DEL CARMEN ÁLVAREZ BLANCO ET AL.
On May 5, 1997, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) received a
petition lodged by the Asociación
de Familiares de Detenidos y Desaparecidos de Colombia (ASFADDES),
the Federación Latinoamericana de
Asociaciones de Familiares de Detenidos Desaparecidos (FEDEFAM), and
the Comisión Colombiana de
Juristas (CCJ) (hereinafter “the petitioners”) in which they
allege the responsibility of state agents of the Republic of Colombia
(hereinafter “the State” or “the Colombian State”) for the
torture and disappearance of José del Carmen Álvarez Blanco, Fermín
Agresor Moreno, Víctor Manuel Argel Hernández, Genor Arrieta Lara,
Cristóbal Manuel Arroyo Blanco, Diomédes Barrera Orozco, Urías
Barrera Orozco, José Encarnación Barrera Orozco (minor), Ricardo
Manuel Bohórquez Pastrana, Jorge Fermín Calle Hernández, Jorge Arturo
Castro Galindo, Ovidio Carmona Suárez, Genaro Benito Calderón Ramos,
Juan Miguel Cruz Ruiz, Ariel Euclides Díaz Delgado, Camilo Antonio
Durango Moreno, Juan Luis Escobar Duarte, José Leonel Escobar Duarte, César
Augusto Espinoza Pulgarín, Wilson Flórez Fuentes, Andrés Manuel Flórez
Altamira, Santiago Manuel Gonzáles López, Carmelo Guerra Pestana,
Miguel Ángel Gutiérrez Arrieta, Lucio Miguel Hurzula Sotelo, Ángel
Benito Jiménez Julio, Manuel Ángel López Cuadrado, Jorge Martínez
Pacheco, Mario Melo, Carlos Melo, Juan Mesa Serrano, Pedro Antonio
Mercado Montes, Manuel de Jesús Montes Martínez (minor), Luis Carlos Pérez
Ricardo, Miguel Pérez, Raúl Antonio Pérez Martínez, Benito José Pérez
Pedroza, Euclides Ricardo Pérez, Andrés Manuel Pedroza Jiménez, José
Manuel Petro Hernández, Luis Miguel Salgado Barrios, Célimo Urrutia
Hurtado, and Eduardo Zapata, in the context of a paramilitary incursion
perpetrated on January 14, 1990, in the locality of Pueblo Bello,
municipality of Turbo, department of Antioquia.
The petitioners alleged that the State was responsible for
violating the rights to life, humane treatment, and personal liberty
enshrined in Articles 4, 5, and 7 of the American Convention on Human
Rights (hereinafter “the American Convention” or “the
Convention”), as well as the judicial guarantees and protections
provided for at Articles 8 and 25 of the Convention, to the detriment of
the victims and their next-of-kin, and the generic obligation to respect
and ensure the rights protected therein.
As regards the admissibility of the claim, the petitioners
alleged that the exceptions to the requirement to exhaust domestic
remedies set out at Articles 46(2)(a) and 46(2)(c) of the Convention
apply in the instant case. The
State alleged that the participation of state agents in the incidents
alleged had not been proven, and that the local courts had acted
lawfully; accordingly, in its view, no right enshrined in the American
Convention was violated.
After analyzing the parties’ positions, the Commission
concluded that it is competent to take cognizance of the case brought by
petitioners, and that the case is admissible, under Articles 46 and 47
of the American Convention.
PROCESSING BEFORE THE COMMISSION
On February 12, 1990, the Commission received an urgent action
reporting the disappearance of 43 peasant farmers in Pueblo Bello.
On that same day, under procedural number 10.566, the IACHR
approached the State to request information, under the Regulations in
force until April 30, 2001. The State answered on May 10, 1990 and the
response was forwarded to the complainants on June 26, 1990 with 30 days
to present observations. On December 6, 1990, the IACHR received information from
another source on the matter, which was sent to the State for
observations. The State
presented its response on August 16, 1991.
The Commission sought to communicate with the original
complainant by written communications dated June 9, 1993, and January
18, 1994, unsuccessfully. On
January 3, 1997, the Commission requested up-to-date information on the
matter from the State.
