84
guarantees established in Articles 7 and 8 of the American Convention, including the
legislative reforms that are necessary to ensure that, in all immigration proceedings,
the conventional guarantees are strictly observed. Likewise, it emphasized that even
though the Decree Law N° 3 of 2008 eliminated the criminalization of migratory
recidivists, several aspects of said norm are still not compatible with the American
Convention.308 Therefore, it requested the Court to order the State to make the
necessary efforts to complete the process of adaptation of immigration laws to the
American Convention.
282. The representatives agreed with the Commission that the legislation in force
still does not respect the guarantees of due process of migrants subjected to
proceedings, since “it still has several deficiencies which gave rise to and fostered the
violations of the rights of the victims in this case.”309 In light of the abovementioned,
the representatives requested the Court to order the Panamanian State to modify its
legislation so as to guarantee the right to due process of migrants and, in particular,
to reform its legislation to guarantee the judicial control of the detention of migrants,
the right to be assisted by a defense counsel appointed by the court and the right to
consular information.
283. The State indicated that “[i]t is not possible to request […] the modification of
the current immigration law given that the [a]pplication filed by the Inter-American
Commission on Human Rights does not include any argument regarding Decree Law 3
of 2008.” In addition, it pointed out that “[t]here is no provision in the Convention
that allows the Court to decide […] whether a law which has still not infringed the
rights and liberties of certain individuals; therefore, such claim should not be
admitted on the understanding of a measure of satisfaction.” Therefore, the State
objected to such request.
284. The Court takes cognizance that the Republic of Panama made modifications in
its legislation and, in particular, in the immigration law, during the time the case at
hand was under the organs of the Inter-American System of protection of Human
Rights. In effect, the State repealed Decree Law 16 of 1960 by means of Decree Law
3 of 2008, eliminating incarceration as a form of penalty for reentry into Panama
following a previous deportation order.
285. In this respect, the Tribunal has previously stated that the object of the
Court's contentious jurisdiction is not to review national legislations in the abstract,310
but to resolve specific cases where it may be alleged that an act of a State carried out
against certain individuals is contrary to the Convention. Therefore, upon hearing the
merits of the case, the Court analyzed whether the State's conduct complied or not
with the Convention in relation to the legislation in force at the time of the events.
Considering that, in the present case, Decree Law 3 of 2008 was not applied to Mr.
Vélez Loor, this Tribunal shall not issue a ruling on the compatibility of such norm
with the Convention.
308
In particular, it referred to the application of the detention of migrants as a general rule and not as
an exception; to the possibility of extending such detention for 18 months and to the lack of judicial control
of the imprisonment of migrants, unless judicial remedies, which are not necessarily at the disposal of
undocumented or irregular migrants, are filed.
309
They referred, inter alia, to the fact that the National Migration Services still has authority to order
the detention of aliens and may extend the detention up to eighteen months, without following mechanisms
to guarantee the automatic judicial control of such detention and measures to assure due process of the
aliens, such as providing them with translations into their language, legal assistance, or consular
assistance.
310
Cf. Case of Genie Lacayo v. Nicaragua. Preliminary Objections. Judgment of January 27, 1995.
Series C No. 21, para. 50; Case of Manuel Cepeda Vargas, supra note 11, para. 51, and Case of Usón
Ramírez, supra note 10, para. 154.
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