Las Palmeras Case, Judgment of December 6, 2001, Inter-Am Ct. H.R. (Ser. C) No. 90 (2001).
In
the Las Palmeras case,
the
Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American
Court”), composed of the following judges*:
Antônio A. Cançado Trindade, President;
Máximo Pacheco Gómez, Vice President;
Hernán Salgado Pesantes, Judge;
Alirio Abreu Burelli, Judge;
Sergio García Ramírez, Judge, and
Julio A. Barberis, Judge ad hoc;
also
present**,
Manuel E. Ventura Robles, Secretary,
pursuant
to articles 29 and 55 of its Rules of Procedure (hereinafter “the Rules of
Procedure”), delivers the following judgment on the merits of the matter in
dispute between the Inter-American Commission on Human Rights (hereinafter
“the Commission” or “the Inter-American Commission”) and the State of Colombia
(hereinafter “the State” or “Colombia”).
I
Introduction of the Case
1. The Inter-American Commission submitted
this case to the Court via an application dated July 6, 1998, based on a complaint
(No. 11,237) received at its Secretariat and dated Bogota, January 27, 1994.
2. In its application, the Inter-American
Commission explained the facts upon which its case was based.
On
January 23, 1991, the Putumayo Departmental Police Commander ordered members
of the National Police to conduct an armed operation in a place known as Las
Palmeras, Municipality of Mocoa, Department of Putumayo. Army troopers assisted the National Police.
That
morning, children were at the Las Palmeras country schoolhouse, waiting for
classes to begin. Two laborers by
the name of Julio Milciades Cerón Gómez and Artemio Pantoja, were working on the repair
of a septic tank. The brothers Wilian
Hamilton Cerón Rojas and Edebraes Norverto Cerón Rojas were rounding up a
head of cattle on a nearby hillside. Hernán
Javier Cuarán Muchavisoy, the local teacher, was arriving at the school.
The
Army forces opened fire from a helicopter, wounding Enio Quinayas Molina,
then a six-year old boy on his way to school.
At and nearby the schoolhouse, Police
detained the teacher, Cuarán Muchavisoy, the workers, Cerón Gómez and Pantoja,
the Cerón brothers Wilian Hamilton and Edebraes, and one other unidentified
person, who might have been either Moisés Ojeda or Hernán Lizcano Jacanamejoy.
The National Police extrajudicially executed at least six of these
people.
The
National Police officers and the Army troopers took several measures in an
attempt to justify their action. To
that end, they put military uniforms on the bodies of some of those killed,
burned their real clothes and threatened a number of witnesses in the case.
The National Police also put seven corpses on display, claiming that
they were the bodies of subversives killed in the supposed clash.
Six of the bodies were of the six people the Police detained that day;
the circumstances of the death of the seventh person have
never been explained.
Disciplinary,
administrative and criminal proceedings were instituted as a consequence of
these events. The disciplinary inquiry
conducted by the Putumayo National Police Commandant took five days, and cleared
all those who participated in the Las Palmeras incident of all blame.
Two administrative-law proceedings were instituted wherein it was expressly
acknowledged that the victims of the armed operation did not belong to any
armed group and, on the day the events transpired, were engaged in their routine
activities. These proceedings established that the National
Police extrajudicially executed the victims, who were utterly defenseless. After seven years, the military criminal proceeding
had not progressed past the investigative phase and not one of those responsible
for these events had yet been charged.
3. In its application, the Inter-American Commission petitioned the Court
as follows:
[t]he Inter-American Commission
respectfully petitions the Honorable Court to:
Adjudge and
declare that the State of Colombia has violated the right to life, recognized
in Article 4 of the Convention, and Article 3 of the Geneva Conventions, to
the detriment of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy,
Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas, Wilian Hamilton Cerón Rojas
and one other person (who could be either Hernán Lizcano Jacanamejoy or Moisés
Ojeda).
Establish the circumstances surrounding
the death of a seventh person purported to have been killed in combat (Hernán
Lizcano Jacanamejoy or Moisés Ojeda), to determine whether the right to life
recognized in Article 4 of the Convention and Article 3 of the 1949 Geneva
Conventions has been violated.
Adjudge and declare that the State
of Colombia has violated articles 8 and 25 of the American Convention, to
the detriment of Artemio Pantoja Ordóñez, Hernán Javier Cuarán, Julio Milciades
Cerón Gómez, Edebraiz Cerón Rojas, Wilian Hamilton Cerón Rojas, Hernán Lizcano
Jacanamejoy [and], and Moisés Ojeda, and their next of kin.
Adjudge and declare that with its
violations to the rights to life, to a fair trial, and to judicial protection,
the State of Colombia has also violated its obligation under Article 1(1)
of the Convention, which is to respect and ensure the rights recognized therein.
Order the State of Colombia:
a) to conduct a rapid, impartial and effective judicial investigation
into the facts denounced and punish all those responsible.
b) to determine whether the other person that the National
Police extrajudicially executed on January 23, 1991, was Hernán Lizcano Jacanamejoy or Moisés Ojeda.
The Honorable Court is also asked to order the State of Colombia to
conduct a serious investigation to determine the circumstances under which
the seventh fatality occurred. The Commission did not arrive at any finding
on this death.
c) to make full reparation to the victims’ next of kin, including
payment of a just compensation (deducting the amounts already paid in pecuniary
damages in the administrative-law cases of Artemio Pantoja Ordóñez, Hernán
Javier Cuarán Muchavisoy, Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas
and Wilian Hamilton Cerón Rojas) and to restore the victims’ good name for
posterity.
d) to adopt any amendments needed in the regulations and training
programs of the Colombian armed forces, so that all military operations are
conducted in accordance with the international instruments and international
practice in the matter of domestic armed conflicts.
e) to pay the expenses and costs that the victims’ next of
kin have incurred to litigate this case in local fora and before the Commission
and the Court, and the reasonable fees of their attorneys.
II
Competence
4.
Colombia has been
a State Party to the American Convention since July 31, 1973. On June 21, 1985, it accepted this Court’s
contentious jurisdiction. The Court
is, therefore, competent under the
terms of Article 62(3) of the American Convention on Human Rights (hereinafter
“the American Convention” or “the Convention”) to take up the merits of the
present case.
III
Proceeding before the Commission
5. On January 27, 1994, the Commission received a petition
alleging human rights violations. The
aggrieved parties were Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy,
Julio Milciades Cerón Gómez, Edebraes Norverto Cerón Rojas, Wilian Hamilton
Cerón Rojas, one unidentified person (possibly either Moisés Ojeda or Hernán
Lizcano Jacanamejoy), and one other unidentified person. The circumstances surrounding the death of
the last of these persons were unknown. On
February 16, 1994, the Commission forwarded the pertinent parts of the complaint
to the State and requested the State’s answer.
6. The State submitted its answer on May
25, 1994. The State’s brief was forwarded
to the petitioners, who submitted their observations on July 21, 1994.
