43
the punishable act reported, arriving at the conclusion – on the grounds that the
wiretapping of the conversation had not been proven – that the [former Attorney
General] was not responsible for the disclosure thereof either.”
144. The State alleged that the aforementioned proceedings were carried out with
the guarantees due the accused and the accuser; that a decision was rendered
within reasonable time by competent, independent and impartial tribunals, and that
“the fact that the result of the criminal prosecution does not comply with the
expectations of the accuser […] does not entail that no protection was provided [,
since such protection] is concerned with the right to a fair trial and not with [the]
favorable Order of the claim brought forth. It further considered that the Commission
overemphasizes the fact that the Procuraduría de la Administración [Office of the
Solicitor for the Administration] failed to insist in obtaining the testimony of
Monsignor José Dimas Cedeño, since the points in the set of questions filed in order
to be posed to him lacked weight to form the opinion of the Court […] and the key
point [in his testimony] had been fully established through other pieces of evidence
[and] was never doubted throughout the inquiry”, for which reasons none of his
answers would have had any impact on the judgment. It pointed out that, given the
dismissal of the charges against the former Attorney General, “criminal legislation in
Panamá required a formal report by the injured party […] in order to initiate criminal
enquiry proceedings.” Thus, the State held that “Tristán Donoso never appeared at a
Personería Municipal [Municipal Judicial Office] – the investigation authority with
competent jurisdiction – to formally submit an impersonal criminal complaint
therefore that such body could initiate summary investigation proceedings to impose
criminal liability for the recording of the conversation of July 8, 1996, even though,
being a lawyer, he was fully aware of which was the body having competent
jurisdiction.” Lastly, the State alleged that “the [former] Attorney General received
[the] tape from the Prosecutor [Prado] in the course of a criminal investigation for
the alleged crime of extortion, and that, as he was informed, it had been provided by
Mr. Adel [Z]ayed, from which it derives that the [former Attorney General] had no
reasons to believe that the recording had been made illegally.”
145. The Court has held that “[i]n order to clarify whether the State has violated
its international obligations owing to the acts of its judicial organs, the Court may
have to examine the respective domestic proceeding.123 In this sense, the Court will
examine, firstly: i) the allegations regarding the investigations carried out by the
State in the course of the criminal prosecution brought against the former Attorney
General, and then ii) consider the allegations made regarding the grounds for the
judicial decision made by the Corte Suprema de Justicia [Supreme Court of Justice]
in the course of such proceedings.
1. i)
The investigation carried out by the Procuraduría de la Administración
[Office of the Solicitor for the Administration] against the former Attorney
General.
146. The duty to investigate involves an obligation to act diligently and not to
guarantee a given result since such duty does not necessarily entail that the accused
or the investigated individuals should be convicted. The foregoing notwithstanding,
123
Cf. Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala. Merits. Judgment of
November 19, 1999. Series C No. 63, para. 222; Case of Heliodoro Portugal, supra note 66, para. 126,
and Case of García Prieto et al. v. El Salvador. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 20, 2007. Series C No. 168, para. 109.