James Zapata Valencia and Jose Heriberto Ramirez Llanos v. Colombia, Case 10.916, Report Nº 100/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 198 (1999).
JAMES ZAPATA VALENCIA and JOSÉ HERIBERTO RAMÍREZ LLANOS
September 27, 1999
On July 16, 1991, the Colombian Commission of Jurists (hereinafter
"the petitioners") submitted a petition against the Republic of
Colombia (hereinafter "the State" or "the Colombian State")
alleging violations of Articles 7 and 8 of the American Convention on Human
Rights (hereinafter the "Convention" or the "American Convention")
and subsequently of Articles 4, 5, and 25, to the detriment of James Zapata
Valencia and José Heriberto Ramírez Llanos (hereinafter "the victims").
Petitioners alleged that the victims were detained and disappeared
on March 22, 1988 by individuals who identified themselves as members of the
F-2 intelligence group of the National Police.
Later, they noted that the alleged victims re-appeared dead and with
signs of torture, in violation of Articles 4 and 5 of the American Convention.
Petitioners argue that the corresponding investigation, which has been ongoing
for more than 10 years, has failed to be effective, and they argue that the
Colombian State is in breach of its obligation to respect and guarantee the
rights protected in the American Convention.
The State alleges that domestic remedies have not been exhausted and
that the case is therefore inadmissible.
As for the considerations on the merits, it argues that it has not
been judicially proven that State agents participated in the violations alleged.
Based on its analysis of the allegations of fact and law, the Commission
concluded that it was competent to hear the claim and that the case meets
the requirements established at Article 47 of the American Convention.
In addition, it decided to defer its decision on the issue of compliance
with the requirements of Article 46 until its decision on the alleged violations
of Articles 8 and 25, along with the merits.
PROCESSING BEFORE THE COMMISSION
On July 23, 1991, the Commission opened Case
N° 10916 and forwarded the pertinent parts of the petition to the State,
giving it 90 days to submit information.
The State submitted its answer on October 31, 1991.
On January 21, 1992, the petitioners submitted the corresponding observations,
whose pertinent parts were forwarded to the State.
On March 6, 1992, the State submitted new observations.
The petitioners submitted additional information on July 13, 1993,
and on June 16, 1994.
The State submitted its observations by note of November 15, 1994.
The petitioner submitted additional observations on February 3, November
23, and December 15, 1996.
On October 17, 1996, the Commission placed itself at the disposal of
the parties to reach a friendly settlement.
On November 19, the State requested an extension for submitting its
answer, which was granted.
By communication of December 15, the petitioners formulated a series
of considerations on the measures which should, in their view, be adopted
to make a friendly settlement possible.
On January 2, 1997, the State expressed that "for the time being,
it would not appear viable to begin to pursue a friendly settlement, considering
that the criminal investigation has yet to conclude."
A commitment was made, however, to request that the record be forwarded
to the human rights unit of the Office of the Public Prosecutor, "as
a display of its determination to address impunity."
On January 15, 1997, it submitted further information that sets down
in writing the interest of the Office of the Public Prosecutor (Fiscalía
General) to "make an effort to reach a friendly settlement that would
be translated into the assignment of the criminal investigation already under
way in this case to the Human Rights Unit of the Office of the Public Prosecutor,
which would be understood by the Commission ... as reflecting a positive attitude
aimed at giving judicial impetus to the case."
The Commission called the parties to a hearing, which was held on March
6, 1997. On March 7, 1997, the Commission turned to the State to request that
it adopt a series of measures to support the work of the Human Rights Unit
of the Office of the Public Prosecutor in its investigation of this case,
in the context of possibly initiating a friendly settlement process.
On August 4, 1997, the State forwarded the Commission a copy of the
decision from the Council of State, Contentious-Administrative Chamber, Third
Section, which declared that the action for damages brought by the relatives
of Mr. James Zapata Valencia was time-barred.
By note of October 7, 1997, during the 97th session, the petitioners
requested that the Commission consider the attempt to reach a friendly settlement
of the matter to have concluded, since the "criminal investigations [..]
continue as initially alleged."
On April 23, 1999, at the request of the Commission, petitioners submitted
additional information on the case, which was duly forwarded to the State
for its observations.
POSITIONS OF THE PARTIES
The position of the petitioners
As for the factual allegations, the petitioners argue that on March
22, 1988, the victims were detained while having lunch at the “La Basconia”
restaurant in the city of Manizales, department of Caldas, where they were
last seen alive.
They allege that according to witness statements, the individuals who
detained them identified themselves as members of the F-2 intelligence group
of the National Police (hereinafter "F-2").
