Rubén Ayala Bogado.
Rubén Ayala Bogado (hereinafter “the alleged victim”).
Articles 8 and 25(2)(c) of the American Convention on Human
Rights (hereinafter “the Convention”); and Article 8 of the Protocol
of San Salvador (hereinafter “the Protocol”).
SUMMARY OF THE COMPLAINT
July 29, 1999, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission”, “the Commission”,
or “the IACHR”) received a petition lodged by Mr. Rubén Ayala
Bogado (hereinafter “the petitioner”), against the Republic of
Paraguay (hereinafter “the State” or “Paraguay”) alleging
violation of rights enshrined in Articles 8 and 25(2)(c) of the American
Convention and 8 of the Protocol to the detriment of Rubén Ayala Bogado,
union leader and public servant at the Ministry of Industry and Trade of
Paraguay. The petitioner claims that he was the victim of systematic
persecution for having denounced fraud in the public administration of
former minister Ubaldo Scavone.
In the instant case the petitioner alleges that in 1994, in his
capacity as a public servant and union leader at the Ministry of
Industry and Trade, he filed an accusation with the Paraguayan national
alleging embezzlement of public monies by Minister Ubaldo Scavone, who
headed the administration of the aforesaid Ministry.
The accusation was duly admitted by the Office of the
Inspector-General and examined by the Congress.
In 1995, the Second Chamber of the Government Accounting Office
issued Decision N° 9 in which it rejected the accusation.
As a result of the above events the petitioner alleges that the
Minister prohibited his entry to the Ministry. Therefore, he proceeded
to file a complaint, which was decided in his favor, and the court
ordered that he be granted free access.
However, Mr. Scavone refused to obey the court order.
The petitioner again went to court and filed criminal charges
against the Minister. With
respect to that proceeding, the petitioner alleges that the decisions
rendered by the lower criminal court, as well as by the Third Chamber of
the Court of Appeal, violate due process for failure to conduct a
preliminary enquiry into serious and well-founded charges alleging
publicly actionable criminal offences.
The petitioner further says that the Constitutional Chamber of
the Supreme Court failed to reverse those arbitrary judgments by
granting the writ of unconstitutionality that he presented in good time.
Subsequently Mr. Ayala filed a motion for clarification and
recusation of the members of the Constitutional Chamber of the Supreme
Court and he alleges that the motion was unfairly rejected and he was
given a fine as punishment.
Finally, the petitioner says that the Minister instituted two
baseless criminal complaints against him, as well as two administrative
enquiries. He says he was
not given the opportunity to speak in those enquiries and, as a result
of them, he has been dismissed from his public duties.
He alleges that in both enquiries he was denied his due process
guarantees. Based on the
foregoing he considers that his rights to a fair trial and judicial
protection were violated, as were his union rights, given his dismissal
and the fact of being a union leader.
Based on these allegations, the petitioner asks the Commission to
find the State responsible for violation of the following human rights:
a) the right to a fair trial (Article 8) and the right to judicial
protection (Article 25), both enshrined in the American Convention; and
trade union rights under Article 8 of the Protocol.
The State says that all the assertions made by Mr. Ayala Bogado
before the IACHR reflect disagreement with the result of the different
proceedings in which he was involved; however, mere disagreement is not
sufficient grounds to institute an international proceeding if such
facts cannot be proven in that proceeding either.
The State holds that the petitioner has exercised his right of
defense at every procedural stage and that most of the criminal
proceedings ended in a settlement between the petitioner and the
complainants before notaries public; and in the other criminal actions
the court ruled in his favor. Furthermore,
the State argues that neither persecution nor impunity may be deduced
from the multiple judicial proceedings in which the petitioner was
PROCESSING BY THE COMMISSION
On July 29, 1999, the IACHR received a petition from Mr. Ayala
Bogado. On June 23, 2000,
in accordance with Article 34 of its Regulations then in force, the
IACHR sent the pertinent portions of the original petition to the State
and gave it 90 days to present its comments, pursuant to Article 37 of
said Regulations. On October 17, 2000, the State of Paraguay sent to the
Commission the record of the court proceedings in the case “Ubaldo
Scavone concerning contempt of court in this capital”, without
specifically addressing the terms of the petition. On November 8, 2000, the Commission transmitted the pertinent
portions of the State’s reply to the petitioner, and said to him that
he had 30 days in which to advance the observations he deemed
appropriate. The Commission
received the petitioner’s reply on December 11, 2000.
The pertinent portions of the additional information presented by
the petitioner were forwarded to the State on January 31, 2001. On March 5 of that year, the State of Paraguay requested the
IACHR for an extension of the deadline to present its observations.
On March 8, the Commission granted the State of Paraguay an
extension of 30 days. The
State submitted its reply on April 12, inside the deadline of the
extension granted, and the pertinent portions thereof were transmitted
to the petitioner on April 16.
Subsequently, on August 29, the Commission received a
communication from the State of Paraguay, which informed that the
Minister of Industry and Trade had reported on August 21 that Mr. Rubén
Ayala Bogado had been reinstated in the Ministry, that the recent budget
increase presented by said Ministry contained the amount corresponding
to wages and bonuses from January 1996 to January 1998, which sum
included the public servant in question, and, finally, that the
petitioner engages in activities as Secretary General of the Union of
Public Employees of the Ministry of Industry and Trade.
In light of the information received, on September 4, 2001, the
Inter-American Commission asked the petitioner to present his comments
within 15 days. Those
comments were received on September 17, and it transpires from them that
Mr. Ayala Bogado has indeed been reinstated in his work duties at the
Ministry and that he has resumed his union activities.
ANALYSIS AND CONCLUSIONS
Article 47(b) of the American Convention provides that:
the petition or communication does not state facts that tend to
establish a violation of the rights guaranteed by this Convention; […]
The Commission finds that in accordance with Article 47(b) of the
Convention, and based on information received from both parties, the
acts that gave rise the original petition, as well as the later
developments that occurred, do not tend to establish a violation of the
rights guaranteed by this Convention.
In the instant petition, based on the information received from
the State and confirmed by the petitioner, it is clear that after the
petitioner lodged the petition, the alleged violations of the rights to
a fair trial (Article 8) and to judicial protection (Article 25)
recognized in the Convention, and of the trade union rights (Article 8
of the Protocol) caused by his dismissal from public duties, ceased to
exist with the reinstatement in the Ministry of Industry and Trade of
Mr. Ayala Bogado, the pledge from the Government to pay the wages he
ceased to received when he was dismissed, and his free pursuit of union
activities. Accordingly, since the facts or situations alleged by the
petitioner do not currently exist, the Commission concludes that the
facts stated in the petition do not tend to establish violations of the
rights protected by the American Convention.
on the above factual and legal considerations,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the instant case inadmissible in accordance with
Article 47(b) of the American Convention on Human Rights.
To advise the State and the petitioner of this decision.
To make public this decision and include it in the Annual Report
of the IACHR to the General Assembly of the OAS.
and signed at the headquarters of
the Inter-American Commission on Human Rights, in Washington, D.C., on
this the 27th day of February 2002.
(Signed): Juan Méndez, President; Marta Altolaguirre, First Vice
President; José Zalaquett, Second Vice President; Commission members:
Robert K. Goldman, Julio Prado Vallejo, and Clare K. Roberts.
The accusation was filed with the First Government Accounting Office
of the Inspector-General’s Office and with the Bicameral
Commission for the Investigation of Illicit Acts, a body under the
supervision of the legislative branch.