57
contest the lawfulness of the arrest (Art. 7(6)); v) and, not to be detained for debt
(Art. 7(7)).
191. Based on the foregoing considerations and taking into account the
acknowledgment of responsibility made by the State, the Tribunal declares that the
State violated the right enshrined in Articles 7(3), and the guarantees enshrined in
Articles 7(4), 7(5), and 7(6) of the Convention to the detriment of Mr. Vélez Loor, in
relation to the obligations contemplated in Article 1(1) therein. Consequently, the
State violated the right to personal liberty of the victim enshrined in Article 7(1) of
the Convention, in conjunction with the duty to respect established in Article 1(1)
therein. Likewise, the State violated Articles 8(1), 8(2)(b), 8(2)(c), 8(2)(d), 8(2)(e),
8(2)(f), and 8(2)(h) of the American Convention, in relation to the obligations
contemplated in Article 1(1) therein. Finally, the State violated Article 9 of the
American Convention, in relation to the lack of compliance with its obligation to
respect contained in Article 1(1) therein.
j)
Clarifications regarding Article 2 of the American Convention
192. The Commission positively valued the issuance of Decree Law N° 3 of February
22, 2008, which eliminates the penalty of imprisonment for repeated unlawful entry
into Panamá. However, it stated that such change in domestic law “does not resolve
the violation of Article 2” due to the application of Decree Law No. 16 of June 30,
1960, in Mr. Vélez Loor’s case, and the consequent lack of due process afforded to
him as a migrant. Therefore, it concluded that the State “did violate Article 2 by
failing to bring its domestic law into line with the rights enshrined in Articles 7, 8, and
25.” The representatives pointed out that the State violated Article 2 of the American
Convention in conjunction with the non-compliance with the obligations contained in
Articles 5, 7, 8, 25, and 24 therein.
193. The State denied the violation of Article 2 of the American Convention. In this
respect, it pointed out that the application of Article 67 of Decree Law 16 of 1960
provided for “sufficient provisions to ensure all persons under its jurisdiction,
nationals or foreigners, without discrimination, the enjoyment of the rights
established in the Convention [...] especially those addressed to the protection of the
rights of personal liberty, a fair trial [judicial guarantees] and judicial protection.”
Finally, the State expressed that “Article 141 of Decree Law 3 of 2008 repealed
Decree [Law] 16 of 1960 and any other norm contrary to it, as from the entry into
force;” for which the question becomes moot.
194. Article 2 of the Convention establishes the general obligation of each State
Party to adapt its domestic laws to the Convention’s provisions, so as to guarantee
the rights therein protected, which means that the provisions of domestic law must be
effective (principle of effet utile).198 Even though Article 2 of the Convention fails to
define which measures are appropriate to adjust the domestic law to the Convention,
the Court has held that the general duty set forth in Article 2 implies the adoption of
measures on two fronts: i) the elimination of any norms and practices of any kind
entailing violations of the guarantees provided for in the Convention or disregarding
the rights enshrined therein or impeding the exercise of such rights and, ii) the
issuance of rules and the development of practices leading to the effective observance
of said guarantees.199 The Court has taken the view that the first set of duties is
breached while the rule or practice running counter to the Convention remains in the
198
Cf. Case of Garrido and Baigorria v. Argentina. Reparations and Costs. Judgment of August 27,
1998. Series C No. 39, paras. 68 and 69; Case of Rosendo Cantú et al., supra note 27, para. 163, and Case
of Fernández Ortega et al., supra note 27, para. 179.
199
Cf. Case of Castillo Petruzzi et al., supra note 151, para. 207; Case of Chitay Nech et al., supra
note 104, para. 213, and Case of The Dos Erres Massacre, supra note 27, para. 122.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos