|
REPORT
N° 33/01
CASE 12.250
MAPIRIPÁN MASSACRE
COLOMBIA
February 22, 2001
I.
SUMMARY
1.
On October 6, 1999, Colectivo de Abogados “José Alvear
Restrepo” and the Center for Justice and International Law (CEJIL)
lodged a petition with the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) against the Republic
of Colombia (hereinafter “the State”), in which they allege that
between July 15 and 20, 1997 approximately one hundred members of the
paramilitary group known as the Autodefensas Unidas de Colombia [United Self-Defense Groups of
Colombia] (hereinafter “the AUC”) deprived of liberty, tortured, and
massacred approximately 49 civilians, after which they mutilated their
corpses and threw the remains into the River Guaviare, in the Municipality
of Mapiripán, Department of Meta, with the collaboration, by deed or
omission, of members of the Colombian National Army.
2.
The petitioners allege that members of the Colombian National Army
participated both actively and passively, in coordination with the AUC, in
planning and carrying out the massacre, and that, therefore, the State is
directly responsible for the violation of the rights to life, personal
liberty, fair trial, freedom of conscience, and judicial protection
enshrined in Articles 4, 5, 7, 8(1), and 25 of the American Convention on
Human Rights (hereinafter “the American Convention”), as well as for
failing in its obligation to ensure respect for the rights recognized in
said Treaty.
3.
The State held that the domestic judicial proceedings instituted to
clarify the events that occurred at Mapiripán and to try those
responsible are still underway. Accordingly,
it requested that the Commission find the case inadmissible on grounds of
non-exhaustion of domestic remedies pursuant to Article 46(1)(a) of the
American Convention. In
reply, the petitioners argued that the case qualifies for the exceptions
from the requirement to exhaust domestic remedies provided in Article
46(2) of that Treaty because certain members of the Army alleged to be
involved in the events were being prosecuted by the military criminal
courts.
4.
Based on its examination of the positions of the parties, the
Commission finds that it is competent to take up the petitioners’
complaint and that the case is admissible pursuant to the provisions
contained in Articles 46 and 47 of the American Convention.
II.
PROCESSING BY THE COMMISSION
5. The Commission
acknowledged receipt of the petition on October 13, 1999.
The petitioners presented supplementary information to the original
petition on October 22 and 27, 1999, November 8, 1999, and January 31,
2000. On March 7, 2000 the Commission entered the case as Nº
12.250 and transmitted the pertinent portions of the petition to the
Colombian State, requesting that it present information within 90 days.
6.
The State submitted its reply on June 9.
In notes dated June 14 and 30, 2000, respectively, the State
presented additional information, which was duly forwarded to the
petitioners for their comments. The petitioners submitted their comments to the State’s
reply on July 17, 2000. The
Commission conveyed to the State the petitioners’ reply on July 19,
2000, asking that it present its comments within 30 days.
On August 19, 2000, the State requested an extension, which was
duly granted.
7.
On October 10, 2000, in the framework of the 108th session of the
IACHR, a hearing of the case was held with both parties in attendance.
At the hearing the petitioners presented documentary evidence,
which was transmitted to the State. The
State presented its comments on November 28, 2000.
II.
POSITIONS OF THE
PARTIES
A.
The
petitioners
8.
The petitioners allege that around the middle of July 1997 members
of the Colombian National Army, including senior officers in charge of the
military units garrisoned in the area, deliberately allowed close to one
hundred members of the AUC to enter the area of the municipality of
Mapiripán, Department of El Meta, by air and river, and mobilized the
military forces to other localities, in order to enable the paramilitary
forces to have complete freedom to terrorize and massacre the civilian
population.
9.
The petitioners’ briefs, supported by official documents, state
that at the time of the events the area of Mapiripán was under the
control and protection of the Joaquín Paris Battalion of San José del
Guaviare, commanded by Colonel Carlos Eduardo Avila Beltrán, assigned to
the Seventh Brigade under the command of General Jaime Humberto Uscátegui
Ramírez. Despite the
critical status of public order in the area, from early to mid-July
1997 the Seventh Brigade supervised the mobilization of the Joaquín Paris
Battalion to the localities of Calamar, El Retorno, and Puerto Concordia.
