Norberto Javier Restrepo v. Colombia, Case 11.726, Report No. 84/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 185 (2000).
NORBERTO JAVIER RESTREPO
October 5, 2000
On February 19, 1997, the Inter-American Commission on Human Rights
(hereinafter the Commission) received a petition submitted by
the Association of Relatives of the Disappeared (ASFADDES), the Latin American
Federation of Associations of Relatives of the Disappeared (FEDEFAM), the
Colombian Commission of Jurists, and the Center for Justice and International
Law (CEJIL) (hereinafter the petitioners) against the Republic
of Colombia (hereinafter the State) in which it denounced that
on June 2, 1992, members of the National Police detained Norberto Javier
Restrepo (hereinafter the victim) in the municipality of Medellín,
department of Antioquia, and that days later he was found dead with signs
The petitioners allege that the State is responsible for violations
of the rights to life, humane treatment, personal liberty, a fair trial,
and judicial protection, set forth at Articles 4, 5, 7, 8, and 25 of the
American Convention on Human Rights (hereinafter the American Convention)
in conjunction with the general obligation to guarantee respect for the
rights established in the Convention.
The State submitted information on the status of the domestic proceedings
aimed at clarifying the facts, and argued that the petition should be declared
inadmissible on grounds that the participation of state agents in the detention
and death of the victim had not been shown.
The petitioners argued that the judicial investigation still pending
had not refuted the participation of state agents in the facts alleged and
asked the Commission to declare the case admissible under the exception
to the prior exhaustion of domestic remedies requirement set forth in Article
46(2)(c) of the Convention.
Based on the analysis of the parties positions, the Commission
concluded that it is competent to examine the petitioners claims and
that the case is admissible under Articles 46 and 47 of the American Convention.
PROCESSING BEFORE THE COMMISSION
On March 3, 1997, the Commission proceeded to open the case as Case
Nº 11.726 and transmitted the pertinent parts of the complaint to the State,
giving it 90 days to submit information.
On July 25, 1997, the State submitted its answer, whose pertinent
parts were transmitted to the petitioners.
On November 3, 1997, the petitioners submitted additional information,
which was timely remitted to the State with a term of 30 days to present
observations. On August 17,
1998, the Commission reiterated its request to the State to provide information.
On October 27, 1998, the State submitted its observations, which
were duly transmitted to the petitioners.
On March 1, 1999, during the 102nd session, a hearing was held on
the case attended by both parties.
On March 23, 1999, a written copy of the arguments submitted by the
petitioners during the hearing was transmitted to the State, which was given
30 days to submit its observations thereto.
However, as of the date of approval of this Report the State has
not done so.
POSITIONS OF THE PARTIES
The petitioners affirm that on June 2, 1992, Norberto Javier Restrepo
left his home in the city of Medellín at 6:30 a.m.; no more was heard from
him that day. The next day
his mother, Lucila Restrepo Posada, received a brief call from her son in
which he asked about his family members.
On June 5, his mother received an anonymous telephone call in which
she was told that her son had been disappeared.
The petitioners allege that on June 6, 1992, the victims mother
began the search for her son at police stations, at the F-2 (intelligence
agency of the National Police), in hospitals, and through the media.
On June 7, Norberto Restrepo communicated with his mother for the
last time to tell her that he had been detained along the highway on the
road to Las Palmas. That
same day Mrs. Restrepo Posada presented an oral report of her sons
disappearance to the Procuraduría Departamental of Antioquia where,
the next day, she was allegedly told that the National Police had undertaken
an operation in Las Palmas. On
June 10, 2000, the victims mother presented a complaint to the Tenth
Court of Criminal Investigation of Medellín.
On June 9, 1992, Norberto Restrepos body was found along the
highway that leads to the El Cairo cement factory in the municipality
of Santa Bárbara. In the document
certifying the official act of removal of the corpse, the municipal inspector
indicated as cause of death presumed suicide by bullet even
though no fire arms were found at the place and the victim was found with
his hands on his head; it was ordered that the corpse be buried as a nameless
person, without being identified.
On June 10, 1992, the Center on the Disappeared informed
the victims family members that a body was found with the characteristics
of Norberto Restrepo in the municipality of Santa Bárbara.
On June 11, the victims father, José Marco Restrepo, went to
Santa Bárbara and had the corpse exhumed and an autopsy performed.
