OEA/Ser.L/V/II.74
doc. 10 rev.1
16 September 1988
Original:  Spanish

ANNUAL  REPORT OF THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS 1987-1988

RESOLUTION NO. 25/87

CASE 9726

PANAMA

September 23, 1987

HAVING SEEN:

          1.          That on May 7, 1986, Mr. Winston Spadafora filed a petition with this Commission against the Government of Panama, with respect to the violation of Articles 4 (right to life), 5 (right to personal integrity), and 25 (the right to legal protection) of the Inter-American Convention on Human Rights.  The pertinent parts of that petition are transcribed below:

My name is Winston Sapdafora Franco, Panamanian personal identification card No. 7-58-878, issued in Panama City, Republic of Panama, and valid until December 1994.

The name of the victim to which this petition refers is that of my brother HUGO SPADAFORA FRANCO.

The date of my brother’s murder was September 13, 1985, and the place was the Province of Chiriquí, Republic of Panama.

I have described the nature of the human rights violations, which led to the present petition, and the identity of the persons presumed responsible–the Defense Forces of the Republic of Panama–in a separate document which is appended hereto, in Spanish and in English, as well as relevant additional information.

Before my brother’s corpse was found, my father had filed a petition of habeas corpus against the Defense Forces of Panama, which was dismissed as relevant and immaterial upon the discovery of the corpse.

I am filing this petition with the Inter-American Commission on Human Rights for the first time.  In our country, we do not accuse anyone by name so as not to lend credence to the investigations that we knew, from the very outset, were biased as was demonstrated when the case was closed less than five (5) months following the murder.

2.                 The petitioner has submitted the following documents with the petition:

a)       BRIEF ACCOUNT OF THE FACTS PERTAINING TO THE MURDER OF DR. HUGO SPADAFORA FRANCO

Who Dr. Hugo Spadafora Franco was

He was born and raised in Chitré, a new, small provincial town, whose people are fair-minded, happy and hospitable.  By their own efforts, his parents, who were of humble origin, were able to achieve middle class status.  He completed his elementary education, in public schools in his native town, and at a very early age, was recognized as an exceptional student.  He completed his secondary education, in public schools in his native town, and at a very early age, was recognized as an exceptional student.  He completed his secondary schooling at the Instituto Nacional, in Panama City, where he ranked third in his class, was awarded a scholarship, and graduated in February 1958.  In November of that same year, he began his studies at the School of Medicine of the University of Bologna, Italy, and graduated with the degree of Doctor of Medicine in November 1964.  In January 1965, he returned to Panama, and began working at the Hospital Santo Tomás in Panama City.  In August 1965, he traveled Cairo to begin postgraduate studies thanks to a fellowship from the Government of Egypt.  In February 1966, he joined the Portuguese Guinea Independence Movement (now Guinea-Bissau) as a volunteer physician, and was the first physician that the independence movement had.  He practiced his duties in liberated territory until May 1967, at which time he returned to Panama, once he had made certain that the independence movement had other physicians.  In 1969, he fought against the military coup of General Torrijos, action which led to his being jailed, and subsequently, in his own words, “I joined the system when it changed course.”

He practiced medicine for several years, and subsequently held the post of Director of the Integrated Health System in the Province of Colón, and that of Vice Minister of Health in the Government of General Omar Torrijos H.  He resigned in September 1978, to join the Victoriano Lorenzo Panamanian Brigade, which fought against the Somoza dictatorship in Nicaragua.  Eight days after the Sandinista victory, he returned to Panama, only to return to Nicaragua three years later, in 1982, this time to fight alongside Pastora against the Junta in power.  Two years later, he abandoned Pastora, openly expressing his disagreement with the military strategy of that Nicaraguan leader.  His last saw combat is the Atlantic region of Nicaragua, where he fought alongside Brooklyn Rivera, the native leader.  In August 1985, one month before his assassination, he publicly declared that he was returning to Panama to enter politics.  In 1980, he had already started a series of public denunciations of the repressive policy of General Manuel Antonio Noriega, who at the time was head of the G-2 of the Panamanian Army.  General Noriega accused him of corruption in office, smuggling of weapons, and drug trafficking, and launched an investigation that lasted until his death.  In one of his final writings, he accused General Noriega of having threatened to kill him several times, and held him responsible for what might happen.