The Commission forwarded the petitioners’ observations to the State
on August 31, 1994; the State responded on December 22. Both the petitioners and the State forwarded
other submissions to the Commission concerning the status of the investigations
and domestic court proceedings. The
pertinent parts of those submissions were sent to opposing side.
7. On October 8, 1996, the Commission held
a hearing where the parties made their oral arguments on the facts in the
case and the applicable law.
8. On February 20, 1998, the Commission approved
Report No. 10/98, pursuant to Article 50 of the Convention, and forwarded
it to the State on March 6 of that year. In the operative part of that report, the Commission recommended
the following:
119. That the State of Colombia undertake a serious, impartial and
effective investigation of the facts denounced, in order to be able to clarify
the events of January 23, 1991, and prepare an official report detailing the
circumstances of the violations and the responsibility for them.
120. That the State of Colombia bring to trial all those responsible
so that they may be punished.
121. That the State of Colombia adopt measures to properly redress
the violations proven, including compensation to the victims’ next of kin
who have not yet received compensation.
9. On May 12, 1998, the Commission received
a note from the State wherein it requested a 45-day extension to reply to
Report 10/98. On May 14, the Commission
informed the parties that the State had been given a ten-day extension.
10. On May 26, 1998, the State formulated a
proposal for a friendly settlement, which the Commission conveyed to the petitioners.
They filed their comments on May 29, 1998.
In that proposal the State pointed out that it did not agree with “all”
the observations and conclusions contained in Report No. 10/98, particularly
on the question of exhaustion of local remedies and the application of international
humanitarian law. It also indicated
that it was planning to set up a committee to move the criminal investigation
forward.
11. On June 2, 1998, the State and the petitioners
advised the Commission that they had agreed upon a 30-day deadline to begin
negotiations aimed at arriving at a friendly settlement; they therefore requested
that the time periods running under Article 51(1) of the American Convention
be suspended.
12. On July 1, 1998, the petitioners informed
the Commission that for the time being, the conditions were not there for
arriving at a friendly settlement. They
therefore requested that the Commission restart the suspended time periods
and resume proceedings in the case. That
information was conveyed to the State.
13. The Commission filed the application in
this case with the Inter-American Court (supra,
paragraph 1) on July 6, 1998.
IV
Proceeding before the Court
14. The Commission designated Mr. Robert K.
Goldman and Mr. Carlos Ayalo Cora as delegates and Mrs. Verónica Gómez and
Mr. David Padilla as advisors. The Commission accredited Mrs. Luz Marina Monzón
and Mr. Gustavo Gallón and Carlos Rodríguez as assistants and petitioners,
and Mr. Pablo Saavedra Alessandri and Ms. Viviana Krsticevic as assistants.
15. On July 14, 1998, after the President of
the Court (hereinafter “the President”) had completed a preliminary review
of the application, the Secretariat of the Court (hereinafter “the Secretariat”)
transmitted said application and its appendices to the State and informed
it of the time periods it had for filing its brief answering the application,
for filing preliminary objections and for designating its Agent in the proceeding
before the Court.
16. On August 14, 1998, Colombia designated
Mrs. Marcela Briceño-Donn as agent, and Mr. Héctor Adolfo Sintura Varela as
alternate agent.
17. On September 14, 1998, Colombia filed five
preliminary objections.[1] On September 21, 1998, the Secretariat sent
the Inter-American Commission a copy of the document in which the State sets
out its preliminary objections. The
Commission filed its response on November 5, 1998.
18. On December 11, 1998, the President invited
Colombia to designate a judge ad hoc,
inasmuch as Judge Carlos Vicente de Roux Rengifo, who was a Colombian national,
had excused himself in the present case, pursuant to Article 19 of the Court’s
Statute and Article 19 of its Rules of Procedure.
19. On December 15, 1998, Colombia filed its
brief answering the Commission’s application.
In its answer, the State expressly acknowledged its responsibility
for the violation of Article 4 of the Convention, by virtue of the killing
of Hernán Javier Cuarán Muchavisoy, Artemio Pantoja
Ordóñez, Julio Milciades Cerón Gómez, Wilian Hamilton Cerón Rojas and Edebraes
Norverto Cerón Rojas. It further stated
that it was not acknowledging responsibility in the death of the other two
persons, NN/Moisés and Hernán Lizcano Jacanamejoy. It referenced the various legal proceedings
instituted into the events in question: disciplinary, administrative, military
criminal justice, and ordinary criminal justice. In the case of the military criminal proceedings, it stated that
during the initial phase of the investigation, there were difficulties with
evidence gathering; but it also argued that a proceeding under the military
justice system is not, per se, a
violation of human rights. When examining
the amount of time that had passed since the events under investigation had
occurred, one had to consider the complexity of
the case, the procedural activity of the interested party and the conduct
of the judicial authorities. The
State acknowledged that there were irregularities in the investigation, but
argued that those irregularities should not be cause to throw out any and
all proceedings conducted thereafter. It argued that the victims’ next of kin were
not denied access to an “effective recourse,” adding that the case is underway
in the ordinary criminal justice system and investigations are being conducted
into the circumstances under which the seven people died and the parties suspected
in the events. Finally, it pointed
out that the reparations awarded in the administrative law proceedings are
consistent with the parameters given in the Convention and that the costs
were established during those proceedings.
20. On January 12, 1999, the State designated
Julio A. Barberis as Judge ad hoc.
21. On March 18, 1999, the Commission requested
permission to enter other pleadings in the written proceedings, pursuant to
Article 38 of the Rules of Procedure. On June 3, 1999, following the President’s orders, the Secretariat
extended the time period for the Commission
to present its pleadings and the State its rebuttal.
22. On August 9, 1999, the Commission presented
its reply. There, it asked the Court
to:
Adjudge and declare that the State of Colombia has violated the right
to life, recognized in Article 4 of the Convention, and Article 3 of the Geneva
Conventions, to the detriment of Artemio Pantoja Ordóñez, Hernán Javier Cuarán
Muchavisoy, Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas, Wilian Hamilton
Cerón Rojas and N/N Moisés.
Establish the circumstances surrounding the death of Hernán Lizcano Jacanamejoy to determine
whether there has been a violation of the right to life recognized in Article
4 of the Convention in relation to the State’s obligations under Article 1(1)
thereof, and the principles recognized in Article 3 of the 1949 Vienna Conventions.
Adjudge and declare that the State of Colombia has violated articles
8 and 25 of the American Convention, to the detriment of Artemio Pantoja Ordóñez,
Hernán Javier Cuarán, Julio Milciades Cerón Gómez, Edebraiz Cerón Rojas, Wilian
Hamilton Cerón Rojas, Hernán Lizcano Jacanamejoy, N/N Moisés, and their next
of kin.
Adjudge and declare that with its violations to the rights to life,
to a fair trial and to judicial protection, the State of Colombia has also
violated its obligation under Article 1(1) of the Convention, which is to
respect and ensure the rights recognized therein.
