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OEA/Ser.L/V/II.74 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION
20.
On July 17, 1987, when submitting their observations to the Commission,
the complainants once again reiterated, that despite the fact that the
Government of Panama had hitherto submitted three documents explaining its
position regarding the case under consideration, none of them undermined from
the documentary and testimonial evidence that they had submitted. Moreover, the complainants made the following verbatim
statement: The Government of Panama misrepresents view of the function
of the Commission. First of all,
because determinations of fact by the Commission must be based on all the
evidence before the Commission, whatever the origin might be:
statements made by eye witnesses, whether presented or not to the
Panamanian courts, statements by high-ranking officers of the Panamanian Defense
Force, or official report of the Costa Rican Government.
It would be arbitrary to disregard any relevant evidence.
Secondly, because the Commission does not act as a court of cassation or
court or appeal for internal decisions made by countries members of the
Convention, but bases its decisions on the substantive law contained in the
Convention and on international law, and not on domestic law.
The latter is pertinent to the violation of Article 25 of the Convention.
As regards the right to legal remedy envisaged in Article 25 of the
Convention, obviously a determination had to be made at least as to whether or
not the different procedural steps required by domestic law had been complied
with. Nevertheless, the
determination of the existence of a violation of Article 25 will not remain
exclusively at that. A review of
the procedural formalities does not guarantee protection of the right to
effective legal recourse. As we stated in the observations made on October 2, 1986,
the Government has conducted a summary proceeding that is clearly inadequate. Lastly, the complainants indicated that there is not
controversy with respect to determining whether or not internal remedies had
been exhausted, since both parties confirmed that said remedies had been
exhausted. 21.
On July 20, 1987, the Commission requested that the Panamanian Government
send the following documents: a)
The decision of September 17, 1985, by the District Attorney of the First
Superior Court of the Third District, to the Fourth Superior Court of Justice; b)
Government Attorney’s opinion No. 139, dated December 31, 1985, by
District Attorney of the First Superior Court of the Third District, to the
Fourth Superior Court of Justice; c)
The ruling of February 7, 1986, of the Fourth Superior Court of the Third
Judicial District; a) Opinion No. 28, of June 25, 1986, by the Attorney General of the Nation
to the Honorable Criminal Chamber of the Supreme Court of Justice; b)
The ruling of June 27, 1986, of the Honorable Criminal Chamber of the
Court of Justice referring to the aforementioned opinion No. 28: c) The Report of the Legislative Assembly on the events that motivated the
case referred to. Moreover, the Commission requested from the Government of Panama
information concerning the steps taken by the Judiciary branch of the Government
of Panama with respect to the statements made by Mr. Nicolás Ardito Barletta,
former President of the Republic of Panama, and by Colonel Roberto Díaz
Herrera. 22.
On July 21, 1987, the Commission transmitted to the Government of Panama
the observations made by the petitioner on July 17, 1987, and granted it a
period of 45 days to send its reply. 23.
On September 8, 1987, in note D.M. No. 573 from the Permanent Mission of
Panama, the Government of Panama sent the documents that had been requested on
July 20, 1987, and its observations to the Commission, which are transcribed
below: I am pleased to refer to the communications from the Executive
Secretariat, dated July 10, 1987, and July 27, 1987, in which several requests
are made to the Government of Panama with respect to case No. 9726, and provide
a reply as follows: 1.
As of July 8, 1986, in note DM No. 576, dated July 21, 1986, the
Government of Panama made a thorough and detailed account both of the applicable
constitutional and legal provisions and of the facts and circumstances dealt
with in the investigating proceeding into the death of Panamanian citizen Hugo
SPADAFORA. We wish to report that on that occasion, in the decision dated February
7, 1986, the court dealing with the case decided to issue a final discontinuance
for those being investigated. Nevertheless,
that decision did not bring the investigation to a final close.
That notwithstanding, prior to that procedural stage, the procedures
established in our legal system with respect to jurisdictional matters had been
exhausted. Now then, a temporary discontinuance affecting an investigation,
according to Article 2138 of the Judicial Code in force at the time, permits
reopening such an investigation in the event that new evidence is submitted,
i.e., new conclusive evidence which would make it possible to determine the
occurrence or nonoccurrence of an act which is a matter for a determination in a
criminal proceeding. Inasmuch as a procedure had been initiated whereby citizen Winston
SPADADORA FRANCO requested that the presumed involvement of General Manuel
Antonio Noriega in the murder of Dr. Hugo Spadafora Franco be investigated, it
should be pointed out that even if the procedures established in our legal
system had been considered exhausted, in view of the temporary discontinuance,
the presence of presumed new evidence makes it necessary to await evaluation of
such by the jurisdictional body, in order to determine whether or not the
inquiry will be reopened. In its decision of June 27, 1986, the Criminal Chamber of the Supreme
Court of Justice examined the supposed evidence submitted the petitioner and
determined that it did not have “sufficient merit, in terms of relevance and
effectiveness, to constitute a basis on which to proceed according to the
request for a new investigation, for which it would be necessary to reopen the
summary proceedings…” It should
be recalled that the petition was based on newspaper clippings lacking factual
validity that would determine criminal responsibility. On that occasion, we indicated, “that in this connection all the
jurisdiction procedures established in the laws of the Republic of Panama have
been exhausted.” Obviously, we
were referring to the judicial proceeding to reopen the case, initiated at the
urgings of citizen Winston SPADAFORA FRANCO. 2.
In note DGOCTI/DOI/171 dated January 28, 1987, the Government of Panama
gave its opinion of the documents containing the supplementary request submitted
by the petitioners. On that occasion, we were of the opinion that the supplementary request
contained in a series of assertions lacking the truthfulness and objectivity and
completely extraneous to the essence of the case presented. On that occasion we stated our opinion that the proceedings before the
Honorable Inter-American Commission on Human Rights should be strictly conducive
and relevant to the achievement of the supposed confirmation of what had been
raised, for which reason we believed that the supplementary request was out of
order, inasmuch as it contained a speculative account of assertions completely
extraneous to the processing of the aforementioned case. We therefore believe that the assertions contained in the supplementary
request constitute a series of improper and eminently subjective statements
which, in addition to lacking veracity do not warrant further consideration
because they are conducive or relevant to the case dealt with in the proceeding
which has been submitted to the Inter-American Commission on Human Rights. Lastly, it was felt that “in the proceeding that has given rise to
the request for information by the Honorable Inter-American Commission on Human
Rights to our country, the constitutional and legal procedures applicable in
such cases have been complied with and each and every one of the procedural
guarantees enshrined in our legal system has been respected.” Obviously the foregoing is clearly in keeping with the respect for the
procedural rights enshrined in Panamanian legal due process. 3.
