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regarding compliance [with] the recommendations in the Report on the Merits,” the
Commission decided to submit the case for the consideration of the Court. The
Commission appointed as delegates Messrs. Paulo Sérgio Pinheiro, Commission
member, Santiago A. Canton, Executive Secretary, and Ignacio Álvarez, Special
Rapporteur for Freedom of Expression at the time, and as legal counsel lawyers
Elizabeth Abi-Mershed, Lilly Ching, Christina Cerna and Carlos Zelada.
2.
As the Commission indicated, the application makes reference to “the [alleged
wiretapping, recording and] disclosure of a telephone conversation held by the
lawyer Mr. Tristán Donoso […]; later, the commencement of criminal proceedings for
defamation as an [alleged] retaliation for the accusations Mr. Tristán Donoso had
made about [the aforementioned recording and disclosure]; the failure to investigate
and punish those responsible of such events, and the lack of adequate reparation.”
3.
In the application the Commission requested the Court to declare the State
responsible for violation of Articles 8 (Right to a Fair Trial), 11 (Right to Privacy), 13
(Freedom of Thought and Expression) and 25 (Right to Judicial Protection) of the
American Convention, in connection with the general obligation to respect and
guarantee human rights and the duty to adopt domestic law measures, provided,
respectively, in Articles 1(1) and 2 of the aforementioned treaty, to the detriment of
Mr. Tristán Donoso. The Commission requested the Court to order the State to adopt
certain measures of reparation.
4.
On December 8, 2007, CEJIL filed its brief of motions, pleadings and evidence
(hereinafter “motions and pleadings brief”) in the terms of Article 23 of the Rules of
Procedure. In such brief they requested the Court that, on the grounds of the facts in
the account made by the Commission in its application, it declare the rights to
privacy, to freedom of expression, to a fair trial, and to judicial protection provided in
Articles 11, 13 and 8 and 25 of the American Convention, the first two of them in
connection with Articles 1(1) and 2 of such treaty, to have been violated, as well as
the principle of freedom from ex post facto laws provided in Article 9 of the
Convention in connection with its Article 1(1). Finally, it requested the Tribunal to
order measures of reparation for the violation of the rights of Mr. Tristán Donoso. By
means of the power of attorney granted on December 18, 2006, the alleged victim
appointed CEJIL as its attorney at law.
5.
On February 5, 2008, the State filed a brief wherein it made a preliminary
objection, it replied to the application and it put forward its observations to the
motions and pleadings brief (hereinafter “reply to the application”). The State
requested the Court to determine that there were sufficient grounds for the
preliminary objection and to declare itself devoid of competent jurisdiction on the
subject matter of ordering Panamá to adapt its domestic criminal legal system to
Article 13 of the American Convention; that on the grounds of the points of fact and
law put forth, not to admit neither the application nor the reparation measures
requested by the Commission and that “all petitions made by CEJIL be denied, as
inadmissible and groundless”. Among other grounds, it pointed out that there had
been no abusive or arbitrary intrusion into the privacy of Mr. Tristán Donoso in
violation of Article 11(2) of the Convention; that in the proceedings against the
former National Attorney General José Antonio Sossa (hereinafter also called “the
Attorney General at the time of the events”, “the former Attorney General” or
“Attorney General Sossa”) and against the alleged victim fair trial guarantees had
been observed and therefore there had been no violations of Articles 8 and 25 of the
above mentioned treaty; that the alleged victim could, at all times, exercise his right

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