THE RIGHT TO A FAIR TRIAL AND TO DUE PROCESS OF LAW1
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
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.
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.
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
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.
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).
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.
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.
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.
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
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.
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:
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.
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”.
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.
Commission must express its very grave concern over the many complaints it has
received indicating that legal guarantees have virtually ceased to function in
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.
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.
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
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.
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
In its Preliminary Observations to the Commission's report, the Government of Panama stated the following:
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.
respect to these persons, it is stated that they remain illegally detained and
have been denied the right of legal defense.
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.
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.
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.
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.
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.
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.
The, right to legal guarantees is recognized in Article 8 of the
American Convention on Human Rights as follows:
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.
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:
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;
Prior notification in detail to the accused of the charges against
Adequate time and means for the preparation of his defense;
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
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;
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;
The right not to be compelled to be a witness against himself or to
plead guilty; and
The right to appeal the judgment to a higher court.
A confession of guilt by the accused shall be valid only if it is
made without coercion of any kind.
An accused person acquitted by a nonappealable judgment shall not be
subjected to a new trial for the same cause.
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).