REPORT
Nº 62/01 I
SUMMARY 1.
On May 20, 1996, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) received a petition
filed by Corporación Colectivo de Abogados “José Alvear
Restrepo” (hereinafter “the petitioners”) against the Republic
of Colombia (hereinafter “the State”, “the State of Colombia”, or
“Colombia”) alleging that on April 7, 1991, members of the army
collaborated with a group of armed plain-clothesmen in the execution of
Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María
Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César
Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario
Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy
Tusarma Salazar, and Hugo Cedeño Lozano (hereinafter “the victims”)
in the municipality of Riofrío, Department of Valle del Cauca, Colombia,
and in the concealment of the massacre. 2.
The petitioners alleged that the State is responsible for
violations of the rights to life, humane treatment, and a fair trial
established in Articles 4, 5, 8, and 25 of the American Convention on
Human Rights (hereinafter “the American Convention”). The State
presented information on the investigation of the events and the
proceedings instituted in domestic courts (mainly within military
jurisdiction) against members of the army alleged to be responsible. As to
the admissibility of the case, the petitioners alleged that judicial
remedies made available by the State do not meet the standards established
in the American Convention with respect to judicial protection and that
therefore the exceptions to the exhaustion of domestic remedies permitted
pursuant to Article 46(2) of the American Convention apply. 3.
After analyzing the allegations of the parties, the Commission
declared the case admissible and found that the State of Colombia was
responsible for violating the right to life (Article 4) in the cases of
Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María
Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César
Ladino Ramírez, Lucely Colorado, Celso Mario Molina, Rita Edelia de
Molina, Ricardo Molina, Freddy Molina, and Hugo Cedeño Lozano; the right
to life in conjunction with the rights of the child (Article 19) in the
case of Dora Estela Gaviria Ladino and Luz Edelsy Tusarma Salazar; the
right to humane treatment (Article 5) in the case of Hugo Cedeño Lozano,
Miguel Ladino, Cenaida Ladino, Ricardo Molina Solarte, and Celso Mario
Molina Sauza, and the rights to a fair trial and judicial protection
(Articles 8 and 25) in conjunction with Article 1(1) of the American
Convention in the case of the victims and their families. II.
PROCESSING BY THE COMMISSION
4.
On July 26, 1996, the Commission opened case 11.654 and forwarded
the relevant sections of the complaint to the State of Colombia, granting
it a period of 90-days in which to present information. The State gave its
response on September 26, 1996, and this was duly forwarded to the
petitioners. On December 9, 1996, the petitioners presented their
observations, and these in turn were conveyed to the State. 5.
On March 3, 1997, during the Commission’s 95th regular
session, a hearing attended by both parties was held. During the hearing,
the petitioners presented additional information, which was duly forwarded
to the State and the possibility of seeking a friendly settlement was
discussed. 6.
On August 7 and October 7, 1997, the petitioners furnished further
information, which was duly forwarded to the State. In a note dated
October 15, 1997, the Commission placed itself at the disposal of the
parties with a view to finding a friendly settlement in accordance with
Articles 48(1)(f) of the Convention and Articles 45(1) and (2) of its
Regulations. 7.
On October 8, 1997, a second hearing attended by both parties was
held during the Commission’s 97th regular session. At the
hearing the petitioners furnished additional information in writing, which
was forwarded to the State of Colombia. On November 11, 1997, the State
requested an extension of 30 days to present its comments, and the
extension was granted. 8.
On January 10, 1998, the petitioners gave their response to the
Commission’s offer of a possible friendly settlement of the matter and
their response was forwarded to the State. On March 31, 1998, the State
requested an extension in which to prepare its response. The petitioners
provided further information to the Commission that was forwarded to the
State of Colombia on September 10, 1998. On September 28, 1998, the State
furnished additional information. On October 7, 1998, the petitioners
asked the Commission to consider the attempt to seek a friendly settlement
concluded in light of the State’s failure to respond to their proposal. III.
POSITIONS OF THE PARTIES
A.
Position of the petitioners
9.
The petitioners allege that agents of the State sponsored,
permitted, and covered up with impunity the extrajudicial executions of
Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María
Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César
Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario
Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy
Tusarma Salazar, and Hugo Cedeño Lozano. 10.
Specifically, they allege that on October 5, 1993, at approximately
5:30 in the morning, a group of armed men, some of whom were wearing
military uniforms, appeared in the village of El Bosque, in the district
of Portugal de Piedras, Municipality of Riofrío, Valle del Cauca.
When they got there, they forcibly removed a number of residents from
their homes and took them to the school in the village of San Juan
Bosco for questioning on the whereabouts of the members of armed
dissident groups that were supposed to frequent the area. 11.
They maintain that most of the residents were released, but that
the following individuals, Miguel Enrique Ladino Largo, Miguel Antonio
Ladino Ramírez, María Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez,
Julio César Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino,
Celso Mario Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina,
Luz Edelsy Tusarma Salazar, and Hugo Cedeño Lozano were taken to the home
of Mr. Javier Ladino at approximately 8:30 a.m. where they were tortured
and, at approximately 10:00 a.m. that same day, were executed. 12.
