REPORT OF THE INTER-AMERICAN COMMISSION
That on May 7, 1986, Mr. Winston Spadafora filed a petition with this
Commission against the Government of Panama, with respect to the violation of
Articles 4 (right to life), 5 (right to personal integrity), and 25 (the right
to legal protection) of the Inter-American Convention on Human Rights.
The pertinent parts of that petition are transcribed below:
My name is Winston Sapdafora Franco, Panamanian personal identification
card No. 7-58-878, issued in Panama City, Republic of Panama, and valid until
The name of the victim to which this petition refers is that of my
brother HUGO SPADAFORA FRANCO.
The date of my brother’s murder was September 13, 1985, and the place
was the Province of Chiriquí, Republic of Panama.
I have described the nature of the human rights violations, which led
to the present petition, and the identity of the persons presumed
responsible–the Defense Forces of the Republic of Panama–in a separate
document which is appended hereto, in Spanish and in English, as well as
relevant additional information.
Before my brother’s corpse was found, my father had filed a petition
of habeas corpus against the Defense Forces of Panama, which was
dismissed as relevant and immaterial upon the discovery of the corpse.
I am filing this petition with the Inter-American Commission on Human
Rights for the first time. In our
country, we do not accuse anyone by name so as not to lend credence to the
investigations that we knew, from the very outset, were biased as was
demonstrated when the case was closed less than five (5) months following the
The petitioner has submitted the following documents with the petition:
BRIEF ACCOUNT OF THE FACTS PERTAINING TO THE MURDER OF DR. HUGO
Dr. Hugo Spadafora Franco was
He was born and raised in Chitré, a new, small provincial town, whose
people are fair-minded, happy and hospitable.
By their own efforts, his parents, who were of humble origin, were able
to achieve middle class status. He
completed his elementary education, in public schools in his native town, and at
a very early age, was recognized as an exceptional student.
He completed his secondary education, in public schools in his native
town, and at a very early age, was recognized as an exceptional student.
He completed his secondary schooling at the Instituto Nacional, in Panama
City, where he ranked third in his class, was awarded a scholarship, and
graduated in February 1958. In
November of that same year, he began his studies at the School of Medicine of
the University of Bologna, Italy, and graduated with the degree of Doctor of
Medicine in November 1964. In
January 1965, he returned to Panama, and began working at the Hospital Santo Tomás
in Panama City. In August 1965, he
traveled Cairo to begin postgraduate studies thanks to a fellowship from the
Government of Egypt. In February
1966, he joined the Portuguese Guinea Independence Movement (now Guinea-Bissau)
as a volunteer physician, and was the first physician that the independence
movement had. He practiced his
duties in liberated territory until May 1967, at which time he returned to
Panama, once he had made certain that the independence movement had other
physicians. In 1969, he fought
against the military coup of General Torrijos, action which led to his being
jailed, and subsequently, in his own words, “I joined the system when it
He practiced medicine for several years, and subsequently held the post
of Director of the Integrated Health System in the Province of Colón, and that
of Vice Minister of Health in the Government of General Omar Torrijos H.
He resigned in September 1978, to join the Victoriano Lorenzo Panamanian
Brigade, which fought against the Somoza dictatorship in Nicaragua.
Eight days after the Sandinista victory, he returned to Panama, only to
return to Nicaragua three years later, in 1982, this time to fight alongside
Pastora against the Junta in power. Two
years later, he abandoned Pastora, openly expressing his disagreement with the
military strategy of that Nicaraguan leader.
His last saw combat is the Atlantic region of Nicaragua, where he fought
alongside Brooklyn Rivera, the native leader.
In August 1985, one month before his assassination, he publicly declared
that he was returning to Panama to enter politics. In 1980, he had already started a series of public
denunciations of the repressive policy of General Manuel Antonio Noriega, who at
the time was head of the G-2 of the Panamanian Army.
General Noriega accused him of corruption in office, smuggling of
weapons, and drug trafficking, and launched an investigation that lasted until
his death. In one of his final
writings, he accused General Noriega of having threatened to kill him several
times, and held him responsible for what might happen.
September 13, 1985, the day of his assassination
On Friday, September 13, 1985, Dr. Hugo Spadafora Franco left his house
in San José, Costa Rica, where he lived with his wife, a Costa Rican national,
and traveled to Panama City, taking the following route or itinerary, one he had
traveled several times: San José-Coto 47-Paso Canoas-David-Panama.
He took a small plane to Coto 47, a small locality near the border with
Panama. From there he took a taxi
to Paso Canoas (on the Panamanian-Costa Rican border), and lunched in the “Los
Mellos” restaurant, located in Panamanian territory.
