THE RIGHT TO DUE PROCESS AND A FAIR TRIAL
Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional right.
Every accused person is presumed to be innocent until proved guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with preexisting laws, and not to receive cruel, infamous or unusual punishment.1
A. Panamanian Law
1. Article 31 of the Panamanian Constitution of 1972 guarantees that those persons tried must be tried according to the law: "No one shall be tried except by competent authority and in accordance with legal formalities, not more than once for the same penal, police or disciplinary offense."
2. The Constitution allows, in some cases, the imposition of arrest and fines, without benefit of trial:
The following may impose penalties without previous trial and within the specific terms of the law:
1. Public officials exercising authority and jurisdiction, who may impose fines or arrest upon anyone who insults them or who is in contempt of their authority in connection with the discharge of their duties or by reason of their performance thereof;
3. In support of the concept of a fair trial, Article 24 protects the accused from being forced to incriminate himself or certain members of his family:
No one is compelled to testify in a criminal, correctional or police proceeding against himself, or against his spouse, or against any relative within the fourth degree of consanguinity or the second degree of affinity.
4. Decree 342
a. Cabinet Decrees No. 342 (repealed during the Commission's visit in December 1977) and 343 (repealed on February 14, 1978) did not assure persons accused of violations of those decrees an impartial and public hearing. Decree No. 342 and representative cases will be considered in detail in the paragraphs that follow. Decree 343 will be taken up n Chapter V of this report.
b. Cabinet Decree No. 342, 31 October 1969 (Gaceta Oficial No. 16.480, 5 November 1969) provided the basis for the legal framework of public order from 1969 until its repeal on December 13, 1977:
"He commits the crime of subversion of public order:
a) Who by words, in writing, or by means of caricatures, whether in public meetings, newspapers, radio or television, leaflets, posters and writings on walls, incites to violence against the national Government. [one month to 2 years and indemnization of anyone affected]
b) Who in attending a public gathering, meeting or concentration, causes or is responsible for causing, disturbances or damages to property. [one month to 2 years and indemnization]
c) Who organizes or incites strikes by workers, students, of a general nature that produce alterations of public order or disturbances in the services of public security or of legal and obligatory functions or damage to public or private property, [2 months to 2 years and payment of indemnity]
d) Who takes up arms, alone or in a group, in order to wage guerilla warfare, makes and explodes bombs or less explosive articles (petards), burns properties, contracts with mercenaries, within or without the country, introduces or attempts to introduce firearms into the country, finances or organizes guerrilla uprisings. [5 to 15 years, minimum indemnity of 5,000 balboas]
e) Who insults, shows contempt for, or in any form offends the dignity of those in the office of President of the Republic; Minister of State, Controller General of the Republic; Governors of Provinces and Mayors of the Districts; municipal officials (corregidor y regidor de Barrio); Justice of the Supreme Court; Procurator General of the Nation; Assistant Procurator; Assistant Public Attorney [Fiscal Auxiliar]; Magistrate of the Superior Court; Prosecutor of the Superior Court; Circuit Judges; Circuit Prosecutors and Municipal Judges; Municipal Prosecutors, Deputies to the National Assembly and Magistrates of the Electoral Tribunal; Commanders of the National Guard; Chiefs of Staff of the National Guards, heads of the Military Zones of the National Guards and Night Police Judges. [2 months to 2 years]
f) Who propagates by word or in writing or by any other means within the country, or may send abroad, misleading or false news or information meant to destroy the system of government, or to disturb the order, or security of the country, the economic system, the stability of prices, the stability and the securities of public holdings and the provisioning of the population, and those who, while out of the country, disclose such information abroad. [1 year to 5 years]
g) Who makes the defense of propaganda for doctrines, systems or methods that support crime or violence in any form, as means of obtaining political, economic or social changes or reform. [2-1/2 to 8 years]
h) When the incitement is done through telegraph and telecommunication companies, state or privately--owned, those responsible for the transmissions and communications will be subject to the penalties established in this Cabinet Decree. [2 months to 2 years]
c. With one exception, the Minister of Government was competent to order the arrest of the accused, make the finding of guilt or innocence, and sentence those found guilty. (Articles 5 and 6) In cases of offenses to the dignity of those authorities listed under Article 3(e), arrests, findings and sentencing were in the hands of the Mayor, Governor, or the Minister of Government, according to the hierarchy of the offended official. (Article 5) Only in the case of an insult to the President or a Minister of State was the matter to be heard by Justices of the Supreme Court. In short, this decree gave judicial authority to members of the executive branch, allowing them to interpret dangerously broad definitions of crimes of subversion of public order, and to sentence those accused without benefit of an impartial and public hearing.
B. Individual Cases
The following mention of individual cases is for the purpose of showing that a number of persons have been sentenced by ministerial resolution under Decree 342. The Commission does not claim to have knowledge of all such cases, nor does it purport to judge whether the person cited actually engaged in the activities with which they were charged.
