In November 2010, the Inter-American Court of Human Rights (Court) ruled against Panama in its first case addressing the vulnerability of irregular and undocumented migrants. The decision in Vélez Loor v. Panama came seven years after the Court issued an advisory opinion on the rights of undocumented migrants. The opinion concluded that all migrants, irrespective of migratory status, must be guaranteed due process of law and full “enjoyment and exercise of human rights.” The advisory opinion also stipulated that states must affirmatively act to avoid limiting or infringing on the fundamental rights of migrants.

In November 2002, Panamanian police arrested Jesús Vélez Loor, an Ecuadorian national, for entering the country without appropriate documentation. He was subsequently transferred to a detention facility and sentenced, without legal representation or awareness of the proceedings against him, to two years imprisonment for entering Panama illegally multiple times. Vélez Loor testified to the Court that while imprisoned, he was subjected to tear gas, burns, sexual abuse, and beatings resulting in a cracked skull. Desperate to ameliorate his situation, Vélez Loor started a hunger strike and partially sewed his mouth shut.  After Vélez Loor had endured deplorable conditions and abusive treatment for ten months, the Ecuadorian Consulate and Panamanian immigration authorities arranged his deportation, sending him back to Ecuador in September 2003. Although he reported his torture and the Panamanian Office of Foreign Affairs initiated an investigation, Panama made no further efforts to investigate Vélez Loor’s abuse. Velez Loor, still suffering medical and psychological trauma as a result of his torture and prolonged detention, continues to speak out about the severe violation of his rights in the hopes that what happened to him “never happens to anyone else again.”

In Vélez Loor, the Court found that Panama violated the petitioner’s rights to humane treatment (Article 5), personal liberty (Article 7), judicial protection (Article 25), and fair trial (Article 8 ) under the Inter-American Convention on Human Rights  (Convention).  It also found that Panama violated Vélez Loor’s rights under the Inter-American Convention to Prevent and Punish Torture. Additionally, the Court ruled that Article 67 of Panama’s 1960 Decree Law No. 16, which allows punitive sanctions for violation of migration laws, is incompatible with the Convention when used as a basis for arbitrary incarceration. Rather, the Court held that states should only detain migrants sparingly and on an exceptional basis, for the shortest time and least restrictive means possible. Moreover, if an administrative body orders detention, a judge or tribunal must be able to review the decision and the detained migrant must be able to contact and receive help from his country’s consulate.

The decision indicates the Inter-American System’s intolerance of discriminatory, abusive, and punitive treatment of undocumented migrants as part of states’ broader attempts to curb illegal migration. With more than 214 million migrants worldwide and estimates of upwards of 400 million in the year 2050, increased attention to treatment of migrants and reform of broken immigration systems will be crucial.  In Vélez Loor, the Court ordered Panama to pay monetary reparations to Vélez Loor, further investigate his allegations of torture, implement capacity-building measures for officials to enhance the investigation of torture claims, and provide appropriate detention facilities for those migrants it determines require state custody.  Given that approximately one-third of Court judgments handed down since 2009 have involved claims of torture, the ruling is further evidence that torture is an issue of continuing concern for the Inter-American System.  Additionally, the judgment recognizes the vulnerability of irregular and undocumented migrants and the unacceptability of deprivation of liberty and detention of undocumented migrants as a systematic practice, rather than an exceptional one exercised on a case-by-case basis. Finally, the decision reflects the Court’s general preoccupation with poor prison conditions, particularly extensive overcrowding, inadequate sanitation facilities, and poor health care, which are incompatible with the Inter-American System’s human rights framework.