REPORT NO. 140/09

PETITION 1470-05

ADMISSIBILITY

MEMBERS OF THE UNION OF STATE WORKERS OF ANTIOQUIA

(SINTRAOFAN)

COLOMBIA

December 30, 2009

I.          SUMMARY

1.            On December 27, 2005, the Inter-American Commission on Human Rights (hereinafter "the Commission" or “the IACHR”) received a petition lodged by Grupo Interdisciplinario por los Derechos Humanos (hereinafter "the petitioners"), which alleged that between June 1995 and May 2005, in different municipalities of the Department of Antioquia, 76 workers affiliated with the Union of State Workers of Antioquia (hereinafter “SINTRAOFAN”) were unjustly dismissed and that members of paramilitary groups, with the acquiescence of the agents of the Republic of Colombia (hereinafter "the State", "the Colombian State" or "Colombia”), prevented SINTRAOFAN from operating freely, threatened its members and their families, murdered 30 of its members and two of their relatives, and cause the forced displacement of its members and their next of kin.

2.            The petitioners claim that the acquiescence of the State’s agents to the actions of members of paramilitary groups engaged the responsibility of the State for violation of the right to humane treatment based on the threats made to 50 members of SINTRAOFAN and on the collective threats against more than 1,470 of its members,[1] most of whom belonged to the subdirectorates of Andes, Arboletes, Betania, Betulia, Ciudad Bolívar, Concordia, Frontino, Necoclí, Pueblo Rico, Salgar, San Francisco, Tarazá, Vegachí and Yalí; the right to life of 32 of its members and two of their next of kin;[2] the rights to personal liberty, freedom of movement and residence, a fair trial, and judicial protection to the detriment of 29 registered members,[3] on account of their forcible displacement; the rights to freedom of association, a fair trial, and judicial protection of the members of SINTRAOFAN; and the rights to a fair trial and judicial protection of the relatives of the victims recognized in the American Convention on Human Rights (hereinafter "the American Convention”),[4] all in connection with the obligation to observe and ensure the rights guaranteed by that treaty.  The petitioners also claimed that the State is responsible for violation of the right to freedom of association recognized  in Article 8(1)(a) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (hereinafter “the Protocol of San Salvador”) to the detriment of SINTRAOFAN and its members.

3.            For its part, the State requests the Commission to declare the case inadmissible on account of the failure to satisfy the rule of prior exhaustion of domestic remedies contained in Article 46(1)(a) of the American Convention, the lack of jurisdiction of the IACHR ratione temporis and ratione personae, and the failure to establish the individual identities of the alleged victims.  For their part, the petitioners invoke the exceptions to the requirement of prior exhaustion of domestic remedies provided at Article 46(2) (b) and (c) of the American Convention, to the detriment of approximately 1,500 victims.

4.                  Having examined the positions of the parties and compliance with the requirements provided in Articles 46 and 47 of the American Convention, the Commission decided to declare the petition admissible as regards the alleged violation of Articles 4(1), 4(2), 5(1), 7(1), 8(1), 16, 22(1), and 25 of the American Convention in conjunction with Article 1(1) thereof; to notify the parties, and to order publication of the report

II.         PROCESSING BY THE COMMISSION

5.                  The IACHR registered the petition as No. P1470-04 and, after a preliminary analysis of its contents, on March 28, 2006, proceeded to transmit a copy of the pertinent portions to the State in accordance with Article 30(2) of the Rules of Procedure.   On June 30, 2006, the State submitted its comments, which were relayed on July 6, 2006, to the petitioners so that they might present their observations.  On December 22, 2006, the petitioners submitted its comments, which were relayed on February 22, 2007, to the State so that it might present its observations.

6.                  On March 6, 2007, a hearing was held in the framework of the 131st Regular Session of the IACHR.  The State presented its comments on April 4, 2007, and on September 26, 2007, they were transmitted to the petitioners for observations, together with a request for information on the alleged victims.  The petitioners submitted their response on March 14, 2008, and it was forwarded to the State on August 8, 2008, while the annexes thereto were transmitted to the State on January 12, 2009.

7.                  The State presented additional comments on July 15, 2008.  These were relayed to the petitioners on September 3, 2008, with a request for their observations; that request was reiterated on December 3, 2008.  On September 8, 2008, the State requested an additional month to present its comments on the brief of March 14, 2008, which the Commission granted on September 17, 2008.  On October 20, 2008, the State requested another extension in order to present its comments, which the IACHR granted.  The State submitted its comments on November 25, 2008.  On February 20, 2009, the State requested an additional period of time to submit its comments on the annex to the petitioners’ brief, which the Commission granted.  On March 26, 2009, the State requested another extension, which the Commission also granted.  On April 30, 2009, the State presented its comments on the annexes to the petitioners’ brief.

8.                  On May 7, 2009, the petitioners conveyed their response to the additional comments of the State of July 15, 2008. That response was transferred to the State on May 8, 2008, for comment.  On June 10, 2008, the State asked for an extension of 30 days, which the Commission granted.  The State submitted its final comments on July 13, 2009.

III.        POSITIONS OF THE PARTIES

A.         The petitioners

9.                  The petitioners say that SINTRAOFAN’s membership includes municipal workers throughout the department of Antioquia, who work as construction, cleaning and maintenance workers, as well as drivers, among other jobs, and are hired by the State under employment contracts which are governed by the Substantive Labor Code, just like any worker employed by a private company.  They say that the law recognizes the right to organize and join trade unions, as well as to present lists of petitions.  The petitioners mention that since its inception the union has established a presence in 45 municipalities in the department and that its members are organized into subdirectorates, committees, and branches, with a central executive board based in the city of Medellín.

