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In dialogue with Panama, Committee on enforced disappearances asks about accountability for the past and about migrant missing persons

16 September 2021

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Panama on measures taken to implement the provisions of the International Convention for the Protection of all Persons from Enforced Disappearance.  Committee Experts asked how enforced disappearances that had occurred in the past were dealt with in Panama’s laws and courts of today, also raising the issue of migrant missing persons. 

Ana Luisa Castro, Deputy Minister in Charge of Multilateral Affairs and Cooperation and head of delegation, introducing the report, said that in 2016, Panama had introduced amendments to its criminal code criminalizing enforced disappearances, in accordance with international standards.  Enforced disappearances were regulated as a crime carrying a penalty of 15 to 20 years’ imprisonment.  Panama had made progress in addressing the problem of enforced disappearances through legislative policies and jurisprudence, she said.  Thanks to political will and civil society’s commitment to human rights, legal obstacles were being progressively removed. 

Those responsible for enforced disappearances were being identified and punished through the reopening of judicial cases throughout the country, with full guarantees to their rights to due process.  Panama’s conciliation procedure, provided by the Inter-American Commission on Human Rights, allowed complainants to file cases of enforced disappearance.  Panama faced challenges ahead, she acknowledged, underscoring her country's constructive stance for truth. 

Committee Experts asked whether Panama would recognize the Committee’s competence to receive individual complaints referred to it in the implementation of the Convention?  Experts also asked about files dating to the period of dictatorship, asking how many prosecutions Panama had pursued, and the basis of any convictions was.  Had Panama established good practices on the prosecution of enforced disappearances?  Given the continuing nature of the crime of enforced disappearance, could the delegation explain whether the principle of retroactivity applied to that crime in Panamanian law?  

The Committee was also concerned about the plight of migrants passing through the Darien jungle, noting that information received alleged they were being subjected to human rights violations, including disappearances in the jungle.  The delegation was asked to provide information on which steps Panama had taken to address that issue, and which difficulties it had faced in executing investigations and prosecuting cases of human rights violations involving migrants passing through the Darien jungle?  Was there a registry of migrants who had disappeared, and was there a search protocol to look for migrants? 

In her concluding remarks, Committee Chair Carmen Rosa Villa Quintana commended the delegation for their positive attitude, and for their flexibility in overcoming technical difficulties.  She underscored that the Committee was open to assisting Panama in its implementation of the Convention. 

Ms. Castro, Deputy Minister in Charge of Multilateral Affairs and Cooperation and head of delegation, confirmed Panama’s good faith in appearing before the Committee, and noted that Panama remained open for further dialogue where improvement was needed.   

The delegation of Panama consisted of representatives of the Government, the Ministry of Public Security, the Supreme Court, the Appeals Court, the Attorney General’s Office, the National Immigration Service, the Ministry of Foreign Affairs, the General Directorate of the Penitentiary System,  the Office of Legal Counsel of the Ministry of Government, the National Office for Refugees, the Office of the Presidency, the Ministry of Public Security, and the Permanent Mission of Panama to the United Nations Office at Geneva.

The Committee will issue its concluding observations on the report of Panama at the end of its twenty-first session on 24 September.  Those, and other documents relating to the Committee's work, including reports submitted by States parties, can be found on the session's webpage

The webcast of the Committee's public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 3 p.m. on Friday, 17 September to hold its dialogue with Spain. 

Report

The Committee has before it the initial report of Panama (CED/C/PAN/1)

Presentation of the report

JUAN ALBERTO CASTILLERO CORREA, Permanent Representative of Panama to the United Nations Office at Geneva, opened by thanking the Chair and the Committee members and stated that Panama was looking forward to the dialogue with the Committee. 

ANA LUISA CASTRO, Deputy Minister in Charge of Multilateral Affairs and Cooperation and head of delegation, introducing the report, said her country based its development policy on human rights, which did not allow for any enforced disappearances.  Panama had created an international standing committee to ensure follow-up to its commitments in the area of human rights, including recommendations by the United Nations human rights treaty bodies.  The Constitution of Panama stood for liberty, democracy, institutional stability and human dignity.   In Panama’s legal system, certain powers were granted to State authorities for the purpose of protecting the rights of nationals and foreigners in Panama, but they were not absolute, as a 2004 amendment to the Constitution stipulated that those powers should be considered as a minimum standard.  State authorities in the exercise of such powers must respect the fundamental rights and human dignity of all persons.

