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 State’s 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 1989.
The 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 petitioner’s 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 American Convention.
Accordingly, the Commission decides to declare the case
inadmissible pursuant to Article 47(b) of the American Convention and
Article 31 of the Commission’s Regulations, notify the parties, public
it, and published it in its Annual Report.
PROCESSING BEFORE THE
On May 6, 1996 the IACHR received the complaint in the present
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 Commission’s
POSITIONS OF THE PARTIES
The petitioner’s 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 master’s 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
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
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 State’s 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 petitioner’s
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
physician’s 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 Panama’s 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 filled.
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
Through 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 Commission’s
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
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
The Commission does not find a violation of Article 25 of the
The Commission considers that the petition does not contain
merit 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
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
these 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
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
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
Commission’s 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
Report Nº 39/96, Case 11.673 Santiago Marzioni, Argentina, October
15, 1996, para. 51.