I/A Court H.R., Case of Heliodoro Portugal v. Panama. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 12, 2008. Series C No. 186.

Non official brief

 

This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2008-3-e.pdf


Headnotes:


The forced disappearance of persons is a continuing or permanent violation that infringes several rights protected in the American Convention on Human Rights and must be analysed integrally.


A situation will be treated as a forced disappearance as long as the location of an alleged victim has not been determined, nor the location or identification of the person's remains established.


In order to prevent impunity, States that have not typified forced disappearances as autonomous crimes have the duty to use the faculties of their criminal systems in a manner that protects the various rights in the American Convention on Human Rights that may be violated by such acts, such as the right to life, liberty, and personal integrity.


The Inter-American Convention to Prevent and Punish Torture requires that legislation typifying the crime of torture state the elements constituting that crime.


Summary:


I.  On 14 May 1970, Heliodoro Portugal, a supporter of the Revolutionary Action Movement in Panama, was forced into a taxi by several individuals dressed as civilians and taken to an unknown destination. There is material and oral evidence to suggest that he was subjected to torture. Heliodoro Portugal was confined at the military base of Los Pumas, in Tocumén, where he was subsequently executed. An analysis of his remains, which were recovered in September 1999, suggests that Mr Portugal passed away at least twenty years prior. The State of Panama ratified the American Convention on Human Rights in 1978 and accepted the contentious jurisdiction of the Inter-American Court on Human Rights (hereinafter, "the Court") on 9 May 1990.


On 23 January 2007, the Inter-American Commission of Human Rights (hereinafter, "the Commission") filed an application against the State of Panama alleging violations of Article 4 ACHR (Right to Life), Article 5 ACHR (Right to Personal Integrity), and Article 7 ACHR (Right to Personal Liberty), in relation to Article 1.1 ACHR (Obligation to Respect Rights) to the detriment of Heliodoro Portugal, as well as Article 8.1 ACHR (Right to a Fair Trial) and Article 25 ACHR (Right to Judicial Protection), to the detriment of Mr Portugal's next of kin. The Commission also alleged the State's international responsibility under Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture (hereinafter, "the IACPPT"), and Article III of the Inter-American Convention on Forced Disappearance of Persons (hereinafter, "the IACFDP"). The State responded that the application of the Commission was inadmissible because the Court lacked jurisdiction ratione temporis and ratione materiae, and because domestic remedies had not been exhausted.

 

II.  In its Judgment of 12 August 2008, the Inter-American Court of Human Rights held that it did not have jurisdiction over the alleged extra-judicial execution of Heliodoro Portugal or the alleged acts of torture committed against him, as these would constitute instantaneous violations of his right to life and personal integrity completed before Panama accepted the Court's jurisdiction. Thus, the Court could not rule on the alleged violations of Articles 4 and 5 ACHR. Likewise, the Court held that any violation to Portugal's right to freedom of expression (Article 13 ACHR), alleged by the representatives, would have occurred while he was alive and was thus beyond its competence.


However, the Court also held that because forced disappearances are of a continuing or permanent nature, the Court has jurisdiction over alleged forced disappearances that occur before a State recognises its contentious jurisdiction if the whereabouts or fate of the alleged victim remain unknown at the time of recognition of jurisdiction. Thus, since Mr Portugal's remains were not identified until ten years after Panama accepted the Court's jurisdiction, the Court had competence over his alleged forced disappearance as a deprivation of liberty (Article 7 ACHR), the alleged violation of the right to personal integrity of his next of kin (Article 5 ACHR), and the responsibility of the State regarding the investigation of the disappearance after Panama became a party to the American Convention on Human Rights.


The Court found the State in violation of Article 7 ACHR, in relation to Article 1.1 ACHR, and Article I IACFDP for the forced disappearance of Mr Portugal as of 9 May 1990, since such violation continued until 2000, when his remains were identified.


With respect to Mr Portugal's next of kin, the Court found violations of Articles 8 and 25 ACHR, in relation to Article 1.1 ACHR, because the State did not carry out a serious and impartial investigation into the disappearance of Mr Portugal after the family had presented a claim in 1990. Likewise, the Court found a violation of Article 5 ACHR for the effects that the State's failure to carry out measures to clarify the facts and punish those responsible had on their personal integrity. However, the Court did not find it necessary to analyse the State's omission in light of Articles 1, 6 and 8 IACPPT, as these rights were subsumed in the violations already declared.


Finally, the Court held, in light of Article 2 ACHR (Domestic Legal Effects), that the State has not complied with its obligation to typify the crime of forced disappearance within a reasonable time, in conformity with Articles II and III IACFDP, or its obligation, in conformity with Articles 1, 6 and 8 IACPPT, to typify the crime of torture so that it satisfies the principle of legality.


Consequently, the Court ordered the State to publish the judgment, perform a public act recognising its international responsibility, designate a street in memory of Mr Portugal, and offer psychological and medical attention to his next of kin. It also ordered the State to reform its legislation in order to identify the crimes of forced disappearance and torture in accordance with the demands of the IACFDP and IACPPT. Finally, the Court ordered, inter alia, that the State pay pecuniary and non-pecuniary damages and the reimbursement of costs and expenses.


Supplementary information:

 

Judge García-Ramírez wrote a separate opinion.