REPORT Nº 102/11

PETITION 10.737

ADMISSIBILITY

VÍCTOR MANUEL ISAZA URIBE AND FAMILY

COLOMBIA

July 22, 2011

 

 

I.            SUMMARY

 

1. In December 1990, the Inter-American Commission on Human Rights (hereinafter “the Commission”) received a petition submitted by the Asociación de Familiares de Detenidos Desaparecidos (ASFADDES) and the Comisión Colombiana de Juristas (hereinafter “the petitioners”) alleging that on November 19, 1987, with the acquiescence of agents of the Republic of Colombia (hereinafter “the State,” “the Colombian State,” or “Colombia”), unknown persons abducted Víctor Manuel Isaza Uribe from the La Sierra prison in the municipality of Puerto Naré, Department of Antioquia.  The petitioners allege that since then the alleged victim is disappeared and the judicial system has not clarified the facts.

 

2. The petitioners allege that the State was responsible for violating the rights to recognition of juridical personality, life, personal integrity, freedom of thought and expression, protection of the family, judicial guarantees and judicial protection, as established in Articles 3, 4, 5(1), 8(1), 13, 17, and 25 of the American Convention on Human Rights (hereinafter the “Convention” or “American Convention”) as they relate to the duty to guarantee rights in accordance with Article 1(1) of that convention. For its part, the State alleges that the petition is inadmissible given that the claims made by the petitioners do not represent violations of the American Convention.

 

3. After analyzing the positions of the parties and compliance with the requirements under Articles 46 and 47 of the American Convention, the Commission decided to declare the complaint admissible for purposes of examining the alleged violation of Articles 3, 4(1), 5, 7, 8(1), and 25, consistent with Article 1(1) of the American Convention and pursuant to the principle of iura novit curia, Article 16 of the American Convention, and Article I of the Inter-American Convention on Forced Disappearance of Persons.  It also decided to declare inadmissible the claims relating to Articles 13 and 17 of the American Convention, to notify the parties, and order publication of its report and inclusion thereof in its Annual Report to the General Assembly of the OAS.

 

II. PROCESSING BY THE COMMISSION

 

4. The IACHR recorded the petition under No. 10.737 and after a preliminary analysis proceeded on December 26, 1990 to forward copy of the relevant sections to the State, allowing it a period of ninety days to submit information in accordance with Article 34(3) of the Rules of Procedure in effect at the time. On April 3, 1991, the Commission again asked the State for information.  The Commission received the State’s observations on April 9, 1991 and forwarded them to the petitioners for their observations. On June 10, 1991, the petitioners submitted their observations, which were forwarded to the State for its observations.

 

5. On August 22, September 16, October 11, and October 21, 1991, the State submitted observations, which were forwarded to the petitioners for their observation.  On October 23, 1991, the Commission again forwarded the communications to the petitioners. In addition, on October 23, 1991 the State submitted its observations, which were forwarded to the petitioners for their observations. On November 27, 1991, the petitioners asked for an extension, which was granted by the Commission. On August 4, 1995, the petitioners submitted their observations, which were forwarded to the State for its observations.  On September 10, 1997, the State sent observations, which were forwarded to the petitioners for their observations.  On August 28, 1998, the Commission again asked the petitioners for information.

 

6. On November 18, 2009, the IACHR asked the State for updated information on the matter in question. In response, the State submitted information on December 18, 2009, which was forwarded to the petitioners for their observations.  On March 29, 2010 the petitioners asked for an extension, which was granted by the IACHR.  On July 6, 2010, the petitioners submitted their observations, which were forwarded to the State for its observations.  On August 17, 2010, the State submitted a brief with final observations, which were forwarded to the petitioners for their information.

 

III.            POSITIONS OF THE PARTIES

 

A.            Position of the Petitioners

 

7. The petitioners state that Víctor Manuel Isaza Uribe worked at the Cementos Naré company and was a member of the Union of Construction Materials Workers (SUTIMAC) in Puerto Naré, Department of Antioquia. They state that there was a military base in that area attached to the Bárbula Battalion of the National Army, a Coast Guard unit of the National Navy, and a police station. They also state that there was a strong military presence in the area.

