Río Frío Massacre v. Colombia, Case 11.654, Report No. 62/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 758 (2000).
REPORT
Nº 62/01
CASE 11.654
RIOFRÍO MASSACRE
COLOMBIA
April 6, 2001
I
SUMMARY
1.
On May 20, 1996, the Inter-American Commission on Human Rights (hereinafter
the Commission or the IACHR) received a petition
filed by Corporación Colectivo de Abogados José Alvear Restrepo
(hereinafter the petitioners) against the Republic of Colombia
(hereinafter the State, the State of Colombia, or
Colombia) alleging that on April 7, 1991, members of the army
collaborated with a group of armed plain-clothesmen in the execution of
Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María Cenaida
Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César Ladino Ramírez,
Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario Molina, Rita Edelia
de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy Tusarma Salazar, and
Hugo Cedeño Lozano (hereinafter the victims) in the municipality
of Riofrío, Department of Valle del Cauca, Colombia, and in the concealment
of the massacre.
2.
The petitioners alleged that the State is responsible for violations
of the rights to life, humane treatment, and a fair trial established in
Articles 4, 5, 8, and 25 of the American Convention on Human Rights (hereinafter
the American Convention). The State presented information on
the investigation of the events and the proceedings instituted in domestic
courts (mainly within military jurisdiction) against members of the army
alleged to be responsible. As to the admissibility of the case, the petitioners
alleged that judicial remedies made available by the State do not meet the
standards established in the American Convention with respect to judicial
protection and that therefore the exceptions to the exhaustion of domestic
remedies permitted pursuant to Article 46(2) of the American Convention
apply.
3.
After analyzing the allegations of the parties, the Commission declared
the case admissible and found that the State of Colombia was responsible
for violating the right to life (Article 4) in the cases of Miguel Enrique
Ladino Largo, Miguel Antonio Ladino Ramírez, María Cenaida Ladino Ramírez,
Carmen Emilia Ladino Ramírez, Julio César Ladino Ramírez, Lucely Colorado,
Celso Mario Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina,
and Hugo Cedeño Lozano; the right to life in conjunction with the rights
of the child (Article 19) in the case of Dora Estela Gaviria Ladino and
Luz Edelsy Tusarma Salazar; the right to humane treatment (Article 5) in
the case of Hugo Cedeño Lozano, Miguel Ladino, Cenaida Ladino, Ricardo Molina
Solarte, and Celso Mario Molina Sauza, and the rights to a fair trial and
judicial protection (Articles 8 and 25) in conjunction with Article 1(1)
of the American Convention in the case of the victims and their families.
II.
PROCESSING BY THE COMMISSION
4.
On July 26, 1996, the Commission opened case 11.654 and forwarded the
relevant sections of the complaint to the State of Colombia, granting it a
period of 90-days in which to present information. The State gave its response
on September 26, 1996, and this was duly forwarded to the petitioners. On
December 9, 1996, the petitioners presented their observations, and these
in turn were conveyed to the State.
5.
On March 3, 1997, during the Commissions 95th regular
session, a hearing attended by both parties was held. During the hearing,
the petitioners presented additional information, which was duly forwarded
to the State and the possibility of seeking a friendly settlement was discussed.
6.
On August 7 and October 7, 1997, the petitioners furnished further
information, which was duly forwarded to the State. In a note dated October
15, 1997, the Commission placed itself at the disposal of the parties with
a view to finding a friendly settlement in accordance with Articles 48(1)(f)
of the Convention and Articles 45(1) and (2) of its Regulations.
7.
On October 8, 1997, a second hearing attended by both parties was held
during the Commissions 97th regular session. At the hearing
the petitioners furnished additional information in writing, which was forwarded
to the State of Colombia. On November 11, 1997, the State requested an extension
of 30 days to present its comments, and the extension was granted.
8.
On January 10, 1998, the petitioners gave their response to the Commissions
offer of a possible friendly settlement of the matter and their response was
forwarded to the State. On March 31, 1998, the State requested an extension
in which to prepare its response. The petitioners provided further information
to the Commission that was forwarded to the State of Colombia on September
10, 1998. On September 28, 1998, the State furnished additional information.
On October 7, 1998, the petitioners asked the Commission to consider the attempt
to seek a friendly settlement concluded in light of the States failure
to respond to their proposal.
III.
POSITIONS OF THE PARTIES
A.
Position of the petitioners
9.
The petitioners allege that agents of the State sponsored, permitted,
and covered up with impunity the extrajudicial executions of Miguel Enrique
Ladino Largo, Miguel Antonio Ladino Ramírez, María Cenaida Ladino Ramírez,
Carmen Emilia Ladino Ramírez, Julio César Ladino Ramírez, Lucely Colorado,
Dora Estela Gaviria Ladino, Celso Mario Molina, Rita Edelia de Molina, Ricardo
Molina, Freddy Molina, Luz Edelsy Tusarma Salazar, and Hugo Cedeño Lozano.
10.
Specifically, they allege that on October 5, 1993, at approximately
5:30 in the morning, a group of armed men, some of whom were wearing military
uniforms, appeared in the village of El Bosque, in the district of Portugal
de Piedras, Municipality of Riofrío, Valle del Cauca. When they got
there, they forcibly removed a number of residents from their homes and took
them to the school in the village of San Juan Bosco for questioning
on the whereabouts of the members of armed dissident groups that were supposed
to frequent the area.
11.
They maintain that most of the residents were released, but that the
following individuals, Miguel Enrique Ladino Largo, Miguel Antonio Ladino
Ramírez, María Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio
César Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario
Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy Tusarma
Salazar, and Hugo Cedeño Lozano were taken to the home of Mr. Javier Ladino
at approximately 8:30 a.m. where they were tortured and, at approximately
10:00 a.m. that same day, were executed.
12.
The petitioners allege that the armed men remained in the vicinity
until approximately 10:30 a.m. when members of the Urban Antiterrorist Squad
(PAU) of the Palacé Battalion of the Third Army Brigade arrived. The army
personnel are said to have simulated an armed engagement with the occupants
of the house, who had by then been killed. To accomplish this, they fired
several rounds of bullets and used explosive devices. Immediately afterwards,
they changed the scene of the crime around, moving the bodies and placing
different types of firearms next to the victims.
13.
The petitioners affirm that, after the mock engagement, Lt. Col. Luis
Felipe Becerra Bohórquez, Commander of the Palacé Artillery Battalion, and
Brigadier General Rafael Fernández López, Commander of the Third Brigade,
released a statement through the media, reporting that, as part of operation
Destructor,
Army
units had killed in a skirmish 13 guerrillas known to belong to the Luis
Carlos Cárdenas wing of the self-proclaimed National Liberation Army
(ELN), and had seized weapons. The army suffered no casualties.[1]
The
petitioners are of the view that these statements confirm the intention to
cover up acts perpetrated by illegal groups acting with the consent of agents
of the State.
14.
