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OEA/Ser.L/V/II.98 REPORT Nº 5/98
CASE 11.019
ALVARO MORENO MORENO
COLOMBIA (*)
April 7, 1998
I.
SUMMARY OF THE CASE
1. This
case addresses the violent death of Alvaro Moreno Moreno, a student who resided
in Bogotá, Colombia. According to
the petitioners, the Corporación Colectivo de Abogados "Jose Alvear
Restrepo," agents of the Metropolitan Police for Bogotá (the
"Police") detained and then killed Mr. Moreno on January 3, 1991.
They further allege that the circumstances surrounding the death of Mr.
Moreno were not adequately investigated and that the State failed to criminally
sanction the Police agents responsible for Mr. Moreno's death.
The petitioners thus allege that the Republic of Colombia (also
"Colombia", "the State" or "the Colombia State")
is responsible for violations of the American Convention on Human Rights (the
"Convention" or the "American Convention").
Based on the information submitted and its investigation and analysis in
this case, the Inter-American Commission on Human Rights (the
"Commission") concludes that the Colombian State is responsible for
violations of Articles 1, 4, 7, 8 and 25 of the American Convention.
II.
BACKGROUND
A.
Uncontested Background Information
2. On
January 3, 1991, at approximately 6:30 or 7:00 p.m., an attack was carried out
against a Police center known as "Los Libertadores" Center for
Immediate Attention ("CAI") in southeast Bogotá.
One Police agent lost his life in that attack and another was injured.
3. In
response to the attack, a Police operation was mounted in the area.
Police agents from various units, including from the Police intelligence
section ("SIJIN"), were called to the scene to provide support.
The Police agents were asked to gather information, search for suspects
and to take actions to prevent further attacks against other CAIs in the area.
4. The
following day, January 4, 1994, the Technical Corps of the Judicial Police -
Preliminary Investigations Unit for Zipaquirá ("Cuerpo Técnico de la
Policía Judicial - Unidad de Indagación Preliminar de Zipaquirá") found
a dead body in a place known as "llanos de la Diana" in the community
of El Verganzo de Tocancipá, Cundinamarca.
The body was subsequently identified, through the use of fingerprint
analysis, as belonging to Alvaro Moreno Moreno. It
was determined that numerous gunshot wounds were the cause of Mr. Moreno's
death.
B.
Allegations of the Petitioners
5. The
petitioners allege that SIJIN Police agents detained Mr. Moreno during the
operation carried out on January 3, 1991 after the attack on the Los
Libertadores CAI. They allege that
Mr. Moreno was subsequently killed by Police agents while held by the SIJIN.
6. The
petitioners further allege that the Police engaged in activities designed to
hide the truth regarding the death of Mr. Moreno and to prevent the identity of
those responsible from becoming known. Among
other things, they allege that the Police intentionally lost or destroyed
important records relating to the events of January 3, 1991.
7. Finally,
the petitioners allege that the Colombian State did not carry out timely and
adequate investigations into the death of Mr. Moreno and did not sanction those
responsible for his death. They
thus assert that the State has failed in its duty to provide for the right to be
heard within a reasonable time, access to an effective legal remedy and the
proper application of justice in this case.
C.
Position of the State
8. In
its responses in the case, the State has generally limited itself to providing
the Commission with information about the status of the various domestic
proceedings related to the case. The
State has suggested that it has carried out the appropriate investigations and
proceedings in a manner which will not allow impunity to prevail in this case.
III.
PROCESSING BEFORE THE COMMISSION
9. The
Commission received the petition in this case on May 5, 1992 in the course of an
on-site visit to Colombia. The
Commission opened case 11.019 on June 17, 1992 and sent the pertinent parts of
the petition to the Colombian State for its response.
10. On June
10, 1993, the Commission reiterated its request for an answer from the State
regarding the case. The State
provided its answer on August 20, 1993.
11. The
State's answer was transmitted to the petitioners who submitted their rejoinder
on October 4, 1993. The petitioners
submitted additional information regarding the case on December 30, 1993. The Commission forwarded the petitioners' rejoinder and
additional information to the State in communications dated December 7, 1993 and
January 10, 1994. The Commission
received the response of the State to these communications on March 15, 1994.
12. The
petitioners and the Colombian State exchanged additional written briefs and
information relating to the status of the domestic investigations and
proceedings and in relation to central questions of law and fact.
The Commission thus received written briefing from the petitioners on the
following dates: August 18, 1994;
January 25, 1995; July 14, 1995, and; January 29, 1996.
The Commission received written briefs from the State on the following
dates: October 20, 1994; April 26,
1995, and; November 13, 1995. The
Commission transmitted the pertinent parts of each of these communications to
the opposing party.
13. The
Commission held a hearing in relation to case 11.019 on February 23, 1996.
At that time, each of the parties had an opportunity to make oral
arguments before the Commission regarding points of fact and law relevant to the
case. During the hearing, the
Commission also placed itself at the disposition of the parties for the purpose
of seeking a friendly settlement of the matter.
14. On March
8, 1996, the petitioners sent a communication advising the Commission that
discussions had taken place within Colombia in relation to the possibility of
seeking a friendly settlement of the case.
The petitioners attached a letter directed to them from the Government,
making a proposal for the settlement of the case.
The petitioners requested that the friendly settlement proceedings be
formalized before the Commission. The
Commission sent the pertinent parts of the communication from the petitioners to
the State on April 1, 1996.
15. The
State requested an extension of time to respond on May 14, 1996 and again on
July 31, 1996. The Commission granted the two extensions of time.
16. The
State's response, submitted on September 24, 1997, provided information
regarding the merits of the case and the status of the domestic proceedings but
made no mention of friendly settlement or of the possibility of formalizing a
friendly settlement proceeding before the Commission.
The Commission forwarded the State's response to the petitioners on
October 1, 1996.
17. The
petitioners sent a further note to the Commission inquiring about the
possibility of initiating friendly settlement proceedings on October 17, 1996.
On October 24, 1996, the Commission sent a note to the Colombian State
reiterating its offer to place itself at disposition of the parties for the
purposes of arriving at a friendly settlement.
18. In a
communication dated November 5, 1996, the State confirmed that there had been
some discussion within Colombia regarding the possibility of entering into
friendly settlement negotiations in the case and that the State had made an
initial proposal for settlement. The
letter stated that the Government would notify the Commission when it reached a
decision regarding the possibility of a friendly settlement of the case and when
it formulated a position in response to the observations of the petitioners
regarding its initial proposal for friendly settlement.
The Commission forwarded this note to the petitioners on November 19,
1996.
19. On
January 29, 1997, the Commission sent a note to the State requesting
information regarding the position that the State had decided to adopt
regarding the possibility of entering into friendly settlement negotiations in
this case.
20. The next
communication from the State, dated March 4, 1997, provided information relating
to the merits of this case, specifically regarding the domestic proceedings.
21. On June
18, 1997, the Commission reiterated its request that the State make known its
position on the possibility of entering into friendly settlement negotiations. The Commission referenced its previous note of January 29,
1997 and requested that the State reply within 30 days. The Commission has received no further communications in this
case.
IV. ANALYSIS
A.
Admissibility
1.
Procedure for Deciding Admissibility
22. The
Commission has not prepared an independent admissibility decision in this case. Rather, the Commission sets forth its analysis of the
admissibility of the petition in this report, prepared in accordance with
Article 50 of the Convention, which also contains the conclusions of the
Commission on the merits of the petition. The Commission has adopted this
procedure for several reasons.
23. First,
it is not clear that the State has raised timely objections to admissibility.
The State provided its answer in this case more than one year after the
Commission opened the case and requested information from the State regarding
the allegations of the petitioners. The
answer was received only after the Commission reiterated its request for
information. This delay in
responding to the Commission's request for information is excessive.
In this regard, the Regulations of the Inter-American Commission on Human
Rights provide that the State will receive a period of 90 days to respond to the
Commission's original request for information on a case.
That period may be extended to a total of 180 days where the State
requests successive extensions of time, of no more than 30 days each, and
provides reasons for such requests.[1]
In this case, the State failed altogether to comply with these time
limits for providing its answer without any justification.