The owner of the restaurant, his friend, Mr. Iván Darío González
Justavino, has made a statement to that effect.
Next door to the aforementioned restaurant, is the bus terminal for
service between Pasos Canoas and David, capital of the Province of Chiriquí,
with intermediate stops in the small town of Concepción.
Along the route between Paso Canoas and Concepción (30 kilometers), the
Panamanian Army, on the pretext of the Central American migration explosion, has
established two (2) migration check points in addition to the one at the border.
As was the case during the last four (4) trips, Dr. Hugo Spadafora Franco
was obliged to get off the bus for a few minutes at both check points
(sufficient time to radio the military command), and then allowed to continue
his trip. It should be emphasized that at those check points, only
undocumented persons are made to get off the bus, and Dr. Spadafora showed his
Panamanian personal identity card to all those who were travelling in the same
bus as he, and to the police as well. Once
the bus reached Concepción, Dr. Hugo Spadafora Franco got off with an agent of
the Defense Forces, dressed in civilian clothing, who, by some deception,
convinced him to leave the bus and pay his fare that far. That was the last time Dr. Hugo Spadafora Franco was seen
alive. On the morning of Saturday,
September 14, 1985, his body was found in Costa Rican territory decapitated and
horribly mutilated some 300 meters from the Panamanian border.
Denial of Due Process by the Panamanian Authorities
Aware of the great lack of credibility and lack of impartiality of the
Panamanian judiciary and investigatory agencies, the Spadafora family, supported
by the vast majority of the people of Panama, demanded that a special
investigatory commission be established, pursuant to Article 216 of the National
Constitution. Dr. Nicolás Ardito
Barletta, the then President of the Republic, upon leaving for New York on a
special mission to the United Nations, notified the Spadafora family that their
request would be met upon his return. When
President Ardito Barletta returned to Panama, he saw the “F-8” marking on
one of the windows of his plane, the same mark found on the back on Dr.
Spadafora’s corpse. President
Barletta was taken to the central barracks of the Defense Forces and forced to
From the very outset Eric Arturo Del Valle, the new President, showed
no interest in setting up an investigation into the death of Spadafora, and
maintained that such action would be unconstitutional.
The National Bar Association of Panama and 120 attorneys (among them the
Dean of the School of Law and Political Sciences of the University of Panama)
signed a document.
The Legislative Assembly, widely controlled by the Government party,
established an ad hoc committee to help the Ministry of Public Affairs in its
investigation. However, all the
members of that ad hoc committee who belonged to the opposition parties resigned
in protest over the fact that they were not allowed access to the case files.
The Panamanian Ministry of Public Affairs opened the case with the
reports that independent Panamanian newspaper “La Prensa” began publishing,
and it immediately became obvious that the intent was to cover up the truth and
discredit the reports published by “La Prensa” pertaining to the murder of
Dr. Hugo Spadafora F. The reports
had directly implicated Messrs. Francisco González Bonilla, Omar Vega Miranda,
and Eliecer Ramos, all members of the Panamanian Defense Forces.
Witness after witness was immediately provided, in all cases fellow
military, who placed those persons far from the site of the crime.
An extraordinary degree of uniformity was evident in their statements.
Despite the lack of impartiality with which the case was being
conducted, it produced two (2) interesting statements, one made by the driver of
the bus on which Dr. Hugo Spadafora traveled, and the other by the driver’s
assistant, both of whom were called in twice to make statements.
The first time, they denied that Dr. Spadafora had been on the bus.
It is important to point out that the aforesaid witnesses appeared for a
second statement, this time under the protection of the Chiriquí Province
Transport Workers Union out of fear that they had to make a statement, as they
had done the first time. The second
time, they expanded their original statement, and gave a true account that
culminated in the arrest of Dr. Spadafora by an agent of the Panamanian Defense
Forces dressed in civilian clothing. Out
of fear, many witnesses dare not come forward to testify as long as the terror
and intimidation tactics come forward to testify as long as the terror and
intimidation tactics used by the Panamanian dictatorship in connection with this
crime persist, a dictatorship headed by General Manuel Antonio Noriega, who has
systematically been violating human rights in the Republic of Panama.
A mere five (5) months after his murder, the Hugo Spadafora Franco case
was closed as per an act of discontinuance in favor of the three (3) individuals
mentioned earlier. It should be
stressed that one of the three magistrates on the bench handed down the decision
opposed the majority ruling, which the citizenry saw as an honest and courageous
act. Owing to its importance, the
latter part of the dissenting vote cast by Judge Andrés A, Almendral C. should
“If the First Superior Court District Attorney (Fiscalía Primera
Superior) began the case on the basis of the report published in the newspaper
“Extra,” and the newspaper “La Prensa” carried the same report on
Tuesday November 26, 1985, i.e., that a military jeep took Dr. Spadafora to
Corozo between 7:00 p.m. and 8:00 p.m. etc., etc., the place has to be visited,
in order to determine whether this is true or false, look for clues, interrogate
units and local inhabitants, etc.
