Salomón Homsani Abadi et al v. Panama, Case 11.799, Report No. 102/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 457 (2000).
SALOMÓN HOMSANY ABADI, MARCELA HOMSANY ABADI
AND EZRA HOMSANY ABADI
October 16, 2000
On August 5, 1997, the Inter-American Commission on Human Rights (hereinafter
"the Commission," "the Inter-American Commission," or
"the IACHR") received a petition against the State of Panama (hereinafter
"the State," "the Panamanian State," or "Panama"),
submitted by the Homsany siblings: Salomón Homsany Abadi, Marcela Homsany
Abadi, and Ezra Homsany Abadi (hereinafter "the petitioners") for
violation of the articles of American Convention on Human Rights (hereinafter
"the American Convention," or "the Convention") pertaining
to the right to a fair trial (Article 8), right to protection of their home
(Article 11), right to freedom of movement (Article 22), right to equality
before the law (Article 24), right to property (Article 21), right to personal
liberty (Article 7), right to freedom of association (Article 16), and political
rights (Article 23).
As a result of an economic and political crisis in Panama in 1988,
the State decided to replace the currency with securities called "IOUs."
As a result, the shops owned by the petitioners began to receive IOUs
issued by the State, and, in order to redeem them, they put in place a series
of credit transactions with the National Bank of Panama [Banco Nacional de Panamá]. As
a result of these credit transactions, Mr. Ezra Homsany and Ms. Marcela Homsany
were detained. The petitioners
allege that they were arbitrarily detained and also that Mr. Salomón Homsany
was prosecuted in absentia and failed to receive the procedural due process,
since he was out of the country when his siblings were detained.
The State views the petition as inadmissible since the trial has not
been concluded at the first instance level, and the appellate and other remedies
provided for in the Code of Civil Procedure of Panama are pending.
The State argues that the petition is inadmissible because it was filed
for the sole purpose of instituting proceedings concomitant with those currently
taking place in Panama. Also,
the State argues that the petition is unfair because all procedural guarantees
have been accorded to the petitioners and that the petition is reckless, since
an attempt is being made to furnish an international organization with information
that is far removed from the reality.
After reviewing this case, the Commission concludes that the petitioners
have not exhausted domestic remedies and that the exceptions provided for
in Article 46(2) of the Convention are not applicable.
Consequently, the Commission decides to declare the case inadmissible
pursuant to Article 47(a) of the American Convention, to transmit this decision
to the parties, to publish it, and to order its inclusion in its Annual Report.
PROCESSING BY THE COMMISSION
On August 4, 1997, the Commission received a petition involving the
State of Panama, submitted by Costa Rican attorney Gonzalo Monge Núnez on
behalf of Salomón Homsany Abadi, Marcela Homsany Abadi, and Ezra Homsany Abadi
for violation of the articles of the Convention pertaining to the right to
a fair trial (Article 8), the right to property (Article 21), the right to
freedom of movement and residence (Article 22), and the right to equal treatment
before the law (Article 24).
The Panamanian State responded on March 20, 1998, seeking the inadmissibility
of the petition because the petitioners had or had had other proceedings instituted
at the national level and consequently were free to avail themselves of all
these legal resources in order to have their claims addressed.
This response generated subsequent letters until the last one, which
was received by the Commission from the State on February 25, 2000.
On September 24, 1999, the petitioners asked the Commission to begin
proceedings aimed at achieving a friendly settlement.
This friendly settlement proposal was rejected by the State on November
12, 1999. In its note, the Panamanian
State maintained its position regarding the inadmissibility of the petition
under the American Convention.
On February 16, 2000, the petitioners indicated that since they had
not received a favorable response to the friendly settlement proposal, the
processing of the case should continue in accordance with the Convention and
Regulations. Lastly, on February
25, the Commission acknowledged receipt of the abandonment of friendly settlement
proceedings by the petitioners and of the desire to continue processing of
the case pursuant to the provisions of the American Convention.