5. On May 5, 1997, the Commission received a petition filed by ASFADDES, FEDEFAM, and the CCJ, regarding the same facts, alleging violations of the American Convention, and it began a new procedure under number 11.748. On May 7, 1997, the Commission informed the Colombian State that it had opened case 11.748, and gave it 90 days to answer the petition. On May 20, 1997, the State communicated with the IACHR in order to refer to the procedure initiated under number 10.566; in response, on May 28, 1997, the Commission informed both parties that the facts that are the subject of this matter would be consolidated and processed under file 11.748. On June 12, 1997, the petitioners provided additional information, which was sent to the State for observations on June 24, 1997.
On February 24, 1998, during the 98th session, a hearing was held
in which the petitioners submitted additional information.
On March 3, 1998, the Commission informed both parties that it
was placing itself at their disposal to seek a friendly settlement, and
gave them 30 days to respond. The
State sought an extension, which was granted on April 16, 1998.
On March 31, 2000, the Commission informed the state that the
Center for Justice and International Law had joined the proceeding as
On October 10, 2000, during its 108th session, the Commission
held a hearing with the participation of both parties.
On November 3, 2000, the Commission forwarded the information
presented by the petitioners in the hearing to the State and gave them
30 days to submit observations. The
State submitted its observations on December 5, 2000.
THE PARTIES’ POSITIONS
The petitioners allege that in the evening of January 14, 1990,
approximately 60 armed men, wearing uniforms, arrived at the district of
Pueblo Bello, municipality of Turbo, department of Antioquia, in two
trucks and forced their way into several homes and an evangelical church
in search of its inhabitants. The
armed men took several persons and forced them to lie face down in the
main plaza, after which they selected 43 peasant farmers, bound and
gagged them, and took them; they were never again seen alive.
Before leaving in the direction of San Pablo de Urabá, the armed
men set three buildings ablaze and stated to the inhabitants of Pueblo
Bello: “this is so you’ll respect ‘los Tangueros,’” presumably
referring to the paramilitary group directed at that time by Fidel Castaño,
from the farm known as “Las Tangas,” situated on the banks of the
Sinú river, in the department of Córdoba.
The information provided indicates that the paramilitary vehicles
passed through two checkpoints guarded by the Vélez and Cóndor
Battalions, without being detained or questioned. The petitioners allege
that the 43 peasants forcibly taken were taken to the Santa Mónica farm
in the department of Córdoba, where then-paramilitary leader Fidel
Castaño was awaiting them. They
state that the peasants were interrogated and brutally tortured there,
their veins punctured, their eyes perforated, their ears sawed off,
their genitalia mutilated. Finally they were executed, one by one.
On the issue of the responsibility of state agents, the
petitioners allege first that the paramilitary offensive resulted from
Army accusations against the peasants of Pueblo Bello. They allege that
the members of the Army interpreted the passive attitude assumed by
these peasants in response to an incident in which cattle was stolen
from Fidel Castaño as a symbol of their alleged affiliation with the
guerrillas. In addition, they allege that the authorities posted at the
military bases and checkpoints at San Pedro de Urabá not only permitted
the transit of the paramilitary vehicles, but also collaborated directly
with the illegal armed group. According to the petitioners’
allegations, once the incident was over, members of the community of
Pueblo Bello went to the military bases to request information as to the
whereabouts of the persons disappeared, and allegedly later became
targets of acts of intimidation.
The petitioners allege that in April 1990, 24 bodies were exhumed
from the Las Tangas farm, six of which were identified
as peasant farmers from Pueblo Bello.
All the other victims presumably remained disappeared. They
allege that even though there are indicia suggesting the location of the
other corpses, the steps needed to perform new exhumations had not been
As for the investigation by the judicial authorities, the
petitioners allege that the activity of the Public Order jurisdiction in
Medellín and of the Office of the Regional Prosecutor (Fiscalía
Regional Delegada) did not lead to the total clarification of the
facts nor to punishment of the persons responsible. They argue that even
though the criminal liability of 13 persons was verified, as set out in
the bases of the judgment handed down May 26, 1997, by the Regional
Court (Juzgado Regional) of Medellín, only one of them was found
guilty (José Aníbal Rodríguez Urquijo) and three were imprisoned (José
Aníbal Rodríguez Urquijo, Héctor de Jesús Narváez, and Pedro Hernán
Ozaga Pantoja). They allege that the participation of other persons
accused of being involved was not looked into, and that the steps needed
to recover the victims’ corpses were not taken.