The petitioners allege that the armed men remained in the vicinity
until approximately 10:30 a.m. when members of the Urban Antiterrorist
Squad (PAU) of the Palacé Battalion of the Third Army Brigade arrived.
The army personnel are said to have simulated an armed engagement with the
occupants of the house, who had by then been killed. To accomplish this,
they fired several rounds of bullets and used explosive devices.
Immediately afterwards, they changed the scene of the crime around, moving
the bodies and placing different types of firearms next to the victims. 13.
The petitioners affirm that, after the mock engagement, Lt. Col.
Luis Felipe Becerra Bohórquez, Commander of the Palacé Artillery
Battalion, and Brigadier General Rafael Fernández López, Commander of
the Third Brigade, released a statement through the media, reporting that,
as part of operation “Destructor”, Army
units had killed in a skirmish 13 guerrillas known to belong to the
“Luis Carlos Cárdenas” wing of the self-proclaimed National
Liberation Army (ELN), and had seized weapons. The army suffered no
casualties.[1] The
petitioners are of the view that these statements confirm the intention to
cover up acts perpetrated by illegal groups acting with the consent of
agents of the State. 14.
The petitioners allege that these events constitute violations of
the right to life and humane treatment recognized in Articles 4 and 5 of
the American Convention. Also, at the hearing held during the 95th
regular session, they indicated that these acts contravene the provisions
of common Article 3 of the 1949 Geneva Agreements and Article 2 of the
Second Additional Protocol of these Treaties.
At that time, the petitioners also argued that Dora Estela Gaviria
Ladino and Luz Edelsy Tusarma Salazar were minors and that their execution
therefore violated Article 19 of the American Convention. 15.
The petitioners also maintain that the State has failed to fulfill
its obligation to offer proper judicial protection to the families of the
victims in accordance with Articles 8 and 25 of the American Convention.
In this regard, they note that, on October 5, 1993, the Criminal
Investigation Unit of the Buga Prosecutor’s Office removed the bodies
and examined the scene of the crime. The bodies were taken to the Buga
Forensic Medicine facility for autopsies to determine the cause of death.[2].
At the same time, on October 6, 1993, the 106th Military
Criminal Pretrial Court, attached to the Third Brigade, which sits in
Bogota, opened an investigation and established the legal status of those
implicated in the events--Major Eduardo Delgado Carrillo, Lt. Alfonso Vega
Garzón, Capt. Leopoldo Moreno Rincón, Corporal Second Class Alexander Cañizalez
Nuñez, and 30 soldiers. The Court did not impose any security measures
against these individuals since no criminal conduct or cover up was
considered to have occurred. The Commander of the Third Brigade, in his
capacity as Judge of First Instance, ordered that the pretrial proceedings
be moved to the 17th Military Criminal Pretrial Court sitting
in the city of Cali. On August 4, 1994, the court issued preventive
cautionary measures against Lt. Col. Becerra Bohórquez on suspicion of
the crime of concealment. On March 30, 1995, the Court officially changed
the preventive cautionary measures to recognizance. 16.
The Cali Prosecutor’s Office ordered a formal investigation to
begin on November 4, 1994, following which warrants were issued for the
arrest of members of the army[3]
and a civilian, Arturo de Jesús Herrera Saldarriaga. In response, the
Third Army Brigade filed a motion of conflict of jurisdiction, a motion
that was upheld by the Superior Council of the Judiciary on March 30,
1995, on grounds that the events under investigation were a military
matter. Once the proceedings had been referred to military jurisdiction,
on June 29, 1995, the Commander of the Third Brigade revoked the order for
the arrest of Lt. Col. Becerra Bohórquez, with instructions that the
investigation continue. 17.
On July 28, 1995, the Military Criminal Pretrial Court, at the
request of counsel for the defense, changed the charge from multiple
homicide to concealment and accordingly decided to impose recognizance
only, and ordered that those charged be released. On September 4, 1995,
the Military Criminal Pretrial Court closed the investigation. 18.
On September 25, 1995, the agent of the Attorney General's Office (Ministerio
Público) asked that proceedings against all of the military personnel
implicated in the case be dismissed because they were not considered to be
responsible for concealment of a crime. On November 24, 1995, the
Commander of the Third Brigade in his capacity as Judge of First Instance
denied the petition filed by the agent of the Attorney General’s Office.
This decision was appealed by the accused and on November 27, 1996, the
Superior Military Court declared the proceedings null and void because the
courts had previously ordered the investigation closed on grounds that
there were “serious gaps in the investigations” in the pretrial
discovery proceedings. 19.
