62
facilities; create problems of coexistence and favor violence between prisoners and
prison staff. All these, to the detriment of prisoners and prison staff, due to the hard
and dangerous conditions in which they carry out their daily tasks.
205. Given that these arguments and the acknowledgment refer to facts that
occurred while Mr. Vélez Loor was held in custody by the Panamanian State due to his
irregular immigration status, confined in national penitentiary centers, the Tribunal
shall refer next to the need for the people deprived of liberty given their immigration
status to be held in places different from those destined for those people accused or
convicted of serious crimes, in order to analyze, then, the issues that remain of the
controversy.
a) Requirement that undocumented migrants be held in places
different than those intended for convicted persons or persons in
custody pending trial
206. The Commission as well as the representatives alleged the State’s obligation to
separate prisoners who have committed criminal crimes from those who are detained
for immigration issues. The State did not put forward a specific argument regarding
this issue, but it accepted “the existence of a serious deficiency in the systems of
classification of those deprived of liberty.” As to Cellblock 6 of La Joyita Penitentiary
Center, where Mr. Vélez Loor was imprisoned, it indicated that "it is a cellblock of
medium to low security which accommodated people who were deprived of liberty for
the same reasons for which Mr. Vélez was detained, as well as others detained for
reasons that excluded dangerous inmates.” Likewise, it alleged that the opening of
shelters for migrants of the National Office of Immigration, which house only
migrants, guarantees said separation.
207. Even though the Court has already referred to the particular vulnerable
situation of migrants (supra para. 98), it is important to emphasize how this
vulnerability is even more critical when, due to the irregular immigration status,
migrants are held in penitentiary centers together with individuals undergoing a
criminal trial and/or serving time for the commission of a crime,233 like what
happened in this case. Said situation makes migrants prone to suffer abusive
treatment, given that it entails an individual de facto situation of lack of protection in
relation to the rest of the detainees. Hence, within the framework of its obligations to
guarantee the rights acknowledged in the Convention, the State must abstain from
acting in such a way that favors, promotes, fosters, or deepens that vulnerability234
and it must adopt, when appropriate, the measures necessary and reasonable to
prevent or protect the rights of whoever is in that situation.
208. Therefore, in the case their detention is necessary and proportionate, migrants
must be held in facilities specifically destined for that purpose, according to their legal
situation and not in common prisons, the purpose of which is incompatible with the
nature of the possible detention of a person for her or his immigration status, or other
places where placed together with those accused or convicted for crimes. This
principle of separation certainly attends to the distinct purposes of deprivations of
liberty. Certainly, when dealing with convicted persons, the imprisonment conditions
must tend to the “essential aim” of the custodial measures that is the “reform and
233
Similarly, United Nations, Report presented by the Special Rapporteur, Mrs. Gabriela Rodriguez
Pizarro, according to Resolution 2002/62 of the Commission on Human Rights E/CN.4/2003/85, December
30, 2002, para. 16, and United Nations, Report of the Special Rapporteur on the Human Rights of Migrants,
supra note 84, folio 2027, para. 41.
234
Cf. Juridical Condition and Rights of the Undocumented Migrants, supra note 82, paras. 112 and
172; Case of Manuel Cepeda Vargas, supra note 11, para. 172, and Case of Perozo, supra note 9, para.
118.
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