On July 16, 1991, the Colombian Commission of Jurists
(hereinafter "the petitioners") submitted a petition against
the Republic of Colombia (hereinafter "the State" or "the
Colombian State") alleging violations of Articles 7 and 8 of the
American Convention on Human Rights (hereinafter the
"Convention" or the "American Convention") and
subsequently of Articles 4, 5, and 25, to the detriment of James Zapata
Valencia and José Heriberto Ramírez Llanos (hereinafter "the
Petitioners alleged that the victims were detained and
disappeared on March 22, 1988 by individuals who identified themselves
as members of the F-2 intelligence group of the National Police.
Later, they noted that the alleged victims re-appeared dead and
with signs of torture, in violation of Articles 4 and 5 of the American
Convention. Petitioners argue that the corresponding investigation,
which has been ongoing for more than 10 years, has failed to be
effective, and they argue that the Colombian State is in breach of its
obligation to respect and guarantee the rights protected in the American
The State alleges that domestic remedies have not been exhausted
and that the case is therefore inadmissible.
As for the considerations on the merits, it argues that it has
not been judicially proven that State agents participated in the
Based on its analysis of the allegations of fact and law, the
Commission concluded that it was competent to hear the claim and that
the case meets the requirements established at Article 47 of the
In addition, it decided to defer its decision on the issue of
compliance with the requirements of Article 46 until its decision on the
alleged violations of Articles 8 and 25, along with the merits.
PROCESSING BEFORE THE COMMISSION
On July 23, 1991, the Commission opened Case
N° 10916 and forwarded the pertinent parts of the petition to the
State, giving it 90 days to submit information.
The State submitted its answer on October 31, 1991.
On January 21, 1992, the petitioners submitted the corresponding
observations, whose pertinent parts were forwarded to the State.
On March 6, 1992, the State submitted new observations.
The petitioners submitted additional information on July 13,
1993, and on June 16, 1994.
The State submitted its observations by note of November 15,
petitioner submitted additional observations on February 3, November 23,
and December 15, 1996.
On October 17, 1996, the Commission placed itself at the disposal
of the parties to reach a friendly settlement.
On November 19, the State requested an extension for submitting
its answer, which was granted.
By communication of December 15, the petitioners formulated a
series of considerations on the measures which should, in their view, be
adopted to make a friendly settlement possible.
On January 2, 1997, the State expressed that "for the time
being, it would not appear viable to begin to pursue a friendly
settlement, considering that the criminal investigation has yet to
A commitment was made, however, to request that the record be
forwarded to the human rights unit of the Office of the Public
Prosecutor, "as a display of its determination to address
On January 15, 1997, it submitted further information that sets
down in writing the interest of the Office of the Public Prosecutor (Fiscalía
General) to "make an effort to reach a friendly settlement that
would be translated into the assignment of the criminal investigation
already under way in this case to the Human Rights Unit of the Office of
the Public Prosecutor, which would be understood by the Commission ...
as reflecting a positive attitude aimed at giving judicial impetus to
The Commission called the parties to a hearing, which was held on
March 6, 1997. On March 7, 1997, the Commission turned to the State to
request that it adopt a series of measures to support the work of the
Human Rights Unit of the Office of the Public Prosecutor in its
investigation of this case, in the context of possibly initiating a
friendly settlement process.
On August 4, 1997, the State forwarded the Commission a copy of
the decision from the Council of State, Contentious-Administrative
Chamber, Third Section, which declared that the action for damages
brought by the relatives of Mr. James Zapata Valencia was time-barred.
By note of October 7, 1997, during the 97th session, the
petitioners requested that the Commission consider the attempt to reach
a friendly settlement of the matter to have concluded, since the
"criminal investigations [..] continue as initially alleged."
On April 23, 1999, at the request of the Commission, petitioners
submitted additional information on the case, which was duly forwarded
to the State for its observations.
POSITIONS OF THE PARTIES
The position of the petitioners
As for the factual allegations, the petitioners argue that on
March 22, 1988, the victims were detained while having lunch at the
“La Basconia” restaurant in the city of Manizales, department of
Caldas, where they were last seen alive.
They allege that according to witness statements, the individuals
who detained them identified themselves as members of the F-2
intelligence group of the National Police (hereinafter "F-2").
They point out that the alleged victims had been subject to acts
of intimidation by members of the National Army and of the F-2 for
having belonged to the M-19 guerrilla movement. Messrs. Zapata Valencia
and Ramírez Llanos returned to civilian life in 1986, having availed
themselves of the general pardon granted by the State in 1985.