This note was forwarded to the Panamanian State on March 1, 2000.
POSITION OF THE PARTIES
Position of the petitioners
9. Mr. Salomón Homsany
Abadi is a Panamanian businessman involved in the sale of mass consumption
goods and realty. He had a business
in Panama called "Almacén El Depósito,"
which was arbitrarily seized by the State.
In 1988, an international embargo was imposed on Panama and, as a result,
banks ceased all their operations. A
liquidity problem ensued, which prevented the State from paying the salaries
of government employees, and, in view of that situation, the Government decided
to replace the currency by paying employees with securities called "IOUs,"
which were not accepted in the business community.
The Almacén El Depósito business,
owned by Mr. Salomón Homsany, was the only business that accepted the IOUs
issued by the Government. Because
of this, Mr. Manuel Solís Palma, then President of the Republic, visited Mr.
Homsany to express the appreciation of the Government of Panama.
The President of the Republic of Panama offered him assistance through
the National Bank of Panama. In
light of the situation and of the offer of the Government, Mr. Salomón Homsany
opened a line of credit with the National Bank of Panama in 1989 in order
to operate the companies and redeem the instruments issued by the Government.
After the United States invasion, the State, through the National Bank
of Panama, closed the lines of credit opened for Mr. Homsany.
This action was a breach of contract and led to a series of violations
of the American Convention, namely:
Violation of the right to due process:
the petitioners claim violation of this right, citing the following:
Violation of the principle of legality (Article 7(5) of the Convention).
The petitioners claim violation of the principle of legality due to
the fact that they were accused of "embezzlement," a charge that
must meet a specific criterion: the person must be a civil servant and the
petitioners are not and have never been civil servants.
Violation of the right to defense (Article 8 of the Convention).
The petitioners claim violation of the right to defense since Mr. Homsany's
defense attorney, Marcela Homsany Abadi, was jailed, leaving Mr. Homsany unable
to prepare his defense. The State,
arguing that the attorney, who is the sister of Mr. Homsany, knew of and was
an accomplice to the offenses of which he is accused, instituted proceedings
against her. The petitioners
also allege violation of Article 8(2)(c) of the American Convention with respect
to the failure to grant the accused adequate time and means for the preparation
of their defense. On May 27,
1997, the Fourth Criminal Judge of the First Judicial Circuit of Panama dismissed
the attorneys defending the petitioners and replaced them with court-appointed
attorneys. The petitioners maintain
that because of this, the new attorneys did not have the time needed to prepare
the defense, in view of the absence of the accused.
Violation of the principle of the presumption of innocence (Article
8(2) of the Convention). The
petitioners allege violation of the principle of the presumption of innocence
in view of the fact that the Attorney General of Panama made statements condemning
the petitioners before a ruling had been handed down with respect to their
Violation of the right to a juez
natural [an independent judge whose position is created by law with general
jurisdiction over an issue before or at the time it arises] (Article 8(1)
of the Convention). The petitioners allege violation of this principle due to the
fact that the only judges that heard the case and declared that no laws had
been violated were removed from their positions. They also claim that they were investigated by the Office for
determining responsibility in matters related to state property, an administrative
entity assigned to the Office of the Comptroller General of the Republic which
has authority to investigate public officials, and that the petitioners involved
in these proceedings are not public officials.
They claim bias and partiality by the courts since the Fourth Criminal
Judge of the First Judicial Circuit of Panama, Ms. Damaris Caballero, was
removed from her position after dismissing the case against the petitioners
on May 23, 1995 because of insufficient evidence linking them to the offense
of embezzlement, and, as a result, ordering their immediate release.
They also claim that the investigation conducted by the Office for
determining responsibility in matters related to state property also violates
the principle of juez natural, since
it is an entity that was created after the acts under investigation.
Violation of the right to be informed of the nature and cause of the
charge (Article 8(2), 7(4), and 7(5) of the Convention).