Seven years after the facts, the liability of several civilians
for the death of six of the victims was established, but the violations
committed to the detriment of the rest continue in impunity, and their
bodies disappeared. Several of the accused were tried in
absentia and were never arrested. The petitioners also allege that
the trials held in the military criminal courts violate the principles
of impartiality and independence safeguarded by the American Convention.
The petitioners allege, therefore, that the Colombian State is
responsible for violations of Articles 4, 5, 7, 8, and 25 of the
American Convention. They argue that the State should make reparation
for these violations by punishing the persons responsible, locating the
remains of the victims and identifying them, and paying compensation to
With respect to the admissibility of the claim, they argue that
in this case, the admissibility requirement set forth at Article 46(1)
of the American Convention does not apply, by application of the
exceptions to the requirement of prior exhaustion of domestic remedies,
provided for at Articles 46(2)(a) and 46(2)(c).
They allege that the State has been tardy in establishing the
death of 37 of the victims before the Colombian ordinary justice system.
Moreover, they allege that the remedy used to clarify the responsibility
of the Army members allegedly involved in the fact–the military
criminal justice system–is not adequate in the terms of Article
46(2)(a) of the American Convention.
The State’s position
As regards the alleged participation of state agents in the facts
that are the subject matter of this case, the State argues that the
members of the Army allegedly involved were acquitted by decisions
handed down in the regular courts, the military criminal courts, and the
disciplinary regime. The
State is of the view that these decisions are reasoned and conclude that
there was no link between the state agents and the acts committed by the
paramilitary groups. They allege that the petitioners’ assertions are
based on evidence produced before the local courts that has been taken
out of context.
The State alleges that the internal judicial mechanisms aimed at
clarifying the facts and judging the persons responsible have worked and
that they continue in the effort to locate the bodies of the other
Concretely, it presents information on the proceeding in which
the Office of Regional Prosecutors in Medellín handed down an
indictment of 13 civilians on November 10, 1995. In the same act, it was
decided to investigate three others accused of forming armed groups,
which was later confirmed by the Office of the Prosecutor before the Tribunal Nacional. The
State notes that in March and April 1995, exhumation work was done in
which some of the victims were located and identified. On
May 26, 1997, the Regional Court of Medellín found Fidel Castaño Gil
and nine other persons guilty and sentenced them to 12 to 30 years in
prison, and the payment of fines for the crimes of multiple homicide,
conspiracy, kidnapping, illegal possession of arms for exclusive use of
the official forces, and violation of Decree 1194 of 1997.
The verdict was appealed and on December 30, 1997, the Tribunal
Nacional nullified the proceeding with respect to those victims from
Pueblo Bello whose remains had not been found.
The State indicates that this judgment modified the penalties and
ordered an investigation into co-conspirators not included in the
original indictment. It
alleges that Mr. José Rodríguez Urquijo accepted the charges of
kidnapping for extortion, aggravated homicide, and formation of
paramilitary groups in this trial, and was sentenced to 22 years in
prison after pleading guilty. The
case was referred to the Supreme Court of Justice on a motion for
As regards the trial of Army members for their alleged
participation in the facts that are the subject matter of the instant
case, the State refers to four decisions of the military criminal
courts. First, on January 21, 1992, two resolutions of acquittal were
handed down. On September 11, 1995, the General Command of the Colombian
Armed Forces issued a writ of prohibition in which it ruled that there
were not sufficient grounds to formally open a criminal investigation. Finally, on April 14, 1998, the National Army stated its
position and argued that associating the Armed Forces with the facts is
based merely on assumptions and generic accusations, not any concrete
evidence. Therefore, it
concludes that given the results of the judicial and disciplinary
investigations, liability is attributable exclusively to the
paramilitary group, and not to members of the Army.
The State also reports that on November 27, 1991, the Office of
the Delegate Procurator for Human Rights decided to archive two
disciplinary proceedings against two Army officers, and to open another
investigation into the possible participation of other state agents.
On March 10, 1999, charges were filed against an Army lieutenant,
but on July 31, 2000, the Office of the Delegate Procurator for Human
Rights handed down a ruling absolving the accused of liability.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
The petitioners are authorized by Article 44 of the American
Convention to submit complaints to the IACHR. The petition identifies as
the alleged victims individual persons with respect to whom Colombia
undertook to respect and ensure the rights enshrined in the American
Convention. As regards the
State, the Commission notes that Colombia has been a State Party to the
American Convention since July 31, 1973, when the respective instrument
of ratification was deposited. Accordingly, the Commission is competent ratione
personae to examine the petition.
