EMIRO OMEARA CARRASCAL, GUILLERMO OMEARA MIRAVAL AND
On May 4, 1995, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition lodged by the
Colombian Commission of Jurists [Comisión
Colombiana de Juristas] (hereinafter
“the petitioners”) alleging the extrajudicial execution of Mr. Noel
Emiro Omeara Carrascal, the subsequent forced disappearance and
extrajudicial execution of his son Guillermo Omeara Miraval, and a
physical assault upon Héctor Alvarez Sánchez, allegedly perpetrated by
agents of the State in the Municipality of Aguachica, Department of
Cesar, Republic of Colombia (hereinafter the “State”, the
“Colombian State” or “Colombia”) between January 28 and October
During the course of the proceeding, the petitioners alleged the
State’s responsibility for violations of the right to life, the right
to humane treatment, the right to personal liberty, the right to a fair
trial and the right to judicial protection, recognized in articles 4, 5,
7, 8, and 25 of the American Convention on Human Rights (hereinafter
“the American Convention”), all in relation to the State’s general
obligation to respect the rights recognized in that instrument and
ensure their free and full exercise.
The petitioners also alleged that the petition lodged with the
IACHR qualified for the exception to the rule requiring exhaustion of
local remedies, provided for in Article 46(2) of the American
The State, for its part, reported that the judicial proceedings
instituted to conduct an inquiry into the death of Noel Emiro Omeara
Carrascal and his son Guillermo Omeara Miraval were still at the
preliminary phase. The
State did not supply any information concerning Mr. Héctor Alvarez Sánchez.
Having examined the positions of the parties, the Commission
concluded that it was competent to take up this complaint and that the
petition was admissible under articles 46 and 47 of the American
PROCESSING BY THE COMMISSION
On May 10, 1995, the Commission began the initial processing of
the petition, which became number 11.482, all in accordance with the
provisions of the Rules of Procedure in effect until April 30, 2001.
It forwarded the pertinent parts of the complaint to the
Colombian State, specifying that it had 90 days in which to submit
The State submitted its response on August 9, 1995. The pertinent parts of that response were forwarded to the
petitioners for their observations.
The petitioners supplied additional information on September 25,
1995, which was forwarded to the State.
The latter’s observations were presented on December 22, 1995,
and forwarded to the petitioners. The
petitioners supplied more information on March 19, 1996, which was sent
to the State. On May 15,
1996, the State requested an extension, which the Commission promptly
granted. On July 31, 1996, the State requested yet another extension,
which the Commission also granted.
On September 26, 1996, the State submitted its observations,
which were forwarded to the petitioners.
On March 3, 1997, the State presented more information, which was
sent to the petitioners. On
March 20, 1997, the Commission again asked the petitioners to furnish
more information. The
petitioners submitted additional information on April 24, 1997, which
was sent to the State. The latter requested an extension on July 22,
1997, which the Commission duly granted.
On January 12, 1998, the State submitted additional information,
which was forwarded to the petitioners.
On May 22, 1998, the petitioners submitted more information,
which was sent to the State. The
State presented its observations on September 10, 1998, which were
forwarded to the petitioners. On
October 6, 1998, during its 100th regular session, the
Commission held a hearing on this case, with both parties in attendance.
On March 2, 1999, during its 102nd regular session,
the Commission held a second hearing on this matter, with both parties
participating. In the
course of the hearing, the petitioners presented additional information,
which was forwarded to the State in writing.
On March 27, 2000, the petitioners notified the IACHR that the
Center for Justice and International Law (CEJIL) would join the case as
co-petitioner. On July 27, 2001, the Commission wrote the petitioners to
request additional information from them.
THE PARTIES’ POSITIONS
The petitioners’ position
The petitioners allege that on January 28, 1994, Mr. Noel Emiro
Omeara Carrascal and Mr. José Erminson Sepúlveda Saravia, Clerk at the
Mayor’s Office in the Municipality of Aguachica, were assaulted by a
group of armed men in civilian dress.
Mr. Sepúlveda Saravia was killed in the attack and Mr. Omeara
Carrascal was gravely wounded.
On August 26, 1994, Mr. Noel Emiro Omeara Carrascal died from the
wounds sustained in the assault. The
petitioners allege that prior to his death, Mr. Omeara Carrascal told
his son, Guillermo Omeara Miraval, that the assailants were members of
the Army’s Anti-Extorsion and Kidnapping Unit (UNASE).
They further allege that Guillermo Omeara Miraval conducted a
series of inquiries and was able to ascertain the identity of the UNASE
members allegedly responsible for the attack, who were stationed at the
Aguachica military base.
The petitioners allege that on August 27, 1994, Mr. Guillermo
Omeara Miraval was stopped by a group of heavily armed men wearing
camouflage uniforms. He was
forced into a blue pickup truck with a canvas cover.