1. Hernán Guardia Vegara, Carlos Jerónimo López Correa, José Isabel Márquez Carvajal.
By Resolution of October 3, 1972, the Ministry of government and Justice sentenced the above persons to six months in prison for violation of Article 3(a) and (e) of Decree 342. They were charged with "bonds of friendship and of a political nature, that put them in the category of opponents of the present government," and with the printing of leaflets offensive to the dignity of government officials.3
2. Mario Clemente de Bernaschina Díaz, Giacomo Bonissi, José María Botello Cedeño, Luis Enrique De Gracia Deliot, Jaime Alberto Jácome Díaz, Bernardo Lemos Medrano, and Orlando Mocci.
a. According to case files supplied by the Government, the above persons were charged on January 21, 1974, with subversive activities. They had allegedly violated Decree 342 by preparing or distributing anti-government leaflets. Bernaschina, in addition, was charged with insulting government officials and sending false information abroad on the basis of correspondence he had maintained with ousted President Arnulfo Arias and a letter he had written to U.S. Congresswoman Lenore K. Sullivan (D., Mass.), Chairman of the House Merchant Marine and Fisheries Committee. All were sentenced to imprisonment of one to two years by resolution of the Ministry of Government under the authority of Decree 342.
b. Official records made available to the Commission indicate that those persons were pardoned by General Torrijos on September 9, 1974.
3. Gabriel Gregorio Rodríguez Torres
Gabriel Gregorio Rodríguez Torres was incarcerated in the Model jail on January 22, 1974. Accused of subversion, he was sentenced on February 4, 1974, by resolution of the Ministry of Government and Justice to ten years imprisonment. According to the Government of Panama, Rodríguez, a Cuban citizen, was deported on February 26, 1975.
4. Esteban Sáenz López
Esteban Sáenz López was sentenced to one year in prison by Resolution 112 (June 3, 1974) of the Ministry of Government and Justice. He was accused of violating Article 3(f) of Decree 342, which made it a crime to send false or misleading information abroad for the purpose of subverting public order.
5. Rita María da Conceicao Diamantino
According to information supplied by the Government, Rita Diamantino was arrested on April 23, 1976, [for introducing into the country arms, munitions, to be used in attacks against the Cuban Embassy, and taking hostages in the Spanish embassy, subversive acts and violence." She was sentenced on May 4, 1976, to eight years imprisonment for violation of Article 3(d) and Article 4 of Decree No. 342. She was pardoned by the Head of Government on May 20 1977, and was deported.
6. Jorge Rodríguez Aizpurúa; Gilma Rodríguez de Rodríguez and Josefa Dolores
The above persons were arrested on November 29, 1976, when a bomb exploded in a Volkswagen owned by Jorge Rodríguez while the three were driving through the city. They were found guilty of subversion under Decree 342 for exploding bombs in the city. Jorge Rodríguez was sentenced on December 27, 1976, to 15 years in prison; his wife and Dolores Montoto, were sentenced on the same day, by the same Cabinet Decree, to 5 and 7 years. The two women were pardoned by the Head of Government on May 20, 1977. Jorge Rodríguez is serving his sentence on the Island of Coiba. The Special Commission was able to speak with him during a private interview on the island.
7. Other Persons Accused of Violations of Decree 342
Other persons who were arrested and officially charged with violations of Decree 342 according to documentation supplied by the government are listed below. The Commission was unable to determine, because of incomplete documentation, whether these persons were actually sentenced.
a. José Féliz Arrocha, Luis Alberto Triana Guevara, René Chang Romero, Jorge Evelio Barría, Luis Armando Sánchez Hinestroza--placed at the orders of the procurator General on October 19, 1971.
b. Rodolfo Humberto Delgado Chanis, Bolívar Rodríguez Pérez, and Jorge Rodríguez Aizpurúa--placed at the orders of the Ministry of Government and Justice by the Second Superior Tribunal on January 20, 1972.
c. Jorge Julio González Resedas--placed at the orders of the Ministry of Government and Justice by the eight Circuit Judge on February 23, 1972.
d. Epifanio González Mendoza--placed at the orders of the Ministry of Government and Justice by the procurator General on May 2, 1974.
8. During the period 1972 to 1976, at least sixteen persons were accused of political crimes and sentenced by ministerial resolution under Decree 342. One of these persons is still in prison, sentenced to 15 years.
C. Due Process and the Right to a Fair Trial
The IACHR has received complaints which allege that the current Government of Panama regularly interferes with the legal process and the right to a fair trial at the investigatory, trial and sentencing states. In the following paragraphs appropriate reference will be made to articles of the Panamanian code of Criminal Procedure pertinent to the allegations, then the allegations themselves will e presented in summary fashion.
1. Article 2013
The defendant shall be given all legal means so that he can freely exercise the right of defense.
As a general principle, the defendant must be permitted to communicate freely and privately with his counsel in order for the right to a fair trial to be effective. However, Panamanian officials reportedly interfere with the defendant's access to his lawyer--one of the most notorious cases being that of Dr. José Manuel Faundes' access to his clients allegedly reached the point that a sign was posted in the Model Jail to the effect that prisoners would not be permitted visits from Dr. Faundes.
2. Article 2065
Also a statement shall be taken from those accused of being the perpetrators, accomplices, or accessories of the crime. This shall be done within twenty-four hours after the detention, arrest or appearance of the accused.
If the accused should be held incommunicado, that state shall cease once he finishes rendering his declaration.
The statement referred to in the above articles is supposed to taken in the presence of a public prosecutor (funcionario de instrución) within twenty-four hours of the arrest. Following this statement, the state of incommunication is lifted, and the accused is allowed to see his lawyer. In theory, then, if his statement is taken within the period prescribed by law, the defendant is entitled to see his counsel at a time not later than twenty-four hours after the arrest.