10.              The petitioners claim that in the 1990’s persecution increased in Antioquia of political organizations regarded as being left-wing or opposed to the government, along with trade unions, civic organizations, and grassroots organizations in general. They also say that from 1995 to 2005 SINTRAOFAN’s members were victims of persecution, mass dismissals, forced dissolution of union subdirectorates, intimidation, arrests, displacement and murder.  In that connection, they say that 1995 saw the unjust dismissal of 60 of the union’s members in Frontino and 16 in Toledo, followed by more mass dismissals of members of other subdirectorates and committees.^[5]

11.              They say that between June 1995 and June 2002, the following 29 members from different subdirectorates were murdered: Francisco Eladio Sierra Vásquez, Juan de la Cruz Aguirre, Juvenal Gallego Montoya, Octavio de Jesús Sepúlveda Benítez, Fabio A. Escobar Martínez, Gabriel Ángel Palacio Estrada, Israel Sánchez Florez, Darío de Jesús Oquendo, Gildardo Durango Rengifo, José Abelardo Jiménez Peña, Liomedi López Yuste, Oscar de Jesús Arrubla, Fidel Antonio Seguro Cano, Ramón Chaverra Robledo, Manuel Alfonso Vásquez Alzate, Hernán de Jesús Álvarez, Luis Humberto Herrera Gallego, Edgar Orlando Marulanda Ríos, Euclides de Jesús Achury, Luis Fernando Elorza, Margarita Guzmán Restrepo, Rafael Ángel Mesa Aguilar, Manuel José Jaramillo, José Gildardo Uribe García, Alveiro Úsuga, Ángel María Cuartas, José David Ríos Madrid, José Luis García and Frank Ángel David.[6]

12.              They say that in 1999 the subdirectorate to which Hernán de Jesús Álvarez was affiliated was forcibly dissolved and that in the course of that year its president, Luis Humberto Herrera Gallego, was murdered.  The petitioners mention that some days after Luis Herrera’s murder Hernán de Jesús Álvarez was intimidated and beaten by paramilitaries, who threatened him, saying that he would be murdered if he continued to complain that they had dissolved his subdirectorate

13.              Concretely the petitioners say that in early June 2000 paramilitaries summoned all the union members to a meeting where they told them that they had been declared a military target and that they must resign from the union.  They say that in the morning of June 12, 2000, Gildardo Uribe and two fellow members of the subdirectorate traveled to the municipality of Yolombó to testify in a labor proceeding brought by a member of the union, and that on returning home they were killed by paramilitaries who shot them several times with firearms.

14.              They claim that in the municipality of Andes on February 19, 2002, Mr. Roberto Luis Arroyave Giraldo, a member of the subdirectorate of that municipality, was seriously wounded with a firearm at his place of work.  They also say that from October 1997 until the end of 2004, the following 15 union members from different subdirectorates were selectively threatened: Sigifredo de Jesús Bustamante Henao, Hernando Alberto Echeverri Gómez, Belisario Palacio Montoya, Alberto Antonio Estrada, Ángel Maria Sepúlveda, Marino Usuga Manco, Abelardo de Jesús Quintero, Carlos Mario Velásquez Cano, Carlos Adrián Echavarría, Omar Hernando Pérez, Jorge Eliécer Úsuga, Orlando Martínez, Ramiro Eusse, and Gustavo Emilio Montaño Alzate, and Luis Carlos Blandón.^[7]

15.              They say that on February 22, 2002, the vehicle in which Hernán de Jesús Álvarez was travelling was intercepted by paramilitaries, who ordered everyone to get out and show their identity document.  When they saw his, one of them said, “This is the one we need,” and they immediately shot him in the head.  Upon falling to the ground one of the paramilitaries planted his foot on his abdomen and fired two shots into his body, before kicking him a number of times, saying, “That’s what he gets for being a snitch.”[8] 

16.              They also say that approximately 1,500 workers affiliated to the union under the subdirectorates of Andes, Arboletes, Betania, Betulia, Ciudad Bolívar, Concordia, Frontino, Necoclí, Pueblo Rico, Salgar, San Francisco, Tarazá, Vegachí, and Yalí were collectively threatened from 1997 until October 2002.[9]

17.              They allege, furthermore, that from March 1997 until February 2003, the following 29 union members from different subdirectorates were displaced because of the fear inspired by threats from paramilitaries: Héctor de Jesús Giraldo, Jorge Wilson Ospina Espinosa, José David Taborda G, Omar de Jesús Bedoya Hurtado, Rafael Ángel Muñoz, Francisco Mestra, Antonio Pino, Gildardo Serna, Héctor Echavarría, Jesús Maria Sanpedro, Jorge Echavarría, José Reinaldo Gallego, Luis Eduardo Atehortua, Luis Eduardo Ramírez, Omar Campiño, Omar Prisco, Oscar Estrada, Jaime Alonso Gallego Gómez, Omar Alberto Tobón Albanéz, Oscar Alberto Estrada, Pedro José Barrera Zuleta, Aníbal Pino, Antonio José Cañaveral Colorado, Julio Cesar Zea Rúa, Luis Eulogio Hernández Atehortua, Sinforiano Páez Gómez, Carlos Sifredis Zapata, Luis Carlos Blandón,[10] and Carlos Adrián Echavarría.

18.              They say that Amparo del Socorro Echavarría, the mother of active member Carlos Adrián Echavarría, and Oscar Bermúdez Bravo, the son of active member José Leonel Bermúdez Rojas, were murdered when paramilitaries when looking for members of the union and failed to find any.  They say that Mrs. Echavarría was murdered on June 17, 1997, and that Mr. Bermúdez was assassinated on February 25, 2001, at a prearranged meeting with a paramilitary commander.

19.              The petitioners say that the municipality of Apartadó implemented a “voluntary” retirement scheme that was a means to put pressure on its workers to resign.  They claim that many union members who rejected these agreements received death threats.  They say that it was not possible to eliminate jobs at some municipalities in the department because the workers were protected by union guarantees and, therefore, they became an obstacle to the law’s implementation.  They also hold that in view of the impossibility of dismissing the union members by legitimate means, some mayors, in connivance with paramilitaries, used threats as a mechanism to put pressure on them to resign from both the union and the municipality.

20.              The petitioners say that in March 1997, due to the increase in threats and forced displacement in several municipalities, the Central Executive Board of SINTRAOFAN set up a displacement committee to receive the members of several subdirectorates in Medellín.  They say that as a result of the complaints filed by the Central Executive Board, in September 1999 the organization received a telephone call at its headquarters in Medellín in which the threat was made to plant a bomb in the building.

21.              As regards exhaustion of domestic remedies, the petitioners say that different remedies were invoked before with the competent bodies in a bid to have justice administered, the facts investigated, and the culprits punished.  With respect to the homicides, the petitioners hold that the Office of the Prosecutor General, through its district prosecutors, has a duty ex officio to initiate a preliminary inquiry to determine if the acts actually happened and identify possible suspects, and they include a list of 22 criminal proceedings initiated by the Office of the Prosecutor General,^[11] which are still at the preliminary investigation stage and in respect of which no effective steps have been taken by the investigating body that would suggest any interest in proceeding on them. As a result, no decisions on merits were forthcoming and there was no knowledge of any investigations that had produced a result.