The petitioners claim that they were subjected to prosecution without
prior notification. Mr. Salomón
Homsany also alleges that no statement was obtained from him and that he was
prosecuted in absentia without observance of due process guarantees.
He also alleges that he was not prosecuted within a reasonable time
frame since more than ten years have elapsed since the occurrence of the events
under investigation, and that a court ruling has been handed down at the first
instance level only. More than
eighteen months elapsed between the time of the public hearing and a ruling.
Violation of the right to be present during proceedings (Article 8(1)
of the Convention). The petitioners allege that they were prosecuted in absentia,
since oral proceedings were held in the absence of Mr. Salomón Homsany, citing
as an example the proceedings held on August 18, 1997.
They were criminally prosecuted for debt (Article 7(7) of the Convention).
The petitioners claim that they were criminally prosecuted for
debt, in violation of Article 7(7) of the American Convention.
Violation of the non bis in idem principle (Article 8(4) of the Convention).
The petitioners claim that they were prosecuted several times for the
same acts in the criminal and civil courts by the Office for determining responsibility
in matters related to state property, and in the summary jurisdiction court
established by the National Bank of Panama to collect this debt.
Violation of the right to freedom of association (Article 16 of the
Convention). The petitioners
allege violation of the right to freedom of association due to the fact that
the State of Panama forced them to come together to form the Homsany Commercial
Group, which did not exist, and prevented them from separating the debts of
Mr. Homsany owed to the National Bank of Panama.
A new commercial group was formed, and the right to freedom of association
also covers the freedom to refrain from association.
Also, the State lifted the property protection for all companies with
which the petitioners were associated, seizing the assets of these companies,
which are viewed as the property of the shareholders and not the legal entities.
Violation of the principle of the non-retroactivity of the law (Article
9 of the Convention). The petitioners
allege that the acts of which they are accused occurred prior to 1989 and
that the State issued Decree 36 on February 10, 1990 creating a special court
for special proceedings and having the authority to prosecute acts that took
place before the decree was enacted, in violation of Article 9 of the American
Convention. The petitioners are
citing the principle of non-retroactivity of the law as grounds for challenging
this administrative entity.
Violation of the right to property (Article 21 of the American Convention).
The petitioners allege violation of the right to property set forth
in the American Convention due to the fact that their bank accounts were frozen
and the assets of Mr. Homsany Abadi and his companies seized by the State
forces, represented by an entity called "the Office for determining responsibility
in matters related to state property," which the petitioners maintain
was created to handle the Homsany case.
The petitioners assert that the assets were confiscated by the State
and no compensation was provided, and that if the assets had to be seized,
this should have been done by a court rather than an administrative entity.
Violation of the right to equality before the law (Article 24 of the
American Convention). The petitioners
maintain that their release from prison on bond was denied, in violation of
the rules governing the right to equal treatment before the law.
In addition, they allege that a special court was created to prosecute
them, an act that is also a violation of the principle of equal treatment
before the law.
Violation of the right to personal liberty (Article 7 of the American
Convention). The petitioners maintain that they are victims of persecution
by the State, a situation that has resulted in psychological torture for the
entire family. The petitioners
claim that an arrest warrant has been issued for Mr. Salomón Homsany, the
purpose of which is to detain him for debts owed to the National Bank of Panama.
Violation of the right to freedom of movement and residence (Article
22 of the American Convention). The
petitioners allege violation of this right, since they were not allowed to
live and move around freely in their country, in violation of Article 22 of
the American Convention.
Violation of political rights (Article 23 of the American Convention).
The petitioners allege that their political rights were violated when
the ruling of July 22, 1999 was issued ordering the petitioners to 80 months
in prison for "embezzlement" and barring them for life from the
exercise of public functions. The
petitioners also allege that they were ordered to long-term punishment, in
violation of their fundamental rights.
