40
149. The Court has established that it is necessary to take into consideration three
elements to determine the reasonableness of the delay: (a) the complexity of the matter;
(b) the procedural activity of the interested party, and (c) the conduct of the judicial
authorities.124
150. In this regard, the Court observes that, even though in the instant case there was
only one victim, the investigation was made more complex by the time that had elapsed
since the last time that Heliodoro Portugal was seen alive and, consequently, by the
difficulty in obtaining information that contributed to or facilitated an investigation into the
case. On this point, the Third Prosecutor’s Office indicated in its appeal (supra para. 134)
that the “masterminds and perpetrators of this criminal act have always had an evident
interest that the crime and, particularly their punishable conduct, should not be discovered;
in other words, that their actions should go unpunished, which is revealed by the fact that
they buried the corpse and sprinkled lime on it in order to ensure its rapid decomposition
and total disintegration.”125 Thus, the passage of time has a directly proportionate
relationship to the constraints – and, in some cases, the impossibility – of obtaining
evidence or testimonies that help clarify the facts under investigation. The constraints
inherent in the period prior to 1990, which the Panamanian Supreme Court of Justice itself
described as a period during which it was not possible to exercise the right of access to
justice (supra para. 92), must also be added to these elements.
151. Regarding the procedural activity of the next of kin, it is clear that they never
attempted to obstruct the judicial proceedings or delay any decision in that regard. To the
contrary, with the exception of the said period prior to 1990, the next of kin have submitted
testimony and evidence in order to advance the investigation into the facts (supra paras.
127, 128 and 130). They even obtained private funding to cover the expenses related to the
identification of Heliodoro Portugal’s remains by DNA testing (supra para. 95).
Consequently, any delay in the investigation has not been the responsibility of Mr.
Portugal’s next of kin.
152. Furthermore, the conduct of the judicial authorities has not conformed to criteria of
reasonableness. Since the complaint was presented in 1990, Heliodoro Portugal’s next of kin
and friends have provided probative elements relating to the possible participation of State
agents in his detention. In this regard, the next of kin of Mr. Portugal testified that,
approximately one month after his disappearance, “a police agent came to the house telling
them that the victim had sent word that they should not worry, that he was in the Tocumen
[barracks] and that he would soon be released” (supra para. 89). Despite the foregoing, 18
months after the complaint had been filed, a stay of proceedings was declared, without a
complete and effective investigation having been conducted into the participation of State
agents in the facts of the case. In addition, the total absence of judicial activity during nine
years, from the stay of proceedings in 1991 until the re-opening of the case in 2000, is
exclusively due to the failure of the judicial authorities to conduct an effective investigation
into the reported facts.
153. It is worth noting that the political context in which the facts occurred pointed at the
participation of the members of a group known as G-2. For example, in its report, the
Panama Truth Commission stated that, during December 1999, a witness confided to a
journalist that he had been imprisoned with Heliodoro Portugal in a house at an unknown
124
Cf. Case of Genie Lacayo v. Nicaragua. Merits, reparations, and costs. Judgment of January 29, 1997.
Series C No. 30, para. 77; Case of Salvador Chiriboga, supra note 6, para. 78; Case of Zambrano Vélez et al.,
supra note 17, para. 102.
125
Cf. appeal filed before the Supreme Court by the Third Prosecutor’s Office, supra note 98.
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