Informe definitivo - Informe núm. 346, Junio 2007

Caso núm. 2409 (Costa Rica) - Fecha de presentación de la queja:: 07-DIC-04 - Cerrado

Allegations: Anti-union harassment of officials of the Costa Rican Association of Diplomatic and Equivalent Officials (ASODIPLOMATICOS) which resulted in the dismissal of three such officials

807. The complaint is set out in a communication by the National Association of Public Employees of Costa Rica (ANEP) dated 7 December 2004. This organization sent further allegations in communications dated 1 May and 14 June 2006. The Government sent its comments in communications dated 6 July 2005 and 23 April 2007.

1. 808. In its previous examination of the case, in November 2006, the Committee deemed the complaint to be receivable.
2. 809. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 810. In its communication dated 7 December 2004, ANEP alleges that a campaign of anti-union harassment has been conducted against Rodolfo Jiménez Morales and Francisco Bolaños, the President and the Secretary-General of the Costa Rican Association of Diplomatic and Equivalent Officials (ASODIPLOMATICOS), which was established on 2 April 2004 – the notarized document to that effect is attached hereto – on the basis of an existing association (for the safety and protection of its members, the relevant agreements that were adopted were not included in the register of associations). Messrs Jiménez and Bolaños, who are also ANEP trade union officials, were dismissed “without employer’s liability” and removed from their posts in the diplomatic service for having reported irregularities within the Ministry of Foreign Affairs of Costa Rica, which involved the alleged siphoning of funds donated by the Government of Taiwan, China. Their dismissal was shrouded in what was supposed to be a disciplinary administrative procedure at the request of the Minister for Foreign Affairs, after a letter of condolences was sent to the President of Chile reporting irregularities within the Ministry on the basis of a report prepared by the Government of Chile. ANEP also alleges that documents were confiscated and a search was carried out by staff of the Department of Intelligence and Security, without a legal warrant, in the offices of ASODIPLOMATICOS.
2. 811. According to ANEP, the two trade union officials joined the Ministry of Foreign Affairs and Religion on 1 December 2003 after the Supreme Court of Justice ruled in favour of an appeal lodged by ANEP for amparo (protection of constitutional rights) following the discrimination they faced upon joining the diplomatic service, in reprisal against them for being officials of ASODIPLOMATICOS and for having reported that the diplomatic and consular service was being used as a source of funds for politicians in office. On 4 December 2003, the Minister decided to dismiss Ernesto Jiménez Morales, the brother of Rodolfo Jiménez Morales (of the 19 public servants whose contracts were due to be terminated around that time and the 66 in total whose terms of appointment were identical to those of Ernesto Jiménez Morales, he was the only one to be dismissed). On 20 April 2004, Rodolfo Jiménez and Francisco Bolaños were appointed as the ANEP trade union officials responsible for the forthcoming establishment of a branch of ANEP.
3. 812. ANEP adds that, on 24 May 2004, Rodolfo Jiménez and Francisco Bolaños requested the parliamentary groups of the Legislative Assembly to establish a special committee to investigate allegations of corruption (it was alleged that senior officials of the Ministry of Foreign Affairs, including the Minister himself, had siphoned US$4.8 million donated by the Government of Taiwan, China, for projects to develop the economy and the tourist sector, to a parallel private structure known as the Association for the Development of Costa Rica’s Foreign Policy. This association was set up to pay bonuses and benefits to 13 Foreign Ministry officials, including most of the members of the Foreign Service Assessment Committee, which is responsible for recommending appointments to or dismissals from the diplomatic service). The special committee was also to investigate allegations of irregularities in connection with money donated by the Government and enterprises of Taiwan, China, and used by the President of the Republic to fund his electoral campaign in 2002, while the Minister for Foreign Affairs was supposed to be acting as the “administrator” of the said donations. The trade union officials Rodolfo Jiménez and Francisco Bolaños filed a formal complaint with the Government Procurator’s Office; they also informed the press and the authorities that the ruling by the Supreme Court of Justice of 1 October 2003 had been flouted, as the Minister for Foreign Affairs had fraudulently and illegally kept in office 66 individuals who had been appointed to the diplomatic service during the administration at that time even though they did not meet the legal requirements for their appointment; Mr Jiménez and Mr Bolaños therefore called for the appointments of these persons to be withdrawn.
4. 813. This resulted in a serious penalty being issued against Rodolfo Jiménez for failing to attend a meeting which was held outside working hours; he was unilaterally assigned to new duties on 21 April 2004 (he was removed from his former post) and was accused retroactively of having been derelict in his previous duties over a period of weeks; then, when he asked to be reinstated in his former post, Rodolfo Jiménez was sanctioned with a verbal warning. Rodolfo Jiménez refused to receive any documents until he was reinstated in his post. Then he was issued with a written warning for requesting that the harassment against him be stopped. Furthermore, documents were confiscated from him without a legal warrant (on the basis of a note issued by the Ministry of Foreign Affairs, stating that written authorization was required for the removal of documents or files from the Ministry in order to conceal the alleged irregularities). ANEP refers to a press release which indicated that Mr Rodolfo Jiménez was carrying documents relating to international cooperation with the intention of handing them over to members of the Legislative Assembly; he was the only public servant who was searched on 26 May 2004.
5. 814. At the end of May 2004, as a ploy to intimidate Rodolfo Jiménez, agents from the Department of Intelligence and Security conducted a covert search of his office under the pretext of checking whether or not his telephone line was tapped.
6. 815. As a result of this harassment and hostility on the part of the Minister for Foreign Affairs, the state of health of Rodolfo Jiménez deteriorated and the Costa Rican Social Security Fund deemed him unfit for work from 1 July to 18 November 2004.
7. 816. In reprisal for the complaints which were submitted, the Minister dismissed Rodolfo Jiménez and Francisco Bolaños on 5 and 8 November 2004, on the basis of a so-called “resolution” adopted by members of the Foreign Service Assessment Committee (who were among those accused by the two trade union officials of having benefited from the siphoning of Taiwanese funds). It was this Committee that was approached by the Minister on 11 August 2004 to investigate a letter of condolences to the President of Chile in connection with the tragic events which took place at the Embassy of Chile in Costa Rica on 29 July 2004 in which three Chilean diplomats died. As early as 1998, Chilean public servants had prepared a report revealing security shortcomings at embassies in Costa Rica. The grounds for the dismissal are that Rodolfo Jiménez and Francisco Bolaños acted on behalf of ASODIPLOMATICOS, which is neither recognized by the authorities nor registered with the Ministry of Labour’s Department of Social Organizations, thereby concealing the fact that they are officials representing Costa Rican diplomats; as far as the Assessment Committee is concerned, ASODIPLOMATICOS does not exist.
8. 817. ANEP indicates that Rodolfo Jiménez was never notified of the alleged “offences” attributed to him and that, like Francisco Bolaños, he had been certified unfit for work, which had prevented him from exercising his rights to defence and a fair hearing.
9. 818. In its communication of 1 May 2006, ANEP alleges that the trade union official Rodolfo Jiménez Morales was excluded from the worker–employer contribution scheme set up by the Ministry of Foreign Affairs under the Costa Rican Social Security Fund to cover the payment of incapacity allowances, the accrual of pension entitlements and other social security benefits. For this reason, in August 2004, Rodolfo Jiménez Morales lodged an appeal with the Constitutional Chamber of the Supreme Court of Justice for the protection of amparo against the Minister for Foreign Affairs. The appeal was sustained (the respondents cited technical errors) and the final ruling (which has been forwarded) was that Mr Jiménez had to be included in the worker–employer contribution scheme.
10. ANEP adds that certain members – including the chair – of the Foreign Service Assessment Committee (the committee which recommended the dismissal of trade union officials Rodolfo Jiménez and Francisco Bolaños further to allegations that they had sent a letter of condolences to the President of the Republic of Chile in their capacity as officials of ASODIPLOMATICOS) were those who had been reported by the trade union officials to the press and to the Government Procurator’s Office (as of 24 May 2004) for allegedly siphoning off international cooperation funds donated by the Government of Taiwan, China (US$4.8 million), by receiving on top of their monthly wage an additional sum from the “Association for the Development of Foreign Policy”. These members did not, however, recuse themselves from the dismissal procedure.
