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REPORT
Nº 2/94
CASE 10.912
COLOMBIA
February 1, 1994(*)
1. On
June 2, 1991 the Inter-American Commission on Human Rights received
the following complaint:
I.
THE FACTS
At the Honduras farm:
At approximately 1 a.m. on March 4, 1988, 20 armed men in
civilian clothes arrived at the Honduras farm situated in the
jurisdiction of Currulao, municipality of Turbo, Department of
Antioquia, in the Golfo de Urabá area of Colombia.
They banged on the door of the room where the workers on the
Honduras farm and their families were sleeping, and calling each one
by name, forced them to come out and lie down on the floor.
Women, children and those workers who had not been selected
were made to stay in their rooms and turn off the lights.
The attackers then fired on the totally defenseless workers
with short and long-range weapons, killing the 17 they had selected.
At the La Negra farm:
After the crime, the individuals proceeded to the La Negra
farm, not far from the Honduras farm, and murdered three other workers
there.
II. THE
VICTIMS
2. The
murdered workers from the Honduras farm, all active members of the
Antioquia Agricultural workers Trade Union, SINTAGRO, were:
1. PEDRO
MIGUEL GONZALEZ MARTINEZ: 20
years of age;
2. JOSE
BIENVENIDO GONZALEZ MARTINEZ: 20
years of age;
3. JOSE
MESA SANCHEZ: married;
4. JOSE
JOAQUIN MENDOZA: 30 years
of age;
6. RODRIGO
GUZMAN ESPITIA: 35 years
of age;
7. MANUEL
ESPITIA COGOLLO: 40 years
of age;
8. ENRIQUE
GUIZAO GIRALDO: 47 years
of age;
9. RITO
MARTINEZ REYES: 28 years
of age;
10. SANTIAGO
ORTIZ CAUDO: 40 years of
age;
11. NESTOR
MARIÑO GALVEZ: 45 years
of age;
12. JOSE INDOVEL
PINEDA: 29 years of age;
13. NATANIEL
ROJAS RESTREPO: 48 years of
age;
14.
OMAR OCHOA;
15. GUILLERMO LEON VALENCIA;
16.
MANUEL DURANGO; and
17. JOSE FRANCISCO BLANCO.
The
workers murdered at the La Negra farm were:
1.
JULIAN CARRILLO;
2. ALIRIO ROJAS; and
3. ADEL MENESE PINEDA.
Total:
20 workers murdered.
III. BEFORE
THE MASSACRE
3. The
events preceding the massacre are as follows:
Eight days before the events, on February 24, 1988, a patrol of
the Voltíjeros battalion of the army under lieutenant of the B-s
Military Intelligence, PEDRO BERMUDEZ LOZANO, accompanied by individuals
in civilian dress, conducted searches at the Honduras, La Toyosa and
Agripina farms. There they
threatened to kill workers to prevent them from voting in the elections
that were to be held on March 13 and gave them 14 days to leave the
area. They also arrested
PASCUAL FUENTES RAMOS: JOSE ALBERTO GARCIA FERNANDEZ, JESUS PALACIOS
ASPRILLA and OLGA LUCIA RESTREPO, 16 years of age, and took them to the
barracks where they questioned them, using duress and threats and
forcing them to declare that several workers on the honduras and la
negra farms belonged to the guerrilla movement people's liberation army
(EPL). Olga Lucía was also
taken to those farms mentioned and indicated the place where the
workers, alleged members of the EPL, lived.
At the barracks the detainees met two individuals whom they
identified as "Lenin" and "Zacarías", former
members of the EPL, and realized that they were working as army
informers. These
individuals took part in their interrogation and offered them money to
work for the army and turn over their colleagues.
The detainees recalled that at one stage in the interrogation
"Lenin" told a B-2 corporal that the Honduras, La Negra, la
Toyosa and Oro Verde farms were guerrilla cells, to which the
noncommissioned officer replied that he shouldn't worry because they
would soon be paying them a visit.
Two days before the massacre, on March 2, the troops of the Voltíjeros
battalion under Captain Luis Felipe Becerra appeared at the La Zumbadora
farm, located near the Honduras and La Negra farms, accompanied by a
masked individual who pointed out some workers.
Six workers were detained there and beaten in front of their
colleagues. The captain
told them that he would not kill them himself, but that he would have
someone else do the job, and again warned them against voting for the
Unión Patriótica in the elections.
IV. FORMALITIES
OF THE CASE
4. On
July 2, 1991 the pertinents parts of the petition were transmitted to
the Government of Colombia.
5. The
Government of Colombia replied to the Commission on October 4, 1991,
informing it that the case was undergoing a thorough internal inquiry,
and promised to inform the Commission as soon as it received the
additional information it had requested on the investigations taking
place of the murders at the Honduras and La Negra farms, and informed
the Commission that the domestic remedies had not been exhausted and
were still in process.
6. The
Government of Colombia having duly replied to the complaint, the
Commission continued to deal with the case in accordance with the rules
set forth in the American Convention on Human Rights and its
Regulations, giving each of the parties the opportunity to state what it
deemed appropriate concerning the observations formulated by each of
them.
7. During
the process of receiving and examining information from the various
parties, the Commission placed at the disposal of the Government of
Colombia the relevant parts of the communications sent by the petitioner
formulating observations on its allegations and/or making reference to
new or known evidence. The
following is the order of the correspondence from the Commission to the
Government of Colombia:
Note of July 2, 1991, forwarded the pertinent parts of the
complaint.
Note of July 3, 1992, forwarded the petitioner's observations on
the reply from the Government of Colombia to the complaint.
Note of May 19, 1992, forwarded the petitioner's observations on
its Official Letter of February 4.
Note of June 10, 1993, requested additional information with
regard to this case.
