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Church authorities just because a “Monsignor” is mentioned therein is not the
procedure provided to prevent the alleged criminal conducts. Likewise, neither is the
disclosure of the recording to certain authorities of the Colegio Nacional de Abogados
[National Bar Association] the procedure established by Panamanian legislation in
case of a possible breach of the lawyer’s ethics code. In the instant case, the former
Attorney General should have effected a report to the Tribunal de Honor del Colegio
Nacional de Abogados [National Bar Association Ethics Review Board], which should
have examined whether the facts reported amounted to a case of unethical conduct
among those set forth in the Código de Ética y Responsabilidad Profesional del
Abogado [Lawyers' Code of Ethics and Professional Responsibility]. In view of the
foregoing, the Court concludes that the way in which the telephone conversation was
disseminated in the instant case lacked statutory grounds.
82.
Finally, this Tribunal finds that the comments by the former Attorney General
when effecting the aforementioned disclosure (supra paras. 43 and 44) may be
deemed to have affected honor and reputation in a manner incompatible with the
Convention to the detriment of Mr. Tristán Donoso, inasmuch as qualifying the
statements contained in the cassette as “a defamation plan,” or as a “conspiracy
against the head of the Ministerio Público [Office of the Public Attorney]” uttered by
the highest authority of the body responsible for prosecuting crimes before two
audiences which are relevant for the life of the alleged victim, implied participation
by the latter in an illegal activity, with the resulting impairment of his honor and
reputation. The opinion that the authorities of the Catholic Church and of the Colegio
de Abogados [Bar Association] had about the worthiness of, and the action taken by,
the alleged victim necessarily affected his honor and reputation (supra para. 34).
83.
So, the Court considers that disseminating the private conversation before
Catholic Church authorities and some of the persons responsible for running the
Colegio Nacional de Abogados [National Bar Association] and the comments made by
the former Attorney General on such occasions, violated the rights to a private life
and to honor and reputation of Mr. Tristán Donoso, recognized in Articles 11(1) and
11(2) of the American Convention, in connection with the obligation to respect rights
enshrined in Article 1(1) thereof.
2. iii) The duty to guarantee a private life through the criminal proceedings
84.
The Commission alleged that, “the fact [that] Prosecutor’s Opinion No. 472
was drawn up by agents under the hierarchical authority of the Procurador General
de la Nación [National Attorney General] [in the criminal investigation instituted
against him] is a situation which in itself affected the impartiality of the officials in
charge of conducting such investigation.” In the opinion of the Commission, such
fact, together with the alleged omissions in the above-mentioned investigation,
resulted in the failure to identify and punish those responsible for the above
mentioned wiretapping and recording. So, by not ensuring the right to a private life
and to honor, as set forth in Article 11(2) of the Convention, the State failed to meet
the general duty provided in Article 1(1) thereof.
85.
In turn, the State alleged that the Procurador General de la Nación [National
Attorney General] and the Procurador de la Administración [Procurador de la
Administración [Solicitor for the Administration]] are public officials having the same
hierarchy and that “[b]oth have clearly distinct powers of their own and neither is in
a subordinate position with regard to the other.”