9
*
*
32.
As to the duty to define the offenses of forced disappearance of persons and
torture (operative paragraph sixteen of the Judgment), the State referred to the
proposal of a "Bill that modifies and adds sections to the Criminal code, to adjust it to
the international definition of the crime of forced disappearance and the crime of
torture,” which “was presented in the year 2008.” However, within the framework of the
private hearing, the State made reference to a new bill “[which] shall be presented by
the First Vice- President and Chancellor of the Republic before the National Assembly at
the House of Representatives on September 1, 2010, when the new legislative period
begins and which shall be based on the legislative initiative launched by the Ministry of
Foreign Affairs.” The State explained that “it is necessary to wait until [such] a date
[since] according the Panamanian constitutional law, any bill presented within a
presidential period, the legislative process of which is not over by the end of such a
period, has to be presented again in the next presidential period”. According to the
documentation presented by the State at the private hearing, such bill would embody
what the Court indicated in its Judgment, as well as the specialized observations on
“international standards” in the matter. In this way, as to the crime of forced
disappearance, the new bill would be different in the following aspects: a) “[t]he element
of illegitimacy in the deprivation of liberty;” b) “[t]he dilemma about the elements of
deprivation of liberty and the denial to provide information regarding the whereabouts of
the disappeared person;” c) “[t]he denial to acknowledge the deprivation of liberty;” d)
“[t]he proportionality of the punishment based on the seriousness of the crime,” and e)
"[t]he continuous or permanent nature of the crime.” Regarding the crime of torture, the
new bill is different as to: i) “[t]he lack of definition of [the] elements constituting such a
crime;” ii) “[t]he limitation of the wrongdoing to public officials,” and iii) "[t]he
deprivation of liberty of the victim.”
33.
In relation to the first bill, the representatives pointed out that “it is clear that
the proposed drafting does not solve all the problems indicated by the […] Court in its
Judgment.” Moreover, they emphasized that “a proposal from the Executive branch is
not enough; instead, such a proposal must be draft according to the international
obligations assumed by the State and must be duly approved by the procedures
established in the Panamanian law.”
34.
As to the first bill, the Commission "t[ook] note [....] and considered [it] was
a first step towards compliance [with was ordered in] the Judgment.” Within the
framework of the private hearing, it consulted whether the new bill that is going to be
presented on September 1, 2010 “is the same.” This, because for the Commission, in the
first bill, “[the] forced disappearance only [makes] reference to illegal detentions, for
which punishment is five to eight years, and [therefore], it is concerned about the
proportionality of the punishment with the crime." Regarding the crime of torture, said
first bill, “basically does not satisfy any of the elements referred to by the Court in its
Judgment, [since] it does not clearly establish which are the elements constituting the
crime [...], and it only refers to its application to detained people.”
35.
In that respect, the Court underlines that those States that have ratified the
Convention, in exercise of their sovereign authorities, have acquired the commitment to
adapt their legislation and with that, ensure the application of the rules recognized by
the state itself, by the state’s agents or organs. The opposite thing would be translated
in a concerning suspension of the conventional rules that would be inconsistent with the
effective enforcement of the human rights and the sovereign decision of the State to
bind itself to comply with the rules of the Convention. In this respect, the Court observes
that failure to define or the incorrect definition, at the domestic level, of the forced
disappearance and torture hinders the effective development of effective criminal
proceedings, current and future, allowing impunity to prevail13.
13
See Case of Heliodoro Portugal V. Panamá. Merits, Reparations and Legal Costs. Judgment of August
12, 2008. Series C No. 186, para. 183; Case of Trujillo Oroza V. Bolivia. Monitoring Compliance with the