powers to the employer. For example, the decision of First Instance of the amparo proceeding of July 27, 2005,
subsequently confirmed, indicated there was a failure to "clearly establish the causal link between the alleged
discriminatory treatment for signing and the decision ending the working relationship". In the criminal
proceedings, when delivering the dismissal, it was noted that although the CNF ended the employment
relationship "which would be allowed by the contract (...) none of the items presented lead to corroborate the
complainants’ statement that the reason (...) was voting in the recall referendum".
188.
The Commission notes that the judicial officers who examined both remedies limited to
determining whether National Border Council had the right to unilaterally terminate the contracts with the
victims. This corroboration is not suitable to determine whether there was discrimination in a case of alleged
discrimination precisely that operated covertly behind the veil of legality of the discretion established in the
contract. When a judicial authority finds an allegation of disguised discrimination, the obligation of due
diligence implies an investigation beyond the formally declared motivation of the act and take into
consideration all the indicia, circumstantial evidence and others.
189.
Moreover, the reasons for rejection of the remedies also refer to the fact that the victims did
not prove discrimination. In this regard, the Commission notes that the judicial authorities in charge of
resolving such cases should be aware that covert forms of discrimination often do not have direct proof and,
therefore, the burden of proof cannot rest absolutely in the person alleging discrimination as occurred in the
context of these remedies.
190.
Consequently, the Commission considers that although the amparo judicial authority referred
to the allegation of discrimination, it was examined only formally and without due diligence. Also, the judicial
authority imposed a very high standard when requiring the victim to prove “clearly” the causal link between
the discriminatory treatment and the decision to end the working relationship. This also involves placing all
the burden of proof on the person alleging discrimination.
191.
The Commission considers that the authorities must use all legal means at its disposal to
obtain the truth of what happened to victims of human rights violations181. A due diligence in the investigation
process requires the authorities to take into account the complexity of the facts, the context and the
circumstances in which they occurred and patterns that explain their commission, avoiding omissions in the
collection of evidence and track all logical lines of investigation182. Both the IACHR and the Inter-American
Court have established that prosecutors, when drawing logical lines of investigation must take into account all
the evidentiary material in its possession. In that sense, when victims bring to the investigative bodies
evidentiary material, they should be valued by State bodies to develop the research hypotheses on the
obligation of the judicial guarantees183.
192.
The Commission notes that the judicial authorities who examined the claims did not consider
the hypothesis concerning the use of the power to terminate the employment under the contract clause as a
mean of retaliation against the victims for their participation in the recall referendum petition. The
proceedings were limited to collecting the testimony of the three victims and the then Executive Secretary of
the National Border Council, omitting the realization of other fundamental steps to check the allegation of
discrimination. In such proceedings the Commission would consider: i) To receive the statement of the then
President of the National Border Council José Vicente Rangel Vale who terminated the contracts of the alleged
181 As it has been indicated by the Inter-American Court in cases of serious human rights violations. See, for example, I/A Court
H.R., Case of the Pueblo Bello Massacre v. Colombia. Merits, Reparations and Costs. Judgment of January 31, 2006. Series C No. 140,
para.143.
182 I/A Court H.R., Case of Escué Zapata. v. Colombia. Interpretation of the Judgment on Merits, Reparations and Costs. Judgment
of May 5, 2008 Series C No. 178, para.106; I/A Court H.R., Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations,
and Costs. Judgment of November 23, 2009. Series C No. 209, para.333.
183 IACHR, Report on Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. June 28,
2007, para. 153. Available at: http://cidh.org/countryrep/Bolivia2007eng/Bolivia07indice.eng.htm.
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