The autopsy revealed that the body had acid burns, particularly on
the face, lacked the teeth in the lower jaw, had a fractured right hand,
and two bullet wounds, and that death was caused by tissular anoxia and
wounds inflicted by firearms.
With respect to the arguments of the State, set forth below, as to
the lack of a motive on the part of the official agents for detaining the
victim, the petitioners allege that Mr. Restrepo was an active member of
the political grouping known as the Unión Patriótica and that he was disappeared
at the same time as another five persons who belonged to the same group,
whose incinerated bodies had been found in the municipality of Caldas, between
Medellín and Santa Bárbara, at about the same time.
The petitioners consider that the victims death occurred in
the context of the massive and systematic assassination of members of the
Patriotic Union and the States tolerance of this campaign.
As for the investigations undertaken in the domestic jurisdiction,
the petitioners allege that despite the time elapsed, the proceedings are
still at the preliminary investigation stage, with no suspect.
They call into question the removal of the corpse, which may have
impeded the victims identification, and the legality of the temporary
assignment of the investigation to the departmental prosecutor of the Fifth
Unit on Economic Property. They
argue that the lack of an effective investigation is largely attributable
to the negligence of the official investigation.
In addition, they note that once the investigation was transferred
to the Human Rights Unit of the Office of the Public Prosecutor, the prosecutor
designated to investigate the case was assassinated just days after taking
a series of investigative steps with the victims mother.
The petitioners allege that the State is responsible for violating
the rights to life, humane treatment, personal liberty, a fair trial, and
judicial protection, provided for in Articles 4, 5, 7, 8, and 25 of the
American Convention in conjunction with the general obligation to ensure
respect for those rights, set forth at Article 1(1) of the Convention.
With respect to the admissibility of the claim, the petitioners argued
that the exception to the requirement of prior exhaustion of domestic remedies,
provided for in Article 46(2)(c) of the Convention applies.
They allege that the authorities have engaged in an unwarranted delay
in investigating the case, which has continued for more than eight years,
without initiating the sumario.
The position of the State
In its first answer, the State provided information on the status
of the proceedings in the domestic jurisdiction aimed at clarifying the
kidnapping and death of the victim, without expressly calling into question
compliance with the requirement to exhaust domestic remedies or the assertions
contained in the petition on the delay and the ineffectiveness of the remedies
pursued to clarify the case in the domestic jurisdiction.
Specifically, it reported that on June 10, 1992, the investigation
into the kidnapping of the victim began before the Court of Criminal Investigation
of Medellín, and that later a parallel investigation was initiated into
the victims death in the municipality of Santa Bárbara.
On June 20, 1994, the prosecutor assigned to the Office of the Departmental
Prosecutor for the municipality of Santa Bárbara, handed down an interlocutory
ruling pursuant to Article 118 of Law 23 of 1991, archiving the case.
In addition, the State reported that the departmental prosecutor
of the Fifth Unit on Economic Property ruled that the investigation begun
in Medellín into the kidnapping and subsequent homicide of Mr. Restrepo
be removed to the Second Unit on crimes against life, and that that investigation,
which is at the preliminary investigative phase, is being pursued by the
Tenth Prosecutor Delegate before the Criminal Judges of the Circuit, and
that it had been impossible to identify the direct perpetrators and masterminds
of this crime. Later, the investigation
was moved to the Human Rights Unit of the Office of the Public Prosecutor.
With respect to the alleged involvement of the SIJIN, the intelligence
division of the National Police, in the victims disappearance the
State, in its communication of October 27, 1998, alleged that this was mere
speculation, with no evidentiary support whatsoever.
In addition, it indicated that:
is no evidence that the Colombian State, through any of its agents, has
violated the American Convention on Human Rights, consequently the Government
of Colombia ... asks that ... the Commission refrain from continuing the
processing of this case, without prejudice to the duty to continue the investigations
aimed at clarifying the alleged disappearance of Mr. Norberto Javier Restrepo.
the course of the hearing held during the 102nd session, representatives
of the State clarified that the investigation of the case had been undertaken
without any intent of ruling out the hypothesis of state participation in
the victims death. They
indicated that there were no motives for his detention, and they questioned
the petitioners assertion concerning the victims membership
in the Unión Patriótica.
The representatives of the State recognized the existence of anomalies
in the official act of removal of the victims corpse. Nonetheless,
they asserted that those anomalies had been cured in the autopsy performed
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
The Commission is competent prima
facie to examine the petition in question.
The facts alleged in the petition occurred when the obligation to
respect and ensure the rights established in the Convention was already
in force for the Colombian State.
