REPORT
N° 36/00
I.
SUMMARY
1.
On December 16, 1992, the Inter-American Commission on Human Rights
(hereinafter "the Commission") received a petition submitted by the Corporación
Colectivo de Abogados "José Alvear Restrepo" (hereinafter
"the petitioners") against the Republic of Colombia (hereinafter
"the State," "the Colombian State," or "Colombia")
alleging the extrajudicial executions of Darío Coicué Fernández, Ofelia Tombé
Vitonas, Carolina Tombé Ñusque, Adán Mestizo Rivera, Edgar Mestizo Rivera,
Eleuterio Dicué Calambas, Mario Julicué Ul (or Mario Julico), Tiberio Dicué
Corpus, María Jesús Guetia Pito (or María Jesusa Güeitía), Floresmiro Dicué
Mestizo, Mariana Mestizo Corpus, Nicolás Consa Hilamo (or Nicolás Conda),
Otoniel Mestizo Dagua (or Otoniel Mestizo Corpus), Feliciano Otela Ocampo (or
Feliciano Otela Campo), Calixto Chilgüezo Toconas (or Calixto Chilgüeso),
Julio Dagua Quiguanas, José Jairo Secué Canas, Jesús Albeiro Pilcué Pete,
Daniel Gugu Pete (or Daniel Pete)
and Domingo Cáliz Soscué (or Domingo Cálix Sescué) and harm to the physical
integrity of Jairo Llamo Ascué, members of the Paez indigenous community of
northern Cauca (hereinafter "the victims").
2.
The petitioners allege that on December 16, 1991, at "El Nilo"
hacienda, municipality of Caloto, state agents violated the victims' rights to
life, humane treatment, judicial guarantees and judicial protection, enshrined
in Articles 4, 5, 7, 8, 25, and 1(1) of the American Convention on Human Rights
(hereinafter the "Convention" or the "American Convention"),
and in Articles I, XVIII, and XXVI of the American Declaration of the Rights and
Duties of Man (hereinafter the "Declaration" or the "American
Declaration").
3.
During the processing of this case, the State recognized its
responsibility for the facts alleged by the petitioner.
On September 7, 1995, the parties began to pursue a friendly settlement
with the good offices of the Commission. Despite
the efforts by the State and the petitioners, and despite the State's
acknowledgment of responsibility, on October 5, 1998, the parties ended their
pursuit of friendly settlement, and it was decided to continue to process this
case.
4.
After analyzing the elements of fact and of law brought forth by the
parties during the process, and the acknowledgments that resulted from the
friendly settlement process, the Commission declared the case admissible,
determined that the State is responsible for violating Articles 4, 5, 7, 8, 25,
and 1(1) of the American Convention, and evaluated the measures taken to make
reparation for the harm caused.
II.
PROCESSING BEFORE THE COMMISSION
5.
On January 21, 1993, the Commission opened the case under number 11.101,
and forwarded the pertinent parts of the complaint to the Colombian State,
giving it 90 days to submit information. On March 17, 1993, the petitioner sent
additional information on the case, which was duly transmitted to the State.
6.
The State submitted its answer on June 10, 1993.
The petitioners presented their observations and additional information
on August 25, September 10, and December 30, 1993, which were duly forwarded to
the State.
7.
On January 27, 1994, during the 85th regular session of the Commission, a
hearing was held in this case. On
March 9, 1994, the State presented written information that was duly forwarded
to the petitioners. The
petitioners, in turn, sent in additional information on June 24, 1994. On September 26, 1994, a hearing was held during the
Commission’s 87th session. On October 5 and 7, 1994, the State provided
additional information on domestic remedies, and on February 3 and 7, 1995, the
petitioners submitted additional information on the domestic proceedings.
8.
On February 22, 1995, the Commission made itself available to the parties
to pursue a friendly settlement of the matter, giving them 30 days to respond.
On March 22, 1995, the State requested an extension, which it was given.
On March 22, 1995, the petitioners stated their position on the proposal.
On May 12, 1995, the State expressed its interest in initiating the
effort to reach a friendly settlement, and indicated that it would be willing to
create a Comité de Impulso, or
committee to give impetus to the investigations under way.
The petitioners submitted observations on June 29, July 21, and September
6, 1995, as to the criteria which, from their point of view, should guide the
search for a friendly settlement.
9.
On September 7, 1995, during its 90th session, the Commission held a
hearing in which the parties reiterated their interest in initiating a process
to seek friendly settlement as provided under Article 48(f) of the American
Convention. Accordingly, an act of
understanding was signed to create the Comité
de Impulso for the Administration of Justice. On September 14, 1995, the State sent a communication
regarding the case. On December 12,
1995, a Commission delegation participated in a meeting of the Comité de Impulso in Colombia to learn about its operation,
initiatives, and progress.
10.
On February 23, 1996, during the Commission's 91st regular session, a
second hearing was held in which the Comité
de Impulso submitted a final report setting forth several recommendations.
At that meeting, the parties agreed to continue to pursue a friendly
settlement by creating a Comité de
Seguimiento a las Recomendaciones formuladas por el Comité de Impulso, or
Coordinating Committee for following up on the recommendations of the Comité
de Impulso (hereinafter "Comité
de Seguimiento").
11.
On May 21, 1996, the State submitted a copy of the act of understanding
signed by the State and the petitioners creating the Comité
de Seguimiento. On October 8,
1996, during the Commission’s 93rd regular session, the parties expressed
their views on the obstacles to the operation of the Comité
de Seguimiento in evaluating progress in the friendly settlement process.
On October 9, 1996, the State submitted a "Report on Implementation
of the Recommendations on the cases of Los Uvos, Caloto, and Villatina."
On October 18, 1996, the Commission urged the parties to overcome the
difficulties that had arisen in the process of following up on the Comité's
recommendations. In February 1997,
Commissioner Robert K. Goldman, Rapporteur for Colombia, Ambassador Jorge E.
Taiana, Executive Secretary of the Commission, and Denise Gilman, then a
Commission Specialist, traveled to Colombia to participate in a series of
meetings on the status of the friendly settlement process.
12.
On October 7, 1997, in the context of a hearing held during the 97th
session of the Commission, the Comité de
Seguimiento submitted a report evaluating implementation of the
recommendations made by the Comité de
Impulso. On October 16, 1997, the Commission issued a Resolution in which it
resolved to continue efforts to achieve a friendly settlement to this case by
its 98th session.
13.
On February 16, 1998, the chairperson of the Comité
de Seguimiento informed the Commission that the parties would submit their
reports to the Commission separately. In
a hearing held on February 23, 1998, during the 98th regular session of the
Commission, the parties expressed their intent to consider the friendly
settlement procedure to have ended and requested a pronouncement on the merits
of the case. On that occasion, the
petitioners submitted their observations with respect to compliance with the
recommendations contained in the report of the Comité de Seguimiento, which had been submitted to the Commission
in October 1997. On March 3, 1998,
the Commission asked the State to provide additional information on the measures
adopted to investigate and try the persons responsible in the regular criminal
courts. On March 31, 1998, the
State requested a 30-day extension, which it was granted. On July 31, 1998, the State sent to the Commission a copy of
the speech by the President of the Republic in the act of acknowledgment of
responsibility for the events in the Caloto case, among others.