Order the State of Colombia:
a) to conduct a rapid, impartial and effective judicial investigation
of the facts denounced and punish all those responsible.
b) to determine the identity of N/N Moisés, executed on January 23, 1991, by members of the National Police.
The Honorable Court is also asked to order the State of Colombia to
conduct a serious investigation to determine the circumstances under which
Hernán Lizcano Jacanamejoy died ….
c) to make full reparation to the victims’ next of kin, including
payment of a just compensation (deducting the amounts already paid in the
form of pecuniary damages as a result of the administrative contentious cases
of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy, Julio Milcíades
Cerón Gómez, Edebraiz Cerón Rojas and Wilian Hamilton Cerón Rojas) and restore
the victims’ good name for posterity.
d) to adopt any amendments needed in the regulations and training
programs of the Colombian armed forces, so that all military operations are
conducted in accordance with the international instruments and international
practice in the matter of domestic armed conflicts.
e) to order the State of Colombia to pay the expenses and
costs that the victims’ next of kin have incurred to litigate this case in
local fora and before the Commission and the Court, and the reasonable fees
of their attorneys.
23. On November 11, 1999, Colombia submitted
its rebuttal to the Court. There it
argued that the new statements that the Commission added in its reply brief
are not in response to the State’s reply to the original application and are
intended to reformulate the petitions set out in chapter X of the application.
For the State, therefore, the original pleadings will continue to dictate
the subject matter of the dispute. It
added that it was unclear why a single mechanism had to be found within the
internal system in order to satisfy the exigencies of the inter-American system
for the protection of human rights. Quite
the contrary, when faced with a possible violation, States should order all
necessary measures to set in motion the proper mechanisms to ensure the observance
of the rights under discussion and make any reparation it may owe. It also pointed out that in 1994, in another case separate from
the one sub judice, Colombia’s Constitutional
Court recognized the plaintiffs’ right to have recourse to the military criminal
justice system. It also noted that
in the proceedings that the military criminal justice system has underway
petitions to become civil parties to the case have been granted.
Finally, it added that the Commission’s analyses and conclusions with
respect to Hernán Lizcano Jacanamejoy and NN/Moisés are helpful to the State
authorities.
24. On February 4, 2000, the Court delivered
its judgment on the preliminary objections entered by the respondent State.[2]
25. On April 23, 2001, the President decided
to summon the parties to a public hearing, which would be held at the seat
of the Court on May 28, 2001, to hear the parties’ witnesses and experts.
26. The public hearing was held at the seat
of the Court on the date planned.
There
appeared:
For
the Republic of Colombia:
Marcela Briceño-Donn, agent; and
Héctor Adolfo Sintura Varela, alternate
agent.
For
the Inter-American Commission on Human Rights:
Robert K. Goldman, delegate;
Verónica Gómez, advisor;
Viviana Krsticevic, assistant;
Luz Marina Monzón Cifuentes, assistant;
Carlos Rodríguez Mejía, assistant; and
Roxana Altholz, assistant.
The
witnesses and experts tendered by the parties also appeared.
27. On May 30, 2001, the Court ordered exhumation
of the mortal remains of the alleged deceased Hernán Lizcano Jacanamejoy and
NN/Moisés. On June 15, 2001, the President
ordered appointment of Mr. Daniel Michael O´Donnell to represent the Court
at the exhumation. The exhumation
proceeding and the subsequent examination of Lizcano Jacanamejoy’s remains
took place June 24 to 30, 2001. The archeological report on the excavation at the Mocoa Cemetery
in Putumayo and the report on the anthropological analysis and forensic examination
of Hernán Lizcano Jacanamejoy‘s remains were received on August 14 and 21,
2001, respectively.
28. The report containing the anthropological
analysis and forensic examination recommended that studies be done of the
gunshot residue found among the remains of Hernán Lizcano Jacanamejoy, using
inductively coupled plasma mass spectometry.
The Court followed the experts’ recommendation and on September 7,
2001, ordered the testing suggested. It
also ordered that the tests be done by the experts from the Technical Investigations
Corps with the Office of the Prosecutor General of Colombia. On September 28, 2001, the Commission stated that it believed that Mr. Héctor Daniel
Fernández should be present for the procedure as an “observer.“ That same day, the Secretariat informed the
Commission that the President had authorized “Mr. Héctor Daniel Fernández’
participation as an observer to the testing procedures.”
On
October 22, 2001, the expert report was submitted containing the results of
the tests done on the bullet residue found among Hernán Lizcano Jacanamejoy’s
mortal remains.
29. On November 2, 2001, the Commission submitted
to the Court its brief of final arguments, which includes, as an appendix,
an “expert report” signed by Mr. Héctor D. Fernández concerning the tests
done on Mr. Hernán Lizcano Jacanamejoy’s mortal remains using “atomic absorption
spectometric analysis.” On November
13, 2001, the State submitted its comments on that “expert report,“ within
the time period set by the President.
The
brief of final arguments consists of two main chapters: the first argues that Colombia is responsible
for the death of Hernán Lizcano Jacanamejoy; the second asserts that the State
violated the seven victims’ right to judicial protection.
In
the first chapter, the Commission examines the anthropological report and
forensic report concerning the gunshot residue, and Mr. Fernández’ “expert report.” The latter clearly states that “Hernán Lizcano Jacanamejoy was
‘in a kneeling position’ at the time he was shot. The brief then attacks the testimony in the case file and in the
court records attached thereto, to the effect that the victim died in combat.
The Commission argues that by its failure to properly investigate Lizcano
Jacanamejoy‘s death, the State is responsible for his death.
Finally, the Commission argues that the way in which Lizcano Jacanamejoy
was killed was similar to the method that Colombian security forces were using
at that time.
The
second chapter examines the problems and obstacles put up by the State in
terms of the evidence needed to illuminate the facts, the way in which the
investigations were manipulated, the intimidation of the victims’ next of
kin and the performance of the military justice system. The Commission states the following in this regard:
Based on the evidence supplied to the Court, the conclusion drawn from
all these facts is that the State failed to comply with its duty to ensure
the victims and their next of kin proper
protection under the law and their right to an effective recourse, as they
were left completely defenseless against the action of State agents.
30. On November 2, 2001, the State submitted
its brief of final arguments. Its
conclusions are as follows
The Government of Colombia is asking
the Honorable Court to adjudge and declare that:
a. The right to life,
recognized in Article 4 of the American Convention on Human Rights, was not
violated to the detriment of HERNÁN LIZCANO JACANAMEJOY;
b. Articles 8 and 25 of the American Convention on Human Rights were
not violated in the case of the seven persons included in the instant case
and their next of kin;
c. It accepts the State’s acknowledgement of responsibility for
violation of Article 4 of the Convention, in relation to Article 1(1) thereof,
in the deaths of HERNÁN JAVIER CUARÁN MUCHAVISOY, ARTEMIO PANTOJA ORDÓÑEZ,
JULIO MELCÍADES CERÓN GÓMEZ, WILIAN HAMILTON and EDEBRAES NORBERTO CERÓN ROJAS
and NN MOISÉS OJEDA; and
d. It support the action of the Colombian judicial authorities charged
with investigating and prosecuting the responsible parties since, despite
the many difficulties and the complexity of the internal situation, their
conduct has been helpful in the instant case.
