REPORT Nº 77/07
PETITION 977-06
ADMISSIBILITY
ANTONIO
ZALDAÑA VENTURA
PANAMA
October
15, 2007
1. SUMMARY
1. On
August 21, 2006, the Inter-American Commission on Human Rights
(hereinafter referred to as “the Commission”) received a petition lodged
by Antonio Zaldaña Ventura, a Salvadoran national, (hereinafter referred
to as “the petitioner”) in which he claims that he was detained by
Immigration at the International Airport of Tocumen in Panama City on
April 15, 2004. While spending four months in detention in Panama he
claims that he was not informed of his right to seek consular assistance
from the Government of El Salvador nor was he permitted to contact the
Salvadoran Consulate in Panama in violation of Article 8 of the American
Convention on Human Rights (hereinafter “American Convention”) informed
by Article 36 of the Vienna Convention on Consular Relations
(hereinafter “Vienna Convention”). The petitioner claims that he was
forced to sign documents to facilitate his extradition to the United
States where, subsequently, he was charged with drug-trafficking and
sentenced on June 24, 2005 by the US District Court for the Southern
District of New York to serve 135 months (11 years) in prison. Mr.
Zaldaña claims that he is innocent of the charges and that he was forced
to consent to his own extradition from Panama to the United States and
that Panama had no reason to extradite him. In a later submission, Mr.
Zaldaña alleged violations of the Bilateral Extradition Treaty between
the US and Panama which negatively affected his rights.
2. The
State responded to the petition on February 20, 2007 and informed the
Commission that the detention and extradition on August 18, 2004 of Mr.
Antonio Zaldaña Ventura were carried out in conformity with Panamanian
law. The State describes in considerable detail the different steps
involved in the processing of the extradition request.
3. After
analyzing the positions of the parties the Commission concludes that it
has jurisdiction to decide on the complaint presented by the
petitioners and that the case is admissible, under Article 46 of the
American Convention. The Commission has decided to declare the case
admissible under Article 8 of the American Convention in connection with
Articles 1(1) and 2 thereof and inadmissible as regards Article 7 of the
American Convention and the other allegations presented since they do
not fall under the Commission’s jurisdiction. As a consequence, the
Commission will serve notice of its decision to the parties concerned
and will publish the present admissibility report in its Annual Report.
II.
PROCESSING BY THE COMMISSION
4. The
original petition was filed on August 21, 2006 by the petitioner and
additional information, supplementing the petition, was received on
September 4th and November 6, 2006. On December 21, 2006,
the Commission communicated the petition and all the additional
information presented to the State in accordance with Article 30 of its
Rules of Procedure and granted the State a two-month period within which
to reply. On February 22, 2007, the Commission received the State’s
response to the petition and the response was transmitted to the
petitioners on March 16, 2007. On March 16, 2007, the Commission
requested the petitioners to present their observations on the State’s
response within the period of one month. On April 10, 27 and May 15,
2007, the petitioner submitted his observations to the State’s response
and on June 4, 2007 these observations were transmitted to the State.
Additional information was received from the State on July 24 which was
transmitted to the petitioner on July 31, 2007. The Commission
considered the petition during its 128º period of sessions and agreed to
request the State to present information regarding implementation of
Article 36 of the Vienna Convention on Consular Relations in Panamanian
law. On August 6, 2007, it requested that this information be presented
within one month. No information on this issue was received from the
State. The petitioner presented additional information on August 22,
2007 which was transmitted to the State on September 4, 2007. No
further information was received from the parties.
III.
POSITIONS OF THE PARTIES
A. The
Position of the Petitioner
5. On
August 21, 2006, Antonio Zaldaña Ventura filed a petition with the
Inter-American Commission.
6. Mr.
Zaldaña states that on April 15, 2004, he boarded an airplane
approximately at 9:00 pm at the International Airport of El Salvador,
with the necessary and corresponding identity documents. He claims that
in no country in the world could a national leave his native land if an
international arrest warrant were pending against him.
7. When
Antonio Zaldaña Ventura disembarked from the plane, an hour later, at
approximately 10:00 pm, at the Tocumen International Airport in Panama,
where he claims that he was arrested without the production of a legal
arrest warrant. He claims that a Salvadoran informant telephoned the
American Embassy in Panama to have him arrested because the U.S.
Government thought that he was the “right hand” of a Mexican
international drug-trafficker. Mr. Zaldaña Ventura claims that he never
had anything to do with drug-trafficking and that he is innocent of the
charges. He was extradited from Panama to the United States where he
received a criminal sentence of 11 years and three months from a US
Court and is currently in a federal prison in the United States for a
crime that he claims he never committed.
