November 21, 2000, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or the “IACHR”) received a
petition lodged by the Colombian Juridical Foundation (hereinafter
“the petitioners”) alleging the responsibility of agents of the
Republic of Colombia (hereinafter “the State” or “the Colombian
State”) in the enforced disappearance of Alcides Torres Arias,
following his detention on the premises of the XVII Brigade of the
National Army, located in Carepa, Department of Antioquia.
The petitioners alleged that the State was responsible for the
violation of the following rights: right to life, to humane treatment,
to personal liberty, to protection of the family, and to the judicial
protection of Alcides Torres Arias, all of which are enshrined in
Articles 4(1), 5, 7, 8, 17 and 25 of the American Convention on Human
Rights (hereinafter “the American Convention” or “the
Convention”) against the victim and his relatives, as well as
violation of the general obligation to respect and guarantee the rights
protected in the Treaty, provided in Article 1(1) thereof.
With regard to the admissibility of the complaint, the State
alleged that all available domestic remedies had not been exhausted
since the disciplinary investigation was still incomplete and the
petitioners had not presented their complaint to the court of
administrative litigation. The
petitioners, for their part, alleged that they tried and exhausted the
available domestic remedies in their efforts to determine the
whereabouts of the victim.
After reviewing the positions of the parties, the Commission
concluded that it was competent to hear the claim filed by the
petitioners and that the case was admissible, in light of Articles 46
and 47 of the American Convention.
EXAMINATION BY THE COMMISSION
On May 9, 2001, the IACHR began consideration of the petition
identified as Case 0597/2000, in accordance with the norms of its Rules
of Procedure that entered into force on May 1, 2001, and transmitted the
relevant parts of the complaint to the State, allowing a period of two
months for the State to submit its comments.
On July 9, 2001, the State of Colombia requested an extension of
the period allowed for the State to submit its comments and the IACHR on
July 10, 2001 granted an additional period of one month.
On August 9, 2001, the State requested a new extension of the
period allowed for it to submit comments on the initial petition.
On August 15, 2001, the petitioners formally authorized the
Center for Justice and International Law (CEJIL) to monitor the
On October 31, 2001, the State submitted its comments, which were
communicated to the petitioners on November 6, 2001, and a period of 30
days was allowed for their reply to be submitted.
On January 28, 2002, the petitioners requested a hearing to
present the testimony of three members of the family of Alcides Torres
Arias. The IACHR scheduled
the hearing for March 6, 2002, during its 114th session.
The hearing had to be canceled, however, due to the refusal of
the Government of the United States of America to grant visas to the
witnesses to enable them to appear before the IACHR in the city of
Washington, D.C. On
February 15, 2002, the petitioners notified the IACHR of the murder of
María del Carmen Flores, a member of the Colombian Juridical
Foundation, who had recently been in contact with the relatives of the
victim. On March 21, 2002,
the State submitted information on the investigation of this murder,
which was transmitted to the petitioners for their information on April
On August 5, 2002, the petitioners made a request for
precautionary measures to be taken on behalf of the members of the
Colombian Juridical Foundation and the victim’s relatives, together
with a new request for hearings. On
August 6, 2002, the IACHR allowed the request for precautionary measures
and set a period of 15 days for the State to report on the measures it
had taken. On November 1,
the State of Colombia submitted information on the precautionary
measures granted by the IACHR, which was communicated to the petitioners
and a period of 30 days allowed for comments to be made thereon.
These comments were received on December 23, 2002.
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioners allege that on December 16, 1995, Alcides Torres
Arias was detained by members of the XVII Brigade of the National Army,
based at Carepa, while riding on a motorcycle along the La Arenera road,
in the district of Currulao, municipality of Turbo, in the Department of
They state that on the following day he was brought before the
then Regional Prosecutor, whose offices were situated on the premises of
the XVII Brigade. On December 20, 1995, the Regional Prosecutor ordered
his immediate release. However,
the detainee was not notified of the order for his release.
On the same day, his relatives went to visit him, but after
waiting for several hours, they were informed that he had been released.
The petitioners allege that several witnesses, including Mr.
Torres Arias’ sisters, had seen Ricardo López Lora, alias
“Robert” and known in the area for his affiliation with paramilitary
groups, take him away from the building in a red jeep.
They also state that Mr. Ramón Rodríguez, the father-in-law of
Alcides Torres Arias, had seen him in the afternoon hours beaten and
bloodied in a red jeep at the entrance of the Descanso Hotel, in
Consequently, the petitioners allege that Alcides Torres Arias
was in the custody of the Office of the Attorney-General and that his
disappearance was the result of the action or omission of the
therefore consider that the State is responsible for the violation of
his right to life, to physical integrity, to not be subjected to torture
and inhuman treatment or to arbitrary detention, and to be brought
before a court promptly. The petitioners allege, moreover, that his
right to a family had been violated, since the family of Alcides Torres
Arias had broken up following his disappearance.
They further allege that the failure to investigate the acts that
are the subject of this complaint violates the right of the victims’
relatives to know the truth.
