Submitted by: Mr.
Rafael Armando Rojas García
Date of Communication:
30 August 1995 (initial submission)
The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Meeting on: 3 April
Having concluded its
consideration of communication No. 687/1996 submitted to the Human Rights
Committee by Mr. Rafael Armando Rojas García, under the Optional Protocol
to the International Covenant on Civil and Political Rights,
Having taken into account
all written information made available to it by the author of the communication
and the State party,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication
is Rafael Armando Rojas García, a Colombian citizen, writing on his own
behalf and on behalf of his elderly mother, his two children, his brother
and two sisters, three nieces and a domestic helper. He claims that they
are the victims of violations by Colombia of article 7, article 14, paragraph
3 (a), article 17, paragraphs 1 and 2, article 19, paragraph 3 (a), article
23 and article 24 of the International Covenant on Civil and Political
Rights. The facts as submitted seem to raise an issue also under article
9, paragraph 1, of the Covenant.
The facts as submitted
by the author
2.1 On 5 January 1993, at
2 a.m., a group of armed men wearing civilian clothes, from the Public
Prosecutor's Office (Cuerpo Técnico de Investigación de la Fiscalía),
forcibly entered the author's house through the roof. The group carried
out a room-by-room search of the premises, terrifying and verbally abusing
the members of the author's family, including small children. In the course
of the search, one of the officials fired a gunshot. Two more persons
then entered the house through the front door; one typed up a statement
and forced the only adult male (Alvaro Rojas) in the family to sign it;
he did not allow him to read it, or to keep a copy. When Alvaro Rojas
asked whether it was necessary to act with such brutality, he was told
to talk to the Public Prosecutor, Carlos Fernando Mendoza. It was at this
juncture that the family was informed that the house was being searched
as part of an investigation into the murder of the mayor of Bochalema,
Ciro Alonso Colmenares.
2.2 On the same day, Alvaro
Rojas filed a complaint for unlawful entry into the family house with
the Provincial Attorney-General's Office in Cúcuta (Procuraduría Provincial
de Cúcuta). An inquiry was initiated by the provincial authorities,
which was not only not duly completed but was simply shelved on 3 November
1993. The author was not informed about the discontinuation of his complaint.
He filed a new complaint with the Administrative Police in Bogotá (Procuraduría
General de la Nación, Procuraduría Delegada de la Policía Judicial y Administrativa).
The new complaint was also shelved on 24 June 1994, purportedly on the
principle of double jeopardy. The author then submitted the case to the
Administrative Tribunal in Cúcuta in order to obtain some form of reparation
for the raid on his house and the use of a firearm.
3.1 The author claims that
the violent assaults on the family home resulted in a severe nervous trauma,
psychologically affecting the author's sister, Fanny Elena Rojas García,
who was an invalid. She subsequently died, on 8 August 1993, the violent
search being considered the indirect cause of her death. Similarly, the
author's mother, aged 75, never quite recovered from the shock of the
3.2 The author states that
the authorities, far from conducting a diligent investigation into the
matter, have done everything possible to cover up the incident. No attempt
was ever made to establish the responsibility either of the authorities
that authorized the raid or of those who carried it out, including the
officer who fired a gun in a room where there were young children.
3.3 The author contends that the events described constitute violations
of article 7, article 14, paragraph 3 (a), article 17, paragraphs 1 and
2, article 19, paragraph 3 (a), article 23 and article 24 of the Covenant.
The State party's observations
and the author's reply
4.1 By submission of 12 November
1996, the State party argues that the author failed to exhaust domestic
remedies, as an inquiry that may lead to disciplinary action is still
under way in respect of the officers who raided the author's house.
4.2 The State party further
argues that the entry into the author's house fulfilled all the legal
requirements of article 343 of the Code of Criminal Procedure and was
therefore within the scope of the law. The search was ordered by an officer
of the court, Miguel Angel Villamizar Becerra, and was carried out in
the presence of a prosecutor. In this respect, it is stated that all the
pertinent documentation regarding the possible responsibility of the officials
taking part in the raid was requested by the National Prosecutor (Fiscalía
General) from its internal investigation section (Veeduría)
in order to establish whether any disciplinary action was necessary. Reference
is also made to a disciplinary inquiry carried out by the Investigating
Office (Dirección Seccional del Cuerpo Técnico de Investigación)
as well as by the Prosecutor for internal affairs in the police (Procuraduría
Delegada para la Policía Judicial), both of which were filed.
