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