REPORT Nº 4/97
March 12, 1997
On October 17, 1996, the Inter-American Commission on Human
Rights (the "Commission") received a petition from Nelson
Eduardo Jiménez Rueda concerning
an alleged violation by the Republic of Colombia (the "State,"
the "Colombian State" or "Colombia") of Articles 8,
9, 10 and 25 of the American Convention on Human Rights (the
violation consisted of having imposed a penalty on him whereby he was
required to suspend the practice of his legal profession for a period of
one year. On February 4,
1997, the petitioner sent the Commission additional information about
his claim. The Commission will now decide the admissibility of the
Isauro Romero became the husband (third marriage) of María
Nohemy López Zuloaga. The
couple later sought a divorce and the resulting liquidation of their
jointly-owned property, which consisted of an apartment in a three-story
building, the first floor of which was used for commercial purposes.
The second contained the living quarters of Isauro Romero.
The third floor, also consisting of residential space, was
occupied by Dagoberto Romero, nephew of Isauro Romero.
On February 10, 1986--the day when the property was to be turned
over to Mrs. María Nohemy López in the presence of the pertinent
judicial authorities-- Nelson Eduardo Jiménez, acting as Dagoberto
Romero's lawyer, objected to a transfer of the property in its entirety
for the following reasons: (a)
the individual whom he represented had not been named as an interested
third party in the implementation of a decision which affected him; (b)
Dagoberto Romero was living on the third floor of the property; and (c)
the situation of Mr. Isauro Romero's first wife, Mrs. Adriana Bermeo,
was in jeopardy because the property that was presumably supposed to be
handed over formed part of community property acquired during that first
marriage, and Isauro Romero
had never had that marriage annulled.
Nelson E. Jiménez entered in the record of the case in progress
before the civil court the information concerning
the three marriages to which Isauro Romero had been a party.
Two months after the petitioner first presented his objection to
the relinquishment of the property, the 28th Civil Court--which held
jurisdiction over the case--settled the matter by taking the property
away from Dagoberto Romero and Adriana Bermeo.
Thereafter, Nelson E. Jiménez filed numerous legal motions and
appeals thereby delaying transfer of the property during a period of
several years. The
opposition to the delivery of the property extended from January 31,
1986 to April 1988.
Facts adduced in the claim
Isauro Romero brought suit against the petitioner, Nelson Eduardo
Jiménez, at the Disciplinary Tribunal of Colombia's High Council of the
Judiciary ("Sala Jurisdiccional Disciplinaria del Consejo Superior
de la Judicatura"). The
result of the disciplinary administrative proceeding was that Mr. Jiménez
was sanctioned with the suspension of his license to practice law for a
period of one year.
The suit against Nelson E. Jiménez at the Disciplinary Tribunal
was presented by Isauro Romero for the following reasons: (a) for having
offended the judges of Colombia by his actions; (b) for having violated
professional confidentiality to the detriment of Isauro Romero; and (c)
for having instituted incidental and frivolous procedural acts, thereby
causing undue delay in turning over the property which was the subject
of the litigation.
In the proceeding at the Sectional Council of the Judiciary
("Consejo Seccional de la Judicatura"--the disciplinary
tribunal of first instance for the case), Nelson E. Jiménez adduced
reasons to show that his action had been consistent with the mandates of
the legal profession; that he did not represent Isauro Romero, so that
there had been no professional confidentiality for him to respect and
that he had thus proceeded legitimately to accuse Mr. Romero of having
committed bigamy. Insofar
as the question of frivolous proceedings is concerned, the petitioner
again sought to convince the Sectional Council, without addressing the
question of the number of remedies that had been sought and the lack of
grounds for them, that Isauro Romero's marriage to Mrs. María Nohemy López had
been a fraudulent act, designed to keep the property from being awarded
to his first wife. He also
stated in his defense that, pursuant to the provisions of the Code of
Civil Procedure, a third party can object to the relinquishment of a
piece of real estate, provided that he can allege ownership thereof and
present proof to that effect--a situation that had been demonstrated in
situ during the act of delivery--since Dagoberto Romero was living
on the third floor of the building.
