Leonel De Jesús Isaza Echeverry v. Colombia, Case 11.712, Report No. 64/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 797 (2000).
REPORT Nº 64/01
DE JESÚS ISAZA ECHEVERRY AND OTHERS
1. On December 19, 1996, the Colombian Commission of Jurists (hereafter "the petitioners"), submitted a complaint to the Inter-American Commission on Human Rights (hereafter "the Commission") against the Republic of Colombia (hereafter "the Colombian State" or "the State"), alleging that on April 16, 1993, members of the National Army of Colombia executed Mr. Leonel de Jesús Isaza Echeverry and caused injury to his four year-old daughter, Lady Andrea Isaza Pinzón, and his 75 year-old mother, Mrs. María Fredesvinda Echeverry (hereafter "the victims"), at the family home located in the north-eastern area of Barrancabermeja, department of Santander.
The petitioners alleged that, as a consequence of the execution of
Mr. Isaza Echeverry and the injuries inflicted on his relatives, the State
is responsible for violating the rights to life, humane treatment, judicial
protection and the rights of the child, as set forth in Articles 4, 5, 8,
25, and 19 of the American Convention on Human Rights (hereafter "the
American Convention"). The
State alleged that the petition was inadmissible because of lack of exhaustion
of domestic remedies, and presented information on proceedings still pending
before military and disciplinary courts.
After analyzing the elements of fact and law presented by the parties
during the proceedings, the Commission declared that the case was admissible
and that the State was responsible for violating the right to life (Article
4); the right to humane treatment (Article 5); the right to judicial protection
(Articles 8 and 25); and the rights of the child (Article 19); as well as
the obligation of ensuring the respect for the rights established in the
PROCESSING BEFORE THE COMMISSION
On December 18, 1996, a case was opened under number 11.712 and the
pertinent parts of the petition were sent to the Colombian State, with a
period of 90 days to present information.
On February 28, 1997, the State requested an extension, which was
On May 23, 1997, the State presented its response, which was duly
forwarded to the petitioners. On
July 23, 1997, the petitioners presented their observations, which were
sent to the State. On November 20, the State presented its observations, which
were forwarded to the petitioners.
On May 22, 1998, the petitioners presented their response, which
was duly transmitted to the State.
On October 1st, 1999, during its 104th regular
session, the Commission held a hearing that was attended by both parties.
During the course of the hearing, the petitioners presented a written
statement, which was duly forwarded to the State.
On December 13, 1999, the State presented the corresponding observations,
which were transmitted to the petitioners on December 15, 1999.
On January 24, 2000, the petitioners requested an extension for submitting
their response, which was duly granted.
On March 20, 2000 the petitioners reported to the Commission that
the Center for Justice and International Law (CEJIL) had joined them as
a co-petitioner in the case.
On May 2, 2000, the petitioners presented additional information
to the Commission, which was duly transmitted to the State. On June 9, 2000, the State requested additional time to present
its observations, and the Commission granted an extension.
On July 12, 2000, the State presented its observations.
On August 31, 2000, the Commission placed itself at the disposal
of the parties for the purpose of arriving at a friendly settlement of the
matter, pursuant to Article 48(f) of the Convention and Article 45 of its
Rules of Procedure, and granted them 30 days to present a response.
On September 1, 2000 the petitioners communicated to the Commission
that, given the characteristics of the case, it was not possible to settle
the matter amicably.
On October 25, 2000, the Commission requested from the State a copy
of a Resolution issued by the Auditoría
82 de Guerra on November 25, 1999, as well as a decision issued by the
Office of the General Procurator of the Nation on April 14, 1998.
On November 17, 2000 the State forwarded copies of the General Procurator
of the Nations decision (file No. 022-139783) and a decision issued
by the Supreme Military Tribunal on September 19, 2000 (file No. 133888-7314)
declaring null and void the aforementioned Resolution of the Auditoría
82 de Guerra.
POSITIONS OF THE PARTIES
Position of the petitioners
The facts as presented by the petitioners indicate that on April
16, 1993, around 7 p.m., members of the Nueva
Granada battalion of the Colombian Army broke into Mr. Leonel de Jesús
Isaza Echeverrys home in the north-eastern sector of Barrancabermeja,
and shot him as he rose up from the chair from where he had been watching
television. Despite the gravity
of his wounds, the victim managed to move towards another room, where he
was shot again and killed.
The petitioners allege that after Mr. Isazas execution, members
of the Army threatened his companion, Hermencia Pinzón Cala, and before
leaving the house, threw a grenade into the backyard, injuring Mr. Isaza
Echeverrys mother and daughter, María Fedesvinda Echeverry and Lady
Andrea Isaza Pinzón, who had to be hospitalized.
As a consequence of these facts, the petitioners allege that Mr.
Leonel de Jesús Isaza Echeverry was arbitrarily deprived of his life by
State agents in violation of Article 4 of the American Convention.
