On August 5, 1997, the Inter-American Commission on Human Rights
(hereinafter "the Commission," "the Inter-American
Commission," or "the IACHR") received a petition against
the State of Panama (hereinafter "the State," "the
Panamanian State," or "Panama"), submitted by the Homsany
siblings: Salomón Homsany Abadi, Marcela Homsany Abadi, and Ezra Homsany
Abadi (hereinafter "the petitioners") for violation of the
articles of American Convention on Human Rights (hereinafter "the
American Convention," or "the Convention") pertaining to
the right to a fair trial (Article 8), right to protection of their home
(Article 11), right to freedom of movement (Article 22), right to equality
before the law (Article 24), right to property (Article 21), right to
personal liberty (Article 7), right to freedom of association (Article
16), and political rights (Article 23).
As a result of an economic and political crisis in Panama in 1988,
the State decided to replace the currency with securities called
"IOUs." As a
result, the shops owned by the petitioners began to receive IOUs issued by
the State, and, in order to redeem them, they put in place a series of
credit transactions with the National Bank of Panama [Banco Nacional de Panamá]. As
a result of these credit transactions, Mr. Ezra Homsany and Ms. Marcela
Homsany were detained. The
petitioners allege that they were arbitrarily detained and also that Mr.
Salomón Homsany was prosecuted in absentia and failed to receive the
procedural due process, since he was out of the country when his siblings
The State views the petition as inadmissible since the trial has
not been concluded at the first instance level, and the appellate and
other remedies provided for in the Code of Civil Procedure of Panama are
pending. The State argues
that the petition is inadmissible because it was filed for the sole
purpose of instituting proceedings concomitant with those currently taking
place in Panama. Also, the
State argues that the petition is unfair because all procedural guarantees
have been accorded to the petitioners and that the petition is reckless,
since an attempt is being made to furnish an international organization
with information that is far removed from the reality.
After reviewing this case, the Commission concludes that the
petitioners have not exhausted domestic remedies and that the exceptions
provided for in Article 46(2) of the Convention are not applicable.
Consequently, the Commission decides to declare the case
inadmissible pursuant to Article 47(a) of the American Convention, to
transmit this decision to the parties, to publish it, and to order its
inclusion in its Annual Report.
PROCESSING BY THE COMMISSION
On August 4, 1997, the Commission received a petition involving the
State of Panama, submitted by Costa Rican attorney Gonzalo Monge Núnez on
behalf of Salomón Homsany Abadi, Marcela Homsany Abadi, and Ezra Homsany
Abadi for violation of the articles of the Convention pertaining to the
right to a fair trial (Article 8), the right to property (Article 21), the
right to freedom of movement and residence (Article 22), and the right to
equal treatment before the law (Article 24).
The Panamanian State responded on March 20, 1998, seeking the
inadmissibility of the petition because the petitioners had or had had
other proceedings instituted at the national level and consequently were
free to avail themselves of all these legal resources in order to have
their claims addressed. This
response generated subsequent letters until the last one, which was
received by the Commission from the State on February 25, 2000.
On September 24, 1999, the petitioners asked the Commission to
begin proceedings aimed at achieving a friendly settlement.
This friendly settlement proposal was rejected by the State on
November 12, 1999. In its
note, the Panamanian State maintained its position regarding the
inadmissibility of the petition under the American Convention.
On February 16, 2000, the petitioners indicated that since they had
not received a favorable response to the friendly settlement proposal, the
processing of the case should continue in accordance with the Convention
and Regulations. Lastly, on
February 25, the Commission acknowledged receipt of the abandonment of
friendly settlement proceedings by the petitioners and of the desire to
continue processing of the case pursuant to the provisions of the American
Convention. This note was
forwarded to the Panamanian State on March 1, 2000.
POSITION OF THE PARTIES
Position of the petitioners
9. Mr. Salomón
Homsany Abadi is a Panamanian businessman involved in the sale of mass
consumption goods and realty. He
had a business in Panama called "Almacén
El Depósito," which was arbitrarily seized by the State.
In 1988, an international embargo was imposed on Panama and, as a
result, banks ceased all their operations.
A liquidity problem ensued, which prevented the State from paying
the salaries of government employees, and, in view of that situation, the
Government decided to replace the currency by paying employees with
securities called "IOUs," which were not accepted in the
business community. The Almacén
El Depósito business, owned by Mr. Salomón Homsany, was the only
business that accepted the IOUs issued by the Government.