On October 5, 1998, during the Commission's 100th regular session, a new
hearing was held in which the parties reiterated that it was impossible to reach
a friendly settlement. On March 2,
1999, during the Commission's 102nd session, the petitioners reiterated their
request for a pronouncement on the merits, pursuant to Article 50 of the
Convention. III.
POSITIONS OF THE PARTIES AND ATTEMPT TO REACH FRIENDLY SETTLEMENT
A.
Position of the petitioner
14.
The petitioners allege that on December 16, 1991, approximately 80
persons belonging to the Paez indigenous community of northern Cauca,
inhabitants of the Resguardo de Huellas, responded to a call to meet, apparently
from the new owners of that property, in the mountainous part of the "El
Nilo" hacienda, district of El Palo, municipality of Caloto.
The meeting was allegedly convened for the purpose of discussing the
presence of the indigenous community, as well as to acknowledge the improvements
they had made to the land during the previous four years.
At approximately 9:00 p.m., heavily armed men went to the site of the
meeting. The petitioners indicated that according to the testimony
taken, some of these armed men were wearing uniforms of the security forces.
Some of these individuals were alleged to have proceeded to hold and
intimidate the group of indigenous persons who had gathered, while the rest went
in search of the other members of the indigenous community, who had remained in
their homes. Once all the
indigenous persons living on the farm were gathered, the armed men identified
the supposed leaders of the community and shot them.
The petitioners allege that the assailants shot indiscriminately at the
rest of the members of the community who, in panic, tried to flee.
As a result, the following persons lost their lives:
Darío Coicué Fernández, Ofelia Tombé Vitonas, Carolina Tombé Ñusque,
Adán Mestizo Rivera, Edgar Mestizo Rivera, Eleuterio Dicué Calambas, Mario
Julicué Ul (or Mario Julico), Tiberio Dicué Corpus, María Jesús Guetia Pito
(or María Jesusa Güeitía), Floresmiro Dicué Mestizo, Mariana Mestizo Corpus,
Nicolás Consa Hilamo (or Nicolás Conda), Otoniel Mestizo Dagua (or Otoniel
Mestizo Corpus), Feliciano Otela Ocampo (or Feliciano Otela Campo), Calixto
Chilgüezo Toconas (or Calixto Chilgüeso), Julio Dagua Quiguanas, José Jairo
Secué Canas, Jesús Albeiro Pilcué Pete, Daniel Gugu Pete
(or Daniel Pete) and Domingo Cáliz Soscué (or Domingo Cálix Sescué).
Jairo Llamo Ascué suffered a gunshot wound in the right arm. The petitioners also note that after the massacre, the rustic
dwellings that the indigenous community had built on the property were destroyed
and burned, along with all the household equipment and goods, and domestic
animals.
15.
The petitioners allege that the massacre was perpetrated by civilians and
members of the National Police. They
consider that the evidence, expert ballistic reports, and inspections in the
criminal and disciplinary proceedings point to the responsibility of officials
of the National Police. Concretely,
they allege that two Police officials and several agents at the service of “narco-terratenientes”
had participated in the massacre.
16.
As for the duty to provide due judicial protection with respect to the
violations perpetrated, the petitioners allege that the State organs have
committed various acts and omissions that have resulted in impunity for those
responsible. They argue that
initially the investigation was headed up by Lt. Libardo Morales Lagos, a member
of the National Police and Chief of the MECAL Investigative Unit, who presented
a witness whose testimony accused the Fuerzas Armadas Revolucionarias de
Colombia (FARC) of being responsible for the acts committed. Maj. Gen. Miguel Antonio Gómez Padilla, Director General of
the Police, asserted that an internal investigation confirmed that the Police
had not participated in the events. The
petitioners also argue that despite the seriousness of the information
collected, from the outset, tending to incriminate Maj. Durán Argüelles and
Capt. Castañeda Mateus, these officials were not questioned with the celerity
called for given the circumstances of the case. The petitioners note that some
of the witnesses, in declarations subsequent to the initial questioning,
retracted their accusations against officials of the National Police and other
civilians, and that these retractions were given weight, tending to obstruct the
investigation and cover up the participation of, or exonerate of any liability,
the perpetrators of and accomplices in the massacre.
In the petitioners' opinion, the criminal proceedings were conducted with
the aim of ruling out the possibility of finding the members of the National
Police criminally liable. The
petitioners have also questioned the actions of the Office of the Procurator
General of the Nation in the investigation into the relationships of the
implicated officers with civilians Luis Alberto Seijas and Orlando Villa Zapata.
17.
Based on these grounds, the petitioners allege that the State violated
the rights to life, humane treatment, personal liberty, judicial guarantees, and
judicial protection provided for at Articles 4, 5, 7, 8, 25, and 1(1) of the
American Convention, and Articles I, XVII, and XXVI of the American Declaration.
They allege that there has been a denial of justice so as to fall under
the exemption to the requirement to exhaust domestic remedies set out in Article
46(2)(c) of the Convention. In
addition, they consider that the investigation and trial of the persons
presumably responsible has been subject to unwarranted delay.
B.
Position of the State
18.
The State has not questioned the version of the facts submitted by the
petitioners. Nor has it called into
question the alleged violations of the American Convention and the American
Declaration. During the initial
stages of the processing it provided information about the status of the
domestic proceedings,[1]
and later alleged that domestic remedies had not been exhausted and that in that
context, one could not consider explicit recognition of State responsibility.[2]
19.
At a later stage and in light of the settlements in the
contentious-administrative jurisdiction and the conclusions of the Comité
de Seguimiento, which was established in the framework of the effort to
reach a friendly settlement, the State acknowledged its international
responsibility in this case.[3]
Specifically, on July 29, 1998, the President of the Republic publicly
acknowledged the responsibility of the Colombian State for the acts and
omissions of public servants in the occurrence of the violent events at Caloto.[4]
C.
The parties' efforts to reach a friendly settlement 1.
The creation and work of the Comité
de Impulso
20.
On September 7, 1995, during the Commission's 90th session, Carlos
Vicente de Roux, representing the State, and María Victoria Fallon, Gustavo
Gallón Giraldo, and Juan Carlos Gutiérrez, representing the petitioners,
agreed to issue an act of understanding calling for the creation of a Committee
to give impetus to the administration of justice in relation to this case, in
the framework of an effort to arrive at friendly settlements under Article 48(f)
of the American Convention.
21.
The Comité de Impulso was
defined as a body for promoting domestic judicial proceedings, which precluded
it from receiving and directly assessing evidence or ruling on the
responsibilities of individuals and institutions.
