THE RIGHT TO A FAIR TRIAL AND TO DUE PROCESS OF LAW1
The judicial branch is established for the purpose of administering justice, which can only be done by an independent Judiciary. An independent Judiciary is only possible in a de jure State wherein the separation of powers is truly effective.
The Commission has, on a number of occasions, made reference to the independence of the Judiciary as a guarantee of the observance of human rights in general and of the right to a fair trial and due process in particular.2
Panama’s 1972 Constitution as amended in 1978 and 1983, upholds principles that are essential to the preservation of a competent and independent Judiciary.
Thus, Article 207 states the following:
Magistrates and judges are independent in the exercise of their functions and they are subject only to the Constitution and the law. However, subordinate judges are obliged to abide by and comply with decisions issued by their superior in rank revoking or amending, by virtue of legal proceedings, the decisions rendered by the former.
Nevertheless, the guarantee of judicial independence contained in the Constitution is violated in practice. In effect the stability and legal security which the 1963 Law N° 9 on the Judicial Career established aimed at preserving the independence of judges was suppressed by the Decree N° 140 of 1969. The Decree suspended the 18 years, until April of 1987, the very provisions that sought to conserve judicial independence. During that period the appointment and removal of judges at all levels–except for the Supreme Court-- was considered an administrative act. All judicial personnel including judges were considered interim appointments and this was the situation which prevailed for 18 years, with judges being named or fired by decision of the next higher level of the judicial pyramid. In April 1987, the judicial career was re-instituted with the entry into force of the Judicial Code. In spite of that, according to information available to date no judge has been selected through the selection process established by law.3
Again with respect to the legal guarantees and observance of the principle of due process of law, the Commission must express its concern over the way in which the institution of the Corregidor has been conceived and regulated; as will be seen, it is incompatible with the principles and standards embodied in the American Convention on Human Rights to which Panama is party.
The Corregidor is a special police official, designated by the Mayor of the respective township who may remove him from his post at any time. Under the Constitution, the Corregidor must be 18 years of age in order to be appointed; hence, corregidores are generally illiterate young men who have neither the preparation nor the independence necessary and are easily influenced (Article 223).
Under the Administrative Code of Panama and Law N° 112 of 1974 (Official Gazette N° 17,769, dated January 28, 1975), a wide range of crimes, described as offenses and violations in that Code, such as petty theft, misappropriation and swindling of small amounts, solicitation of prostitution and corruption, minor damages, and so on, come under the jurisdiction of the corregidores.
It has been reported that the corregidores, invoking articles 64, 65, 66 and 67 of the Organic Law of the Panamanian Defense Forces, have illegally extended their competence in order to bring to trial those who participate in the opposition political demonstrations, alleging that they have disobeyed or wronged members of the Defense Forces.
The proceedings conducted before the corregidores are oral and very brief (the maximum time period for handing down a sentence is 5 days from the date of the accused arrest) and in practice are not subject to any type of judicial control or supervision. The Corregidor is authorized to impose penalties of up to one year imprisonment.
In theory, the sentence of the Corregidor can be appealed to the mayor, but in practice this does not happen. In any event, even when an appeal is filed, the matter remains exclusively within the purview of the Executive Power. Clearly, the Executive Power is thus usurping responsibilities that ought to belong exclusively to the Judiciary. This makes for abuse and political persecution.
The Commission has repeatedly pointed out that the standards that protect the individual's right to due process by those who have been entrusted with the public power, are those that prescribe that no one shall be detained or imprisoned without: 1. a court order, 2. issued by a competent authority, 3. for a just cause, 4. based on a law already in effect, and 5. the individual arrested having the right to challenge the legality of the arrest without delay. There are different means to achieve this end. Specifically, the most effective are the remedies intended to obtain immediate court action, such as habeas corpus and, similarly, the remedy of amparo, both of which have the same purpose, i.e., to guarantee that the citizen will not be deprived of his freedom without a competent and impartial review of his case done in accordance with the law.
In the first chapter, the Commission made reference to the constitutional provisions relating to the legal guarantees to which every Panamanian is entitled. Of particular importance in that respect are Article 21 (prohibiting arrests without legal formalities); Article 22 (the authority's obligation to report the grounds or reasons for the arrest and the individual's right to be assisted by an attorney during the police and court proceedings), and Article 23 on habeas corpus which reads as follows:
Any individual detained on grounds other than those in the indictment or without the formalities prescribed by this Constitution or the laws, shall be placed at liberty on his own request or that of any other person through the writ of habeas corpus, which may be sought by means of summary judicial proceedings immediately after the detention and without regard to the applicable penalty. The writ shall be given priority over other pending cases by means of a summary proceeding, and processing may not be suspended on the grounds of non-working hours or days.
