In
the Las Palmeras case,
the
Inter-American Court of Human Rights (hereinafter “the Court” or “the
Inter-American Court”), composed as follows:*
Antônio A. Cançado Trindade, President;
Máximo Pacheco Gómez, Vice President;
Hernán Salgado Pesantes, Judge;
Oliver Jackman, Judge;
Alirio Abreu Burelli, Judge;
Sergio García Ramírez, Judge, and
Julio A. Barberis, Judge ad hoc;
also
present,
Manuel E. Ventura Robles, Secretary, and
Renzo Pomi, Deputy Secretary,
pursuant
to Article 36.6 of its Rules of Procedure (hereinafter “the Rules of
Procedure”), delivers the following judgment on the preliminary objections
filed by the Republic of Colombia (hereinafter “the State” or “Colombia”).
I
Introduction
of the case
1. This case was submitted to the Court by the Inter-American
Commission on Human Rights (hereinafter “the Commission” or “the Inter-American
Commission”) on July 6, 1998. The
Commission’s application originates from a petition (No. 11.237) received by
its Secretariat and dated in Bogotá on January 27, 1994.
II
Facts set
forth in the application
2. In its application, the Inter-American Commission set forth
the facts on which its complaint is based.
It is alleged that on
January 23, 1991, the Departmental Commander of the Putumayo Police Force had
ordered members of the National Police Force to carry out an armed operation in
Las Palmeras, municipality of Mocoa, Department of Putumayo. Members of the Armed Forces would provide
support to the National Police Force.
That, on the morning of
that same day, some children were in the Las Palmeras rural school waiting for
classes to start and two workers, Julio Milcíades Cerón Gómez and Artemio
Pantoja, were there repairing a tank.
The brothers, William and Edebraiz Cerón, were milking a cow in a
neighboring lot. The teacher, Hernán
Javier Cuarán Muchavisoy, was just about to arrive at the school.
That the Armed Forces
fired from a helicopter and injured the child Enio Quinayas Molina, 6 years of
age, who was on his way to school.
That in and around the
school, the Police detained the teacher, Cuarán Muchavisoy, the workers, Cerón
Gómez and Pantoja, and the brothers, William and Edebraiz Cerón, together with
another unidentified person who might be Moisés Ojeda or Hernán Lizcano
Jacanamejoy; and that the National Police Force extrajudicially executed at
least six of these persons.
That members of the Police
Force and the Army have made many efforts to justify their conduct. In this respect, they had dressed the bodies
of some of the persons executed in military uniforms, they had burned their
clothes and they had threatened those who witnessed the event. Also, that the National Police Force had
presented seven bodies as belonging to rebels who died in an alleged
confrontation. Among these bodies were
those of the six persons detained by the Police and a seventh, the
circumstances of whose death have not been clarified.
That, as a consequence of
the facts described, disciplinary, administrative and criminal proceedings had
been initiated. The disciplinary
proceeding conducted by the Commander of the National Police Force of Putumayo
had delivered judgment in five days and had absolved all those who took part in
the facts at Las Palmeras. Likewise,
two administrative actions had been opened in which it had been expressly
acknowledged that the victims of the armed operation did not belong to any
armed group and that the day of the facts they were carrying out their usual
tasks. That these proceedings proved
that the National Police Force had extrajudicially executed the victims when
they where defenseless. As regards the
criminal military action, after seven years, it is still at the investigation
stage and, as yet, none of those responsible for the facts has been formally
accused.
III
Proceeding
before the Commission
3. On January 27, 1994, the Commission
received a petition for alleged human rights violations to the detriment of
Artemio Pantoja Ordoñez, Hernán Javier Cuarán Muchavisoy, Julio Milcíades Cerón
Gómez, Edebraiz Cerón Rojas, William Hamilton Cerón Rojas, an unidentified
person who could be Moisés Ojeda or Hernán Lizcano Jacanamejoy, and another
person who has not been identified either and who died in unknown
circumstances. On February 16, 1994,
the Commission forwarded the pertinent parts of the petition to the State and
requested the corresponding reply.