On the subject of the exhaustion of domestic remedies, they
allege that Mrs. María Noemí Arias de Torres had immediately
complained to the Office of the Public Prosecutor in Apartadó that her
son had disappeared while in the custody of the State.
She also lodged a complaint with the District Office of the
Ombudsman in Apartadó and denounced the acts to the press.
Following these denunciations, the petitioners allege that the
relatives of Alcides Torres Arias had been threatened with death by
paramilitaries and members of the army. Subsequently, on July 24, 2000, they applied for a writ of habeas
corpus on behalf of the disappeared person in the First Criminal
Court of the Circuit of Apartadó.
On July 28, 2000, that Court ruled that it was not possible to
determine the whereabouts of Alcides Torres Arias.
In the course of the proceeding, the petitioners informed the
IACHR of the murder of the attorney María del Carmen Flores Jaimes, a
member of the Colombian Juridical Foundation.
The death of Mrs. Flores Jaimes occurred on February 14, 2002,
after a meeting with the victim’s mother to prepare for the hearing
scheduled to take place during the 114th session of the
IACHR, which, as indicated above, had to be canceled. The Unit for Human Rights Defenders of the Commission’s
Executive Secretariat issued a press statement making public its
condemnation of this murder. The
petitioners also informed the Commission that two brothers of the victim
had been murdered following the submission of the petition to the IACHR,
although no specific information had been presented on these acts and
their link to the disappearance of Alcides Torres Arias.
Position of the State
The State alleges that Alcides Torres Arias, together with two
other persons, was indeed detained by members of the XVII Brigade of the
National Army on December 16, 1995, because of his alleged participation
in subversive activities, kidnapping for extortion and other acts.
It alleges that after the investigation had begun, the then
Regional Prosecutor of Carepa had ordered his release on December 20,
1995. While there is no record that either the detainee or his relatives
had been notified of the order of release, the State contends that there
was evidence that he left the premises of the Brigade
and that it was learnt that he was taken in a jeep towards Currulao.
The State alleges, moreover, that Mrs. Noemí Arias de Torres was
informed at the time that her son had been released.
With respect to the criminal investigation that was launched
following the complaints by the relatives of the victim to the Office of
the Public Prosecutor and the Ombudsman, on January 29, 1996, the
Regional Office of the Public Prosecutor in Chigorodó ordered the
opening of a preliminary investigation to clarify the alleged abduction
of Mr. Alcides Torres Arias. The
investigative branch of the judicial police reported that it had
requested the presence of the relatives or those close to the victim of
the disappearance in order to be able to take sworn statements from
them, but that this effort was unsuccessful.
The report also alleged that the XVII Brigade had confirmed that
Alcides Torres Arias had been in its custody from December 18 to 20,
1995. Based on the
information provided by the Regional Office of the Public Prosecutor and
a copy of the order of December 20, 1995, the Prosecutor hearing the
case concluded that Alcides Torres Arias had been cleared in the
investigation of subversive activities on the day that he was released.
On July 30, 1999, the Office of the Public Prosecutor ordered the
suspension of the investigation because of the lack of evidence.
The State alleges that no new evidence had emerged to justify the
reopening of the case. Nevertheless,
the Department of International Affairs of the Office of the Public
Prosecutor referred the proceeding to the Office of Oversight to
determine whether disciplinary action should be taken against the
prosecutor responsible for the case, in light of his decision to suspend
the investigation of the case.
13. With regard to admissibility of the case, the State alleges that the complaint does not meet the requirement for available domestic remedies to have been previously exhausted. It states, firstly, that the disciplinary investigation into the disappearance of Alcides Torres Arias was opened on January 13, 1996 and that the investigation was in its preliminary phase. It contends that, since it was a case of enforced disappearance, the deadline for prescription did not apply. Secondly, it states that the petitioners should have gone before the Administrative Litigation Court to claim the compensation requested in their complaint to the IACHR. It argues that a case like the present one should be governed by direct compensation, since the petitioners could still institute proceedings at the domestic level within two years of the declaration of the death of the person alleged to have disappeared or of such time as the remains are found, and since they had not exhausted all domestic remedies before moving to an international forum. However, the State recognizes that “insofar as there are some elements of proof that give rise to certain concerns on the part of the Government regarding the events that occurred in this case, particularly with respect to the release of the alleged victim and the responsibility, if any, of the State in those events, the Government is prepared to carefully investigate all the relevant aspects, with the support of the petitioners, in order to define its position in the matter”.
REVIEW OF COMPETENCE AND ADMISSIBILITY
The petitioners are in principle entitled under Article 44 of the
American Convention to present complaints to the IACHR.
The petition names as the alleged victims individuals whose
rights under the American Convention the Colombian State has pledged to
respect and guarantee. With
regard to the State, the Commission notes that Colombia has been a State
Party to the American Convention since July 31, 1973, the date on which
it deposited its instrument of ratification.
The Commission is therefore competent ratione
personae to hear the petition.
The Commission is competent ratione
loci to hear the petition, insofar as the petition alleges
violations of rights protected in the American Convention that took
place within the territory of a State Party to the Convention.