Notes of August 31 and September 1, acknowledged receipt of Note
No. 705 from the Mission, dated August 20, 1993.
8. The
Commission also informed the petitioner and forwarded the relevant parts
of the notes sent in reply by the Government of Colombia. The order of the notes sent to the petitioner by the
Commission is as follows:
Official letter of July 2, 1991, informed it of the initiation of
the formalities of the case.
Official letter of October 17, 1991, transmitted the Government's
reply.
Official letter of January 3, 1992, acknowledged receipt of
observations on the Government's reply.
Official letter of February 24, 1992, forwarded the Government's
reply dated February 19, 1992.
Official letter of May 19, 1992, acknowledged receipt of
observations on a further reply form the Government.
V.
EXHAUSTION OF DOMESTIC REMEDIES
9. The
following is a summary of the information provided to the Commission by
the petitioner and by the Government of Colombia, of the investigations
conducted on the aforementioned massacre:
A) THE
POLICE INVESTIGATION
The D.A.S., Administrative Department of Security, given the
seriousness of the events, prepared a confidential report entitled Investigation
of murders at La Honduras and La Negra, Urabá, April 16, 1988.
It stated that the problem started when the EPL stepped up its
campaign of kidnapping, murder and extortion against the farmers of the
region, who formed self-defense groups to join forces with the army;
this led to the polarization of positions and transformed the area into
a war zone, generating a power vacuum that encouraged all manner of
atrocities.
THE CONTEXT:
The Honduras farm consisting of 120 hectares of banana
cultivation and 60 hectares devoted to stock raising, one of the most
prosperous in the Urabá area in Antioquia, was like the others, the
object of the guerrilla attacks and invasion of lands supported by the
agricultural union SINTAGRO, which resulted in 40 families taking over
the farm, creating a confrontation between the owners and the trade
union, with presumed links to the FARCs, and subsequently, at the time
of the events, to the EPL.
THE CONCLUSION: In
the case of the Honduras and La Negra massacres, the Colombian army used
ex-guerrillas who had deserted from the EPL as guides, incorporating
them into their patrols, by locating, identifying and eliminating
alleged subversives and, for the same purpose, with hired assassins
(paramilitary troops) financed by ACDEGAM, or Association of Farmers and
Stockbreeders of Magdalena Medio.
This conclusion was corroborated by:
a) the statements by PASCUAL FUENTES RAMOS, who identified the
individual called Lenín as a former leader of the EPL who offered him
money for every 10 EPL members he turned over, and a fixed wage if he
worked for the army, and by OLGA LUCIA RESTREPO CORREA, who also pointed
out ZACARIAS as an EPL member who showed the troops to the La Negra,
Honduras, Oro Verde and other farms; b) proof that prior to the massacre
masked men were seen pointing out the future victims, the inference
being that only acquaintances would hide their faces to avoid
identification by victims and witnesses; c) the assassins' knowledge of
the victims whereabouts, their certain knowledge that weapons existed,
and the repeated visits by armed personnel accompanied by civilians,
inquiring about persons involved in subversion; d) verification that the
victims of the massacre, initially presented as simple farm-workers, did
indeed have links with the EPL and that the others were active members
of SINTAGRO; e) By the fact that, prior to these events several workers
abandoned some farms in the area, because they were aware of or involved
in the plot, and f) the participation in both massacres of a similar
number of people using similar weapons and the brutality used to
annihilate totally defenseless victims, behavior typical of paramilitary
fanatics, who are quite unscrupulous.
The D.A.S. concluded by pointing out that Public Order Court No.
2 had sufficient background and data in its possession, provided by the
DAS itself, to initiate an investigation, order arrests, raids and other
pertinent actions.
B)
JUDICIAL INQUIRY UNDER THE GENERAL PENAL CODE
On March 8, 1988, the Department of Criminal Proceedings, taking
the DAS report into account, set up a commission of inquiry under the
orders of the Second Public Order Court of Bogotá, which initiated a
preliminary inquiry. After
three months of investigation, on June 25, 1988, the Judge of the Second
Public Order Court of Bogotá, Dr. Martha Lucia González Rodríguez,
pronounced a decision with the following conclusions:
ON THE PRELIMINARY EVENTS.
On the evening of February 24, 1988, Lieutenant PEDRO
VICENTE BERMUDEZ LOZANO commanded a patrol that searched the Honduras,
La Toyosa and La Agripina farms.
During that operation four persons were arrested at the La Toyosa
farm: JESUS PALACIOS
ASPRILLA and OLGA LUCIA RESTREPO were discovered by a soldier, manuel
Morales, while they were hiding a bag containing weapons; then they
arrested PASCUAL FUENTES RAMOS and JOSE ALBERTO GARCIA, whom the first
two claimed were accomplices.
ON THE PROSPECTIVE VICTIMS.
Both at the barracks and before the Court, OLGA LUCIA RESTREPO
recognized that they were members of the People's Liberation Army, EPL,
a statement confirmed by PASCUAL FUENTES RAMOS and JOSE ALBERTO GARCIA,
and that they were also active members of the "JOSE DOLORES"
urban unit commanded by "el Pájaro", whose second-in-command
was CHUCHO, and another leader was MOLINA.
