Ser. C No. 90

Las Palmeras Case, Judgment of December 6, 2001, Inter-Am Ct. H.R. (Ser. C) No. 90 (2001).

In the Las Palmeras case,

the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”), composed of the following judges*:

Antônio A. Cançado Trindade, President;

Máximo Pacheco Gómez, Vice President;

Hernán Salgado Pesantes, Judge;

Alirio Abreu Burelli, Judge;

Sergio García Ramírez, Judge, and

Julio A. Barberis, Judge ad hoc;

also present**,

Manuel E. Ventura Robles, Secretary,

pursuant to articles 29 and 55 of its Rules of Procedure (hereinafter “the Rules of Procedure”), delivers the following judgment on the merits of the matter in dispute between the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) and the State of Colombia (hereinafter “the State” or “Colombia”).

Introduction of the Case

1. The Inter-American Commission submitted this case to the Court via an application dated July 6, 1998, based on a complaint (No. 11,237) received at its Secretariat and dated Bogota, January 27, 1994.

2. In its application, the Inter-American Commission explained the facts upon which its case was based.

On January 23, 1991, the Putumayo Departmental Police Commander ordered members of the National Police to conduct an armed operation in a place known as Las Palmeras, Municipality of Mocoa, Department of Putumayo. Army troopers assisted the National Police.

That morning, children were at the Las Palmeras country schoolhouse, waiting for classes to begin. Two laborers by the name of Julio Milciades Cerón Gómez and Artemio Pantoja, were working on the repair of a septic tank. The brothers Wilian Hamilton Cerón Rojas and Edebraes Norverto Cerón Rojas were rounding up a head of cattle on a nearby hillside. Hernán Javier Cuarán Muchavisoy, the local teacher, was arriving at the school.

The Army forces opened fire from a helicopter, wounding Enio Quinayas Molina, then a six-year old boy on his way to school.

At and nearby the schoolhouse, Police detained the teacher, Cuarán Muchavisoy, the workers, Cerón Gómez and Pantoja, the Cerón brothers Wilian Hamilton and Edebraes, and one other unidentified person, who might have been either Moisés Ojeda or Hernán Lizcano Jacanamejoy. The National Police extrajudicially executed at least six of these people.

The National Police officers and the Army troopers took several measures in an attempt to justify their action. To that end, they put military uniforms on the bodies of some of those killed, burned their real clothes and threatened a number of witnesses in the case. The National Police also put seven corpses on display, claiming that they were the bodies of subversives killed in the supposed clash. Six of the bodies were of the six people the Police detained that day; the circumstances of the death of the seventh person have never been explained.

Disciplinary, administrative and criminal proceedings were instituted as a consequence of these events. The disciplinary inquiry conducted by the Putumayo National Police Commandant took five days, and cleared all those who participated in the Las Palmeras incident of all blame. Two administrative-law proceedings were instituted wherein it was expressly acknowledged that the victims of the armed operation did not belong to any armed group and, on the day the events transpired, were engaged in their routine activities. These proceedings established that the National Police extrajudicially executed the victims, who were utterly defenseless. After seven years, the military criminal proceeding had not progressed past the investigative phase and not one of those responsible for these events had yet been charged.

3. In its application, the Inter-American Commission petitioned the Court as follows:

[t]he Inter-American Commission respectfully petitions the Honorable Court to:

Adjudge and declare that the State of Colombia has violated the right to life, recognized in Article 4 of the Convention, and Article 3 of the Geneva Conventions, to the detriment of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy, Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas, Wilian Hamilton Cerón Rojas and one other person (who could be either Hernán Lizcano Jacanamejoy or Moisés Ojeda).

Establish the circumstances surrounding the death of a seventh person purported to have been killed in combat (Hernán Lizcano Jacanamejoy or Moisés Ojeda), to determine whether the right to life recognized in Article 4 of the Convention and Article 3 of the 1949 Geneva Conventions has been violated.

