It is evident that there is factual identity of both tutela actions filed, of the parties, and
of claims, the first before the Chamber of Labor Decisions of the Superior Court of the
Judicial District of Cartagena, by her attorney, and the second before the Sectional
Judicial Council of Bolívar….
The moving party in the action filed … swore that she had not filed any other action for
the same facts and rights … she was untruthful and acted contrary to the principle of
morality in the tutela action. 16
44.
The Commission takes note that two judges cast dissenting votes with respect to the
decision that denied the previous tutela. Judge Flechas Díaz indicated that:
This chamber has decided cases similar to the one that now occupies our attention and
has considered that administrative acts relieving judicial officers and public servants of
other entities of their duties should be reasoned lest they violate the fundamental right
to due process and the right to the vital minimum of persons who, on being removed,
are seriously impacted…. 17
that:
45.
In addition, Judge Henao Orozco indicated that it should have been taken into account
The Labor Chamber of the Superior Court of the Judicial District of Cartagena, before
which the first action for special relief was filed, on February 25, 2002, found the tutela
action to be inadmissible on procedural grounds, adducing that there were other
mechanisms of judicial defense, thereby ignoring the abundant case-law of the highest
Constitutional Court, which preceded that determination. 18
46.
The Commission notes that subsequently the alleged victim requested a review of the
ruling of the Superior Judicial Council by the Constitutional Court, yet it was not selected for review by
that court.
C.
Other mechanisms for bringing challenges
47.
The Commission takes note that in addition to the tutela actions described in the
previous section, the alleged victim also filed an action for nullity and reestablishment of the right, which
was rejected by the Administrative Tribunal of Cartagena on October 4, 2005, as it considered that the
action had prescribed, taking into account that such actions must be filed within four months from the
day after notification of the ruling; and in this case notice of the decision to relieve her of her duties was
given to the alleged victim on November 4, 2004, and the action was filed on July 12, 2005. 19
48.
Finally, the alleged victim filed a special action in the trade union jurisdiction against
the Office of the Attorney General of the Nation before the Seventh Labor Court of Cartagena. On
December 13, 2006, said court rejected the action, considering:
On studying Article 406 of the CST [Substantive Labor Code], we find which workers
are covered by the jurisdiction, in the first place it would be considered that Ms.
16 Annex 11. Decision of the Superior Judicial Council, September 7, 2005, revoking the tutela action. Annex to the initial petition
of December 22, 2005.
17 Annex 12. Dissenting vote of Judge Jorge Alonso Flechas Díaz, in relation to the decision of the Superior Judicial Council of
September 7, 2005, revoking the tutela action. Annex to the communication from the petitioner, September 30, 2009.
18 Annex 12. Dissenting vote of Judge Ruben Darío Henao Orozco, in relation to the decision of the Superior Judicial Council of
September 7, 2005, revoking the tutela action. Annex to the communication from the petitioner, September 30, 2009.
19 Annex 13. Decision of the Administrative Tribunal of Bolívar, October 4, 2005, rejecting the action for nullity and
reestablishment of the right. Annex to the communication from the petitioner, September 30, 2009.
7