Giaccomo Turra v. Colombia, Case 11.662, Report No. 74/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 139 (2001).
REPORT No. 74/01
October 10, 2001
On August 21, 1996, the Inter-American Commission on Human Rights (hereinafter
the Commission) received a petition submitted by the Colombian
Commission of Jurists (hereinafter the petitioners) in which it
is alleged that on September 3, 1995, Mr. Giaccomo Turra, of Italian nationality,
died while in the custody of agents of the National Police in the city of
Cartagena, department of Bolívar, Republic of Colombia (hereinafter the
State or the Colombian State).
The petitioners allege that the State is responsible for violating
the rights to life, humane treatment, personal liberty, and a fair trial,
set forth in Articles 4, 5, 7, and 8 of the American Convention on Human Rights
(hereinafter the American Convention) to the detriment of Giaccomo
Turra, in conjunction with the general obligation to respect and ensure the
rights established in the Convention.
The State, for its part, alleges that the judicial proceedings aimed
at clarifying the death of Giaccomo Turra are still pending.
Accordingly, it requested that the Commission declare the petitioners
claim inadmissible based on failure to exhaust domestic remedies, as required
by Article 46(1)(a) of the American Convention.
In response, the petitioners alleged that the claim submitted to the
IACHR fits under the exceptions to the exhaustion requirement provided for
at Article 46(2)(c) of the same treaty.
Based on the analysis of the parties positions, the Commission
concluded that it is competent to take cognizance of this claim, and that
it is admissible in keeping with Articles 46 and 47 of the American Convention.
PROCESSING BEFORE THE COMMISSION
On August 23, 1996, the Commission proceeded to process the claim as
petition number 11.662, in keeping with the Commissions Regulations
in force until April 30, 2001, and forwarded the pertinent parts of the complaint
to the Colombian State, giving it 90 days to submit information.
On November 25, 1996, the State requested an extension, which was duly
granted by the Commission. On
January 10, 1997, the State submitted its answer, and the pertinent parts
were forwarded to the petitioners for their observations.
On March 21, 1997, the petitioners requested an extension, which was
duly granted by the Commission. On
April 18, 1997, the petitioners submitted additional information, which was
forwarded to the State. On April 28, 1997, the Commission forwarded additional
information on the case to the State.
On January 27, 1998, the State asked the Commission to postpone a hearing
on this matter scheduled for the 98th regular session of the IACHR. On January
30, 1998, the Commission communicated the postponement of that hearing until
its subsequent regular session. On August 18, 1998, the Commission reiterated
to the State its request for information of April 22, 1997.
On October 5, 1998, during its 100th regular
session, the Commission held a hearing on the instant matter with the
presence of both parties. On
October 21, 1998, the Commission addressed the parties to formally place itself
at their disposal to pursue a friendly settlement.
On November 28, 1998, the State indicated that it was not appropriate
to initiate the friendly settlement procedure because domestic remedies had
not been exhausted as required by Article 46(1) of the American Convention.
On October 1, 1999, during its 104th regular session, the Commission held a second hearing on the matter
with the participation of both parties.
During the hearing, the petitioners presented additional information,
which was forwarded to the State for observations. On November 5, 1999, the
State requested an extension, which was duly granted. On December 13, 1999, the State presented additional information.
That information was forwarded to the petitioner. On March 20, 2000, the petitioners
notified the IACHR that the Center for Justice and International Law (CEJIL)
was joining the proceeding as co-petitioner.
On June 28, 2000, the petitioners submitted additional information,
which was forwarded to the State. On
July 28, 2000, the State submitted its observations on the information submitted
by the petitioners.
THE PARTIES POSITIONS
The petitioners position
The petitioners allege that on July 13, 1995, Italian citizen Giaccomo
Turra, 24 years of age, was detained by members of the National Police at
a restaurant in the city of Cartagena, department of Bolívar.
