CHAPTER THREE

RIGHT OF PROTECTION FROM ARBITRARY ARREST - HABEAS CORPUS

American Declaration:

Article: XXV

No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or otherwise to be release . . . .1

1. The Panamanian Constitution provides as follows:

Article 21

No one may be deprived of his liberty, except by virtue of a written order of a competent authority issued in accordance with legal formalities and for a reason previously defined by law. Those executing such orders are obliged to give a copy thereof to the interested person if he requests it.

An offender surprised flagrante delicto may be apprehended by any person and no one may be detained for more than twenty-four hours without being placed at the disposal of the competent authority. Public officials who violate this precept shall be punished by the loss of their employment, without prejudice to other penalties established by law for this purpose.

Article 22

Any individual detained on grounds outside the cases or without the formalities prescribed by this Constitution and the Law, shall be placed at liberty on his own request or that of any other person through the remedy of habeas corpus, which may be sought by means of summary judicial proceeding immediately after the detention and without regard to the applicable penalty.

2. The procedure to be followed in order for an arrest to be lawful under Panamanian law is set out in Chapter 5 of the Judicial Code. Detentions may be made only under certain circumstances.

Article 2091

When the crime in question is one which carries the penalty of imprisonment, the accused shall be detained if there is as evidence against him at least the statement of a competent witness, or a serious indication that he is the perpetrator, accomplice or accessory of the crime under investigation, or if the official who orders the detention has seen him commit the act, or the individual has been apprehended flagrante delicto.

Article 2092

No person shall be detained except by order of the public prosecutor. However, anyone shall be empowered to and should detain a criminal apprehended flagrante delicto, and thieves and wrongdoers publicly recognized as such, without awaiting an order from a competent authority.

3. The Panamanian Law of Habeas Corpus is contained in Law Number 46, 24 November 1956 (Gaceta Oficial, No. 13.117, 6 December 1956). Article 1, which describes the general nature and purpose of the writ, is transcribed below. Other pertinent articles will be set forth as they are necessary to the discussion.

Article 1

Every person detained outside the cases and the manner prescribed by the Constitution and the Law by any act of a public authority, official or body, of whatever agency or branch or government, has a right to a writ of Habeas Corpus, in order to appear immediately and publicly before a court for a hearing and a determination of whether the detention, arrest, or imprisonment is lawful, and if it is not lawful, to be released and have things restored to their prior state.

4. Allegations of Arbitrary Arrest and Ineffectiveness of Habeas Corpus

Communications have been presented to the IACHR which allege that arbitrary arrests and detentions have been carried out by the Government of Panama, notwithstanding Articles 21 and 22 of the Constitution and the above cited Code provisions. It is alleged, moreover, that those arrested are often not informed of the reasons for their detention nor are they notified of any charges against them. It is maintained by the complainants that persons detained do not always have recourse to a competent court or authority to decide the lawfulness of their detention because they are kept incommunicado or sent into exile. In other cases it is maintained that habeas corpus is ineffective because of the lack of an independent judiciary (See Chapter IV) and the failure of authorities to give a proper response to the writ.

Panamanian lawyers have complained publicly of the Government's disregard for the constitutional provisions and the articles of the Code of Criminal Procedure, which are designed to protect citizens from arbitrary arrest and detention. One lawyer described the situation as follows:

. . .the writ of habeas corpus does not work in political cases and in the cases of common arbitrary detentions it is severely limited by the fact that the courts do not have the authority to enforce their decisions. For example, in 1973, the United States started pressing the Panamanian Government to control the drug problem. The dictatorship made a big show of publicity about the National Guard's campaign against drugs. To please the United States, the government started "building" drug cases, arresting hundreds of persons under drug possession charges. Since the arrests were illegal in most of the cases, the courts issued writs of habeas corpus and the National Guard refused to comply with the courts'

As recently as May 26, 1977, the same general charge was repeated. During the course of a television program entitled "Round Table Discussion on Human Rights," hosted by Mayín Correa, Mr. Sossa, a lawyer and a director of the Christian Democratic Party, in reference to situations in Panama which he considered to be violative of human rights, indicated: "We attorneys are ver disturbed because accusations have been made, even to the Bar Association, concerning the disregard which the proper authorities pay to the remedy of habeas corpus, one of the most powerful legal tools, or one of the major victories of humanity in the area of legal remedies and the defense of the individual."