That members of this unit were EL DONALD, FRANCISCO, HUGO, RAMON,
YOLANDA, GARCES, EL ZAORRO, ENCARNACION, ANDRES MOZOS, EDWIN, TERESA,
BADILLO CARTAGENA, INOCENCIO, ALBETO, SILVIO, ALVARO, FAUSTINO, ALIRIO,
IVAN ZAPATA, JOAQUIN, CAMPILLO, PEDRO, most of whom worked at the
Honduras farm. That
LUIS ENOC MENESES is el Pájaro; JAVIER DE JESUS QUINTERO, Chucho; IVAN
DARIO MOLINA, Molina; LUIS ALBERTO PAEZ, Alberto; MANUEL GARCES ESCOBAR,
Garcés; LUIS SILVIO BERMUDEZ, Silvio; ALIRIO ROJAS, Alirio; IVAN
ZAPATA; PEDRO GONZALEZ, Pedro; and RAMILLO CAMPILLO, Campillo; JOSE DEL
TRANSITO MURILLO, el Diablo or Demonio; ABEL MENESES, el viejo, and
LIBARDO YANEZ, N.N. HOMBRE, Rambo.
This
proved to the court that the victims were mostly guerrillas and that the
massacre was the result of the dirty and clandestine that was being
waged.
ON EX-GUERRILLA INFORMERS.
Lieutenant Bermúdez Lozano and Sergeant Lagos Aranda confirmed
to the court that LENIN and ZACARIAS lived in the Voltíjeros battalion
where they had sought refuge when they deserted the guerrilla group,
thereby confirming their involvement.
ON PARAMILITARY TROOPS ON THE DAY OF THE MASSACRE.
On February 24, the armed men in civilian clothes who accompanied
Lieutenant BERMUDEZ, Corporal OCHOA and Captain BECERRA - were present
at the operation during which they arrested OLGA LUCIA RESTREPO, PASCUAL
FUENTES RAMOS, JESUS AMIN PALACIOS ASPRILLA and JOSE ALBERTO GARCIA
FERNANDEZ. The same 38
persons who had been dispatched by ACDEGAN in mid-February, shortly
before the events, from Puerto Boyacá to Urabá, to "purge"
the area of guerrillas with the help of members of the Armed Forces and
the national Police. It is also proved that it was those same persons who accompanied Olga Lucía to identify the place where the workers accused of being members of the EPS lived and that this version was corroborated by several witnesses among those present who were able to identify and describe them.
That those civilians were the same people who participated on
March 4, 1988, in the massacre at the Honduras and La Negra farms, and
that it was possible to identify them (1) because they had participated
in and been seen at various other army raids, and (2) they had been seen
by surviving relatives of the murder victims.
ON THE COMPLICITY OF THE ARMY:
It was determined during this investigation that the
responsibility of the members of the army on active service, attached to
the B-2 Voltíjeros battalion, such as Lieutenant PEDRO VICENTE BERMUDEZ
LOZANO, referred to participation as a collaborator in the murder under
investigation; that the officer knew the assassins who came to URABA
from Magdalena Medio for the purpose of murdering the individuals who
were active members of the extreme left; that not only did they go out
with those criminals for the February 24 operation when they detained
PASCUAL FUENTES and OLGA LUCIA RESTREPO, but also allowed them to enter
the battalion, and to carry long- and short-range weapons reserved for
the Armed Forces; finally, Lieutenant BERMUDEZ and his colleagues were
accused of accepting, facilitating, assisting and permitting the murder
of March 4, 1988, acting as ACCOMPLICES to that act since they had
effectively contributed to its occurrence.
It is obvious that in committing the multiple homicide at the
Honduras and La Negra farms, those individuals relied on the complicity
of the Army, a fact corroborated before the court by one of the
assassins, EULISES BARRERO, who added that on occasion, members of the
Army collaborated with the organization by giving it support and helped
to coordinate their activities with them, and allowing them to move
about even if armed.
That Lieutenant Bermúdez had lied when he stated that the Voltíjeros
battalion only learned of the massacre at 11 a.m. through a telephone
call from Bogotá. This was
denied by the police Commandant who says that he informed the battalion
before 10 o'clock in the morning, in addition to the fact that members
of the battalion were seen picking up spent cartridges and projectiles
from the site of the massacre and witnessed the removal of the corpses.
THE DECISION OF THE COURT.
The court decided to order Lieutenant BERMUDEZ LOZANO's arrest as
an accessory to the crimes of aggravated homicide; not to arrest
him in connection with the offense of robbery with which he had also
been charged, and not to issue an order of distraint or seizure of his
property since it was unaware whether he possessed any; to instruct the
authorities to establish an identification file on the accused, and to
request the Commander of the Armed Forces to suspend him from active
service in his army position, so as to render the arrest effective.
ON PARAMILITARY LEADERS AS INTELLECTUAL PERPETRATORS OF THE
MASSACRE.
The court succeeded in establishing the link and responsibility
of the ASOCIACION CAMPESINA DE GANADEROS DEL MAGDALENA MEDIO, ACDEGAM,
with headquarters in Puerto Boyacá, where the murder gang had its base
in the el Diamante farm belonging to Fidel Castaño.
They were trained at the Diamante Dos farm, which belonged to
Fidel Castaño. It was
proved that these squads with armed heavy weapons reserved for exclusive
use by the Armed Forces, moved about freely on the various highways
without being stopped by the police or army, although the areas where
law and order are most disturbed are heavily patrolled by military units
through which they would have had to pass.
That the main leaders are GONZALO PEREZ, HENRY PEREZ, MARCELO
PEREZ, FIDEL CASTAÑO, CESAR CURE, ALAN ROJAS, HERNAN GIRALDO, among
others, but that those responsible for the massacre at the Honduras and
La Negra farms were GONZALO PEREZ, HENRY PEREZ and MARCELO PEREZ, who
hired the 8 "mayordomos" with families to go to URABA
accompanied by another 30 men, some of whom, after committing the
murders in that region, went on to Montería, Córdoba, where they were
received by FIDEL CASTAÑO at his JARAGUAY farm.
Based on evidence collected, the Second Public Order court also
linked Captain Becerra and Corporal Ochoa Ortíz to the accused and
ordered the arrest of a paramilitary group including Fidel Castaño
and Luis Alfredo Rubio (at that time Mayor of Puerto Bayacá).
