24
for such restriction must be both an enacted statute and a written rule of a general
scope.70
78.
Panamá alleged that the disclosure of the tape was lawful and served two
purposes: on the one hand, to prevent a possible criminal conspiracy to defame the
Attorney General or destabilize the Attorney General’s Office, and, on the other, to
inform the authorities of the Colegio de Abogados [Bar Association] about a possible
breach of the professional ethics code.
79.
The Panamanian legislation empowered and constitutionally ordered the
Procurador General de la Nación [National Attorney General] and the Office of the
Public Prosecutor to ‘defend the interests of the State’ and to ‘prosecute crimes and
violations of constitutional or legal provisions.’71 Likewise, the law “which regulates
the exercise of the legal profession” empowered the Office of the Public Prosecutor to
report a breach of the professional ethics code if one occurred in the course of a case
with which it was seized.72 Such laws would have allowed the telephone conversation
in question to be disclosed only to certain persons, who in the instant case should
have been a judge having competent jurisdiction, by means of a criminal report, and
the Tribunal de Honor del Colegio Nacional de Abogados [Ethics Review Board of the
National Bar Association], in connection with the alleged breach of the professional
ethics code.
80.
More so, Article 168 of the Penal Code (supra para. 52) of the Penal Code
prohibits those who legitimately have a tape which is not intended for publicity, to
make it public without due authorization, even when it has been addressed to them,
if such an act could cause damage. In the specific case of public officials, Article 337
of the Penal Code (supra para. 52) established punishments for public officials who
disclosed or published documents or news to which they had access by reason of
their office and which they were supposed to keep secret. Consequently, disclosing
the contents of a recorded telephone conversation to third parties without due
authorization was not only not provided by the law, but rather statutorily punished.
81.
In the instant case, if the former Attorney General had considered that from
the contents of the recording it would transpire that the alleged victim and Mr. Adel
Zayed were performing preparatory acts leading to a crime, in his capacity as a
member of the Ministerio Público [Office of the Public Attorney] he had the
obligation, ─ which was even a constitutional duty of his ─ to report it, therefore that
a criminal investigation might be started, in accordance with the legal procedures in
force. The Court deems that disclosing a private conversation before the Catholic
70
Cf. The word "Laws" in Article 30 of the American Convention on Human Rights. Advisory Opinion
OC-6/86 dated May 9, 1986. Series A. No. 6., paras. 27 and 32.
71
Cf. Constitución Política de la República de Panamá [Political Constitution of the Republic of
Panamá] of 1972, supra note 47, folio 3050, that establishes:
Article 217.- The Public Prosecutor is empowered to:
1. Defend the interests of the State or of the Township.
[…]
4. Prosecute crimes and violations of constitutional or legal provisions.
72
Cf. Law Nº 9, enacted on April 18, 1984, supra note 51, folio 757, wherein it is provided that:
Article 21: The Colegio Nacional de Abogados [National Bar Association] shall create a Tribunal de Honor
[Ethics Review Board] to inquire into ethics breaches following a report by the interested party, or by the
official with the Judicial Body, Public Prosecution or Public Administration seized with the case in
connection with which the breach was committed.