The petitioners allege that these events constitute violations of the
right to life and humane treatment recognized in Articles 4 and 5 of the American
Convention. Also, at the hearing held during the 95th regular session,
they indicated that these acts contravene the provisions of common Article
3 of the 1949 Geneva Agreements and Article 2 of the Second Additional Protocol
of these Treaties. At that time,
the petitioners also argued that Dora Estela Gaviria Ladino and Luz Edelsy
Tusarma Salazar were minors and that their execution therefore violated Article
19 of the American Convention.
15.
The petitioners also maintain that the State has failed to fulfill
its obligation to offer proper judicial protection to the families of the
victims in accordance with Articles 8 and 25 of the American Convention. In
this regard, they note that, on October 5, 1993, the Criminal Investigation
Unit of the Buga Prosecutors Office removed the bodies and examined
the scene of the crime. The bodies were taken to the Buga Forensic Medicine
facility for autopsies to determine the cause of death.[2].
At the same time, on October 6, 1993, the 106th Military Criminal
Pretrial Court, attached to the Third Brigade, which sits in Bogota, opened
an investigation and established the legal status of those implicated in the
events--Major Eduardo Delgado Carrillo, Lt. Alfonso Vega Garzón, Capt. Leopoldo
Moreno Rincón, Corporal Second Class Alexander Cañizalez Nuñez, and 30 soldiers.
The Court did not impose any security measures against these individuals since
no criminal conduct or cover up was considered to have occurred. The Commander
of the Third Brigade, in his capacity as Judge of First Instance, ordered
that the pretrial proceedings be moved to the 17th Military Criminal
Pretrial Court sitting in the city of Cali. On August 4, 1994, the court issued
preventive cautionary measures against Lt. Col. Becerra Bohórquez on suspicion
of the crime of concealment. On March 30, 1995, the Court officially changed
the preventive cautionary measures to recognizance.
16.
The Cali Prosecutors Office ordered a formal investigation to
begin on November 4, 1994, following which warrants were issued for the arrest
of members of the army[3]
and a civilian, Arturo de Jesús Herrera Saldarriaga. In response, the Third
Army Brigade filed a motion of conflict of jurisdiction, a motion that was
upheld by the Superior Council of the Judiciary on March 30, 1995, on grounds
that the events under investigation were a military matter. Once the proceedings
had been referred to military jurisdiction, on June 29, 1995, the Commander
of the Third Brigade revoked the order for the arrest of Lt. Col. Becerra
Bohórquez, with instructions that the investigation continue.
17.
On July 28, 1995, the Military Criminal Pretrial Court, at the request
of counsel for the defense, changed the charge from multiple homicide to concealment
and accordingly decided to impose recognizance only, and ordered that those
charged be released. On September 4, 1995, the Military Criminal Pretrial
Court closed the investigation.
18.
On September 25, 1995, the agent of the Attorney General's Office (Ministerio
Público) asked that proceedings against all of the military personnel
implicated in the case be dismissed because they were not considered to be
responsible for concealment of a crime. On November 24, 1995, the Commander
of the Third Brigade in his capacity as Judge of First Instance denied the
petition filed by the agent of the Attorney Generals Office. This decision
was appealed by the accused and on November 27, 1996, the Superior Military
Court declared the proceedings null and void because the courts had previously
ordered the investigation closed on grounds that there were serious
gaps in the investigations in the pretrial discovery proceedings.
19.
On July 30, 1997, the 17th Military Criminal Pretrial Court
issued a provisional ruling on the legal status of Lt. Col. Becerra Bohórquez
and Major Delgado Carrillo, ordering that they be held in preventive detention
on suspicion of falsifying public documents in conjunction with charges of
concealment. It did not issue preventive cautionary measures against Lt. Col.
Becerra Bohórquez on the charges of extortion, bribery, and homicide on grounds
that the charges were without merit. This decision was appealed unsuccessfully
by the civil parties to the proceedings.[4]
20.
On October 8, 1998, Lt. Col. Becerra Bohórquez was sentenced by the
Court of First Instance to 12 months of detention for the crime of concealment
but was acquitted of the charges of homicide, extortion, and bribery. Major
Delgado Carrillo was sentenced to nine months of detention for the same crime,
and all charges of concealment against the other accused were dismissed.
21.
On the basis of these proceedings, the petitioners consider that the
State has failed to fulfill its obligation to provide due judicial protection
to the families of the victims in accordance with the standards of the Convention.[5]
They allege that the decision of the Superior Council of the Judiciary to
transfer the investigation of the incident and proceedings against the accused
to military criminal jurisdiction contravenes the Convention and the Commissions
jurisprudence. They therefore request that the present case be declared to
have violated Articles 8 and 25 of the American Convention.
22.
As to the admissibility of the case, the petitioners alleged that the
workings of the domestic justice system have proven ineffective for prosecuting
and punishing those responsible for executing the victims and covering up
the act. Furthermore, they note that the military courts are not an appropriate
forum for investigating the matter and trying those responsible since they
lack the independence and impartiality that are required in accordance with
the guidelines of the Convention.[6]
They therefore requested that the Commission declare the case admissible on
the basis of the exceptions to the exhaustion of domestic remedies requirement
contained in Article 48(2) of the Convention.[7]
B.
The States position
23.
The State produced information on the proceedings conducted through
domestic military criminal jurisdiction, without expressly challenging the
petitioners allegations.[8]
Also, it reported that on December 27, 1993, the Attorney Delegate for the
Defense of Human Rights had begun disciplinary proceedings against members
of the Third Army Brigade in connection with the events in the present case.
24.
In the hearing held during the 95th regular session, the
State indicated that because of the seriousness and importance of the case,
special agents from the Attorney Generals Office (Ministerio Público)
had been dispatched to monitor the investigation and the proceedings against
the accused.
IV.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
A.
Competence
25.
The Commission is competent prima facie to examine the complaint filed by the petitioner. The
alleged facts adversely affected individuals within the States jurisdiction
and they occurred at a time when the State effectively had obligation to respect
and guarantee the rights established in the Convention.[9]
The Commission then turns to determining whether the present case satisfies
the requirements established in Articles 46 and 47 of the American Convention.
B. Admissibility
1.
Exhaustion of domestic remedies and time period for submission
26.
In its communication dated September 16, 1996, the State reported that
the facts of the case were under investigation by the Cali Prosecutors
Office as well as by the military criminal justice system. It also furnished
information on the disciplinary proceedings being conducted by the Attorney
Delegate for the Defense of Human Rights. As noted earlier, the petitioners
alleged that domestic remedies had been inadequate and ineffective in trying
and punishing those responsible for the crime.
27.
According to the positions presented by the parties, the case was initially
investigated by Regional Prosecutors Office in Cali and the military
criminal justice system. However, on March 30, 1995, the Superior Council
of the Judiciary upheld motion on the conflict of jurisdiction filed by the
Third Army Brigade. The matter was therefore investigated by the military
courts and tried before the Third Brigades Council of War, which handed
down a decision of first instance.[10]
The sentence was appealed and reviewed by the Superior Military Court.[11]
28.