8. The petition alleges that Antonio Zaldaña Ventura was not
informed, in a timely manner, in Panama, of his right to contact and
communicate with the consular officers of El Salvador, his native land.
The failure to provide Mr. Zaldaña with this information, it is charged,
deprived him of a human right to consular notification, set forth in the
Vienna Convention on Consular Relations, and the ability to completely
defend against the request for extradition filed by the United States
with the Panamanian Government. Article 36 of the Vienna Convention on
Consular Relations provides that when a foreign national is “arrested or
committed to prison or to custody pending trial or is detained in any
other manner,” the appropriate authorities within the receiving State
must him “without delay” of his rights to have his native country’s
local consular office notified of his detention. With the detained
national’s permission, a consular officer from his country may then
converse and correspond with him and arrange for his legal
representation. As a consequence of the failure to provide Mr. Zaldaña
with information regarding his right to consular notification, the
petitioner argues that Panama is responsible internationally for the
violation of Articles 7 (arbitrary detention) and 8 (right to due
process and a fair trial) of the American Convention in conjunction with
the obligations assumed by the State under Articles 1(1) and 2 thereof
and Article 36 of the Vienna Convention on Consular Relations. The
petitioner submitted a letter from the Consul General of El Salvador in
Panama dated August 24, 2006 which stated that the Consulate had not
received notification from the Panamanian Government of Mr. Zaldana’s
detention. The letter states, in pertinent part, the following:
At your request, and on the
basis of the records kept by this Consulate General in 2004, I wish to
report that, in relation to your detention by the Technical Judicial
Police (PTJ) of Panama on April 15, 2004, your detention was not
reported to this Consulate as stipulated in international treaties on
the matter; only on August 2, 2004, was note Ref. A. J. No. 2032, signed
by Mr. Otto A. Escartín Romero, Assistant Director General for Juridical
and Treaty Affairs of the Ministry of Foreign Affairs of Panama, sent to
this Consulate, requesting us to prepare a safe-conduct for your
transfer to the United States of America, in execution of the
extradition order issued by the Panamanian foreign ministry, No. 825,
dated July 7, 2004.
The safe-conduct was not
issued, because we were subsequently informed that the ordinary passport
had been found.
Prior to August 2, 2004,
this Consulate General was not aware of the detention of Mr. Antonio
Zaldaña Ventura.
9. The
petitioner also submitted a letter dated April 16, 2004, from the
Attorney General to the Director of the Technical Judicial Police,
informing it of the detention on April 16th of Antonio
Saldana-Ventura, also known as “Guillermo Saldana”, “Jose Saldana” and
“Jorge Saldana”, for a period of 60 days since his extradition was being
sought by the United States for criminal charges relating to drug
trafficking and that he would be placed at the disposition of the
Ministry of Foreign Relations. Pursuant to the Constitution and the
Law, the letter continues, at the time of his detention he must be
notified of his rights and that he has the right to a defense lawyer; in
the case that he lacks resources, a defense lawyer is to be named within
24 hours to assist him.
10.
The
petitioner also included the “Minutes of the Surrender” a one page
document that is signed by Otto A. Escartin Romero, the Minister of
Foreign Relations of Panama and Jim Erwin of the US Embassy, as well as
by two custodians of the US Government, regarding the surrender of
Antonio Zaldaña Ventura to the US pursuant to the Bilateral Extradition
Treaty and the 1988 UN Convention against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances.(hereinafter “the Anti-Drug
Convention”). The surrender was carried out at 8:00 a.m. on August 18,
2004 at the International Airport of Tocumen in Panama City and the
Minutes indicate that Mr. Zaldaña “voluntarily” surrendered to the
extradition once he was notified of the decision. The petitioner
alleges that he was told he would remain in detention for 5 or 6 years
in Panama if he did not sign a statement to the effect that he
“voluntarily” surrendered to the extradition.
11. In a
letter providing additional information, received on November 6, 2006,
the petitioner alleged further violations of other international
instruments, viz. Article 6 of the Bilateral Extradition Treaty
between the US and Panama which provides a maximum of 60-days detention
following arrest in alleged violation of Article 7 of the American
Convention. He also alleged a violation of Article 8 of the Bilateral
Extradition Treaty that provides that an individual may not be punished
for a crime other than the one for which he was extradited. He further
claimed that he was coerced into agreeing to his own extradition to the
United States, which was effectuated on August 18, 2004, to answer
charges of crimes related to drugs (international trafficking). Mr.