On July 30, 1997, the 17th Military Criminal Pretrial
Court issued a provisional ruling on the legal status of Lt. Col. Becerra
Bohórquez and Major Delgado Carrillo, ordering that they be held in
preventive detention on suspicion of falsifying public documents in
conjunction with charges of concealment. It did not issue preventive
cautionary measures against Lt. Col. Becerra Bohórquez on the charges of
extortion, bribery, and homicide on grounds that the charges were without
merit. This decision was appealed unsuccessfully by the civil parties to
the proceedings.[4] 20.
On October 8, 1998, Lt. Col. Becerra Bohórquez was sentenced by
the Court of First Instance to 12 months of detention for the crime of
concealment but was acquitted of the charges of homicide, extortion, and
bribery. Major Delgado Carrillo was sentenced to nine months of detention
for the same crime, and all charges of concealment against the other
accused were dismissed. 21.
On the basis of these proceedings, the petitioners consider that
the State has failed to fulfill its obligation to provide due judicial
protection to the families of the victims in accordance with the standards
of the Convention.[5]
They allege that the decision of the Superior Council of the Judiciary to
transfer the investigation of the incident and proceedings against the
accused to military criminal jurisdiction contravenes the Convention and
the Commission’s jurisprudence. They therefore request that the present
case be declared to have violated Articles 8 and 25 of the American
Convention. 22.
As to the admissibility of the case, the petitioners alleged that
the workings of the domestic justice system have proven ineffective for
prosecuting and punishing those responsible for executing the victims and
covering up the act. Furthermore, they note that the military courts are
not an appropriate forum for investigating the matter and trying those
responsible since they lack the independence and impartiality that are
required in accordance with the guidelines of the Convention.[6]
They therefore requested that the Commission declare the case admissible
on the basis of the exceptions to the exhaustion of domestic remedies
requirement contained in Article 48(2) of the Convention.[7] B.
The State’s position 23.
The State produced information on the proceedings conducted through
domestic military criminal jurisdiction, without expressly challenging the
petitioners’ allegations.[8]
Also, it reported that on December 27, 1993, the Attorney Delegate for the
Defense of Human Rights had begun disciplinary proceedings against members
of the Third Army Brigade in connection with the events in the present
case. 24.
In the hearing held during the 95th regular session, the
State indicated that because of the seriousness and importance of the
case, special agents from the Attorney General’s Office (Ministerio Público)
had been dispatched to monitor the investigation and the proceedings
against the accused. IV.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
A.
Competence
25.
The Commission is competent prima facie to examine the complaint filed by the petitioner. The
alleged facts adversely affected individuals within the State’s
jurisdiction and they occurred at a time when the State effectively had
obligation to respect and guarantee the rights established in the
Convention.[9]
The Commission then turns to determining whether the present case
satisfies the requirements established in Articles 46 and 47 of the
American Convention.
1.
Exhaustion of domestic remedies and time period for submission 26.
In its communication dated September 16, 1996, the State reported
that the facts of the case were under investigation by the Cali
Prosecutor’s Office as well as by the military criminal justice system.
It also furnished information on the disciplinary proceedings being
conducted by the Attorney Delegate for the Defense of Human Rights. As
noted earlier, the petitioners alleged that domestic remedies had been
inadequate and ineffective in trying and punishing those responsible for
the crime. 27.
According to the positions presented by the parties, the case was
initially investigated by Regional Prosecutor’s Office in Cali and the
military criminal justice system. However, on March 30, 1995, the Superior
Council of the Judiciary upheld motion on the conflict of jurisdiction
filed by the Third Army Brigade. The matter was therefore investigated by
the military courts and tried before the Third Brigade’s Council of War,
which handed down a decision of first instance.[10]
The sentence was appealed and reviewed by the Superior Military Court.[11] 28.
The Commission has ruled repeatedly that military jurisdiction is
not an appropriate forum and therefore does not offer adequate remedies
for investigating, prosecuting, and punishing violations of human rights
established in the American Convention, allegedly committed by members of
the armed forces or with their collaboration or acquiescence.[12]
Also, the Inter-American Court recently reaffirmed that this jurisdiction
is a suitable forum only for prosecution of members of the military for
the crimes or misdemeanors that by their very nature pose a threat to
judicial property belonging to the military.[13] 29.
According to the Inter-American Court, whenever a State alleges
that domestic remedies have not been exhausted by the petitioner it bears
the burden of demonstrating that the remedies not exhausted are
“adequate” enough to rectify the alleged violation, that is that the
functioning of such remedies within the domestic justice system are
suitable to address an infringement of a legal right.[14]
In the present case, the Commission feels that military criminal justice
does not provide a suitable remedy for investigating, prosecuting, and
punishing conduct of the type involved in the instant case, and therefore
the requirements set out in Article 46(1)(a) and (b) do not apply. 30.
