Report No. 170 (2020) IACHR. Petition No. 901-11 (Panama)

Petition Number901-11
Report Number170
Case TypeAdmissibility
CourtInter-American Comission of Human Rights
Alleged VictimAlba Aurora Aponte Vernaza
R. No. 170/20
















REPORT No. 170/20

PETITION 901-11

REPORT ON ADMISSIBILITY


ALBA AURORA APONTE VERNAZA

PANAMA

OEA/Ser.L/V/II.

D.. 180

2 J. 2020

Original: Spanish



























Approved electronically by the Commission on J. 2, 2020.






Cite as: IACHR, R. No. 170/20, Petition 901-11. A.. Alba A.A.V.. Panama. J. 2, 2020.





www.iachr.org


I. INFORMATION ABOUT THE PETITION

Petitioner

Alba A.A.V.

Alleged victim

Alba A.A.V.

Respondent S.

Panama1

Rights invoked

Articles 8 (fair trial) and 24 (equal protection) of the American Convention on Human Rights2 in relation to Article 1.1 (obligation to respect rights) thereof

II. PROCEEDINGS BEFORE THE IACHR3

Date of filing

J. 6, 20114

N. of the petition

J. 27, 2017

S.’s first response

September 27, 2017

III. COMPETENCE

Ratione personae

Yes

Ratione loci

Yes

Ratione temporis

Yes

Ratione materiae

Yes, American Convention (deposit of instrument of ratification on J. 22, 1978)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and international res judicata

No

Rights declared admissible

Articles 8 (fair trial) and 25 (judicial protection) of the American Convention, in relation to Articles 1.1 (obligation to respect rights) and 9 (freedom from ex post facto laws) thereof

Exhaustion or exception to the exhaustion of remedies

Yes, J. 11, 2011

Timeliness of the petition

Yes, J.6., 2011

V. SUMMARY OF FACTS ALLEGED

  1. Alba A.A.V. (hereinafter “the alleged victim”) alleges violations of her human rights because, after a disciplinary proceeding, she was removed from office as a judge based on a ground not included in the rules governing disciplinary proceedings and even though the removal from office was not a penalty applicable to these proceedings, under the law.

  2. According to the alleged victim, she worked as a judge at the C. for Childhood and Adolescence Matters in Colón province. A., she had been in the judicial career for over 13 years and had never been faced with sanctions under the disciplinary rules or the judicial code of ethics. She submits that a client of this C. filed a complaint against her with the Superior C. for Childhood and Adolescence Matters on September 20, 2007, and that a misconduct complaint proceeding was filed and held under the norms of Panama’s Judicial Code applicable to disciplinary proceedings. She explains that the trial concluded on December 12, 2008, with the C.’s decision to remove her for a purported violation of judicial ethics.

  3. She claims that her removal violated her rights because this penalty was not set forth by article 292 of the Judicial Code, the rule governing disciplinary proceedings. She submitted a copy of the fragment of the Judicial Code containing article 292, according to which the most severe corrective measure is the “unpaid suspension from office for a maximum of fifteen days.” She also claims the violation of her rights because she was declared guilty of violating judicial ethics even though the proceeding filed against her was not an ethics proceeding but a disciplinary proceeding. According to the petitioner, she challenged her removal from office by filing a motion for reconsideration, dismissed on J. 30, 2009. Then she filed a contentious-administrative remedy of full jurisdiction with the Third D. of the Supreme C. of Justice to request that her removal be declared unlawful. On December 31, 2010, the Third D. found the lower court’s decision lawful. The D. dismissed the alleged victim’s claims that her conviction and removal from office for the violation of judicial ethics, having been decided after a disciplinary proceeding, were unlawful. The D. considered that “while the complaint proceeding began as a disciplinary proceeding to ensure her right of defense and so that she could submit the remedies she deemed appropriate, the appointing authority retains the competence to impose the penalty it finds suitable to the type of misconduct that has been proven.” She says that this decision exhausted her domestic remedies and was notified to her on J. 11, 2011.

  4. In the alleged victim’s opinion, the Third D.’s decision violated her right to equal protection of the law as it contravened a long-standing jurisprudential criterion establishing the unlawfulness of the penalty of removal from office following disciplinary proceedings and the prohibition to mingle norms applicable to disciplinary proceedings with those applicable to judicial ethics proceedings. In support, she submitted a copy of several judgments, including one issued by the T.D. on August 7, 2009. In it, the D. establishes that separate sets of rules govern disciplinary proceedings and ethics proceedings and that the penalties to be imposed in a disciplinary proceeding are those established in the applicable rules; that, accordingly, the removal from office, provided in the set of rules governing ethics proceedings, is unlawful when it follows a disciplinary proceeding. Also, the D. quotes in approval a previous decision in which it concluded that “if a proceeding is filed on disciplinary grounds, it is juridically inadmissible for the authority to change the charges and impose a penalty on new grounds (violations of judicial ethics). S. conduct is inadmissible given the clear distinction the law makes between the procedures that are applicable in each case.”

  5. For its part, the S. contends that a disciplinary proceeding was filed against the alleged victim following a complaint by a client who claimed that during a child custody proceeding, the alleged victim had been partial against the complainant to favor the latter’s ex-husband. It says that, according to the complaining client, the alleged victim had threatened her with deprivation of liberty to coerce her into signing an agreement to change visitation days with her ex-husband. It says that the complainant also reported that the alleged victim had refused to listen to the children and had delayed the issuing of resolutions declaring the ex-husband in contempt of court.

  6. The S. says that the claims against the alleged victim were particularly serious as they involved the children’s best interests. It submits that, based on the record, in November 2006, the complainant and her ex-husband signed an agreement that contravened the legal requirement of prior notification of the parties’ legal attorneys, whose aim is to avoid possible situations of coercion as that reported by the complainant. M., it contends that it was proven that in her resolution, the alleged victim ruled a very flexible communication and visitation schedule without stating why she disregarded the children’s will even though one of them had expressed not wanting to see their father. It holds that, therefore, it was proven that the alleged victim violated the rules of the Family Law Code and the Judicial Code, in contravention of the ethical canons governing the conduct of judges and with disregard for the principles of the best interest of the child and due process of law. It claims that the D. that removed the alleged victim from office considered that her conduct was contrary to law and hence incompatible with the disciplinary rules. It also claims that in the motion for reconsideration following which the lower court’s resolution was confirmed, no new evidence was submitted that could have led to the latter’s annulment.

VI. EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

  1. The Commission observes that, according to the petitioner, the final decision on the subject matter of her petition was that by which the Third D. of the Supreme C. of Justice dismissed her remedy of full jurisdiction. It...

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