In note DV No. 082 dated May 25, 1987, the Government of Panama gave its
opinion on the document containing the comments made by the petitioners with
respect to the reply by the Panamanian Government. On that occasion, we explained that the report which the government
attorneys submit for consideration by that Commission should be based
exclusively on the facts and circumstances known to them; in our case, the facts
and circumstances revealed in the investigations conducted, have been brought
together in a case file which our criminal procedural law refers to as a
summary. On that occasion, we expressed the opinion that the case designated as
no. 9726 refers to the deeds that caused the death of Dr. Hugo Spadafora Franco.
Hence, any assertion extraneous to that regrettable deed must be
considered completely ineffective by the Honorable Inter-American Commission on
Human Rights. We explained that from a strictly legal standpoint, and bearing in mind the question which is of interest to the Inter-American Commission on Human Rights, which consists in determining whether or not there has been compliance with the appropriate internal jurisdictional proceedings of the country and which are designed to determine whether or not the crime has been committed and the responsibility for it. (sic) It was clear on that occasion that “the internal jurisdictional procedures had been complied with, but that nevertheless this should not be interpreted as final closure of the appropriate investigation, and we added that “in the event that new evidence were to be presented, the summary proceeding could be reopened.” Now then, at the urging of the petitioner himself, judicial proceedings designed to reopen the investigation was initiated; however, the absence of new evidence led to the decision handed down by the Supreme Court of Justice on June 27, 1987. In our note DB. No. 82, dated May 25, 1987, which we have been referring to, we stated that decisions handed down by the Supreme Court of Justice or by its Chambers cannot be the subject of appeals based on unconstitutionality or of resort to constitutional guarantees against them, for which reason the Government of Panama deems all of the jurisdictional procedures established by the laws of the Republic of Panama to have been exhausted. Obviously, we were referring to the procedure to reopen the
case undertaken at the urgings of the petitioner himself, but not the procedural
situation created by the decision reached on February 7, 1986, by the Fourth
Superior Court of Justice, which reviewed the investigation and ordered it to be
temporarily closed. 4.
In view of the foregoing comments, the Government of Panama decided that
its replies would cover four basic aspects, i.e.,: A.
That the proceeding before the Inter-American Commission n Human Rights
seeks to prove the responsibility of the Government of Panama for the supposed
violation of the rights enshrined in Articles 4, 5, 7, 13, and 25 of the
American Convention on Human Rights, with respect to the facts referred to in
Case No. 9726. B.
That the documents submitted by way of support for such proceedings do
not prove that in actual fact the Government of Panama is responsible for such
assumed violations. C.
That the Government of the Republic of Panama, specifically the
appropriate jurisdictional body, has at all times complied with legal due
process, and has afforded the members of the victim’s family effective use of
the internal jurisdictional remedies during the various procedural stages. CH. That the decision of
the court reviewing the investigation, as contained in the decision dated
February 7, 1986, has not been changed, and therefore, as provided in article
2138 of the Judicial Code in force at the time and repeated in Article 2213 of
the current Judicial Code, the temporary discontinuance does not bring the
proceeding to a final close and the investigation may be reopened whenever new
evidence of the charges is submitted. At this juncture, it would be useful to stress the fact that in
accordance with Article 2213 itself, which is the equivalent of prior Article
2138, a temporary discontinuance only becomes final when the criminal action has
been prescribed, which obviously has not occurred; for that reason the internal
jurisdictional remedies have not been exhausted from the standpoint of the
provisions made in Article 35, subparagraph a) and Article 37 of the Regulations
of the Inter-American Commission on Human Rights. Let us take each item separately: A.
The intention of the petitioner to prove that the Government has violated
Articles 4, 5, 7, 13, and 25 of the American Convention on Human Rights by
reason of the facts referred to in Case No. 9726. 1.
Articles 4, 5, 7, 13, and 25 of the Convention refer to the right to
life, the right to personal integrity, the right to personal freedom, the right
to freedom of thought and expression, and the right to judicial protection. 2.
Violation of the rights enshrined in Articles 4, 5, and 7 of the
Convention require a demonstration that the Government participated in the deeds
pertaining to the homicide. Violation
of the rights enshrined in Article 13 requires a demonstration freedom of
thought and expression have been denied, and violation of the right enshrined in
Article 25 requires a demonstration that judicial protection has been not
existent. 2.
Let us consider: a.
The investigation conducted in the jurisdiction of the State did not
demonstrate that the Government had in any way been involved in the deeds
pertaining to the homicide, for which reason the supposed violation of Articles
4, 5, and 7 of the Convention is rejected out of hand. b.
Both the victim’s family members and private have used the mass media
to express their thought freely, for which reason, there has been no violation
of Article 13 of the Convention. The foregoing does not exclude the existence of jurisdictional
procedures to examine subsequent liability possible arising from the exercise of
freedom of expression as provided in subparagraph 2 of Article 13 of the
American Convention on Human Rights, which in no way could be considered as
violating the right to freedom of though and expression, inasmuch as in such
procedures the procedural guarantees established in the judicial system must
prevail, as indeed they do. c.
There has been no violation of Article 25 of the Convention, inasmuch as
the victim’s family members have at all times had access to the judicial legal
remedies granted them by Panamanian law. In point of fact, the victim’s family members were entitled to bring
private action, pursuant to Articles 1993 et seq. of the Judicial Code in
force at the time; they had a right to attend the proceeding to provide the
information and elements they publicly said they possessed with respect to the
fatal event and concerning criminal responsibility; and lastly, they have had,
and indeed do have, the opportunity to request a reopening of the case, which
had been temporarily closed, by submitting new evidence, not known earlier, that
would demonstrate criminal responsibility. Regarding the foregoing, it would be appropriate to give detailed
information with regard to each aspect, which we now do as follows: 1.
