Frank Ulises Güelfi Aguilar v. Panama, Case 11.716, Report No. 17/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 470 (2000).
FRANK ULISES GÜELFI AGUILAR
February 23, 2001
On May 6, 1996, the Inter-American Commission on Human Rights (hereinafter
IACHR or the Commission) received a complaint presented
by Frank Ulises Güelfi Aguilar (hereinafter the petitioner) against
the Republic of Panama (hereinafter the State or Panama)
according to which the States failure to reinstate him in his job, after
his graduate studies in psychiatry in Brazil, led the petitioner to suffer
a personal loss of US$ 60,000 in lost earnings from April 1987 to November
petitioner alleges violations of Article 6 (right to work) of the Protocol
of San Salvador
and Articles 21 (right to property), 24 (right to equal protection), and 25
(right to judicial protection) of the American Convention on Human Rights
(hereinafter the American Convention), all in violation of the
obligations under Article 1(1).
The State responded that the petitioners rights and guarantees
had been respected and asked that the IACHR dismiss the complaint.
In this report, the IACHR analyzes the information available in light
of the American Convention and concludes that the petitioner has not stated
facts that tend to establish a violation, by the Panamanian State, of the
Accordingly, the Commission decides to declare the case inadmissible
pursuant to Article 47(b) of the American Convention and Article 31 of the
Commissions Regulations, notify the parties, public it, and published
it in its Annual Report.
PROCESSING BEFORE THE COMMISSION
On May 6, 1996 the IACHR received the complaint in the present case.
On January 8, 1997, the Commission proceeded to open the case, and
sent the respective notes to the State and the petitioner.
On May 14, 1997, the State presented its response.
The case proceeded in keeping with the Commissions Regulations.
POSITIONS OF THE PARTIES
The petitioners position
The petitioner is a physician and psychiatrist in Panama.
From April 1980, to March 1983, he worked as a Resident Physician
I in a public hospital in Panama City.
In January 1984 he moved to Brazil for graduate studies at the University
of Rio de Janeiro, where he remained until December 1986.
Upon his return to Panama, he asked to be reinstated.
The petitioner alleges that his right/duty to work immediately
upon his return from Brazil, was denied until November 1, 1989, when he was
appointed to a position for which he had competed. The petitioner seeks to
recover benefits and salary not received from December 1986 to November 1989.
The petitioner alleges that on July 25, 1985, he signed a contract
with the legal authorization of the Panamanian Ministry of Health and the
Instituto para el Aprovechamiento de Recursos Humanos (IFARHU)
as a beneficiary of the Special Program for Specialty Improvement of Public
Servants (Programa Especial para el Perfeccionamiento Especial de
los Servidores Públicos) through which he had gone to Brazil for his masters
degree, with a right to salary.
The petitioner also stated that upon completing his studies, the State
was obligated to guarantee his reinstatement in his previous position.
The petitioner was also obligated, according to the same contract,
to work for a time period twice that of his leave for studies, an obligation
also stipulated in Law No. 31 of September 2, 1977.
The petitioner implicitly maintains that the fact that je was not reinstated
in his position violates Article 24, the right to equal protection.
The petitioner alleges that when he asked to be reinstated, he received
a tacit refusal from the State, which is why he presented a contentious-administrative
action before the Third Chamber of the Panamanian Supreme Court, which found
that the administrative silence by which the petitioner was denied reinstatement
was not illegal.
The petitioner alleges that he exhausted all domestic remedies. He
also holds that his leave with a salary was fraudulently suspended in April
1987, adducing that he had supposedly resigned.
He alleges that he was unemployed for 31 months, and was fearful, and
unable to start a private practice, since according to clause 6, number 2
of the aforementioned contract, the petitioner would have been required to
reimburse the State for the amount of salary he was paid to study if he did
not provide services to the sponsoring institution, in this case the Panamanian
Ministry of Health.
Furthermore, the petitioner declares that he was able to secure a public
sector position, which he obtained through a competition on November 1, 1989.
However, he alleges that he was given a limited work schedule and a
drop in salary, without any acknowledgment of his studies while on leave.
The petitioner competed and was hired for another position: in June
1992, he became a Physician Category I, with his years of graduate
study reflected in his pay, but without recognition of the years in which
he received no salary, which is why he turned to the Commission to uphold
Due to his lack of remuneration, the petitioner alleges a violation
of Article 21, the right to property.