September 13, 1985, the day of his assassination

On Friday, September 13, 1985, Dr. Hugo Spadafora Franco left his house in San José, Costa Rica, where he lived with his wife, a Costa Rican national, and traveled to Panama City, taking the following route or itinerary, one he had traveled several times: San José-Coto 47-Paso Canoas-David-Panama.  He took a small plane to Coto 47, a small locality near the border with Panama.  From there he took a taxi to Paso Canoas (on the Panamanian-Costa Rican border), and lunched in the “Los Mellos” restaurant, located in Panamanian territory.  The owner of the restaurant, his friend, Mr. Iván Darío González Justavino, has made a statement to that effect.  Next door to the aforementioned restaurant, is the bus terminal for service between Pasos Canoas and David, capital of the Province of Chiriquí, with intermediate stops in the small town of Concepción.  Along the route between Paso Canoas and Concepción (30 kilometers), the Panamanian Army, on the pretext of the Central American migration explosion, has established two (2) migration check points in addition to the one at the border.  As was the case during the last four (4) trips, Dr. Hugo Spadafora Franco was obliged to get off the bus for a few minutes at both check points (sufficient time to radio the military command), and then allowed to continue his trip.  It should be emphasized that at those check points, only undocumented persons are made to get off the bus, and Dr. Spadafora showed his Panamanian personal identity card to all those who were travelling in the same bus as he, and to the police as well.  Once the bus reached Concepción, Dr. Hugo Spadafora Franco got off with an agent of the Defense Forces, dressed in civilian clothing, who, by some deception, convinced him to leave the bus and pay his fare that far.  That was the last time Dr. Hugo Spadafora Franco was seen alive.  On the morning of Saturday, September 14, 1985, his body was found in Costa Rican territory decapitated and horribly mutilated some 300 meters from the Panamanian border.

Denial of Due Process by the Panamanian Authorities

Aware of the great lack of credibility and lack of impartiality of the Panamanian judiciary and investigatory agencies, the Spadafora family, supported by the vast majority of the people of Panama, demanded that a special investigatory commission be established, pursuant to Article 216 of the National Constitution.  Dr. Nicolás Ardito Barletta, the then President of the Republic, upon leaving for New York on a special mission to the United Nations, notified the Spadafora family that their request would be met upon his return.  When President Ardito Barletta returned to Panama, he saw the “F-8” marking on one of the windows of his plane, the same mark found on the back on Dr. Spadafora’s corpse.  President Barletta was taken to the central barracks of the Defense Forces and forced to resign.

From the very outset Eric Arturo Del Valle, the new President, showed no interest in setting up an investigation into the death of Spadafora, and maintained that such action would be unconstitutional.  The National Bar Association of Panama and 120 attorneys (among them the Dean of the School of Law and Political Sciences of the University of Panama) signed a document.

The Legislative Assembly, widely controlled by the Government party, established an ad hoc committee to help the Ministry of Public Affairs in its investigation.  However, all the members of that ad hoc committee who belonged to the opposition parties resigned in protest over the fact that they were not allowed access to the case files.

The Panamanian Ministry of Public Affairs opened the case with the reports that independent Panamanian newspaper “La Prensa” began publishing, and it immediately became obvious that the intent was to cover up the truth and discredit the reports published by “La Prensa” pertaining to the murder of Dr. Hugo Spadafora F.  The reports had directly implicated Messrs. Francisco González Bonilla, Omar Vega Miranda, and Eliecer Ramos, all members of the Panamanian Defense Forces.  Witness after witness was immediately provided, in all cases fellow military, who placed those persons far from the site of the crime.  An extraordinary degree of uniformity was evident in their statements.

Despite the lack of impartiality with which the case was being conducted, it produced two (2) interesting statements, one made by the driver of the bus on which Dr. Hugo Spadafora traveled, and the other by the driver’s assistant, both of whom were called in twice to make statements.  The first time, they denied that Dr. Spadafora had been on the bus.  It is important to point out that the aforesaid witnesses appeared for a second statement, this time under the protection of the Chiriquí Province Transport Workers Union out of fear that they had to make a statement, as they had done the first time.  The second time, they expanded their original statement, and gave a true account that culminated in the arrest of Dr. Spadafora by an agent of the Panamanian Defense Forces dressed in civilian clothing.  Out of fear, many witnesses dare not come forward to testify as long as the terror and intimidation tactics come forward to testify as long as the terror and intimidation tactics used by the Panamanian dictatorship in connection with this crime persist, a dictatorship headed by General Manuel Antonio Noriega, who has systematically been violating human rights in the Republic of Panama.