The IACHR is competent ratione
temporis insofar as the obligation to respect and guarantee the
rights protected in the American Convention was already in force for the
State on the date on which the acts referred to in the petition are
alleged to have occurred. Lastly,
the Commission is competent ratione
materiae, because the petition denounces violations of human rights
protected by the American Convention.
Criteria for admissibility
Exhaustion of domestic remedies
The petitioners allege that the relatives of the victim had
recourse to available judicial remedies in their efforts to determine
the whereabouts of the victim, including an application to the First
Criminal Court of the Circuit of Apartadó for a writ of habeas
corpus. The State, for
its part, alleges that the relatives of the victim must bring an action
for direct compensation in the Court for Administrative Litigation.
The Commission considers that, in light of the characteristics of
this case, the relatives of the victim have had recourse to and
exhausted all available remedies in their efforts to legally determine
the whereabouts of Alcides Torres Arias.
Article 46(1)(a) of the Convention states that, in order for a
petition to be admitted, “the remedies under domestic law (must)
have been pursued and exhausted in accordance with generally recognized
principles of international law”.
The Inter-American Court has interpreted this to mean that only
those remedies appropriate to the violations alleged to have been
committed must have been exhausted.
According to the jurisprudence of the organs of the
inter-American system, habeas
corpus is the appropriate remedy for determining the whereabouts of
a person who has disappeared.
In the present case, on July 24, 2002, the relatives of the
victims filed a writ of habeas
corpus, which was unsuccessful as a means of determining the
whereabouts of the victim.
In light of the results of the remedy pursued and of the
approaches by the victim’s relatives to the authorities, it may be
concluded that the requirement for the previous exhaustion of domestic
remedies, provided for in Article 46(1) of the American Convention, has
Time-frame for filing of complaint
Article 46(1)(b) of the Convention provides that the petition
must be lodged within a period of six months from the date on which the
party alleging violation of his rights was notified of the final
judgment. The present
petition was lodged on November 21, 2000, within a period of six months
from the date of the decision of the First Criminal Court of the Apartadó
Circuit, issued on July 28, 2000, which ruled on the writ of habeas
corpus that was filed with a view to determining the whereabouts of
Alcides Torres Arias. This
requirement must therefore be considered as having been satisfied.
Duplication of proceedings and res
The record does not show that the subject of the petition is
pending in another international forum or that it duplicates a petition
already heard by this or any other international organ.
The requirements set out in Articles 46(1)(c) and 47(d) of the
Convention should therefore be considered as having been fulfilled.
Characterization of the acts alleged
The Commission considers that the allegations of the petitioners
concerning the alleged violation of the right to life, humane treatment,
personal liberty, protection of the family and to the judicial
protection due to the victim and his relatives, may be construed as a
violation of the rights guaranteed in Articles 4, 5, 7, 8, 17 and 25,
with respect to Article 1(1) of the American Convention.
The Commission concludes that the case is admissible and that it
is competent to hear the petition lodged by the petitioners concerning
the alleged violation of Articles 4, 5, 7, 8, 17 and 25, in accordance
with Article 1(1) of the Convention and in conformity with
the requirements set out in Articles 46 and 47 of the American
Based on the arguments of fact and of law set out above and
without prejudice to the substance of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the case under consideration admissible under Articles
4, 5, 7, 8, 17 and 25 of the American Convention.
To notify the State and the petitioner of this decision.
To take up consideration of the substance of the petition.
Publish this decision and include it in the Annual Report to be
submitted to the General Assembly of the OAS.
Done and signed at the Headquarters of the
Inter-American Commission on Human Rights, in the City of Washington
D.C., on the 20 day of the month of February 2003. (Signed):
Juan Méndez, President; Marta Altolaguirre, First Vice-President; José
Zalaquett, Second Vice-President; Robert K. Goldman, Clare Kamau
Roberts, Julio Prado Vallejo and Susana Villarán, Commissioners.
Original petition, received by the IACHR on November 21, 2000.
“El Colombiano” of Medellín, edition of January 7, 1996.
Regarding the murder of María del Carmen Flores, a member of the
petitioning organization, the State alleged that the vehicle in
which Ms. Flores was traveling was intercepted at about 9.30 a.m. on
February 14, 2002 by six armed men in civilian clothes, while
traveling on the road to Guapá.
The men forced the occupants out of the vehicle and then
ordered them back into the vehicle. They, however, ordered Mrs.
Flores to remain behind.
The body of Mrs. Flores were found during the afternoon and
responsibility for the investigations was assigned to the
specialized section of the Office of the Attorney-General, but no
steps were taken to remove the corpse.
According to the Office of the Attorney General, an order was
given for tests to be conducted and the investigation is still in
its early stages.
Note EE. 39691 of the Ministry of Foreign Affairs of the Republic of
Colombia, dated October 30, 2001.
The State attached a copy of the custody records.
Note EE. 39691 of the Ministry of Foreign Affairs of the Republic of
Colombia, dated October 30, 2001.
The State attached a copy of the custody record.
Inter-American Court of Human Rights, case of Caballero Delgado y Santana. Preliminary objections, judgment of January 21, 1994, paragraph 64.