Adjudge and declare that the State of Colombia has violated articles 8 and 25 of the American Convention, to the detriment of Artemio Pantoja Ordóñez, Hernán Javier Cuarán, Julio Milciades Cerón Gómez, Edebraiz Cerón Rojas, Wilian Hamilton Cerón Rojas, Hernán Lizcano Jacanamejoy [and], and Moisés Ojeda, and their next of kin.

Adjudge and declare that with its violations to the rights to life, to a fair trial, and to judicial protection, the State of Colombia has also violated its obligation under Article 1(1) of the Convention, which is to respect and ensure the rights recognized therein.

Order the State of Colombia:

a) to conduct a rapid, impartial and effective judicial investigation into the facts denounced and punish all those responsible.

b) to determine whether the other person that the National Police extrajudicially executed on January 23, 1991, was Hernán Lizcano Jacanamejoy or Moisés Ojeda. The Honorable Court is also asked to order the State of Colombia to conduct a serious investigation to determine the circumstances under which the seventh fatality occurred. The Commission did not arrive at any finding on this death.

c) to make full reparation to the victims’ next of kin, including payment of a just compensation (deducting the amounts already paid in pecuniary damages in the administrative-law cases of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy, Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas and Wilian Hamilton Cerón Rojas) and to restore the victims’ good name for posterity.

d) to adopt any amendments needed in the regulations and training programs of the Colombian armed forces, so that all military operations are conducted in accordance with the international instruments and international practice in the matter of domestic armed conflicts.

e) to pay the expenses and costs that the victims’ next of kin have incurred to litigate this case in local fora and before the Commission and the Court, and the reasonable fees of their attorneys.

Competence

4. Colombia has been a State Party to the American Convention since July 31, 1973. On June 21, 1985, it accepted this Court’s contentious jurisdiction. The Court is, therefore, competent under the terms of Article 62(3) of the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”) to take up the merits of the present case.

III

Proceeding before the Commission

5. On January 27, 1994, the Commission received a petition alleging human rights violations. The aggrieved parties were Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy, Julio Milciades Cerón Gómez, Edebraes Norverto Cerón Rojas, Wilian Hamilton Cerón Rojas, one unidentified person (possibly either Moisés Ojeda or Hernán Lizcano Jacanamejoy), and one other unidentified person. The circumstances surrounding the death of the last of these persons were unknown. On February 16, 1994, the Commission forwarded the pertinent parts of the complaint to the State and requested the State’s answer.

6. The State submitted its answer on May 25, 1994. The State’s brief was forwarded to the petitioners, who submitted their observations on July 21, 1994. The Commission forwarded the petitioners’ observations to the State on August 31, 1994; the State responded on December 22. Both the petitioners and the State forwarded other submissions to the Commission concerning the status of the investigations and domestic court proceedings. The pertinent parts of those submissions were sent to opposing side.

7. On October 8, 1996, the Commission held a hearing where the parties made their oral arguments on the facts in the case and the applicable law.

8. On February 20, 1998, the Commission approved Report No. 10/98, pursuant to Article 50 of the Convention, and forwarded it to the State on March 6 of that year. In the operative part of that report, the Commission recommended the following:

119. That the State of Colombia undertake a serious, impartial and effective investigation of the facts denounced, in order to be able to clarify the events of January 23, 1991, and prepare an official report detailing the circumstances of the violations and the responsibility for them.

120. That the State of Colombia bring to trial all those responsible so that they may be punished.

121. That the State of Colombia adopt measures to properly redress the violations proven, including compensation to the victims’ next of kin who have not yet received compensation.

9. On May 12, 1998, the Commission received a note from the State wherein it requested a 45-day extension to reply to Report 10/98. On May 14, the Commission informed the parties that the State had been given a ten-day extension.

10. On May 26, 1998, the State formulated a proposal for a friendly settlement, which the Commission conveyed to the petitioners. They filed their comments on May 29, 1998. In that proposal the State pointed out that it did not agree with “all” the observations and conclusions contained in Report No. 10/98, particularly on the question of exhaustion of local remedies and the application of international humanitarian law. It also indicated that it was planning to set up a committee to move the criminal investigation forward.

