Opinion; Subjects: PANAMA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.22-02205 (E) 290322 290322
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 44/2021 concerning Mauricio Cort y García (Panama)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work,1 on 13 January 2021 the Working Group
transmitted to the Government of Panama a communication concerning Mauricio Cort y
García. The Government replied to the communication on 26 March 2021. The State is a
party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/44
General Assembly
Distr.: General
17 February 2022
English
Original: Spanish
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Submissions
Communication from the source
4.
Mauricio Cort y García is 49 years old and is a national of Panama. He is a lawyer
and is currently detained at El Renacer Rehabilitation Centre.
5.
According to the information received, in 2016 the Department of Justice of the
United States of America published a report on the Odebrecht company’s involvement in
irregular activities in Latin America. The report contained references to alleged payments of
millions of dollars in bribes, including alleged illicit activities in Panama.
6.
According to the source, on 1 September 2017, in investigative decision No. 17-2017,
the Prosecutor’s Office filed an indictment against Mr. Cort y García for the alleged offence
of money-laundering.
7.
On 21 November 2018, Mr. Cort y García entered into a plea-bargaining agreement
with the Prosecutor’s Office in relation to case No. 5-2017, after the Office linked Mr. Cort
y García to a set of trading companies that allegedly received money from Odebrecht and
had been used for the payment of bribes to public officials.
8.
The alleged acts, initially described by the Prosecutor’s Office in investigative
decision No. 17-2017, amount to the financial offence of money-laundering, as defined in
article 254 of the Criminal Code, and relate to the offence of corruption by a public official.
9.
In the plea-bargaining agreement of 21 November 2018, Mr. Cort y García partially
admitted the charges and agreed to pay the State a sum of money and to continue cooperating
with the authorities as required. He collaborated with the Prosecutor’s Office during the
investigation by providing additional statements, cooperating with a test conducted by a
computer expert and helping with another investigation. In addition, he provided related
documentation on two occasions.
10.
The Prosecutor’s Office undertook to sentence him to 48 months’ imprisonment. The
source reports that it also undertook not to file different charges relating to or deriving from
the facts set out in the indictment, based on the non bis in idem principle.
11.
On 23 November 2018, in order to approve the plea-bargaining agreement, the Special
Anti-Corruption Prosecutor requested a hearing before Criminal Circuit Judge No. 12, who
summoned the parties to appear on 29 November 2018. On that date, the judge approved the
agreement and handed down a conviction outlining the proven facts in the terms set out by
the Prosecutor’s Office.
12.
In the ruling, Mr. Cort y García was found guilty of money-laundering and sentenced
to 48 months’ imprisonment. He was also obliged to pay US$ 1.6 million to the State and to
continue cooperating with the Prosecutor’s Office. The conviction is final and has the force
of res judicata.
13.
The source points out that Mr. Cort y García complied with all the requirements of
the Prosecutor’s Office, as expressly recognized by the Office in the minutes of the court
hearing at which the plea-bargaining agreement was approved.
14.
In the minutes of the hearing of 29 November 2018, the judge agreed to substitute the
48-month prison sentence with a proportional fine, having heard the views of the Public
Prosecutor’s Office and accepted the arguments of Mr. Cort y García’s lawyers regarding the
danger he would face in prison. The judge ordered Mr. Cort y García to serve his sentence
outside prison, upon payment of a fine, recognizing that if he remained in prison, his
collaboration with the Prosecutor’s Office would put his life and personal integrity at risk.
The judgment ordered Mr. Cort y García to pay the amount of money requested by the
Prosecutor’s Office, which he transferred in full.
15.
The source reports that after paying the fine imposed in the judgment, Mr. Cort y
García remained resident in Panama and continued to cooperate with the Prosecutor’s Office.
16.
The source states that on 19 May 2017, the Special Anti-Corruption Prosecutor
initiated new proceedings, registered as case No. 22-2017, and issued an investigative
decision in respect of Mr. Cort y García on 20 June 2019, on the basis of which he was again
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charged with money-laundering. The source claims that this was done in apparent disregard
of the plea-bargaining agreement that had previously been approved by the judge in case No.
