Report in which the committee requests to be kept informed of development - REPORT_NO367, March 2013

1. 1034. The complaint is contained in communications from the Union of Workers of the National Library (SITBIN) dated 1 August and 21 October 2011. The trade union sent additional information and new allegations in communications dated 27 December 2011 and 6 February 2012.
2. 1035. The Government sent its observations in a communication dated 2 May 2012.
3. 1036. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 1037. In its communications of 1 August, 21 October and 27 December 2011, and of 6 February 2012, SITBIN alleges that as of January 2011 the new Director-General of the National Library made unjust accusations in the media against the union’s Secretary-General, Nelly Bobbio, union members and workers regarding serious irregularities and negligence in their handling of the early collections of the National Library (as a result of the discovery of hundreds of original historical manuscripts on the rooftop of the National Library in Lima, the disappearance of hundreds of books over the last decade, etc.). In these circumstances, the Director-General of the National Library transferred workers and a trade union leader from the Specialized Library Services Centre and from the Executive Directorate for the Documentary and Bibliographical Heritage; he initiated disciplinary proceedings against several members and leaders of the complainant union; and he filed a criminal complaint for offences against the public heritage and other offences with the 45th Provincial Criminal Prosecutor’s Office, which has summoned these persons on two occasions to make statements, indicating a systematic campaign of intimidation, hostility and persecution against the trade union and its members, who have had no means of defence and have been denied the guarantees of due process.
2. 1038. According to the complainant union, proceedings were brought against the trade union leaders Nelly Bobbio and Sonia Herrera; in addition, union member Ana Maldonado was given five months’ disciplinary suspension without pay; union member Nancy Herrera was transferred to a lower category position and disciplinary proceedings were brought against her; proceedings were initiated against union member Maria del Pilar Navarro and she was transferred to other duties for three months; disciplinary proceedings were initiated against union member Delia Córdoba; and member Maria del Pilar Navarro was sanctioned with two months without pay.
3. 1039. In addition, disciplinary proceedings were subsequently initiated against union members Delia Córdoba and Ana María Maldonado, for alleged irregularities in the recruitment of staff, against Patxy Sarmiento, for the alleged undue payment of bonuses and irregularities in the recruitment of staff, and against David Coloma, for the alleged undue payment of bonuses (social security contributions for public servants).
4. 1040. Lastly, the complainant union reports the failure by the management of the National Library to reply to its written request for trade union leave for trade union leaders, the administration’s request for the list of union members and the deactivation of the institutional email account of the complainant union.

B. The Government’s reply

1. 1041. In its communication of 2 May 2012, the Government states that the National Library of Peru (BNP) is a public institution attached to the Ministry of Culture.
2. 1042. On 16 September 2010, after taking up office, the new management of the BNP signalled a series of irregularities, on the basis of documents on the previous management; these included the disappearance of valuable old books and manuscripts (some of inestimable value) of the national cultural heritage. Many of these are kept on the premises of the Specialized Library Services Centre – CSBE (the department responsible for the care of BNP documentary and bibliographical collections). The Government indicates, for example, that:
   • – in 2010 some 3,000 historical documents (the correspondence of Marshal Andrés Avelino Cáceres) were found on the rooftop of the Lima Public Library – at its premises on Avenida Abancay. This is currently under preliminary investigation by the 45th Provincial Criminal Prosecutor’s Office of Lima, and further information is provided below;
   • – in 2011, pages were found to be missing from the original manuscript “Zorro de arriba y zorro de abajo”, from the archive of the author José María Arguedas (the matter is currently under investigation by the BNP Standing Committee on Administrative Disciplinary Proceedings);
   • – the volume Titulo Breve Compendio Della Vita del Bn Toribio Alfonso Mogrobesio, by Castagnoni Fridiano, dated 1679, was stolen during the 2011 inventory of early and rare collections (criminal proceedings have been brought before the Ninth Criminal Court of Lima);
   • – at the end of 2011, a number of photographs from the early collection were also found on the roof of the Lima Public Library (currently under investigation by the BNP Standing Committee on Administrative Disciplinary Proceedings);
   • – several pages of the manuscript Derrotero General del Mar del Sur, by Captain Pedro Hurtado de Mendoza, dating from 1730, had been cut out and had disappeared (currently under preliminary investigation by the Public Prosecution Service (Department of Offences against the Cultural Heritage) and, with a view to the determination of responsibility, before the Standing Committee on Disciplinary Proceedings).