Greater cooperation has to be requested of the Chief of the Fifth
Military Zone, in order to provide details concerning the movement of his troops
throughout the region, particularly along the border area in Paso Canoas, the
Concepción barracks, and the presumed detachment in Corozo.
The case cannot be closed so abruptly, with unanswered questions and
doubts, all of which could be dealt with through further investigation.
The sacred responsibility for the administration of justice is
singular. History will judge us by
our deeds. If even a trace of
inspiration remains, then the most appropriate course of action would be for the
case to be returned to the First Superior Court District Attorney that he may do
what has to be done. In this
matter, I cast my dissenting vote.”
Although the Dr. Hugo Spadafora Franco case has been closed by the
Panamanian judicial authorities, the Judiciary of the Republic of Costa Rica,
which country his body was found, has kept it open, recognizing that the murder
took place in Panama, as was declared publicly and on several occasions by the
Director of the Office of Judicial Investigation of Costa Rica.
The Spadafora family has launched a civic, non-violent movement to seek
the appointment of a special commission to investigate the cruel and vile
assassination of Dr. Hugo Spadafora F. It
has been involved in much peaceful civic actions, such as fasts, marches,
meetings lectures throughout the length and breath of the country, etc., with
the support of civic associations, social clubs. Political parties, the Church,
and the vital forces of the country. The response of the military and civic authorities has been
the absolute silence of an accomplice. Nevertheless,
the Spadafora family continues to bring pressure to bear to see justice done.
A copy of the report prepared by the Judicial Investigating Agency of
Costa Rica, dated September 19, 1985, addressed to Mr. Fernando Cruz Castro,
Director of the Ministry of Public Affairs, reporting numerous steps taken by
the aforementioned body following discovery of the decapitated corpse of Dr.
Hugo Spadafora in Costa Rican territory in the area referred to as Roble, Laures,
the approach to Roblito, a few meters from the Panamanian border. The purpose of those measures was to determine the nature of
the crime committed, and establish criminal responsibility. The report concluded by pointing out that:
“All the evidence indicates that Dr. Hugo Spadafora Franco was struck
down in Panamanian territory, and his body was dragged into Costa Rican
territory” (page 7 of the Report of the Judicial Investigating Agency of Costa
A copy of the statements made by Mr. Alexis Noe Baules Concepción,
driver of the bus in which Dr. Hugo Spadafora traveled into Panamanian
territory, before the Office of the First Superior Court District Attorney (Fiscalia
Primera Superior) of the Third Judicial District of Panama, Ministry of Public
In an initial statement made on September 18, 1985, Mr. Alexis Noe
Baules denied having known Dr. Spadafora; he also denied as having witnessed
anything irregular or unusual on the trip that took place on September 13, 1985
between the border and city of David. Subsequently,
on September 24, 1985, Mr. Alexis Noe Baules Concepción, elaborating on the
statements which he had made to the same judicial authority, admitted having had
Dr. Spadafora had been detained twice during the trip (Retén de Jacú and Retén
de la Estrella) by the Defense Forces of Panama, and subsequently released.
Lastly, he indicated that Dr. Spadafora got off the bus in the city of
Concepción, in the company of Mr. Francisco Eliecer González Bonilla,
nicknamed “Bruce Lee,” who had been following him from the border.
Mr. Alexis Noe Baules stated that his initial failure to describe all of
the events that occurred on September 13, 1985, was because he feared for his
own personal safety.
Also included was a copy of the statements sworn by Mr. Edwin Noel Nuñez,
assistant to the driver of the bus that carried Dr. Hugo Spadafora on September
13, 1985. Like the bus driver, Mr.
Edwin Noel Nuñez, in his original statement, denied any knowledge of the trip
made by Dr. Hugo Spadafora on September 13, 1985; subsequently, when elaborating
upon his original statement, he described the same events reported by the bus
driver, adding that he recalled that the person nicknamed “Bruce Lee” had
insisted that Dr. Spadafora accompany him when he got off the bus in” Concepción.”
Mr. Edwin Nuñez also stated that his initial failure to report all of
the facts had been because of his fear for his own personal safety.
A copy of the dissenting vote cast by Mr. Andrés A. Almendral C.,
magistrate of the Fourth Superior Court of Justice of Panama, dated February 7,
Judge Almendral dissented from the decision reached by his colleagues
on the Fourth Superior court of Justice, which issued a discontinuance of the
case begun as a result of the murder of Dr. Hugo Spadafora Franco.