11. On June 2, 1998, the State and the petitioners advised the Commission that they had agreed upon a 30-day deadline to begin negotiations aimed at arriving at a friendly settlement; they therefore requested that the time periods running under Article 51(1) of the American Convention be suspended.

12. On July 1, 1998, the petitioners informed the Commission that for the time being, the conditions were not there for arriving at a friendly settlement. They therefore requested that the Commission restart the suspended time periods and resume proceedings in the case. That information was conveyed to the State.

13. The Commission filed the application in this case with the Inter-American Court (supra, paragraph 1) on July 6, 1998.

Proceeding before the Court

14. The Commission designated Mr. Robert K. Goldman and Mr. Carlos Ayalo Cora as delegates and Mrs. Verónica Gómez and Mr. David Padilla as advisors. The Commission accredited Mrs. Luz Marina Monzón and Mr. Gustavo Gallón and Carlos Rodríguez as assistants and petitioners, and Mr. Pablo Saavedra Alessandri and Ms. Viviana Krsticevic as assistants.

15. On July 14, 1998, after the President of the Court (hereinafter “the President”) had completed a preliminary review of the application, the Secretariat of the Court (hereinafter “the Secretariat”) transmitted said application and its appendices to the State and informed it of the time periods it had for filing its brief answering the application, for filing preliminary objections and for designating its Agent in the proceeding before the Court.

16. On August 14, 1998, Colombia designated Mrs. Marcela Briceño-Donn as agent, and Mr. Héctor Adolfo Sintura Varela as alternate agent.

17. On September 14, 1998, Colombia filed five preliminary objections.[1] On September 21, 1998, the Secretariat sent the Inter-American Commission a copy of the document in which the State sets out its preliminary objections. The Commission filed its response on November 5, 1998.

18. On December 11, 1998, the President invited Colombia to designate a judge ad hoc, inasmuch as Judge Carlos Vicente de Roux Rengifo, who was a Colombian national, had excused himself in the present case, pursuant to Article 19 of the Court’s Statute and Article 19 of its Rules of Procedure.

19. On December 15, 1998, Colombia filed its brief answering the Commission’s application. In its answer, the State expressly acknowledged its responsibility for the violation of Article 4 of the Convention, by virtue of the killing of Hernán Javier Cuarán Muchavisoy, Artemio Pantoja Ordóñez, Julio Milciades Cerón Gómez, Wilian Hamilton Cerón Rojas and Edebraes Norverto Cerón Rojas. It further stated that it was not acknowledging responsibility in the death of the other two persons, NN/Moisés and Hernán Lizcano Jacanamejoy. It referenced the various legal proceedings instituted into the events in question: disciplinary, administrative, military criminal justice, and ordinary criminal justice. In the case of the military criminal proceedings, it stated that during the initial phase of the investigation, there were difficulties with evidence gathering; but it also argued that a proceeding under the military justice system is not, per se, a violation of human rights. When examining the amount of time that had passed since the events under investigation had occurred, one had to consider the complexity of the case, the procedural activity of the interested party and the conduct of the judicial authorities. The State acknowledged that there were irregularities in the investigation, but argued that those irregularities should not be cause to throw out any and all proceedings conducted thereafter. It argued that the victims’ next of kin were not denied access to an “effective recourse,” adding that the case is underway in the ordinary criminal justice system and investigations are being conducted into the circumstances under which the seven people died and the parties suspected in the events. Finally, it pointed out that the reparations awarded in the administrative law proceedings are consistent with the parameters given in the Convention and that the costs were established during those proceedings.

20. On January 12, 1999, the State designated Julio A. Barberis as Judge ad hoc.

21. On March 18, 1999, the Commission requested permission to enter other pleadings in the written proceedings, pursuant to Article 38 of the Rules of Procedure. On June 3, 1999, following the President’s orders, the Secretariat extended the time period for the Commission to present its pleadings and the State its rebuttal.

