REPORT No. 104/11

PETITION 12.336

ADMISSIBILITY

ELIO GELVES CARRILLO ET AL.

COLOMBIA

July 22, 2011

 

 

I. SUMMARY

 

1. On March 2, 1999 the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition submitted by Humanidad Vigente – Corporación Jurídica (hereinafter “the petitioners”) alleging responsibility on the part of the Republic of Colombia (hereinafter “the State” or “the Colombian State”) for the extrajudicial execution of Elio Gelves Carrillo, a 17-year old adolescent (hereinafter “the alleged victim”) allegedly carried out by agents of the State on May 27, 1997 in the municipality of Fortul, Arauca Department, as well as the failure to conduct an effective investigation in the ordinary jurisdiction with a view to the prosecution and punishment of those responsible.

 

2. The petitioners alleged that the State is responsible for violating the rights to life, personal integrity, judicial guarantees, and judicial protection enshrined in Articles 4, 5, 8, and 25 of the American Convention on Human Rights (hereinafter “the American Convention”), all consistent with the general obligation to respect and guarantee the rights established in Article 1.1 thereof.  They maintained that the petition is admissible based on the exception to the exhaustion of domestic remedies in accordance with Article 46.2. a) and b) of the American Convention in that the military criminal jurisdiction does not represent a suitable venue.  For its part, the State alleged that the petition is inadmissible given that the subject matter has been dully decided at the domestic level and the Commission cannot act as a fourth instance for review of established findings.

 

3. After examining the positions of the parties in the light of the admissibility requirements established in Articles 46 and 47 of the Convention, the Commission concludes that it is competent to hear the complaint and that the complaint is admissible based on the alleged violation of the rights enshrined in Articles 4 and 5 of the American Convention, to the detriment of the alleged victim and the alleged violation of Articles 8 and 25 thereof, to the detriment of the victim’s relatives, all as they relate to Article 1.1 of the Convention.  In addition, pursuant to the principle of iura novit curia the Commission considers admissible the possible violation of Article 19 of the American Convention to the detriment of the alleged victim and Article 5, to the detriment of his relatives, all as they relate to Article 1.1 of the Convention.  Accordingly, it decides to inform the parties of the report, to order its publication and include it in its Annual Report to the General Assembly of the OAS.

 

II. PROCESSING BY THE COMMISSION

 

4. The IACHR recorded the complaint under No. 12.336 and after a preliminary analysis it proceeded on October 26, 2000 to forward it to the Colombian State for its observations.  On November 6, 2000 the petitioners submitted additional information that was forwarded to the State for its observations.

 

5. On February 9, 2001 the State submitted its response, which was forwarded to the petitioners for their observations.  On March 16, 2001 the petitioners submitted their response, which was forwarded to the State for its observations.  On May 23, 2001 the State asked for a 15-day extension, which was granted by the Commission.  On June 6, 2001 the State submitted its response, which was forwarded to the petitioners for their observations.

 

6. On October 12, 2004 the Commission again asked the petitioners for information.  On April 16, 2009 the Commission asked the parties for updated information.  The petitioners and the State sought extensions on May 12 and 14, 2009, respectively, and these extensions were granted by the Commission.

 

7. The State submitted its response on June 12, 2009 and the annexes thereto on July 30, 2009; these were forwarded to the petitioners on August 17, 2010 for its information.  On July 14, 2009 the petitioners submitted their response, which was forwarded to the State for its observations on August 17, 2010.  The State and the petitioners asked for extensions on September 17 and September 22, 2010, respectively, which were granted by the Commission.  On October 19, 2010 the State submitted its response, which was forwarded to the petitioners for their information.

 

III. POSITIONS OF THE PARTIES

 

A. Position of the petitioners

 

8. The petitioners allege that on the night of May 27, 1997 a group of people in civilian clothes broke into the home of the Gelves Carrillo family, forcibly removed Elio Gelves Carrillo despite the efforts of this mother, Griseldina Carrillo, to stop them, and some hours later shots were heard nearby.  They state that Manuel Galves, father of the alleged victim, was also in the house and witnessed the events.  They allege that the next morning the lifeless body of the alleged victim was found, in military dress and with an armband of the National Liberation Army (ELN).  They state that the National Army announced on the local radio station that the alleged victim had been cut down in a confrontation with the Revolutionary Armed Forces of Colombia (FARC) and had been found with weapons in his possession.

