Blog post by Dr. Ricardo Strauch Aveline, Professor of Law and Coordinator of the Law Clinic at Faculdade Estácio do Rio Grande do Sul, situated in Porto Alegre, Brazil.
Introduction
Latin America has a history of embracing relaxed regulatory policies regarding migration. Throughout the 19th century and the first half of the 20th century, the region is estimated to have welcomed and integrated over thirteen million Europeans. The prevailing Latin American open-door approach to migrants is influenced by several factors, such as culture and language similarity, common religious identity, and ethnic composition. The absence of an elaborate state social security system in most countries is another factor, as it tends to diminish the perception that newcomers would unjustly benefit from a system built before their arrival. However, this backdrop contrasts starkly with the security-focused migration control practices imposed by military dictatorships in the 1970s and 1980s.
Authoritarianism in Latin America was fueled by the fear of communist expansion during the Cold War era. Consequently, immigrants from socialist and leftist countries were often the primary targets of repression by these dictatorships. While many Latin American countries have transitioned their government structures, the legacy of structural authoritarianism and state violence left by this era is still felt in persisting migration policies and practices, particularly evident in areas like border control. It is not uncommon for border patrol positions to be filled by military officers, perpetuating a doctrine that views “foreigners” as “potential enemies”.
This blog highlights the approach of the Inter-American Court of Human Rights adjudicates cases involving these tensions and how its jurisprudence can impact the practices and policies of Latin American States. In focus , is the Court’s decision in Vélez-Loor v. Panama, which concerned legal frameworks and border practices in Panama and the broader region.
The role of the Inter-American System of Human Rights (ISHR) in post-dictatorial transitions
During the post-dictatorial transitions of the 1980s and early 1990s, the Inter-American System of Human Rights (ISHR), consisting of the Inter-American Court and Inter-American Commission on Human Rights, expanded its focus to monitor political processes addressing authoritarian legacies and their impact on democratic institutions. This period witnessed the development of core principles regarding justice, truth, and reparations for widespread human rights violations. Subsequently, there has been a notable increase in the number of countries accepting the jurisdiction of the Inter-American Court, with legal professionals integrating ISHR mechanisms into their practices more routinely.
As a result, ISHR jurisprudence has begun to influence decisions in constitutional and national supreme courts, as well as aspects of state policy formulation, leading to significant institutional changes. Building upon this historical context, this blog post aims to analyse the influence of the Inter-American Court of Human Rights in fostering changes in policies and practices of State authoritarianism across Latin America, specifically related to migration control.
Vélez-Loor v. Panama: dealing with the legacy of authoritarianism in an arbitrary detention case
On November 11, 2002, Ecuadorian citizen Vélez Loor was detained at the Tupiza Police Station in the Province of Darién, Republic of Panama, for not having the necessary documentation to enter that country. Vélez Loor claimed that he was in transit to the United States of America, having departed from Ecuador, crossed Colombia and entered Panama irregularly through the jungle. He was detained in a border and jungle area. There were no immigration authorities in the area, meaning that border controls were on the responsibility of the National Police.
Upon his irregular crossing, he was apprehended by national police in Panama and detained at the La Palma penitentiary centre with people who had been condemned for crimes. There, he stayed in overcrowded installations without beds and with only one bathroom for more than one hundred people. He also endured instances of torture at the hands of state agents during his ten-month confinement. His imprisonment was decreed by the Director of the National Immigration Office, citing a 1960 law to do so.
Throughout the legal proceedings, he was denied access to legal representation and was only granted consular assistance months after his conviction and arrest. After being released and deported to his native country in 2003, Vélez Loor pursued redress through multiple channels before ultimately petitioning the Inter-American Commission on Human Rights in early 2004.