In point of fact, the Fourth superior Court of Justice issued a final
discontinuance on February 7, 1986 (which has the effect of a completed
judgment) with respect to the accused, i.e., Omar Vega Miranda, Eliecer Ramos or
Eliecer Chararía (sic), and Francisco Eliecer González Bonilla, all members of
the Defense Forces of Panama, and the temporary discontinuance pertaining to the
legal investigation per se. The
latter means that the case may be reopened, but only in the event that evidence
is submitted against persons other than those initially accused.
In his dissenting vote, Judge Almendral maintained that a final
discontinuance of the case could not be issued because the facts were not
consistent with the procedural premises provided for in Article 2136 of the
Panamanian Code of Justice. In
point of fact, the aforementioned article provides that final discontinuance may
be issued only: 1) when it is
obvious that the crime has not been committed; 2) when the deed referred to does
not constitute a crime; 3) when the accused is exempt of criminal liability,
either because he falls into one of the categories of non liability, or for
another reason which exempts him or her; and, 4) when the punishable act
involved has already been dealt with in another trial in which a final sentence
has been issued involving the same accused person.
Judge Almendral indicated in his dissenting vote that “none of these
situations applies to the individuals under investigation.”
Moreover, Judge Andrés Almendral noted numerous gaps and
contradictions in the preliminary investigation conducted by the Ministry of
Public Affairs of Panama. For
example, in the aforementioned investigation, after having validated the autopsy
report on Dr. Hugo Spadafora, drafted by appropriate Costa Rica authorities,
said report indicates that Dr. Spadafora’s death occurred between the night of
September 13 and the early morning hours of September 14, and that Mr. Omar Vega
Miranda, a member of the Defense Forces of Panama and a suspect in the case, was
questioned about his activities, including those between 7:30 a.m. and 4:00 p.m.
on September 13.
The same judge also pointed out certain contradictions in the testimony
given by Mr. Eliecer Ramos or Eliecer Calvarias (sic), namely, that when
interrogated about his activities on September 13, 1985, he produced a medical
certificate attesting to a physical handicap: at the same time, however, he said that on the very same
September 13, he had been engaged in several personal and commercial activities
outside of the military barracks.
As to the third suspect, i.e., Mr. Francisco Eliecer González Bonilla,
in the view of Judge Almendral, it seems unlikely that he would have remained in
his quarters in the barracks of the David military zone, from 7:00 a.m., Friday
September 13, until Monday, September 16–in other words, for three consecutive
days–without ever leaving the premises.
Lastly, Judge Andrés Almendral noted several gaps and lacunae in the
measures taken by the Ministry of Public affairs of Panama, which did not take
into account the various charges leveled by the newspapers with respect to the
place where Dr. Spadafora had been killed In
Judge Allendale’s opinion, the judicial review is “full of unanswered
questions and doubts that could be resolved through further investigation.”
Lastly, the petition also submitted copies of certain political
statements made by Dr. Hugo Spadafora Franco in which he seriously criticized
the abuse of power by the Defense Forces of Panama, and particularly by certain
political and military authorities in Panama.
Moreover, he charged that he had received several death threats from
high-ranking officers in the Defense Forces of Panama for having made such
Under cover of a note dated May 16, 1986, the Commission transmitted to
the Government of Panama the pertinent portions of the aforementioned petition,
so that the Government might provide whatever information it deem appropriate,
within the period.
On August 6, 1986, in note OEA-570-86 from the Permanent Representative
of Panama to the Organization of American States, the Government of Panama
replied to the request for information submitted by the Commission, and attached
notes DM No. 576, dated July 21, 1986, from Mr. Jorge Acadia Arias, Minister of
Foreign Affairs of the Republic of Panama, and note No. DGP-515-86, dated July
8, 1986, signed by Mr. Carlos Augusto Valhalla B., Attorney General of the
Republic, the text of which is as follows:
Case No. 9726
The Panamanian Constitution provides that the Ministry of Public Affairs
if responsible for prosecuting crimes. This
is the provision of paragraph 5 of Article 217 of the National Constitution,
which states as follows:
Article 217. The
duties and responsibilities of the Public Ministry are:
To prosecute offenses and violations of constitution or legal provisions.
This authority is
reiterated in Article 302 of Law No. 61 of 1946, which are the Bylaws of the
Ministry of Public Affairs.
On the basis of the
foregoing, we conclude that in our country, the competence to conduct such
investigatory proceedings into crimes unquestionably belongs to the agents of
the Ministry of Public Affairs.
In exercising such
powers, the District Attorney of the First Superior Court of the Third District,
based on reports in the newspapers “Extra” and “La Prensa,” began the
respective investigation in order to establish the corpus delicti and
corresponding criminal responsibility.