 

9. They allege that the special military unit “Ure Delta 6” of the Heroes of Pisba Batallion of the National Army conducted “Operation Scorpion” in which they took the alleged victim, according to the testimony of soldiers who participated in the action and the action report. 

 

10. In addition, they state that the alleged victim had been a member of the political organization called “Communist Youth” (JUCO) and that systematic persecution and murders of communist political activists by State agents are known in Colombia.

 

11. The petitioners maintain that preliminary investigation 172 was initiated with the Military Criminal Court 124 which was formally opened on May 8, 1998 with charges against six members of the National Army.  They allege that in the Colombian military justice system has limited jurisdiction that is restricted to actions taken in the course of duty and military discipline.  They indicate that the Colombian Constitution establishes that military justice is not part of the Judicial Branch and is run by State security forces.  They allege that those who make the decisions are not judges of the Republic but rather members of the Army.

 

12. They maintain that based on the events Delegate Prosecutor’s Office 40 before the Criminal Judges of the Saravena Circuit (hereinafter “Delegate Prosecutor’s Office 40”) initiated preliminary investigation 1168.  They state that on July 30, 1998 the Prosecutor raised the issue of a conflict of jurisdiction with the military criminal jurisdiction in that based on the evidence he concluded that Elio Gelves Carrillo was not killed in combat but was, rather, the subject of an extrajudicial execution and that since this represents a crime against humanity it should be heard in the ordinary jurisdiction.  They indicate that the Superior Council of the Judiciary granted jurisdiction to the military jurisdiction and on June 13, 2000 that jurisdiction decided to close the proceeding as being without merit.  They indicate that they filed an appeal challenging that decision and that the decision was upheld by the Military Superior Court.

 

13. They state that they also filed a complaint regarding the death of the alleged victim with the administrative-contentious jurisdiction, which declared the State responsible on April 13, 2000 and ordered it to pay compensation for the moral and material damages caused to the family.  The Administrative-Contentious Court deemed that the alleged victim had not been killed in combat but rather executed by troops belonging to the National Army.

 

14. With respect to the prior exhaustion of domestic remedies requirement established in Article 46.1 of the American Convention, the petitioners maintain that the proceeding conducted in the military criminal jurisdiction does not constitute an effective remedy for developing an investigation of human rights violations. In this regard, they feel that the military investigation represents contempt of the Commission’s recommendations in its Second Report on the Situation of Human Rights in Colombia in that “military courts do not guarantee the effective right to justice since they lack independence” and impartiality.  In addition, they allege that the military criminal investigation has fostered impunity instead of establishing responsibility for what happened.  In this respect, they allege that the exceptions to the exhaustion of domestic remedies are applicable because the military criminal jurisdiction is not suitable in accordance with paragraphs a) and b) of Article 46.2 of the American Convention.

 

15. In response to the State’s allegations that the alleged victim died as a result of combat, the petitioners respond that actions were taken from the very start to conceal and alter the scene of the events.  For example, they state that the photographs of the scene show a rifle superimposed on the body of the victim, but the alleged weapons seized (grenades and antipersonnel landmines) do not appear.  They maintain that the alleged victim was not a member of illegal groups and was in conversation with his relatives at home at the time he was taken.  Based on this, they consider that the State is responsible for violating the rights established in Articles 4 and 5 of the American Convention, to the detriment of Elio Gelves Carrillo and Articles 8 and 25 to the detriment of his relatives, all as they relate to Article 1.1 thereof.

