REPORT Nº 64/04
MARÍA TERESA BULNES
October 13, 2004
1. On September
9, 1996, María Teresa Bulnes Acosta, Esq. (hereinafter also “the
petitioner”) denounced before the Inter-American Commission on Human
Rights (hereinafter “the Commission,” “the Inter-American Commission,”
or “the IACHR”), that the Republic of Honduras (hereinafter “the State,”
“Honduras,” or the “Honduran State”) violated to her detriment the
rights protected under Articles 8, 10, 24, and 25 of the American
Convention on Human Rights.
2. María Teresa
Bulnes Acosta, Esq. claims in her petition that she was dismissed from
her position as First Instance Judge of Family Matters on July 5, 1992,
without the benefit of any of the conditions stipulated in Honduran
legislation for such a dismissal, and without fulfillment of the legal
requirements regarding notification.
3. With respect
to admissibility, the State argues, essentially, that the petitioner was
notified of Supreme Court Decision 366, through which the First Instance
Judge of Family Matters was ordered removed from her post and
transferred to another unspecified position, on Friday, June 5, 1992,
and not on Monday, June 8, as she claims. Honduras asserts that, as a
result, the complaint filed by the petitioner on June 18, 1992, before
the Judicial Career Council was filed after the 10 day time period
established in Article 67 of the Judicial Career Law for appealing to
that Council, and that it was therefore declared untimely in a June 9,
1996, resolution. The State likewise indicates that the instant
petition is inadmissible because it was submitted to the Commission in
an untimely manner and because domestic remedies had not been exhausted,
since the petitioner should have pursued remedies in the contentious
administrative and criminal jurisdictions before resorting to the
4. After having
studied the factual and legal arguments presented by the parties, as
well as the evidence provided, the IACHR concludes in this report that
the case is inadmissible as it is not colorable and decides to notify
the parties and publish this information.
PROCEEDINGS BEFORE THE COMMISSION
Commission opened the case of María Teresa Bulnes Acosta, Esq. on
September 10, 1996, in accordance with Articles 46 and 47 of the
American Convention on Human Rights and assigned it number 11.735. On
June 2, 1997 (fs. 99), the Commission forwarded to the Honduran State
the pertinent portions of the petition and gave it 90 days to respond.
On April 13, and June 17, 1998, the Commission reiterated this request.
On September 18, 1998, the Commission once again reiterated the request,
granting the State a new deadline of 30 days to respond, with the
admonition that, if it failed to respond, the provisions of Article 42
of its Rules of Procedures would be applied.
6. The response
of the Honduran State was received on October 16, 1998. On December 17,
1988, the pertinent portions of the response were transmitted to the
petitioner, who was granted a 45 day period in which to present her
observations. On January 19, 1999, those observations were received and
forwarded to the State.
7. On March 30,
1999, the State submitted its comments on the petitioner’s observations,
the pertinent portions of which were transmitted to the petitioner on
April 5, 1999. On May 3, 1999, the petitioner presented her
observations with respect to the comments issued by the Honduran State,
and these were forwarded to the State. Subsequently, additional
information was received from the State on July 1, 1999, and from the
petitioner on August 20 and September 6, 1999.
8. On September
6, 1999, the Special Rapporteur and Vice President of the Commission,
Professor Hélio Bicudo, visited Honduras and met with the Supreme Court
of Justice at which time he raised the possibility of reaching a
friendly settlement in the case, an effort that was unsuccessful.
9. Following an energetic exchange
of additional information between the parties, Ms. Bulnes submitted
additional information and documentation on March 19, 2004, which was
forwarded to the State on the 23rd of the same month and
year, and the State did the same on April 21, 2004. This information
was transmitted to the petitioner on April 29, 2004.
OF THE PARTIES ON ADMISSIBILITY
A. Position of the petitioner
10. The petitioner
was appointed First Instance Judge of Family Matters in a February 27,
1991 decision by the Supreme Court of Justice. The petitioner indicates
that on Friday, June 5, 1992, as she was finishing work, an unknown
person approached her and handed a her copy of Official Letter
1162-SCJ-92, addressed to Priscila Romero Sánchez, Esq., which contained
a transcription of Supreme Court Decision 366 of June 3, 1992, ordering:
a) the appointment of Ms. Romero Sánchez, Esq. as Interim Judge
substituting Ms. Bulnes Acosta, Esq. and b) the transfer of María Teresa
Bulnes, Esq. to another position. It was further ordered that this take
effect on the date that Ms. Romero Sánchez assumed her position.