To that end, the
District Attorney made the following statement o September 17, 1985:
Inasmuch as this
morning’s issues of the local newspapers have reported that on Saturday, the
14th of this month, the body of a person who, according to the information
reported, was Dr. Hugo Spadafora (in the newspaper “Extra”), was found in
the community of Laurel, in the jurisdiction of the Republic of Costa Rica, and
because the newspaper “La Prensa” reports that Dr. Hugo Spadafora entered
Panama on the 13th of the same month and was seen by Mr. Iván García having
lunch near the Costa Rican border, and subsequently, while traveling in the bus
with license plates 4B-52, drive by Mr. Alexis López, accompanied by assistant
driver Edwin Nuñez, was detained upon arrival at the bus stop in Concepción
and taken to the local barracks of the Defense Forces, it is decided that the
accounts reported by the aforementioned newspapers will be taken was grounds for
launching the appropriate investigation to determine whether a crime has been
committed and the culpability of its perpetrator or perpetrators.
the crimes committed in our country was done by bringing together into a single
case all of the evidence and procedures that had been conducted.
Such a case referred to as a summary proceeding as per the provisions of
the Panamanian procedural criminal law.
In this regard,
Article 2020 of the Legal Code provides the following:
Preliminary proceedings are all measures necessary to determine the
corpus delicti and discover the criminals or those culpable.
The officer who conducts such proceedings is known as an examining
In keeping with the
applicable criminal procedure, the District Attorney of the First Superior court
of the Third District completed the examining procedures to the extent possible,
and referred the investigation to the appropriate jurisdictional body so that
the proper procedural measure might be determined.
The action taken
followed by the agent of the Ministry of Public Affairs was based on the
provisions contained in Article 2129 of the Legal Code, which states:
Once the summary proceedings have been completed, the agent of the
Ministry of Public Affairs will refer them to the competent judge with the
request that the person deemed responsible be brought to trial or that a final
or provisional discontinuance be ordered, as the case may be.
The transfer of the case by the District Attorney to the Fourth Superior
Court of Justice, the appropriate jurisdictional body to decide on the summary
proceedings, was done through Review Procedure No. 139, dated December 31, 1985,
in which the examining official makes the following points and conclusions:
conducted by the Ministry of Public Affairs established that Dr. Hugo Spadafora
Franco was dead, and that his corpse was found by Costa Rican authorities in
Quebrada El Roblito, and that the autopsy on his body was conducted in Costa
Rica. Emphasis is placed on the
fact that the death certificate for Spadafora Franco–which appears in record
190–indicates Laurel, Republic of Costa Rica, as the place of death.
With the limits of
what is permitted by Article 2125 of the Legal Code, this agency of the Ministry
of Public Affairs took action to establish corpus delicti and determine the
identity of the criminals and their accomplices.
The first of the particulars has been duly established by the Autopsy
Report and the death certificate on record.
However, as for the subjective element or criminal liability, the
evidence that has been introduced in the case has not make it possible to
identify the person or persons who committed the punishable act.
… … …
while it is true that the death of Dr. Hugo Spadafora Franco has been proven,
and that such death was the result of a criminal act, it is also true that the
evidence introduced in this criminal investigation is not sufficient from the
legal standpoint to prove that the accused Francisco González Bonilla, Omar
Vega Miranda, and Eliecer Ramos were either directly or indirectly involved in
acts which led to the violent death of the aforementioned physician, on
September 13, 1985, as per the report on the autopsy conducted by Dr. Eduardo
Vargas, Coroner for the Republic of Costa Rica.
In view of the
foregoing, we are persuaded that the procedural legal situation arising from the
measures taken is consistent with the premises provided for in Article 2136 of
the Legal Code; we, therefore, pray that the Court of Justice will issue a
decree of discontinuance in favor of suspects Francisco González Bonilla, Omar
Vega Miranda, and Eliecer Ramos, pursuant to the legal provision invoked, unless
the Court should reason otherwise. Once
that procedural phase had been completed, the Honorable Fourth Superior Court of
the Third District took cognizance of the case, proceeded to evaluate it, and
handed down a decision on February 7 of this year, in which it decided to issue
a final discontinuance for the accused on the following grounds:
Folios 282 and 323 contain authentic copies of the measures taken in the
Republic of Costa Rica upon discovery of the corpse of Dr. Hugo Spadafora Franco
in the territory of the nation; thus, we may establish the exact location was
under the bridge of the La Vaquita River in the place known as Roble in the
Laurel District. In the report,
which appears on Folio 19, it was explained that the body was submerged to the
waist with the lower extremities out of the water, on its back.