As stated earlier, those rights may, however, be suspended under Article 51 of the Constitution, “In the event of foreign war or domestic disturbance threatening the peace or public order”.
Even though the remedy of habeas corpus is, par excellence, the most suitable means for protecting the right to personal liberty and even though it is guaranteed in the Panamanian Constitution, in practice it does not have much juridical efficacy. As a rule, when the writ of habeas corpus is filed, the security police deny that the victim is being held, even though that individual is effectively being deprived of his freedom. Information supplied to the Commission indicates that in recent years, a writ of habeas corpus has never succeeded in securing the release of a political prisoner in Panama.
The Commission must express its very grave concern over the many complaints it has received indicating that legal guarantees have virtually ceased to function in Panama.
The courts have been totally incapable of preventing or, at least, curbing the abuses of authority and excesses committed daily by agents of the Panamanian Defense Forces. Often the orders handed down by the courts are totally disregarded by those who, by law, are obliged to execute them. In recent years there have been complaints that even prison officials (officers of the Defense Forces) simply refuse to carry out the orders for release on bail issued by local courts in the case of certain individuals being held. According to complaints received, those officials are exempt from any type of court control or supervision and in practice decide at their pleasure the fate of detainees. The Commission also has information to the effect that if a judge orders the release of a prisoner, prison officials routinely demand the payment of large sums of money, arbitrarily determined according to the importance of the detainee; even with that, the individual often continues to be detained.
A clear example of the failure to respect even the most elementary legal guarantees of political prisoners is the arrest of 22 members of the military, who since March 16, 1988, have been on trial for the crime of military insubordination. The former members of the Panamanian Defense Forces, Col. Leonidas Macías, Majors Nicolás González, Cristóbal S. Fundora, Luis Carlos Samudio, Arístides Baldonedo, Fernando Quezada, Jaime Benítez and José Serrano, Captains Humberto Macea, Miltón Castillo and Francisco Carrera, Lieutenants Renato Famiglietti and Luis Alberto Gordon, Second Lieutenant Gerónimo Guerra, Sergeants First Class Fernando Góngora and Raúl García Pinzón, Sergeants Second Class Luis C. Montenegro, Second Lieutenant Alcides Nuñez, Corporal Domingo Cerrud, Captains Francisco Alvarez and Alberto Soto and Lieutenant Edgardo Falcón have been subjected to physical and psychological torture and have been held for long periods incommunicado and isolated from their families, under subhuman living conditions. They have had no access to an attorney and have been denied any opportunity to defend themselves.
When the Commission met with the Commander-in-Chief of the Defense Forces, General Manuel Antonio Noriega, and the Staff on March 3, 1989, the situation of these military men was explained at length and a number of letters were even delivered to General Noriega wherein the detainees themselves requested pardon from the Commander-in-Chief of the Defense Forces. At that meeting the Commission was told that these military men were being tried for a violation of Article 49 of the Organic Law of the Panamanian Defense Forces (Law No. 20 of 1983), which states that:
The Commander-in-Chief of the various commands of the Staff, the regional chiefs, the zone and squad chiefs of detachments or squadrons can, without prior trial, order the arrest of their subordinates in order to contain an insubordination, a mutiny, or lack of discipline. The minimum penalty shall be one day and the maximum one year, depending upon the gravity of the offense.
At that same meeting, the authorities also assured the Commission that they would study carefully the legal and human situation of each of the detainees. However, they did not mention the degree of penalty that had been imposed, although considering that these men had served just short of one year (March 16, 1989), it was obvious that they had been given the maximum penalty.
In its Preliminary Observations to the Commission's report, the Government of Panama stated the following:
In its Report, the Commission refers to the cases of the cases of the 22 military personnel who were detained for an attempt coup d’etat on March 16, 1988.
With respect to these persons, it is stated that they remain illegally detained and have been denied the right of legal defense.
As explained in the Commission's Report, the illegality of the detention of these persons commenced once they had served the maximum administrative sentence imposed under the Organic Law of the Defense Forces. However, it fails to note that the application of this administrative does not been the application of the appropriate provisions of the Criminal Code. Moreover, these individuals committed crimes against the state and this prompted an investigation of the facts by the Attorney General which is still underway. It should be pointed out that the accused do have legal counsel selected by themselves who are charged with their legal defense and they have at their disposal all of the various remedies guaranteed by the Law.