Because of this, Mr. Manuel Solís Palma, then President of the
Republic, visited Mr. Homsany to express the appreciation of the
Government of Panama.
The President of the Republic of Panama offered him assistance
through the National Bank of Panama.
In light of the situation and of the offer of the Government, Mr.
Salomón Homsany opened a line of credit with the National Bank of Panama
in 1989 in order to operate the companies and redeem the instruments
issued by the Government. After
the United States invasion, the State, through the National Bank of
Panama, closed the lines of credit opened for Mr. Homsany.
This action was a breach of contract and led to a series of
violations of the American Convention, namely:
Violation of the right to due process:
the petitioners claim violation of this right, citing the
Violation of the principle of legality (Article 7(5) of the
Convention). The petitioners
claim violation of the principle of legality due to the fact that they
were accused of "embezzlement," a charge that must meet a
specific criterion: the person must be a civil servant and the petitioners
are not and have never been civil servants.
Violation of the right to defense (Article 8 of the Convention).
The petitioners claim violation of the right to defense since Mr.
Homsany's defense attorney, Marcela Homsany Abadi, was jailed, leaving Mr.
Homsany unable to prepare his defense.
The State, arguing that the attorney, who is the sister of Mr.
Homsany, knew of and was an accomplice to the offenses of which he is
accused, instituted proceedings against her.
The petitioners also allege violation of Article 8(2)(c) of the
American Convention with respect to the failure to grant the accused
adequate time and means for the preparation of their defense.
On May 27, 1997, the Fourth Criminal Judge of the First Judicial
Circuit of Panama dismissed the attorneys defending the petitioners and
replaced them with court-appointed attorneys.
The petitioners maintain that because of this, the new attorneys
did not have the time needed to prepare the defense, in view of the
absence of the accused.
Violation of the principle of the presumption of innocence (Article
8(2) of the Convention). The
petitioners allege violation of the principle of the presumption of
innocence in view of the fact that the Attorney General of Panama made
statements condemning the petitioners before a ruling had been handed down
with respect to their case.
Violation of the right to a juez
natural [an independent judge whose position is created by law with
general jurisdiction over an issue before or at the time it arises]
(Article 8(1) of the Convention). The petitioners allege violation of this principle due to the
fact that the only judges that heard the case and declared that no laws
had been violated were removed from their positions. They also claim that they were investigated by the Office for
determining responsibility in matters related to state property, an
administrative entity assigned to the Office of the Comptroller General of
the Republic which has authority to investigate public officials, and that
the petitioners involved in these proceedings are not public officials.
They claim bias and partiality by the courts since the Fourth
Criminal Judge of the First Judicial Circuit of Panama, Ms. Damaris
Caballero, was removed from her position after dismissing the case against
the petitioners on May 23, 1995 because of insufficient evidence linking
them to the offense of embezzlement, and, as a result, ordering their
immediate release. They also
claim that the investigation conducted by the Office for determining
responsibility in matters related to state property also violates the
principle of juez natural, since
it is an entity that was created after the acts under investigation.
Violation of the right to be informed of the nature and cause of
the charge (Article 8(2), 7(4), and 7(5) of the Convention).
The petitioners claim that they were subjected to prosecution
without prior notification. Mr.
Salomón Homsany also alleges that no statement was obtained from him and
that he was prosecuted in absentia without observance of due process
guarantees. He also alleges
that he was not prosecuted within a reasonable time frame since more than
ten years have elapsed since the occurrence of the events under
investigation, and that a court ruling has been handed down at the first
instance level only. More
than eighteen months elapsed between the time of the public hearing and a
Violation of the right to be present during proceedings (Article
8(1) of the Convention). The petitioners allege that they were prosecuted in absentia,
since oral proceedings were held in the absence of Mr. Salomón Homsany,
citing as an example the proceedings held on August 18, 1997.
They were criminally prosecuted for debt (Article 7(7) of the
Convention). The petitioners claim that they were criminally prosecuted for
debt, in violation of Article 7(7) of the American Convention.
Violation of the non bis in idem principle (Article 8(4) of the Convention).
The petitioners claim that they were prosecuted several times for
the same acts in the criminal and civil courts by the Office for
determining responsibility in matters related to state property, and in
the summary jurisdiction court established by the National Bank of Panama
to collect this debt.