Articles 1993, 1994, 1998, 1999, 2000, 2001, and 2002 primarily are the
ones governing the right of the victim’s family members to bring private
charges. These provisions read as follows: “Article 1993: The
accuser is the one who asks the courts to punish a criminal; the accuser becomes
a party, and undertakes to prove the veracity of his assertions.” “Article 1994: Anyone
may initiate criminal legal action as an accuser, by reason of a crime or
misdemeanor committed against himself or against a relative within the second
degree of kindred or against those who are in his charge or whose he was the
legal representative he is. “Article 1998: The
charge shall always be made in writing, and shall contain the names of the
accuser and the accused, the crime and the place and date it was committed, as
well as an account of all the essential circumstances of the deed, including
reference to the legal provisions that were violated. The accuser shall undertake therein to continue the charge
and to prove the veracity of his account.” “Article 1999: At
the petition of the accused, any accuser shall post a bond to cover the costs
and monetary results of the trial in the event that the decision is against him. “The bond shall be posted through a hearing with the Government’s
attorney or the judge in the case, and shall comply with such requirements as
are stipulated in the case of obligations by the Fiscal Code.
The record of the hearing shall be added to the case file. “The bond dealt with in this article shall consist of a deposit in
case, a lien or a mortgage.” “Article 2000: The
bond referred to in the previous article shall be proportioned in amount to the
costs, which it is estimated that the accused will have to incur in order to
defend himself.” “Article 2001: The
accuser will not be condemned to pay costs unless the charge is declared false
and baseless, and the charge shall be so declared: 1) when the accuser in no way proves the charge; 2) when it
is proven that the accuser procured his testimony by subornation or bribery; and
3) when it is found that the documents he submitted were forged by him or he
submitted them aware that they were false.” “Article 2002: The
charge shall not be declared false and baseless when the accuser has presented
two or more witnesses to prove his charge, even if they have been challenged for
a reason other than the one indicated in the previous article or their
statements have been contradicted by a greater number of witnesses or by more
credible documents.” At this juncture it should be mentioned that in a document dated may 7,
1986, the petitioner informed the Inter-American Commission on Human Rights
that: “In our country we did not
lodge a private chare in order to avoid giving credence by our presence to those
investigations which we knew from the very outset to be lacking in impartiality,
as was demonstrated when the case was closed less than five (5) months after the
murder.” The foregoing quotation demonstrates that the petitioner prejudged the
investigation “from the very outset,” that the petitioner did not choose to
exercise the legitimate right to bring criminal action as an accuser by stating
the name of the accused, the place and date of the crime, and the essential
circumstances of the deed, or indeed to exercise his right under Article 2002 of
the Judicial Code to present two or more witnesses in order to prove his charge,
thereby preventing its being declared false and baseless.
And avoiding monetary penalty that would stem from the provisions of
Articles 1999 and 2000 of the Judicial Code, transcribed above. The omission of a personal charge is surprising since, as shown in the
investigation conducted by the appropriate authority in the Republic of Costa
Rica and in the copy of the record thereof included in the investigation
conducted in Panama, Messrs. Ricaute Esquivel
Rodriguez and Santos LOPEZ LOBON, alleged witnesses of the detention of
the victim at the first checkpoint two kilometers from the border, were
presented to the Costa Rican authority by a close family member of the now late
Dr. HUGO SPADAFORA. It follows then that on the basis of a family relationship the
petitioner not only has legitimate right to bring charge, but also had supposed
witnesses who were presented to the Costa Rican attorney. We note that the petitioner argued to the Commission that the failure
to present a personal accusation was due to a lack of impartiality which in his
judgment was demonstrated when the case was closed less than five (5) months
after the murder: this ignored the
fact that according to article 2125 of the Judicial Code in force at the time a
criminal investigation must be conducted within a period not to exceed more than
two (2) months and in this case the intervening period of investigation was
substantially longer. It was also established in the proceeding that a distinguished local
jurist had requested and received copies of the record of the investigation in
order to decide on the possibility of lodging a private charge against the
person or persons responsible for the homicide. Lastly, it is noteworthy that the failure to exercise the legitimate
right to lodge a private accusation was an act based exclusively on the will of
the petitioner, and such being the case, cannot be attributed to the Government. 2.
The relatives had the right to attend the proceeding in order to provide
information and elements which they stated publicly they possessed concerning
the fatal event, and with respect to responsibility for the crime. In point of fact, the record of the proceedings shows that on several
occasions legal steps were arranged for an appearance by the victim’s father
who had publicly stated that he had knowledge concerning the circumstances and
causes of the death. The record also shows that the aforementioned citizen refused to
appear, arguing that the persons that he had accused in the media should appear
first. Nevertheless, it is
undeniable that his testimony was the item that could have provided the alleged
relationship between the deed and the persons he publicly accused of being its
perpetrators. Consequently, not only was the proceeding kept open to the relatives of
the victim but the competent authority attempted on more than a few occasions to
get the benefit of the information that the relatives claimed to possess, which,
as we have seen, was not submitted in timely fashion.
3.
The relatives have had and continue to have the right to request a
reopening of the proceeding, upon the submission of new and previously
unconsidered evidence of criminal responsibility. Indeed, the petitioner initiated the aforementioned procedure, but the
Supreme Court of Justice held that the documentation presented did not have the
evidentiary value required by law. This decision of June 27, 1986, does not have the effect of changing
the relative and provisional nature of the closure of the investigation, which
will accordingly become final only if the investigation were reopened at such
time as criminal action might be prescribed under the final part of Article 2213
of the Legal Code, which obviously has not occurred. In view of the foregoing, the Government of Panama is of the opinion
that the rights enshrined in Article 25 of the Convention on Human Rights have
not been violated. B.
The documents presented in support of the brief do not proved that the
Government was in fact responsible for he violations referred to. 1.