Undoubtedly, invoking the exceptions to the rule for exhaustion of
domestic remedies provided for in Article 46(2) of the American Convention
is closely linked to determining possible violations of certain rights
established in the Treaty such as the guarantees of a fair trial and
judicial protection. However, Article 46(2), by its nature and purpose, is
a standard that stands alone vis-à-vis
the substantive standards of the Convention. Therefore, ascertaining
whether or not exceptions to the rule of exhaustion of domestic remedies
apply in the instant case has been carried out previously, separate from
the analysis of the alleged violations of Articles 8 and 25 since it
depends on a standard of evaluation other than the one used to determine
violations of substantive provisions of the Convention. It is important to
clarify that the causes and effects that impeded exhaustion of domestic
remedies will be analyzed below in the analysis of the merits in order to
determine whether they effectively constitute violations of the American
Convention. 2.
Duplication of procedures and res judicata 31.
There is nothing in the case file to indicate that the subject of
the petition is pending in another international proceeding for settlement
or that the petition is substantially the same as one previously studied
by the Commission or another international organization. Therefore the
requirements established in Articles 46(1)(c) and 47(d) of the Convention
must be considered to have been fulfilled. 3.
Characterization of the alleged facts 32.
The Commission is of the view that the petitioners’ allegations
concerning the alleged violations of the rights to life and humane
treatment against the victims, and lack of effective prosecution and
punishment of the guilty parties could be characterized as a violation of
the rights recognized in Articles 4, 5, 8, 19, 25, and 1(1) of the
American Convention and therefore satisfy the requirements contained in
Articles 47(b) and (c) of the American Convention. C. Conclusions
on competence and admissibility
33.
The Commission considers that it is competent to analyze the
petitioners’ complaint and that the present case is admissible in
accordance with the requirements established in Articles 46 and 47 of the
American Convention. V.
ANALYSIS OF THE MERITS
34.
The Commission now turns to analyzing alleged points of fact and of
law in order to determine whether the State is responsible for violating
the rights to life, humane treatment, and judicial guarantees and
protection against Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez,
María Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César
Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario
Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy
Tusarma Salazar, and Hugo Cedeño Lozano. 35.
First, the Commission will refer to the questions of fact. In this
regard, it will cover separately the facts surrounding the deaths of the
victims, the perpetration of these events, and their concealment by
members of the army. Second, the Commission will refer to responsibility
in the facts proven and whether they constitute violations of the rights
protected under the American Convention. A.
Analysis of the facts
1.
The massacre 36.
According to the evidence produced by both parties in the
proceedings held in military criminal jurisdiction and disciplinary
jurisdiction, on October 5, 1993, at approximately 5:30 a.m. a group of
armed men, some of whom were wearing military uniforms, appeared in the
village of El Bosque, in the district of Portugal de Piedras, Municipality
of Riofrío, Valle del Cauca. 37.
The armed men identified the members of the Ladino and Molina
families and took them to the home of Mr. Javier Ladino. The Commission
feels that the testimony given by Mrs. Aurora de Ladino, who was 75 at the
time of the events and who survived the massacre, should be cited. A
summary of her testimony with respect to the killing of three of the
victims, María Cenaida Ladino, Carmen Emilia Ladino, and Dora Estela
Gaviria Ladino, reproduced by the Prosecutor General of Colombia, is as
follows: She
heard the first shots at 5:00 in the morning. Going into the hall, she
found her daughters lying face down, and she was ordered to do the same.
She asserts that María Cenaida was then beaten. Next, she and her
daughters María Cenaida, Dora Estela, and Carmen and four children were
taken into a room. They began to be taken out one by one. She heard shots
and did not see them again. She says the gunfire lasted from 5:30 a.m. to
11:00 a.m. […] she said that she did not see how her sons were taken.[15] 38.
The paramilitary group remained in the vicinity until approximately
10:30 a.m., at which time members of the Third Army Brigade's Palacé
Battalion arrived. 2.
The perpetrators of the crime 39.
The evidence contained in the case file indicates that a group of
six to eleven armed men (hereinafter “the paramilitaries”), some of
whom were in uniform carried out the execution of the victims. According
to the summary of María Aurora de Ladino’s testimony: As
to the perpetrators, she indicated that she did not know the exact number
but saw approximately six men “some in civilian clothes and others
dressed as soldiers…” who insulted them verbally and “…the only
thing I remember them saying was why did we continue helping the
guerrillas...” and they said they were looking for weapons.[16] The
decision of the Military Superior Court of November 1996 confirms that Several
people were seen being taken from the Molina's house and screams were
heard coming from the community hall (Caseta Comunal), as a result of the
actions of a group comprising individuals in green uniforms and civilian
personnel, facts that further reinforce the hypothesis that the Commander
of the Third Tactical Unit at least was not totally unaware of the
outrage.[17] It
adds that Between
9:00 a.m. and 10:00 a.m., before the arrival of the Palacé Battalion at
the scene, a green colored official vehicle left the area, a circumstance
that highlights the fact that one or more members of the military were
fully aware of the situation and goes some way to supporting the charge
that has the Battalion Commander having agreed to the perpetration of
these acts with individuals acting outside the law.[18] These
facts suggest the presence and even the direct participation of agents of
the State in perpetrating the massacre. 40.