The Commission has ruled repeatedly that military jurisdiction is not
an appropriate forum and therefore does not offer adequate remedies for investigating,
prosecuting, and punishing violations of human rights established in the American
Convention, allegedly committed by members of the armed forces or with their
collaboration or acquiescence.[12]
Also, the Inter-American Court recently reaffirmed that this jurisdiction
is a suitable forum only for prosecution of members of the military for the
crimes or misdemeanors that by their very nature pose a threat to judicial
property belonging to the military.[13]
29.
According to the Inter-American Court, whenever a State alleges that
domestic remedies have not been exhausted by the petitioner it bears the burden
of demonstrating that the remedies not exhausted are adequate
enough to rectify the alleged violation, that is that the functioning of such
remedies within the domestic justice system are suitable to address an infringement
of a legal right.[14]
In the present case, the Commission feels that military criminal justice does
not provide a suitable remedy for investigating, prosecuting, and punishing
conduct of the type involved in the instant case, and therefore the requirements
set out in Article 46(1)(a) and (b) do not apply.
30.
Undoubtedly, invoking the exceptions to the rule for exhaustion of
domestic remedies provided for in Article 46(2) of the American Convention
is closely linked to determining possible violations of certain rights established
in the Treaty such as the guarantees of a fair trial and judicial protection.
However, Article 46(2), by its nature and purpose, is a standard that stands
alone vis-à-vis the substantive
standards of the Convention. Therefore, ascertaining whether or not exceptions
to the rule of exhaustion of domestic remedies apply in the instant case has
been carried out previously, separate from the analysis of the alleged violations
of Articles 8 and 25 since it depends on a standard of evaluation other than
the one used to determine violations of substantive provisions of the Convention.
It is important to clarify that the causes and effects that impeded exhaustion
of domestic remedies will be analyzed below in the analysis of the merits
in order to determine whether they effectively constitute violations of the
American Convention.
2.
Duplication of procedures and res judicata
31.
There is nothing in the case file to indicate that the subject of the
petition is pending in another international proceeding for settlement or
that the petition is substantially the same as one previously studied by the
Commission or another international organization. Therefore the requirements
established in Articles 46(1)(c) and 47(d) of the Convention must be considered
to have been fulfilled.
3.
Characterization of the alleged facts
32.
The Commission is of the view that the petitioners allegations
concerning the alleged violations of the rights to life and humane treatment
against the victims, and lack of effective prosecution and punishment of the
guilty parties could be characterized as a violation of the rights recognized
in Articles 4, 5, 8, 19, 25, and 1(1) of the American Convention and therefore
satisfy the requirements contained in Articles 47(b) and (c) of the American
Convention.
C. Conclusions
on competence and admissibility
33.
The Commission considers that it is competent to analyze the petitioners
complaint and that the present case is admissible in accordance with the requirements
established in Articles 46 and 47 of the American Convention.
V.
ANALYSIS OF THE MERITS
34.
The Commission now turns to analyzing alleged points of fact and of
law in order to determine whether the State is responsible for violating the
rights to life, humane treatment, and judicial guarantees and protection against
Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María Cenaida
Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César Ladino Ramírez,
Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario Molina, Rita Edelia
de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy Tusarma Salazar, and
Hugo Cedeño Lozano.
35.
First, the Commission will refer to the questions of fact. In this
regard, it will cover separately the facts surrounding the deaths of the victims,
the perpetration of these events, and their concealment by members of the
army. Second, the Commission will refer to responsibility in the facts proven
and whether they constitute violations of the rights protected under the American
Convention.
A.
Analysis of the facts
1.
The massacre
36.
According to the evidence produced by both parties in the proceedings
held in military criminal jurisdiction and disciplinary jurisdiction, on October
5, 1993, at approximately 5:30 a.m. a group of armed men, some of whom were
wearing military uniforms, appeared in the village of El Bosque, in the district
of Portugal de Piedras, Municipality of Riofrío, Valle del Cauca.
37.
The armed men identified the members of the Ladino and Molina families
and took them to the home of Mr. Javier Ladino. The Commission feels that
the testimony given by Mrs. Aurora de Ladino, who was 75 at the time of the
events and who survived the massacre, should be cited. A summary of her testimony
with respect to the killing of three of the victims, María Cenaida Ladino,
Carmen Emilia Ladino, and Dora Estela Gaviria Ladino, reproduced by the Prosecutor
General of Colombia, is as follows:
She
heard the first shots at 5:00 in the morning. Going into the hall, she found
her daughters lying face down, and she was ordered to do the same. She asserts
that María Cenaida was then beaten. Next, she and her daughters María Cenaida,
Dora Estela, and Carmen and four children were taken into a room. They began
to be taken out one by one. She heard shots and did not see them again. She
says the gunfire lasted from 5:30 a.m. to 11:00 a.m. [
] she said that
she did not see how her sons were taken.[15]
38.
The paramilitary group remained in the vicinity until approximately
10:30 a.m., at which time members of the Third Army Brigade's Palacé Battalion
arrived.
2.
The perpetrators of the crime
39.
The evidence contained in the case file indicates that a group of six
to eleven armed men (hereinafter the paramilitaries), some of
whom were in uniform carried out the execution of the victims. According to
the summary of María Aurora de Ladinos testimony:
As
to the perpetrators, she indicated that she did not know the exact number
but saw approximately six men some in civilian clothes and others dressed
as soldiers
who insulted them verbally and
the only
thing I remember them saying was why did we continue helping the guerrillas...
and they said they were looking for weapons.[16]
The
decision of the Military Superior Court of November 1996 confirms that
Several
people were seen being taken from the Molina's house and screams were heard
coming from the community hall (Caseta Comunal), as a result of the actions
of a group comprising individuals in green uniforms and civilian personnel,
facts that further reinforce the hypothesis that the Commander of the Third
Tactical Unit at least was not totally unaware of the outrage.[17]
It
adds that
Between
9:00 a.m. and 10:00 a.m., before the arrival of the Palacé Battalion at the
scene, a green colored official vehicle left the area, a circumstance that
highlights the fact that one or more members of the military were fully aware
of the situation and goes some way to supporting the charge that has the Battalion
Commander having agreed to the perpetration of these acts with individuals
acting outside the law.[18]
These
facts suggest the presence and even the direct participation of agents of
the State in perpetrating the massacre.
40.
There is also evidence to establish that a coordinated action took
place between the Palacé Battalion and the paramilitary group through an individual
who acted as an informant for the army. In its decision, the Attorney Delegate
for the Defense of Human Rights reports
that:
moments
before when it was decided to take the lives of the victims, Mr. HOLMES MOTATO
CIFUENTES an informant for the army who was at the scene with the victims
went to the municipality of Buga and telephoned the Palacé Battalion and reported
to Col. LUIS FELIPE BECERRA BOHÓRQUEZ of what the assassins were doing, thus
carrying out his mission to report when the members of the subversive group
were in the house previously identified as the guerrillas retreat. The Colonel
gave orders for the operation and instructed Major DELGADO CARRILLO to fetch
the informant and bring him back to base. When Major DELGADO found Mr. MOTATO
and was informed about the events then taking place, he delayed his return
to base to allow the perpetrators enough time to finish their task.[19]
The
testimony of María Aurora de Ladino further corroborates evidence that a certain
individual was present during the massacre and what was called Operation
Destructor:
It
seems to me that amongst the soldiers who arrived afterwards was one who had
been there in the morning and thats why I felt so afraid and didnt
want to say any more [
] he was different from the soldiers so I looked
at him. [
] He was with them, with the army as if he were a member of
the group.[20]
In
analyzing this part of the testimony, the Attorney Delegate was of the view
that it was an informant who had been at the scene at dawn, when the executions
took place, and again later with the army.[21]
41.
