ANNEX
The author of the communication is Renato Pereira, a Panamanian attorney born in 1936 and a resident of Paris at the time of submission of the communication. He acts on behalf of Mr. Benjamin Colamarco Patifio, a Panamanian citizen born in 1957, detained at the Modelo Prison in Panama City at the time of submission of the communication. It is submitted that Mr. Colamarco is a victim of violations by Panama of articles 9 and 15 of the International Covenant on Civil and Political Rights. Mr. Pereira encloses a power of attorney from Mr. Colamarco Patifio's wife. The facts as submitted by the author:
Benjamin Colamarco Patifio was a commander of the Panamanian Batallones de la Dignidad, according to Mr. Pereira an elite unit which resisted the intervention of United States forces in Panama in December 1989 ("Operation Just Cause"). His active resistance was corroborated by U.S. Colonel D.T., who was in charge of United States Air Force operations during the intervention. On 10 January 1990, Mr. Colamarco Patifio was, according to his representative, taken prisoner by the U.S. forces and interned in the Nuevo Emperador™ camp. 2.25 1 11 1 1 2 551 3520 156 44 95.951729 When, on 315 1 11 1 1 5 979 3518 230 46 96.333374 January 1990, President George Bush declared the end of hostilities with Panama, most prisoners of war were released. Mr. Colamarco Patifio, however, was transferred to the Modelo Prison in Panama, where he continued to be held. He was indicted on charges of having committed certain offences against the (territorial) integrity and internal order of the Republic of Panama. 2.35 1 12 1 1 2 553 3909 89 36 89.187592 Mr. Pereira submits that Mr. Colamarco acted legitimately vis-a-vis the United States intervention. Article 3065 1 12 1 2 6 1663 3951 61 39 96.307198 of the Panamanian Constitution indeed obliges all Panamanian citizens to defend the integrity of Panamanian territory and the sovereignty of the State.
Annex
As to the requirement of exhaustion of domestic remedies, Mr. Pereira states, without giving further details, that Mr. Colamarco has exhausted available domestic remedies, including a request for habeas corpus to the Supreme Court of Panama, the country's highest tribunal.
In further submissions made in the course of 1992 and 1993, Mr. Pereira observed, again without giving any further details, that the Supreme Court of Panama itself had admitted that the acts attributed to Mr. Colamarco and his co-defendants did not constitute criminal offences but that, notwithstanding, his client continued to be detained at Modelo Prison. In early 1993, he indicated that the trial of Mr. Colamarco and his co-defendants was scheduled to start on 19 May 1993 before the Circuit Court Judge No. 4 of Panama City (Juez Cuarto de lo Penal del Primero Circuito Judicial de Panama), and that the indictment of his client had been changed to include not only offences against the internal order of the State but also crimes against humanity. He objects to the qualification of the offences imputed to Mr. Colamarco Patino as political crimes”. The complaint: 3. The author contends that the facts as submitted reveal violations by Panama of articles 95 1 5 1 2 5 1236 1928 88 35 95.549171 and 155 1 5 1 2 7 1454 1928 58 35 96.253487 of the Covenant. The State party's information and observations: 4.15 1 7 1 1 2 771 2188 57 34 95.171364 In its submission under rule 915 1 7 1 1 8 1781 2180 56 38 96.027451 of the rules of procedure, the State party observes that the trial of Mr. Colamarco and of three co-defendants started as scheduled on 195 1 7 1 3 6 1464 2289 94 43 96.412750 May 1993. Mr. Colamarco was represented, both during the preliminary enquiry and during the trial, by a lawyer of his choice. On 45 1 7 1 5 4 990 2393 117 34 96.198425 June 1993, the circuit court judge found Mr. Colamarco and the other co-accused guilty of offences against the internal State order; they were sentenced to forty-four months and ten days of imprisonment and prohibited from running for public office for the same period of time, to run from the day the prison term had been purged. All of the accused were acquitted of the charge of crimes against humanity. 4.25 1 8 1 1 2 769 2749 88 36 95.949394 The Court's decision was notified to Mr. Colamarco. Although his legal representative initially appealed the sentence, he subsequently withdrew the appeal. 4.35 1 9 1 1 2 769 2953 89 36 96.865120 The State party concludes that by February 1994, the case had been filed, because the time spent in preventive detention by Mr. Colamarco had been set off against the prison term imposed on him. He has therefore been released, and no further charges against him remain pending. Issues and proceedings before the Committee: 5.15 1 11 1 1 2 771 3357 180 36 82.242973 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 875 1 11 1 2 9 2113 3406 56 35 96.042488 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant. 5.25 1 12 1 1 2 766 3614 56 35 96.219551 As to the claim under article 9, paragraph 1, the Committee begins by noting that the author links the alleged arbitrariness of Mr. Colamarco's arrest and detention to his presumed innocence. Nothing in the file, however, reveals that Mr. Colamarco was not detained on specific charges (see paragraph 2.25 1 12 1 5 2 702 3817 203 40 96.287643 above), pending the determination of his innocence or guilt by a court of law, and that he was not properly indicted. But, in any event, the Committee notes that Mr. Colamarco's counsel, while initially appealing the judgment of Annex English 4 June 1993 against his client, later withdrew the appeal, where these issues could have been dealt with. For the purpose of article 5, paragraph 2(b), of the Optional Protocol, an applicant must make use of all judicial or administrative avenues that offer him a reasonable prospect of redress. This Mr. Colamarco's counsel has failed to do, and available domestic remedies have accordingly not been exhausted in the case.
The Human Rights’ Committee therefore decides: (a) the communication is inadmissible under article 5, paragraph 2(b), of the Optional Protocol; (b) that this decision shall be communicated to the State party and the author of the communication. [Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly. ] -_-*—