V
Preliminary Consideration
31. In its rebuttal brief, at the public hearing
and in its final written arguments, Colombia objected to the fact that in
the Commission’s reply, it altered some of the terms of the petitum as drafted
in the original application. In its
judgment of September 10, 1993, in the Aloeboetoe
et al. Case, Reparations, the Court wrote that “in proceedings before
an international court a party may modify its application, provided that the
other party has the procedural opportunity to state its views on the subject.”[3] The Court will apply that case law in the instant
case. Therefore, provided the other
party has had the procedural opportunity to state its views, it will regard
the latest arguments made as the definitive pleadings.
VI
Violation of Article 4
Right to Life
32. The Commission is asking the Court to adjudge
and declare that Colombia has violated the right to life recognized in Article
4 of the Convention, to the detriment, firstly, of five persons it identifies
by name: Artemio Pantoja Ordóñez,
Hernán Javier Cuarán Muchavisoy, Julio Milciades Cerón Gómez, Edebraes Norverto
Cerón Rojas and Wilian Hamilton Cerón Rojas.
Among
the documents that the Commission adds to the body of evidence with the Court
is a copy of an April 15, 1993 judgment of the Nariño Administrative Law Court
that found Colombia to be liable in the deaths of Artemio Pantoja Ordóñez
and Hernán Javier Cuarán Muchavisoy, and therefore ordered it to pay compensation
for moral and material damages caused to the two victims’ next of kin. In a separate ruling, dated February 23, 1995,
the Nariño Administrative Law Court also found Colombia liable in the deaths
of Julio Milciades Cerón Gómez, Edebraes Norverto Cerón Rojas and Wilian Hamilton
Cerón Rojas, and ordered it to pay compensation for the moral and material
damages caused to these three victims’ next of kin. The Administrative Law Court of the Council
of State upheld this judgment in a January 15, 1996 ruling.
Since
the Commission was aware of these court decisions when it filed its application
on July 6, 1998, one might well ask what the Commission was seeking when it
asked the Court to again find Colombia responsible in the death of the above-named
persons. The Commission argues that
a domestic court can only deliver a finding on the State’s domestic responsibility.
The finding of international responsibility must come from an international
court. The Commission writes the following under point
II of its reply:
The administrative law courts established
the State’s civil liability, under domestic law, for the execution of five of these victims (emphasis
added).
Under
point II.A of that brief the Commission repeats this language and adds the
following:
In its answer of December 26, 1998,
the State acknowledged its international
responsibility for violation of Article 4 of the American Convention,
to the detriment of the persons in question (emphasis added).
Finally,
the Commission asked the Court to find that the dispute over the State’s responsibility
for violation of Article 4 of the Convention is closed.
33. The American Convention is a multilateral
treaty under which States Parties undertake to respect and ensure the rights
and freedoms recognized therein and to comply with any reparations ordered.
The Convention is the cornerstone of the system for the protection
of human rights in America. This system is a two-tiered system: a local
or national tier consisting of each State’s obligation to guarantee the rights
and freedoms recognized in the Convention and punish violations committed. If a specific case is not resolved at the local
or national level, the Convention provides an international tier where the
principal bodies are the Commission and this Court. But as the Preamble to the Convention states,
the international protection is “reinforcing or complementing the protection
provided by the domestic law of the American states.” Consequently, when a question has been definitively
settled under domestic law -to use the language of the Convention- the matter
need not be brought to this Court for “approval”
or “confirmation.”
34. In the instant case, Colombia’s Council
of State, as forum of last instance, held that the State was responsible for
the deaths of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy, Julio
Milciades Cerón Gómez, Edebraes Norverto Cerón Rojas and Wilian Hamilton Cerón
Rojas. Because neither of the parties
challenged these court rulings, Colombia’s responsibility became res judicata.
*
*
35. In its application, the Commission makes
reference to a sixth victim, killed under the very same circumstances as the
five named victims but whose identity is unknown. In the evidence in the case file, the sixth victim appears as N.N./Moisés
or N.N./Moisés Ojeda. At the public
hearing held on May 28, 2001, the agent for Colombia acknowledged “that in
this case, the State’s international responsibility for violation of Article
4 of the American Convention on Human Rights, by virtue of the death of NN/Moisés
Ojeda, was conceded.” The Commission
made note of this acknowledgement. With
the latter, the issue concerning the State’s responsibility for violation
of this person’s right to life was settled.
*
*
36. The application states that seven people
were killed in the events that occurred in Las Palmeras, the seventh victim
being Hernán Lizcano Jacanamejoy. The
Commission states that one of the victims was purported to have been killed
in combat; the Commission, however, is of the view that neither N.N./Moisés
Ojeda nor Hernán Lizcano Jacanamejoy was a combat fatality. In the application, therefore, it asks that the Court
Establish the circumstances surrounding the death of a seventh person purported
to have been killed in combat (Hernán Lizcano Jacanamejoy or Moisés Ojeda),
to determine whether the right to life recognized in Article 4 of the Convention
has been violated [by the State of Colombia] […]
In
its answer, Colombia acknowledges its responsibility for the deaths of Hernán
Javier Cuarán Muchavisoy, Artemio Pantoja Ordóñez, Julio Milciades Cerón Gómez,
Wilian Hamilton and Edebraes Cerón Rojas.
It also states that the judgments delivered in the local courts and
the evidence available indicate that one of the seven victims at Las Palmeras
“died in a clash with members of the National Police.” As for the other person, the State contends that it does not have
“sufficient evidence to determine whether his death was or was not a violation
of the right to life in the meaning of Article 4 of the Convention.”
In
its observations on the State’s answer, the Commission asserts that based
on the evidence Colombia tendered in this case, it has concluded that N.N./Moisés
Ojeda was executed by members of the National Police while in their custody. It reasons that:
The testimony given by a number
of State agents who participated in the operation confirms that the physical
features of the person purported to have died in combat do not match those
of N/N Moisés; they are more similar to those of Hernán Lizcano Jacanamejoy.
While
the Commission cites the testimony of one of those who took part in the operation
to conclude that N.N./Moisés Ojeda was the person that the Police executed
once they had him in custody, it also calls into question the testimony of
other police involved to the effect that Hernán Lizcano Jacanamejoy died in
combat. The Commission “considers
that elements are present that make the truth of this aspect of their testimony
questionable.” Later, the Commission
stated that the evidence is not precise enough to confirm the circumstances
under which Hernán Lizcano Jacanamejoy died:
based on these observations with regard to the available data, the
Commission believes that the circumstances of the death of Hernán Lizcano
Jacanamejoy and, therefore, the responsibility of the State for violation
of Article 4 [of the American Convention] and Article 3 of the 1949 Geneva
Conventions, are still unclear.
