REPORT ON THE SITUATION OF HUMAN RIGHTS IN PANAMA
THE RIGHT TO DUE PROCESS AND A FAIR TRIAL
Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional right.
Every accused person is presumed to
be innocent until proved guilty. Every
person accused of an offense has the right to be given an impartial and public
hearing, and to be tried by courts previously established in accordance with
preexisting laws, and not to receive cruel, infamous or unusual punishment.1
A. Panamanian Law
1. Article 31 of the Panamanian Constitution of 1972 guarantees that those persons tried must be tried according to the law: "No one shall be tried except by competent authority and in accordance with legal formalities, not more than once for the same penal, police or disciplinary offense."
2. The Constitution allows, in some cases, the imposition of arrest and fines, without benefit of trial:
The following may impose penalties without previous trial and within the specific terms of the law:
1. Public officials exercising authority and jurisdiction, who may impose fines or arrest upon anyone who insults them or who is in contempt of their authority in connection with the discharge of their duties or by reason of their performance thereof;
3. In support of the concept of a fair trial, Article 24 protects the accused from being forced to incriminate himself or certain members of his family:
4. Decree 342
a. Cabinet Decrees No. 342 (repealed during the Commission's visit in December 1977) and 343 (repealed on February 14, 1978) did not assure persons accused of violations of those decrees an impartial and public hearing. Decree No. 342 and representative cases will be considered in detail in the paragraphs that follow. Decree 343 will be taken up n Chapter V of this report.
b. Cabinet Decree No. 342, 31 October 1969 (Gaceta Oficial No. 16.480, 5 November 1969) provided the basis for the legal framework of public order from 1969 until its repeal on December 13, 1977:
"He commits the crime of subversion of public order:
a) Who by words, in writing, or by means of caricatures, whether in public meetings, newspapers, radio or television, leaflets, posters and writings on walls, incites to violence against the national Government. [one month to 2 years and indemnization of anyone affected]
b) Who in attending a public gathering, meeting or concentration, causes or is responsible for causing, disturbances or damages to property. [one month to 2 years and indemnization]
c) Who organizes or incites strikes by workers, students, of a general nature that produce alterations of public order or disturbances in the services of public security or of legal and obligatory functions or damage to public or private property, [2 months to 2 years and payment of indemnity]
d) Who takes up arms, alone or in a group, in order to wage guerilla warfare, makes and explodes bombs or less explosive articles (petards), burns properties, contracts with mercenaries, within or without the country, introduces or attempts to introduce firearms into the country, finances or organizes guerrilla uprisings. [5 to 15 years, minimum indemnity of 5,000 balboas]
e) Who insults, shows contempt for, or in any form offends the dignity of those in the office of President of the Republic; Minister of State, Controller General of the Republic; Governors of Provinces and Mayors of the Districts; municipal officials (corregidor y regidor de Barrio); Justice of the Supreme Court; Procurator General of the Nation; Assistant Procurator; Assistant Public Attorney [Fiscal Auxiliar]; Magistrate of the Superior Court; Prosecutor of the Superior Court; Circuit Judges; Circuit Prosecutors and Municipal Judges; Municipal Prosecutors, Deputies to the National Assembly and Magistrates of the Electoral Tribunal; Commanders of the National Guard; Chiefs of Staff of the National Guards, heads of the Military Zones of the National Guards and Night Police Judges. [2 months to 2 years]
f) Who propagates by word or in writing or by any other means within the country, or may send abroad, misleading or false news or information meant to destroy the system of government, or to disturb the order, or security of the country, the economic system, the stability of prices, the stability and the securities of public holdings and the provisioning of the population, and those who, while out of the country, disclose such information abroad. [1 year to 5 years]
g) Who makes the defense of propaganda for doctrines, systems or methods that support crime or violence in any form, as means of obtaining political, economic or social changes or reform. [2-1/2 to 8 years]
h) When the incitement is done through telegraph and telecommunication companies, state or privately--owned, those responsible for the transmissions and communications will be subject to the penalties established in this Cabinet Decree. [2 months to 2 years]
c. With one exception, the Minister of Government was competent to order the arrest of the accused, make the finding of guilt or innocence, and sentence those found guilty. (Articles 5 and 6) In cases of offenses to the dignity of those authorities listed under Article 3(e), arrests, findings and sentencing were in the hands of the Mayor, Governor, or the Minister of Government, according to the hierarchy of the offended official. (Article 5) Only in the case of an insult to the President or a Minister of State was the matter to be heard by Justices of the Supreme Court. In short, this decree gave judicial authority to members of the executive branch, allowing them to interpret dangerously broad definitions of crimes of subversion of public order, and to sentence those accused without benefit of an impartial and public hearing.