11. ANEP alleges that Sara Quirós Maroto, Vice-President of ANEP, ASODIPLOMATICOS has been a victim of hostility and harassment in the workplace by the Minister for Foreign Affairs and his immediate subordinates aimed at forcing her to give up her post in the Ministry’s Legal Department in reprisal for her trade union activities; as a result, Ms Quirós has lodged an appeal for amparo with the Constitutional Chamber and the Civil Service Tribunal to be reinstated in her post and resume her duties; at the time of the appeal, she had been transferred to the Treaty Office. The summary of complaints brought by Sara Quirós Maroto against the authorities of the Ministry of Foreign Affairs and Religion, as reflected in the case files, is set out below:
12. The appellant participated in the open competition for the appointment of an acting chief of the Legal Department of the Ministry of Foreign Affairs. She indicates that, in May 2005, the Minister for Foreign Affairs unilaterally authorized the appointment of Alejandra Solano Cabalceta, who was an employee of the Foreign Service, to the post, and subsequently appointed Danilo González, also an employee of the Foreign Service. In her opinion, these two individuals neither met the necessary requirements nor were qualified to occupy the post. In official letter No. DVM-224-2005 of 9 December 2005, the Acting Minister for Foreign Affairs informed her that she was to transfer to the Treaty Office. As she did not agree to the transfer, in a note dated 12 December 2005 and submitted on 5 January 2006, she lodged a formal objection. That same day, she presented a written submission to the Director-General in which she outlined the problems associated with her transfer. In official letter No. DVM-011-06 of 6 January 2006, notified on 7 March 2006, the Minister for Foreign Affairs and Religion informed her that, as no action had been taken in response to official letter No. DVM-224-2005 and that, in the light of the prevailing requirements of the Treaty Office, she would be transferred to that office, but that her actual place of work would be another Ministry building which was totally isolated from the Legal Department, which remained the Department to which she reported. Upon her reassignment, her duties changed to such an extent that at the current time she has virtually no work to do, a situation which, in her view, is evidence that she is facing discrimination in the workplace and is a way of humiliating her in front of her colleagues. She alleges that, on 16 March 2006, she submitted to the Minister of Foreign Affairs a further objection to her transfer. She indicates that her concerns have not been taken into account. She states that the actions taken by the authorities infringe her rights to privacy, to lodge complaints and to obtain prompt redress, to equality, to due process, to timely and complete administrative proceedings, and also her right to work, and run counter to the principle underlying the recruitment of qualified public servants, as set out in sections 24, 27, 33, 39, 41, 56 and 192 of the Constitution, because, even though she is fully qualified and participated in the competition for the abovementioned post of chief of the Legal Department, other public servants were appointed, who lack the basic qualifications for the post and did not participate in the competition. Furthermore, nothing has been done to follow up on the various objections that she made in writing in connection with her transfer to the Ministry’s Treaty Office and she has instead suffered discrimination in the workplace and has been treated in a humiliating way. In the light of her claims, her appeal is sustained and the current Chief of the Legal Department is ordered not to exercise the functions of that post pending the confirmation of his or her appointment through official public channels. Furthermore, the Minister for Foreign Affairs is ordered to hold a competition to appoint an acting chief, not to appoint any public servant who is not part of the civil service system and to reinstate the appellant to the post that she occupied prior to the ruling made in official letters Nos DVM-224-2005 and DVM-011-06. In addition, a response should be given to the concerns raised on 12 December 2005 and 16 March 2006.
13. As indicated in documentation provided by ANEP, ASODIPLOMATICOS is the new name of a pre-existing association of diplomats (which has existed since 1994), which, according to the notarized records of an extraordinary meeting, began to use its new name on 1 April 2004. Mr Jiménez and Mr Bolaños were elected President and Secretary-General in 2002 and were re-elected in April 2004, together with four other trade union officials. ANEP highlights that the decision not to include ASODIPLOMATICOS in the register of associations was taken for safety reasons and to preclude anti-union reprisals and, for the same reason, the names of its members, as agreed by them, are not disclosed.
14. B. The Government’s reply
15. 819. In its communication dated 6 July 2005, the Government states that Rodolfo Jiménez, Francisco Bolaños and Ernesto Jiménez are not trade union officials; rather, they were appointed by ANEP to establish a branch of ANEP within the Ministry of Foreign Affairs and Religion but had neither carried out that task nor held a single meeting of public servants for that purpose. The name ASODIPLOMATICOS is fictitious; no such association has been registered with the Ministry of Labour and the name appears neither on the register of social organizations nor on the register of legal entities (documents attached). The only organization which exists within the Ministry of Foreign Affairs is the Costa Rican Association of Career Public Servants. In other words, Rodolfo Jiménez and Francisco Bolaños fraudulently used the name of a non-existent association in an attempt to give legitimacy to ill-intentioned acts. They were dismissed through a legal process which did not involve “employer’s liability” on grounds of serious misconduct during their probationary period, as established by the Foreign Service Assessment Committee.
16. 820. Contrary to claims by the Secretary-General of ANEP in his written submission, the letter which was sent by Rodolfo Jiménez Morales and Francisco Bolaños – acting on behalf of the fictitious ASODIPLOMATICOS – to the President of the Republic of Chile (a copy is attached) was not a simple “letter of condolences”.
17. 821. Before explaining the administrative proceedings which applied to Jiménez and Bolaños and the professional responsibilities which they infringed by sending the abovementioned letter, it is worth noting that the sending of the letter was not an isolated incident, but was one of many actions carried out by these individuals, which will be described below. For now, it is necessary only to note that Rodolfo Jiménez Morales had already been served warnings by his immediate superior for failure to carry out his duties and functions and by the Minister for showing a serious lack of respect towards his immediate superior – the Director of International Cooperation – and the Minister himself.
18. 822. In its written submission to the ILO, ANEP has attempted – just as Jiménez and Bolaños had already endeavoured to do with national public opinion – to present the warnings served on Jiménez as “acts of harassment” ensuing from the allegations of irregularities made by himself and Bolaños which were emphatically rejected and denied in the relevant courts by the Ministry of Foreign Affairs on the basis of supporting evidence. There is no doubt that, shortly after their probationary period began in December 2003, these individuals began to demonstrate a clear intention to undermine the image of the institution and that of its senior officials through false accusations. Their intention is apparent in the numerous articles provided by ANEP in its written submission. The aim of their actions, however, remains a mystery.
19. 823. What is incontrovertible is that, presenting themselves as the President and the Secretary-General of the non-existent “Costa Rican Association of Diplomatic and Equivalent Officials (ASODIPLOMATICOS)”, Rodolfo Jiménez Morales and Francisco Bolaños González, as public servants in their probationary period, sent letter ADCR-911-04 dated 31 July 2004 to the President of the Republic of Chile, in which they claimed to be writing “on behalf of the diplomats of Costa Rica who are members of ASODIPLOMATICOS”; they were clearly trying to assume a representative role to which they were not entitled by presenting themselves as spokespersons for other Costa Rican diplomats. Some paragraphs of the letter, which is, not surprisingly, full of spelling mistakes and is couched in language which is highly disrespectful to the President of another country, are set out below:
20. ... we would like to express our deep sorrow and concern over the murder of three dear colleagues who were working in our country for the Chilean Diplomatic Service and who were killed by an officer of the Costa Rican police force, which has not received any diplomatic or psychological training on how to “protect” those who work in the esteemed Embassy of Chile in San José.
21. Regrettably, this situation reaffirms the comments made in August 1998 by the Ministry of Foreign Affairs of Chile on the shortcomings of the foreign service in Costa Rica, in a joint report highlighting the lack of coordination which exists between the Ministry of Foreign Affairs and the Ministry of Security in terms of offering “effective protection” to the diplomats who are posted in Costa Rica. In fact, the issue of the Costa Rican Government’s inability to provide “effective protection” to diplomatic delegations in San José because of a lack of coordination between the Ministry of Security and the Ministry of Foreign Affairs ... .
22. … In view of the pain and sorrow of both countries, we would respectfully but firmly call on the Government of the Republic of Costa Rica to implement immediately the recommendations kindly put forward by the Ministry of Foreign Affairs of Chile on the reform of the Ministry of Foreign Affairs and the Foreign Service of Costa Rica, as set out in the abovementioned report, so that there is no recurrence of the terrible acts described through “negligence” and “lack of skill” on the part of our governmental authorities managing the Foreign Service, which, according to the abovementioned report, are more interested in “partisan politics and culture than in adopting professional and objective criteria” ... .
23. 824. It is clear that the main purpose of this letter was not to offer condolences to the people of Chile but rather to take advantage of the opportunity to discredit the Government of Costa Rica and in particular the authorities of the Ministry of Foreign Affairs and Religion.
24. 825. Because of the serious implications of this letter, the Costa Rican Association of Career Public Servants deemed it necessary to write to the Chilean press, clarifying that Jiménez and Bolaños were not speaking on behalf of Costa Rican diplomats. Likewise, the Deputy Minister for Foreign Affairs of Costa Rica wrote to the chargé d’affaires of Chile in Costa Rica, clarifying that Jiménez and Bolaños were not career diplomats but rather aspiring diplomats on a period of probation and that the body they claimed to be representing bore no relation whatsoever to the Costa Rican Association of Career Public Servants, to which they did not belong.