22. On August 9, 1999, the Commission presented its reply. There, it asked the Court to:

Establish the circumstances surrounding the death of Hernán Lizcano Jacanamejoy to determine whether there has been a violation of the right to life recognized in Article 4 of the Convention in relation to the State’s obligations under Article 1(1) thereof, and the principles recognized in Article 3 of the 1949 Vienna Conventions.

Adjudge and declare that with its violations to the rights to life, to a fair trial and to judicial protection, the State of Colombia has also violated its obligation under Article 1(1) of the Convention, which is to respect and ensure the rights recognized therein.

Order the State of Colombia:

a) to conduct a rapid, impartial and effective judicial investigation of the facts denounced and punish all those responsible.

b) to determine the identity of N/N Moisés, executed on January 23, 1991, by members of the National Police. The Honorable Court is also asked to order the State of Colombia to conduct a serious investigation to determine the circumstances under which Hernán Lizcano Jacanamejoy died ….

c) to make full reparation to the victims’ next of kin, including payment of a just compensation (deducting the amounts already paid in the form of pecuniary damages as a result of the administrative contentious cases of Artemio Pantoja Ordóñez, Hernán Javier Cuarán Muchavisoy, Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas and Wilian Hamilton Cerón Rojas) and restore the victims’ good name for posterity.

e) to order the State of Colombia to pay the expenses and costs that the victims’ next of kin have incurred to litigate this case in local fora and before the Commission and the Court, and the reasonable fees of their attorneys.

23. On November 11, 1999, Colombia submitted its rebuttal to the Court. There it argued that the new statements that the Commission added in its reply brief are not in response to the State’s reply to the original application and are intended to reformulate the petitions set out in chapter X of the application. For the State, therefore, the original pleadings will continue to dictate the subject matter of the dispute. It added that it was unclear why a single mechanism had to be found within the internal system in order to satisfy the exigencies of the inter-American system for the protection of human rights. Quite the contrary, when faced with a possible violation, States should order all necessary measures to set in motion the proper mechanisms to ensure the observance of the rights under discussion and make any reparation it may owe. It also pointed out that in 1994, in another case separate from the one sub judice, Colombia’s Constitutional Court recognized the plaintiffs’ right to have recourse to the military criminal justice system. It also noted that in the proceedings that the military criminal justice system has underway petitions to become civil parties to the case have been granted. Finally, it added that the Commission’s analyses and conclusions with respect to Hernán Lizcano Jacanamejoy and NN/Moisés are helpful to the State authorities.

24. On February 4, 2000, the Court delivered its judgment on the preliminary objections entered by the respondent State.[2]

25. On April 23, 2001, the President decided to summon the parties to a public hearing, which would be held at the seat of the Court on May 28, 2001, to hear the parties’ witnesses and experts.

26. The public hearing was held at the seat of the Court on the date planned.

There appeared:

For the Republic of Colombia:

Marcela Briceño-Donn, agent; and

Héctor Adolfo Sintura Varela, alternate agent.

For the Inter-American Commission on Human Rights:

Robert K. Goldman, delegate;

Verónica Gómez, advisor;

Viviana Krsticevic, assistant;

Luz Marina Monzón Cifuentes, assistant;

Carlos Rodríguez Mejía, assistant; and

Roxana Altholz, assistant.

The witnesses and experts tendered by the parties also appeared.

27. On May 30, 2001, the Court ordered exhumation of the mortal remains of the alleged deceased Hernán Lizcano Jacanamejoy and NN/Moisés. On June 15, 2001, the President ordered appointment of Mr. Daniel Michael O´Donnell to represent the Court at the exhumation. The exhumation proceeding and the subsequent examination of Lizcano Jacanamejoy’s remains took place June 24 to 30, 2001. The archeological report on the excavation at the Mocoa Cemetery in Putumayo and the report on the anthropological analysis and forensic examination of Hernán Lizcano Jacanamejoy‘s remains were received on August 14 and 21, 2001, respectively.

