REPORT N° 7/07[1]
PETITION 474-03
ADMISSIBILITY
OSWALDO JOSÉ COLMENARES MÚJICA ET AL.
VENEZUELA
February 28, 2007


I. SUMMARY

1. On June 26, 2003, the Inter-Commission on Human Rights (hereinafter “the Commission” or the “IACHR”) received a petition filed by Marisol del Carmen Mújica (hereinafter "the petitioner") assisted by Mr. Luís Aguilera, General Secretary of the Human Rights, Justice, and Peace Commission of Aragua State (hereinafter the “petitioner’s representative"), on behalf of Mrs. Mújica’s son, Oswaldo José Colmenares Mújica (deceased), Mrs. Mújica herself and her daughter Mayerling del Carmen Colmenares, alleging responsibility on the part of the Bolivarian Republic of Venezuela (hereinafter "the State” or “the Venezuelan State”) for the extrajudicial execution of 17-year-old Oswaldo José Colmenares Mújica on June 6, 2002 and acts of harassment against the other members of the Mújica Colmenares family identified in this paragraph.

2. The petitioner and her representative maintain that the facts reported constitute violations of various provisions of the American Convention on Human Rights (hereinafter the "American Convention"): the right to life (Article 4), the right to humane treatment (Article 5), the right to a fair trial (Article 8) and the right to judicial protection (Article 25), consistent with the general obligation provided under Article 1(1) of that instrument.

3. As of the date of this report, the State has not submitted observations regarding the admissibility of this petition.

4. After analyzing the positions of the parties, the Commission concluded that it was competent to rule on the complaint submitted by the alleged victims and that the case was admissible in the light of Articles 46 and 47 of the American Convention. Consequently, the Commission decided to notify the parties, to make this Admissibility Report public, and to include it in its Annual Report.

II. PROCESSING BY THE COMMISSION

A. Petition

5. On June 26, 2003, the Commission received a petition submitted by Mrs. Marisol del Carmen Mújica and her representative, Mr. Luís Aguilera, General Secretary of the Human Rights, Justice, and Peace Commission of Aragua State, representing the deceased minor child Oswaldo José Colmenares Mújica and members of his family, Marisol del Carmen Mújica (mother) and Mayerling del Carmen Colmenares (sister), and proceeded to enter the petition as number P-474/03.

6. On May 17, 2006, the IACHR sent the relevant sections of that petition to the State in accordance with Article 30(2) of the Rules of Procedure of the IACHR, allowing a period of two months for the State to submit its observations.

7. As of the date of this report, the Commission had not received any response from the State regarding the petition.

III. POSITIONS OF THE PARTIES

A. The Petitioners

8. The petitioner and her representative assert that on June 6, 2002 at approximately 10:30 a.m., the officers of the Aragua police force executed the 17-year-old minor, Oswaldo José Colmenares Mújica, in an area nearby his residence. As noted in the case file, at that time the young Colmenares was sitting down in the company of three other citizens “when they were approached by a Police Squad belonging to the Security Force of San Mateo Police Headquarters, Aragua State, made up of the officers, STGDO Miguel Ángel Ojeda and first Corporal Ochoa Simón, from the LUV-206 unit.” The petition states that when the young men saw these officers, they dispersed and started to run away, the adolescent Oswaldo José Colmenares Mújica entered a wooded area in the upper section of the Sector, and was pursued by Officer Miguel Ángel Ojeda. The petitioners report that this officer caught up with the adolescent in the upper section of the area and shot him with his regulation weapon in the upper part of the leg. The young man asked him not to shoot because he was already wounded. The petition states that despite this and even though the young man had already submitted and was defenseless, the officer fired three more times at Oswaldo José Colmenares Mújica, hitting him in various parts of the body and causing almost instantaneous death. The petitioners report that subsequently the police placed a revolver type firearm at the site of the occurrence in an effort to justify the action based on a supposed confrontation with a victim who was resisting arrest.

9. In response, his mother, the petitioner Marisol del Carmen Mújica, began proceedings before the Investigations Corps, a police report and on-site inspection having been recorded on the same day. The petition reports that on November 12, 2002, the Scientific, Penal, and Criminal Investigations Corps sent the procedural record for file G-011-197 to the Eight Prosecutor’s Office; it was later forwarded to the 15th Prosecutor’s Office of the Judicial District of Aragua State with jurisdiction over minors, which accepted the file on January 29, 2002. The petitioners report that the file stayed with the latter Prosecutor’s Office for one year and eight months without any final proceeding before the Supervisory Court.