 

Position of the State

 

16. The State maintains that due to the alleged event proceedings were diligently conducted at the domestic level in the military criminal, administrative-contentious, and disciplinary jurisdictions.  It alleges that on May 8, 1998 a military criminal investigation was launched against six members of the National Army.  It maintains that on January 28, 1999 the Superior Council of the Judiciary settled the conflict of jurisdictions that arose with Delegate Prosecutor’s Office 40, determining that the competent jurisdiction was the military jurisdiction.  The State indicates that on April 23, 2001 the First Instance Judge decided the case had no merit and ordered the investigation closed given that [the accused were acting] in strict compliance with a legal duty because the death of the alleged victim occurred as a result of an armed confrontation in which legitimate defense was demonstrated and justified with sufficient evidence. It states that this decision was upheld on March 6, 2002 by the Military Superior Court.  The State alleges that the military criminal jurisdiction has the characteristics of impartiality and independence of judges and that any observation in this regard should be proven with respect to each case.

 

17. The State indicates that the President of the Municipal Council of Fortul filed a complaint with the Office of the Attorney General (Procuraduría General de la Nación - PGN) and on September 11, 1998 that office ordered the permanent close of the preliminary disciplinary inquiry, based on the principle of in dubio pro reo, given that it was impossible to identify the three individuals who entered the home of the Gelves Carrillo family.  It states that that ruling was not appealed by the petitioners.

 

18. The State indicates that in response to the administrative-contentious action filed by Griseldina Carrillo de Gelves, the Administrative-Contentious Court of Arauca declared the State responsible because it found the allegations of violations while on duty to have been proven and recognized moral damages for the parents and siblings of the alleged victim and material damages for his parents.  It states that in compliance with that decision, payment of 127,873,548 Colombian pesos was ordered in 2001 and payment of 1,009,556 Colombian pesos was ordered in 2002 for interest due.  It alleges that that ruling was not appealed by the petitioners.  In this regard, the State alleges that an administrative contentious conviction does not imply criminal responsibility on the part of the agents of the State.  It also alleges that the petition should not be admitted; at least with respect to the claims for reparations, given that there have already been reparations at the domestic level.

 

19. The State alleges that the existence of a ruling unfavorable to the interests of the alleged victims does not constitute a violation of the rights contained in the American Convention, that the remedies pursued in the domestic jurisdiction were adequate, effective, and appropriate, and that the decisions were properly supported and cannot be declared to have been arbitrary.  In view of the above, the State asserts that the alleged facts have been the subject of domestic decisions in three different and autonomous jurisdictions, in accordance with due process, and that the decisions were not appealed; thus, the Commission cannot act as a court of fourth instance. 

 

IV.            ANALYSIS OF ADMISSIBILITY

 

A. Competence ratione materiae, ratione personae, ratione temporis and ratione loci of the Commission

 

20. The petitioners are authorized by Article 44 of the American Convention to submit petitions to the Commission.  The petition indicates as victims individuals with respect to whom the Colombian State has committed to respect and guarantee the rights enshrined in the American Convention.  With respect to the State, the Commission indicates that Colombia has been a State Party to the American Convention since July 31, 1977, the date on which it deposited its ratifying instrument.  Therefore, the Commission is competent ratio personae to examine the petition.  In addition, the Commission is competent ratione loci to hear the petition in that it alleges violations of rights protect in the American Convention that would have occurred within the territory of Colombia, a State Party to that convention.

 

21. The Commission is competent ratione temporis in that the obligation to respect and guarantee the rights protected in the American Convention were already in effect for the State on the date the events alleged in the petition would have occurred.  Finally, the Commission is competent ratione materiae because the petition alleges possible violations of human rights protected by the American Convention.

 

B. Admissibility requirements

 

1. Exhaustion of domestic resources

 

22. In order for a complaint regarding the alleged violation of the provisions of the American Convention to be admitted, it must meet the requirements established in Article 46.1 of that international instrument.  Article 46.1.a) of the Convention provides that in order to determine the admissibility of a petition or communication submitted to the IACHR in accordance with Articles 44 or 45 of the Convention, the domestic remedies must have been pursued and exhausted, in accordance with generally recognized principles of international law.

 

23. Article 46.2 of the Convention provides that the prior exhaustion of domestic remedies requirement 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 (c) there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.