 

8. The petitioners allege that the disappearance of Víctor Manuel Isaza Uribe was not an isolated occurrence given that since 1986 various members of SUTIMAC were murdered or disappeared by the paramilitary group, MAS (Muerte a Secuestradores). In that context, they state that on October 27, 1987, Humberto García, chief of industrial relations of the Cementos Naré company was murdered and on the same night Víctor Manuel Isaza Uribe was arrested as the alleged perpetrator of the murder and taken to the La Sierra prison in the municipality of Puerto Naré.  They allege that on October 28, 1987 Víctor Manuel Isaza Uribe was transferred to the Criminal Investigation Court 64 in Puerto Naré where his statement was taken. He was then returned to prison to await the start of his trial.  They allege that at about 1:00 a.m. on November 19, 1987 a group of approximately ten well-armed men, some of them in military uniforms and others in civilian clothes, entered the La Sierra prison and abducted the alleged victim with three other prisoners, with no reaction on the part of the authorities. To date there is no information regarding his whereabouts.

 

9. They allege that based on these events a criminal investigation was initiated based on a complaint filed with the Criminal Investigation Court 64 in Puerto Naré.  They state that on January 29, 1988 the preliminary investigation was referred to the Municipal Investigation Office of Puerto Naré and on January 29, 1991 the proceedings were referred to Itinerant Criminal Investigation Judge 104 of Medellín.  Subsequently, the Single Prosecutor’s Unit of Puerto Naré sent the preliminary investigation to Sectional Prosecutor’s Office 125 of Puerto Berrío, Antioquia, which took over the investigation on December 3, 1993.

10. They state that on September 22, 1995, Fabio de Jesús Ramírez and Octavio Bedoya, two alleged members of MAS, were linked to the investigation. They allege, however, that no measures were taken against those individuals. They allege that in 1997 the Regional Prosecutor’s Office of Medellín archived the preliminary investigation. They state that the archiving of the investigation did not take into account the confessions made in August 1995 by the paramilitary leader, Magdalena Medio Alonso de Jesús Baquero Agudelo, alias “Bladimir” or “Negro Bladimir” regarding the existence, since 1980, of paramilitary groups that were operating in Puerto Naré, La Sierra and other towns in coordination with military units billeted in the area, such as the Bárbula Battalion.

 

11. They also allege that a disciplinary proceeding was initiated and concluded on October 20, 1992 with a decision to archive the case. They also allege that the relatives of the alleged victim filed a claim for direct reparations, which was denied on November 26, 1993 by the Administrative Court of Antioquia, a decision that was upheld on appeal by the Contentious-Administrative Chamber of the Council of State on September 23, 1994.  With respect to its grounds for the decision, the Contentious-Administrative Chamber stated that “although there is evidence that the administration failed to maintain vigilance over the prisoner, failure in service was not proven, since one of the essential components thereof, damage, was not proven […] Is Mr. Víctor Manuel Isaza alive while this finding is being issued? Did he die due to acts attributable to the administration or, on the contrary, is he enjoying perfect health?”

 

12. The petitioners allege that the version presented by the National Police and the Administrative Security Department, according to which the Revolutionary Armed Forces of Colombia (FARC) carried out a raid on the prison and “liberated” the alleged victim, is not credible.  First, the raid happened a few meters from the National Navy’s coast guard station and a few blocks from the Bárbula battalion and the police station. Second, another prisoner and witness to the events recognized a member of the paramilitary group MAS among the group of armed men who entered the prison. Third, members of MAS had been seen patrolling the river nearby with members or the National Navy or Army reservists.

 

13. In summary, the petitioners allege that the State is responsible for violating Articles 3, 4, 5, and 7 of the American Convention on Human Rights in relation with Article 1(1) thereof, to the detriment of Víctor Manuel Isaza Uribe, in that the alleged victim was being held in State custody when he was allegedly abducted violently by the paramilitary group MAS, which was acting with the consent and in some cases with the direct support of members of law enforcement.