They also argue that the State is responsible for violating Articles
5 and 19 of the American Convention because of the injuries sustained by
María Fredesvinda Echeverry and the minor Lady Andrea Isaza Pinzón.
The petitioners also argue that the State is responsible for violating
Articles 8 and 25 of the American Convention, because the investigation
of the alleged extrajudicial execution of Leonel Jesús Isaza Echeverry was
still pending before the military courts.
The petitioners maintain that the legal remedies provided by the
State are not adequate or effective to address the violations committed
in this case and that therefore the claims presented are admissible under
the exceptions provided for in Article 46(2) of the American Convention.
The position of the State
The State alleges that the present case is inadmissible pursuant
to Article 46(1)(a) of the American Convention because domestic legal remedies
have not been exhausted.
The State specifically referred to proceedings currently pending
before the military and the contentious administrative jurisdiction.
In response to the allegations of the petitioners concerning the
adequacy and effectiveness of the remedies provided in the context of military
jurisdiction in the present case, the State sustained that it was inappropriate
to generically disqualify the role of military justice in the administration
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
The Commission is competent to examine the complaint presented by
the petitioners. The facts
alleged in the petition affected physical persons subject to State jurisdiction
when the obligation to respect and guarantee the rights established in the
Convention was already in force for the Colombian State.
The Commission therefore proceeds to examine whether this case satisfies
the requirements established in Articles 46 and 47 of the American Convention.
of domestic remedies and deadline for submitting the petition
The State alleges that the case is inadmissible because domestic
legal remedies have not been exhausted.
In turn, the petitioners argue that the domestic remedies pending
have not provided the victims with an adequate judicial remedy and that
in any event they have proved to be ineffective for redress of the violations
According to the allegations of the parties, First Instance Military
Judge Nº 24 of the Nueva Granada Battalion, formally opened the investigation of the
case on May 23, 1993, and during 1996 and 1997 issued a number of arrest
warrants against members of the Nueva
Nonetheless, on November 25, 1999, the Auditoría
82 de Guerra ordered the closing of the proceedings against these members
of the Army. This decision
was appealed by the Ministerio Publico
on December 10, 1999. On September
19, 2000, the Supreme Military Tribunal decided to declare the entire proceedings
null and void and referred the investigation to the First Instance Military
Judge of the Military Court in Bucaramanga.
Article 46(1) of the Convention provides that for a petition or communication
to be admitted by the Commission, domestic legal remedies must have been
pursued and exhausted in accordance with generally recognized principles
of international law. In accordance with the Inter-American Court of Human Rights,
whenever a State alleges a lack of exhaustion of domestic remedies, it has
the burden of proving that the remedies that have not been exhausted are
"adequate" to remedy the alleged violation,
meaning that the function of such remedies within the domestic legal system
must be that of protecting the rights affected in that particular situation.
The Commission has stated on numerous occasions that military jurisdiction
does not constitute a suitable forum,
and therefore does not provide an adequate remedy, to investigate, prosecute
and sanction violations of the human rights enshrined in the American Convention,
allegedly committed by members of the security forces.
In addition, the Inter-American Court recently confirmed that the
military justice system is only suitable for judging military personnel
who allegedly committed crimes or offenses that, due to their nature, affect
the legal goods of the military order itself./
In this case, the Commission considers that military criminal justice
does not constitute a suitable remedy for investigating, judging and sanctioning
the type of conduct associated with the alleged facts.
Thus, seven years after the fact, the investigation pending before
the judge of criminal proceedings of Bucaramanga does not constitute a remedy
that must be exhausted before resorting to the international protection
afforded by the American Convention.
The State also considers that the notion of domestic remedy not only
covers criminal investigation of the facts denounced and judgment of the
responsible parties, but that contentious-administrative remedies available
under domestic legislation must also be exhausted before the Commission
is qualified to act.
As mentioned earlier, the Inter-American Court has established that
the exhaustion referred to in Article 46(1)(a) of the American Convention
refers to suitable remedies for the violations that were allegedly committed.
A remedy is suitable when:
domestic remedies are those which are suitable to address an infringement
of a legal right. A number
of remedies exist in the legal system of every country, but not all are
applicable in every circumstance.
If a remedy is not adequate in a specific case it obviously need
not be exhausted. A norm is
meant to have an effect and should not be interpreted in such a way as to
negate its effect or lead to a result that is manifestly absurd or unreasonable.
The jurisprudence of the organs of the system establishes that whenever
an officially prosecutable offense is committed, the State is under the
obligation of promoting and pursuing the criminal proceeding to its final
and that, in these cases, it is the suitable way of clarifying the facts,
judging the responsible parties and establishing the corresponding sanctions,
as well as making possible other pecuniary kinds of remedy.
The Commission considers that the facts alleged by the petitioners
in this case involve an alleged violation of non-alienable, basic rights,
such as to life and personal integrity, that are translated in domestic
legislation into officially prosecutable offenses and that therefore, it
is this proceeding, pursued by the State itself, that should be examined
to determine the admissibility of the complaint.