Violation of the right to freedom of association (Article 16 of the
Convention). The petitioners
allege violation of the right to freedom of association due to the fact
that the State of Panama forced them to come together to form the Homsany
Commercial Group, which did not exist, and prevented them from separating
the debts of Mr. Homsany owed to the National Bank of Panama.
A new commercial group was formed, and the right to freedom of
association also covers the freedom to refrain from association.
Also, the State lifted the property protection for all companies
with which the petitioners were associated, seizing the assets of these
companies, which are viewed as the property of the shareholders and not
the legal entities.
Violation of the principle of the non-retroactivity of the law
(Article 9 of the Convention). The
petitioners allege that the acts of which they are accused occurred prior
to 1989 and that the State issued Decree 36 on February 10, 1990 creating
a special court for special proceedings and having the authority to
prosecute acts that took place before the decree was enacted, in violation
of Article 9 of the American Convention.
The petitioners are citing the principle of non-retroactivity of
the law as grounds for challenging this administrative entity.
Violation of the right to property (Article 21 of the American
Convention). The petitioners
allege violation of the right to property set forth in the American
Convention due to the fact that their bank accounts were frozen and the
assets of Mr. Homsany Abadi and his companies seized by the State forces,
represented by an entity called "the Office for determining
responsibility in matters related to state property," which the
petitioners maintain was created to handle the Homsany case.
The petitioners assert that the assets were confiscated by the
State and no compensation was provided, and that if the assets had to be
seized, this should have been done by a court rather than an
Violation of the right to equality before the law (Article 24 of
the American Convention). The
petitioners maintain that their release from prison on bond was denied, in
violation of the rules governing the right to equal treatment before the
law. In addition, they allege
that a special court was created to prosecute them, an act that is also a
violation of the principle of equal treatment before the law.
Violation of the right to personal liberty (Article 7 of the
American Convention). The petitioners maintain that they are victims of persecution
by the State, a situation that has resulted in psychological torture for
the entire family. The
petitioners claim that an arrest warrant has been issued for Mr. Salomón
Homsany, the purpose of which is to detain him for debts owed to the
National Bank of Panama.
Violation of the right to freedom of movement and residence
(Article 22 of the American Convention).
The petitioners allege violation of this right, since they were not
allowed to live and move around freely in their country, in violation of
Article 22 of the American Convention.
Violation of political rights (Article 23 of the American
Convention). The petitioners
allege that their political rights were violated when the ruling of July
22, 1999 was issued ordering the petitioners to 80 months in prison for
"embezzlement" and barring them for life from the exercise of
public functions. The
petitioners also allege that they were ordered to long-term punishment, in
violation of their fundamental rights.
The petitioners also seek to prove political persecution by arguing
that as a result of these proceedings, the Government of Mexico granted
asylum to Mr. Rafael Arosemena, the Manager of the National Bank of
Panama, after the State ordered his return for granting credit to the
petitioners to redeem the IOUs that they had received.
Position of the State
As indicated in numbered paragraph 3 of this report, the State, in
its response to the petition of March 20, 1998, sought to have it declared
inadmissible on grounds that it was time-barred, improper, unfair, and
reckless. It also advanced
the following as the basis for its arguments:
The acts under investigation in the criminal proceedings against
the petitioners pertain to charges related to the misappropriation of
public funds from the National Bank of Panama amounting to
US$8,688,478.62. The State
reports that Mr. Rafael Arosemena is responsible for this misappropriation
of public funds in his capacity as Manager of the National Bank of Panama,
and that he was aided and abetted by the petitioners.
The State maintains that the criminal file on the accused shows
that there was prior agreement among them to devise ways that would enable
them to obtain the money without having to go through the administrative
controls of the National Bank of Panama (approval of the Board of
Directors) and, to that end, they arranged for the money to be obtained
through the granting of overdrafts and the issuance of letters of credit
to thirty-eight corporations that were formed for the sole purpose of
opening accounts and obtaining the credit facilities previously agreed
upon. The aim was to
circumvent the control mechanisms of the National Bank of Panama by
channeling massive sums through each of the thirty-eight companies.
This was done without any type of bank guarantee, with workers of
the companies of the petitioners serving as the legal representatives of
these companies. These
persons admitted that they did not know the manager of the National Bank
of Panama and did not have any business dealings with Mr. Arosemena.