25. 826. With the aim of causing maximum damage at the national level to the Government, the Ministry of Foreign Affairs and senior officials, Rodolfo Jiménez Morales arranged an interview with the Diario Extra newspaper, which was published in the 5 August 2004 edition. In the interview, in which he introduced himself as President of the non-existent ASODIPLOMATICOS, Jiménez recapitulates most of the abovementioned letter. This action clearly confirms that the purpose of both the letter and the interview was essentially to damage the reputation of the Ministry and its senior officials; after all, if the real reason for the letter had simply been to offer condolences to the President of Chile, there would have been no need for him to approach the national press.
26. 827. In view of its serious implications, the Minister for Foreign Affairs forwarded the letter to the Foreign Service Assessment Committee “to take appropriate legal action”. After having analysed the letter and its possible implications, the Assessment Committee issued resolution No. CCSE-85-04 of 25 August 2004, in which it resolved to initiate administrative proceedings with regard to Rodolfo Jiménez Morales and Francisco Bolaños González on the basis of the legal authority set out in section 42 of the Costa Rican Foreign Service Rules “to verify the facts of the matter in accordance with sections 36, 37, 40, 41, 42, 43 and 134 of the Foreign Service Rules, sections 122–137 and related aspects of the Regulations under the Foreign Service Rules, section 308 and subsequent sections of the Public Administration Act pursuant to decisions 1739-92, 216-98, 7615-98, 718-99, 5733-99 and 1638-99 of the Constitutional Chamber and its case law relevant to due process, and decisions C-049-99, C-261-2002 and C-340-2002 of the Procurator-General’s Office”, in order to determine whether Jiménez and Bolaños had written letter ADCR-911-04, addressed to the President of the Republic of Chile.
27. 828. In the abovementioned resolution initiating the administrative proceedings, Mr Jiménez and Mr Bolaños were warned that the act of sending the letter and the act by Jiménez of giving an interview to the Diario Extra newspaper might constitute breaches of: sections 34 and 35 of the Foreign Service Rules; section 5, section 6, paragraph 3, and section 11, paragraphs 13, 14, 19 and 21, of the Regulations under the Foreign Service Rules; sections 48 and 51(d) and (p) of the Rules of Procedure of the Ministry of Foreign Affairs and Religion; sections 81(b) and (l) of the Labour Code; and section 211, paragraph 1, of the Public Administration Act. If deemed to be offences, these acts would constitute grounds for dismissal without employer’s liability, in accordance with the relevant regulations.
28. 829. In resolution No. CCSE-85-04, Jiménez and Bolaños were also granted in writing a period of five working days, from the date on which they were notified of that resolution, to exercise their right to defend themselves or to seek counsel, to indicate whether they accepted or rejected the facts and to provide relevant evidence. They were informed that, once they had been notified, they should indicate an address in order to receive notifications and that, if they failed to do so, any future resolutions would be deemed to have been notified, in accordance with Act No. 7637 on Notifications, Citations and other Legal Communications in Force; in addition, they were informed that they could be subject to specialized investigation; that the notification document allowed for the remedy of revocation and appeal within a period of three days, in accordance with section 134 of the Regulations under the Foreign Service Rules and sections 342, 345.1, 346 and 349 of the Public Administration Act; and that the case file would be kept in the custody of the Foreign Service Assessment Committee and would be available for consultation and photocopying in the office of the Director of the Diplomatic Institute of the Ministry of Foreign Affairs and Religion, Manuel María de Peralta.
29. 830. At 11 a.m. on 27 August 2004 at his home (condominium No. 12 at the Córdoba Condominium Apartments), Rodolfo Jiménez Morales was duly notified of the resolution to initiate administrative proceedings. A person who identified herself as his wife was not allowed to sign receipt of the notification document, as is indicated in that document, which was signed by Jorge Aguilar Castillo (who is a member of the Assessment Committee), Susana Araya Zamora and Paola Porras Pastan, who acted as witnesses. Mr Jiménez had to be notified at his home because he had not been to work at the Ministry for several months, claiming that he was medically unfit, even though during that period it was common knowledge that he visited the offices of the Legislative Assembly and even appeared in the press.
30. 831. At 11.55 a.m. on 27 August 2004, on the premises of the Department for the Promotion of the Ministry of Foreign Affairs and Religion, Francisco Bolaños González was notified in person of the resolution to initiate administrative proceedings, as indicated in the notification document in question, which was signed by Mr Bolaños González himself and witnesses Marcela Zamora Ovares (who is a member of the Assessment Committee) and Jorge Martín Jiménez.
31. 832. Despite all the warnings given to Mr Jiménez and Mr Bolaños, they chose neither to refute the charges in writing nor to exercise their right to defence and they did not even indicate where they could receive future notifications. It is noted that, even though the facts were common knowledge, the Foreign Service Assessment Committee tried to provide Jiménez and Bolaños with every possible guarantee of due process and gave them the opportunity to exercise their right to defence, but they chose not to do so. Instead, they based their strategy on launching personal attacks against the members of the Assessment Committee, which is what the Secretary-General of ANEP is doing now in his written submission.
32. 833. On the basis of the administrative procedure which was carried out and after it had been completed, the Assessment Committee confirmed evidence that Jiménez and Bolaños did in fact send letter ADCR-911-04 to the President of the Republic of Chile and that Jiménez subsequently gave an interview which was published in the Diario Extra newspaper on 5 August 2004. These actions, in the opinion of the Assessment Committee, infringed the following regulations, as indicated in the resolutions relating to the dismissal, the pertinent parts of which are paraphrased below:
33. Foreign Service Rules
34. Section 34. The duties of diplomatic and consular officials in service are: (a) to uphold the interests and the reputation of the Republic.
35. In the light of the above, the letter sent by Jiménez Morales and Bolaños González to the President of the Republic of Chile, in which they blamed the Ministry of Foreign Affairs of Costa Rica for the tragic events that took place at the Chilean Embassy on 27 July 2004, is damaging to the reputation of the Republic of Costa Rica, given that there is no legal or administrative document that attributes responsibility to the Ministry of Foreign Affairs and Religion; consequently, the claims made in the letter are false and defamatory.
36. Section 35. Public servants in the Foreign Service are prohibited from: ... (c) removing documents from the archives of a mission, consulate or ministry for their personal use, or publishing them without the authorization of the Ministry of Foreign Affairs.
37. In the light of the above, Rodolfo Jiménez Morales and Francisco Bolaños González made personal use, without the authorization of the Ministry, of the report in question on enhancing the professionalism of the Foreign Service of Costa Rica. The Assessment Committee considered that the letter which was written and sent is adequate proof that these individuals had access to the report and used it inappropriately without the authorization of the Ministry of Foreign Affairs and Religion.
38. Regulations under the Foreign Service Rules
39. Section 5. Functions. The functions of the Foreign Service are: (a) to promote and protect the interests of the country and its nationals in its dealings with foreign States, as well as in the international bodies and meetings in which Costa Rica participates.
40. In the light of the above, the letter sent by Mr Jiménez and Mr Bolaños to the President of the Republic of Chile unquestionably undermines the interests of the country, by blaming the Ministry of Foreign Affairs and Religion and the country for the tragic events which resulted in the death of three Chilean diplomats, an action which could have jeopardized diplomatic relations between the Republic of Chile and the Republic of Costa Rica.
41. Section 6. General obligations. Without prejudice to the provisions of the Foreign Service Rules, the Public Administration Act, the Labour Code, the Financial Administration Act and the Sexual Harassment Act, the obligations of public servants in the Foreign Service are: ... 3. to show respect and courtesy for all Ministry staff, in particular senior Ministry officials.
42. In the light of the above, the letter sent by Mr Jiménez and Mr Bolaños to the President of the Republic of Chile, specifically the part which states “... so that there is no recurrence of the terrible acts described through “negligence” and “lack of skill” on the part of our governmental authorities managing the Foreign Service, which are more interested in “partisan politics and culture than in adopting professional and objective criteria” is a serious breach of the obligation to show respect for senior Ministry officials. It is assumed that the intention of Rodolfo Jiménez Morales and Francisco Bolaños González was not only to blame the Ministry and the country for such a terrible act, but at the same time to make a political statement in an underhand and offensive way, which is a mark of disrespect for the senior officials of the Ministry of Foreign Affairs and Religion.