There is also evidence to show that before the Palacé Battalion arrived
on the scene, the Commander of Operation Destructor knew for certain
that the victims had already been executed. Specifically, the way in which
the battalion approached the home of Mr. Javier Ladino indicates that it was
not on the alert for a possible attack from that quarter. To this end, the
Attorney General of the Nation has stated:
Numerous
factors show that the operation was poorly planned and improperly executed,
thus confirming that in normal circumstances the troops would undoubtedly
have been ambushed, suffering many casualties, possibly even the loss of their
entire number. Such a situation seems to suggest that based on experience,
given the fact that the people planning the operation were extremely capable,
they knew very well right from the outset that there would be no armed confrontation
at the site of the operation.[22]
This
confirms that the perpetrators of the massacre coordinated their attack with
the arrival of the Palacé Battalion, whose mission was to hide all traces
of the massacre.
42.
In view of the foregoing, the Commission feels that there is sufficient
evidence to conclude that agents of the State acted jointly and in coordination
with a paramilitary group in planning and carrying out the massacre of the
thirteen victims.
3.
The cover up
43.
According to the evidence
contained in the case file, when the paramilitary group withdrew from the
scene, apparently with the exception of the individual who was acting as an
informant, members of the Palacé Battalion simulated an armed encounter with
the victims. To achieve this effect, they fired several rounds towards and
away from Mr. Ladinos house and changed the scene of the crime around.
44.
The occurrence of fighting has been discredited by the expert investigation
conducted at the scene of the crime and by the autopsies performed on the
bodies. Here, the expert report of the Technical Unit of the Cali Regional
Investigation Unit indicates inter alia
discrepancies between the shots fired by the army and the impact of the bullets
found at the scene and their trajectories and the fatal wounds found on the
victims bodies.[23]
45.
The petitioners alleged that after the simulation of a skirmish, Lt.
Col. Luis Felipe Becerra Bohórquez, Commander of the Palacé Artillery Battalion
and Brigadier General Rafael Fernández López, Commander of the Third Brigade,
claimed in news reports that thirteen members of an armed dissident group
known as the ELN had been killed in a confrontation with troops, and that
no casualties had been sustained by the army. This claim led to an investigation
that culminated with the decision on December 1, 1999, of the Military Superior
Court rendered after the death of Col. Becerra Bohórquez, in which Major Delgado
Carrillo was sentenced to three years and one month in prison as principally
responsible for falsifying evidence in the performance of his duties through
concealment but was acquitted of the charges of homicide, extortion, and bribery.
46.
The claim also led to the aforementioned investigation by the Attorney
Delegate for the Defense of Human Rights which prepared an indictment against
certain officers that included disciplinary proceedings against Lt. Col. Becerra
Bohórquez and Major Delgado Carrillo for concealment of irregular conduct
by members of the national army and the perpetrators of the massacre, simulating
an armed encounter, and claiming credit for the guerrillas killed, tampering
with the scene of the crime, and destroying evidence, amongst other things.[24] On October 2, 1998, the
Prosecutor General in an appeal changed the sentences against Lt. Col. Becerra
Bohórquez and Major Delgado Carrillo agreed on with the Attorney Delegate
for the Defense of Human Rights from discharge from the army to a severe reprimand.
47.
It is important to notes in an internal hearing it was established
that agents of the State were responsible for concealment of the massacre
that took place on April 7, 1991, that involved a simulated armed encounter
to justify the killing of the victims and also to claim an alleged victory
by the military over an armed group of dissidents. The concealment of the
killings by members of the army as the final touch to the massacre reflects
the close ties between the paramilitary group responsible for perpetrating
the incident and the agents of the State implicated.
B.
Analysis of law
48.
Before turning to the analysis of the alleged violations of the standards
of the American Convention, it must be ascertained whether the acts of the
individuals implicated in the incident in violating such fundamental rights
as the rights to life and humane treatment are attributable to the State of
Colombia and therefore call into question its responsibility in accordance
with international law. In this regard, the Inter-American Court has noted
that it is sufficient to show that the infringement of the rights recognized
in the Convention has been supported or tolerated by the government.[25]
49.
First, it should be said that, as noted by the IACHR in its Third
Report on the Human Rights Situation in Colombia, the State has played
a leading role in developing the paramilitary or self-defense groups, that
it allowed them to act legitimately with the protection of the law during
the 1970s and 1980s[26],
and that it is generally responsible for their existence and for strengthening
them.[27]
50.
These groups sponsored or accepted by branches of the armed forces
were created mainly to combat armed groups of dissidents.[28]
As a result of their counterinsurgency purposes, the paramilitaries established
links with the Colombian army that became stronger over a period of more than
twenty years. Eventually, on May 25, 1989, the Supreme Court of Justice declared
Decree 3398 unconstitutional, thereby removing all legal support for their
ties to national defense. In the wake of this action, the State passed a number
of laws to criminalize the activities of these groups and of those that supported
them.[29]
Despite these measures, the State did little to dismantle the structure it
had created and promoted, particularly in the case of groups that carried
out counterinsurgency activities and, in fact, the ties remained in place
at different levels, which in some instances requested or permitted paramilitary
groups to carry out certain illegal acts on the understanding that they would
not be investigated, prosecuted, or punished.[30]
The toleration of these groups by certain branches of the army has been denounced
by agencies within the State itself.[31]
51.
As a result of this situation, the Commission has established, for
the purposes of determining the international responsibility of the State
in accordance with the American Convention, that in cases in which members
of paramilitary groups and the army carry out joint operations with the knowledge
of superior officers, the members of the paramilitary groups act as agents
of the State.[32]
52.
In the present case, according to analysis of the facts mentioned above,
there is evidence to show that agents of the State helped to coordinate the
massacre, to carry it out, and, as discovered by domestic courts, to cover
it up. Therefore, the only conclusion is that the State is liable for the
violations of the American Convention resulting from the acts of commission
or omission by its own agents and by private individuals involved in the execution
of the victims.
1.
The right to life
53.
As noted earlier, the petitioners allege that an illegal armed group,
with the complicity of agents of the State, executed the victims, two of whom
were minors, on October 5, 1993, in the municipality of Riofrío, in the Valle
del Cauca. They allege that to conceal all evidence of the executions members
of the army forced the victims to put on combat uniforms and, when they had
been executed, placed arms next to their lifeless bodies and simulated a scene
of combat. They allege therefore that the State is responsible for violating
Articles 4 and 19 of the American Convention as well as common Article 3 of
the 1949 Geneva Conventions and Article 2 of its Second Additional Protocol.
