United Nations Human Rights - Office of the High Comissioner to Panamá sends letter to Panamá.

HAUT-COMMISSARIAT AUX DROITS DE L'HOMME • OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS

PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND

www.ohchr.org • TEL: +41 22 917 9359 / +41 22 917 9407 • FAX: +41 22 917 9008 • E-MAIL: registry@ohchr.org

Mandate of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

REFERENCE: AL

PAN 2/2015:

October 26, 2015 ENGLISH TRANSLATION from letter sent from the United Nations to

the Government of Panama Nov 7,2018 post

Excellence,

I have the honour to address you in my capacity as Special Rapporteur on the torture and other cruel, inhuman or degrading treatment or punishment in accordance with resolution 25/13 of the Human Rights Council.

In this context, I would like to draw the urgent attention of the Government of your Excellency the information I have received regarding the conditions and treatment during the detention of Mr. Nicholas Tuffney. The allegations indicate that conditions within penitentiary centres, such as overcrowding and others, would have led to a series of cruel, inhuman, degrading treatment and even torture against Mr. Tuffney, on the part of others deprived of their liberty, as well as, on the part of authorities of the three penitentiary centres where he was detained, impacting negatively on the physical and mental integrity of Mr. Tuffney.

According to the information received: Mr. Nicolas Tuffney was arrested in April 2013 by the police at the Tocumen International Airport. Subsequently, he was transferred to Ancón, Police Detention Centre; once in this centre, where remained for a period of two weeks, Mr Tuffney would have suffered from abuses, harassment and intimidation by others deprived of their liberty, as well as, by the authorities of the penitentiary centre. Fear of abuse of the other persons deprived of their liberty would have caused Mr. Tuffney not to leave his cell, not even to make use of the bathroom. Also during this period in Ancon, Mr. Tuffney would not have had a place to sleep and he would have had to sleep on the concrete floor. At this time, he would have lost 25 pounds.

Mr. Tuffney would have been transferred to the San José de la Palma Hospital in Darien, where he would have been hospitalized for a period of two weeks due to deterioration of his health conditions. Subsequently, and against the recommendations of the doctor, he would have been transferred to the La Palma prison on 8 of June of 2013 where he would have remained until the 16 of July of the same year.During the almost two months of imprisonment in this penitentiary he was kept handcuffed every day and would not have been allowed to stand nor move about freely. He would also not have been allowed to exercise and, although condition of his joints continued to deteriorate, they would not have offered any medication. On several occasions, and due to the poor and inadequate water drainage conditions in the prison, Mr. Tuffney's personal effects were allegedly damaged by flooding. He would not have been supplied with personal hygiene products, including toilet paper,and clean drinking water.

Then, for no apparent reason, he would have been transferred from La Palma prison to the La Joya prison on 16 July 2013 where he would have been held until August 27, 2014. Their evaluation for infectious diseases not would have been exercised, by the fact ,that on their arrival the change of authorities of the penitentiary was in progress.

In the building where Mr. Tuffney was held would have been found between 430 and 520 persons deprived of their liberty, when the building has the capacity for no more than 240 people. Mr. Tuffney would have slept on the concrete floor. In terms of health conditions, those deprived of liberty would have had to improvise with bottles to collect water from the rain or from tubes placed in the patios to rinse the water from the toilets. However, in the drought, water would have been insufficient or non-existent. For a period of 10 days, the deprived of their liberty, including Mr. Tuffney, would not have had access to water, nor even to water that they could buy inside the detention centre.

In addition, inmates within the penitentiary would not have been categorized as pre-trial or sentenced. Together to overcrowding, excessive heat, restrictions to move within the prison and the absence of activities would have led to acts of violence among inmates.

As for hygiene and health treatments, the medicines would have been sold by the authorities or by the inmates themselves. In addition, Mr. Tuffney would have asked the Director of the Prison for a psychological evaluation, which was ignored. After staying in this detention centre for more than a year, he would have been transferred to the Centre for the Detention of Migrants since August 27, 2014 until September 9, 2014. The centre would have had thin mattresses on the floor, but only two of the rooms had windows, these would have been the only entrances of fresh air. Also, the centre would not have basic needs of hygiene and cleanliness, nor would it have been provided with immediate medical assistance within the Centre.

