Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Visit to Panama undertaken from 20 to 26 August 2017: observations and recommendations addressed to the State party
Report of the Subcommittee * , ** , ***
Contents
Page
I.Introduction3
II.National preventive mechanism4
III.Legal and institutional framework for the prevention of torture and ill-treatment6
A.Criminalization of torture6
B.Non-applicability of statutory limitations to torture6
C.Detection of torture and ill-treatment6
IV.Subcommittee’s comments on the places visited9
A.Overcrowding and infrastructure situation9
B.Food and drinking water10
C.Inmate self-rule and corruption10
D.Long-term pretrial detention11
E.Searches11
V.Health12
VI.Groups of especially vulnerable persons deprived of their liberty13
A.Situation of women13
B.Protection of adolescents in conflict with the law14
C.Migrants16
D.Lesbian, gay, bisexual, transgender and intersex persons 17
VII.Repercussions of the visit17
VIII.Conclusion17
Annexes
I.Lista de las personas con quienes se reunió el Subcomité18
II.Lugares de privación de libertad visitados21
I.Introduction
1.In accordance with the provisions of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment carried out its first visit to Panama from 20 to 26 August 2017.
2.The Subcommittee was represented by the following members: Ms. Lorena González Pinto (head of delegation), Mr. Felipe Villavicencio Terreros, Mr. Roberto Fehér Pérez and Ms. Nora Sveaass. The Subcommittee was assisted by two human rights officers and two security officers from the Office of the United Nations High Commissioner for Human Rights.
3.The primary objective of the visit was to gain an understanding of how Act No. 6 of 22 February 2017, which provides for the establishment of the national preventive mechanism, was being implemented and to provide technical advice to the institutions concerned, in accordance with article 11 (b) (i) of the Optional Protocol.
4.During the visit, the Subcommittee held meetings with authorities of the three branches of government, the Ombudsman’s Office, representatives of civil society and officials of United Nations entities. In addition, the Subcommittee visited 13 places of deprivation of liberty in Panama City and Colón.
5.The Subcommittee found that there had been a number of positive legislative and institutional developments in the area of human rights, including the adoption of Act No. 6 of 2017, which provides for the establishment of the national preventive mechanism, and Act No. 42 of 2016, which establishes the career structure in the prison service and entered into force in September 2017. The Subcommittee also welcomed efforts to replace the inquisitorial system with an adversarial system, a change that is having a positive impact on the administration of criminal justice.
6.In addition, the Subcommittee noted with appreciation the efforts made in recent years by the Ministry of the Interior, with the support of a number of United Nations agencies, to improve the situation of persons deprived of their liberty. Those efforts have included strengthening the Prison Training Academy, building new prisons or inviting bids for that purpose and adopting a protocol on visits to prisons by human rights organizations.
7.The Subcommittee wishes to express its gratitude to the Panamanian authorities for their cooperation and assistance during the visit. Access to places of detention, including unrestricted access to persons deprived of their liberty whom the Subcommittee wished to interview privately, as well as to the records and reports it requested, was provided promptly and without hindrances.
8.At the conclusion of the visit, the Subcommittee presented its confidential preliminary observations to the authorities. In the present report, the Subcommittee presents its findings and recommendations concerning the launch of the national preventive mechanism and the prevention of torture and ill-treatment of persons deprived of their liberty in the State party. The generic term “ill-treatment” is used throughout the report to refer to any form of cruel, inhuman or degrading treatment or punishment.
9. The Subcommittee requests the authorities of the State party to provide a full account of the action taken to implement the recommendations contained herein within six months of the date of submission of this report.
10.This report will remain confidential until the State party decides to make it public. The Subcommittee is firmly of the view that publishing the report can contribute to the prevention of torture and ill-treatment, since the wide dissemination of the Subcommittee’s recommendations would help pave the way for a transparent and productive national dialogue on the issues dealt with in the report.
11. The Subcommittee recommends that the State party follow the example of other States parties by making the report public, in accordance with article 16 (2) of the Optional Protocol.
12.The Subcommittee wishes to draw the State party’s attention to the Special Fund established pursuant to article 26 of the Optional Protocol. The recommendations contained in reports that are made public can serve as a basis for an application by the State party for project grants from the Fund.
II.National preventive mechanism
13.On ratifying the Optional Protocol on 2 June 2011, the State party, in accordance with article 17 of the Protocol, assumed an international obligation to establish a national preventive mechanism within one year. The Subcommittee notes with concern that the State party’s fulfilment of that obligation is more than five years overdue.
14.This situation is all the more striking in that very few States parties have experienced similar delays. In this regard, at its twenty-eighth session (in February 2016), the Subcommittee decided to publish a list of the States parties whose compliance with their obligation to set up a national preventive mechanism was more than three years overdue. Panama is among them.
15.It should also be recalled that, in 2015, during the second universal periodic review of Panama, the Government accepted a number of recommendations concerning the prompt establishment of a national preventive mechanism.
16.The Subcommittee noted with appreciation the adoption of Act No. 6 of 22 February 2017 on the establishment of the national preventive mechanism, which reflects the standards required under the Optional Protocol and follows the Subcommittee’s guidelines on national preventive mechanisms. The Act also provides for the selection of members of the committee, the director and the deputy director of the national preventive mechanism and the establishment by the Ombudsman of an inter-agency working group to draft a decree containing regulations pertaining to the Act. The Subcommittee nonetheless wishes to express concern about the points outlined below.
Financial and functional independence
17.Although the national preventive mechanism was established under article 1 of Act No. 6 as a national directorate attached to the Ombudsman’s Office that must act with functional independence and independence of judgment, the Subcommittee recalls that the Optional Protocol states unambiguously that the State party must make specific resources available for the work of the national preventive mechanism with a view to guaranteeing its functional independence (art. 18 (1)). The Subcommittee’s guidelines on national preventive mechanisms state expressly that the national preventive mechanism “should enjoy complete financial and operational autonomy when carrying out its functions under the Optional Protocol”.