 

24. The Commission must first clarify which domestic remedies should be exhausted in the instant case.  The Commission and the Inter-American Court have indicated that only remedies suitable for resolving the violations allegedly committed must be exhausted.  The suitability of remedies means that

 

The function of these resources within the internal legal system is appropriate to protect the legal situation infringed upon. In all internal legal systems, there are multiple resources, but not all of them are applicable in every circumstance. If, in a specific case, the resource is not adequate, it is obvious that it need not be exhausted. This is indicated in the principle that the norm is designed to produce an effect and cannot be interpreted in the sense that it does not produce one or its results are manifestly absurd or irrational.

 

25. The Commission notes that because this complaint involves the alleged responsibility of agents of the State in the alleged detention and execution of a civilian, the appropriate remedy for shedding light on the facts is a criminal investigation in the regular courts for the purpose of establishing the criminal responsibility of the agents of the State involved. The Commission also notes that the alleged facts relating to the alleged extrajudicial execution of Elio Gelves Carrillo are defined in Colombian law as criminal conduct prosecutable ex officio that should be investigated and prosecuted by the State itself.

 

26. In the instant petition, the State does not allege failure to exhaust the domestic remedies and maintains that based on the alleged facts proceedings were diligently conducted at the domestic level in the military criminal, administrative-contentious, and disciplinary jurisdictions.  For their part, the petitioners allege that the exception provided in Article 46.2. a) and b) of the American Convention is applicable, in that the investigation of the facts was conducted in the military criminal jurisdiction, which does not constitute an effective remedy.

 

27. In this petition, following the events of May 27 1997, an investigation was launched in the military criminal jurisdiction on May 8, 1998.  Simultaneously, Delegate Prosecutor’s Office 40 initiated a preliminary investigation and on July 30, 1998 raised the issue of a conflict of jurisdiction with the military criminal jurisdiction.  On January 28, 1999 the Superior Council of the Judiciary settled the conflict of jurisdictions in favor of the military criminal jurisdiction.  On April 23, 2001 the First Instance Judge declared the investigation closed; a decision that after being appealed was upheld on March 6, 2002 by the Superior Military Court. 

 

28. In this regard, the Commission has repeatedly ruled to the effect that special jurisdictions, like the military jurisdiction, do not constitute an appropriate forum and thus do not offer an adequate remedy for investigating, prosecuting, and punishing possible violations of the human rights enshrined in the American Convention, such as the right to life, allegedly committed by members of law enforcement.The same reasoning has been systematically applied by other relevant international human rights bodies.

 

29. The Commission notes that more than 14 years have passed since the events occurred and since the conflict of jurisdiction raised by Delegate Prosecutor’s Office 40, the facts that are the subject of this petition have still not been investigated or decided in the ordinary criminal jurisdiction, which would provide the appropriate remedy.  In view of the preceding, the complaint falls within the exception to the exhaustion of domestic remedies provided in Article 46.2.b) of the American Convention establishing that said exception applies when “…the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them.”  The Commission also notes an unwarranted delay under the terms of Article 46.2.c) and as a result the prior exhaustion of domestic remedies cannot be required.

 

30. Regarding the complaint filed with the PGN by the President of the Municipal Council of Fortul, which ended with the permanent archive of the preliminary disciplinary inquiry, it should be noted that the Commission has previously established that the disciplinary jurisdiction does not constitute a sufficient venue for prosecuting, punishing, and making reparation for the consequences of human rights violations.

 

31. Regarding the administrative-contentious remedy exhausted before the Administrative-Contentious Court of Arauca whereby the State was declared responsible for violations committed while on duty, it should be noted that this represents a mechanism that sought to monitor the administrative activity of the State and only allowed for obtaining compensation for damages and injuries caused.

 

32. In this respect, the Commission has previously maintained that decisions handed down in disciplinary and administrative-contentious systems are not appropriate remedies for purposes of the prior exhaustion of domestic remedies.  In the instant case, the petitioners’ claims relate to the investigation, prosecution, and criminal punishment of those responsible, issues that do not fall within the purview of those jurisdictions.  Consequently, in a case like this one these remedies need not be exhausted before having recourse to the inter-American system.