3. 1043. The Government adds that numerous lists were discovered of “misplaced” or “lost” books from the BNP modern collection. These lists had been drawn up over the last 20 years and, according to documentary evidence, had not been given the priority attention that they required. While the lists of “lost” books generated by the National Library’s technical services are not recent, the failure to take systematic measures to eliminate or reduce the risk of loss and/or deterioration is recent. Evidence of this was found during the 2011 inventory of the BNP’s early and rare collections and private collections, an initial stage of which found that bibliographical and documentary material was missing from book, periodical and manuscript collections, as indicated in report No. 056 2011 BNP/DT BNP of 8 August 2011, “Preliminary report of the 2011 inventory of the early and rare collections and of the private collections of the BNP”.
4. 1044. The Government states that, in view of the scale of the irregularities indicated above, the administration of the BNP was required by law to report the real situation in the institution. These irregularities are not unfounded allegations, as has been argued, but are on the contrary supported by evidence, as indicated by the technical department reports and special investigations carried out by the BNP Internal Audit Office, and by the Special and Standing Committees on Administrative Disciplinary Proceedings of the National Library of Peru. Inquiries are also being carried out by the Public Prosecution Service and by the courts.
5. 1045. The Government points out that the official complaints and administrative disciplinary proceedings concern the failure of BNP employees and public servants to fulfil their duties; they are not based on assumptions, nor do they aim to promote acts that violate freedom of association, as argued in this complaint. On the contrary, they are supported by reports from the BNP Technical Department and Internal Audit Office, and by the results of investigations carried out by the Special and Standing Committees on Administrative Disciplinary Proceedings. All employees and public servants in the administrative career are obliged to fulfil their duties to the best of their ability, effectively, honestly, conscientiously and with a willingness to serve, in accordance with the obligations and responsibilities that they entail, regardless of trade union membership, and in accordance with: (1) Legislative Decree No. 276, Act on the basic principles of public sector administrative careers and remuneration; (2) Supreme Decree No. 005 90-PCM, Regulations under the Act on the basic principles of public sector administrative careers and remuneration; (3) Supreme Decree No. 024-2002-ED, Regulation of the organization and structure of the BNP and of the national library system; and (4) Framework Act on public employment, Act No. 28175.
6. 1046. The Government outlines the grounds on which administrative disciplinary proceedings are being brought against several BNP employees:
   • – Delia Elvira Córdoba Pintado. Administrative disciplinary proceedings were brought against her as Executive Director of the Department of Documentary and Bibliographical Heritage of the BNP, during the period 15 April 2010 to 25 January 2011, for alleged non-compliance with the rules established in the internal regulations (section 68(a)); negligence in the performance of duties (section 68(h)), and concealment of misconduct by other workers (section 68(q)). As a result, National Directorial Resolution No. 098-2011-BNP was handed down, finding the abovementioned public servant responsible and imposing a sanction, and is currently under appeal before the Civil Service Court (SERVIR). Furthermore, in accordance with Legislative Decree No. 276, Act on administrative careers, section 25, public servants have civil, criminal and administrative responsibility for compliance with legal and administrative regulations in the performance of public service, without prejudice to any disciplinary sanction for misconduct. This is not a duplication of jurisdiction, but different jurisdictions, incurring different types of responsibility. With regard to the transfers carried out within the institution, the Government indicates that section 25 of Supreme Decree No. 05-09, Regulations under the Act on administrative careers, expressly states that appointments are always temporary, determined by institutional needs and in line with the career level, occupational group and specialization achieved. Section 75 of the Decree states that the transfer of a public servant to carry out different functions within or outside the institution must take account of education, training and experience. Section 78 of the Decree further indicates that rotation consists of a relocation of public servants within the same institution for duties that match their career level. Where transfers are carried out within the same workplace, they are by decision of the administrative authority. In this case, the Government indicates that the transfer in question is based on the temporary nature of positions, the lack of staff (institutional need), remains within the administrative departments of the BNP and is in accordance with the career level of the public servant. The Department for Special Projects is found in the National Bibliographical Centre (as indicated in the organizational chart of the BNP). This department requires personnel with library technology training, as is the case of the public servant, Delia Córdova Pintado, who holds a degree in library technology.