The petitioners also seek to prove political persecution by arguing
that as a result of these proceedings, the Government of Mexico granted asylum
to Mr. Rafael Arosemena, the Manager of the National Bank of Panama, after
the State ordered his return for granting credit to the petitioners to redeem
the IOUs that they had received.
Position of the State
As indicated in numbered paragraph 3 of this report, the State, in
its response to the petition of March 20, 1998, sought to have it declared
inadmissible on grounds that it was time-barred, improper, unfair, and reckless.
It also advanced the following as the basis for its arguments:
The acts under investigation in the criminal proceedings against the
petitioners pertain to charges related to the misappropriation of public funds
from the National Bank of Panama amounting to US$8,688,478.62.
The State reports that Mr. Rafael Arosemena is responsible for this
misappropriation of public funds in his capacity as Manager of the National
Bank of Panama, and that he was aided and abetted by the petitioners.
The State maintains that the criminal file on the accused shows that
there was prior agreement among them to devise ways that would enable them
to obtain the money without having to go through the administrative controls
of the National Bank of Panama (approval of the Board of Directors) and, to
that end, they arranged for the money to be obtained through the granting
of overdrafts and the issuance of letters of credit to thirty-eight corporations
that were formed for the sole purpose of opening accounts and obtaining the
credit facilities previously agreed upon.
The aim was to circumvent the control mechanisms of the National Bank
of Panama by channeling massive sums through each of the thirty-eight companies.
This was done without any type of bank guarantee, with workers of the
companies of the petitioners serving as the legal representatives of these
companies. These persons admitted
that they did not know the manager of the National Bank of Panama and did
not have any business dealings with Mr. Arosemena.
Of the few companies where the names of the Homsany brothers appeared
on documents, they changed their boards of directors and workers to give the
appearance that these workers were co-debtors of the National Bank of Panama,
thereby ensuring that they could not be summoned to appear in civil court
since their names did not appear on any document as debtors, underwriters,
or guarantors of these debts.
The State reports that this matter did not involve simple commercial
transactions as the petitioners have sought to demonstrate, but rather illegal
operations involving misuse of Panamanian State funds.
Of the thirty-eight overdrafts approved for the thirty-eight companies,
the balance of thirty-two of these companies was only the minimum required
by law, that is B 500.00 for opening current accounts. Despite this, they received B 3,650,000.00 in overdrafts.
Also, the State maintains that these overdrafts were granted to the
thirty-eight companies when only five of them were actually operating.
The State maintains that it can be proven that the companies used by
Messrs. Homsany for the misappropriation of millions from the National Bank
of Panama were merely paper companies.
In other words, they never engaged in any commercial or manufacturing
business whatsoever other than to apply for an overdraft from the National
Bank of Panama. Those companies
did not have a commercial or industrial license, a single taxpayer's identification
number, tax returns, stock records, instruments, or registers, as verified
in the civil courts. In addition,
of the five that were operating, three had reported losses on their tax returns
in previous years and the other two had paid taxes on estimated returns, which
indicates that these companies were used exclusively to withdraw funds from
the National Bank of Panama. The
State points to a number of unusual elements involving these credit transactions:
Mr. Rafael Arosemena, in his capacity as Bank Manager, personally approved
forty-three credit facilities for the June - November 1989 period, in clear
violation of the internal auditing regulations and organic law of the National
Bank of Panama.
Thirty-eight of the credit facilities were given as temporary overdrafts
without real guarantees and documented solely by IOUs, only two of which were
signed before a notary.
The five remaining credit facilities were granted in order to open
letters of credit, again without real guarantees, and were documented only
by letters of exchange.
It was established that the legal representatives of the companies
of Messrs. Homsany serving as co-debtors for these liabilities were totally
insolvent and were unaware of the responsibilities assumed with respect to
The State notes that although the offense of embezzlement is applicable
to public officials, accessories to the offense do not have to be public officials.