11. Ms. Bulnes
claims that she did not consider this to be official notification since
it was not addressed to her and did not comply with the provisions set
forth in Articles 87, 88, 89 and 90 of Chapter VII “Notifications” of
the Administrative Procedures Law, the pertinent language of which
states that “notification of resolutions will be made in person…”
(Article 87) “…through a faithful copy of the act in question” (Article
88) and “proof of notification shall be placed in the file, along with
the day and time it was made, signed by the server, as well as the
person served, should he wish or be able to sign it” (Article 89).
12. Ms. Bulnes
states that on Monday, June 8, 1992, when she was in her office, the
Director of the Judicial Career arrived, accompanied by Ms. Priscila
Romero Sánchez, Esq., so that the latter could assume the position of
First Instance Judge of Family Matters, heretofore occupied by her. At
that time, the Secretary of the Court had delivered to her a blank
envelope containing the original and a copy of Official Letter
1162-SCJ-92 “without any register to record its receipt.” This action
was recorded in the register of the First Instance Court of Family
Matters, of which the petitioner was the judge, on June 8, 1992. Under
the circumstances, the petitioner turned over her post to her colleague,
Romero Sánchez, thereby acknowledging having been tacitly notified of
13. The complaint
indicates that on June 9, 1992, the day after having forfeited her post
and after having received and accepted a verbal proposal made by the
president of the Supreme Court of Justice that she accept another
judgeship in the Sectional Court (Juticalpa), a proposal that was
articulated through the Court Inspector, Víctor Manuel Lozano Esq., Ms.
Bulnes sent a letter to that Court requesting that it officially inform
her of the position she was to occupy.
14. The petitioner
alleges that on June 18, 1992, she went to the Treasurer’s Office to
pick up her pay check for the month of June, but was given a paycheck
covering only 4 days. The Treasurer’s Office issued the check, and
documented it with a copy of Decision 366.
15. According to
the petition, on June 18, 1992, the petitioner filed a complaint before
the Judicial Career Council requesting her reinstatement as a
professional judge and payment of the back salary due her up until the
date that this reinstatement was carried out. With this complaint, case
file 43 was opened before the Judicial Career Council.
16. The petitioner
indicates that on October 24, 1994, the Secretariat of the Judicial
Career Council recommended to the Supreme Court of Justice that it add
case file 43 to a list of more than eighty people who had been dismissed
unjustifiably and whose social benefits were pending. The purpose of
this action was to secure an order to pay the social benefits and
compensation owed to the petitioner, in view of the fact that the
announced transfer to another post had never materialized.
17. On November 2,
1994, the Supreme Court ruled unanimously to include Ms. Bulnes on the
list of unjustifiably dismissed employees and ordered that her
employment benefits and compensations be paid (See the Court’s Act No.
60, Point 8, from the November 2, 1994 session). According to the
petitioner, notwithstanding the Court ruling, the Personnel Department
did not carry out the order because it did not indicate the date of
dismissal and because there was no dismissal decision in Ms. Bulnes’
file in order to calculate the amount that she should be paid. Despite
this, the Personnel Department told her to come back later “while they
consulted about how to resolve the conflict.” She returned several
times, as they requested, but the matter was never resolved.
18. On May 8,
1995, the petitioner drew up an affidavit certifying the contents of her
personnel file and the file corresponding to complaint 43. In the
latter case, the Notary certified that there was no Dismissal Decision
in the file. On November 8, 1995, given the impossibility of carrying
out the Supreme Court order, the petitioner filed a new motion in which
she requested, considering the time that had transpired since her labor
complaint had been filed (41 months), that she be reinstated to her
position, assigned to a new position, or that an unjustified dismissal
decision be issued. Should the latter alternative be selected, she
requested payment of back wages due her from June 8, 1992 to the date
that it took effect.
19. The petitioner
affirms that she filed a complaint for violations of her human rights
before the Human Rights Commission in Tegucigalpa which, on November 23
and December 5, 1995, sent notes to the Supreme Court in an attempt to
resolve Ms. Bulnes’ situation.
