REPORT Nº 72/02 ADMISSIBILITY PETITION 357/01 HELIODORO PORTUGAL PANAMA October 24, 2002 I. SUMMARY 1. On May 31, 2001 the Center for Justice and International Law (CEJIL) and Ms. Patria Portugal lodged a complaint with the Inter-American Commission on Human Rights (hereinafter the "Commission" or the "IACHR”) against the Republic of Panama (hereinafter the "State" or "Panama"). The complaint alleged violation of the rights to life (Article 4), to humane treatment (Article 5) and to personal liberty (Article 7) of the American Convention on Human Rights (hereinafter the "Convention" or the "American Convention"), all in violation of the obligation to respect and ensure the rights and freedoms recognized therein (Article 1(1). The petitioners also alleged that the State had violated the right to life, liberty and personal security (Article I), right of protection from arbitrary arrest (Article XXV) and right to due process of law (Article XXVI) of the American Declaration of the Rights and Duties of Man (hereinafter the "Declaration" or the "American Declaration"); Articles II and III of the InterAmerican Convention on Forced Disappearance of Persons (hereinafter "Convention on Forced Disappearance"); and Articles 1, 2, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture (hereinafter the "Convention against Torture"), all to the detriment of Heliodoro Portugal. The petitioners further alleged violation of the rights of Heliodoro Portugal's next of kin: Graciela de León de Rodríguez (companion and mother of his children), Patria Portugal (daughter) and Franklin Portugal (son). The rights allegedly violated in their case were the right to a fair trial (Article 8) and the right to judicial protection (Article 25) of the American Convention; and the right to due process of law (Article XXVI) of the American Declaration. 2. The petition concerns the May 14, 1970 forced disappearance of Heliodoro Portugal at the hands of the National Guard. His family and friends spent almost 30 years with no knowledge of his whereabouts. Immediately after the reinstatement of representative democracy in Panama, Heliodoro Portugal's daughter filed a criminal complaint in May 1990. But the complaint proved to be ineffective when the case was closed just three years later, either because of disinterest or an unwillingness to pursue it. The investigation was reopened in 1999 when an initial autopsy declared were Mr. Portugal's remains were found at a military base. However, a second autopsy -this one ordered by the Attorney General's Office- concluded that the remains were not those of Mr. Portugal. Panama's Truth Commission sought a third opinion. That third opinion stated that the findings of the initial autopsy, which said that the remains were those of Mr. Portugal, were correct. Thus far, however, no court has ruled on this point. The petitioners allege that the State is clearly culpable in the victim's disappearance and subsequent death, yet the internal judicial process has been ineffective in punishing the authors of such egregious acts and in affording his next of kin just and fair reparation and compensation. Even assuming for the sake of argument-the petitioners contend- that the remains unearthed at the military base had not been those of Mr. Portugal, the State would still be responsible for violating the right to life since this is the presumption in cases of forced disappearance. 3. The State concurs with the petitioners as to the facts, specifically "as to the certainty of Mr. Portugal's disappearance," and has admitted that "all the evidence in the case points to the fact that the National Guard was responsible,"1 whether or not the remains found at the military base were those of Mr. Portugal. The State argues, therefore, that it has taken appropriate steps to investigate the circumstances of the victim's disappearance and to determine the corresponding criminal culpability. To reinforce the work being done by the Attorney General's Office, which is overseeing the investigation, the State created the Truth Commission to follow up on all cases of disappearances that happened under the military government. The State nonetheless contends that the petition is inadmissible because the rule requiring exhaustion of local remedies has not been met and because none of the exceptions allowing admissibility even though domestic remedies have not been exhausted is applicable. 1 See the State's observations, dated November 29, 2001, p. 4. 1