Of the few companies where the names of the Homsany brothers
appeared on documents, they changed their boards of directors and workers
to give the appearance that these workers were co-debtors of the National
Bank of Panama, thereby ensuring that they could not be summoned to appear
in civil court since their names did not appear on any document as
debtors, underwriters, or guarantors of these debts.
The State reports that this matter did not involve simple
commercial transactions as the petitioners have sought to demonstrate, but
rather illegal operations involving misuse of Panamanian State funds.
Of the thirty-eight overdrafts approved for the thirty-eight
companies, the balance of thirty-two of these companies was only the
minimum required by law, that is B 500.00 for opening current accounts. Despite this, they received B 3,650,000.00 in overdrafts.
Also, the State maintains that these overdrafts were granted to the
thirty-eight companies when only five of them were actually operating.
The State maintains that it can be proven that the companies used
by Messrs. Homsany for the misappropriation of millions from the National
Bank of Panama were merely paper companies.
In other words, they never engaged in any commercial or
manufacturing business whatsoever other than to apply for an overdraft
from the National Bank of Panama. Those
companies did not have a commercial or industrial license, a single
taxpayer's identification number, tax returns, stock records, instruments,
or registers, as verified in the civil courts.
In addition, of the five that were operating, three had reported
losses on their tax returns in previous years and the other two had paid
taxes on estimated returns, which indicates that these companies were used
exclusively to withdraw funds from the National Bank of Panama.
The State points to a number of unusual elements involving these
Mr. Rafael Arosemena, in his capacity as Bank Manager, personally
approved forty-three credit facilities for the June - November 1989
period, in clear violation of the internal auditing regulations and
organic law of the National Bank of Panama.
Thirty-eight of the credit facilities were given as temporary
overdrafts without real guarantees and documented solely by IOUs, only two
of which were signed before a notary.
The five remaining credit facilities were granted in order to open
letters of credit, again without real guarantees, and were documented only
by letters of exchange.
It was established that the legal representatives of the companies
of Messrs. Homsany serving as co-debtors for these liabilities were
totally insolvent and were unaware of the responsibilities assumed with
respect to the Bank.
The State notes that although the offense of embezzlement is
applicable to public officials, accessories to the offense do not have to
be public officials. Consequently,
the petitioners are being investigated for their criminal involvement with
the Manager of the National Bank of Panama, Rafael Arosemena, who was a
The State maintains that the petitioners were always in a position
to defend themselves, and that they were duly represented at all times by
attorneys who were always free to submit evidence and to avail themselves
of the different resources provided for in domestic law.
It also reports that Ms. Marcela Homsany was detained not because
she is an attorney, but because of her active participation in the
misappropriation of money from the National Bank of Panama.
The State reports that in Panama, attorneys do not have immunity
and thus may be prosecuted like any other citizen for criminal conduct, as
happened with Ms. Marcela Homsany Abadi.
The State also reports that the petitioners were informed
throughout the proceedings of the charges against them.
It maintains that the file related to the criminal proceedings
contains the duly substantiated investigative order issued by the First
Assistant Prosecutor and the statements related to the investigation
provided by Ezra Homsany and Marcela Homsany.
The State maintains that when Salomón Homsany learned that an
order had been issued against him, he decided to go into hiding in order
to avoid receiving summonses from the Panamanian judicial authorities.
Consequently, the petitioners were duly represented at all times.
With regard to violation of the right to a
juez natural, the State reports that former Judge Damaris Caballero
was removed by the appellate court for reasons unrelated to the case
involving the petitioners.
With regard to the removal of attorneys, the State asserts that as
the file indicates, the Fourth Criminal Judge of the First Judicial
Circuit of Panama tried, over a period of one year, on six occasions, to
hold a hearing on the merits and the attorneys made excuses in order to
avoid this hearing. Their
excuses included questionable medical certificates, since it was noted
that one of the attorneys who had submitted a medical certificate was
providing assistance to another client on the date and at the time of the
hearing scheduled by the Fourth Criminal Judge of the First Judicial
Circuit. In light of the
foregoing, the Judge issued an order for a hearing that was agreed upon by
all the attorneys and which permitted the intervention of court-appointed
defendants if any of the attorneys for the defense continued to use
delaying tactics. The hearing
was finally held over the course of a few days, with the participation of
the attorneys for the defense and the Office of the Public Prosecutor.