In practice, the arrested party is allegedly interrogated for investigative purposes in the locale of DENI or G-2over a period of days or even weeks, during which time he is held incommunicado. If he has a lawyer, he is not permitted to see him until the police decide to suspend the state of incommunication. If he is to be assigned a public defender, the assignment will not be made until the statement of the arrested party has been obtained.
3. Article 2157
The confession made by the accused in the presence of the Judge or public prosecutor and before the Secretary constitutes sufficient proof against him, and is by itself enough for conviction, as long as the body of the crime is sufficiently proved.
The above article reflects a general principle of law. The requirement of the presence of a judge or public prosecutor is based upon the assumption that a confession is valid only if obtained without coercion of any kind and that their presence presupposes the absence of coercion. The statement required by Article 2065 within 24 hours of arrest and in the presence of the prosecutor, should it constitute an admission, is a valid confession for judicial purposes.
In practice, the confession used or the conviction of the accused is allegedly obtained during the course of an interrogation by police officials, without the presence of a public prosecutor, and sometimes even before the prosecutor has been advised of the arrest. The police allegedly resort to beatings and other physical punishment, deprivation of food or rest, and threats, in order to obtain the statement. It is then typed in such a manner as to comply with the statement required by Article 2065, as if the prosecutor had supervised the interrogation, the defendant is allegedly forced to ratify it with his signature, and the statement obtained under coercion without the presence of the proper authorities becomes a valid confession leading to the conviction.
4. Article 2033a
In no case shall the records of the summary proceedings be kept secret and the accused and his counsel have the right to cross-question the witnesses.
When the witnesses or the defendants among themselves or the former with the latter disagree about some fact or circumstance relevant to the summary proceeding, the court shall be able to hold a confrontation between those in disagreement. . .
Every sentence in a criminal prosecution is appealable with execution suspended during appeal, by either party.
The appeal shall be made orally at the time of notification, or in writing within forty-eight hours, counted from the time of notification.
The right of the defendant to examine witnesses and to appeal his sentence is embodied in the articles above. These rights are ineffective, however, in the many cases where the defendant is detained on the Island of Coiba during the investigatory proceedings and trial. Though, in theory, the prisoner is supposed to be returned to the mainland for such proceedings when the court so orders, those orders have allegedly been ignored in some cases by prison authorities, and the prisoner is not informed. As a result, the defendant cannot communicate freely with his attorney and therefore is unable to aid in his defense. He is often unaware of the charges, ignorant of what the witnesses have said, and the investigation, trial and sentencing are carried out without his presence. When the prisoner is finally made aware of the sentence, the period allowed for the appeal may have lapsed.
5. Article 2096
No one shall be detained for more time than necessary to carry out the investigatory proceeding and for the tribunal to declare that there is cause for prosecution.
The summary must be concluded within two months.
When the time fixed in the preceding article has lapsed, the public prosecutor shall send the summary, in whatever state it may be, to the competent judge or tribunal, according to Article 2129.
When a writ of dismissal is issued, the defendants who are not being held under another charge shall be set free. . .
If upon sentencing the defendant has already served the sentence imposed, the tribunal shall order him set free, without bail, during any inquiry (consulta) or appeal.
These articles are intended to protect the defendant from unnecessarily prolonged imprisonment during the investigatory and trial process. Despite these safeguards and time limits, prisoners are allegedly held for much more than two months, and in some cases, for years without trial. Another had been held for more than a year, allegedly because the police had not been able to find the person who originally brought the complaint and who, in any case, had not identified the prisoner as the wrongdoer. According to figures furnished by the Government during the on/site visit at the end of the month of October, 1977, 138 of the 160 prisoners in Colon were awaiting investigation and trial, as were 123 of the 193 in David, 664 of the 804 in Panama City, and 248 of the 729 in Coiba. A communication sent to the IACHR included a newspaper article (Críitica, 19 January 1978) which quoted an official report that of 2,301 prisoners throughout the country, 1,445 were awaiting trial.
A number of prisoners told the Special Commission that they had already served the maximum time for the offense with which they were charged yet they had not been tried. Others said that writs of dismissal had been issued in their case, but they continued to be held. In Coiba, in particular, the IACHR found that the prisoners are often kept ignorant of the progress of their processing and trial and do not have access to such information as the date on which their sentence is to end, or when their detention officially began, or when they are eligible to be released before the end of their sentence. One prisoner told the Special Commission that the court in charge of his case refused to grant a reduction in his sentence because he did not appear before the court when notified. The reason he did not appear was because he was in prison in Coiba. Failure to see that prisoners appear in court when summoned and refusal to give them information such as the above constitutes an interference with due process and the right to a fair trial.
6. The IACHR takes note of the following allegations of interference with the legal process:
a. Marlene Mendizábal and Jorge Falconett
The Commission has received various communications, which allege that government officials have interfered with the legal process by hindering the investigation of the deaths of Marlene Mendizábal, a 20-year-old student and Jorge Falconett, her fiancée. Marlene and Jorge disappeared while on an outing with friends during the weekend of January 30-February 1, 1976. Her body was found in an estuary that empties into the Rio Negro in Mariato, Veraguas province, on February 3; Jorge Falconett was never found, but articles of his clothing were discovered in the vicinity.