24. When it
submitted its answer, the State argued that the case was not susceptible to
analysis by an international body, such as the Commission, because domestic
remedies had not been exhausted. The
State suggested that proceedings before the contentious-administrative
jurisdiction constituted a remedy which should be exhausted before the case
could be brought before an international body.[2]
The State did not again raise this objection in any of its subsequent
communications relating to this case.
25. The
Inter-American Court of Human Rights (the "Court") has repeatedly
noted that an objection based on non-exhaustion of domestic remedies, "must
be made at an early stage of the proceedings by the State entitled to make
it" and has held that a State may waive an objection based on the
exhaustion requirement.[3]
The State made its only objection to admissibility in its answer, which
was submitted to the Commission in an untimely manner.
The State then failed to pursue the objection at any other point in the
proceedings before the Commission. The
Commission therefore considers that the State might be considered to have waived
its objection on exhaustion grounds.
26. Second,
the analysis of the State's objection to the admissibility of the petition in
this case on the grounds of failure to exhaust domestic remedies is necessarily
closely tied to an analysis of the merits of the case.
The petitioners argue that the requirement of exhaustion of domestic
remedies is excused in this case, pursuant to Article 46(2) of the Convention,
because domestic remedies have been ineffective and because there has been undue
delay in the resolution of the domestic proceedings which have been initiated in
the case. This line of
argumentation of the petitioners is linked directly to the petitioners' claim
that the State has failed to provide adequate judicial protection and access to
justice in this case.
27. In this
connection, the Inter-American Court of Human Rights (the "Court" or
the "Inter-American Court") has noted:
Under the Convention, States Parties have an obligation to provide
effective judicial remedies to victims of human rights violations (Art. 25),
remedies that must be substantiated in accordance with the rules of due process
of law (Art. 8(1)), all in keeping with the general obligation of such States to
guarantee the free and full exercise of the rights recognized by the Convention
to all persons subject to their jurisdiction (Art. 1).
Thus, when certain exceptions to the rule of non-exhaustion of domestic
remedies are invoked, such as the ineffectiveness of such remedies or the lack
of due process of law, not only is it contended that the victim is under no
obligation to pursue such remedies, but indirectly, the State in question is
also charged with a new violation of the obligations assumed under the
Convention. Thus, the question of
domestic remedies is closely tied to the merits of the case.[4]
28. Where
the applicability of the requirement of exhaustion of domestic remedies is
closely linked to the merits and may not be easily separated from that question,
it may be appropriate to decide the question of the admissibility of a petition
together with the merits of the case in order to avoid prejudging the merits of
the case in the decision on admissibility.[5]
Such is the situation presented in this case.
29. Therefore,
in order to address the objection to admissibility raised by the State, albeit
in an untimely manner, the Commission will proceed to discuss the question of
admissibility of the petition in this Article 50 report before proceeding to its
discussion on the merits.
2.
The Exhaustion of Domestic Remedies Requirement
a.
The Various Domestic Proceedings
30. The
domestic criminal investigations in this case began with the inspection and
removal of Mr. Moreno's cadaver from the site where it was found on January 4,
1991 by the Technical Corps of the Judicial Police.
At the same time and before they learned that the victim's body had been
found, Mr. Moreno's family members filed a complaint with the Office of the
General Procurator of the Nation ("Procuraduría General de la Nación")
asserting that Mr. Moreno had been detained and then disappeared.[6]
Several domestic proceedings were
triggered as a result of these initial actions by the Colombian authorities and
by Mr. Moreno's family members. The
trajectory of the various domestic proceedings, as presented to the Commission
by the petitioners and the State, is as follows:
i.
Criminal Proceeding
31. After
the identification of Mr. Moreno's cadaver, the 27th Judge for Criminal
Investigation for Bogotá began to carry out investigative proceedings in
relation to his death. In June of
1991, for example, this Judge carried out on-site judicial inspections at the
Los Libertadores CAI and at the systems office for the Metropolitan Police for
Bogotá. The 27th Judge for
Criminal Investigation for Bogotá became Prosecutor 262 of the Special
Investigations Unit when the Constitution of 1991 entered into force and changed
the structure of the criminal justice system in Colombia.
32. The
criminal investigation was formally opened on November 25, 1991, and one Police
officer was named as a suspect. The
following day, a civil party was accepted in the case.
In March and July of 1992, additional Police suspects were named in the
case.
33. On
September 10, 1992, the Office of the Inspector General for the Police requested
to have the case transferred to the military justice system.
When the Office of the Prosecutor General ("Fiscalía General de la
Nación")[7]
refused to relinquish jurisdiction over the case, the Superior Council of the
Judiciary ("Consejo Superior de la Judicatura")[8]
was asked to decide which jurisdiction should handle the case.
The Superior Council of the Judiciary decided, on October 29, 1992, that
the case should remain under the jurisdiction of the civil criminal justice
system.
34. During
1993 and 1994, the prosecution issued several arrest warrants against Police
agents. During this time, the case also was transferred periodically
to new prosecutorial units.
35. The case
was then transferred, in late 1994, to the Office of the Regional Prosecutor for
Bogotá ("Fiscalía Regional de Bogotá").[9]
The Regional Prosecutor's Office decided to transfer the case to the
military justice system on March 10, 1995.
36. On April
28, 1995, the Office of the Inspector General for the National Police, acting as
trial court judge in this case for the military justice system, decided to
return the case to the civil criminal justice system.
The 1992 decision of the Superior Council of the Judiciary formed the
basis for this decision.
37. The
Office of the Regional Prosecutor for Bogotá reassumed jurisdiction over the
case on May 18, 1995. On May 26,
1995, the investigation was declared complete and was closed.
Formal charges were not made, however, and the case was thus not brought
to trial.
38. On
August 15, 1995, the case was transferred to the National Unit for Human Rights
(the "Human Rights Unit") of the Office of the Prosecutor General for
further investigation. The case was
assigned to a prosecutor on September 26, 1996.
At the end of 1996, the Human Rights Unit resolved several outstanding
motions and ordered that new investigative proceedings be carried out.
39. The case
remains with the National Unit for Human Rights in the investigative stage.
No formal charges have yet been made and the case has not been brought to
trial.
ii.
Disciplinary Proceeding
40. The
Office of the Procurator General of the Nation carried out two separate
disciplinary proceedings related to the death of Alvaro Moreno Moreno.
The Delegate Procurator for the Judicial Police carried out an
investigation into the alleged irregular detention and subsequent death of Mr.
Moreno at the hands of Police agents. The
Delegate Procurator for the National Police carried out an investigation into
the alleged cover-up of the events of January 3, 1991 and into the internal
Police disciplinary investigation which absolved the Police of all
responsibility in the case.
41. On June 14, 1994, the
Procurator Delegate for the National Police reached its decision in the
disciplinary case under its jurisdiction. The
decision exonerated three persons named as defendants in the proceedings and
sanctioned a fourth individual with five days suspension from active duty.
42. On
August 11, 1992, the Procurator Delegate for the Judicial Police brought
disciplinary charges against five individuals for failure to properly process
the detention of Mr. Moreno, including failure to present him before the proper
authorities. In decisions dated
September 27 and November 1, 1995, the Procurator Delegate for the Judicial
Police issued a decision in this disciplinary proceeding.
The Procurator Delegate determined that four of the individuals should be
sanctioned with removal from their positions in the Police Department.
One of the individuals was exonerated.
iii.
Contentious-administrative Proceeding
43. On
October 28, 1993, the Administrative Tribunal for the Department of Cundinamarca[10]
issued a decision requiring the Colombian State to pay monetary compensation to
Mr. Moreno's family members for his death.
The Third Section of the Contentious-Administrative Chamber of the
Council of State ("Sección Tercera de la Sala de lo Contencioso
Administrativo del Consejo de Estado") affirmed the lower court decision
awarding damages. The family
received payment of the damages awarded in the contentious-administrative
proceeding on April 27, 1995.
b.
Analysis of the Commission Relating to the Requirement of Exhaustion of
Domestic Remedies
44. The
Commission decides that, pursuant to Article 46(2) of the American Convention,
the requirement of exhaustion of domestic remedies found in Article 46(1)(a) is
not applicable in this case. Article
46(1)(a) specifies that admission of a petition requires that "remedies
under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law."