 

33. The invocation of the exceptions to the prior exhaustion of domestic remedies rule established in Article 46.2 of the Convention is closely tied to the determination of possible violations of certain rights enshrined therein, such as judicial guarantees and judicial protection.  However, Article 46.2, based on its nature and purpose, is a standard with autonomous content vis-à-vis the substantive standards of the American Convention.  As a result, the determination as to whether the exceptions to the rule of the exhaustion of domestic remedies are applicable to the case in question must be made prior to and separate 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 American Convention.  It should be made clear that the causes and effects that prevented the exhaustion of domestic remedies will be analyzed in the report adopted by the Commission regarding the merits of the dispute in order to determine whether they constitute violations of the American Convention.

 

2. Deadline for submitting a petition to the Commission

 

34. The American Convention establishes that in order for a petition to be admitted by the Commission it must have been submitted within a period of six months from the date when the alleged injured party was notified of the final decision.  In the complaint under review, 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 Rules of Procedure of the Commission establishes that in cases where 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.  To this end, 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 on March 2, 1999, the alleged facts covered in the complaint began on May 27, 1997 and the effects thereof in terms of the alleged failure to administer justice continue to the present day.  Thus, in view of the context and considerations of this case, the Commission deems that the petition was submitted within a reasonable period of time and that the admissibility requirement with respect to the deadline for submission should be considered to have been met.

 

3. Duplication of proceedings and res judicata

 

36. The petition file contains no information that would lead to a determination that this matter is pending settlement in any other international proceeding or has previously been decided by the Inter-American Commission.  Therefore, the IACHR concludes that the exceptions established in Article 46.1.d) and Article 47.d) of the American Convention are not applicable.

 

4. Characterization of the alleged facts

 

37. In this petition, the State maintains that the death of the alleged victim occurred as the result of an armed confrontation and based on the facts proceedings were diligently conducted at the domestic level in the military criminal, administrative-contentious, and disciplinary jurisdiction and thus the Commission would be acting as a court of fourth instance.  For their part, the petitioners maintain that the alleged victim was extrajudicially executed and that the investigation and prosecution of the facts were conducted in the military criminal jurisdiction, so that the perpetrators of the crimes have not been prosecuted and punished in the appropriate forum.

 

38. Thus, given the factual and legal arguments submitted by the parties and the nature of the matter presented for its review, the IACHR finds that in the instant case it is appropriate to establish that the allegations made by the petitioners regarding the alleged violation of the right to life and personal integrity to the detriment of Elio Gelves Carrillo could characterize violations of the rights protected in Articles 4 and 5 consistent with Article 1.1 of the American Convention.  In addition, it is appropriate to establish that the allegations of the petitioners regarding the alleged violation of the right to judicial guarantees and judicial protection to the detriment of the relatives of the alleged victim could characterize violations of the rights protected in Articles 8 and 25 consistent with Article 1.1 of the American Convention.

 

39. The Commission, applying the principle of iura novit curia, considers that the facts covered in this petition could also characterize possible violations of Article 19 of the American Convention, to the detriment of Elio Gelves Carrillo.  In accordance with the rules of interpretation regarding human rights established in the American Convention and the criteria established by the Inter-American Court of Human Rights regarding the tendency to integrate the regional system and the universal system as well as with respect to the idea of corpus juris in the area of children and adolescents, the Commission will interpret the scope and content of the rights alleged to have been violated to the detriment of Elio Gelves Carrillo in the light of the provisions of the United Nations Convention on the Rights of the Child.

 

40. The IACHR, applying the principle of iura novit curia, considers that the alleged facts could characterize a violation of Article 5 of the American Convention to the detriment of the relatives of the alleged victims. In that the lack of grounds or inadmissibility of these aspects of the complaint are not evident, the Commission deems the requirements established in Articles 47(b) and (c) of the American Convention to have been met. 

 

 

V. CONCLUSIONS

 

41. The Commission concludes that it is competent to examine the complaints submitted by the petitioners regarding the alleged violation of Articles 4, 5, 8, 19, and 25, consistent with Article 1.1 of the American Convention. 

 

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

 

THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS,

 

DECIDES:

 

1. To declare this case admissible with respect to Articles 4, 5, 8, 19, and 25, as they relate to Article 1.1 of the American Convention on Human Rights.

 

2. To inform the parties of this decision.

 

3. To proceed with analysis of the merits of the case

 

4. To publish this decision and include it in the Annual Report to be submitted 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.