5-2017.
17.
On 21 June 2019, by order of the Prosecutor’s Office, Mr. Cort y García’s residence
was searched, and he was taken in to give a statement. Mr. Cort y García again cooperated
by providing information on the facts under investigation. Subsequently, the Prosecutor
ordered him to be placed in pretrial detention, arguing that there were similar elements to the
previous case in which he had already been sentenced. In justification of the measure, the
judge indicated that the defendant was a flight risk since he clearly had sufficient financial
means to leave the country. With respect to the securing of evidence, the judge stated that it
undoubtedly remained possible that the accused might attempt to obstruct the collection of
the necessary evidence. In addition, the judge added that pretrial detention was proportionate
to the serious nature of the financial offences, which carry a minimum prison term of 5 years.
18.
The source states that Mr. Cort y García has already been investigated and sentenced
in direct connection with the facts that are now being investigated again.
19.
On 26 June 2019, the Prosecutor’s Office issued investigative decision No. 12, in
which the charges against Mr. Cort y García were expanded to include the offences of
corruption by a public official and embezzlement. The source states that Mr. Cort y García
has never held any public office.
20.
The source also notes that the Office of the Special Anti-Corruption Prosecutor had
launched another investigation in a new case, No. 24-2017, and on 12 August 2019 had issued
investigative decision No. 13 in respect of Mr. Cort y García. In this context, on 22 August
2019, the Prosecutor’s Office issued another detention order, in precautionary measure ruling
No. 9, relating to facts that had also been previously investigated in case No. 5-2017. The
Prosecutor’s Office stated that although the accused indicated that he had roots in the country
and had appeared on 22 August 2019 to make a statement, the fact remained that the measure
applied ensured the proper conduct of the investigation and was commensurate with the
seriousness of the offence and suited to the person who had committed it. The source
maintains that the decision was not made on the basis of an assessment of the flight risk or
the risk of obstruction of justice and simply indicated that the offence being investigated
carried a heavy penalty, and that because the consequences of the offence caused harm to the
public administration, and by extension affected society as a whole, it was considered that
the precautionary measure was proportionate to the nature of the facts under investigation.
21.
However, on 18 November 2019, at the request of the defence in case No. 2-2017,
Criminal Circuit Court No. 11 issued order No. 05-2019 granting bail to Mr. Cort y García.
This decision upheld his right to be investigated outside prison. The court granted bail on
account of, inter alia, the personal conditions of the defendant, who had shown interest in
standing trial, and the fact that there was no evidence that he represented a danger to third
parties or that there was any risk of evidence being destroyed.
22.
On 29 November 2019, Mr. Cort y García filed an appeal against the amount of money
set as bail in case No. 22-2017. At the same time, the Prosecutor’s Office filed another appeal
regarding the granting of bail. On 27 January 2020, High Court of Justice No. 2 declared both
appeals inadmissible. Consequently, the bail order, which authorized the conditional release
of Mr. Cort y García, was executed, and the bail was upheld by the higher court.
23.
On 3 March 2020, Mr. Cort y García’s lawyers presented to Criminal Circuit Court
No. 11 the bail required to secure Mr. Cort y García’s release in connection with case No.
22-2017. The bail was verbally rejected by the judge, who argued that it had been rescinded
by a court decision. According to the source, this is not in keeping with the criminal
proceedings, since High Court of Justice No. 2 confirmed the bail in a final binding decision,
and there was no other means of appeal to challenge the oral decision.
24.
On 21 May 2020, Mr. Cort y García’s lawyers filed a petition for amparo in respect
of the judge’s oral decision not to accept the bail. The petition was heard on 7 July 2020 by
High Court of Justice No. 1. Although the petition was dismissed, the court acknowledged
that the bail order was final and that it was appropriate to post bail. The source alleges that
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this judicial decision, far from providing effective protection of Mr. Cort y García’s rights,
imposes undue delays by prolonging his detention.
25.