Those remedies which must be exhausted are those which are suitable to
address the alleged infringement of a legal right.[11]
45. However,
pursuant to Article 46(2), exhaustion is not required where the party alleging
violations of his rights has effectively been denied access to the remedies
theoretically available under domestic law.
Article 46(2) also excuses exhaustion where "there has been
unwarranted delay in rendering a final judgment" in relation to the
domestic remedies invoked. The
petitioners have adequately shown that the provisions of Article 46(2) excuse
exhaustion in the instant case.
46. In a
case such as this one, where the violation of a right may properly be
characterized as a criminal offense, the victims or their family members have
the right to obtain a judicial investigation and a decision by a court of
criminal law which determines, where possible, those responsible for the crimes
committed and punishes them accordingly.[12]
Thus, the appropriate remedy to be invoked is a criminal proceeding,
which allows for criminal investigation and sanction as well as providing for
the possibility of monetary compensation to the family members of the victim.
47. Yet, it
became clear even before the petition in this case was filed before the
Commission that the criminal proceeding was not advancing at a reasonable pace
toward the clarification of the events of January 3, 1991 and the sanction of
those responsible for Mr. Moreno’s death.
The criminal investigation was not formally opened, and the civil party
was not allowed to take part in the investigation, until eleven months after Mr.
Moreno’s death. At that time,
only one suspect was named. Further
suspects were not named for several more months.
This delay in the investigation occurred despite the fact that the Judge
who originally carried out the investigations had already found convincing
evidence that Mr. Moreno had been detained by the Police on January 3, 1991
shortly before his death, in judicial inspections carried out in June of 1995.
48. The
Commission notes that this delay in the initial stages of the investigation
necessarily prejudiced the possibility for success in the investigation.
An investigation will always have a greater opportunity to clarify the
events in question if it is carried forward soon after the occurrence of those
events. Evidence vital to the
prosecution of a case becomes increasingly difficult to obtain as time lapses.
In addition, after the investigation was formally opened, the case was
transferred numerous times to different prosecutors, resulting in further delay
and thereby prejudicing the possibility of obtaining the evidence necessary to
identify and sanction the individuals responsible for Mr. Moreno’s death.
49. In 1995,
four years after Mr. Moreno’s death, the Office of the Regional Prosecutor for
Bogotá decided to submit the case to the military justice system.
The case was subsequently transferred back to the civil criminal justice
system, but several more months were lost in this process.
50. In
response to the petitioners' arguments suggesting that the 1995 transfer to the
military jurisdiction contributed to a denial of access to an effective remedy,
the State recognized that "the transfer of the investigation from one
jurisdiction to another may contribute to a situation of delay in obtaining
positive results in the investigation."[13]
The State suggested that this delay was nonetheless justifiable as a
means of ensuring that the proper judicial system exercised jurisdiction over
the case so as to protect the eventual results of the proceedings from challenge
on jurisdictional grounds.[14]
51. However,
such reasoning does not justify the transfer which occurred in this instance.
At the time of the transfer, there already existed a three-year old
decision by the competent authority indicating that the military justice system
should not be granted jurisdiction over the case. The Office of the Regional Prosecutor for Bogotá thus made
the decision to transfer the case to the military justice system either
negligently or in direct defiance of a legitimate prior judicial decision.
52. After
the case returned to the civil criminal jurisdiction, in May of 1995, the
prosecution declared the investigation closed.
At this juncture, the prosecution should have formally charged some or
all of the suspects or issued a determination that there existed insufficient
evidence to continue against them. The
prosecution failed to take this required action within the period of time
provided for pursuant to the applicable laws.
53. The
subsequent transfer of the case, in August of 1995, to the Human Rights Unit of
the Office of the Prosecutor General constituted a positive move for the
reactivation of the investigation. However,
a prosecutor from the Human Rights Unit was not actually assigned to the case
until one year later, on September 26, 1996.
A full year later, the Unit for Human Rights, like the other
prosecutorial units who have handled the case, has failed to formally charge any
defendants in the case and bring this case to trial.
54. Six
years after the events of January 3, 1991, the criminal proceedings remain in
the investigative stage. Furthermore,
there exists no indication that those proceedings will result in the
identification and sanction of those responsible for Mr. Moreno’s death.
55. The
State has suggested that the involvement of the civil party caused some of the
delay in the criminal proceedings.[15]
The procedural activity carried out by those persons interested in a
judicial proceeding is relevant to the analysis of whether the proceeding has
suffered from undue delay.[16]
56. However,
in the present case, the State has never offered any information regarding the
specific procedural activities carried out by the civil party which might have
caused a delay in the criminal proceedings.
The Commission cannot assume, based on the mere fact that a civil party
has become involved in a case, that the civil party has contributed to an undue
delay in the proceedings. The
Commission also notes that the civil party was not formally included in the case
until almost one year after Mr. Moreno was killed.
The initial delay in the proceedings, which prejudiced the subsequent
investigations, obviously cannot be attributed to the civil party.
57. The
Commission thus concludes that the criminal proceedings initiated in this case
have not allowed for access to an effective remedy.
In addition, an unjustified delay of more than six years has occurred
without a final decision by the criminal tribunals in this case.
Exhaustion of the remedy provided through the criminal proceeding is thus
excused.
58. In
addition to the criminal proceedings, a disciplinary proceeding and a
contentious-administrative proceeding were initiated in relation to Mr. Moreno's
death. The Commission considers that neither of those proceedings could have
resulted in a suitable remedy for the violations alleged in this case and thus
need not have been exhausted.
59. A
disciplinary proceeding, including the possibility of a disciplinary sanction,
simply is not sufficient in a case involving the violent death of a person,
allegedly at the hands of Police agents and in Police custody.
Such a case should terminate in the criminal sanction, wherever possible,
of the persons responsible for the crimes committed.
The disciplinary sanction of those responsible could not adequately
repair the rights violated.
60. In
addition, the disciplinary proceedings which took place related to omissions
allegedly committed by Police agents, such as the failure to maintain proper
records and the failure to properly present Mr. Moreno to the authorities upon
his detention. The disciplinary
proceedings were never intended to address the petitioners’ central allegation
that State agents killed Alvaro Moreno Moreno while he was held in Police
detention. They thus could not have
resulted in an adequate remedy for the violations alleged.
61. The
contentious-administrative proceeding is the only proceeding actually referenced
by the State to support the inadmissibility of this case for failure to exhaust
domestic remedies. The Commission
has concluded in other Colombian cases that the contentious-administrative
proceeding is "intended only as a means of supervision of the State's
administrative activity and to obtain compensation for damages caused by abuse
of authority."[17]
The Commission has thus concluded that the contentious-administrative
proceeding is generally not an adequate "means of redress of human rights
violations" and thus need not be exhausted in a case such as this one.[18]
62. In this
case, the State has specifically emphasized that the contentious-administrative
proceeding provides only monetary compensation to persons who have suffered harm
caused by State agents, “justly or unjustly.”[19]
Monetary compensation for damages inflicted, without any determination as
to wrongdoing, is not an adequate or appropriate remedy in this case.
63. In
addition, it is noted that in many member states of the O.A.S., including
Colombia, a decision to convict in a criminal proceeding generally includes or
precedes an order to pay compensation to those victims or family members who
participated in the proceedings as civil parties.
Thus, the criminal proceeding, which would constitute the appropriate
remedy in a case such as this one, provides for the possibility of obtaining
monetary compensation in addition to criminal sanction.
The petitioners should not then be required to seek exhaustion of the
administrative proceeding, which can provide only monetary compensation, when
there exists another proceeding which serves to provide monetary compensation as
well as the criminal investigation and sanction required in such a case.
Where the criminal proceeding is invoked and yet does not lead to a
remedy for the human rights violation, including an order to pay compensation,
the victims cannot then be asked to exhaust another remedy in order to obtain
that compensation.
64. In any
case, both the disciplinary and contentious-administrative proceedings were, in
fact, exhausted. The disciplinary
proceeding carried out by the Procurator Delegate for the National Police
terminated in a final decision dated June 14, 1994.
