The Centro de Asistencia Legal Popular (CEALP) and the
Center for Justice and International Law (CEJIL) (hereinafter “the
petitioners”) submitted a petition on July 5, 2000, to the
Inter-American Commission on Human Rights (hereinafter the
“Commission” or the “IACHR”) against the Republic of Panama
(hereinafter “the State” or “Panama”) in which they allege the
violation of the following rights recognized in the American Convention
on Human Rights (hereinafter “the Convention” or “the American
Convention”) to the detriment of Mr. Santander Tristán Donoso
(hereinafter “Tristán Donoso”): the right to privacy (Article
11(2); the right to freedom of expression and thought (Article 13); the
right to a fair trial (Article 8); and the right to judicial protection
(Article 25), all in connection with the generic duties of the State to
respect and ensure the rights enshrined in the Convention (Article 1(1))
and to adopt measures necessary to making effective the rights and
freedoms set forth in the Convention (Article 2).
The petitioners alleged that the interference in and the taping
of a phone conversation between attorney Santander Tristán Donoso and
his client, and the subsequent publication of its content by the
Attorney General of the Nation, Mr. José Antonio Sossa Rodríguez
(hereinafter the “Attorney General”) constitute improper
interference with his private life and his confidentiality and liberty
in the exercise of the profession of attorney.
In a press conference, Mr. Tristán Donoso publicly denounced
these facts, and presented a complaint against the Attorney General.
The Supreme Court of Justice (hereinafter the “Supreme
Court”) affirmed the dismissal with prejudice of the charges against
the Attorney General, and the investigations performed have not found
the persons responsible for having ordered or carried out the
The petitioners also allege that in response to the press
conference, the Attorney General presented a complaint against Mr. Tristán
Donoso for the criminal offenses of slander and libel, the trial for
which limits his freedom of expression. They add that Mr. Tristán Donoso asked that those crimes be
declared unconstitutional, through a constitutional challenge before the
Supreme Court, which was rejected, which makes it possible for the
proceeding to continue its course.
Accordingly, they consider that Panama has not adopted all the
measures needed to bring its legislation and national practices into
line with the Convention, since the proceeding instituted against Tristán
Donoso and the real possibility of a sanction of imprisonment for the
crime of slander and libel is a disproportionate means of curtailing the
freedom of expression, on imposing a disproportionate risk on all those
who, in exercising their freedom of expression, criticize or point out a
possible abuse of authority by public officials, information which is
extremely important for society in general.
The State requested that the arguments of the petitioners related
to the alleged violations of the rights to privacy, freedom of
expression, a fair trial, and judicial protection be declared
inadmissible. With respect
to the right to privacy, it alleged that the petition has no basis
whatsoever, and that it is based solely on personal considerations, thus
they did not obtain the result they hoped for. It adds that in the
course of the investigation, it was determined that no phone
conversation had been wiretapped, and that the evidence had been
properly handled and weighed by the judicial authorities. Furthermore,
in relation to the alleged violation of the freedom of expression, it
considers that domestic remedies have not been exhausted, since it
understands that the criminal trial for slander and libel, which at
present is continuing in the plenary phase, must be exhausted. With respect to the challenge of the constitutionality of the
Criminal Code provisions, the State argued that the Supreme Court
declared it inadmissible since the same question had been decided
On analyzing the instant case, the IACHR concluded that it is
competent to take cognizance of it, and declared that the petition meets
the admissibility requirements with respect to the rights to privacy
(Article 11(2)), a fair trial (Article 8), freedom of expression
(Article 13), and judicial protection (Article 25), all in relation to
the generic duties of the State to respect and ensure the rights
enshrined in the American Convention (Article 1(1)) and to adopt the
measures needed to give effect to the rights and freedoms provided for
in the Convention (Article 2). The
IACHR decided to notify the parties of this decision, publish it, and
include it in its Annual Report to the OAS General Assembly.
PROCESSING BY THE COMMISSION
The petition was received at the IACHR on July 4, 2000 and was
sent to the State, with a request for information, on January 26, 2000;
the State was given 90 days to respond.