On March 25, three days after this incident, the newspaper La
Patria published a news item on the finding of two unidentified corpses
at the “Taparca” farm, in the neighboring municipality of Palestina.
The family members of James Zapata identified the victims based
on the published photography, and took the initiative to prompt the
The petitioner note that later, National Police agents Néstor
Martínez, Oscar Gutiérrez Giraldo, and Jorge Enrique García were
implicated in the criminal case based on photo identification by one of
Nonetheless, immediately after the preliminary inquiry, and
without taking any more evidence, the Public Order Judge of Medellín
ordered that these police officers be released.
Petitioners allege that for more than four years the
investigation was under the Public Order jurisdiction (known as
“Regional Justice”), with no criminal charges filed, and without any
In October 1993, the Regional Prosecutor of Medellín requested
that the investigation of the case be closed due to lack of evidence and
September 5, 1994, however, the Regional Prosecutor of Medellín decided
to re-open the preliminary inquiry stage.
Petitioners allege that this decision brought the investigation
back to square one, and that the evidence brought forward through the
efforts of the victims' next-of-kin was given no consideration
The petitioners allege that the fact that the State has decided
to transfer the investigation to the Human Rights Unit as "an
effort to address impunity" constitutes recognition of State
responsibility for a violation of Article 25 of the American Convention.
As regards the disciplinary and contentious-administrative
proceedings, they note that on August 9, 1993, the Office of the
Procurator General of the Nation (Procuraduría General de la Nación) declared that the
disciplinary proceeding was barred by statute of limitations, once the
evidence on behalf of the agents investigated was presented, without any
new evidence having been collected.
On April 14, 1994, the Third Section, Administrative-Contentious
Chamber, of the Council of State affirmed that the
contentious-administrative claim brought by the relatives of James
Zapata Valencia was time-barred.
In brief, the petitioners allege that on March 22, 1988, State
agents perpetrated the forced disappearance and extrajudicial execution
of Messrs. Zapata Valencia and Ramírez Llanos, in violation of Articles
4, 5, 7, and 8 of the American Convention.
They also consider the delay and lack of effectiveness displayed
in the investigation undertaken to amount to a violation of Article 25
of the American Convention.
As for the admissibility of this case, the petitioners allege
that there has been an unjustified delay in furthering the
investigation, which has precluded the effectiveness of domestic
remedies as a means of clarifying the facts and trying those
They argue that the exception to the exhaustion requirement
provided for at Article 46(2)(c) of the American Convention is
applicable to the case, given the time that has transpired as from the
alleged violation of the right to life, without any formal charges being
note that even though the investigation was transferred to the Human
Rights Unit in January 1997, it continues to be in its preliminary
The position of the State
The State argues that domestic remedies have yet to be exhausted.
The State reported that in March 1992 the Public Order Court of
Medellín ordered the formal criminal proceeding be initiated and called
on five of the persons allegedly involved to come forward, yet they
failed to do so.
Consequently, arrest warrants were issued for them.
In addition, it was reported that on September 5, 1994, the
Regional Office of the Public Prosecutor for Medellín issued a ruling
limiting the investigation, benefiting defendants Néstor Martínez,
Oscar Gutiérrez, and Jorge García, since the statements by the
eyewitnesses led to the conclusion that these persons were not involved.
The State argues that the individuals identified by the persons
who participated in the photo identification were different from those
alleged to be responsible.
In January 1997, the investigation was transferred to the Human
Rights Unit of the Office of the General Prosecutor of the Nation, and
the Delegate Procurator for
the Public Ministry (Procuraduría
Delegada para el Ministerio Público) ordered that special agency
4831 be constituted to clarify the case.
As regards the alleged violation of the right to life, the State
argues that it has not been shown in any domestic court that its agents
have participated in the alleged disappearance.
In its opinion, the fact that the persons who allegedly detained
Zapata Valencia and Ramírez Llanos claimed to be members of the F-2
does not necessarily mean that they were police officers.
It notes that this is a strategy commonly used by criminal bands
for the purpose of preventing their victims from putting up resistance.
ANALYSIS ON JURISDICTION AND ADMISSIBILITY
Jurisdiction of the Commission
The Commission has jurisdiction to examine the petition under
facts alleged took place under the jurisdiction of the State when the
obligation to respect and ensure the rights established in the
Convention were already in force for the Colombian State.
