In a decision contradicting a position taken by the Supreme Court in 2010, a judge found no malice in the actions of ex Attorney General Ana Matilde Gomez and former general secretary of the Public Ministry Rigoberto González Montenegro in wiretapping a former prosecutor.
Third circuit Municipal judge Boris Municipal Quintero made the decision in a case that has caused consternation in legal circles since Gomez was forced from office after being found guilty by the Supreme Court for ordering a wire tap of prosecutor Archimedes Saez during a sting operation. Saez was being investigated for seeking a bribe from a defendant.
The Court found that the ex Attorney General Gomez committed a fraudulent act with the intention to cause harm, because Article 29 of the Constitution, after the reforms to the Constitution of 2004 established that the intervention of telephone communications must be ordered by a judicial authority, interpreting that prosecutors are competent but a non-judicial authority. Prior to the reforms, the wiretaps could be ordered by a competent authority.
Before being declared unconstitutional wiretapping ordered by the ex Attorney General the Court had not ruled on the issue.
"From the beginning I said that the allegations do not constitute a crime, it can not be considered a fraudulent constitutional interpretation. What had been intentional and that the Court acted, noting that prosecutors are not judicial authority and yet, it was decided to order a wiretap," said Gonzalez Montenegro.
"The gist of all this is that at the same facts have been different decisions by different courts …Both the Third Anti-Corruption Prosecutor and the Third Municipal Court in the case felt that there was no malicious act, as it was done with the understanding that public prosecutors are a judicial authority," he said.
The ruling is final, because neither the prosecution nor the complainant has asked for a retrial.
Gomez was sentenced by the Supreme Court to six month’s imprisonment or a $4,000 fine and ousted from her job. The scandal continued when there were later allegations that a cabal of lawyers, including a Suprme Court judge appointed by President Ricardo Martinelli were working on a plan to discredit her. The Supreme Court Judge, who when serving under Gonzalez came under investigation for his role when a defendant under his supervision and under house arrest in Panama appeared in Miami.
The prosecutor resigned but was given a job in the government and late appointed to the Supreme Court.
Ana Matilde Gomez was quick to react after hearing Judge Quinteros’ ruling. “That's exactly the legal analysis that applies to me and to the whole case. What happens is that there was an order to get me out of the office and it could not be done without the help of the Solicitor General and the five judges who violated the Constitution, the law and my rights.”
"He never committed a crime, and had a legal duty to prosecute an offense and acted in the way that the law said.”
The ousting of Gomez was seen as the first major sign of what political commentators regarded as state controlled judges.