The petitioners further allege that a number of people from the
area witnessed the incident. The
petitioners also state that Guillermo Omeara Miraval has not been seen
Guillermo Omeara Miraval’s next of kin allegedly informed
police authorities and the Attorney General of the forced disappearance
of Guillermo Omeara Miraval, and named members of the UNASE group based
at Aguachica as the responsible parties.
The petitioners’ account states that the body of Guillermo
Omeara Miraval was found on September 23, 1994, at the “La Granja”
ranch located 10 kilometers from the Municipality of San Martín.
The petitioners allege that the body showed signs of torture.
They also report that a flag was found next to his body bearing
the acronym AGC, which is that of a paramilitary group active in the
municipalities of San Martín and Aguachica.
They report that members of the UNASE had allegedly worked with
paramilitary groups active in the region.
According to the allegations made, on October 21, 1994, while Mr.
Héctor Alvarez Sánchez, the father-in-law of Guillermo Omeara Miraval,
was at home, he was fired upon by men on a motorcycle.
They assert that the bullet wounds he sustained left him
semi-paralyzed and virtually unable to speak.
The petition states that the family of Guillermo Omeara Miraval
was forced to leave the Municipality of Aguachica because of multiple
threats and acts of harassment.
Based on these allegations, the petitioners are asking the
Commission to declare the State responsible for violation of the rights
to life, the right to humane treatment, the right to personal liberty,
and the right to judicial protection, and violation of its generic
obligation to respect the rights protected under the American Convention
and ensure their free and full exercise.
16. As for the investigation of the facts by the judicial authorities, the petitioners point out that the Aguachica Regional Prosecutor opened the inquiry into the death of Mr. Noel Emiro Omeara Carrascal on July 28, 1994. On November 8, 1994, the investigation was handed over to the Office of the Regional Prosecutor of Valledupar. They then learned, via the note that the State submitted to the IACHR on January 5, 1998, that the Office of the Attorney General of the Nation did not have Mr. Noel Emiro Omeara Carrascal listed as a homicide victim. Therefore, it was not until 1998 that the Barranquilla Regional Bureau of Prosecutor’s Offices ordered the preliminary investigation.
In the case of the death of Guillermo Omeara Miraval, the
petitioners cited the information that the State supplied to the
Commission during the processing of this petition, and expressed their
disagreement given the scanty and confusing information supplied by the
State on his death.
As for the assault and the injuries sustained by Mr. Héctor
Alvarez Sánchez, the petitioners point out that the investigation is
being conducted by the Medellín Regional Prosecutor’s Office, but
they have no idea where that investigation is headed since the Colombian
State has not given them any information. The petitioners also informed
the Commission that the V Brigade of the National Army had allegedly
instituted a criminal inquiry against the members of the UNASE. However, they said that they did not know what the outcome of
that investigation was.
As to the question of the admissibility requirements provided for
in the American Convention, the petitioners argue that given the
unwarranted delay in the investigation, the present case must qualify
for the exception that Article 46(2)(c) of the American Convention
provides for the rule requiring exhaustion of local remedies. They argue that more than
six years after the events occurred, the preliminary investigation is
still underway, without result. The petitioners cite the case-law of the Inter-American
Court, to the effect that an investigation must be undertaken in a
serious manner, and not as a mere formality preordained to be
The State’s position
In its original response, the State alleged that the facts
denounced were being investigated and that measures were being taken to
combat armed groups operating in the municipalities of San Martín and
It later reported that the Barranquilla Regional Prosecutor’s
Office had instituted the investigation into the death of Guillermo
Omeara Miraval on September 6, 1994.
For reasons of jurisdiction, it was later transferred to the
Aguachica Investigative Section, where the investigation ended up on
September 30, 1994. The Aguachica Investigative Unit ordered that the
investigation should be handed over to the Valledupar Regional
Prosecutor’s Office, on the grounds that this was a crime against
public safety and security. On
October 19, 1994, Investigative Office Nº 28 of the Valledupar Anti-Extorsion
and Kidnapping Unit referred the investigation to the Valledupar
Regional Prosecutor’s Office on the grounds that this was a crime of
kidnapping for extortion. That Office decided to hand the investigation over to the
Barranquilla Regional Prosecutor’s Office on March 28, 1995, which
finally ordered the preliminary proceedings.
The State maintains that on September 27, 1995, the National
Bureau of Investigations assigned investigation of the case to the Human
Rights Unit. On November 3,
1995, the Human Rights Unit became seized of the investigation and
ordered that evidence be taken.
In its communication of December 12, 1995, the State reported
that the Barranquilla Regional Prosecutor’s Office was not conducting
any investigation into the death of Noel Emiro Omeara Carrascal.
It stated that the lack of information on the status of the
inquiries into the death of Mr. Omeara Carrascal and Mr. Alvarez Sánchez
was not because internal remedies did not exist or were ineffective;
instead, its contention was that the friends or relatives of the victims
had an obligation to bring facts that might be considered crimes to the
attention of the judicial authorities.