There is also evidence to establish that a coordinated action took
place between the Palacé Battalion and the paramilitary group through an
individual who acted as an informant for the army. In its decision, the
Attorney Delegate for the Defense of Human Rights reports
that: moments before when it was decided to take the lives of the victims, Mr. HOLMES MOTATO CIFUENTES an informant for the army who was at the scene with the victims went to the municipality of Buga and telephoned the Palacé Battalion and reported to Col. LUIS FELIPE BECERRA BOHÓRQUEZ of what the assassins were doing, thus carrying out his mission to report when the members of the subversive group were in the house previously identified as the guerrillas retreat. The Colonel gave orders for the operation and instructed Major DELGADO CARRILLO to fetch the informant and bring him back to base. When Major DELGADO found Mr. MOTATO and was informed about the events then taking place, he delayed his return to base to allow the perpetrators enough time to finish their task.[19] The
testimony of María Aurora de Ladino further corroborates evidence that a
certain individual was present during the massacre and what was called
“Operation Destructor”: It
seems to me that amongst the soldiers who arrived afterwards was one who
had been there in the morning and that’s why I felt so afraid and
didn’t want to say any more […] he was different from the soldiers so
I looked at him. […] He was with them, with the army as if he were a
member of the group.[20] In
analyzing this part of the testimony, the Attorney Delegate was of the
view that it was an informant who had been at the scene at dawn, when the
executions took place, and again later with the army.[21] 41.
There is also evidence to show that before the Palacé Battalion
arrived on the scene, the Commander of “Operation Destructor” knew for
certain that the victims had already been executed. Specifically, the way
in which the battalion approached the home of Mr. Javier Ladino indicates
that it was not on the alert for a possible attack from that quarter. To
this end, the Attorney General of the Nation has stated: Numerous
factors show that the operation was poorly planned and improperly
executed, thus confirming that in normal circumstances the troops would
undoubtedly have been ambushed, suffering many casualties, possibly even
the loss of their entire number. Such a situation seems to suggest that
based on experience, given the fact that the people planning the operation
were extremely capable, they knew very well right from the outset that
there would be no armed confrontation at the site of the operation.[22] This
confirms that the perpetrators of the massacre coordinated their attack
with the arrival of the Palacé Battalion, whose mission was to hide all
traces of the massacre. 42.
In view of the foregoing, the Commission feels that there is
sufficient evidence to conclude that agents of the State acted jointly and
in coordination with a paramilitary group in planning and carrying out the
massacre of the thirteen victims. 3.
The cover up 43.
According to the
evidence contained in the case file, when the paramilitary group withdrew
from the scene, apparently with the exception of the individual who was
acting as an informant, members of the Palacé Battalion simulated an
armed encounter with the victims. To achieve this effect, they fired
several rounds towards and away from Mr. Ladino’s house and changed the
scene of the crime around. 44.
The occurrence of fighting has been discredited by the expert
investigation conducted at the scene of the crime and by the autopsies
performed on the bodies. Here, the expert report of the Technical Unit of
the Cali Regional Investigation Unit indicates inter
alia discrepancies between the shots fired by the army and the impact
of the bullets found at the scene and their trajectories and the fatal
wounds found on the victims’ bodies.[23] 45.
The petitioners alleged that after the simulation of a skirmish,
Lt. Col. Luis Felipe Becerra Bohórquez, Commander of the Palacé
Artillery Battalion and Brigadier General Rafael Fernández López,
Commander of the Third Brigade, claimed in news reports that thirteen
members of an armed dissident group known as the ELN had been killed in a
confrontation with troops, and that no casualties had been sustained by
the army. This claim led to an investigation that culminated with the
decision on December 1, 1999, of the Military Superior Court rendered
after the death of Col. Becerra Bohórquez, in which Major Delgado
Carrillo was sentenced to three years and one month in prison as
principally responsible for falsifying evidence in the performance of his
duties through concealment but was acquitted of the charges of homicide,
extortion, and bribery. 46.
The claim also led to the aforementioned investigation by the
Attorney Delegate for the Defense of Human Rights which prepared an
indictment against certain officers that included disciplinary proceedings
against Lt. Col. Becerra Bohórquez and Major Delgado Carrillo for
concealment of irregular conduct by members of the national army and the
perpetrators of the massacre, simulating an armed encounter, and claiming
credit for the guerrillas killed, tampering with the scene of the crime,
and destroying evidence, amongst other things.[24] On October 2, 1998, the
Prosecutor General in an appeal changed the sentences against Lt. Col.
Becerra Bohórquez and Major Delgado Carrillo agreed on with the Attorney
Delegate for the Defense of Human Rights from discharge from the army to a
severe reprimand. 47.