The following mention of individual cases is for the purpose of showing that a number of persons have been sentenced by ministerial resolution under Decree 342. The Commission does not claim to have knowledge of all such cases, nor does it purport to judge whether the person cited actually engaged in the activities with which they were charged.
1. Hernán Guardia Vegara, Carlos Jerónimo López Correa, José Isabel Márquez Carvajal.
By Resolution of October 3, 1972, the Ministry of government and Justice sentenced the above persons to six months in prison for violation of Article 3(a) and (e) of Decree 342. They were charged with "bonds of friendship and of a political nature, that put them in the category of opponents of the present government," and with the printing of leaflets offensive to the dignity of government officials.3
Mario Clemente de Bernaschina Díaz, Giacomo Bonissi, José María
Botello Cedeńo, Luis Enrique De Gracia Deliot, Jaime Alberto Jácome Díaz,
Bernardo Lemos Medrano, and Orlando Mocci.
a. According to case files supplied by the Government, the above persons were charged on January 21, 1974, with subversive activities. They had allegedly violated Decree 342 by preparing or distributing anti-government leaflets. Bernaschina, in addition, was charged with insulting government officials and sending false information abroad on the basis of correspondence he had maintained with ousted President Arnulfo Arias and a letter he had written to U.S. Congresswoman Lenore K. Sullivan (D., Mass.), Chairman of the House Merchant Marine and Fisheries Committee. All were sentenced to imprisonment of one to two years by resolution of the Ministry of Government under the authority of Decree 342.
b. Official records made available to the Commission indicate that those persons were pardoned by General Torrijos on September 9, 1974.
3. Gabriel Gregorio Rodríguez Torres
Gabriel Gregorio Rodríguez Torres was incarcerated in the Model jail on January 22, 1974. Accused of subversion, he was sentenced on February 4, 1974, by resolution of the Ministry of Government and Justice to ten years imprisonment. According to the Government of Panama, Rodríguez, a Cuban citizen, was deported on February 26, 1975.
4. Esteban Sáenz López
Esteban Sáenz López was sentenced to one year in prison by Resolution
112 (June 3, 1974) of the Ministry of Government and Justice.
He was accused of violating Article 3(f) of Decree 342, which made it a
crime to send false or misleading information abroad for the purpose of
subverting public order.
Rita María da Conceicao Diamantino
According to information supplied by the Government, Rita Diamantino was arrested on April 23, 1976, [for introducing into the country arms, munitions, to be used in attacks against the Cuban Embassy, and taking hostages in the Spanish embassy, subversive acts and violence." She was sentenced on May 4, 1976, to eight years imprisonment for violation of Article 3(d) and Article 4 of Decree No. 342. She was pardoned by the Head of Government on May 20 1977, and was deported.
Jorge Rodríguez Aizpurúa; Gilma Rodríguez de Rodríguez and Josefa
The above persons were arrested on November 29, 1976, when a bomb exploded in a Volkswagen owned by Jorge Rodríguez while the three were driving through the city. They were found guilty of subversion under Decree 342 for exploding bombs in the city. Jorge Rodríguez was sentenced on December 27, 1976, to 15 years in prison; his wife and Dolores Montoto, were sentenced on the same day, by the same Cabinet Decree, to 5 and 7 years. The two women were pardoned by the Head of Government on May 20, 1977. Jorge Rodríguez is serving his sentence on the Island of Coiba. The Special Commission was able to speak with him during a private interview on the island.