The States position
According to the State, on December 27, 1983, the petitioner completed
the three- year residency and was qualified as a specialist physician, and
even though he had the certification that accredited him as such, he was kept
in the same resident physician position while continuing his studies in Brazil
with salaried leave and a scholarship from IFARHU.
When he returned to Panama and requested reinstatement, the Ministry
of Health made no response, tacitly refusing the petitioners request.
The State maintains that according to the content of Article
2 of Cabinet Decree No. 16 of January 22, 1969 and Articles 1 and 2 of Resolution
No. 1 of the Health Technical Council, the resident physicians position
exists so that a candidate can complete his courses allowing him to become
a specialist physician during a given period at the authorized health institutions
(teaching hospitals). The cited legislation clearly shows that the position
of resident physician is not, and has never been, permanent.
From the aforementioned it can be concluded that the petitioner did
not have the right to reinstatement; consequently, having satisfactorily completed
the specialization program, as of April 1 1987, the Ministry of Health removed
him from the official roster, and gave his position to another resident physician....
The State added that the petitioner had worked in that position for
six years, yet the law stipulates that the terms of resident physicians are
for up to five years.
The State argues that the petitioner was not deprived of his right
The State also maintains that this does not constitute a violation
of the right to property, taking as the reference Article 21 of the Convention
or the cited articles of the Panamanian Civil Code."
The State holds that the petitioner benefited from an extraordinarily
long term as a resident physician, plus the benefit of a salaried leave and
a scholarship. The State asserts that had there been inequality before the
law, as alleged, there would have been no prejudice to the petitioner, but
to those who aspired for the position he occupied for six years.
The State also held that the petitioner had exhausted remedies available
in Panamas domestic jurisdiction, further evidence that at all times
he enjoyed the right to equal protection and the right to the procedural and
constitutional guarantees under Panamanian law.
The State attaches to its response the decision of the Third Chamber
of the Supreme Court of Panama, which decided the contentious-administrative
action lodged by the petitioner against the Ministry of Health.
According to this decision, the contract entered into by the petitioner
with IFARHU and the Ministry of Health did not oblige the latter to reinstate
the petitioner into a position that is temporary considering the teaching
purpose for which it was created, and which can only be filled in through
a competition, as provided for by the special rules that establish both the
duration of the position and how the resident physician positions are to be
These special rules have preference over Article 8 of Law No. 31 of
1977, which, as a general rule, guarantees the reinstatement of public servants
who satisfactorily finish their studies, in keeping with Article 14(1) of
the Civil Code, which establishes that the provisions on a special matter,
or on particular businesses or cases, have preference in their application
over those of a general nature. As Article 8 is a general rule, it does not
apply in the present case.
A. Competence of the Commission
ratione materiae, personae
The Commission is competent prima
facie to examine this petition.
The petitioner has standing to appear and has presented arguments regarding
the violation of provisions of the American Convention by agents of a State
Party. Panama deposited the instrument of ratification of the American Convention
on June 22, 1978, and the facts alleged took place from 1986 to 1989.
Nonetheless, the Commission is not competent to examine the alleged
violation of Article 6 of the Protocol of San Salvador, because Panama deposited
the instrument of ratification for that Protocol on February 18, 1993, after
the facts alleged.
Other admissibility requirements
The petition meets the formal admissibility requirements established
in Article 46 of the Convention:
The petitioner has exhausted domestic remedies available under Panamanian
the final judgment handed down on December 15, 1995, by the Third Chamber
for Contentious-Administrative Matters of the Supreme Court, the most suitable
and efficient method for addressing the issue raised by the petition was concluded,
thereby exhausting domestic remedies.
The petition was presented within the period established by Article
46(1)(b) of the Convention and Article 38 of the Commissions Regulations.
The Commission had not received information to the effect that the
present petition is subject to another international proceeding.
The petition meets all the formal requirements of Article 46(1)(c)
of the Convention, regarding name, nationality, profession, domicile, and
However, according to Article 47(b) of the Convention, the Commission
shall declare a petition inadmissible when it does not state facts that tend
to establish a violation of rights guaranteed by the Convention.