The fathers of the two, Carlos E. Mendizábal and Elías Falconett have stated publicly that their children were murdered by Roberto Pinzón Jr. (the son of the family that planned the outing), his friend Jacinto MacDonald and Raúl González, a son of the family with whom the group was staying. Mendizábal and Falconett are convinced that the investigation was interfered with and that no responsibilities were established because of the family ties of one of the accused, Roberto Pinzón Jr. It is alleged in statements taken during the preliminary hearing that his father is a member of the National Assembly, and his uncle is Lt. Col. Roberto Díaz Herrera, at that time Executive Secretary of the National Guard. Another uncle is allegedly Lt. Ricauter (sic) Rodríguez, of the National Guard, stationed at that time in Las Tablas, but who left his post to direct the search and investigation, and replace, in effect, the National Guardsman stationed in the area where the disappearance occurred. Other close relatives of the Pinzón family include, according to the same source, Dr. Francisco Carrizo, the coroner of the district, and Liliana de León, the equivalent of the district attorney.
The body of Marlene was found by Roberto Pinzón Sr. and a friend. It was taken immediately to Atalaya, a nearby town. Instead of being taken to the Morgue, it was carried directly to the cemetery where it was viewed briefly by Dr. Carrizo, who ordered it buried without an autopsy, alleging that it was in too great a state of decomposition. According to Mr. Falconett, Dr. Carrizo, "taking a little stick from the ground, raised the blanket that covered Marlene's face and after looking at her briefly ordered her buried." "When he was told that an autopsy had to be done he refused completely, so she was buried."
When members of the Special Commission interviewed Lcdo. Oswaldo Miranda, the procurator General, he told them that he had fired Dr. Carrizo for not performing the autopsy. However, the Special Commission was later informed by a reliable source that Dr. Carrizo was given another position within the government.
When Mr. Falconett went immediately to the Attorney General of the Nation and obtained an order for an exhumation and the performance of a necropsy, DENI delayed in carrying out that order. Finally the date for the exhumation was set for February 10 and was confirmed by the coroner. Members of the family journeyed to the town and waited all day to no avail. Other delays followed and at least one more specific date was set, for ,March 16. This time the coroner complained that he had not been informed. Finally, the exhumation was carried out and the necropsy was performed on March 30. However, the Falconett and Mendizábal families were not informed; only the designated officials and relatives of the accused were present. The examination failed to establish the cause of death.
According to their official statement, members of the Falconett and Mendizábal families were informed by several witnesses of suspicions of foul play: blood was said to have been seen on Jorge's cap and Marlene's scarf; a witness in whose boat her body was taken from the estuary allegedly said that he saw coagulations of blood. These details and other, however, were always denied when those witnesses were called to confirm them in official testimony. One witness who had been quoted even denied having the conversation.4
The Procurator General told members of the Special commission that Mr. Mendizábal believed that his daughter's fiancée, Jorge Falconett, had murdered Marlene in a crime of passion. In independent interviews, the Special commission was unable to find any basis for the claim that Mr. Mendizábal had, at any time, accused Jorge Falconett.
Mr. Mendizábal continued to do everything possible to publicize the case. As a result, he was the subject of many threats, and on October 13, 1976, he was arrested at his home without a warrant.
Fearing for her husband's safety, Mrs. Mendizábal, according to statements she and her son filed with a state prosecutor (Fiscalía Cuarta del Circuito) on October 18, 1976, went to the offices of DENI where he was held and asked them for an explanation. When they refused to give one, and asked her to move on, she began to shout for justice. In response, Mrs. Mendizábal, who was wearing a neck brace at the time, was severely beaten and is now confined to a wheelchair as consequence of that beating.
The control of a criminal investigation by government officials who are relatives of the accused constitutes a clear conflict of interest on the part of those officials and amounts to an interference with generally accepted concepts of justice and the legal process. The IACHR finds in this case that a fair and appropriate investigation was not carried out by the Government, and notes that the Government did not punish lower officials who failed to perform the autopsy.
b. Cassandra Lee Gossler5
The case of Cassandra Lee Gossler was presented to the Special Commission during its visit by Panamanian lawyers who considered it to be illustrative of problems with regard to the independence of the judicial power.
Cassandra Gossler and a young man with whom she was traveling, both U.S. citizens, were arrested on August 11, 1977, at Tocumen International Airport when narcotics agents discovered cocaine secreted in false bottoms of suitcases owned by the man.
From August 11 until august 19, she was held and questioned by G'2, without an order for her detention and without being placed under the orders of a public prosecutor as the law requires. The statement required by law was not taken until August 19. Consequently, she was still incommunicado and unable to consult a lawyer.
The first record of her detention found in the case file supplied by the Government of Panama is in a report made out on August 19, 1977, at 1:30 p.m., by César E. Saavedra, and signed by Inspector Alfredo Botello, Head of the Division of Narcotics and Dangerous Drugs. This report is addressed to the Director of DENI and asks that Cassandra Gossler be placed at the orders of the competent authorities. An identical report was made out at 3:00 p.m., by Luis a. Varela, signed by Inspector Botello, and requesting the Director of DENI to have her placed at the orders of the Assistant Attorney. (Fiscal Auxiliar de la República). On the same day, presumably at some time after the above reports were forwarded to Darío Arosemena G. (the Director of DENI), he wrote the Director of the Women's Rehabilitation Center, indicating that he was sending Cassandra Gossler and that she was at the orders of the Assistant Attorney.