5. On 22 January 1997, the
author reiterates that the search was illegal since article 343 of the
Code of Criminal Procedure does not provide for night-time "commando-like"
actions, rooftop entries, firing into the air, etc. He states that the
military prosecutor (Fiscal Delegado ante las Fuerzas Armadas)
was not present, and that the prosecutor appeared only at the very
end of the events and then only to draw up a record, of which no copy
was given to the author's brother. The author reiterates the far-reaching
repercussions that the house search had on his family, that his family
was branded as the murderers of the ex-mayor, that his sister died after
the raid, and that his mother and children continue to suffer from trauma.
The author notes that the administrative procedures initiated in 1993
have not produced any results to date.
6. On 14 October 1997, the
State party informed the Committee of its inquiries into the status of
the administrative proceedings in the case. The National Public Prosecutor's
Office (Fiscalia General de la Nación) requested information from
the investigating office in Cúcuta (Dirección Seccional del Cuerpo
Técnico de Investigación) as to whether proceedings had been initiated
in respect of officer Gabriel Ruiz Jiménez. By 30 April 1997, no proceedings
had been initiated. The request was reiterated in June, July and August
1997, again with negative results. The State party affirms that investigations
continue and that, consequently domestic remedies have not been exhausted.
The Committee's decision
7.1 At its sixty-second session,
the Committee considered the admissibility of the communication and took
note of the State party's request that the communication should be declared
inadmissible for failure to exhaust domestic remedies. The Committee considered
that in the circumstances of the case, it must be concluded that the author
had diligently but unsuccessfully pursued remedies aimed at establishing
responsibility for the raid on his house. More than five years after the
events (at the time the decision on admissibility was taken), those responsible
for the incident had not been identified or indicted, let alone tried.
The Committee concluded that in the circumstances, domestic remedies had
been "unreasonably prolonged" within the meaning of article 5, paragraph
2 (b), of the Optional Protocol.
7.2 As to the author's allegations
under article 14, paragraph 3 (a), article 19, paragraph 3 (a), article
23 and article 24 of the Covenant, the Committee observed that these remained
of a general nature and had not been further substantiated. There was
nothing to indicate, for example that criminal charges had been brought
against the author of which he had not been promptly informed (art. 14,
para. 3 (a)) or that he had been denied freedom of expression (art. 19),
and no description was given of how the State had interfered in his family
life or violated the rights of his children (arts. 23 and 24).
7.3 With respect to the remaining
allegations, under article 7 and article 17, paragraphs 1 and 2 of the
Covenant, the Committee considered that they had been sufficiently substantiated
for purposes of admissibility and that they should accordingly be considered
on their merits.
The State party's observations
and the author's comments
8.1 By submission of 28 December
1999, the State party reiterates its position on the inadmissibility of
the complaint and states that, in its view, no violation of any of the
articles of the International Covenant on Civil and Political Rights has
8.2 The State party notes,
as did the author, that the investigating office in Cúcuta (Cuerpo
Técnico de Investigación de la Fiscalia, Seccional Cúcuta) carried
out an administrative inquiry into the incident that occurred on 5 January
1993 during the raid on the Rojas García family house and on 3 November
1993 ordered it to be discontinued as groundless. In addition, following
the inquiry into the events, a preliminary investigation was ordered against
Gabriel Ruiz Jiménez, the person who fired the shot during the raid. According
to the Prosecutor for internal affairs in the police (Procuraduría
Delegada), there are no grounds whatsoever for pursuing the preliminary
inquiry, since it has been shown that a disciplinary inquiry into the
same events was initiated and completed by the Attorney-General's Office,
through the Director of the investigating office in Cúcuta (Seccional
del Cuerpo Técnico de Investigación de Cúcuta), and was subsequently
shelved (see para. 2.2).