The IACHR has established in similar cases
that the contentious-administrative jurisdiction is a mechanism exclusively
for use in supervising the administrative activity of the State, aiming
to provide compensation for damages resulting from an abuse of authority.
In general, this process, in and of itself, does not constitute a
suitable mechanism for remedying cases of human rights violations; therefore,
it is unnecessary to exhaust this remedy in a case such as this one, when
other means exist both for reparation of the damage and for the judgment
and required penalties.
Therefore, given the characteristics of the present case, the Commission
considers that the lack of adequate domestic remedies for clarifying the
alleged violation of the rights to life and to personal integrity of Leonel
de Jesús Isaza Echeverry and his relatives, the requirements in the American
Convention pertaining to the exhaustion of domestic remedies and, consequently,
the six-month period for presentation of a complaint, do not apply.
The resort to the exceptions to the rule of exhaustion of domestic
remedies referred to in Article 46(2) of the American Convention is closely
linked to the determination of possible violations of certain rights enshrined
in the treaty, such as the States duty to guarantee of access to justice
and judicial protection. However,
by its nature and purpose, Article 46(2) is autonomous in relation to the
substantive rules of the Convention.
Therefore, determination of whether the exceptions to the rule of
exhaustion of domestic remedies apply in this case was done before and separately
from the analysis of the alleged violation of Articles 8 and 25, as it is
appraised with different standards than those used to determine violation
of the Convention. It is worth
clarifying that the causes and effects that prevented exhaustion of the
domestic remedies will be considered below in the analysis of merits, in
order to verify whether they constitute violations of the American Convention.
Duplication of proceedings and res
The record of the case shows that the subject of the petition is
not pending before another international organ for settlement, nor does
it reproduce a petition already examined by this or another international
organ. Accordingly, this case satisfies the requirement of Article 46(1)(c)
of the Convention.
The Commission considers that the allegations of the petitioners
regarding the alleged violation of the right to life of Leonel de Jesús
Isaza Echeverry and the personal integrity of María Fredesvinda Echeverry
and Lady Andrea Isaza Pinzón, as well as the delays in the investigation
and the lack of effective sentencing and sanctioning of the responsible
parties, can be characterized as a violation of the rights guaranteed under
Articles 4, 5, 8, 19, 25 and 1(1) of the American Convention, therefore
satisfying the requirements established in Article 47(b) and (c) of said
Conclusions on competence and admissibility
The Commission considers that it is competent to examine the complaint
submitted by the petitioner and that the present case is admissible pursuant
to Articles 46 and 47 of the American Convention.
V. ANALYSIS OF THE MERITS
The Commission must now examine the allegations of fact and law presented
by the parties. First, it will address the circumstances surrounding the death
of Mr. Leonel de Jesús Isaza Echeverry and the responsibility of the State
in relation to the alleged violation of the victim's right to life.
Second, the Commission will refer to the facts and to the responsibility
of the agents of the State with regard to the personal integrity of María
Fredesvinda Echeverry and Lady Andrea Isaza Pinzón, as well as its obligation
to provide special protection to the latter, in her condition as a minor.
The Commission will also examine the State's compliance with its
duty to ensure judicial protection to the victims and their relatives.
Right to life of Leonel de Jesús Isaza Echeverry
The petitioners allege that on April 16, 1993, around 7 p.m., members
of the Nueva Granada battalion
executed Mr. Leonel de Jesús Isaza Echeverry when he was at home in the
north-eastern sector of Barrancabermeja.
The State has not made direct reference to the allegations of fact
presented by the petitioners; rather it has presented information on the
proceedings in progress under military criminal and disciplinary jurisdiction
for a number of members of the Army allegedly involved in committing the
material facts of this case. In
this regard, the Commission notes that on November 25, 1999, the Auditoria
de Guerra 82 ruled that the proceedings on behalf of the State agents
involved should cease, considering that they had shot the victim in response
to an attack with firearms allegedly initiated by the victim himself.
Nonetheless, on September 19, 2000, the Superior Military Tribunal
announced a decision annulling all earlier actions and remitting the investigation
to the military criminal judge attached to the military criminal tribunal
of Bucaramanga. Moreover, on
April 14, 1998, the Procurator General of the Nation imposed the penalty
of severe reprimand on the commander of the patrol attached to Nueva
Granada battalion N° 2 of Barrancabermeja.
The record shows that on April 16, 1993, the commander of Nueva
Granada battalion A.D.A. N° 2 ordered the so-called "Operación Rastrillo N° 5 (Operation Rake N° 5), in order to
conduct search and control operations in the north-eastern neighborhoods
of Barrancabermeja, for "locating subversives breaking the law in the
city, capturing them and/or neutralizing and destroying any armed resistance
presented by the bandits." According
to statements by participants, its commander, Lt. Carrera Sanabria, three
junior officers and approximately 30 soldiers participated in the operation.