Normal legal procedure would require that she be placed under the orders of the Assistant Attorney, and he would then take her statement. According to the above correspondence, she was not at the disposition of the Assistant Attorney until after 3 p.m. on August 19. However, her statement indicates that it was taken in the office of the Assistant Attorney at 2:15 p.m. The statement is signed by the Assistant Attorney, Isaac Chang Vega, but the sequence of events suggests that he either took the statement in his own office before she had been placed at his disposition, or the statement was taken by police investigators and his signature was added as if he had supervised the proceeding. On the same day, after her statement was received, the Assistant Attorney issued the order for her preventive detention.
Her companion was also held from the 11th to the 19th of august, by the G-2. He was turned over to DENI at 10:58 a.m. on the 19th, and according to the documentation, gave his statement at 3:30 p.m. The procedure for obtaining a decision in his case was somewhat different. Whereas the Director of DENI assumed the responsibility of sending Cassandra to the Women's Rehabilitation Center, placing her immediately at the disposition of the Assistant Attorney, he requested permission directly of General Torrijos before taking the same measures in the case of her companion:
I request that you give the necessary instructions so that the detained. . . accused of the crime of international drug traffic (COCAINE) be registered and imprisoned in the Model Jail.6
According to Article 2092 of the Judicial code, the issuance of such an order as that requested of General Torrijos is the function of the public prosecutor.
On August 23, the Assistant Attorney placed Cassandra Gossler under the Sixth circuit Attorney, Secundino Chávez M., who emitted an order continuing her detention pending investigation, and on September 6, named a lawyer to defend her.
The two narcotics agents who had made the initial arrest gave their statements on September 12th and 13th, one of them testifying that in his opinion she was not aware that her companion had drugs concealed in false bottoms of the suitcases. The false bottoms were apparently well-joined for the agents had used a drill to find the cocaine. She denied knowledge of the cocaine in her statement, her companion declared in his statement that she did not know he was carrying drugs, and there was nothing to link her to the criminal act aside from the fact that she was accompanying him and her things were mixed with his in his suitcases. Consequently, her attorney requested her release. The Sixth Circuit Attorney ordered her set free on September 30, because he found "insufficient reason to continue her detention."
He then instructed the Director of Prisons to release her unless there were other charges against her.7
By October 6, the Director of Prisons still had her in custody. The Sixth Circuit Attorney, on that date, requested the Director of prisons to send a copy of any prior record or additional charges. This request, which was a manner of inquiring why she had not been released, provoked a response from Lt. Col. Manuel a. Noriega, Chief of Military Intelligence (G-2). Noriega wrote the Sixth Circuit Attorney that same day;
We were surprised and concerned, by the fact that liberty has been ordered in the case of the prisoner, Cassandra Lee Gossler, nationality North American, who on august 11, 1977, arrived at the Tocumen International Airport, from Lima, Perú, on flight 102 of Air Panama, in the company of . . . and from whom was confiscated the quantity of (25) packages of cocaine that he brought with him in a false-bottomed suitcase and in a separate bag, two (2) packages more.
On the basis of these details alone, I permit myself to request that you reconsider this order for release, given a month and 20 days after this international drug trafficker was detained.
We must remind the distinguished Attorney, who is among those officials graduated from the Course of the Drug Enforcement Administration, of the professional zeal with which his Superior and the prestigious column of these struggles against drugs, maintains at the expense of many pressures, the prestige of the Panamanian judicial system in this mission; and that is the Attorney General of the Nation, Licentiate, OLMEDO DAVID MIRANDA.8
A copy of the letter was sent to the Sixth Attorney's Superior--Olmedo Miranda--among others.
On October 15, 1976, the Sixth Circuit Attorney received a reply from the Director of Prisons. Cassandra Gossler had no prior record and there were no other charges against her. There was no reason, then, for her continued detention. But the Sixth Circuit Attorney was unable to enforce his order, because Noriega with no legal authority to do so, had countermanded it.
Unable to obtain her release, Cassandra's attorney brought on November 14 a writ of habeas corpus against the Commander in Chief of the National Guard. According to Article 38(a) of Law 46, writs of habeas corpus directed to authorities on the national level are properly filed in the Supreme Court.
The pertinent parts of that writ are as follows:
2- The investigation was carried out by the Sixth Circuit Attorney o Panama, who upon finding no reason to continue her detention, ordered her release in Official Communication No. 2028 of September 30, 1977, addressed to the Director of prisons. (A photocopy is attached.)
3- Although the order of the competent authority for her release was delivered on the same day to the Office of Prisons and was sent immediately from that office to the National Guard, the Department of military Intelligence "G-2" of that Institution, has not obeyed that order to this date.
4- The 27-year-old young lady Cassandra Gossler has been detained 45 days in open violation of the Constitution and the laws of the Republic of Panama.
5- The illegality of the deprivation of liberty of Cassandra Gossler consists in the violation of Articles 21 and 26 of the National Constitution. In the same manner, Articles 2096, 2125, and 2126 of the Judicial Code have been violated.9
6- The illegal detention of Gossler represents a penal infraction as contemplated in Article 137 of the Panamanian Penal Statute, which provides that:
Every public functionary who, having knowledge of an illegal detention, omits, retards or refuses to take measures to bring it to an end, being competent to do so, or not denouncing it to the authority that should do so, shall be punished with a fine of fifty to two hundred balboas.