The State requested a 30-day extension on April 17, 2001 which
was granted on May 1, 2001. The
State responded on May 30, 2001 and sent additional information on June
21 and 27, 2001. On July 20, 2001 the petitioners submitted their
observations, and on August 8, 2001 they sent additional information,
and requested a hearing before the IACHR, which was turned down on
August 29, 2001. On
September 26, 2001, the State sent its observations. On November 9, 2001
the petitioners sent in their observations, and on December 13, 2001 the
State submitted its response.
On January 31, 2002 the petitioners sent the IACHR their
observations. On March 10, 2002 the State indicated that additional
comments related to the instant case were pending.
On July 3, 2002 the petitioners submitted additional information.
On July 9, a communication was received from the petitioners, and
on August 9, 2002 the State submitted its observations.
THE PARTIES’ POSITIONS
With respect to the interference, taping, and publication of a
phone conversation between Mr. Tristán Donoso and his client, and the
subsequent criminal investigation into the Attorney General
The petitioners allege arbitrary violation of the right to
privacy and the lack of protection for the exercise of the legal
profession (Article 11(2)), due to the unlawful interference in the
phone conversations on July 8, 1996 between attorney Tristán Donoso and
his client, Mr. Adel Sayed, who was being investigated in a
money-laundering case. The
content of this conversation was later released publicly by the Attorney
General at least twice in July 1996.
The release of the cassette has been acknowledged by the Attorney
General, but he stated that it did not mean having “made public the
contents of the tape.”
The petitioners also allege that the State has violated Articles
8 and 25 of the Convention in its handling of the complaint lodged by
Mr. Tristán Donoso against the Attorney General for various criminal
offenses. In response to
the request by the Procuraduría de la Administración, the
Supreme Court dismissed the case, to the benefit of the Attorney
General. On October 22,
1999 Mr. Tristán Donoso appealed this decision, which ignored several
items of evidence that show the violation of which he was the victim,
and because they did not follow other lines of investigation to
determine responsibilities. On December 3, 1999 the Supreme Court affirmed the dismissal
with prejudice of the case against the Attorney General, and the
complainant was so notified on January 4, 2000; and the judgment became
final the next day, January 5, 2000. The petitioners consider that with
that decision, domestic remedies were exhausted, and they presume that
the wiretaps were done by the State, since it has the means needed to
take such actions.
With respect to the
trial for slander and libel initiated by the Attorney General against
Mr. Tristán Donoso because of the press conference he called to
denounce the taping and publication of his telephone conversation with
The petitioners allege that the State has violated Article 13 of
the Convention by the filing of a complaint for slander and libel by the
Attorney General against Mr. Tristán Donoso for having called a press
conference on March 26, 1999 in which he reported the interference in
and taping of his telephone conversations, as described above.
The petitioners consider that the proceedings in this criminal
trial constitute violations of the freedom of expression, and that both
the laws that criminalize such conduct, and the possibility of
preventive detention during the trial or a conviction, constitute a
burden disproportionate to the legitimate exercise of the freedom of
expression. They also
consider that Mr. Tristán Donoso has been harassed, as he has been
denied authorization to travel abroad even though it is not possible to
issue such a prohibition for the offense of which he is accused.
The petitioners also indicate that on October 25, 2001 the
Attorney General filed a claim for compensation for damages and losses
for the sum of 1,100,000 balboas for damages and material losses arising
from the slander and libel.
The petitioners allege that Mr. Tristán Donoso has exhausted two
constitutional challenges of the laws that regulate these offenses.
The second of these challenges, which refers to the instant case,
was filed on April 28, 2000 against the desacato
laws provided for in Articles 172, 173, 173-A, 174, and 175 of the
Criminal Code, on grounds of unconstitutionality.
This challenge was dismissed by the Supreme Court, on May 24,
2000 as the purpose of the action had already been decided by the Court
in a judgment of October 28, 1998 which established that those
provisions of the Criminal Code are not unconstitutional.