A mere five (5) months after his murder, the Hugo Spadafora Franco case was closed as per an act of discontinuance in favor of the three (3) individuals mentioned earlier.  It should be stressed that one of the three magistrates on the bench handed down the decision opposed the majority ruling, which the citizenry saw as an honest and courageous act.  Owing to its importance, the latter part of the dissenting vote cast by Judge Andrés A, Almendral C. should be quoted:

“If the First Superior Court District Attorney (Fiscalía Primera Superior) began the case on the basis of the report published in the newspaper “Extra,” and the newspaper “La Prensa” carried the same report on Tuesday November 26, 1985, i.e., that a military jeep took Dr. Spadafora to Corozo between 7:00 p.m. and 8:00 p.m. etc., etc., the place has to be visited, in order to determine whether this is true or false, look for clues, interrogate units and local inhabitants, etc.

Greater cooperation has to be requested of the Chief of the Fifth Military Zone, in order to provide details concerning the movement of his troops throughout the region, particularly along the border area in Paso Canoas, the Concepción barracks, and the presumed detachment in Corozo.  The case cannot be closed so abruptly, with unanswered questions and doubts, all of which could be dealt with through further investigation.

The sacred responsibility for the administration of justice is singular.  History will judge us by our deeds.  If even a trace of inspiration remains, then the most appropriate course of action would be for the case to be returned to the First Superior Court District Attorney that he may do what has to be done.  In this matter, I cast my dissenting vote.”

Although the Dr. Hugo Spadafora Franco case has been closed by the Panamanian judicial authorities, the Judiciary of the Republic of Costa Rica, which country his body was found, has kept it open, recognizing that the murder took place in Panama, as was declared publicly and on several occasions by the Director of the Office of Judicial Investigation of Costa Rica.

The Spadafora family has launched a civic, non-violent movement to seek the appointment of a special commission to investigate the cruel and vile assassination of Dr. Hugo Spadafora F.  It has been involved in much peaceful civic actions, such as fasts, marches, meetings lectures throughout the length and breath of the country, etc., with the support of civic associations, social clubs. Political parties, the Church, and the vital forces of the country.  The response of the military and civic authorities has been the absolute silence of an accomplice.  Nevertheless, the Spadafora family continues to bring pressure to bear to see justice done.

b)          A copy of the report prepared by the Judicial Investigating Agency of Costa Rica, dated September 19, 1985, addressed to Mr. Fernando Cruz Castro, Director of the Ministry of Public Affairs, reporting numerous steps taken by the aforementioned body following discovery of the decapitated corpse of Dr. Hugo Spadafora in Costa Rican territory in the area referred to as Roble, Laures, the approach to Roblito, a few meters from the Panamanian border.  The purpose of those measures was to determine the nature of the crime committed, and establish criminal responsibility.  The report concluded by pointing out that:  “All the evidence indicates that Dr. Hugo Spadafora Franco was struck down in Panamanian territory, and his body was dragged into Costa Rican territory” (page 7 of the Report of the Judicial Investigating Agency of Costa Rica). 

c)          A copy of the statements made by Mr. Alexis Noe Baules Concepción, driver of the bus in which Dr. Hugo Spadafora traveled into Panamanian territory, before the Office of the First Superior Court District Attorney (Fiscalia Primera Superior) of the Third Judicial District of Panama, Ministry of Public Affairs.

In an initial statement made on September 18, 1985, Mr. Alexis Noe Baules denied having known Dr. Spadafora; he also denied as having witnessed anything irregular or unusual on the trip that took place on September 13, 1985 between the border and city of David.  Subsequently, on September 24, 1985, Mr. Alexis Noe Baules Concepción, elaborating on the statements which he had made to the same judicial authority, admitted having had Dr. Spadafora had been detained twice during the trip (Retén de Jacú and Retén de la Estrella) by the Defense Forces of Panama, and subsequently released.  Lastly, he indicated that Dr. Spadafora got off the bus in the city of Concepción, in the company of Mr. Francisco Eliecer González Bonilla, nicknamed “Bruce Lee,” who had been following him from the border.  Mr. Alexis Noe Baules stated that his initial failure to describe all of the events that occurred on September 13, 1985, was because he feared for his own personal safety.

d)          Also included was a copy of the statements sworn by Mr. Edwin Noel Nuñez, assistant to the driver of the bus that carried Dr. Hugo Spadafora on September 13, 1985.  Like the bus driver, Mr. Edwin Noel Nuñez, in his original statement, denied any knowledge of the trip made by Dr. Hugo Spadafora on September 13, 1985; subsequently, when elaborating upon his original statement, he described the same events reported by the bus driver, adding that he recalled that the person nicknamed “Bruce Lee” had insisted that Dr. Spadafora accompany him when he got off the bus in” Concepción.”