Zaldaña claimed that he was warned that he would spend 5 to 6 years in
detention in Panama if he did not sign a statement of the effect that he
“voluntarily” agreed to the extradition. He claimed that Otto Escartin
Romero, the lawyer of the Panamanian Ministry of Foreign Relations,
dictated to him the statement that he signed. In addition, during the
hearing in the US District Court for the Southern District of New York
on February 1, 2005, he claims that he was misled into pleading guilty
to charges of drug-trafficking by his court-appointed lawyer who told
him that if he did not so plead he would be sentenced to 30 years in
prison. Mr. Zaldaña has less than an eighth grade education and denies
any activity relating to drug-trafficking for which he is convicted and
sentenced to serve 135 months (i.e. 11 years) in prison in the United
States.
12. In a
letter received on April 10, 2007, the petitioner informs the Commission
that he sought to communicate with his Consulate while in detention in
Panama and that the response was that he had to contract a lawyer. When
he was arrested, he claims that he had $3,700 in his possession. He
claims that a guard of the Judicial Technical Police informed a lawyer,
Mr. José Luis Abrego about his case and required that Mr. Zaldaña sign a
power of attorney in order to reclaim his belongings, including the
$3,700. Mr. Zaldaña claims that the lawyer promised to secure his
freedom within 24 hours but he never reappeared again. Mr. Zaldaña
claims that no lawyer was permitted to visit him unless he signed a
power of attorney and that is why he signed so many powers of attorney.
B. The Position of the State
13. The State
responded to the petition on February 20, 2007 and informed the
Commission that the detention and extradition on August 18, 2004 of Mr.
Antonio Zaldaña Ventura were carried out in conformity with Panamanian
law. The State describes in considerable detail the different steps
involved in the processing of the extradition request.
1. The Extradition request proceedings
14. The State
informed the Commission that the US Embassy, by Note No. 412 of April
15, 2004, requested the Ministry of Foreign Relations of Panama to
detain, for the purposes of extradition, the Salvadoran citizen Antonio
Zaldaña Ventura, based on the UN Anti-Drug Convention and the Bilateral
Extradition Treaty signed with the United States in 1904. The US Note
requested that all the articles in Mr. Zaldaña’s possession at the time
of his arrest be seized, since they could serve as evidence and might be
product of his offenses. Mr. Zaldaña claims that $3,700 dollars in his
possession, inter alia, was seized.
15. The
Ministry of Foreign Relations of Panama, the State informed, pursuant to
Article 6(8) of the UN Anti-Drug Convention and Article IV of the
Bilateral Extradition Treaty and Article 2502 of the Judicial Code of
Panama, by means of Note D.M. No. 995 of April 15, 2004 requested the
Attorney General (the Panamanian authority authorized to issue arrest
warrants) to arrest Mr. Zaldaña for the purpose of extraditing him.
16. The
response of the State pointed out that the arrest was carried out by
means of an ruling of April 16, 2004, based on Article 6(8) of the UN
Anti Drug Convention and Article VI of the Bilateral Extradition Treaty
of 1904 and Article 2502 of the Judicial Code of Panama that ordered the
preventive detention for the purposes of extradition of Mr. Antonio
Zaldaña Ventura and that he be placed at the orders of the Ministry of
Foreign Relations for a period of sixty days, counted from the date of
his detention in Panama, a period within which the United State was
required to formalize its announced request for extradition.
17. The
Technical Judicial Police of Panama, the State added, by means of Note
No. DG-01-301-04 of April 19, 2004 communicated to the Ministry of
Foreign Relations that at 10:00 pm on April 15, 2004, agents of the
National Office of Migration and Naturalization of the Justice Ministry
arrested Mr. Antonio Zaldaña Ventura in the International Airport of
Tocumen, and that he was placed at the disposition of the Ministry of
Foreign Relations once he was positively identified as the person whose
extradition was sought.
18. The State
informed further that Mr. Antonio Zaldaña Ventura, by means of his
lawyer, Jose Luis Abrego, presented a writ of habeas corpus before the
plenary of the Supreme Court. In compliance with Articles 2585, 2586
and 2587 of the Judicial Code of the Ministry of Foreign Relations, the
State responded to the writ of habeas corpus by means of Note D.VM. No.
1141/A.J. of April 29, 2004.
19. The State
informed that the writ of habeas corpus was resolved by the plenary of
the Supreme Court on May 28, 2004, in a decision which declared the
detention of Mr. Zaldaña Ventura to be legal. The Justices pointed out
that “in conformity with the preceding paragraphs, the plenary of the
Court is of the view that the detention of Mr. Antonio Zaldaña Ventura
had not violated his right to due process, as his lawyer alleged. This
is so, given that in conformity with the terms of Article 2502 of the
Judicial Code in relation to Article 4 of the Bilateral Extradition
Treaty of 1904 between the US and Panama, the provisional detention -
for a maximum period of 60 days – of an individual who is being sought
by a foreign authority, the mere notification by diplomatic mail will be
sufficient.”