The Public Order Tribunal upheld those arrests.
JUDGES THREATENED AND MURDERED:
During the first week of September 1988, Second Judge, Dr.
Martha Lucía González, who had passed the sentence, was obliged to
leave the country because she was persistently threatened with death
if she continued the investigation.
On July 4, 1989, despite the judge's withdrawal and as a
reprisal against her, her father, the lawyer Alvaro Gonzáles, was
murdered. To replace
Dr. González, the Department of Criminal Proceedings transferred the
case to the city of Medellín
where the investigation fell to Dr. María Elena Díaz, Third
Public Order Judge, who undertook the investigation into the massacre
and continued examination of the evidence, and on June 17, 1989, upheld
the decision to arrest Lieutenant Bermúdez and on June 22 the arrests
of Mayor Becerra and Corporal Ochoa.
Very shortly after taking over the case the judge, dr. María
Elena Díaz, received death threats and was murdered on July
26, 1989.
Forty days after the murder of Judge María Elena Díaz, the
Higher Public Order Tribunal of Medellín granted a provisional
release to Lieutenant Bermúdez. In September 1989 the case was referred to the first Public
Order Court of Bogotá, which on November 1 of that year granted a
provisional release to Mayor Becerra and one month later, on December 1,
1989 revoked the rulings for the arrest of mayor Becerra, Lieutenant
Becerra and Corporal Ochoa. The
agent of the Ministry of the Interior appealed against this decision on
August 17, 1990, and the Public Order Tribunal revoked the decision
and confirmed the rulings for the arrest.
On June 17, 1991, Court 103 of the Public Order Jurisdiction,
Bogotá Section, passed the following sentences on the following
individuals for the murders at the "HONDURAS", "LA NEGRA"
and "PUNTA COQUITOS" farms:
Ricardo Rayo,
30 years' imprisonment for crimes of homicide for terrorist purposes and
terrorism as an accomplice in the perpetration of punishable acts,
payment of 50 minimum monthly wages and a cumulative penalty of
interdiction of rights and public functions for a period equivalent to
that of the main sentence; Mario Zuluaga Espinal, 30 years'
imprisonment for crimes of homicide for terrorist purposes and terrorism
as an accomplice in the perpetration of punishable acts, as intellectual
author of those crimes. He
was also fined 200 minimum monthly wages and condemned to the cumulative
penalty of interdiction of rights and public functions; Víctor Hugo
Martínez Barragán and Mario Usuga Guez, 20 years' imprisonment, a
fine of 50 minimum monthly wages and cumulative penalty of interdiction
of rights and public functions for a period equivalent to that of the
principal sentence; Víctor Suárez Sánchez, 22 years'
imprisonment and a fine of 50 minimum monthly wages for crimes of
homicide for terrorist purposes and illegal possession of arms and
cumulative penalty of interdiction of rights and public functions for a
period equivalent to that of the principal sentence; Luis Alfredo
Rubio Rojas, former Mayor of the town of Puerto Boyacá, Henry Pérez
Jiménez, Marcelo de Jesús Pérez, Gonzalo Pérez, Fidel Antonio Castaño
Gil, Adán Rojas Ospino, Hernán Giraldo Serna and Reinel Rojas each
sentenced to 20 years' imprisonment for the offense of conspiracy to
commit a crime with aggravating circumstances and cumulative penalty of
interdiction of rights and public functions for a period of time
equivalent to that of the principal sentence passed, but they were
acquitted of the charge of material and intellectual authorship of
homicide for terrorist purposes; Ricardo Rayo, Mario Zuluaga Espinal,
Víctor Hugo Martínez Barragán, Víctor Suárez Sánchez, Luis Alfredo
Rubio Rojas, Henry Pérez Jiménez, Marcelo de Jesús Pérez, gonzalo Pérez,
Fidel Antonio Castaño Gil, Adán Rojas Ospino, Hernán Giraldo
Serna and Reinel Rojas, sentenced to pay compensation of 2,000 grams
of gold for the material damage and 500 grams of gold for the moral
damages caused. The
court decided to add the following to the sentence:
To disallow the nullities raised on behalf of the defense by the
attorney for Fidel Castaño Gil and Ricardo Rayo; to deny
Ricardo Rayo's appeal; to grant the remedy of appeal invoked by the
Ministry of the Interior against the sentence of June 17 of this year;
to grant the remedy of appeal invoked by the attorneys for Luis Alfredo
Rubio Rojas, Mario Zuluaga Espinal, Hernán Giraldo Serna, Adán Rojas
Ospino and Ricardo Rayo. With
regard to Gonzalo Rodríguez Gacha, the Court decided not
to pass any judgement as proof of his death existed in the court
records, which was confirmed by the Higher Public Order Tribunal.
In the case of Pablo Escobar Gaviria, accused of
conspiracy to commit a crime and confined with security measures upheld
by the Public Order Tribunal, the court granted the appeal sought by his
attorney, on the grounds that there was no direct charge against him nor
any serious accusations connecting him to the events of the night of
March 4, 1988, thereby acquitting him of responsibility.
On January 30, 1992, the Higher Public Order Tribunal (now
National Tribunal) upheld the earlier decision against which LUIS
ALFREDO RUBIO ROJAS, HERNAN GIRALDO SERNA, FIDEL CASTAñO GIL and
RICARDO RAYO (who was under arrest) had appealed. Since March 31, 1992, the case has been before the Court of
Appeal of the Supreme Court of Justice.
Bearing in mind the legal provisions for processing the remedy of
appeal, it is likely that the Supreme Court of Justice could hand down a
decision at the end of this year.