The mandate of the Comité de
Impulso was to: (1) work to
ensure judicial and disciplinary proceedings are carried out that guarantee
prompt judicial proceedings; (2) identify evidence regarding the incidents in
question and work for them to be brought before the courts; (3) promote the
protection of witnesses as well as any judicial or disciplinary officers
conducting the investigations; (4) support the due exercise of the right to
defense of the accused and of the rights and activities of the civil party; (5)
when so required for the investigation, work for the reassignment of trials and
the creation of special units of the Prosecutors' Offices and of the Technical
Investigations Corps; (6) work for reparation of the damage caused by the acts
in question; (7) present a report to the next regular session of the IACHR
regarding performance of the tasks listed in the above points and the results of
the steps taken, indicating the factors that impacted on their success or
failure.[5]
22.
The Comité de Impulso
included: representatives of the victims in a series of cases before the
Commission, in the Caloto case the Colectivo
de Abogados "José Alvear Restrepo" and the then Comisión
Andina de Juristas/Seccional Colombiana; representatives of the Ministry of
Foreign Affairs, the Ministry of Defense, and the Office of the Presidential
Adviser for Human Rights; and on behalf of the State oversight organs,
representatives from the Office of the Human Rights Ombudsman, the
Prosecutor-General, and the Procurator General, and representatives of the
Colombian Bishops Conference.[6]
The Comité de Impulso was
formally installed on September 29, 1995, in Bogotá in a public act, and it
submitted its final report in February 1996, at the 91st regular session of the
Commission. Given the consensus on
the value of the work done by the Comité
de Impulso, the Commission will take into account its conclusions and
recommendations throughout this analysis.
23.
In general, the recommendations are focused on the circumstances of the
indigenous population in the region of Colombia in question. In this regard, the Comité
de Impulso concluded that the Caloto massacre affected the entirety of the
Paez indigenous community of northern Cauca, and that the measures to be adopted
in the case should take into account the claims and grievances of this
community, in addition to having a preventive purpose, to prevent a recurrence
of the events like those in this case. The
Comité de Impulso's recommendations
indicate that the State should attend to its obligation to protect the
fundamental rights of the indigenous peoples, whose first right, the right to
life, should be understood in collective terms, as well as the right to ethnic
and cultural reproduction, the right to territory, and the right to
self-determination. It should be
noted that prior to the events in this case, the State entered into agreements
with the representatives and authorities of the Paez indigenous community of
northern Cauca for the purpose of completing its territory and guaranteeing its
self-determination by adjudication of lands and setting in motion an alternative
development plan. The report notes that those commitments have been partially
implemented.[7]
On December 23, 1991, the State undertook to purchase and transfer 15,663
hectares, of which only 5,296 hectares had been purchased.
In addition, on May 14, 1992, it was agreed to carry out an Alternative
Development Plan consisting of 16 projects to be implemented in northern Cauca,
although financing had been obtained for only two of these.
In view of these commitments, the Comité
de Impulso urged the State to implement them promptly and fully, and made
some proposals to complement and facilitate this process.[8] Finally,
the Comité de Impulso asked the Commission, independent of the
processing and conclusion of Case 11.101, to stay abreast of the developments on
issues having to do with the territory and self-reliant development of this
community, and its potential impact on the occurrence of future violent
incidents and human rights violations.[9]
24.
As regards the Caloto massacre itself, the Comité made approximately 30
recommendations regarding further procedural steps, such as taking additional
statements from witnesses, incorporating evidence into the criminal proceedings
for the purpose of clarifying the facts, and trying and punishing the persons
responsible.[10] The
recommendations regarding the disciplinary proceedings were aimed at expediting
the proceedings for the purpose of determining the corresponding
responsibilities and sanctions.[11]
As for the proceedings in the contentious-administrative jurisdiction,
the Comité de Impulso urged the parties to enter into settlement
agreements. 2.
The creation and work of the Comité
de Seguimiento
25.
In February 1996, during the Commission's 91st regular session, the
parties agreed to create the Committee to follow up on the recommendations
agreed upon by the Comité de Impulso
(hereinafter "Comité de Seguimiento").
The mandate of the Comité de Seguimiento was to: (a) seek out, collect, centralize,
and transmit to the Inter-American Commission on Human Rights information on the
promotional measures agreed upon; (b) submit periodic reports to the
Inter-American Commission on Human Rights regarding the development of its
functions and the result thereof; (c) report to the Commission on the obstacles
encountered in the performance of its functions; and (d) submit a report to the
Commission at its next regular session regarding the performance of the
functions assigned to it, and on the results of the steps taken, indicating the
factors that, in the Committee's opinion, influenced their success or failure.[12]
26.
The Comité de Seguimiento
submitted its assessment of compliance with implementation of the Comité de Impulso's recommendations on October 7, 1997, during the
97th regular session of the Commission.[13] The
Comité de Seguimiento received the
acknowledgment of the State's international responsibility as a positive
development, and concluded that there had been partial implementation of the Comité
de Impulso’s recommendations. It
recommended that the friendly settlement proceedings continue in connection with
recommendations that were being implemented or that were awaiting additional
administrative steps.
27.
As regards clarification of the facts in the case, the Report concluded
that there was impunity with respect to the National Police officials implicated
in the massacre, and that this was attributable to the action of the military
criminal courts. A similar
conclusion was reached in the disciplinary jurisdiction.
As a result, the Comité de
Seguimiento made recommendations regarding the duty of the Colombian State
to investigate, try in the regular jurisdiction, and punish the persons
responsible for the incidents in question.
28.
In the contentious-administrative jurisdiction, the Comité de Seguimiento noted that settlement agreements were reached
in the pending proceedings. As for
the social reparation measures, it recommended full implementation of the
agreements on adjudication of lands through more expeditious procedures and
within a reasonable time, in conjunction with the indigenous communities.
In this regard, the Comité de Seguimiento considered that transitory Article 56 of the
Constitution applies for purposes of making full reparation.[14]
The Comité considered that the
State had not carried out its commitment to develop the legal procedure for the
purchase and adjudication of lands. With
respect to the projects of the Indigenous Alternative Development Plan for
Cauca, it determined that these projects were in the course of being carried out
and that no resources had been allocated for the others.[15]
29.
On October 16, 1997, the Commission issued a resolution in which it
acknowledged the parties' efforts to reach a friendly settlement in the case, as
well as the State's decision to recognize its international responsibility.
The Commission also recommended that the State make monetary reparation
to the victims' families that had not been paid compensation, pursuant to Law
288 of 1996. It also decided to continue to pursue a friendly settlement until
the subsequent regular session, after which it would make a decision on its
final processing of the case. To this end, the Commission asked the parties to
submit additional information on any progress on a possible friendly settlement. 3.
Breakdown of the friendly settlement process and degree of compliance
with the commitments
30.