Mr. Edwin Nuñez also stated that his initial failure to report all of the facts had been because of his fear for his own personal safety.

e.          A copy of the dissenting vote cast by Mr. Andrés A. Almendral C., magistrate of the Fourth Superior Court of Justice of Panama, dated February 7, 1986.

Judge Almendral dissented from the decision reached by his colleagues on the Fourth Superior court of Justice, which issued a discontinuance of the case begun as a result of the murder of Dr. Hugo Spadafora Franco.  In point of fact, the Fourth superior Court of Justice issued a final discontinuance on February 7, 1986 (which has the effect of a completed judgment) with respect to the accused, i.e., Omar Vega Miranda, Eliecer Ramos or Eliecer Chararía (sic), and Francisco Eliecer González Bonilla, all members of the Defense Forces of Panama, and the temporary discontinuance pertaining to the legal investigation per se.  The latter means that the case may be reopened, but only in the event that evidence is submitted against persons other than those initially accused.

In his dissenting vote, Judge Almendral maintained that a final discontinuance of the case could not be issued because the facts were not consistent with the procedural premises provided for in Article 2136 of the Panamanian Code of Justice.  In point of fact, the aforementioned article provides that final discontinuance may be issued only:  1) when it is obvious that the crime has not been committed; 2) when the deed referred to does not constitute a crime; 3) when the accused is exempt of criminal liability, either because he falls into one of the categories of non liability, or for another reason which exempts him or her; and, 4) when the punishable act involved has already been dealt with in another trial in which a final sentence has been issued involving the same accused person.  Judge Almendral indicated in his dissenting vote that “none of these situations applies to the individuals under investigation.”

Moreover, Judge Andrés Almendral noted numerous gaps and contradictions in the preliminary investigation conducted by the Ministry of Public Affairs of Panama.  For example, in the aforementioned investigation, after having validated the autopsy report on Dr. Hugo Spadafora, drafted by appropriate Costa Rica authorities, said report indicates that Dr. Spadafora’s death occurred between the night of September 13 and the early morning hours of September 14, and that Mr. Omar Vega Miranda, a member of the Defense Forces of Panama and a suspect in the case, was questioned about his activities, including those between 7:30 a.m. and 4:00 p.m. on September 13.

The same judge also pointed out certain contradictions in the testimony given by Mr. Eliecer Ramos or Eliecer Calvarias (sic), namely, that when interrogated about his activities on September 13, 1985, he produced a medical certificate attesting to a physical handicap:  at the same time, however, he said that on the very same September 13, he had been engaged in several personal and commercial activities outside of the military barracks.

As to the third suspect, i.e., Mr. Francisco Eliecer González Bonilla, in the view of Judge Almendral, it seems unlikely that he would have remained in his quarters in the barracks of the David military zone, from 7:00 a.m., Friday September 13, until Monday, September 16–in other words, for three consecutive days–without ever leaving the premises.

Lastly, Judge Andrés Almendral noted several gaps and lacunae in the measures taken by the Ministry of Public affairs of Panama, which did not take into account the various charges leveled by the newspapers with respect to the place where Dr. Spadafora had been killed  In Judge Allendale’s opinion, the judicial review is “full of unanswered questions and doubts that could be resolved through further investigation.”

f)          Lastly, the petition also submitted copies of certain political statements made by Dr. Hugo Spadafora Franco in which he seriously criticized the abuse of power by the Defense Forces of Panama, and particularly by certain political and military authorities in Panama.  Moreover, he charged that he had received several death threats from high-ranking officers in the Defense Forces of Panama for having made such criticism.

3.          Under cover of a note dated May 16, 1986, the Commission transmitted to the Government of Panama the pertinent portions of the aforementioned petition, so that the Government might provide whatever information it deem appropriate, within the period.

4.          On August 6, 1986, in note OEA-570-86 from the Permanent Representative of Panama to the Organization of American States, the Government of Panama replied to the request for information submitted by the Commission, and attached notes DM No. 576, dated July 21, 1986, from Mr. Jorge Acadia Arias, Minister of Foreign Affairs of the Republic of Panama, and note No. DGP-515-86, dated July 8, 1986, signed by Mr. Carlos Augusto Valhalla B., Attorney General of the Republic, the text of which is as follows:

Case No. 9726

I.        The Panamanian Constitution provides that the Ministry of Public Affairs if responsible for prosecuting crimes.  This is the provision of paragraph 5 of Article 217 of the National Constitution, which states as follows:

          Article 217.  The duties and responsibilities of the Public Ministry are: 

          … …

          4.          To prosecute offenses and violations of constitution or legal provisions.

This authority is reiterated in Article 302 of Law No. 61 of 1946, which are the Bylaws of the Ministry of Public Affairs.