Consequently, the petitioners are being investigated for their criminal
involvement with the Manager of the National Bank of Panama, Rafael Arosemena,
who was a government official.
The State maintains that the petitioners were always in a position
to defend themselves, and that they were duly represented at all times by
attorneys who were always free to submit evidence and to avail themselves
of the different resources provided for in domestic law.
It also reports that Ms. Marcela Homsany was detained not because she
is an attorney, but because of her active participation in the misappropriation
of money from the National Bank of Panama.
The State reports that in Panama, attorneys do not have immunity and
thus may be prosecuted like any other citizen for criminal conduct, as happened
with Ms. Marcela Homsany Abadi. The
State also reports that the petitioners were informed throughout the proceedings
of the charges against them. It
maintains that the file related to the criminal proceedings contains the duly
substantiated investigative order issued by the First Assistant Prosecutor
and the statements related to the investigation provided by Ezra Homsany and
Marcela Homsany. The State maintains
that when Salomón Homsany learned that an order had been issued against him,
he decided to go into hiding in order to avoid receiving summonses from the
Panamanian judicial authorities. Consequently,
the petitioners were duly represented at all times.
With regard to violation of the right to a
juez natural, the State reports that former Judge Damaris Caballero was
removed by the appellate court for reasons unrelated to the case involving
With regard to the removal of attorneys, the State asserts that as
the file indicates, the Fourth Criminal Judge of the First Judicial Circuit
of Panama tried, over a period of one year, on six occasions, to hold a hearing
on the merits and the attorneys made excuses in order to avoid this hearing.
Their excuses included questionable medical certificates, since it
was noted that one of the attorneys who had submitted a medical certificate
was providing assistance to another client on the date and at the time of
the hearing scheduled by the Fourth Criminal Judge of the First Judicial Circuit.
In light of the foregoing, the Judge issued an order for a hearing
that was agreed upon by all the attorneys and which permitted the intervention
of court-appointed defendants if any of the attorneys for the defense continued
to use delaying tactics. The
hearing was finally held over the course of a few days, with the participation
of the attorneys for the defense and the Office of the Public Prosecutor.
After hearing from almost all the witnesses, attorneys Sidney Sitton
and Rafael Rodríguez asked that relatives who could not be located through
subpoenas be summoned, even though they were aware of the fact that the hearing
would be held. When the judge
realized that this was another delaying tactic, he decided to continue the
hearing and these attorneys did not attend.
As a result, the court-appointed attorneys who had been alerted beforehand
that they might have to serve until the matter was concluded, were called. After the hearing was concluded, the aforementioned attorneys,
who, according to the State, were employing another delaying tactic, filed
a motion for unconstitutionality against a number of articles of the Panamanian
judicial code, which suspended the competence of the first instance Judge
until a decision was made with regard to the application. Once the Supreme Court had made a decision on this legal action,
the case was again returned to the First Instance Judge (the Fourth Judge),
thereby permitting him to hand down a first instance ruling.
The State maintains that the Office for determining responsibility
in matters related to state property is fully competent to hear and make decisions
regarding the responsibility of public officials, individuals, or corporations
with respect to the State. It
also indicates that this is not a special office to which functions were assigned
retroactively, since mention is made of it in the 1972 Panamanian Constitution.
This Office was known as the Audit Office of Panama, and it was regulated
and replaced in 1990 with a new entity called "the Office for
determining responsibility in matters related to state property" (DRP),
which was instructed to assume responsibility for matters that were pending.
When it assumed the functions of the Audit Office of the Office of
the Comptroller General of the Republic, the Office for determining responsibility
in matters related to state property was given express authorization to hear
and make decisions on all matters related to responsibility in the area of
public property on the part of not only employees and fiscal agents, but also
individuals or corporations who may have misused public property in any way
for their own benefit, the benefit of a third party, and in general, all persons
who may have improperly derived benefit from public property.