4. The State replied on May 25, 1994. The communication was forwarded to the
petitioners, who presented their rejoinder on October 6, 2994. On November 3 that year, the Commission
forwarded this to Colombia, who replied on December 15. Both the petitioners and the State
transmitted other communications regarding the status of the investigations and
the domestic judicial proceedings to the Commission, and the latter forwarded
the pertinent parts to the other party.
5. On October 8, 1996, the Commission held
a hearing in which the parties presented their verbal arguments about the facts
and the law applicable to the instant case.
6. On February 20, 1998, the Commission
approved Report No. 10/98 and transmitted it to the State on March 6 that
year. In the operative part of this
Report, the Commission recommended:
119. That the Colombian State should commence a serious,
impartial and effective investigation into the facts denounced, so as to be
able to clarify the facts of January 23, 1991, and determine in full detail in
an official report the circumstances of and responsibility for the violations
committed.
120. That the Colombian State should submit all those responsible
for the violations to the pertinent judicial proceedings so that they may be
punished.
121. That the Colombian State should adopt measures in order to
provide due reparation for the violations verified, including a compensation
for the next of kin of the victims who have still not received this.
7. On May 11, 1998, the Commission
received a note from the State, dated April 30, 1998, in which the State
requested an additional period of 45 days to reply to Report No. 10/98. On May 14 that year, the Commission informed
the parties that it had conceded to the State an additional period of ten days.
8. On May 22, 1998, the State made a
proposal for a friendly settlement, which was forwarded to the petitioners, who
forwarded their observations on May 29.
In this proposal, the State indicated that it did not “totally” share
the considerations and conclusions of Report No. 10/98, particularly with regard
to exhaustion of domestic remedies and application of rules of international
humanitarian law. Furthermore, it
indicated that it proposed the creation of a Committee to expedite the criminal
investigation.
9. On June 2, 1998, the State and the petitioners
informed the Commission that they had agreed on a period of 30 days to initiate
negotiations designed to reach a friendly settlement and suspend the course of
the periods established in Article 51.1 of the American Convention on Human
Rights (hereinafter “the American Convention” or “the Convention”).
10. On July 1, 1998, the petitioners informed
the Committee that, at that time, the conditions to reach a friendly settlement
did not exist; they requested it to continue processing the case and to resume
the course of the suspended periods.
This information was forwarded to the State.
11. On July 6, 1998, the Commission submitted the case to the
Inter-American Court (supra 1).
IV
Proceeding
before the court
12. The Inter-American Commission set forth the conclusion and the
requirements of its application as follows:
The Commission respectfully
requests that Court:
Conclude and declare that the
State of Colombia has violated the right to life, embodied in Article 4 of the
Convention, and Article 3, common to all the 1949 Geneva Conventions[1],
to the detriment of six persons: Artemio Pantoja Ordoñez, Hernán Javier Cuarán
Muchavisoy, Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas, William Hamilton
Cerón Rojas and another person (Hernán Lizcano Jacanamejoy or Moisés Ojeda).
Establish the circumstances of
the death of a seventh person, who had presumably died in combat (Hernán
Lizcano Jacanamejoy or Moisés Ojeda), in order to determine whether the State
of Colombia has violated his right to life embodied in Article 4 of the
Convention and Article 3, common to all the 1949 Geneva Conventions.
Conclude and declare that the
State of Colombia has violated the judicial guarantees established in Article 8
and the right to judicial protection established in Article 25 of the
Convention to the detriment of Artemio Pantoja Ordoñez, Hernán Javier Cuarán
Muchavisoy, Julio Milcíades Cerón Gómez, Edebraiz Cerón Rojas, William Hamilton
Cerón Rojas, Hernán Lizcano Jacanamejoy and Moisés Ojeda, and their next of
kin.