43. Section 11. General prohibitions. In addition to the prohibitions provided in the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, the Labour Code, the Foreign Service Rules and the associated Regulations, the Financial Administration Act, the Regulations on the Ethics of the Ministry and other relevant regulations, public servants in the Foreign Service are prohibited from: ... 13. exceeding the authority to which they are entitled by virtue of their functions or duties and assuming authority to which they are not entitled; 14. disclosing the contents of reports, documents, instructions or directives of the mission or Ministry or making public any internal or private office matter without the express authorization of the Ministry; ... 19. behaving in a way that undermines ethics and good conduct without regard for the responsibilities that are inherent in their posts and which are common to all public servants; ... 21. expressing any personal opinions to the press on work-related matters, international politics or the internal affairs of the host State which could compromise their country, without the express authorization of their senior officials.
44. In the light of the above, in the letter they sent to the President of the Republic of Chile, Jiménez Morales and Bolaños González exceeded their functions and duties and assumed authority to which they were not entitled, in breach of section 11, paragraph 13, of the Regulations and in clear violation of the basic rules on the customs and usages of international protocol and diplomacy, according to which only those of an equivalent rank should send correspondence to the Head of State of another country. As public servants in their probationary year in the Foreign Service of the Republic, they did not have the authority to write to the Head of State of another country, as they did. Furthermore, to make matters worse, the letter clearly contains inappropriate language and spelling mistakes throughout, which is in itself a mark of disrespect for the Head of State of another country. With regard to section 11, paragraph 14, of the Regulations, Jiménez and Bolaños make improper use of a document which is the property of the Ministry of Foreign Affairs and Religion by disclosing some of its contents without authorization, as has been demonstrated. To make matters worse, it was used, knowingly and with wrongful intent, with the aim of damaging the image of the Ministry of Foreign Affairs and Religion. With regard to paragraph 19, relating to conduct, Jiménez and Bolaños failed to demonstrate, even during their period of probation, the ethics and good habits that should be common to all public servants, in particular those in the Foreign Service, with regard to safeguarding the good image of the country and of the Ministry of Foreign Affairs and Religion and upholding and protecting the image of other public servants and diplomatic colleagues, whom they claimed to represent in a letter which purported to present the position of career diplomats. None of these diplomats, however, with the exception of Jiménez and Bolaños, are members of the association in question, which moreover does not even exist in legal terms, as it is not listed on the National Public Register, as was established by the Assessment Committee and stated in pages 18–20 of the administrative file on the present case. With regard to paragraph 21 of the cited section, in the letter in question, Jiménez and Bolaños clearly expressed personal opinions on a document to which they must have gained access undoubtedly through their work, as that is the only way in which they could have gained access to it. The situation is worse where Jiménez is concerned, because he also expressed his personal opinion and moreover made this opinion known in the national press, in other words in the newspaper Diario Extra.
45. Rules of procedure of the Ministry of Foreign Affairs and Religion
46. Section 48. In addition to the obligations provided in the Civil Service Rules and the associated Regulations, the Public Administration Act, the Labour Code and other regulations, public servants are obliged: ... (k) to ensure that the good image of the Ministry is neither undermined nor compromised through immoral or inappropriate behaviour, even outside working hours.
47. Letter ADCR-911-04 written by Mr Jiménez and Mr Bolaños and the overt statements by Mr Jiménez Morales which appeared in the national press could have caused serious damage to the image of the Ministry of Foreign Affairs. As public servants in the Foreign Service, Jiménez and Bolaños were aware that writing and sending the letter in question and the statements made by Jiménez to the Diario Extra newspaper could be damaging to the institution and on these grounds their actions are considered inappropriate and immoral and constitute serious misconduct in the Foreign Service and a violation of the Rules of Procedure of the Ministry of Foreign Affairs and Religion.
48. Section 51. In addition to the prohibitions provided in the Civil Service Rules and the associated Regulations, the Labour Code, the Public Administration Act and other legal provisions, employees are strictly prohibited from: ... (d) making statements or issuing publications which could undermine or damage the good reputation of the Ministry or of any of its public servants or employees; ... (p) exceeding the authority conferred upon them by virtue of their assigned functions or duties and assuming authority to which they are not entitled.
49. Regarding paragraph (d) of this section, both the writing of the letter in question by the two public servants and the statements made to the Diario Extra newspaper by Mr Jiménez could have damaged the image of the Ministry of Foreign Affairs, both at the national and international levels. Likewise, by writing the letter, Jiménez Morales and Bolaños González acted beyond the legal scope of their functions, as they had not been instructed by their superiors to take such action and there are no legal regulations to authorize it.
50. Labour Code
51. Section 81. An employer has just cause to terminate a work contract: (a) when the worker, while in the workplace, behaves in an openly immoral manner or insults, abuses or carries out acts of violence against his or her employer; … (c) when the worker outside the workplace and outside working hours insults, abuses or carries out acts of violence against his or her employer or a representative of the employer in work-related matters, if such acts are unprovoked and would make it impossible to maintain good working relations and harmony in the workplace; ... (l) when the worker commits any other serious misconduct in breach of the terms of his or her contract. It is understood that, whenever a dismissal is based on action which is also punishable by criminal law, the employer retains the right to take appropriate action with the public law enforcement agencies.
52. With regard to paragraphs (a) and (c) of section 81, given the serious nature of the claims in the letter in question, there is no doubt that Mr Jiménez Morales and Mr Bolaños González insulted senior Ministry officials and employer representatives by blaming them for the events that took place in the Embassy of Chile on 27 July 2004. Bolaños González made the claims while he was at work, consistent with the situation set out in paragraph (a) of the section, while Jiménez Morales made them outside the workplace during the period when he was unfit for work, consistent with the situation set out in paragraph (c) (his certificate of incapacity can be found on page 7 of the file on the administrative proceedings). Furthermore, the actions of Mr Jiménez Morales and Mr Bolaños González constitute, as described in the paragraphs above, a serious failure on their part to fulfil their obligations as public servants in the Ministry of Foreign Affairs and Religion under the abovementioned regulations; this being the case, as demonstrated in the present proceedings, the penalty is dismissal without employer’s liability, in accordance with paragraph (l) of section 81.
53. Public Administration Act
54. Section 211.1. Public servants shall be liable to disciplinary responsibility for their actions, acts or deeds which are in breach of regulations, when they have acted with malice or gross negligence, without prejudice to the more serious disciplinary measures provided under other laws.
55. In the light of the above, the letter sent to the President of the Republic of Chile by Mr Jiménez Morales and Mr Bolaños González and the subsequent statements by Mr Jiménez Morales to the Diario Extra newspaper are acts which constitute serious misconduct, as described and confirmed in the present proceedings. Mr Jiménez Morales and Mr Bolaños González were fully aware of the implications of their acts, which constituted an infringement of their duties and obligations as public servants of the Ministry of Foreign Affairs and Religion and consequently a violation of the Public Administration Act.
56. Associations Act
57. Article 5. All associations must be established on the basis of a set of general rules that governs their activities and which shall be known as their “statute”.
58. For an association to conduct its activities legitimately, it must be included on the Register of Associations which is maintained for this purpose by the Ministry of Governance and which forms part of the National Register. The legal status of the association and that of its representatives is conferred upon its registration.
59. 834. The Assessment Committee notes that the actions of Mr Jiménez Morales and Mr Bolaños González were conducted under the name of the “Costa Rican Association of Diplomatic and Equivalent Officials (ASODIPLOMATICOS)”. Thus, letter ADCR-911-04 of 31 July 2004 to the President of the Republic of Chile begins with the words: “On behalf of the diplomats of Costa Rica who are members of ASODIPLOMATICOS ...”. Similarly, the Assessment Committee has noted and demonstrated that the letterhead used for the communication in question contains the following information: “Costa Rican Association of Diplomatic and Equivalent Officials (ASODIPLOMATICOS). San José, tel.: [phone], fax.: [phone], [e-mail]”. The day after the 13th extraordinary meeting of the Assessment Committee, which was held on Monday, 16 August 2006, and as agreed at that meeting, the chair of the Committee requested the Registry of Legal Entities to provide confirmation of the existence, registration and statute of the “Costa Rican Association of Diplomatic and Equivalent Officials (ASODIPLOMATICOS)”, indicating that the association in question might also be known as the “Manuel María de Peralta Costa Rican Association of Diplomats and Equivalent Officials (ASODIPLOMATICOS)”. In response to this inquiry, the Registry of Legal Entities issued certificate No. 20238-2004 at 3.01 p.m. on 17 August 2004 and certificate No. 20239-2004 at 3.03 p.m. on 17 August 2004, which are set out on pages 18–20 of the case file, which confirm that neither the Costa Rican Association of Diplomats and Equivalent Officials nor the Manuel María de Peralta Costa Rican Association of Diplomats and Equivalent Officials had been listed in the register and that the names had not been reserved. Consequently, it is established that Jiménez Morales and Bolaños González claimed to be representing Costa Rican diplomats using the name of an association which is non-existent in so far as it neither exists in law nor in fact. This constitutes a breach of national legislation under section 5 of the Associations Act and sections 343 and 344 of the Labour Code, and also constitutes serious misconduct under paragraph (1) of section 211 of the Public Administration Act, which, in accordance with the legislation referred to in the present proceedings, constitutes a ground for dismissal without employer’s liability.