After hearing from almost all the witnesses, attorneys Sidney
Sitton and Rafael Rodríguez asked that relatives who could not be located
through subpoenas be summoned, even though they were aware of the fact
that the hearing would be held. When
the judge realized that this was another delaying tactic, he decided to
continue the hearing and these attorneys did not attend.
As a result, the court-appointed attorneys who had been alerted
beforehand that they might have to serve until the matter was concluded,
were called. After the hearing was concluded, the aforementioned
attorneys, who, according to the State, were employing another delaying
tactic, filed a motion for unconstitutionality against a number of
articles of the Panamanian judicial code, which suspended the competence
of the first instance Judge until a decision was made with regard to the
application. Once the Supreme Court had made a decision on this legal
action, the case was again returned to the First Instance Judge (the
Fourth Judge), thereby permitting him to hand down a first instance
The State maintains that the Office for determining responsibility
in matters related to state property is fully competent to hear and make
decisions regarding the responsibility of public officials, individuals,
or corporations with respect to the State.
It also indicates that this is not a special office to which
functions were assigned retroactively, since mention is made of it in the
1972 Panamanian Constitution. This
Office was known as the Audit Office of Panama, and it was regulated and
replaced in 1990 with a new entity called "the Office for
determining responsibility in matters related to state property" (DRP),
which was instructed to assume responsibility for matters that were
pending. When it assumed the
functions of the Audit Office of the Office of the Comptroller General of
the Republic, the Office for determining responsibility in matters related
to state property was given express authorization to hear and make
decisions on all matters related to responsibility in the area of public
property on the part of not only employees and fiscal agents, but also
individuals or corporations who may have misused public property in any
way for their own benefit, the benefit of a third party, and in general,
all persons who may have improperly derived benefit from public property.
The State reported that the principle of freedom of movement and
residence has not been violated since the petitioners are free to return
to the country. It also
states that the petitioners have been duly informed of all action taken in
the context of the criminal proceedings against them; consequently, it is
up to them to decide whether or not they should make a personal appearance
at the proceedings.
The State argues that the petitioners have not been subjected to
criminal prosecution for commercial debt but for the illegal
misappropriation of millions from the National Bank of Panama, in clear
violation of the laws and policies of that institution.
Also, it maintains that they have not been convicted of the same
offenses twice, since proceedings that take place in the criminal courts
are separate from those instituted by the Office for determining
responsibility in matters related to state property.
Criminal proceedings are aimed at determining the criminal
responsibility of persons who have engaged in conduct classified as an
offense, while the Office for determining responsibility in matters
related to state property in the Office of the Comptroller General of the
Republic undertakes procedures, not investigations, that are aimed at
determining responsibility for actions prejudicial to the State by the
persons implicated, with the aim of recovering misappropriated assets or
funds. Consequently, since
they are two different legal structures, the claim cannot be made of dual
prosecution of the same case.
With regard to violation of the right to association claimed by the
petitioners, the investigation itself establishes that the petitioners
conspired with the Manager of the National Bank of Panama to
misappropriate funds through its employees.
The State reports that the petitioners were afforded every
opportunity, from a procedural and defense standpoint, to avail themselves
of their rights with respect to the proceedings.
The State maintains that their claim of not having access to the
legal resources provided for in Panamanian legislation is patently false.
This is borne out in the file which indicates that the accused
availed themselves of all the legal resources available to them to
exercise their rights and refute the evidence, and which gave rise to the
observations of the court. The actions taken, all contained in 28 volumes in the file,
Application for certification responded to by the court by means of
certification dated June 30, 1994;
Application for certification responded to by the court on July 5,
Application for nullity of proceedings; decision delivered by the
court on March 21, 1995;
Application for the lifting of precautionary measures; decision
delivered on September 8, 1995;
Application for the withdrawal of precautionary measures; decision
delivered on December 19, 1994;
Application for evidence of witnesses; decision delivered on
December 29, 1995;
Application filed in a personal capacity by Marcela Homsany
regarding practice of the legal profession; decision delivered on October
Appeal for reconsideration with a supplementary appeal filed by
Marcela Homsany as the representative for Ezra Homsany; decision delivered
on November 16, 1995.
Application for nullity of all the matters submitted for the
technical defense; decision delivered on October 11, 1995;
The detention order for the petitioners was well-founded and
supported by evidence. The
State reiterates that this ruling does not pertain to civil debt but
rather the commission of the offense of embezzlement.
Lastly, the State indicates that the proceedings against the
petitioners are not political, but rather legal and criminal in nature.