7. Other Persons Accused of Violations of Decree 342
Other persons who were arrested and officially charged with violations of Decree 342 according to documentation supplied by the government are listed below. The Commission was unable to determine, because of incomplete documentation, whether these persons were actually sentenced.
a. José Féliz Arrocha, Luis Alberto Triana Guevara, René Chang Romero, Jorge Evelio Barría, Luis Armando Sánchez Hinestroza--placed at the orders of the procurator General on October 19, 1971.
b. Rodolfo Humberto Delgado Chanis, Bolívar Rodríguez Pérez, and Jorge Rodríguez Aizpurúa--placed at the orders of the Ministry of Government and Justice by the Second Superior Tribunal on January 20, 1972.
c. Jorge Julio González Resedas--placed at the orders of the Ministry of Government and Justice by the eight Circuit Judge on February 23, 1972.
d. Epifanio González Mendoza--placed at the orders of the Ministry of Government and Justice by the procurator General on May 2, 1974.
During the period 1972 to 1976, at least sixteen persons were accused of
political crimes and sentenced by ministerial resolution under Decree 342.
One of these persons is still in prison, sentenced to 15 years.
C. Due Process and the Right to a Fair Trial
The IACHR has received complaints which allege that the current Government of Panama regularly interferes with the legal process and the right to a fair trial at the investigatory, trial and sentencing states. In the following paragraphs appropriate reference will be made to articles of the Panamanian code of Criminal Procedure pertinent to the allegations, then the allegations themselves will e presented in summary fashion.
1. Article 2013
The defendant shall be given all legal means so that he can freely exercise the right of defense.
As a general principle, the defendant must be permitted to communicate freely and privately with his counsel in order for the right to a fair trial to be effective. However, Panamanian officials reportedly interfere with the defendant's access to his lawyer--one of the most notorious cases being that of Dr. José Manuel Faundes' access to his clients allegedly reached the point that a sign was posted in the Model Jail to the effect that prisoners would not be permitted visits from Dr. Faundes.
Also a statement shall be taken from those accused of being the perpetrators, accomplices, or accessories of the crime. This shall be done within twenty-four hours after the detention, arrest or appearance of the accused.
If the accused should be held incommunicado, that state shall cease once he finishes rendering his declaration.
The statement referred to in the above articles is supposed to taken in the presence of a public prosecutor (funcionario de instrución) within twenty-four hours of the arrest. Following this statement, the state of incommunication is lifted, and the accused is allowed to see his lawyer. In theory, then, if his statement is taken within the period prescribed by law, the defendant is entitled to see his counsel at a time not later than twenty-four hours after the arrest.
In practice, the arrested party is allegedly interrogated for investigative purposes in the locale of DENI or G-2over a period of days or even weeks, during which time he is held incommunicado. If he has a lawyer, he is not permitted to see him until the police decide to suspend the state of incommunication. If he is to be assigned a public defender, the assignment will not be made until the statement of the arrested party has been obtained.
3. Article 2157
The confession made by the accused in the presence of the Judge or public prosecutor and before the Secretary constitutes sufficient proof against him, and is by itself enough for conviction, as long as the body of the crime is sufficiently proved.
The above article reflects a general principle of law. The requirement of the presence of a judge or public prosecutor is based upon the assumption that a confession is valid only if obtained without coercion of any kind and that their presence presupposes the absence of coercion. The statement required by Article 2065 within 24 hours of arrest and in the presence of the prosecutor, should it constitute an admission, is a valid confession for judicial purposes.
In practice, the confession used or the conviction of the accused is allegedly obtained during the course of an interrogation by police officials, without the presence of a public prosecutor, and sometimes even before the prosecutor has been advised of the arrest. The police allegedly resort to beatings and other physical punishment, deprivation of food or rest, and threats, in order to obtain the statement. It is then typed in such a manner as to comply with the statement required by Article 2065, as if the prosecutor had supervised the interrogation, the defendant is allegedly forced to ratify it with his signature, and the statement obtained under coercion without the presence of the proper authorities becomes a valid confession leading to the conviction.
