22. In the instant case, the petitioners allege that because the remedies were ineffective, they
are, under Article 46(2)(c) of the Convention, exempt from the rule requiring exhaustion of the
remedies under domestic law. The petitioners allege that Mr. Portugal was forcibly disappeared
30 years ago, during the dictatorship, and his next of kin were unable to exhaust local
remedies. The inquiry that the Attorney General's Office instituted in 1990, when democratic
government was restored in Panama, was stayed for no good reason, seven months into the
inquiry19 in 1991, and then reopened again in 1999 when Mr. Portugal's remains were
discovered in a military barracks. Although the criminal case has been underway for 12 years,
the court authorities have still not rendered a definitive determination as to the identity of the
remains found; they have not yet punished those responsible, and have not awarded the
victim's next of kin just and fair compensation.
23. The State contends that the remedies under domestic law have not been exhausted and
that it is fulfilling its duty of judicial protection since the matter is being investigated both
through an inquiry that the Attorney General's Office is conducting by way of the Office of the
Third Superior Court Prosecutor, and through the work of the Truth Commission. It therefore
concludes that the complaint lodged should be declared inadmissible. 20
24. In examining the parties' positions, the IACHR notes that Mr. Portugal disappeared 30
years ago and that a continuous situation persists even to this day, as there has been no
definitive judgment naming those responsible for these acts or identifying and establishing the
whereabouts of the remains. Nevertheless, the Commission reminds the Panamanian State
that one of the purposes of the inter-American system for the protection of human rights is to
establish the liability of States for human rights violations committed under their jurisdiction
and not to establish individual responsibility for those violations. Also that, based on the
principle of the continuity of the State, international liability exists irrespective of changes in
government.21 That being so, Panama is subject to international liability for violations of
human rights committed by any government, be it a past government or the current
government, regardless of whether that regime is de jure or de facto. The Commission
therefore considers that, prima facie, there has been an unwarranted delay in prosecuting the
criminal case that is investigating the facts. As this is the circumstance provided for in Article
46(2)(c) of the Convention, the petitioners are exempt from the rule requiring exhaustion of
local remedies. In the stage where the merits of the case are considered, the Commission will
examine the efficacy of this remedy and its effects for purposes of Articles 8 and 25 of the
Convention.
2.
Time period for lodging a petition
25. Under Article 46(1)(b), the Convention requires that a petition be "lodged within a period
of six months from the date on which the party alleging violation of his rights was notified of
the final judgment." Under Article 46(2) of the Convention, the six-month filing deadline
provided for in Article 46(1)(b) will not apply when any of the exceptions is present. The
Commission notes that while "the Convention’s requirement that domestic remedies be
exhausted is independent of the requirement that the petition be lodged within six months
following the judgment exhausting domestic jurisdiction,"22 the exceptions provided for in
Article 46(2) of the American Convention apply to both requirements.
26. In the present case, the Commission examined the question of the exception allowed
under Article 46(2)(c), concerning an "unwarranted delaying in rendering a final judgment,"
when it analyzed the rule in Convention Article 46(1)(a) requiring exhaustion of local remedies,
ut supra paragraph 24. Given the circumstances already examined, the Commission need not
re-examine the question of whether the grounds for that exception are present. The
Commission therefore concludes that under Article 46(2)(c) of the American Convention, the
19 Ibid. It argues: “... in the case at hand, there is no evidence of any 'enmity' -at least not in 1970- between Mr.
Portugal's ideas and the government at that time … so that based on the procedural situation presented in the
summary one has to conclude that this criminal inquiry must be temporarily stayed."
20 See the State's response of January 3, 2002 pp. 9, 10 and 11.
21 See Inter-American Court of Human Rights, Judgment of July 29, 1988 Velásquez Rodríguez case, paragraph 184;
Inter-American Commission on Human Rights, Report Nº 61/01, Case 11.771, Samuel Alfonso Catalán Lincoleo, Chile,
April 16, 2001.
22 IACHR, Report Nº 81/01, Case 12,228, Alfonso Martín del Campo Dodd v. Mexico, October 10, 2001 par. 20.
6
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