The State has not accepted or expressly disputed the facts alleged by the
petitioners but has limited itself to presenting additional information on
the proceedings of the case before courts within the country.[33]
It must now be determined whether the State is responsible for violating the
right to life established in the American Convention.
54.
Article 4 of the American Convention establishes that every person
has the right to have his life respected and no one shall be arbitrarily deprived
of his life. It is also important to note that intentional mistreatment, and
particularly extrajudicial execution of civilians under the control of one
of the parties in any kind of armed conflict is absolutely prohibited in all
circumstances in light of the basic considerations of humanity reflected in
common Article 3 of the Geneva Conventions.[34]
55.
In the present case, the available evidence shows that the victims
were defenseless and under the effective control of individuals who were acting
in coordination with agents of the State at the time of their death and that
there was no justification whatsoever to deprive them of their lives in light
of the standards of present international law. The testimony and expert evidence
gathered in the course of the disciplinary proceedings, and even in the military
courts, clearly indicates that the victims put up no resistance to the actions
of their executioners.
56.
The Commission therefore considers that there are sufficient grounds
to conclude that the victims in the present case were executed extrajudicially
by a group of armed men who acted in collaboration with agents of the State
and that subsequently members of the army attempted to cover up the executions
by manipulating and manufacturing evidence.
57.
In the present case, the Commission is of the view that the State is
responsible for the acts of its agents as well as for those perpetrated by
individuals who acted with their complicity to make it possible to carry out
and cover up the execution of the victims in violation of their right not
to be arbitrarily deprived of their lives, as established in Article 4 of
the American Convention. Also, as indicated by the petitioners, amongst the
victims were two minors, Dora Estela Gaviria Ladino and Luz Edelsy Tusarma
Salazar, who were 16 years of age. The evidence shows that Luz Edelsy was
pregnant at the time of her death. The Commission is of the view that the
State is not only responsible for violating the right to life of these two
victims but also failed to fulfill its obligation to provide them special
protection as minors in accordance with Article 19 of the American Convention.
58.
Based on the foregoing considerations of fact and of law, the Commission
finds that on October 5, 1993, a group of armed men, acting in complicity
with agents of the State, arbitrarily deprived Miguel Enrique Ladino Largo,
Miguel Antonio Ladino Ramírez, María Cenaida Ladino Ramírez, Carmen Emilia
Ladino Ramírez, Julio César Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria
Ladino, Celso Mario Molina, Rita Edelia de Molina, Ricardo Molina, Freddy
Molina, Luz Edelsy Tusarma Salazar, and Hugo Cedeño Lozano of their right
to life in violation of the obligations established in Article 4(1) of the
American Convention. Moreover, the State is responsible for failing to fulfill
its special duty to provide protection to the minors Dora Estella Gaviria
Ladino and Luz Edelsy Tusarma Salazar pursuant to Article 19 of the American
Convention.
2.
The right to humane treatment
59.
The petitioners allege that prior to their execution the victims were
subjected to acts of torture that violated their right to humane treatment.
In their allegations, the petitioners do not specify the nature of the lesions
inflicted or whether some or all of the victims were affected.
60.
Article 5 of the American Convention states that
1.
Every person has the right to have his physical, mental, and moral
integrity respected.
2.
No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. [
]
61.
In the instant case, statements taken from neighbors in the village
as well as from Mrs. María Aurora Ladino who was in the dwelling where the
executions took place, confirm that the sounds of blows to the victims and
their screams were heard before they were killed.[35]
The testimony does not confirm whether all of the victims were tortured before
they were executed.
62.
However, the autopsies conducted by the Attorney Delegate for the Defense
of Human Rights effectively confirm that lesions caused by blunt objects
before death were found on the bodies of Hugo Cedeño Lozano, Miguel
Ladino, Cenaida Ladino, Ricardo Molina Solarte, and Celso Mario Molina Sauza.[36]
63.
Therefore, the Commission is of the view that in the present case there
is sufficient evidence to conclude that the State is responsible for violating
the right to humane treatment of Hugo Cedeño Lozano, Miguel Ladino, Cenaida
Ladino, Ricardo Molina Solarte, and Celso Mario Molina Sauza before they were
executed.
C. The right to judicial protection and
the obligation of the State to respect and guarantee the rights protected
under the Convention
64.
The petitioners allege that the State failed to fulfill its obligation
to investigate the facts of the case and to bring to trial and punish those
responsible in accordance with Articles 8 and 25 of the American Convention.
In their view, the State deprived the families of the victims of access to
an impartial court when the Superior Council of the Judiciary transferred
the case to the jurisdiction of military courts.
65.
Therefore, it falls to the Commission to determine whether the judicial
proceedings instituted by the State, which have lasted for more than seven
years now and taken place largely in military jurisdiction, meet the standards
established by the American Convention for access to a fair trial and judicial
protection.
66.
Article 8(1) of the American Convention states that:
Every
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established
by law, in the substantiation of any accusation of a criminal nature made
against him or for the determination of his rights and obligations of a civil,
labor, fiscal, or any other nature.
According
to Article 25 of the Convention:
Everyone
has the right to simple and prompt recourse, or any other effective recourse,
to a competent court or tribunal for protection against acts that violate
his fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties.
The
States Parties undertake:
a.
to ensure that any person claiming such remedy shall have his rights determined
by the competent authority provided for by the legal system of the state;
b.
to develop the possibilities of judicial remedy; and
c.
to ensure that the competent authorities shall enforce such remedies
when granted.
67.
These standards set out the obligation of the State to ensure access
to a fair trial with the guarantee that it be legal, independent, and impartial
within a reasonable period as well as the general obligation to provide effective
judicial remedy in the face of the violation of the fundamental rights, incorporating
the principle of the efficiency of the procedural instruments or mechanisms.
The Inter-American Court of Human Rights has ruled that:
States
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 (Art. 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.[37]
68.
In the present case, although an investigation of the members of the
army implicated in the massacre was opened, the case was transferred to the
military criminal justice system when a motion on a conflict of jurisdiction
was filed.
69.
In fact, the Commission notes, that after the security measures were
imposed by the Cali Regional Prosecutors Office against members of the
Third Army Brigade, the latter claimed a conflict of jurisdiction. The Superior
Council of the Judiciary resolved the dispute on March 30, 1995, with the
decision that the case be transferred to the military criminal justice system
because it was considered that the events under investigation occurred
in connection with a military operation conducted by members of the military
on active service".[38]
70.
In this regard, the Commission should reiterate again that, given its
nature and structure, military criminal jurisdiction does not meet the standards
of independence and impartiality required pursuant to Article 8(1) of the
American Convention, which are fully applicable in the present case. The unsuitable
nature of military criminal courts in Colombia as a forum for examining, prosecuting,
and punishing cases that involve violations of human rights has been expressly
mentioned by the Commission in the past:
The
military criminal justice system has several unique characteristics which
prevent access to an effective and impartial judicial remedy in this jurisdiction.
First, the military justice system may not even be properly referred to as
a true judicial forum. The military justice system does not form part of the
judicial branch of the Colombian State. Rather, this jurisdiction is operated
by the public security forces and, as such, falls within the executive branch.