According to the version of the members of the Army who testified
in the domestic legal proceedings, the victim was a member of an armed dissident
group who attacked the members of the troop from the doorway of his house,
using his elderly mother as a shield.
The members of the Army involved maintained that they only fired
in self-defense and that, after the confrontation, the victim was found
dead with a revolver in his right hand.
This version of the facts served as the basis for the ruling to cease
the proceeding, ordered by Audit 82 on November 25, 1999.
Nonetheless, in considering the testimony of the Superior Military
Tribunal, it was observed that
can be appreciated from the different versions [..] the details do not agree
and they become contradictory, meriting the taking of further statements
by the investigating judge to clarify the truth of the facts.
the Supreme Military Tribunal decided to annul all previous actions and
to reopen the investigation.
In its ruling of April 14, 1998, the Procurator General of the Nation
confirmed that there were serious contradictions in the declarations of
the implicated members of the Army as to how the confrontation had occurred:
is not understood why Leonel Isaza Echeverry would shoot without first having
been attacked, endangering his own life and the life of his mother, his
companion and his daughter, especially considering that he was confronting
approximately 34 men armed with Galil rifles. Nor is it logical that he
would shield himself behind his mother when facing the Army, an act of such
terrible cowardice that was, in addition, as mentioned earlier, dangerous
and unnecessary, nor that he would throw a grenade into the area where his
relatives were located.
the opinion of the Procurator, the existence of contradictions in the statements
by the military personnel
it possible to affirm that they are lying when they present their version
of the facts; in particular, the lack of veracity of the explanations of
the investigated party makes it possible to construct presumptions against
him, that is, to conclude that this version was prepared to hide a reality
that is unfavorable to his interests from the legal and disciplinary points
addition, the Delegate Procurator for the Military Forces determined that
contents of the public document by which it was reported that Mr. Leonel
de Jesús Isaza Echeverry belonged to the Bolivarian Militia has no backing;
to the contrary, according to the statement of Second Sergeant Jaime Orlando
Piragua Millán, before the death of Mr. Isaza Echeverry, there was no information
that he belonged to a subversive group.
Moreover, it was established that the deceased had no criminal antecedents.
Therefore his elimination did not occur as a result of a counseled
pursuit based on specific circumstances or antecedents, rather it was an
regard to finding a weapon near the lifeless body of the victim, the Procurator
has not been demonstrated by means of technical proof that Leonel Isaza
Echeverry had fired the guns found in his hand and near his body.
In effect, to prove what happened, it would have been convenient
to run dermal nitrate gauntlet and ballistic tests, which was not done.
addition, the Procurator considered that the version of the facts arising
from the declarations of civilians, which are consistent among themselves,
are backed by the proof that can be found in the disciplinary file.
The version considered by the Procurators Office indicates
Mr. Leonel de Jesús Isaza Echeverry, his mother María Fredesvinda Echeverry,
his companion Hermencia Pinzón Cala and his four year-old daughter, Lady
Andrea Isaza Pinzón, were watching television.
They were all inside the house, the front door was open, and they
were sitting in a hall. At
that time, three or four vehicles arrived and members of the Army got out.
From the doorway they said to Isaza Echeverry "son-of-a-bitch
guerrilla, don't move." His
mother said to them, why did they call him a guerrilla, and they answered
her: "don't answer, you
old bitch, we're going to end this," and they immediately began firing,
they fired several times, her son stood up, injured, walked toward a room,
falling down dead next to two beds, face down.
In effect, the statements of Hermencia Pinzón Cala and María Fredesvinda
Echeverry agree concerning the participation of members of the Army in the
execution of Mr. Isaza Echeverry when he was defenseless.
In her statement dated March 16, 1996, Mrs. Hermencia Pinzón Cala,
life companion of the victim and eye witness, said:
arrived and got out of their cars, they meaning the Army, and one of them
came up and aimed at him and shouted, there, you son-of-a-bitch guerilla,
the others surrounded the entire house and fired everywhere, I was there
with my mother-in-law and the girl; when they said that to him, my mother-in-law
answered why did they say that to him, then they said, shut your mouth,
you old bitch, we've come to finish this.
When they aimed at him, he stood up and that's how they shot him,
he was unable to say anything to them, when they shot him, he managed to
get to the bedroom where he fell down, my mother-in-law said to him "nelo,
they killed you" and he answered "yes, Vinda, they killed me";
I was there and I saw it all.
The statement of Mrs. María Fredesvinda Echeverry, mother of the
victim and eye witness, says
were watching television when about eight or nine Army cars drove up, and
they were armed as they got out of the cars and then they shouted, there,
son-of-a-bitch guerrilla, and then I said why guerrilla, and they answered,
because we have come to finish this with fire (a
punto de candela) and they didn't stop talking, they did not search
the house first, they just fired, he ran toward the bed, already wounded,
and then fell down there, I don't know what else they did to him because
we went outside and they were watching us, Hermencia, the girl that lived
with him, and the little girl. Others
stayed inside robbing everything they could, and what they didn't rob they
damaged, the house was left like a strainer [..]