20. According to the petitioner, on
January 22, 1996, she appeared before the Judicial Career Council where
she verified that records of proceedings from June 1994 had been added
to her file that had not been there on May 8, 1995, the date on which
the Notary had certified the contents of that file through the
aforementioned Affidavit. She states that these proceedings consisted of
a document in which the Council, prior to accepting the complaint, asked
its Secretariat to inform it of whether it had been filed in the proper
form and in a timely manner by the petitioner. The Secretariat
responded that the complaint had been filed in the proper form and in a
timely manner by the petitioner.
21. The petitioner
says that she was notified of a procedural hearing and attended it on
January 23, 1996, in other words four years after filing her complaint
(June 18, 1992). A the hearing, the Personnel Administration Director of
the Supreme Court of Justice, in addition to stating, “We recognize the
fairness of the complaint filed,” filed a Statute of Limitations motion
alleging, at this late stage of the proceeding, that the complaint had
been filed after the statute of limitations had elapsed. This, even
though the same Council had previously ruled that the complaint had been
filed within the legal time limit, and had requested that the Court
include the case on the list of unjustified dismissals. At the hearing,
Ms. Bulnes claimed that she was notified of Decision 366 on June 8,
1992, and not on June 5 of that year, and she provided evidence of this.
22. The petitioner
states that as a result of the January 23, 1996 procedural hearing, on
February 9, 1996, the Council issued a ruling, four years after the
events, and without prejudice to the Court’s ruling, in favor of the
statute of limitations motion filed by the Personnel Administration of
that Court, dismissing the claim for reinstatement and upholding the
dismissal carried out pursuant to Decision 366 of June 3, 1992.
Notification of the February 9, 1996, ruling was accomplished by way of
a document entered into the Notifications Schedule of the Judicial
Career Council on February 19, 1996.
February 16, 1996, three days after this notification, the complainant
filed a motion to declare the nullity of the proceedings as of January
3, 1996, the date on which the Judicial Career Council had ruled to
admit the claim presented by the petitioner in June 1992. According to
Ms. Bulnes, the Council processed this request and declared that the
motion for nullity was inadmissible since a final judgment had been
handed down previously on February 9, 1996. At the same time, the
Council reprimanded the petitioner for offenses against the dignity and
decorum of the Council and the petitioner was advised of this resolution
through a notification dated March 16, 1996. This, added the
petitioner, put an end to the administrative proceedings.
24. The petitioner
presented evidence that the Judicial Career Council issued a final
decision on April 30, 1996 stating that “Having concluded the
proceedings in the instant file, with the preceding final ruling (that
of February 28, 1996), and with no further remedy available, let this
case be closed.”
25. Based on the
foregoing, the petitioner asserts that the ruling of February 28, 1996,
is the final decision in the case and that is the date that should be
used to calculate the six month period set forth in Article 46 (1) (b)
of the Convention. She points out that she submitted her petition on
September 10, 1996, in other words, within the aforementioned time
period, and therefore requests that her petition be declared admissible.
respect to the State’s subsequent argument that she had rejected payment
of compensation and disagreed with such payment, the petitioner
reiterates that the payment ordered by the Supreme Court was never
carried out because that Court failed to establish the date of
dismissal. This prevented the Personnel Administration Office from
finding the legal basis that would enable it to establish, from an
accounting and legal standpoint, the amount that she should be paid in
benefits and compensation, since in the files of that office, her
personnel file was still filed under Active Judges.
27. With respect
to the State’s position that she should have requested enforcement of
the judgment in the administrative jurisdiction, the petitioner responds
that Article 31 of the Regulation of the Judicial Career Council
establishes that no ordinary or extraordinary remedy will be admitted
against the rulings of the Council. In addition, Article 3 of the same
legal instrument establishes that the Judicial Career Council is the
maximum authority responsible for the Judicial Career System and its
main function is to settle conflicts that arise in the application of
the Judicial Career Law and its regulations.
28. Moreover, the
petitioner says that in the unlikely event that the Commission should
consider that exhaustion of remedies the contentious administrative
jurisdiction is a step that precedes an appeal to the Inter-American
system of protection, it would apply in her case given the unwarranted
delay in resolving her claim, the exception set forth in Article 46 (2)
(c) of the Convention.
Position of the State
29. On October 16,
1998, the State of Honduras responded to the petition, claiming that it
was inadmissible for having been presented after the allowed time period
had elapsed. In this regard, the State says that the petitioner claims
to have been notified of the Final Resolution by way of a notification
document recorded in the Notifications Schedule of the Judicial Career
Council on March 16, 1996, which became firm on March 18, 1996, so that
the petition was submitted on July 2, 1997.