The State reported that the principle of freedom of movement and residence
has not been violated since the petitioners are free to return to the country.
It also states that the petitioners have been duly informed of all
action taken in the context of the criminal proceedings against them; consequently,
it is up to them to decide whether or not they should make a personal appearance
at the proceedings.
The State argues that the petitioners have not been subjected to criminal
prosecution for commercial debt but for the illegal misappropriation of millions
from the National Bank of Panama, in clear violation of the laws and policies
of that institution. Also, it
maintains that they have not been convicted of the same offenses twice, since
proceedings that take place in the criminal courts are separate from those
instituted by the Office for determining responsibility in matters related
to state property. Criminal proceedings
are aimed at determining the criminal responsibility of persons who have engaged
in conduct classified as an offense, while the Office for determining responsibility
in matters related to state property in the Office of the Comptroller General
of the Republic undertakes procedures, not investigations, that are aimed
at determining responsibility for actions prejudicial to the State by the
persons implicated, with the aim of recovering misappropriated assets or funds.
Consequently, since they are two different legal structures, the claim
cannot be made of dual prosecution of the same case.
With regard to violation of the right to association claimed by the
petitioners, the investigation itself establishes that the petitioners conspired
with the Manager of the National Bank of Panama to misappropriate funds through
The State reports that the petitioners were afforded every opportunity,
from a procedural and defense standpoint, to avail themselves of their rights
with respect to the proceedings. The
State maintains that their claim of not having access to the legal resources
provided for in Panamanian legislation is patently false.
This is borne out in the file which indicates that the accused availed
themselves of all the legal resources available to them to exercise their
rights and refute the evidence, and which gave rise to the observations of
the court. The actions taken, all contained in 28 volumes in the file,
Application for certification responded to by the court by means of
certification dated June 30, 1994;
Application for certification responded to by the court on July 5,
Application for nullity of proceedings; decision delivered by the court
on March 21, 1995;
Application for the lifting of precautionary measures; decision delivered
on September 8, 1995;
Application for the withdrawal of precautionary measures; decision
delivered on December 19, 1994;
Application for evidence of witnesses; decision delivered on December
Application filed in a personal capacity by Marcela Homsany regarding
practice of the legal profession; decision delivered on October 6, 1995;
Appeal for reconsideration with a supplementary appeal filed by Marcela
Homsany as the representative for Ezra Homsany; decision delivered on November
Application for nullity of all the matters submitted for the technical
defense; decision delivered on October 11, 1995;
The detention order for the petitioners was well-founded and supported
by evidence. The State reiterates
that this ruling does not pertain to civil debt but rather the commission
of the offense of embezzlement.
Lastly, the State indicates that the proceedings against the petitioners
are not political, but rather legal and criminal in nature.
Consequently, the reasons advanced by the Government of Mexico for
granting asylum to Mr. Arosemena cannot be cited as evidence.
Competence of the Commission
ratione personae, ratione materiae,
ratione temporis and ratione loci
13. Panama ratified
the American Convention on June 22, 1978.
As a result, the Commission has competence ratione
personae to hear this case under Article 33 of the Convention.
With regard to passive competence ratione
personae, the petitioners attribute the violations to a State Party, which
in this case is Panama. With regard to active competence ratione personae, petitioners allege that they were adversely affected
by these violations, and are thus direct victims of these violations.
14. The acts alleged
by the petitioners pertain to rights covered by the Convention (right to due
process, right to freedom of domicile, right to freedom of movement, right
to equality before the law, right to property, right to personal liberty,
right to freedom of association, and political rights),
to which Panama is a Party. Consequently,
the IACHR notes that it has competence ratione
materiae to hear the petition.
15. The Commission
notes that it is competent to hear this case.
First, it has competence ratione
temporis with respect to the acts that violate the American Convention
since Panama submitted the instrument of ratification of the American Convention
on June 22, 1978 to the Secretary General of the Organization of American
Other admissibility requirements
Exhaustion of domestic remedies
16. Article 46(1)(a)
and 47 of the American Convention indicate that the inter-American system
is to be used on a supplementary basis, hence the need to have sought and
exhausted remedies in local courts.