22.              The petitioners say that on June 13, 2002, SINTRAOFAN filed a complaint with the Office of Human Rights of the Antioquia Regional Office of the Ministry of Labor and Social Security, alleging violation of freedom of association, and that as of the date the petition was lodged the Ministry had taken no steps to prevent the continuation of such violations nor ensured protection for the violated right.  The petitioners also say that several complaints were presented to the Antioquia Departmental Prosecutor’s Office, Provincial Prosecutor’s Offices, and Municipal Attorney’s Offices, all to no avail as of the date the petition was lodged.

23.              They say that on December 17, 2003, the president and legal representative of SINTRAOFAN filed a complaint with the Office of the Prosecutor General, alleging threats against the trade union organization and its members.  They say that the investigation by the Office of the 16th Specialized Prosecutor of case 769.249 had yielded no results.

24.              They also mention that in January 2004, the Central Executive Board of SINTRAOFAN requested the Office of Human Rights of the Ministry of the Interior and Justice to adopt protection measures for its members but that this situation had brought no respite in the harassment of the union’s members.

25.              In particular, they hold that violations that involved threats against individuals and forced displacement could not be reported in a timely manner because the control wielded by the paramilitaries in the municipalities concerned was an illegal constraint that amounted to an effective mechanism of coercion and intimidation in preventing the victims from filing complaints. Furthermore very often the paramilitaries would find out almost immediately when complaints and lawsuits were filed in a given municipality.  They claim that many victims had no option of seeking an immediate remedy because the institutions in place -Office of the Prosecutor, Office of the Attorney, and authorities in charge of investigating these violations in certain municipalities- were indifferent to the situation, and that in other cases the paramilitaries were complicit with or acted with the acquiescence of the police and the army, which increased the fear of filing a complaint.  They say that union members did not go to the authorities because of fear and the risk that it entailed for their lives and those of their families, since the civilian and military authorities openly legitimized, accepted, and collaborated with the paramilitary groups and were “complicit in keeping silent” about the crimes committed by the latter.[12]  They say, however, that whenever they were able to do so, the victims invoked the domestic mechanisms to have the facts investigated.

26.              In response to the argument of the State with respect to the requirement that domestic remedies should be individually exhausted in connection with the collective threats against more than 1,400 union members, the petitioners believe that it is unwarranted for every member of the organization to appear individually before the Office of the Prosecutor to report the same threat made by anonymous notes and telephone calls against the group.  In that regard, they believe that it is the State that should provide information on the investigations opened in response to the complaints made by the union.

27.              In response to the argument of the State asserting failure to exhaust the administrative jurisdiction (see Section III, B below), the petitioners argue that the Inter-American Court has consistently held that said jurisdiction is not suitable to redress and repair violations of the rights to life and humane treatment.[13]  With respect to the argument of the State asserting non exhaustion of labor proceedings (see Section III, B below) the petitioners reply that said jurisdiction does not impose sanctions but financial penalties against those responsible for wrongful dismissals and that an action for reinstatement can guarantee the right to work for workers, provided that they enjoy employment security as union representatives, but does not protect against violations of freedom of association.[14]  Furthermore they say that the time limit on actions to protect the right to employment security of union representatives is two months,[15] during which time the paramilitaries continued to exercise their power in the municipalities.  In addition, they consider that the requirement alleged by the State to exhaust a claim for civil damages in criminal proceedings would be possible if the State identified those responsible and the latter were prosecuted. However, in the instant case there has been no judgment whatsoever that would enable the relatives of the victims to file a claim for civil damages.

28.              Based on their submissions, the petitioners believed that there has been an unwarranted delay in administering justice in the investigations of the complaints filed.  They say that in none of the murder proceedings has a decision being issued on merits and that in every case bar one a formal inquiry was opened.  In the investigations of the threats, the petitioners say that the situation is similar; in some cases the investigations are more than 10 years old and in others the case has been set aside.  Therefore, they consider that the exceptions to the rule of prior exhaustion of domestic remedies contained in Article 46(2) (b) and (c) of the Convention apply in this instance.

29.              In response to the comments of the State to the effect that the Commission lacks jurisdiction ratione personae (see Section III, B below), the petitioners hold that the petition initially identifies 91 specific individuals who are SINTRAOFAN members or their next of kin.  In relation to the comment of the State that the alleged victims of collective threats have not been individually identified, the petitioners hold that there is no rule in the American Convention or in the Rules of Procedure of the Commission that specifically requires the identification of victims as a pre-requisite for petitions to be considered and that the Commission has heard several cases in which not all the victims were initially named,[16] and they furnish a partial list of 1,470 workers affiliated to SINTRAOFAN between 1995 and 2003. 

30.              In response to the submission of the State that the Commission lacks jurisdiction with respect to legal persons as victims of violations of the rights protected in the Protocol of San Salvador (see Section III, B below), the petitioners say that the State did not permit the trade union to operate freely, in contravention of its obligation under Article 8(1) of the Protocol.  The petitioners claim that SINTRAOFAN was weakened and dissolved because of its loss of members and the fear of joining the union that resulted from the permanent, systematic persecution of its members and leaders. This impaired the participation of SINTRAOFAN in national and international federations and confederations, which depends on size of membership, thereby undermining its capacity to influence the policy and decisions of the Federation to which it belongs.  They argue that the union permits fulfillment and exercise of freedom of association since it has to exist if workers are to exercise that freedom.  They also argue that freedom to organize and join a trade union only exists when an individual is a member of a trade union, since that is the only means for them to exercise that freedom. 

31.              As to the comments of the State to the effect that the Commission lacks jurisdiction ratione tempore in relation to the Protocol of San Salvador and the acts that occurred after its entry into force (see Section III, B below), the petitioners are of the opinion that the Commission has jurisdiction over alleged violations of rights recognized in the American Convention and over those acts that occurred after November 16, 1999, the date on which the Protocol of San Salvador came into force, which includes any acts that occurred before that date, whose effects, owing to the continuous nature of said acts, persisted at the time of the Protocol’s entry into force.  Therefore, they consider that the Commission has jurisdiction over the forced displacements, threats, and killings that occurred before the Protocol entered into force since they are offenses of a continuous nature.[17]  Therefore, the petitioners ask the IACHR not to exclude from its analysis of admissibility the 36 alleged victims to which the State objects in its submissions (see Section III, B below).