In march 1992, the Disciplinary Tribunal decided that the
soldiers involved, that is, Captain Becerra (by then a Lieutenant
Colonel), Lieutenant Bermúdez (promoted to captain) and Sergeants Felix
Antonio Ochoa and José Ramiro Lagos, would be tried by military court,
acceding to the request made by the attorney for one of the officers.
C) INVESTIGATION
BY THE OFFICE OF THE ATTORNEY GENERAL OF THE NATION. SUMMARY OF ITS DECISIONS
(1)
DECISION OF AUGUST 19, 1992
The office of the Assistant Attorney General for the Armed Forces
instituted a disciplinary investigation against Captain (promoted
to Lieutenant Colonel) Luis Felipe Becerra Bohórquez; Lieutenant
(promoted to Captain) Pedro Vicente Bermúdez Lozano and
Corporal (promoted to Sergeant Class II) Felipe Ochoa Ruíz, and in
the light of the evidence accumulated against them, brought the
following charges.
1. That
as an Officer of the National Army, attached to the Tenth Brigade of
which he was Commander, he carried out the operation at the La Toyosa
and Honduras farms, located in the municipality of Turbo (Antioquia) on
February 24, 1988, which he visited accompanied by a number of heavily
armed assassins, individuals who during the night of March 4, of that
year killed 20 farmers who worked at the Honduras and La Negra farms.
2. That
also on February 24, 1988, he brutally mistreated staff working and
living in specific buildings of the La Toyosa and Honduras farms.
3. That
he threatened to kill the workers at Sumadera farm on March 2, 1988,
warning them that if they did not leave the region within 14 days they
would be murdered.
4. That
as Commander of the Voltíjeros battalion, he permitted Olga Lucía
Restrepo, who had been in detention since February 24, 1988, to move
about unlawfully in various parts of the region so as to force her to
point out persons who were sympathizers or militants of subversive
groups, especially at the Honduras farm.
Having considered the pleas of the accused and the evidence
against them, the Assistant Attorney General DECIDED:
1. To
penalize the captain of the national army, now Lieutenant Colonel
BECERRA, with DISMISSAL FROM HIS POSITION (permanent separation from the
armed forces) as the person responsible for the acts with which he was
charged, without prejudice to any penal action;
2. To
penalize lieutenant of the national army, now Captain Pedro Vicente
BERMUDEZ, with DISMISSAL FROM HIS POSITION (permanent separation from
the armed forces) as the person responsible for the acts with which he
was charged, without prejudice to any penal action.
3. To
penalize Corporal Class I of the national army, now Sergeant Class II Félix
Antonio OCHOA RUIZ, with DISMISSAL FROM HIS POSITION (permanent
separation from the armed forces) as the person responsible for the acts
with which he was charged, without prejudice to any penal action.
The attorneys for the accused soldiers appealed this DECISION.
(2) DECISION OF
FEBRUARY 1993 of the Office of the Assistant Attorney General:
DENIED the appeal of the petitioner and confirmed the decision
appealed and did not modify or revoke the decision of August 29, 1992.
(3) DECISION OF
APRIL 20, 1993
On April 20, 1993, although the five-year period of limitation on
disciplinary action from the last act of the offense had elapsed, and
employing a procedure not applicable in disciplinary proceedings, the
new Assistant Attorney General for the Armed Forces, through Decision
No.221 of the date indicated, revoked decision No.255 of August 19,
1992, upheld by Resolution 093 of February 8, 1993, which ordered the
dismissal of the soldiers responsible, allowed them to go absolutely
unpunished on the grounds that the evidence provided in the various
lawsuits were inconsistent, and further declared all disciplinary
action at an end.
D) INVESTIGATION
BY THE MILITARY PENAL COURT
The military penal court took over the trial of the officers
involved on the basis of the decision of the Public Order Court to
suspend the case against them, on the grounds that the actions of which
they were accused had been carried out in the exercise of their military
duties.
Eight months after the case was passed to the military court,
through the judicial order of November 9, 1992, the Commander of the
Tenth Brigade headquartered in tolemaida, in his capacity as Judge of
the First Instance, declared that in this case there was no evidence to
justify court-martialling the accused and he therefore pronounced all
proceedings against them at an end.
This decision was appealed and is still before the Higher
Military Tribunal.
E)
THE JURISDICTION FOR SUITS UNDER ADMINISTRATIVE LAW
The parties agree that the victims' relatives have not made any
claim before the jurisdiction for suits under administrative law,
formulated the observations and have comments reproduced in the next
section.
10. With regard
to these proceedings, the parties have declared their corresponding
pleas, which have been summarized below:
VI
WHAT THE GOVERNMENT OF COLOMBIA DECLARED ABOUT THE INVESTIGATIONS
About the events under investigation
That it rejected the petitioner's statement that the Colombian
army was the perpetrator of the massacre in collusion with paramilitary
troops, declaring that only the Judges of the Republic, according to the
evidence produced at the trials, can take such a decision and not
officials of the Government or the Executive Branch and that private
citizens were not entitled to make declarations of this kind.
About the disciplinary administrative investigation
That the Office of the Attorney General of the Nation, exercising
its constitutional and legal competence, (1) had constantly monitored
the criminal trial in the Public Order Criminal Court and the military
court, through Dr. Eveira Avila Monroy, Provincial Attorney General of
the Municipality of Caucasia, Department of Antioquia, who acted as
special agent in the case; and (2) that she had conducted disciplinary
inquiries through the office of the Assistant Attorney General for the
Armed Forces.
That the Office of the Assistant Attorney General for the Armed
Forces, through decision No.255 of August 19, 1992, had sought the
dismissal of the soldiers in question and that this decision had been
revoked and directly reversed by the Attorney General of the Nation.