The decision-makers are not trained judges, and the Office of the Prosecutor
General does not fulfill its accusatory role in the military justice system.[39]
71.
The Inter-american Court
recently confirmed that:
In
a democratic State of law military criminal jurisdiction necessarily has a
restrictive and special scope and is designed to protect special judicial
interests linked to the functions that the law assigns to military forces.
Thus, civil proceedings must be excluded from the context of military jurisdiction
which should only try members of the military for the commission of crimes
or misdemeanors that by their very nature have to do solely with judicial
property of a military nature.[40]
In
previous decisions, the IACHR has indicated that the Constitutional Court
of Colombia itself has ruled on the jurisdiction of military courts in examining
cases of human rights violations. In this regard, it has noted that:
For
the military criminal justice system to have competence over a crime, there
must be from the onset an evident link between the crime and the inherent
activities of military service. In other words, the punishable action must
constitute an excess or abuse of power occurring within the context of an
activity that is directly related to a legitimate function of the armed forces.
The link between the criminal action and the activity related to military
service breaks down when the crime is extremely serious, such as is the case
with crimes against humanity. In such circumstances, the case must be referred
to the civilian courts.[41]
72.
The Commission considers that the execution of the victims in the present
case as a result of coordinated activities between the army and the paramilitaries
and the subsequent cover up is not a legitimate activity of the service that
justifies the use of that forum to bring those responsible to trial. Consequently,
the fact that the accused have been tried in military criminal jurisdiction
contravenes the right of the victims families to have access to an independent
and impartial tribunal, as well as due judicial protection established in
Articles 8(1) and 25 of the American Convention.
73.
The American Convention imposes on the States the obligation to prevent,
investigate, identify, and punish the perpetrators and those that conceal
human rights violations. The Inter-American Court has ruled that
Article
25 in relation to Article 1(1) of the American Convention obliges the State
to guarantee to every individual access to the administration of justice and,
in particular, to simple and prompt recourse, so that, inter alia, those responsible
for human rights violations may be prosecuted and reparations obtained or
the damages suffered. As this
court has ruled, Article 25 "is one of the fundamental pillars not only
of the American Convention, but of the very rule of law in a democratic society
in the terms of the Convention.".[42]
74.
To this end, Article 25 bears a close relation to Article 8(1) which
establishes the right of every person to a hearing with due guarantees within
a reasonable time by an independent and impartial judge or court and confers
on the victims families the right that the deaths of their loved ones
be effectively investigated by the authorities, that judicial proceedings
be instituted against those responsible, that the appropriate penalties be
imposed, and that they be compensated for the injuries suffered.[43]
75.
In the present case, the State has not ruled on the necessary means
of fulfilling its obligation to investigate the extrajudicial killing of the
victims, to prosecute and punish those responsible, and to provide reparations
to the victims families. To this end, the execution of Miguel Enrique
Ladino Largo, Miguel Antonio Ladino Ramírez, María Cenaida Ladino Ramírez,
Carmen Emilia Ladino Ramírez, Julio César Ladino Ramírez, Lucely Colorado,
Dora Estela Gaviria Ladino, Celso Mario Molina, Rita Edelia de Molina, Ricardo
Molina, Freddy Molina, Luz Edelsy Tusarma Salazar, and Hugo Cedeño Lozano
has gone unpunished, a fact that according to the Court fosters chronic
recidivism of human rights violations, and total defenselessness of victims
and their relatives.[44]
76.
Based on the foregoing considerations, the Commission concludes that
the State has not fulfilled its obligation to offer proper judicial protection
in accordance with Articles 8 and 25 of the American Convention to the victims
in the present case and to their families.
D.
Obligation to respect and guarantee the rights protected by the
Convention
77.
The petitioners allege that the State has not fulfilled its obligation
to provide guarantees in accordance with Article 1(1) of the American Convention,
whereby the States parties must ensure the exercise of the rights and freedoms
recognized in the Convention to all persons subject to their jurisdiction.
78.
It should be recalled that the obligation provided for in Article 1(1)
is an obligation involving the duty to organize the government apparatus and
in general all structures through which public power is exercised so that
they are capable of juridically ensuring the free and full enjoyment of human
rights. As a consequence of this obligation, States must prevent, investigate,
and punish any violation of the rights recognized by the Convention.[45] The Inter-American Court
has maintained that:
If
the State apparatus acts in such a way that the violation goes unpunished
and the victims full enjoyment of such rights is not restored as soon
as possible, the State has failed to comply with its duty to ensure the free
and full exercise of those rights to the persons within its jurisdiction.[46]
79.
In the present case, more than seven years have now elapsed since the
massacre and the State has not yet effectively fulfilled its duty to bring
to trial and punish those responsible for the extrajudicial execution of the
victims and to provide reparations to the families. The Commission considers
therefore that the State of Colombia has failed in its obligation to prevent
and guarantee the rights to life and humane treatment as well as the right
to judicial protection of the victims pursuant to Article 1(1) of the Convention.
VI.
ACTION SUBSEQUENT TO APPROVAL OF REPORT
75/00 IN ACCORDANCE WITH ARTICLE 50 OF THE CONVENTION
80.
On October 4, 2000, the Commission approved Report
75/00 pursuant to Article 50 of the American Convention. In this report,
the Commission concluded that the State is responsible for violating the right
to life of Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María
Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César Ladino Ramírez,
Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario Molina, Rita Edelia
de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy Tusarma Salazar, and
Hugo Cedeño Lozano. The State is also responsible for failing to fulfill the
special duty of protecting the two minors, Dora Estela Gaviria Ladino and
Luz Edelsy Tusarma Salazar, in accordance with Article 19 of the American
Convention. Moreover, the Commission concludes that the State of Colombia
is responsible for violating the right to humane treatment established in
Article 5 of the Convention in respect of Hugo Cedeño Lozano, Miguel Ladino,
Cenaida Ladino, Ricardo Molina Solarte, and Celso Mario Molina Sauza as well
as to fulfill its obligation to offer due judicial protection to the victims
in the present case in accordance with Articles 8 and 25 of the American Convention,
in conjunction with Article 1(1) of the Treaty. Also it recommended that the
State (1) conduct an impartial and effective investigation under civilian
jurisdiction with a view to prosecuting and punishing those materially and
intellectually responsible for the massacre; (2) to take the necessary steps
to ensure that the victims families are duly compensated; (3) to take
the necessary steps to avoid a repetition of similar events in the future
in accordance with the duty to prevent and guarantee the fundamental rights
recognized in the American Convention, as well as to ensure that the doctrine
developed by the Constitutional Court of Colombia and by the Commission is
fully complied with in investigating and prosecuting similar cases through
the ordinary criminal justice system. On October 30, 2000, the Commission
forwarded this report to the State, according it a period of two months in
which to comply with its recommendations.
81.
