21
the alleged victim as enshrined in Article 11(2) of the Convention, in connection with
Article 1(1) of such treaty, regarding the alleged wiretapping and recording of the
aforementioned telephone conversation.
67.
Finally, the Court will not examine the argument that such recording was the
result of the alleged deficiencies of the legal system which regulated the wiretapping
of telephone conversations by the State of Panamá, and that therefore the State
would have failed to comply with the general duty established in Article 2 of the
Convention, for such argument necessarily assumes the State to be responsible for
such wiretapping and recording, something which has not been proven in the instant
case.
2. ii) Privacy and disclosure of the contents of the telephone conversation
68.
The Commission alleged that: a) “the telephone conversation […] was a
private conversation held […] in the framework of the practice of the alleged victim’s
profession as a lawyer […] and, so, its contents were not intended to be disclosed.
Neither Mr. Tristán Donoso nor Mr. Adel [Z]ayed had [consented] to making the
contents of […] such telephone communication public;” b) “even if the Procurador
General de la Nación [National Attorney General] had not been involved in the
wiretapping and recording of the telephone conversation in his capacity as a public
official it was his duty to refrain from disclosing its contents; and c) “the moment a
public official […] disclosed the contents of a telephone conversation which had been
illegally wiretapped and tape recorded, the State violated the right to privacy
provided in Article 11(2) of the American Convention to the detriment of Mr. Tristán
Donoso and failed to fulfill its duty to respect the rights and liberties enshrined in
Article 1(1) of the American Convention.”
69.
The representatives argued that: a) upon recording a telephone conversation
and disclosing its contents the State interfered with the private life of Tristán
Donoso; b) no regulations existed which empowered the former Attorney General to
disclose private information. Moreover, Article 337 of the Penal Code enacted
punishments for the disclosure of information by public officials who, in their capacity
as such, were supposed to keep it secret and Article 24 of Law No. 23 set forth the
duty of confidentiality regarding the information legally obtained in the course of
formal investigation proceedings. Much less could “[…] a conversation which had
been illegally obtained, which was not part of any ongoing investigation proceedings
and which, furthermore, was a dialogue between a lawyer and his client” be
disclosed; c) the former Attorney General did not start an investigation into the
alleged “preparatory acts leading to a wrongdoing or to an illegal action,” nor did he
report, being aware of the identity of the persons who held the conversation, the
alleged unethical conduct to the Colegio Nacional de Abogados [National Bar
Association]; instead he disclosed the contents of the conversation to the authorities
of the Catholic Church and of the aforementioned Bar Association; and d) the
Panamanian legislation was not clear, among other aspects, as to how the private
information to which public authorities may have access was to be handled; the
period of time during which the information might have been kept or stored and the
authorized uses of the information obtained. They indicated that “[t]his has allowed
the State to keep the contents of the conversation […] even today, ten years after it
took place.”
70.
Furthermore, the representatives added that the statements of the former
Attorney General upon disclosing the contents of the telephone conversation