REPORT Nº 76/01
On November 5, 1999, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition submitted by the Corporación
Colectivo de Abogados “José Alvear Restrepo” (hereinafter
“the petitioners”) in which it is alleged that on August 24, 1994,
members of the National Anti-Extortion and Kidnapping Unit of the National
Police (UNASE) and one private individual tortured Mr. Wilson Gutiérrez
Soler after detaining him in the city of Bogotá, Republic of Colombia
(hereinafter “the State,” “the Colombian State,” or
The petitioners allege that the State is responsible for violating
the rights to humane treatment, a fair trial, and judicial protection,
provided for at Articles 5, 8, and 25 of the American Convention on Human
Rights (hereinafter “the American Convention”) to the detriment of the
alleged victim, in conjunction with the general obligation to respect and
ensure the rights set forth therein.
The State argued that the petitioners’ claim is inadmissible
since Mr. Soler’s case has already been examined by the domestic courts,
under Colombia’s domestic law. In addition, it argued that the petition had been submitted
outside of the legally permissible time frame, as the six-month period
provided for at Article 46(1)(b) of the American Convention had expired.
Based on the analysis of the parties’ positions, the Commission
concludes that it is competent to examine petitioners’ claim, and that
it is admissible under the provisions of Articles 46 and 47 of the
PROCESSING BEFORE THE COMMISSION
On June 13, 2000, the Commission assigned the claim the number
12.291, in keeping with the Regulations of the Commission in force until
April 30, 2001, and forwarded the pertinent parts of the complaint to the
Colombian State, also on June 13, 2001, giving it 90 days to submit
On September 13, 2000, the State requested an extension, which was
duly granted by the Commission. On
October 13, 2000, the State submitted its answer, whose pertinent parts
were forwarded to the petitioners for observations.
On December 1, 2000, the petitioners requested an extension, which
was duly granted by the Commission. On January 4, 2001, the petitioners
submitted additional information.
The pertinent parts of the information were sent to the State,
which was given an additional 30 days to submit its observations.
On February 9, 2001, the State requested an extension to submit its
observations, which was duly granted by the Commission.
On February 26, 2001, during its 110th regular session, the
Commission held a hearing with the presence of both parties.
On July 25, 2001, the Commission asked the State to submit
additional information. On
August 23, 2001, the State requested an extension to submitting said
additional information. The Commission granted the extension requested.
On September 17, 2001, the State submitted its observations.
THE PARTIES’ POSITIONS
The petitioners allege that on August 24, 1994, members of the
National Anti-Extortion and Kidnapping Unit (UNASE: Unidad Nacional
Antiextorsión y Secuestro) of the National Police detained Mr. Wilson
Gutiérrez Soler in the course of an anti-extortion operation in the city
of Bogotá. The operation was
carried out in response to a complaint lodged with UNASE according to
which Mr. Gutiérrez Soler participated in acts related to the crime of
The petitioners’ account indicates that members of the UNASE took
the detainee to the UNASE offices.
It alleges that once there, the victim was interrogated by
then-Commander of the UNASE, Col. Luis Gonzaga Enciso Barón, and by the
private individual who lodged the complaint against him, Mr. Ricardo Dalel
Barón. The petitioners
allege that Mr. Gutiérrez Soler was urged to incriminate himself,
accepting that he had engaged in the crime of extortion, and that when he
refused to do so, Messrs. Enciso Barón and Dalel Barón stripped him and
tortured him by introducing a blunt object into his anus and by inflicting
burns on his penis.
petitioners allege that Wilson Gutiérrez Soler signed a
self-incriminating statement under duress and without the presence of an
attorney, after having been tortured.
This declaration was the basis for the special courts in existence
at that time known as the Regional Justice jurisdiction to institute a
proceeding against him for the crime of extortion and to a detention order
that prevented his release. On January 20, 1995, the Delegate Prosecutor before the
Superior Court (Fiscalía Delegada ante el Tribunal Superior)
decided to revoke the detention order and to order Mr. Gutiérrez
Soler’s release. On May 6,
1999, an indictment was issued against Wilson Gutiérrez Soler, and an
arrest warrant was proffered, which was revoked after being appealed by
the defense. According to the
information provided by the petitioners, Mr. Gutiérrez Soler is now free,
but is still under investigation in this proceeding.
August 25, 1994, Mr. Gutiérrez Soler denounced to the delegate of the
special prosecutorial unit known as the Fiscalía Regional, for
UNASE (urban area), the torture he had suffered the day before.
As a result of the complaint, parallel proceedings were initiated
before the military criminal courts and the regular courts.