In principle it is the State that must resolve violations based on
its domestic law, and if it fails to do so, then the matter is referred to
the inter-American system.
17. As a result of
this supplementary feature, the State must raise an objection regarding the
failure to exhaust remedies, and indicate, in such circumstances, the effective
remedies that have not been exhausted. In subsequent letters, the State indicated the different phases
of the proceeding. In analyzing the failure to exhaust these remedies, an indication
must be provided of the actual remedies that were available to the petitioner
and which he failed to use, and when the State maintains that these remedies
were not exhausted, it must indicate what these remedies are, as was done
by the State of Panama.
18. In addition,
the State of Panama reported that on the date of submission of the petition,
a ruling had not been handed down at the first instance level of the criminal
proceedings against the petitioners and Mr. Rafael Arosemena, the former Manager
of the National Bank of Panama, and that a number of remedies had to be exhausted,
in particular, the following legal actions:
Appeal to a higher court against the ruling of July 22, 1999 issued
by the Fourth Criminal Judge of the First Judicial Circuit of Panama.
The decision related to this appeal is to be handed down by the appellate
court of Panama.
Appeal to the Supreme Court, in the event that the appellate court
of Panama upholds the ruling of the first instance Judge.
Motion for non-trial, which does not have to be filed for consideration
of the exhaustion of domestic remedies and the other possibilities listed
in the foregoing numbered paragraph.
The State points out that none of the aforementioned mechanisms was
used by the petitioners, since the first instance criminal proceedings ended
on July 22, 1999, with a ruling issued by the Fourth Criminal Judge of the
First Judicial Circuit of Panama. The
State goes on to argue that Messrs. Homsany were allowed to participate in
the criminal proceedings and were offered maximum procedural guarantees, and
that they were permitted to exercise fully their right to defense so much
so that they abused that right, by seeking to block, through the use of appeals
and legal actions permitted by law, a decision on the merits related to the
criminal trial against them. Not
only were they allowed to exercise their right to defense, the State maintains,
but they took advantage of the judicial system by employing such a variety
of delaying tactics that they managed to achieve postponement of a ruling
against Mr. Rafael Arosemena, the former Manager of the National Bank of Panama
until July 22, 1999, for perpetrating the offense of misappropriation and
Messrs. Homsany, as the main accomplices to this offense.
20. The petitioners,
in their comments to the response of the State on February 16, 2000, reported
that although there are domestic remedies in Panama that have not been exhausted,
this is not necessary in this case because of the absence of due process.
Consequently, the exception to the exhaustion of domestic remedies
provided for in Article 46(2) of the Convention is applicable.
The petitioners also report that they exhausted the remedies that were
available to them, namely:
Writ of habeas corpus, rejected
Appeal for protection and constitutional guarantees, rejected
Further appeal, rejected
Motions, pleas, and nullities, all rejected
21. The petitioners
cite the case law of the Inter-American Court of Human Rights, which has determined
that all domestic remedies do not have to be exhausted when they are delayed
without justification or are not effective.
Domestic remedies must be appropriate and effective, and, in the absence
of these two elements, remedies do not have to be exhausted.
In the view of the petitioners, the resources in Panama are not efficient,
and they have indicated that:
Since the proceedings and investigations have taken place over a period longer than ten years and to date have not been concluded, then the State cannot seek, at this point, the exhaustion of domestic remedies.
22. Moreover, the
petitioners maintain that in this case political persecution took place and
the rules of due process were violated.
The Inter-American Court has stated that the exhaustion of domestic
remedies must be interpreted based on the circumstances, particularly when
justice has been denied.
23. As has been stated,
the petitioners allege that the proceedings lasted ten years and thus were
not concluded within a reasonable time frame.