It is important to notes in an internal hearing it was established
that agents of the State were responsible for concealment of the massacre
that took place on April 7, 1991, that involved a simulated armed
encounter to justify the killing of the victims and also to claim an
alleged victory by the military over an armed group of dissidents. The
concealment of the killings by members of the army as the final touch to
the massacre reflects the close ties between the paramilitary group
responsible for perpetrating the incident and the agents of the State
implicated. B.
Analysis of law
48.
Before turning to the analysis of the alleged violations of the
standards of the American Convention, it must be ascertained whether the
acts of the individuals implicated in the incident in violating such
fundamental rights as the rights to life and humane treatment are
attributable to the State of Colombia and therefore call into question its
responsibility in accordance with international law. In this regard, the
Inter-American Court has noted that it is sufficient to show that the
infringement of the rights recognized in the Convention has been supported
or tolerated by the government.[25] 49.
First, it should be said that, as noted by the IACHR in its Third
Report on the Human Rights Situation in Colombia, the State has played
a leading role in developing the paramilitary or self-defense groups, that
it allowed them to act legitimately with the protection of the law during
the 1970s and 1980s[26],
and that it is generally responsible for their existence and for
strengthening them.[27] 50.
These groups sponsored or accepted by branches of the armed forces
were created mainly to combat armed groups of dissidents.[28]
As a result of their counterinsurgency purposes, the paramilitaries
established links with the Colombian army that became stronger over a
period of more than twenty years. Eventually, on May 25, 1989, the Supreme
Court of Justice declared Decree 3398 unconstitutional, thereby removing
all legal support for their ties to national defense. In the wake of this
action, the State passed a number of laws to criminalize the activities of
these groups and of those that supported them.[29]
Despite these measures, the State did little to dismantle the structure it
had created and promoted, particularly in the case of groups that carried
out counterinsurgency activities and, in fact, the ties remained in place
at different levels, which in some instances requested or permitted
paramilitary groups to carry out certain illegal acts on the understanding
that they would not be investigated, prosecuted, or punished.[30]
The toleration of these groups by certain branches of the army has been
denounced by agencies within the State itself.[31] 51.
As a result of this situation, the Commission has established, for
the purposes of determining the international responsibility of the State
in accordance with the American Convention, that in cases in which members
of paramilitary groups and the army carry out joint operations with the
knowledge of superior officers, the members of the paramilitary groups act
as agents of the State.[32] 52.
In the present case, according to analysis of the facts mentioned
above, there is evidence to show that agents of the State helped to
coordinate the massacre, to carry it out, and, as discovered by domestic
courts, to cover it up. Therefore, the only conclusion is that the State
is liable for the violations of the American Convention resulting from the
acts of commission or omission by its own agents and by private
individuals involved in the execution of the victims. 1.
The right to life 53.
As noted earlier, the petitioners allege that an illegal armed
group, with the complicity of agents of the State, executed the victims,
two of whom were minors, on October 5, 1993, in the municipality of Riofrío,
in the Valle del Cauca. They allege that to conceal all evidence of the
executions members of the army forced the victims to put on combat
uniforms and, when they had been executed, placed arms next to their
lifeless bodies and simulated a scene of combat. They allege therefore
that the State is responsible for violating Articles 4 and 19 of the
American Convention as well as common Article 3 of the 1949 Geneva
Conventions and Article 2 of its Second Additional Protocol. The State has
not accepted or expressly disputed the facts alleged by the petitioners
but has limited itself to presenting additional information on the
proceedings of the case before courts within the country.[33]
It must now be determined whether the State is responsible for violating
the right to life established in the American Convention. 54.
Article 4 of the American Convention establishes that every person
has the right to have his life respected and no one shall be arbitrarily
deprived of his life. It is also important to note that intentional
mistreatment, and particularly extrajudicial execution of civilians under
the control of one of the parties in any kind of armed conflict is
absolutely prohibited in all circumstances in light of the basic
considerations of humanity reflected in common Article 3 of the Geneva
Conventions.[34] 55.
In the present case, the available evidence shows that the victims
were defenseless and under the effective control of individuals who were
acting in coordination with agents of the State at the time of their death
and that there was no justification whatsoever to deprive them of their
lives in light of the standards of present international law. The
testimony and expert evidence gathered in the course of the disciplinary
proceedings, and even in the military courts, clearly indicates that the
victims put up no resistance to the actions of their executioners. 56.
The Commission therefore considers that there are sufficient
grounds to conclude that the victims in the present case were executed
extrajudicially by a group of armed men who acted in collaboration with
agents of the State and that subsequently members of the army attempted to
cover up the executions by manipulating and manufacturing evidence. 57.