Before the Inter-American Commission, Panama accepted responsibility for violating the American Convention on Human Rights on two points: that its national legislation in force at the time provided for the automatic detention of irregular migrants who had been previously deported; and that there were structural deficiencies in its prison system (water supply, overcrowding, classification of prisoners) that affected the integrity of Vélez Loor. However, it did not accept that it had denied access to justice, access to the public defender’s office, and access to the Ecuadorian Consulate. It also denied that torture had occurred.
The Commission submitted the case to the Inter-American Court for consideration, alleging violation of the following articles of the American Convention on Human Rights: Article 5 (right to personal/intellectual integrity), Article 7 (right to personal liberty), Article 8 (right to a fair trial/judicial guarantees) and Article 25 (right to judicial protection). It also alleged violation of the Inter-American Convention to Prevent and Punish Torture, affirming the State’s duty to investigate allegations of torture.
The decision of the Inter-American Court of Human Rights found the state had breached prohibitions of arbitrary detention and arrest, along with violations of the right to freedom from torture, right to judicial protection, and due process. The Court mandated financial compensation and medical treatment be provided to Velez-Loor, as well as obligatory human rights training to state migration control officials. Additionally, the state was directed to conduct a criminal investigation and impose sanctions on the authorities and officials responsible for the criminal acts.
The Court determined that the necessary measures should be adopted to make available facilities with sufficient capacity to house the detainees. Panama was ordered to pay compensation for material and non-material damage in the amount of US$27,500 and reimbursement of costs and expenses in the amount of US$24,000, within a period of one year.
The Court’s decision was impactful in prompting Panama to decriminalise migration in its domestic law. The 1960s-era immigration legislation was reformed with the approval of Decree-Law n. 3 of 2008, which excluded the use of detention as a form of punishment for migrants in an irregular situation.
To this day, however, the person in authority who was responsible for Vélez-Loor’s arbitrary detention has not faced punishment and has been appointed to a diplomatic position.
In addition, two years later, , the Inter-American Court of Human Rights found another Latin American State in violation of the Convention. In 2012, in Pacheco Teruel v. Honduras the Court found that detention units should not be overcrowded and should provide adequate light, ventilation, bathrooms, food and clothing, as well as adequate medical care whenever necessary.
The need for another decision on conditions of immigration detention shows that the Vélez-Loor case did not have enough impact to change certain migration practices in the region.
Conclusions
In Latin America, the militarized approach to migration stems from the doctrine of national security, applied during military dictatorships, leaving traces of militarization not only in police action, but also in the field of migration control. The military doctrine is based on the idea that the migrant is a potential enemy, who represents a risk to national security. This would allow an approach that easily exceeds the limits established by International Human Rights due to the high level of violence and arbitrariness.
While Vélez-Loor v. Panama set a precedent for future cases of arbitrary detention in both national and international courts, its limited effectiveness in holding authorities and officials accountable for human rights violations indicates that authoritarian cultures still possess a structural dimension in protecting them, which transcends the current forces and mechanisms of the Inter-American Court of Human Rights.
This dimension extends beyond abusive border control practices to encompass the impunity of authorities responsible for human rights violations. These facts also suggest that despite progress in reforming certain policies, migration control structures in Latin America are still influenced by the region’s history of authoritarianism and violence that marked the period of dictatorships. Nevertheless, the role of the Inter-American Court of Human Rights has been instrumental in addressing this legacy and encouraging governments to implement national laws and practices that uphold human rights standards.
Dr. Ricardo Strauch Aveline is Professor of Law and Coordinator of the Law Clinic at Faculdade Estácio do Rio Grande do Sul, situated in Porto Alegre, Brazil. He holds a Doctorate in Social Sciences from UNISINOS and is currently pursuing his second doctoral degree in the Postgraduate Program in Law at the Federal University of Rio Grande do Sul (UFRGS) with research period at Humboldt Universität zu Berlin. Additionally, he obtained a master’s degree in European and German Law from the Postgraduate Program in Law at UFRGS/CDEA with empirical research period in Italy.
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