutela action for the same facts and claims.
25.
It stated that on February 24, 2005, the petitioner filed a trade union action before the
Seventh Labor Court of Cartagena, which denied the action on considering that the petitioner could not
bring a claim in the trade union jurisdiction in view of her status as a Delegate Prosecutor. It further
indicated that on January 26, 2007 the petitioner appealed that decision, and that the appeal was
dismissed by the Superior Court of Cartagena on September 22, 2010, affirming the judgment of first
instance. The State indicated that the duration of the proceeding meets the standard of reasonable time,
in view of the number of matters before that Court.
26.
The State said that the Attorney General of the Nation has the power to remove, at his
or her discretion, the officials appointed on a provisional basis, that such acts do not need to state the
reasoning, and that they are presumed to be legal. It noted that the presumption of legality may be
refuted by the official affected, who may bring an action for nullity of the administrative act before
administrative jurisdiction in cases of abuse of authority when the official considers that he or she was
removed for reasons other than to guarantee a good service. It added that the alleged victim never
proved that she was removed in an act involving abuse of authority in retaliation for her actions in the
criminal proceeding against the Secretary of the Regional Autonomous Corporation of the Canal del
Dique.
27.
As regards the law, the State indicated that it did not violated the rights to judicial
guarantees and judicial protection. It argued that the action for nullity and reestablishment of the
right was an adequate and effective remedy that made it possible to review the legality of the
administrative act that removed the petitioner, yet that action was rejected in the instant case because it
was filed several months after the term established by law.
28.
Moreover, it indicated that the tutela action may go forward when what one seeks is the
reasoning of the administrative act, yet it is not suitable for attaining reinstatement or the payment of
benefits for the official concerned, which was what the petitioner was seeking with her tutela actions. In
this regard, it explained that the first tutela action was denied, as it was considered that inappropriate
use was being made of said remedy.
29.
In addition, it argued that the Superior Judicial Council denied the second tutela action
since it was based on the same facts and put forth the same claims. It added that arguing violation of the
right to due process did not break the identity between the two tutela actions.
30.
The State concluded by indicating that the alleged victim had adequate and effective
remedies by which she obtained an in-depth study and expeditious responses to her claims, in keeping
with the national legislation.
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