Consequently, according to the petitioners, their case should be accepted. The Inter-American Court of Human Rights, following the case
law of the European Court, stated, in the Genie Lacayo case, that in order
to determine whether the time period for proceedings was reasonable, consideration
must be given to the following:
Three elements must be taken into account in determining whether the time
period over which the proceedings took place is reasonable: (a) the complexity
of the matter; (b) the procedural actions of the interested party; and (c)
the conduct of the judicial authorities
Based on the facts described by the Parties, it can be concluded that
the matter is extremely complex. In
terms of the conduct of the petitioner, the State has demonstrated that the
petitioner sought repeatedly to block advancement of the proceedings.
Lastly, the Commission holds the view that it cannot be proven that
the State employed tactics to delay advancement of the proceedings and that
it failed to take the steps that it was supposed to.
Consequently, the Commission holds the view that in this case, there
are no grounds for the exception to the exhaustion of domestic remedies set
forth in Article 46(2)(c) of the American Convention on Human Rights sought
by the petitioners.
The Commission has established that the petition does not meet the
requirements set forth in Article 46(1)(a) of the American Convention, and
that the information provided by the parties does not permit application of
the exceptions set forth in Article 46(2) thereof.
Consequently, the Commission concludes that the petition is inadmissible,
because of the failure to exhaust domestic remedies, pursuant to Article 47(a)
of the American Convention.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. Declare this
2. Notify the parties
of this decision.
3. Publish this
decision in its Annual Report to the OAS General Assembly.
Done and signed in Washington, D.C., on the 16th day of the month of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
In the comments submitted by the petitioners on January 30, 2000, to the
response of the State on December 17, 1999, they claim, in addition to
the aforementioned violations, violation of the right to prompt and simple
recourse (Article 25), violation of the right to family protection (Article
17), and violation of the right to physical, psychological, and moral
integrity (Articles 5 and 11).
Proceedings instituted and handled by an internal organ of the National
Bank of Panama.
In the comments submitted by the petitioners on January 30, 2000 in response
to the state's communication of December 17, 1999, they allege, in addition
to the violations already mentioned, violation of the right to rapid and
simple recourse (Article 25), violation of the right to family protection
(Article 17), and violation of the right to physical, psychological, and
moral integrity (Articles 5 and 11).
In stressing the need for member States to have domestic systems that
have the capacity and competence to resolve their own conflicts, the IACHR
has stated: "the rule related to the prior exhaustion of domestic
remedies is based on the principle that when a State becomes a defendant,
it must be in a position to provide remedies by itself and within the
framework of its domestic judicial system," IACHR,
1996 Annual Report, Report No. 39/96, Case 11,673-Santiago Marzioni,
Argentina, October 15, 1996, para. 49, page 89.
With regard to the burden of proof in the case of the exhaustion of domestic
remedies, see the case of Loayza Tamayo, Preliminary Exceptions, Judgment
of January 31, 1996, para. 40.
The State, in its note of November 12, 1999, explained the different phases
of criminal proceedings in Panama, namely: the Investigative Phase, the
Plenary Phase, the Appellate Phase, the Application for Judicial Review
Phase, and the Application for Judicial Review of the Facts Phase.
Guarantee institutions: In addition to legal resources, the law
provides for mechanisms to protect fundamental guarantees, namely, habeas
corpus, notification of unconstitutionality, protection of constitutional
guarantees, action of unconstitutionality, etc.
With regard to the burden of proof in the case of the exhaustion of domestic
remedies, see Loayza Tamayo, Preliminary Exceptions, Ruling of January
31, 1996, para. 40.
The petitioners refer to the doctrine derived from Article 46(2) that
the victims of violations of the Convention do not have an obligation
to exhaust domestic remedies when the remedies are not effective or in
instances of serious violation of the right to due process.
Inter-American Court, Genie Lacayo Case.
Judgment of January 29, 1997, para. 77.