As a result, the residents of San José del Guaviare and Mapiripán
were left without military protection.
10.
The petitioners allege that members of the AUC, aboard a series of
irregular flights from Neclocí and Apartadó, landed in San José del
Guaviare on July 12, 1997. The
passengers, together with their equipment, were picked up on the airport
runway in the style of a military operation, without being subjected to
any type of control, despite the permanent presence there of a police
counter-narcotics base.
It should be mentioned that one of the aircraft was allegedly
carrying cargo intended for Army personnel.
11.
On their way from San José del Guaviare to Mapiripán, the
paramilitary group is alleged to have passed through troop training areas
of the Second Mobile Brigade commanded by Colonel Lino Hernando Sánchez
Prado, to be precise the area known as “El Barrancón”, without being
challenged or stopped by the military forces.
The paramilitaries eventually entered Mapiripán on July 15, 1997
by land and river.
12.
The petitioners allege that over the five days that followed the
paramilitaries terrorized the local residents and brutally tortured and
murdered members of the community. After being dismembered, disemboweled and beheaded, the
corpses of the victims were thrown into the River Guaviare. As a result, the judicial authorities allegedly were
prevented from establishing the exact number of the deceased.
13.
The petitioners allege that General Uscátegui Ramírez was
informed of these brutal acts by Official Communication 2919 of July 15,
1997.
However, he is alleged to have instructed the wording of the
aforementioned official communication to be altered, and ordered, that
same day, the mobilization of the remaining companies of Joaquín Paris
Battalion to Calamar, despite the fact that there was allegedly no
confirmation of public disturbances of public order in said municipality.
The Battalion is said to have returned to Mapiripán on July 23,
1997, after the massacres had been carried out and the paramilitary group
had left the area.
14.
The petitioners hold that these acts constitute serious violations
of Articles 4, 5, and 7 of the American Convention and that the State is
responsible for the consequences of the acts perpetrated by members of the
AUC in coordination and cooperation with the National Army. To be exact,
they said:
The
Mapiripán massacre succeeded thanks to a coordinated effort between
members of the United Self-Defense Groups of Colombia and members of the
Second Mobile Brigade of the Seventh Brigade of the National Army. All the acts carried out by that paramilitary group were
possible thanks to the active participation and omissions of the
commissioned and noncommissioned officers who have been implicated by the
investigation.
The
petitioners consider that the conduct adopted by the Army personnel was
not confined to their failure to defend the liberty, physical integrity
and life of the residents of Mapiripán, but that their participation by
deliberate action and by omission was part of a preconceived plan to
enable the massacre to proceed.
15.
As to the clarification of the massacre in the domestic
jurisdiction, the petitioners say that on July 23, 1997, a preliminary
enquiry was opened by the Twelfth Government Prosecutor’s Office
Assigned to the Regional Courts, based in San José del Guaviare. On July 21, 1998 the Human Rights Unit of the Prosecutor
General’s Office issued a warrant for the arrest of Sergeant Juan Carlos
Gamarra Polo and Noncommissioned Officer José Miller Ureña Díaz as
author and coauthor of the offences of conspiracy, terrorism, aggravated
homicide, and aggravated abduction. On
May 20, 1999 the Human Rights Unit issued a warrant for the arrest of
General Jaime Humberto Uscátegui Ramírez for the offences of homicide,
aggravated abduction, and falsification of a public document.
16.
On June 2, 1999, the Office of Commander of the National Army
presented a petition challenging the jurisdiction of the Human Rights
Unit, inasmuch as it considered that the charges against the
aforementioned officers and noncommissioned officers should be
investigated by the military criminal courts.
On June 21, 1999 the Human Rights Unit rejected the petition and
referred the record to the Tribunal of Judicial Discipline of the Superior
Council of the Judicature.
17.