On December 29, 2000, the State asked the Commission for an extension[47], which was granted until
January 19, 2001. On January 19, 2001, in a written communication to the Commission,
the State indicated that
Once
the competent entities had been consulted, the Government of Colombia is pleased
to present [
] a proposal to move forward with efforts to satisfy, if
necessary, the requirements of justice, truth, and reparations in each case,
in accordance with national legislation.[48]
The
proposal referred to indicates that the State has deemed it appropriate to
ask the Public Defender to draw up a special report by August 21, 2001, "with
a view to complying with the recommendations contained [
] in the context
of the legal and constitutional powers in effect in our country".[49]
The aforesaid proposal indicates that the Public Defender would prepare his
report taking into account the opinion of the parties in the case before the
IACHR, the victims or their beneficiaries, the judicial and administrative
authorities that heard the proceedings in question, the IACHR, and the individuals
and institutions whose opinions are considered relevant. The proposal indicates
that the Defender would set the deadlines and the conditions for implementing
the findings and recommendations of its own final report, which would also
be submitted to an Intersector Human Rights Committee for consideration. The
proposal indicates that the State "undertakes to address the findings
and recommendations contained in the Defender's Final Report".
82.
The Commission takes note of the proposal presented by the State in
response to Report 77/00,
approved pursuant to Article 50 of the American Convention in the present
case. Also, it appreciates the States willingness to address the
Commissions recommendations through an eventual assessment of
the findings of Report 77/00
by the Office of the Public Defender. However, the States response does
not indicate the adoption of specific measures or assumption of certain express
commitments with respect to implementing the Commissions recommendations.
Therefore, the Commission must pursue the proceedings of the case in accordance
with Article 51 of the American Convention.
VII.
CONCLUSIONS
83.
In view of the foregoing points of fact and of law herein analyzed,
the Commission reiterates its findings to the effect that the State is responsible
for violating the right to life of Miguel Enrique Ladino Largo, Miguel Antonio
Ladino Ramírez, María Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez,
Julio César Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino, Celso
Mario Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy
Tusarma Salazar, and Hugo Cedeño Lozano. Also, the State is responsible for
failing to fulfill its special duty to protect two minors, Dora Estela Gaviria
Ladino and Luz Edelsy Tusarma Salazar in accordance with Article 19 of the
Convention. The Commission further concludes that the State of Colombia is
responsible for violating the right to humane treatment, recognized in Article
5 of the Convention, of Hugo Cedeño Lozano, Miguel Ladino, Cenaida Ladino,
Ricardo Molina Solarte, and Celso Mario Molina Sauza as well as for failing
to fulfill its obligation to provide due judicial protection to the victims
in the present case in accordance with Articles 8 and 25 of the Convention,
in conjunction with Article 1(1) of the Treaty.
VIII.
RECOMMENDATIONS
84.
On the basis of the analysis and the findings of the present report,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THAT THE STATE OF COLOMBIA:
1.
Conduct an impartial and effective investigation in ordinary jurisdiction
with a view to prosecuting and punishing those materially and intellectually
responsible for the massacre.
2.
Take such steps as are necessary to ensure that the families of the
victims are duly compensated.
3.
Take the necessary steps to prevent any future occurrence of similar
events in accordance with its duty to prevent and guarantee the basic rights
recognized in the American Convention as well as the necessary measures to
give full force and effect to the doctrine developed by the Constitutional
Court of Colombia and by the Inter-American Commission on Human Rights in
investigating and prosecuting similar cases through the ordinary criminal
justice system.
IX. PUBLICATION
85.
On February 28, 2001 the Commission transmitted this Report to the
Colombian State pursuant to Article 51 of the American Convention and granted
a period of one month as from that date to present information on compliance
with the above recommendations. On
that same date, the Commission transmitted the Report to the Petitioners.
On January 28, 2001 the State requested additional time to respond
and the Commission granted a seven-day extension.
86.
The State presented its response on April 3, 2001 and once more referred
to the mechanism of compliance proposed in its previous response to the report
adopted pursuant to Article 50 of the American Convention (see supra
paras. 81 and 82). The State
expressed that "it shall follow up on compliance with the recommendations
by continuing with the investigations and other pending procedures in each
case and shall submit a study on adequate compensation to the instances contemplated
in Act Nº 288 (1996)."[50]
87.
Accordingly, pursuant to Articles 51(3) of the American Convention
and 48 of its Regulations, the Commission decides to reiterate its conclusions
and recommendations included in chapters VII and VIII supra;
to publish this report and to include it in the Commissions Annual Report
to the General Assembly of the OAS.
Pursuant to the provisions contained in the instruments governing its
mandate, the IACHR will continue to evaluate the measures taken by the Colombian
State with respect to those recommendations until the State has complied with
them.
Done and signed in Santiago de Chile in the sixth day of the month of April
of the year 2001. (Signed:) Claudio
Grossman, Chairman; Juan E. Mendez, First Vice Chairman; Marta Altolaguirre,
Second Vic-Chair; Robert K. Goldman, Helio Bicudo, Peter Laurie, Julio Prado
Vallejo, Commissioners.
[1]
Communication from the petitioners dated March 3, 1997.
[2]
Communication of the petitioners dated March 3, 1997.
[3]
On November 21, 1994, the Prosecutors Office ordered that Major
Eduardo Carrillo Delgado be held in preventive detention for his responsibility
in the events under investigation. On November 30, 1994, the Prosecutor
attached to the National Court heard an appeal filed by Major Delgado
Carrillo and decided to change the charge of multiple homicide to concealment
and changed the preventive cautionary measure to recognizance and ordered
that he be released.
[4]
Judgment of the Superior Military Court of March 18, 1998.
[5]
Communication of the petitioners dated March 3, 1997.
[6]
Communication of the petitioners dated March 3, 1997.
[7]
Ibidem.
[8]
Communication EE/DH 1253 from the
Ministry of Foreign Affairs dated September 17, 1996.
[9]
Colombia ratified the American Convention on Human Rights on July 31,
1973.
[10]
Decision of the Council of War of the Third Army Brigade of October 8,
1998.
[11]
The Commission took cognizance of the fact that on December 1, 1999, in
an appeal the Superior Military Court changed the sentence under appeal
and convicted Major Delgado Carrillo to three years and one month in prison,
as primarily responsible for the crimes of falsifying information in the
performance of his duty for the punishable action of concealment and as
a secondary punishment. Also, it declared criminal proceedings against
Lt. Col. Luis Felipe Becerra Bohórquez and SS Leopoldo Moreno Rincón to
have lapsed because they were acknowledged to be dead. It upheld the acquittal
of Major Eduardo Delgado Carrillo on charges of homicide, extortion, and
bribery. In March 2000, the civil party presented to the Supreme Court
of Justice a request to have December 1, 1999, decision of the Superior
Military Court overturned, and a decision has not yet been returned.
[12]
IACHR. Third Report on the Human
Rights Situation in Colombia (1999), p. 175;
Second Report on the Human Rights Situation in Colombia (1993), p.
246; Report on the Human Rights
Situation in Brazil (1997), p.p. 40-42.
[13]
Int. Ct. H.R. Durand y Ugarte Case,
Judgment of August 16, 2000, paragraph 117.
[14]
Int. Ct. H.R. Vélasquez Rodríguez
Case, Judgment of July 29, 1988, paragraph 63.
