Inter-american court of human rights

601 Cf. Colombian Constitutional Court. Judgment No. T-506/92 of August 21, 1992; judgment cited in the Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 181.

602 The determination of the injured party will be made in Chapter X on reparations.

603 Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, paras. 124, 135 and 137, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 146.

604 Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, para. 164, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 147.

605 Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, reparations and costs, para. 73.61 to 73.74, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 147.

606 Cf. Ombudsman’s Office, Amicus curie presented before the Constitutional Court, “Forestry exploitation and human rights in the Cacarica River basin in the department of Chocó” (evidence file, folios 46539).

607 Also, there were agreement between Madarién and the Lower Councils without the existence of a prior favorable opinion by the Assembly or the Board of the Community Council in relation to the signature of commitments between the Lower Councils and the logging companies. These agreements were accepted by CODECHOCÓ. Cf. Ombudsman’s Office, Amicus curie presented before the Constitutional Court, “Forestry exploitation and human rights in the Cacarica River basin in the department of Chocó” (evidence file, folios 46563).

608 Cf. Ombudsman’s Office, Amicus curie presented before the Constitutional Court, “Forestry exploitation and human rights in the Cacarica River basin in the department of Chocó” (evidence file, folios 46522 and ff.).

609 In this regard, it indicated that the proceedings under the ordinary criminal justice system have not progressed significantly, because, one of them was precluded by the State for more than four years and re-opened in 2009 without any results to date (proceeding No. 5767, now 426), and the second did not make any progress until just last year when a first instance judgment was delivered sentencing former General Rito Alejo del Río to 26 years’ imprisonment (proceeding No. 2332). It indicated that this judgment was delivered only for the death of Marino López Mena and is not yet final. It also indicated that an ordinary criminal investigation into the paramilitary incursion into the village of Bijao had been opened, but no investigations had been initiated in this jurisdiction for the other paramilitary incursions that are the subject of this case. Everything related to the remaining incursions was being aired before the legal proceedings of the Justice and Peace procedure, but only with regard to the events described in the voluntary confessions that are received.

610 Regarding this jurisdiction, the Commission noted that the State had not delivered judgments convicting anyone. However, a paramilitary leader who had provided information that was important for the clarification of the facts and the punishment of those responsible had been extradited.

611 In this regard, it indicated that, in order to protect the physical integrity of the officials of the Human Rights Unit and the members of the Technical Investigation Corps who took part in this investigation, and to avoid reprisals against them for the actions undertaken in legitimate exercise of their functions, precautionary measures were granted after which the pressure and threats suffered by these officials at the investigation stage of proceeding No. 5767 were monitored. It added that the former soldier, O.J.G.Y. requested protection for himself and his family in order to continue testifying in the criminal proceeding and in a disciplinary proceeding owing to the threats he had received, but this was not provided, causing him to retract his previous statements. All of this, in the Commission’s opinion “constituted an obstruction to the progress of the investigation and non-compliance with the search for the truth and the punishment of those responsibsle.”

612 In this regard, the Commission recalled its considerations that “the extradition of a demobilized individual so that he can respond in another country for offenses that are less serious that the ones he is confessing before the Colombian judges is a form of impunity.”

613 In order to substantiate this, the representatives analyzed actions of the Colombian authorities: (a) the lack of due diligence and the unjustified delay in the proceeding before the ordinary justice system; (b) the irregularities and obstructions of justice in the ordinary criminal proceeding; (c) the logical lines of investigation that were not explored; (d) the additional deficiencies of the investigation into the paramilitaries involved in the events, and (d) the ineffectiveness of the disciplinary proceedings and the failure to investigate the illegal exploitation on the territory. Regarding the first point, they noted that the State had not conducted an effective investigation into the offense of forced displacement, even though this offense – which previously corresponded to illegal constraint described in article 276 of Decree 100 of 1890 – had been criminalized autonomously since 2000. Similarly, they indicated that, in the proceeding opened under file No. 2332, the crime of Marino López was investigated in isolation, without considering its nature as a crime against humanity. They indicated that the displacement, the paramilitary incursion, and the violations of international humanitarian law commited by State agents during “Operation Genesis” had been excluded from this investigation. Regarding the second point, they indicated that the conduct of the different investigations had been characterized by the absence of guarantees for the victims and witnesss to be able to appear before the authorities and testify to the facts without being harassed, accused and, subsequently, victims of spurious judicial charges. On the third point, the representatives indicated as the main factor of impunity the refusal of the judicial authorities to investigate these events systematically. They indicated that the crimes of which the Cacarcia communities were the victims responded to a complex structure of criminal collusion that included soldiers, politicians and leaders of the paramilitary groups and their henchmen. Lastly, the representatives indicated that the paramilitary participation in the murder had not been investigated adequately, or the connections between the soldiers and the paramilitaries involved.

614 The State also indicated that this Unit has been organized in nine groups so that each one works on logical lines of investigation that respond to the country’s different problems. It also indicated that one of these groups has been called “Investigation group on the violence that occurred in the Urabá region.”