 

14. The petitioners allege that the failure to shed judicial light on the facts in this complaint constitutes a violation of the rights to judicial guarantees and judicial protection established in Articles 8(1) and 25 of the American Convention as they relate to Article 1(1) thereof. They allege that the fact that the investigation has lasted for more than 22 years constitutes a violation of the reasonable time period established in the American Convention.

 

15. The petitioners also allege that the State is responsible for violating the rights to personal integrity, freedom of expression, and protection of the family protected by Articles 5, 13, and 17 of the American Convention as they relate to Article 1(1) thereof, to the detriment of his wife Carmenza Vélez and his children Johny Alexander (13) and Haner Alexis (10) Isaza Vélez.

 

16. Finally, the petitioners ask the Commission, pursuant to Article 37(3) currently 36(3) of its Rules of Procedure, to jointly analyze the admissibility and merits of this complaint.

 

B. Position of the State

 

17. The State submitted detailed information on the handling of the proceedings filed in the domestic jurisdiction due to the disappearance of Víctor Manuel Isaza Uribe.  Regarding the criminal investigation, the State reported that it ended with a ruling of August 25, 1997 in which the Regional Prosecutor’s Office of Medellín ordered suspension of the preliminary investigation, deeming that the evidence presented did not yield results that would clarify the events.

 

18. Regarding the disciplinary proceeding, the State indicated that Carmenza Vélez – wife of Víctor Manuel Isaza Uribe – filed a complaint with the Assistant Prosecutor’s Office for the Defense of Human Rights because of the disappearance of her husband. That proceeding ended with a ruling of October 20, 1992 in which the Prosecutor’s Office ordered the archiving of the proceedings because there was no evidence that would implicate any public servant in the disappearance of the alleged victim.  Finally, regarding the contentious-administrative proceeding, the State indicated that on November 26, 1993 the Administrative Court of Antioquia denied the claims in the complaint, considering that the circumstances related to the disappearance of Víctor Manuel Isaza Uribe led the Chamber to conclude that his disappearance involved an escape facilitated by armed third persons, given that a conviction was imminent.  That decision was upheld on appeal on September 23, 1994 by Section Three of the Council of State.

 

19. In addition, the State alleges that the petition is inadmissible in that it does not characterize violations of Articles 7, 8, and 25 of the American Convention.  Regarding Article 7 of the Convention, the State alleged that it can be concluded based on analysis of the body of evidence from the criminal, disciplinary, and contentious-administrative proceedings that there was not even the slightest indication pointing to participation by agents of the State in these events. Regarding Articles 8 and 25 of the Convention, the State alleges that the lack of criminal findings itself does not generate or even represent a violation of the American Convention, in that a serious, impartial investigation without delays is involved to which the victims or their relatives could easily have had access.  In this regard, the State maintains that these requirements were met by Colombian justice and, additionally, there is no indication in the criminal proceeding that the relatives of the alleged victim joined the proceeding as civil parties thereto.

 

20. Finally, the State asks, in view of the inactivity of the petitioners in their response to the Commission for a period of twelve years, that the Commission proceed to archive the petition in accordance with Article 42(1) of its Rules of Procedure and, if the case is not archived, that the Commission declare the petition inadmissible since the alleged facts do not represent violations of the American Convention, in accordance with Article 47(b) thereof.

 

IV. ANALYSIS OF COMPETENCE AND ADMISSIBILITY

 

A. Competence

 

21. In principle, the petitioners are authorized by Article 44 of the American Convention to submit petitions to the Commission.  The petition indicates as alleged victims individuals with respect to whom the Colombian State committed to respect and guarantee the rights enshrined in the American Convention. With regard to the State, the Commission points out that Colombia has been a State Party to the Convention since July 31, 1973, the date on which it deposited its ratifying instrument. Therefore, the Commission is competent ratione personae to examine the petition.

