57
exclusively, ordered as reparation for violations of the rights to life, to humane
treatment and to personal liberty.161 The Tribunal does not believe such measure to
be necessary in order to redress the violations verified in the instant case. Along
such lines, the measure ordering that the criminal conviction and its consequences
be set aside, the instant Judgment, and its publication constitute important
reparation measures.
d) Duty to investigate, prosecute and punish those responsible for the
violations of the human rights of Mr. Tristán Donoso.
201. The Commission requested that the Court order the State to conduct a
complete, impartial and effective investigation in order to establish the
circumstances in which the telephone conversation at issue in the instant case was
wiretapped, recorded and disclosed, to identify the persons involved in such acts, to
prosecute them and to punish them as is due.
202. The representatives alleged that such measure had to be adopted in relation
to all those involved in wiretapping, recording and disclosing the telephone
conversation between the victim and Adel Zayed, and in relation to those who
obstructed the inquiry carried out against the former Attorney General.
203. The Court finds it unproven that there was lack of diligence in the
investigation of the wiretapping and recording of the telephone conversation (supra
para. 151), and therefore deems it unnecessary to order, as a reparation measure,
the inquiry into such facts. On the other hand, regarding the matter of disclosure of
the telephone conversation, the Court deems the instant Judgment and its
publication constitute sufficient reparation measures.
e) Enactment of legislation on wiretapping and on the use of information held
by the authorities and concerning the private life of a person
204. The representatives argued that Panamanian legislation on wiretapping is
scarce, for Section 26 of Law No. 23 is still in force, although in 2004 the
Constitution was amended to allow private communications to be wiretapped or
recorded only under an order issued by a judicial authority. Likewise, they argued
that legislation on the use of private information by public officials is not clear and
effective enough, especially in the event of transmission and storage of such
information.
205. Regarding the alleged recording of the telephone conversation or the rules
governing wiretapping, the Tribunal did not declare Article 11 of the Convention to
have been violated; so, it shall not order that reparation measures be adopted with
regard thereto (supra paras. 66 and 67).
206. Nevertheless, the Court notes and views favorably the constitutional
amendment effected by the State in 2004 pursuant to which private communications
may only be wiretapped or recorded under a judicial order. The Court underscores
the importance of adopting, forthwith, the legislative and administrative measures
that may be necessary to implement such constitutional amendment in such a way
as to establish that the legal procedures to be followed by judicial authorities in order
to authorize wiretapping comply with the purposes and other obligations set forth in
161
Cf. Case of Castañeda-Gutman, supra note 4, para. 239.