27
103. The State argued that the situation of deprivation of liberty undergone by Heliodoro
Portugal as of May 14, 1970, ceased to exist at the time of his death; that is, in June 1971,
so that the Court does not have competence to examine this violation. The State also
indicated that “the [alleged] torture would have occurred before the date of [Mr. Portugal’s]
death”; in other words, prior to June 1971. In addition, it indicated that torture and the
deprivation of life are “instantaneous offenses rather than […] continuing offense[s].”
Accordingly, it indicated that the Commission was asking the Court to rule on the death of
Heliodoro Portugal, which occurred between May 1970 and June 1971, 19 years before
Panama accepted the Court’s competence.
*
*
*
104. Before proceeding to consider the merits of this matter, it is pertinent to reiterate
that, as stated in the chapter on preliminary objections, the Court has competence to rule
on the alleged forced disappearance of Heliodoro Portugal owing to the continuing nature of
this violation (supra, para. 29). However, since the Court has already declared that it does
not have competence to rule on the death or possible torture or ill-treatment that Mr.
Portugal is presumed to have suffered, it will not examine the arguments of the Commission
and the representatives in relation to the alleged violation of Articles 4 and 5 of the
American Convention. Nevertheless, the Court has declared that it does have competence to
rule on the alleged deprivation of liberty of Mr. Portugal that, although it commences on
May 14, 1970, continued over all the time that he was allegedly disappeared. In other
words, the Court has competence to rule on the alleged violation of Article 7 of the
Convention, inasmuch as it is alleged that this initiated the forced disappearance and
continued until the alleged victim’s fate and whereabouts became known in 2000, 10 years
after Panama had accepted the competence of the Court to examine “all matters relating to
the interpretation or application of the American Convention.”
105. Furthermore, although, in the instant case, neither the Commission nor the
representatives have alleged the failure to comply with the provisions of the Inter-American
Convention on Forced Disappearance of Persons, under which the States Parties are obliged
to prevent this occurrence of this type of act, the Court observes that Panama ratified this
Convention on February 28, 1996. Consequently, based on the facts in the case file and on
the iura novit curia principle, which is solidly supported by international case law,61 the
Court finds it pertinent to rule not only with regard to Article 7 of the American Convention,
but also with regard to the provisions of the Inter-American Convention on Forced
Disappearance of Persons. In addition, the Court considers it pertinent to make some
general observations on the forced disappearance of persons.
106. From the time of its first judgment in the Velásquez Rodríguez case,62 which
preceded the international norms on forced disappearance of persons, the Court has
understood that, when examining an alleged forced disappearance, it must take into
account its continuing nature,63 together with the fact that it is a multiple offense. The
61
Cf. Godínez Cruz v. Honduras. Merits. Judgment of January 20, 1989. Series C No. 5, para. 172; Kimel v.
Argentina. Merits, reparations, and costs. Judgment of May 2, 2008 Series C No. 177, para. 61, and Sawhoyamaxa
Indigenous Community v. Paraguay. Merits, reparations, and costs. Judgment of March 29, 2006. Series C No. 146,
para. 186.
62
Cf. Case of Velásquez Rodríguez, supra note 15, para. 155; Case of Goiburú et al., supra note 23, paras.
81 to 85, and Case of Gómez Palomino, supra note 23, para. 92.
63
The European Court of Human Rights has also considered forced disappearance of persons as a continuing
or permanent offense. Loizidou v. Turkey, App. No. 15318/89, 513 Eur. Ct. H.R. (1996).