Conclude and declare that, as a
consequence of the violations of the rights to life and to judicial guarantees
and protection, the State of Colombia has also violated its obligation to
respect and guarantee the rights embodied in the Convention, pursuant to
Article 1.1 thereof.
Order the State of Colombia:
a) To conduct a rapid, impartial and
effective judicial investigation of the facts denounced and punish those
responsible.
b) To identify precisely whether the
other person extrajudicially executed on January 23, 1991, by members of the
national Police Force was Hernán Lizcano Jacanamejoy or Moisés Ojeda. Furthermore, the Honorable Court is
requested to order the State of Colombia to carry out a serious investigation
in order to clarify the circumstances under which the seventh victim died and
about whose death the Commission did not give an opinion.
c) To grant integral reparation to the
next of kin of the victims; including payment of fair compensation (less the
amount that has already been paid as pecuniary compensation in accordance with
the judgments in the actions under administrative law in favor of Artemio
Pantoja Ordoñez, Hernán Javier Cuarán Muchavisoy, Julio Milcíades Cerón Gómez,
Edebraiz Cerón Rojas and William Hamilton Cerón Rojas) and the recovery of the
victims’ reputations.
d) To adopt the necessary reforms in
the regulations and the training programs of the Colombian Armed Forces, so
that all military operations are conducted in accordance with the international
instruments and custom, applicable to internal armed conflicts.
e) That the Colombian State should
bear the costs and expenses in which the next of kin of the victims have
incurred to litigate this case both nationally and before the Commission and
the Court, and reasonable honoraria for their lawyers.
13. The Commission appointed Robert K. Goldman and Carlos Ayala
Corao as Delegates, and Verónica Gómez and David Padilla as advisors. Also, the Commission attested the
appointment of Luz Marina Monzón, Gustavo Gallón and Carlos Rodríguez as
assistants and petitioners, and Pablo Saavedra and Viviana Krsticevic as
assistants.
14. On July 15, 1998, the Secretariat of the Court
(hereinafter “the Secretariat”), following the preliminary examination of the
application by the President of the Court (hereinafter “the President”),
notified the State of the application and its annexes, and informed it of the
periods for replying to the application, filing preliminary objections and
appointing those who would represent it during the proceeding.
15. On August 14, 1998, Colombia appointed Marcela Briceño-Donn as
agent and Héctor A. Sintura Varela as deputy agent.
16. On September 14, 1998, Colombia filed the
following preliminary objections;
First:
Violation of due process for
serious omission of information.
Second:
The Inter-American Commission on
Human Rights is not competent to apply international humanitarian law and other
international treaties.
Third:
The Inter-American Court of
Human Rights is not competent to apply international humanitarian law and other
international treaties.
Fourth:
The Inter-American Court of Human
Rights is not competent to hear a matter when domestic remedies have not been
exhausted.
Fifth:
The Inter-American Court of Human
Rights is not competent to act as a trial court for individual facts.
17. On September 21, 1998, the Secretariat notified the brief
filing objections to the Inter-American Commission, and the Commission replied
to this on November 5, 1998.
18. On December 10, 1998, the President invited Colombia to
appoint a Judge ad hoc, since Judge
Carlos Vicente de Roux Rengifo, a Colombian national, had excused himself from
hearing the instant case, pursuant to Articles 19 of the Statute of the Court
and 19 of its Rules of Procedure.
19. On December 15, 1998, Colombia submitted its reply to the
application.
20. On January 12, 1999, the Colombian State appointed Julio A.
Barberis as Judge ad hoc.
21. On February 19, 1999, the President decided to invite the
parties to a public hearing to be held at the seat of the Court on May 31,
1999, to hear arguments on the preliminary objections.
22. The public hearing was held at the seat
of the Court on the date established.
