CCPR/C/52/D/460/1991

Simons v. Panama, Communication No. 460/1991, U.N. Doc. CCPR/C/52/D/460/1991

(1994).

Distr. RESTRICTED

CCPR/C/52/D/460/1991

26 October 1994

Original : ENGLISH

HUMAN RIGHTS COMMITTEE

Fifty-second session

DECISIONS

Communication No. 460/1991

Submitted by: Terani Omar Simons

Alleged victim: The author

State party: Panama

Date of communication: 27 February 1991 (initial submission)

Documentation references:

Prior decisions

- Special Rapporteur's rule 91 decision, transmitted to the State party on 28 December

1992 (not issued in document form)

Date of present decision: 25 October 1994

[ANNEX]

DECISION OF THE HUMAN RIGHTS COMMITTEE UNDER THE OPTIONAL

PROTOCOL

TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

- FIFTY-SECOND SESSION -

concerning

Communication No. 460/1991

Submitted by: Terani Omar Simons

Alleged victim: The author

State party: Panama

Date of communication: 27 February 1991 (initial submission)

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 25 October 1994,

Adopts the following:

Decision on admissibility

1. The author of the communication is Terani Omar Simons, a Panamanian citizen

currently residing in El Dorado, Panama. He claims to be a victim of violations by

Panama of his human rights without, however, invoking specific provisions of the

International Covenant on Civil and Political Rights.

The facts as presented by the author:

2.1 Towards the end of 1981, the author was employed by a private insurance

company, the Compania Fiduciaria y de Seguros S.A.. In December 1981, he was

appointed Managing Director (Gerente General) of this company and at the same time

became a major shareholder. The company managed, at the time, a large percentage

of the insurance contracts administered by an official social security organism, the

Caja de Seguro Social.

2.2 In October 1982, the author was accused of being an accomplice to illegal

financial transactions concerning the Compania Fiduciaria and to have pursued

personal interests in connection with the administration of a large public housing

project (Programa colectivo de viviendas de la Caja de Seguro Social) run by the Caja

de Seguro.

2.3 In a financial audit (vista fiscal) of 24 January 1983, the public prosecutor charged

the author with abuse of authority. On 19 May 1983, Mr. Simons was also charged

with the offence of bribing officials (delito de peculato culposo), to the detriment of

the Caja de Seguro Social.

2.4 On 27 September 1983, the author requested a local tribunal (Segundo Tribunal

Superior de Justicia) to strike the indictments from the court agenda. On 31 January

1985, the Criminal Chamber of the Second District Court of Panama (Juzgado

Segundo del Circuito, Ramo penal) found him guilty as charged on both counts and

sentenced him to fifteen months' imprisonment. The author appealed to the Segundo

Tribunal Superior de Justicia on 27 March 1985, but the appeal was dismissed. On an

unspecified date in 1987, another court(Juzgado IIª - Ramo penal) rejected the author's

request for the provisional suspension of execution of the sentence (suspención

condicional de ejecución de la pena). In November 1990, the Segundo Tribunal de

Justicia dismissed the author's (further) appeal and confirmed the decision of 1987. At

the same time, it ordered the author's arrest ("... se dictó orden de arresto").

2.5 The author claims that the criminal proceedings against him were based on false

evidence (pruebas falsas). He explains that, in May 1982, two cheques had been paid

to the benefit of two former directors of the Caja de Seguro Social. The prosecution

contended that these two cheques were paid by the insurance company managed by

the author; the author however maintains that he never signed cheques during the time

in question and contends that the cheques were signed by shareholders of two

construction companies, Alveyco S. A. and Urbana de Expansión S.A., with whom he

maintained no contacts. He therefore claims that he is a victim of a judicial error

amounting to a denial of justice. The author further contends, without giving details,

that as a result of the criminal proceedings, he suffered unlawful attacks on his honour

and professional reputation, as well as substantial financial damages.

The complaint:

3. It transpires from the facts as described above that the author claims to be a victim

of a violation of articles 14 and 17 of the Covenant.

Issues and proceedings before the Committee:

4.1 Before considering any claims contained in a communication, the Human Rights

Committee must, in accordance with rule 87 of its rules of procedure, decide whether

or not it is admissible under the Optional Protocol to the Covenant.

4.2 On 28 December 1992, the communication was transmitted to the State party

under rule 91 of the rules of procedure, requesting it to provide information and

observations on the question of admissibility. No information was received from the

State party within the imparted deadline. On 29 July 1994, the State party was advised

that any information or observations should reach the Committee well in advance of

the Committee's 52nd session; no submission has been received. The Committee

expresses its regret at the State party's failure to cooperate and reaffirms that it is

implicit in the Optional Protocol that a State party provide the Committee in good

faith with all the information at its disposal. In the circumstances, due weight must be

given to the author's allegations, to the extent that they have been substantiated, for

purposes of admissibility.

4.3 Concerning the author's contention that he was a victim of a denial of justice, the

Committee notes that his complaint relates primarily to the evaluation of the evidence

in the case by the Panamanian tribunals. It recalls that it is in principle for the

domestic courts of States parties to the Covenant to review the evidence in any

particular case and for the appellate courts to review the evaluation of the evidence by

the lower courts. It is not for the Committee to evaluate the evidence in a case, unless

it can be ascertained that the court's decision was arbitrary or amounted to a denial of

justice, or that the judge otherwise violated his obligation of independence and

impartiality. After reviewing the material before it, the Committee cannot conclude

that the proceedings against Mr. Simons suffered from such defects. Therefore, this

claim is inadmissible as incompatible with the provisions of the Covenant, pursuant to

article 3 of the Optional Protocol.

4.4 As to the claim under article 17, the Committee considers that the author has

failed to substantiate, for purposes of admissibility, that the judicial proceedings

against him and his conviction constituted an arbitrary or unlawful attack on his

honour and reputation. In this respect, accordingly, the author has no claim within the

meaning of article 2 of the Optional Protocol.

5. The Human Rights Committee therefore decides:

(a) that the communication is inadmissible under articles 2 and 3 of the

Optional Protocol;

(b) that this decision be communicated to the State party and to the author of

the communication.

[Adopted in English, French and Spanish, the English text being the original version.

Subsequently to be issued also in Arabic, Chinese and Russian as part of the

Committee's annual report to the General Assembly.]

footnotes

* Made public by decision of the Human Rights Committee.