Noriega responded to the writ of habeas corpus in Official Communication No. 3162-G-2-77, 16 November 1977, transcribed as follows in its pertinent parts:
The North American citizen, CASSANDRA LEE GOSSLER, was detained in Tocumen International Airport, transporting 25 packages of cocaine paste. From the moment of her detention, she is classified as an international drug trafficker.
Her detection and detention was achieved through the international coordination of the organs that lead the struggle against the criminal business of drugs, which is a threat to development and the future well-being of the youth of the world.
I thank the Honorable Magistrate, who is aware of the Panamanian position in this international battle, which because of our prestige as a nation is pointed to at present as a leader in the suppression of the international traffic; and moreover because of the arguments that the enemies of this process and consequently of the Commander in Chief of the National Guard, present in their tribunals from exile, as leniency on the part of our authorities, in the punishment of international traffickers.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
As of this moment, the North American citizen CASSANDRA LEE GOSSLER, is subject to your orders and wise decision.
The Supreme court did not have to decide whether Cassandra Gossler was illegally held or whether Noriega should be fined for having held her with no authority to do so, for on the day following Noriega's reply, the Sixth Circuit Attorney decided, inexplicable, that there was reason to hold Cassandra though no new evidence had been presented.
He revoked his previous order of release and ordered her continued detention. Since the Commander of the National Guard had placed her at the disposition of the Supreme Court, and the Sixth circuit Attorney had resumed control, nothing more was done by the Supreme Court. It apparently did not consider the fine in Noriega's case.
Now, however, Cassandra's lawyer was forced to bring a writ of habeas corpus against the sixth Circuit Attorney. Since the sixth Circuit Attorney is not an official with nationwide authority, the writ was heard by the Second Superior Tribunal. On November 25, it declared that the order by the Sixth Circuit Attorney for her detention was warranted.
In taking note of Noriega's letter to the Sixth Circuit Attorney, the Second Superior Tribunal recognized as an attempt to interfere with the legal process "that to a public prosecutor should be sent the note that figures in the photocopy on page 7 of the book [cuadernillo], in violation of the independence that is the exercise of its duty it [the judicial power] is given by Article 192 of our political constitution, in relation to Article 202."
This decision of the Second Tribunal was appealed to the Supreme Court, which upheld the lower court decision on December 15, stating that the serious (indicio) indication of her participation which justified her detention under Article 2091 (preventive detention was the fact that the drugs had been found in a suitcase which was her property. According to testimony, however, the suitcase was never shown to belong to her, she denied it, and her companion had said all three suitcases were his. One Supreme Court Justice, Americo Rivera, in agreement with the testimony, dissented from the majority view.
Lee Gossler was the traveling companion of . . . and she used his suitcases to carry her clothes . . . . There does not exist against Lee Gossler, any proof to connect her rationally as author or a participant in the act! For that reason, I believe her release should be decreed. And since that is contrary to the opinion of the majority. I abstain ["salvo mi voto"]
On December 21, 1977, the Director of prisons informed the Sixth Circuit Attorney that, by order of the Supreme Court, Cassandra Gossler was again under his orders. The Sixth Circuit Attorney, on December 30, then informed the Circuit Judge that he was requesting dismissal of the charges against Cassandra Gossler.
She was placed at the disposition of the Circuit Judge on January 3, 1978, and remained in prison though the prosecutor found no reason to hold her.
The Government of Panama in a Note of January 5, 1978 (No. 4-DM) informed the IACHR that:
In the case of Cassandra Lee Gossler, capture in the act (in fraganti) when she attempted to introduce into the country an appreciable quantity of cocaine, it is true that there is an order of Provisional liberty, the reconsideration of which has been requested, but which cannot be carried out until it is approved in view of the current agreements with the government of the united States.
The case of Cassandra Lee Gossler corroborates allegations presented earlier in this chapter that:
1) the legal process is not respected;
2) the judiciary and the public prosecutors do not have complete independence of action; and
3) in some cases, the National Guard disregards the legal process and attempts to impose its will upon the courts and prosecutors.
The Commission has received unofficial information that Cassandra Gossler was finally released in late January.
D. The System of Police Night Judges and Corregidores
It has been alleged that the processing and sentencing of prisoners by police night judges and corregidores, as established under Law No. 112 (Gaceta Oficial, No. 17.769, 28 January 1975), constitutes a denial of due process and an interference with the right to a fair trial.
There are two Police Night Courts--one for the District of Panama City and San Miguelito and the other for the District of Colón. Each court has three judges, named by the executive through the Ministry of Government, who sit in shifts between 6:00 p.m. and 6:00 a.m. In order to be eligible for appointment, they must have a law degree or be in the last year of law school.
