Hernando Osorio Correa v. Colombia, Case 11.727, Report No. 62/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 191 (2000).
HERNANDO OSORIO CORREA
October 3, 2000
On February 26, 1997, the Asociación de Familiares Detenidos y
Desaparecidos of Colombia (ASFADDES: Association of Relatives of the
Disappeared), the Federación Latinoamericana de Asociaciones de Familiares
de Detenidos Desaparecidos (FEDEFAM: Latin American Federation of Relatives
of the Disappeared), the Comisión Colombiana de Juristas (CCJ: Colombian
Commission of Jurists), and the Center for Justice and International Law
(CEJIL) submitted a petition to the Inter-American Commission on Human Rights
(hereinafter the Commission or the IACHR), against
the Republic of Colombia (hereinafter the State) in which it
alleged that members of the National Police arbitrarily detained Hernando
Osorio Correa, and then tortured and executed him on February 16, 1993 in
the city of Barranquilla, department of Atlántico.
Petitioners allege that the body of Hernando Osorio Correa appeared
lifeless and with signs of torture after he was detained by members of the
National Police, and that the State is responsible for the violation of
the rights to life, humane treatment, personal liberty, and judicial protection
set forth at Articles 4, 5, 7, 8(1), and 25 of the American Convention on
Human Rights (hereinafter the American Convention or the
Convention) and that it had failed to perform its obligation to ensure
the rights established in the Convention.
The State argued that the domestic proceedings to clarify the homicide
of Mr. Hernando Osorio Correa are still pending and without resolution.
Accordingly, it asked the Commission to declare the case inadmissible
for failure to exhaust domestic remedies in light of the requirement in
Article 46(1)(a) of the Convention.
In response, the petitioners alleged that the case fits within the
exceptions to the exhaustion requirement in Article 46(2) of the American
Convention, since the clarification of the facts of the case and the trial
of the agents involved, which first took place before the military criminal
courts, have been subject to unwarranted delay.
Based on the analysis of the parties positions, the Commission
concluded that it is competent to examine the petitioners claim, and
that the case is admissible pursuant to the provisions of Articles 46 and
47 of the American Convention.
PROCESSING BEFORE THE COMMISSION
On March 3, 1997, the Commission opened the case under number 11.727,
and transmitted the pertinent parts of the petition to the State, giving
it 90 days to submit information.
Once the period had expired, the Commission reiterated its request
to the State. The State submitted
its response on September 22, 1998; the pertinent parts thereof were transmitted
to the petitioners. The petitioners
submitted their observations on April 11, 2000, which were duly transmitted
to the State, which had 30 days to submit its response.
On May 15, 2000, the State requested an extension, which was duly
granted by the Commission. On
June 16, 2000, the State submitted its response.
THE PARTIES POSITIONS
Position of the petitioners
The version of the facts submitted by the petitioners indicates that
on February 16, 1993, at approximately 3 p.m., several agents of the National
Police, Atlántico Division, thwarted an assault at the Banco de Occidente
branch in downtown Barranquilla. During
the operation, Mr. Hernando Osorio Correa was wounded; petitioners allege
that he was traveling through the area.
Mr. Osorio Correa was assisted by a passer-by who took him in a pick-up
truck to the Clínica Caribe of Barranquilla.
Petitioners allege that just as they were about to enter the hospital,
Hernando Osorio Correa was stopped by several members of the National Police
who placed him in an official vehicle in the presence of several witnesses
and several journalists, who took photos of him at the time of his detention.
Mrs. Heidy Lucía Pérez, the lifetime companion of the alleged victim,
and his sister María Elizabeth Correa, went out in search of Mr. Osorio
Correa once they learned he was wounded.
The petitioners allege that both women were detained for seven hours
by agents of the National Police in civilian dress who questioned them about
the activities of an alleged gang called los nicaragüenses
(the Nicaraguans). One
of the agents assured María Elizabeth that her brother was wounded but out
of danger. The next day, Hernando Osorio Correa was found dead with his
hands and feet bound, visible signs of torture, and gunshot wounds.