The unappealable decisions of the Procurator Delegate for the Judicial
Police, dated September 27 and November 1, 1995, completed the proceedings
before that body. The
contentious-administrative proceeding ended with the decision of the Council of
State confirming the sentence of the administrative tribunal awarding damages
and the final payment of damages on April 27, 1995.
The State itself has noted that the remedy available through the
contentious-administrative jurisdiction was exhausted.[20]
3.
Time for Filing the Petition
65. The
State has neither alleged nor shown that the petitioners presented their claim
to the Commission outside of the relevant time period for the filing of a
petition provided for in Article 46(b) of the Convention and Article 38 of the
Regulations of the Commission.[21]
The Commission therefore determines that the case is admissible without
reference to the question of the time period in which the petition was
submitted.
4.
Friendly Settlement
66. In
accordance with Article 48(1)(f) of the Convention, the Commission offered to
place itself at the disposition of the parties for the purposes of arriving at a
friendly settlement in the hearing held before the Commission on February 23,
1996. According to both the petitioners and the State, some
discussion of negotiation towards a friendly settlement subsequently occurred in
Colombia. However, the State
continued to provide briefs to the Commission relating to the merits of the case
and failed to respond to the petitioners’ request to formalize the friendly
settlement proceedings before the Commission.
67. In
response to a communication from the Commission reiterating its offer to place
itself at disposition of the parties for the purposes of arriving at a friendly
settlement, the State notified the Commission that it would define its position
on friendly settlement and would notify the Commission of its decision in this
regard. When the Commission received no further information from the
State on this point, the Commission
sent a note, on January 29, 1997, requesting a response regarding the position
the State had decided to adopt regarding the possibility of entering into
friendly settlement negotiations in this case.
The Commission received no response to this communication.
The Commission therefore reiterated, on June 18, 1997, its previous
request for information regarding the State’s position on friendly settlement.
The Commission granted the State a 30-day period of time to respond. The State has not yet responded to the Commission’s
request.
68. In the
meantime, while the Commission sought a response regarding the State’s
position on friendly settlement, the State provided an additional brief relating
to the merits of this case, specifically regarding the domestic proceedings, on
March 4, 1997.
69. The
Commission concludes that the State has implicitly indicated its desire not to
pursue friendly settlement negotiations at this time.
It arrives at this conclusion based, in part, on the State’s failure to
respond to its repeated requests for information regarding the State’s
position on friendly settlement. Also,
the Commission notes that the State has moved forward with the proceedings
before the Commission by continuing to submit briefs in this case.
It has thus not been possible to enter into a friendly settlement
proceeding.
5.
Other Admissibility Requirements
70. The
petition fulfills the other admissibility requirements contained in the
Convention and the Regulations of the Commission.
In accordance with Article 47(b) of the Convention, the Commission is
competent to examine this case as it adequately alleges violations of several
articles of the Convention. In
accordance with the requirement of Convention Articles 46(1)(c) and 47(d)
respectively, the Commission has received no information indicating that the
subject of the petition is pending settlement in another international
proceeding or that it duplicates a petition previously examined by the
Commission.
B.
Merits
1.
Findings of Fact Regarding the Underlying Violations
71. The
Commission finds that Police agents detained Alvaro Moreno Moreno on January 3,
1991. The record before the Commission includes several pieces of
crucial evidence on this point. First,
the record contains a copy of the “weekly summary report” dated January 7,
1991 provided by C.A.D. Station 100 to the Commander of the Metropolitan Police
for Bogotá. That report provides
information about the attack carried out on the Los Libertadores CAI.
The report then names Alvaro Moreno Moreno as a suspect and indicates
that he was placed at the disposition of the SIJIN.[22]
The record also contains the testimony of Lieutenant Adriana Patricia
Hernández Marín, an agent of the counterintelligence group of the SIJIN who
participated in the support operation carried out on January 3, 1991 after the
attack on the CAI. Ms. Hernández
testified that she maintained radio contact with the other Police officers who
participated in the support operation on January 3, 1991.
She stated that she heard another Police agent announce over the radio
that he had detained Alvaro Moreno Moreno and that he would take Mr. Moreno to
intelligence headquarters to carry out a background check.[23]
72.
The report of the Judicial Police Office for Special Investigations of
the Office of the Procurator General, issued on January 27, 1992, also reached
the conclusion that the Police detained Mr. Moreno on January 3, 1991.
That report stated that, “it has been clearly established that the
citizen Alvaro Moreno . . . was captured by units of the Metropolitan Police for
Bogotá and placed at the disposition of the SIJIN.”
Nor has the State ever denied in the proceedings before the Commission
that Police agents detained Mr. Moreno on the night in question.
73. Mr.
Moreno’s lifeless body appeared the following day with numerous gunshot
wounds. Thus, the last information
which exists regarding Mr. Moreno, before his death, indicates that he had been
detained by Police officials and was being held at the disposition of the SIJIN.
Given these circumstances, the State bears the burden of proving before
the Commission that Police agents did not cause Mr. Moreno’s death.
74. The
burden of proof lies with the State, because when the State holds a person in
detention and under its exclusive control, the State becomes the guarantor of
that person’s safety and rights. In
addition, the State has control over the information and evidence which might
establish the fate of the detained person.[24]
75. The
Colombian State has failed to meet its burden of proof in this case. The State has never even argued, much
less adduced any credible evidence, that Police agents did not execute Mr.
Moreno subsequent to his detention by the Metropolitan Police for Bogotá.
The Commission thus concludes that State Police agents executed Alvaro
Moreno Moreno after his detention on January 3, 1991.
2.
Conclusions of Law Regarding the Underlying Violations
a.
The Right to Life - Article 4
76. The
Commission concludes that Police agents violated Mr. Moreno’s right to life,
in violation of Article 4 of the Convention.
Article 4 of the American Convention provides that, “[e]very person has
the right to have his life respected. . . . No one shall be arbitrarily deprived
of his life.”
77. The
Commission has found that Police agents executed Alvaro Moreno Moreno after
detaining him on January 3, 1991. There
exist absolutely no indicia in this case suggesting that Mr. Moreno’s death
was justified in any manner. The
State has made no such argument and none arises from the evidence in the record
before the Commission. Police
agents thus arbitrarily deprived Mr. Moreno of his life in a clear violation of
the American Convention.
b.
The Right to Personal Liberty - Article 7
78. The
Commission further concludes that Police agents violated Mr. Moreno’s right to
personal liberty, in violation of Article 7 of the Convention.
Article 7(1) of the Convention establishes that, “[e]very person has
the right to personal liberty and security.”
Article 7(2) requires that a detention be carried out in accordance with
the principle of legality, providing that, “[n]o one shall be deprived of his
physical liberty except for the reasons and under the conditions established
beforehand” pursuant to the law.
79. The
Commission’s conclusion that Police agents caused Mr. Moreno’s death after
detaining him on the night of January 3, 1991 implies the further conclusion
that the Police agents violated Article 7.
A detention which results in the execution of the detained person at the
hands of Police agents cannot be considered to have been carried out in
accordance with the principle of legality and under the pre-established
conditions set forth in the law.
80. In
addition, when Police agents caused Mr. Moreno’s death in detention, they
necessarily deprived him of his right to be taken without delay before a judge
and to invoke the appropriate procedures to review the legality of the arrest.
They thus incurred in violations of paragraphs 5 and 6 of Article 7 of
the American Convention, which establish a detainee’s rights in this regard.
c.
Obligation to Respect Rights - Article 1(1)
81. The
underlying violations at issue in the instant case demonstrate that the
Colombian State has failed to uphold the undertaking set forth in Article 1(1)
of the Convention “to respect the rights and freedoms recognized herein.”
The Court has held that:
Whenever a State organ, official or public entity violates . . . rights
[named in the Convention], this constitutes a failure of the duty to respect the
rights and freedoms set forth in the Convention . . . the State is responsible
for the acts of its agents undertaken in their official capacity and for their
omissions, even if they are acting outside the sphere of their authority or in
violation of internal law.[25]
82. In the
instant case, agents of the Colombian Police, acting under color of their
official authority as law enforcement officials, detained and shortly thereafter
executed Mr. Moreno, in violation of Articles 4 and 7 of the Convention. These actions constitute clear violations of the Convention
which are imputable to the Colombian State in conjunction with an additional
violation of Article 1(1).
3.