 

22. In addition, the Commission is competent ratione loci to hear the petition, in that it alleges violations of rights protected in the American Convention that would have occurred within the territory of Colombia, a State Party to that convention. 

 

23. The Commission is competent ratione temporis in that the obligation to respect and guarantee the rights protected in the American Convention was already in effect for the State on the date the events alleged in the petition would have occurred.  The Commission notes that the Inter-American Convention on Forced Disappearance of Persons (hereinafter “Convention on Forced Disappearance”) took effect for Colombia on April 12, 2005, the date on which it deposited its ratifying instrument.  Therefore, the IACHR is competent ratione temporis with respect to the obligation provided in Article I(b), given the ongoing nature of the failure to shed light on the crime of forced disappearance being reported.

 

24. Finally, the Commission is competent ratione materiae, because the petition reports possible violations of human rights protected by the American Convention.

 

B. Admissibility requirements

 

Exhaustion of domestic remedies

 

25. Article 46(1)(a) of the American Convention requires the prior exhaustion of the remedies available within the domestic jurisdiction, in accordance with generally recognized principles of international law, as a requirement for the admission of complaints regarding the alleged violation of the American Convention.

 

26. Article 46(2) of the Convention provides that the requirement of prior exhaustion of domestic remedies does not apply 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; and

c) There has been unwarranted delay in rendering a final judgment under the aforementioned remedies.

 

As established in the Commission’s Rules of Procedure and as expressed by the Inter-American Court, whenever a State alleges the petitioners’ failure to exhaust the domestic remedies, it has the burden of identifying which remedies should be exhausted and demonstrating that the remedies that have not been exhausted are “adequate” for remedying the alleged violation, which means that the function of those remedies within the domestic legal system is suitable for protecting the legal right that has been infringed.

 

27. In the instant case, the State alleges in an initial stage that it was conducting an investigation and thus the domestic remedies were not exhausted.  Subsequently, it asserted that criminal, disciplinary, and contentious-administrative proceedings were conducted based on the facts of this case.  It also indicated that the criminal investigation had been without delays and that it has been conducted seriously, impartially, and effectively and the victims or their relatives could have easily had access to it, but did not establish themselves as a civil party in the action.  For their part, the petitioners allege that more than 22 years have passed since the investigation was begun and it is still suspended, so that it has not been effective in punishing those responsible.

 

28. In view of the allegations made by the parties, the first requirement is to clarify which domestic remedies must be exhausted in a case like the instant case, in the light of the jurisprudence of the inter-American system. The precedents established by the Commission indicate that whenever an alleged crime is committed that is prosecutable ex officio, the State has the obligation to conduct the criminal proceeding and that, in such cases, this is the suitable route for shedding light on the facts, trying those responsible, and establishing the appropriate criminal punishment, in addition to making possible other monetary forms of compensation.  The Commission notes that the facts presented by the petitioners regarding the disappearance of Víctor Manuel Isaza Uribe are defined under domestic law as criminal conduct prosecutable ex officio the investigation and prosecution of which should be conducted by the State itself.

 

29. As reported, more than 23 years have passed since the occurrence of the events covered in the complaint and the criminal investigation remains suspended in accordance with a ruling of August 25, 1997 issued by the Regional Prosecutor’s Office of Medellín, and as a result no one has been found criminally responsible.  In view of the above, the Commission understands that the investigation would continue to be suspended and its possible reopening would depend on the emergence of new evidence. It is not appropriate for the relatives to bear the procedural burden of promoting a criminal investigation and the State has not alleged that they should have invoked other measures in the context of that proceeding.  The Commission notes that the State does not justify or explain the period of time that has gone by without any procedural activity at all since the suspension of the investigation.

 

30. In this regard, the Commission notes that, as a general rule, a criminal investigation must be conducted quickly in order to protect the interests of the victims, preserve the evidence, and safeguard the rights of anyone who is considered a suspect in the context of the investigation. As the Inter-American Court has pointed out, although any criminal investigation must meet a series of legal requirements, the rule of prior exhaustion of domestic remedies should not lead to a halt or delay in the international proceeding in support of the victim to the point that it is useless. In the instant case, the State has had ample opportunity to investigate and respond to the alleged events and since the criminal investigation was suspended it has not reported on efforts made to shed light on the facts or responsibility for the events that occurred.