It has not been proven that the victim was seen for the last time in the
custody of the Government agents, a claim which constitutes, according to the
presentation of the petitioner, the basis for presuming the responsibility
attributed to the Government. In fact, a review of the documentation submitted by the petitioner,
which is not part of the investigation, is completely irrelevant and ineffective
as a means of proving the alleged deed, which centers the argument on the
evidence contained in the record of the investigation, evidence in the form of
testimony by Edwin Noel NUÑEZ and Alexis Noé BAULES CONCEPCION, given before
Panamanian jurisdictional authorities, and by Ricaute ESQUIVEL RODRIGUEZ and
Santos LOPEZ LOBON, given before the Costa Rican jurisdictional authorities. A detailed analysis of the statements made by these four persons shows that even if for the sake of argument, the thesis advanced by ESQUIVEL RODRIGUEZ and LOPEZ LOBON, were accepted as valid, the circumstances they suggest are rendered invalid by the statements of NUÑEZ and BAULES CONCEPCION. We say this for two reasons: first of all, because the latter stated that vehicles headed for the border are not stopped at the checkpoint; and secondly because at not time have the latter asserted that Dr. Hugo Spadafora was detained at the first checkpoint, located just some two kilometers from the border, and showed his identity card to passengers on the bus, indicating to them who he was and the circumstances of his arrest. If the concrete fact alleged by the petitioner is not borne out by the case file containing the record of the investigation, and if the documents submitted by him at his request and as per his supplementary request, (sic), then it can hardly be asserted that the presumption of guilt which he seeks to attribute to the Government arises therefrom. 2. It has not been proven–inasmuch as it does not arise from the investigation or from the documents presented–that there have been violations of the freedom of expression and thought, for which reason the responsibility attributed to the Government in this respect does not arise. 3. It has not been proven that in the jurisdictional proceedings there were violations of due process, concretely with respect to procedural rights, which the relatives of the victims have enjoyed, and continue to enjoy, and which, as we have explained, in some cases were not exercised at all and in others have not been adequately exercised, all of which in no way is the responsibility of the Government. C. The Government of the Republic of Panama, specifically the appropriate jurisdictional body, has at all times complied with due process of law, affording the members of the victim’s family effective access to the recourses inherent in internal jurisdiction at successive stages of the proceedings. 1. Further indications of this will be found in the explanations given earlier concerning the right to lodge a private charge, the possibility of attending the proceeding in order to present information and evidence allegedly in hand, and the right to submit new evidence as an appropriate means of reopening the investigation. As we have said these procedural rights were not exercised by the victim’s relatives, or they were exercised only inadequately. 2. Moreover, there is not a single argument or any evidence that establishes that the jurisdictional body has failed to provide the judicial protection referred to in Article 25 of the Inter-American Convention on Human Rights, so that the charges made to that effect are groundless. CH. The internal jurisdictional remedies have not been exhausted for the specific purposes provided for in Articles 35.a and 37 of the Regulations of the Inter-American Commission on Human Rights. 1. The decision rendered by the Fourth Superior Court of Justice of the Third Judicial District on February 7, 1986, is the only jurisdictional decision which has the effect of reviewing the investigation, and that decision, as we have already indicated, led to a relative or temporary closing, which pursuant to Article 2138 of the Judicial Code in force at the time to Article 2213 of the current Judicial Code, is subject to the principle that the procedure continues to exist only when the possibility of criminal is invalidated by negative prescription and the closing therefore becomes final. 2. Inasmuch as there is a temporary measure in effect with regard to the investigation, it would not be possible, according to the provisions of Article 37 of the Regulations of the Inter-American Commission on Human Rights, to consider that the internal jurisdictional remedies have been exhausted and brought into play. Let us examine the following facts carefully: a) The domestic legislation of the State provides due legal process for the protection of the right or rights that have allegedly been violated. This process is constitutional in rank, and in the present study we have explained the procedural rights accruing to the relatives of the victim, for which reason the petition does not comply with the provisions of subparagraph a) of paragraph 2) of Article 37 of the Regulations of the Inter-American Commission on Human Rights. b) The victim’s relatives have been and are currently given access to the remedies of internal jurisdiction, and they have not been prevented from exhausting them. This was amply explained earlier, when it was established that it was a voluntary decision by the relatives of the victim not to lodge a private complaint and not appear at the investigation to provide the information they claimed to have; neither they submitted new evidence having the legal merit for reopening the proceedings. The foregoing shows that the presumption contained in
subparagraph b) of paragraph 2) of Article 37 of the aforementioned regulations
has likewise not occurred. c)
There has been no delay whatsoever in deciding on the aforementioned
appeals; which means that no further information is required in order to
conclude that the conditions stipulated in subparagraph c) of paragraph 2) of
Article 37 of the Regulations referred to have likewise not occurred. 3.
The Executive Secretariat of the Inter-American Commission on Human
Rights has requested that we report “on the consideration granted by the
Judicial Branch of the Government of Panama to the statements made by Mr. Nicolás
ARDITO BARLETTA, former President of the Republic of Panama, and by Colonel
Roberto DIAZ HERRERA, a photocopy of each of which is appended hereto, with
respect to the deeds which give rise to the case under consideration.” Now then, consideration by the Judicial Branch can only be
reported when the judicial body has taken action, which means that, as provided
in Article 37 of the Regulations of the Inter-American Commission on Human
Rights, the petition is admissible until such time as the domestic
jurisdictional proceeding is reopened and concludes with a final decision or the
statute of limitation for criminal action expires and the provisional closure of
the investigation therefore become final. 4.
The statements made by the Government of Panama in notes DM No. 576 of
July 21, 1986, DGOCTI/DOI/171 of January 28, 1987, and DV No. 082 of May 25,
1987, were in no way intended to limit the competence of the Commission on Human
Rights. Quite to the contrary,
their purpose was to offer a careful and thorough explanation of the applicable
constitutional and legal provisions and of the deeds and circumstances which are
subjects of the proceeding to investigate the death of Panamanian citizen HUGO
SPADAFORA. We have expressed earlier, and do so now more thoroughly,
the reasonable doubt we have with respect to the practical usefulness of
presenting supposedly new evidence to the Inter-American Commission on Human
Rights, inasmuch as a suitable means for the consideration of such evidence
exists within the internal jurisdiction of the State and standards relating to
this matter exist in the Regulation of the Commission. The foregoing supports the approach indicated that it would
be incongruous to subject the State to a review of the alleged new evidence,
through the procedures of the inter-American system which is the guardian of
human rights, since the domestic legislation of the State provides appropriate
judicial remedies for taking cognizance of new material evidence for the
prosecution. 5.
In view of the foregoing concepts, the Government of Panama is of the
following opinion: a.
