85
286. However, the Tribunal considers it pertinent to recall upon the State that it
must prevent further human rights violations like the ones committed and to that
end, it must adopt all the legal, administrative, and other measures necessary to
ensure that similar facts are never repeated again, in compliance with its duty to
prevent and guarantee the fundamental rights enshrined in the American Convention.
Furthermore, it must adopt “the necessary legislative or any other measures to
uphold” the rights recognized in the American Convention,311 in the understanding
that the obligation the State has to adapt its domestic legislation to the provisions in
the Convention is not limited to the wording of the Constitution or laws, but must
rather permeate all the legal provisions of a statutory or regulatory nature and
translate into the effective enforcement, in practice, of the human rights protection
standards applicable to migrants. In particular, in relation to the notification to the
arrested aliens of their right to consular assistance, as well as to ensure the direct
judicial control before a competent court or tribunal that may decide on the
lawfulness of the arrest or detention.
287. Moreover, it is worth emphasizing that when a State has ratified an
international treaty such as the American Convention, the authorities that perform
judicial duties are also subject to it; this obliges them to ensure that the effect utile of
the Convention is not reduced or annulled by the application of laws contrary to its
provisions, object, and purpose. In other words, the organs of any of the branches
whose authorities perform judicial duties should exercise not only a control of
constitutionality, but also of “conventionality” ex officio between the domestic norms
and the American Convention, evidently in the context of their respective spheres of
competence and the corresponding procedural regulations.312
288. Consequently, the Court recalls that the State is obliged to adopt all necessary
measures to ensure that the process of application of its provisions related to
immigration conforms to the American Convention.
e)
Adequate codification of the crime of torture
289. The Commission did not present any claim in respect to this measure. The
representatives, moreover, pointed out that, so far, the crime of torture has not been
adequately classified. Consequently, they requested the Court to order the
Panamanian State to modify its legislation, “so as to classify the crime of torture,
pursuant to the terms ordered in its judgment of the case of Heliodoro Portugal v.
Panama and according to the provisions of the Inter-American Convention to Prevent
and Punish Torture.” The State pointed out that there is a preliminary draft of a bill
for the complete classification of the crime of torture, together with the precedents of
its preparation.
290. The Court has already made reference to the general obligation of States to
adapt their domestic law to the norms of the American Convention (supra para. 194).
This is also applicable when dealing with the adherence to the Inter-American
Convention to Prevent and Punish Torture, since it derives from the rule of customary
law according to which a State, who has entered into an international agreement,
must include, within its domestic law, the necessary modifications to ensure the
compliance with the obligations undertaken.
291. In the Judgment of the case of Heliodoro Portugal v. Panama, the Tribunal had
already declared the non-compliance with the State’s obligations and had ordered the
corresponding reparation under the following terms:
311
Case of the “White Van” (Paniagua Morales et al.), supra note 48, para. 203; Case of Salvador
Chiriboga, supra note 202, para. 122, and Case of Zambrano Vélez et al., supra note 200, para. 153.
312
Cf. Case of Almonacid Arellano, supra note 48, para. 124; Case of Ibsen Cárdenas and Ibsen Peña,
supra note 28, para. 202, and Case of Rosendo Cantú et al., supra note 27, para. 219.
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