The
Commission also reserves the right to request exhumation of Hernán Lizcano
Jacanamejoy’s body and a reconstruction of the events in order to study the
trajectory of the bullets.
In
its brief of reply, Colombia states simply that the analyses and conclusions
that the Commission reached regarding the fate of N.N./Moisés Ojeda and Hernán
Lizcano Jacanamejoy are very helpful to the Colombian authorities, have been
studied carefully and will be raised at the proper point in the proceedings.
37. At the public hearing held on May 28, 2001,
the State admitted responsibility for violation of Article 4 of the Convention
in the case of the death of N.N. Moisés Ojeda.
As
for the fate of Hernán Lizcano Jacanamejoy, at that public hearing the Commission
first asserted that the testimony of the police officers who participated
in the operation “is not credible” and analyzed other evidence tendered for
this case. The Commission drew the
Court’s attention to the trajectory of the bullets in Hernán Lizcano Jacanamejoy‘s
body, according to the autopsy conducted. In the Commission‘s opinion, the trajectory
“suggests an extrajudicial execution.“ As
for the evidence concerning the death of Hernán Lizcano Jacanamejoy, the Commission
asserted that:
The particular circumstances of this case are such that the burden of proof
can be reversed in order to establish the responsibility of the State in the
violation of Mr. Hernán Lizcano‘s right to life, from the very special angle
of international human rights law.
Colombia
relied mainly on the testimony given by Victoria Eugenia Yepes and Pedro Elías
Díaz Romero about the evidences tendered in the local proceedings, most of
which are attached to the case file. Colombia’s
agent concluded that:
Consequently, in this effort to clarify the facts, it should be noted that
it has already been shown that the Colombian justice system established -and
the Commission assumed in its application- that Mr. Lizcano Jacanamejoy died
in combat. The State cannot be held
internationally accountable for his death, as this was neither a summary nor
extrajudicial execution.
38. As previously noted (supra paragraph 27), the Court ordered exhumation of the remains of
Hernán Lizcano Jacanamejoy and the corresponding examinations -anthropological
analyses and forensic examination of the remains. The report from these tests states that the victim was shot at least
twice. It states the following concerning
the trajectory of the bullets:
Even though in this case the precise
direction of the bullets could not be established using the mortal remains,
those pieces whose possible trajectory could be discerned match what was described
in the autopsy […]
The trajectories described in the
autopsy, in some respects corroborated and in others acknowledged as a possibility
by the anthropological tests, are quite instructive in terms of a hypothesis
as to the mode or manner of death, first because both shots are described
as posterior-anterior. In particular,
the autopsy describes the angle of the bullet as entering the right side of
the neck and exiting in the area of the right abdomen; in other words, the
trajectory was a vertical drop from the top, down. This may suggest that the person who shot the
victim was over the victim, either because he was on higher ground or in the
air, or because the victim was in a crouching position in relation to the
shooter. From the medical-legal standpoint,
the trajectory of the bullets suggests the possibility of homicide as the
manner of death.
Unfortunately, there is nothing in the autopsy report about anything that
would suggest the distance the bullets traveled, for example, smoke residue,
gun powder residue, the size the entry wound, burns, oil residue from the
barrel of the gun. The analysis of
the exhumed remains failed to reveal any information in this regard.
The
expert report ordered by the Court to analyze the bullet fragments found among
Hernán Lizcano Jacanamejoy’s remains, using the technique of inductively coupled
plasma mass spectometry, failed
to reveal any further information about how Lizcano Jacanamejoy died. However, the Commission has relied on an “expert”
report prepared by Mr. Héctor Daniel Fernández, the observer designated to
be present for the tests at the Commission’s suggestion. He states categorically that “the victim was
in a kneeling position at the time he was shot.”
39. In its final brief, the Commission developed
two theories concerning Colombia’s responsibility in the death of Lizcano
Jacanamejoy. First, it argued that
the tests conducted constitute absolute proof that the victim was executed
by agents of the State and was absolutely defenseless at the time. Second, invoking various precedents of the
European Court of Human Rights, the Commission asserts that because it failed
to conduct a serious investigation into how the events occurred, Colombia
is responsible for Lizcano Jacanamejoy’s death.
In
its final brief Colombia pointed out that the Commission’s assertion that
Colombia was responsible because of its failure to conduct the proper investigations
is based on jurisprudence that the European Court of Human Rights
created in cases where the laws and facts were not analogous to the
present case. The State challenged the form and substance of Mr. Fernández‘ expert
opinion. It argued, inter alia, that this expert opinion was
not prepared by a Court-appointed expert, that it lacked probative value and
that the expert testing for which Mr. Fernández was observer was based on
a chemical study; it was not a ballistics test.
*
*
40. Summarizing, based on the submissions in
these proceedings, the Commission’s contention that Colombia is responsible
for the death of Hernán Lizcano Jacanamejoy is based on three hypotheses:
a) a reversal of the onus probandi, thus requiring the State
to prove it is not responsible for Lizcano Jacanamejoy‘s death; b) failure to investigate the facts, which
it argues makes the State responsible for the death; and c) the evidence produced, particularly
the expert evidence.
The
Court will now proceed to examine each of the three hypotheses.
41. a) As explained previously (supra paragraphs 35 and 36), the Commission
has been changing its hypothesis concerning the applicable law in the matter
of onus probandi as the proceedings
in this case have unfolded.
In
its application, the Commission asked the Court to establish the circumstances
of the death of a seventh victim, purported to have been killed in combat,
in order to determine whether Colombia had violated Article 4 of the American
Convention. This means that the Court
was to investigate the facts in order to ascertain the evidence of Colombia’s
responsibility.
In
its brief of response, the Commission stated that the circumstances of Mr.
Hernán Lizcano Jacanamejoy’s death were unclear, which meant that the question
of Colombia’s responsibility with respect to Article 4 of the Convention was
also unclear. Here, the Commission’s
position begins to change, and it
now implies that Colombia would have to prove that it was not responsible.
The
Commission’s position was spelled out at the public hearing on the merits,
held on May 28, 2001. Its contention
is that here, because of “the particular circumstances of the case” and “from
the very special angle of international human rights law,“ the burden of proof
should be reversed. The Commission
does not explain what “the particular circumstances of the case” might be
nor does it explain that “special angle of international human rights law.” El onus
probandi is not up to the court’s discretion; instead, it is dictated
by the rules of law in force. The
Commission has not cited any treaty in support of its argument, nor has it
tried to show the existence of some general or specific rule or custom of
international law on the subject.
In
some cases, a court may have to determine how strong the evidence must be
to constitute proof of facts. In the
instant case, to prove Colombia’s responsibility, it must be shown that State
agents executed Hernán Lizcano Jacanamejoy.