That the Government of Panama has not violated Articles 4, 5, 7, 13, and
25 of the Convention, as alleged by the petitioner. b.
That the Commission should not recommend that the Government of Panama
conduct a complete and impartial investigation, free from the influence of the
Defense Forces, so that all those responsible would be judged according to the
Panamanian Law, as requested by the petitioner, since, under Panamanian law,
there are legal remedies to consider new evidence supporting the petitioners'
charges, all of which has been confirmed by the Public Prosecutor, and decided
by the Judiciary, both of which are completely independent of the other agencies
and branches of the State. c.
That, in view of the foregoing explanation, it is unnecessary to grant
any time to conduct an investigation, inasmuch as our legislation has
regulations concerning the appropriate deadlines for reopening the proceedings. d.
It is unnecessary to request that the Government of Panama cease or
ensure cessation of any intimidation of the SPADAFORA family, and of any other
person who may be involved in the case, as requested by the petitioner, inasmuch
as there has been no proof or any knowledge whatever of acts of intimidation
such as those alleged to have occurred. In view of the foregoing considerations, the Government of
Panama is of the opinion moreover that, pursuant to the provisions of Article 37
of the Regulations of the Inter-American Commission on Human Rights, the
petition is inadmissible because the judicial remedies available under
Panamanian law have not been involved and exhausted, and the exceptions set
forth in paragraph two, subparagraphs a), b), and c) of the aforementioned
Article 37 of the Regulations of the Inter-American Commission on Human Rights
do not apply, as was explained earlier in detail. 6.
Duly authenticated copies of the following documents are attached for the
appropriate purposes: a.
The decision dated September 17, 1985, of the First Superior Court
District Attorney’s Office of the Third Judicial District. b.
District Attorney’s Decision No. 139, dated December 31, 1985, by the
First Superior District Attorney’s Office of the Third Judicial District. c.
The ruling of February 7, 1986, handed down by the Fourth Superior
District Attorney’s Office of the Third Judicial District. d.
Decision No. 28, of June 25, 1986, by the Office of the Attorney General
of the Nation. e.
The ruling of June 27, 1986, handed down by the Criminal Division of the
Supreme Court. Inasmuch as it has not been possible as to date to obtain a
copy of the report of the Legislative Assembly, and since that body was still in
recess, and just recently reconvened on September 1, as soon as we receive that
report, it will be sent to you in due course for the appropriate purposes. 24.
On September 21, 1987, the petitioners sent their observations to the
Commission, which are transcribed below: On May 7, 1986, the petitioners submitted a petition to the
Inter-American Commission on Human Rights with respect to the arbitrary arrest
and subsequent torture and murder of his brother, Dr. Hugo Spadafora Franco, by
the Government of Panama. On August
6, 1986, the Commission transmitted the petition to the Government of Panama,
which responded on July 21, 1986. In
a note dated August 11, 1986, the Commission transmitted the Government’s
reply, and advised that comments on that reply should be made within 45 days. On September 25, 1986, the petitioner and the International
Human Rights Law Group as co-petitioner, submitted observations on the
Panamanian Government’s reply and a Supplementary Petition, accompanied by an
annex with documentary evidence. The
Commission transmitted to the Government all the documentation submitted by the
petitioners. The Government replied
on January 28, 1987. In its note of
March 3, 1987, the Commission transmitted that reply to the petitioners and
notified them that the y had 45 days to comment on it. On April 17 of this year, the petitioners submitted their observations. In a note dated May 15, 1987, the Government replied to those comments. The Commission transmitted that reply of the Government dated June 4, 1987, to the petitioners, and 45 days for submission of observations on it. On July 17, the petitioners responded to the observations made by the Government in its reply of May 25, 1987. That presentation was transmitted to the Government on July 20, 1987, and replied to on September 8, 1987. These observations concerning the Government’s reply of
the Government dated September 8, 1987, are respectfully submitted to this
Commission within the deadline set. We wish to state for the record that these observations
shall be confined to a concise brief of the issues set forth, due to the
advanced stage of the proceeding, our request for a prompt decision by the
Commission, and primarily the fact that the Government has not submitted any new
arguments. OBSERVATIONS I. ADMISSIBILITY BEFORE THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS In resolution No. 30/86 adopted at its 68th regular session, on September 19, 1986, the Commission ruled favorably on the admissibility of the complaint submitted by Mr. Winston Spadafora Franco, the petitioner, taking particularly into account the fact that the Government had recognized in its reply of August 6, 1986, that Panamanian judicial remedies had been exhausted. A year after that resolution and following many submissions
by the Government in which it states repeatedly that “in this case, all the
judicial procedures established by the laws of the Republic of Panama have been
exhausted,” the Government is now attempting to block the proceedings under
way be alleging non-compliance with the requirement concerning exhaustion of
internal remedies. At this stage,
this is superfluous. The Commission
had already ruled on this issue after having heard both parties. At any rate, the Government’s arguments that the
proceedings were not totally closed to the presentation of new evidence can by
no means be interpreted as indicating that the internal remedies had been
exhausted. First of all, this is so
because in the case of the decisions, the formal procedures in a judicial
investigation have been followed under the guise of meeting the requirements of
the Panamanian criminal law system. Alleging
that there is a possibility of reopening the proceedings with the submission of
new evidence, the petitioner could exercise his rights before the international
forum only in those cases where the perpetrator of crime has been found, or the
period of the statute of limitations has expired.
This result is absurd. Secondly,
the judicial branch of the Panamanian Government has on two occasions, heard the
evidence concerning the murder of Dr. Hugo Spadafora.
In both cases, it reached completely unsatisfactory decisions, as we have
already demonstrated and reiterated above.
The Commission does not cease to have jurisdiction over this matter
because the “right” to submit new evidence in a third predictably
presentation has not been exercised. II.
SUBSTANTIVE LAW A.