The Commission considers that this case has sufficient elements to
conclude that on April 16, 1993 members of the Nueva
Granada battalion of the Colombian National Army executed Mr. Leonel
de Jesús Isaza Echeverry in his home for no apparent reason while he was
in a complete state of defenselessness.
The execution of Mr. Isaza Echeverry under the aforementioned circumstances
constitutes a serious violation of Article 4(1) of the American Convention
that states that, "(e)very person has the right to have his life respected.
[..] No one shall be arbitrarily deprived of his life."
The right to personal integrity of María Fredesvinda Echeverry and
Lady Andrea Isaza Pinzón
The petitioners allege
that the State is responsible for violating the right to personal integrity
of María Fredesvinda Echeverry and the minor Lady Andrea Isaza Pinzón, who
was four years old at the time. As indicated previously, the State referred to proceedings
pending before the domestic courts to clarify the facts of the case.
It should be mentioned that in the context of the contentious-administrative
process, it was established that the victims elderly mother and four-year
old daughter were wounded by shrapnel from the grenade thrown into Mr. Isaza
Echeverrys house by members of the Nueva
In addition, the petitioners presented a document dated April 17,
1993, certifying that the minor Lady Isaza Pinzón was admitted to the Ramón
González Valencia Hospital, where she was hospitalized for a week to receive
treatment for wounds from a firearm.
With respect to the circumstances in which these wounds were inflicted,
the statement made by Mrs. María Fredesvinda Echeverry indicates that after
Mr. Isaza Echeverry was executed,
they damaged everything, they left, but they hurt the girl. They threw a
grenade on the sidewalk where we were sitting and the girl and I were wounded,
but before I left the house one of my feet was already hurt, then some soldiers
came over [and said] the lady is very sick, well take her to
the hospital because they saw I had lost a lot of blood and I said
get out of here you sons of bitches and the girl got hurt too.
Article 5 of the American Convention establishes that all persons
have the right to respect for their physical, mental and moral integrity.
Moreover, Article 19 of the treaty also establishes that every minor
child has the right to measures of protection required by ... the State.
The testimony and documentary evidence produced in this case establish
that on April 16, 1993, after executing Mr. Leonel de Jesús Isaza Echeverry,
members of the Army threw a grenade into his house for no apparent reason,
fully aware of the presence of the victims mother and minor daughter,
injuring Mrs. Fredesvinda Echeverry and the little girl Lady Andrea Isaza
Based on these elements, the Commission concluded that the State
is responsible for violating the right to personal integrity established
in Article 5 of the American Convention to the detriment of Mrs. María Fredesvinda
Echeverry, as well as the right to personal integrity associated with the
obligation to provide due protection for minors, as established in Articles
5 and 19 of said instrument, to the detriment of Lady Andrea Isaza Pinzón.
Legal protection for victims and State obligation to respect and
guarantee rights protected under the Convention
The petitioners allege that the State failed to fulfill its obligation
to investigate the facts of the case and to judge and sanction those responsible
as provided in Articles 8 and 25 of the American Convention because the
investigation is still pending before military criminal jurisdiction.
According to the information provided by the different parties, on
May 11, 1993, Tribunal 24 of Criminal Military Proceedings, located in the
Municipality of Barrancabermeja, opened an investigation into the facts
involved in this case. Through
its December 9, 1996 ruling, the court ruled on the legal situation of Major
Hernán Carrera Sanabria on a provisional basis, proffering security measures
against him consisting of preventive detention without benefit of release
from prison. On April 10, 1997,
the court ordered security measures consisting of preventive detention with
benefit of provisional freedom against the soldiers Alexander Bonilla Collazos,
Antonio Chivatá and José Cruz González.
On November 25, 1999, Defense Audit 82 ruled to cease proceedings
against the members of the military, considering that they had acted in
compliance with their duty in using arms to defend themselves from attack
by the victim. The representative of the Public Ministry appealed this decision
on December 10, 1999. On September
19, 2000, the Superior Military Tribunal handed down a ruling annulling
all earlier actions, and remitted the investigation to the military judge
of Bucaramanga, where it remains pending.
In view of these elements the Commission must determine whether the
judicial action taken by the State and carried out under military jurisdiction
for seven years meets the standards established by the American Convention
in terms of access to justice and judicial protection.
Article 8(1) of the American Convention on Human Rights establishes
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.
turn, Article 25 of the American Convention establishes that:
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
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such remedies
These norms establish the obligation to provide access to justice
with guarantees of competence, independence and impartiality within a reasonable
period of time and with due guarantees, as well as the general obligation
to provide effective legal remedy against the violation of fundamental rights,
incorporating the principle of efficiency of procedural instruments or mechanisms.