Another example of lack of legal guarantees is the situation of Messrs. Conrado and Luis Antonio Cuevas, Omar Pitti, Domingo Solís and Wendel Angulo, who were detained on July 30, 1988, by members of the Panamanian Defense Forces, accused of having attacked a bank in David, Chiriquí. Military men under the command of Captain Iván Gaytán and Lt. Luis Guerra (Chief of the DENI in David) appeared that same day at the home of the Cuevas family and proceeded to arrest the parents of Conrado and Luis Antonio, searching the house and appropriating all of the family's effects. In the meantime, all detainees have been held for long period incommunicado, without benefit of an attorney and cut off from any contact with their families. All of them have been brutally tortured by members of the Defense Forces. Thus far, no one knows the concrete charges and evidence that exists against the five detainees. They are not being allowed access to defense counsel nor do they have any knowledge of the current status of the supposed criminal proceedings underway against them.
Another example of violations of the laws that guarantee due process is the case of Mr. Armando Antonio Ramos Henríquez, who was arrested on October 26, 1988, and is still at the El Renacer Penitentiary in Gamboa. He has never been brought to trial. Apparently, he is accused of endangering the internal security of the State. However, he is not being allowed access to an attorney.
A more recent example is that of Ing. José Guillermo Luttrell, a human rights activist and member of the Support Committee for the international observers for the elections that were held on May 7, 1989. Ever since he became involved in human rights activities, Mr. Luttrell has been persecuted by the regime of General Noriega and has been the target of a number of death threats. On May 24, Mr. Luttrell was arbitrarily detained as he was participating in a peaceful demonstration outside the Hotel Marriott in Panama City, in support of the OAS mission charged with promoting a dialogue to assure, within democratic parameters, and as soon as possible a transfer of power with full respect for the sovereign will of the Panamanian people. At the time of his arrest, he was beaten and immediately taken to the Model Prison where he was held incommunicado for seven days; he was later taken to the preventive detention section, along with a large number of other detainees The night court judge, Iván de Roux, who had the case of Mr. Luttrell, sentenced him to 365 days imprisonment, with the possibility of release on bail. However the officials at the Model Prison (officers of the Panamanian Defense Forces) systematically refused to obey the judge’s orders and held Mr. Luttrell and of her detainees illegally imprisoned, notwithstanding a court order to the contrary, until July 12, 1989, when they were released by Ministerial Decision.
The accounts given in this chapter lead the Commission to believe that the independence of the Judiciary has been seriously compromised, to the detriment of their right to the legal guarantees embodied in the American Convention on Human Rights, to which Panama is party.
Of special concern to the Commission is the system of corregidores. The Commission is of the view that the guarantees of due process are not served when justice is administered by the corregidores.
From the analysis made of the numerous complaints presented to this Commission, it can be said that the Judiciary has been seriously negligent in processing the motions that have been filed to safeguard the rights that those who oppose the government have to personal liberty and, physical integrity. In effect, in the majority of cases, the courts have not provided the proper protection inasmuch as cases their response to cases that involve disputes with the Government has been automatic and predictable, adhering strictly to an interpretation of the law that is favorable to the Government. The Commission also considers that the Courts’ inability to curtail the abuses of authority by prison officials, who refuse to release individuals on bail when so ordered by the Court, is advantageous to the Government’s practice in connection with violations of the rights to personal liberty and due process of law.
1. The, right to legal guarantees is recognized in Article 8 of the American Convention on Human Rights as follows:
“1. Every person has the right to a hearing with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:
a. The right of the accused to be assisted without charge a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;
b. Prior notification in detail to the accused of the charges against him;
c. Adequate time and means for the preparation of his defense;
d. The right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
e. The inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;
f. The right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;
g. The right not to be compelled to be a witness against himself or to plead guilty; and
h. The right to appeal the judgment to a higher court.
3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.
4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.
5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.”
2. For example, in past, the Commission has pointed out that: “It is the doctrine of the Commission that the effective observance of the guarantees set forth in the above-cited articles is based on the independence of the judiciary, which derives from the classic separation of the three branches of government. This is the logical consequence of the very concept of human rights. In effect, to protect the rights of individuals against possible arbitrary actions of the State, it is essential that one of the branches have the independence that permits it to judge both the actions of the Executive Branch and the Constitutionality of the law enacted and even the judgments handed down by its own members. Therefore, the Commission considers that the independence of the Judiciary is an essential requisite for the practical observance of human rights.” (Seventh Report on the Situation of Human Rights in Cuba, p. 51).
3. A distinguished Panamanian academic has said the following in this regard: This method, in our country at least, has not had good results. In almost all cases, the Assembly has merely rubber stamped the Executive's appointee. And so, it is the latter (the Executive Power) who appoints the magistrates of his choosing; the criterion followed is to dispense favors and reward political services--if not personal and family services--rather than to appoint truly suitable and qualified individuals to such a delicate position. Cf. Dr. César A. Quintero (Principios de Ciencia Polítics, p. 502).