The Commission thus proceeds to analyze whether this case meets the
requirements established in Articles 46 and 47 of the American Convention.
Exhaustion of domestic
remedies and time for submitting the petition
The Commission notes that the State has not made any express objection
on grounds of failure to exhaust domestic remedies, even though it provided
information about the status of the domestic proceedings.
The petitioners, for their part, argue that the judicial investigation
aimed at clarifying the detention and death of the victim, and judging and
punishing the persons responsible has been drawn out for an unreasonable
time and has proven ineffective, and they ask that the case be declared
admissible under the exception provided for in Article 46(2)(c) of the American
Article 46(2) provides that the requirement of prior exhaustion of
domestic remedies is not applicable when:
a. 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 been violated;
b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies.
As appears from the information provided by both parties, on June
10, 1992, the investigation was begun in the Court of Criminal Investigation
of Medellín into the victims kidnapping.
After the appearance of the victims body in the municipality
of Santa Bárbara, the departmental prosecutor (Fiscal Seccional)
initiated a parallel investigation, which was archived on June 20, 1994.
For his part, the departmental prosecutor for the Fifth Unit on Economic
Property ruled to remit the investigation begun in Medellín into the kidnapping
and later homicide of Mr. Restrepo to the Second Unit on Crimes against
Life, where it was still in the preliminary investigative stage eight years
after the facts.
The Commission considers that, as a general rule, a criminal investigation
should be undertaken promptly to protect the interests of the victims, to
preserve the evidence, and even to safeguard the rights of all persons who
may be considered suspects in the context of the investigation.
As the Inter-American Court has indicated, while every criminal investigation
should meet a series of legal requirements, the rule of prior exhaustion
of domestic remedies should not lead to a situation in which international
action on behalf of victims comes to a halt or is rendered ineffective.
In addition, the Commission notes that in this case, the State did
not expressly and timely allege failure to meet the requirement of Article
46(1) as a grounds of inadmissibility.
Therefore, given the characteristics of this case, the Commission
considers that the exception provided for in Article 46(2)(c) of the American
Convention applies to the claim referring to the alleged violation of the
rights to life, humane treatment, personal liberty and judicial protection
of Norberto Javier Restrepo, and consequently that the requirements set
forth in the American Convention regarding exhaustion of domestic remedies
do not apply, nor, consequently, the six-month period for submitting the
Duplication of procedures and res
It does not appear from the record that the subject matter of the
petition is pending before another international procedure for settlement,
nor that it reproduces a petition already examined by this or any other
international body. Accordingly,
the requirements established in Articles 46(1)(c) and 47(d) of the Convention
have been met.
Characterization of the facts alleged
The Commission considers that the petitioners allegations with
respect to the alleged violation of the rights to life, humane treatment,
personal liberty, and judicial protection of Norberto Javier Restrepo could
constitute a violation of the rights guaranteed in Articles 4, 5, 7, 8,
and 25 of the Convention, in conjunction with Article 1(1).
Since these aspects of the claim are clearly not without foundation
or out of order, the Commission considers that the requirements set forth
in Articles 47(b) and (c) of the American Convention to be met.
The Commission considers that it is competent to examine the claim
submitted by the petitioners, and that the case is, in principle, admissible,
in keeping with the requirements set forth in Articles 46(1)(c) and 47 of
the American Convention.
Based on the arguments of fact and law set forth above, and without
pre-judging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare admissible the petitioners claim as to the alleged
violations of Articles 4, 5, 7, 8, 25, and 1(1), to the detriment of Norberto
To give notice of this decision to the Colombian State and to the
To continue to analyze the merits.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed in the city of Washington, D.C., October 5, 2000.
(Signed:) Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Juan E. Méndez, Second Vice-Chairman; Marta Altolaguirre, Robert K. Goldman,
Peter Laurie and Julio Prado Vallejo, Commissioners.
 See Report 5/97,
Annual Report of the IACHR 1996, p. 103.
 Note EE DH 937187 of the General Bureau for Special
Matters of the Ministry of Foreign Affairs, July 22, 1997.
 Note EE DH 056191 from the General Bureau for Special
Matters of the Ministry of Foreign Affairs, October 27, 1998.
 Colombia ratified the American Convention on Human Rights
on July 31, 1973.
 I/A Court HR, Case of Velásquez Rodríguez, Preliminary Objections, Judgment of June 26, 1987, para. 93.