As stated by the Inter-American Court of Human Rights:
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.
As is shown by the elements provided by the parties, seven years
after the facts referred to in this case, the investigation is pending under
military criminal justice without any real judgment or sanction of the State
agents involved in the extrajudicial execution of Leonel de Jesús Isaza
Echeverry and in violation of the right to personal integrity of his relatives.
In this respect, the Commission must reiterate once more that, due
to its nature and structure, military criminal jurisdiction does not meet
the standards of independence and impartiality required by Article 8(1)
of the American Convention, which are wholly applicable in this case. The
unsuitability of the Colombian military courts as a forum for examining,
judging and sanctioning cases involving human rights violations has already
entered into a pronouncement of the Commission:
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
the Inter-American Court recently expressed that:
a democratic Government of Laws the penal military jurisdiction shall have
a restrictive and exceptional scope and shall lead to the protection of
special juridical interests, related to the function assigned by law to
the military forces. Consequently, civilians must be excluded from the military
jurisdiction scope and only the military shall be judged by commission of
crimes or offenses that by their own nature attempt against legally protected
interests of military order.
As expressed in previous rulings of the Inter-American Court of Human
Rights, the Constitutional Court of Colombia itself has addressed the jurisdiction
of military courts to examine cases concerning human rights violations,
a crime to fall within the competence of the military criminal justice system
there must be a clear connection from the beginning between the crime and
activities of the military service. In other words, the punishable act must
occur as excessive or an abuse of power within the sphere of an activity
directly related to the function itself of the armed forces. The connection
between the criminal act and the activity related to military service is
broken when the crime is extremely grave, as in the case of crimes against
the human genus. Under these circumstances, the case shall be remitted to
the civil justice system.
Commission considers that the extrajudicial execution of Mr. Leonel de Jesús
Isaza Echeverry by members of the military and the injuries caused to his
mother and minor child cannot be considered a legitimate activity in connection
with functions pertaining to the Army. In this case, the gravity of the
violation of the victims right to life and personal integrity makes
the trial of those responsible within the sphere of military jurisdiction
The American Convention obliges States to prevent, investigate, identify
and sanction the authors of human rights violations and those involved in
their cover-up. As indicated by the Inter-American Court,
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 for 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.
this sense, the context of Article 25 is directly linked to Article 8(1),
which establishes the right of all persons to a hearing with due guarantees
within a reasonable period of time by an independent and impartial judge
or tribunal and confers to victims relatives the right to investigate
their disappearance and death by State authorities, to carry out a process
against the liable parties of unlawful acts, to impose the corresponding
sanctions, and to compensate damages suffered by their relatives.
In this case, the State has not arbitrated the required measures
for satisfying its obligation to investigate the extrajudicial execution
of the victim, judge and sanction those responsible and dictate reparation
for his family members. The execution of Mr. Isaza Echeverry remains unresolved,
which, as has been indicated by the Court, fosters chronic recidivism
of human rights violations and total defenselessness of victims and their
Nor has the State complied to date with its obligation to provide
compensation for violation of the right to personal integrity against the
mother of the victim and his four-year old daughter.
The Commission also considers that the State has failed to comply
with its obligation under Article 1(1) of the American Convention, by which
State Parties must ensure the free and full exercise of the rights recognized
by the Convention to every person subject to its jurisdiction.
This obligation implies the duty of the States Parties to organize
the governmental apparatus and, in general, all the 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,
the States must prevent, investigate and punish any violation of the rights
protected in the American Convention.
The Inter-American Court of Human Rights has sustained that:
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./
this case, seven years have passed and the State has still not yet effectively
carried out its duty to judge and sanction those responsible for the extrajudicial
execution of the victim and provide reparation for his relatives.
Therefore, based on the facts and applicable law expounded above,
the Commission concludes that the State has not fulfilled its obligation
to investigate the execution of the victim and judge those responsible pursuant
to Articles 8(1) and 25 of the American Convention or its duty to ensure
the fulfillment of its obligations in accordance with Article 1(1) of this
PROCEEDINGS SUBSEQUENT TO THE ISSUANCE OF REPORT
PURSUANT TO ARTICLE 50 OF THE AMERICAN CONVENTION
On December 8, 2000, the Commission approved Report
115/00 pursuant to Article 50 of the American Convention.
In this report, the Commission concluded that the State was responsible
for violating the right to life of Mr. Leonel de Jesús Isaza Echeverry,
as established in Article 4 of the American Convention; the right to personal
integrity of Mrs. María Fredesvinda Echeverry, as established in Article
5 of the American Convention; the right to personal integrity and noncompliance
with the obligation to adopt special measures of protection in relation
to the minor Lady Andrea Isaza Pinzón, as established in Articles 5 and
19 of the American Convention; as well as noncompliance with the obligation
to provide due judicial protection for the victims in this case, in accordance
with Articles 8 and 25, in conjunction with Article 1(1) of the treaty.