60. 835. On the basis of the above reasoning, as set out in resolutions CCSE-94-04 and CCSE-95-04, the Assessment Committee decided to apply the sanction of dismissal without employer’s liability. In order to enforce this decision, the Minister and the President of the Republic signed agreements Nos 505-2004-RE and 506-2004-RE ordering the dismissal of Francisco Bolaños González and Rodolfo Jiménez Morales.
61. 836. To counter his dismissal, Jiménez Morales proceeded to use (or abuse) the remedy of amparo against the Minister and the Foreign Service Assessment Committee, alleging violations of due process. It is interesting to note that the written submission by the Secretary-General of ANEP reproduces almost exactly, with some additional details, the arguments made by Jiménez Morales on that occasion.
62. 837. In essence, the complaint presented by the Secretary-General of ANEP is virtually identical, with some additional information and a few new details, to the complaint submitted to the Constitutional Chamber by Jiménez Morales on that occasion. Regrettably, the Secretary-General of ANEP also reproduced in writing many of the lies which Jiménez had told at the time.
63. 838. The appeal for the protection of amparo lodged by Jiménez was accepted for consideration as case No. 04-011738-0007-CO and was rejected by the Supreme Court of Justice.
64. 839. The Committee on Freedom of Association can be assured that if, following its consideration of the case, the Constitutional Chamber endorsed the dismissal procedure applied to Jiménez Morales and Bolaños González, it is because the court found no irregularities in the procedure and in particular no infringements of the right to due process or of the country’s legal or constitutional standards. Therefore, given that the present complaint reproduces almost exactly the main allegations made by Jiménez in his appeal for the protection of amparo in respect of his dismissal, which was rejected, it would seem logical that this complaint should also be rejected.
65. 840. Furthermore, the Government states that, just as Rodolfo Jiménez Morales had done previously in his appeal for the protection of amparo and as both he and Francisco Bolaños had done in their letter to the Procurator-General’s Office, ANEP is attempting in the present complaint/request to create a smokescreen by making reference to wrongful activities supposedly carried out by the authorities of the Ministry of Foreign Affairs – claims which are completely false – in its efforts to present the dismissal of these individuals as an act of harassment.
66. 841. The complaint presented by ANEP is based on the following central issues: (a) that Rodolfo Jiménez and Francisco Bolaños were trade union officials; (b) that, in exercising their leadership and function as trade union officials, they made serious allegations of corrupt activity in the Ministry of Foreign Affairs; and (c) that, in reprisal for these allegations and for their trade union activities, they were harassed by Ministry authorities, initially by the Director of International Cooperation in his capacity as the immediate superior of Rodolfo Jiménez and subsequently by the Minister and the Foreign Service Assessment Committee, leading to their dismissal without employer’s liability.
67. 842. Given the serious nature of the accusations originally presented by Jiménez and Bolaños and now repeated and taken up by the Secretary-General of ANEP, and mainly because of the damage to the reputation and honour of the individuals mentioned in the present complaint, it is necessary to provide some additional details to demonstrate that all these claims are blatant lies and distortions, which is evidence once again of the bad faith that has characterized from the outset the actions of Rodolfo Jiménez and Francisco Bolaños and now those of the Secretary-General of ANEP.
68. 843. Throughout the complaint by ANEP, reference is made to the so-called siphoning of Taiwanese cooperation funds by senior Ministry officials. The content of the criminal charge is summarized below:
69. On 24 May, Rodolfo Jiménez and Francisco Bolaños, in their capacity as President and Secretary-General (sic) of ASODIPLOMATICOS, made allegations publicly and to the Legislative Assembly (Congress of the Republic) of irregularities supposedly committed by senior Ministry officials, under the leadership of the Minister, Roberto Tovar Faja, who is hereby accused of fraudulently siphoning US$4.8 million which had been generously donated by the Government of Taiwan, China, for projects to develop the economy and the tourist sector in Costa Rica’s northern zone, to a parallel private structure established to pay salaries, bonuses and benefits to 13 Ministry officials … .
70. 844. This paragraph sums up and reflects the essence of the false and ill-intentioned accusations presented by Jiménez and Bolaños against the Minister for Foreign Affairs and Religion. It is worth noting, first of all, that the case does not involve a criminal charge, as is suggested in the complaint presented by ANEP, given that, to date, no charges have been brought; but rather it involves a complaint by individuals which is being examined by the Office of the Public Prosecutor to determine whether there are sufficient grounds for an inquiry and possibly a formal charge by that Office. The contents of the case file in question are based largely on the account of events set out in a complaint presented to the Judicial Investigation Department by Rodolfo Jiménez Morales on 13 September 2004 and on the written account that Jiménez Morales and Francisco Bolaños González submitted to the Procurator-General on 25 October 2004.
71. 845. On 15 February 2005, the Minister for Foreign Affairs and Religion submitted to the Office of the Public Prosecutor a 42-page document and a significant amount of documentary evidence which clearly demonstrate that the accusations made by Jiménez and Bolaños, which are now also being made by the Secretary-General of ANEP, are all unfounded and actually involve blatant lies, the manipulation of the truth and the distortion of statements made by third parties. Above all, it is clear that Jiménez and Bolaños acted in an openly ill-intentioned way when they issued these statements.
72. 846. To sum up, the conclusions drawn by Roberto Tavar Faja in his written submission are set out below:
73. IV. Conclusions
74. The aim of the complainants in their accusations against me, which are completely unfounded and totally untruthful, was to report a totally false set of circumstances to the Office of the Public Prosecutor.
75. In an attempt to hold me responsible for a crime – possibly the misappropriation of public funds – they have put forward a fictitious version of events based on the following untruths:
76. – that, during the period when Mr Tovar Faja was Minister for Foreign Affairs, the Government of Taiwan, China, donated to Costa Rica the sum of US$4,800,000 for various development projects in Costa Rica’s northern zone;
77. – that the Minister for Foreign Affairs of Taiwan, China, and the Taiwanese Ambassador confirmed, in the Costa Rican newspapers, that this sum of US$4,800,000 was donated to the Government for such development projects in Costa Rica’s northern zone;
78. – that Mr Tovar Faja was responsible for the administration of the US$4,800,000, which he siphoned off to pay bonuses to 21 public servants;
79. – that, in addition to this amount, Mr Tovar Faja received the sum of 836,000.39 Costa Rican colones in expenses;
80. – that Mr Tovar Faja never provided an explanation as to why he siphoned off the sum of US$4,800,000 for the payment of bonuses, when he should have used that money for a project to develop the economy and the tourist sector in Costa Rica’s northern zone.
81. In order to counter such claims, throughout this document we have presented the truth with total transparency. Specifically for the complaint in question, the following truths have been established:
82. – that the case involves regional cooperation by Taiwan, China, in the context of the Central American Integration System (SICA), and not a donation by Taiwan, China, to the Government of Costa Rica;
83. – that decisions relating to regional cooperation funds and programmes are made by a joint committee which operates within the legal framework of SICA, not by any one minister in particular;
84. – that approximately US$4,800,000 was earmarked for Costa Rica under a project to build the capacities of foreign ministries throughout Central America. Of this amount, approximately US$3,300,000 was earmarked for the period when Roberto Rojas López was Minister for Foreign Affairs. The remaining amount was earmarked for the period when Roberto Tovar Faja was in office;
85. – that, with the agreement of SICA and the Embassy of Taiwan, China, these funds are disbursed in line with the subprogrammes being implemented and developed by the foreign ministry of each Central American country, in accordance with the specific jurisdiction of each ministry;
86. – that, within the Ministry’s specific jurisdiction during the term of office of Roberto Rojas López, all subprogrammes to promote the project to build the capacities of foreign ministries were approved and, as such, these subprogrammes would continue during Mr Tovar Faja’s term of office;
87. – that, within the Ministry’s specific jurisdiction during the term of office of Roberto Rojas López, the funds would be distributed through the Association for the Development of Costa Rica’s Foreign Policy, as had been the case during the periods of office of previous ministers such as Bernd Niehaus and Fernando Naranjo, both of whom made use of such foundations and associations. The ministers all, respectively, presided over the foundation or association in question;
88. – that, during the term of office of Tovar Faja, the Association for the Development of Costa Rica’s Foreign Policy continued to be used for the purposes of implementing the project to build the capacities of foreign ministries. In this case, Tovar Faja was neither chair nor a member of the Association’s executive board;
89. – that Tovar Faja has provided members of parliament with absolutely all the information that has been requested of him in relation to the case;
90. – that, in particular, he has provided them with a detailed statement prepared by the association relating to each and every one of the cheques cashed for the implementation of the abovementioned subprogrammes;
91. – that the only statements made by the Minister for Foreign Affairs of Taiwan, China, and the Taiwanese Ambassador in connection with the case have been in reference to a cheque for US$250,000 which was received for another regional programme, on the Central American system for the promotion of and information on foreign trade, investments and tourism, the full amount of which is still deposited in the relevant current account.