The police night judges have jurisdiction to issue warrants for arrest and to hear and decide cases of robbery, theft, fraud, and prostitution where second offenders are involved, and cases of robbery, theft and fraud involving first offenders where no more than fifty balboas (equivalent to fifty dollars) is involved. They may also hear cases involving bodily injury where the resultant incapacity is no more than 20 days or where no visible, permanent facial scars result. They may hand down sentences in such cases ranging from 10 days to one year of imprisonment. (Article 3)
The charges are explained to the judge by the arresting officer. (Article 5) According to allegations, the judge merely listens to the explanation of the officer and hands down a sentence at that very moment. The prisoner is taken to the Cárcel Modelo and is often sent from there to Coiba. He has no opportunity to retain a lawyer; he may never have an opportunity to say anything in his behalf, to confront his accusers, or to prepare his case. Of 251 prisoners in Coiba who had been sentenced by police night judges, all but four had been arrested and sentenced on the same night. In these cases, which seem to represent an overwhelming majority, the accused cannot be said to have had sufficient time to prepare his defense. Moreover, he is tried by a police judge, appointed and paid by the Ministry of Government, under a system which interferes with the possibility of a fair trial by confusing the police and judicial functions.
The lack of due process and a fair trial at this level is very serious because the police night judges play a very important role in the criminal justice system of Panama. Of the approximately 547 convicted prisoners on the Island of Coiba, 251 had been sentenced by night judges, twenty-six apparently for nothing more than suspicion (sospecha) and forty-one more had been tried and sentenced under the same procedure by corregidores. Approximately fifty-five per cent of those sentenced by night judges received the maximum sentence of one year; some 33 per cent received six-month sentences; and the rest were sentenced from 3 to 4 months.
In theory, all of the night court sentences for more than 60 days imprisonment are reviewed by a Commission of Appeals and Consultations made up of the mayor (alcalde) of the district, his legal adviser, and the director of social work of the district. This Commission has 15 days to confirm, revoke or modify any sentence. The weakness of the system is that the accused, having been sentenced without a lawyer and jailed immediately may never be aware of the possibility of appeal or have a fair opportunity to make an appeal. At the same time, the review of the Commission is limited to the record, and there is less likelihood under this system that the Commission might find on the face of the record itself some error which might lead to revocation or modification of the sentence.
Information provided by the government shows that, in practice, appeals are not made from night court decisions. Individual records of trial, sentencing and appeals of 251 prisoners in Coiba who had been sentenced by night judges did not show one single instance of an appeal or modification of sentence, although 90 per cent had been sentenced to six months or more.
It has been alleged that the night judges and the corregidores cooperate in supplying labor for harvest-time and other seasonal work needs in Coiba. The following chart, compiled from the official records of those sentenced by night judges and corregidores and on the island at the time of the on-site observation, seems to indicate a marked flow, but the Commission is not in a position to be able to say what this flow reflects:
Number sentenced by:
On the 123 sentenced in November and sent to Coiba, one hundred and three were arrested and sentenced within a ten-day period from November 10-19.
E. The Lack of an Independent Judiciary
Numerous complaints directed to the IACHR denounce, either directly or indirectly, the lack of an independent judiciary under the current Government and Constitution of Panama. The special commission took particular interest in this charge, for the rights accorded by the Constitution and the laws are meaningless without an independent judiciary to guarantee their enforcement.
Like its predecessor of 1946, the constitution of 1972 embodies a number of principles related to the ensurance of a qualified and independent judiciary. Article 186 requires that Supreme Court Magistrates have a university degree in law and ten years experience in he practice of law or in some other position, which requires a university degree. They are appointed for a ten-year term, which, theoretically, give them some measure of independence.
Other articles attempt to avoid conflicts of interests. "Principal magistrates and judges may not hold any other public office, except that of professor of law in an educational institution of university level." (Article 190) Article 194 restricts judges from participating in most private activities as well: "Positions in the Judicial Organ are incompatible with participation in politics, except voting and elections, with the practice of law or commerce and with any other remunerated position except as provided in Article 190`."
"Magistrates and judges are independent in the exercise of their functions and are subject only to the constitution and the law . . . ." (Article 92) And they "shall not be removed, suspended or transferred from the exercise of their functions, except in the cases and according to the procedures prescribed by law." (Article 193) Nor may magistrates or judges be detained or arrested "except by virtue of a written order from the authority competent to judge them." (Article 196)
The safeguards enunciated above, however, are undermined by the powers of appointment given to the executive power by the Constitution of 1972. The current members of the Supreme Court were appointed by the Head of Government, under the authority of Article 277 of the "Transitory Provisions": "Brigadier General Omar Torrijos Herrera, Commander in Chief of the National Guard, is recognized as Maximum Leader of the Panamanian Revolution. Consequently, and to ensure the fulfillment of the objectives of the revolutionary process, he is authorized to exercise the following powers for a period of six years: . . . to appoint, with the approval of the Cabinet Council, the Magistrates of the Supreme Court of Justice, . . ." This Article creates an obvious conflict of interests by placing in the person of the head of the police function so important an influence over the judicial system. This same power, subject only to the approval of the Cabinet Council, will be exercised by the President of the Republic, once the six year period indicated in the Transitory Provisions come to an end. (Article 164)
With regard to the power of appointment and its relationship to an independent judiciary, there have been significant changes from the Constitution of 1946 to the present Constitution. Under the earlier charges, the President was empowered to appoint the Magistrates of the Supreme Court and their alternates, "subject to unanimous agreement of the Cabinet Council, and subject to the approval of the National Assembly, . . ." [Article 144 (18)]. This power of approval granted to the National Assembly was more explicit in Article 120 (5):
"The administrative functions of the National Assembly are the following:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5) . . . to approve or disapprove the appointments of the Magistrates of the Supreme Court of Justice and their alternates. . ."