Given that it was not possible to carry out all the commitments of the
friendly settlement within the time frames agreed upon, this process was
considered concluded on October 5, 1998, during the hearing in the Commission's
100th regular session. The parties
asked the Commission to issue a ruling on the merits, and to duly acknowledge
the partial implementation of the recommendations made by the two Committees
created in the framework of the friendly settlement process.
The parties indicated that this would facilitate reparation for the
surviving victim and the families of the victims who were killed that have not
yet been awarded compensation in the contentious-administrative jurisdiction
through the mechanism provided for in Law 288/96.[16]
IV.
ANALYSIS OF JURISDICTION AND ADMISSIBILITY
A.
Jurisdiction
31.
The Commission has jurisdiction to examine the claim submitted by the
petitioners. The facts alleged in
the petition affected natural persons subject to the jurisdiction of the State
when the obligation to respect and ensure the rights established in the
Convention had already come into force for the State.[17] The
Commission proceeds, then, to analyze whether this case meets the requirements
established in Articles 46 and 47 of the American Convention.
B.
Admissibility requirements 1.
Exhaustion of domestic remedies and the time requirement for lodging a
petition
32.
Prior exhaustion of domestic remedies is a rule established in the
interests of the State and for its benefit; it can therefore be waived.[18] In
this case, on July 29, 1998, the State expressly acknowledged its responsibility
for the incidents that are the subject matter of this case; therefore, this
requirement should be considered to be met.[19]
33.
As regards compliance with the requirement of presenting the petition
within six months from notification of the final decision in the domestic
courts, it is linked to the exhaustion of domestic remedies, and therefore is
not applicable to this case.
2.
Duplication of procedures and res
judicata
34.
It does not appear from the record that the subject matter of the
petition is pending before any other international procedure for settlement, or
that it addresses the same matter as a petition already examined by this or any
other international organization. Therefore,
the requirements set forth in Articles 46(1)(c) and 47(d) of the Convention have
been met.
3.
Characterization of the facts alleged
35.
The Commission considers that the petitioners' allegations regarding the
alleged violation of the rights to life, humane treatment, and personal liberty,
as well as the lack of any effective punishment of the persons responsible and
the delay in the investigation, could characterize a violation of the rights
guaranteed at Articles 4, 5, 8, 25, and 1(1) of the American Convention.
As it is not evident that these aspects of the claim are groundless or
inadmissible, especially as the State has expressly recognized its
responsibility, the Commission considers the requirements established in Article
47(b) and (c) of the American Convention to have been met.
C.
Conclusions on jurisdiction and admissibility
36.
The Commission considers that it has jurisdiction to examine the claim
submitted by the petitioners, and that this case is admissible pursuant to the
requirements established in Articles 46 and 47 of the American Convention. V.
ANALYSIS OF THE MERITS IN LIGHT OF THE ACKNOWLEDGMENT OF STATE
RESPONSIBILITY
37.
Two preliminary issues must be addressed before moving on to analyze the
merits of the case. First, the
Commission must determine whether the alleged violations of the American
Declaration are properly before it. In
this regard, it should be noted that the American Convention entered into force
for Colombia on July 18, 1978. Since
then the Convention, and not the Declaration, became the source of law
applicable by the Commission[20]
so long as the claim refers to the alleged violation of rights that are
substantially identical in the two instruments, and not a continuing violation.[21]
In this case, the rights allegedly violated by the Colombian State under
the Declaration are similarly protected under the Convention, and the facts that
were the basis for the petitioners' claim occurred after the entry into force of
the American Convention for Colombia. Accordingly,
the Commission will refer only to the alleged violations of the Convention, and
not to the alleged violations of the Declaration.
38.
Second, the Commission should establish interpretative standards for its
own use, in light of the facts and the characteristics of the violations alleged
and acknowledged by the State in this case.
Article 29(b) of the American Convention provides that no provision of
the Convention may be interpreted so as to limit the enjoyment and exercise of
any right recognized in any other treaty to which the State in question is a
party.[22]
It should be noted in this connection that Colombia is a party to ILO
Convention 169 on Indigenous and Tribal Peoples (hereinafter "Convention
169").[23]
39.
Article 2 of Convention 169 establishes the obligation of the States to
develop coordinated and systematic action to protect the rights of indigenous or
tribal peoples and to guarantee respect for their integrity. This action should include measures: (a)
ensuring that members of these peoples benefit on an equal footing from the
rights and opportunities which national laws and regulations grant to other
members of the population; (b)
promoting the full realisation of the social, economic and cultural rights of
these peoples with respect for their social and cultural identity, their customs
and traditions and their institutions; (c)
assisting the members of the peoples concerned to eliminate socio-economic gaps
that may exist between indigenous and other members of the national community,
in a manner compatible with their aspirations and ways of life. Article
4 of Convention 169 provides that the States Parties should adopt special
measures as necessary to safeguard the persons, institutions, property, labor,
culture, and environment of these peoples, and that such special measures should
not be contrary to their freely expressed wishes.
40.
In the Americas, standards have also been adopted that are to be taken
into account by the Commission, in analyzing the rights and the scope of the
State's obligations under the Convention. The
norm of interpretation set forth in Article 29(d) of the American Convention
establishes that the rights protected shall not be interpreted so as to exclude
or limit the effect of international acts similar in nature to the American
Declaration. In this regard, it should be noted that the Inter-American
Charter of Social Guarantees of 1948 refers to the duty of the States to adopt
the measures necessary to protect the life, liberty, and property of the
indigenous population.[24]
The Commission itself, in its resolution on "Special Protection for
Indigenous Peoples," has recommended that the member States adopt measures
to ensure that their agents act with great diligence in this task.[25]
41.
In the instant case, the Comité de
Impulso recognized that the events in the Caloto massacre affected the
entire Paez indigenous community in northern Cauca, and that the measures to be
adopted to make reparation for the damage should be preventive, and should
address the claims and grievances of that community.[26] Accordingly,
in this case the Commission considers it necessary to interpret the obligations
established in the American Convention in light of the special obligations to
protect the life, physical integrity, property, culture, environment, and labor
of indigenous or tribal peoples, as provided for in Convention 169, the
Inter-American Charter of Social Guarantees, and the resolution on "Special
Protection for Indigenous Peoples."
A.
The right to life and physical integrity
42.
The report of the Comité de
Impulso indicates that on December 6, 1991, the company Sociedad Agropecuaria Piedra Blanca Ltda., purchased the "El
Nilo" property, knowing that it was inhabited by indigenous persons who had
effectively possessed part of the farm for approximately four years.
Once the property was purchased, the company attempted to have the
indigenous persons abandon the land in exchange for the value of their rustic
dwellings and of the improvements made to the property.
After the offer was rejected, the indigenous persons became the victims
of harassment and pressure, including the destruction of some of their rustic
dwellings days before the massacre, to force them to leave the property.
On December 16, 1991, a group of individuals went to the main house of
the "El Nilo" hacienda bearing arms that are restricted to use by the
armed forces and national police. Some
of these individuals had their faces painted, and others wore ski masks.