These were the same arguments he had used during the underlying
civil proceeding to argue the question of who possessed rights to the
The decision issued by the Sectional Council on May 11, 1994 did
not assess a disciplinary penalty and ordered the dismissal of the
disciplinary proceedings. The
order to terminate the proceeding against attorney Nelson Eduardo Jiménez
was based on the "prescription of the action in relation to the
events which were the reason for initiating the investigation."
August 18, 1994, the High Council of the Judiciary acting in
Disciplinary Tribunal ("Consejo Superior de la Judicatura en Sala
Jurisdicción Disciplinaria"--the court of appeals in this case)
took the case on consultation pursuant to the provisions of Article 256
section 3 of the National
Constitution and Decree 2652 of 1991, in accordance with Decree No. 1861
of 1989. The High Council
rescinded the verdict of acquittal that had been pronounced in favor of
the petitioner on May 11, 1994 and remanded the case to the Sectional
November 3, 1995, the Sectional Council decided to penalize the
petitioner by suspending his license to practice law for a period of one
claimant appealed that judgment on
March 15, 1996, in an attempt to
vacate the November 3 verdict.
Finally, on April 11, 1996, the High Council of the Judiciary
acting in Disciplinary Tribunal considered the appeal and upheld the
judgment handed down on November 3, 1995.
Commission considers that the petition meets the admissibility
requirements set forth in Article 46 of the Convention.
The information contained in the petition indicates that the
petitioner has exhausted the remedies of domestic
jurisdiction available pursuant to Colombian law.
The verdict pronounced by the High Council of the Judiciary
acting in Disciplinary Tribunal on April 11, 1996, confirming the
judgment of November 3, 1995, is final and cannot be appealed.
petition was presented within the time frame cited in Article 46 (b) of
the Convention and Article 38 of the Commission's Regulations.
The final judgment with respect to the appeal that had been
lodged upholding the November 3, 1995 judgment, was issued on April 11,
1996. The petitioner went on record, when he appeared in person before
the Judicial Office in Santafé de Bogotá, stating that his petition
had been prepared by September 30, 1996. The delay in the Secretariat's
receipt of that document until October 17, 1996 may not be blamed on the
petitioner, and is not considered so significant as to prevent admission
of the case.
Commission has received no information indicating that the matter which
is the subject of the petition is pending in another international
Grounds for inadmissibility according to Article 47
47.b of the Convention establishes
that the Commission should consider inadmissible any petition if
it does not state facts that tend to establish a violation of the rights
guaranteed in the Convention. Accordingly,
the Commission must decide whether the facts alleged in the present case
tend to establish that the human rights protected by the Convention have
The alleged violation of the principle of legality and
irretroactivity of the law and of due process
petitioner maintains that the High Council of the Judiciary acting in
Disciplinary Tribunal revoked a judgment of acquittal in his favor,
thereby violating the principle of irretroactivity of the law, since
this judgement sought to apply the effects of Law 270, dated March 7,
1996 to a matter that had been decided on May 11, 1994. He
alleged that the decision of the High Council also violates Law 270,
which calls for a review on consultation only when the decision is
unfavorable to the party affected thereby.
270, however, was not applied to this case, because it was not even
enacted until after the High Council had revoked the sentence of
acquittal of August 18, 1994. Neither
the High Council nor the Sectional Council invoked that law at any stage
of the proceedings against the petitioner. Accordingly, it cannot be
alleged that the law has been applied retroactively, or that it has been
substantiate the appellate court's right to hear this case, the August
18, 1994 judgment of the High Council of the Judiciary acting in
Disciplinary Tribunal and the November 3, 1995 judgment of the Sectional
Council invoke other, prior norms: Colombia's Constitution, Article 256,
section 3 and Decree 2652 of 1991, Article 9, section 4, harmonized with
Decree 1861 of 1989, Article 39 and a verdict handed down by the Supreme
Court of Justice, which established the power to hear a case by means of
For these reasons . . . [it cannot] be overlooked, as averred by
the Supreme Court of Justice in its ruling of July 31, 1991, that
"those persons. . . who are within the jurisdictional range of the
consultation may be reviewed by the higher court without
20. The petitioner
has not alleged any violation in regard to the invocation of these
juridical norms which were actually applied in the case.