18. The Subcommittee recommends that, in order to guarantee the functional independence of the national preventive mechanism, the authorities should ensure that it is not in any way subordinate to the Ombudsman ’ s Office. The organizational structure of the Ombudsman ’ s Office should reflect the requirements set forth in the Optional Protocol; namely, that the national preventive mechanism should have functional autonomy as regards its resources, programme of work, findings and recommendations, and a direct and confidential means of maintaining contact with the Subcommittee.
19.In accordance with article 43 of Act No. 6, the national preventive mechanism will draw up its own annual budget, which will be submitted and defended along with the budget of the Ombudsman’s Office. The Subcommittee received, from the Ombudsman’s Office, a copy of the latter’s draft budget for 2018. In the introduction to the draft, reference is made to the establishment of the national preventive mechanism, but there is no separate line for it in the budget.
20. The Subcommittee is of the view that, in order to ensure the financial independence of the national preventive mechanism, the Ombudsman ’ s Office should include a specific line item for the mechanism in its budget. When it adopts the budget for the Ombudsman ’ s Office, the State party should specifically indicate the budget line and the amount to be allocated to the national preventive mechanism so as to ensure that those resources are used solely for the exercise of the mechanism ’ s powers and functions.
Implementing regulations of the Act
21.Act No. 6 states that a decree setting out regulations pertaining to the Act should be adopted within four months of its publication in the Official Gazette (that is, by 22 June 2017). The Subcommittee welcomes the news that the Act’s implementing regulations will be developed through a consultation process involving the creation by the Ombudsman of an inter-agency working group made up of representatives of the State and civil society.
22. The Subcommittee regrets that, as noted by the Committee against Torture, the draft decree has not yet been adopted. The Subcommittee requests that the Ombudsman submit the draft regulations to the appropriate authority for swift adoption as soon as they are approved by the inter-agency working group.
Appointment of the director and deputy director of the national preventive mechanism
23.The Subcommittee noted with appreciation the appointment in August 2017 of the members of the committee responsible for the selection of the director and deputy director of the national preventive mechanism. It regrets that, at the time of the visit, the selection committee’s rules of procedure had not yet been adopted, with the result that the opening of the application period for the selection of the director and deputy director was delayed.
24. The Subcommittee urges the State party – given that it is five years behind in this regard – to comply swiftly with its international obligation to establish a national preventive mechanism that is protected by the specific guarantees that such mechanisms should be afforded. The Subcommittee requests the State party to provide, within one month, information on the timeline for the appointment of the director and deputy director of the national preventive mechanism and the budget that has been allocated to it.
Keys to the functioning of the national preventive mechanism
25.The national preventive mechanism, once established, should operate in accordance with the Optional Protocol, articles 4 and 19 in particular, and the guidelines on national preventive mechanisms issued by the Subcommittee. To that end, it should draw up a workplan and a budget to ensure that places of deprivation of liberty are visited often enough and in such a way as to make an effective contribution to the prevention of torture. The workplan should also include cooperation with civil society.
26.The national preventive mechanism should produce reports following its visits, in addition to an annual report and any other reports it deems necessary. When appropriate, the reports should contain recommendations addressed to the relevant authorities. In its recommendations, it should take account of the relevant norms of the United Nations concerning the prevention of torture and the Subcommittee’s guidelines.
27.It may also submit proposals and observations to the relevant State authorities on existing and draft policy or legislation which it considers to be relevant to its mandate.
28.The national preventive mechanism should engage in a meaningful dialogue with the State party on the implementation of its recommendations. It should also follow up on the implementation of its recommendations and of any recommendations made by the Subcommittee. The national preventive mechanism should ensure that any confidential information acquired in the course of its work is fully protected.
29. The Subcommittee reiterates its full readiness to cooperate with the State party by providing advice and support for the implementation and functioning of the national preventive mechanism.
III.Legal and institutional framework for the prevention of torture and ill-treatment
A.Criminalization of torture
30.The Subcommittee informed the National Assembly’s Committee on Governance, Justice and Constitutional Affairs that it was concerned that the definition of torture in article 156-A of the Criminal Code, which does not cover acts committed by third parties at the instigation or with the consent or acquiescence of a public official, is not fully in line with international standards for the criminalization of torture.
31. The Subcommittee recommends that the Committee on Governance, Justice and Constitutional Affairs of the National Assembly propose an amendment to the definition of the offence of torture in Panamanian criminal law so as to bring it into line with international standards, in particular article 1 of the Convention against Torture. The Subcommittee notes that this departure from international standards in Panamanian law can lead to impunity.
B.Non-applicability of statutory limitations to torture
32.The Subcommittee also informed the Committee that it was concerned about the continued applicability of statutory limitations to the offence of torture under Panamanian law, even though such limitations do not apply in cases in which the civilian population is subjected to systematic and widespread torture.
33. The Subcommittee recommends that the Committee on Governance, Justice and Constitutional Affairs of the National Assembly propose legislative amendments to ensure that, in line with international standards, no statutory limitations whatsoever are applicable to the offence of torture.
34.The Subcommittee acknowledges the frank discussions it had with the Committee on Governance, Justice and Constitutional Affairs. The Subcommittee, through its regional team on the Americas and its focal point for Panama, is well placed to provide technical assistance to the Committee in the drafting of the legislative proposal needed to amend the provisions of Panamanian law defining torture in article 156-A of the Criminal Code and to ensure that no statutory limitations apply to the offence of torture.
C.Detection of torture and ill-treatment
35.The Subcommittee received credible allegations from persons deprived of their liberty that they had been subjected to torture or ill-treatment in a variety of circumstances. These allegations contradict official information to the effect that there were only three complaints of alleged torture in 2017. During its visit, the Subcommittee attempted to obtain official information from the Supreme Court on the number of convictions for torture that had been handed down, but the information has not been forthcoming. The Subcommittee is of the view that the provisions of Act No. 1 of 2011, which added article 156-A to the Criminal Code, are not being adequately enforced. It seems that torture can still go unpunished.
36.That impression, in the Subcommittee’s view, is strengthened by a number of circumstances related to the detection, investigation and punishment of torture. Some of these circumstances are noted below.