The petitioners allege that state agents tortured and executed the
alleged victim while he was in their custody and defenseless; accordingly,
they ask that the State be found responsible for violations of Articles
4, 5, and 7 of the American Convention.
As regards clarifying the facts in this homicide in the domestic
jurisdiction, the petitioners note that on February 18, 1993, Hernando Osorio
Correas mother filed a criminal complaint before the departmental
office of the Technical Investigative Corps, Judicial Police Unit No. 1,
of Barranquilla. Three months later, in May 1993, the investigation was
remitted to Court Nº 85 of Military Criminal Investigation.
On January 2, 1996, almost three years after the fact, Court 85 of
Military Criminal Investigation decided to open formally the criminal investigation,
and on March 26, 1997, it made its decision on the involvement of police
agent José Vicente Ovalle Fernández, refraining from ordering his detention.
On September 5, 1997, the military courts decided to return the investigation
to the regular courts. On March
31, 2000, the First Circuit Court of Barranquilla handed down a judgment
in the first instance in which it acquitted Willman Jiménez Vásquez, Alvaro
José Florián López, and Gonzalo Acevedo Doza for the homicide of Mr. Osorio
Correa; this decision was appealed by the prosecutor to the Superior Court,
where it is still pending.
The petitioners consider that the State has failed to carry out its
duty to investigate, prosecute, and punish the persons responsible for the
detention, torture, and execution of Mr. Hernando Osorio Correa, pursuant
to the standards of the American Convention.
They indicate that the investigation of the crime, committed more
than seven years ago, lasted beyond what is reasonable, without having clarified
the circumstances of the torture and execution of the victim and without
a firm judgment against the perpetrators.
They also argue that during the investigative stage before the military
criminal courts the State denied the victim and his family members the right
to an impartial and independent trial pursuant to Articles 8(1) and 25 of
With respect to the States arguments (see infra)
on failure to meet the admissibility requirement of prior exhaustion of
domestic remedies set forth in the American Convention, the petitioners
consider that this case fits within the exceptions provided for at Article
46(2)(c) thereof. They
contend that clarifying the facts of the case and prosecuting the agents
involved, which were initially under the military criminal courts, have
been subject to an unwarranted delay of over seven years, four of which
under a jurisdiction that does not meet the requirements of independence
and impartiality demanded by the Convention.
In this regard, they noted that
the time the complaint was submitted to the Commission (February 26, 1997),
the victims family members did not have a suitable and effective remedy
to protect them in the face of the human rights violations to which Hernando
Osorio Correa was subjected. At
that time the investigation was under the military jurisdiction, which in
addition to being called into question for the reasons set forth above,
proved ineffective for protecting them in this particular case.
petitioners argue that even though in their initial petition they invoked
the exceptions to the requirement that domestic remedies be exhausted, the
State failed to respond thereto in a timely fashion, and merely reiterated
that the remedies were being pursued consistent with domestic legislation.
The States position
The State argued that the judicial investigation into the death of
the alleged victim is pending resolution, and that therefore the petitioners
had not satisfied the requirement of prior exhaustion of domestic remedies
provided for in Article 46(1)(a) of the American Convention.
In its communication of June 6, 2000, the State expressed that major
decisions in determining the persons responsible had been taken in
the criminal proceedings under way in the domestic jurisdiction.
Concretely, it indicated that the prosecutor handling the case, acting
as a party to the proceedings during the trial stage, asked the First Criminal
Court for the Barranquilla Circuit to find the accused guilty.
It also indicated that the accused were acquitted and that in response
the Office of the Public Prosecutor filed an appeal in which a decision
is still pending.
With respect to the fact that the case was initially investigated
by the military criminal courts, the State noted that one should
positive value to the removal of the criminal investigation to the regular
courts at the initiative of the military criminal courts.
This undoubtedly shows the will of the State to investigate and punish
human rights violations.
As regards the alleged delay in justice, the State was of the view
that under the case-law of the Inter-American Court, the conduct of the
victims representatives is a fundamental element to be considered
when determining the reasonableness of the time it takes to complete an
internal investigation. In
this respect, it alleged that the victims family members had not filed
an appearance as a civil party, and had not collaborated in the proceedings
through the valuable powers granted them by law.