It was found to be a male, approximately 35 years of age, completely
decapitated. The report further
stated that even though a search was conducted, the head of the body was not
found. The body was found by young
Franklin Vargas Velarde, near Roblito de Laurel, a village which is located at a
distance of 200 meters east of the border.
On Folios 290 and
291 contain the coroner’s report, signed by Dr. Luis del Valle Carazo,
resident physician, Dr. Rodrigo Quiroz Coronado, and validated by Dr. Félix
Baudrit Gómez, Head of Forensic Pathology Section of the Investigation Agency
of the Republic of Costa Rica.
As we have
indicated in previous paragraphs, although it is quite true that the commission
of an illegal act has been duly established through the autopsy report contained
in the authentic copies sent by the legal authorities of Costa Rica via
diplomatic channels, we have also stressed the legal status of the only three
suspects in the summary proceedings, and have pointed out that there is no
evidence of elements linking them to the deed under investigation, inasmuch as
there is not a single shred of documentary or testimonial evidence against the
The decision of the
court was adopted by a majority of votes. Such
a result is referred to as a “judicial decision” in the Panamanian
procedural system, according to the provisions of Article 284 of the Legal code,
Judicial decision shall mean the one issued by courts or any public
offices or private persons temporarily or permanently invested with judicial
may be adopted by a simple majority, according to the provisions of Article 45
of Law No. 47 of 1956, applicable to the Superior Courts of Justice, by virtue
of the reference made in Article 131 of Law 61 of 1946.
Article 45 mentioned above reads as follows:
An absolute majority of votes is required in all decisions in bane and
full court and in chambers. In
bane, the majority shall be five judges, and in chambers, three.
It will be noted
that the court dealing with the case weighed the various pieces of evidence
contained in the case file, and determined that there were no elements linking
the suspects to the crime under investigation.
Up to this point, we have specifically analyzed the criminal proceedings
to which you refer in your letter. Nevertheless,
in order to cooperate in the measures undertaken by the Inter-American
Commission on Human Rights, our office deems it necessary to make known certain
points with respect to the petition containing the Brief of the facts pertaining
to the murder of Dr. Hugo Spadafora Franco, appended to the petition submitted
to that international body.
For that reason,
the following explanation is necessary:
As established in the criminal proceedings, all of the particulars
reported in the media were investigated.
The accusation brought before the Inter-American Commission on Human
Rights is based on what was alleged to be proof but which, when weighed by the
jurisdictional body, was dismissed by the legal logic explained by the Court.
Let us review each
All of the details
made known to the investigating officer by various channels, and somehow
logically related to the deed under investigation were analyzed, weighed, and
explained by that officer to the Court hearing with the case, which also took
them into account in reaching a decision.
Exhaustion of the
procedures established in our legal system in jurisdictional matters were
precisely what led the court to the procedural stage involving a decision with
respect to the case.
The decision was
well founded, and was taken with due regard for a pertinent constitutional and
legal authorities. Hence, our
Office believes that the procedures called for in our country have been
Inasmuch as the request for information which has given rise to this
statement requires an explanation as to whether or not internal jurisdiction
remedies have been exhausted, we should mention the proceeding initiated by Dr.
WINSTON SPADAFORA FRANCO, in a brief submitted to the Attorney General’s
Office on June 19, 1986, by which he requested that the alleged involvement of
general Manuel Antonio Noriega in the assassination of Dr. Hugo Spadafora Franco
In light of the
abstract of the investigation conducted by the Public Prosecutor for the First
Superior Court Third District, this Attorney General’s Office requested that
the court hearing the case provide duly authenticated copies of the judgment it
handed down. This was requested in
order to establish the current status of the investigation.
that the petition filed by Dr. Winston Spadafora Franco involved the same
criminal act that was considered and decided upon by the Fourth Superior Court
of Justice of the Third District, that fact was considered and the documentation
submitted by the claimant consisting of newspaper clippings, was weighed.
The aforementioned brief was referred to the Criminal Chamber of the
Supreme Court of Justice, as per review No. 28 of June 25, 1986.
In that document,
this Attorney General’s Office considered the following points:
First of all, given
the existence of a proceeding in which the cause of the death of Dr. Hugo
Spadafora Franco was investigated, proceedings now with the Fourth Superior
Court of Justice as a result of a judicial decision, it is procedurally
inadmissible to initiate a new investigation using as a basis the document
submitted to this office by Dr. WINDSTON SPADAFORA FRANCO, inasmuch as Article
1984 of the Legal Code does not allow this.
Hence, since there
is a procedural constraint that obliges us to conduct only one proceeding for
any given crime, we are, therefore, unable to open up a new investigation based
on the brief filed with this office.
The best procedural
tactic would be to process the brief as a request to reopen the case, which is
the only procedural approach that would be feasible.