In the present case, the Commission is of the view that the State
is responsible for the acts of its agents as well as for those perpetrated
by individuals who acted with their complicity to make it possible to
carry out and cover up the execution of the victims in violation of their
right not to be arbitrarily deprived of their lives, as established in
Article 4 of the American Convention. Also, as indicated by the
petitioners, amongst the victims were two minors, Dora Estela Gaviria
Ladino and Luz Edelsy Tusarma Salazar, who were 16 years of age. The
evidence shows that Luz Edelsy was pregnant at the time of her death. The
Commission is of the view that the State is not only responsible for
violating the right to life of these two victims but also failed to
fulfill its obligation to provide them special protection as minors in
accordance with Article 19 of the American Convention. 58.
Based on the foregoing considerations of fact and of law, the
Commission finds that on October 5, 1993, a group of armed men, acting in
complicity with agents of the State, arbitrarily deprived Miguel Enrique
Ladino Largo, Miguel Antonio Ladino Ramírez, María Cenaida Ladino Ramírez,
Carmen Emilia Ladino Ramírez, Julio César Ladino Ramírez, Lucely
Colorado, Dora Estela Gaviria Ladino, Celso Mario Molina, Rita Edelia de
Molina, Ricardo Molina, Freddy Molina, Luz Edelsy Tusarma Salazar, and
Hugo Cedeño Lozano of their right to life in violation of the obligations
established in Article 4(1) of the American Convention. Moreover, the
State is responsible for failing to fulfill its special duty to provide
protection to the minors Dora Estella Gaviria Ladino and Luz Edelsy
Tusarma Salazar pursuant to Article 19 of the American Convention. 2.
The right to humane treatment 59.
The petitioners allege that prior to their execution the victims
were subjected to acts of torture that violated their right to humane
treatment. In their allegations, the petitioners do not specify the nature
of the lesions inflicted or whether some or all of the victims were
affected. 60.
Article 5 of the American Convention states that 1.
Every person has the right to have his physical, mental, and moral
integrity respected. 2.
No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. […] 61.
In the instant case, statements taken from neighbors in the village
as well as from Mrs. María Aurora Ladino who was in the dwelling where
the executions took place, confirm that the sounds of blows to the victims
and their screams were heard before they were killed.[35]
The testimony does not confirm whether all of the victims were tortured
before they were executed. 62.
However, the autopsies conducted by the Attorney Delegate for the
Defense of Human Rights effectively confirm that “lesions caused by
blunt objects before death” were found on the bodies of Hugo Cedeño
Lozano, Miguel Ladino, Cenaida Ladino, Ricardo Molina Solarte, and Celso
Mario Molina Sauza.[36] 63.
Therefore, the Commission is of the view that in the present case
there is sufficient evidence to conclude that the State is responsible for
violating the right to humane treatment of Hugo Cedeño Lozano, Miguel
Ladino, Cenaida Ladino, Ricardo Molina Solarte, and Celso Mario Molina
Sauza before they were executed. C. The right to judicial protection and
the obligation of the State to respect and guarantee the rights protected
under the Convention
64.
The petitioners allege that the State failed to fulfill its
obligation to investigate the facts of the case and to bring to trial and
punish those responsible in accordance with Articles 8 and 25 of the
American Convention. In their view, the State deprived the families of the
victims of access to an impartial court when the Superior Council of the
Judiciary transferred the case to the jurisdiction of military courts. 65.
Therefore, it falls to the Commission to determine whether the
judicial proceedings instituted by the State, which have lasted for more
than seven years now and taken place largely in military jurisdiction,
meet the standards established by the American Convention for access to a
fair trial and judicial protection. 66.
Article 8(1) of the American Convention states that: Every
person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation of
a criminal nature made against him or for the determination of his rights
and obligations of a civil, labor, fiscal, or any other nature. According
to Article 25 of the Convention: Everyone
has the right to simple and prompt recourse, or any other effective
recourse, to a competent court or tribunal for protection against acts
that violate his fundamental rights recognized by the constitution or laws
of the state concerned or by this Convention, even though such violation
may have been committed by persons acting in the course of their official
duties. The
States Parties undertake: a.
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of
the state; b.
to develop the possibilities of judicial remedy; and c.
to ensure that the competent authorities shall enforce such
remedies when granted. 67.
These standards set out the obligation of the State to ensure
access to a fair trial with the guarantee that it be legal, independent,
and impartial within a reasonable period as well as the general obligation
to provide effective judicial remedy in the face of the violation of the
fundamental rights, incorporating the principle of the efficiency of the
procedural instruments or mechanisms. The Inter-American Court of Human
Rights has ruled that: States
Parties have an obligation to provide effective judicial remedies to
victims of human rights violations (Art. 25), remedies that must be
substantiated in accordance with the rules of due process of law (Art. 8
(1)), all in keeping with the general obligation of such States to
guarantee the free and full exercise of the rights recognized by the
Convention to all persons subject to their jurisdiction.[37] 68.
In the present case, although an investigation of the members of
the army implicated in the massacre was opened, the case was transferred
to the military criminal justice system when a motion on a conflict of
jurisdiction was filed. 69.