Articles 4, 5,
and 7 of the American Convention on Human Rights As we have indicated in our earlier presentations,1
more than enough evidence has been submitted to establish that Dr. Hugo
Spadafora entered Panamanian territory on September 13, 1985; that hew was
arrested in Concepción by a member of the Defense Forces dressed in civilian
clothing ("Bruce Lee”), after having been temporarily detained on two
occasions at the two military border posts of Jacú and La Estrella; and that he
was last seen alive when he was arrested in Concepción, before his decapitated
body showing evidence of severe torture was found on the morning of September
14. In its reply, the Government maintains that he legal
investigation conducted in Panama did not show “that the Government had in any
way been involved in the events connected with the homicide, so the alleged
violation of Articles 4, 5, and 7 of the Convention was rejected out of hand.2
Furthermore, the Government maintains that the Commission’s case file
does not contain any evidence demonstrating such involvement.
It is obvious that the Government has deliberately disregarded both the
evidence contained in this case file and the findings of judicial investigation
(including the Costa Rican investigation transcribed in the Panamanian case
file). This includes the eyewitness
accounts of Alexis Noe Baules Concepción, Dewin Noel Nuñez, Edwin Guerra, José
Asdrubal Ramírez Chavarría, José Angel Chinchilla Ríos, Mario Barrantes
Escorcia, Iván Darío Gonzãlez Justavino, Ricaute Esquivel Rodríguez, and
Santos López Labón.3 In support of its allegations that the petitioner’s
arguments are not pertinent and relevant in demonstrating the facts, the
Government only asserts that the testimony of Edwin Noel Nuñez and Alexis Noe
Baules Concepción, on the one hand, and of Ricaute Esquivel Rodríguez, and
Santos López Labón, on the other, are inconsistent. The conclusion that such testimony is inconsistent and,
therefore, invalid is unsubstantiated. The
petitioners have already dealt in detail with such “inconsistency” in their
observations on judicial investigation in Panama, submitted to the Commission on
October 2, 1986, pages 17 and the following, and referred the Commission to
them. B.
Article 25 of
the American Convention on Human Rights Article 25 of the Convention guarantees the right to effective
protection by the courts. A
patently inadequate and partial judicial investigation that disregards essential
evidence, accepts contradictory alibis, and reaches a superficial decision on
the case–such as the one handed down by the Panamanian authorities–does not
constitute effective judicial protection.1
This is so, regardless of whether or not the petitioners were present in
the proceeding, which, by its very nature, does not require an accusation by a
private party. The
Government has described in detail the petitioner’s right to be present in the
Panamanian courts, and has maintained that “there has been no violation of
Article 25 of the Convention, inasmuch as the victim’s relatives have at all
times enjoyed the legal remedies that are granted to them by Panamanian law.”2
The formality of access to judicial remedies is not enough in itself to
meet the guarantee in Article 25. The
minimum standard in the convention is effective judicial protection.
For the reasons given here and in previous presentations, the Spadafora
family’s formal access to justice is not sufficient to meet that standard; nor
is having completed the various procedural steps required by Panamanian law
sufficient either, without effective legal protection having been granted to the
Spadafora family. C.
Article 13 of
the American Convention on Human Rights The Government maintains that “victim’s relatives as
well as other private citizens have used the media to freely express
their thoughts.”3
Indeed, the Spadafora family and other citizens have suffered and
continue to suffer intimidation and threats by the Government (including by the
Defense Forces) because of their efforts to obtain justice with respect to the
murder of Dr. Hugo Spadafora Franco. (See
Supplementary Petition, pp. 39-41; Statement by Valerio Iodice, dated September
20, 1986, submitted at the hearing on March 23, 1987; statement by Winston
Spadafora Franco, on June 25, 1987, submitted during the hearing on June 26,
1987.) PETITION In its reply dated September 8, the Government of Panama did not provide any new facts or arguments. In view of the present procedural stage of the case and the fact that the events that gave rise to it occurred more than two years ago, and considering that both the Government of Panama and the petitioners have made many presentations, we request that the Commission issue a ruling. In view of the foregoing, we reiterate our petition of July
17, 1987, (pp. 7-8). 25.
That the Government of Panama, on January 25, 1988, requested, by its
note numbered DVM No. 033, reconsideration of resolution No. 25/87, adopted by
the Commission at its 71st Regular Meeting. WHEREAS: 1. In resolution No. 30/86, adopted on September 19, 1986, the Commission ruled favorably on the admissibility of the complaint filed against the Government of Panama by Mr. Winston Spadafora, inasmuch as all the requirements contained in Articles 46 paragraph a) and d) of the American Convention on Human Rights, and Articles 32 and 37-1 of the Regulations of the Commission have been met. 2.
In accordance with the legal information provided by the complainant, by
the Government of Panama and by the Government of Costa Rica, the material facts
in this case are as follows: a)
On September 13, 1985, at 8:00 a.m., Dr. Hugo Spadafora Franco left his
house in San José, Costa Rica, on a trip to Panama.
At 9:00 a.m. on the same day, Dr. Hugo Spadafora boarded the SANSA
airline plane bearing the name “Ricardo Velázquez,” the destination of
which was the city of Coto 47 on the Panamanian border. b)
Dr. Hugo Spadafora arrived at the Coto 47 airport at 10:05 a.m. on
September 13, 1985, and was driven by the taxi driver Mr. Mario Barrantes
Escorcia to the city of Paso Canoas, near the Panamanian border.
At midday he had lunch at the “Los Mellos” restaurant owned by Mr. Iván
Darío González Justavino located in Panamanian territory.
Mr. Gonzãlez Justavino specifically recognized this fact in his
testimony to the Panamanian Ministry of Public Affairs on September 24, 1985. c)
Subsequently, Dr. Hugo Spadafora Franco boarded a bus, on the
“Border-David” line, driven by Mr. Edwin Guerra, as reflected in his
deposition to the Panamanian Ministry of Public Affairs on September 25, 1985.
In his depositions Mr. Guerra said that on September 13, 1985, he
cancelled his trip because he had only three passengers, among them Dr.
Spadafora and Mr. Francisco González Bonilla, alias Bruce Lee. d)
According to the testimony quoted earlier by Messrs. Alexis Noe Baules
and Edwin Noel Núñez, the driver of another bus on the Border-David line and
his assistants, on September 13, 1985, Dr. Hugo Spadafora and Mr. Francisco
Eliecer Gonzãlez Bonilla (Bruce Lee) got on the bus that they were driving to
the city of David after their unsuccessful attempt to travel in the bus driven
by Mr. Edwin Guerra. e)
According to the testimony obtained by both Panamanian and Costa Rican
legal authorities, Dr. Hugo Spadafora Franco was temporarily detained at the
“Jacú” military checkpoint. In
fact, both the bus driver, Mr. Alexis Noe Baules, and his assistant, Mr. Noel Núñez,
agree on this point. Moreover,
Costa Rican legal authorities took a deposition in Costa Rica from Messrs.
