8
which the State of Panama is the defendant, the Court observes that on May 9, 1990,
Panama accepted “as binding ipso facto, the competence of the Inter-American Court of
Human Rights on all matters relating to the interpretation or application of the American
Convention on Human Rights,” without including any reservation that could place temporal
limits on this competence for matters that took place after this acceptance.
27.
Consequently, the Court concludes that it has competence to rule on the alleged
facts that are the grounds for the supposed violations that took place after May 9, 1990, the
date on which Panama accepted the compulsory competence of the Court, as well to rule on
those violations that, having commenced prior to that date, continued or persisted
subsequently.
1.
Competence ratione temporis regarding the alleged violations of Articles 4, 5, 7
and 13 of the American Convention, in relation to Article 1(1) thereof, to the
detriment of Heliodoro Portugal
28.
Regarding the first group of alleged violations, the State based its objection on the
fact that the death, alleged mistreatment and detention of Heliodoro Portugal occurred and
were completed by June 1971, at the latest; “19 years before the State accepted the
Court’s competence as compulsory” on May 9, 1990, and “seven years before Panama
ratified the American Convention” in 1978. Therefore, according to the State, these facts, as
well as the alleged violations of the rights to life, humane treatment and personal liberty,
would fall outside the Court’s temporal competence. The State also considered that a person
can only express himself when he is alive, and since Heliodoro Portugal died in June 1971,
the Court does not have temporal competence to rule on the alleged violation of his right to
freedom of expression, because the retroactive application of the Convention is not
permitted.
29.
The Commission and the representatives affirmed that the date of Heliodoro
Portugal’s death is unknown, and that there is no certainty as to whether this fact falls
outside the Court’s temporal competence. They also indicated that, although Heliodoro
Portugal was detained on May 14, 1970, his whereabouts remained unknown until August
2000, the date on which “his remains that had been found on September 22, 1999, were
genetically identified; that is, more than 10 years after Panama had accepted the
compulsory competence of the Court.” According to the Commission and the
representatives, the foregoing should be understood and analyzed in the context of the
juridical figure of forced disappearance of persons, which is a continuing and multiple
offense. In addition, they indicated that the Court is competent to examine the alleged
failure to investigate the facts, because the Court’s competence in this regard commenced
after the State accepted its competence. Lastly, the representatives indicated that Heliodoro
Portugal carried out political activities; that, having been disappeared, his right to freedom
of expression was violated, and that the Court has competence in this regard because this
alleged violation “continued at all times while he was disappeared.”
30.
Based on the above, the Court must decide on the exercise of its competence ratione
temporis in relation to the alleged forced disappearance and extrajudicial execution of
Heliodoro Portugal, who was presumably detained on May 14, 1970; that is, 20 years before
the State recognized the Court’s competence in 1990, and whose whereabouts were
unknown until his remains were identified in August 2000.
a)
31.
Competence ratione temporis regarding the alleged extrajudicial execution
In its application, the Commission requested that the Court declare the State’s