79
Velásquez, Cantoral-Benavides, Villagrán-Morales et al. (the “Street Children” case),
and Paniagua-Morales et al., the Court has also applied, in addition to the American
Convention, the Inter-American Convention to Prevent and Punish Torture, or the
Inter-American Convention on Forced Disappearance of Persons.52
98.
The Court reaffirms the principle of general international law according to
which the States have the duty to comply in good faith (pacta sunt servanda) with
the international instruments ratified by them, which is established in Article 26 of
the Vienna Convention on the Law of Treaties (1969), as well as to abstain from
committing acts against the objective and purpose of said instruments,53 even from
the time of signing of the treaty, a principle that is applicable to the instant case.
The latter duty, which is established in Article 18 of the cited Vienna Convention, is
applicable to the Protocol of El Salvador. The Court, furthermore, makes the
observation that said Protocol even grants competence to this Tribunal under certain
given assumptions.
99.
However, since at the time of the events in the instant case, that is, in
December 1990, Panama had not yet ratified the cited Protocol, it may not be
accused of violations thereto. This does not override the duty that the State has
had, as of the signing of this international instrument, that is, November 17, 1988,
to abstain from committing any act in opposition of the objective and purpose of the
Protocol of San Salvador, even before its entry into force.
IX
VIOLATION OF ARTICLE 9
Freedom from Ex Post Facto Laws
100. The Commission argued that Law 25 of December, 1990, constituted the
starting point of the violations that had been committed in the instant case. On the
basis of such assertion, the Court deems it pertinent to analyse, in the first instance,
the violation of Article 9 of the Convention as a consequence of the adoption of the
cited Law 25.
Arguments of the Commission
101.
Concerning Article 9 of the Convention, the Commission argued that:
a)
the principles of legality and non-retroactivity are found to be
applicable to the law on sanctions in its entirety, and to all forms where public
power manifests itself;
b)
all actions of the State, even those of an administrative nature, must
be consistent with the limits defined by legality. For as long as a legal rule
that characterises the violation and the sanction is not in force, a certain
conduct can neither be defined as a fault, nor be subject to punishment;
52
cfr. Bámaca-Velásquez Case, Judgment of November 25, 2000, Series C N° 70, para. 126, 157
and 158; Cantoral-Benavides Case. Judgment of August 18, 2000. Series C N° 69, para. 98, 100 and
101; Villagrán-Morales et al. (the “Street Children” case). Judgment of November 19, 1999. Series C N°
63, chapter XIII, and Paniagua-Morales et al. Case, supra note 11, para. 133 to 136.
53
cfr. Loayza-Tamayo Case. Compliance with judgment. Order of November 17, 1999. Series C
N° 60, para. 7; and Vienna Convention on the Law of Treaties, Art. 26.
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