On August 18, 1999, following an incidental proceeding on
impediment and another on recusation of two of its members, the Superior
Council of the Judicature decided to award to the military courts
jurisdiction over the prosecution of General Uscátegui Ramírez and
Lieutenant Colonel Orozco Castro. It
further decided to refer the cases against Colonel Sánchez Prado and
Sergeants Gamarra Polo and Ureña Díaz to the ordinary jurisdiction.
The petitioners consider that this situation infringes upon the
rights to a fair trial and judicial protection provided in Articles 8 and
25 of the American Convention.
18.
With respect to fulfillment of the admissibility requirements set
forth in the American Convention, regarding exhaustion of the remedies
under domestic law, the petitioners say that,
By
awarding the military criminal courts competence to take cognizance of
serious human rights violations, the Superior Council of the Judicature
places us in the position described in Article 46(2)(b) of the Convention
[..] regarding prevention of the injured party to have access to and
exhaust the remedies under domestic law [..]
In
other words, the petitioners have argued that the exception to the
requirement of prior exhaustion of domestic remedies provided in the
Treaty is applicable. The
petitioners further assert that military criminal justice has not
constituted an effective remedy in the investigation, prosecution and
punishment of the alleged culprits.
19.
As to the arguments of the State concerning failure to meet the
requirement of prior exhaustion of domestic remedies (see infra),
the petitioners again invoked the exception provided in Article 46(2)(b)
of the American Convention.
In that regard they mentioned that the Constitutional Court of
Colombia itself has prescribed the limits of competence of the military
courts and has found that said courts are a special judicial recourse that
may not be used in cases concerning serious offences, such as crimes
against humanity. The
petitioners claim that in the instant case the decision of the Superior
Council of the Judicature to settle the conflict of jurisdiction advanced
by the military courts in favor of the latter is in breach of the
standards set by the jurisprudence of the Constitutional Court. They are
of the opinion that,
The
military courts prove an inadequate recourse, that is, they lack the
requisite suitability to uphold in a judicial proceeding the rights [..]
of the victims and to grant them or their families the necessary
protection and just reparation.
Therefore,
they consider that in the instant case they are exempt from the
requirement to exhaust the remedies under domestic law prior to resorting
to the regional system of protection provided in the American Convention.
B.
The State
20.
The State holds that the complaint presented by the petitioners
does not meet the requirements set forth in Article 46(1) of the American
Convention, inasmuch as “the remedies under Colombian law designed to
ensure that justice is done in the instant case are still in progress.”
21.
The State has presented information to the effect that the
Specialized Circuit Criminal Courts of Bogotá are currently conducting
public prosecution proceedings against Carlos Castaño Gil and Luis
Hernando Méndez Bedoya for the alleged crimes of aggravated homicide,
aggravated abduction, terrorism, and conspiracy; Julio Enrique Flórez
González, charged with carrying out the crimes of aggravated homicide,
aggravated abduction, terrorism and conspiracy; Sergeant, Second Class
Juan Carlos Gamarra Polo, charged with conspiracy and participation in the
crimes of aggravated homicide, aggravated abduction and terrorism;
Sergeant José Miller Ureña, charged with being an accessory during the
fact to the crimes of conspiracy, aggravated homicide, aggravated
abduction, and terrorism; José Vicente Giraldo, charged with conspiracy;
Juan Manuel Ortíz Matamoros, charged with falsification of a private
document and participation in conspiracy; Helio Ernesto Buitrago León,
charged with participation in conspiracy; and Jorge Luis Almeira Quiróz,
charged with falsification of
a public document. The State
also said that the Specialized Circuit Criminal Courts of Villavicencio
charged Lieutenant Colonel Lino Hernando Sánchez Prado.
According to the information furnished by the State, all the
forenamed are allegedly detained, with the exception of Juan Carlos
Gamarra Polo and Carlos Castaño Gil.
The State has also mentioned that there has been a stay of
proceedings to enable the Human Rights Unit to continue the investigation
in order to identify and detain the rest of the alleged culprits.
22.