The Commission is competent ratione
loci to take cognizance of the petition insofar as it alleges
violations of rights protected in the American Convention in the
territory of a State party to that treaty. The IACHR is competent ratione
temporis since the obligation to respect and ensure the rights
protected in the American Convention was already in force for the State
at the time when the incidents are alleged to have occurred. Finally,
the Commission is competent ratione
materiae because the petition alleges violations of human rights
protected by the American Convention.
Exhaustion of domestic remedies and time period for submitting
Article 46(1) of the American Convention establishes prior
exhaustion of domestic remedies in the internal jurisdiction of a state
as a requirement for a claim to be admissible.
In the instant matter, the petitioners allege that the trial of
the state agents allegedly involved before the military courts has
deprived the victims and their next-of-kin of access to an adequate and
effective remedy. In
addition, they allege that there has been an unwarranted delay in
clarifying the facts, locating the remains of 37 of the victims, and
determining the liability of all the civilians involved.
Accordingly, they argue that on this occasion the admissibility
requirement at Article 46(1) of the Convention does not apply, by
application of the exceptions to the requirement of prior exhaustion of
domestic remedies set forth in Article 46(2)(a) and (c). The State, for
its part, submitted information on the results obtained by the military
and ordinary jurisdictions and on the investigations still pending.
Article 46(2) of the Convention provides that the requirement of
prior exhaustion of domestic remedies does not apply when:
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.
the Inter-American Court has established, whenever a state alleges that
the petitioner has failed to exhaust domestic remedies, it has the
burden of showing that the remedies that have not been exhausted are
“adequate” to address the infringement alleged, i.e. that these
remedies operate suitably within the domestic legal system to protect
the legal interests that were violated.
The Commission will address the situation of prior exhaustion in
the instant matter first with respect to the cases in the military
criminal courts, and second with respect to the prospects for the cases
before the ordinary courts and the investigations pending.
The Commission has repeatedly indicated that the military courts
are not an appropriate forum and therefore do not provide an adequate
remedy for investigating, trying, or punishing human rights violations
enshrined in the American Convention, and allegedly committed by members
of the official forces, or with their collaboration or acquiescence.
In addition, the Inter-American Court has confirmed that the
military criminal justice system is adequate solely for trying members
of the military for crimes or offenses which by their very nature are
detrimental to legal interests particular to military order.
Trial before the military courts of members of the Army allegedly
involved in the massacre, by act or omission, is not an adequate remedy
for determining their responsibility in the serious violations alleged,
in the terms of Article 46(1) of the American Convention.
As regards the activity of the ordinary courts, the information
provided by both parties indicates that on May 26, 1997, the Regional
Court of Medellín, in a first instance proceeding, convicted
paramilitary leader Castaño Gil and nine other persons, imposing prison
sentences ranging from 12 to 30 years, and ordering that they pay fines
for the crimes of multiple homicide, conspiracy, kidnapping, illegal
possession of arms that are for exclusive use of the official forces,
and violation of decree 1194 of 1997.
It should be clarified that more than five years after that
verdict, only three of the ten convicted (José Aníbal Rodríguez
Urquijo, Héctor de Jesús Narváez, and Pedro Hernán Ozaga Pantoja)
are imprisoned. The other
arrest warrants have yet to be executed.
On December 30, 1997, the Tribunal
Nacional decreed the nullity of the proceedings with respect to
those victims from Pueblo Bello whose remains had not been found, and
ordered that the other participants not included in the original
indictment be investigated. This
investigation remains open, 12 years after the facts. As a general rule,
a criminal investigation should be performed promptly to protect the
interests of the victims, to preserve the evidence, and even to
safeguard the rights of any person who, in the context of the
investigation, is considered a suspect.
The failure to pursue investigations into several of the
participants in the facts of this case, together with the failure to
execute the arrest warrant for the paramilitary leader and other persons
convicted in absentia, are
expressions of delay and of the scant prospects for this remedy to be
effective for the purposes of the requirement set out at Article 46(2)
of the American Convention.
As the Inter-American Court has noted, while every criminal
investigation must meet a series of legal requirements, the rule of
prior exhaustion of domestic remedies must not lead to a halt or delay
that would render international action on behalf of the victims
Therefore, given the characteristics of this case, the Commission
considers that the exceptions provided for at Article 46(2)(a) and (c)
of the American Convention apply, accordingly, the requirement to
exhaust domestic remedies does not apply. Nor does the six-months
requirement at Article 46(1)(b) of the Convention, as the petition was
presented within the reasonable time referred to in Article 32(2) of its
Rules of Procedure for cases in which there has been no firm decision
prior to lodging the petition.