   • – Ana María Maldonado Castillo. Administrative disciplinary proceedings were initiated with regard to her role as Director of the Specialized Library Services Centre (public servant grade No. 4), between 9 November 2009 and 13 January 2011, for acts of misconduct under section 68(a), (h) and (q) of the BNP internal regulations (non-compliance with the rules established in the BNP internal regulations, negligence in the performance of duties and concealment of misconduct by other workers). As a result, National Directorial Resolution No. 101 2011-BNP was handed down declaring the public servant in question responsible and imposing a sanction.
   • – Nancy Herrera Cadillo. Administrative disciplinary proceedings were brought against her under National Directorial Resolution No. 109-2011-BNP, of 24 October 2011, on the grounds of her functions as Technical Director of the National Library of Peru during the period 1 October 2010 to 12 January 2011, in relation to the discovery of documents of historical value (correspondence by Marshal Andrés Avellino Cáceres), on 15 September 2010, constituting administrative misconduct under section 68(a), (h) and (q) of the BNP internal regulations, and in accordance with section 28(a), (d) and (m) of Legislative Decree No. 276, Act on the basic principles of public sector administrative careers and remuneration. As a result, National Directorial Resolution No. 124-2011-BNP was handed down declaring the public servant in question responsible and imposing a sanction. This resolution is currently under appeal before the Civil Service Court – SERVIR.
7. 1047. With regard to the investigations that are being carried out by the Public Prosecution Service, the Government states that, considering that national cultural heritage documents (manuscripts by Andrés Avelino Cáceres) were found at the top of the National Library premises on Avenida Abancay on 15 September 2010, and that cultural heritage is protected by national law, the prosecutor of the Ministry of Culture filed a criminal complaint on 11 February 2011 with the 45th Provincial Prosecutor’s Office of Lima against those found responsible for the alleged theft and aggravated damage. The prosecutor of the 45th Provincial Prosecutor’s Office of Lima in charge of cultural heritage, ordered a preliminary police inquiry to identify those responsible for the alleged heritage offences against the State of aggravated theft, in view of the cultural heritage status of the objects, submitting the complaint to the unit responsible for investigating public administration and cultural heritage offences of the investigation department of the national police, ordering the relevant investigations in relation to the events in question. The complaint is currently under investigation by the abovementioned Prosecutor’s Office, and was extended in order to include the statements by Sonia Herrera Morán, Delia Elvira Córdova Pintado and Martha Uriarte Azabache, who have now made individual statements before that authority.
8. 1048. The Government adds that in accordance with the authority granted to the internal bodies of the BNP, and the rules of conduct for public servants under National Directorial Resolution No. 110-2011-BNP of 21 October 2011, disciplinary proceedings were filed against the following public servants: María del Pilar Navarro Vásquez (librarian II), Nelly Bobbio (historian I), Sonia Herrera Morán (historian) and Ricardo Leonel Barrios Bujanda (security technician II). The disciplinary proceedings were filed on the grounds of administrative misconduct under sections 68 and 28(a) and (h) of the BNP internal regulations, under section 28(a) and (d) of Legislative Decree No. 276, Act on the basic principles of public sector administrative careers and remuneration, with regard to the discovery of documents of historical value (correspondence of Marshal Andrés Avelino Cáceres) at the top of the Public Library in Lima (premises on Avenida Abancay) on 15 September 2010. However, following disciplinary proceedings in accordance with Peruvian law and providing all the guarantees of due process, the Standing Committee on Administrative Disciplinary Proceedings, in report No. 017-2011-BNP/CPPAD did not find the public servants María del Pilar Navarro, Nelly Bobbio, Sonia Herrera Morán and Ricardo Leonel Barrios responsible, whereby National Directorial Resolution No. 006 2012-BPN was issued declaring that there are no grounds to impose sanctions on those civil servants and ordering the case to be shelved (this resolution has not been challenged). This indicates that the authorities have handled these cases observing the requirements of due process, impartiality and legality within the regulatory framework established by Peruvian law, regardless of any trade union association that the workers may have.