To reopen a case,
certain procedural requirements must be met.
Before a criminal
investigation can be reopened, the investigation must have been provisionally
closed by the appropriate Court. New
evidence warranting must also be presented, as provided for in the second
paragraph of Article 2138 of the Legal Code.
In this regard, it
should be pointed out that the basic requirement of Article 2138 of the Legal
Code, with respect to the reopening of criminal proceedings is ultimately the
existence of new evidence, those facts that serve to establish the occurrence or
nonoccurrence of the deed, which is a matter to be determined in a criminal
conducted a thorough, detailed analysis of the newspaper clippings submitted by
the petitioner, our Office believes that they are only hearsay; as evidence,
they are not, in themselves, persuasive enough to establish a link between the
personal named as the perpetrator of the crime and the crime itself.
It is a well known
fact that the “new evidence” referred to in Article 2138 of the Legal Code,
paragraph two, is evidence that was not know at the time of the investigation
and, when submitted after the conclusion of the inquire, establishes whether or
not there is criminal liability, which, in turn, would warrant a reopening of
Inasmuch as the
newspaper clippings submitted do not permit the necessary procedural premises
required in order to reopen a case, our Office believes that it would be
inappropriate to accede to the request, and we respectfully request your
reference, we cite below the text of Articles 1984 and 2138 of the Legal Code,
which read as follows:
Only one proceeding shall be instituted for any given crime, even when
more than one person may be responsible. Moreover,
a single proceeding shall be instituted when there is only one prisoner,
although the crimes involved may be several.
A single proceeding
shall also be instituted in the case of collective crimes, although there may be
several criminals involved whose trial may be the purview of different
A final discontinuance terminates the respective proceeding against the
persons for whom it is ordered, and produces exceptio rei adjudicata.
discontinuance does not terminate the proceeding. The investigation of those for whom a temporary
discontinuance has been ordered may be continued whenever new evidence is
We must point out
that this Attorney General’s Office had to refer the petition to the Supreme
Court of Justice, inasmuch as the person indicated as accomplice to the crime is
in public office; in such cases the forum of judgment must be the highest court.
In a Ruling dated
June 27, 1986, the Honorable Criminal Chamber of the Supreme Court of Justice
decided to make a determination in the case.
The ruling considered the following points:
of the record containing the brief submitted by Dr. Winston Spadafora Franco
indeed reveals that in addition to his petition, he submitted several newspaper
clippings pertaining to news appearing in the June 12, 1986 issue of the New
York Times, published in that city in the United States, which were reproduced
in their original version and duly translated into Spanish in the local
newspapers, El Extra and La Prensa in the issues for June 13 of
this year; the content suggests involvement by General Manuel Antonio Noriega,
Commander in chief of the Defense Forces of Panama, in the murder of dr. Hugo
In this regard, it
should be pointed out that the body of Dr. Hugo Spadafora Franco was discovered
in Quebrada de “El Roblito,” a community in the Republic of Costa Rica, and
that the scientific evidence introduced during the corresponding investigation
reveals that he had died during the night of the 13th or the early morning of
the 14th of September 1985.
It is clear that
the Ministry of Public Affairs in due course conducted a rigorous investigation
into the homicide of the Panamanian citizen, and that the determination of the
summary proceeding was made by the Fourth Superior Court of Justice, in a ruling
dated February 7, 1986, a duly authenticated copy of which is contained in
leaves 27 to 76 of this record.
In keeping with the
structure of our criminal procedural system, “Only one proceeding shall be
instituted for any given crime, even when more than one person may be
responsible. Moreover, a single
proceeding shall be instituted when there is only one prisoner although the
crimes involved may be several. The
standard that establishes that principle for criminal proceedings is Article
1984 of the Legal Code which also provides the following:
“A single proceeding shall also be instituted in the case of collective
crimes, although there may be several criminals involved whose trial may be the
purview of different jurisdictions.” (Underlining
by the Chamber).
“Inasmuch as what
is involved is a summary proceeding for which a final discontinuance has been
ordered in favor of OMAR ENRIQUE VEGA MIRANDA, ELIECER RAMOS, and FRANCISCO
ELIECER GONZALEZ BONILLA, the ruling cannot be otherwise, since on the basis of
the criminal law claim represented in the plea entered by Dr. Winston Spadafora
Franco, the only way would be to reopen the case, as a form of procedural
governance given in this case to the Chamber of the Court, which is responsible
for weighing the evidence submitted against certain persons in the corresponding
formulation of the charges.
The reopening of a
proceeding, when decided on the basis of a well-founded decision in favor of
reopening, constitutes a way of contesting by means of newly adduced evidence,
since it presupposes a previous well-founded decision of merit.