8.3 In an official letter
dated 10 May 1999, the Attorney-General's Office reiterated that the Director
of the investigating office in Cúcuta, who opened the preliminary disciplinary
inquiry against Gabriel Ruiz Jiménez, had shelved the case because he
considered that the shot fired by Jiménez had been accidental and not
the result of negligence or misconduct by the accused, and that there
were therefore no grounds for initiating a formal investigation.
8.4 With regard to the psychological
traumas caused to the house occupants by the ensuing panic, the State
party maintains that it is up to an expert medical witness to determine
their existence during the administrative hearing now under way.
8.5 The State party reports
that the author has filed suit for reparation for the damages allegedly
incurred in connection with these events, with the Administrative Tribunal
of Norte de Santander.
8.6 The State party does not
share the Committee's view that, more than five years after the events,
those responsible for the incident have not been identified or indicted.
For the State party, it is clear that a search was carried out by members
of the investigating office in Cúcuta (Cuerpo Técnico de Investigación
de la Fiscalia, Seccional Cúcuta) in accordance with article 343 of
the Code of Criminal Procedure, which stipulates:
8.7 The State party therefore
considers that responsibility for any irregularities in the performance
of its duties must be determined by inquiries carried out by the competent
State bodies. With regard to the alleged responsibility of Mr. Gabriel Ruiz
Jiménez, the Attorney-General's Office has established that it was the result
of an accident.
8.8 In respect of the Committee's
reference to unreasonably prolonged domestic remedies, within the meaning
of article 5, paragraph 2 (b), of the Optional Protocol the State party
wishes to make the following comments:
8.9 The State party reiterates
that Mr. Rojas García had not exhausted internal remedies at the time he
submitted has case for the Committee's consideration and the communication
should thus be inadmissible under article 5, paragraph 2 (b), of the Optional
(1) Since the date of
the incident, the brother of the author of the complaint has availed
himself of the remedies provided in domestic law before the Attorney-General's
Office, which, acting through the Administrative Police in Bogotá,
issued an order on 24 June 1994 to shelve the investigation on the
grounds that the National Public Prosecutor's Office, through the
investigating officer in Cúcuta (Cuerpo Técnico de Investigación
de Cúcuta), had initiated and completed a disciplinary inquiry
into the same events. The State party points out that the mere fact
that a domestic remedy does not find in favour of the complainant
does not in itself mean that effective domestic remedies do not exist
or have been exhausted. Clearly, in a case such as this, if a remedy
is not appropriate, then it should not be exhausted but another, more
appropriate procedure should be used.
(2) Mr. Rojas García
brought a further complaint against the State before the Administrative
Tribunal of Norte de Santander, thereby availing himself of another
remedy; at the time of writing a decision by the Tribunal is imminent.
These remedies have not therefore been unreasonably prolonged, as
the Committee maintains, since, in the circumstances of the case,
they have been used in the most appropriate and effective way. The
appropriateness of a remedy means its suitability within the domestic
legal system to protect the legal situation that has been violated.
The remedy is designed to produce a result and cannot be interpreted
as not having produced a result or as having produced a result that
is clearly absurd or irrational. There was no intention on the part
of the competent authorities to prolong the inquiries, but any lack
of thoroughness would certainly have led to absurd and illogical
9.1 The observations of the
State party on the merits of the case were transmitted to the author,
who, by submission of 14 March 2000, refutes a number of the State's arguments.
He repeats, for example, that a family with no previous dealings whatsoever
with the justice system was the victim of a raid and its members ill-treated.
He states that the raid was carried out on the assumption that criminals
were to be found on the premises and, when children and old people were
found, instead of correcting the mistake, all that has been done to date
is compound it.
9.2 According to the author,
article 343 of the Code of Criminal Procedure could not be applied in
a case involving the home of an innocent family, without first complying
with the most basic legal provisions covering such cases. Forcible entry
through the roof at 2 a.m. and the firing of a gunshot constituted violations
of the right to life, family life and other rights and freedoms guaranteed
by the Constitution of Colombia.