Likewise, the Commission recommended that the State:
(1) conduct an impartial and effective investigation of those responsible
for the extrajudicial execution of Mr. Leonel de Jesús Isaza Echeverry;
(2) adopt the necessary measures for compensating the consequences of violations
committed to the detriment of María Fredesvinda Echeverry and Lady Andrea
Isaza Pinzón, as well as provide due indemnity for the family members of
Leonel de Jesús Isaza Echeverry; and (3) adopt the measures necessary for
avoiding a repetition of these events in the future, in conformance with
the duty of prevention and guarantee of basic rights recognized in the American
Convention, as well as adopt the necessary measures for full compliance
with the doctrine developed in the Constitutional Court of Colombia and
by this Commission in the investigation and judgment of similar cases under
ordinary criminal justice. On December 11, 2000, the Commission remitted
this report to the State, with a period of two months to comply with its
On January 29, 2001, the State addressed the Commission in order
to report that
analyzed the case and consulted with the competent authorities, the National
Government has decided to include it in the project to be carried out under
the direction of the Ombudsman in order to comply, within the possibilities
of the Colombian legal system, with the recommendations formulated by the
aforementioned project indicates that the State has considered it pertinent
to request the Ombudsman to prepare a special report prior to August 21,
2001 to further compliance with recommendations contained
[..] in the framework of the legal and constitutional competencies in force
in our country.
According to this project, the Ombudsman would prepare a report taking
into consideration the opinion of the parties involved in the process before
the IACHR, the victims or their beneficiaries, the corresponding judicial
and administrative authorities, and the persons and institutions whose opinion
is considered pertinent. According to the project, the Ombudsman would establish time
periods and modalities for complying with the conclusions and recommendations
of its own final report, which would also be submitted for consideration
by the Intersectional Committee for Human Rights.
The project states that the State is committed to addressing
the conclusions and recommendations of the Ombudsmans Final Report.
The Commission takes note of the content of the project presented
by the State in response to Report 115/00, approved in conformance with Article 50 of the American
Convention, in this case. Likewise,
the Commission appreciates its willingness to address the recommendations
of the Commission through an evaluation of the conclusions of Report
115/00 to be made in the future by the Ombudsman. However, the States
response does not reflect an adoption of concrete measures or the assumption
of specific and express commitments relative to the recommendations issued
by the Commission. Consequently, the Commission must proceed in accordance
with Article 51 of the American Convention.
In light of the background of facts and applicable law analyzed supra,
the Commission reiterates its conclusions to the effect that the Colombian
State is responsible for violating the right to life of Mr. Leonel de Jesús
Isaza Echeverry established in Article 4 of the American Convention; the
right to personal integrity of Mrs. María Fredesvinda Echeverry established
in Article 5 of the American Convention; the right to humane treatment,
and noncompliance with the obligation to adopt special measures of protection
in relation to the minor Lady Andrea Isaza Pinzón, established in Articles
5 and 19 of the American Convention; as well as noncompliance with the obligation
to provide due judicial protection for the victims in this case, in accordance
with Articles 8 and 25, in conjunction with Article 1(1) of the Treaty.
Based on the analysis and conclusions of this report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS
TO THE COLOMBIAN STATE:
Conduct an impartial and effective investigation before ordinary
jurisdiction for the purpose of judging and sanctioning those responsible
for the extrajudicial execution of Mr. Leonel de Jesús Isaza Echeverry.
Adopt the measures necessary for reparation of the consequences of
violations committed to the detriment of María Fredesvinda Echeverry and
Lady Andrea Isaza Pinzón, as well as providing due indemnity for the relatives
of Leonel de Jesús Isaza Echeverry.
Adopt the measures necessary to avoid similar events from occurring
in the future, in conformance with the obligation of preventing and guaranteeing
the basic rights recognized in the American Convention, as well as adopting
the necessary measures for full compliance with the doctrine developed by
the Colombian Constitutional Court and by this Commission in the investigation
and judgment of similar cases by ordinary criminal justice.
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.
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. 61 and 62). 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)."
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 Vice-Chair; Robert K. Goldman, Hélio Bicudo, Peter Laurie, Julio Prado Vallejo, Commissioners.
Communication of the petitioners dated Mary 22, 1998.
Note EE. 1397 of the General Directorate for Special Affairs, July 12,
Note EE. 2375 of the General Directorate for Special Affairs, December
Colombia ratified the American Convention on Human Rights on July 31,
Communication from the petitioners dated October 1, 1999.
On December 9, 1996, the court issued a provisional ruling on the legal
situation of Major Hernán Carrera Sanabria, ordering against him security
measures consisting of preventive detention.
On April 10, 1997, the court issued a ruling on the legal situation
of the soldiers Alexander Bonilla Collazos, Antonio Chivatá and José
Armando Cruz González, ordering on them security measures consisting
of preventive detention with the benefit of provisional freedom.