After being released from prison Mr. Tuffney's mental capacity would have been seriously affected. His mobility would be severely limited due to the progression of osteoarthritis caused by his detention. He would also experience anguish and suffering because of his detention.

Without wishing to prejudge the truth of these allegations, I would like to express my concern for these facts. I would like to appeal to the Government of your Excellency to seek clarification to ensure that violations of the right to physical and mental integrity of Mr. Tuffney, as well as of the detainees of La Joya and of the other detention centres mentioned previously do not continue to occur. I would like to emphasize that the Government has the obligation protect the life and integrity of individuals, under their custody, as are those deprived of liberty.

These rights are enshrined in Articles 3 and 5 of the Declaration Universal Declaration on Human Rights, Articles 6 and 7 of the International Civil and Political Rights, ratified by the Government of Panama on March 8 1977 and Articles 2 and 16 of the Convention against Torture and Other Forms of cruel, inhuman or degrading punishment, ratified by Panama on August 24, 1987.

In relation to the above allegations, please find enclosed the Annex of references to international human rights law which summarizes the relevant international instruments and principles.It is my responsibility in accordance with the mandate given to me by the Human Rights Council; to try to clarify the allegations brought to my attention.In this regard, I would be grateful to have the cooperation and comments of Your Excellency on the following matters:

1. Please provide all the information you have about the claims.

2. Please provide detailed information as well as the results if available, from any investigation, medical and judicial examination or other type of research that has been carried out in this case. If these have not taken place or have not been concluded, please explain the why.

3. In the event that the alleged perpetrators of the offenses have been identified and arrested, please provide detailed information on the judicial and administrative proceedings. Have you imposed any penal, disciplinary or administrative sanction to the alleged culprits /perpetrators?

4. Please indicate what compensation, repair and rehabilitation have been taken in favour of the victim on account of these events.

I would be grateful if you would receive a reply from Your Excellency's Government to these questions in a maximum period of 60 days.Pending its reply, I would like to urge the Government of your Excellency to take all necessary measures to protect the rights and freedoms and to investigate prosecute and impose sanctions person responsible for the alleged violations. I would also urge you to take the effective measures to avoid that such facts, if they occurred, are not repeated.

I guarantee that the response of Your Excellency's Government will be included in the report to be submitted to the Human Rights Council. Accept, Excellency, the assurances of my highest consideration.

Juan E. MéndezSpecial Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment AnnexedReferences to international human rights law with regard to the allegations, I would like to appeal to the principles applicable in accordance with international law in this case.I would like to draw the attention of your Government to article 6 of the Covenant International Covenant on Civil and Political Rights (ICCPR), ratified by the Government of Panama on March 8, 1977, which provides that every individual has the right to life and personal safety. When the State detains an individual it is obliged to maintain a high level of diligence to protect the rights of that person.

I would like to remind the Government of His Excellency of the absolute prohibition of torture and ill-treatment as set out in Articles 7 of the ICCPR and 2 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Cruel, Inhuman or Degrading Treatment or Punishment (CAT) ratified by Panama on 24 August 1987.I would also like to reiterate to the Government of your Excellency the Principles for the protection of all persons subject to any form of detention or imprisonment (adopted by the General Assembly in its resolution 43/173 of 9December 1988).

The Committee against Torture and the Human Rights Committee have concluded that conditions of detention may constitute inhuman or degrading treatment or punishment.I remind the Government of your Excellency of the Minimum Rules for Treatment of the Prisoners, provision 22 (2) of which provides that "The transfer of patients whose condition requires special care, to prison specialized hospitals or civil hospitals. When the establishment has services hospital, they will be provided with the material, instruments and pharmaceutical products necessary to provide sick prisoners with the necessary care and treatment. In addition, staff must have sufficient professional preparation in this context.