The petitioners allege that this remedy represented the sole
opportunity to fight the provisions of a “desacato
law,” which is incompatible with the Convention, and that, for this
reason, Panama has not adopted all the measures needed to bring its
legislation and practices into line with the Convention.
Without prejudice to the argument set forth above, with respect
to the requirement of exhaustion of domestic remedies for violations of
the right to freedom of expression, the petitioners also allege that the
exception provided for at Article 46(2)(a) of the Convention applies,
for the following reasons: (a) There is no effective remedy in the
legislation to protect the right to freedom of expression when the
opinions refer to public officials, and it is not possible to challenge
the constitutionality of the slander and libel laws, since the Supreme
Court itself has declared them to be constitutional; (b) The slander and
libel provisions in the Criminal Code are contrary to the Convention, as
they criminalize the exercise of the freedom of expression as they
entail the threat of prison or fines for those who insult or offend a
public official, and, even though by being subsequent to the expression
they do not impede the petitioner from expressing himself, “they are
equivalent, nonetheless, to censorship, which may possibly deter him
from making criticisms of that sort in the future.”
The fear of criminal sanctions necessarily discourages citizens
from expressing their opinions on problems of public interest; (c) There
is a reiterated practice of public officials abusing such trials.
They add that Mr. Tristán Donoso has been suffering the anguish
of the continuation of this trial, its possible outcomes, and the
possibility of facing a prison sentence, for over three years.
With respect to the
interference, taping, and publication of a telephone conversation
between Mr. Tristán Donoso with his client and the subsequent criminal
investigation against the Attorney General
The State requests the IACHR to declare the petition related to
the wiretapping, taping, and publication of a telephone conversation
between Mr. Tristán Donoso and his client inadmissible, for lack of any
objective foundation, as it is based merely on personal considerations
made in connection with the complaint he lodged, which did not have the
outcome he had hoped for.
The State alleges that these facts were the subject of an
administrative investigation by the Procuraduría General de la
Administración, and that the proceeding regarding acts which had
been sought to be attributed to the Attorney General concluded with a
dismissal with prejudice handed down December 3, 1999 by the Supreme
Court. This judgment was
reported by edict on January 4, 2000 which noted “that as of 3:00 p.m.
on the next day, January 5, no appeal whatsoever had been taken,
accordingly the judgment can be considered legally to be a firm judicial
The State alleges that in this ruling, the Supreme Court made it
clear that the wiretapping and taping of the conversations were not
ordered or carried out by the Public Ministry, or by the Attorney
General. In this regard, the judgment of the Supreme Court of December
3, 1999 notes that “those who proceeded to tape the telephone
conversation, for reasons unknown, were members of the Sayed family, and
not of the Public Ministry, or specifically, the Attorney General of the
Nation, as alleged by attorney Santander Tristán.”
The State also alleges that the various items of evidence
presented in this proceeding were properly weighed.
With respect to the
trial for slander and libel initiated by the Attorney General against
Mr. Tristán Donoso because of the press conference called to report the
taping and publication of his telephone conversation with his client
Second, with respect to the criminal complaint filed by the
Attorney General against Mr. Tristán Donoso for the offenses of slander
and libel, the State alleges that on June 27, 2000 a dismissal without
prejudice was handed down on his behalf on the grounds that the offense
against his honor was not shown in its objective aspect.
This decision was appealed by the Office of the Fourth Circuit
Prosecutor, and the Superior Tribunal of Justice for the First Judicial
District decided to open the criminal case against Mr. Tristán Donoso
as the alleged perpetrator of offenses against honor.
That resolution relies on the falsity of the accusation made
against the Attorney General, who taped his conversation, which makes it
possible to prove the punishable act set forth in the criminal
complaint. At present, according to the State, this process is pending a
decision, and is to continue with the proceedings of the plenary phase.
The Panamanian State calls on the IACHR to declare this part of the
petition inadmissible, since domestic remedies have not been exhausted,
and as the corresponding objections are pending. The State also
considers that there are no objective causes to exempt the petitioner
from having to meet this requirement.