42. b) The second line of argument the Commission
pursued was to assert that because the State had not conducted a serious investigation
of the events that transpired, it had to assume responsibility for the death
of Lizcano Jacanamejoy. In its final brief, the Commission states the following in this
regard:
The State’s omissions in this
respect are violations of the victim’s right to life by reason of the
failure to conduct a serious investigation.
Prior
to this, at the public hearing, the Commission had stated the following:
Responsibility for the violation
of the right to life is also established by the failure to guarantee protection
of this right. The Commission considers
that the very fact that there was never the kind of thorough, effective and
impartial investigation of the facts that various articles of the American
Convention require, is a violation of the State’s affirmative obligation to
ensure and protect the right to life. This
is because the protection of this right does not end upon a person’s death
and is more than the obligation to respect the right to life.
The State must also provide an ex
post facto procedure to establish that the facts surrounding a murder
perpetrated by its agents were not acts committed by those agents.
While
in some cases, the failure to investigate may be construed as an attempt to
protect the authors of the crime of murder,[4]
this reasoning cannot be postulated as a generic rule applicable across the
board. Apart from the question of the legitimacy of a rule such as the one
postulated by the Commission, the fact is that it would be applicable only
if no serious investigation had been conducted.
In the instant case, the argument that no serious investigation was
conducted cannot be made. There are
two judgments from the Administrative Law Court of Colombia’s Council of State,
dating from 1993 and 1996 –i.e., predating the Commission’s application- that
find the State responsible for the events that occurred with respect to five
of the victims (supra, paragraphs
32 and 34). Although the events occurred
on January 23, 1991, while the military criminal justice system’s inquiry
was underway until early 1998, the State did not embark upon an investigation
of the facts. It was at that point
that an important change occurred, when the Human Rights Unit of the Office
of the Prosecutor General of the Nation took over the criminal investigation. The Commission acknowledged this at the public
hearing.
The
investigation required under the Convention cannot be identical to the one
conducted in the present process; were that the case, the rule would be redundant
and pointless. In the Court’s view,
the prior investigation that the Commission argues is a prerequisite, has
been carried out, thereby making this argument irrelevant in the present case.
43. c) Hernán Lizcano Jacanamejoy’s death is
the only one in this episode that was not the subject of a criminal case prosecuted
in the Colombian courts. The Office
of the Prosecutor General of the Nation concluded that the person in question
had died in a clash with the police. It
based its conclusion on the pretrial statements made by Captain Antonio Alonso
Martínez, lieutenants Jaime Alberto Peña Casas and Rafael Ordóñez Merjech
and police officers Elías Sandoval Reyes and Wilson Botina Papamija, on the
deposition of former police officer Pablo Lugo Herrera, the depositions of
campesinos Clodomiro Burgos Acosta and Leonardo Alvarado,
and on the testimony of Isidoro Cuarán Muchavisoy and a sister of the victim,
María Córdula Mora Jacanamejoy. This
was the testimony of Mr. Pedro Elías Díaz Romero at the public hearing, who
was coordinator of the Human Rights Unit at the Prosecutor General’s Office.
The
Inter-American Commission, on the other hand, contends that Colombian forces
executed Hernán Lizcano Jacanamejoy. It
attempted to challenge the evidence produced by the State by arguing that
the testimony of the police officers who participated in the operation was
not credible. It also asserted that
State authorities had failed to collect shells and bullets at the site where
Lizcano Jacanamejoy was killed, that the scrapings had not been taken from
the victim’s hands to determine whether he had fired a weapon, and that other
important procedures had been neglected.
As it states in various passages of its final arguments,
the evidence most central to the Commission’s case were the expert tests conducted:
As already pointed out, both the
forensic report and the ballistics tests produce incontrovertible proof that
Hernán Lizcano Jacanamejoy did not die in an armed confrontation. To the contrary, the victim was completely
defenseless when executed, and was thus executed arbitrarily while in the
custody of the State.
[…]
The trajectory of the bullets established
by the experts and the fact that Hernán Lizcano was kneeling at the time of
his death, precludes any possibility that Hernán Lizcano died as the State
alleged, i.e., in an armed confrontation. The Commission considers that the expert tests unequivocally show
that Hernán Lizcano did not die in a clash with agents of the National Police. Instead, he, like the other six victims, was
executed while completely defenseless.
[…]
The findings of the forensic examination
and ballistics tests, combined with the unmistakable signs of another case
of the modus operandi used by agents
of the State security forces, are unequivocal proof that Hernán Lizcano was
executed arbitrarily, in violation of Article 4 of the American Convention..
44. The Court will now turn its attention to
the expert opinions upon which the Commission bases its cases.
The
first is the anthropological analysis and forensic examination ordered by
the Court. The Commission underscores
one passage, cited earlier in this judgment (supra
paragraph 38). The report concerns
a bullet that entered the victim’s body at the right side of the neck and
exited in the area of Hernán Lizcano Jacanamejoy’s right abdomen. The trajectory of that bullet is a vertical
descent. The expert report explains
the possible positions between the shooter and the victim that could cause
the bullet to follow that trajectory. It
states the following:
This may presuppose that the shooter was above the victim, either at a
higher height on the ground or in the air, or that the victim was in a crouching
position in relation to the shooter.
It
is self-evident that the passage allows for three possibilities. The experts do not choose one over the others.
Nor do they say that these are the only three possibilities, because
those given are by way of example.
45. In response to the findings of the authors
of the anthropological report and the forensic report, on September 7, 2001
the Court ordered a study of the shrapnel present in the remains of Hernán
Lizcano Jacanamejoy. That study was
done through a chemical analysis that employed the technique of inductively
coupled plasma mass spectometry. Subsequently,
the Commission suggested Mr. Héctor Daniel Fernández serve as an expert to
participate in the study. In the end,
the President gave authorization for Mr. Fernández to participate in the testing
as an observer (supra, paragraph
28).
Mr.
Fernández prepared an “expert report” for the Inter-American Commission, which
was submitted as an appendix to the Commission’s brief of conclusions. Mr. Fernández states the following:
Having carefully evaluated the findings,
which are explained in detail in the respective report (Field Mission QA-04590/2001),
and replying on the technical and scientific principles of this discipline,
I have the following observations:
[…]
6.- The fracture of the left forearm and left hand wounds appear
to be from the same shot that I labeled
No. 1, which would make it obvious that the victim was in a “KNEELING” position
at the time he was shot. Obviously,
the projectile that followed that trajectory is the “pointed” bullet;
the trajectory can be explained by the force and aerodynamics characteristic
of that type projectile.
Finally, my assertions are categorical,
as I have done an exhaustive analysis of the medical-legal report and of the
minute details provided by the above-referenced study using inductively coupled
plasma mass spectometry (QA-04590/2001), whose descriptive pictures are very
vivid.