9. 1049. As regards the allegations against David Coloma, the Government states that Act No. 27785 on the national control system and the office of the Comptroller General of the Republic of Peru provides in section 11(2) on the responsibilities and sanctions resulting from the control process that: “where the respective report identifies responsibilities, whether administrative, civil or criminal, the institutional authorities and those competent under the law, shall immediately take action to determine administrative responsibilities and the application of the corresponding sanction, and shall initiate any legal action in respect of the identified responsibilities before the relevant authority. The sanctions shall be applied by the body’s representative, and where applicable by a hierarchically superior body or department, or any other body established by law”. Section 150 of the regulations under the Act on the basic principles of public sector administrative careers and remuneration, approved by Supreme Decree No. 005-090-PCM, provides that “Disciplinary misconduct is understood as any action or omission, whether voluntary or not, violating the obligations, prohibitions and other specific rules on the duties of public servants and employees, established under section 28 and others of the Act and its regulations. An offence shall result in the imposition of the corresponding sanction”.
10. 1050. The Government adds that Mr Coloma held the position of Director of the Technical Development Department and that the actions brought against him are based on a report by the BNP Internal Audit Office; there is, therefore, a legal mandate for the initiation of administrative disciplinary proceedings for alleged irregularities in the performance of his duties, which will be examined by the Special Commission for Disciplinary Proceedings in due course.
11. 1051. The Government indicates that administrative disciplinary proceedings and judicial proceedings against public servants engaging in misconduct do not violate freedom of association, provided that those actions are not prompted by the membership of workers in a specific trade union or restrictions on collective bargaining but are, as stated above, based on misconduct in the performance of their duties.
12. 1052. All public servants and employees are liable to administrative, criminal and/or civil prosecution where irregularities are found in the performance of their duties. And as shown by the documents presented by the complainants in this case, they are themselves employees of the BNP and have been tried and sanctioned for failing to carry out their duties. These administrative disciplinary proceedings provide the opportunity to refute allegations of failure to perform duties; moreover, Peruvian law establishes that the sanctions can be challenged through administrative proceedings on appeal, and also through court proceedings.
13. 1053. No workers’ rights have been violated at any stage, nor has there been an “internal persecution” against any member of the trade union in question. On the contrary, work has been carried out with the representative trade union of the BNP (the Unified Trade Union of the Workers of the BNP (SUT-BNP)) to strengthen in-house “direct bargaining” agreements, in accordance with Supreme Decree No. 03 82-PCM and Supreme Decree No. 026-82-JUS governing the right to organize and terms and conditions of employment in the public service, in accordance with ILO Convention No. 151.
14. 1054. The request by the administrative office for the list of active members of SITBIN is prompted by the need to identify the most representative trade union in order to assess claims, in accordance with Peruvian law (Supreme Decree No. 026-82-JUS, section 15).
15. 1055. The Government indicates that currently, SITBIN, the complainant in this case, is not the only trade union representing the workers of the BNP, and that the various trade unions for occupational groups of professionals with different specializations, such as historians, librarians and technicians, are currently consolidated in a single union. This consolidation was brought about through the creation of the Unified Trade Union Confederation of Workers of the National Library of Peru (the statutes of which bring together the Trade Union Confederation of Workers of the BNP (SUT-BNP), the Central Trade Union of Workers of the National Library of Peru (SC-BNP) and the Single Union of Workers of the National Library of Peru and the National Library Network (BIBLIOSUT)); the in-house “direct bargaining” agreements have been negotiated with this trade union organization in line with the legal provisions of the Constitution, international conventions and Supreme Decrees Nos 03-82-PCM and 026 082 JUS, in a climate of parity and respect.
16. 1056. With regard to the allegations concerning trade union leave, the Government claims that the BNP issued National Directorial Resolution No. 063-2012-BNP, of 2 April 2012 granting up to 120 hours a year of “trade union representation leave” to four members of the executive board of the Union of Workers of the National Library of Peru (the complainant union that alleges that there has been a violation of trade union rights) and of the Unified Trade Union of Workers of the National Library of Peru.