There
appeared:
for
the State of Colombia:
Marcela Briceño-Donn, Agent;
Héctor Sintura Varela, Deputy Agent; and
Felipe Piquero Villegas, Advisor.
for
the Inter-American Commission on Human Rights:
Robert K. Goldman, Delegate;
Verónica Gómez, Lawyer;
Viviana Krsticevic, Assistant;
Marina Monzón Cifuentes, Assistant; and
Carlos Rodríguez Mejía, Assistant.
V
Competence
23. Colombia has been a State Party to the American Convention
since July 31, 1973. On June 21, 1985,
it recognized the contentious jurisdiction of the Court. Therefore, the Court is competent to hear the
preliminary objections filed by the State, pursuant to the provisions of
Article 62.3 of the Convention.
VI
Prior
considerations
24. The preliminary objections filed by
Colombia are submitted, joined and examined under the procedural concepts to
which they refer, as follow: a) violation of due process due to a serious
omission of information (cf. first
objection); b) lack of competence of the Inter-American Court of Human Rights
and the Inter-American Commission on Human Rights to apply international humanitarian
law and other international treaties (cf.
third and second objections, respectively); c) lack of competence of the Court
to hear a matter when remedies under domestic law have not been exhausted (cf. forth objection), and d) lack of
competence of the Court to act as a trial court for individual facts (cf. fifth objection).
VII
First
preliminary objection: violation of due process
25. In its first preliminary objection,
Colombia affirmed that the Commission failed to provide complete information on
the current status of the case under domestic law in the application, which
constitutes a violation of due process.
The
Commission’s fundamental omission consisted in not having stated in the
application that the domestic case had passed from the military criminal
jurisdiction to the Human Rights Unit of the Office of the Prosecutor
General. Colombia deemed that this
change of jurisdiction was a “new and transcendental” fact. As the main piece of evidence, the State
submitted the note that it had sent to the Executive Secretary of the
Commission on May 22, 1998, setting forth this circumstance.
The
State considered that the Commission had the obligation to include information
on the existing circumstances of the case under domestic proceedings in the
application and that this omission constituted a serious fact that affected
procedural fairness and its status before the Court.
Colombia
declared that this situation impeded the Court from hearing the case and
pronouncing judgment on it. In another
part of its brief filing objections, it stated that there was an “error that
could not be corrected,” since the statutory time limit for correcting the
application had already passed.
Due
to the foregoing, the State requested that the file should be returned to the
Commission so that the latter could issue a final report pursuant to the
provisions of the Convention. At the
hearing, Colombia requested that the Court declare that the application was
inadmissible due to the serious omission of information by the Commission.
26. The Commission stated that the
application presented to the Court on July 6, 1998, was prepared on the basis
of the facts set out in Report No. 10/98, which had been approved on February
20, 1998. Consequently, the facts
invoked by Colombia had not been included in the application. Likewise, the Commission indicated that,
according to the Rules of Procedure of the Court, the proceeding is held with
the presence of both parties and each party has the opportunity to exercise its
right to defense. Therefore, an
omission by the Commission could not affect Colombia’s procedural rights, and
it requested that the objection filed should be dismissed.
27. As the Commission indicates, the
proceeding before this Court is held in the presence of both parties. Moreover,
this Court pronounces judgment in accordance with what each party has alleged
and proved. Consequently, the
circumstance that the plaintiff failed to mention specific facts does not
impede the defendant from alleging and presenting the corresponding
evidence. This Court does not
understand how the Commission’s conduct has affected Colombia’s right to due
process; it considers that the objection filed lacks grounds and therefore
dismisses it.
VIII
Third
preliminary objection: lack of competence of the Court
28. In the
application submitted by the Commission, the Court is requested to “conclude
and declare that the State of Colombia violated the right to life, embodied in
Article 4 of the Convention and Article 3, common to all the 1949 Geneva
Conventions... .” In view of this
request, Colombia filed a preliminary objection affirming that the Court “does
not have the competence to apply international humanitarian law and other
international treaties.”