5. Individual Cases

a. Exiles of January, 1976

The cases of Rubén Carles Jr., Roberto Eisenmann, Guillermo Ford, and others of the same group who were exiled in January, 1976 (see Chapter Seven), are alleged examples of arbitrary arrests carried out by the government.. All complain that they were not informed of the reasons for their arrest, that no order was shown to them despite their request, that no charges were filed against them, and they were not taken before a competent authority. In their situation, habeas corpus was an illusory remedy because the arrests were followed so quickly by exile.

Alberto José Quirós, for example, was detained at 7:00 a.m. on the morning of January 20. In the evening of the same day, he was sent into exile on a government plane. By the time a petition for habeas corpus was filed on his behalf on January 22, Quirós had already been exiled. In his case, the President of the Supreme Court was unresponsive to the petition, allegedly declaring that no one was being detained--that "some Panamanians had simply left on a trip to Ecuador".

The Government, then, has on some occasions avoided the restraint of habeas corpus by sending the detainee out of the country before he can obtain a writ to test the lawfulness of his situation.

b. Eusebio Marchosky

Some details of the arrest and alleged beating of Eusebio Marchosky prior to his exile were mentioned in Chapter Two in relation to the right to security and integrity of one's person. The manner in which he and his wife, Blanca, and Fulvia Morales were arrested on September 15, 1976, is alleged to represent another example of arbitrary arrest and the ineffectiveness of habeas corpus. His car was intercepted by armed G-2 agents and forced to the curb; he and the occupants were taken to G-2 headquarters. They were not informed of the reason for their arrest, they were not formally charged, nor were they taken before a judge or other competent authority, yet he was held for three days before being exiled.

The arresting authorities are able to avoid the habeas corpus by keeping their prisoner incommunicado, sometimes for weeks, and denying that he is being held. Unless someone on the outside knows of his predicament, the writ is an inaccessible remedy.

c. Ramón Jiménez Vélez

Two problems are exemplified in the arrest and detention of Ramón Jiménez which occurred on January 16, 1974. One practice said to be utilized by the government and illustrated in this case is arrest and detention without an order, for a short period of time, as a form of intimidation. Jiménez was allegedly arrested by plainclothesmen and taken before the Minister of Government and Justice where he was held incommunicado and warned to cancel the planned publication of an opposition newspaper.

Documents supplied by the government show that an associate of his brought a writ of habeas corpus on the same day, charging that Jiménez was illegally detained in the Ministry of Government under orders from the Minister himself, Juan Materno Vásquez. When the writ issued on the following day, Vásquez (who had since been made President of the Supreme Court) responded to the Supreme Court in these words:

With the respect that the Honorable Supreme Court merits, I inform the Magistrate that it is not correct that I ordered the detention of Mr. Jiménez, and less so that said citizen is, or has been, detained in this Ministry!

Habeas corpus is ineffective to deal with short-term arrests without a warrant. They may be used with impunity to intimidate the opposition or other individuals. And secondly, there is no remedy when the arresting authority replies to the writ by denying that the person in question is under detention.

d. Florencio Enrique Delgado

Delgado, whose case is discussed briefly in Chapter Five as a violation of the right to freedom of investigation and expression, allegedly presents still another example of how government officials may conspire to deny the constitutional safeguards against arbitrary arrest. Delgado was arrested without a written order by G-2 on June 14, 1975. He was not informed of the reasons for this arrest, nor was he taken before a competent authority within 24 hours as the law prescribes. He was questioned at 1:00 p.m.2 and again at 10:00 p.m.3 in the offices of G-2. Three days later, one June 17, apparently to avoid a writ of habeas corpus, G-2finally placed him at the orders of the competent authority--the Procurator General. On that day, the Procurator General issued the first legal order which provided for the "continued detention" of Delgado.4

