REPORT Nº 74/01
On August 21, 1996, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition submitted by the
Colombian Commission of Jurists (hereinafter “the petitioners”) in
which it is alleged that on September 3, 1995, Mr. Giaccomo Turra, of
Italian nationality, died while in the custody of agents of the National
Police in the city of Cartagena, department of Bolívar, Republic of
Colombia (hereinafter “the State” or “the Colombian State”).
The petitioners allege that the State is responsible for violating
the rights to life, humane treatment, personal liberty, and a fair trial,
set forth in Articles 4, 5, 7, and 8 of the American Convention on Human
Rights (hereinafter “the American Convention”) to the detriment of
Giaccomo Turra, in conjunction with the general obligation to respect and
ensure the rights established in the Convention.
The State, for its part, alleges that the judicial proceedings
aimed at clarifying the death of Giaccomo Turra are still pending.
Accordingly, it requested that the Commission declare the
petitioners’ claim inadmissible based on failure to exhaust domestic
remedies, as required by Article 46(1)(a) of the American Convention.
In response, the petitioners alleged that the claim submitted to
the IACHR fits under the exceptions to the exhaustion requirement provided
for at Article 46(2)(c) of the same treaty.
Based on the analysis of the parties’ positions, the Commission
concluded that it is competent to take cognizance of this claim, and that
it is admissible in keeping with Articles 46 and 47 of the American
PROCESSING BEFORE THE COMMISSION
On August 23, 1996, the Commission proceeded to process the claim
as petition number 11.662, in keeping with the Commission’s Regulations
in force until April 30, 2001, and forwarded the pertinent parts of the
complaint to the Colombian State, giving it 90 days to submit information.
On November 25, 1996, the State requested an extension, which was
duly granted by the Commission. On
January 10, 1997, the State submitted its answer, and the pertinent parts
were forwarded to the petitioners for their observations.
On March 21, 1997, the petitioners requested an extension, which
was duly granted by the Commission. On
April 18, 1997, the petitioners submitted additional information, which
was forwarded to the State. On April 28, 1997, the Commission forwarded
additional information on the case to the State.
On January 27, 1998, the State asked the Commission to postpone a
hearing on this matter scheduled for the 98th regular session of the IACHR.
On January 30, 1998, the Commission communicated the postponement of that
hearing until its subsequent regular session. On August 18, 1998, the
Commission reiterated to the State its request for information of April
On October 5, 1998, during its 100th regular
session, the Commission held a hearing on the instant matter with
the presence of both parties. On
October 21, 1998, the Commission addressed the parties to formally place
itself at their disposal to pursue a friendly settlement.
On November 28, 1998, the State indicated that it was not
appropriate to initiate the friendly settlement procedure because domestic
remedies had not been exhausted as required by Article 46(1) of the
American Convention. On
October 1, 1999, during its 104th regular session, the Commission held a second hearing on the matter
with the participation of both parties.
During the hearing, the petitioners presented additional
information, which was forwarded to the State for observations. On
November 5, 1999, the State requested an extension, which was duly
granted. On December 13, 1999, the State presented additional
information. That information was forwarded to the petitioner. On March
20, 2000, the petitioners notified the IACHR that the Center for Justice
and International Law (CEJIL) was joining the proceeding as co-petitioner.
On June 28, 2000, the petitioners submitted additional information,
which was forwarded to the State. On
July 28, 2000, the State submitted its observations on the information
submitted by the petitioners.
THE PARTIES’ POSITIONS
The petitioners’ position
The petitioners allege that on July 13, 1995, Italian citizen
Giaccomo Turra, 24 years of age, was detained by members of the National
Police at a restaurant in the city of Cartagena, department of Bolívar.