On November 28, 1998, the State reiterated that Noel Emiro Omeara
Carrascal was not listed as a homicide victim with the Barranquilla
Regional Prosecutor’s Office; because of that, no investigation into
his death had been conducted.
At the hearing held on March 2, 1999, during the Commission’s
102nd regular session, the State asserted that it did not
have any information about the injuries that Héctor Alvarez Sánchez
had sustained and that the only investigation being conducted was the
one looking into the death of Noel Emiro Omeara Carrascal and his son.
The State asserted that State agents were not implicated in the
case and that the judicial inquiries conducted at the local level had
not produced any evidence of the involvement of State agents in the
violations alleged by the petitioners.
ANALYSIS ON COMPETENCE AND ADMISSIBILITY
Under Article 44 of the American Convention, the petitioners are
authorized to file complaints with the IACHR.
The alleged victims named in the present petition are individuals
whose Convention-recognized rights Colombia undertook to respect and
ensure. Colombia has been a
State Party to the American Convention since July 31, 1973, the date on
which the respective instrument of ratification was deposited.
Therefore, the Commission is competent ratione
personae to examine this petition.
The Commission is competent ratione
loci to hear this petition, because it alleges violations of rights
protected under the American Convention, said to have occurred within
the territory of a State party to that instrument.
The Commission is competent ratione
temporis because the obligation to respect and ensure the rights
protected by the American Convention was already binding upon the State
on the date on which the events alleged in the petition occurred.
Finally, the Commission is competent ratione
materiae, because the petition denounces violations of human rights
protected by the American Convention.
Exhaustion of local remedies
The State reported that investigations were underway in Colombia
to clarify the facts denounced in the present petition.
For their part, the petitioners allege that the exception to the
rule set forth in Article 46(1)(a) of the American Convention, requiring
exhaustion of local remedies, should apply to this petition by reason of
the unwarranted delay in rendering final judgment, provided for in
Article 46(2)(c) of the Convention.
The Commission notes that the deaths of Noel Emiro Omeara
Carrascal and his son Guillermo Omeara Miraval are still under
investigation, even though they were killed more than seven years ago.
The Commission also notes that the State did not provide any
information concerning investigations into the assault on Mr. Héctor
Alvarez Sánchez; the Commission therefore assumes that said
investigation, too, is unresolved.
As the Inter-American Court has held, the State is the party that
has to invoke the rule requiring failure to exhaust local remedies and
may, therefore, waive it either expressly or by implication.
The Court has also held that in order to be timely, the objection
that domestic remedies have not been exhausted should be raised during
the first stages of the proceeding or, to the contrary, it will be
presumed that the interested State has waived its use tacitly.
In this regard, the Court has also held that merely reporting
information on the progress of the proceedings before the domestic
courts and the State’s willingness to comply with the judgments they
deliver, is not the same as filing an express objection claiming a
failure to exhaust local remedies; failure to do so expressly must
therefore be regarded as a tacit waiver of its right.
In the present case, the Commission observes that the State did
not file at the appropriate time an objection claiming failure to
exhaust local remedies. Therefore,
the conclusion is that it tacitly waived its right to file such
objection. Moreover, the
State did not challenge the petitioners’ allegations regarding
application of the exception provided for in Article 46(2)(c) of the
American Convention. Therefore,
the requirement stipulated in Article 46(1)(a) of the Convention does
not apply in the present case.
Time period for submitting a petition
In the petition under study, the IACHR has established the
Colombian State’s tacit waiver of its right to file the objection
asserting failure to exhaust the remedies under domestic law, so that
Article 46(1)(b) of the American Convention does not apply.
However, the treaty-based requirements regarding exhaustion of
local remedies and the rule requiring that the petition be submitted
within six months of the date on which the petitioner was notified of
the final judgment, are two separate matters. Therefore, the Commission must determine whether the petition
under study was lodged within a reasonable period. The Commission notes that the original petition was lodged on
May 4, 1995, which, given the circumstances of the present petition, is
Duplication of proceedings
and res judicata
There is nothing in the case file to indicate that this matter is
pending with another international arrangement for settlement or that it
is substantially the same as one previously studied by the Commission or
by another international organization.
The IACHR therefore concludes that the exceptions allowed under
Article 46(1)(c) and in Article 47(d) of the American Convention do not
Characterization of the facts alleged
If true, the facts reported by the petitioners concerning alleged
violations of the right to life, the right to humane treatment, the
right to personal liberty and the right to judicial protection of Noel
Emiro Omeara Carrascal, Guillermo Omeara Miraval and Héctor Alvarez Sánchez,
could tend to establish violations of the rights recognized in articles
4, 5, 7, 8 and 25 of the Convention, in relation to Article 1(1)
The Inter-American Commission concludes that it is competent to
take up the complaint filed by the petitioners concerning the alleged
violation of articles 4, 5, 7, 8 and 25 of the Convention, in relation
to Article 1(1) thereof, and that the case is admissible under articles
46 and 47 of the American Convention.
Based on these arguments of fact and of law, and without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS