Wilson Gutiérrez Soler v. Colombia, Case 12.291, Report No. 76/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 155 (2001).
WILSON GUTIÉRREZ SOLER
October 10, 2001
On November 5, 1999, the Inter-American Commission on Human Rights
(hereinafter the Commission) received a petition submitted by
the Corporación Colectivo de Abogados José Alvear Restrepo
(hereinafter the petitioners) in which it is alleged that on August
24, 1994, members of the National Anti-Extortion and Kidnapping Unit of the
National Police (UNASE) and one private individual tortured Mr. Wilson Gutiérrez
Soler after detaining him in the city of Bogotá, Republic of Colombia (hereinafter
the State, the Colombian State, or Colombia).
The petitioners allege that the State is responsible for violating
the rights to humane treatment, a fair trial, and judicial protection, provided
for at Articles 5, 8, and 25 of the American Convention on Human Rights (hereinafter
the American Convention) to the detriment of the alleged victim,
in conjunction with the general obligation to respect and ensure the rights
set forth therein.
The State argued that the petitioners claim is inadmissible since
Mr. Solers case has already been examined by the domestic courts, under
Colombias domestic law. In addition, it argued that the petition had been submitted
outside of the legally permissible time frame, as the six-month period provided
for at Article 46(1)(b) of the American Convention had expired.
Based on the analysis of the parties positions, the Commission
concludes that it is competent to examine petitioners claim, and that
it is admissible under the provisions of Articles 46 and 47 of the American
PROCESSING BEFORE THE COMMISSION
On June 13, 2000, the Commission assigned the claim the number 12.291,
in keeping with the Regulations of the Commission in force until April 30,
2001, and forwarded the pertinent parts of the complaint to the Colombian
State, also on June 13, 2001, giving it 90 days to submit information.
On September 13, 2000, the State requested an extension, which was
duly granted by the Commission. On
October 13, 2000, the State submitted its answer, whose pertinent parts were
forwarded to the petitioners for observations.
On December 1, 2000, the petitioners requested an extension, which
was duly granted by the Commission. On January 4, 2001, the petitioners submitted
additional information. The
pertinent parts of the information were sent to the State, which was given
an additional 30 days to submit its observations.
On February 9, 2001, the State requested an extension to submit its
observations, which was duly granted by the Commission.
On February 26, 2001, during its 110th regular session, the Commission
held a hearing with the presence of both parties.
On July 25, 2001, the Commission asked the State to submit additional
information. On August 23, 2001,
the State requested an extension to submitting said additional information. The Commission granted the extension requested.
On September 17, 2001, the State submitted its observations.
THE PARTIES POSITIONS
The petitioners position
The petitioners allege that on August 24, 1994, members of the National
Anti-Extortion and Kidnapping Unit (UNASE: Unidad Nacional Antiextorsión
y Secuestro) of the National Police detained Mr. Wilson Gutiérrez Soler
in the course of an anti-extortion operation in the city of Bogotá.
The operation was carried out in response to a complaint lodged with
UNASE according to which Mr. Gutiérrez Soler participated in acts related
to the crime of extortion.
The petitioners account indicates that members of the UNASE took
the detainee to the UNASE offices.
It alleges that once there, the victim was interrogated by then-Commander
of the UNASE, Col. Luis Gonzaga Enciso Barón, and by the private individual
who lodged the complaint against him, Mr. Ricardo Dalel Barón.
The petitioners allege that Mr. Gutiérrez Soler was urged to incriminate
himself, accepting that he had engaged in the crime of extortion, and that
when he refused to do so, Messrs. Enciso Barón and Dalel Barón stripped him
and tortured him by introducing a blunt object into his anus and by inflicting
burns on his penis.
petitioners allege that Wilson Gutiérrez Soler signed a self-incriminating
statement under duress and without the presence of an attorney, after having
been tortured. This declaration
was the basis for the special courts in existence at that time known as the
Regional Justice jurisdiction to institute a proceeding against him for the
crime of extortion and to a detention order that prevented his release. On January 20, 1995, the Delegate Prosecutor before the Superior
Court (Fiscalía Delegada ante el Tribunal Superior) decided to revoke
the detention order and to order Mr. Gutiérrez Solers release.
On May 6, 1999, an indictment was issued against Wilson Gutiérrez Soler,
and an arrest warrant was proffered, which was revoked after being appealed
by the defense. According to
the information provided by the petitioners, Mr. Gutiérrez Soler is now free,
but is still under investigation in this proceeding.
August 25, 1994, Mr. Gutiérrez Soler denounced to the delegate of the special
prosecutorial unit known as the Fiscalía Regional, for UNASE (urban
area), the torture he had suffered the day before.
As a result of the complaint, parallel proceedings were initiated before
the military criminal courts and the regular courts.
