18
[Z]ayed had authorized either the interference with [or] the recording of […] such
telephone conversation.” Finally, it argued that “the States must adopt the necessary
measures to create a legal system which is adequate to deter the occurrence of
‘arbitrary or abusive’ interference with the right to privacy or to a private life.”
59.
The representatives added that the legislation which regulates tapping and
recording telephone conversations: a) “did [n]ot establish any standards whereby to
describe an offense as serious, [nor] did it expressly establish the procedures to be
followed to examine and use the information obtained by wiretapping a telephone
conversation;” b) Law No. 23 dated December 30, 1986 does not establish time
limits for the interference, nor the obligation that such interference be authorized by
a Court organ, that is, both prior judicial checks and political checks are lacking; c)
“the vagueness of existing regulations regarding this matter allowed the Procurador
General de la Nación [National Attorney General] much leeway to take actions which
were not subject to any checks. This […] put Panamanians in a situation of legal
uncertainty derived from the ample powers vested in the Attorney General, which
resulted in specific violations to the detriment of some individuals, […] including, of
course, […] the case of Santander Tristán;” and d) “at the time the facts described in
the instant case occurred, there were no other regulations in Panamá regarding the
privilege of communications, and standards regulating interference with telephone
communications had not as yet been established by case law.” They concluded that
the Panamanian State, due to the lack of adequate, accurate, and clear legislation to
regulate interference with telephone communications, failed to fulfill its obligation to
adapt its domestic legislation therefore as to secure the right of Mr. Tristán Donoso
not to be subjected to arbitrary interference with his private life.
60.
The State alleged that, “it has been conclusively established that the
Procurador General de la Nación [National Attorney General] […] did not order the
wiretapping and recording of the telephone conversation of July 8, 1996.
Accordingly, there was no “arbitrary or abusive interference” with the private life of
Mr. Tristán Donoso committed by the aforementioned Procurador General de la
Nación [National Attorney General],” and pointed out that “Mr. Santander Tristán […]
knew that the recording had been made by his client, [Adel Zayed, who],
inadvertently gave an additional cassette […] to Inspector Hurtado without being
acquainted with its contents, [delivering the cassette with the recording of the
telephone conversation in question] unknowingly.”
*
* *
61.
The Court recalls that at the public hearing the parties agreed that it had not
been proven that the former Attorney General had ordered the wiretapping and
recording of the telephone conversation of July 8, 1996 between the alleged victim
and Mr. Adel Zayed. In view of this, it is not necessary to make any additional
considerations on this matter.
62.
Notwithstanding, this circumstance in itself does not exempt the State from
its international responsibility if from the evidence submitted by the parties it result
that another State agent is responsible for the wiretapping and recording of such
telephone conversation. So, the Court will examine the body of evidence in the
instant case.