Enforced disappearance was a crime on many fronts, as it directly attacked constitutional standards that offered protection to individuals, such as the rights to life, liberty and the due process guarantees.  In 2016, Panama had introduced amendments to its criminal code in order to criminalize enforced disappearances in accordance with international standards.  Enforced disappearances were regulated as a crime carrying a penalty of 15 to 20 years’ imprisonment.  While the Constitution allowed for the declaration of a state of emergency and the suspension of some rights in cases of external war or internal disturbances threatening peace and public order, the country also recognized and incorporated into its legal structures the Inter-American standards which regulated international human rights law.  State authorities were obligated to refrain from suppressing the fundamental guarantees that protect individuals from unlawful and indefinite imprisonment in accordance with the legal procedures enshrined in the American Convention on Human Rights, because they constituted judicial guarantees indispensable to protect rights and freedoms that could not be suspended under a state of emergency. 

Panama had made progress in addressing the problem of enforced disappearances through legislative policies and jurisprudence, she said.  Thanks to political will and civil society’s commitment to human rights, legal obstacles were being progressively removed.  Those responsible for enforced disappearances were being identified and punished through the reopening of judicial cases throughout the country, with full guarantees to their rights to due process.  Panama’s conciliation procedure, provided by the Inter-American Commission on Human Rights, allowed complainants to file cases of enforced disappearance. 

While highlighting the positive measures, she noted that Panama had a long road ahead to address the problem of enforced disappearances, especially with emerging challenges facing Latin America.  Notwithstanding the pronouncement of a state of emergency due to the COVID-19 pandemic, Panama had not suspended the fundamental rights that protected individuals against unlawful and indefinite imprisonment.  During the pandemic, the Public Prosecutor’s Office had continued doing its constitutional duty of investigating and prosecuting all crimes, while the judicial branch of the government had provided the necessary checks by ensuring that individuals’ guarantees of due process were protected.  Panama faced challenges ahead, she acknowledged, underscoring her country's constructive stance for truth.  Panama was a pro-active State party coming before the Committee for its dialogue. 

Questions by the Committee Experts 

JUAN JOSE LOPEZ, Committee Expert, welcomed the constructive spirit of the Panamanian delegation and asked for additional information on Articles 1 through 7, which among others included measures taken by the State party to criminalize enforced disappearances and hold perpetrators accountable.  Would Panama recognize the Committee’s competence to receive individual complaints referred to it in the implementation of the Convention?  Could the delegation provide more data regarding victims of enforced disappearances and victims of criminal activities taken by non-State actors?  Asking the delegation to provide clarification on cases reported to the Committee, he said that a number of files had not been found which dated to the period of the dictatorship.  How many prosecutions had Panama pursued, and what was the basis of any convictions?  Had Panama established good practices on the prosecution of enforced disappearances? 

Panama had quite a number of abduction cases.  Could the delegation provide information on actions taken against perpetrators, including which investigations were conducted as well as convictions secured in cases involving missing persons?  The Committee had received information that migrants passing through the Darien jungle were being subjected to human rights violations, including disappearances in the jungle.  Could the delegation provide information on which steps Panama had taken to address that issue, and which difficulties it had faced in executing investigations and prosecuting cases of human rights violations involving migrants passing through the Darien jungle? 

Regarding search protocols, he noted that criminal activity occurred mostly on the Colombia-Panama border, and asked whether there was any coordination and cooperation between the two countries to prevent such criminal activity and to search for missing persons in the border area?  Did Panama have legislation in place to punish senior officials if they avoided holding perpetrators accountable?

A Committee expert asked whether Panama had adopted any restrictive measures during the COVID-19 pandemic.  Was there restriction of movement of persons during this time?  How many legal processes had been held up?  Given the continuing nature of the crime of enforced disappearance, could the delegation explain whether the principle of retroactivity applied to that crime in Panamanian law?  Which criteria did Panama employ to define ongoing crimes, particularly enforced disappearances that occurred before the enactment of legislation in Panama?  Could the delegation provide information on what mechanisms were in place to exclude individuals, especially public servants, from possible interference with investigations and prosecutions involving cases of enforced disappearance? 