The State also reported that
disciplinary investigation N 015-145983 had begun against several
agents of the National Police. This
investigation culminated with the declaration that such action had prescribed
on March 25, 1998. Case 140-0065-96,
which was continuing against other persons alleged to be implicated in the
homicide of Mr. Hernando Osorio Correa, was also archived by order of April
8, 1999 due to prescription of the disciplinary action.
The State refrained from making observations on the facts alleged
by the petitioners in relation to the merits.
In this regard, it stated that this abstention, based on the lack
of a firm judgment in the domestic jurisdiction, was not equivalent to acceptance
of the version of the facts set forth in the petition.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
Competence of the Commission
The Commission is competent prima
facie to examine the claim submitted by petitioner.
The facts alleged affected a natural person who was under the jurisdiction
of the State at the time of the facts, which took place when the obligation
to respect and guarantee the rights established in the Convention was already
in force for it.
The Commission shall now analyze whether this case meets the requirements
established at Articles 46 and 47 of the American Convention.
Exhaustion of domestic remedies and time for submitting the petition
The State has asked the Commission to declare this case inadmissible
on the grounds that domestic remedies are pending.
The petitioners, for their part, have alleged that the investigation
undertaken to clarify the death of Hernando Osorio Correa is still pending,
and that it has been drawn out unreasonably. Accordingly, they have asked
that the case be declared admissible pursuant to the exceptions established
in Article 46(2) of the American Convention.
Article 46(2) of the Convention provides that the requirement of
prior exhaustion of domestic remedies is not applicable when:
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have allegedly
b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.
As the Inter-American Court has established, whenever a State alleges
the failure by the petitioner to exhaust domestic remedies, it has the burden
of showing that the remedies that have not been exhausted are adequate
to cure the violation alleged, i.e. that the function of those remedies
within the domestic legal system is suitable to address an infringement
of a legal right.
The Commission has repeatedly stated its views that the military
jurisdiction does not constitute an appropriate forum and therefore does
not offer an adequate remedy to investigate, prosecute, and punish violations
of the human rights set forth in the American Convention allegedly committed
by state agents or with their collaboration or acquiescence.
In addition, the Inter-American Court has recently confirmed that
the military justice system is an adequate forum only for trying members
of the military for committing greater or lesser offenses which, by their
nature, violate legally protected interests particular to the military order.
The Commission observes that in this matter, the case was before
the military jurisdiction for four years, and therefore the victims
family members were deprived during that time of an adequate remedy for
the investigation, prosecution, and punishment of the conduct alleged in
With respect to the justification for the delay based on the alleged
lack of procedural activity by the victims family members, the Commission
should note that whenever there is an investigation of a crime that can
be prosecuted by the State on its own initiative, the State has the obligation
to move the criminal process forward to its ultimate consequences.
In these cases, one cannot demand that the victim or his or her family
members assume the task of exhausting domestic remedies when it is up to
the State to investigate the facts and punish the persons responsible as
part of its obligation to maintain public order.
With respect to the procedural activity of the State organs, the
Commission notes that the formal initiation of the investigation before
the military courts occurred more than three years after the facts, and
that on September 5, 1997, it was decided to remove the investigation to
the regular justice system, where a final decision is still awaited.
As a general rule, a criminal investigation should be carried out
promptly to protect the interests of the victims, preserve the evidence,
and even safeguard the rights of all persons considered suspects in the
context of the investigation. As
the Inter-American Court has noted, while every criminal investigation must
meet a series of legal requirements, the rule of prior exhaustion of domestic
remedies should not lead international action on behalf of the victims to
come to a halt or to be delayed to the point of being rendered ineffective. Therefore, given the characteristics of this case,
the Commission considers that the exception provided for in Article 46(2)(c)
of the American Convention applies in relation to the alleged violation
of the right to life and personal liberty of Hernando Osorio Correa, thus
the requirements set forth in the American Convention regarding exhaustion
of domestic remedies, and, accordingly, the six-month time requirement for
submitting the petition, do not apply.