The source points out that, simultaneously, another motion was filed that has caused
unjustified delays in the process. Criminal Circuit Court No. 11 decided to order the
separation of subject matter following an objection filed by another defendant’s lawyer. On
23 December 2019, Criminal Circuit Court No. 11 launched case No. 128-2019 and found
the petition for annulment filed by Mr. Cort y García’s lawyers to be unsubstantiated. The
motions were heard on appeal by High Court of Justice No. 2. On 30 January 2020, an order
was issued declaring that Criminal Circuit Judge No. 11 lacked jurisdiction to deal with the
motions heard on 19 December 2019 and 23 December 2019, and the proceedings were
consequently annulled.
26.
The source emphasizes that the annulment decision of High Court of Justice No. 2 on
30 January 2020 did not affect the validity of the judicial decisions ordering bail in respect
of Mr. Cort y García, since they had been confirmed and subsequently upheld, and therefore
both bail orders were final and enforceable. The annulment has caused a significant
procedural delay that has prevented Mr. Cort y García’s release.
27.
Pursuant to the aforementioned judicial decision issued by High Court of Justice No.
1 on 24 June 2020, the jurisdiction of Criminal Circuit Court No. 11 has been suspended
retroactively from 24 October 2019 onwards. This has left Mr. Cort y García’s trial without
a duly appointed judge. Both judges have precluded themselves from accepting the bail,
enforcing the decision and granted his release. This has prompted the Prosecutor’s Office
itself to seek to be recognized as an interested third party in the amparo proceedings filed
before the Supreme Court by Mr. Cort y García’s lawyers.
28.
The third-party application, filed by the Special Anti-Corruption Prosecutor in charge
of case No. 22-2017, sets out the serious violations of Mr. Cort y García’s right to due process
in the criminal proceedings and to a duly appointed judge. It also claims that there has been
a breach of article 2155 of the Judicial Code, which states that bail bonds must be resolved
without any formalities within 24 hours, in order to guarantee protection of personal liberty
in a timely manner. The Prosecutor’s Office expressly acknowledges the inexcusable
procedural delay and the lack of a duly appointed judge, in violation of Mr. Cort y García’s
rights. However, the application was rejected outright.
29.
The source emphasizes that, although the Prosecutor’s Office recognizes the
violations of Mr. Cort y García’s human rights, in particular his right not to be tried again for
the same facts and the same offence, it has not revoked the detention order despite having the
power to do so, thus contributing to the continuation of this irregular situation.
30.
The source alleges that it is equally serious that the various habeas corpus appeals
filed by Mr. Cort y García’s lawyers have been dismissed by the judges without resolving his
legal situation, thereby allowing him to remain in prison without any court accepting the bail
and ordering his release, which has resulted in more than a year of deprivation of liberty, in
violation of his right to due process.
31.
The source states that in the habeas corpus appeals against the detention orders issued
by the Office of the Special Anti-Corruption Prosecutor, the lawyers argued that there had
been a violation of the non bis in idem principle. Article 2575 of the Judicial Code states that
there is no legal basis for depriving a person of his or her liberty with the intention of trying
him or her more than once for the same misdemeanour or offence.
32.
The source alleges that, when it addressed the matter of Mr. Cort y García’s illegal
detention, the Supreme Court made an omission by limiting itself to conducting only a formal
review of the detention orders, without evaluating or taking into consideration the arguments
and evidence set out in, for example, the decision of 10 December 2019.
33.
The Supreme Court has not ruled on the violation of the non bis in idem principle and
delegates responsibility to the duly appointed judge. However, Mr. Cort y García has no duly
appointed judge given that the jurisdiction of Criminal Circuit Judge No. 11, who is the
competent judge to hear the proceedings against him in cases No. 22-2017 and No. 24-2017,
has been suspended since 24 October 2019.
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34.
The source argues that the circumstances described above show the detention of Mr.
Cort y García to be arbitrary under categories I and III.
35.
In addition, it is alleged that decision No. 8, dated 21 June 2019 and issued by the
Prosecutor’s Office, imposing pretrial detention on Mr. Cort y García, does not indicate any
of the grounds set out in article 227 of the Code of Criminal Procedure. The decision indicates
only that the defendant has the financial means to leave the country, but this reasoning is not
sufficient grounds to establish a flight risk. In the decisions, the proportionality of the
measure is assessed on the basis of the offence with which Mr. Cort y García is charged. The
source notes that this violates international human rights law, which has established that the
risk of flight cannot be assessed solely on the basis of the severity of the possible sentence.