These individuals forced the victims to lie on the ground in a row, face
down, where they executed them.[27]
43.
The Comité de Impulso reached the conclusion that there were clear
indicia of the participation of the Police in the massacre.[28] The
State, for its part, considering the conclusions resulting from the effort to
reach friendly settlement, accepted its international responsibility, as it
acknowledged that its agents had committed the acts.[29]
44.
Article 4(1) of the American Convention establishes that no one shall be
deprived of his or her life arbitrarily. This
obligation of the State should be interpreted in light of its duty to afford
special protection to the indigenous and tribal peoples who live in its
jurisdiction. The Commission
considers that the facts, as established by the Comité
de Seguimiento, created by the State and the petitioners under the auspices
of the Commission--and as has been acknowledged by the State--constitute a grave
violation of the obligation to guarantee the right of all persons to have their
lives respected and of the special duty to protect the members of the Paez
indigenous community of northern Cauca. The motivations for the massacre--to
evict the indigenous persons from the property on which they lived lawfully--and
the method by which it was carried out--identifying and executing the community
leaders, with the clear intent to terrify the remaining members--constitute a
serious violation of the State's international obligations pursuant to Article 4
of the American Convention, in light of the controlling standards on special
protection.
45.
As appears from the disciplinary investigation, Mr. Jairo Llamo Ascué
suffered a gunshot wound in his right arm during the episode. The Commission considers this to constitute a violation of
Article 5(1) of the American Convention, which establishes the right of all
persons to respect for their physical, mental, and moral integrity.[30]
46.
Based on the foregoing considerations of fact and of law, and in view of
the recognition of State responsibility, the Commission concludes that on
December 16, 1991, a group of civilians acting jointly with agents of the
National Police arbitrarily deprived the following persons of the right to life:
Darío Coicué Fernández, Ofelia Tombé Vitonas, Carolina Tombé Ñusque,
Adán Mestizo Rivera, Edgar Mestizo Rivera, Eleuterio Dicué Calambas, Mario
Julicué Ul (or Mario Julico), Tiberio Dicué Corpus, María Jesús Guetia Pito
(or María Jesusa Güeitía), Floresmiro Dicué Mestizo, Mariana Mestizo Corpus,
Nicolás Consa Hilamo (or Nicolás Conda), Otoniel Mestizo Dagua (or Otoniel
Mestizo Corpus), Feliciano Otela Ocampo (or Feliciano Otela Campo), Calixto
Chilgüezo Toconas (or Calixto Chilgüeso), Julio Dagua Quiguanas, José Jairo
Secué Canas, Jesús Albeiro Pilcué Pete, Daniel Gugu Pete
(or Daniel Pete) and Domingo Cáliz Soscué (or Domingo Cálix Sescué)
and wounded Jairo Llamo Ascué, at the "El Nilo" hacienda, district of
El Palo, municipality of Caloto, in violation of the obligations established at
Articles 4(1) and 5(1) of the American Convention on Human Rights in light of
the special duty to protect indigenous populations. B.
The right to judicial protection and the State's obligation to respect
and ensure the rights protected by the Convention
47.
As arises from the information provided by the parties, as well as the
report by the Comité de Seguimiento,
the Public Order Court of Investigation of Cali initiated the investigation in
December 1991, and determined that National Police Maj. Jorge Enrique Durán Argüelles,
who had been commander of the Police district of Santander de Quilichao, and
Captain Fabio Alejandro Castañeda Mateus, Head of Antinarcotics of Santander de
Quelichao were, implicated in the incident.
On April 7, 1992, the Public Order Investigative Judge of Cali refrained
from issuing measures to ensure the officers' appearance at trial. The Public
Ministry representative appealed this decision, but it was affirmed on appeal.
On January 28, 1994, the investigating judge determined the charges and it was
decided to continue the investigation into National Police officers Maj. Jorge
Enrique Durán Argüelles and Capt. Fabio Alejandro Castañeda Mateus, and
civilians Orlando Villa Zapata, Leonardo Peñafiel Correa, Edgar Antonio Arévalo
Peláez, and Nicolás Quintero Zuluaga. Some
of the civilians chose to “plea bargain” and were found guilty of the crimes
of homicide, attempted homicide, arson, and illegal possession of weapons
restricted to use by the armed forces and police.
On September 4, 1996, the prosecutor in the case, under the Human Rights
Unit, assessed the merits of the investigation and handed down an indictment
against officers Jorge Enrique Durán Argüelles and Fabio Alejandro Castañeda
Mateus for multiple homicide in a combination of a series of related criminal
acts (“concurso real homogéneo heterogéneo")
and as co-perpetrators responsible for the offenses of attempted homicide,
illegal possession of arms restricted to use by the armed forces and police, and
damage to the property of another. That
decision was appealed and affirmed on appeal.
48.
In February 1997, the Court of First Instance of the National Police
asserted its jurisdiction. Accordingly,
by resolution of March 1997, the regional judges of Cali forwarded the
proceeding to the military criminal courts.
The appeal of this decision was declared inadmissible.
In September 1997, the military courts as a nullity all the proceedings
in the regular jurisdiction, revoked the orders to take measures to ensure the
appearance at trial against the Police officers accused, and ordered the
unconditional release of Capt. Alejandro Castañeda Mateus, the only member of
the Police who was detained. The
civil party requested that the case be sent back to the regular courts, pursuant
to Judgment C-358 of the Constitutional Court of Colombia, which provides that
cases involving serious human rights violations must be judged in that
jurisdiction. This request was
dismissed by the military criminal judge. The
Commission has learned that finally, on July 26, 1999, the Superior Military
Tribunal ruled to cease all proceedings against Maj. Durán Argüelles and Capt.
Castañeda Mateus.
49.
It should be noted that the Office of Special Investigations of the
Office of the Procurator General began the disciplinary investigation on January
10, 1992, as a result of an evaluative report by the Public Order Judge of Cali
on October 22, 1992, which established that "the evidence collected ...
provides serious indicia that National Police officers Maj. Jorge Enrique Durán
Argüelles and Capt. Fabio Alejandro Castañeda Mateus had relations with
persons who planned to terrify a group of indigenous persons in the Paez
Community, one of them directing, the other participating directly. There are sufficient grounds for opening a formal
disciplinary inquiry into the Police officers."[31]
The inquiry was forwarded to the Delegate Procurator for Human Rights,
who drew up a list of charges against Maj. Durán Argüelles and Capt. Fabio
Alejandro Castañeda Mateus on December 18, 1992.
On July 8, 1993, a ruling was handed down exonerating these individuals
of disciplinary liability. On
August 10, 1993, the Human Rights Ombudsman submitted considerations on this
resolution and asked that the Procurator General study the possibility of
reversing it. On August 14, 1996,
the Office of the Presidential Adviser for Human Rights and the Ministry of
Interior joined in the request. On
September 30, 1997, the Procurator General informed the Comité
de Seguimiento that the matter was currently before his office.