Mr. Turra had entered the establishment in an excited state and in
search of help. The petitioners
note that the agents of the National Police who appeared at the place tied
his feet and hands and forcefully placed him in a police car.
The petitioners account indicates that, given the physical and
emotional state of Giaccomo Turra, at approximately 11:45 p.m. the police
agents decided to stop at the Bocagrande Hospital, to seek medical assistance.
Specifically, they are alleged to have asked the attending physician
in charge of the emergency room, Dr. Amira Fernanda Osorio, to give the detainee
a sedative. Dr. Osorio is said
to have asked to perform a medical exam of the detainee, but the State agents
allegedly refused, arguing that Mr. Turra had to be transferred to police
facilities immediately. Immediately
thereafter, the medical personnel allegedly applied the sedative in the police
vehicle, after which it left and went to the Third Police Station of Bocagrande.
Once there, the commander in charge at the time refused to receive
Giaccomo Turra, since he was unconscious, and at approximately 12:45 a.m.
the agents had to take him back to the Hospital.
petitioners allege that upon arrival at the Hospital, the victim showed no
vital signs and had visible lesions all about the body.
They note that the autopsy performed by Dr. Ana Magola Manga confirms
that Giaccomo Turra died from multiple blows and contusions.
facts of this case were initially investigated by the 30th Departmental Prosecutor,
of the Departmental Office of the Attorney General of Cartagena.
On October 2, 1995, the 30th Departmental Prosecutor forwarded the
investigation to the military criminal courts, on the basis that Giaccomo
Turra had had contact with members of the National Police prior to his death.
Later, on October 4, 1995, the military criminal courts returned the
investigation to the regular criminal courts.
On October 5, 1995, a commission was formed to carry out the investigation,
coordinated by the 6th Prosecutor of the Unit on Crimes against Life. On November
27, 1995, the investigation was sent to the Departmental Office of the Prosecutor
of Bogotá. Nonetheless, on March 16, 1996, the Office of the Attorney
General removed the case to the military criminal courts, to re-open the investigation
into the police agents involved.
59th Judge of Military Criminal Investigation ordered the investigation re-opened,
and by order of July 22, 1996, he ruled that no effort be made to detain the
police agents implicated in the case.
This decision was affirmed by the Superior Military Tribunal.
On June 6, 1997, the case was forwarded to the Auditoría Verbal
de Guerra, a military court for the department of Bolívar.
On September 30, 1998, the court-martial (Consejo Verbal de Guerra)
acquitted the National Police agents involved.
This decision was appealed to the Superior Military Tribunal, which
affirmed the decision of the court-martial.
This decision was appealed, in turn, to the Supreme Court of Justice
by a motion for cassation, which is now pending before that court.
November 17, 1995, the Office of the Procurator General for the District of
Cartagena decided to refrain from opening an investigation into the police
agents investigated. Later, on
April 17, 1998, the Office of the Delegate Procurator for the National Police
(Procuraduría Delegada para la Policía Nacional) decided to overturn
the previous decision and ordered the disciplinary investigation re-opened.
On November 12, 1998, the Office of the Procurator General for the
District of Cartagena de Indias absolved the police agents implicated in the
case of any liability.
should be noted that the investigation of the facts by the disciplinary justice
system and the military criminal justice system exonerated the police officers
involved. The petitioners allege that the examination of the case by the military
justice system violates the judicial protection provisions of the American
15. Based on these allegations, the petitioners ask the Commission to declare the State responsible for violating the rights to life, humane treatment, personal liberty, and access to justice, of Giaccomo Turra, provided for at Articles 4, 8, and 25 of the American Convention, as well as the general obligation to respect and ensure the rights protected by the American Convention.
relation to meeting the admissibility requirements established in the American
Convention, the petitioners argue that this claim should be considered in
light of the exception to the prior exhaustion requirement provided for at
Article 46(2)(b) of that treaty, considering that the examination of the case
by the military justice system, it is argued, impeded access to a judicial
remedy adequate to clear up the facts surrounding the victims death.