As for the investigation of retired Brigadier General Jaime
Humberto Uscátegui Ramírez and Lieutenant Colonel Hernando Orozco Castro
for what the State terms “alleged failure to carry out military
duties,” the latter reported that that case was assigned to the
Commander of the Air Force as Special Judge of First Instance, since the
Commander of the National Army, who was originally presiding, declared
that he was prevented from continuing to hear the case by reason of a
testimony presented at the Attorney-General’s Office.
On July 26, 2000 the Commander of the Air Force issued a warrant
for the arrest of Lieutenant Colonel Hernán Orozco Castro and revoked the
parole pending criminal sentencing granted to retired Brigadier General
Uscátegui Ramírez, who is currently allegedly detained at the
headquarters of the Thirteenth Brigade.
23.
As regards the assertions of the petitioners regarding the
suitability of the military criminal courts as an adequate and effective
recourse in the instant case, in its communication of June 14, 2000, the
State said that,
When
the 1991 Constitution entered into force new and strict controls were
placed on the military courts designed to prevent proceedings from ending
in decisions that run contrary to the Constitution and the law, or that
might be described as biased. Indeed,
the Justice Department is involved as a matter obligation throughout the
process, and has the power to request the taking of evidence, to adduce
such evidence as it deems pertinent, to challenge decisions, and to
present written arguments [..] Furthermore, the inclusion of a civilian
party in a criminal proceeding under this jurisdiction is now recognized
as being wholly valid.
In
its communication of November 28, 2000, the State added that,
This
jurisdiction is a respectful and obedient institution of the Colombian
State, which, furthermore, as the Honorable Commission is aware, has
undergone significant reforms designed to strengthen it and which are
already being applied in proceedings.
The
State also said that the military courts are only hearing the proceedings
brought against two of the members of the Army implicated in the events in
question, based on a decision of the Superior Council of the Judicature.
In this connection it said that,
By
no means is there a policy to benefit members of the country’s Armed
Forces, but, rather, for legal reasons adopted by competent bodies in
accordance with Colombian law, it was decided to pursue investigations of
some implicated parties in the framework of a jurisdiction different to
that which befitted other alleged culprits.
The
State added that there still remain remedies to be pursued under domestic
law for “allaying the petitioners’ concerns regarding the legitimacy
of the examination of the case by the military courts.”
Specifically, the State referred to a writ for protection [acción
de tutela] presented by the petitioners regarding the compatibility of
the decision of the Superior Council of the Judicature in the case of
retired Brigadier General Uscátegui and Lieutenant Colonel Orozco with
the jurisprudence of the Constitutional Court concerning the scope of the
jurisdiction of the military courts, which, after being disallowed by the
Chamber of Criminal Cassation of the Supreme Court of Justice is pending
review by the Constitutional Court, on the initiative of the National
Ombudsman.
24.
The State also provided information on cases related to the facts
in the instant case that are currently being examined in administrative
and disciplinary proceedings. In
connection with the latter jurisdiction, it should be mentioned that
Brigadier General Uscátegui Ramírez was punished with suspension from
duties.
25.
The State maintains that it is in compliance with its international
obligations inasmuch as internal investigations are proceeding designed to
clarify the events that occurred at Mapiripán and to punish the culprits,
as a result of which concrete progress has been made in the identification
and indictment of some implicated parties, including three members of the
National Army.
The State refrained from advancing any other observations regarding
the facts alleged by the petitioners on the merits of the matter.
I.
ANALYSIS
OF COMPETENCE AND ADMISSIBILITY
A.
Competence
of the Commission
26.
The Commission has prima
facie competence to take up the complaint lodged by the petitioners.
The facts alleged in the petition occurred when the duty to respect
and ensure the rights recognized in the Convention was in force for the
Colombian State.
27.
The petition describes alleged violations of the American
Convention committed against individuals who were under the jurisdiction
of the State at the time of the events.
With respect to the number and identity of the victims, the
petition identifies Messrs. José Ronald Valencia and Sinaí Blanco as
members of a group of approximately 49 civilians who died as a result of
the events alleged in the instant case.
In this regard, it should be mentioned that official documents
contained in the record confirm that the AUC claimed responsibility for
the murder of 49 people during the massacre perpetrated in Mapiripán
between July 15 and 20, 1997, and that the judicial authorities have
allegedly been unable to recover and, therefore, identify the corpses of
the victims,
which were allegedly mutilated and thrown into the River Guaviare.