In this respect, the State
declared that Articles 33 and 62 of the Convention limit the Court’s competence
to the application of the provisions of the Convention. It also invoked Advisory Opinion OC-1 of
September 24, 1982 (paragraphs 21 and 22) and stated that the Court “should
only make pronouncements on the competencies that have been specifically
attributed to it in the Convention.”
29. In its brief, the Commission preferred to reply jointly to the
objections regarding its own competence and that of the Court with regard to
the application of humanitarian law and other treaties. Before examining the issue, the Commission
stated, as a declaration of principles, that the instant case should be decided
in the light of “the norms embodied in both the American Convention and in
customary international humanitarian law applicable to internal armed conflicts
and enshrined in Article 3, common to all the 1949 Geneva Conventions”. The
Commission reiterated its belief that both the Court and the Commission were
competent to apply this legislation.
The Commission then stated
that the existence of an armed conflict does not exempt Colombia from
respecting the right to life. As the
starting point for its reasoning, the Commission stated that Colombia had not
objected to the Commission’s observation that, at the time that the loss of
lives set forth in the application occurred, an internal armed conflict was
taking place on its territory, nor had it contested that this conflict
corresponded to the definition contained in Article 3 common to all the Geneva
Conventions.
Nevertheless, the
Commission considered that, in an armed conflict, there are cases in which the
enemy may be killed legitimately, while, in others, this was prohibited. The Commission stated that the American Convention
did not contain any rule to distinguish one hypothesis from the other and,
therefore, the Geneva Conventions should be applied. The Commission also invoked in its favor a passage from the
Advisory Opinion of the International Court of Justice on The Legality of the Threat or Use of Nuclear Weapons, as follows:
In principle, the right not arbitrarily to be deprived
of one’s life applies also in hostilities.
The test of what is an arbitrary deprivation of life, however, then
falls to be determined by the applicable lex
specialis, namely, the law applicable in armed conflict that is designed to
regulate the conduct of hostilities.
Thus whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life
contrary to Article 6 of the Covenant, can only be decided by reference to the
law applicable in armed conflict and not deduced from the terms of the Covenant
itself.[2]
The Commission stated
that, in the instant case, it had first determined whether Article 3, common to
all the Geneva Conventions, had been violated and, once it had confirmed this,
it then determined whether Article 4 of the American Convention had been
violated.
The plaintiff also set out
in its brief the nature of international humanitarian law and its relation to
human rights.
Lastly, the Commission
invoked Article 25 of the American Convention. The Commission interpreted this
article in the sense that it was a norm that allowed it to apply humanitarian
law.
The Commission stated that,
in its opinion, the objection filed by Colombia is not a jurisdictional
objection that can affect the elements required for the Court to exercise its
competence. It stated that it was
perhaps premature to consider the State’s objection with regard to the
invocation of the Geneva Conventions, since this issue is linked to the merits
of the case. However, in the conclusion
to its brief, the Commission requested the Court to dismiss the preliminary
objection filed and to declare that it had competence to apply international
humanitarian law and other international treaties.
30. During the public hearing, Colombia tried to refute the
arguments set out by the Commission in its brief. In this respect, the State
emphasized the importance of the principle of consent in international
law. Without the consent of the State,
the Court may not apply the Geneva Conventions.
The State’s representative
then affirmed that neither Article 25 or Article 27.1 of the American
Convention may be interpreted as norms that authorize the Court to apply the
Geneva Conventions.
Lastly, Colombia
established the distinction between “interpretation” and “application.” The Court may interpret the Geneva
Conventions and other international treaties, but it may only apply the American
Convention.
31. At the hearing, the Commission made a detailed statement on
its thesis about the applicability of international humanitarian law by the
Court, in which it stated that “the premise that the Commission and the Court
are required to determine whether States Parties have violated the American
Convention in a way that excludes other sources of international law” is
inexact.