The 51st Judge of Military Criminal Investigation instituted
proceedings against Col. Luis Gonzaga Enciso Barón for the offense of
injuries (lesiones) and the
investigation was transferred to the military prosecutorial unit known as Auditoría
Auxiliar de Guerra Nº 60, where it was decided to suspend all
proceedings against the accused. This
decision was affirmed by the military criminal court on September 30,
1998. For its part, the
Office of the Attorney General initiated an investigation into Mr. Ricardo
Dalel Barón. On January 15,
1999, the Personal Injuries Unit of the Office of the Attorney General,
Prosecutor Nº 248, ruled to preclude the investigation into Mr. Ricardo
Dalel Barón, and ordered that the case be archived.
Later, the victim invoked the special constitutional remedy known
as the acción de tutela before
Criminal Court Nº 55 of the Bogotá circuit, which was rejected.
On June 8, 1999, the Superior Court of the Judicial District of
Bogotá affirmed the decision. In June 1999, the Constitutional Court ruled not to review
the decision of the Superior Court, which made it a firm judgment.
addition, according to petitioners’ account, a series of disciplinary
proceedings were carried out in response to the complaint lodged by Mr.
Gutiérrez Soler. Specifically,
on February 27, 1995, the Director of the Judicial Police, Brigadier Hugo
Rafael Martínez Poveda, exonerated Col. Luis Gonzaga Enciso Barón of all
disciplinary liability. Nonetheless,
on June 7, 1995, the Office of the Delegate Procurator for Human Rights (Procuraduría
Delegada para la Defensa de los Derechos Humanos) considered that
there were sufficient grounds for drawing up a bill of charges against
Col. Luis Gonzaga Enciso Barón. In
response, the Office of the Procurator General (Procuraduría General
de la Nación) decided to terminate the proceeding alleging that the
prior absolution of Barón in the proceeding carried out by the Director
of the Judicial Police barred the opening of a new proceeding by
application of the principle of non
bis in idem.
petitioners allege that the State, through its agents, participated
directly and allowed a private individual to inflict physical torture on
Mr. Gutiérrez Soler while he was in the State’s custody, in order to
extract a confession from him, in violation of the judicial guarantees
that should guide any investigation where there are allegations of
criminal conduct. In
addition, they allege that the State deprived the victim of access to a
remedy adequate to investigate the persons responsible for these
violations, since the state agent accused of torture was tried before the
military criminal courts rather than the regular courts.
In view of these factual allegations, the petitioner considers that
the State has violated the victim’s right to humane treatment, right to
a fair trial, and right to judicial protection, as well as the general
obligation to respect and ensure the rights protected by the American
Convention, enshrined in Articles 5, 8, 25, and 1(1) of the same treaty.
As regards the admissibility of the claim, the petitioners allege
that it meets the requirements established in Articles 46 and 47 of the
The State’s position
State alleges that Wilson Gutiérrez Soler´s claim alleging he was
tortured was examined by the domestic courts, which, in its view, met the
obligation of administering justice under Colombian law.
In this regard, it considers that the Commission should refrain
from reviewing an issue already decided by the domestic courts as though
it were a court of last resort, or court of fourth instance, and
accordingly that the claim should be considered inadmissible.
the course of the hearing held by the Commission during its 110th regular
session, the State indicated that considering that domestic remedies were
exhausted by the decision of June 10, 1999, the petitioners failed to meet
the requirement of submission within six months of the final decision,
provided for at Article 46(1)(b) of the American Convention, and that,
accordingly, the petition had not been submitted in timely fashion.
In its observations of September 17, 2001, the State alleged that
in any event the IACHR should “out of equity to the parties..., forward
the complaints in timely fashion, or at least inform them that the
complaint was submitted in timely fashion by the petitioners.”
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
petitioners are authorized by Article 44 of the American Convention to
lodge complaints with the Commission.
The petition states as the alleged victim an individual with
respect to whom Colombia undertook to respect and guarantee the rights
enshrined in the American Convention.
As regards the State, the Commission notes that Colombia has been a
state party to the American Convention since July 31, 1973, the date it
deposited the respective instrument of ratification.
Accordingly, the Commission is competent ratione personae to examine the petition.
Commission is competent ratione loci
to hear the petition insofar as it alleges violations of rights protected
in the American Convention in the territory of a state party to that
treaty. The IACHR is competent ratione
temporis insofar as the obligation to respect and ensure the rights
protected in the Convention had already entered into force for the State
on the date on which the facts stated in the petition are alleged to have
occurred. Finally, the Commission is competent ratione
materiae because the petition alleges violations of human rights
protected by the American Convention.
