18. The Commission has competence to deal with the present case. First, concerning its
competence ratione materiae, the petitioners are alleging violation of rights protected under
various international instruments. Specifically, they are alleging violation of Articles I, XXV and
XXVI of the American Declaration. Panama is a State Party to the OAS Charter; under Article
20 of the Commission's Statute, the IACHR has the authority to examine communications
alleging violations of these Articles of the American Declaration. The Commission is likewise
competent to take cognizance of the petitioners' allegations regarding Articles 1, 4, 5, 7, 8 and
25 of the American Convention, Articles 1, 2, 6 and 8 of the Convention to Prevent and Punish
Torture, and Articles II and III of the Convention on Forced Disappearance, given that Panama
is a State party to all those conventions. Second, the Commission has competence ratione loci
inasmuch as the alleged violations of the rights protected under those conventions are said to
have occurred within the territory of a State party to those conventions.
19. Third, concerning the Commission's competence ratione personae, the petitioners are
entitled to lodge complaints with the IACHR under Article 44 of the American Convention,
Article XIII of the Convention on Forced Disappearance, and Article 16 of the Convention
against Torture. Furthermore, the Commission's Statute and Rules of Procedure also entitle the
petitioners to file complaints alleging violations of the American Declaration. The victims
alleged in the petition are natural persons whose Convention-recognized rights and freedoms
Panama undertook to respect and ensure. Therefore, the Commission has competence ratione
personae by an active and passive authority under those inter-American conventions to
examine the petition.
20. Finally, the Commission has competence ratione temporis to deal with the petition, which
concerns a continuous situation that has gone on for over thirty years. That situation began
when Mr. Heliodoro Portugal was forcibly disappeared on May 14, 1970. His next of kin were
prevented from exhausting the proper local remedies until the advent of democratic
government in Panama in late 1989. This situation continues, inasmuch as the complaint
lodged in 1990 has not been effective in getting those responsible for the disappearance
punished and no definitive court ruling has been delivered regarding the whereabouts of his
remains. The Commission has competence ratione temporis to address the violations of human
rights alleged by the petitioners with respect to the American Declaration, 15 the American
Convention,16 and the Convention on Forced Disappearance. 17 Regarding the Convention
against Torture, the IACHR considers that it only has competence to address the alleged
violations against Heliodoro Portugal’s next of kin from the time that treaty was signed and
ratified by Panama.18
B.
Other admissibility requirements
1.
Exhaustion domestic remedies
21. Under Article 46(1)(a) of the Convention, admission of a petition requires "that the
remedies under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law." Article 46(2)(c) provides that the rule requiring
exhaustion of local remedies will not be applicable when "there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies." The Commission's practice
has been to consider, up front and separate from the merits of the case, whether the grounds
for any exception are present. Concerning the distribution of the burden of proof to determine
whether this requirement has been met, the Commission reiterates that when the State
alleges that there are remedies that remain to be exhausted, it must show what those
remedies are and that they are effective. If the State making that claim proves that there are
internal remedies that should have been used, it is up to the petitioners to show that those
remedies were exhausted or that one of the exceptions allowed under Article 46(2) of the
Convention applies. The Commission will now proceed to examine whether Article 46(1)(a) has
been fulfilled or whether the exceptions provided for under Article 46(2) of the Convention
apply.
15 Panama was already a party to the OAS Charter and bound by it to respect the rights guaranteed under the
American Declaration.
16 Panama signed the American Convention on November 22, 1969 and ratified it on June 22, 1978.
17 Panama signed that Convention on September 14, 1994 and ratified it on February 28, 1996.
18 That Convention was signed by Panama on February 10, 1986 and the instrument of ratification was deposited on
August 28, 1991.
5
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents