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1) Regarding the proceedings for the crime of abusing authority and
infringing the duties of public officials against the former Attorney General
141. The Commission argued that “the inquiry carried out by the Procuraduría de
la Administración [Office of the Solicitor for the Administration] did not include all the
steps necessary to investigate the source of the wiretapped and recorded
conversation, and subsequently punish those responsible for the violation of the right
to privacy of Mr. Tristán Donoso.” The Commission stated that on October 22, 1999,
Mr. Tristán Donoso appealed Prosecutor’s Opinion No. 472, rendered by the
Procuraduría de la Administración [Office of the Solicitor for the Administration]
alleging that the latter body had ignored a series of pieces of evidence that showed a
violation to his detriment, such as: a) the testimonies by Mr. Adel Zayed and by
Inspector Hurtado, and b) the contradictions regarding the source of the disclosed
conversation recording on the basis of the statements delivered by the different
witnesses before the Procuraduría de la Administración [Office of the Solicitor for the
Administration]; and c) the lack of a statement by Monsignor José Dimas Cedeño.
Finally, the Commission stated that “the State has neither been able to identify or
punish the perpetrators or the instigators, nor shown that any other lines of
investigation have been started in order to discover who [the persons who
wiretapped and recorded the telephone conversation] are.” So, the State “failed to
comply with its duty to provide an effective remedy […].”
142. The representatives alleged that the obligation of the State to investigate
“was not acquitted by determining the alleged lack of individual liability by the
[former] Attorney General, since other lines of investigation [should have been]
explored.” Likewise, the representatives stated that the malicious contradictions
contained in the statements made by Inspector Hurtado amounted to an obstruction
of justice that was not investigated by the State. Despite contradictions in the
account of the facts, the Procuraduría de la Administración [Office of the Solicitor for
the Administration] did not seek to clarify those contradictions, failing to request
statements and confrontation among the key witnesses having rendered
contradictory testimonies, such as Inspector Hurtado, Prosecutor Prado and Clerk
Miranda, and neither did it take subsequent action aimed at obtaining the testimony
of Monsignor Dimas Cedeño.
143. Furthermore, in the opinion of the representatives, the deficiencies and
omissions in the investigation were not pointed out or redressed by the Corte
Suprema de Justicia [Supreme Court of Justice], which did not order any action to
complete the body of evidence. Specifically, the representatives indicated that the
Supreme Court, based on Prosecutor’s Opinion No. 472, by the Procuraduría de la
Administración [Office of the Solicitor for the Administration], found that the
recording was allegedly made from the residence and with the permission of the
Zayed family, without considering: a) the statements by Mr. Adel Zayed and
Inspector Hurtado, and b) the remarks by the Procuraduría de la Administración
[Office of the Solicitor for the Administration] in the aforementioned Prosecutor’s
Opinion, regarding insecurity and divergence in the testimonies about the means
whereby the former Attorney General obtained the magnetophonic tape. They
indicated, lastly, that the aforementioned Court decision did not determine the point
on the disclosure of the contents of the private telephone conversation, even though
such act constitutes a flagrant violation of the right to a private life of the victim.
According to the representatives, the Supreme Court considered that “the criminal
complaint and the evidence submitted lack sufficient entity to prove the existence of