Nonetheless, in its final report, the Comité noted the fact that five
years after the massacre, it was not possible to bring additional actions.
As a result, one must conclude that the officers implicated have not been
and apparently will not be subject to any disciplinary sanction whatsoever.[32]
50.
The victims’ family members submitted claims for compensation in the
contentious-administrative jurisdiction. The
State carried out the recommendation of the Comité de Impulso that it enter into settlement agreements in these
proceedings.[33]
Nonetheless, the agreements were challenged by the persons who were notified of
a suit pending for which they may be potentially liable (i.e., the police
agents). Even though the Council of
State had decided that the challenge was inadmissible, the Commission has no
indication that the agreements were carried out. Accordingly, the victims'
family members may not have actually been paid compensation.
51.
The petitioners allege that the State has breached its duties to
investigate the facts in the case, and to try and punish the persons responsible
pursuant to Articles 8 and 25 of the American Convention.
The Comité de Seguimiento, for
its part, concluded in its final report that the impunity of the members of the
National Police responsible for the massacre is attributable to the action of
the military criminal justice system.[34] The
Commission must determine whether the judicial activity of the State--which has
extended over eight years and has been developed largely in the military and
disciplinary jurisdictions--meets the standards established by the American
Convention. Article 8(1) establishes: Every
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature
... for the determination of his rights and obligations of a civil, labor,
fiscal, or any other nature.
Article 25 provides:
2.
The States Parties undertake:
a. to ensure that any person
claiming such remedy shall have his rights determined by the competent authority
provided for by the legal system of the state;
b. to develop the possibilities of
judicial remedy;
c. to ensure that the competent
authorities shall enforce such remedies when granted. These
norms establish the obligation to provide access to justice with the guarantees
of legality, independence, and impartiality within a reasonable time and with
due protections, as well as the general obligation to provide an effective
judicial remedy in the face of the violation of fundamental rights,
incorporating the principle of the effectiveness of the procedural instruments
or mechanisms. As the
Inter-American Court of Human Rights (hereinafter "the Court") has
indicated, States
Parties have an obligation to provide effective judicial remedies to victims of
human rights violations (Art. 25), remedies that must be substantiated in
accordance with the rules of due process of law (Art. 8(1)), all in keeping with
the general obligation of such States to guarantee the free and full exercise of
the rights recognized by the Convention to all persons subject to their
jurisdiction.[35]
52.
The State acknowledged its international responsibility for the acts of
its agents in relation to the massacre. Nonetheless,
eight years after the fact, criminal responsibility has been established in
respect of only some of the civilians implicated.
The Commission notes that even though an investigation was begun into the
members of the National Police implicated in the massacre, after a
jurisdictional challenge the case was transferred to the military criminal
justice system.
53.
The Commission must point out that in the cases in which the violation of
a protected right results in the commission of conduct considered a criminal
offense under domestic law, the victims or their family members have the right
to have a regular court determine promptly and effectively the identity of the
persons responsible, try them, and impose the corresponding punishment, and for
the punishment to be effectively carried out. These cases clearly require a
criminal proceeding that includes a criminal investigation and criminal
sanctions, as well as the possibility of reparation.
54.
In the instant case, the trial of the officers implicated in the massacre
of the 20 members of the Paez indigenous community of northern Cauca was
transferred to the military criminal justice system.
In that jurisdiction, all proceedings in the regular justice system were
decreed null and void, and in July 1999 the Superior Military Tribunal decided
to cease all proceedings against the accused, Maj. Durán Argüelles and Capt.
Castañeda Mateus.
55.
The Commission has repeatedly stated that given its nature and structure,
the military criminal jurisdiction does not meet the requirements of
independence and impartiality set out in Article 8 of the American Convention.
The inadequacy of the military criminal courts as a forum for
investigating, trying, and punishing cases involving human rights violations has
already been the subject of a pronouncement by the Commission: The
military criminal justice system has several unique characteristics which
prevent access to an effective and impartial judicial remedy in that
jurisdiction. First, the military
justice system may not even be properly referred to as a true judicial forum.
The military justice system does not form part of the judicial branch of
the Colombian State. Rather, this
jurisdiction is operated by the public security forces and, as such, falls
within the executive branch. The
decision-makers are not trained judges, and the Office of the Prosecutor General
does not fulfill its accusatory role in the military justice system.[36]
In its decision of August 5, 1997, the Constitutional Court of Colombia
established that: For
the military criminal justice system to have jurisdiction over an offense, there
must be, from the beginning, a clear link between the offense and the activities
particular to military service. In
other words, the punishable act must constitute an excess or an abuse of power
that takes place in the context of an activity directly related to a legitimate
function of the armed forces. The
nexus between the criminal act and the activity related to military service is
broken when the offense is extremely grave, as in the case of crimes against
humanity. In such circumstances, the case must be removed to the civilian
justice system.[37]
56.
The Commission considers that the massacre of 20 members of an indigenous
community in order to evict them from the property they inhabited on the
"El Nilo" hacienda in the municipality of Caloto cannot be considered
part of the legitimate functions of security force agents. Accordingly, the trial of accused in the military criminal
jurisdiction constitutes a violation of the right to judicial protection and of
the guarantees of impartiality of the court enshrined in Articles 8(1) and 25 of
the American Convention.
57.
The lack of an adequate and effective remedy to address the violation of
rights recognized in the Convention is itself a violation of the Convention.
Judicial remedies and mechanisms must not only be provided for formally
in the legislation, but must be effective and swift in establishing whether
there has been a violation of human rights, and in making reparation for the
consequences. The Inter-American
Court has established that: If
the State apparatus acts in such a way that the violation goes unpunished and
the victim's full enjoyment of such rights is not restored as soon as possible,
the State has failed to comply with its duty to ensure the free and full
exercise of those rights to the persons within its jurisdiction.[38]
58.
The Commission concludes that after eight years, the State has not
adequately and effectively investigated or tried and punished its agents for
their criminal liability in the Caloto massacre.
59.
The judicial protection that the State has a duty to provide also
includes the duty to make reparation to the victims or their family members for
the consequences of the violations experienced.
The surviving victim and the family members of the deceased victims have
a right to reparation that includes monetary compensation for the harm
inflicted. According to the
information provided by the parties and collected during the friendly settlement
process, a series of settlement agreements were reached in the proceedings
brought in the contentious-administrative jurisdiction that have yet to be
implemented. In the framework of
the friendly settlement process, the State also undertook to carry out
commitments to make social reparation involving the assignment of lands to the
Paez indigenous community. These
commitments are in the process of being carried out.
Specifically, a budget item of 1.5 billion Colombian pesos was to be
earmarked for the purchase of lands in the current year, and one billion pesos
for next year.
60.
Based on the foregoing considerations of fact and law, the Commission
concludes that the State has failed to carry out its obligation to offer
adequate judicial protection pursuant to Articles 8 and 25 of the American
Convention. Furthermore, the State
has partially carried out its obligation to clarify the facts and to make
reparation to the family members of the deceased victims and to the Paez
indigenous community of northern Cauca. C.