Lack of safeguards
37.The Subcommittee observed in various cases that persons deprived of their liberty in detention facilities were often held incommunicado and were thereby prevented from informing others of their detention, having the services of a lawyer (insufficient public defence services) or even undergoing a medical examination.
38. The Subcommittee urges the State party to adopt measures to ensure that all persons deprived of their liberty are effectively afforded all safeguards from the time they are taken into custody, in accordance with international rules and standards.
Lack of public defence services
39.The Subcommittee is concerned about the unavailability of the public defence services that should be provided to persons deprived of their liberty. When such persons were invariably asked whether they received assistance from public defenders, the reply was always that they did not, which indicates that such assistance is generally lacking in places of detention. The Subcommittee received statements to the effect that it was common for legal aid to be provided only at hearings. These statements show that there is a lack of communication with persons deprived of their liberty prior to their appearance before the prosecutor or judge, at the time of their arrest and during the criminal investigation of the alleged offence. In its visits to places of detention, the Subcommittee did not encounter any public defenders.
40.The lack of public defence services is consistent with the information received from the Supreme Court, according to which there is a nationwide total of 38 public defenders working with persons serving sentences, with far too few – only 11 – in the first circuit (including Panama Province), which is home to the country’s largest prison population.
41.The Subcommittee also noted that public defence services are provided according to different models, but always with a limited number of public defenders handling the cases, whether in the inquisitorial or the adversarial systems. Some of these public defenders provide services in cases involving juvenile, family or agrarian law and in whatever cases arise in the inquisitorial system of criminal justice for adults.
42.The Subcommittee is of the view that the limited number of public defenders is a serious problem for the consolidation of the new adversarial system of justice rolled out nationwide, as the defence and the prosecution must have the same levels of staffing and resources if they are to operate effectively and the principle of equality of arms is to be observed. This problem is a serious obstacle to ensuring that public defenders can fulfil the important role they have to play in detecting torture and in representing and assisting victims, thereby guaranteeing that investigations are carried out in accordance with due process.
43. The Subcommittee urges the State party to expand public defence services throughout the country by taking measures to increase the number of public defenders, especially those who work with persons serving sentences. The State party should provide appropriate training and the resources necessary to ensure that legal aid is provided from the time a person is taken into custody, while also ensuring that persons deprived of their liberty are always interviewed before court hearings and that the length and content of the interviews are sufficient to guarantee a proper defence and the systematic detection of torture or ill-treatment.
Lack of complaint mechanisms
44.In most of the facilities it visited, the Subcommittee observed a failure to provide adequate mechanisms for requests or complaints, as required under rule 56 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). The Subcommittee is concerned that access to means of making complaints to prison authorities, judicial officials, the Ombudsman’s Office or other authorities is not ensured. In any case, it observed that persons deprived of their liberty fear reprisals.
45. The Subcommittee urges the State party to ensure that all persons deprived of their liberty have the opportunity to make requests or complaints to the prison superintendent or the prison staff member authorized to represent him or her. The State party should also ensure that persons deprived of their liberty are able to speak freely and in full confidentiality and that they are not punished or otherwise prejudiced for having submitted a complaint or provided information.
Shortage of sentence enforcement judges
46.The Subcommittee was informed of the limited number of sentence enforcement judges (there are 28 nationwide, but in the first judicial district, which has the country’s largest prison population, there are only 8). There is a critical need for a State policy that strengthens the role of sentence enforcement judges as an additional mechanism for the prevention of torture.
47. The Subcommittee urges the State party to introduce a policy on increasing the number of sentence enforcement judges and to ensure that they receive the training they need in order to perform effectively. The Subcommittee recommends that sentence enforcement judges work proactively, maintaining direct contact with persons deprived of their liberty and ensuring that their rights are respected.
48.During its visit, the Subcommittee was invited to participate in a training course for judges, prosecutors and public defenders organized by the judicial authorities and noted with appreciation that the course included modules on the topic of torture.
49. The Subcommittee recommends the further development of current training programmes for judges, prosecutors and public defenders, including in connection with the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).
Small footprint of the Ombudsman’s Office
50.The Subcommittee noted that the Ombudsman’s Office has a unit that should conduct regular prison visits, as it is responsible for monitoring the exercise of human rights by persons deprived of their liberty. The Subcommittee also noted, however, that the unit has only two staff members. This situation severely limits the unit’s ability to monitor detention centres, police stations and even holding facilities for migrants, and thus contributes to the invisibility of torture and ill-treatment.
51. The Subcommittee recommends that the Ombudsman ’ s Office increase its presence in detention centres throughout the country with a view to detecting cases of torture and ill-treatment.
52.The Subcommittee took note of an incident that occurred on 9 August in Nueva Joya Prison, which resulted in injuries to both prison staff and persons deprived of their liberty. It is surprised that, despite the seriousness of the incident, the Ombudsman’s Office has not commented on it.
53.The Subcommittee wishes to stress that the establishment of the national preventive mechanism as part of the Ombudsman’s Office does not supplant the ongoing work of the unit responsible for monitoring the exercise of human rights by persons deprived of their liberty. Both the Optional Protocol and the Subcommittee’s guidelines allow for the operation of two different structures that have different mandates and maintain a degree of independence.
54.The Subcommittee reiterates that, to increase the efficiency of the national preventive mechanism, it is important to ensure that all stakeholders, in particular the authorities and persons deprived of their liberty, are aware that the mechanism’s core mandate is to prevent torture.
IV.Subcommittee’s comments on the places visited
A.Overcrowding and infrastructure situation
55.According to data as of June 2017 provided by the Directorate General of the Prison System, occupation rates differed from one detention facility to another. Although there was no overcrowding in some, most were overcrowded to one degree or another, with the prison in David operating at 266 per cent of its capacity.