Consequently, the reasons advanced by the Government of Mexico for
granting asylum to Mr. Arosemena cannot be cited as evidence.
Competence of the
Commission ratione personae, ratione
materiae, ratione temporis and ratione
13. Panama ratified
the American Convention on June 22, 1978.
As a result, the Commission has competence ratione
personae to hear this case under Article 33 of the Convention.
With regard to passive competence ratione
personae, the petitioners attribute the violations to a State Party,
which in this case is Panama. With regard to active competence ratione personae, petitioners allege that they were adversely
affected by these violations, and are thus direct victims of these
14. The acts
alleged by the petitioners pertain to rights covered by the Convention
(right to due process, right to freedom of domicile, right to freedom of
movement, right to equality before the law, right to property, right to
personal liberty, right to freedom of association, and political rights),
to which Panama is a Party. Consequently,
the IACHR notes that it has competence ratione
materiae to hear the petition.
15. The Commission
notes that it is competent to hear this case.
First, it has competence ratione
temporis with respect to the acts that violate the American Convention
since Panama submitted the instrument of ratification of the American
Convention on June 22, 1978 to the Secretary General of the Organization
of American States.
Other admissibility requirements
Exhaustion of domestic remedies
46(1)(a) and 47 of the American Convention indicate that the
inter-American system is to be used on a supplementary basis, hence the
need to have sought and exhausted remedies in local courts.
In principle it is the State that must resolve violations based on
its domestic law, and if it fails to do so, then the matter is referred to
the inter-American system.
17. As a result of
this supplementary feature, the State must raise an objection regarding
the failure to exhaust remedies, and indicate, in such circumstances, the
effective remedies that have
not been exhausted. In subsequent letters, the State indicated the different
phases of the proceeding. In analyzing the failure to exhaust these remedies, an
indication must be provided of the actual remedies that were available to
the petitioner and which he failed to use, and when the State maintains
that these remedies were not exhausted, it must indicate what these
remedies are, as was done by the State of Panama.
18. In addition,
the State of Panama reported that on the date of submission of the
petition, a ruling had not been handed down at the first instance level of
the criminal proceedings against the petitioners and Mr. Rafael Arosemena,
the former Manager of the National Bank of Panama, and that a number of
remedies had to be exhausted, in particular, the following legal actions:
Appeal to a higher court against the ruling of July 22, 1999 issued
by the Fourth Criminal Judge of the First Judicial Circuit of Panama.
The decision related to this appeal is to be handed down by the
appellate court of Panama.
Appeal to the Supreme Court, in the event that the appellate court
of Panama upholds the ruling of the first instance Judge.
Motion for non-trial, which does not have to be filed for
consideration of the exhaustion of domestic remedies and the other
possibilities listed in the foregoing numbered paragraph.
The State points out that none of the aforementioned mechanisms was
used by the petitioners, since the first instance criminal proceedings
ended on July 22, 1999, with a ruling issued by the Fourth Criminal Judge
of the First Judicial Circuit of Panama.
The State goes on to argue that Messrs. Homsany were allowed to
participate in the criminal proceedings and were offered maximum
procedural guarantees, and that they were permitted to exercise fully
their right to defense so much so that they abused that right, by seeking
to block, through the use of appeals and legal actions permitted by law, a
decision on the merits related to the criminal trial against them.
Not only were they allowed to exercise their right to defense, the
State maintains, but they took advantage of the judicial system by
employing such a variety of delaying tactics that they managed to achieve
postponement of a ruling against Mr. Rafael Arosemena, the former Manager
of the National Bank of Panama until July 22, 1999, for perpetrating the
offense of misappropriation and Messrs. Homsany, as the main accomplices
to this offense.
petitioners, in their comments to the response of the State on February
16, 2000, reported that although there are domestic remedies in Panama
that have not been exhausted, this is not necessary in this case because
of the absence of due process. Consequently,
the exception to the exhaustion of domestic remedies provided for in
Article 46(2) of the Convention is applicable.
The petitioners also report that they exhausted the remedies that
were available to them, namely:
Writ of habeas corpus,
Appeal for protection and constitutional guarantees, rejected
Further appeal, rejected
Motions, pleas, and nullities, all rejected
21. The petitioners
cite the case law of the Inter-American Court of Human Rights, which has
determined that all domestic remedies do not have to be exhausted when
they are delayed without justification or are not effective.