Mr. Turra had entered the establishment in an excited state and in
search of help. The
petitioners note that the agents of the National Police who appeared at
the place tied his feet and hands and forcefully placed him in a police
The petitioners’ account indicates that, given the physical and
emotional state of Giaccomo Turra, at approximately 11:45 p.m. the police
agents decided to stop at the Bocagrande Hospital, to seek medical
they are alleged to have asked the attending physician in charge of the
emergency room, Dr. Amira Fernanda Osorio, to give the detainee a
sedative. Dr. Osorio is said
to have asked to perform a medical exam of the detainee, but the State
agents allegedly refused, arguing that Mr. Turra had to be transferred to
police facilities immediately. Immediately
thereafter, the medical personnel allegedly applied the sedative in the
police vehicle, after which it left and went to the Third Police Station
of Bocagrande. Once there,
the commander in charge at the time refused to receive Giaccomo Turra,
since he was unconscious, and at approximately 12:45 a.m. the agents had
to take him back to the Hospital.
petitioners allege that upon arrival at the Hospital, the victim showed no
vital signs and had visible lesions all about the body.
They note that the autopsy performed by Dr. Ana Magola Manga
confirms that Giaccomo Turra died from multiple blows and contusions.
facts of this case were initially investigated by the 30th Departmental
Prosecutor, of the Departmental Office of the Attorney General of
Cartagena. On October 2,
1995, the 30th Departmental Prosecutor forwarded the investigation to the
military criminal courts, on the basis that Giaccomo Turra had had contact
with members of the National Police prior to his death.
Later, on October 4, 1995, the military criminal courts returned
the investigation to the regular criminal courts.
On October 5, 1995, a commission was formed to carry out the
investigation, coordinated by the 6th Prosecutor of the Unit on Crimes
against Life. On November 27, 1995, the investigation was sent to the
Departmental Office of the Prosecutor of Bogotá. Nonetheless, on March 16, 1996, the Office of the Attorney
General removed the case to the military criminal courts, to re-open the
investigation into the police agents involved.
59th Judge of Military Criminal Investigation ordered the investigation
re-opened, and by order of July 22, 1996, he ruled that no effort be made
to detain the police agents implicated in the case.
This decision was affirmed by the Superior Military Tribunal.
On June 6, 1997, the case was forwarded to the Auditoría Verbal
de Guerra, a military court for the department of Bolívar.
On September 30, 1998, the court-martial (Consejo Verbal de
Guerra) acquitted the National Police agents involved.
This decision was appealed to the Superior Military Tribunal, which
affirmed the decision of the court-martial.
This decision was appealed, in turn, to the Supreme Court of
Justice by a motion for cassation, which is now pending before that court.
November 17, 1995, the Office of the Procurator General for the District
of Cartagena decided to refrain from opening an investigation into the
police agents investigated. Later,
on April 17, 1998, the Office of the Delegate Procurator for the National
Police (Procuraduría Delegada para la Policía Nacional) decided
to overturn the previous decision and ordered the disciplinary
investigation re-opened. On
November 12, 1998, the Office of the Procurator General for the District
of Cartagena de Indias absolved the police agents implicated in the case
of any liability.
should be noted that the investigation of the facts by the disciplinary
justice system and the military criminal justice system exonerated the
police officers involved. The petitioners allege that the examination of
the case by the military justice system violates the judicial protection
provisions of the American Convention.
15. Based on these allegations, the petitioners ask the Commission to declare the State responsible for violating the rights to life, humane treatment, personal liberty, and access to justice, of Giaccomo Turra, provided for at Articles 4, 8, and 25 of the American Convention, as well as the general obligation to respect and ensure the rights protected by the American Convention.
relation to meeting the admissibility requirements established in the
American Convention, the petitioners argue that this claim should be
considered in light of the exception to the prior exhaustion requirement
provided for at Article 46(2)(b) of that treaty, considering that the
examination of the case by the military justice system, it is argued,
impeded access to a judicial remedy adequate to clear up the facts
surrounding the victim’s death.