On the basis of the foregoing, we conclude that in our country, the competence to conduct such investigatory proceedings into crimes unquestionably belongs to the agents of the Ministry of Public Affairs.

In exercising such powers, the District Attorney of the First Superior Court of the Third District, based on reports in the newspapers “Extra” and “La Prensa,” began the respective investigation in order to establish the corpus delicti and corresponding criminal responsibility.

To that end, the District Attorney made the following statement o September 17, 1985:

Inasmuch as this morning’s issues of the local newspapers have reported that on Saturday, the 14th of this month, the body of a person who, according to the information reported, was Dr. Hugo Spadafora (in the newspaper “Extra”), was found in the community of Laurel, in the jurisdiction of the Republic of Costa Rica, and because the newspaper “La Prensa” reports that Dr. Hugo Spadafora entered Panama on the 13th of the same month and was seen by Mr. Iván García having lunch near the Costa Rican border, and subsequently, while traveling in the bus with license plates 4B-52, drive by Mr. Alexis López, accompanied by assistant driver Edwin Nuñez, was detained upon arrival at the bus stop in Concepción and taken to the local barracks of the Defense Forces, it is decided that the accounts reported by the aforementioned newspapers will be taken was grounds for launching the appropriate investigation to determine whether a crime has been committed and the culpability of its perpetrator or perpetrators.

Investigation of the crimes committed in our country was done by bringing together into a single case all of the evidence and procedures that had been conducted.  Such a case referred to as a summary proceeding as per the provisions of the Panamanian procedural criminal law.

In this regard, Article 2020 of the Legal Code provides the following:

Article 2020:  Preliminary proceedings are all measures necessary to determine the corpus delicti and discover the criminals or those culpable.  The officer who conducts such proceedings is known as an examining officer.

In keeping with the applicable criminal procedure, the District Attorney of the First Superior court of the Third District completed the examining procedures to the extent possible, and referred the investigation to the appropriate jurisdictional body so that the proper procedural measure might be determined.

The action taken followed by the agent of the Ministry of Public Affairs was based on the provisions contained in Article 2129 of the Legal Code, which states:

Article 2129:  Once the summary proceedings have been completed, the agent of the Ministry of Public Affairs will refer them to the competent judge with the request that the person deemed responsible be brought to trial or that a final or provisional discontinuance be ordered, as the case may be.  The transfer of the case by the District Attorney to the Fourth Superior Court of Justice, the appropriate jurisdictional body to decide on the summary proceedings, was done through Review Procedure No. 139, dated December 31, 1985, in which the examining official makes the following points and conclusions:

The investigation conducted by the Ministry of Public Affairs established that Dr. Hugo Spadafora Franco was dead, and that his corpse was found by Costa Rican authorities in Quebrada El Roblito, and that the autopsy on his body was conducted in Costa Rica.  Emphasis is placed on the fact that the death certificate for Spadafora Franco–which appears in record 190–indicates Laurel, Republic of Costa Rica, as the place of death.

With the limits of what is permitted by Article 2125 of the Legal Code, this agency of the Ministry of Public Affairs took action to establish corpus delicti and determine the identity of the criminals and their accomplices.  The first of the particulars has been duly established by the Autopsy Report and the death certificate on record.  However, as for the subjective element or criminal liability, the evidence that has been introduced in the case has not make it possible to identify the person or persons who committed the punishable act.

… … …

In conclusion, while it is true that the death of Dr. Hugo Spadafora Franco has been proven, and that such death was the result of a criminal act, it is also true that the evidence introduced in this criminal investigation is not sufficient from the legal standpoint to prove that the accused Francisco González Bonilla, Omar Vega Miranda, and Eliecer Ramos were either directly or indirectly involved in acts which led to the violent death of the aforementioned physician, on September 13, 1985, as per the report on the autopsy conducted by Dr. Eduardo Vargas, Coroner for the Republic of Costa Rica.

In view of the foregoing, we are persuaded that the procedural legal situation arising from the measures taken is consistent with the premises provided for in Article 2136 of the Legal Code; we, therefore, pray that the Court of Justice will issue a decree of discontinuance in favor of suspects Francisco González Bonilla, Omar Vega Miranda, and Eliecer Ramos, pursuant to the legal provision invoked, unless the Court should reason otherwise.  Once that procedural phase had been completed, the Honorable Fourth Superior Court of the Third District took cognizance of the case, proceeded to evaluate it, and handed down a decision on February 7 of this year, in which it decided to issue a final discontinuance for the accused on the following grounds:  Folios 282 and 323 contain authentic copies of the measures taken in the Republic of Costa Rica upon discovery of the corpse of Dr. Hugo Spadafora Franco in the territory of the nation; thus, we may establish the exact location was under the bridge of the La Vaquita River in the place known as Roble in the Laurel District.  In the report, which appears on Folio 19, it was explained that the body was submerged to the waist with the lower extremities out of the water, on its back.  It was found to be a male, approximately 35 years of age, completely decapitated.  The report further stated that even though a search was conducted, the head of the body was not found.  The body was found by young Franklin Vargas Velarde, near Roblito de Laurel, a village which is located at a distance of 200 meters east of the border.