92. From all the above, it is clear that the case in question does not involve a donation by the Government of Taiwan, China, to the Government of Costa Rica. Far less does it involve the siphoning of funds, as the project to build the capacities of foreign ministries is part of a Taiwanese regional cooperation project with SICA and has been implemented both in terms of form and content, in accordance with the specific jurisdiction of each of the foreign ministries of Central America. With regard to the regional programme to promote and provide information on foreign trade, investments and tourism, not a single payment had been made at the time of the complaint. Furthermore, as has been amply demonstrated, there is not and never has been any sort of project to promote social and economic development and tourism among the marginal populations in the country’s northern zone.
93. The only thing that remains unclear is what the complainants really hope to achieve by their action.
94. San José, 15 February 2005.
95. 847. As has been noted, the information set out in the fifth point of the written submission by ANEP is totally false and is, in fact, slanderous. First of all, the figure of US$4.8 million corresponds to the total amount of Taiwanese cooperation disbursed between 1998 and the present, and only a quarter of that amount was actually disbursed during Tovar Faja’s term of office. Secondly, none of this money has been used for purposes other than those agreed by the Ministry of Foreign Affairs, in accordance with the rules established for this type of cooperation. Thirdly, there is not and never has been a project to develop the economy and the tourist sector in the country’s northern zone, as the Secretary-General of ANEP erroneously claims; there is, therefore, absolutely no way that funds could have been siphoned from a project that does not exist. There is a project, however, set up by a joint committee for cooperation between Central America and Taiwan, China, which is channelled through the Central American Integration System, implemented by the foreign ministries of Central America and aimed at building the capacities of those ministries, under which the Ministry of Foreign Affairs receives support from staff employed by the Association for the Development of Costa Rica’s Foreign Policy.
96. 848. With regard to the warnings received by Rodolfo Jiménez, the Government indicates that in various parts of the written submission by the Secretary-General of ANEP, it is noted that, as a result of the complaints lodged by Jiménez and Bolaños in May 2004 in connection with the alleged siphoning of funds, Rodolfo Jiménez was a victim of harassment by the authorities of the Ministry of Foreign Affairs. It is noted that “as a result of the complaints he lodged, Mr Jiménez has been the victim of a campaign of harassment and hostility conducted by his immediate superior Carlos Manuel Echevarría Esquivel and also by Roberto Tovar Faja, the Minister for Foreign Affairs, with the aim of forcing him to resign from his post …”.
97. 849. Once again, the Secretary-General of ANEP is not telling the whole truth. The warnings received by Rodolfo Jiménez Morales from both the Director of International Cooperation and the Minister for Foreign Affairs were for recurring acts of professional misconduct committed by Jiménez, some of which shall be explained below. First of all, however, it is worth noting that there are two factors which from the outset demonstrate just how false the arguments put forward by ANEP are: (a) although Jiménez and Bolaños lodged their first complaint in May 2004, the warnings received by Jiménez began at the latest in February 2004, following serious failures on his part to fulfil his professional duties, which demonstrates that the warnings were clearly not issued in reprisal for his complaints; and (b) if the warnings had been issued in reprisal for complaints made by both Rodolfo Jiménez Morales and Francisco Bolaños González, why did only Jiménez receive them?
98. 850. The truth of the matter is that, practically as soon as he commenced his probationary year, Rodolfo Jiménez Morales behaved in an undisciplined, disrespectful and defiant manner, with regard to both his colleagues and his superiors. The Government has attached some relevant documents as proof of this behaviour, including copies of an e-mail exchange between Carlos Manuel Echevarría, the Director of International Cooperation, and his subordinate Rodolfo Jiménez, which show how Jiménez failed to fulfil the duties assigned to him; records of the repeated and unjustified absences of Jiménez; and the written warnings that Jiménez received from both the Director of International Cooperation and the Minister. Attention is drawn, in particular, to the hand-written annotations by Jiménez on some of the letters addressed to him by the Director of International Cooperation and the Minister, which are an indication of his blatant lack of respect for his superiors.
99. 851. With regard to the confiscation of documents and the so-called search of Rodolfo Jiménez’s office, the Government indicates that, in his attempts to claim that Rodolfo Jiménez was a victim of harassment – just as Jiménez and Bolaños had already endeavoured to do with national public opinion – the Secretary-General of ANEP makes reference to the so-called confiscation of documents from Jiménez to prevent him from removing them from the Ministry, as well as to the so-called search of his office (which is referred to as the office of ASODIPLOMATICOS).
100. 852. According to ANEP, the Minister “authorized other subordinates to conduct ‘covert’ acts of hostility and harassment against Mr Jiménez, which included searching him without a legal warrant to determine whether he had in his possession ‘public documents belonging to the Department of International Cooperation’ relating to the irregularities which had been uncovered and which are described above …”. “The Director of International Cooperation in the Ministry conducted the search on the basis of a directive which had been drawn up for that purpose the same day …. The purpose of searching him and confiscating the information, according to what Mr Jiménez told the press, was to establish a ‘gagging law in the Ministry’, to conceal the extent and scale of the prevailing irregularities. The result was that Rodolfo Jiménez Morales was the only person to be searched, as is reported in the newspaper La Nación ...”. “At the same time as this measure to search only Mr Jiménez in connection with ‘confidential documents’ of public interest, the Minister for Foreign Affairs requested the Minister of the President’s Office, Ricardo Toledo Carranza, to deploy the Rapid Intervention Officers of the Department of Intelligence and Security – known by the abbreviation ‘DIS’ – to carry out a ‘covert search’ without a warrant of the office occupied by Rodolfo Jiménez Morales in the Department of International Cooperation of the Ministry of Foreign Affairs, with the clear intention of intimidating and instilling fear in Mr Jiménez in the light of the complaints made public by him and others …”.
101. 853. These claims – which are emphatically rejected as being false – are a good example of the strategy frequently employed by these individuals to manipulate facts, as part of their ploy to present themselves to the public as victims of harassment as a result of their complaints relating to the alleged irregularities that they “uncovered” in the Ministry. For several months last year, Jiménez and Bolaños devoted themselves to spreading a string of lies to members of Parliament and the press in connection with the alleged siphoning of Taiwanese cooperation funds, which were duly rejected by the relevant courts, as is described above; many of these lies have been reproduced in the written submission by ANEP. In this context, there were many examples of misconduct, such as the removal by Jiménez and Bolaños of numerous documents from various Ministry offices. Under the circumstances, the Director-General of the Ministry was obliged to issue circular DG 278-04 of 26 May 2004, which informed security officials that “as of tomorrow, any public servant from a Ministry department who needs to remove work-related files or documents from the premises must have the written authorization of the relevant manager”. The circular does not prohibit the removal of documents or copies of documents; it simply establishes the need to have written permission from the relevant manager.
102. 854. The reason for this directive is obvious: government offices are depositaries of official and public information and it is their duty to safeguard it, not to conceal it. This duty is all the more important in the case of the Ministry of Foreign Affairs, which is the depositary of official documents of nationwide importance, including the originals of international instruments such as treaties, protocols and bilateral agreements. Under no circumstances should public servants be permitted to take the liberty of removing documents as they wish from the offices in which they work. In fact, the Foreign Service Rules expressly provide for this prohibition:
103. Section 3. Public servants in the Foreign Service are prohibited from: ... (c) removing documents from the archives of a mission, consulate or ministry for their personal use or publishing them without the authorization of the Ministry of Foreign Affairs.
104. 855. The aim of the circular was therefore to prevent abuse by unscrupulous public servants such as Jiménez and Bolaños, who, in blatant disregard for the Ministry authorities and showing an arrogant contempt for the basic principles of public office, felt that they had the authority to act as they pleased in the Ministry.