The State’s position
State argues that the claim presented by the petitioners does not
constitute a violation of the rights enshrined in the American Convention
and that therefore it should be declared inadmissible.
It considers that the evidence collected in the proceedings before
the domestic courts indicate that the police agents involved in the events
around the death of Giaccomo Turra lacked a motive to cause harm to the
notes that the administrative and judicial tools available under
Colombia’s domestic law will continue to be used to clarify the facts
surrounding the victim’s death, and the responsibility of its agents in
the facts alleged depends on the determinations made by the judicial
State alleges that domestic remedies have not been exhausted, and that the
exceptions to this requirement provided for at Article 46(2)(c) of the
American Convention do not apply to the facts in the instant case.
First, it considers that the victim’s next-of-kin have
participated in the proceedings before the military criminal court as a
civilian party, and therefore have had access to a remedy adequate to cure
the violation, in keeping with the guidelines established by the judgments
of the Constitutional Court of Colombia.
Second, it asserts that there has not been any unwarranted delay in
reaching a final decision, due to the complexity of the case, considering
the criteria established by precedents in international human rights law.
In addition, it considers that there has been a procedural dynamic,
in the proceeding, that indicates that the courts have advanced
effectively towards clarifying the facts.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
petitioners are authorized by Article 44 of the American Convention to
present complaints to the IACHR. The
petition notes that the alleged victim is an individual with respect to
whom Colombia undertook to respect and ensure the rights enshrined in the
American Convention. As for the State, the Commission notes that Colombia has been
a state party to the American Convention since July 31, 1973, when the
respective instrument of ratification was deposited. Therefore, the
Commission is competent ratione
personae to examine the petition.
Commission is competent ratione loci
to take cognizance of the petition, as it alleges violations of rights
protected in the American Convention that would have taken place in the
territory of a state party. The
IACHR is competent ratione temporis insofar as the obligation to respect and ensure the
rights protected in the American Convention was already in effect for the
State on the date when it is alleged that the facts stated in the petition
took place. Finally, the
Commission is competent ratione
materiae, because the petition alleges violations of human rights
protected by the American Convention.
Exhaustion of domestic remedies and the time period for submitting
State alleges that the petitioners’ claim should be declared
inadmissible considering that the final decision on the case is still
pending. The petitioners, for
their part, argue that the investigation of the case by the military
criminal courts has deprived the victim’s next-of-kin of access to an
adequate remedy. Accordingly,
they invoke the exception provided for at Article 46(2)(c) of the American
46(1) of the American Convention establishes, as an admissibility
requirement for petitions, that domestic remedies first be exhausted.
Nonetheless, Article 46(2) provides that this requirement is not
the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have
allegedly been violated;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
In this connection, the
Inter-American Court has established that the petitioners need only
exhaust remedies that are “adequate” for readdressing the violation
alleged, meaning that these remedies must be suitable to address an
infringement of a legal right.
Commission observes that, as appears from the record, the case regarding
the death of Giaccomo Turra was initially taken up by the 30th Prosecutor
(Fiscalía 30) of the Specialized Unit on Crimes against Life, and
that on October 2, 1995, it was removed to the military criminal courts.
On October 4, 1995, the 59th Judge of Military Criminal
Investigation returned the process to the Office of the Attorney General (Fiscalía),
as it considered that there was no evidence linking members of the State
security forces to the victim’s death. Upon assuming jurisdiction once
again, the Office of the Attorney General formed a special commission to
investigate the case, and on March 16, 1996, returned the investigation to
the military criminal courts. On
taking up the investigation anew, the 59th Judge of Military Criminal
Investigation ruled that the police
agents accused should not be detained;
they were ultimately acquitted by a court-martial. The acquittal was affirmed by the Superior Military Tribunal.
It should be noted that in the case underlying the claim that is
the subject of this decision on admissibility, the military justice system
has been used to investigate the death, in custody, of Giaccomo Turra, and
to judge the members of the police accused of responsibility.