20. The State
further explained that by means of a power of attorney presented to the
Ministry of Foreign Relations on April 20, 2004, Mr. Antonio Zaldaña
Ventura named as his legal representative the law firm Remon &
Associates. Nevertheless, by means of a second power of attorney
presented to the Ministry of Foreign Affairs on May 28, 2004 he granted
special power to the lawyer Abner Alvarez Morales, to represent him
during the extradition proceedings against him. By means of another
power of attorney presented on June 1, 2004, Mr. Antonio Zaldaña Ventura
named Orlando Alonso Rodríguez his representative during the extradition
proceedings.
21. The US
Embassy, by means of Note 781 of June 10, 2004, the State explained,
received by the Ministry of Foreign Relations on June 11, 2004,
formalized the extradition request against the Salvadoran citizen,
Antonio Zaldaña Ventura, for the alleged commission of drug related
crimes, and the documentation supporting the request was provided.
22. In
compliance with the terms of Article 41(2) of Law 23 of December 30,
1986, which regulates extradition in drug matters, the Ministry of
Foreign Relations proceeded to remit the documentation sent by the US
Embassy to the Attorney General in order to enable him to issue an
opinion regarding whether the information complied with the formal
requisites established by national law.
23. The
Attorney General, the State noted, by means of a ruling dated June 21,
2004, decided that the documentation presented by the US complied with
the legal requisites established in national law, for which purpose he
sent the file to the Ministry of Foreign Relations, for it to take the
respective decision.
24. By means
of a power of attorney, the State noted, Mr. Zaldaña Ventura named
Adalides Batista Vergara as his lawyer to represent him during the
extradition proceedings, who, in turn, named Orlando Alonso Rodriguez as
his substitute.
25. The
Ministry of Foreign Relations, the State pointed out, by means of
Ministerial Resolution No. 825 of July 7, 2004 resolved to “Grant” the
request for extradition presented by the US Government against the
Salvadoran citizen Antonio Zaldaña Ventura. This resolution was
personally notified to the individual whose extradition was sought on
July 8, 2004, and in the same a manuscript was incorporated which
textually stated the following: “I want them to extradite me as soon as
possible” (“Yo quiero que me extraditen lo más pronto posible”)
Signed, Antonio Zaldaña Ventura, 8-7-04=230 pm.” At the same time he
noted that he no longer required the services of a State appointed
lawyer since he had a private lawyer, and in the file was a power of
attorney granted to his lawyer Adalides Batista Vergara.
26. On July
12, 2004, the State noted, the Salvadoran citizen Antonio Zaldaña
Ventura, presented a manuscript in which he textually manifested the
following: “by this means I, Antonio Zaldaña Ventura, Salvadoran, with
passport No. B646202, state that I freely accept the extradition
requested by the United States which was granted by the Government of
Panama by means of Resolution 825 of July 7, 2004, and which I attest to
irrevocably.” The State pointed out that he signed this document in the
presence of Mrs. Marta Gonzalez and Mr. Luis A. Lopez A., also the
action was witnessed by Mr. Otto A. Escartin Romero, the lawyer of the
Ministry of Foreign Relations.
27. In the
extradition file, the State added, there is a Note A.J. No. 2032 of
August 2, 2004, in which this institution informed the Consul General of
the Republic of El Salvador in Panama about the expression of
voluntariness of Mr. Antonio Zaldaña Ventura who agreed to his
extradition to the United States and at the same time, the response
which the Embassy of the Republic of El Salvador offered to the Ministry
of Foreign Relations by means of Note A.124.137 of August 3, 2004.
28. By means
of Note N.V.A.J. No. 1861 of July 14, 2004, the Ministry of Foreign
Relations, in compliance with the provisions of Article 2510 of the
Judicial Code, placed Mr. Antonio Zaldaña Ventura at the disposition of
the United States, so that within a period of 30 days he could be
transferred to that jurisdiction, which in fact was carried out on
August 18, 2004.
29. The State
of Panama denied the alleged violations of human rights denounced by Mr.
Zaldaña Ventura as regards having been placed in detention for more than
60 days in violation of the Bilateral Extradition Treaty, that he was
obliged to accept his voluntary extraction to the United States, the
lack of legal representation during the extradition process, the lack of
communication with the Salvadoran Consulate regarding his legal
situation while he was in detention and the alleged violation of the
principle of “speciality” set forth in the Bilateral Extradition Treaty.