The Commission will now analyze whether the requirements set
forth in Articles 46 and 47 of the American Convention have been met.
Requirements for the admissibility of a petition
Exhaustion of domestic remedies and timeliness
The State alleged that the case is inadmissible because domestic
remedies have yet to be exhausted, specifically the criminal process.
Petitioners argue that domestic remedies have been ineffective
and that the examination of the case by the domestic courts falls within
the exception provided for at Article 46(2)(c) of the Convention.
In their view the State has failed to provide adequate judicial
protection, or to ensure access to justice for the next-of-kin of the
victims, within a reasonable time, as required by Articles 8 and 25 of
The Commission considers that in this case the requirement of
exhaustion of domestic remedies is closely linked to the merits.
In this respect, the Inter-American Court of Human Rights
(hereinafter "the Court") has noted that
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.
Given the characteristics of the issues under study, the
Commission has decided to defer its decision as to whether the exception
provided for in Article 46(2)(c) is applicable to the present case until
its pronouncement on the merits, particularly with respect to the
judicial protection afforded by the State in this case.
As regards the requirement related to the deadline for submitting
the claim, the Commission considers that it is linked to the exhaustion
of domestic remedies. Therefore, the determination as to whether the
deadline established in Article 46(1)(b) of the American Convention
applies in this case must also be deferred.
Duplication of proceedings and res
The Commission understands that the subject of the petition is
not pending before another international proceeding for settlement, nor
is it the same or substantially the same as a petition already examined
by this or another international body.
Therefore, the requirements established in Articles 46(1)(c) and
47(d) are also met.
Characterization of the facts alleged
The Commission considers that the allegations of the petitioners
refer to facts which, if proven, would constitute a colorable claim of
violation of the rights protected in Articles 4, 5, 7, 8 and 25 of the
As the petition is not manifestly groundless or out of order, the
Commission considers the requirements established in Articles 47(b) and
(c) to have been met.
The Commission concludes that it has jurisdiction to hear this
case, and that it is admissible, pursuant to Article 47 of the
In addition, it decides to defer its decision on the issue of
whether the requirements of Article 46 are met until it issues its
opinion on the alleged violations of Articles 8 and 25, along with the
Based on the arguments of fact and law set forth above, and
without pre-judging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible.
To send this Report to the Colombian State and to the petitioner.
To continue with the analysis of the merits.
To place itself at the disposal of the parties, once again, with
a view to reaching a friendly settlement based on respect for the rights
protected in the American Convention, and to invite them to make a
statement on this possibility, and
To publish this decision and include it in its Annual Report to
the General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., September
27, 1999. (Signed):
Robert K. Goldman, Chairman; Hélio Bicudo, First Vice-Chairman;
Claudio Grossman, Second Vice-Chairman; Jean Joseph Exumé, and Carlos
Ayala Corao, Commissioners.
* Commissioner Alvaro Tirado Mejía, of Colombian nationality, did not participate in the discussion and decision of this Report, pursuant to the provision of Article 19(2)(a) of the Commission's Regulations.
should consider, as a necessary condition, acknowledgment of State
responsibility; (2) adoption by the State of measures to guarantee
fair compensation to the relatives of the two youths for the pain
and suffering caused them by the disappearance and later execution;
(3) measures to guarantee that impunity be overcome and that make it
viable to prosecute and punish the perpetrators of the crimes
committed against James Zapata and Heriberto Ramírez; (4) finally,
that it consider including the creation of a mechanism to adequately
monitor the measures adopted...."
Communication from the petitioners of December 15, 1996.
from the Director General for Special Affairs (e) of January 2,
from the Director General for Special Affairs of January 15, 1997.
The Commission specifically requested: (1) the designation of
additional Public Ministry agents for cases being processed by the
Human Rights Unit; (2) support for the security agencies; (3) the
cooperation of the Office of the Procurator General of the Nation (Procuraduría
General de la Nación) in evaluating the evidentiary elements
that make it possible to clarify the facts and punish the persons
Petitioner alleged that only one of the Commission's recommendations
had been adopted--support for the security agencies--and that there
was no information on the effective designation of special agents
from the Public Ministry. Communication
from petitioner of October 7, 1997.
The request and the response by the Administration are in the record
before the Commission.
Communication of October 31, 1991, from the Director General of
Public Affairs of the Ministry of Foreign Relations, Republic of
Colombia ratified the American Convention on Human Rights on July
I/A Court HR, Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, para.