Duty to respect and ensure the rights protected by the Convention
61.
Article 1(1) of the Convention establishes the obligation of the States
Parties to:
The
Court has interpreted this obligation to include the duty to organize the
structures by which public authority is exercised so that they are capable of
legally assuring to all persons the free and full exercise of their fundamental
rights.[39] The
Court has established that Article 1(1), in relation to Article 25, obliges the
State to guarantee to all persons access to the administration of justice, and
in particular to prompt and simple recourse for ensuring that the persons
responsible for violations of fundamental rights are tried, and that reparation
is obtained for the harm suffered. These
norms are directly related to Article 8(1), which enshrines the right of all
persons to be heard, with due guarantees, and within a reasonable time, by an
independent and impartial judge or court, for determining rights whatever their
nature. These obligations are basic
pillars of the rule of law in a democratic society, as understood by the
Convention.[40]
62.
In this case, the State has failed in its obligation to try and punish
the persons responsible for the massacre, pursuant to the standards of Articles
8(1) and 25. Nonetheless, it has partially carried out its obligation to
guarantee that the case be resolved. Specifically,
it has participated actively in the Comité
de Impulso and the Comité de
Seguimiento, which were installed as part of the effort to reach a friendly
settlement in this case, and in the production of reports that have helped to
clarify the facts, individual responsibilities, and the difficulties in judicial
investigations. In addition, it has
partially carried out its duty to guarantee due reparation to the family members
of the victims by promoting the settlement agreements in the
contentious-administrative jurisdiction, and the process of implementing the
projects for making social reparation to the Paez indigenous community of
northern Cauca.
63.
As the Inter-American Court has indicated, the States Parties to the
American Convention have the legal duty to reasonably prevent human rights
violations,[41]
and this duty "includes all those means of a legal, political,
administrative and cultural nature that promote the protection of human
rights."[42]
The Commission considers that there are grounds for concluding that the
State failed to carry out its duty to prevent, in conjunction with the right to
life enshrined in Article 4 of the Convention.
The information provided by the parties indicates that more than one week
prior to the massacre, on December 7, 1991, members of the Paez indigenous
community denounced the threats directed at them and requested protection from
the authorities.[43]
The Office of Special Investigations of the Office of the Procurator
General indicated: As
the indigenous persons refused to reach an agreement, they were threatened,
according to their assertions ... by the alleged representative of the purchaser
company, Gilberto Márquez, who was apparently accompanied by a group of armed
men. Faced with this situation, the
indigenous persons informed the mayor and the municipal ombudsman; and in a
meeting held in the village of El Carrizal, they informed the Regional Manager
of INCORA and the Secretary of the Municipal Government as to the situation.
This was corroborated by the mayor and municipal ombudsman in their
statements […].[44] This
fact has been corroborated by the report prepared by a delegation from the
Colombian Congress that traveled to the Caloto region in January 1992, which
stated: The
Government of Cauca was informed in a timely manner, by the indigenous community
of the Resguardo de Huellas, of the grave threats to their integrity, yet it did
not take any measure to protect them. It was, as the Regional Indigenous Council of Cauca has
called it, "a death foretold."[45]
64.
Consequently, the State authorities were aware of the imminent risk to
the Paez indigenous community of northern Cauca, yet failed to adopt the
measures necessary for protecting their fundamental rights, leaving the victims
defenseless and facilitating their subsequent extrajudicial execution.[46] Days
later, state agents participated in perpetrating the serious violations of the
right to life and physical integrity foreshadowed by the threats.
The Commission considers that these incidents constitute serious
omissions in respect of the duty to prevent violations of fundamental rights
provided for in the American Convention, and to offer special protection to the
indigenous communities.
65.
Based on these elements of fact and law, the Commission concludes that
the Colombian State has failed in its duty to prevent the violation of and to
ensure respect for the victims' rights to life, personal liberty, and humane
treatment, as well as their right to judicial protection, pursuant to Article
1(1) of the Convention, in light of the obligation to offer special protection
to the Paez indigenous community of northern Cauca. VI.
PROCEEDINGS AFTER REPORT 114/99
66.
On September 28, 1999, the Commission approved Report 114/99, pursuant to
Article 50 of the American Convention. In
that Report the Commission, based on the information collected during this
process, and in view of the acknowledgment of responsibility by the Republic of
Colombia, concluded that State agents, together with a group of civilians,
violated the right to life of Darío Coicué Fernández, Ofelia Tombé Vitonas,
Carolina Tombé Ñusque, Adán Mestizo Rivera, Edgar Mestizo Rivera, Eleuterio
Dicué Calambas, Mario Julicué Ul (or Mario Julico), Tiberio Dicué Corpus, María
Jesús Guetia Pito (or María Jesusa Güeitía), Floresmiro Dicué Mestizo,
Mariana Mestizo Corpus, Nicolás Consa Hilamo (or Nicolás Conda), Otoniel
Mestizo Dagua (or Otoniel Mestizo Corpus), Feliciano Otela Ocampo (or Feliciano
Otela Campo), Calixto Chilgüezo Toconas (or Calixto Chilgüeso), Julio Dagua
Quiguanas, José Jairo Secué Canas, Jesús Albeiro Pilcué Pete, Daniel Gugu
Pete (or Daniel Pete), and Domingo
Cáliz Soscué (or Domingo Cálix Sescué), the right to physical integrity of
Jairo Llamo Ascué, and the right to judicial guarantees and judicial protection
of all of them, pursuant to Articles 5(1) and (2), 8, and 25 of the American
Convention. The Commission also
concluded that the State had partially failed in its duty to ensure these rights
and to take the necessary measures to prevent their violation, pursuant to
Article 1(1) of the Convention. In
addition, it recommended that the State: "(1)
carry out a complete, impartial, and effective investigation, in the regular
jurisdiction, in order to try and punish the persons responsible for the
massacre. (2)
Adopt the necessary measures to make reparations to Jairo Llamo Ascué,
and to the victims' family members who had not yet been compensated.
(3) Adopt the measures
necessary to carry out the commitments relating to social reparation for the
Paez indigenous community of northern Cauca.
(4) Adopt the measures
necessary to prevent similar events in the future, in keeping with the duty of
prevention and to guarantee the fundamental rights recognized in the American
Convention. (5)
To adopt the measures necessary to fully implement the doctrine developed
by the Constitutional Court of Colombia and by this Commission in the
investigation and trial of similar cases by the regular criminal justice
system."
67.
On October 19, 1999, the Commission forwarded the Report to the State,
giving it two months to comply with these recommendations. On December 20, 1999, the State requested an extension to
submit information on implementation of the recommendations, which was duly
granted. Finally, on January 24,
2000, the State submitted information on implementation of the commitments
agreed upon in the framework of the effort to achieve friendly settlement.
68.
First, the State reported that it had fully complied with 21 of the 31
recommendations made by the Comité de
Impulso in the area of criminal justice.