30. The State of Honduras argues that
María Teresa Bulnes Acosta Esq. failed to file the applicable legal and
court actions in the domestic jurisdiction, allowed deadlines for
pursuing the pertinent actions to elapse and, on other occasions,
pursued actions that did not correspond to the matter being heard. It
adds that the rulings and decisions issued against the petitioner do not
constitute a denial of justice since at all times the State respected
legal due process and provided access to remedies guaranteed under the
Constitution and Honduran Law.
31. The State
claims that domestic remedies have not been exhausted by the petitioner,
since in order to claim damages allegedly caused by the Judicial Career
Council or the Supreme Court of Justice, she should have filed suit
against the State of Honduras in the contentious administrative venue.
32. The State
recognizes that it advised Ms. Bulnes that she would be transferred to
another post and that this transfer never materialized and asserts that
the petitioner accepted her dismissal from her post.
33. The State adds
that on June 18, 1992, the petitioner submitted to the Judicial Career
Council a complaint requesting reinstatement, the payment of back wages,
and a hearing to present evidence. Nonetheless, according to the State,
the Judicial Career Council did not convene until 1994.
34. The State asserts that on October
24, 1994, the Secretariat of the Judicial Career Council asked the
Supreme Court of Justice (Official document CCC-036/96) to include Ms.
Bulnes on the list of officials who were claiming benefit payments for
involuntary dismissal and that the request was accepted by the Court.
Nonetheless, due to a “simple lapse of the Secretariat” the file number
and petitioner’s name were not included on the list, which prevented the
payment of compensation.
State of Honduras states that the petitioner filed a motion before the
Judicial Career Council on November 17, 1994, requesting clarification
of her employment status with the Judiciary. Subsequently, on November
8, 1995, the petitioner submitted before the same body another motion
requesting that the legal error be corrected, and that the arbitrary
action taken and rights violations committed be rectified.
36. In light of
the foregoing, the Judicial Career Council, on January 3, 1996, issued a
decision accepting the petitioner’s complaint and scheduled a hearing
for January 23, 1996, at which time the petitioner and the Personal
Administration Office of the Supreme Court should present the evidence
they deemed relevant.
37. On January 22,
1996, the petitioner was personally notified of the hearing. Both sides
presented evidence at the hearing, which was held on January 23. The
State indicates that among the evidence submitted by the Personnel
Administration Office at the hearing, was a letter dated June 9, 1992,
sent by the complainant to the Secretary of the Supreme Court of
Justice, in which she stated that she was aware that her replacement had
been appointed and her dismissal from the post of First Instance Judge
of Family Matters in Francisco Morazan Department on June 5, 1992.
38. The State
asserts that on February 1, 1996, a hearing was held for personal
inspection of evidence in the First Court of Family Matters of Francisco
Morazán and in the Secretariat of the Supreme Court of Justice by
members of the Judicial Career Council. According to the respective
act, in the latter institution the members found that Official Letter
1162-SCSJ-92 of June 3, 1992, appears in the Copies of Official
Documents Register, Volume 1 which states, on the upper right hand
portion, that the various transcriptions of Decision 366 were received
in the Secretariat of the First Instance Court of Family Matters on June
5, 1992. At the end in the signature area of the transcription appears
“that the respective copies were taken for 1) María Teresa Bulnes; 2)…”
39. In a February
9, 1996 ruling, the Judicial Career Council, by unanimous vote,
dismissed the motion for reinstatement filed by the petitioner and
upheld her dismissal.
State adds that, following the decision of the Judicial Career Council,
Ms. Bulnes filed a motion on February 16, 1996, requesting the absolute
nullity of the proceedings and reserving the right to file suit before
the Attorney General of the State and before the criminal court of
jurisdiction for acts that might constitute a criminal offense. The
request was based on the fact that the Council reopened a proceeding
that was already concluded. In response to this request, the Council
adopted a resolution, the pertinent portion of which states as follows:
TO DENY, as
inadmissible, by virtue of the fact that the judgment delivered in the
same matter on the ninth of February of nineteen hundred ninety-six,
resolved her request for reinstatement, a judgment that is final and
firm. The proceedings relating to the request for reinstatement were
initiated by the claimant even after the recommendation of payment of
benefits that the petitioner mentions. In addition, the person now
moving for nullity attended the procedural hearing scheduled for the
twenty-third of January, nineteen hundred and ninety six and was even
accompanied by a Legal Professional to assist her. She responded to the
challenges made by the Personal Administration Office of the Judiciary
and offered, on her own behalf, the evidence that she deemed necessary,
proceedings that she did not object to at the time, and of which she is
now requesting nullity. Likewise, it is well know than nullity is only
valid when there has been a violation of the law of defense and/or
substantive aspects of the trial, which does not occur in civil
proceedings [autos]. The petitioner, María Teresa Bulnes,
stands reprimanded for her offenses and threats against the dignity and
decorum of the Judicial Career Council. LET IT BE SO NOTIFIED.