 

31. Accordingly, given the characteristics of this case, the lapse of time elapsed since the events covered in the petition, and the fact that the criminal investigation continues to remain suspended, the Commission feels that the exception provided in Article 46(2)(c) of the American Convention regarding the delay in the development of the domestic criminal process is applicable, so that the requirement on exhausting domestic remedies cannot be enforced.

 

32. With respect to the proceedings in the disciplinary and contentious-administrative jurisdictions, the Commission has repeatedly maintained that such venues do not constitute suitable remedies for analyzing the admissibility of a complaint of the type currently before the Commission.  The disciplinary jurisdiction does not constitute a sufficient venue for prosecuting, punishing, and making reparation for the consequences of potential violations of human rights.

 

33. The invocation of the exceptions to the prior exhaustion of domestic remedies rule provided 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 on access to justice.  However, given its nature and purpose, Article 46(2) is a rule with autonomous content vis-à-vis the substantive rules of the Convention. Therefore, the determination as to whether the exceptions to the rule of prior exhaustion of domestic remedies are applicable to the case in question must be made prior to and separately from the analysis of the merits of the case, in that it depends on a standard of assessment different from that used to determine the possible violation of Articles 8 and 25 of the Convention.  It should be made clear that the causes and effects that prevented the exhaustion of domestic remedies will be analyzed in the report that the Commission adopts on the merits of the dispute, in order to establish whether there are violations of the American Convention.

 

2. Deadline for submitting the petition

 

34. The American Convention provides that in order for a petition to be ruled admissible by the Commission it must be submitted within a period of six months after the date on which the alleged injured party is notified of a final decision.  In the complaint under review here, the IACHR has established the application of the exceptions to the exhaustion of domestic remedies in accordance with Article 46(2)(c) of the American Convention.  In this regard, Article 32 of the Commission’s Rules of Procedure establishes that in cases in which the exceptions to the prior exhaustion of domestic remedies are applicable, the petition must be submitted within a reasonable period of time, in the judgment of the Commission. For this purpose, the Commission must consider the date on which the alleged violation of rights occurred and the circumstances in each case.

 

35. In the instant case, the petition was received in December 1990 and the event covered in the complaint occurred on November 19, 1987. The case involves an alleged forced disappearance, a crime that as continuously held by the case law of the inter-American system constitutes an ongoing violation, and its alleged effects in terms, inter alia, of the alleged failure to administer justice continue up to the present.  Therefore, in view of the context and characteristics of the instant case, as well as the fact that an investigation is still suspended in the preliminary investigation phase, the Commission deems that the petition was submitted within a reasonable period of time and the admissibility requirement with respect to the deadline for submission should be considered satisfied.

 

3. Duplication of proceedings and international res judicata

 

36. The Commission notes that the State reported that the facts in this petition have been under review by the United Nations Working Group on Enforced or Involuntary Disappearances since December 9, 1998.  Article 46(1)(c) of the Convention provides that in order for a petition to be admitted by the Commission it shall be required that “the subject of the petition or communication is not pending in another international proceeding for settlement” and Article 47(d) of the Convention provides that the Commission shall declare inadmissible any petition or communication when it is “substantially the same as one previously studied by the Commission or by another international organization.”

 37. The Commission has maintained that in order to deem that there is duplication or international res judicata in a case the petition must be under consideration or have been decided by an international organization that is competent to adopt decisions on the specific facts contained in the petition as well as measures intended to bring about the effective settlement of the dispute involved. The Commission believes, in accordance with this standard, that the above-mentioned Working Group does not belong to the category of international organizations whose mandate may produce the duplication referred to in Articles 46(1)(c) and 47(1)(d) of the American Convention.   In effect, the Working Group is a mechanism that may consider concrete situations involving disappearances with States but it does not have a case system the purpose of which is to issue decisions assigning specific responsibilities. In addition, the State has not submitted background with which to establish that the situation of the alleged victim in the instant complaint has been clarified by that organization. Therefore, it is appropriate to deem that the requirements established in Articles 46(1)(c) and 47(d) of the Convention have been met.