4. Article 2033a
In no case shall the records of the summary proceedings be kept secret and the accused and his counsel have the right to cross-question the witnesses.
When the witnesses or the defendants among themselves or the former with the latter disagree about some fact or circumstance relevant to the summary proceeding, the court shall be able to hold a confrontation between those in disagreement. . .
Every sentence in a criminal prosecution is appealable with execution suspended during appeal, by either party.
The appeal shall be made orally at the time of notification, or in writing within forty-eight hours, counted from the time of notification.
The right of the defendant to examine witnesses and to appeal his sentence is embodied in the articles above. These rights are ineffective, however, in the many cases where the defendant is detained on the Island of Coiba during the investigatory proceedings and trial. Though, in theory, the prisoner is supposed to be returned to the mainland for such proceedings when the court so orders, those orders have allegedly been ignored in some cases by prison authorities, and the prisoner is not informed. As a result, the defendant cannot communicate freely with his attorney and therefore is unable to aid in his defense. He is often unaware of the charges, ignorant of what the witnesses have said, and the investigation, trial and sentencing are carried out without his presence. When the prisoner is finally made aware of the sentence, the period allowed for the appeal may have lapsed.
No one shall be detained for more time than necessary to carry out the investigatory proceeding and for the tribunal to declare that there is cause for prosecution.
The summary must be concluded within two months.
When the time fixed in the preceding article has lapsed, the public prosecutor shall send the summary, in whatever state it may be, to the competent judge or tribunal, according to Article 2129.
When a writ of dismissal is issued, the defendants who are not being held under another charge shall be set free. . .
If upon sentencing the defendant has already served the sentence imposed, the tribunal shall order him set free, without bail, during any inquiry (consulta) or appeal.
These articles are intended to protect the defendant from unnecessarily prolonged imprisonment during the investigatory and trial process. Despite these safeguards and time limits, prisoners are allegedly held for much more than two months, and in some cases, for years without trial. Another had been held for more than a year, allegedly because the police had not been able to find the person who originally brought the complaint and who, in any case, had not identified the prisoner as the wrongdoer. According to figures furnished by the Government during the on/site visit at the end of the month of October, 1977, 138 of the 160 prisoners in Colon were awaiting investigation and trial, as were 123 of the 193 in David, 664 of the 804 in Panama City, and 248 of the 729 in Coiba. A communication sent to the IACHR included a newspaper article (Críitica, 19 January 1978) which quoted an official report that of 2,301 prisoners throughout the country, 1,445 were awaiting trial.
A number of prisoners told the Special Commission that they had already served the maximum time for the offense with which they were charged yet they had not been tried. Others said that writs of dismissal had been issued in their case, but they continued to be held. In Coiba, in particular, the IACHR found that the prisoners are often kept ignorant of the progress of their processing and trial and do not have access to such information as the date on which their sentence is to end, or when their detention officially began, or when they are eligible to be released before the end of their sentence. One prisoner told the Special Commission that the court in charge of his case refused to grant a reduction in his sentence because he did not appear before the court when notified. The reason he did not appear was because he was in prison in Coiba. Failure to see that prisoners appear in court when summoned and refusal to give them information such as the above constitutes an interference with due process and the right to a fair trial.
6. The IACHR takes note of the following allegations of interference with the legal process:
a. Marlene Mendizábal and Jorge Falconett
The Commission has received various communications, which allege that government officials have interfered with the legal process by hindering the investigation of the deaths of Marlene Mendizábal, a 20-year-old student and Jorge Falconett, her fiancée. Marlene and Jorge disappeared while on an outing with friends during the weekend of January 30-February 1, 1976. Her body was found in an estuary that empties into the Rio Negro in Mariato, Veraguas province, on February 3; Jorge Falconett was never found, but articles of his clothing were discovered in the vicinity.