30. With
regard to the allegation that Mr. Zaldaña Ventura was in detention for
more than the 60 days stipulated in the Bilateral Extradition Treaty,
the State’s argument is summarized to the effect that it notes that he
was arrested on April 15, 2004. The 60 day period, the State informs,
permits the State requesting the extradition to formalize the reasons
therefor. The US, the State explains, presented the grounds for the
extradition on June 11, 2004; consequently, the 60 day limit was not
surpassed. Once the extradition request has been formalized, Article
41(2) of the Law 23 of December 30, 1986, requires that the Ministry of
Foreign Relations, within five days, inform the Attorney General;
according to the State, this was carried out on June 15, 2004. On June
21, 2004, the Attorney General, within the period established in Article
2498 of the Judicial Code and Article 42 of the UN Anti Drug Law, ruled
that the documentation supported the request for extradition. Then,
within the five day period established by article 41(4) of Law 23 of
December 23, 1986, the Attorney General returned to the Ministry of
Foreign Relations the documentation relating to the request for
extradition.
31. Pursuant
to the five day period stipulated in Article 41(5) of Law 23 of December
23, 1986, the Executive, by means of the Ministry of Foreign Relations,
has a period of five days, from the date of the return of the
documentation from the Attorney General’s office, within which to accept
or reject the request for extradition. On July 7, 2004, the Ministry of
Foreign Relations granted the request for extradition presented by the
US Government and the same was notified the same day.
32. On July
12, 2004, once Mr. Antonio Zaldaña Ventura presented his signed
statement before the Ministry of Foreign Relations, by which he
voluntarily declared his desire to be surrendered to the US authorities,
the State noted that the Ministry of Foreign Relations, by means of a
Note dated July 14, 2004, pursuant to Article 2510 of the Judicial Code,
proceeded to place him at the disposition of the United States in order
to carry out his transfer, which was achieved on August 18, 2004.
33. The
State, in response to Mr. Zaldaña’s denunciation regarding arbitrary
detention notes that he was detained for 123 days in the following
stages:
-Period of Preventive
Detention- pursuant to Article III of the Bilateral Extradition Treaty;
Article 2502 of the Judicial Code; this comprised 55 days from April 15
to June 11, 2004.
-Period of Decision-
pursuant to Article 41(6) of Law 23 of December 30, 1986; this comprised
26 days from June 12 until July 7, 2004.
-Voluntary Declaration-
pursuant to Article 2507 of Judicial Code; this comprised 5 days from
July 7-12, 2004, date on which Mr. Antonio Zaldaña presented his written
statement accepting the extradition.
Formal communication-
pursuant to Article 2510 of the Judicial Code; this comprised 9 days
from July 13-21, 2004, date on which the availability for extradition
was formally communicated.
Execution of extradition
period- pursuant to Article 2510 of the Judicial code; this comprised 29
days counted from July 21, the date on which the US Embassy was notified
that the individual whose extradition was sought was at the disposition
of the US Government, until his surrender on August 18, 2004, the date
on which his extradition was carried out.
Consequently, the
State concluded, it rejected completely the petitioner’s argument that
his extradition violated the legal provisions of the Anti Drug
Convention and the Bilateral Extradition Treaty and the provisions of
Law 23 of December 30, 1986 and the Judicial Code.
2. Mr. Zaldaña was not obliged to voluntarily accept his
extradition
34.
The State underlined the fact that Antonio Zaldaña Ventura was not
obliged to accept his extradition. In addition, he refused a court
appointed lawyer, indicating that he had named a private lawyer, Dr.
Adalides Batista, to defend him. Subsequently, the State pointed out,
Mr. Antonio Zaldaña Ventura, this time in the presence of two witnesses,
Mrs. Marta E. González and Mr. Luis E. López, declared by means of a
signed statement, his willingness to be extradited to the United States;
all this in presence of Dr. Otto A. Escartín Romero, the lawyer of the
Ministry of Foreign Relations.
3. Mr. Zaldaña was represented by a lawyer
35. In response to Mr. Zaldaña’s charges that he was not
appropriately represented during the extradition proceedings, the State
points out that he was represented by the lawyers José Luis Abrego of
the law firm Ramón and Associates, Abner Alvarez Ruiz, Orlando Alonso
Rodríguez and Adalides Batista Vergara.
36. In addition, when Mr. Zaldaña Ventura was notified of
Resolution 825 of June 7, 2004, and was asked whether he wished to have
a court appointed lawyer, he responded that he did not need a court
appointed lawyer since he already had a private lawyer, at which time
Adalides Batista appeared as his legal representative and Orlando Alonso
Rodríguez as her substitute.