32.              As regards the arguments of the State on duplication of proceedings, in view of the case before the International Labor Organization (ILO) (see Section III, B below), the petitioners are of the view that the ILO only issues recommendations on the general situation of human rights in connection with trade unions in the country and not a decision on merits on the facts for which the duplication is invoked.  They hold that the petitioner before the ILO is a person who has neither a mandate from the union nor from the victims, that the alleged violations are different, and that the rights concerned are recognized in different international instruments.  Therefore, the petitioners consider there to be no duplication since the proceeding is not “substantially the same” as the instant petition, in accordance with what the Inter-American Court has found.[18]

33.              As to the comments of the State regarding the 36 victims to the effect that the petitioners did not provide facts that describe violations, but merely their names (see Section III, B below), the petitioners note that they were victims of threats.

34.              Based on the foregoing, the petitioners ask the IACHR to find the State responsible for violation of the rights to life, humane treatment, personal liberty, a fair trial, and judicial protection recognized in Articles 4, 5, 7, 8 and 25 of the American Convention, all in connection with Article 1(1) thereof, as well as freedom of association recognized in Article 8(1)( a) of the Protocol of San Salvador.

B.         The State

35.              In its response the State argues that the petition is inadmissible on account of the Commission’s lack of jurisdiction ratione personae and ratione temporis as well as the petitioner’s failure to exhaust domestic remedies in accordance with Article 46(1)(a) of the American Convention.

36.              With respect to the competence ratione personae of the Commission, the State understands that the group of victims is composed of the 91 persons named in the petition and the members of the legal persons which have been presented as alleged victims (SINTRAOFAN and its subdirectorates). The State further notes that inter-American legal doctrine has determined that for a petition to be admissible, there must be “specific, individually identified victims and that petitions presented in abstracto not connected with the rights of individually identified human beings are not admissible.”  Therefore, the State considers that the petitioners have the obligation to identify the alleged victims and their next of kin individually since they have the union membership book and that said requirement has not been met, either with respect to the workers who were collectively threatened or as regards the members of the various subdirectorates whose status and number were not determined.  By the same token, the State believes that the list of members of subdirectorates and the list of minutes presented by the petitioners should be rejected since they are not supported by evidence and they do not demonstrate union member status.[19]  Therefore, it requests that the IACHR reject the petition with regard to the allegations in which the victims are not individually identified, named, or specified.

37.              Furthermore, with respect to the submission of the petitioners regarding violation of the trade union rights of SINTRAOFAN (see Section III, A above), the State notes that “the IACHR has consistently excluded legal persons from its jurisdiction in the area of individual petitions,” saying that it lacks competence ratione personae to examine a petition submitted by a legal person because the latter are not covered by the protection offered by the Convention.  Nor does the State concur with the arguments put forward by the petitioners to the effect that the Commission is competent because trade union organizations are indispensable for enabling workers to protect and uphold their rights.[20]  Furthermore, it holds, based on its interpretation of Article 8(1)(a) of the Protocol of San Salvador, that the freedom that the State affords trade unions to form federations and confederations is an extension of the right of individuals to freedom of association and not a right in its own right.  The State, therefore, asks the IACHR to reject the petition inasmuch as it lacks in personam jurisdiction with regard to SINTRAOFAN and its subdirectorates as legal persons.

38.              As to the petitioners’ submissions with regard to violation of the right to freedom of association recognized in the Protocol of San Salvador, the State notes that the fact that the Protocol came into force for Colombia on November 16, 1999, means that the facts alleged in the petition occurred after its entry into force.  The State also says that the Commission lacks temporal jurisdiction to take up the following allegations made in relation to the Protocol of San Salvador because they occurred after the its entry into force: the displacement of Francisco Mestra, Antonio Pino, Girdaldo Serna, Héctor Echavarría, Jesús María Sanpedro, Jorge Echavarría, José Reinaldo Gallego, Luis Eduardo Atehortua, Luis Eduardo Ramírez, Omar Campiño, Omar Prisco, Oscar Estrada, Jaime Alonso Gallego Gómez, Omar Alberto Tobón Albanéz y Oscar Alberto Estrada; the threats against Carlos Adrián Echavarría, Jorge Eliécer Usaga, Orlando Martínez and Ramiro Eusse, and the killing of Juan de la Cruz Aguirre, Juvenal Gallego Montoya, Octavio de Jesús Sepúlveda Benítez, Fabio A. Escobar Martínez, Gabriel Ángel Palacio Estrada, Israel Sánchez Florez, Darío de Jesús Oquendo, Gildardo Durango Rengifo, José Abelardo Jiménez Peña, Liomedi López Yuste, Oscar de Jesús Arruba, Luis Humberto Herrera Gallego, Luis Fernando Elorza, Margarita Guzmán Restrepo, and Manuel José Jaramillo. 

39.              In response to the argument of the petitioners with regard to the continuous nature of the alleged violations of Article 8(1)(a) of the Protocol of San Salvador arising from the displacement and lack of response to the complaints lodged by members of SINTRAOFAN, the State holds that it is spurious to assert that the apparent continuous nature of the displacement and failure to investigate the offenses renders the violation of the right contained in Article 8(1)(a) permanent, since that would distort the structure of the scope of the Commission’s temporal jurisdiction.[21]  The State considers that the alleged violation of freedom of association was consummated when the members were forcibly separated from the union by third parties, a deed not attributable to the State.  It argues that it is natural for certain effects to persist but that does not make the violation continuous.  Consequently, the State requests the IACHR to disregard the supposedly continuous nature of the alleged violations, and to reject the petition with regard to said facts as well as the alleged violation of the Protocol of San Salvador.

40.              The State notes that a complaint brought by domestic and international trade union organizations against the State of Colombia -Case No. 1787- is proceeding before the International Labor Organization (ILO) for alleged violations of freedom of association,[22] in particular murders and other acts of violence against trade union officials, including Francisco Eladio Sierra Vásquez and Gildardo Uribe, and that also included in that case are David Frank Ángel, Edgar Orlando Marulanda Ríos, Ramón Chaverra Robledo, Fidel A. Segura, Luis Carlos Cano, and the SINTRAOFAN workers, all alleged victims in the petition lodged with the Commission.  Therefore, the State considers that in view of the overlapping subject matter and victims there is a concurrency of international proceedings. Accordingly it requests the Commission, under Article 46(1)(c) of the American Convention, to declare the petition inadmissible with respect to the seven alleged victims who coincide with the case being processed before the ILO, and with respect to the allegations relating to the death threats directed in general at the members of SINTRAOFAN and their subdirectorates.