56.The Subcommittee found that the conditions in most of the detention facilities it visited were appalling. In a number of cell blocks in the La Joya and La Joyita prisons in Panama City and the Nueva Esperanza prison in Colón, the Subcommittee observed subhuman living conditions resulting not only from overcrowding but also from such problems as dampness, a lack of ventilation, a total lack of hygiene, the accumulation of several weeks’ worth of refuse and improperly installed electric wiring that was highly dangerous and posed a considerable fire hazard. The Subcommittee found that a significant number of prisoners sleep on the floor without mattresses or in improvised hammocks. Cell block 17 at La Joyita was so overcrowded that the Subcommittee found persons deprived of their liberty sleeping under a table in the block’s common area. Those conditions as a whole amount to cruel, inhuman and degrading treatment.
57.Conditions at the Nueva Esperanza prison in Colón are particularly troubling. The Subcommittee noted that, in terms of hygiene, health care, food and infrastructure, this prison does not meet minimum standards of habitability.
58. The Subcommittee recommends that urgent measures be taken to improve the unacceptable conditions in the La Joya and La Joyita prisons. The Subcommittee also urges the State party to expedite the construction of a new prison in Colón and to close the Nueva Esperanza prison as soon as possible.
59.In a night-time visit to the police substation in El Chorrillo, the Subcommittee found that there was no natural or electric light in the cells, which had sheet-metal roofs, and that the heat was intense, making it likely that during the day the place was uninhabitable. At the Calidonia substation in the eighth metropolitan police precinct east, the Subcommittee noted that conditions in the holding cell, where there were seven detainees, did not attain the threshold of acceptability. The only available bathroom, which was flooded and unusable, was far from the cells, forcing the persons deprived of their liberty to relieve themselves in the cell itself, in which the Subcommittee observed large buckets full of urine and bags of excrement. The Subcommittee noted from the substation’s records that on previous days as many as 21 people had been held at the same time in that cell. The Subcommittee also noted that the operational and sanitary conditions of the toilet facilities for police personnel were very poor.
60. The Subcommittee also recommends that the conditions of detention at the police substation in El Chorrillo be improved.
61. The Subcommittee recommends the immediate closure of the Calidonia police substation, as the appalling conditions there affect both detainees and the police, who should be treated with the respect they deserve as human beings.
62.The Subcommittee found that a total of 50 men had been deprived of their liberty, some for months, in very small cells under the Criminal Investigation Directorate’s system of provisional detention (men’s area). The prison conditions were grossly inadequate, as there were no windows, ventilation or light (although in the corridor there was electric light 24 hours a day), and the electrical wiring was improperly installed and very dangerous. The persons deprived of their liberty had a single bathroom, which was flooded and in terrible condition; they had no beds, and because of the overcrowding some slept in the corridor. The Subcommittee was surprised that the facility, which was meant for persons in provisional detention, held persons who had been detained for long periods of time. The detainees stated that they could not go out to the courtyard for air. Although the number of women was much smaller (there were six female detainees at the time of the visit), the conditions were proportionally similar. This situation was different from that of a small number of detainees who were in better conditions of detention in cell No. 7.
63. The Subcommittee requests the State party to ensure that the Criminal Investigation Directorate ’ s provisional detention facility is used only for short-term provisional detention and that it offers the minimum conditions necessary for ensuring that the dignity of persons deprived of their liberty is respected.
64. In view of the situation in the majority of the State party ’ s places of detention, the Subcommittee recommends that the State party take urgent measures to address overcrowding, including by offering alternatives to imprisonment (community service, weekend arrest or house arrest), among other measures provided for in the criminal law of Panama, in line with the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules).
B.Food and drinking water
65.In the prisons visited by the Subcommittee, the prisoners recounted that the food was insufficient and of poor quality. The Subcommittee noted that food was served at highly irregular intervals. The Subcommittee also noted that access to drinking water was very limited.
66. The Subcommittee recommends that the State party ensure that prisons serve food at the usual times, that a record of food deliveries is kept to prevent corruption and that the food is wholesome, well prepared and sufficiently nutritious. Similarly, the State party should ensure that drinking water is available to all persons deprived of liberty whenever they need it (rule 22 of the Nelson Mandela Rules).
67.The Subcommittee was informed that, since the police substations were ostensibly places where persons were held in temporary police custody, they did not provide food or water. The Subcommittee found, however, that some of the persons held in the Calidonia substation had been there for five days. The Subcommittee was informed that some detainees received food from their family members and that they shared it with those who did not.
68. The Subcommittee is concerned about the unavailability of food and drinking water for persons in police custody. The Subcommittee recommends that the State party ensure access to safe drinking water and the provision of food to all persons in any form of detention, in accordance with international standards. No detainee should have to depend on third parties for food.
C.Inmate self-rule and corruption
69.In several of the prisons it visited, the Subcommittee observed that, as a result of the sharing of power between gangs and prison authorities, prisoners themselves exercise various forms of self-rule. In some cases, this situation is caused by the shortage of qualified prison staff. In others, the police authorities or prison guards remain outside the cell blocks. This situation can also mask a system of out-and-out corruption.
70.A number of tasks, including cleaning, food distribution, access to medical care and opening and closing cells, are delegated to the leaders of the cell blocks and even, in the case of La Joya, to an overall leader. Enforcing discipline is sometimes delegated to prisoners themselves, in violation of rule 40 of the Nelson Mandela Rules. In some cell blocks, for example, prisoners who break rules are kept in solitary confinement in their own cells by their fellow prisoners, a practice that cannot occur without the acquiescence of the prison authorities.
71.This commingling of power in the prisons leads to various forms and degrees of prison self-rule. When they are very strong, gangs are in total control of the cell blocks, to the point where the Subcommittee was unable to inspect the prison conditions without being guided by a gang leader. In other cases, the power of different gangs is less concentrated and can be hard to distinguish from that of religious groups. Self-rule by gangs and corruption increase the risk that persons deprived of their liberty will be subjected to exploitation, ill-treatment, torture and other abuses, while the perpetrators are very likely to go unpunished. The Subcommittee noted that there was a climate of fear in the prisons ruled by inmates. The Subcommittee also received information about firearms (and drugs) being brought into the prisons.
72.The Subcommittee noted as well that this situation prevents the separation of convicted prisoners from untried prisoners, which is a violation of rule 11 of the Nelson Mandela Rules, and precludes the replacement of older detention facilities with modern ones, as such a change would lead to the breakdown of the power-sharing model.