The source further notes that there is no danger to the securing of evidence, given that the
Prosecutor’s Office has conducted the investigation and Mr. Cort y García has collaborated
with it, as demonstrated by the decision of 29 November 2018 and his appearances before
the Prosecutor’s Office.
36.
Mr. Cort y García is the subject of two pretrial detention orders issued by the
Prosecutor’s Office on 21 June 2019 and 22 August 2019. These orders were issued despite
the fact that he had been prosecuted and sentenced in previous criminal proceedings, through
a decision approving the plea-bargaining agreement in case No. 5-2017. This has not
prevented the Prosecutor’s Office from investigating him in two other cases, No. 22-2017
and No. 24-2017, relating to the same facts and offences. The source alleges that the decisions
of the Prosecutor’s Office restricting Mr. Cort y García’s freedom by means of pretrial
detention do not establish the existence of sufficient evidence to reasonably assume that the
detention is necessary.
37.
In view of the foregoing, the source states that the detention of Mr. Cort y García
should be found to violate the right to the presumption of innocence, as recognized in article
11 of the Universal Declaration of Human Rights and article 14 of the Covenant, and should
therefore be considered arbitrary under categories I and III.
38.
According to the source, it is important to highlight that because the decisions of 18
and 22 November 2019 are final, it was appropriate to post the bail, and the court should
therefore have accepted it. Mr. Cort y García’s lawyers have tried unsuccessfully to have
these decisions enforced. The source claims that the refusal to comply with the two decisions
makes it manifestly impossible to invoke a legal basis for the detention, and again maintains
that the detention is arbitrary under category I.
39.
The source also argues that on 21 May 2020, Mr. Cort y García’s lawyers filed a
petition for amparo in respect of the judge’s oral decision not to accept the bail money. The
petition was rejected, preventing the posting of the bail and impeding the enforcement of the
bail orders, leaving the cases in a state of legal limbo and legal uncertainty that directly affects
Mr. Cort y García’s fundamental rights.
40.
The source recalls that the writ of habeas corpus is a stand-alone right. In the present
case, the source alleges that the petition for amparo was not an effective remedy for the
enforcement of the two release orders or for the judges to accept the bond. The source
therefore claims that the detention must be determined to be arbitrary owing to the violation
of the right to due process, as recognized in article 14 of the Covenant, in accordance with
category III.
41.
In addition, the source claims that the Prosecutor’s Office has not acted impartially.
The Office reopened an investigation against Mr. Cort y García for facts and offences he had
already admitted, for which he had already been tried and for which the sentence has been
enforced.
42.
The source claims that Mr. Cort y García’s right to be tried without undue delay or
released has been violated. In the present case, the Prosecutor’s Office itself acknowledged
the procedural delay on 7 July 2020, in the appeal before the Supreme Court. Subsequently,
on 21 July 2020, the Office of the Special Anti-Corruption Prosecutor indicated that the
situation is causing delays to the investigation and leaves the parties without a defence, which
constitutes a direct violation by omission of article 8 of the American Convention on Human
Rights, which establishes guidelines for due process. In view of the foregoing, the source
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states that Mr. Cort y García’s detention should be found to be arbitrary under category III
owing to the violation of his right to due process, which is recognized in article 14 of the
Covenant.
43.
The judicial decisions were issued on 18 and 22 November 2019 and have been
awaiting enforcement by the judiciary since then. In other words, Mr. Cort y García’s trial
has been unduly delayed for more than a year as a result of actions attributable to State
institutions. Consequently, the source alleges that Mr. Cort y García’s detention should be
found to be arbitrary under category III owing to the violation of his right to a trial without
undue delay, which is set out in article 10 of the Universal Declaration of Human Rights and
article 14 of the Covenant.
44.