41.              The State also argues that the petitioners’ complaint fails to meet the requirement of prior exhaustion of domestic remedies and that the exceptions provided in Article 46(2) (b) and (c) are not applicable given that said remedies were and still are available, that several of the investigations are still underway, and that no analysis has been made of reasonableness of time with respect to the criminal proceedings.

42.              In this connection, the State considers, with respect to the alleged victims affected by the loss of their freedom of association as a result of a violation of the right to life -for which restitution is impossible-, that this situation has triggered criminal proceedings as the suitable remedy.  The State also mentions that the families of the deceased had access to two mechanisms to seek reparation: a direct claim for damages in an administrative proceeding for acts attributable to agents of the State, or a civil claim for damages in a criminal proceeding for acts not attributable to the State.  The State notes that a direct claim for damages is not appropriate on its own but is an additional remedy that is invoked together with other remedies offered by the State in order to protect against human rights violations and provide adequate comprehensive reparation,^[23] and which must be exhausted.

43.              The State also says that in cases where the right to life of the union members was not compromised, they also had access to special labor proceedings to protect their employment security as union representatives, either through a wrongful dismissal action to confirm due cause for dismissal, or through an action for reinstatement, by which the court is petitioned to order the restoration of the labor relationship or payment of lost pay.[24]  The State says that indirect dismissal -through illegal constraint of workers to force them to resign- is banned as a form of termination of the labor relationship, against which an action for reinstatement can be interposed.  In response to the argument of the petitioners that a labor proceeding is not a suitable remedy to protect freedom of association, the State says that the reparations provided through such proceedings serve a dual purpose: to ensure the worker’s right to work and, therefore, to ensure freedom of association.  The State further argues that the statutory time limit for bringing an action for reinstatement is a rule designed to ensure the correct administration of justice and does not constitute a breach of the American Convention.

44.              The State says that the petitioners claim that illegal armed groups prevented their access to the domestic courts and that in only one case was this situation reported to the authorities for investigation.  The State holds that given the individual character of petitions and that it is not possible to claim that a situation of universal fear existed, the argument that fear prevented the victims from instituting proceedings before the domestic courts must be proved on an individual basis.  The State also considers the petitioners’ claim regarding the paramilitary groups’ supposed penetration of institutions to be reckless and unfounded.  The State includes in its observations brief a list of 21 cases investigated at the domestic level, some of which are still open.  Based on the foregoing, the State requests that the Commission refrain from a reasonableness-of-time analysis of the criminal proceedings until the elements necessary to confirm compliance with the requirements established by its case law have being provided;[25] and that it declare the exceptions to the rule of exhaustion of domestic remedies invoked inapplicable.

45.              The State also notes with respect to the following 36 alleged victims that the petitioners have provided their names but no information as to facts that amount to violations: Carlos Alberto Borja Hoyos, Gilberto Toro Quintero, Charles Figueroa Lopera, César Urán, Francisco Luis Echavarría, Jesús María Castaño, John Jain Betancur, Jorge Soto, Carlos Albeiro Higuita López, Hernán de Jesús Álvarez, Arcadio Chica Foronda, Campo Elías Lozano Perdomo, Darío Saldarriaga, Dempsy Tangarife Yepes, Fernando Alberto Torres Ríos, Gildardo Uribe García, Gonzalo Humberto Marín, Gustavo Adolfo Bedoya Monsalve, Hernán Rivas Hernández, Hugo Humberto Vásquez Velásquez, Jelver Ramírez González, Jhardy de J. Taborda, John Dairo Castaño, John Jairo Araque, José Leonel Bermúdez Rojas, Julio Florez, Luis Guillermo Betancur, Manuel de Jesús Zapata Valencia, Marcial Manuel Oviedo Casilla, Neftalí González Indárraga, Nicolás Agustín Rendón, Octavio Parra Arredondo, Orlando Córdoba Mejía, Pedro Nel Martínez Morales, René Antonio Restrepo Mejía, and William de Jesús Castañeda.  In this regard, the State believes that it is not possible that the mere fact of affiliation to the union can be grounds for inclusion of these individuals as victims of the acts alleged in the petition.  Therefore, it requests the Commission, under Article 47(b) of the Convention, to declare the petition inadmissible with respect to the aforesaid 36 individuals.

46.              Finally, the State clarifies that the death of Gildardo Durango Rengifo occurred on September 12, 1996, according to the report of the Chigorodó Municipal Prosecution Unit, not on June 11, 1996 as the petition suggests.  The State also says that the death of Amparo del Socorro Echavarría occurred on June 2, 1997, according to the Report of the Segovia Municipal Prosecution Unit, not on June 17 as the petition claims.

IV.        ANALYSIS

A.         Competence

47.              The petitioners, in principle, have standing under Article 44 of the American Convention to lodge petitions with the IACHR.  Colombia has been a party to the American Convention since July 31, 1973, when it deposited its instrument of ratification, and a party to the Protocol of San Salvador since November 16, 1999, when it became the 11th country to ratify the Protocol.  Therefore, the Commission is competent ratione temporis because the obligation to observe and ensure the rights protected in the American Convention was already binding upon the State at the time the events described in the petition are alleged to have occurred.  Furthermore, the Commission has ratione temporis competence with respect to the rights protected in the Protocol of San Salvador, in relation to the facts that reportedly occurred after November 16, 1999.

48.              The petitioners say that the Commission has ratione temporis jurisdiction over those acts that occurred after November 16, 1999, the date on which the Protocol of San Salvador came into force. This jurisdiction extends to any acts that occurred before that date, whose effects, owing to the continuous nature of said acts, persisted at the time of the Protocol’s entry into force; such acts include forced displacements, threats and murders.   For its part, the State responds that the entry into force of the Protocol of San Salvador came after the facts with which the petition is concerned and that the apparent continuous nature of the displacement and failure to investigate the offenses does not render the violation of the right contained in Article 8(1)(a) permanent, since otherwise the scope of the Commission’s temporal jurisdiction would be distorted.  The State considers that the alleged violation of freedom of association was consummated when the members were forcibly separated from the union. 