Findings of Fact and Conclusions of Law Regarding the Subsequent
Investigations and Proceedings
a.
Statement of the Law - Articles 1(1), 8 and 25
83. Articles
8 and 25 of the American Convention provide individuals with the right of access
to a remedy for violations of their rights, the right to pursue and be heard in
judicial proceedings before a competent tribunal and the right to a decision by
the appropriate legal authority. Article
25(1) of the American Convention sets forth that:
Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against acts
that violate his fundamental rights recognized by the constitution or laws of
the state concerned or by this Convention.
Article 8(1) of the American Convention provides that every person has
the right to be heard “with due guarantees” by a “competent, independent
and impartial tribunal.” The
Court has made clear that for judicial remedies to be adequate under articles 8
and 25 of the Convention, they “must be truly effective in establishing
whether there has been a violation of human rights and in providing redress.”[26]
84. In
addition, the second obligation of the State under Article 1(1) of the
Convention is to “ensure” the free and full exercise of the rights
recognized by the Convention. This obligation implies:
the duty of the States Partes to organize the governmental apparatus and,
in general, all the structures through which public power is exercised, so that
they are capable of juridically ensuring the free and full enjoyment of human
rights. As a consequence of this
obligation, the States must prevent, investigate and punish any violation of the
rights recognized by the Convention and, moreover, if possible attempt to
restore the right violated and provide compensation as warranted for damages
resulting from the violation of human rights.[27]
85. As noted
above, the question of a State’s compliance with its obligations under
Articles 8 and 25 and with its Article 1(1) obligation to ensure human rights is
closely linked to the question of the applicability of exceptions to the
requirement of exhaustion of domestic remedies.[28]
The Commission has found that exceptions to the requirement of exhaustion
of domestic remedies apply in this case. This
conclusion of the Commission constitutes at least an initial finding that the
Colombian State has not fulfilled its obligations under Articles 1, 8 and 25 of
the Convention.
86. The
Commission here definitively concludes that the Colombian State has failed to
ensure that Mr. Moreno's family members received the judicial protection and
access to an effective remedy which should have been provided pursuant to
Articles 8 and 25 of the Convention. This
denial of justice, in violation of Articles 8 and 25, is imputable to the State
under Article 1(1), as it was brought about by the actions and omissions of
State investigatory authorities and other State agents.
The State also failed to adequately investigate Mr. Moreno's death and to
punish those responsible as required by the obligation to ensure found in
Article 1(1) of the Convention and is responsible for this failure as well.
b.
Police Activities Intended to Impede Clarification of the Events
87. The
Commission finds that the Police engaged in a cover-up of the events of January
3, 1991, which impeded the investigation of the case and prevented access to an
effective remedy and an opportunity to be heard.
The Commission notes that the initial domestic investigations reached
such a conclusion. The report of
the Judicial Police Office for Special Investigations of the Office of the
Procurator General noted, as early as January 27, 1992, that “there was an
effort on the part of members of the National Police to avoid that the truth was
learned regarding the detention.”[29]
The information and evidence in the record before the Commission also
supports this conclusion.
88. This
cover-up began soon after Mr. Moreno’s cadaver was found on January 4, 1991.
The day after the body was originally found at “llanos de la Diana” in the community of El Verganzo de
Tocancipá, Cundinamarca, it was transferred to the morgue at a local hospital
in Tocancipá. The body then
disappeared. It was recovered from
the waters of a dam in the municipality of Chocontá on January 14, 1991.
The Commission considers that, in the light of further evidence
indicating that a cover-up occurred, it may be concluded that Mr. Moreno’s
body was removed from the hospital in Tocancipá in order to hide evidence
regarding Mr. Moreno’s fate.
89. As part
of the cover-up surrounding Mr. Moreno's death, the Police sought to deny that
Mr. Moreno had ever been detained. Thus,
there appears no entry regarding Mr. Moreno's detention in the registries of the
different police stations which correspond to the area where the attack on the
CAI Los Libertadores occurred and where Mr. Moreno was presumably detained.[30]
90. Documentary
evidence regarding Mr. Moreno’s detention also suspiciously disappeared or
suffered alterations. The page of
the registry at the CAI Los Libertadores corresponding to the date of the attack
was mutilated. The bottom half of
the page of the registry corresponding to January 3, 1991 was lost.
The final notation which may be read, on the top half of the page,
corresponds to 5:30 p.m. Thus, any
notations made at, during or after the time of the attack are missing.[31]
Also, the January 4, 1991 daily record of incidents for the First Police
Station, which had jurisdiction over the area where the attack occurred on the
CAI Los Libertadores, suspiciously failed to report any incidents the day after
the attack.[32]
91. The only
official police report which does reflect Mr. Moreno's detention is the weekly
summary report submitted by the central dispatch station, C.A.D. Station 100, to
the Commander of the Metropolitan Police. That
weekly summary report disappeared from the files at C.A.D. Station 100.[33]
92. Given
the refusal of the Police to acknowledge Mr. Moreno's detention and the other
evidence of a cover-up in this case, the Commission concludes that Police agents
altered, manipulated and removed Police records in an effort to ensure the
success of the Police cover-up.
93. The
domestic authorities who carried out the early investigations at the Office of
the Procurator General also found that several of the Police officials who they
interviewed were evasive in responding to questions and provided inconsistent
stories.[34]
The Commission considers that this finding by the domestic authorities
establishes that at least some Police officials contributed to the Police
cover-up by refusing to cooperate in the investigations carried out by domestic
authorities.
94. Finally,
the record before the Commission establishes that the Metropolitan Police
Department of Bogotá carried out an internal investigation which also sought to
bury the truth regarding the events of January 3, 1991.
Brigadier General Fabio Campos Silva, Commander of the Metropolitan
Police for Bogotá, served as the decisionmaking authority in this internal
investigation. General Campos
terminated the investigations without finding any Police responsibility for the
events of January 3, 1991, on the grounds that there existed insufficient
evidence to continue. However, he
reached this decision without considering the evidence available.
For example, he did not consider, in reaching his decision, the weekly
summary report which made reference to Mr. Moreno's detention and which was
addressed directly to his office.[35]
95. Nor did
the disciplinary proceedings carried out to investigate the Police cover-up
activities achieve any significant results.
As noted above, the investigations of the Office of the Procurator
Delegate for the National Police terminated in a decision absolving three
defendants. Brigadier General Campos was among those absolved of
responsibility, despite the significant evidence indicating that he had acted
improperly in carrying out the internal Police disciplinary investigation.
The Procurator Delegate sanctioned the fourth defendant, accused of
responsibility in the disappearance of the weekly summary report, with only five
days suspension from service.
96. The
Procurator Delegate took this decision not to provide any significant sanction
despite the evidence indicating that Police agents engaged in a blatant cover-up
of the facts surrounding Mr. Moreno's death.
The State thus failed to provide the limited judicial protection which it
might have made available through the sanction of the cover-up activities
carried out in relation to this case.
97. The
State has attempted to establish the legitimacy of the results of this
disciplinary proceeding. The State
argued, on this point, that the Procurator Delegate could not have imposed a
more serious sanction on the individual held responsible for losing the weekly
summary report which included the reference to Mr. Moreno's detention.
The State suggested that a more serious sanction for the mere loss of a
document would be inappropriate.[36]
98. The
Commission finds this argument to be disingenuous.
The facts of the case establish that the "loss" of the weekly
summary report occurred in the context of a Police cover-up.
That cover-up sought to deny that Police officials detained Mr. Moreno on
January 3, 1991 shortly before he was killed.
The weekly summary report constituted crucial evidence that the detention
had occurred. The destruction or
intentional loss of that document must thus be seen as an additional act in the
cover-up effort. Once the
disciplinary proceedings identified the person responsible for that act, they
should have imposed a sanction which corresponded to the seriousness of the
infraction. The Commission
considers that the State has not adequately justified the failure of the
disciplinary proceedings to achieve the punishment of the Police agents
responsible for the cover-up regarding Mr. Moreno's death.
99. The
Commission thus concludes that the Police carried out significant activity
designed to block the investigations into the death of Alvaro Moreno Moreno,
through such varied tactics as removing evidence, including the victim's
cadaver, and refusing to cooperate in interviews with investigative authorities.