In fact, the Commission notes, that after the security measures
were imposed by the Cali Regional Prosecutor’s Office against members of
the Third Army Brigade, the latter claimed a conflict of jurisdiction. The
Superior Council of the Judiciary resolved the dispute on March 30, 1995,
with the decision that the case be transferred to the military criminal
justice system because it was considered that the “events under
investigation occurred in connection with a military operation conducted
by members of the military on active service".[38] 70.
In this regard, the Commission should reiterate again that, given
its nature and structure, military criminal jurisdiction does not meet the
standards of independence and impartiality required pursuant to Article
8(1) of the American Convention, which are fully applicable in the present
case. The unsuitable nature of military criminal courts in Colombia as a
forum for examining, prosecuting, and punishing cases that involve
violations of human rights has been expressly mentioned by the Commission
in the past: The
military criminal justice system has several unique characteristics which
prevent access to an effective and impartial judicial remedy in this
jurisdiction. First, the military justice system may not even be properly
referred to as a true judicial forum. The military justice system does not
form part of the judicial branch of the Colombian State. Rather, this
jurisdiction is operated by the public security forces and, as such, falls
within the executive branch. The decision-makers are not trained judges,
and the Office of the Prosecutor General does not fulfill its accusatory
role in the military justice system.[39] 71.
The Inter-american
Court recently confirmed that: In
a democratic State of law military criminal jurisdiction necessarily has a
restrictive and special scope and is designed to protect special judicial
interests linked to the functions that the law assigns to military forces.
Thus, civil proceedings must be excluded from the context of military
jurisdiction which should only try members of the military for the
commission of crimes or misdemeanors that by their very nature have to do
solely with judicial property of a military nature.[40] In
previous decisions, the IACHR has indicated that the Constitutional Court
of Colombia itself has ruled on the jurisdiction of military courts in
examining cases of human rights violations. In this regard, it has noted
that: For
the military criminal justice system to have competence over a crime,
there must be from the onset an evident link between the crime and the
inherent activities of military service. In other words, the punishable
action must constitute an excess or abuse of power occurring within the
context of an activity that is directly related to a legitimate function
of the armed forces. The link between the criminal action and the activity
related to military service breaks down when the crime is extremely
serious, such as is the case with crimes against humanity. In such
circumstances, the case must be referred to the civilian courts.[41] 72.
The Commission considers that the execution of the victims in the
present case as a result of coordinated activities between the army and
the paramilitaries and the subsequent cover up is not a legitimate
activity of the service that justifies the use of that forum to bring
those responsible to trial. Consequently, the fact that the accused have
been tried in military criminal jurisdiction contravenes the right of the
victims’ families to have access to an independent and impartial
tribunal, as well as due judicial protection established in Articles 8(1)
and 25 of the American Convention. 73.
The American Convention imposes on the States the obligation to
prevent, investigate, identify, and punish the perpetrators and those that
conceal human rights violations. The Inter-American Court has ruled that Article
25 in relation to Article 1(1) of the American Convention obliges the
State to guarantee to every individual access to the administration of
justice and, in particular, to simple and prompt recourse, so that, inter
alia, those responsible for human rights violations may be prosecuted and
reparations obtained or the damages suffered.
As this court has ruled, Article 25 "is one of the fundamental
pillars not only of the American Convention, but of the very rule of law
in a democratic society in the terms of the Convention.".[42] 74.
To this end, Article 25 bears a close relation to Article 8(1)
which establishes the right of every person to a hearing with due
guarantees within a reasonable time by an independent and impartial judge
or court and confers on the victims’ families the right that the deaths
of their loved ones be effectively investigated by the authorities, that
judicial proceedings be instituted against those responsible, that the
appropriate penalties be imposed, and that they be compensated for the
injuries suffered.[43] 75.
In the present case, the State has not ruled on the necessary means
of fulfilling its obligation to investigate the extrajudicial killing of
the victims, to prosecute and punish those responsible, and to provide
reparations to the victims’ families. To this end, the execution of
Miguel Enrique Ladino Largo, Miguel Antonio Ladino Ramírez, María
Cenaida Ladino Ramírez, Carmen Emilia Ladino Ramírez, Julio César
Ladino Ramírez, Lucely Colorado, Dora Estela Gaviria Ladino, Celso Mario
Molina, Rita Edelia de Molina, Ricardo Molina, Freddy Molina, Luz Edelsy
Tusarma Salazar, and Hugo Cedeño Lozano has gone unpunished, a fact that
according to the Court “fosters chronic recidivism of human rights
violations, and total defenselessness of victims and their relatives”.[44] 76.
Based on the foregoing considerations, the Commission concludes
that the State has not fulfilled its obligation to offer proper judicial
protection in accordance with Articles 8 and 25 of the American Convention
to the victims in the present case and to their families. D.
Obligation to respect and guarantee the rights protected by the
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