49.              In this connection the Commission also notes that other facts alleged by the petitioners could have occurred after the entry into force of the aforesaid instrument; more specifically, the facts alleged with regard to the response of the judicial authorities.  The question of a possible connection between those acts and the guarantees provided in Article 8 of the Protocol of San Salvador is something that the Commission will consider, as appropriate, in the merits stage once it has received comments and evidence on merits from the parties.  The Commission finds in this petition that the execution of certain alleged violations was instantaneous in nature and that they were committed and consummated before contentious jurisdiction was accepted, notwithstanding that there consequences might have persisted.  As regards those acts, the Commission lacks ratione temporis competence in relation to any displacements, threats, and murders that occurred after November 16, 1999. 

50.              The petition names as alleged victims approximately 1,500 individual members of SINTRAOFAN, in respect of whom the Colombian State undertook to observe and ensure the rights enshrined in the American Convention.  The State, for its part, holds that the group of victims is composed of the 91 persons named in the petition and the members of the legal persons which have been presented as alleged victims (SINTRAOFAN and its subdirectorates). The State further notes that for a petition to be admissible, there must be “specific, individually identified victims and that petitions presented in abstracto not connected with the rights of individually identified human beings are not admissible.  For their part, the petitioners respond that there is no rule in the American Convention or in the Rules of Procedure of the Commission that requires the identification of victims as a pre-requisite for petitions to be considered.

51.              The Commission reiterates that the text of Article 44 of the American Convention, which enables “any person or group of persons, or any nongovernmental entity [to] lodge petitions with the Commission containing denunciations or complaints of violation (...) by a State Party,” contains no restriction of competence in terms of the specific identification of individuals affected by such a violation.  It is a deliberate omission, intended to allow the examination of human rights violations that, by their nature, may affect a given individual or group of persons who are not necessarily fully identified at the time the petition is lodged.[26]  In the instant case, the petitioners have submitted a partial list of the SINTRAOFAN membership for the period when the events that are the subject of complaint occurred, which permits identification of the alleged victims.  The difficulty in fully identifying the victims of threats that led to their forced displacement stems precisely from their scattered location brought about by their displacement.  The IACHR considers that in such cases, requiring formal criteria to identify the victims does not contribute to the international protection of freedom of movement and residence and the right to property, and therefore the criterion for the identification of victims at this stage of the proceeding should be flexible and the full identification of all the victims shall be determined from the evidence provided by the parties in the merits stage.[27]  Thus, the Commission has ratione personae competence to examine the petition as regards the alleged violations of the American Convention with respect to the members of SINTRAOFAN.

52.              While the Colombian State’s opinion that the procedure set out in the American Convention whereby the Inter-American Commission and Court examine and determine the responsibility of states parties in individual cases cannot be used to examine general or abstract situations is correct,[28]   that is not, however, applicable to the matter at hand.  The petitioners’ complaint does not constitute an abstract grievance about the overall situation of trade union members or internally displaced persons in Colombia.  The factual submissions present circumstances of time and place that would appear to have affected the SINTRAOFAN membership, whose location from a geographical and temporal point of view is clear.  Furthermore, the State has registration mechanisms for displaced persons at its disposal, and therefore the Commission finds that there are ways to identify the great majority of persons affected by the facts alleged in the petition.

53.              The petitioners also name SINTRAOFAN, a legal person, as an alleged victim on the ground that the State did not permit it to operate freely, in contravention of its obligation under Article 8(1) of the Protocol of San Salvador.  They argue that the freedom of association of its members is only realized to the extent that the existence of the trade union is permitted and that in this case the State prevented SINTRAOFAN from forming national federations and confederations.  For its part, the State holds that the IACHR lacks ratione personae jurisdiction to analyze a petition presented on behalf of a legal person, on the basis that the latter are excluded from the protection offered by the Convention and that the right contained in Article 8(1)(a) of the Protocol of San Salvador is an extension of the right of individuals to freedom of association and not a right in its own right.

54.              In this regard, the Commission has previously held that the Preamble of the American Convention on Human Rights and Article 1(2) thereof provide that, ‘for the purposes of this Convention, “person” means every human being,’ and that the protection afforded by the inter-American system of human rights is limited to natural persons.^[29]  Moreover, Article 8(1)(a) of the Protocol establishes guarantees for the right “of workers to organize trade unions” and, as an extension of that right, the obligation of the State to permit the formation of federations and confederations.  Therefore, the Commission lacks ratione personae competence to pronounce on alleged violations against a legal person, such as SINTRAOFAN.  However, as noted, the IACHR has ratione personae competence to examine the petition as regards the members of SINTRAOFAN, who are also named as victims in this case, with respect to the scope of the rights protected in Article 8(1)(a) of the Protocol of San Salvador, as well as to the duties of the State, including that of ensuring the right to form trade unions and permit their members to join together in federations and confederations.

55.              Finally, the Commission has ratione materiae competence because the petition alleges violations of human rights protected by the American Convention and the Protocol of San Salvador.  Finally, the Commission is competent ratione loci to examine the petition because it alleges violations of rights protected in the American Convention and the Protocol of San Salvador that are purported to have occurred within the territory of Colombia, a state party to said treaties.

B.         Admissibility requirements

1.           Exhaustion of domestic remedies and timeliness of the petition

56.              Article 46(1)(a) of the American Convention provides that admission of petitions alleging violation of the Convention shall be subject to the requirement that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.  Article 46(2) of the Convention provides that the rule on 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.

As the Inter-American Court has found, the State claiming non-exhaustion of domestic remedies has an obligation to prove that the domestic remedies that remain to be exhausted are “adequate" for dealing with the violation alleged, in other words, that the function of those remedies in the legal system of the country is suitable to address an infringement of a legal right.^[30]

57.              To begin with, the Commission must clarify which domestic remedies need to be exhausted in the instant case.  The Inter-American Court has found that the only those remedies that are adequate for addressing an alleged violation need be exhausted  In the words of the Court:

Adequate domestic remedies are those which are suitable to address an infringement of a legal right.  A number of remedies exist in the legal system of every country, but not all are applicable in every circumstance.  If a remedy is not adequate in a specific case, it obviously need not be exhausted.  A norm is meant to have an effect and should not be interpreted in such a way as to negate its effect or lead to a result that is manifestly absurd or unreasonable.[31]

58.              In the instant case the State argues that the petition does not meet the requirement of prior exhaustion of domestic remedies provided at Article 46(1)(a) of the American Convention because there are still criminal proceedings pending on homicides and alleged violations of the right to humane treatment and that only one complaint alleging threats was presented.  As regards the alleged violations of freedom of association the State argues that the petitioners exhausted neither the action for wrongful dismissal nor the action for reinstatement in the labor courts.  Furthermore, the State argues that the relatives of the victims did not exhaust the administrative jurisdiction nor file a civil claim for damages in the criminal proceedings. 