46. An analysis of Mr. Fernández’ assertion
shows that his remarks are not based on any reasoned logic, and therefore
lack any evidentiary value.
*
*
47.
The Court has carefully examined the statements and arguments given
by the parties and the evidence they offered.
It has evaluated them mindful of the time and place wherein they occurred. It has concluded that the evidence produced
during these proceedings has not been sufficient for the Court to find that
Hernán Lizcano Jacanamejoy was executed by State forces in violation of Article
4 of the American Convention.
VII
Violation of Articles 8 and 25
Right to a
Fair Trial and Right to Judicial Protection
48. With
regard to the violation of articles 8 and 25 of the Convention, given the
facts admitted in the instant case the local proceedings need to be examined.
* *
49.
Concerning the disciplinary proceeding
that the Office of Investigation and Discipline of the Putumayo Police Department
Command instituted against the members of the police force who participated
in the operation, the Court notes that from the time the investigating officer
instituted the inquiry to the time when the police commandant -who was also
the superior of the agents being investigated- declared the investigation
closed and cleared the participants in that operation of all wrongdoing, the
proceeding lasted a total of five days. The
Putumayo Prosecutor’s Office, the Office of the Special Prosecutor for the
Defense of Human Rights, the Nariño Administrative Law Court and the General
Bureau of Police serving as court of first instance, found that the disciplinary
proceeding was flawed with irregularities; it was handled in such haste that
it precluded any investigation of the facts and ultimately had the effect
of foreclosing criminal prosecution for the crime of obstruction of justice.
Furthermore, the Court observes that the “judge” in the disciplinary
proceeding was both judge and party. This
alone was sufficient to deny the victims and their next of kin their right
to the judicial guarantees recognized in the Convention.
The haste in which this disciplinary proceeding was conducted precluded
an examination of evidence and only the parties to participate were the implicated
parties (the police officers).
* *
50. The
military criminal proceeding began on January 29, 1991, with the Military
Examining Court 75. The case remained
in the military justice system until March 25, 1998, when it was transferred
to the ordinary criminal justice system.
In the military justice system, the judges assigned to hear the case
were with the National Police, as were the suspected material authors of the
acts. Compounding this is the fact
that the National Police was under the Ministry of Defense, which is in the
executive branch of government.
51.
The Court has already established that in a democratic state of laws,
the criminal military jurisdiction is to be restricted and exceptional in
scope and intended to protect special juridical interests associated with
the functions that the law assigns to the military forces.
Hence, military personnel are to be tried for crimes or misdemeanors
that, by their nature, harm the juridical interests of the military.[5]
52. The
following consideration must be taken into account:
[t]he military jurisdiction is established
in several laws, in order to maintain order and discipline within the armed
forces. Therefore, its application
is reserved for military personnel who have committed crimes or misdemeanors
in the performance of their duties and under certain circumstances … when
the military courts assume jurisdiction over a matter that should be heard
by the regular courts, the right to the appropriate judge is violated, as
is, a fortiori, due process, which,
in turn, is intimately linked to the right of access to justice.[6]
53. As has been previously stated, the judge
hearing a case must be competent, independent and impartial.[7] In the case sub judice, the very same military forces engaged in fighting the
insurgent groups are those charged with prosecuting their peers for executing
civilians, as the State itself has acknowledged. Consequently, from the very outset, the prosecution and punishment
of those responsible should have been handled by the ordinary justice system,
irrespective of whether the suspected authors were police officers in active
service. Nevertheless, the State ordered
that the military courts preside over the investigation into the Las Palmeras
incident. The military justice system
had that investigation underway for more than 7 years, until the case was
finally transferred to the ordinary courts.
The military courts never succeeded in identifying, prosecuting and
convicting the responsible parties.
54. In conclusion the use of the military courts
in this case did not guarantee due process in the meaning of Article 8(1)
of the American Convention, which recognizes the right of the victims’ next
of kin to a hearing by a competent, impartial and independent court.
*
*
55. In the case of the proceedings in the ordinary criminal justice system, the Human
Rights Unit of the Office of the Prosecutor General of the Nation took up
the case on May 14, 1998, after the First Criminal Court Prosecutor 233 asked
the Inspector General of the National Police to serve as judge of first instance,
to prosecute those suspected in the death of the victim in this case in the
ordinary criminal justice system. It
is important to note that as of the date of this judgment, this proceeding
has not concluded, meaning that there is no definitive judgment naming, convicting
and punishing those responsible. The criminal investigation of these events has now been underway
for more than ten years, which shows that the administration of justice has
been neither rapid nor effective.
56. Despite all the time
that has elapsed, and although proceedings have been conducted, the fact is
that they have failed to convict and punish the responsible parties, all of
which fosters impunity. This Court
has defined impunity as follows:
the total lack of investigation,
prosecution, capture, trial and conviction of those responsible for violations
of rights protected by the American Convention, [by virtue of the obligation
of the State] to use all the legal means at its disposal to combat that situation,
since impunity fosters chronic recidivism of human rights violations, and
total defenseless of victims and their relatives.[8]
57. The Court notes that in the instant case,
the parties acknowledged that the National Police officers implicated in the
events obstructed or refused to properly cooperate with the investigations
undertaken to clarify the case, and either tampered with, concealed or destroyed
evidence.[9]
58. It is the jurisprudence constante of this Court that
it is not enough that such recourses exist formally; they must be effective[10]; that is,
they must give results or responses to the violations of rights established
in the Convention.[11] This Court
has also held that remedies that, due to the general situation of the country
or even the particular circumstances of any given case, prove illusory cannot
be considered effective.[12] This may
happen when, for example, they prove to be useless in practice because the
jurisdictional body does not have the independence necessary to arrive at
an impartial decision[13]
or because they lack the means to execute their decisions; or any other situation
in which justice is being denied, such as cases in which there has been an
unwarranted delay in rendering a judgment.[14] This guarantee of protection of the rights
of individuals is not limited to the immediate victim; it also includes relatives
who, because of the events and particular circumstances of a given case, are
the parties that exercise the right in the domestic system.[15] This Court also held that “Article 8(1) of
the Convention must be interpreted in an open way so that said interpretation
be endorsed both in the literal text of the standard as well as in its essence.”[16]
59. The Court has also written that:
based on Article 8 of the Convention
it is understood that victims of violations of human rights, or their relatives,
must be able to be heard and act on their respective proceedings, both looking
for the clarification of facts and the punishment of the liable parties and
a proper compensation.[17]
60. The Court has stated that the scope of Article
25(1) of the Convention includes the principle of the effectiveness of the
procedural means or instruments created to guarantee those rights. The Court found that, under the Convention
[S]tates Parties have an obligation
to provide effective judicial remedies to victims of human rights violations
(Art. 25), remedies that must be substantiated in accordance with the rules
of due process of law (Article 8(1)), all in keeping with the general obligation
of such States to guarantee the free and full exercise of the rights recognized
by the Convention to all persons subject to their jurisdiction.[18]
61. From the facts admitted in the instant case,
it is self-evident that the relatives of the victims did not have an effective
remedy that would guarantee the exercise of their rights. One result was that the proceeding prosecuted
in the military court and now the proceeding in the regular criminal courts,
have failed to identify the responsible parties.