Domestic remedies must be appropriate and effective, and, in the
absence of these two elements, remedies do not have to be exhausted.
In the view of the petitioners, the resources in Panama are not
efficient, and they have indicated that:
22. Moreover, the
petitioners maintain that in this case political persecution took place
and the rules of due process were violated.
The Inter-American Court has stated that the exhaustion of domestic
remedies must be interpreted based on the circumstances, particularly when
justice has been denied.
23. As has been
stated, the petitioners allege that the proceedings lasted ten years and
thus were not concluded within a reasonable time frame.
Consequently, according to the petitioners, their case should be
accepted. The Inter-American Court of Human Rights, following the case
law of the European Court, stated, in the Genie Lacayo case, that in order
to determine whether the time period for proceedings was reasonable,
consideration must be given to the following:
Three elements must be taken into account in determining whether the time
period over which the proceedings took place is reasonable: (a) the
complexity of the matter; (b) the procedural actions of the interested
party; and (c) the conduct of the judicial authorities…
Based on the facts described by the Parties, it can be concluded
that the matter is extremely complex.
In terms of the conduct of the petitioner, the State has
demonstrated that the petitioner sought repeatedly to block advancement of
Lastly, the Commission holds the view that it cannot be proven that
the State employed tactics to delay advancement of the proceedings and
that it failed to take the steps that it was supposed to.
Consequently, the Commission holds the view that in this case,
there are no grounds for the exception to the exhaustion of domestic
remedies set forth in Article 46(2)(c) of the American Convention on Human
Rights sought by the petitioners.
The Commission has established that the petition does not meet the
requirements set forth in Article 46(1)(a) of the American Convention, and
that the information provided by the parties does not permit application
of the exceptions set forth in Article 46(2) thereof.
Consequently, the Commission concludes that the petition is
inadmissible, because of the failure to exhaust domestic remedies,
pursuant to Article 47(a) of the American Convention.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. Declare this
2. Notify the
parties of this decision.
3. Publish this
decision in its Annual Report to the OAS General Assembly.
Done and signed in Washington, D.C., on the 16th day of the month of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
In the comments submitted by the petitioners on January 30, 2000, to
the response of the State on December 17, 1999, they claim, in
addition to the aforementioned violations, violation of the right to
prompt and simple recourse (Article 25), violation of the right to
family protection (Article 17), and violation of the right to
physical, psychological, and moral integrity (Articles 5 and 11).
Proceedings instituted and handled by an internal organ of the
National Bank of Panama.
In the comments submitted by the petitioners on January 30, 2000 in
response to the state's communication of December 17, 1999, they
allege, in addition to the violations already mentioned, violation of
the right to rapid and simple recourse (Article 25), violation of the
right to family protection (Article 17), and violation of the right to
physical, psychological, and moral integrity (Articles 5 and 11).
In stressing the need for member States to have domestic systems that
have the capacity and competence to resolve their own conflicts, the
IACHR has stated: "the rule related to the prior exhaustion of
domestic remedies is based on the principle that when a State becomes
a defendant, it must be in a position to provide remedies by itself
and within the framework of its domestic judicial system," IACHR,
1996 Annual Report, Report No. 39/96, Case 11,673-Santiago
Marzioni, Argentina, October 15, 1996, para. 49, page 89.
With regard to the burden of proof in the case of the exhaustion of
domestic remedies, see the case of Loayza Tamayo, Preliminary
Exceptions, Judgment of January 31, 1996, para. 40.
The State, in its note of November 12, 1999, explained the different
phases of criminal proceedings in Panama, namely: the Investigative
Phase, the Plenary Phase, the Appellate Phase, the Application for
Judicial Review Phase, and the Application for Judicial Review of the
Guarantee institutions: In addition to legal resources, the law
provides for mechanisms to protect fundamental guarantees, namely, habeas
corpus, notification of unconstitutionality, protection of
constitutional guarantees, action of unconstitutionality, etc.
With regard to the burden of proof in the case of the exhaustion of
domestic remedies, see Loayza Tamayo, Preliminary Exceptions, Ruling
of January 31, 1996, para. 40.
The petitioners refer to the doctrine derived from Article 46(2) that
the victims of violations of the Convention do not have an obligation
to exhaust domestic remedies when the remedies are not effective or in
instances of serious violation of the right to due process.
Inter-American Court, Genie Lacayo Case.
Judgment of January 29, 1997, para. 77.