The source further reports that, on 3 December 2019, Mr. Cort y García granted
special power of attorney to a lawyer in case No. 5-2017 for the purpose of requesting the
authenticated copies of the investigative decision and sworn statement, which are needed as
evidence in connection with the motions for annulment on the basis of double jeopardy in
cases No. 22-2017 and No. 24-2017. On 30 January 2020, the Office of the Special Anti-
Corruption Prosecutor rejected the power of attorney on the grounds that the division of the
case precludes Mr. Cort y García from participating in the process or obtaining copies of the
file. The rejection of the power of attorney and the refusal to issue the certified copies of the
investigative decision and Mr. Cort y García’s sworn statement has impeded both access to
evidence and his exercise of the right to a defence in the two investigations in which he has
been charged in violation of the non bis in idem principle.
45.
The source recalls that Mr. Cort y García has collaborated effectively with the
Prosecutor’s Office and that his life and personal integrity are therefore at risk in prison. This
has been confirmed by the Panamanian courts, as can be seen in the minutes of the hearing
held on 29 November 2018 before Criminal Circuit Judge No. 12 of Judicial Circuit No. 1,
which show that the defence’s request to substitute the prison sentence with a fine
proportional to the circumstances was accepted.
46.
The source expresses concern for Mr. Cort y García’s personal integrity in the light
of the coronavirus disease pandemic (COVID-19), there having been several cases of
COVID-19 at the prison where he is being held. The Inter-American Commission on Human
Rights has recommended that Panama grant judicial measures to replace pretrial detention in
cases where the law allows it. On 13 April 2020, the Attorney General instructed prosecutors
to request pretrial measures that enable prosecution outside prison. On 31 August 2020, the
Directorate General of the Prison System issued a communiqué on the COVID-19 situation
in prisons.
Response from the Government
47.
On 13 January 2021, the Working Group transmitted the allegations from the source
to the Government under its regular procedure. The Working Group requested the
Government to provide detailed information on the situation of Mr. Cort y García by 15
March 2021 and to clarify the legal provisions justifying his continued detention, as well as
its compatibility with the international human rights obligations of Panama and, in particular,
with the treaties ratified by the country. The Working Group called upon the Government to
ensure his physical and mental integrity.
48.
The Government submitted its reply after the deadline, on 26 March 2021.
Consequently, the Working Group cannot consider it as having been submitted within the
deadline established in its working methods.
Discussion
49.
In the absence of a timely response from the Government, the Working Group has
decided to render the present opinion, in conformity with paragraph 15 of its methods of
work.
50.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
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understood to rest upon the Government if it wishes to refute the allegations.2 Mere assertions
that lawful procedures have been followed are not sufficient to rebut the source’s allegations.
51.
The Working Group wishes to reaffirm that States have an obligation to respect,
protect and uphold all human rights and fundamental freedoms, including liberty of person,
and that any national law or procedure allowing deprivation of liberty should be formulated
and implemented in conformity with the relevant international standards set forth in the
Universal Declaration of Human Rights and other applicable international instruments.
Consequently, even if the detention is in conformity with national legislation, regulations and
practices, the Working Group has a right and an obligation to assess the judicial proceedings
and the law itself to determine whether the detention is also consistent with the relevant
provisions of international human rights law.
52.
As a fundamental preliminary issue, the Working Group wishes to recall that
exhaustion of domestic remedies is not a prerequisite under the procedural rules governing
its consideration of communications on alleged cases of arbitrary detention, as contained in
its methods of work. There is no provision in the methods of work that would prevent the
Working Group from considering communications due to lack of exhaustion of domestic
remedies in the country concerned. The Working Group’s jurisprudence also confirms that
alleged victims of possible arbitrary deprivation of liberty do not have to exhaust domestic
remedies for a communication to be considered admissible.3
Category I
First case
53.
The Working Group notes that two sets of criminal proceedings were initiated against
Mr. Cort y García. The first concerns alleged corrupt dealings with the company Odebrecht,
in connection with which he was charged with financial offences and laundering of the
proceeds from the offence of corruption by a public official, which is defined in article 254
of the Criminal Code. In the context of these proceedings, he was sentenced to 48 months in
prison, the payment of US$1.6 million and the obligation to continue cooperating with the
Prosecutor’s Office.
54.