, I would like to refer to Recommendation E / CN.4 / 2003/68, paragraph26 (j) of the former Special Rapporteur on Torture, which states that "the countries should take effective measures to prevent violence among prisoners by investigating reports of this type of violence, prosecuting and punishing those responsible and offering protection to the people without marginalizing them from the penitentiary population more than what the needs of protection demand and without subjecting them to new risks of bad treatment.

Training programs should be considered to sensitize official’s prisons about the importance of taking effective measures to prevent and stop with abuses among prisoners, and equip them with means to do so. In accordance with Set of Principles for the Protection of All Persons Subject to AnyForm of Detention or Imprisonment, prisoners should be divided by sex, age and severity of the crime allegedly committed, and to separate those who have committed for the first time and the recidivists, and those detained in pre-trial detention and those convicted. "Finally, I would like to refer to the Minimum Rules for the Treatment of prisoners, adopted by the Economic and Social Council in its resolutions 663C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977 which establish certain criteria for the cells of persons deprived of liberty in principle 9 (1) and (2) provides that: "Cells or rooms intended for night-time isolation shall not be occupied by more than one prisoner. If for special reasons, such as excess of the prison population, it would be essential that the administration prison system should make exceptions to this rule, it should be avoided that two inmates in each individual cell or room. 2) When resorting to dormitories, these should be filled by carefully selected prisoners suitable to be housed in these conditions.

At night, they will be subjected to a regular surveillance, adapted to the type of establishment concerned. "I would also like to remind the Government of your Excellency of articles 7 and 12 of that Convention, which requires, respectively, that any State Party ensure that, provided that there are reasonable grounds to believe that within its jurisdiction there has been committed an act of torture, the competent prompt and impartial investigation and that any State Party prosecute alleged perpetrators of acts of torture.In this regard, I note Human Rights Council Resolution 16/23,paragraph 7 (b) which urges States to hold those responsible who perpetrate acts of torture, but also that: "(those persons who) encourage, order, tolerate or to commit acts of torture are held liable and punishable by penalties proportional to the gravity of the offense, including officials in charge of the place of detention in which the prohibited act took place. "I also recall the thematic report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A / 69/387), in which the Special Rapporteur stresses that the CAT provides three fundamental pillars in the fight against torture, which are the obligation of States to ensure justice, to prevent all acts of torture and ensure the repair by them. The obligation to investigate is essential to achieve those three main pillars (paragraph 21). Moreover, the fact that it is not investigated, together with lack of accountability, perpetuates the practice of torture and other ill-treatment (paragraph 20).

I would like to draw Your Excellency's attention to article 14 of the Convention against torture and other cruel treatment or inhuman and degrading punishment, which provides that victims of such cruel, inhuman or degrading treatment or punishment have the right to a reparation and just compensation. In this regard, I would like to recall paragraph 7 (e) of the Human Rights that urges States to "ensure that the victims of torturer other cruel, inhuman or degrading treatment or punishment obtain reparation and receive fair and adequate compensation, as well as social, psychological and medical services and other relevant and specialized rehabilitation services, and urges States to establish, maintain, facilitate or support centres or facilities of rehabilitation where victims of torture can receive such treatment and take effective measures to ensure the safety of their staff and patients.

Finally, I would like to recall that Article 12 of the International Covenant on Economic, Social and Cultural Rights, provides the right of everyone to the enjoyment of highest attainable standard of physical and mental health. This includes the obligation for all States to guarantee access to health, with goods and services accessible to all, especially for those segments of the population in situations of vulnerability or marginality, without any discrimination. I would also like to refer the Government of your Excellency General Comments No. 14 of the Committee on Economic, Social and Cultural Rights, which states that: "States have an obligation to respect the right to health, in particular by refraining from denying or limiting equal access to all persons, including prisoners or detainees, representatives of minorities, asylum-seekers or illegal immigrants, preventive health services,Curative and palliative care [...] "(paragraph 34).

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