The States position
State argues that the claim presented by the petitioners does not constitute
a violation of the rights enshrined in the American Convention and that therefore
it should be declared inadmissible.
It considers that the evidence collected in the proceedings before
the domestic courts indicate that the police agents involved in the events
around the death of Giaccomo Turra lacked a motive to cause harm to the victim. It
notes that the administrative and judicial tools available under Colombias
domestic law will continue to be used to clarify the facts surrounding the
victims death, and the responsibility of its agents in the facts alleged
depends on the determinations made by the judicial authorities.
State alleges that domestic remedies have not been exhausted, and that the
exceptions to this requirement provided for at Article 46(2)(c) of the American
Convention do not apply to the facts in the instant case.
First, it considers that the victims next-of-kin have participated
in the proceedings before the military criminal court as a civilian party,
and therefore have had access to a remedy adequate to cure the violation,
in keeping with the guidelines established by the judgments of the Constitutional
Court of Colombia.
Second, it asserts that there has not been any unwarranted delay in
reaching a final decision, due to the complexity of the case, considering
the criteria established by precedents in international human rights law.
In addition, it considers that there has been a procedural dynamic,
in the proceeding, that indicates that the courts have advanced effectively
towards clarifying the facts.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
petitioners are authorized by Article 44 of the American Convention to present
complaints to the IACHR. The
petition notes that the alleged victim is an individual with respect to whom
Colombia undertook to respect and ensure the rights enshrined in the American
Convention. As for the State, the Commission notes that Colombia has been
a state party to the American Convention since July 31, 1973, when the respective
instrument of ratification was deposited. Therefore, the Commission is competent
ratione personae to examine the
Commission is competent ratione loci
to take cognizance of the petition, as it alleges violations of rights protected
in the American Convention that would have taken place in the territory of
a state party. The IACHR is competent
ratione temporis insofar as the obligation to respect and ensure the
rights protected in the American Convention was already in effect for the
State on the date when it is alleged that the facts stated in the petition
took place. Finally, the Commission
is competent ratione materiae, because
the petition alleges violations of human rights protected by the American
Exhaustion of domestic remedies and the time period for submitting
State alleges that the petitioners claim should be declared inadmissible
considering that the final decision on the case is still pending.
The petitioners, for their part, argue that the investigation of the
case by the military criminal courts has deprived the victims next-of-kin
of access to an adequate remedy. Accordingly,
they invoke the exception provided for at Article 46(2)(c) of the American
46(1) of the American Convention establishes, as an admissibility requirement
for petitions, that domestic remedies first be exhausted.
Nonetheless, Article 46(2) provides that this requirement is not applicable
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have allegedly
the party alleging violation of his rights has been denied access to
the remedies under domestic law or has been prevented from exhausting them;
there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.
In this connection, the Inter-American
Court has established that the petitioners need only exhaust remedies that
are adequate for readdressing the violation alleged, meaning that
these remedies must be suitable to address an infringement of a legal right.
Commission observes that, as appears from the record, the case regarding the
death of Giaccomo Turra was initially taken up by the 30th Prosecutor (Fiscalía
30) of the Specialized Unit on Crimes against Life, and that on October 2,
1995, it was removed to the military criminal courts.
On October 4, 1995, the 59th Judge of Military Criminal Investigation
returned the process to the Office of the Attorney General (Fiscalía),
as it considered that there was no evidence linking members of the State security
forces to the victims death. Upon assuming jurisdiction once again,
the Office of the Attorney General formed a special commission to investigate
the case, and on March 16, 1996, returned the investigation to the military
criminal courts. On taking up
the investigation anew, the 59th Judge of Military Criminal Investigation
ruled that the police agents
accused should not be detained;
they were ultimately acquitted by a court-martial. The acquittal was affirmed by the Superior Military Tribunal.