[15]
Resolution of the Attorney Delegate for the Defense of Human Rights of
the Office of the Public Prosecutor of Colombia, of May 11, 1998, p. 535.
[16]
Ibidem.
[17]
Decision of the Military Superior Court on November 27, 1996, p. 10.
[18]
Ibidem.
[19]
Decision of the Attorney Delegate for the Defense of Human Rights of the
Office of the Public Prosecutor of Colombia, dated May 11, 1998, p. 603.
[20]
Resolution of the Attorney Delegate for the Defense of Human Rights of
the Office of the Public Prosecutor of Colombia, dated May 11, 1998, p.
536
[21]
Resolution of the Attorney Delegate for the Defense of Human Rights of
the Office of the Public Prosecutor of Colombia, dated May 11, 1998, p.
547
[22]
Resolution of October 2, 1998, of the Attorney General of the Nation,
Official Letter Nº 008-145867, p. 73.
[23]
The experts reported that
it was established that the relationship
of the number of shots fired by the different army groups does not match
the impacts found at the scene of the crime. This is based on testimony
that each group fired from one hundred and twenty (120) to one hundred
and forty (140) rounds, in which case there would be more bullet holes
in the building, confirming that precision firearms such as Galils were
used.
[24]
The Prosecutor's Office decided to acquit Brigadier General Rafael Hernández
López, to discharge Lt. Col. Becerra Bohórquez from the army, to discharge
Major Delgado from the army, to suspend Lt. Alfonso Vega Garzón from duty
without pay for a period of 90 days, to suspend 2nd. Lt. (SS) Armando
Aguilera Escobar from duty without pay for a period of 90 days and to
acquit the non-commissioned officers Corporal Leopoldo de Jesús Moreno
Rincón and Alexander Cañizalez Núñez of all disciplinary responsibility
in the charges filed against them. Following an appeal, on October 2,
1998, the Prosecutor General upheld the acquittal of Brigadier General
Hernández, changed the sentences agreed on against Lt. Col. Becerra Bohórquez
and Major Delgado Carrillo from a military discharge to a severe reprimand,
overturned the sentences of a 90-day suspension from duty without pay
against Luis Alfonso Vega Garzón and Armando Aguilera Escobar, and upheld
the acquittals of Leopoldo de Jesús Moreno Rincón and Alexander Cañizales
Nuñez.
[25]
Int. Amer. Ct. H.R. Paniagua Morales
et al Case, Sentence of March 8, 1998, paragraph 91.
[26]
In fact, Decree 3398 of 1965 (National Defense Act) and Law 48 of 1968
authorized the creation of civil patrols that received arms for private
use from the State security forces by authorization of the Ministry of
Defense. Pursuant to Article 25 of Decree 3398 of 1965, All Colombian
men and women not called to do mandatory military service, may be used
by the government in activities and efforts intended to restore normal
conditions.
[27]
Third Report on the Human Rights
Situation in Colombia (1999), Chapter IV, paragraph 236.
[28]
See IACHR, Third Report on the Human
Rights Situation in Colombia (1999), Chapter I, paragraphs 17-19.
[29]
Decree 1194 of June 8, 1989, and Decree 2266 of 1991.
[30]
See IACHR, Third Report on the Human
Rights Situation in Colombia (1999), Chapter I, paragraphs 17-19.
See also the Report of the United Nations High Commission for Human Rights
on the Office in Colombia, April 2000, paragraph 30, in which it is stated
that
The Office has received testimony concerning the direct
involvement of members of the armed forces [
] in some cases the
resident of the communities affected recognized members of the armed forces
forming part of the paramilitary contingents that carried out the massacre.
Also, the law enforcement agencies adopted an attitude of ignoring which
undoubtedly enabled the paramilitaries to carry out their mission of extermination.
[31]
Third Report on the Human Rights
Situation in Colombia (1999), Chapter IV, paragraph 237-239.
[32]
See Report 37/00 1999 IACHR Annual
Report, Volume I, paragraph 64.
[33]
Note EE/D.H. 1253 of the General
Directorate of Special Matters of September 17, 1996.
[34]
Common Article 3 of the 1949 Geneva Conventions establishes certain minimal
standards to be applied during hostilities in order to protect persons
taking no active part or no longer taking a direct and active part in
the hostilities including agents of the State or members of armed groups
of dissidents that laid down their arms, are taken prisoner, or placed
hors combat. This provision expressly prohibits at any time and
in any place whatsoever Violence to life and person or persons taking
no active part or no longer taking an active part in the hostilities.
[35]
In their depositions, Carlos Enrique Gaviria Londoño and María Edilma
Gutiérrez indicated that the victims were beaten before they were killed
and that their screams were heard. These depositions are cited in the Decision of the Prosecutor General of the Republic of May 11, 1998.
[36]
Cited in the Decision of the Prosecutor
General of the Republic on October 2, 1998, p. 24.
[37]
Int. Amer. Ct. H.R. Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, paragraph
91.
[38]
Cited in Resolution of July 2, 1998, by the Superior Council of the Judiciary.
[39]
IACHR Third Report on the Human Rights Situation in Colombia (1999) pp.
175-186. See also Second Report on the Human Rights Situation in Colombia
(1993) p. 237 where it is stated that: Military tribunals do not
guarantee that the right to a fair trial will be observed, since they
do not have the independence that is a condition sine qua non for
that right to be exercised. Moreover, their rulings have frequently been
biased and have failed to punish members of the security forces whose
involvement in very serious human rights violations has been established.
See Reports 36/00, 35/00, and
7/00 in the Annual
Report of the IACHR 1999, Volume
I; Reports 84/98, 62/99, and 61/99
in the Annual Report of the IACHR
1998, Volume I.
[40]
Int. Ct H.R. Durand y Ugarte Case,
Judgment of August 16, 2000, paragraph 117.
[41]
Constitutional Court, Decision C-358
of August 5, 1997.
[42]
Int. Ct. H.R. Loayza Tamayo Case,
Reparations, November 27, 1998, paragraph 169.
[43]
Int. Ct. H.R. Durand y Ugarte Case,
Judgment of August 16, 2000, paragraph 130.
[44]
Int. Ct. H.R. Paniagua Morales et
al Case, March 8, 1998, paragraph 173.
[45]
Int. Ct. H.R. Velásquez Rodríguez
Case, Judgment of July 29, 1988, paragraph 166.
[46] Ibidem,
paragraphs 174 and 176.
[47]
Communication EE 2967 of the Director
General of Special Affairs of the Ministry of Foreign Affairs dated
December 29, 2000.
[48]
Communication EE 0110 from the Director
General of Special Affairs of the Ministry of Foreign Affairs, dated
December 29, 2000.
[49]
Proposal of the State of Colombia on certain cases being processed
by the Inter-American Commission on Human Rights with respect to which
reports have been submitted in accordance with Article 50 of the American
Convention on Human Rights attached to Communication
EE from the Director General of Multilateral Agencies of the Ministry
of Foreign Affairs, dated January 19, 2001.
[50]
Note EE 0705 General Director
of Special Affairs (in charge), Ministry of Foreign Affairs, April 3,
2001.