The Commission affirmed in
its arguments that there is a specific relationship between Article 4 of the
American Convention and Article 3 common to all the Geneva Conventions, and
that,
as
it has understood […] the purpose and goal of the American Convention and the
need to apply it effectively uphold the competence of the organs of the system
to decide on violations of Article 4 in a way which is coextensive with the
norm of general international law embodied in Article 3 common to all the
Geneva Conventions.
[...]
In
view of its specificity and relevance for this precise case and its context,
the Commission deems that the common Article 3 was considered in its character
of a norm of international law that obliges the Illustrious State and that even
forms an integral part of Colombian domestic law. The Commission considers that ignoring the meaning and scope of
certain international obligations of the State and renouncing the task of
harmonizing them with the competence of the organs of the inter-American system
in an integral and teleological context, would imply betraying the ethical and
juridical benefit promoted in Article 29, which is to say the best and most
progressive application of the American Convention.
[...]
Consequently,
the alleged violations of the right to life committed in a context of internal
armed conflict may not always be resolved by the Commission, solely by invoking
Article 4 of the American Convention.
The American Convention does not expressly remit to international
humanitarian law under these circumstances; however, in view of the status of
this branch of international law and its recognized interrelation and
complementarity with human rights, it is evident that this is not a deliberate
omission, but rather an omission that affects a fundamental right that may not
be suspended.
[...]
The
Commission considers that, in this case,
its conclusion regarding the violation of Article 4, in a way which is
coextensive with the common Article 3, not only does not exceed its competence,
but rather constitutes part of its mandate as an organ entrusted with ensuring
observance of the fundamental human rights under the jurisdiction of the States
Parties. This determination is based on
the application of a universally ratified conventional law that codifies
general international law.
[...]
The
Commission considers that the conclusions [...] with regard to this norm of
international humanitarian law, in relation to Article 4 of the Convention in
the instant case, entail a justified pro-active interpretation of the mandate
of the organs of the system, consistent with the purpose and goal of international
human rights law and, at the same time, essentially respectful of the rule of
consent and the importance of existing norms of international law.
Lastly, the Commission
deemed that the objection filed by Colombia was not a jurisdictional objection
and that the question was related to the de
facto and de jure determination
of the merits of the case.
32. The American Convention is an international treaty according
to which States Parties are obliged to respect the rights and freedoms embodied
in it and to guarantee their exercise to all persons subject to their
jurisdiction. The Convention provides
for the existence of the Inter-American Court to hear “all cases concerning the
interpretation and application” of its provisions (Article 62.3).
When a State is a Party to
the American Convention and has accepted the contentious jurisdiction of the
Court, the Court may examine the conduct of the State to determine whether it
conforms to the provisions of the Convention, even when the issue may have been
definitively resolved by the domestic legal system. The Court is also competent to determine whether any norm of
domestic or international law applied by a State, in times of peace or armed
conflict, is compatible or not with the American Convention. In this activity, the Court has no normative
limitation: any legal norm may be submitted to this examination of
compatibility.
33. In order to carry out this examination, the Court interprets
the norm in question and analyzes it in the light of the provisions of the
Convention. The result of this
operation will always be an opinion in which the Court will say whether or not
that norm or that fact is compatible with the American Convention. The latter has only given the Court
competence to determine whether the acts or the norms of the States are
compatible with the Convention itself, and not with the 1949 Geneva
Conventions.
Therefore, the Court
decides to admit the third preliminary objection filed by the State.
IX
Second
preliminary objection: lack of competence of the Commission
34. As its second preliminary objection,
Colombia alleged the lack of competence of the Commission to apply
international humanitarian law and other international treaties. In this respect, the State indicated that
the American Convention limits the competence ratione materiae to the rights embodied in the Convention and does
not extend it to those embodied in any other convention. It added that the Court has never determined
the faculty of the Court or the Commission to hear matters outside the
attributions of competence set out in the Convention and, to this end, it
invoked Advisory Opinion OC-1 and Article 33 of the Convention. The fact that States members of the
Organization of American States must observe the Geneva Conventions in good
faith and adapt their domestic legislation to comply with those instruments
does not give the Commission competence to infer State responsibility based on
them.