They point out that the alleged victims had been subject to acts of
intimidation by members of the National Army and of the F-2 for having belonged
to the M-19 guerrilla movement. Messrs. Zapata Valencia and Ramírez Llanos
returned to civilian life in 1986, having availed themselves of the general
pardon granted by the State in 1985.
On March 25, three days after this incident, the newspaper La Patria
published a news item on the finding of two unidentified corpses at the “Taparca”
farm, in the neighboring municipality of Palestina.
The family members of James Zapata identified the victims based on
the published photography, and took the initiative to prompt the investigation.
The petitioner note that later, National Police agents Néstor Martínez,
Oscar Gutiérrez Giraldo, and Jorge Enrique García were implicated in the criminal
case based on photo identification by one of the eyewitnesses.
Nonetheless, immediately after the preliminary inquiry, and without
taking any more evidence, the Public Order Judge of Medellín ordered that
these police officers be released.
Petitioners allege that for more than four years the investigation
was under the Public Order jurisdiction (known as “Regional Justice”), with
no criminal charges filed, and without any result.
In October 1993, the Regional Prosecutor of Medellín requested that
the investigation of the case be closed due to lack of evidence and merit.
On September 5, 1994, however, the Regional Prosecutor of Medellín
decided to re-open the preliminary inquiry stage.
Petitioners allege that this decision brought the investigation back
to square one, and that the evidence brought forward through the efforts of
the victims' next-of-kin was given no consideration whatsoever.
The petitioners allege that the fact that the State has decided to
transfer the investigation to the Human Rights Unit as "an effort to
address impunity" constitutes recognition of State responsibility for
a violation of Article 25 of the American Convention.
As regards the disciplinary and contentious-administrative proceedings,
they note that on August 9, 1993, the Office of the Procurator General of
the Nation (Procuraduría General de la Nación) declared that the disciplinary
proceeding was barred by statute of limitations, once the evidence on behalf
of the agents investigated was presented, without any new evidence having
On April 14, 1994, the Third Section, Administrative-Contentious Chamber,
of the Council of State affirmed that the contentious-administrative claim
brought by the relatives of James Zapata Valencia was time-barred.
In brief, the petitioners allege that on March 22, 1988, State agents
perpetrated the forced disappearance and extrajudicial execution of Messrs.
Zapata Valencia and Ramírez Llanos, in violation of Articles 4, 5, 7, and
8 of the American Convention.
They also consider the delay and lack of effectiveness displayed in
the investigation undertaken to amount to a violation of Article 25 of the
As for the admissibility of this case, the petitioners allege that
there has been an unjustified delay in furthering the investigation, which
has precluded the effectiveness of domestic remedies as a means of clarifying
the facts and trying those responsible.
They argue that the exception to the exhaustion requirement provided
for at Article 46(2)(c) of the American Convention is applicable to the case,
given the time that has transpired as from the alleged violation of the right
to life, without any formal charges being made.
They note that even though the investigation was transferred to the
Human Rights Unit in January 1997, it continues to be in its preliminary stage.
The position of the State
The State argues that domestic remedies have yet to be exhausted.
The State reported that in March 1992 the Public Order Court of Medellín
ordered the formal criminal proceeding be initiated and called on five of
the persons allegedly involved to come forward, yet they failed to do so.
Consequently, arrest warrants were issued for them.
In addition, it was reported that on September 5, 1994, the Regional
Office of the Public Prosecutor for Medellín issued a ruling limiting the
investigation, benefiting defendants Néstor Martínez, Oscar Gutiérrez, and
Jorge García, since the statements by the eyewitnesses led to the conclusion
that these persons were not involved.
The State argues that the individuals identified by the persons who
participated in the photo identification were different from those alleged
to be responsible.
In January 1997, the investigation was transferred to the Human Rights
Unit of the Office of the General Prosecutor of the Nation, and the
Delegate Procurator for the Public Ministry
(Procuraduría Delegada para el Ministerio Público) ordered that special
agency 4831 be constituted to clarify the case.
As regards the alleged violation of the right to life, the State argues
that it has not been shown in any domestic court that its agents have participated
in the alleged disappearance.
In its opinion, the fact that the persons who allegedly detained Zapata
Valencia and Ramírez Llanos claimed to be members of the F-2 does not necessarily
mean that they were police officers.
It notes that this is a strategy commonly used by criminal bands for
the purpose of preventing their victims from putting up resistance.
ANALYSIS ON JURISDICTION AND ADMISSIBILITY
Jurisdiction of the Commission
The Commission has jurisdiction to examine the petition under study.
The facts alleged took place under the jurisdiction of the State when
the obligation to respect and ensure the rights established in the Convention
were already in force for the Colombian State.
The Commission will now analyze whether the requirements set forth
in Articles 46 and 47 of the American Convention have been met.