These facts demonstrate that the family members of Alvaro Moreno Moreno
faced a Police cover-up, which precluded access to an effective remedy.
100. When State
agents engage in a cover-up of facts which violate the Convention, the State is
prevented from carrying out an adequate investigation.
Even if some State agents, for example prosecutors or the courts,
attempted to carry out an adequate investigation, they would meet with
interference from other State agents which prevents the success of the
investigation. Without a complete
investigation, which enjoys the cooperation of all involved State agents, it
becomes extremely difficult to provide an effective legal remedy to the victims
or their family members and to sanction those responsible for the violations.
The State thus incurs in violations of Articles 1, 8 and 25 of the
Convention.
101. In this
connection, the Inter-American Court has previously noted that when State agents
fail to cooperate with domestic proceedings or otherwise engage in an
obstruction of justice, they violate the right to be heard and to access
judicial protection, in violation of the Convention.[37]
In the present case, the Colombian State has incurred in just such
violations of the Convention as a result of the Police cover-up which prevented
an adequate investigation and full access to effective legal recourse.
c.
The Domestic Investigations and Proceedings
102. The
violations of Articles 1, 8 and 25 were perfected when the Colombian State
failed to carry out domestic investigations and proceedings sufficiently
rigorous to counteract the cover-up. As
the Commission noted above, in this case involving the execution of Mr. Moreno
by Police agents, the State was required to carry out a criminal investigation
and to criminally sanction the individuals responsible for the violations
committed.
103. However, as
the Commission found above, the criminal proceedings in this case have not been
effective and have not advanced in a timely manner.
Thus, six years after the facts, the criminal case remains in the
investigative stage, and no individual responsible for the violations has been
formally charged, much less criminally sanctioned.
The case has been transferred from one prosecutorial body to another,
causing unnecessary delay and difficulty in the proceedings.
The Human Rights Unit of the Office of the Prosecutor General has held
jurisdiction over the case for more than two years. Yet, the Commission has still received no information
indicating that the case will move out of the investigative stage in the near
future.
104. The failure
of the criminal proceedings to reach a conclusion and to achieve the sanction of
those responsible for Mr. Moreno's death contrasts with the disciplinary
proceedings carried out by the Procurator Delegate for the Judicial Police.
Those proceedings concluded with a finding of Police responsibility and
the sanction of four Police agents in relation to the death of Mr. Moreno.
105. The
Commission recognizes that the duty to investigate does not imply a duty to
obtain a specific outcome in the domestic proceedings.[38]
However, the investigation "must be undertaken in a serious manner
and not as a mere formality preordained to be ineffective."[39]
106. The initial
investigations of the Judicial Police Office for Special Investigations of the
Office of the Procurator General and of the 27th Judge for Criminal
Investigation uncovered important evidence pointing towards the culpability of
several Police officials in the death of Mr. Moreno.
However, the State has not provided information indicating that the
criminal authorities have carried out subsequent investigative proceedings in a
serious manner and has not informed the Commission of any positive results
derived from the investigations.
107. In addition,
the State has only sporadically detained suspects in the case and has sometimes
freed persons already detained without clear justification or as a result of the
State's own negligence. A working
list of suspects in the criminal proceedings was developed in July of 1992.
Some months later, on April 12, 1993, the Office of the Prosecutor
General issued arrest warrants against Captain Oscar Mariño Romero, head of the
counterintelligence group of the SIJIN, and against Sergeant Leonel Adulfo
Morales, a member of the counterintelligence group. These two individuals were arrested.
108. However,
several months later, the prosecution terminated the criminal investigation of
these two individuals and granted them their freedom.
The authorities reversed this decision upon appeal by the civil party.
Both individuals were again formally named as suspects in the case and a
new arrest warrant was issued against Captain Mariño.
However, by that time, Captain Mariño had become a fugitive from
justice. According to the
information in the record before the Commission, State officials have not
succeeded in detaining him again. Despite the fact that the domestic proceedings have
determined that there exist indicia of responsibility as against this individual
sufficient to require his detention, he remains at liberty after he was freed
from his original arrest.
109. In September
of 1994, the prosecution added two additional suspects to the investigation:
Lieutenant Samuel Castrillón Santana, head of the intelligence group of
the SIJIN, and; Alvaro Parada Medina, a SIJIN agent. Lieutenant Castrillón was not detained at this time despite
the issuance of a warrant for his arrest. Agent
Parada was detained. However, when
the criminal case was erroneously transferred to the military justice system,
Agent Parada obtained an order from the military tribunals granting him his
freedom. The Commission has
received no information establishing legitimate reasons for his release.
110. In June of
1995, the arrest warrant against Lieutenant Castrillón was revoked.
An additional arrest warrant issued in 1993 against Major José Gregorio
Sánchez Lozano, administrative chief for the SIJIN, was also revoked.
It is not clear from the record whether these two suspects had ever been
detained in accordance with the arrest warrants outstanding against them.
If so, they would have been freed when the warrants against them were
revoked. The warrants for their
detention were revoked as a result of the negligence of the Office of the
Regional Prosecutor for Bogotá which formally closed the investigations and
then failed to take a decision as to the charges it would file within the period
of time provided for under the law.
111. The
information in the Commission's possession thus establishes that four of the
arrest warrants originally granted were revoked.
The warrant for the arrest of Captain Mariño is apparently the only
warrant which was not revoked. However,
Captain Mariño has been declared a fugitive from justice and there is no
indication that he will be detained in the future.
The Human Rights Unit of the Office of the Prosecutor General has not
issued any further arrest warrants. This
information thus establishes that no suspects are currently held in detention in
the criminal proceedings relating to the death of Alvaro Moreno Moreno.
112. The failure
to carry out the timely arrest of suspects against whom there exist outstanding
arrest warrants, the improper release of persons who have been detained and the
revocation of arrest warrants as a result of the negligence of State agents has
necessarily impeded the investigation of this case and blocked access to an
effective remedy. In addition, the
failure of the State to detain suspects in this case seriously prejudices the
State's ability to sanction the persons responsible for the violations
committed. Even if the events of
January 3, 1993 are eventually clarified and convictions are entered, the State
may experience difficulty in locating and detaining the defendants in order to
carry out the criminal sanctions eventually imposed.
The Commission again notes, in this connection, that at least one suspect
has already been declared a fugitive from justice.
113. The cover-up
carried out by State Police agents and the failure of the criminal proceedings
to investigate in a serious and timely manner have provided those responsible
for the death of Mr. Moreno with impunity.
As a result, the State is responsible for its failure to provide Mr.
Moreno's family with access to effective legal recourse and judicial protection,
in violation of Articles 8 and 25 of the American Convention.
The State has also failed to comply with its obligation, pursuant to
Article 1(1), to investigate human rights violations and to sanction those
responsible, where possible.
114. The
Commission notes, as a final matter, that the Colombian State has complied with
part of its obligation pursuant to Article 1(1) by providing monetary
compensation to Mr. Moreno's family members.
However, the family members of Mr. Moreno and the petitioners in this
case before the Commission continue to press for justice, including the
investigation and sanction of those responsible for Mr. Moreno's death.
The Commission must point out that the payment of monetary compensation
does not discharge the State's responsibility pursuant to Article 1(1) in a case
such as this one where the family members of the victim legitimately demand the
criminal investigation and sanction of the persons responsible for the
violations committed.
V.
CONSIDERATIONS IN RESPECT OF THE ACTIONS TAKEN SINCE
ADOPTION OF THE ARTICLE 50 REPORT
A.
Procedure after the adoption of the Article 50 Report
115. The
Commission examined this case during its 97º Regular Session.
On September 30, 1997, pursuant to Article 50 of the Convention, it
adopted Report 28/97, which concluded that the Colombian State was responsible
for violations of the Convention, including violations of Mr. Moreno's right to
life (Article 4) and personal liberty (Article 7) and for violations of the
rights of his family members to a fair trial (Article 8) and judicial protection
(Article 25), all in conjunction with the violation of Article 1(1) of the
Convention. The Commission
recommended that the State adopt specific measures to resolve the situation.
116. The
Commission sent Report 28/97 to the Colombian State on October 28, 1997, with a
request to the State to inform the Commission as to the measures taken to remedy
the situation, in line with the recommendations made.