With respect to the alleged violations of the right to personal liberty
of Heidy Lucía Pérez and María Elizabeth Correa, petitioners did not submit
information on the exhaustion of domestic remedies, thus the Commission
declares these claims inadmissible under Articles 46(1)(a) and 47(a) of
Invoking the exceptions to the rule on the exhaustion of domestic
remedies provided for at Article 46(2) of the Convention is closely linked
to the determination of possible violations to certain rights set forth
therein, such as guarantees of access to justice.
Nonetheless, Article 46(2), by its nature and purpose, is a provision
that has content of its own, independent of the substantive provisions of
the Convention. Therefore,
the determination as to whether the exceptions to the rule of exhaustion
of domestic remedies provided for in sub-sections (a), (b), and (c) of Article
46(2) are applicable to the case in question should be made first and separate
from the analysis of the merits, since it depends on a standard of appreciation
different from that used to determine violations of Articles 8 and 25 of
the Convention. It should be
clarified that the causes and effects that impeded the exhaustion of domestic
remedies will be analyzed, where pertinent, in the Report adopted by the
IACHR on the merits in order to determine whether there have been violations
of the American Convention.
Duplication of procedures and res
It does not appear from the record that the subject matter of the
petition is pending before any other international procedure for settlement,
nor that it reproduces a petition already examined by this or any other
international organ. Therefore,
the requirements set forth at Articles 46(1)(c) and 47(d) of the Convention
have been met.
Characterization of the facts alleged
The Commission considers that the petitioners allegations regarding
the alleged violations of the rights to life, humane treatment, and personal
liberty of Mr. Osorio Correa, as well as the delay in the investigation
and the failure to effectively prosecute or punish the persons responsible,
state facts that tend to establish a violation of the rights guaranteed
at Articles 4, 5, 7, 8, and 25, in conjunction with Article 1(1), of the
American Convention. The Commission
considers that the requirements established at Articles 47(b) and (c) of
the American Convention have been met.
The Commission considers that it is competent to examine the claim
submitted by the petitioners and that the case is admissible, in keeping
with the requirements established in Articles 46 and 47 of the American
Based on the arguments of fact and law set forth above, and without
prejudging on the merits,
THE INTER-AMERICAN COMMISSION ON
To declare this case admissible with respect to the alleged violation
of Articles 4, 5, 7, 8(1), 25, and 1(1) of the American Convention, to the
detriment of Hernando Osorio Correa.
To declare inadmissible the claim with respect to the alleged violation
of Article 7 of the American Convention, to the detriment of Heidi Lucía
Pérez and María Elizabeth Correa.
To give notice of this decision to the Colombian State and the petitioner.
To continue to analyze the merits.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed in the city of Washington, D.C., October 3, 2000. (Signed:) Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan E. Méndez, Second Vice-Chairman; Marta Altolaguirre, Robert K. Goldman, Peter Laurie, Julio Prado Vallejo, Commissioners.
 In some local newspapers such as El Heraldo and
La Libertad, reference was made to the detention of Hernando
Osorio Correa, and he was depicted as one of the criminals wounded in
the bank robbery.
 Communication from petitioners, April 11, 2000, p.3.
 Note EE/DH 049082 of the General Bureau for Special
Matters of the Ministry of Foreign Affairs, September 22, 1998.
Note EE 1205 of the General Bureau for Special Matters of the
Ministry of Foreign Affairs, June 16, 2000.
 Note EE 1205 of the General Bureau for Special Matters
of the Ministry of Foreign Affairs of June 16, 2000.
 Colombia ratified the American Convention on Human Rights
on July 31, 1973.
 Inter-American Court of Human Rights, Case of Velásquez
Rodríguez, Judgment of July 29, 1988, para. 63.
 IACHR, Third Report on the Human Rights Situation in
Colombia (1999), p. 175; Second Report on the Situation of Human Rights
in Colombia (1993), p. 246; Report on the Situation of Human Rights
in Brazil (1997), pp. 40-42.
 Inter-American Court of Human Rights, Case of Durand
y Ugarte, Judgment of August 16, 2000, para. 117.
 Inter-American Court of Human Rights, Case of Velásquez
Rodríquez, Preliminary Objections, Judgment of June 26, 1987, para.