41. The Honduran
State adds that pursuant to the recommendation of the Secretariat of the
Judicial Career Council, the Supreme Court of Justice authorized the
payment of employment benefits to Ms. Bulnes based on her respective
salary and seniority. It adds that the payment of compensation has not
been carried out because the petitioner is not in agreement regarding
the parameters and criteria for the calculation to be applied and that
she should have pursued enforcement of the judgment in the contentious
administrative jurisdiction and the criminal jurisdiction.
light of the foregoing, the State concludes that the final and
definitive Resolution that ended the legal proceeding became firm on
February 19, 1996, which means that the petition was not filed in a
timely manner and it asks the Commission to declare it inadmissible.
A. The Commission’s Competence
ratione personae, ratione loci, ratione
temporis and ratione materiae
43. Pursuant to Article 4 of the
American Convention, the petitioner is entitled to submit petitions
before the Commission. The petition identifies as the alleged victim an
individual on whose behalf Honduras has undertaken to respect and
guarantee the rights enshrined in the American Convention. Insofar as
the State is concerned, the Commission observes that Honduras is a State
Party to the American Convention, which it ratified on September 8,
1977. Therefore, the Commission has competence ratione personae
to examine the petition.
44. The Commission
has competence ratione loci to take up the petition inasmuch as
it claims violations of rights protected by the American Convention
which allegedly occurred within the territory of a State Party to that
45. The Commission
has competence ratione temporis inasmuch as the obligation to
respect and ensure the internationally protected rights was in force for
the State on the date the violations claimed in the petition allegedly
occurred, since Honduras ratified the American Convention on September
46. Finally, the
Commission has competence ratione materiae, because the petition
claims violations of human rights protected by the American Convention
on Human Rights.
admissibility of the petition
Exhaustion of domestic remedies
47. Article 46(1)
of the American Convention on Human Rights establishes that the
admission of a petition or communication presented under Articles 44 or
45 by the Commission, shall be subject to the requirement “that the
remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.”
48. The State
claims that the petitioner failed to satisfy the requirement of
exhaustion of domestic remedies because she did not file suit for
alleged damages in the contentious administrative venue, the only one
competent to resolve matters having to do with the financial
responsibilities of the State and State entities. The State likewise
asserts that Ms. Bulnes also failed to exhaust remedies in the criminal
law jurisdiction, although she reserved the right to pursue this avenue
in her motion of February 16, 1996.
49. With respect
to criminal remedies, the Commission believes that a simple reservation
made by the petitioner does not amount to an obligation on her part to
exhaust such remedies. Nonetheless, the petitioner should have
exhausted remedies in the contentious administrative jurisdiction to
file suit for compensation payment once the Judicial Career Council had
rendered a final decision regarding her dismissal.
Therefore, there is no
need for the Commission to examine the remaining requirements for
63. The Commission concludes that it
lacks competence to hear the petition lodged by the petitioner, Attorney
María Teresa Bulnes Acosta and that the petition is inadmissible due to
failure to exhaust domestic remedies.
64. Based on the factual and legal
arguments presented above,
THE INTER-AMERICAN COMMISSION ON HUMAN
To declare this case
inadmissible due to failure to exhaust domestic remedies.
advise the parties of this decision, and
publish this report and include it in its Annual Report to the General
Assembly of the Organization of American States.
signed at the headquarters of the Inter-American Commission on Human
Rights in Washington, D.C., on the 13th day of the month of October,
2004. (Signed): José Zalaquett, President; Clare K. Roberts, First Vice-President; Susana Villarán, Second Vice- President; Commissioners: Evelio
Fernández Arévalos, Paulo Sergio Pinheiro, Freddy Gutiérrez, and