Committee experts further asked the delegation to provide information on the suspension of public officials who were alleged to be involved in cases of enforced disappearances.  Was suspension immediate, as the Convention called for, or did it take a certain time before the suspension became active? Did Panama request or seek international legal assistance to strengthen its capacity to deal with cases of enforced disappearances?  The Committee urged Panama to seek international legal assistance, given that the country had experienced quite a number of enforced disappearance cases.

Replies by the Delegation

The delegation said that during the period 1979 to 1989, Panama’s legal system did not have legislation criminalizing enforced disappearances.  However, cases of enforced disappearance were considered by the Inter-American Court on Human Rights, and the State did recognise the right to life, liberty, and security of individuals and the need to respect those rights.  The delegation referred to several cases in which the Inter-American Court and the International Commission of Human Rights identified the responsibility of various actors for enforced disappearances and ensured compensation to the victims, including economic compensation to the families of the recognized victims.  Panama also published public statements regarding those events, conducted investigations, and punished those responsible.  The country had also created monuments to honour the memory of the victims and provided psychological support to families. 

On the question of disappearances in the Darien jungle, the delegation said that there were no formal controls to enter Panama through that area and thus it was possible for migrants to take different routes in their attempts to enter Panama.  Disappearances there did not fall within the definition under Article 2 of the Convention and thus could not be classified as enforced disappearances.  However, the delegation noted that they had received reports of over 40 deaths from family members of people who had tried to enter Panama through the jungle.  The majority of those cases had not been investigated, but the reports received indicated that the victims had died as a consequence of pre-existing medical conditions and weather conditions.  Some of them had drowned in the river. 

In response to the question regarding Panama’s search protocols, the delegation noted that most of the migration flows through the Darien jungle indicated that most migrants did not intend to settle in Panama.  Through relevant ministries, Panama provided services which facilitated migrants’ transit.  The Inter-American Court had found that Panama as a country of transit had complied with its human rights obligations.

Panama investigated reported cases of crimes involving migrants, the delegation said, noting that from 2012 to 2021, eight groups responsible for trafficking of migrants had been prosecuted.  A specific agency had been set up to receive complaints from migrants, which sought international cooperation on cross-border crimes. 

In response to questions asking for details on precautionary measures against public servants suspected of being involved in enforced disappearance cases, and whether they could be suspended, the delegation said that every citizen was guaranteed the right to a fair trial, with no exceptions for public servants.  A request could be submitted to a judge, who could decide whether the case met the minimum requirements for precautionary measures to be enacted. 

Follow-up questions by the Committee Experts

HORACIO RAVENNA, a Committee expert, welcomed the responses by the delegations which in his view satisfied the Committee’s concerns.  He requested the delegation to explain how Panama dealt with circumstances in which enforced disappearances were a continuing crime?  How was retroactivity applied to those cases? 

JUAN JOSE LOPEZ ORTEGA, a Committee member, asked the delegation to provide data and numbers of cases of enforced disappearance, as well as statistics on victims during the dictatorship period.  Was any other recourse given to the victims other than the remedy of going to the Inter-American court, was it the sole remedy?  Could the delegation provide information on disappearances during Panama’s period of invasion? 

Was the suspension from post of those who had committed crimes of enforced disappearances at the sole discretion of the prosecutor, or was it recognized in Panama’s legislation?  Which rights had been recognized in Panama’s legislation on the acquittance of public officials? 

JUAN PABLO ALBAN ALENCASTRO, a Committee member, noted that in some cases, security forces could be possible perpetrators, and asked which mechanisms were in place to ensure that security agents did not interfere with investigation processes?  Over the past year, several cases of disappearances  had been reported in Panama and Colombia.  Could the delegation indicate whether there was a registry of migrants who had disappeared?  Was there a search protocol to look for migrants? 

Replies by the delegation

In response to the question on the continuing nature of the crime of enforced disappearances and retroactivity, the delegation said that while the crime of enforced disappearance was not recognized in Panama's Constitution, the similar crime of homicide was recognized and retroactivity did not apply to that crime.

Regarding the independence of investigations and prosecutorial services, the delegation said that in some cases, public servants were immediately removed from their posts in order to ensure that they did not interfere with investigation.  The Public Ministry in Panama which handled investigations could also decide who should form part of investigations, which was another mechanism to protect the independence of investigations. 