105. 856. It is noted that Jiménez deliberately acted with brazen assurance on the occasions that he took documents, knowing full well that such action was prohibited by the Foreign Service Rules. His aim was to defy the Ministry authorities and thus create a situation which he could later present to the public as an attempt to silence him, which is in fact what he did and what ANEP continues to do in its written submission. This was certainly the case with the incident of 27 May 2004, to which reference is made on page 15 of the written submission by ANEP and which was the subject of a newspaper article, which is cited in part in the written submission. Nevertheless, there is one detail which demonstrates that the incident was deliberately engineered by Jiménez: the presence of the press at the very time and place of the incident. The journalist from the newspaper La Nación was present because he had been invited by Jiménez to witness the performance that he had staged. As is clear from the photograph which accompanies the article, Mr Jiménez appears carrying a large package of files and documents, which he refused to show and then removed from the Ministry. The article concludes by indicating that Jiménez “left the Ministry with the files”.
106. 857. Furthermore, the press release dated 26 May 2004 attributed to Francisco Bolaños is another example of how these individuals manipulated the facts as part of a publicity campaign, on this occasion referring to circular DG 278-04 as a “gagging law”, with Jiménez alleging, according to the press release, that “the aim of the measure was to cover up for corrupt individuals ...”. The Government is attaching copies of circular DG 278-04, the complete press release attributed to Bolaños and the newspaper article from La Nación of 28 May, in which Jiménez is shown removing files and documents from the Ministry.
107. 858. Lastly, the issue of the so-called search of Jiménez’s office involves another blatant manipulation of the facts. As indicated in the copy of the article which featured in the Diario Extra of 27 May 2004 and which is reproduced on page 11 of the written submission by ANEP, Jiménez stated publicly: “They also tapped my telephones ...”. These irresponsible and unfounded statements, which are typical of Jiménez and Bolaños in their efforts to stir up trouble, could not be ignored by the Ministry, because of their serious nature. Therefore, in an attempt to determine whether or not these statements by Jiménez had any truth in them, the Department of Intelligence and Security (DIS) was asked to assist by conducting an investigation of the telephone line used by Jiménez, to confirm or dismiss these allegations of phone tapping.
108. 859. The investigation of the telephone line used by Jiménez was conducted on 1 June 2004 by two experts from the DIS, in the presence of two public servants from the Legal Department of the Ministry who acted as witnesses and who prepared a report on the matter (which is attached). The investigation revealed that the telephone line used by Jiménez was not tapped, which shows that the public statement he made to the press was false, as were many of his other statements.
109. 860. In any case, it is clear that checking whether or not a telephone line is tapped can in no way be considered a “search”. First of all, the telephone line in question belongs to the Ministry, not to Jiménez, and the Ministry is perfectly entitled to carry out whatever inspections of its own equipment that it deems necessary. Secondly, the objective of a “search”, which has to be authorized by a court and carried out by the Judicial Police, is usually to seize or confiscate evidence that might be of interest for a legal investigation or help to detain a suspect. This was not the case here, as the desk assigned to Jiménez and its contents were not even touched. As indicated in the report, the action taken was limited to “the internal analysis of extension 239 of this Ministry’s telephone exchange”.
110. 861. It has been demonstrated, therefore, that there is absolutely no substance in the claims that a search was carried out of Jiménez’s office (far less the office of ASODIPLOMATICOS). The claim that the telephone line used by Jiménez had been “tapped” was also false.
111. 862. With regard to the case of Ernesto Jiménez Morales, the brother of Rodolfo Jiménez, it is suggested that Ernesto Jiménez Morales was dismissed from his post in reprisal for acts committed by his brother, although there is no indication of what those acts might have been and the motives for taking such reprisals against him.
112. 863. “According to ANEP, four days after Rodolfo Jiménez had started work at the Ministry, the Minister took the decision to dismiss his brother, Ernesto Jiménez Morales, from his post as General Consul and Counsellor at the Embassy of Costa Rica in the Russian Federation ... making him the only person appointed during this administration of President Pacheco de la Espriella to be dismissed from the diplomatic and consular service … The Minister proceeded to dismiss only Ernesto Jiménez Morales, the brother of Rodolfo Jiménez Morales, who was acting as the Under-Secretary of International Affairs of ASODIPLOMATICOS.”
113. 864. It is striking that Ernesto Jiménez Morales is described as the “Under-Secretary of International Affairs of ASODIPLOMATICOS”. Also, Ernesto Jiménez Morales is surprisingly listed in the complaint among the “trade union officials of ASODIPLOMATICOS and ANEP, with all the trade union rights which derive from their trade union status ...”. In the petition, he is also mentioned in these two capacities, although no evidence at all is provided in support of such claims. This is inexplicable, as it is the first time ever that this individual is presented as a member of the inexistent ASODIPLOMATICOS and his name does not appear on what is claimed to be the letter of accreditation of ANEP. What makes this all the more strange is that Ernesto Jiménez Morales is not even a diplomat, but is temporarily occupying a diplomatic post on secondment, as is explained below. This information demonstrates once again the lack of sincerity which characterizes the complaint.
114. 865. With regard to the dismissal of Ernesto Jiménez Morales, it is important to note first of all that the individual in question was a public servant who had been appointed to work for the Foreign Service on secondment. The Foreign Service Rules establish the legal authority of the Executive Power to appoint public servants on a temporary basis in the Foreign Service, known as “staff on secondment”. According to section 48 of the Foreign Service Rules, “public servants on secondment shall be those who, either for special reasons of national interest, because of a shortage of career public servants or for other pressing reasons, are called on to discharge those duties in the Foreign Service which are usually reserved, in accordance with the present law, for persons who are members of the Foreign Service.” Section 49 establishes that “public servants on secondment shall be freely appointed and dismissed by the Executive Power and may be called on to discharge their duties ad honorem, on the condition that they are appointed for a period of no more than six months”.
115. 866. Section 26 of the Regulations under the Foreign Service Rules confirms that seconded public servants may be freely appointed or dismissed: “Public servants on secondment shall not benefit from security of employment by the State and shall be freely appointed and dismissed by the Executive Power in accordance with section 49 of the Rules ...”.
116. 867. It has been established that the dismissal of Ernesto Jiménez – which was totally legitimate under the abovementioned rules – was part of the process of restructuring the diplomatic service because, as indicated by the Constitutional Chamber in resolutions Nos 2003-11252 and 2003-11253 of 1 October 2003, all public servants on secondment whose appointments were not covered by the exceptions set out in section 48 of the Foreign Service Rules had to be dismissed and replaced by career public servants or public servants on their probationary period.
117. 868. This was in no way an isolated case and far less was it an act of harassment or reprisal. A number of other seconded public servants had their contracts terminated at around the same time as Ernesto Jiménez Morales: four were dismissed in December 2003 and a further six were dismissed in February 2004. As a result of this gradual process of replacing seconded public servants by career public servants, to date, of the 210 posts which exist in the Foreign Service, only 30 are occupied by public servants on secondment; the others, with the exception of ambassadors, are occupied by career public servants or those on their year of probation.
118. 869. In any case, Ernesto Jiménez Morales was not adversely affected in any way by his dismissal because he is a public servant employed by the Legislative Assembly who had requested leave without pay for the period he hoped to work temporarily in the Foreign Service. In support of this claim, the Government has attached a statement from the Department of Human Resources of the Legislative Assembly, demonstrating that Ernesto Jiménez Morales had been working since 1 July 1996 in his post for the Legislative Assembly, as a C-category professional.
119. 870. It is ironic that, although Rodolfo Jiménez was so keen, as is demonstrated in the written submission by ANEP, for the Minister for Foreign Affairs to dismiss all public servants from the Foreign Service who were neither career public servants nor on their probationary year, now that this involves the dismissal of his brother, it is an act of harassment. It is even more ironic that one of the alleged pretexts that Rodolfo Jiménez gave for disobeying and openly defying his superior, the Director of International Cooperation, for the sole purpose of stirring up trouble to serve his own interests, was precisely that he had not been given any authority because he was “not a career public servant”. How can Rodolfo Jiménez, and the Secretary-General of ANEP, now call on the ILO to order the reinstatement of his brother if he is not a career diplomat, as this would be in contradiction not only of the ruling of the Constitutional Chamber but also of the argument that Rodolfo Jiménez has used in his campaign to enhance the professionalism of the Costa Rican Foreign Service? This blatant contradiction demonstrates once again the lack of sincerity and the hypocrisy that has characterized this whole matter from the time Rodolfo Jiménez Morales and Francisco Bolaños González joined the Ministry of Foreign Affairs and Religion on their probationary year, until the time that they unscrupulously made false and ill-intentioned allegations to the Costa Rican public and when the Secretary-General of ANEP lodged the present complaint, which reproduces the same lies which were previously spun by Jiménez and Bolaños to other bodies. Regrettably, as a result of this complaint, the sincerity and credibility of ANEP has been jeopardized. In the light of all the above, the Government requests that this complaint be rejected in its entirety.