In this case, what
is sought is the continuance of the formal proceeding, which is tantamount to a
kind of resumption of the proceeding against another person.
It should be stressed that reopening the proceeding must be based on a
presumption of new evidence. Obviously,
it is procedural policy to require that evidence be produced of an incriminating
nature. Applicable in the case is the concept of the relevance of the
evidence which, in the case of a criminal proceeding, functions as a limitation
on the principle of freedom of evidence or the contribution thereof, with the
result that, in the case of a summary proceeding, the evidence introduced must
be weighted in order to determine whether it is reliable enough to make it
One might say that
in order for a criminal inquiry to be opened, the weighing of alleged evidence
submitted for that purpose, namely to reopen the investigation, operates as an
absolute limitation, which is necessary in order to reach a well founded
decision as to whether on the basis of the evidence submitted, such a procedure
should be opened.
The work done by
the Chamber in beginning to weigh the contents of the newspaper clippings
submitted with the request, is in accordance with the system of sound judgment,
for an assessment of the contents of news dispatches read in the aforementioned
newspaper clippings, which in the final analysis determines whether or not they
would be accepted as justification means for the aforementioned reopening, all
of which can lead to an objective affirmation as to the certainty content of the
alleged deeds, their actual incriminatory nature, and other characteristics, as
proof against a certain person.
At the time the
summary proceeding was instituted, there was speculation with respect to the
eventual implication of the Defense Forces in the homicide of Dr. Hugo Spadafora
Franco. The same type of
speculation is now being made with respect to General Manuel Antonio Noriega,
with no factual grounds being found to link him to the aforementioned homicide.
Said speculation is being made by persons or media outside the Panamanian
jurisdiction, for which reason there is not sufficient control eventually to
demand liability for libel, slander, or defamation of character.
In point of fact,
none of the speculations, either those made within the national territory or
those contained in foreign press dispatches provide any facts linking General
Manuel Antonio Noriega to the Murder of Dr. Hugo Spadafora Franco.
Moreover, if this
is the procedural situation that arises from the request made by dr. Winston
Spadafora Franco, it would not warrant classifying a criminal someone who is not
linked to the crime.
Indeed, in the
newspaper reports submitted–all published by the aforementioned national
newspapers–the Chamber does not find sufficient merit in terms of relevance
and effectiveness to act favorably upon the petition to institute a new
investigation. To do this the
summary proceeding would have to be reopened since the evidence is so
insubstantial that it would be pointless to attempt to establish facts of
relevance to an investigation on the basis of alleged evidentiary facts that
offer nothing specific in the way of proof, and are not, therefore, proof.
In view of the
foregoing, the Honorable Criminal Chamber of the Supreme Court of Justice
declares that there are no grounds for reopening the summary proceeding.
According to the
provisions of Article 204 of the National Constitution, rulings by the Supreme
Court of Justice or its Chambers cannot be appealed either on the grounds of
unconstitutionality or on the basis of constitutional guarantees against such,
for which reason our Office believes that, in this case, all of the
jurisdictional procedures established by the laws of the Republic of panama have
Our office believes
that in the proceeding prompted by the request for information which we now
provide, the constitutional and legal proceedings applicable to the matter have
been observed, and that each and every one of the procedural guarantees
enshrined in our legal system has been respected.
power, a consubstantial element of the sovereignty of the state, has bee applied
to this case, without omitting any existing legal procedure.
On August 11, 1986, the Commission transmitted the reply of the
Government of Panama to the complainant so that he may submit his comment within
On August 22, 1986, the Commission received a letter from Mr. Larry
Garber, a representative of the International Human Rights Law Group, informing
that, with the expressed authorization of the plaintiff, Mr. Winston Spadafora,
he would represent the complainant with the advisory services of Ms. Laura
Bocalandro and Mr. Stephen J. Schnably, in the proceeding to be conducted before
In a note dated September 11, 1986, the Commission acknowledged receipt
of the note sent by Mr. Larry Garber, asking that the International Human Rights
Law Group be regarded as the representative of the petitioner for the purpose of
continuing to process Case No. 9726.
1. See Supplementary Petition and Comments on the Government’s
Reply dated October 2, 1986.
2. Reply from the Government of Panama, dated September 8, 1987,
3. See the testimony given before Panamanian and Costa Rican
authorities, quoted in the ruling handed down by the Fourth Superior Court,
February 7, 1986. Also see the
Supplementary Petition of October 2, 1986, pp. 16-29; and other
presentations made by the petitioners.
1. See the observations dated October 2, 1986.
2. Reply dated September 8, 1987, page 7.
3. Reply of the Government, dated September 8, 1987, page 6 (the
underlining is ours).