Requirements for the admissibility of a petition
Exhaustion of domestic remedies and timeliness
The State alleged that the case is inadmissible because domestic remedies
have yet to be exhausted, specifically the criminal process.
Petitioners argue that domestic remedies have been ineffective and
that the examination of the case by the domestic courts falls within the exception
provided for at Article 46(2)(c) of the Convention.
In their view the State has failed to provide adequate judicial protection,
or to ensure access to justice for the next-of-kin of the victims, within
a reasonable time, as required by Articles 8 and 25 of the Convention.
The Commission considers that in this case the requirement of exhaustion
of domestic remedies is closely linked to the merits.
In this respect, the Inter-American Court of Human Rights (hereinafter
"the Court") has noted that
certain exceptions to the rule of non-exhaustion of domestic remedies are
invoked, such as the ineffectiveness of such remedies or the lack of due process
of law, not only is it contended that the victim is under no obligation to
pursue such remedies, but, indirectly, the State in question is also charged
with a new violation of the obligations assumed under the Convention.
Thus, the question of domestic remedies is closely tied to the merits
of the case.
Given the characteristics of the issues under study, the Commission
has decided to defer its decision as to whether the exception provided for
in Article 46(2)(c) is applicable to the present case until its pronouncement
on the merits, particularly with respect to the judicial protection afforded
by the State in this case.
As regards the requirement related to the deadline for submitting the
claim, the Commission considers that it is linked to the exhaustion of domestic
remedies. Therefore, the determination as to whether the deadline established
in Article 46(1)(b) of the American Convention applies in this case must also
Duplication of proceedings and res
The Commission understands that the subject of the petition is not
pending before another international proceeding for settlement, nor is it
the same or substantially the same as a petition already examined by this
or another international body.
Therefore, the requirements established in Articles 46(1)(c) and 47(d)
are also met.
Characterization of the facts alleged
The Commission considers that the allegations of the petitioners refer
to facts which, if proven, would constitute a colorable claim of violation
of the rights protected in Articles 4, 5, 7, 8 and 25 of the American Convention.
As the petition is not manifestly groundless or out of order, the Commission
considers the requirements established in Articles 47(b) and (c) to have been
The Commission concludes that it has jurisdiction to hear this case,
and that it is admissible, pursuant to Article 47 of the Convention.
In addition, it decides to defer its decision on the issue of whether
the requirements of Article 46 are met until it issues its opinion on the
alleged violations of Articles 8 and 25, along with the merits.
Based on the arguments of fact and law set forth above, and without
pre-judging on the merits,
THE INTER-AMERICAN COMMISSION ON
To declare this case admissible.
To send this Report to the Colombian State and to the petitioner.
To continue with the analysis of the merits.
To place itself at the disposal of the parties, once again, with a
view to reaching a friendly settlement based on respect for the rights protected
in the American Convention, and to invite them to make a statement on this
To publish this decision and include it in its Annual Report to the
General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., September 27, 1999. (Signed):
Robert K. Goldman, Chairman; Hélio Bicudo, First Vice-Chairman; Claudio
Grossman, Second Vice-Chairman; Jean Joseph Exumé, and Carlos Ayala Corao,
* Commissioner Alvaro Tirado Mejía, of Colombian nationality, did not participate in the discussion and decision of this Report, pursuant to the provision of Article 19(2)(a) of the Commission's Regulations.
should consider, as a necessary condition, acknowledgment of State responsibility;
(2) adoption by the State of measures to guarantee fair compensation to
the relatives of the two youths for the pain and suffering caused them
by the disappearance and later execution; (3) measures to guarantee that
impunity be overcome and that make it viable to prosecute and punish the
perpetrators of the crimes committed against James Zapata and Heriberto
Ramírez; (4) finally, that it consider including the creation of a mechanism
to adequately monitor the measures adopted...."
Communication from the petitioners of December 15, 1996.
from the Director General for Special Affairs (e) of January 2, 1997.
from the Director General for Special Affairs of January 15, 1997.
The Commission specifically requested: (1) the designation of additional
Public Ministry agents for cases being processed by the Human Rights Unit;
(2) support for the security agencies; (3) the cooperation of the Office
of the Procurator General of the Nation (Procuraduría
General de la Nación) in evaluating the evidentiary elements that
make it possible to clarify the facts and punish the persons responsible.
Petitioner alleged that only one of the Commission's recommendations had
been adopted--support for the security agencies--and that there was no
information on the effective designation of special agents from the Public
from petitioner of October 7, 1997.
The request and the response by the Administration are in the record before
Communication of October 31, 1991, from the Director General of Public
Affairs of the Ministry of Foreign Relations, Republic of Colombia.
Colombia ratified the American Convention on Human Rights on July 31,
I/A Court HR, Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, para. 91.