4. The
Salvadoran Consulate was informed of the extradition of Mr. Antonio
Zaldaña Ventura
37. The State points out that Note A.J. No. 2032 of August 2, 2004
in the Ministry of Foreign Relations file indicates that the legal
situation of Mr. Antonio Zaldaña Ventura was communicated to the Consul
General of the Republic of El Salvador, specifically, that Mr. Zaldaña
had consented voluntarily to be extradited to the United States. This
communication was replied to by the Embassy of the Republic of El
Salvador by means of Note A.124.137 of August 3, 2004.
5. Alleged violation of the principle of Speciality in
matters relating to Extradition
38. The State responded that in its view it was up to the US
authorities to respond to the violations alleged regarding the principle
of speciality raised by the petitioner.
6. The State requests the Commission to declare the petition
inadmissible
39. The State requests the Commission to declare the petition
inadmissible based on the following:
- The
principle of due process has not been violated since the petitioner had
ample opportunity and took extensive advantage of the distinct remedies
available with respect to his detention and judicial guarantees;
-
That the extradition was carried out pursuant to Panamanian law;
- That the
extradition was based on a Ministerial Resolution and that when Mr.
Zaldaña Ventura was notified of the decision he expressed his
willingness to be transferred to the US authorities;
- That the
proceedings by which Mr. Zaladana’s extradition was requested by the US
authorities complied with the legal requisites applicable to extradition
under Panamanian law;
- That as
the formal request for extradition by the US Government indicates, said
Government accepts and commits itself to try and sentence him only for
the facts that gave rise to the request for extradition;
- That the
judgment by which the request for habeas corpus was presented confirmed
the legality of the detention of the petitioner;
- That the
petitioner had a legal representative for his defense as is evidenced by
the powers of attorney granted to different private lawyers.
IV. ANALYSIS
CONCERNING JURISDICTION AND ADMISSIBILITY
A. Jurisdiction
1. The
Commission's jurisdiction rationae personae, ratione loci,
ratione temporis, and ratione materiae
40. The
petitioner is entitled, pursuant to Article 44 of the American
Convention, to lodge a petition with the Commission. The petition names
Antonio Zaldaña Ventura as the alleged victim, whose rights under the
American Convention Panama has pledged to respect and guarantee. As for
the State, the Commission points out that Panama signed the American
Convention on November 22, 1969 and ratified it on June 22, 1978.
Consequently, the Commission has jurisdiction ratione personae to
examine the petition. In addition, Panama is a State party to the Vienna
Convention on Consular Relations. As regards the petitioner’s claim
that he was misled into pleading guilty to charges of drug-trafficking
in the United States by his court-appointed lawyer who told him that if
he did not so plead that he would be sentenced to 30 years in prison,
this claim is not admissible in this case against Panama, since it
affects a respondent Government other than Panama.
41. The
Commission has jurisdiction ratione loci because the alleged
violations are said to have taken place within the territory of a State
party to the American Convention.
42. With
regard to the Commission's jurisdiction ratione temporis to
examine the petition, the facts are said to have occurred during 2004,
at which time the American Convention was in force in Panama.
43. Finally,
the Commission is competent ratione materiae, because the
petition denounces violations of human rights protected by the American
Convention. In this case, as in several others before it, the issue is
raised regarding the extent to which a State party has given effect to
the requirements of Article 36 of the Vienna Convention on Consular
Relations for the purpose of evaluating that State’s compliance with a
foreign national’s due process rights under the applicable norms of the
inter-American system, in the instant case, under Article 8 of the
American Convention.
As regards possible violations of Articles 6 and
8 of the Bilateral Extradition Treaty
between Panama and the United States, the Commission considers these
claims to be inadmissible since this treaty does not fall under the
Commission’s jurisdiction.
2.
Exhaustion of domestic remedies
44. Article
46(1)(a) of the American Convention states that admission by the
Commission of a petition or communication lodged in accordance with
Article 44 shall be subject to the requirement that the remedies under
domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law. The purpose of
this requirement is to allow national authorities to learn of the
alleged violation of a protected right and, in appropriate cases, to
resolve it before it is taken before an international instance.
45. The
requirement of prior exhaustion of remedies is met when the national
system is furnished with remedies that are adequate and effective to
repair the alleged violation. In this connection, the exception to the
requirement to exhaust domestic remedies, contained in Article 46(2) of
the American Convention, does not apply when there is denial of justice,
viz., the domestic legislation of the State concerned does not
afford due process of law for the protection of the right or rights that
have allegedly been violated; the party alleging violation of his rights
has been denied access to the remedies under domestic law or has been
prevented from exhausting them; or there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies.
46.
