Inter-American Court of Human Rights, Baena Ricardo and others v. Panama, 2 February 2001
Inter-American Court of Human rights
Freedom of association
Reference to international law to strengthen a decision based on inter-American law
Labour rights/ Trade union rights/ Freedom of expression/ Freedom of association/ Right of access to justice/ Right to effective appeal/ Reference to international law to strengthen a decision based on inter-American law
The Panamanian Committee on Human Rights denounced the State of Panama to the Inter-American Commission on Human Rights (IACHR) for the arbitrary dismissal of 270 public employees and trade union leaders who had taken part in various protests against government policy to uphold their labour rights. The dismissal took place after the government accused these people of having taken part in the protest demonstrations and having been accomplices in a military coup. Upon laying off of the employees, a law (No. 25) handed down after the events was invoked, which established that the actions that the workers had brought as a result of the dismissals should be handled in an administrative court and not in a labour court, as current legislation required.
All the workers’ cases brought before the administrative court were dismissed. Three actions challenging the constitutionality of Law 25 were also brought before the Supreme Court of Justice. These actions were accumulated and this Court stated in a judgment of 23 May 1991 that Law 25 was constitutional except for one paragraph but added that actions of unconstitutionality must limit themselves to ‘stating whether or not a law is unconstitutional’ and it did not therefore hand down any judgment on the specific situation of the dismissed workers.
The IACHR attempted to reach an amicable settlement between the workers and the State without any success and then on 10 December 1997, the Panamanian State rejected the Commission report, giving as evidence “legal obstacles, reasons and grounds that prevented it from executing the recommendations issued by the Commission”. In view of this, the Commission decided to bring the case before the Inter-American Court of Human Rights.
The Court found that among the state workers who had been dismissed, there were many union leaders who were involved in a series of claims. Moreover, the trade union leaders and workers were dismissed for actions that did not constitute grounds for dismissal under the law at the time of the events. Thus, it determined that the aim of making Law 25 retroactive had been to provide grounds for the mass dismissal of public sector trade union leaders and workers, an action that damaged the potential action of trade union organizations in the above sector.
The Court also took into account of the pronouncements of the ILO Committee on Freedom of Association, which had issued a decision on this specific case (case 1569), and on the comments of the ILO Committee of Experts:
“The ILO Committee on Freedom of Association, in resolving Case No. 1569, a decision that was submitted as evidence for the case before this Court, considered that "the mass dismissal of public sector trades union leaders and workers because of the December 5, 1990 work stoppage is a measure that could seriously impair the possibilities for action of the public sector trade union organizations within institutions where they are present" and that consequently such dismissal was a serious violation of Convention No. 98 relating to the application of the principles of the right to organize and collective bargaining.
For its part, the ILO Committee of Experts on the Application of Conventions and Recommendations, in expressing itself on Case No. 1569, as it appears in the above-mentioned decision of the Freedom of Association Committee, asked the State to repeal Law 25, "on which the mass dismissals were based, since it felt that it was a serious impediment to public workers’ associations exercising their right to organize their activities"”.3
Thus, referring to the pronouncements of the ILO Committee on Freedom of Association and the ILO Committee of Experts to strengthen its decision, it ruled that that the State of Panama had violated the right of freedom of association enshrined in Article 16 of the American Convention on Human Rights, as well as the right to judicial guarantees and judicial protection, together with the principles of legality and non-retroactivity of the law to the detriment of the 270 workers. It therefore decided that the State should reinstate the workers in their jobs and pay them sums corresponding to their lost earnings.
1 ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87) (ratified by Panama on 03.06.1958); ILO Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98) (ratified by Panama on 16.05.1966); American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969 (ratified by Panama on 08.05.1978); Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“San Salvador Protocol”), 1988 (ratified by Panama on 28.10.1992).