This case was preceded by a plea-bargaining agreement signed between the United
States of America and the company Odebrecht, which exposed a bribery scheme used by the
company to pay bribes to public officials and political parties abroad. More than US$788
million was allegedly paid in bribes to illegally secure projects in several countries, including
Panama, with Odebrecht’s profits amounting to billions of dollars.
55.
The source notes that in 2016, the Department of Justice of the United States of
America published a report on Odebrecht’s involvement in irregular activities in Latin
America. The report contains references to alleged payments of millions of dollars in bribes,
including alleged illicit payments made in Panama.
56.
According to the source, as a result of the preliminary actions, on 1 September 2017,
in an investigative decision, the Prosecutor’s Office filed the indictment against Mr. Cort y
García for the alleged offence of money-laundering. The proceedings ended with the signing
and approval of the plea-bargaining agreement on 21 November 2018, in which Mr. Cort y
García partially admitted the offences with which he was charged, agreed to pay the required
amount of money to the State and also pledged to continue cooperating with all requests from
the same authority. The terms of this agreement were approved by Criminal Circuit Judge
No. 12 at the hearing on 29 November 2018.
57.
The Working Group has reviewed the information relating to the ruling in which Mr.
Cort y García was found guilty of money-laundering and sentenced to 48 months’
imprisonment, plus the obligation to pay the State a substantial fine and to continue
cooperating with the Prosecutor’s Office. The ruling is final and has the force of res judicata.
2 A/HRC/19/57, para. 68.
3 See opinions No. 11/2000, No. 19/2013, No. 38/2017, No. 8/2018, No. 43/2018, No. 44/2018, No.
78/2018, No. 84/2018, No. 85/2018, No. 29/2020, No. 30/2020, No. 51/2020 and No. 77/2020.
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Furthermore, the judge agreed to substitute the 48-month prison sentence with a proportional
fine, having heard the views of the Prosecutor’s Office and accepted the arguments of Mr.
Cort y García’s lawyers regarding the danger he would face in prison. The judge ordered Mr.
Cort y García to serve his sentence outside prison, recognizing that his collaboration with the
Prosecutor’s Office would put his life and personal integrity at risk. The judgment ordered
Mr. Cort y García to pay the amount of money requested by the Prosecutor’s Office, which
he transferred to the State in full.
58.
Mr. Cort y García served his sentence and continued to collaborate with the
Prosecutor’s Office and accede to all its requests, as acknowledged by the Office in the
minutes of the court hearing at which the plea-bargaining agreement was approved.
Moreover, the Prosecutor’s Office undertook not to initiate a new case relating to the
activities for which he had already been tried. This decision was final and had the force of
res judicata.
Second case
59.
The second case stems from an audit report released as part of an investigation by the
Prosecutor’s Office into the Vía Brasil Section 11 construction project. The report revealed
that Panama had suffered millions of dollars’ worth of financial losses through overcharging.
It involves a separate offence from the one relating to negotiation activities with Odebrecht.
60.
In this second case initiated against Mr. Cort y García in investigative decision No.
13, dated 12 August 2019, he was charged with offences against the public administration in
the form of corruption by a public official and with the offence of embezzlement by
misappropriation of funds. Mr. Cort y García is charged not only with money-laundering, but
also with embezzlement by misappropriation of funds and corruption by a public official.
61.
On the basis of its analysis of the proceedings relating to the present case, the Working
Group notes that the second investigation referred to by the source does not in fact relate to
the same Odebrecht case. Mr. Cort y García is in custody in connection with a different case
which involves other defendants in addition to him and which has arisen in a different
manner.
62.
The source states that, on 21 June 2019, during the investigation of this second case,
a raid was conducted at Mr. Cort y García’s residence by order of the Prosecutor’s Office.
He was taken into custody to give a statement to the Office of the Special Anti-Corruption
Prosecutor, without a judicial arrest warrant and without being informed of the reasons. He
was then ordered to be placed in pretrial detention on the basis of article 222 of the Code of
Criminal Procedure. Mr. Cort y García decided to exercise his constitutional right not to
testify, which is protected by article 25 of the Constitution of Panama.
63.