It stated that it had partially complied with one more recommendation,
that it failed to comply with four, and that it had no information on the
remaining six. In terms of the
proceedings before the criminal military courts, the State argued that the cases
against Jorge Durán Argüelles and Fabio Alejandro Castañeda Mateus, which
were on appeal before the Superior Military Court, were resolved on July 22,
1999, with a cessation of proceedings favoring the accused.
It also noted that the civil party in the proceedings had refrained from
pursuing any remedy, even though it was possible to request a confirmation of
the judgment of first instance denying the cessation of proceedings, and argue a
jurisdictional conflict before the Superior Council of the Judiciary (Consejo
Superior de la Judicatura). In
terms of the proceedings before the regular courts, the State indicated that
convictions were secured against Second Corporal Pedro Pablo Agredo Montilla and
police agents Edgar Montoya Ojeda, Luis Ernesto Soto Cardona, and Héctor Marín
Mejía; and Luis Alberto Bernal Seijas, Orlando Villa Zapata, Neimberg Marín
Z., Carlos Alberto Flórez Alarcón, and Leonardo Peñafiel Correa, all private
individuals, who, it is argued, are in confinement, except for Mr. Alberto
Bernal Seijas, who has yet to be detained, and Mr. Orlando Villa Zapata, who was
said to have escaped from the Vista Hermosa prison in Cali in mid-1998. This
escape was said to be under investigation by the Unit of Crimes against the
Administration of Justice, of the Office of the Prosecutor General for Cali.
In addition, an investigation is under way into Mr. Carlos Mario Vásquez
Velásquez, who has yet to appear before the authorities.
69.
With respect to the six recommendations of the Comité
de Impulso as regards the disciplinary proceedings, the State indicated that
four of them were complied with fully, one partially, and the other was not
implemented. The disciplinary
proceedings in which decisions were pending were resolved to the benefit of the
persons investigated. In addition,
the State noted that according to information provided by the National Police,
in October 1997 Messrs. Alcibiades Escué and Ancízar Bolaños asked the Office
of the Procurator General to open a disciplinary investigation into Brig. Gen.
Hugo Rafael Martínez Poveda and others. In
March 1998 the Office of the Procurator General decided to archive the
complaint, considering that it did not refer to a disciplinary breach.
70.
In terms of the Comité de Impulso's
recommendation to enter into settlement agreements in the
contentious-administrative proceedings, the State notes that some of the
compensation acknowledged was processed via the application of Law 288 of 1996.
In effect, the Committee of Ministers issued Resolution Number 3 of 1997,
in light of the recommendations of the Inter-American Commission during its 97th
session. The State reported that of a total of 16 claims filed with
the Administrative Tribunal of Cauca, settlements were reached in 11, and
partial settlements in five. In three of these proceedings, there was no
settlement since the guardians ad litem
of the minors involved lacked the corresponding judicial authorization, and for
that reason, it was said, they were still pending a decision.
It also confirmed that a hearing was held to reach a settlement in the
Administrative Tribunal of Cauca in January 1998, as a result of which notice
was sent to Maj. Jorge Enrique Durán Argüelles and Capt. Fabio Alejandro Castañeda
Mateus informing them of suits for which they may be potentially liable.
These officers filed an appeal before the Council of State against the
measure fully approving the settlement. On
December 9, 1998, the Council of State denied the motion and affirmed the
first-instance judgment.
71.
The State confirmed that neither Mr. Jairo Llamo Ascué--a survivor of
the massacre who, as was determined, was wounded--nor any of the family members
is registered as a plaintiff in the actions brought before the Administrative
Tribunal of Cauca, nor in the settlements under Law 288 of 1996.
The State also argues these individuals do not appear on the list
contained in the request for settlement payment submitted by the Corporación
Colectivo de Abogados "José Alvear Restrepo" to the Ministry of
Defense on September 23, 1999.
72.
In terms of the recommendations of the Comité
de Impulso in respect of social reparation, the State argued that they have
met with partial compliance, and that some are still being implemented.
Specifically, the State argues that the procedure for purchase and
adjudication is under way, and that some lands will gradually begin to be
purchased. The State noted that
there were legal difficulties in the disbursement of the resources allocated,
and in identifying property owners in the region willing to sell their lands.
It reported that to date a total of 6,877,829 hectares had been
purchased, and that 8,778,171 hectares remained to be purchased.
It affirms that the General Bureau for Indigenous Affairs of the Ministry
of Interior continues the task of searching for properties, and it trusts that
during the first months of the year it would be purchased.
Regarding the development of the works agreed upon in the Indigenous
Alternative Development Plan for Cauca, the State indicated that most of the
projects proposed have been carried out, and that four remain to be implemented
for which the contracts are pending legalization before the Contracts Unit of
the Administrative Department, Office of the Vice President of the Republic.
73.
Finally, the State highlighted the importance and value of friendly
settlement as a mechanism which, in this particular case, made possible major
accomplishments in some of the areas addressed during the process, and
acknowledged the will and commitment of the parties. In addition, it was agreed
to continue to take and foster initiatives aimed at complying with the
Commission's recommendations.
VII.
CONCLUSIONS
74.
The Commission wishes to express its acknowledgment of the effort made by
petitioners and the Colombian State to solve this case by way of friendly
settlement, and laments that this procedure broke down in its final stages.
In view of the information received during this process, the recognition
of state responsibility by the Republic of Colombia, and its response, the
Commission reiterates its conclusion that State agents, together with a group of
civilians, violated the right to life of Darío Coicué Fernández, Ofelia Tombé
Vitonas, Carolina Tombé Ñusque, Adán Mestizo Rivera, Edgar Mestizo Rivera,
Eleuterio Dicué Calambas, Mario Julicué Ul (or Mario Julico), Tiberio Dicué
Corpus, María Jesús Guetia Pito (or María Jesusa Güeitía), Floresmiro Dicué
Mestizo, Mariana Mestizo Corpus, Nicolás Consa Hilamo (or Nicolás Conda),
Otoniel Mestizo Dagua (or Otoniel Mestizo Corpus), Feliciano Otela Ocampo (or
Feliciano Otela Campo), Calixto Chilgüezo Toconas (or Calixto Chilgüeso),
Julio Dagua Quiguanas, José Jairo Secué Canas, Jesús Albeiro Pilcué Pete,
Daniel Gugu Pete (or Daniel Pete),
and Domingo Cáliz Soscué (or Domingo Cálix Sescué), the right to physical
integrity of Jairo Llamo Ascué, and the right to judicial guarantees and
judicial protection of all of them, pursuant to Articles 5(1) and (2), 8, and 25
of the American Convention. The
Commission also concludes that the State partially failed in its duty to
guarantee these rights and to take the necessary measures to prevent their
violation, in light of Article 1(1) of the Convention.
VIII.
RECOMMENDATIONS
75.
Based on the analysis and conclusions of this Report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES
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