Therefore, the Commission will proceed to analyze whether the
facts alleged make out a violation of the human rights protected by
Articles 21, 24, and 25 of the Convention, invoked by the petitioner.
this case, the petitioner alleges that the State violated the contract
signed between it and the petitioner, resulting in a
violation of the
rights enshrined in Articles 21, 24, and 25 of the Convention, for
the reasons stated above. The State alleges that the private-law contract
between the parties violates norms of higher rank.
The Supreme Court resolved this conflict of laws in favor of the State,
explaining that the private-law provisions cited by the complainant can be
applied so long as they are not opposed to the public interest; but they are
clearly opposed to it in the present case, for through them an attempt is
made to secure the reinstatement of a public employee in a position that can
only be filled through competition. The Commission recalls, in this regard,
that the judicial protection the Convention recognizes includes the right
to fair, impartial, and swift proceedings that offer the possibility, but
not the guarantee, of a favorable result.
In and of itself, an unfavorable result for the petitioner, emanating
from a fair trial, does not constitute a violation of the Convention.
The Commission does not find a violation of Article 25 of the Convention.
The Commission considers that the petition does not contain arguments
an analysis of the alleged violation of Article
21, thus the Commission considers that
this aspect of the complaint is groundless and out of order.
The petitioner also maintains that his right to equal protection was
violated because he was not reincorporated into his position as stipulated
by Article 8, Law Nº 31 of 1977.
The State, for its part, demonstrated that the petitioner received
differential treatment to his benefit, putting him in an unequal but better-situated
position than his colleagues.
Accordingly, the Commission considers that
the complaint cannot be based on Article 24 of the Convention; and
therefore, the Commission considers that the petition lacks arguments meriting
an analysis of the alleged violation of Article
24. Accordingly, the Commission is of the view that this aspect of
the complaint is groundless and out of order.
In its Report 39/96, the Commission reiterated its fourth instance
doctrine, emphasizing that it is not an appellate court for reviewing errors
of law or of fact that domestic courts may have committed.
Specifically, the Commission stated that it:
competent to declare a petition admissible and rule on its merits when it
portrays a claim that a domestic legal decision constitutes a disregard of
the right to a fair trial, or if it appears to violate any other right guaranteed
by the Convention.
However, if it contains nothing but the allegation that the decision
was wrong or unjust in itself, the petition must be dismissed under this formula.
The Commission's task is to ensure the observance of the obligations undertaken
by the States parties to the Convention, but it cannot serve as an appellate
court to examine alleged errors of internal law or fact that may have been
committed by the domestic courts acting within their jurisdiction.
Accordingly, the analysis of the facts alleged leads to the conclusion
do not constitute a violation of the rights and guarantees of the American
Convention as alleged by the petitioner. On the contrary, an in-depth analysis
of the present petition would make the Commission a fourth instance,
or an appellate court for domestic law determinations, since it would be asked
to review a decision adopted by a competent organ within its legal powers
and in conformity with the laws in force.
The IACHR has established that the petition does not meet the requirements
of Article 47(b) of the American Convention.
Accordingly, the Commission concludes that
the petition is inadmissible, under Article 47(b).
Based on the foregoing arguments of facts and law,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case inadmissible.
To notify the petitioner and the State of this decision.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., on February 23, 2001.
Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman; Marta
Altolaguirre, Second Vice-Chairman; Commissioners Hélio Bicudo, Robert K.
Goldman, Julio Prado Vallejo, and Peter Laurie.
Additional Protocol to the American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights Protocol of San Salvador,
signed in San Salvador, El Salvador, November 17, 1988, at the 18th regular
session of the General Assembly.
Contract No. F.P. 85-71, signed by the petitioner, the Minister of Health
of the Republic of Panama, Carlos de Sedas, and the Director General of
IFARHU, Humberto López Tirone, appears in the Commissions case file.
Clauses two and four, number four of Contract No. F.P. 85-71, and Articles
8 and 11 of Law No. 31 of September 2, 1977.
Articles 337 and 338 of the Civil Code, state, respectively: Property
is the right to enjoy and dispose of a thing, without any limitations
other than those established by law, and, No one may be deprived
of their property other than by a competent authority and for serious
reasons of public utility, always with payment of the corresponding compensation.
Report Nº 39/96, Case 11.673 Santiago Marzioni, Argentina, October 15,
1996, para. 51.