At
the public hearing, the State indicated that it agreed that the Convention should
be interpreted in harmony with other treaties, but it did not accept that the
common Article 3 could be applied as a norm infringed by Colombia in an
individual case. In view of their place
in the text of the Convention, neither Article 25 nor Articles 27.1 or 29.b may
be considered to be norms that attribute competence; they are norms that
establish rights and the last one is a norm of interpretation.
As may be inferred from international law and
practice, the preliminary objections filed in
limine litis by the defendant have the following purposes essentially: to
contest the admissibility of the defendant’s petitions or to restrict or deny,
partially or totally, the competence of the international jurisdictional organ.
Although the Inter-American Commission has broad
faculties as an organ for the promotion and protection of human rights, it can
clearly be inferred from the American Convention that the procedure initiated
in contentious cases before the Commission, which culminates in an application
before the Court, should refer specifically to rights protected by that
Convention (cf. Articles 33, 44, 48.1
and 48). Cases in which another
Convention, ratified by the State, confers competence on the Inter-American
Court or Commission to hear violations of the rights protected by that
Convention are excepted from this rule; these include, for example, the
Inter-American Convention on Forced Disappearance of Persons[3].
Therefore, the Court decides to admit the second
preliminary objected filed by the State.
X
Fourth
preliminary exception: failure to exhaust domestic remedies
35. Colombia stated in its brief filing objections that this Court
does not have competence to hear the matter because remedies under domestic law
have not been exhausted. The State
submitted a report of the procedural actions that had taken place between
January and August 1998 that, in its opinion, “[had] modified substantially”
the situation. Colombia affirmed that
the measures taken by the Human Rights Unit of the Office of the Prosecutor
General demonstrate “the existence of an adequate, appropriate and effective
recourse in the instant case”. By
virtue of its arguments, the State requested the Court to abstain from hearing
this case.
In its written reply, the
Commission stated that it had duly submitted this application, on the basis of
Article 46.2 of the American Convention, because, when it approved Report No.
10/98, seven years had passed since the facts occurred and the case was still
in its preliminary phase under the military criminal justice system. The plaintiff rejected the notion that the
change in the jurisdiction under which the case was being processed was a
circumstance that substantially modified the situation. The Commission affirmed that, in the instant
case, the domestic remedies filed had been neither adequate nor effective.
36. The issue of failure to exhaust domestic remedies was
considered at greater length in the public hearing held before the Court on May
31, 1999.
Colombia emphasized the
subsidiary nature of international jurisdiction on human rights compared with
the domestic jurisdiction. In the
instant case, the State maintained that the action under administrative law had
been exhausted and had been appropriate, while the criminal action had still
not been exhausted and was “evolving in one way in the face of probative
difficulties”. The State requested that
the Court declare the application inadmissible “since there are still domestic
remedies that have not been exhausted.”
The Commission recalled
that the facts on which this case was based occurred on January 23, 1991, and
that up until March 1998, the proceeding was being processed before the
military criminal justice system without the investigation stage having been
completed. It stated that, in comparison with this case, in April 1993, the
Tribunal for actions under administrative law of the Department of Nariño had
already rendered judgment on the responsibility of the members of the National
Police Force, and this was confirmed by the Council of State. The Commission mentioned also that the
proceeding in which the police who took part in the facts were absolved of
disciplinary responsibility had only lasted one week. The Commission then considered the conduct of the military
criminal justice system in Colombia and said that “it did not qualify as an
independent, impartial tribunal, as required by the law and by international
human rights legislation.” Lastly, it
referred to the scope that action under administrative law should have in the
instant case.