On Folios 290 and 291 contain the coroner’s report, signed by Dr. Luis del Valle Carazo, resident physician, Dr. Rodrigo Quiroz Coronado, and validated by Dr. Félix Baudrit Gómez, Head of Forensic Pathology Section of the Investigation Agency of the Republic of Costa Rica.

As we have indicated in previous paragraphs, although it is quite true that the commission of an illegal act has been duly established through the autopsy report contained in the authentic copies sent by the legal authorities of Costa Rica via diplomatic channels, we have also stressed the legal status of the only three suspects in the summary proceedings, and have pointed out that there is no evidence of elements linking them to the deed under investigation, inasmuch as there is not a single shred of documentary or testimonial evidence against the suspects.

The decision of the court was adopted by a majority of votes.  Such a result is referred to as a “judicial decision” in the Panamanian procedural system, according to the provisions of Article 284 of the Legal code, which provides:

Article 284:  Judicial decision shall mean the one issued by courts or any public offices or private persons temporarily or permanently invested with judicial functions.

Judicial decisions may be adopted by a simple majority, according to the provisions of Article 45 of Law No. 47 of 1956, applicable to the Superior Courts of Justice, by virtue of the reference made in Article 131 of Law 61 of 1946.  Article 45 mentioned above reads as follows:

Article 45:  An absolute majority of votes is required in all decisions in bane and full court and in chambers.  In bane, the majority shall be five judges, and in chambers, three.

It will be noted that the court dealing with the case weighed the various pieces of evidence contained in the case file, and determined that there were no elements linking the suspects to the crime under investigation.

II.       Up to this point, we have specifically analyzed the criminal proceedings to which you refer in your letter.  Nevertheless, in order to cooperate in the measures undertaken by the Inter-American Commission on Human Rights, our office deems it necessary to make known certain points with respect to the petition containing the Brief of the facts pertaining to the murder of Dr. Hugo Spadafora Franco, appended to the petition submitted to that international body.

For that reason, the following explanation is necessary:

1.       As established in the criminal proceedings, all of the particulars reported in the media were investigated.

2.       The accusation brought before the Inter-American Commission on Human Rights is based on what was alleged to be proof but which, when weighed by the jurisdictional body, was dismissed by the legal logic explained by the Court.

Let us review each particular carefully.

All of the details made known to the investigating officer by various channels, and somehow logically related to the deed under investigation were analyzed, weighed, and explained by that officer to the Court hearing with the case, which also took them into account in reaching a decision.

Exhaustion of the procedures established in our legal system in jurisdictional matters were precisely what led the court to the procedural stage involving a decision with respect to the case.

The decision was well founded, and was taken with due regard for a pertinent constitutional and legal authorities.  Hence, our Office believes that the procedures called for in our country have been exhausted.

III.          Inasmuch as the request for information which has given rise to this statement requires an explanation as to whether or not internal jurisdiction remedies have been exhausted, we should mention the proceeding initiated by Dr. WINSTON SPADAFORA FRANCO, in a brief submitted to the Attorney General’s Office on June 19, 1986, by which he requested that the alleged involvement of general Manuel Antonio Noriega in the assassination of Dr. Hugo Spadafora Franco be investigated.

In light of the abstract of the investigation conducted by the Public Prosecutor for the First Superior Court Third District, this Attorney General’s Office requested that the court hearing the case provide duly authenticated copies of the judgment it handed down.  This was requested in order to establish the current status of the investigation.

Having established that the petition filed by Dr. Winston Spadafora Franco involved the same criminal act that was considered and decided upon by the Fourth Superior Court of Justice of the Third District, that fact was considered and the documentation submitted by the claimant consisting of newspaper clippings, was weighed.  The aforementioned brief was referred to the Criminal Chamber of the Supreme Court of Justice, as per review No. 28 of June 25, 1986.