10. The petition states that in July 2003 Mayerling del Carmen Colmenares, daughter of the petitioner, along with their representative, Mr. Aguilera, went to the offices of the 15th Prosecutor’s Office of the Public Prosecutor’s Office in order to review the status of the case relating to the death of Oswaldo José Colmenares Mújica. The petition alleges that at that time the Public Prosecutor’s Office denied Mayerling del Carmen Colmenares and her representative the opportunity to read the file, arguing that it considered the only victim in the case to be the petitioner, the mother of the deceased. The petitioner reports that the file before the 15th Prosecutor’s Office shows that on June 19, 2002 she assigned to Mr. Aguilera the defense of her rights and interest in acting in the case relating to the death of her son Oswaldo Colmenares.

11. In addition, the petition indicates that on July 29, 2003 the petitioner and her representative filed a complaint with the Aragua State Superior Prosecutor’s Office and the Attorney General of the Republic because they had been denied review of the file, denouncing as well the partiality of the 15th Prosecutor of the Judicial District of Aragua State. In the complaint, they sought disqualification of the Prosecutor based on the belief that his actions were negligent given that as of August 2003 the necessary steps had not been taken to order the accused, who had been summoned five times, to appear to make a statement.

12. On August 17, 2004, after one year and eight months, the 15th Prosecutor of the Aragua State Public Prosecutor’s Office sought to prosecute Miguel Ángel Ojeda for committing the crimes of Qualified Homicide as provided and sanctioned under Article 408(1) of the Venezuelan Penal Code, to the detriment of the adolescent Oswaldo José Colmenares Mújica, simulation of a punishable offense, under Article 240 of the same code, to the detriment of the administration of justice, and improper use of a firearm, under Article 282 of the same case to the detriment of the public order, and the opening of the oral and public proceeding was declared. The petitioner and her representative complain that the oral hearing was postponed on three occasions and was finally held six months after the opening of the proceeding.

13. A preliminary hearing was held on February 23, 2005 during which the First Instance Judge for Criminal Matters of the Aragua State Judicial Circuit “fully allowed” the indictment submitted by the Prosecutor’s Office, and began the criminal trial against the police officer for the crimes of qualified homicide, simulation of a punishable act and improper use of a firearm. They complain, however, that the court did not order preventive detention of the accused nor that he be separated from his position, because it felt that “the defense and the accused himself have always been available for the proceeding and have appeared in response to summons issued by the State.” They report that the Judge imposed a preventive measure that consisted of the accused’s submitting to control and surveillance, reporting on work done, and appearing every 30 days.

14. They report that, after the preliminary hearing, they were informed on March 9, 2005 that the case was assigned the name N. 4C-4895-04 and referred to the Third Trial Court of Judge Carina Gimon, who ceased to hear the case because she had been removed from her position as provisional judge. The petitioner and her representative complain that the action of the Third Trial Court has been inefficient in that the selection of the lay members of the mixed court (escabinos) has been postponed six times. The petitioner and her representative maintain that the exception relating to the exhaustion of domestic remedies is applicable in this case because to date, that is, more than four years after the events that are the subject of the complaint, the case remains in an intermediate stage (trial) and those responsible for the death of the young Oswaldo José Colmenares Mújica have not been punished.

15. In addition, the petitioner and her representative state that since the filing of the complaint relating to the death of Oswaldo José Colmenares Mújica in the domestic jurisdiction, she and her family have been subjected to acts of harassment. She states as follows: “from the start of our ordeal to denounce the execution of my son wherever they see us they gesture as if they want to kill us. On March 12, 2003 two pairs of motorcycle police passed by in front of my house; my daughter was on the porch and when they saw her they called her a snitch and gestured at her as if with a pistol indicating they wanted to kill her (illegible); later they went by again with their pistols in hand; thank God, my daughter had shut herself up in the house, but she could see them from the window.”

16. Given the circumstances under which the death of Oswaldo José Colmenares Mújica occurred, the lack of judicial clarification of the events surrounding that death, and subsequent acts of harassment and intimidation against the alleged victims identified in this report, as well as the undue delay in the criminal proceeding, the petitioner and her representative are seeking to have the case declared admissible for alleged violations of the rights to life, humane treatment, a fair trial, and judicial protection contained in Articles 4, 5, 8 and 25, consistent with the obligations under Article 1(1) of the American Convention.

B. The State

17. The Commission has not received a response from the State regarding the admissibility of the petition despite having been duly notified.

IV. ANALYSIS OF COMPETENCE AND ADMISSIBILITY

A. Preliminary issues