On prevention measures taken by Panama during COVID-19 pandemic, the delegation noted that there was a need to suspend the national state of emergency, and that Panama was working toward ensuring protection for vulnerable persons such as children.  Given the limitations caused by lockdowns, certain measures had been taken to ensure access to justice as well as ensuring the health of detainees.  The Supreme Court of Panama had recognized the impact of COVID-19 on the public; everyone had the right to have the support of a lawyer and have their trials heard.  As for people who were apprehended during the pandemic, the fair trial guarantees were upheld and they also had the right to appeal to the Supreme Court.  In response to the question on the competence of the Committee to receive complaints under the individual complaint procedure, the delegation informed that Panama would respond to that question in the future. 

Follow-up questions by the Committee Experts

Committee Experts asked for more information about extradition.  If there were risks associated with extraditing an individual, how would Panama guarantee their safety?  The Committee had the impression that a person deprived of liberty could not communicate with their family.  Furthermore, information had been received alleging that some families did not even receive information that a family member had been deprived of liberty. 

Other Experts asked about the definition of a victim in Panamа’s legislation.  It appeared to the Committee that the current definition did not meet the requirements of the Convention, namely broadening the concept of victims of enforced disappearances to include their family members. 

Experts further asked whether there was a specific programme for women who were victims of enforced disappearance, and also when they were members of the household of a disappeared person. 

Replies by the delegation

The delegation explained that before the pandemic, family visits to people deprived of their liberty had been without restrictions, with some exceptions.  There were public telephones in detention centres.  As a result of COVID-19 pandemic restrictions, virtual communications systems had been installed in all detention centres.  The centers could therefore take all necessary measures to protect the health of the personnel and the prisoners. 

The delegation explained that there was full information on record for all persons deprived of liberty.  Those files were kept on different platforms, and contained all the information needed from the competent authorities.  Panama had legislation where punishment was foreseen for those who tried to manipulate that information.  Human rights training was provided to new police officers twice a month. 

Panama had specific protection measures to protect victims and others, as determined by the prosecutors and judges.  Individuals received psychological and medical healthcare for as long as needed.  With regard to refugee children, the delegation provided detailed information on the figures of unaccompanied minors in Panama. 

Follow-up questions by the Committee Experts

Committee Experts asked for further clarification on unaccompanied or abandoned children, what route did they follow across Panama?  How did the State know about them?  It was understood to be difficult to track them if they went through the rainforest.  The Committee was not satisfied with Panama’s current legislation on declaration of death, an Expert cautioned.  There needed to be a presumption of life, not death, and there needed to be mechanisms beyond the declaration of death, which was traumatic for relatives of missing persons.  The Committee also asked about figures of people in prisons and whether there was any registry over people deprived of liberty?  What type of training was received by professionals dealing with enforced disappearances?  

Replies by the delegation

Responding to questions posed on unaccompanied minors and adolescents, the delegation said that some had been travelling with other individuals, such as family members, or had reunited in Panama.  When they came to Panama, they were reported as unaccompanied children.  Governmental assistance was provided to all people in shelters in Panama, as well as the right to communicate with their family.  Refugees on Panama’s borders were taken care of, and their rights were guaranteed.  Despite the COVID-19 pandemic crisis, Panama continued to perform its duty, including providing care for people seeking help, to ensure that no one was left out.  The delegation gave information about the human rights training organised for members of the judiciary, police, and intelligence agents.  There were also training programs specifically devoted to the issues of migrants and refugees. 

Concluding remarks

ANA LUISA CASTRO, Deputy Minister in Charge of Multilateral Affairs and Cooperation and head of delegation, confirmed Panama’s good faith in appearing before the Committee, and noted that Panama had criminalised enforced disappearances, and launched investigations on the same.  Human rights were at the centre of legislation in Panama, which remained open for further dialogue where improvement was needed.  Panama would always respond positively to any invitation for dialogue from the Committee or any other United Nations human rights treaty body. 

CARMEN ROSA VILLA QUINTANA, Chair of the Committee, thanked the delegation for their positive attitude, and for their flexibility in overcoming technical difficulties.  She reminded the delegation that they had 48 hours to submit factual corrections, and underscored that the Committee was open to assisting Panama in its implementation of the Convention. 

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/09/le-comite-des-disparitions-forcees-se-felicite-de-la-bonne