 

4. Characterization of the alleged facts

 

38. In view of the de facto and de jure evidence submitted by the parties and the nature of the matter presented for its review, the IACHR feels that the allegations made by the petitioners regarding the scope of the alleged responsibility of the State with respect to the failure to shed light in the courts regarding the events surrounding the abduction and subsequent disappearance of Víctor Manuel Isaza Uribe, with the alleged acquiescence of the State, from the La Sierra prison in the municipality of Puerto Naré, Department of Antioquia, as well as the alleged failure of due diligence by the State in preventing the events and investigating and punishing those responsible, could characterize possible violations of the rights to recognition of juridical personality, life, personal integrity, personal liberty, judicial guarantees, and judicial protection established in Articles 3, 4, 5, 7, 8(1), and 25 consistent with Article 1(1) of the American Convention. It is appropriate for the IACHR to analyze the possible scope of the State’s responsibility in its role as guarantor of persons who are deprived of liberty.

39. In addition, applying the principle of iura novit curia, it is appropriate for the Commission to establish the potential responsibility of the State for the alleged violation of Article I of the Inter-American Convention on Forced Disappearance of Persons based on the ongoing nature of the failure to shed light on the crime of forced disappearance in view of the allegations made by the petitioners regarding the State’s acquiescence in the alleged disappearance of Víctor Manuel Isaza Uribe.

 

40. The petitioners allege that the disappearance of Víctor Manuel Isaza Uribe was not an isolated event in that, since 1986 various members of SUTIMAC have been murdered or disappeared by the paramilitary group MAS so that, applying the principle of iura novit curia,it is appropriate for the Commission to analyze in the merits phase the potential responsibility of the State for the alleged violation of the freedom of association established in Article 16 of the American Convention as it relates to Article 1(1) thereof.

 

41. The Commission shall also consider in the merits phase the alleged violation of Articles 5, 8(1), and 25 of the American Convention to the detriment of the relatives of the alleged victim.

 

42. With respect to the allegations regarding the alleged violation of the rights to freedom of expression and protection of the family established in Articles 13 and 17 of the American Convention to the detriment of the wife and two children of the alleged victim, the petitioners’ allegations have not been properly presented in the petition, so that it is appropriate to declare those claims inadmissible.

 

V.            CONCLUSIONS

 

43. The Commission concludes that it is competent to examine the claims submitted by the petitioners and the alleged violation of Articles 3, 4, 5, 7, 8(1), 16, and 25 consistent with Article 1(1) of the American Convention, Article I of the Inter-American Convention on Forced Disappearance of Persons, and that they are admissible in accordance with the requirements established in Articles 46 and 47 of the American Convention.  In addition, it concludes that it is appropriate to declare inadmissible the claim regarding the violation of Articles 13 and 17 as they relate to Article 1(1) of the American Convention.

 

44. Based on the factual and legal arguments presented above and without thereby prejudging the merits of the case,

 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,

 

DECIDES:

 

1. To declare this complaint admissible with respect to Articles 3, 4, 5, 7, 8(1), 16, and 25 consistent with Article 1(1) of the American Convention and Article I of the Inter-American Convention on Forced Disappearance of Persons;

 

2. To notify the Colombian State and the petitioner of this decision;

 

3. To continue with analysis of the merits of the case;

 

4. To publish this decision and include it in its Annual Report to the General Assembly of the OAS.

 

Done and signed in the city of Washington, D.C., on the 22nd day of July 2011. (Signed): Dinah Shelton, President; José de Jesús Orozco Henríquez, First Vice-President; Paulo Sérgio Pinheiro, Felipe González, Luz Patricia Mejía Guerrero, and María Silvia Guillén, Commissioners.