17. 1057. With regard to the allegations concerning the use of the institutional email account of the BNP by the complainant union, the Government states that Directive No. 011 2005-BNP/ODT “Rules on the use of the institutional email service of the National Library of Peru” establishes in section 5.1.1 that the institutional email service is an official tool for the communication and sharing of official information that is strictly work-related among the staff of the BNP; it is not intended for the indiscriminate and unlimited diffusion and storage of information. Moreover, it establishes that the email accounts of the employees of public institutions must be used for activities related to the performance of their duties in those institutions. The Directive provides that each institution shall be responsible for allocating institutional email accounts, in line with the institutional policies established by them for some or all of their employees. In the case of the BNP, the respective directive states that the department of statistics and IT, currently the Department of Technical Development, will allocate institutional email accounts to all public servants and employees in each department of the BNP, regardless of their contract type, on request and subject to the approval of the Director General. However, the Government points out that, without prejudice to the above, Directive No. 011 2005 BNP/ODT, in section 6 on specific provisions, also establishes that the correct use of the institutional email system shall be on any browser and from any Internet location, which allows free access to the Internet should workers wish to communicate through other servers, such as Hotmail, Gmail, Terra, etc. Therefore, workers, whether or not they are members of existing unions, may freely communicate using their own email accounts, enabling workers to send and receive different types of communications.
18. 1058. The Government states that under the law, all public servants who consider themselves to be prejudiced by institutional decisions on specific matters may file a complaint with the Civil Service Court – SERVIR, in accordance with the requirements, procedures and time limits established and in accordance with the progressive competence rules (reglas de asunción progresiva) of the institution whose decision is challenged. In cases falling outside the scope of the court, all public servants have the right to file an appeal before the institution that issues the decision or to take judicial action through administrative proceedings, in accordance with the single consolidated text of the Act on administrative proceedings, approved by Act No. 27584.
19. 1059. The Government considers that it has convincingly shown that the complaints submitted by the complainant organization are unfounded. There is no hostility against public servants and employees of the BNP. The institution has proceeded, in keeping with its mandate, to identify irregularities in the performance of the duties of the public servants of that institution. In order to proceed in accordance with Peruvian law, the corresponding administrative and court proceedings are being pursued in view of irregular situations affecting the national cultural heritage in the keeping of the BNP.
20. 1060. Some of the members of SITBIN have been subject to disciplinary proceedings for irregularities in the performance of their duties, which should in no way be considered as anti-union action. Throughout the disciplinary proceedings, the members of SITBIN have been guaranteed due process and have had recourse to the defence mechanisms provided by law.
21. 1061. As a result of its compliance with due process and the right to defence, the BNP cleared certain union leaders and members of responsibility.
22. 1062. The BNP has respected the freedom of association of the complainant union and has made various administrative decisions, such as granting trade union leave, and access for all the institutions’ employees to internal communication through institutional and personal email accounts.
23. 1063. The BNP has demonstrated its respect for freedom of association, not only of the complainant organization, but also of the other trade unions in the institution, as has been fully indicated in this report.
24. 1064. In view of all the above, the Government requests that this complaint be set aside.

C. The Committee’s conclusions

Allegations in relation to the disappearance of historical documents

1. 1065. The Committee notes the allegations of the complainant union regarding the administrative disciplinary proceedings brought against the trade union leaders Nelly Bobbio and Sonia Herrera (who were eventually cleared) and of three members (María del Pilar Navarro, Nancy Herrera and Ana Maldonado) and the transfer of member Nancy Herrera to a lower-level post (currently under administrative appeal) and of member Maria Pilar Navarro (transferred for three months). According to the complainant union, the member Maria del Pilar Navarro was sanctioned with five months suspension without pay. The Committee notes that the complainant organization considers these to be measures of anti-union persecution, although it presents the events in the light of wrongful accusations of negligence and criminal activities by the National Library authorities against workers of the Specialized Library Services Centre and of the Executive Directorate for the Documentary and Bibliographical Heritage, following the discovery of hundreds of historical manuscripts on the rooftop of the Central Public Library in Lima. The complainant union also reports that a criminal complaint for offences against national heritage and other offences was filed with the 45th Provincial Prosecutor’s Office of Lima, which has summoned various union members on two occasions. The complainant union denounces a lack of defence and due process.