This limitation no longer exists under the present system. The National Assembly of Representatives of the Municipalities, which replaced the National Assembly of Deputies, does not have any power of approval or disapproval with regard to executive appointments. Under the new Constitution, only the Cabinet Council is empowered to approve the executive's appointments to the Supreme Court, and that council is made up of the vice-president and the Ministers of State, the latter being freely appointed and removable by the President.
Through this power of appointment to the Supreme Court, the executive is able to exercise control of the entire judicial system. The Supreme Court, in turn, appoints the magistrates of the lower courts and tribunals; judges are appointed by their immediate superiors and subordinate personnel are appointed by the respective court or judge. (Article 191). This means, in effect, that the power of review is controlled by the executive, for "subordinate judges are obliged to abide by and comply with decisions issued by their superior in rank revoking or amending, by virtue of legal proceedings, the decisions rendered by the former." (Article 192)
In theory, the power of appointment exercised by the Supreme Court and lower magistrates over their inferiors is limited in two ways. "All such appointments shall be made in accordance with the Judicial Career, as provided in Title XII." (Article 191) Title XII, however, merely mentions the Judicial Career as a career "established in the public service, in accordance with the merit system . . ." (Article 264) In reality, the Judicial Career is non-existent. The former system was abolished under the current regime, and no law has been enacted to implement this provision of the Constitution. Likewise, the second limitation, found in Article 193, does little to assure a independent judiciary: "Magistrates and judges shall not be removed, suspended or transferred from the exercised of their functions, except in the cases and according to the procedure prescribed by law." In practice, the procedure prescribed by law is eventually subject to interpretation by the Supreme Court Magistrates appointed by the executive.
The Constitution of 1972 has limited the independence of the judicial process even further by establishing in the Executive the power to appoint the procurator General of the nation. (Article 203) The Procurator General is charged with arraigning before the Supreme Court those public officials over which that body has jurisdiction and with seeing to it that other officials of the Public Ministry faithfully discharge their duties, and that they are held responsible for the offenses they commit. (Article 201)
This power of appointment which originates with the executive gives him control over the district and municipal attorneys who, in turn, are appointed by their immediate superiors. (Article 203) Though all such appointments are to be made in accordance with the Judicial Career, once again, no Judicial Career has been established. Therefore, the executive, through his power of appointment, effectively controls the initiation and investigation of all criminal complaints and accusations against public authorities, even at the municipal level. Under the previous Constitution, the Procurator General was appointed directly by the National Assembly. [Article 120 (5)]
Still another blow to the independence of the judiciary was the elimination of the system of staggered terms which had existed under Article 165 of the Constitution of 1946: "The Supreme Court of Justice shall consist of nine Magistrates, appointed . . . one every two years for a term of eighteen years beginning the first of November. . . ." The Constitution of 1972 reduced the terms from eighteen years to ten years, and provided for all the Magistrates to be appointed on the same date. (Article 185) This system allows the government in power at the time of the appointments to "pack" the Court.
1. The confiscation of private property without respect for legal process is a violation of the right to private property (Article XXIII, American Declaration) and a violation of the right to due process. (Article XXVI, American Declaration)
2. Under the Constitution of 1972, "Private property acquired in accordance with the law is guaranteed" (Article 43), and "There is no . . . confiscation of property." (Article 29)
"In the event of war, serious disturbance of the public order, or urgent social interest, requiring prompt action, the Executive may decree the expropriation of seizure of private property." "If the return of the seized object is feasible, the seizure shall be only for the duration of the circumstance that gave rise to it." "The State is responsible for all expropriations that the Executive thus carries out and for the losses and damage caused by the seizure, and shall pay the amount thereof as soon as the reason for the expropriation or seizure ends." (Article 46)
3. In written communications and in interviews held by the Special Commission during the on-site observation, a number of confiscations of private property were attributed to the Government of Panama, many of them related to the repression of the right to freedom of expression. The items mentioned included personal belongings and even private automobiles of persons deported or sent into exile, as well as business papers, files, and equipment of radio stations, labor unions, and professional organizations.
1 American Convention on Human Rights
Article 8. Right to a Fair Trial
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or from the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;
b. prior notification in detail to the accused of the charges against him;
c. adequate time and means for the preparation of his defense;
d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;
f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;
g. the right not to be compelled to be a witness against himself or to plead guilty; and
h. the right to appeal the judgment to a higher court.
3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.
4. An accused person acquitted by a nonappealable judgement shall not be subjected to a new trial for the same cause.
5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.
2 The respective penalties, which appear in Article 4, are shown here in parentheses.
3 Based on official records supplied by the Government of Panama.
4 This paragraph is based upon transcripts of the declaration of witnesses supplied by the government.
5 The following summary is based upon documents supplied by the government and obtained from independent sources.
6 Darío Arosemena, Director of DENI, to General Omar Torrijos, Commander in Chief of the National Guard, No. 1581, 22 August 1977.
7 Sixth Circuit Attorney to Director of Prisons No. 2028, 30 September 1977.
8 Lt. Col. Manuel A. Noriega to Sixth Circuit Attorney, No. 2748-G-2-77, 6 October 1977.
9 These articles are transcribed previously on page 57.