84
112. Furthermore, the Tribunal ascertains that the State’s argument to which
reference has been made is contrary to the considerations expressed by the Third
Section of the Supreme Court in resolving the full-jurisdiction administrative conflicts
actions brought, since, for instance, in its judgment of June 30, 1993, said Section
stated that
[in] the legal matter subject to judgment, the General Manager of the INTEL, on the
basis of what Law 25 of 1990 established, identified each one of the complaining
workers as participants in the organisation, convocation or implementation of actions
that attempted against democracy and the constitutional order, and declared non
subsistent the appointments of the identified workers.
original).
(The italics are not from the
The Section to which reference has been made finds similar considerations in other
administrative conflicts judgments handed down.
113. The dismissal letters delivered before the issuance of Law 25 do not mention
such Law, and it was indeed mentioned in most of the letters delivered after the
entry into force of the cited rule. However, the procedure established in Law 25 was
applied to all the workers regardless of the date of dismissal, not that established in
the legislation in force at the time of the events, despite the fact that such legislation
was of greater benefit for the State workers.
114. It is important to point out that the “paragraph” of Article 2 of Law 25
indicated that the Executive Body, through the Cabinet Council, would determine
which actions were regarded as attempts against democracy and the constitutional
order for purposes of “applying the dismissal administrative sanction.” It wasn’t until
January 23, 1991, through Resolution 10 published in the Official Gazette N° 21.718
of February 4, 1991, that said Council determined that “the work stoppages and
abrupt collective interruptions of the work in the public sector attempted against
democracy and the constitutional order.” Since most of the dismissals were effected
before the publication of this Resolution, they were made on the basis of a
characterisation of behaviours –attempting against democracy and the constitutional
order through a work stoppage- that would come into being only after the occurrence
of the events. Furthermore, the Supreme Court declared, through judgment of May
23, 1991, that the “paragraph” of Article 2 of Law 25 was unconstitutional “since it
attribut[ted] to the Cabinet Council a function that pertains [exclusively to a
jurisdictional organ, such as…] the Supreme Court,” and because it “violat[ed]
section 14 of Article 179 of the Constitution, which attributes exclusively the power
to regulate the laws to the President of the Republic with the respective Minister.”
115. From the foregoing it can be clearly concluded, in the opinion of the Tribunal,
that the actions of the State that resulted in the dismissal of workers who are the
alleged victims in the instant case, were done in violation of the principle of legality,
which must govern the actions of public administration. For all these reasons, the
Court concludes that the State violated the principles of legality and non-retroactivity
established in Article 9 of the American Convention, to the detriment of the 270
workers listed in paragraph 4 of this Judgment.
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