2. 1066. The Committee notes that the Government denies the anti-union nature of the measures and emphasizes that the disciplinary proceedings were initiated on the basis of reports by technical departments and special enquiries by the Internal Audit Office of the National Library and other bodies (in particular as a result of the discovery of hundreds of documents of great historical value at the top of the Central Public Library in Lima and of lists of “misplaced” or “lost” books), having observed due process.
3. 1067. The Government states that the disciplinary proceedings (which, according to the documents provided, also concerned non-unionized workers) found that: (1) the trade union leaders Nelly Bobbio and Sonia Herrera and union members María del Pilar Navarro and Ricardo Leonel Barrios (not mentioned in the complaint) were not held responsible; and (2) that union members Ana María Maldonado, Nancy Herrera and Delia Córdova were held responsible; appeals were brought to the Civil Service Court – SERVIR for the cases of Ana María Maldonado and Delia Córdova. The Committee also notes that the criminal investigation by the 45th Provincial Prosecutor’s Office of Lima into the events was carried out following a complaint made by the Ministry of Culture for offences against the national heritage, in the form of theft and aggravated damage and that statements have been made by various workers, including by union members. The Committee also notes that the Government states that the transfer of union member Delia Córdova to another post was carried out because of institutional needs (lack of personnel), in accordance with her career level and the legislation, and on the understanding of the temporary nature of the transfer.
4. 1068. The Committee observes that, given the evidence of offences in the events that gave rise to the disciplinary and criminal proceedings (disappearance of hundreds of valuable documents belonging to the National Library and various other instances of misconduct), it considers that the allegations in this case do not concern freedom of association and that it will not therefore continue with its examination.

Other allegations

1. 1069. Regarding the request made by the administration of the National Library for a list of the members of the complainant organization, the Committee notes that the Government claims that its purpose – in keeping with the regulations in force – was to determine the representative status of the complainant union (since the most representative trade union is recognized for collective bargaining).
2. 1070. The Committee observes that the complainant union has not indicated that the failure to provide such information led to sanctions or reprisals. It will therefore not pursue its examination of this allegation.
3. 1071. With regard to the alleged denial by the administration of the National Library of the request for trade union leave by the leaders of the complainant union, the Committee notes that the Government states that on 2 April 2012 up to 120 hours annual leave were awarded to four trade union leaders, and to the other trade union that is active in the institution.
4. 1072. Regarding the alleged deactivation of the institutional email account of the complainant union on 9 September 2011, the Committee notes that: (1) under the legislation and the relevant circulars, email accounts must be used for activities related to the performance of the employees’ work duties; and (2) the directive applicable to the National Library establishes that the correct use of institutional email accounts shall be through any browser or from any Internet location, giving free Internet access to employees should they wish to communicate from other servers, and that accordingly, whether or not they are members of existing trade unions, employees can communicate freely via their personal email accounts and receive various types of communications. Any workers who consider they have been prejudiced have recourse to the Civil Service Court – SERVIR or to administrative proceedings. The Committee takes due note of this information, which indicates that, in practice, it is possible for trade union leaders and members to exchange emails. The Committee recalls that workers’ representatives should enjoy such facilities as may be necessary for the proper exercise of their functions, including access to the email system used by the employer to communicate with employees. Recalling that access to employers’ facilities should not be exercised to the detriment of the efficient functioning of the enterprise concerned, the Committee suggests that the modalities for the use of the email system by the trade union should be a matter of negotiation between the parties.
5. 1073. With regard to the administrative disciplinary proceedings allegedly brought against: (1) union member David Coloma on 27 December 2011 for the alleged undue payment of 18,081.24 soles for social security contributions and bonuses for July and December 2009 to employees of the National Library; (2) the union member Patxi Sarmiento Vidal for the alleged illegal payment of bonuses and for acts relating to the recruitment of staff; and (3) the union members Delia Córdova and Ana María Maldonado for acts relating to the recruitment of staff, the Committee notes that the Government states that David Coloma (former Director of the Technical Development Department) underwent disciplinary proceedings on the basis of a report by the Internal Audit Office of the National Library, which is still pending resolution. Although it notes that the complainant union has not provided specific evidence of the anti-union nature of the alleged measures, the Committee observes that the Government does not refer specifically to the disciplinary proceedings mentioned in points (2) and (3), and requests the Government to keep it informed of the administrative decision handed down in this regard, and of the decision regarding David Coloma.