12
during which the State failed to comply with its obligation to adapt its domestic law.
47.
The Court observes that Panama ratified the American Convention on June 22, 1978,
and that, pursuant to Article 74(2) of the Convention, this instrument entered into force on
July 18, 1978. Hence, as of that date, in accordance with the provisions of Article 2 thereof,
the State has had the constant, permanent and continuing obligation to adapt its domestic
law to the Convention.17 Consequently, the Court has competence to examine whether the
State adapted its domestic law to the provisions of the American Convention within a
reasonable time, as of May 9, 1990, the date on which the State accepted its competence.
Nevertheless, it is not for the Court to decide whether the State failed to comply with this
obligation while examining this preliminary objection. This issue will be examined, if
appropriate, in the corresponding chapter, since it relates to merits.
48.
In addition, the State ratified the Convention on Forced Disappearance on February
28, 1996, and the Convention against Torture on August 28, 1991. As of their entry into
force for the State, the Court is also competent to examine the alleged failure to comply
with the obligation to define the offenses of forced disappearance and torture, respectively,
in light of the standards established by those inter-American instruments.
49.
Consequently, the Court rejects the objection on competence filed by Panama in
relation to this point, and will proceed to examine the arguments of the parties when
considering the merits of the case.
4)
Competence ratione temporis regarding the obligation to investigate and punish
torture under the ICPPT
50.
Lastly, the State argued that it is not possible to claim retroactively the failure to
comply with the obligations established in Articles 1, 6 and 8 of the Convention against
Torture, because torture is an instantaneous offense and the alleged torture must have
occurred necessarily before June 1971, the date on which the State alleges that Mr.
Portugal was killed and buried. The State ratified the Convention against Torture on August
28, 1991, and it entered into force for the State, pursuant to Article 22 thereof, on
September 28, 1991.
51.
On this point, the Commission and the representatives argued that the obligation to
investigate the alleged torture arose for the State as of its ratification of the American
Convention, on June 22, 1978, and that the Court has temporal competence to rule on the
failure to comply with the obligations established in Articles 1, 6 and 8 of the Convention
against Torture, owing to “the failure to investigate and punish torture after August 28,
1991, the date on which Panama ratified [the said Convention].”
52.
The Court has indicated on other occasions18 that it is competent to examine alleged
facts that violate Articles 1, 6, and 8 of the Convention against Torture, which occurred after
the date of entry into force of that Convention. Nevertheless, in the instant case,
compliance with the obligation to investigate and punish alleged torture must be evaluated
17
Cf. Castillo Petruzzi et al. v. Perú. Merits, reparations, and costs. Judgment of May 30, 1999. Series C No.
52, para. 207; Case of Salvador Chiriboga, supra note 6, para. 122, and Zambrano Vélez et al. v. Ecuador. Merits,
reparations, and costs. Judgment of July 4, 2007. Series C No. 166, para. 57.
18
Cf. The “White Van” (Paniagua Morales et al.) v. Guatemala. Merits. Judgment of March 8, 1998. Series C
No. 37, paras. 133 to 136; Cantoral Huamaní and García Santa Cruz v. Perú. Preliminary objection, merits,
reparations, and costs. Judgment of July 10, 2007. Series C No. 167, para. 18; and Tibi v. Ecuador. Preliminary
objections, Merits, reparations, and costs. Judgment of September 7, 2004. Series C No. 114, para. 62.