Based on
inferences from the principles of international law, as reflected in
precedents established by the Commission and the Inter-American Court of
Human Rights, it is especially important that the State against which a
claim is being lodged should invoke the plea of non-exhaustion of
domestic remedies in the early stages of the proceedings before the
Commission.
When a petitioner alleges that he or she is unable to exhaust domestic
remedies, Article 31(3) of the Commission’s Rule of Procedure
establishes that the burden then shifts to the State to demonstrate
which domestic remedies provide effective relief for the harm alleged.
In the instant case, the State has not opposed Mr. Zaldaña Ventura’s
petition on the ground of non-exhaustion of domestic remedies. To the
contrary, the State has argued that Mr. Zaldaña Ventura has received the
guarantees of due process in the extradition proceedings against him and
in the writ of habeas corpus that was examined and decided by the
Panamanian Supreme Court, which declared the legality of his detention.
47. The State
informed that the writ of habeas corpus was resolved by the plenary of
the Supreme Court on May 28, 2004, in a decision which declared the
detention of Mr. Zaldaña Ventura to be legal. The Justices pointed out
that “in conformity with the preceding paragraphs, the plenary of the
Court is of the view that the detention of Mr. Antonio Zaldaña Ventura
had not violated his right to due process, as his lawyer alleged. Given
that Mr. Zaldaña Ventura presented his petition to the Commission on
August 21, 2006, almost two years after the decision issued by the
Panamanian Supreme Court, the Commission concludes that the alleged
violation of Article 7 is inadmissible pursuant to Article 46(1)(b) of
the American Convention.
48. With
regard to the petitioner’s central claim that while spending four months
in detention in Panama that he was not informed of his right to seek
consular assistance from the Government of El Salvador, the country of
his nationality, (nor, he claims, was he permitted to contact the
Salvadoran Consulate in Panama) in violation of Article 8 of the
American Convention informed by Article 36 of the Vienna Convention on
Consular Relations, the State does not address this claim in its
response. The State reported that on August 2, 2004 the Panamanian
Ministry of Foreign Relations informed the Consulate General of the
Republic of El Salvador of the legal situation of Mr. Antonio Zaldaña
Ventura, specifically, that he had consented, voluntarily, to his
extradition to the United States. This is the only information in the
State’s response regarding Panama’s contact with Mr. Zaldaña’s country
of nationality.
49. In light
of the fact that Panama did not respond to the Commission’s August 6,
2007 (supra para. 4) request for information regarding
implementation of Article 36 of the Vienna Convention on Consular
Relations, which requires the State to provide information to an alien
detainee regarding the possibility of consular assistance, the
Commission presumes that the Vienna Convention has not been implemented
in Panamanian law, which could constitute a possible violation of
Article 2 of the American Convention. In the absence of domestic
legislation affording due process of law for the protection of the right
that has allegedly been violated in this case, the petitioner is excused
from exhausting domestic remedies, pursuant to Article 46(2)(a) of the
American Convention.
3.
Period for filing the petition
50. In
accordance with the provisions of Article 46(1) (b) of the Convention,
admission by the Commission of a complaint shall be subject to the
following requirements–namely, that the petition or communication is
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 at
the national level. The six-month rule guarantees legal certainty and
stability once the decision has been adopted.
51. Under
Article 32(2) of the Commission’s Rules of Procedure, in those cases in
which the exceptions to the requirement of prior exhaustion of domestic
remedies are applicable, the petition shall be presented within a
reasonable period of time, as determined by the Commission. Under said
Article, the Commission "shall consider the date on which the alleged
violation of rights occurred and the circumstances of each case."
52. With
regard to the petition to be examined, the Commission has established
the applicability of the exception regarding lack of due process of law
for the protection of the right or rights that have allegedly been
violated referred to in Article 46(2)(a) and must therefore evaluate
whether the petition was presented within a reasonable period in
accordance with the specific circumstances of the case at hand.
53. In the
present case the petition was lodged with the Commission on August 21,
2006. The fact situation presented reveals that Mr. Zaldaña has been
uninterruptedly in detention since his arrest at the International
Airport in Panama on April 15, 2004. He was transferred to the United
States on August 18, 2004, where he was subjected to proceedings leading
to his prison sentence. In determining whether the petition was
submitted within a “reasonable” time, the Commission must consider the
circumstances of the specific case.
54. The
Commission takes into consideration Mr. Zaldaña’s legal situation that
involved two countries and has been going on since April 2004, for over
three years. Mr. Zaldaña was in uninterrupted detention in Panama and
the United States, he claims inadequate and improper legal
representation, and he suffers from the limitations imposed by an eighth
grade education. Mr. Zaldaña was arrested upon his arrival in Panama on
April 15, 2004, was held for four months and was extradited to the
United States on August 18, 2004. Once in the United States, on
February 18, 2005, Mr. Zaldaña changed his plea of Not Guilty to a
Guilty plea to the charge of conspiracy to import cocaine into the US.