At 11:00 a.m. on June 18, Delgado's statement (declaración indagatoria) was taken in the offices of the procurator General. According to law, this statement should have been taken within the first 24 hours of arrest, but in this case it was actually taken on the fifth day following his arrest. As a part of his official statement, Delgado was first asked to ratify the statements taken by G-2 (which he did), and he then made the following declaration in protest of his detention:

I have been detained since the 14th at 10:30 a.m., until now, merely for having made use of the right to freedom of expression and of the right to meet (with friends) freely to attempt to analyze internal situations of my country and to express my personal opinion of the same. I have expressed my fears, opinions, evaluations of internal and external problems of Panama, making use of very personal criteria and opinions, for which I believe I do not merit the detention which I have suffered. I wish to add that on Sunday the 15th in the afternoon, I was also interrogated in the same place, for approximately an hour and half; in the course of that interrogation questions were addressed to me that I consider unnecessary and inappropriate with regard to my wife, her work, her salary, with regard to m work, my position in the company, my salary and other questions related to the job, of which I wish to make note for whatever may happen in the future. With me, in the Model Jail, there were also some persons under arrest for more than three days without knowing why they were detained, and probably because of this they will lose their jobs, for which reason I consider this form of detention on the part of G-2 most objectionable. Lastly, I want to voice my alarm at the deplorable hygienic condition of the preventive detention cell of the Model Jail . . .l

After taking Delgado's statement, the Procurator General, Olmedo Miranda, determined that he could be charged with a violation of Cabinet Decree 342 (subversion of public order) and therefore placed him at the disposition of the competent authority for such cases--the Minister of Government.5 Charged with a violation of 342, Delgado could be summarily sentenced by the Ministry of Government without a trial.

On the same day, June 18, apparently just after he gave orders to place his prisoner at the disposition of the Minister of Government, Miranda was presented with a writ of habeas corpus ordering him to present Delgado. He replied as follows to the questions formulated in the writ:

a) I did not order the detention of Florencio Enrique Delgado Henríquez, either orally or in writing;

b) Although I did not order the detention, according to a communication I received from lt. Col. Manuel A. Noriega, G-2 of the General Staff of the national Guard, this was due to the fact that said Delgado Henríquez violated clear, legal provisions of Cabinet Decree no. 342 of 31 October 1969, by means of which measures of public order are prescribed;

c) Since the Ministry of Government and Justice is the competent authority to hear these crimes, the above mentioned Delgado Henríquez has been placed at the orders of said authority.6

Since Delgado had just been transferred to the authority of the Ministry of Government, the writ of habeas corpus was not immediately effective. It would have to be reformulated and directed to the Minister of Government, which would take another day. There have been charges to the effect that the government avoids, as a matter of practice, the immediate effect of a writ of habeas corpus by transferring authority over the prisoner just prior to the issuance of the writ or immediately thereafter. G-2, in particular, allegedly holds its prisoners incommunicado as long as possible, without a written order and without bringing them before a competent authority. Then, when someone finds out about the detention and brings a writ in behalf of the prisoner, G-2 advises the competent authority, who provides at that point for continued detention under the law.

Although Delgado's statement was finally taken on June 18, he was reportedly maintained incommunicado until his release on July 7.

f. Roberto Eisenmann, et. Al.7

There have been other charges that the Supreme Court has been interpreting the law in such a manner as to undermine the effectiveness of the writ of habeas corpus. When Roberto Eisenmann and other members of the group were sent into exile in January of 1976, an attorney filed a petition of habeas corpus in their behalf in the Supreme Court.

The petition was based upon the following points:

1) that it was public knowledge that those mentioned in the petition were deported from the country because of orders from the President of the Republic;

2) that the deportation was illegal and unconstitutional because expatriation is proscribed by Article 29 of the constitution, and those deported were Panamanians;

3) that Article 2(e) of Law 46 of 1956 states that habeas corpus may be invoked to test the legality of the deportation because of the detention involved.

The Supreme Court rejected the petition, citing the following reasons:

1) The Court states that though Articles 9 and 10 of Law 46 of 24 November 1956 (habeas corpus) are liberal, they do indicate that certain minimum essentials be met--one of which is that the decree or order be attached to the petition or that the existence be alleged of one of the conditions excusing attachment of the order or decree set out in Article 10. The Court points out that the petition in question is not accompanied by the alleged presidential order for deportation and that none of the conditions of Article 10 are invoked. Instead the petitioner offers three newspaper articles as evidence of the presidential order--which the Court finds insufficient substitutes for the requirement of Article 10. (See Note 8 below for articles in question.)