28. The report containing the anthropological analysis and forensic examination recommended that studies be done of the gunshot residue found among the remains of Hernán Lizcano Jacanamejoy, using inductively coupled plasma mass spectometry. The Court followed the experts’ recommendation and on September 7, 2001, ordered the testing suggested. It also ordered that the tests be done by the experts from the Technical Investigations Corps with the Office of the Prosecutor General of Colombia. On September 28, 2001, the Commission stated that it believed that Mr. Héctor Daniel Fernández should be present for the procedure as an “observer.“ That same day, the Secretariat informed the Commission that the President had authorized “Mr. Héctor Daniel Fernández’ participation as an observer to the testing procedures.”

On October 22, 2001, the expert report was submitted containing the results of the tests done on the bullet residue found among Hernán Lizcano Jacanamejoy’s mortal remains.

29. On November 2, 2001, the Commission submitted to the Court its brief of final arguments, which includes, as an appendix, an “expert report” signed by Mr. Héctor D. Fernández concerning the tests done on Mr. Hernán Lizcano Jacanamejoy’s mortal remains using “atomic absorption spectometric analysis.” On November 13, 2001, the State submitted its comments on that “expert report,“ within the time period set by the President.

The brief of final arguments consists of two main chapters: the first argues that Colombia is responsible for the death of Hernán Lizcano Jacanamejoy; the second asserts that the State violated the seven victims’ right to judicial protection.

In the first chapter, the Commission examines the anthropological report and forensic report concerning the gunshot residue, and Mr. Fernández’ “expert report.” The latter clearly states that “Hernán Lizcano Jacanamejoy was ‘in a kneeling position’ at the time he was shot. The brief then attacks the testimony in the case file and in the court records attached thereto, to the effect that the victim died in combat. The Commission argues that by its failure to properly investigate Lizcano Jacanamejoy‘s death, the State is responsible for his death. Finally, the Commission argues that the way in which Lizcano Jacanamejoy was killed was similar to the method that Colombian security forces were using at that time.

The second chapter examines the problems and obstacles put up by the State in terms of the evidence needed to illuminate the facts, the way in which the investigations were manipulated, the intimidation of the victims’ next of kin and the performance of the military justice system. The Commission states the following in this regard:

Based on the evidence supplied to the Court, the conclusion drawn from all these facts is that the State failed to comply with its duty to ensure the victims and their next of kin proper protection under the law and their right to an effective recourse, as they were left completely defenseless against the action of State agents.

30. On November 2, 2001, the State submitted its brief of final arguments. Its conclusions are as follows

The Government of Colombia is asking the Honorable Court to adjudge and declare that:

a. The right to life, recognized in Article 4 of the American Convention on Human Rights, was not violated to the detriment of HERNÁN LIZCANO JACANAMEJOY;

b. Articles 8 and 25 of the American Convention on Human Rights were not violated in the case of the seven persons included in the instant case and their next of kin;

c. It accepts the State’s acknowledgement of responsibility for violation of Article 4 of the Convention, in relation to Article 1(1) thereof, in the deaths of HERNÁN JAVIER CUARÁN MUCHAVISOY, ARTEMIO PANTOJA ORDÓÑEZ, JULIO MELCÍADES CERÓN GÓMEZ, WILIAN HAMILTON and EDEBRAES NORBERTO CERÓN ROJAS and NN MOISÉS OJEDA; and

d. It support the action of the Colombian judicial authorities charged with investigating and prosecuting the responsible parties since, despite the many difficulties and the complexity of the internal situation, their conduct has been helpful in the instant case.

Preliminary Consideration

31. In its rebuttal brief, at the public hearing and in its final written arguments, Colombia objected to the fact that in the Commission’s reply, it altered some of the terms of the petitum as drafted in the original application. In its judgment of September 10, 1993, in the Aloeboetoe et al. Case, Reparations, the Court wrote that “in proceedings before an international court a party may modify its application, provided that the other party has the procedural opportunity to state its views on the subject.”[3] The Court will apply that case law in the instant case. Therefore, provided the other party has had the procedural opportunity to state its views, it will regard the latest arguments made as the definitive pleadings.

Violation of Article 4