The fathers of the two, Carlos E. Mendizábal and Elías Falconett have stated publicly that their children were murdered by Roberto Pinzón Jr. (the son of the family that planned the outing), his friend Jacinto MacDonald and Raúl González, a son of the family with whom the group was staying. Mendizábal and Falconett are convinced that the investigation was interfered with and that no responsibilities were established because of the family ties of one of the accused, Roberto Pinzón Jr. It is alleged in statements taken during the preliminary hearing that his father is a member of the National Assembly, and his uncle is Lt. Col. Roberto Díaz Herrera, at that time Executive Secretary of the National Guard. Another uncle is allegedly Lt. Ricauter (sic) Rodríguez, of the National Guard, stationed at that time in Las Tablas, but who left his post to direct the search and investigation, and replace, in effect, the National Guardsman stationed in the area where the disappearance occurred. Other close relatives of the Pinzón family include, according to the same source, Dr. Francisco Carrizo, the coroner of the district, and Liliana de León, the equivalent of the district attorney.
The body of Marlene was found by Roberto Pinzón Sr. and a friend. It was taken immediately to Atalaya, a nearby town. Instead of being taken to the Morgue, it was carried directly to the cemetery where it was viewed briefly by Dr. Carrizo, who ordered it buried without an autopsy, alleging that it was in too great a state of decomposition. According to Mr. Falconett, Dr. Carrizo, "taking a little stick from the ground, raised the blanket that covered Marlene's face and after looking at her briefly ordered her buried." "When he was told that an autopsy had to be done he refused completely, so she was buried."
When members of the Special Commission interviewed Lcdo. Oswaldo Miranda, the procurator General, he told them that he had fired Dr. Carrizo for not performing the autopsy. However, the Special Commission was later informed by a reliable source that Dr. Carrizo was given another position within the government.
When Mr. Falconett went immediately to the Attorney General of the Nation and obtained an order for an exhumation and the performance of a necropsy, DENI delayed in carrying out that order. Finally the date for the exhumation was set for February 10 and was confirmed by the coroner. Members of the family journeyed to the town and waited all day to no avail. Other delays followed and at least one more specific date was set, for ,March 16. This time the coroner complained that he had not been informed. Finally, the exhumation was carried out and the necropsy was performed on March 30. However, the Falconett and Mendizábal families were not informed; only the designated officials and relatives of the accused were present. The examination failed to establish the cause of death.
According to their official statement, members of the Falconett and Mendizábal families were informed by several witnesses of suspicions of foul play: blood was said to have been seen on Jorge's cap and Marlene's scarf; a witness in whose boat her body was taken from the estuary allegedly said that he saw coagulations of blood. These details and other, however, were always denied when those witnesses were called to confirm them in official testimony. One witness who had been quoted even denied having the conversation.4
The Procurator General told members of the Special commission that Mr. Mendizábal believed that his daughter's fiancée, Jorge Falconett, had murdered Marlene in a crime of passion. In independent interviews, the Special commission was unable to find any basis for the claim that Mr. Mendizábal had, at any time, accused Jorge Falconett.
Mr. Mendizábal continued to do everything possible to publicize the case. As a result, he was the subject of many threats, and on October 13, 1976, he was arrested at his home without a warrant.
Fearing for her husband's safety, Mrs. Mendizábal, according to statements she and her son filed with a state prosecutor (Fiscalía Cuarta del Circuito) on October 18, 1976, went to the offices of DENI where he was held and asked them for an explanation. When they refused to give one, and asked her to move on, she began to shout for justice. In response, Mrs. Mendizábal, who was wearing a neck brace at the time, was severely beaten and is now confined to a wheelchair as consequence of that beating.
The control of a criminal investigation by government officials who are relatives of the accused constitutes a clear conflict of interest on the part of those officials and amounts to an interference with generally accepted concepts of justice and the legal process. The IACHR finds in this case that a fair and appropriate investigation was not carried out by the Government, and notes that the Government did not punish lower officials who failed to perform the autopsy.
American Convention on Human Rights
Article 8. Right to a
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 from the determination
of his rights and obligations of a civil, labor, fiscal, or any other
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 by 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
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.
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 judgement 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.
The respective penalties, which appear in Article 4, are shown here in
Based on official records supplied by the Government of Panama.
This paragraph is based upon transcripts of the declaration of witnesses
supplied by the government.