I/A Court HR Velásquez Rodríguez
Judgment of July 29, 1988, paragraph 63.
Idem, paragraph 64.
IACHR Third Report on the Situation
of Human Rights in Colombia (1999), page 175; Second
Report on the Situation of Human Rights in Colombia (1993), page
246; Report on the Situation of
Human Rights in Brazil (1997), pages 40-42.
I/A Court H.R Durand and Ugarte
of August 15, 2000, para.
I/A Court H.R. Velásquez Rodríguez
Judgment of July 29, 1988,
Report N° 52/97, Case 11.218,
Arges Sequeira Mangas, Annual Report of the IACHR 1997, paragraphs
96 and 96.
See also Report 55/97,
See for example, Report N° 15/95,
Annual Report of the IACHR, paragraph 71; Report
N° 61/99, Annual Report of the IACHR 1999, paragraph 51; Report N° 5/98, Annual Report of the IACHR 1998, paragraph 63; Report
57/00, case 12.050, paragraph 41.
On November 25, 1999, the judge of the first instance, Commander of
the Fifth Army Brigade, declared absence of probative merit for issuing
a ruling of Summons to War against members of that institution, Lt.
Hernán Carrera Sanabria, volunteer soldiers Alexander Bonilla Collazos,
Jose Armando Cruz González and Manuel Antonio Chivata Gallego, with
regard to the crimes of homicide, personal injury, larceny, and damages
to other partys goods that would impute them; consequently all
proceedings against them were ceased.
Resolution of the General Procurator
of the Nation, of April 14, 1998, File N° 022-139. 783, page 13.
Superior Military Tribunal of the Military Forces of Colombia, Cabrera Sanabria Hernán and others, Ruling of September 19, 2000, page
Idem, pages 9 and 10.
Resolution of the Procurator General
of the Nation, dated April 14, 1998, File N° 022-139. 783, page
Delegate Procurator for the Military Forces, decision dated July 17,
1997, by which the junior officer Lt. Hernán Carrera Sanabria was sanctioned
with a 90-day suspension, as commander of the patrol attached to Nueva Granada battalion A.D.A. N° 2 (fls. 672 to 685), cited in Ibidem,
Idem, page 28.
Idem, page 26.
Idem, page 15.
The statement also says:
"They continued shooting at the house and at that moment
I started looking for the girl who had hidden, and I found her under
the dining room table, they were all there taking things and shooting
at the walls, I got the girl and we went outside, we sat on the sidewalk
next door, but the Army was watching us, then they grabbed me by the
hair and forced me to leave the girl with my mother-in-law and they
beat me, they took me inside and one of the said to the one who had
me by the hair to take me out into the yard and kill me, and at that
moment they got a weapon and forced me to take it, they said take it
and turn on the light, but there was no light in the house because they
had damaged everything, and I fought them and was able to get away,
and went outside, and I realized that they were going to kill me too,
so then I escaped."
Decision of the Prosecutor General
dated April 14, 1998, File N° 022-139.783, page 14.
Document from the Ramón González Valencia Hospital dated February 21,
1997, certifying the admission of Lady Isaza Pinzón, who was hospitalized
in the Pediatric Surgery Service from April 17, 1993 to April 24, 1993.
The diagnosis was left pneumo-hemothorax and the
procedure applied was closed thoracostomy.
Communication from the petitioners dated May 22, 1998.
I/A Court H.R.. Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, para. 91.
IACHR Third Report on the Situation
of Human Rights in Colombia (1999), p. 175 to 186. See also Second Report on the Situation of Human Rights in Colombia (1993),
p. 237, where it states The military tribunals do not guarantee
the right to access justice since it lacks independence, which is a
basic requisite for the existence of this right.
In addition, the judgments issued have shown a notable partiality,
they frequently abstain from imposing sanctions on members of the security
forces that likely participated in serious human rights violations.
I/A Court H.R. Durand and Ugarte
16, 2000, para. 117.
Constitutional Court, Decision C-358 of August 5, 1997
I/A Court H.R Loayza Tamayo Case,
27, 1998, paragraph 169.
I/A Court H.R Durand and Ugarte
of August 16, 2000, paragraph 130.
I/A Court H.R Paniagua Morales
et al Case, March
8, 1998, paragraph 173.
I/A Court H.R Velásquez Rodríguez
of July 29, 1988, paragraph 166.
Idem, paragraphs 174 and 176.
Note EE 199 from the Director
General of Multilateral Organisms of the Ministry of Foreign Affairs,
dated January 29, 2001.
Project of the Colombian State regarding certain cases being processed
by the Inter-American Commission on Human Rights, concerning which reports
have been proffered pursuant to Article 50 of the American Convention
on Human Rights, as an attachment to Note EE
199 from the Director General of Multilateral Organisms of the Ministry
of Foreign Affairs, dated January 29, 2001.
Note EE 0705
General Director of Special Affairs(in charge), Ministry of Foreign
Affairs, April 3, 2001.