Privacy, Data Protection and Retention, Surveillance
Pavolotzki, Claudio et. al v. Fischer Argentina S.A.
Closed Contracts Expression
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The First Oral Judicial Circuit Court of Panama ruled that the former President of Panama, Ricardo Martinelli, was not guilty of the interception of communications without judicial authorization, surveillance without authorization, and embezzlement of state funds to purchase espionage equipment. The case was brought following an investigation by the Public Prosecution Service of Panama into allegations that Martinelli had ordered National Security Council officials to monitor the digital communications of over 150 journalists, union leaders and members of civil society between 2012 and 2014. The court recognized “indications” of “activities outside the law” in the National Security Council, but held that the evidence and testimonies presented by the Prosecution were insufficient to find Mr Martinelli guilty of the charges.
From 2009 to 2014, Richardo Martinelli was President of Panama. The Public Prosecution Service allege that, between 2012 and 2014, Mr Martinelli ordered the National Security Council to spy on the electronic communications of journalists, union leaders and representatives of civil society organizations. To conduct the illegal interceptions and surveillance, government officials allegedly used electronic equipment, human and public resources from the National Security Council.
On December 22, 2015, the Supreme Court of Panama ordered Mr Martinelli’s arrest for the use of public funds and for spying on more than 150 citizens. Among the alleged victims of the surveillance were members of the opposition Revolutionary Democratic Party. The arrest was ordered following Mr Martinelli’s failure to appear before a hearing earlier that month. The former President had left Panama in January of 2015, shortly before the Supreme Court announced their investigation into his conduct over separate corruption allegations. In June 2018, Mr Martinelli was extradited from Miami, Florida, to face trial after Panama issued an extradition request. He had applied for political asylum, but, following several appeals, his extradition was approved by the United States. The Supreme Court only sought Martinelli’s extradition on corruption offences, meaning that he could not be tried for other alleged charges. Mr Martinelli was initially held at El Renancer prison during the trial, but was later transferred to house arrest.
The defendant moved to dismiss the charges against him, arguing that the case was a criminal conspiracy led by his former ally, Juan Carlos Varela. The Prosecutor’s Office, in turn, requested a 21-year sentence for the interception of telecommunications without authorization, seizure and embezzlement.
The three-judge panel of the First Oral Judicial Circuit Court of Panama was required to determine whether the evidence presented before the Court constituted a sufficient basis for charging former president Ricardo Martinelli with the crimes of unlawful interception of private communications and embezzlement.
Mr Martinelli claimed to be innocent, arguing that the case against him was a “criminal conspiracy” produced by a former ally, Juan Carlos Varela, who governed Panama from 2014 to 2019. Among the alleged victims of the wiretaps were high-ranking members of the opposition Revolutionary Democratic Party as well as Jose Luis Varela, the brother of Juan Carlos Varela who succeeded Mr Martinelli as president in 2014.
The Office of the Prosecutor presented charges against Martinelli before the First Oral Judicial Circuit Court of Panama on the grounds that the actions of Mr Martinelli constituted unlawful interception of private communications and embezzlement. The Prosecutor’s Office also stated that, after the presidential elections of 2014, Martinelli dismantled the area where the illegal interceptions were conducted to eliminate any evidence that could lead to a criminal investigation. The Public Ministry presented several witness testimonies from the National Security Council to explain how different intelligence and espionage systems were used to hack the private communications of individuals.
The Court discussed the right to privacy and acknowledged that under article 29 of the Constitution of Panama, “[c]orrespondence and other private documents are inviolable and shall not be searched or seized except by warrant of a competent authority, for specific purposes and in accordance with the legal formalities.” The Court further noted that article 167 of the Criminal Code protects the privacy of telephone conversations or other similar means. The Court then referenced international treaties signed by Panama that protect the right to privacy, including article 11 of the American Convention on Human Rights: “[n]o one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation. Everyone has the right to the protection of the law against such interference or attacks.” The Court emphasized that the inviolability of privacy communications should not be infringed upon under any circumstances as it directly affects an individual’s fundamental right to privacy.
After examining the evidence and testimonies presented, the tribunal determined that the Office of the Prosecutor and the Public Ministry failed to sufficiently prove that the National Security Council had intercepted the communications of the victims without prior judicial authorization. Despite recognizing “indications” of illegal activity in the National Security Council, the Court found that questions of evidence remained unanswered. The Court also noted that Mr Martinelli’s rights had been violated by the Public Prosecution Service, referencing the fact that his lawyers had not been present during one part of the investigation.
The Court held that it was not possible to determine whether the former president had misappropriated the electronic equipment and computers. It also added that “the investigation did not meet standards of completeness and rigor” [p. 94], as the evidence obtained was not cross-examined by experts. Consequently, the Court dismissed the charges presented against Martinelli and removed the precautionary measures.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the Court acknowledged the importance of right to privacy and the inviolability of communications, its ruling lacked an in-depth analysis about the impact surveillance has against targeted individuals and the chilling effect on press freedom. The Court also overturned the charges against Mr Martinelli on the basis of a technicality regarding the standard of evidence presented by the Prosecution.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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