The State was given a two-month period to respond.
The Commission notified the petitioners of the adoption of the report in
a note of the same date.
117. On December
30, 1997, the Commission received a note from the State requesting an extension
of time for the filing of its response. By
note dated December 31, 1997, the Commission granted an extension of time of 30
days. On February 9, 1998, the
Commission received the State's response to Report 28/97, which was dated
February 4, 1998. The Commission
wishes to express its concern regarding the late filing of the State's response. The State failed to respond in a timely manner despite having
received from the Commission a total period of three months to provide
information regarding compliance with the report adopted in accordance with
Article 50 of the Convention.
B.
The State's Arguments Regarding the Commission's Admissibility Decision
1.
Procedural Objections
118. The State
first questions the Commission's statement, in Report 28/97, that "it is
not clear that the State has raised timely objections to admissibility." The State suggests that a preliminary objection on the
grounds of failure to exhaust domestic remedies was implicitly raised when the
State provided information regarding domestic remedies. The State further suggests that it is inappropriate to invoke
the Court's holding in Velásquez Rodríguez in this case to suggest that the
objection was not made "at an early stage of the proceedings."
The State argues that there exists a lack of clarity in this case
regarding the appropriate time period for raising an objection on the grounds of
failure to exhaust domestic remedies.
119. The
Commission first notes that, despite finding that it was not clear that the
State had raised timely objections to admissibility, the Commission nonetheless
proceeded to analyze the various requirements for admitting a petition,
including the requirement of exhaustion of domestic remedies.
The procedural question raised by the State thus had no effect on the
outcome of the case.
120. The
Commission also notes that the State must make clear that it is raising an
objection to admissibility, on exhaustion grounds, in order for the Commission
to consider that objection. To
properly raise the objection, the State must describe which adequate remedies
have not been exhausted and explain the basis for the objection, so that the
Commission may analyze the alleged shortcomings of the petitioners on this
point.[40]
121. However, in
this case, the Commission's principle reason for questioning whether the State
had made a timely objection was not based on a failure to clearly allege an
objection on exhaustion grounds. Rather,
the Commission focused on the fact that the State made its objection to
admissibility in its answer, which was submitted to the Commission in an
untimely manner. The State provided
its response in this case more than one year after the Commission opened the
case, only after the Commission reiterated its request for information.
122. The State
thus did not merely fail to clearly allege an objection on exhaustion grounds
but rather failed to respond altogether within the established time period,
without any justification. The
failure to respond within the established time period obviously also implied a
failure to raise any preliminary objection within that time period.
123. The
Commission reiterates that, under those circumstances, it is not clear that the
Commission should consider the admissibility objection put forth by the State. The Convention explicitly establishes the obligation of the
State to respond to the Commission's request for information within the time
period established by the Commission.[41]
The Commission considers that there must exist some procedural
consequence for the failure of the State to respond to the request for
information made by the Commission when it opens a case.
124. In fact, as
the State itself notes, in its response to Report 28/97, all of the proceedings
in the first stages before the Commission should occur "in a period no
greater than 300 days after the case is opened."
The State thus provided its first response in this case after the
time provided, in the Commission's regulations, for the completion of all
of the initial stages of processing of the communications between both parties.
125. The State is
responsible, in the present case, for lengthening the period of exchange of the
initial communications between the parties.
A State may not grant itself additional time to raise preliminary
objections by failing to respond, thereby lengthening the time period for the
early stages of the proceedings in which preliminary objections may be raised.
The statutory time period for the early stages of the proceedings had
ended by the time the State filed its answer and preliminary objection.
The Commission thus considers applicable the language in Velásquez Rodríguez
regarding the waiver of a preliminary objection which is not raised in the first
stages of the proceedings.
2.
Substantive Objections
126. In its
response to Report 28/97, the State also questioned the substance of the
Commission's decision on admissibility regarding the requirement of exhaustion
of domestic remedies. The State
suggests that the Commission erroneously disqualified the disciplinary and
contentious-administrative proceedings as possible effective domestic remedies
which must be exhausted. The State
argues that the Commission has failed to recognize the integrated nature and the
effectiveness of those two proceedings in Colombia.
127. The
Commission clarifies, on this point, that it does not question the integrated
nature of the various remedies provided for under Colombian law, including the
criminal proceedings, the contentious-administrative proceedings and the
disciplinary proceedings. The
Commission recognizes that these proceedings, when carried out effectively, may
provide a joint result which includes the criminal sanction of individuals
responsible for human rights violations, the disciplinary sanction of those
individuals and a finding of State responsibility, including a duty to
compensate the victims.
128. However, the
Court has clearly established that:
A number of remedies exist in the legal system of every country, but not
all are applicable in every circumstance. If
a remedy is not adequate in a specific case, it obviously need not be exhausted.[42] The Commission thus need only analyze
the exhaustion of adequate domestic remedies in reaching its decision on
admissibility.
129. Adequate
domestic remedies are those "which are suitable to address an infringement
of a legal right."[43]
The Commission has consistently held in this and other similar cases
that, where the violation of a human right may properly be characterized as a
criminal offense, the victims or their family members have the right to obtain a
judicial investigation and a decision by a court of criminal law which
establishes criminal responsibility and provides for an appropriate punishment.
130. Although
Colombian disciplinary and contentious-administrative proceedings may supplement
and complement criminal proceedings in important ways, they may never provide
for a criminal investigation, criminal determination of responsibility and
criminal sanction. They thus can
never completely and adequately address the infringement of the legal rights
involved in cases such as this one which require criminal investigations and
sanctions. As a consequence, the
Commission need not analyze whether they have been exhausted before admitting a
case. The criminal proceedings
which, where successful, presuppose an award of compensation as well as a
criminal investigation and sanction, constitute the adequate remedy which must
be exhausted.
131. The State's response in
this case further illustrates this point. The
State points out that there exist many cases in which no criminal conviction is
achieved but yet the disciplinary and/or contentious-administrative proceedings
result in sanctions, declarations of State responsibility or orders to
compensate victims and their family members.
The Commission recognizes the importance of the disciplinary and
contentious-administrative decisions in those cases. It is far better for the victims or their family members to
achieve an award of compensation and disciplinary sanctions than to face a
complete lack of response from the State regarding the violations.
However, the remedy provided in those cases is necessarily incomplete and
inadequate, because it does not provide for criminal investigation and
sanctions. The
contentious-administrative and disciplinary proceedings thus need not have been
exhausted, although they did provide an important partial remedy.
132. In its
response to Report 28/97, the State also questions statements made in this
specific case by the Commission regarding the contentious-administrative
proceedings. In its Report 28/97, the Commission noted that, "[m]onetary
compensation for damages inflicted, without any determination as to wrongdoing,
is not an adequate or appropriate remedy in this case."
The Commission made this statement, because the State had specifically
emphasized in the processing of this case that the contentious-administrative
proceeding provides monetary compensation to persons who have suffered harm
caused by State agents, “justly or unjustly.”
133. In its
response to Report 28/97, the State for the first time informed the Commission
that the Council of State decision in the contentious-administrative
jurisdiction in the present case did expressly find that State agents had
engaged in wrongdoing and in a violation of rights.
The State suggests, in its response, that the Commission was aware of the
findings included in this contentious-administrative decision.
However, the State never submitted the text of the decision to the
Commission. The State simply informed the Commission that a decision
awarding compensation existed, without providing information regarding the basis
for that decision. Nor did the text
of the decision reach the Commission from another source. The Commission may only analyze those documents which form
part of the record before it. If
the State wishes to rely on judicial decisions or other documents in its power,
it must provide that documentation to the Commission.
134. In any case,
the Commission continues to hold that the contentious-administrative proceeding
serves essentially as a means of providing monetary compensation for harm caused
by State authorities with or without wrongdoing, as the State properly noted in
this case. Even where the
compensation is predicated on a finding of wrongdoing, the
contentious-administrative remedy continues to be inadequate in human rights
cases such as this one. It simply does not provide for the criminal investigation and
sanction required in these cases.
C.
State Compliance with the Commission's Recommendations
1.