The State has not advanced any objections or clarifications in that
respect. In view of these
circumstances, the Commission finds that it is competent to examine the
admissibility of the alleged violations of the American Convention
committed in Mapiripán between July 15 and 20, 1997, in connection with
José Ronald Valencia, Sinaí Blanco, and approximately 47 other as yet
unidentified persons.
B.
Admissibility
Requirements
1.
Exhaustion of domestic remedies and deadline for lodging the
petition
28.
The State has requested that the Commission find the case
inadmissible on the grounds that decisions are pending on domestic
remedies. The petitioners,
for their part, have alleged that the prosecution of some of the culprits
by the military courts deprives the victims of access to an adequate and
effective remedy. Accordingly,
they have requested that the case be found admissible under the exceptions
set forth in Article 46(2) of the American Convention.
29.
Article 46(2) of the Convention provides that the requirement of
prior exhaustion of domestic remedies does not apply when:
a. 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;
b. the party alleging violation of
his rights has been denied access to the remedies under domestic law or
has been prevented from exhausting them; or
c.
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
30.
As the Inter-American Court has found, a State claiming
non-exhaustion of domestic remedies on the part of the petitioner has the
burden of showing that the remedies that remain to be exhausted are
“adequate” for repairing the alleged violation, in other words that
they are suitable to address an infringement of a legal right.
31.
The Commission deems it appropriate to refer to the circumstances
surrounding exhaustion of domestic remedies in the instant case, first in
connection with the cases referred to the military criminal courts by
decision of the Council of the Judicature, and second in relation to the
prospects for the effectiveness of the cases before the ordinary courts
and the outstanding investigations.
32.
The Commission notes that in the instant case the Human Rights Unit
of the Prosecutor General’s Office found that there were sufficient
grounds to bring charges against Brigadier General Uscátegui Ramírez and
Lieutenant Colonel Orozco for coparticipation in the crimes of abduction
and homicide.
However, following the conflict of jurisdiction advanced by the
Commander of the Army, the case against these two senior officers was
transferred to the military courts under the charges of alleged failure to
carry out military duties and falsification of a public document.
It has come to the attention of the Commission that on February 13,
2001 retired Brigadier General Uscátegui was sentenced to 40 months
imprisonment for breach of duty by omission and acquitted of the charge of
falsification of a public document, in addition to which all proceedings
against him concerning the accusations of murder, torture, membership of
paramilitary groups, and abduction for purposes of extortion were
dismissed. Further,
Lieutenant Colonel Orozco was sentenced to 38 months imprisonment for the
crime of failure to carry out military duties.
33.
The Commission has held on several occasions to the effect that the
military courts are not an appropriate forum and, therefore, do not
provide an adequate remedy to investigate, prosecute and punish violations
of human rights enshrined in the American Convention allegedly committed
by the security forces, or with their cooperation or acquiescence.
Furthermore, the Inter-American Court has recently determined that
the military courts are only an adequate venue to try military personnel
accused of crimes or offences, which, by their nature, harm legally
protected military interests.
34.
In the instant case, the transfer to the military courts of the
case against the senior military officers allegedly involved in the
massacre, coupled with the reduction of the charges originally brought in
the ordinary jurisdiction, suggest that the families of the victims have
been denied access to an adequate remedy to investigate, prosecute and
punish those responsible for the serious acts alleged by the petitioners,
in accordance with Article 46(2) of the American Convention and the
jurisprudence of the Inter-American Court.
35.
As to the measures adopted by the ordinary courts, the information
furnished by both parties indicates that arrest warrants have been issued
for a number of persons under investigation, including known leaders of
the AUC and members of the Army, some of whom are allegedly being
prosecuted. However, as the
petitioners have mentioned and the State has acknowledged, there are
arrest warrants that have not been served more than three years after the
serious crimes alleged in the petition occurred, in spite of concerning
persons who are in daily contact with the press and in some cases, as is
public knowledge, with government officials.