It should be noted that in respect of the constitutional
challenges filed by Tristán Donoso, the State alleges that on May 24,
2000 the Supreme Court decided not to admit the constitutional challenge
as there was already a decision of October 28, 1998, in which it was
established that the laws that were the basis of the accusation against
Tristán Donoso are not unconstitutional. This decision was reported on
June 5, 2000, and it was not challenged.
ANALYSIS OF ADMISSIBILITY
competence ratione personae,
ratione loci, ratione temporis, and ratione
The Commission is competent to take cognizance of the instant
case. First, the Commission is competent ratione
materiae, because the petition alleges violations of human rights
protected in Articles 1, 2, 8, 11, 13, and 25 of the Convention.
Second, the Commission is competent ratione
personae in view of its active and passive standing to examine the
petition lodging a complaint against Panama, as the petitioners are
authorized by Article 44 of the Convention to submit complaints to the
IACHR, and the petition indicates as the alleged victim an individual.
Third, the IACHR is competent ratione
temporis, for as of the date on the which the acts are alleged to
have taken place, the obligation to respect and ensure the rights
protected in the Convention was already in force, as it was since on
June 22, 1978 the date Panama deposited the instrument of ratification.
Finally, the Commission is competent ratione loci insofar as the petition alleges violations, in Panama,
of rights protected in the Convention.
Other admissibility requirements of a petition
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention requires “that the remedies
under domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law.”
The IACHR reiterates that this requirement has the purpose of
allowing the State to resolve the issues raised within its own legal
framework before having to be brought before an international body.
In the following paragraphs, the IACHR will analyze whether this
requirement has been met with respect to the violations alleged by the
petitioners in the judicial proceedings involving Mr. Tristán Donoso:
With respect to the arguments on the violations of Mr. Tristán
Donoso’s right to not be subject to arbitrary and abusive interference
with his private life (Article 11) and the rights to due process
(Article 8) and judicial protection (Article 25), the petitioners allege
that Mr. Tristán Donoso exhausted domestic remedies, and specifically
that he pursued the appropriate remedy, which was decided by the Supreme
Court of Justice on December 3, 1999.
The State agreed with the petitioners that this process concluded
with the dismissal with prejudice of the charges against the Attorney
General, on the date indicated. The
IACHR concludes that this remedy was exhausted in keeping with Article
46(1)(a) of the Convention.
With respect to the alleged violation of the right to freedom of
expression (Article 13), the IACHR notes that the parties have different
positions on the exhaustion of domestic remedies. On the one hand, the
State argues that domestic remedies have not been exhausted, since the
criminal proceedings for slander and libel initiated by the Attorney
General against Mr. Tristán Donoso had not yet concluded. The State
adduced that this criminal proceeding, which it considers a
“remedy,” had not been exhausted, and that “the corresponding
appeals are pending.” It further considered that there are no
objective causes exempting the petitioner from this requirement, since
the criminal proceeding was still under way.
The IACHR notes that despite these assertions, the State did not
indicate any circumstance to justify the adequacy or effectiveness of
such a “remedy.” Not
did it point to the existence of any other domestic remedy adequate to
address the alleged violation of Article 13 of the Convention, although
it affirms, as do the petitioners, that Mr. Tristán Donoso exhausted
two constitutional challenges, which were rejected in due course by the
The petitioners have set forth two arguments which in the view of
the IACHR are different: First, they understand that it is illogical and
legally anomalous to require that a person exhaust the domestic remedies
within a proceeding to which that person objects ab
initio and entirely. In
this sense, the petitioners consider that the slander and libel trial
brought by public officials represents in its entirety a violation of
the freedom of expression of Panamanian citizens derived from a law
contrary to the Convention, as is the case of desacato
laws. Accordingly, they consider that the victim need not exhaust a
remedy against a proceeding which by its nature is illegal, and which is
unfolding in the context of a generalized violation of the right to
freedom of expression. Moreover, they add that the constitutional
challenge filed by the victim against the “desacato
laws” was the only real opportunity to fight the provisions of a desacato law, and that remedy was not admitted by the Supreme Court
of Justice on May 24, 2000. Accordingly, this remedy has been exhausted
in keeping with Article 46(1)(a) of the American Convention.