As a consequence, on June 22, 2005, he was sentenced to 135 months
imprisonment by the US District Court for the Southern District of New
York. Despite the guilty plea, on June 27, 2005, Mr. Zaldaña appealed
his judgment to the US Court of Appeals. That appeal is still pending.
55. The claim
that the petitioner is making, viz. that his right to due process
was violated in that Panama failed to notify him, at the time of his
arrest or at least before he made his first statement before the
authorities, of his right to consular assistance, once he was detained
in Panama, is a claim that requires prior knowledge of the existence of
the right. What distinguishes this right from other human rights is
that knowledge of the existence of the right is dependent upon the
notification requirement imposed upon the State and which the State, in
this case, failed to afford the detainee. Accordingly, under these
circumstances, the Commission considers that the petition was filed
within a reasonable time and finds that the petition is not barred from
consideration under Article 46(1)(b) of the American Convention.
4.
Duplication of procedures and international res judicata
56. There is
no suggestion in the case file that the subject of the petition or
communication is pending in another international proceeding for
settlement, nor that the petition or communication is substantially the
same as one previously studied by the Commission or by another
international organization. Accordingly, the requirements established in
Articles 46(1)(c) and 47(d) of the American Convention shall be deemed
to have been met.
5.
Characterization of the facts alleged
57. For
purposes of admissibility, the Commission shall decide whether the
petition or communication states facts that tend to establish a
violation of the rights guaranteed by this Convention, as stated in
Article 47(b) of the American Convention, if the statements of the
petitioner or of the State indicate that the petition or communication
is manifestly groundless or obviously out of order, according to
paragraph (c) of the same Article.
58. The
standard for assessing these criteria is different from the standard
required for deciding on the merits of a complaint. The Commission must
carry out a “prima facie” assessment so as to examine whether the
complaint establishes the apparent or potential violation of a right
that is guaranteed under the American Convention and not so as to
establish the existence of a violation. Such an examination is a summary
analysis that does not imply any prejudice or preliminary opinion on the
merits.
59. The
Commission does not find that the petition is “manifestly groundless” or
that it is “obviously out of order”. As a result, the Commission
considers that, prima facie, the petitioner has met the criteria
set forth in Article 47(b) and (c) of the American Convention.
60. In
addition, the central claim of the petitioner
is that his right to due process, as set
forth under Article 8 read in conjunction with Article 1(1) of the
American Convention and Article 36 of the Vienna Convention on Consular
Relations, was allegedly violated by Panama given Panama’s failure to
inform him of his right to consular assistance “without delay” following
his detention. The Inter-American Court’s Advisory Opinion No. 16
stated that the Vienna Convention on Consular Relations confers rights
upon detained foreign nationals; among them the right to information on
consular assistance. The legal question posed by this case is whether
the duty to inform the detainee of his right to consular assistance
attaches in the first country in which the alien finds himself in a case
where his extradition and prosecution is sought by a second country, or
whether it only attaches in the second country, as a right of the
defense in criminal proceedings, in a case where he is subject to
criminal prosecution.
61. In light
of the foregoing, the Commission is of the view that the petition raises
important questions regarding possible violations of Article 8 of the
American Convention, as informed by the Vienna Convention on Consular
Relations and concludes that the petition is not inadmissible under
Article 47(c) of the American Convention as “manifestly groundless” or
“obviously out of order.”
V.
CONCLUSIONS
62. Based on
the considerations of fact and law set forth herein, and without
prejudging the substantive merits of the question, the Commission finds
that the present case meets the requirements for admission as set forth
in Article 46 of the American Convention.
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
DECIDES:
1. To
declare the petition admissible under Articles 1(1), 2 and 8 of the
American Convention.
2. To
declare the alleged violation of Article 7 of the American Convention
and the other allegations presented under the Bilateral Extradition
Treaty between Panama and the United States inadmissible.
3. To
notify the State and the petitioner of this decision.
4. To
initiate proceedings into the merits of the case.
5. To
publish this decision and include it in its Annual Report, to be
presented to the OAS General Assembly.
Done and signed
in the city of Washington, D.C., on the 15th day of the month
of October, 2007. Signed:
Florentín
Meléndez, President; Paolo G. Carozza, First Vice-President; Víctor E.
Abramovich, Second Vice-President; Evelio Fernández Arévalos, Sir Clare
K. Roberts, and Freddy Gutiérrez, Commissioners.
|