Report No. 58 (2013) IACHR. Petition No. 200-01 (Perú)

• Year: 2013
• Petition Number: 200-01
• Report Number: 58
• Respondent State: Perú
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Pablo Yupan García

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REPORT No. 58/13

PETITION 200-01

ADMISSIBILITY

PABLO YUPÁN GARCIA

PERU

July 16, 2013

I. SUMMARY

1. This report refers to petition 200-01, for which proceedings were initiated before the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission,” “Commission,” or “IACHR” by Mr. Pablo Yupán García (hereinafter “the petitioner”) against the Republic of Peru (hereinafter “Peru” or “the State”). That petition was received by the IACHR on March 28, 2001, and the petitioner therein alleges that the State violated to his detriment the right to a fair trial, equal protection, and judicial protection, enshrined in Articles 1.1, 8, 24, and 25 of the American Convention on Human Rights (hereinafter the “American Convention”).

2. The petitioner alleges that on October 27, 1994 he was unjustly dismissed from the Electro Perú, S.A. company, where he had been working since 1974 as a mechanical technician and serving as the General Secretary of the Single Union of Electricity Workers of the National Electrical Sector, on the grounds of serious labor misconduct for having insulted the Chairman of the Board of the Electroperú S.A. company in a statement he made in the journal “Siete Días en la Noticia” on October 18, 1994. He states that according to the article published, Mr. Yupán García had allegedly blamed the company’s Chairman of the Board for the Ventanilla Thermoelectric Station’s operational failure because he had not provided an adequate budget to maintain the station. The petitioner alleges that he sent a letter of correction to the news outlet but that his statements only corroborated what was already public knowledge. He also indicates that the statements attributed to him were protected by the right to freedom of expression under Peru’s Constitution, which protects union leaders. Finally, the petitioner maintains that the judicial proceedings initiated in Peru failed to respect due process guarantees.

3. For its part, the State states that the domestic proceedings were conducted properly and there was no violation of the petitioner’s right to due process. In addition, the State argues that the petitioner’s statements were technical and unrelated to the exercise of his labor and/or union rights and the right to freedom of expression does not protect those who commit crimes. Thus, the State alleges that the dismissal was appropriate based on the petitioner engagement in the one of the grounds denoting “serious misconduct” [falta grave laboral] as provided in Peruvian legislation.

4. After analyzing the positions of the parties and fulfillment of the requirements under Articles 46 and 47 of the American Convention, the Commission decides to declare the case admissible for purposes of examining the alleged violation of the alleged victim’s rights as enshrined in Articles 13 and 25 of the American Convention in connection with Articles 16 and 1.1 of that instrument.

2. PROCESSING BY THE COMMISSION

5. The Commission received the petition on March 28, 2001 and acknowledged receipt thereof on June 13, 2001. Subsequently, the IACHR received another communication from the petitioner on December 10, 2001, and the IACHR acknowledge receipt thereof in its communication dated February 13, 2002.

6. The Commission forwarded the petition to the State on June 4, 2002, allowing a period of two months for the State to submit observations. The State submitted its observations in a communication dated August 7, 2002, which were forwarded to the petitioner on September 24, 2002, allowing a period of one month for the petitioner to submit observations. The petitioner submitted observations in a communication received on November 27, 2002, and the IACHR acknowledged receipt thereof on December 4, 2002. Subsequently, the petitioner sent additional information in communications received on June 3, 2003, December 3, 2004, and March 11, 2005, and the Commission acknowledged receipt of those communications on December 4, 2002, July 28, 2003, and April 4, 2005, respectively. These communications were sent to the State in a communication dated July 19, 2012, allowing a period of one month for the State to submit observations.

7. On May 12, 2011 the State asked that the petition be archived since it had been inactive since 2002, and the IACHR forwarded this request to the petitioner on June 13, 2011, for observations. The petitioner submitted his response in a communication dated July 27, 2011, which was sent to the State on August 31, 2011, granting it a period of one month to submit its observations.

8. On September 30, 2011 and August 24, 2012, the State submitted observations, which were sent to the petitioner for his information on October 10, 2011 and October 24, 2012, respectively.

III. POSITIONS OF THE PARTIES

A. Position of the petitioner

9. The petitioner states that Mr. Pablo Eugenio Yupán García had worked as a mechanical technician at the Electroperú S.A. company from August 27, 1974 until he was dismissed on October 27, 1994, when he was serving as General Secretary of the Single Union of Electricity Workers of the National Electrical Sector, allegedly for having engaged in serious misconduct under paragraphs a) and h) of Law 24514. According to the petitioner, the company justified the dismissal based on the fact that he had made statements to the press outlet “Siete Días de la Noticia,” which were published on October 18, 1994, in which he allegedly blamed the company’s Chairman of the Board for the Ventanilla Thermoelectric Station’s operational failure because he had not provided an adequate budget for its maintenance.

10. The petitioner alleges that in his statements Mr. Yupán García was representing all of the company’s workers, i.e., he was acting in his capacity as General Secretary of the union and that his statements did nothing more than corroborate what was already public knowledge. The petitioner states that when Mr. Pablo Yupán García made those statements, as a union leader, he could not be dismissed under Peruvian law until three months had passed since the conclusion of collective bargaining.

11. The petitioner states that on October 25, 1994, Mr. Yupán García sent a letter of correction to the publisher of the journal in which his statements had appeared, in which he pointed out that he was interviewed in his capacity as a union leader and that in his general comments he did not point to the Chairman of the Board of Electroperú S.A. as being responsible for negligence in the Ventanilla case, since the Ventanilla Thermal Station belonged to the ETEVENSA company and, if there were negligence, the responsibility lay with that company. He states that in the correction letter he also pointed out that the article published ascribed to him qualifiers and concepts he did not express, twisting his version of the facts, and thus he asked that the letter of clarification be published.

12. The petitioner indicates that in response to the dismissal he filed an appeal against Electricidad del Perú, S.A. on November 9, 1994, seeking nullification of the termination and his subsequent reinstatement. This appeal was declared well-founded by the Fifth Labor Court of Lima in its decision of December 31, 1996, which ordered the reinstatement of Mr. Yupán García to his regular job given that the misconduct charged did not exist, since the employment relationship was suspended under Article 48.f) of Legislative Decree 728, due to the complainant’s performance of union tasks and because the record had not clearly, precisely, and unequivocally established the seriousness of the alleged statements made by Mr. Yupán García, having confirmed the letter of correction sent to the journal. He states that on November 25, 1997, the Third Labor Court declared the decision of December 31, 1966 to be null and void, for which reason it resolved that a new opinion should be issued, “in the absence of criminal expertise offered as evidence by the defendant” (handwriting expertise), and referred the case to the 13^th Labor Court of Lima, which issued a decision on August 12, 1999, declaring the appeal for nullification of the dismissal to be well-founded and ordered that Mr. Yupán García be reinstated to his regular position.

13. The petitioner states that when the earlier decision was appealed by Electroperú S.A., the Third Labor Court, in its decision of December 20, 1999, overturned the decision being appealed on the grounds that the serious misconduct charged was confirmed, since there was no cause and effect relationship between his union work and the dismissal and based on the decision of the Constitutional and Social Chamber of the Supreme Court of Justice of May 11, 1999, that determined that “labor law has defined insult without distinction or...