REPORT Nº 71/02 ADMISSIBILITY PETITION 12.360 SANTANDER TRISTÁN DONOSO PANAMA October 24, 2002 I. SUMMARY 1. The Centro de Asistencia Legal Popular (CEALP) and the Center for Justice and International Law (CEJIL) (hereinafter “the petitioners”) submitted a petition on July 5, 2000, to the InterAmerican Commission on Human Rights (hereinafter the “Commission” or the “IACHR”) against the Republic of Panama (hereinafter “the State” or “Panama”) in which they allege the violation of the following rights recognized in the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) to the detriment of Mr. Santander Tristán Donoso (hereinafter “Tristán Donoso”): the right to privacy (Article 11(2); the right to freedom of expression and thought (Article 13); the right to a fair trial (Article 8); and the right to judicial protection (Article 25), all in connection with the generic duties of the State to respect and ensure the rights enshrined in the Convention (Article 1(1)) and to adopt measures necessary to making effective the rights and freedoms set forth in the Convention (Article 2). 2. The petitioners alleged that the interference in and the taping of a phone conversation between attorney Santander Tristán Donoso and his client, and the subsequent publication of its content by the Attorney General of the Nation, Mr. José Antonio Sossa Rodríguez (hereinafter the “Attorney General”) constitute improper interference with his private life and his confidentiality and liberty in the exercise of the profession of attorney. In a press conference, Mr. Tristán Donoso publicly denounced these facts, and presented a complaint against the Attorney General. The Supreme Court of Justice (hereinafter the “Supreme Court”) affirmed the dismissal with prejudice of the charges against the Attorney General, and the investigations performed have not found the persons responsible for having ordered or carried out the aforementioned acts. 3. The petitioners also allege that in response to the press conference, the Attorney General presented a complaint against Mr. Tristán Donoso for the criminal offenses of slander and libel, the trial for which limits his freedom of expression. They add that Mr. Tristán Donoso asked that those crimes be declared unconstitutional, through a constitutional challenge before the Supreme Court, which was rejected, which makes it possible for the proceeding to continue its course. Accordingly, they consider that Panama has not adopted all the measures needed to bring its legislation and national practices into line with the Convention, since the proceeding instituted against Tristán Donoso and the real possibility of a sanction of imprisonment for the crime of slander and libel is a disproportionate means of curtailing the freedom of expression, on imposing a disproportionate risk on all those who, in exercising their freedom of expression, criticize or point out a possible abuse of authority by public officials, information which is extremely important for society in general. 4. The State requested that the arguments of the petitioners related to the alleged violations of the rights to privacy, freedom of expression, a fair trial, and judicial protection be declared inadmissible. With respect to the right to privacy, it alleged that the petition has no basis whatsoever, and that it is based solely on personal considerations, thus they did not obtain the result they hoped for. It adds that in the course of the investigation, it was determined that no phone conversation had been wiretapped, and that the evidence had been properly handled and weighed by the judicial authorities. Furthermore, in relation to the alleged violation of the freedom of expression, it considers that domestic remedies have not been exhausted, since it understands that the criminal trial for slander and libel, which at present is continuing in the plenary phase, must be exhausted. With respect to the challenge of the constitutionality of the Criminal Code provisions, the State argued that the Supreme Court declared it inadmissible since the same question had been decided previously. 5. On analyzing the instant case, the IACHR concluded that it is competent to take cognizance of it, and declared that the petition meets the admissibility requirements with respect to the rights to privacy (Article 11(2)), a fair trial (Article 8), freedom of expression (Article 13), and 1

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