About the inquiry before the common criminal court
That the Higher Public Order Court (today the National Tribunal)
upheld the decision of July 9, 1991 through an order of January 30,
1992, against which LUIS ALFREDO RUBIO ROJAS, HERNAN GIRALDO SERNA,
FIDEL CASTAñO GIL, RICARDO RAYO (who was under arrest) brought an
appeal after execution of judgment; that since March 31, 1992, the case has been before the Criminal Appeals Court of the
Supreme Court. Bearing in
mind the legal provisions for the Remedy of Appeal, it is expected that
the Supreme Court would hand down a decision at the end of this year.
About the military investigation
That through the order of November 9, 1992, the Commander of the
Tenth Brigade headquartered in Tolemaida, in his capacity of Judge of
the First Instance, declared that in this case there was no evidence to
justify court-martialling the accused, and he therefore brought all the
proceedings against them to an end.
That this order was appealed and is now before the Higher
Military Tribunal.
About the action under administrative law
That the Jurisdiction for Suits under Administrative Law,
established to provide those damaged by acts of commission or omission
on the part of State officials or the State itself with recourse for
compensation for damages suffered, had not been used by the parties and
that it is a prior requirement that must be exhausted before recourse to
the international forums.
That persons who consider that they have been damaged by acts of
commission or omission by State agents can use the judicial remedies
offered them by the jurisdiction for suits under administrative law,
responsible for monitoring and condemning the State for actions by its
agents that violate the human rights of the persons under the
jurisdiction of the Colombian State.
Making use of the Action of direct Reparation is the first step
in a judicial proceeding of responsibility that seeks to condemn the
State for damages caused.
That the Jurisdiction for suits under administrative law also
provided for those damaged by acts of commission or omission by State
officials or by the State itself to sue the entity, the official or both
under this Jurisdiction, and that if the suit is successful, the
sentence shall include compensation for damage by the entity; and that
Colombian legislation (Decree No 01 of 1984, Code of Administrative Law)
contains a specific procedure for cases of responsibility against the
Nation, which should be exhausted before recourse to the respective
international forums.
That the judicial remedies established in the national domestic
legislation have not been exhausted since investigations are being
applied by the Military Penal Jurisdiction and the Office of the
Attorney General of the Nation, in addition to the possibility of
appealing to the Tribunals of Administrative Law.
VII. WHAT THE
PETITIONER DECLARED ABOUT THE INVESTIGATIONS
About the events under investigation
That although the Government of Colombia denies authorship of the
massacre imputed to members of the National Army in complicity with
paramilitary groups, and although the Government states that
"neither government officials, members of the Executive Branch, or
private citizens may take declarations of this nature", the
evidence accumulated was so clear that the charges cannot be denied with
such a simplistic argument; furthermore, that the D.A.S. report
established unambiguously that both members of the forces of law and
order and paramilitary troops took part in the massacre.
That the Colombian State violated Articles 4 and 5 of the
American Convention on Human rights because the Colombian army was the
perpetrator of the massacre as an accomplice of the paramilitary groups.
That they appealed to the Commission to prevent this crime from
going totally unpunished and therefore request the Commission to declare
the responsibility of the Colombian State.
About the disciplinary administrative investigation
That the vigilance exercised by the Office of the Attorney
General of the Nation over the penal action and the disciplinary action
in which charges were brought against two officers and one
noncommissioned officer "for presumed participation in the events
in question" cannot be regarded as remedies that must be exhausted
in order to appeal to this Commission.
That the disciplinary investigations carried out by the Office of
the Attorney General of the Nation concluded in February 1993 with the
order for the dismissal of Lieutenant Colonel Luis Felipe Becerra Bohórquez,
of Captain Pedro Vicente Bermúdez Lozano and Sergeant Felipe Ochoa Ruíz,
had been revised in April of this year through pronouncement of the new
Assistant Attorney General for the Armed Forces, who, disregarded the
abundant evidence accumulated and the earlier decisions of the same body
which explicitly recognized the responsibility of the members of the
Army in the Honduras and La Negra massacres, and revoked all the
disciplinary penalties.
On the investigation before the common criminal court
That with regard to the 20 extrajudicial executions referred to
in this case, the ideal recourse for reparation of the violation was
penal action since it could serve to punish those responsible for the
violation, which was not achieved in this case where the civilians were
made responsible and the soldiers exonerated form all blame.
About the military criminal investigation
That the action under administrative law is a complementary or
alternative remedy whereby the relatives of the victim may obtain
economic compensation for the deficiency in the State service, but has
not been invoked since the Colombian State had failed in four years to
conclude the common criminal investigation or the military penal
jurisdiction. Accordingly,
the government can hardly expect the victims' relatives to initiate an
action under administrative law before appealing to the Inter-American
Commission on Human Rights. The
Colombian State's ineffective administration of justice would thus
become an impediment to examination of the State's responsibility by an
international organization.
Finally, in the present affair of the massacre of the workers at
the Honduras and La Negra farms on March 4, 1988, which is, over five
years ago, the fact that throughout this period there has been no
sanction against the agents of the State involved in the massacre brings
into play the exception to the rule of prior exhaustion of remedies
under domestic law because of the unwarranted delay in the
administration of justice. CONSIDERING:
1. As
regards admissibility
a. That as
provided in Article 44 of the aforementioned Convention, of which
Colombia is a State Party, the Commission is competent to examine the
case since it deals with violations of rights embodied in the American
Convention on Human Rights, Article 4, concerning the right to life;
Article 8, concerning the right to a fair trial; and Article 25,
concerning the right to judicial protection.
b. That
the petition meets the formal requirements of admissibility contained in
the American Convention on Human Rights and in the Regulations of the
Inter-American Commission on Human Rights.
c. That
the present petition is not pending in another international proceeding
for settlement nor is it the reproduction of a previous petition already
examined by the Commission.