Furthermore, the investigation aimed at detaining the rest of the
approximately one hundred members of the AUC that took part in carrying
out the massacre remains open.
36.
As a general rule, a criminal investigation should be carried out
promptly to protect the interests of the victims, preserve evidence, and
furthermore to safeguard the rights of such persons as might be regarded
as suspects in the investigation. The
Commission regards highly the efforts of the Human Rights Unit of the
Prosecutor General’s Office; however, for the purposes of the
requirement provided for in Article 46(2) of the American Convention, the
failure to detain the vast majority of the participants in the facts of
the instant case, coupled with the failure to capture the ringleader and
alleged co-architect of the massacre, are an expression of delay and of
the unlikelihood that this remedy will be effective.
As the Inter-American Court has held, although all criminal
investigations must meet a series of legal requirements, the rule of prior
exhaustion must never lead to a halt or delay that would render
international action in support of the defenseless victim ineffective.
37.
Therefore, given the characteristics of the instant case, the
Commission finds that the exception provided in Article 46(2)(c) of the
American Convention is applicable, and, therefore, that the requirements
prescribed in the American Convention on exhaustion of domestic remedies
and, consequently, the six-month deadline for lodging the petition, are
not applicable.
38.
All that remains is to mention that invocation of the exceptions to
the rule of exhaustion of domestic remedies provided in Article 46(2) of
the Convention is closely associated with examination of the existence of
possible violations of certain rights enshrined therein, such as the
guarantees of access to justice. However,
Article 46(2), by its nature and purpose, is a self-contained provision vis
á vis the substantive provisions contained in the Convention.
Therefore, to determine whether or not the exceptions to the rule
of exhaustion of domestic remedies provided in said provision are
applicable to a particular case requires an examination carried out in
advance of and apart from the analysis of the merits of the case, since it
depends on a different standard of appreciation to that used to establish
whether or not there has been a violation of Articles 8 and 25 of the
Convention. It should be
clarified that the causes and effects that have prevented exhaustion of
domestic remedies in the instant case will be examined, if pertinent, in
the report that the IACHR adopts on the merits of the dispute, in order to
determine if they do indeed constitute violations of the American
Convention.
2. Duplication of
proceedings and res judicata
39.
According to the record, the subject matter of the petition is not
pending in another international proceeding for settlement, nor is the
petition substantially the same as one previously studied by the
Commission or by another international organization.
Accordingly, the requirements set forth in Articles 46(1)(c) and
47(d) have also been met.
3.
Nature of the alleged violations
40.
The Commission finds that the allegations of the petitioners
regarding the violations of the rights to life, humane treatment, and
personal liberty allegedly committed against approximately 49 persons in
the area of Mapiripán from July 15 to 20, 1997, as well as the delay in
the investigation and the failure to prosecute and effectively punish
those responsible, could constitute a violation of the rights recognized
in Articles 4, 5, 7, 8, and 25, pursuant to Article 1(1) of the American
Convention. The Commission
finds that the petition meets the requirements set forth in Articles 47(b)
and (c) of the American Convention.
CONCLUSIONS
41.
The Commission finds that it is competent to take up the complaint
lodged by the petitioners and that the case is admissible in accordance
with the requirements provided in Articles 46 and 47 of the American
Convention.
42.
Based on the factual and legal arguments given above, and without
prejudging the merits of the matter,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1.
To declare the instant case admissible as regards the alleged
violation of Articles 4, 5, 7, 8(1), 25 and 1(1) of the American
Convention to the detriment of José Ronald Valencia, Sinaí Blanco, and
approximately 47 other, as yet unidentified, persons in the area of
Mapiripán between July 15 and 20, 1997.
2. To notify the
Colombian State and the petitioners of this decision.
3. To continue
with its analysis of the merits of the case; and
4. To publish this
decision and to 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
Washington, D.C., on this the 22nd day of February, 2001.
Signed: Claudio Grossman, Chairman; Juan E. Méndez, First
Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Robert K. Goldman,
Peter Laurie, Julio Prado Vallejo, and Hélio Bicudo, Commission members.
|