Investigation and Criminal Proceedings
135. The State
provided important information, in its response to Report 28/97, regarding the
Commission's recommendations to the State to investigate the case, to provide an
officially sanctioned account of the violations against Mr. Moreno and to submit
all those responsible to the appropriate criminal proceedings.
The State recognized that the criminal proceedings have been slow and
have been affected by errors. The
State then informed the Commission about ongoing investigations which seek to
individualize and sanction the persons responsible for the disappearance and
extrajudicial execution of Mr. Moreno. The
State also informed the Commission that it has taken measures to seek
investigations and possible sanctions against the investigative and judicial
authorities who failed to properly carry out the criminal proceedings.
The Commission considers these steps to be of utmost importance.
136. Nonetheless,
the Commission considers that the State has not yet fully complied with its
recommendations to investigate and sanction in this case.
Seven years after the death of Mr. Moreno and three months after the
Commission issued its Article 50 decision, the domestic criminal case remains in
the investigative stage. No
individual has been sanctioned and no formal charges have been brought.
137. In its
response, the State informed the Commission that another suspect had been
detained in relation to the case. However,
that suspect was then freed. This
information follows a pattern which has occurred in the case, whereby suspects
are detained for a time and then freed. The
Commission also notes that, according to the information provided by the State,
three suspects in the case continue in active service in the National Police.
2.
Reparation
138. As to the
Commission's recommendation to the State to provide for reparation for the
violations, the State suggests that the publication of the Commission's report
will constitute reparation in this case. The
publication of a Commission finding of State responsibility for human rights
violations does constitute a form of moral reparation for the victims of those
violations or for their family members. However,
the Commission made a recommendation to the State to provide reparation. The publication of a report by the Commission does not
relieve the State of its responsibility to comply with the recommendation
and to provide adequate reparation.
139. The State
also suggests that a successful conclusion of the criminal proceedings would
serve as a form of moral reparation. Again,
the Commission agrees that criminal investigations and sanctions constitute a
form of reparation. However, the
Commission has found that the State has not yet complied with its recommendation
to carry out investigations and to sanction the individuals responsible for the
violations committed against Mr. Moreno. The
State has thus not yet provided this form of moral reparation. Based on the foregoing:
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, CONCLUDES:
140. That the
Colombian State is responsible for violations of the human rights of Alvaro
Moreno Moreno to life (Article 4) and personal liberty (Article 7) and for
violations of the rights of his family members to a fair trial (Article 8) and
judicial protection (Article 25), all in conjunction with the violation of
Article 1(1) of the Convention. RECOMMENDS:
141. That the
Colombian State undertake a serious, impartial and effective investigation of
the facts denounced so that the circumstances of and the responsibility for the
violations found may be fully detailed in an officially sanctioned account of
the death of Alvaro Moreno Moreno.
142. That the
Colombian State submit all of the individuals suspected of involvement in the
violations to the appropriate criminal proceedings so that those persons
responsible for the violations may be sanctioned.
143. That the
Colombian State adopt measures to make full reparation for the violations found.
VI. PUBLICATION
144. In conformity
with Article 51(1) and (2) of the American Convention, the Commission sent
Report No. 5/98, adopted in the present case, to the Colombian State on February
24, 1998. The Commission granted
the State a one-month period to adopt the necessary measures to comply with the
foregoing recommendations and to resolve the situation under analysis.
145. The
Commission received the response of the Colombian State to Report No. 5/98 on
March 25, 1998. The State attached to its communication the decision of the
Council of State from May 18, 1994, mentioned in the response of the State to
Report No. 28/97, adopted by the Commission pursuant to Article 50 of the
Convention.
146. The Colombian
State does not provide, in its response, new information regarding the adoption
of measures in order to comply with the recommendations of the Commission.
VII. FINAL
ANALYSIS AND CONCLUSIONS
147. For these
reasons, the Commission decides that the State has not taken all of the
appropriate measures to comply with the recommendations set forth in this
report. 148. Based on the foregoing and pursuant to Article 51(3) of the American Convention and Article 48 of the Commission's Regulations, the Commission decides to reiterate the conclusions and recommendations contained in Report No. 5/98. The Commission further decides to make public this report and include it in the Commission's Annual Report to the General Assembly of the OAS. [
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*
Commissioner Alvaro Tirado Mejía, a Colombian national, did not
participate in the consideration and vote on this report, pursuant to
Article 19(2)(a) of the Commission's Regulations.
[2]
The contentious-administrative jurisdiction is established by the
colombian Constitution to take jurisdiction over administrative
controversies and litigation resulting from the actions of State agents and
public entities. It is a legal
means by which Colombian citizens may seek compensation for the violation of
a right by State agents. Constitution
of Colombia, art. 237; Contentious-Administrative Code, art. 82.
[3]
I/A Court H.R., Velásquez Rodríguez Case, Judgment of June 26,
1987, Preliminary Objections, par. 88; see also I/A Court H.R., Neira
Alegría Case, Judgment of December 11, 1991, Preliminary Objections, par.
30 (citing Velásquez Rodríguez, par. 88).
[6]
The Office of the Procurator General of the Nation has competence to
carry out disciplinary proceedings and sanctions against State agents and to
intervene in judicial and administrative proceedings to seek protection for
fundamental rights and guarantees. Constitution
of Colombia, arts. 275, 277.
[7]
The Office of the Prosecutor General of the Nation is an autonomous
entity which forms part of the judicial branch and which is responsible for
investigating and prosecuting criminal cases.
Constitution of Colombia, arts. 249, 250.
[8]
The Colombian Constitution provides that the Superior Council of the
Judiciary will make the final decision as to which entity has competence to
handle a case when jurisdictional conflicts occur. Constitution of Colombia, art. 256(6).
[9]
The Regional Prosecutors are the prosecutorial entities for the
regional criminal justice system. The
regional criminal justice system has jurisdiction over cases involving
narcotics, terrorism and other serious offenses.
[12]
See I/A Comm. H.R., Report No. 28/92 (Argentina), October 2,
1992, pars. 32, 50, Annual Report of the Inter-American Commission on Human
Rights 1992-1993, OEA/Ser.L/V/II.83, Doc. 14, corr. 1, March 12, 1993; I/A
Comm. H.R., Report No. 10/95 (Ecuador), September 12, 1995, pars. 42-48,
Annual Report of the Inter-American Commission on Human Rights 1995, OEA/Ser.L/V/II.91,
Doc. 7 rev., February 28, 1996.
[16]
See I/A Court H.R., Genie Lacayo Case, Judgment of January 29,
1977, par. 77 (citing Eur. Court H.R., Motta judgment of 19 February
1991, Series A no. 195-A, par. 30; Eur. Court H.R., Ruiz Mateos v. Spain
judgment of 23 June 1993, Series A no. 262).
[17]
See, e.g., I/A Comm. H.R., Report No. 15/95 (Colombia),
September 13, 1995, Annual Report of the Inter-American Commission on Human
Rights 1995, OEA/Ser.L/V/II.91, Doc. 7 rev., February 28, 1996, at 71.
[21]
See I/A Court H.R., Neira Alegría et al. Case, Preliminary
Objections, Judgment of December 11, 1991, par. 30 (indicating that the
Government bears the burden of raising an objection on these grounds and may
waive the objection).
[22]
See Weekly Summary Report prepared by C.A.D. Station 100 and
directed to the Commander of the Metropolitan Police for Bogotá, January 7,
1991.
[23]
See Statement of Lieutenant Adriana Patricia Hernández Marín
before the Judicial Police Office for Special Investigations of the Office
of the Procurator General, December 16, 1991, Bogotá.
[26]
I/A Court H.R., Judicial Guarantees in States of Emergency (Arts.
27(2), 25 and 8 American Convention on Human Rights), Advisory Opinion
OC-9/87 of October 6, 1987. Series
A No. 9, par. 24.
[29]
Conclusions of the Report of the Judicial Police Office for Special
Investigations of the Office of the Procurator General, January 27, 1992, at
2.
[31]
See id.; Judicial Inspection Proceeding Report prepared
by the 27th Judge for Criminal Investigation, June 24, 1991 (annexing a copy
of the torn page).
[32]
See Conclusions of the Report of the Judicial Police Office
for Special Investigations of the Office of the Procurator General, January
27, 1992, at 3. |