73. The Subcommittee recommends that the State party expedite implementation of the Prison Service Act and ensure that there are enough qualified prison staff to manage the prisons appropriately.
74. The Subcommittee is of the view that the delegation of authority and inmate self-rule increase the risk that persons deprived of their liberty will be subjected to torture and ill-treatment and urges the State party to take the steps necessary to regain control of its prisons.
D.Long-term pretrial detention
75.The Subcommittee welcomes the promulgation of Act No. 4 of 17 February 2017 on amendments to the Judicial Code, the Criminal Code and the Code of Criminal Procedure, measures to prevent prison overcrowding and other provisions, which makes it possible, among other things, to commute the sentences of convicted persons who participate in instructional or work programmes during pretrial detention.
76.However, the Subcommittee noted that there were serious delays in the completion of criminal proceedings and that pretrial detention was overused and lasted too long. Official information indicates that there are persons in pretrial detention under the rules of the inquisitorial system and that pretrial detention for long periods of time is very common (2,759 persons have been in pretrial detention for more than three years, 6,760 for more than one year and 393 for less than one year). In the adversarial criminal justice system now operating in the country, conversely, persons held for less than one year make up the bulk of those in pretrial detention (8 persons have been held in pretrial detention for more than three years, 328 for more than one year and 1,200 for less than one year). Of the country’s total prison population of 16,104 inmates, 8,681, or 54 per cent, are persons in pretrial detention. In addition, the Subcommittee noted that, in the Nueva Esperanza rehabilitation centre in Colón, there was a man who, at the time of the Subcommittee’s visit, had been in pretrial detention for eight years.
77. As it has done in respect of overcrowding in detention facilities, the Subcommittee recommends that the State party promote non-custodial penalties, in line with the Tokyo Rules, and step up its efforts to reduce the use of pretrial detention.
E.Searches
78.The Subcommittee received numerous reports from detainees and their family members that, notwithstanding the assertions to the contrary made by prison superintendents, people wishing to enter a place of detention are subjected to degrading searches during which they are forced to strip and assume humiliating positions, a practice that discourages family visits.
79. The Subcommittee calls on the State party to comply with international standards by putting an immediate end to this practice, which is an affront to a person ’ s dignity. The Subcommittee recommends that the State party ensure that search and entry procedures for visitors are not degrading and are governed by principles at least as protective as those outlined in the Nelson Mandela Rules (rules 50 to 52 and 60).
V.Health
80.The Subcommittee noted that La Joya and La Joyita, which have a population of nearly 8,000 prisoners, receive medical care from the Virgen de la Merced medical centre, located a few blocks away. The Subcommittee was informed that the medical centre is open from 7 a.m. to 7 p.m. and that outside those hours, the 911 emergency number can be used if necessary.
81.The Subcommittee found that the medical centre has an emergency room in an acceptable condition, with advanced life-support equipment. The members of the medical and nursing staff, however, appeared unfamiliar with the equipment, suggesting that they had not received the training necessary to use it.
82. The Subcommittee recommends that the medical centre, in view of its potential patient population, provide medical service 24 hours a day, seven days a week, and that the medical staff be trained to respond to emergencies.
83.The Subcommittee received complaints from persons deprived of their liberty who stated that access to specialized medical care was lacking because of the difficulty of making arrangements for transfers to Santo Tomás Hospital. As a result, the Subcommittee found that there were inmates in the two prisons who had a wide range of conditions – some of which had been neglected for years – including badly healed fractures, colostomies, permanent urinary catheters, ventral and other hernias and tumours.
84. The Subcommittee recommends that medical arrangements to address these conditions be made without further delay, since, although these conditions are not immediately life-threatening, they may lead to further health problems and diminish a person ’ s quality of life. The failure to make those arrangements would amount to medical negligence, which could be a form of ill-treatment.
85.The Subcommittee welcomes the adoption of measures to reopen the secure ward, with beds for 25 prisoners, in Santo Tomás Hospital. The Subcommittee also welcomes the preparation of a room for patients with HIV/AIDS at the Virgen de la Merced medical centre, so that intravenous medicines can be administered to them at the centre itself, and the reopening of a short-stay room that would avoid unnecessary transfers.
86.The Subcommittee was informed by staff of the medical centre that, although the centre has the capacity to attend to up to 56 patients, the figure is always much lower; this information is consistent with statements made by persons deprived of their liberty, guards and inmate leaders. The Subcommittee noted that the medical centre records all medical activity in the patients’ histories and delivers a 60-day supply of medication to patients with chronic conditions. The Subcommittee received contrasting reports from detained persons, guards and staff on why detained persons do not return to pick up their medication.
87. The Subcommittee recommends that the number of consultations be increased substantially and, with a view to making the process transparent and clarifying responsibilities, that an effective system be set up for keeping records at all stages (from an inmate ’ s initial request for treatment to the involvement of leaders and inmates working on health issues, referral by the guard and admission to the medical unit).
88.At the Colón prison, on the floors visited and in the women’s facility, the prisoners were unanimous in complaining about the difficulty of gaining access to medical care, owing to the small number of daily consultations offered by the doctor. The Subcommittee noted with concern that the supply of medical care for a prison the size of the Colón prison is altogether inadequate.
89. The Subcommittee recommends that the lack of access to medical care be taken into consideration when the new prison in Colón is opened and that the system for providing such care be reorganized.
90.The Subcommittee is concerned to note that none of the medical personnel who make initial contact with persons deprived of their liberty in all places of detention are familiar with the Istanbul Protocol.
91. The Subcommittee recommends that the State party sponsor effective training on the Istanbul Protocol for doctors and other health personnel working with persons deprived of their liberty to enable them to document and address injuries. The Subcommittee also recommends that the State party ensure the clinical independence of health-care providers to make certain that they are in a position to discharge this obligation (rule 25 of the Nelson Mandela Rules).
92.The Subcommittee visited the country’s National Institute of Mental Health and observed adequate facilities, medical care and work dynamics. The Subcommittee noted that restraints were not used and that there was a protocol requiring a social worker to refer any cases of injuries to the Public Prosecution Service.