2.
Regarding the use of the remedies under domestic law
That within the remedies under domestic law considered to be
exercised in connection with this case, the following should be cited:
1. The
process of police investigation, conducted by the D.A.S. on April
16, 1988, in which it is established that the Colombian Army employed
former guerrillas and paramilitary troops to locate, identify and
eliminate the alleged members of the EPL guerrilla band at the Honduras
and La Negra farms.
2. The
Disciplinary Process, compromising the inquiries conducted by the
Office of the Attorney General of the Nation against the officers
implicated in the aforementioned massacre, ended on April 20, 1992, and
exonerated them of all responsibility.
3. The
process before the Military Penal Court, initiated with the
transmitted to the military penal court of the action filed before the
Public Order Court. The
decision of the Commander of the Tenth Brigade who declared that there
was no evidence to justify court-martialling the accused, bringing to an
end all proceedings against them, is under consideration by the Higher
Military Court.
4. The
process before the Ordinary Criminal Court, initiated by the Public
Order Court. In that
process a judgement was issued against some civilians involved in the
massacre of Honduras and La Negra, excluding the soldiers involved,
whose case was referred to the military penal court.
3.
Concerning the exhaustion of remedies under domestic law
The Government of Colombia has insisted during the development of
the present proceedings that the mechanisms of the domestic jurisdiction
have not yet been exhausted and that they continue to be fully effective
because a settlement is still pending on the matters submitted both to
the ordinary criminal jurisdiction and to the military penal court, and
because the relatives of the victims have not resorted to the
jurisdiction for suits under administrative law to obtain payment of the
civil reparation to which they may be entitled for the acts that are the
subject of the denunciation.
Regarding this allegation, the Commission wishes to specify the
following:
a. That
the domestic remedies that must be exhausted in order to have recourse
to an international forum, as the Inter-American Court of Human Rights
duly declared in the case of Saúl Godínez, are not all those that may
exist in a country'_ domestic laws, because they are not all applicable
in every circumstance, but only those which are appropriate, because
"if the remedy is not appropriate in a specific case, it is obvious
that it does not need to be exhausted".
b. That
as the Government of Colombia has maintained, the jurisdiction for suits
under administrative law does not administer justice, does not declare
the responsibility of the perpetrators of a punishable crime and imposes
neither an administrative nor penal sanction on those responsible, which
is precisely what the petitioners seek, being conceived only as a means
of transgressions of the administration or executive branch, corrections
for such transgressions, and a means whereby the injured individuals may
obtain compensation for the damage occasioned by transgressions on the
part of the Executive Branch.
c. That
the plea of the Government of Colombia in reference to the ordinary
criminal trial to the effect that the remedies of the domestic
jurisdiction were not exhausted and that they are still pending cannot
be taken into consideration, because in the investigations before the
Public Order Criminal court alluded to, no soldiers were accused because
they were expressly excluded.
d. Furthermore,
five years have elapsed since the massacre, and that the internal
investigations, despite the evidence brought against the government
agents involved, have not resulted in any penalties against them, which
constitutes an unwarranted delay in the administration of justice.
e. That
this case constitutes the exception to the application of the rule
contained in article 46.1 of the Convention to the effect that the
remedies under domestic law must be exhausted before admission of a
petition, and the automatic application of the second part of that
article, 46.2, whereby such provisions are not applicable when, as in
the present case, (subpara. 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, or there has been
unwarranted delay in rendering a final judgment under the aforementioned
remedies (subpara. c) which would be applicable if consideration were
given to the theory of eternal and ineffective remedy, which the
Colombian Government appears to be invoking.
4.
Regarding the claim for justice and for punishment of the
perpetrators
a. That
in the present case it is all too evident that the petitioners have not
obtained effective protection from the domestic judicial organizations,
which, despite the incontrovertible evidence brought before them, have
allowed members of the Colombian army who participated in the massacre
at the Honduras and La Negra farms to be exonerated from responsibility
and, consequently, absolved from blame for the offenses committed,
ordering all proceedings against them to be dropped.
b. That
the conclusions which resulted from the investigations of the Office of
the Assistant Attorney General for the Armed Forces, contained in
Decision No. 255 dated August 19, 1992, and its upholding of Decision
No. 093 of February 8, 1993, corroborated the conclusions arrived at in
the D.A.S. report and unambiguously place responsibility on Captain Luis
Felipe Becerra, Lieutenant Pedro Vicente Bermúdez and Corporal Felipe
Ochoa Ruiz of the Colombian army, promoted to Lieutenant Colonel,
Captain and Sergeant respectively, for the multiple murders aimed at
eliminating the workers at the Honduras and La Negra farms.
c. That
the final conclusions reached by the Colombian authorities of the
military penal court are at variance with the judicial decisions
of the common criminal court which declares the responsibility of the
civilians who acted as accomplices, who would have been unable to commit
the acts for which they were punished without the collaboration, support
and assistance of the Colombian army through the actions of its agents.
d. That
the indefinite delay in the judicial investigation militates against due
and prompt administration of justice, and
e. That
in a country in which a series of investigations on a single criminal
act are conducted simultaneously and where, by law, when the actions
constitute a violation of human rights and are attributed to soldiers on
active service, the judicial investigations must be carried out by the
military institute in question, it is symptomatic, although explainable,
that this jurisdiction almost invariably fails to recognize the
accusatory evidence presented and exonerates the soldiers involved from
responsibility, hindering the truth and the punishment of the
perpetrators, as in the present case, thus committing a serious act
which directly affects the right of the victims and their families to
justice.
5.