The 51st Judge of Military Criminal Investigation instituted proceedings
against Col. Luis Gonzaga Enciso Barón for the offense of injuries (lesiones)
and the investigation was transferred to the military prosecutorial unit known
as Auditoría Auxiliar de Guerra Nº 60, where it was decided to suspend
all proceedings against the accused.
This decision was affirmed by the military criminal court on September
30, 1998. For its part, the Office
of the Attorney General initiated an investigation into Mr. Ricardo Dalel
Barón. On January 15, 1999, the
Personal Injuries Unit of the Office of the Attorney General, Prosecutor Nº
248, ruled to preclude the investigation into Mr. Ricardo Dalel Barón, and
ordered that the case be archived. Later,
the victim invoked the special constitutional remedy known as the acción
de tutela before Criminal Court Nº 55 of the Bogotá circuit, which was
rejected. On June 8, 1999, the
Superior Court of the Judicial District of Bogotá affirmed the decision. In June 1999, the Constitutional Court ruled not to review
the decision of the Superior Court, which made it a firm judgment.
addition, according to petitioners account, a series of disciplinary
proceedings were carried out in response to the complaint lodged by Mr. Gutiérrez
Soler. Specifically, on February
27, 1995, the Director of the Judicial Police, Brigadier Hugo Rafael Martínez
Poveda, exonerated Col. Luis Gonzaga Enciso Barón of all disciplinary liability.
Nonetheless, on June 7, 1995, the Office of the Delegate Procurator
for Human Rights (Procuraduría Delegada para la Defensa de los Derechos
Humanos) considered that there were sufficient grounds for drawing up
a bill of charges against Col. Luis Gonzaga Enciso Barón.
In response, the Office of the Procurator General (Procuraduría
General de la Nación) decided to terminate the proceeding alleging that
the prior absolution of Barón in the proceeding carried out by the Director
of the Judicial Police barred the opening of a new proceeding by application
of the principle of non bis in idem.
petitioners allege that the State, through its agents, participated directly
and allowed a private individual to inflict physical torture on Mr. Gutiérrez
Soler while he was in the States custody, in order to extract a confession
from him, in violation of the judicial guarantees that should guide any investigation
where there are allegations of criminal conduct.
In addition, they allege that the State deprived the victim of access
to a remedy adequate to investigate the persons responsible for these violations,
since the state agent accused of torture was tried before the military criminal
courts rather than the regular courts.
In view of these factual allegations, the petitioner considers that
the State has violated the victims right to humane treatment, right
to a fair trial, and right to judicial protection, as well as the general
obligation to respect and ensure the rights protected by the American Convention,
enshrined in Articles 5, 8, 25, and 1(1) of the same treaty.
As regards the admissibility of the claim, the petitioners allege that
it meets the requirements established in Articles 46 and 47 of the American
The States position
State alleges that Wilson Gutiérrez Soler´s claim alleging he was tortured
was examined by the domestic courts, which, in its view, met the obligation
of administering justice under Colombian law.
In this regard, it considers that the Commission should refrain from
reviewing an issue already decided by the domestic courts as though it were
a court of last resort, or court of fourth instance, and accordingly that
the claim should be considered inadmissible.
the course of the hearing held by the Commission during its 110th regular
session, the State indicated that considering that domestic remedies were
exhausted by the decision of June 10, 1999, the petitioners failed to meet
the requirement of submission within six months of the final decision, provided
for at Article 46(1)(b) of the American Convention, and that, accordingly,
the petition had not been submitted in timely fashion.
In its observations of September 17, 2001, the State alleged that in
any event the IACHR should out of equity to the parties..., forward
the complaints in timely fashion, or at least inform them that the complaint
was submitted in timely fashion by the petitioners.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
petitioners are authorized by Article 44 of the American Convention to lodge
complaints with the Commission. The
petition states as the alleged victim an individual with respect to whom Colombia
undertook to respect and guarantee the rights enshrined in the American Convention.
As regards the State, the Commission notes that Colombia has been a
state party to the American Convention since July 31, 1973, the date it deposited
the respective instrument of ratification.
Accordingly, the Commission is competent ratione personae to examine the petition.
Commission is competent ratione loci
to hear the petition insofar as it alleges violations of rights protected
in the American Convention in the territory of a state party to that treaty. The IACHR is competent ratione
temporis insofar as the obligation to respect and ensure the rights protected
in the Convention had already entered into force for the State on the date
on which the facts stated in the petition are alleged to have occurred. Finally,
the Commission is competent ratione
materiae because the petition alleges violations of human rights protected
by the American Convention.