Orlando José Ortega Alfonso, Ricaute Esquivel Rodríguez, and Santos López Lobón,
all of Panamanian nationality, who witnessed Dr. Hugo Spadafora’s detention at
the Jacú border point. f)
Subsequently, Dr. Hugo Spadafora was once again forced to get off the bus
at the “La Estrella” military checkpoint, together with Mr. Francisco González
Bonilla (Bruce Lee), and was released a short time later, according to the
testimony of Messrs. Alexis Noé Baules and Edwin Noel Núñez. Lastly, the same witnesses assert that Dr. Hugo Spadafora
Franco, accompanied by Mr. Francisco González Bonilla (Bruce Lee), got off the
bus in the city of Concepción. According
to the statements made by the bus driver and his assistant, Mr. González
Bonilla got off the bus, took Dr. Spadafora’s suitcase, insisted that he
accompany him and was followed by him to an unknown place. g)
On the night of September 13, 1985, according to the investigation
conducted in Costa Rica, a witness, Mr. José Angel Chinchilla Ríos (who lives
some one thousand meters from the place where Dr. Spadafora’s body was found
in Costa Rican territory) said that at midnight on September 13, 1985, near his
place of residence, he saw two green vans, wagons of the type used by the
Panamanian Guard. Moreover, others
who live in the area said that they had heard automobile noise similar to that
made by the type of jeep used by the Panamanian Guard in that sector. h)
On September 14, 1985, at 8:00 a.m., Mr. Franklin Vargas Velverde
discovered the decapitated corpse of Dr. Hugo Spadafora Franco, in El Roblito de
Laurel, 200 meters from the Panamanian border, in Costa Rican territory.
According to the report of the autopsy, performed in Costa Rica, Dr. Hugo
Spadafora had been tortured and decapitated while still alive. 3.
It is a well-known fact that Dr. Hugo Spadafora entered Panama on
September 13, 1985, and was later temporarily detained at two border military
posts (Jacú and La Estrella, respectively), as corroborated in statements made
by the following witnesses: Mario
Barrantes Escorcia, the taxi driver who drove Dr. Spadafora from Coto 47 to Paso
Canoas, a city near the Panamanian border; Iván Darío González Justivino,
owner of the “Los Mellos” restaurant, located in Panamanian territory, where
Dr. Spadafora had had lunch; Edwin Guerra, driver of the first bus on the
border-David line on which Dr. Spadafora tried to travel; Alexis Noe Baules,
driver of the bus on the Border-David line, that transported Dr. Spadafora to
the city of Concepción; Edwin Noel Núñez, assistant driver of the bus on the
Border-David line that transported Dr. Spadafora to the city of Concepción;
Orlando José Ortega Alfonso, Ricaute Esquivel Rodríguez, and Santos López Lobón,
witnesses who saw Dr. Spadafora being detained for the first time, at the Jacú
military checkpoint located in Panamanian territory. 4.
In his judgment No. 139, dated December 31, 1985, quoted in part by the
Government of Panama in its reply dated August 6, 1986, the First Superior Court
District Attorney indicated that the “Investigation conducted by the Ministry
of Public Affairs has been able to establish beyond a doubt that Dr. Hugo
Spadafora Franco died, that his corpse was discovered in La Quebrada El Roblito
by Costa Rican authorities, and that Spadafora Franco’s death, the certificate
of which is found in Folio 190, occurred in Laurel, in the Republic of Costa
Rica.” In view of the foregoing,
the District Attorney recommended dismissal of the case against Messrs.
Francisco González Bonilla, Omar Vega Miranda, and Eliecer Ramos, all members
of the Panamanian Defense Forces. 5.
Following the investigation conducted by the Ministry of Public Affairs
in Costa Rica, the Fourth Superior Court of the Third Judicial District, in a
decision dated February 7, 1986 (quoted in part by the Government of Panama in
its reply of August 6, 1986), decided, by a majority vote, to dismiss the case
against the three individuals accused González, Vega, and Ramos, thus accepting
the arguments of the First Superior Court District Attorney.
In point of fact, the Government of Panama reproduced the decision
adopted by the members of the Fourth Superior Court in part as it did not
indicate the evidence that led that court to decide on a dismissal the case and
also did not refer to the dissenting vote case by Judge Andrés A. Almendra. 6.
In accordance with the information provided by the Government of Panama
on August 6, 1986, Mr. Winston Spadafora Franco on June 17 of this year, filed a
charge with the Office of the Attorney General of the Republic against General
Manuel Antonio Noriega, for the murder of Dr. Hugo Spadafora, to which he
attached a series of newspaper clippings. 7.
Pursuant to legislation for criminal proceedings, the Office of the
Attorney general of the Republic transferred review of the case to the Criminal
Chamber of the Supreme Court, as per Decision No. 28, of June 25, 1986.
In view of the fact that a proceeding had been initiated in the matter,
which had been temporarily stayed, the Office of the Attorney General decided to
consider the possibility of reopening the proceeding, on the basis of the
newspaper clippings submitted by the plaintiff, and finally concluded that
“the newspaper clippings presented do not satisfy the procedural assumptions
required to reopen the case…”, for which reason it finally recommended not
to proceed with the accusation made by Mr. Winston Spadafora. 8.
In its decision dated June 27, 1986, the Criminal Chamber of the Supreme
Court accepted the opinion of the Office of the Attorney General and declared
that it could not begin a new proceeding, inasmuch as one had already been
initiated and discontinued. At the
same time, the Supreme Court also ruled that it would likewise not be possible
to allow it to reopen the proceeding against Messrs. Omar Vega Miranda, Eliecer
Ramos, and Francisco González Bonilla, since as the case against them had been
dismissed. Finally, the Supreme Court evaluated the new evidence
submitted by Mr. Winston Spadafora, which consisted of newspaper clippings, to
consider the possibility of reopening the proceeding, this time against General
Manuel Antonio Noriega. After its
review, the Supreme Court decided to reject the charge filed by Mr. Winston
Spadafora, maintaining that the evidence submitted was not sufficient to warrant
a reopening of the proceeding. In
that regard, it should be recalled that the investigation begun on September 17,
1985, by the First Superior Court District Attorney, was also prompted (as was
recognized by the Government of Panama itself, in its reply dated August 6,
1986) by newspaper reports published in “La Prensa” and “Extra”
newspapers, which accused three members of the Defense Forces of Panama of the
murder of Dr. Hugo Spadafora Franco. 9.