All that remains to be noted is that invoking the exceptions to
the prior exhaustion requirement of Article 46(2) of the Convention is
closely linked to the determination of the possible violation of certain
rights set forth therein, such as the guarantees of access to justice.
Nonetheless, Article 46(2), by its nature and purpose, is a rule that
stands autonomously from the substantive provisions of the Convention.
Therefore, the determination as to whether the exceptions to the
rule of prior exhaustion of domestic remedies provided for at Article
46(2) are applicable to the case in question should be done prior to and
separate from the analysis of the merits, since it depends on a
different standard of appreciation from that used to determine
violations of Articles 8 and 25 of the Convention. It should be
clarified that the causes and effects that have impeded the exhaustion
of domestic remedies in the instant case will be analyzed, as relevant,
in the Report the Commission adopts on the merits of the dispute, to
determine whether indeed violations of the American Convention have
Duplication of procedures and res
It does not appear from the file that the subject matter of the
petition is pending before any other procedure for international
settlement, or that it is substantially the same as a petition already
examined by this or any other international body. Therefore, the
requirements set forth at Articles 46(1)(c) and 47(d) of the Convention
have been met.
Characterization of the facts alleged
The Commission considers that the petitioners’ allegations of
violations of the right to life, the right to humane treatment, and the
right to personal liberty, as well as the rights to a fair trial and to
judicial protections, in the matter addressed herein, tend to establish
violations of the rights of the victims and their next-of-kin, enshrined
in Articles 1(1), 4, 5, 7, 8, and 25 of the American Convention. From
the information provided by the parties, it appears that two of the
victims, Manuel de Jesús Montes Martínez and José Encarnación
Barrera Orozco, were minors; therefore, when deciding on the merits of
the case, the IACHR shall determine whether it is appropriate to examine
the international obligations of the State with respect to Article 19 of
the American Convention.
The Commission concludes that it is competent to examine the
claim presented by the petitioners on the alleged violation of the right
to life, humane treatment, and personal liberty of the 43 peasant
farmers from Pueblo Bello, and on the judicial protection due to the
victims and their next-of-kin.
In light of the arguments of fact and law set forth above, and
without prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the instant case admissible, with respect to Articles
1(1), 4, 5, 7, 8, and 25 of the American Convention.
To notify the State and petitioner of this decision.
To initiate the proceedings on the merits.
To publish this decision and include it in the Annual Report, to
be presented 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 9th,
2002. (Signed): Juan E. Méndez,
President; Marta Altolaguirre, First Vice-President; José Zalaquett,
Second Vice-President; and Commissioners Robert K. Goldman, Julio Prado
Vallejo, Clare K. Roberts, and Susana Villarán de la Puente.
The bodies found apparently belonged to Andrés Manuel Pedroza, Juan
Luis Escobar Duarte, Leonel Escobar Duarte, Ovidio Carmona Suárez,
Ricardo Bohórquez, and Jorge David Martínez.
Communication from the Ministry of Foreign Affairs of the Republic
of Colombia, December 5, 2000.
The Commission learned that on March 8, 2001, the Chamber of
Criminal Cassation of the Supreme Court of Justice decided not to
set aside the ruling challenged by Pedro Hernán Ozaga Pantoja,
Judgment of the Chamber of Criminal Cassation of the Supreme Court
of Justice of the Republic of Colombia, March 8, 2001.
Communication from the Ministry of Foreign Affairs of the Republic
of Colombia, December 5, 2000.
I/A Court H.R., Velásquez
Rodríguez Case, Judgment of July 29, 1988, para. 64.
IACHR, Third Report on the
Human Rights Situation in Colombia (1999), p. 175; Second
Report on the Situation of Human Rights in Colombia (1993), p.
246; Report on the Situation
of Human Rights in Brazil (1997), pp. 40-42.
I/A Court H.R., Durand and
Ugarte Case, Judgment of August 16, 2000, para. 117.
See Admissibility Report Nº 57/00, IACHR
Annual Report 2000, para. 44.
I/A Court H.R., Velásquez
Rodríguez Case, Preliminary Objections, Judgment of June 26,
1987, para. 93.