The petitioners’ second argument is considerably different:
They understand that they must apply the exceptions provided for in
Article 46(2)(a) of the Convention, and they ask that the petitioners be
exempted from the requirement to exhaust domestic remedies, which, in
practice, cannot attain their objectives, for the reasons set forth
The Inter-American Court has indicated that when a State alleges
failure to exhaust domestic remedies, it has the burden to specify the
domestic remedies that must be exhausted, and to show that they are
adequate and effective.
With respect to the distribution of the burden of proof, the IACHR
reiterates that if the State that alleges failure to exhaust proves the
existence of specific domestic remedies that should have been pursued,
it will be up to the petitioner to show that said remedies were or were
not exhausted, or that one of the exceptions provided for in Article
46(2) of the Convention applies.
The IACHR considers that in the instant case the State has not
alleged the reasons why the criminal proceeding under way against Mr.
Tristán Donoso for the criminal offenses of slander and libel is the adequate
and effective remedy for
addressing the alleged violation of Article 13 of the Convention. The petitioners have argued that they exhausted the
constitutional challenge of the provisions at Articles 172 and 175 of
the Criminal Code, and the State indicates only that it was rejected by
the Supreme Court. In this case, the adequate remedy is the
constitutional challenge, and, accordingly, the petitioners have met the
requirement of prior exhaustion of domestic remedies.
Time period for lodging a petition
Article 46(1)(b) of the Convention requires that a petition be
“lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment.”
Following is the analysis of whether this requirement has been
met for the domestic remedies that involve Mr. Tristán Donoso:
First, with respect to the alleged violation of the right to
privacy, the petitioners allege that the criminal action brought by Mr.
Tristán Donoso against the Attorney General culminated in the dismissal
with prejudice, which was reported to them on January 4, 2000.
The State agreed with the petitioners, indicating that this
ruling was reported by edict of January 4, 2000 whose notice period
ended January 5, without any appeal whatsoever, thus it can be
considered res judicata.
The petition was filed on July 5, 2002; therefore, the IACHR
concludes that with respect to this part of the petition, the
requirement that a complaint be lodged within six months, provided for
at Article 46(1)(b) of the Convention, has been met.
Second, with respect to the alleged violation of the right to
freedom of expression, the IACHR notes that the rejection of the
constitutional challenge by the Supreme Court was reported on June 5,
2000. The petition was lodged with the IACHR on July 5, 2000;
accordingly, the IACHR concludes that the petition was submitted within
the time period provided for in Article 46(1)(b) of the Convention.
Duplication of proceedings and res
Article 46(1)(c) establishes as an admissibility requirement that
the subject matter of the petition or communication not be pending
before any other international proceeding for settlement. In addition,
Article 47(d) of the Convention establishes that a petition will be
declared inadmissible when it is substantially the same as a prior
petition already examined by the Commission or another international
body. In the instant case,
the parties have not alleged or proven that the subject matter submitted
to the Commission for its consideration is pending before another
international proceeding for settlement, or that it reproduces a
petition already examined by another international body, or that it
reproduces a petition already examined by the Commission. Accordingly,
the Commission concludes that these requirements have been met.