93.The Subcommittee visited a nursing home that plays an important social role. The Subcommittee found that the facilities and sanitary conditions were acceptable. Patients with significant cognitive impairments such as those caused by Alzheimer’s disease or senile dementia were not restrained.
VI.Groups of especially vulnerable persons deprived of their liberty
A.Situation of women
94.To study the situation of women deprived of their liberty, the Subcommittee visited the Colón women’s prison, the holding centre for female migrants and the Criminal Investigation Directorate.
Prisons
95.The Subcommittee found that the material conditions in the new women’s wing in Colón (part of the Nueva Esperanza prison complex), where there were 72 women deprived of their liberty, were considerably better than those in the facility in which the women had previously been housed within the same prison, in particular with regard to hygiene, light and ventilation.
96.However, the Subcommittee received numerous and consistent reports about the poor quality of the food and the erratic times at which it was served; the scarcity of leisure activities, opportunities for exercise, vocational workshops and opportunities for education; the lack of basic hygiene products, including sanitary napkins; the difficulty of gaining access to medical care, including gynaecological and other specialized care; and the lack of conjugal visits. The denial of such visits is a form of discrimination, as men in the same prison complex have the right to conjugal visits.
97. The Subcommittee recommends that, in accordance with rules 5 and 10 of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), the materials required to meet women ’ s specific hygiene needs be made available to women prisoners and that women prisoners be provided with gender-specific health-care services.
98.The Subcommittee learned from the interviews it conducted that there is no systematic policy of providing mothers with alternatives to detention. It also found that there are no prison units in which women can keep their children with them. According to information received by the Subcommittee, no prison in the country has such facilities. Nursing women are also unable to breastfeed their children. Not being able to take care of their children was a major source of stress for most of the women interviewed. The lack of social and psychological support and the difficulty of following up with the relevant institutions on the situation of their children exacerbate the situation considerably.
99. The Subcommittee reminds the State party of the principle of the best interests of the child and rule 58 of the Bangkok Rules, on pretrial and sentencing alternatives for women.
100. The Subcommittee recommends that the State party develop the infrastructure necessary for enabling mothers to remain with their children and to breastfeed them. It also recommends that an effective system be instituted for protecting the minor children of imprisoned women.
Criminal Investigation Directorate
101.The Subcommittee visited the women’s cell at the Criminal Investigation Directorate. At the time of the visit, there were six women in a cell of approximately 7 m2 with no natural light or ventilation (a few days earlier, according to information received by the Subcommittee, there had been nine women in the cell). The women could not leave the cell. They could receive visitors once a week but could not see their children. One of the women interviewed had been in detention for a month.
102. The Subcommittee reiterates its recommendation that the Criminal Investigation Directorate ’ s detention facility be used only for short-term provisional detention and that it offer the minimum conditions necessary for ensuring that the dignity of detainees is respected. In addition, the Subcommittee recommends that women detainees be allowed to receive visits from their children.
Migrant holding centres
103.The Subcommittee also visited the holding centre for female migrants. The Subcommittee noted that women deprived of their liberty may not stay in the centre with their children. Some of the women stated that they had been subjected to ill-treatment in an immigration unit, that they had been mocked while being transferred and that they had gone more than 24 hours without access to sanitary napkins at the police station. Furthermore, the women who did not speak Spanish had not been given access to an interpreter or received timely assistance from their consulates.
104. The Subcommittee recommends that the State party allow women to remain with their children, conditions permitting, in line with the principle of the best interests of the child.
105. The Subcommittee recommends that the State party take into account the specific problems of women deprived of their liberty and the need to take measures to address these problems, in line with the Bangkok Rules, in particular rule 26, and the Subcommittee ’ s document on the prevention of torture and ill-treatment of women deprived of their liberty.
B.Protection of adolescents in conflict with the law
106.The special regime governing the criminal responsibility of adolescents was implemented by Act No. 40 of 26 August 1999. Although the State party itself emphasizes that custodial measures are imposed only in exceptional circumstances, the information it provided to the Committee against Torture indicates that more than 500 minors are in custody, of whom some 300 are in juvenile detention facilities and nearly 200 are in adult facilities. Alternatives to custody have been granted to 406.
107.Given that the State party’s objective is to ensure protection for adolescents in conflict with the law by facilitating their rehabilitation and enabling them to lead a life without crime, the amendments to Act No. 40, especially those of 2007 and 2010, are troubling. Like the Committee on the Rights of the Child, the Subcommittee is particularly concerned about the increase in the maximum duration of deprivation of liberty from 5 years to 12 (2007); the extension of the maximum periods of pretrial detention from 2 months to 9 (2007), a period that may be extended indefinitely in homicide cases (2010); additions to the list of offences punishable by imprisonment (2002, 2004 and 2007); the lowering of the age of criminal responsibility from 14 to 12 years (2010); and the lowering from 21 to 18 years of the age at which minors serving a sentence in a juvenile facility can be admitted to the prison system (2007).
108. The Committee recommends that the State party draw on the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (the Havana Rules) and general comment No. 10 (2007) of the Committee on the Rights of the Child on children ’ s rights in juvenile justice to bring its legislation on juvenile criminal justice into line with international standards.
109.The Subcommittee visited two juvenile detention centres: the centre for male adolescents in Pacora and the centre for male adolescents in Tocumen (Arco Iris).
110.The Subcommittee found that the Pacora facility is relatively new and that at some of the stages through which the detainees may progress the material conditions are acceptable, whereas in others (stage 1A and the maximum-security cells in particular) they replicate the conditions found in the prison system for adults.
111.The facility operates under a progressive system whereby detained minors, who on admission are placed in stage 1, in which conditions are fairly basic, can gain advantages and move on to the next stage if their behaviour is satisfactory. If they behave badly or pose disciplinary problems, they are moved back to earlier stages or placed in the maximum-security cells to “reflect” for a period of time (no more than 29 days).