Exhaustion of domestic remedies
46(1)(a) of the Convention establishes as a requirement for a petition to
be admitted ... that the remedies under domestic law have been pursued
and exhausted in accordance with generally recognized principles of international
law. In this case, the
State expressly recognized, in the hearing held in the 110th regular session,
that the domestic remedies had been exhausted by the victim.
In view of this declaration, the Commission considers the requirement
set forth in Article 46(1)(a) of the American Convention to have been met.
Time period for submitting the petition
the course of the hearing held by the Commission at its 110th regular session,
the State alleged that the petitioners had failed to satisfy the six-month
time period for submission of petitions, as required by Article 46(1)(b) of
the American Convention. The
State also made reference to this allegation in its communication of September
17, 2001. This provision establishes
that for a petition to be admitted by the IACHR, it must be submitted within
six months from the date on which the person allegedly injured has been notified
of the final decision of the domestic courts in relation to his or her claim.
appears from the information in the record, on June 10, 1999, after an acción
de tutela brought by the victim was rejected, the ruling of the Superior
Court of the Judicial District of Bogotá that decided to archive the case
over personal injuries
brought at the initiative of the alleged victim became a firm judgment.
The Commission notes that the petition was received by the Executive
Secretariat of the IACHR on November 5, 1999, and that additional information
was requested of the petitioners that was sent in by June 1, 2000.
On June 13, 2000, after analyzing the documents provided by the petitioners,
the Commission decided to begin the procedure and transmit to the State the
pertinent parts of both the initial claim and of the additional information
received at a later date. In
view of the procedural activity and the dates indicated above, the Commission
concludes that the petition was submitted within the six-month period required
by Article 46(1)(b) of the Convention.
Duplication of procedures and res
does not appear from the record that the subject matter of the petition is
pending before any other procedure for international settlement, nor that
it reproduces a petition already examined by this or any other international
body. Accordingly, the requirements
established at Articles 46(1)(c) and 47(d) of the Convention are considered
to have been met.
Characterization of the facts alleged
State has alleged that the decision of the domestic courts that dismissed
the claim by Mr. Gutiérrez Soler based on the provisions of Colombias
domestic law show that in this case, it has met its obligations under the
American Convention. Accordingly,
it challenges the competence of the Commission to undertake what it considers
a review of the decisions adopted in the domestic courts, as a fourth instance,
or court of last resort.
this respect, the Commission considers that it is competent to examine the
claim submitted by the petitioners, including its allegations with respect
to access to the judicial protection to which he has a right, insofar as they
refer to rights protected by the American Convention.
In effect, the elements that appear in the file indicate that, if shown
to be true, the petitioners allegations regarding the acts of torture
allegedly perpetrated against Wilson Gutiérrez Soler, his prosecution based
on a self-incriminating statement allegedly made under duress, and the use
of the military jurisdiction to investigate and prosecute the persons responsible,
tend to establish violations of the rights to humane treatment, a fair trial,
and judicial protection, guaranteed in Articles 5, 8, and 25, in relation
to Article 1(1) of the American Convention.
Accordingly, the claim satisfies the requirements set forth in Articles
47(b) and (c) thereof.
Commission concludes that it is competent to examine the claim submitted by
the petitioners over the alleged violation of Articles 5, 8, and 25, in accordance
with Article 1(1) of the Convention, and that the case is admissible pursuant
to the requirements established in Articles 46 and 47 of the American Convention.
on the arguments of fact and law set forth above, and without prejudging on
THE INTER-AMERICAN COMMISSION ON
To declare the instant case admissible as regards the alleged violation
of Articles 5, 8, 25, and 1(1) of the American Convention.
To report this decision to the Colombian State and the petitioners.
To move on to 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 Washington, D.C., on this the 10th day of October, 2001. (Signed): Claudio Grossman, President; Juan E. Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President; Commission members Robert K. Goldman, Peter Laurie, Julio Prado Vallejo and Hélio Bicudo.
On August 24, 1994, Mr. Ricardo Dalel Barón allegedly lodged a complaint
with the Commander of UNASE, Col. Luis Gonzaga Enciso Barón, against Wilson
Gutiérrez Soler, in which he accused Gutiérrez Soler of attempting to
Petition submitted to the Commission on November 5, 1999.
The petition of November 5, 2001, includes as an annex copies of the medical
certificate from the National Institute of Forensic Medicine (Instituto
Nacional de Medicina Legal) of August 24, 1994, which describes the
victims wounds and the degree to which he was incapacitated.
Note EE 2303 from General Office for Special Matters of the Ministry of
Foreign Affairs of the Republic of Colombia, October 13, 2000.
Note EE 34106 of the General Office for Special Matters of the Ministry
of Foreign Affairs of the Republic of Colombia, September 17, 2001.
Order of June 8, 1999, of the Superior Court of the Judicial District
of Bogotá, Criminal Chamber (Act 50/99).