It should be noted that in the case underlying the claim that is the
subject of this decision on admissibility, the military justice system has
been used to investigate the death, in custody, of Giaccomo Turra, and to
judge the members of the police accused of responsibility.
Commission has referred on several occasions to the unsuitability of military
courts as a forum for examining alleged violations of human rights committed
by members of the armed forces or National Police.
In addition, the Inter-American Court has noted that military justice
is only an adequate forum for trying members of the military for crimes or
misdemeanors which by their very nature infringe legal interests particular
to the military order. For
the purposes of the admissibility of this claim, the Commission considers
that the victims next-of-kin have been deprived of access to a judicial
remedy that is adequate for investigating, prosecuting, and punishing the
persons responsible for the victims death, within the meaning of the
exception provided for at Article 46(2)(b) of the Convention.
Accordingly, the requirements established at Article 46(1)(a) and (b)
of the American Convention are not applicable in this case.
Commission has noted on previous occasions that invoking exceptions to the
rule of prior exhaustion of domestic remedies provided for in Article 46(2)
of the Convention is closely linked to the determination of possible violations
of certain rights enshrined therein, such as the guarantees of access to justice.
Nonetheless, Article 46(2), by its nature and purpose, has autonomous content
with respect to the substantive provisions of the Convention. Therefore, the
determination of whether the exceptions to the prior exhaustion rule that
are set forth therein are applicable to the instant case should be made prior
to and separate from the analysis of the merits, since it depends on a different
standard of appreciation than that used to determine whether there has been
a violation of Articles 8 or 25 of the Convention. It should be clarified
that the causes and effects that have impeded the exhaustion of domestic remedies
in this case will be analyzed, as pertinent, in the Report adopted by the
IACHR on the merits of the dispute, so as to find whether they effectively
constitute violations of the American Convention.
Duplication of procedures and res
does not appear from the record that the petition is pending before any other
international procedure, nor that it reproduces a petition already examined
by this or any other international body.
Thus the requirements established in Articles 46(1)(c) and 47(d) of
the Convention are deemed to have been met.
Characterization of the facts alleged
Commission considers that the arguments on the alleged violation of the right
to humane treatment, personal liberty, life, and judicial protection, formulated
by petitioners, could tend to establish a violation of the rights guaranteed
at Articles 4, 5, 7, 8, and 25, in relation to Article 1(1) of the Convention.
Commission concludes that it is competent to examine the claim submitted by
the petitioners regarding the alleged violation of Articles 4, 5, 7, 8, and
25, in conjunction with Article 1(1) of the Convention, and that the case
is admissible as per the requirements established in Articles 46 and 47 of
the American Convention.
on the foregoing arguments of fact and of law, and without prejudging on the
merits of the matter,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible in relation to the alleged violation
of Articles 4, 5, 7, 8, 25, and 1(1) of the American Convention.
To notify the Colombian State and petitioners of this decision.
To initiate the merits phase.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., October 10, 2001.
Grossman, President; Juan E. Méndez, First Vice-President; Marta Altolaguirre,
Second Vice-President; Commissioners Robert K. Goldman, Peter Laurie, and
Julio Prado Vallejo.
Note EE/DH/055890 from the General Office for Special Matters of November
Note EE/DH/000981 from the General Office for Special Matters of January
Note EE/DH/055890 from the General Office for Special Matters of November
I/A Court H.R., Case of Velásquez Rodríguez, Judgment of July 29, 1988,
Note EE/DH Nº 055890 of the General Office for Special Matters of November
Report Nº 84/98, Annual Report of the IACHR 1998, Volume I, para. 41.
The 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 this right to be exercised. Moreover, their rulings have frequently
been biased and have failed to punish members of the security forces whose
serious involvement in serious human rights violations has been established.
I/A Court H.R., Case of Durand and Ugarte, Judgment of August 16, 2000,