59.              For their part, the petitioners consider that the exceptions to the rule of prior exhaustion of domestic remedies provided at Article 46(2)(c) of the American Convention are applicable in view of the unwarranted delay and ineffectiveness in processing the complaints and the investigations initiated since 1995.  They also invoke the exceptions provided in Article 46(2)(b) of the Convention with respect to the arguments on displacement and threats on account of the prevention of access to domestic remedies as a result of fear caused by illegal constraint supported by institutions.  They also hold that it is unwarranted for every individual member of the organization to report the same threat made against their group.  The petitioners argue that the labor courts are not suitable because they do not impose sanctions but financial penalties on those responsible for wrongful dismissal; that an action for reinstatement can guarantee the right to work for workers, provided that they enjoy employment security as union representatives, but does not protect against violations of freedom of association; and that exhaustion of a claim for civil damages in criminal proceedings would be possible if the State identified and prosecuted those responsible. However, in the instant case there has been no judgment whatsoever that would enable the relatives of the victims to file a claim for civil damages.  They also argue that the Inter-American Court has consistently held that the administrative jurisdiction is not suitable to redress and repair violations of the rights to life and humane treatment. 

60.              As to the submissions concerning the duty of the State to protect and react to violations of the rights to life and humane treatment, the case law of the IACHR recognizes that when a publicly actionable offense is committed, the State has the obligation to institute criminal proceedings and pursue them,[32] and that in such cases, this is the best way to clarify the facts, judge the perpetrators, and establish the corresponding criminal punishment, in addition to providing for other forms of reparation, including financial reparation.  The Commission notes that the petitioners’ claims in the instant case refer to alleged violations of inalienable fundamental rights, to wit the rights to life and humane treatment, which entail publicly actionable offenses for the State, a fact that warrants consideration for the purposes of determining the admissibility of the complaint.

61.              The Commission finds that the Office of the Prosecutor General opened 21 ex officio investigations for homicides and violations of the right to humane treatment, and that more than 14 years after the first investigation was initiated in August 1995, 11 remain open, six have been closed, three are suspended, one is at the preliminary investigation stage, and no suspected culprits have been identified or singled out.

62.              In this regard, the Commission notes that, as a general rule, criminal investigations must be conducted promptly, in order to protect the interests of the victims, preserve the evidence, and safeguard the rights of anyone considered a suspect in the context of the investigation.  As the Inter-American Court has noted, while every criminal investigation must meet a series of legal requirements, the rule of prior exhaustion of domestic remedies should not lead international action on behalf of the victims to come to a halt or to be delayed to the point of being rendered ineffective.[33] 

63.              The Commission also notes that the petitioners attempted various remedies before the authorities in a bid to have justice administered.  Specifically, on June 13, 2002 SINTRAOFAN filed a complaint with the Office of Human Rights of the Antioquia Regional Office of the Ministry of Labor and Social Security, alleging violation of freedom of association. Furthermore, several complaints were presented to the Antioquia Departmental Prosecutor’s Office, Provincial Prosecutor’s Offices, and Municipal Attorney’s Offices, all to no avail.  On December 17, 2003, SINTRAOFAN filed a complaint with the Office of the Prosecutor General, alleging threats against the trade union organization and its members. However, the investigation of this complaint has also failed to yield any results. 

64.              As regards the direct reparation action to which the State refers, the Commission notes that such an action does not offer the necessary elements suitably to remedy the injuries alleged, which mainly concern the duty of the State to prevent violations and protect rights.  The administrative jurisdiction is a mechanism aimed at supervising the administrative activity of the State that only allows obtaining a compensation for damages caused by abuse of authority.

65.              Furthermore, based on the alleged facts, the Commission finds prima facie that the members of SINTRAOFAN received death threats or were murdered because of their opposition to the “voluntary retirement plan”, layoffs and the dissolution of union subdirectorates, as well as their complaints or participation as witnesses in a labor proceeding; that the alleged context of intimidation precluded or obstructed their access to domestic remedies; and that the acquiescence is alleged of agents of the state in this framework of intimidation and obstruction.

66.              The Commission has stated that an essential component of the enforceability of the right to justice and social rights is the possibility of access to actions in representation of collective interests, and it has referred to the right to effective judicial protection in its collective dimension.  The right to justice is covered in Article 25 of the American Convention and closely linked to freedom of association. Accordingly, the relevant judicial remedies are those that are suitable for the protection of rights of this type.[34]  In this connection the Commission observes that the petitioners claim that the alleged victims were the target of threats from paramilitaries with the acquiescence of state agents, which in very often resulted in their murder, as collective acts of reprisal designed to interfere with their union activities.  They also allege that the State was aware of the situation and yet failed to provide an effective response.  To the extent that the petitioners claim a collective dimension in the alleged threats and forced displacement and bearing in mind the lack of response from the State, a suitable remedy would have to be capable of addressing this situation.  The petitioners have claimed an absence of remedies that are capable of this and the State, for it is far, has based its response on remedies of an individual nature.  Consequently, in a case such as this it is not necessary to exhaust these remedies before resorting to the inter-American system.

67.              Therefore, given the characteristics of the instant case and the time elapsed during the period of alleged violations that are the subject of the petition, the Commission finds to be applicable the exceptions provided in Article 46(2) (b) and (c) of the American Convention as regards the delay in domestic judicial proceedings on the homicides and in processing the complaints of violation of the right to humane treatment. Therefore, the rule on exhaustion of domestic remedies can be set aside.

68.              Invocation of the exceptions to the rule of exhaustion of domestic remedies provided in Article 46(2) of the Convention is closely linked to the determination of possible violations of certain rights set forth therein, such as 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 are applicable to a particular case requires an examination carried out in advance of and separate 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, where pertinent, in the report that the IACHR adopts on the merits of the dispute, in order to determine if they constitute violations of the American Convention.