This second set of proceedings ended in a similar way to the first case described above.
Mr. Cort y García was granted bail which was set on the basis of the State’s financial losses.
However, despite having been granted bail, he has not been released. In this regard, the
Working Group wishes to recall that the Human Rights Committee, in interpreting the content
and scope of article 9 of the Covenant, has established that:4
Unauthorized confinement of prisoners beyond the length of their sentences is
arbitrary as well as unlawful; the same is true for unauthorized extension of other
forms of detention. Continued confinement of detainees in defiance of a judicial order
for their release is arbitrary as well as unlawful.
64.
In this regard, it is worth recalling that the Working Group has provided the following
example to illustrate arbitrary detention under category I: “when a person is kept in detention
after the completion of his or her sentence or despite an amnesty law applicable to him or
her”.5 The judicial approval of the bail and Mr. Cort y García’s release eliminated the legal
basis that allowed the authorities to keep him in detention, thereby rendering his continued
detention arbitrary under category I.
4 General comment No. 35 (2014), para. 11.
5 A/HRC/36/38, para. 8 (a).
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9
65.
The Working Group also notes that Mr. Cort y García was arrested without a warrant
during a search of his home by the Prosecutor’s Office. The Working Group recalls that in
order for a deprivation of liberty to have a legal basis, it is not sufficient simply for there to
be a law pursuant to which the arrest might be made. The authorities must invoke that legal
basis and apply it to the circumstances of the case through an arrest warrant.6
66.
The Working Group wishes to recall that international law on deprivation of liberty
sets out the right to be presented with an arrest warrant, which is procedurally inherent in the
right to liberty and security of person and the prohibition of arbitrary detention, under articles
3 and 9 of the Universal Declaration of Human Rights and article 9 of the Covenant. Any
form of detention or imprisonment should be ordered by a judicial or other authority in
keeping with the law or be immediately subjected to the effective control of this authority,
whose status and remit should afford the strongest possible guarantees of competence,
impartiality and independence.
67.
Similarly, it is important to note that the Working Group has established in its
jurisprudence that the prosecution service cannot be considered a judicial authority for the
purposes of article 9 (3) of the Covenant.7
68.
In the light of the foregoing, the Working Group finds that Mr. Cort y García was
detained arbitrarily, in violation of articles 3 and 9 of the Universal Declaration of Human
Rights and article 9 of the Covenant, as well as principles 2, 4 and 10 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment. His arbitrary
detention falls under category I.
Category III
69.
The source also claims that, in Mr. Cort y García’s case, international standards
regarding the right to a fair and impartial trial and due process have not been observed. In
this regard, the Working Group notes that Mr. Cort y García gave his statement in relation to
the second case on 22 August 2019, 61 days after the Prosecutor’s Office had ordered him to
testify. The fact that Mr. Cort y García availed himself of his right not to testify, as enshrined
in article 25 of the Constitution, does not absolve the authorities of the duty to guarantee the
right of any accused person to be brought promptly before a judge and to challenge the
legality of the detention before a court, in accordance with articles 2 (3) (a) and 9 (3) and (4)
of the Covenant,8 as well as articles 8, 9, 10 and 11 of the Universal Declaration of Human
Rights and principles 11 and 37 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment.9
70.
Mr. Cort y García obtained his release order after reaching a second plea-bargaining
agreement. Like the first agreement, the second one was legally approved by the relevant
judges. The judges imposed bail and alternative sentencing measures and set out specific
conditions relating to his collaboration, with which he has complied. Mr. Cort y García was
granted this second set of bail conditions by Criminal Court No. 11 of Judicial Circuit No. 1
in the bail order of 18 November 2019.
71.
The Working Group considers that the plea-bargaining agreement, as an alternative
dispute resolution measure that was approved by a judge, constitutes a decision equivalent to
a discharge decision, which would have been final and had the force of res judicata, which
has not happened in Mr. Cort y García’s case. Despite the fact that High Court of Justice No.