Exhaustion of domestic remedies
46(1)(a) of the Convention establishes as a requirement for a petition to
be admitted “... that the remedies under domestic law have been pursued
and exhausted in accordance with generally recognized principles of
international law.” In this
case, the State expressly recognized, in the hearing held in the 110th
regular session, that the domestic remedies had been exhausted by the
victim. In view of this
declaration, the Commission considers the requirement set forth in Article
46(1)(a) of the American Convention to have been met.
Time period for submitting the petition
the course of the hearing held by the Commission at its 110th regular
session, the State alleged that the petitioners had failed to satisfy the
six-month time period for submission of petitions, as required by Article
46(1)(b) of the American Convention.
The State also made reference to this allegation in its
communication of September 17, 2001.
This provision establishes that for a petition to be admitted by
the IACHR, it must be submitted within six months from the date on which
the person allegedly injured has been notified of the final decision of
the domestic courts in relation to his or her claim.
appears from the information in the record, on June 10, 1999, after an acción
de tutela brought by the victim was rejected, the ruling of the
Superior Court of the Judicial District of Bogotá that decided to archive
the case over personal injuries
brought at the initiative of the alleged victim became a firm judgment.
The Commission notes that the petition was received by the
Executive Secretariat of the IACHR on November 5, 1999, and that
additional information was requested of the petitioners that was sent in
by June 1, 2000. On June 13,
2000, after analyzing the documents provided by the petitioners, the
Commission decided to begin the procedure and transmit to the State the
pertinent parts of both the initial claim and of the additional
information received at a later date.
In view of the procedural activity and the dates indicated above,
the Commission concludes that the petition was submitted within the
six-month period required by Article 46(1)(b) of the Convention.
Duplication of procedures and res
does not appear from the record that the subject matter of the petition is
pending before any other procedure for international settlement, nor that
it reproduces a petition already examined by this or any other
international body. Accordingly,
the requirements established at Articles 46(1)(c) and 47(d) of the
Convention are considered to have been met.
Characterization of the facts alleged
State has alleged that the decision of the domestic courts that dismissed
the claim by Mr. Gutiérrez Soler based on the provisions of Colombia’s
domestic law show that in this case, it has met its obligations under the
American Convention. Accordingly,
it challenges the competence of the Commission to undertake what it
considers a review of the decisions adopted in the domestic courts, as a
fourth instance, or court of last resort.
this respect, the Commission considers that it is competent to examine the
claim submitted by the petitioners, including its allegations with respect
to access to the judicial protection to which he has a right, insofar as
they refer to rights protected by the American Convention.
In effect, the elements that appear in the file indicate that, if
shown to be true, the petitioners’ allegations regarding the acts of
torture allegedly perpetrated against Wilson Gutiérrez Soler, his
prosecution based on a self-incriminating statement allegedly made under
duress, and the use of the military jurisdiction to investigate and
prosecute the persons responsible, tend to establish violations of the
rights to humane treatment, a fair trial, and judicial protection,
guaranteed in Articles 5, 8, and 25, in relation to Article 1(1) of the
American Convention. Accordingly,
the claim satisfies the requirements set forth in Articles 47(b) and (c)
Commission concludes that it is competent to examine the claim submitted
by the petitioners over the alleged violation of Articles 5, 8, and 25, in
accordance with Article 1(1) of the Convention, and that the case is
admissible pursuant to the requirements established in Articles 46 and 47
of the American Convention.
on the arguments of fact and law set forth above, and without prejudging
on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the instant case admissible as regards the alleged
violation of Articles 5, 8, 25, and 1(1) of the American Convention.
To report this decision to the Colombian State and the petitioners.
To move on to the merits phase.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in Washington, D.C., on this the 10th day of October, 2001. (Signed): Claudio Grossman, President; Juan E. Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President; Commission members Robert K. Goldman, Peter Laurie, Julio Prado Vallejo and Hélio Bicudo.
On August 24, 1994, Mr. Ricardo Dalel Barón allegedly lodged a
complaint with the Commander of UNASE, Col. Luis Gonzaga Enciso Barón,
against Wilson Gutiérrez Soler, in which he accused Gutiérrez Soler
of attempting to extort him.
Petition submitted to the Commission on November 5, 1999.
The petition of November 5, 2001, includes as an annex copies of the
medical certificate from the National Institute of Forensic Medicine (Instituto
Nacional de Medicina Legal) of August 24, 1994, which describes
the victim’s wounds and the degree to which he was incapacitated.
Note EE 2303 from General Office for Special Matters of the Ministry
of Foreign Affairs of the Republic of Colombia, October 13, 2000.
Note EE 34106 of the General Office for Special Matters of the
Ministry of Foreign Affairs of the Republic of Colombia, September 17,
Order of June 8, 1999, of the Superior Court of the Judicial District
of Bogotá, Criminal Chamber (Act 50/99).