In that document, this Attorney General’s Office considered the following points:

First of all, given the existence of a proceeding in which the cause of the death of Dr. Hugo Spadafora Franco was investigated, proceedings now with the Fourth Superior Court of Justice as a result of a judicial decision, it is procedurally inadmissible to initiate a new investigation using as a basis the document submitted to this office by Dr. WINDSTON SPADAFORA FRANCO, inasmuch as Article 1984 of the Legal Code does not allow this.

Hence, since there is a procedural constraint that obliges us to conduct only one proceeding for any given crime, we are, therefore, unable to open up a new investigation based on the brief filed with this office.

The best procedural tactic would be to process the brief as a request to reopen the case, which is the only procedural approach that would be feasible.

To reopen a case, certain procedural requirements must be met.

Before a criminal investigation can be reopened, the investigation must have been provisionally closed by the appropriate Court.  New evidence warranting must also be presented, as provided for in the second paragraph of Article 2138 of the Legal Code.

In this regard, it should be pointed out that the basic requirement of Article 2138 of the Legal Code, with respect to the reopening of criminal proceedings is ultimately the existence of new evidence, those facts that serve to establish the occurrence or nonoccurrence of the deed, which is a matter to be determined in a criminal proceeding.

After having conducted a thorough, detailed analysis of the newspaper clippings submitted by the petitioner, our Office believes that they are only hearsay; as evidence, they are not, in themselves, persuasive enough to establish a link between the personal named as the perpetrator of the crime and the crime itself.

It is a well known fact that the “new evidence” referred to in Article 2138 of the Legal Code, paragraph two, is evidence that was not know at the time of the investigation and, when submitted after the conclusion of the inquire, establishes whether or not there is criminal liability, which, in turn, would warrant a reopening of the case.

Inasmuch as the newspaper clippings submitted do not permit the necessary procedural premises required in order to reopen a case, our Office believes that it would be inappropriate to accede to the request, and we respectfully request your concurrence.

For better reference, we cite below the text of Articles 1984 and 2138 of the Legal Code, which read as follows:

Article 1984:  Only one proceeding shall be instituted for any given crime, even when more than one person may be responsible.  Moreover, a single proceeding shall be instituted when there is only one prisoner, although the crimes involved may be several.

A single proceeding shall also be instituted in the case of collective crimes, although there may be several criminals involved whose trial may be the purview of different jurisdictions.

Article 2138:  A final discontinuance terminates the respective proceeding against the persons for whom it is ordered, and produces exceptio rei adjudicata.

A temporary discontinuance does not terminate the proceeding.  The investigation of those for whom a temporary discontinuance has been ordered may be continued whenever new evidence is submitted. 

We must point out that this Attorney General’s Office had to refer the petition to the Supreme Court of Justice, inasmuch as the person indicated as accomplice to the crime is in public office; in such cases the forum of judgment must be the highest court.

In a Ruling dated June 27, 1986, the Honorable Criminal Chamber of the Supreme Court of Justice decided to make a determination in the case.  The ruling considered the following points:

“An examination of the record containing the brief submitted by Dr. Winston Spadafora Franco indeed reveals that in addition to his petition, he submitted several newspaper clippings pertaining to news appearing in the June 12, 1986 issue of the New York Times, published in that city in the United States, which were reproduced in their original version and duly translated into Spanish in the local newspapers, El Extra and La Prensa in the issues for June 13 of this year; the content suggests involvement by General Manuel Antonio Noriega, Commander in chief of the Defense Forces of Panama, in the murder of dr. Hugo Spadafora Franco.

In this regard, it should be pointed out that the body of Dr. Hugo Spadafora Franco was discovered in Quebrada de “El Roblito,” a community in the Republic of Costa Rica, and that the scientific evidence introduced during the corresponding investigation reveals that he had died during the night of the 13th or the early morning of the 14th of September 1985.

It is clear that the Ministry of Public Affairs in due course conducted a rigorous investigation into the homicide of the Panamanian citizen, and that the determination of the summary proceeding was made by the Fourth Superior Court of Justice, in a ruling dated February 7, 1986, a duly authenticated copy of which is contained in leaves 27 to 76 of this record.

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In keeping with the structure of our criminal procedural system, “Only one proceeding shall be instituted for any given crime, even when more than one person may be responsible.  Moreover, a single proceeding shall be instituted when there is only one prisoner although the crimes involved may be several.  The standard that establishes that principle for criminal proceedings is Article 1984 of the Legal Code which also provides the following:  “A single proceeding shall also be instituted in the case of collective crimes, although there may be several criminals involved whose trial may be the purview of different jurisdictions.”  (Underlining by the Chamber).