[On this point, the dissenting opinion of Justice Gonzalo Rodríguez Márquez maintained that the petitioner is not required to attach the original order or a copy of the same, or otherwise, to allege the impossibility of so doing; "The failure to fulfill this formality, in my opinion, cannot constitute a basis for the rejection of the petition, because, as provided in Article 12 of that Law, the petition should always be grated so long as it complies with the formalities stipulated in Article 9 of that Law, and the presentation of the order of the detention is not found within those requirements, since that is a formality which is complied with, as Article 10 says, only "if it were possible".]

2) "Starting with the concept," the Court continued, "that this constitutional guarantee confers a subjective right on all who have been deprived of their liberty in a manner contrary to that prescribed in the Constitution and the law, so that the legality of the detention is decided, one who is not detained cannot demand a writ of habeas corpus." The Court then points out that the petitioner does not allege that Eisenmann et. Al. Are detained. "To the contrary, he alleges that they are out of the country."

3) Furthermore, the Court says, the petitioner confuses deportation with expatriation. "The former refers to foreigners, and the latter only to Panamanians."

4) And finally, the Court argues that the law cannot allow a petition of habeas corpus in cases of expatriation: "And it cannot give it because Article 29 of the Constitution establishes that 'there is no punishment of death, of expatriation, or of confiscation of property', and therefore the law could hardly characterize the legality of illegality of an act of that nature."

Having studied the above denunciations, the Commission concludes that arbitrary arrests have occurred under the current government and that, in a number of those cases, the protection of habeas corpus provided for in the Constitution has been ineffective for the reasons set forth above.

Notes____________________

1 American Convention on Human Rights

Article 7. Right to Personal Liberty

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.

2 Copy of Delgado's statement to G-2, 14 June 1975. 1-4:02 p.m.

3 Copy of Delgado's statement to G-2, 14 June 1975. 10:00 p.m.

4 Lt. Col. Manuel Noriega, G-2, to Olmedo Miranda, Procurator General, No. 1103-G-2-75, 17 June 1975.

5 Xerox copy of document of 18 June 1975, signed by the Procurator General, Olmedo Miranda, declining competence in the Delgado case and transferring it to the Ministry of Government.

6 Xerox copy of reply to writ of habeas corpus from Supreme Court in behalf of Florencio Delgado, 18 June 1975, signed by the Attorney General.

7 The following summary and quotes are based upon documentation supplied by the Supreme Court of Panama.

8 Article 9. The remedy of Habeas Corpus may be interposed by the aggrieved party or by another in his behalf without a power of attorney. Such petition shall be made orally, by telegraph or in writing and shall set forth:

1. That the person who petitions or in whose behalf the petition is made, is deprived of his bodily liberty; the place where he is detained, imprisoned or arrested; the name of the body, authority or public official by whom he has been deprived of or restricted in said liberty, stating the official title of such authorities or officials and their names if he knows them and the name of the authority or agent thereof which has him under its power or custody;

2. The cause or pretext for the detention, arrest or imprisonment, in the opinion of the aggrieved party or of the person claiming in his behalf;

3. A brief statement setting forth the nature of the adduced or alleged illegality.

In the event that the person seeking this remedy has no knowledge concerning any of these details, this fact should b expressly stated.

Article 10. The petition for Habeas Corpus should be accompanied, if possible, by the original order for detention, imprisonment or arrest, or in its place, a certified copy.

In case the deprivation of bodily liberty shall have been made pursuant to an order, writ or resolution, a copy thereof shall be attached to the petition unless the petitioner shall state that such copy could not be demanded or that it was requested and refused either because the person who was detained or imprisoned was removed or concealed or was transferred from the jail, prison or place where he was, or because the authority or official who ordered the detention has concealed himself.

Article 12. Once the remedy has been sought, the competent tribunal shall immediately grant the writ of Habeas Corpus where the petition complies with the requirement of Article 9 . . . .