The alleged violation of the right to a defense
petitioner also adduces, in support of his claim, that when the
Disciplinary Tribunal examined his case, it failed to examine the
evidence which attested to the truth of the arguments he set forth in
the disciplinary proceeding, which omission he considers to have
impinged his right to defense.
is clear that during the proceedings in the two instances of review of
the Disciplinary Tribunal, the tribunal reviewed and evaluated the
evidence insofar as it was relevant.
The Commission nevertheless observes that when the Disciplinary
Tribunal began its review of the case, the question at issue was whether
Mr. Jiménez had unduly delayed the underlying civil proceedings, and
whether the action had prescribed. The evidence presented in due course by the petitioner--which
was duly examined and evaluated during the proceeding--had nothing to do
with the question before the Disciplinary Tribunal, which was to
determine whether Mr. Jiménez had acted with legal justification and in
good faith when he filed numerous appeals against the decision calling
for transfer of the property. Accordingly,
the Commission considers that no facts have been
adduced which tend to establish a violation of the right to
The competence of the Commission: the "formula of fourth
type of international protection provided by the supervisory bodies of
the Convention is subsidiary. The
Preamble to the Convention is clear in that respect, when it refers to
the reinforcing or complementing of the protection provided by the
domestic law of the American states.
rule requiring prior exhaustion of domestic remedies is based on the
principle that a defendant state must be allowed to provide redress
within the framework of its domestic legal system.
The effect of this rule is to assign an essentially complementary
nature to the competence of the Commission.
nature of that role also constitutes the basis for the so-called
"fourth instance formula" applied by the Commission,
consistent with the practice of the European human rights system. The
premise underlying that formula is that the Commission cannot revise
judgments handed down by the national courts acting within their sphere
of competence and with due judicial guarantees, unless it believes that
a possible violation of the Convention is involved.
Commission is competent to declare a petition admissible and rule on its
merits when it relates to a claim alleging that a national court's
judgment was pronounced without due process or in violation of some
other right guaranteed by the Convention.
If, on the other hand, the claim simply alleges that the domestic
judgment was mistaken or unjust, the petition must be rejected pursuant
to the formula stated above. The
Commission's function consists of guaranteeing compliance with the
obligations assumed by the States Parties to the Convention, but it
cannot serve as a court of fourth instance to examine errors of fact or
law, which may have been made by the national courts acting within their
as the present case is concerned, the alleged violations have been
examined and are not deemed to involve well-founded allegations that the
courts of domestic jurisdiction have acted at the margin of, or in
contravention of, the
rights protected by this Convention. The petitioner fundamentally requests that the Commission
examine the evidence presented in connection with the domestic
disciplinary proceeding in order to evaluate the final sentence
pronounced by Colombia's Disciplinary Tribunal and possibly also the
verdict issued in the civil procedure relative to the ownership of
property. The Commission is
not authorized in this case to examine the final verdict on the matter
which was issued by the Disciplinary Tribunal, because such action would
require it to act as a court of fourth instance with respect to a
judgment issued by Colombia's judiciary acting within the sphere of its
Commission concludes that the petition presented by Mr. Nelson Eduardo
Jiménez Rueda meets the technical requirements for admissibility that
are set forth in Article 46 of the Convention.
on its examination of the petition, the Commission concludes that facts
have not been adduced which tend to establish a violation of the
principle of legality and retroactivity or of the right to due process
or the right to a defense as alleged by the petitioner.
Commission therefore concludes that the present petition is
inadmissible, pursuant to Article 47.b of the Convention.
Commission decides that this report declaring the inadmissibility of the
petition presented by Mr. Jiménez shall be sent to the petitioner and
published in the Annual Report to the General Assembly of the OAS.