37. One of the conditions established by the American Convention
for a petition or communication to be admitted by the Commission is that “the
remedies under domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law” (Article 46.1.a). There are some exceptions to this rule,
including “unwarranted delay” in the final judgment (Article 46.2.c).
38. In the instant case, the parties agree that the facts on which
the case is based occurred in January 1991.
The State has not provided a satisfactory explanation regarding the
procedural measures between that date and the beginning of 1998. The State’s silence must be evaluated taking
into account that, during the first seven years the procedural measures did not
get beyond the investigation stage.
Colombia has mentioned the progress that took place since the Human
Rights Unit of the Office of the Prosecutor General took charge of the matter. But the issue in question is not what happened
in 1998, but rather in the first seven years after the facts occurred. That lapse was more than sufficient for a
tribunal to pronounce judgment. By
considering this so, the Court follows its previous jurisprudence. In the Genie
Lacayo case, the Court deemed that a period of five years that had elapsed
since the time of the order to initiate the proceeding exceeded the limits of
reasonableness[4]. The Court has reiterated this criterion on
other occasions[5]. The State has not provided any convincing
explanation to justify the delay in the instant case.
39. Consequently, the Court dismisses this objection.
XI
Fifth
objection: lack of competence of the Court
to act as a
trial court
40. Colombia
also presented as a preliminary objection the argument that this Court does not
have competence to act as a trial court for individual facts. In its brief
filing objections, the State declared that the Commission had requested that
the circumstances of the death of a seventh person, presumably dead in combat,
should be established, in order to determine whether his right to life had been
violated. Colombia affirmed that this
request was beyond the competence of the Court, since the latter could not
transform itself into a trial court or a technical police unit to investigate
the death of a person, since its function consisted only in “hearing matters
related to compliance with commitments entered into by the States Parties to
the American Convention.” The State
reiterated that this Court does not have competence to examine individual
conduct and that its function is limited to being a “Judge of States” and not a
“Judge of individuals.”
During the hearing,
Colombia insisted on the same argument.
It affirmed that it did not seek to limit the probative faculty of the
Court, but that the evidence should tend merely to prove State
responsibility. In this respect, it
stated that “the competence of the organs of the American Convention is to
establish State responsibilities and not individual responsibilities.”
41. In the instant case, the Commission
considered that the State incurs international responsibility for the death of
a seventh person and offered evidence to prove this. It is not a question of determining the criminal responsibility
of the person who killed that individual, but rather the international
responsibility of the State, since the Commission affirmed that this individual
was deprived of his life by an agent of the State, that is, by someone whose
conduct may be attributed to Colombia.
To this end, it is necessary to determine the circumstances in which the
seventh victim died and whether an organ of the Colombian State took part in
this fact. By doing this, the Court
does not set itself up as a judge of individuals but of States.
42. The preliminary objection should be
dismissed for the reasons set forth.
XII
43. Therefore,
the court,
decides:
unanimously
1. To
dismiss the first, fourth and fifth preliminary objections filed by the State
of Colombia.
unanimously
2. To admit the third preliminary
objection filed by the State of Colombia.
By
six votes to one
3. To admit the second preliminary
objection filed by the State of Colombia.
Judge Jackman dissenting
unanimously
4. To continue hearing the instant case.
Judge Cançado Trindade and
Judge García Ramírez informed the Court of their respective Reasoned Opinions
and Judge Jackman of his Partially Dissenting Opinion.
Done
in Spanish and English, the Spanish text being authentic, at San José, Costa
Rica, on the fourth day of February, 2000.
Antônio A. Cançado Trindade
President
Máximo Pacheco Gómez Hernán Salgado Pesantes
Oliver
Jackman
Alirio Abreu Burelli
Sergio
García Ramírez Julio A. Barberis
Judge ad hoc
Manuel E. Ventura Robles
Secretary
So
ordered,
Antônio A. Cançado Trindade
President
Manuel
E. Ventura Robles
Secretary