112.New arrivals, who tend to be the facility’s youngest charges and are thus more vulnerable, are confined to stage 1 cells from 3 p.m. to 8 a.m. the following morning every day of the week. The Subcommittee found that the material conditions of detention during the initial stages were worse than those during the final stages (4 and 5). The cells used in the initial stages were cells typical of a prison rather than anything remotely like a home or institution for the re-education and rehabilitation of young people, which, according to the superintendent, is the aim of these facilities.
113.According to reports, the young people in the facility attend school only once or twice a week. Those who do not attend school or participate in workshops are locked in their cells the whole day, with the exception of time for sports on weekends. Vocational training appears to be well developed, but it takes months for new arrivals to be included in the training programme.
114.The Subcommittee noted with concern that the minors wear shackles – which leave visible marks – when they go to school or receive visits. The Subcommittee observed that the facility provides adequate food and water and that there are psychologists, social workers and doctors, whom the young people believe they can rely on.
115.The Subcommittee was informed that the centre in Tocumen will be closed and that the minors detained there will be transferred to a facility in Pacora that has not yet been built.
116.The Subcommittee found that the material conditions there, particularly in the cells for new arrivals and the maximum-security cells, which resembled prison cells, were inadequate. The new arrivals slept on mattresses on the floor, in a very poorly ventilated space with insects and limited access to water. The six maximum-security cells were dark and dirty, smelled very bad and were very poorly ventilated. It was difficult for the young people to gain access to adult guards.
117.According to reports, the young people in the facility go to school every day and some participate in workshops. Young people in maximum security and new arrivals were entitled to attend school.
118. The Subcommittee recommends that a juvenile justice system that focuses more closely on the comprehensive rehabilitation of minors be developed and that the amount of time minors spend in their cells be reduced. In particular, the Subcommittee recommends that the State party provide additional opportunities to attend school or participate in educational programmes in the juvenile facilities; do away with the system of solitary confinement in maximum-security cells, including for “ reflection ” periods; set up the transitional facility for young people who are turning 18; and improve conditions in the Tocumen centre, especially the cells for new arrivals and the maximum-security cells.
119. The Subcommittee also recommends the establishment of a system where the youngest minors and new arrivals are accommodated in such a way as to facilitate their educational development and enable them to establish good interpersonal relations. Given that many of the young people have grown up without stable relationships or role models or have not been adequately socialized, high priority should be given to such a system of reintegrating them into society.
C.Migrants
120.The administrative detention of migrants should never be punitive in nature. Alternatives to detention should be pursued before a decision to detain a person is taken. The State party should establish by law a series of measures as alternatives to or substitutes for the deprivation of liberty, duly taking into account international human rights standards.
121. The Subcommittee reiterates that the detention of migrants in holding centres should be an exceptional measure that is taken only when necessary, reasonable and proportionate in a specific case and that it should be applied only for the shortest period possible and for a legitimate purpose. To enable them to defend their rights, moreover, migrants should be provided with procedural safeguards.
122.The Subcommittee finds it troubling that some of the migrants held in the facilities of the National Migration Service cannot exercise their right to inform a person of their choice that they have been detained, to make telephone calls and receive visits or to keep their mobile telephones with them during the period of deprivation of liberty or at least to have access to them. Non-Spanish-speaking migrants held in the facilities were not informed of their legal status in a language they understood, and indicated that they had had to sign papers in Spanish without understanding them.
123.The facilities of the centre for men in Panama City (the Curundú men’s centre), including the sanitation and washing facilities, are in very poor shape. These conditions, combined with a number of infestations, have led to outbreaks of rashes and fungal infections. The migrants, in an appallingly dirty, cockroach-infested environment, have to sit on their beds or the floor to eat. Some also mentioned that medical care was lacking and that they were allowed to go out to the courtyard only two hours a week.
124.The Subcommittee also found that the facility had a punishment cell and had no standard operating procedures or protocols for recording incidents.
125. The Subcommittee reiterates that States assume obligations and duties under international law to respect, protect and fulfil human rights. These obligations and duties are applicable in respect of all persons, regardless of nationality and administrative status.
126.The Subcommittee was informed both by the migrants and by the staff of the men’s holding centre that, when officials from the National Office of Refugee Affairs visit the centre, they do not enter the cell where migrants are detained; instead, the staff provide them with information on the persons who have stated that they intend to seek asylum.
127. The Subcommittee recommends that officials from the National Office of Refugee Affairs enter the cell where migrants are held in order to receive any asylum applications from them directly, so as to eliminate any possibility that the transmission of the information may be dependent on the discretion of the holding facility ’ s staff.
D.Lesbian, gay, bisexual, transgender and intersex persons
128.The Subcommittee received reports that gay inmates in the La Joyita prison were discriminated against by both the authorities and church members. In the La Joya prison, gay inmates were housed in a wing separate from the rest of the prison population. The door to the wing, according to information received by the Subcommittee, was kept closed to ensure their security and prevent the transmission of disease.
129. The Subcommittee reiterates that solitary confinement, isolation and administrative segregation are not appropriate methods of managing the security of persons, and can be justified only if used as a last resort, under exceptional circumstances, for the shortest possible time and with adequate procedural safeguards.
130.With respect to the medical care provided to lesbian, gay, bisexual, transgender and intersex persons deprived of their liberty, there are many cases in which persons living with HIV/AIDS receive antiretroviral treatment but have extremely limited access to the prison doctor. This is problematic because such patients typically need more medical care for common diseases, from which they are usually slow to recover; moreover, they do not appear to have the opportunity to consult an infectious disease specialist.
131. The Subcommittee recommends that lesbian, gay, bisexual, transgender and intersex persons who are incarcerated be provided with the same medical care as their counterparts in the general population.
132. The Subcommittee recommends that the State party provide human rights training for prison staff, law enforcement personnel, judges and other State officials to raise awareness of international human rights standards and principles of equality and non-discrimination, including in relation to sexual orientation and gender identity.
VII.Repercussions of the visit
133.In accordance with article 15 of the Optional Protocol and the Subcommittee’s policy on reprisals in relation to its visiting mandate, the Subcommittee calls on the relevant authorities of the State party to ensure that no one is subjected to reprisals after its visit. The Subcommittee requests the State party to provide detailed information in its reply on what it has done to prevent reprisals against anyone who was visited by or met with the Subcommittee or who provided information to it during the course of its visit.