2.                  Timeliness of the petition

69.              The American Convention provides that for a petition to be admissible, it must be presented within six months of the date on which the party alleging violation of rights was notified of the final judgment.  In the complaint under review the IACHR has determined that the exceptions to the rule of exhaustion of domestic remedies pursuant to Article 46(2) (b) and (c) of the American Convention are applicable.  In this regard, Article 32 of the Commission’s Rules of Procedure states that when the exceptions to the rule requiring prior exhaustion of domestic remedies apply, the petition is to be presented within what the Commission deems to be a reasonable period.  The Commission must therefore consider the date on which the alleged violation of rights occurred and the circumstances of each case.

70.              In the instant case the petition was lodged on December 27, 2005; the facts alleged in the complaint began to occur in 1995 and lasted several years until the date of its presentation.  In light of the context and characteristics of the instant case, as well as the fact that there are investigations still open at an initial stage, the Commission considers that the petition was lodged within a reasonable time and that the admissibility requirement regarding the timeliness of the petition must be deemed met. 

3.                  Duplication of proceedings and res judicata

71.              The Commission notes that the State has argued lack of jurisdiction under Article 46(1)(c) of the Convention by reason of the concurrent international processing of a complaint against the State of Colombia before the ILO, which involves SINTRAOFAN and seven individuals named as alleged victims of murder and intimidation in the instant petition. Accordingly, the Commission must examine if there is duplication of proceedings.

72.              Article 46(1) of the Convention states:

Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements:

[…]

c) that the subject of the petition or communication is not pending in another international proceeding for settlement, […]

73.              Article 47 of the Convention provides that:

The Commission shall consider inadmissible any petition or communication submitted under Articles 44 or 45 if:

d.         the petition or communication is substantially the same as one previously studied by the Commission or by another international organization.

74.              The Inter-American Court, for its part, has found that

The phrase “substantially the same” signifies that there should be identity between the cases.  In order for this identity to exist, the presence of three elements is necessary, these are: that the parties are the same, that the object of the action is the same and that the legal grounds are identical. In the instant case there is no duplication of proceedings.^[35]

75.              For its part, the Commission has held that for duplication or res judicata to exist,[36] a petition must be under consideration or have been ruled upon by an international organization with the competence to make decisions on the specific facts described in the petition and to impose measures capable of effectively resolving the dispute.[37]  In the instant petition the provisional report issued by the Committee on Freedom of Association does not pronounce on the alleged violations of the rights to life, humane treatment, personal liberty, movement and residence, a fair trial, and judicial protection.  Furthermore, the Commission has indicated that the recommendations made by the ILO Committee on Freedom of Association “[do] not entail any binding effect, either pecuniary or restorative, or compensatory.”[38]  Therefore, the Commission finds that the requirements set forth in Articles 46(1)(c) and 47(d) of the Convention have been met.

4.                  Characterization of the alleged facts

76.              According to the petitioners the State has violated the rights provided in Articles 4(1), 5(1), 7(1), 8(1), 16, 22(1), and 25 of the American Convention, in conjunction with Article 1(1) thereof, and in Article 8(1)(a) of the Protocol of San Salvador, inasmuch as they hold that the acts alleged in the petition were carried out by, or with the participation or acquiescence of, agents of the state.  The State, for its part, argues that the members of SINTRAOFAN were forcibly separated from the union by third parties and that this is not attributable to the State.  Bearing in mind the available information for the purposes of a review of admissibility, the scope of the State’s obligations, and the factual, evidence-based, and legal arguments offered by the parties, the latter are elements that that require and pertain to an analysis of merits.

77.              The State has contested the submissions of the petitioners with respect to the alleged violations committed against 36 individuals (see Section III, B), arguing that the petitioners have not stated facts that describe the alleged violations with respect to said individuals.  The petitioners, for their part, hold that those persons were victims of threats.  In this connection, the Commission finds that for the purposes of the report on admissibility it must include the arguments of the petitioners with respect to the alleged threats made against these 36 individuals.  At the same time it points out that the alleged violations will be examined in the report that the Commission adopts on the merits of the dispute in order to determine whether or not they constitute violations of the American Convention.

78.              The petitioners also assert violation of the right to personal liberty to the detriment of a number of members of SINTRAOFAN.  The Commission considers that the petitioners have not provided sufficient evidence to establish a possible violation of Article 7 of the American Convention and, therefore, it must declare that claim inadmissible.

79.              The Commission considers that the petitioners’ claims of alleged violation of the rights to life, humane treatment, personal liberty, a fair trial, freedom of association, freedom of movement and residence, and judicial protection, could characterize violations of the rights protected by Articles 4(1), 5(1), 8(1), 16, 22(1), and 25 of the Convention, in conjunction with Article 1(1) thereof, and by Article 8(1)(a) of the Protocol of San Salvador.  Since these aspects of the complaint are clearly not baseless or out of order, the Commission considers the requirements set forth in Articles 47(b) and (c) of the American Convention to be met.

V.         CONCLUSIONS

80.              The Commission concludes that it is competent to examine the petition with respect to the alleged violations of Articles 4(1), 5(1), 8(1), 16, 22(1), and 25 of the Convention, in conjunction with Article 1(1) thereof, and of Article 8(1)(a) of the Protocol of San Salvador, and that the petition is admissible in accordance with the requirements contained in Articles 46 and 47 of the American Convention.  It also concludes that the complaint with respect to the alleged violation of Article 7 of the American Convention is inadmissible.

81.              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 Articles 4(1), 5(1), 8(1), 16, 22(1), and 25 of the Convention, in conjunction with Article 1(1) thereof, and Article 8(1)(a) of the Protocol of San Salvador, and to declare the complaint with respect to the alleged violation of Article 7 of the American Convention inadmissible.

2.                  To notify the Colombian State and the petitioner of this decision.

3.                  To proceed with its analysis of merits in the matter.

4.                  To publish this decision and include it in its Annual Report to the OAS General Assembly.

Approved by the Inter-American Commission on Human Rights on the 30^th day of the month of December, 2009. (Signed): Luz Patricia Mejía, President; Víctor E. Abramovich, First Vice-President; Felipe González, Second Vice-President; Sir Clare K. Roberts, Paulo Sérgio Pinheiro, Florentín Meléndez, and Paolo G. Carozza, members of the Commission.