Characterization of the facts alleged
Article 47(b) of the Convention provides that the Commission
shall declare inadmissible any petition that does not set forth facts
that tend to establish a violation of the rights guaranteed by the
Convention. In the instant case, the petitioners alleged that the
following provisions were violated:
11, due to the interference in and taping of a telephone conversation
between Mr. Tristán Donoso, in his capacity as attorney, and his client
Mr. Adel Sayed, and the later publication of its content by the Attorney
13, since the Attorney General lodged a complaint against Mr. Tristán
Donoso for the criminal offenses of slander and libel, in response to
the press conference held to report the facts mentioned in the previous
paragraph, which entails a threat to and intimidation of the exercise of
the freedom of expression;
8(1) and 25, insofar as the decision handed down by the competent
judicial authority in the criminal proceeding initiated by Mr. Tristán
Donoso against the Attorney General for interference in, taping, and
publication of a telephone conversation between him and his client, inter
alia, did not take into account or weigh relevant evidence, nor has
criminal liability been established for the perpetrators of those acts;
2, considering the criminal code provisions on desacato,
which have been applied in the proceeding initiated into the complaint
lodged by the Attorney General for the criminal offenses of slander and
libel against Mr. Tristán Donoso.
After analyzing the parties’ positions, the IACHR considers
that the facts alleged tend to establish violations of the Convention.
Accordingly, the Commission concludes that the petition meets the
requirement of Article 47(b) of the Convention.
Upon analyzing the instant case, the IACHR concluded that it is
competent to take cognizance of it, and it declared that the petition
meets the admissibility requirements with respect to the rights to
privacy (Article 11(2)), a fair trial (Article 8), freedom of expression
(Article 13), and judicial protection (Article 25), all in connection
with the generic duties of the State to respect and ensure the rights
enshrined in the American Convention (Article 1(1)), and to adopt the
measures necessary to give effect to the rights and freedoms provided
for in the Convention (Article 2).
Based on the foregoing arguments of fact and law, and without
prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this petition admissible with respect to the
petitioners’ arguments regarding alleged violations of Articles 1, 2,
8, 11, 13, and 25 of the American Convention.
To notify the parties of this decision.
To continue analyzing the merits.
To publish this decision and include it in its Annual Report to
the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., October 24th,
2002. (Signed): Juan E. Méndez,
President; Marta Altolaguirre, First Vice-President; José Zalaquett,
Second Vice-President; Robert K. Goldman, Julio Prado Vallejo, Clare K.
Roberts, and Susana Villarán, Commissioners.
See: Sworn statement by Attorney General José Antonio Sossa, May
24, 1999 before the Procuraduría de la Administración,
Article 2127, agreeing with Article 2128 of the Judicial Code
indicate that personal precautionary measures imposing a prohibition
on travel abroad without judicial authorization, and the duty to
appear before a public authority periodically, shall also be
applicable when two circumstances are both present: the accused
takes flight or there is a danger he or she will try to do so, and
the offense carries a minimum sentence of two years of
imprisonment (underscored by petitioners).
Communication from the State received at the IACHR October 2, 2001
which referred to a report by the Office of the Attorney General and
the Supreme Court of Justice.
See: Ruling of December 3, 1999 folio 17.
See para. 11.
IACHR, Report Nº 02/01, Case 11.280, Juan
Carlos Bayarri, Argentina, January 19, 2001. Para. 30. The
Inter-American Court of Human Rights has said repeatedly that “the
State claiming non-exhaustion has an obligation to prove that
domestic remedies remain to be exhausted and that they are
See Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987 Series C
Nº 1, para. 88; Fairén Garbi
and Solís Corrales Case, Preliminary Objections, Judgment of
June 26, 1987 Series C Nº 2, para. 8; Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987
Series C Nº 3, para. 90; Gangaram
Panday Case, Preliminary Objections, Judgment of December 4,
1991 Series C Nº 12, para. 38; Neira
Alegría et al. Case, Preliminary Objections, Judgment of
December 11, 1991 Series C Nº 13, para. 30; Castillo
Páez Case, Preliminary Objections, Judgment of January 30, 1996
Series C Nº 24, para. 40; Loayza
Tamayo Case, Preliminary Objections, Judgment of January 31,
1996, Series C Nº 25, para. 40; Exceptions to the Exhaustion of
Domestic Remedies (Articles 46(1), 46(2)(a) and 46(2)(b) of the
American Convention on Human Rights), Advisory Opinion OC-11/90,
August 10, 1990 Series A Nº 11, para. 41.