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“Inasmuch as what is involved is a summary proceeding for which a final discontinuance has been ordered in favor of OMAR ENRIQUE VEGA MIRANDA, ELIECER RAMOS, and FRANCISCO ELIECER GONZALEZ BONILLA, the ruling cannot be otherwise, since on the basis of the criminal law claim represented in the plea entered by Dr. Winston Spadafora Franco, the only way would be to reopen the case, as a form of procedural governance given in this case to the Chamber of the Court, which is responsible for weighing the evidence submitted against certain persons in the corresponding formulation of the charges.

The reopening of a proceeding, when decided on the basis of a well-founded decision in favor of reopening, constitutes a way of contesting by means of newly adduced evidence, since it presupposes a previous well-founded decision of merit.

In this case, what is sought is the continuance of the formal proceeding, which is tantamount to a kind of resumption of the proceeding against another person.  It should be stressed that reopening the proceeding must be based on a presumption of new evidence.  Obviously, it is procedural policy to require that evidence be produced of an incriminating nature.  Applicable in the case is the concept of the relevance of the evidence which, in the case of a criminal proceeding, functions as a limitation on the principle of freedom of evidence or the contribution thereof, with the result that, in the case of a summary proceeding, the evidence introduced must be weighted in order to determine whether it is reliable enough to make it effective.

One might say that in order for a criminal inquiry to be opened, the weighing of alleged evidence submitted for that purpose, namely to reopen the investigation, operates as an absolute limitation, which is necessary in order to reach a well founded decision as to whether on the basis of the evidence submitted, such a procedure should be opened.

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The work done by the Chamber in beginning to weigh the contents of the newspaper clippings submitted with the request, is in accordance with the system of sound judgment, for an assessment of the contents of news dispatches read in the aforementioned newspaper clippings, which in the final analysis determines whether or not they would be accepted as justification means for the aforementioned reopening, all of which can lead to an objective affirmation as to the certainty content of the alleged deeds, their actual incriminatory nature, and other characteristics, as proof against a certain person.

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At the time the summary proceeding was instituted, there was speculation with respect to the eventual implication of the Defense Forces in the homicide of Dr. Hugo Spadafora Franco.  The same type of speculation is now being made with respect to General Manuel Antonio Noriega, with no factual grounds being found to link him to the aforementioned homicide.  Said speculation is being made by persons or media outside the Panamanian jurisdiction, for which reason there is not sufficient control eventually to demand liability for libel, slander, or defamation of character.

In point of fact, none of the speculations, either those made within the national territory or those contained in foreign press dispatches provide any facts linking General Manuel Antonio Noriega to the Murder of Dr. Hugo Spadafora Franco. 

Moreover, if this is the procedural situation that arises from the request made by dr. Winston Spadafora Franco, it would not warrant classifying a criminal someone who is not linked to the crime.

Indeed, in the newspaper reports submitted–all published by the aforementioned national newspapers–the Chamber does not find sufficient merit in terms of relevance and effectiveness to act favorably upon the petition to institute a new investigation.  To do this the summary proceeding would have to be reopened since the evidence is so insubstantial that it would be pointless to attempt to establish facts of relevance to an investigation on the basis of alleged evidentiary facts that offer nothing specific in the way of proof, and are not, therefore, proof.

In view of the foregoing, the Honorable Criminal Chamber of the Supreme Court of Justice declares that there are no grounds for reopening the summary proceeding.

According to the provisions of Article 204 of the National Constitution, rulings by the Supreme Court of Justice or its Chambers cannot be appealed either on the grounds of unconstitutionality or on the basis of constitutional guarantees against such, for which reason our Office believes that, in this case, all of the jurisdictional procedures established by the laws of the Republic of panama have been exhausted.

Our office believes that in the proceeding prompted by the request for information which we now provide, the constitutional and legal proceedings applicable to the matter have been observed, and that each and every one of the procedural guarantees enshrined in our legal system has been respected.

Jurisdictional power, a consubstantial element of the sovereignty of the state, has bee applied to this case, without omitting any existing legal procedure.

          5.          On August 11, 1986, the Commission transmitted the reply of the Government of Panama to the complainant so that he may submit his comment within 45 days.

          6.          On August 22, 1986, the Commission received a letter from Mr. Larry Garber, a representative of the International Human Rights Law Group, informing that, with the expressed authorization of the plaintiff, Mr. Winston Spadafora, he would represent the complainant with the advisory services of Ms. Laura Bocalandro and Mr. Stephen J. Schnably, in the proceeding to be conducted before the Commission.

          7.          In a note dated September 11, 1986, the Commission acknowledged receipt of the note sent by Mr. Larry Garber, asking that the International Human Rights Law Group be regarded as the representative of the petitioner for the purpose of continuing to process Case No. 9726.

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