Commission has referred on several occasions to the unsuitability of
military courts as a forum for examining alleged violations of human
rights committed by members of the armed forces or National Police.
In addition, the Inter-American Court has noted that military
justice is only an adequate forum for trying members of the military for
crimes or misdemeanors which by their very nature infringe legal interests
particular to the military order. For
the purposes of the admissibility of this claim, the Commission considers
that the victim’s next-of-kin have been deprived of access to a judicial
remedy that is adequate for investigating, prosecuting, and punishing the
persons responsible for the victim’s death, within the meaning of the
exception provided for at Article 46(2)(b) of the Convention.
Accordingly, the requirements established at Article 46(1)(a) and
(b) of the American Convention are not applicable in this case.
Commission has noted on previous occasions that invoking exceptions to the
rule of prior exhaustion of domestic remedies provided for in Article
46(2) of the Convention is closely linked to the determination of possible
violations of certain rights enshrined therein, such as the guarantees of
access to justice. Nonetheless, Article 46(2), by its nature and purpose,
has autonomous content with respect to the substantive provisions of the
Convention. Therefore, the determination of whether the exceptions to the
prior exhaustion rule that are set forth therein are applicable to the
instant case should be made prior to and separate from the analysis of the
merits, since it depends on a different standard of appreciation than that
used to determine whether there has been a violation of Articles 8 or 25
of the Convention. It should be clarified that the causes and effects that
have impeded the exhaustion of domestic remedies in this case will be
analyzed, as pertinent, in the Report adopted by the IACHR on the merits
of the dispute, so as to find whether they effectively constitute
violations of the American Convention.
Duplication of procedures and res
does not appear from the record that the petition is pending before any
other international procedure, nor that it reproduces a petition already
examined by this or any other international body.
Thus the requirements established in Articles 46(1)(c) and 47(d) of
the Convention are deemed to have been met.
Characterization of the facts alleged
Commission considers that the arguments on the alleged violation of the
right to humane treatment, personal liberty, life, and judicial
protection, formulated by petitioners, could tend to establish a violation
of the rights guaranteed at Articles 4, 5, 7, 8, and 25, in relation to
Article 1(1) of the Convention.
Commission concludes that it is competent to examine the claim submitted
by the petitioners regarding the alleged violation of Articles 4, 5, 7, 8,
and 25, in conjunction with Article 1(1) of the Convention, and that the
case is admissible as per the requirements established in Articles 46 and
47 of the American Convention.
on the foregoing arguments of fact and of law, and without prejudging on
the merits of the matter,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible in relation to the alleged
violation of Articles 4, 5, 7, 8, 25, and 1(1) of the American Convention.
To notify the Colombian State and petitioners of this decision.
To initiate the merits phase.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., October 10,
Claudio Grossman, President; Juan E. Méndez, First Vice-President;
Marta Altolaguirre, Second Vice-President; Commissioners Robert K.
Goldman, Peter Laurie, and Julio Prado Vallejo.
Note EE/DH/055890 from the General Office for Special Matters of
November 28, 1998.
Note EE/DH/000981 from the General Office for Special Matters of
January 10, 1997.
Note EE/DH/055890 from the General Office for Special Matters of
November 28, 1998.
I/A Court H.R., Case of Velásquez Rodríguez, Judgment of July 29,
1988, para. 63.
Note EE/DH Nº 055890 of the General Office for Special Matters of
November 28, 1998.
Report Nº 84/98, Annual Report of the IACHR 1998, Volume I, para. 41.
“The military tribunals do not guarantee that the right to a
fair trial will be observed since they do not have the independence
that is a condition sine qua non
for this right to be exercised. Moreover, their rulings have
frequently been biased and have failed to punish members of the
security forces whose serious involvement in serious human rights
violations has been established.”
I/A Court H.R., Case of Durand and Ugarte, Judgment of August 16,
2000, para. 117.