9.3 The author rejects the
Government's argument to the effect that the longer an inquiry takes,
the less absurd and illogical the decisions will be. The author reiterates
that more than seven years have passed since the events occurred and the
case has still not been resolved.
9.4 The author adds that arbitrary
cases arising out of the excessive use of force should automatically be
given special treatment and examined and adjudicated by international
bodies of inquiry in order to reserve impartiality and due process.
9.5 By submission of 10 July
2000, the author reports that, in respect of his suit against the State
for reparation for the raid on his house, in the Administrative Tribunal
of Norte de Santander, the Tribunal denied his petition, on the grounds
of lack of evidence and on a strict interpretation of article 343 of the
Code of Criminal Procedure. He reports that an appeal has been lodged
with the Council of State in Bogotá.
9.6 He also reiterates that,
according to eyewitnesses, the search party was making for house No. 2-36
and not 2-44 (the Rojas García house). He also points out that the widow
of Ciro Alonso Colmenares (Mayor of Bochalema, whose murder gave rise
to the investigation and the subsequent raid on the Rojas family's house),
assured him that she never made any allegations against them. As for the
gunshot fired by Gabriel Ruiz Jiménez, he alleges that it was not accidental
but occurred inside the house in order to compel the occupants to find
the keys to the door to the street. He also states that, when they realized
that an official of the Pamplona public prosecutor's office, Cecilia Rojas
García, lived in the house, the assailants' attitude changed and some
of them apologized and said there had been a mistake.
9.7 With regard to his sister's
death some months after the raid, the author claims that the authorities
did not make the necessary effort to show a causal link between the raid
and her death.
Examination of the merits
10.1 The Human Rights Committee
has considered the present communication in the light of all the information
made available to it by the parties, as provided for in article 5, paragraph
1, of the Optional Protocol.
10.2 The Committee has noted
the State party's claim that the author had not exhausted domestic remedies
at the time the communication was submitted to the Committee and that
the communication should therefore not have been admitted. It also notes
that, according to the State party, it was not the intention of the competent
authorities to prolong the investigations, but any lack of thoroughness
would have led to absurd and illogical decisions. The Committee refers
to what was stated in its decision on admissibility in this connection.
10.3 The Committee must first
determine whether the specific circumstances of the raid on the Rojas
García family's house (hooded men entering through the roof at 2 a.m.)
constitute a violation of article 17 of the Covenant. By submission of
28 December 1999, the State party reiterates that the raid on the Rojas
García family's house was carried out according to the letter of the law,
in accordance with article 343 of the Code of Criminal Procedure. The
Committee does not enter into the question of the legality of the raid;
however, it considers that, under article 17 of the Covenant, it is necessary
for any interference in the home not only to be lawful, but also not to
be arbitrary. The Committee considers, in accordance with its General
Comment No. 16 (HRI/GEN/1/Rev.4 of 7 February 2000) that the concept of
arbitrariness in article 17 is intended to guarantee that even interference
provided for by law should be in accordance with the provisions, aims
and objectives of the Covenant and should be, in any event, reasonable
in the particular circumstances. It further considers that the State party's
arguments fail to justify the conduct described. Consequently, the Committee
concludes that there has been a violation of article 17, paragraph 1,
insofar as there was arbitrary interference in the home of the Rojas García
10.4 In view of the fact that
the Committee has found a violation of article 17 in respect of the arbitrariness
of the raid on the author's house, it does not consider it necessary to
decide whether the raid constituted an attack on the family's honour and
10.5 With regard to the alleged
violation of article 7 of the Covenant, the Committee notes that the treatment
received by the Rojas García family at the hands of the police, as described
in paragraph 2.1 above, has not been refuted by the State party. The Committee
therefore decides that there has been a violation of article 7 of the
Covenant in this case.
11. The Human Rights Committee,
acting under article 5, paragraph 4, of the Optional Protocol to the International
Covenant on Civil and Political Rights, is of the view that the facts
before it disclose a violation by the State party of article 7 and article
17, paragraph 1, of the International Covenant on Civil and Political
Rights in respect of the Rojas García family.