Regarding a friendly settlement
a. That
the questions which are the subject of this complaint:
the irrecoverable right to life and the irreversible acquittal
despite the evidence, that deprives them for ever of the right to
justice, cannot, by their very nature, be resolved through a friendly
settlement, nor have the parties requested of the Commission this
procedure provided for in Article 48.1f of the Convention and in Article
45 of the Regulations of Inter-American Commission on Human Rights, and
b. That
since the procedure of friendly settlement is not applicable, the
Commission must invoke Article 50.1 of the Convention, stating its
opinion and conclusions on the matter submitted for its consideration.
6.
Regarding the responsibility of the Government of Colombia
a. That
in the present case, there is clear proof of the participation of the
soldiers of the Colombian army on active service, before, during and
after events.
b. That
this has been confirmed through evidence and testimonies set forth in
the investigation files cited in the present report, which allege that
Captain Becerra, Lieutenant Bermúdez and Corporal Ochoa, in the
exercise of their functions as members of the Colombian army, were
directly involved and made those events possible; and
c. That
the acts described constitute a succession of serious events that
violate the basic rules of human rights provided under Colombia's
domestic legislation and in the American Convention on Human Rights.
7.
Regarding the international responsibility of the State
That although the Government of Colombia, in the light of the
international petition based on the conclusions of the report of the
D.A.S. and of the office of the Attorney General of the Nation, denies
and rejects the petitioner's claim that the Colombian army was the
author of the massacre in collusion with paramilitary troops, does not
deny or challenge the evidence contained in the aforementioned
investigations in which their responsibility was established, merely
stating that it is for the judges of the Republic, that is, the Judicial
Branch, to make such a pronouncement and not the Office of the Attorney
or the D.A.S, which are organs of the Executive Branch.
That this evidence, which is neither challenged nor disputed,
establishes the responsibility of Captain Becerra, Lieutenant Bermúdez
and Corporal Ochoa, for using former members of the subversive group and
paramilitary troops to murder en masse the workers at the Honduras and
La Negra farms, alleged or actual members of the EPL, while they were
unarmed and totally defenseless.
That in proceedings before the Inter-American Commission on Human
Rights the statements of the Government of Colombia are in conflict with
the evidence submitted by its own public investigation organs.
That the fact that the Judicial Branch through the public order
courts, has not taken that evidence into account, or that in so doing,
on discovering the action investigated had been committed by serving
soldiers, was obliged to refer it to the military jurisdiction and
desist from its investigation, further attests to the defect in the
legal system for the administration of justice in Colombia, which
enables public bodies other than the Judicial Branch to discover the
truth of events which that Branch should have clarified, which does not
occur because the law prevents its judges precisely from investigating
the State's responsibility for violation of human rights, such
investigations are given to the military courts.
That this situation also generates another irregularity in the
system of Colombian administration of justice which has not been
rectified: it is that, when
it comes to State responsibility or violation of human rights, that the
legal truth for the Colombian Government is declared by the military
penal justice, because in a criminal trial involving a soldier who has
committed an offense in the course of duty, the civil courts must cease
hearing the case and refer it to the military courts.
That this system, which has been observed by the Commission, but
not corrected, seriously undermine the Colombian's administration of
justice. it is therefore
pertinent to reiterate the recommendations that Colombia adjust its
legislation concerning due process to bring into line with the American
Convention, and
That the international responsibility of the Colombian State with
regard to human rights, declared or not by the military penal justice,
derives from the actions of the public authorities in cases in which,
voluntarily or involuntarily, its agents, by commission or omission,
violate the right to life, or, also as in the present case, the right to
justice for persons, depriving them as it does of their legitimate right
to have the author of the homicide punished.
Regarding compliance with the provisions of the Convention
8. That
in the prosecution of the present case all the legal and regulatory
procedures established in the Convention and in the Regulations of the
Commission were observed, fulfilled and exhausted.
11. Other
considerations
a. That
on December 7, 1993, without presenting any observations on Report N°
26/93 of October 7, 1993, the Government of Colombia sent complementary
information on the decision of the Higher Military Court of September
16, 1993, exonerating the military personnel implicated in the massacre
on the Honduras and La Negra farms from all responsibility;
b. That
in the matters contained in its note of reply the Government of Colombia
presented no new information that would refute the facts complained of
or show that proper measures had been taken to resolve the situation
complained of, and
c. That
the Commission is in possession of no new information that would warrant
any amendment to the original report,
10. Regarding
noncompliance with report 26/93 of October 1993
That the three-month deadline given to the Colombian Government
has elapsed and it has not complied with the Commission's
recommendations in Report No. 26/93 of October 7, 1993, nor has it
replied to the communication of October 22, 1993, notifying it of the
adoption of that report and sending it a copy thereof.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, CONCLUDES:
1. That
the Government of Colombia has failed to fulfill its obligation to
respect and guarantee articles 4 (right to life); article 8 (right to a
fair trial); and article 25 (right to judicial protection) in connection
with article 1.1, established in the American Convention on Human
rights, of which Colombia is a State Party, and Sections I (life) and
XVIII (fair trial) of the American Declaration, concerning the mass
murder of the workers at the Honduras and La Negra farms.
2. That
the Government of Colombia has not complied with the provisions of
Article 2 of the American Convention on Human Rights, by adopting in
accordance with its current constitutional and legal procedures, such
legislative or other measures as may be necessary for persons to assert
their right to obtain justice through punishment of armed forces members
on active duty who, in the performance of their duties, commit crimes
against the right to life.
3. That
the Government of Colombia did not investigate the facts reported, nor
punish those responsible, nor pay compensation to the families of the
victims.
4. To
publish this report pursuant to Article 48 of the Commission's
Regulations and Article 53.1 of the Convention, because the Government
of Colombia did not adopt measures to correct the situation denounced
within the time period.
(*)
Commission member Dr. Alvaro Tirado Mejia abstained from participating
in the consideration and voting on this report.
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