Ana Matilda Gómez Ruiloba v. Panama
Removal of the Former Attorney General of Panama
On December 20, 2004, Ana Matilda Gómez (“A.M. Gómez”) was appointed attorney general of Panama for a ten-year term. In 2005, after receiving a complaint against a prosecutor for bribery, Gómez opened an investigation against him. The prosecutor was caught soliciting a bribe from the father of a detained minor and sentenced to a three-year prison sentence after Gómez authorized wiretapping the father’s cell phone.
The prosecutor then contested the legality of the use of wiretapping in the corruption investigation before the Supreme Court, and in 2007, the Supreme Court changed its ruling and declared the telephone interception that Gómez authorized during the undercover operation unconstitutional. In 2009, the dismissed prosecutor filed a criminal complaint against Gómez , accusing Gómez of abuse of power for having authorized wiretapping in the investigation against him. Gómez contested the regularity of the criminal investigation against her before the Supreme Court, but the court never issued a response.
On January 28, 2010, by five to four votes, the Supreme Court decided, as a precautionary measure, to suspend Gómez from office. One of the judges who voted in favor of her suspension had been subject to an investigation ordered by Gómez. Gómez had requested that the Supreme Court recuse him, but this request was ignored. Gómez filed an appeal against the suspension that was declared inadmissible by a single Supreme Court judge. She filed another appeal before all judges of the Supreme Court, but this appeal was also dismissed.
On August 12, 2010, the Supreme Court convicted Gómez of abuse of power, imposing a six-month prison sentence, which was replaced by a fine and a four-year ban on holding public office. Gómez was then dismissed from her position of attorney general. She was barred from challenging this decision.
In March 2011, the press reported on the existence of a group of former prosecutors and lawyers called PAMAGO (“Perjudicados por Ana Matilde Gómez”, or “prejudiced by Ana Matilde Gómez”). The group reportedly met several times in 2010 next to the Palacio de las Garzas, the governmental office and residence of the President of Panama, to orchestrate the ouster of Gómez using legal means.
Background
On February, 16, 2011, Gómez filed a petition before the Inter-American Commission. The Commission declared the case admissible on October 16, 2018.
Open Society Justice Initiative Involvement
The Justice Initiative submitted an amicus brief before the Inter-American Commission of Human Rights, focusing on international and European standards requiring states to ensure the independence of chief prosecutors and guarantee prosecutorial freedom from reprisals or intimidation for decision-making. The Justice Initiative also highlighted the need for courts to be independent and impartial.
Arguments
The independence of prosecutors is a key element of the rule of law. UN and European bodies have reached a broad consensus about the need to guarantee the independence of prosecutors as a fundamental component of the administration of justice. Independent prosecutors, willing to investigate and prosecute individuals, even those who may hold considerable power, play a key role in strengthening the rule of law. In addition, the independence of prosecutors is largely accepted as a safeguard closely linked with the independence of judges, which was upheld by the European Court of Human Rights in Kövesi v. Romania.
Transparent and accountable appointment and dismissal process of chief prosecutors are essential to secure independent prosecution services. International and regional bodies unanimously agree that processes for appointing and dismissing chief prosecutors should be robust to ensure the independence of these officials. The independence of prosecution services is intrinsically linked with the existence of processes governing the appointment and dismissal of chief prosecutors that are merit-based, transparent, and accountable. This process should avoid politically influenced nominations and prevent dismissals that could be retaliatory as a result of withstanding political pressure or influence.
Criteria for the removal of a chief prosecutor must be anchored in the law and comply with functional immunity. The dismissal of chief prosecutors should be subject to strict guidelines, which should guarantee their independence and impartiality. To this effect, a removal should never be arbitrary, but be governed by law providing objective criteria for grounds for dismissal. In addition, prosecutors, including chief prosecutors, must be able to perform their functions independently, without unjustified exposure to civil, penal, or other liability that could lead to their removal. They should therefore benefit from functional immunity for actions carried out in good faith in pursuit of their duties. In other words, prosecutors, similar to judges, should not be held personally responsible for decisions taken in the context of their official duties that are based on a personal intellectual and legal analysis.
The guarantees must include access to an independent and impartial court and a fair trial. The guarantees of a right to a fair trial have been widely recognized by international and European bodies as applicable to decisions affecting the career of prosecutors, including chief prosecutors, in order to protect their independence. These guarantees include the right to access to court, the right to a fair hearing, the right to adversarial proceedings and equality of arms, and the right to an effective remedy. The right to access to courts requires that courts be independent and impartial.
The Justice Initiative submits a third-party intervention to the Inter-American Commission.
The Inter-American Commission declares the case admissible.
Media reports reveal that former prosecutors and lawyers called PAMAGO conspired to remove Gómez from office using legal channels.
Gómez files a petition before the Inter-American Commission on Human Rights.
The Supreme Court convicts Gómez, by five votes against four, on charges of abuse of power and imposes a six-month term in prison and a four-year term of ineligibility to hold public office. Gómez is then removed from her position as prosecutor general, and she is barred from challenging the decision.
Gómez challenges this decision, but her appeal is dismissed.
The Supreme Court decides to open the criminal prosecution against Gómez, by four votes against three. The judge Wilfredo Sáenz is among the four judges who vote in favor.
Gómez challenges the suspension, but her recourse is dismissed the same day by judge Wilfredo Sáenz. Gomez lodges then an appeal before the full bench, but this appeal is dismissed the same day.
The Supreme Court orders the suspension of Gómez as prosecutor general, as a precautionary measure, by five to four votes.
Gómez requests the recusation of José Abel Almengor. The Supreme Court dismisses Gómez's request because it was submitted too late, but replaces Almengor with judge Wilfredo Sáez. Gómez immediately requests the recusation of judge Wilfredo Sáez, since her office had conducted a criminal investigation against him and his wife was dismissed from the Prosecution Office when Gómez was appointed as prosecutor general. Five months later, the Supreme Court dismisses Gomez’s request, after the precautionary measures against her had already been ordered.
The administration of the Prosecution Office requests that the Supreme Court take precautionary measures against Gómez. The case is assigned to the judge José Abel Almengor, a former prosecutor against whom Gómez had previously conducted disciplinary proceedings.
Gómez challenges this decision before the Supreme Court, and fails to receive a response.
A criminal investigation is opened against Gómez for alleged abuse of power for having authorized the wiretapping of a claimant.
The Constitutional Court of Panama states that wiretapping can only be ordered by investigating judges, changing a ruling that it had previously issued.
Gómez opens an investigation against a member of Panama's Public Prosecutor's Office for alleged corruption and authorizes the wiretapping of the claimant.
Ana Matilda Gómez Ruiloba is appointed attorney general of Panama for a ten-year term.
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