12. In accordance with article
2, paragraph 3 (a), of the Covenant, the State party is under an obligation
to provide Rafael A. Rojas García and his family with an effective remedy,
which must include reparation. The State party is also under an obligation
to take steps to prevent similar violations occurring in the future.
13. Bearing in mind that,
by becoming a party to the Optional Protocol, the State party has recognized
the competence of the Committee to determine whether there has been a
violation of the Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to all individuals
within its territory or subject to its jurisdiction the rights recognized
in the Covenant and to provide an effective remedy when it has been determined
that a violation has occurred, the Committee wishes to receive from the
State party, within 90 days, information about the measures taken to give
effect to the Committee's Views. In addition, it requests the State party
to publish the Committee's Views.
[Adopted in English, French
and Spanish, the Spanish text being the original version. Subsequently
to be translated into Arabic, Chinese and Russian as part of the Committee's
annual report to the General Assembly.]
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando, Mr.
Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Eckart Klein,
Mr. David Kretzmer, Mr. Rajsoomer Lallah, Ms. Cecilia Medina Quiroga,
Mr. Nigel Rodley, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito
Solari Yrigoyen, Mr. Ahmed Tawfic Khalil, Mr. Patrick Vella, Mr. Maxwell
** Under rule 85 of the Committee's
rules of procedure, Mr. Rafael Rivas Posada did not participate in the
examination of the case.
*** The text of an individual
opinion by Committee members Nisuke Ando and Ivan A. Shearer is appended
to the present document.
Individual opinion of Committee members
Nisuke Ando and Ivan A. Shearer
We share the Committee's
conclusion that there has been a violation of article 17, paragraph 1,
in so far as there was arbitrary interference in the home of the Rojas
García family. However, we are unable to share its conclusion that there
has been a violation of article 7 in the present case (paras. 10.3 and
According to the Committee
(majority views), the treatment received by the Rojas García family at
the hands of the police as described in paragraph 2.1, which has not been
refuted by the State party, constitutes a violation of article 7. Paragraph
2.1 states that on 5 January 1993 at 2 a.m. a group of armed men, wearing
civilian clothes, from the Public Prosecutor's office, forcibly entered
the author's house through the roof; that the group carried out a room-by-room
search of the premises, terrifying and verbally abusing the members of
the author's family, including small children; and that one of the officials
fired a gunshot in the course of the search.
As the author himself states,
the search party apparently hit the wrong house (No. 2-44 instead of No.
2-36) and when they realized that an official of the local prosecutor's
office lived in the house, some of the party's members apologized and
said that there had been a mistake (para. 9.6). The author also states
that the raid was carried out on the assumption that criminals were to
be found on the premises but that, after the incident, the prosecutor's
office failed to correct the mistake, thus compounding the case (para.
To our mind, the search party
must have expected strong resistance, even by firearms, from the house
because they had assumed that the murderer or murderers of the mayor were
hiding in it. This would explain what is described in paragraph 2.1: the
forcible entry into the house through the roof in the middle of the night;
the subsequent room-by-room search of the premises with probably harsh
words by the searchers; and an accidental gunshot by one of them. Certainly,
there was a mistake on the part of the prosecutor's office, but it is
doubtful if the search party's conduct based on that mistake could be
characterized as a violation of article 7.
In our view, the search party
had been acting in good faith until they realized that they had hit a
wrong target. The State party maintains that the raid of the author's
house was in compliance with the law. The State party also asserts that
the director of the local investigating office opened a preliminary inquiry
into the gunshot and considered it not as misconduct but as an accident
(para. 8.3). Under the circumstances we conclude that the search party
had not intent to terrify the author's family.
Ordinarily article 7 requires
an intent on the part of an actor as to possible effects of his/her act,
and the lack of such intent works to eliminate or extenuate unlawfulness
of the act. This holds true for police investigations such as the one
in the present case. Therefore, in our view, there has been no violation
of article 7 in this case.
[Signed] Nisuke Ando
[Signed] Ivan A. Shearer
[Done in English, French and
Spanish, the English text being the original version. Subsequently to
be translated into Arabic, Chinese and Russian as part of the Committee's
annual report to the General Assembly.]