62. As for the time period of the criminal proceeding,
Article 8(1) of the Convention speaks
of “a reasonable time”. In the instant
case, the parties made the relevant arguments. The Court points to its decision in the Judgment
on preliminary objections of February 4, 2000, where it wrote that:
The State has not provided a satisfactory
explanation regarding the procedural measures between that date and the beginning
of 1998. The State’s silence must
be evaluated taking into account that, during the first seven years the procedural
measures did not get beyond the investigation stage. Colombia has mentioned the progress that took
place since the Human Rights Unit of the Office of the Prosecutor General
took charge of the matter. But the
issue in question is not what happened in 1998, but rather in the first seven
years after the facts occurred. That
lapse was more than sufficient for a tribunal to pronounce judgment.[19]
63. The Court has previously held that a five-year
period, counted from the date of the order instituting proceedings, goes beyond
what could be construed as a reasonable time.[20] The same principle applies in the instant case.
64. Based on the foregoing considerations, and
after a thorough review of procedures in the domestic criminal justice system,
calculating the period that began on January 29, 1991 –the date of the order
instituting the military criminal inquiry- to March 25, 1998 –the date on
which the case was transferred to the jurisdiction of the regular courts-
and then from May 14, 1998 –the date of the order to take up the case, issued
by the Regional Prosecutor of the National Human Rights Unit of the Office
of the Prosecutor General of the Nation- to the present –without a judgment
of conviction being pronounced- this Court finds that in all, the criminal
case has gone on for more than 10 years, a period that exceeds the parameters
of reasonability referred to in Article 8(1) of the Convention.[21]
65. Consequently, Article 8(1) of the American
Convention, in relation to Article 25(1) thereof, gives the victims’ relatives
the right to have the victims’ death effectively investigated by the State
authorities; to have the persons responsible for these unlawful acts prosecuted;
where appropriate, they have the right to have the proper punishment applied
to the responsible parties, and they are entitled to be compensated for the
damages and injuries they have suffered.
66. For all these reasons, this Court declares
that the State violated articles 8(1) and 25(1) of the Convention to the detriment
of the relatives of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy,
Julio Milciades Cerón Gómez, Wilian Hamilton Cerón Rojas, Edebraes Norverto
Cerón Rojas, NN/ Moisés or NN/Moisés Ojeda and Hernán Lizcano Jacanamejoy.
VIII
Application of Article 63(1)
67. The Commission requests that the State be
ordered to make reparation to the families of the victims, pursuant to Article
63(1) of the Convention, through payment of just compensation, and that it
order measures of non-recurrence or of satisfaction. It also requests that Colombia change the armed forces’ rules and
programs to adapt them to the international norms applicable to domestic armed
conflicts. It is also asking that
the State be ordered to pay the costs and expenses incurred by the victims’
relatives to litigate in the domestic courts and before the Commission and
the Court, and the reasonable fees of their attorneys, issues that, according
to the Commission, should be addressed during the reparations phase.
68. The
State, for its part, argues that the formulation of the Commission’s request
is unclear, particular the reference to the deduction of the amounts already
paid in pecuniary damages in the administrative law cases, given that the
relatives of Hernán Javier Cuarán Muchavisoy, Artemio Pantoja Ordóñez, Julio
Milciades Cerón Gómez, Edebraes Norverto Cerón Rojas and Wilian Hamilton Cerón
Rojas filed administrative law suits and the State was ordered to redress
the material and moral damages they suffered as a consequence of the death
of the named persons. In the case
of N.N./Moisés, the State asserts that it will comply with what the Court
orders, based on the evidence tendered in the proceeding.
It adds that the costs incurred in the administrative-law proceedings
were already determined in the two judgments delivered.
On the criminal law side, it explains that there are no costs to reimburse,
as court proceedings are gratis and
the victims’ relatives have not taken specific measures as part of the investigation
underway. As for the costs of the
international proceedings, the State will abide by whatever the Court should
eventually decide. Finally, the State
contends that the Commission’s request seeking amendment of the armed forces’
regulations and programs is not compatible with the Convention’s provisions.
* *
69. The Court believes, pursuant to Article
63(1) of the American Convention, that the State has an obligation to investigate
the facts that caused these violations. Even assuming, for the sake of argument, that domestic problems
make it difficult to establish the identity of the individuals responsible
for crimes of this nature, the relatives of the victims still have a right
to know the full facts of what happened.
70. In
the instant case, the Court must open the reparations phase, to which end
it is authorizing its President to take the necessary measures.
IX
Operative Paragraphs
71. Now therefore,
THE
COURT
unanimously
DECLARES:
1. That the State’s responsibility for the
deaths of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy, Julio
Milciades Cerón Gómez, Wilian Hamilton Cerón Rojas and Edebraes Norberto Cerón
Rojas, corresponding to the violation of Article 4 of the American Convention
on Human Rights, was established in the two definitive judgments delivered
by the Administrative Law Court of the Council of State on December 14, 1993
and January 15, 1996.
DECIDES:
2. That the State is responsible for the
death of N.N./Moisés or N.N./Moisés Ojeda, in violation of Article 4 of the
American Convention on Human Rights.
3. That there is insufficient evidence to
determine whether Hernán Lizcano Jacanamejoy
died in a skirmish or was extrajudicially executed by agents of the
State, in violation of Article 4 of the American Convention on Human Rights.
4. That the State violated, to the detriment
of the relatives of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy,
Julio Milciades Cerón Gómez, Wilian Hamilton Cerón Rojas, Edebraes Norverto
Cerón Rojas, NN/ Moisés or NN/ Moisés Ojeda and Hernán Lizcano Jacanamejoy,
the right to a judicial guarantees and to judicial protection, recognized
in Articles 8(1) and 25(1) of the American Convention on Human Rights.
5. To open the reparations phase, to which
end it commissions its President to duly adopt any measures necessary.
Judges
Cançado Trindade and Pacheco Gómez informed the Court of their Joint Concurring
Opinion; Judges García Ramírez, Salgado Pesantes and Abreu Burelli advised
the Court of their Joint Concurring Opinion, and Judge Barberis informed the
Court of his statement. All three
are attached to this Judgment.
Done
at San José, Costa Rica, on December 6, 2001, in Spanish and English, the
Spanish text being authentic.
Antônio A. Cançado Trindade
President
Máximo Pacheco-Gómez Hernán Salgado-Pesantes
Alirio
Abreu-Burelli Sergio
García-Ramírez
Julio A.
Barberis
Judge ad hoc
Manuel E. Ventura-Robles
Secretary
So
ordered,
Antônio A. Cançado Trindade
President
Manuel E. Ventura-Robles
Secretary