In its reply dated August 6, 1986, the Government of Panama concluded
that in the present case the remedies under domestic jurisdiction had been
completely exhausted, inasmuch as the proceeding had been dismissed in favor of
the accused Messrs. Vega Miranda, Ramos, and González Bonilla, and that there
were to be not grounds for reopening the case.
In that connection, the Government of Panama pointed that “in this
case, all of the jurisdictional procedures established by the laws of the
Republic of Panama have been exhausted.” 10.
In its replies to the Commission, the Government of Panama has merely
given partial information concerning the legal proceedings conducted to exhaust
the remedies under domestic jurisdiction, without reviewing the substance of the
matter. 11.
In accordance with the position taken by Judge Andrés A. Almendral C. of
the Fourth Superior Court of Justice of Panama, in his dissenting vote, dated
February 7, 1986, the legal investigation conducted by the Panamanian courts to
clarify the homicide of Dr. Spadafora contains serious contradictions, gaps, and
inconsistencies. In that regard,
the Commission agrees with the aforementioned judge, to the effect that the
provisions of Article 2136 of the Legal Code of Panama regarding grounds for
dismissal do not warrant a dismissal of the case. Moreover in this regard, the Commission wishes to draw
attention to a serious error contained in the legal investigation conducted by
the First Superior Court District Attorney of the Third District of Panama, who
in the preambular part of his resolution, maintains that, in accordance with the
report of the autopsy performed by the Costa Rican coroner, Dr. Spadafora’s
death occurred in Laurel, Costa Rica. The
documentation that the Commission obtained from the Government of Costa Rica
indicates that the decapitated body of Dr. Spadafora was found in Laurel, but in
now way states that his death occurred there. 12.
In its reply dated May 26, 1987, the Government of Panama maintained that
“if we continue on the assumption that the Honorable Inter-American Commission
on Human Rights is interested in determining whether the procedures under
domestic jurisdiction have been complied with in our country, we will have to
refute supposed declarations contained in the investigations conducted by other
governments, of which the authorities of the Republic of Panama have not
officially taken cognizance.” In
this regard, it should be point out that the problem of exhaustion of domestic
remedies is not a matter of controversy between the parties, since as both agree
that such remedies have been fully exhausted.
Moreover, as indicated in resolution No. 30/86, adopted by the Commission
at its 68th session, the express recognition by the Government of Panama that
the domestic remedies had been exhausted was one of the preambular paragraphs of
which special account was taken when ruling in favor of the admissibility of the
case in question. Moreover, in its aforementioned declaration, the Government
of Panama disqualifies the formal testimony of some witnesses to the Costa Rican
legal authorities in the proceeding initiated in Costa Rica to shed light on the
homicide of Dr. Hugo Spadafora Franco. In this regard, the Commission would like to point out that,
according to information provided by the Government of Panama, the domestic
judicial bodies in Panama responsible for conducting an investigation into Dr.
Spadafora’s homicide have, on several occasions in their resolutions referred
to the coroner’s investigation conducted in Costa Rica.
Moreover, as stated in the previous preambular paragraph, the First
Superior Court District Attorney was mistaken when he said that the autopsy on
Dr. Hugo Spadafora, which was performed in Costa Rica, indicated that his death
had occurred in Costa Rican territory. 13.
The first versions of the facts provided by different witnesses in this
case, which implicate members of the Panamanian Defense Forces in the murder of
Dr. Hugo Spadafora Franco, was subsequently confirmed in statements made on June
11, 1987, by Mr. Nicolás Ardito Barletta, former President of the Republic of
Panama and on June 10, 1987, by Colonel Roberto Díaz Herrera. 14.
The legal investigations conducted in Costa Rica clearly demonstrates as
stated in the report drawn up by the Legal Investigation Organization, that
“Mr. Hugo Spadafora was killed in Panamanian territory, and his body was
disposed of in Costa Rican territory.” 15.
The Commission has the necessary criteria to conclude that the Government
of Panama is responsible for the murder of Dr. Hugo Spadafora Franco. 16.
That the Commission, seated at its 72nd Regular Meeting, after studying
the request for reconsideration of this resolution presented by the Government
of Panama, decided unanimously to confirm its resolution, in view of the fact
that the observations made by the Government of Panama, did not credibly detract
from the Commission’s original conclusions. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RESOLVES: 1.
To declare that the Government of Panama has violated Articles 4 (the
right to life); 5 (the right to personal integrity); and 7 (the right to
personal freedom) embodied in the American Convention on Human Rights, to which
Panama is a State Party, because it is responsible for the death of Dr. Hugo
Spadafora Franco. 2.
To declare that the Government of Panama has violated Article 8 (legal
guarantees) and Article 25 (the right to legal protection) enshrined in the
American Convention on Human Rights, to which Panama is a State Party, because
of its failure to conduct an impartial, exhaustive legal investigation into the
homicide of Dr. Hugo Spadafora Franco. 3.
To recommend that the Government of Panama order an exhaustive and
impartial investigation into the deeds that have been alleged, to determine the
individuals responsible for the murder of Dr. Hugo Spadafora Franco, and to
bring them to justice so that they may receive appropriate legal penalties. 4.
To recommend that the Government of Panama report to this Commission
concerning the results of the investigation into the murder of Dr. Hugo
Spadafora Franco, within 60 days of the date of this resolution. 5.
To request that the Government of Panama guarantee the safety of and
grant the necessary protection for the family of Dr. Hugo Spadafora Franco, as
well as of all persons who have taken part as witnesses, or in any other manner
in this case. 6.
To recommend that the Government of Panama accept the jurisdiction of the
Inter-American Court of Human Rights with respect to this case. 7.
To include this resolution in its Annual Report for the purposes of
Article 63.g of its Regulations and to so inform the plaintiff.
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