120. 871. In its communication dated 23 April 2007, the Government sent documentation in support of the non-existence of ASODIPLOMATICOS, as well as information on the alleged transfer of Sara Quirós Maroto. According to the Government, the Constitutional Chamber of the Civil Service Tribunal rejected her appeals; moreover, she did not present herself in the court proceedings either as a member or officer of the non-existent ASODIPLOMATICOS and did not carry out any trade union activity in the Legal Department of the Ministry of Foreign Affairs.

C. The Committee’s conclusions

1. 872. The Committee observes that, in the present complaint, the complainant organization alleges that the authorities at the Ministry of Foreign Affairs were responsible for various acts of anti-union harassment which resulted in the dismissal of ASODIPLOMATICOS trade union officials Rodolfo Jiménez, Francisco Bolaños and Ernesto Jiménez (the brother of Rodolfo Jiménez) for reporting acts of corruption involving the most senior Ministry officials. The Committee takes note that the Government states that the individuals in question are not trade union officials and that the association ASODIPLOMATICOS neither exists nor is included in any register of legal entities; the complainant organization has sent a notarized document on the process of electing the executive committee of ASODIPLOMATICOS, which is the new name of an existing association, and adds that the agreements on these matters were not recorded in the register of associations for the safety of the association’s members and to protect them from anti-union reprisals. The Committee considers that this failure to publicize the association by not registering it, even for the reasons set out above, means that, in practice, there may be uncertainty about its legal status.
2. 873. With regard to the dismissals, the Committee observes that: (1) the Supreme Court rejected the appeal lodged by Rodolfo Jiménez after determining that, contrary to what he maintained in the appeal, his disciplinary proceedings had been duly notified; (2) according to the Government, Francisco Bolaños chose (as did Rodolfo Jiménez) not to attend the disciplinary proceedings which led to his dismissal; (3) according to the Government, the case involves public servants who were on a period of probation and who were dismissed on the basis of a letter that they sent to the President of Chile on behalf of the non-existent ASODIPLOMATICOS, which undermined the image of the country and the Ministry of Foreign Affairs and constituted a serious violation of various national and international legal standards. Concerning the allegations of the third dismissal (Ernesto Jiménez), the Government states that this was not a dismissal but rather the termination of a period of secondment to the Ministry of Foreign Affairs (in fact he was and still is a public servant in the Legislative Assembly) which, in his and other cases, was the result of a Supreme Court of Justice ruling on public servants on secondment; the public servant in question then resumed his duties in the Legislative Assembly.
3. 874. The Committee takes note of the Government’s statements denying the allegations of corruption in the Ministry of Foreign Affairs and qualifying the charges in the complaint against senior officials of the Ministry of Foreign Affairs as false and ill-intentioned; it observes that, in the light of the formal complaint on the matter lodged with the Government Procurator’s Office by Rodolfo Jiménez and Francisco Bolaños on 24 May 2004, the Government states that the case does not involve a criminal charge (to date, no charges have been brought) but rather an examination by the Office of the Public Prosecutor to determine whether there are sufficient grounds for an inquiry and possibly a formal charge. The Committee considers that this matter falls beyond its mandate.
4. 875. Concerning the allegations of the anti-union harassment of Rodolfo Jiménez (warnings, transfer, confiscation of documents and search of his office), the Committee observes that the Government’s account totally contradicts these allegations; according to the Government, the warnings were the result of professional misconduct (repeated and unjustified absences, lack of respect for superiors, etc.); the so-called office search was a telephone inspection following a (false) claim by Jiménez that someone had tampered with his telephone; and the alleged confiscation of documents involved a legitimate ban on removing official documents without authorization by the relevant manager. With regard to the exclusion of Rodolfo Jiménez from the worker–employer contribution scheme (which is a requirement for entitlement to the incapacity allowance), the Committee notes that the Supreme Court ordered that this situation be corrected.
5. 876. The Committee concludes that, in the present case, there is some controversy over whether or not the dismissed persons are trade union officials from the association ASODIPLOMATICOS (according to the Government, the organization does not exist and does not feature in any register of legal entities, while the complainant alleges that it was not registered for fear of anti-union reprisals). With regard to the dismissals, the Committee notes more specifically that Rodolfo Jiménez and Francisco Bolaños chose neither to appear nor to defend themselves in the administrative proceedings resulting from the letter they sent to the President of Chile, that the former lost an appeal to the Supreme Court of Justice (claiming that he had not been notified of the administrative proceedings leading to his dismissal) and the latter did not take any action, to the effect that, in both cases, it seems unviable to reinstate these public servants on probation in the posts that they occupied in the Ministry. The Committee considers that, in so far as Mr Jiménez and Mr Bolaños favoured that approach, it would be difficult for them to rely on the argument that they have put forward that the public servants in the Committee which recommended their dismissal should have recused themselves from the case on the grounds that they had previously been accused of corruption by Mr Jiménez and Mr Bolaños. The Committee observes in any case that the grounds for the dismissal were not the allegations of corruption made by the dismissed employees but rather activities that were not covered by trade union immunity, especially in the diplomatic service where international codes of conduct and standards require adherence to certain obligations. The Committee will not, therefore, consider these allegations further.
6. 877. With regard to the recent allegation relating to the transfer of trade union official Sara Quirós Maroto, the Committee notes the information provided by the Government according to which: (1) the person in question did not present herself in the court proceedings either as a member or officer of the non-existent ASODIPLOMATICOS and did not carry out any trade union activity in the Legal Department of the Ministry of Foreign Affairs; (2) the appeals that this person brought to the Constitutional Chamber of the Civil Service Tribunal were rejected (the Government annexes the relevant rulings).

The Committee's recommendations

1. 878. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.

Z. Annex

• Letter from Rodolfo Jiménez and Francisco Bolaños
• to the President of the Republic of Chile
• Costa Rican Association of Diplomatic and
• Equivalent Officials (ASODIPLOMATICOS)
  31. 31 July 2004
      • ADCR-911-04
  32. His Excellency
• Mr Ricardo Lagos
• President of the Republic of Chile
• Office of the President
• Your Excellency,
• On behalf of the diplomats of Costa Rica who are members of ASODIPLOMATICOS we would like to express our deep sorrow and concern over the murder of three dear colleagues who were working in our country for the Chilean Diplomatic Service and who were killed by an officer of the Costa Rican police force, a force which has not received any diplomatic or psychological training on how to “protect” those who work in the esteemed Embassy of Chile in San José.
• Regrettably, this situation reaffirms the comments made in August 1998 by the Ministry of Foreign Affairs of Chile on the shortcomings of the foreign service in Costa Rica, in a joint report highlighting the lack of coordination which exists between the Ministry of Foreign Affairs and the Ministry of Security of Costa Rica in terms of offering “effective protection” to the diplomats who are posted in Costa Rica.
• In fact, the issue of the Costa Rican Government’s inability to provide “effective protection” to diplomatic delegations in San José because of a lack of coordination between the Ministry of Security and the Ministry of Foreign Affairs had, paradoxically, been identified in August 1998 by two officials from the Ministry of Foreign Affairs of Chile who prepared a proposal to “enhance the professionalism of and modernize Costa Rica’s Foreign Service”, making reference to the following:
• The organizational structure of the Ministry of Foreign Affairs of Costa Rica reflects the traditional requirements of a medium-sized foreign ministry and is characterized by ...
  4. 4 Difficulties of coordination with other ministries. During the meetings it became apparent that there is widespread acknowledgement of the lack of coordination with other ministries and that this had led to an overlap of responsibilities. Furthermore, there is no unit within the Ministry of Foreign Affairs responsible for coordinating policies with other Government institutions, “especially in relation to public security”. (Report prepared by consultants of the Ministry of Foreign Affairs of Chile. Proposal for institutional modernization. Ministry of Foreign Affairs and Religion of Costa Rica, pages 13 and 14, 5 August 1998.)
• In view of the pain and sorrow of both countries, we would respectfully but firmly call on the Government of the Republic of Costa Rica to implement immediately the recommendations kindly put forward by the Ministry of Foreign Affairs of Chile on the reform of the Ministry of Foreign Affairs and the Foreign Service of Costa Rica, as set out in the abovementioned report, so that there is no recurrence of the terrible acts described through “negligence” and “lack of skill” on the part of our governmental authorities managing the Foreign Service, which, according to the abovementioned report, are more interested in “partisan politics and culture than in adopting a professional and objective criteria” (page 15, op. cit.).
• In the light of these considerations, your Excellency, we would like to offer our condolences to the families of our colleagues Roberto Nieto Maturana, Cristián Yusejf and Rocío Sariego and we sincerely hope that this incident will not affect the excellent relations of friendship and solidarity that have existed between our countries.
• Please accept, your Excellency, the assurances of our highest consideration,
• Rodolfo Jiménez, President.
• Francisco Bolaños, Secretary-General.