VIII.Conclusion
134. The Subcommittee hopes that its visit and the present report will mark the beginning of a constructive dialogue with the State party aimed at ensuring that it fulfils its obligations under the Optional Protocol in order to achieve the shared goal of preventing torture and ill-treatment.
135. The Subcommittee recommends that the State party make this report public, believing this in itself to be a preventive measure. In addition, the Subcommittee recommends that the State party distribute this report to all the relevant government departments and institutions.
Annexes
Annex I
[Spanish only]
Lista de las personas con quienes se reunió el Subcomité
A.Autoridades
Ministerio de Relaciones Exteriores
•Sra. Isabel de Saint Malo de Alvarado, Vicepresidenta de la República y Ministra de Relaciones Exteriores
•Sra. María Luisa Navarro, Viceministra de Asunto Multilaterales y Cooperación
•Sr. Luis Miguel Hincapié, Viceministro de Relaciones Exteriores
•Licenciado Max José López, Director de Organismos y Conferencias Internacionales
Ministerio de Gobierno
•Sra. María Luisa Romero, Ministra de Gobierno
•Sr. Etéreo Armando Medina, Director General del Sistema Penitenciario
•Sra. Yaribeth de Calvo, Oficina Nacional para la Atención de Refugiados
•Sra. Emma Alba de Tejada, Directora del Instituto Estudios Interdisciplinario
Ministerio de Seguridad
•Sr. Alexis Bethancourt Yau, Ministro de Seguridad
•Sr. Omar A. Pinzón, Director de la Policía Nacional
•Sr. Raúl Mora, Director Encargado del Servicio Nacional de Migración
•Sr. Feliciano Benítez, Inspector General, designado por el Director General del Servicio Nacional de Fronteras
Ministerio de Economía y Finanzas
•Sr. Dulcidio de la Guardia, Ministro de Economía y Finanzas
Ministerio de Desarrollo Social
•Sr. Alcibíades Vásquez Velásquez, Ministro de Desarrollo Social
Ministerio de Salud
•Dr. Eric Ulloa, Ministro Encargado de Salud
•Dra. Felicia Ulloa Tulloch, Subdirectora General de Salud de la Población Penitenciaria
Instituto Nacional de la Mujer
•Licda. Jaqueline Candanedo, Secretaria General
Defensoría del Pueblo
•Sr. Alfredo Castillero Hoyos, Defensor del Pueblo
•Licda. Ellis Denia Ríos, Coordinadora de la Oficina de personas privadas de libertad
•Sr. Félix Chamorro, Secretario Administrativo
•Integrantes del Comité de Selección del mecanismo nacional de prevención
•Integrantes del Comité para la Reglamentación de la Ley núm. 6
Corte Suprema de Justicia
•Sr. José Ayú Prado, Presidente
Asamblea Nacional
•Sr. Carlos Santana, Presidente de la Comisión de Gobierno, Justicia y Asuntos Constitucionales de la Asamblea Nacional
•Sra. Ana Matilde Gómez Ruiloba, Diputada de la Comisión de Gobierno, Justicia y Asuntos Constitucionales de la Asamblea Nacional
•Representantes del Ministerio de Relaciones Exteriores
•Representante del Ministerio de Gobierno
•Representantes del Ministerio de Seguridad
•Representantes del Ministerio de la Presidencia
•Representantes del Ministerio de Economía y Finanza
•Representantes de la Defensoría del Pueblo
•Representantes del Órgano Judicial
•Representantes de Colegio Médico
•Representantes del Órgano Legislativo
B.Organismos internacionales
•Coordinador Residente de las Naciones Unidas en Panamá
•Oficina del Alto Comisionado para los Derechos Humanos (ACNUDH), Oficina Regional para América Central
•Programa de las Naciones Unidas para el Desarrollo (PNUD)
•Fondo de las Naciones Unidas para la Infancia (UNICEF)
•Oficina del Alto Comisionado de las Naciones Unidas para los Refugiados (ACNUR), Oficina Regional para América Central, Cuba y México
•Organización Internacional para las Migraciones (OIM)
•Organización de las Naciones Unidas para la Alimentación y la Agricultura (FAO), Oficina Subregional para Mesoamérica
•Oficina de las Naciones Unidas contra la Droga y el Delito (UNODC), Oficina Regional para Centroamérica y el Caribe
C.Organizaciones de la sociedad civil
•Alianza Ciudadana Pro Justicia
•Asociación para la Prevención de la Tortura
•Comisión de Justicia y Paz
•Espacio de Encuentro y Reflexión de Activistas LGBTI (EDERA Panamá)
•Mesa de Análisis de Leyes y Políticas Públicas de Discapacidad
•Instituto de Criminología – Universidad de Panamá
•Pastoral Penitenciaria Católica
•Tara Pinirpa Panamá
•Voces de Mujeres Afrodescendientes Panamá
Annex II
Lugares de privación de libertad visitados
A.Establecimientos bajo la responsabilidad del Ministerio de Gobierno
Centros penitenciarios
•Centro Penitenciario La Joya
•Centro Penitenciario La Joyita
•Centro Penitenciario Nueva Esperanza de Colón
•Centro Penitenciario Femenino de Colón (parte del Complejo Penitenciario Nueva Esperanza de Colón)
Centro para menores en conflicto con la ley
•Centro de Custodia de Menores de Tocumen (Arco Iris)
•Centro de Cumplimiento de Menores de Pacora
B.Establecimientos bajo la responsabilidad del Ministerio de Seguridad
Lugares de detención bajo la responsabilidad de la Policía
•Subestación de policía de Chorrillo
•Subestación de policía de Caledonia
•Dirección de Investigación Judicial
Centros de retención de migrantes
•Albergue masculino de migración Altos de Curundú
•Albergue femenino de migración
C.Establecimientos bajo la responsabilidad del Ministerio de Salud
•Instituto de Salud Mental de Panamá
D.Otros
•Hogar Bolívar para adultos mayores