2 annulled the proceedings that had taken place since 24 October 2019, these orders have not
been enforced. In this context, Criminal Circuit Judge No. 11 of Judicial Circuit No. 1 issued
a verbal decision rejecting the posting of Mr. Cort y García’s bail and prolonging his pretrial
6 See opinions No. 46/2017, No. 66/2017, No. 75/2017, No. 93/2017, No. 35/2018 and No. 79/2018.
7 Opinions No. 14/2015, para. 28; No. 5/2020, para. 72; No. 6/2020, para. 47; and No. 41/2020, para.
60; Human Rights Committee, general comment No. 35 (2014), para. 32; and A/HRC/45/16/Add.1,
para. 35.
8 See opinions No. 45/2017, No. 46/2017, No. 79/2017, No. 11/2018 and No. 35/2018.
9 Opinions No. 20/2019, para. 66; No. 26/2019, para. 89; No. 36/2019, para. 36; No. 56/2019, para. 80;
and No. 76/2019, para. 38.
A/HRC/WGAD/2021/44
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GE.22-02205
detention. In the light of these facts, the Working Group refers the present case to the Special
Rapporteur on the independence of judges and lawyers.
72.
The Working Group notes that, within the framework of these proceedings, a series
of motions have been filed at different stages of the process, either by the defence, the judges
involved or the Prosecutor’s Office. The Working Group also notes that in the context of
these motions, the measures said to have been adopted by the courts differ from those
described by the defence. In particular, the following measures should be noted: the defence’s
time-barred appeal against the amount of bail; the refusal to accept the power of attorney
granted by Mr. Cort y García to his lawyer, who acted on his behalf and claimed that the
investigation period had expired, a claim that was denied by the Prosecutor’s Office and
settled on 23 December 2019 by the court, which declared the annulment request unfounded;
the refusal to grant Mr. Cort y García’s habeas corpus appeal; and the two oral refusals to
accept the posting of the bail that had been confirmed in an agreement approved by the judge,
claiming that the bail order had been annulled in a judicial decision.
73.
The circumstances described above have delayed the case against Mr. Cort y García,
leaving the agreements reached in abeyance and prolonging his detention. The case has
passed from one motion to another and has been annulled, and the judges who could resolve
it have had their jurisdiction suspended, seriously prejudicing the rights of Mr. Cort y García
and violating his right to due process, including the right to be brought before a competent
judge, in accordance with the provisions of article 9 of the Covenant, article 10 of the
Universal Declaration of Human Rights and principle 38 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, which specifically
guarantee any person detained on a criminal charge the right to stand trial within a reasonable
time or to be released if the trial does not take place.
74.
In this regard, the Human Rights Committee has clarified that article 9 (3) of the
Covenant requires that persons who are not released pending trial must be tried as
expeditiously as possible, to the extent consistent with their rights of defence.10 In the present
case, this has not happened; despite the plea-bargaining agreements described above, Mr.
Cort y García has remained in prison, further aggravating the arbitrariness of his detention.
As the Working Group has stated, it is a universal legal principle that both prolonged pretrial
detention without trial and prolonged detention pending a trial that is not held within a
reasonable period of time are incompatible with the right to liberty and constitute arbitrary
detention.11
75.
In the light of the above-mentioned violations of the right to a fair trial and to due
process, the Working Group considers that the detention of Mr. Cort y García is arbitrary
under category III.
Disposition
76.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mauricio Cort y García, being in contravention
of articles 3, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and of
articles 2, 9 and 14 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I and III.
77.
The Working Group requests the Government of Panama to take the steps necessary
to remedy the situation of Mr. Cort y García without delay and bring it into conformity with
the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights.
78.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Cort y García immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
international law.
10 Human Rights Committee, general comment No. 35 (2014), para. 35.
11 Ibid., para. 37.
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GE.22-02205
11
79.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Cort
y García and to take appropriate measures against those responsible for the violation of his
rights.
80.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the independence of judges and lawyers, for
appropriate action.
81.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
82.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. Cort y García has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Cort y
García;
(c)
Whether an investigation has been conducted into the violation of Mr. Cort y
García’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Panama with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
83.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
84.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action would
enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
85.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.12
[Adopted on 15 November 2021]
12 Human Rights Council resolution 42/22, paras. 3 and 7.