615 Cf. Case of Manuel Cepeda Vargas v. Colombia, para. 17, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 151.

616 Case of Velásquez Rodríguez v. Honduras. Merits, para. 173, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 47.

617 Cf. Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 319, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 156.

618 Cf. Case of Velásquez Rodríguez, Merits, para. 177, and Case of the Massacres of El Mozote and nearby places v. El Salvador. Merits, reparations and costs, para. 248.

619 Cf. Case of the Pueblo Bello Massacre v. Colombia. Merits, para. 143, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 157.

620 Cf. Case of Gómez Palomino v. Peru. Merits, reparations and costs. Judgment of November 22, 2005. Series C No. 136, para. 80, and Case of González Medina and family members v. Dominican Republic. Preliminary objections, merits, reparations and costs. Judgment of February 27, 2012. Series C No. 240, para. 220.

621 Cf. Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs, para. 156, and Case of Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala, para. 230.

622 Cf. Case of Gudiel Álvarez et al. (“Diario Militar”) v. Guatemala, para. 230, and Case of La Cantuta v. Peru. Merits, reparations and costs. Judgment of November 29, 2006. Series C No. 162, para. 157.

623 Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs, para. 156.

624 Cf. Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs, para. 158, and Case of the Río Negro Massacres v. Guatemala, para. 194.

625 Reference was made, in particular, to the retraction of some deponents; for example, O.J.G.Y.

626 Cf. Inter-American Commission, precautionary measures MC 185-01. Pedro Díaz Romero et al. (evidence file, folio 1882). See also: IACHR, Annual Repor 2001, III C. 1, para. 20 (evidence file, folio 1983).

627 Cf. Case of Myrna Mack Chang v. Guatelama. Merits, reparations and costs. Judgment of November 25, 2003. Series C No101, para. 199, and Case of the La Rochela Massacre v. Colombia. Merits, reparations and costs, para. 171.

628 Cf. Case of Kawas Fernández vs. Honduras. Merits, reparations and costs, para. 106.

629 The Prosecutor General’s Office, case file 426, volume 9 (evidence file, folios 41561, 41563 and 41564).

630 Cf. Eighth Criminal Court of the Bogota Special Circuit, file 2009-063, defendant Rito Alejo del Río, judgment of August 23, 2012 (evidence file, folios 14791 and 14792).

631 Cf. Eighth Criminal Court of the Bogota Special Circuit, file 2009-063, defendant Rito Alejo del Río, judgment of August 23, 2012 (evidence file, folio 14800).

632 This situation was described in detail in the chapter on Proven Facts of this Judgment, and numerous documents provide evidence of the different disputes on competence that arose throughout this proceeding. Cf. Among others, Habeas corpus decision of the 31st Criminal Court of the Bogota Circuit of August 4, 2001, case file No. 0004/2001 (evidence file, folio 1969); decision of the Prosecutor General of January 18, 2010, in case file No. 426, original volume No. 20 (evidence file, folio 43746); Report of the Secretariat of April 12, 2010, on the decision of the Plenary Chamber of the Supreme Court of Justice in ordinary session of March 18, 2010, in case file No. 426, original volume No. 20 (evidence file, folio 43771); decision of the Prosecutor General of June 17, 2010, in case file No. 426, original volume No. 20 (evidence file, folio 43788); decision of the 20th Special Prosecutor UNDH-DIH of July 8, 2010, in case file No. 426, original volume No. 20 (evidence file, folio 43808); decision of the 20th Special Prosecutor UNDH-DIH of May 18, 2011, in case file No. 426, original volume No. 20 (evidence file, folio 44091).

633 Cf. Decision of the Prosecutor General of March 9, 2004, in case file 426, original volume No. 11 (evidence file, folio 42334).

634 Cf. Supreme Court of Justice, Criminal Cassation Chamber. Judgment on appeal for review (Proceeding 30510) of March 11, 2009 (evidence file, folio 2143).

635 General del Río’s defense counsel pleaded the incompetence of the UNDH-DIH special prosecutors to hear the case, in all the hearings scheduled for him to expand his preliminary statement. Cf. Preliminary statement made by Rito Alejo del Río Rojas before the UNDH-DIH 20th Special Prosecutor on July 2, 2009 (evidence file, folio 42500); Hearing on expansion of the preliminary statement made by Rito Alejo del Río Rojas before the UNDH-DIH 20th Special Prosecutor (evidence file, folios 42515 and 42516); Hearing on expansion of the preliminary statement made by Rito Alejo del Río Rojas, on April 15, 2011, before the UNDH-DIH (evidence file, folio 43985).

636 Cf. Decision No. 0105 of July 9, 2003. Regional Director of Prosecutors, Quibdó (evidence file, folio 9879).

637 Cf. Statement made by Luis Muentes Mendoza on August 29, 2008, in case file No. 2332 (evidence file, folio 17386); Statement made by Diego Luis Hinestroza Moreno on August 29, 2008, in case file No. 2332 (evidence file, folio 17697); Preliminary statement made by William Soto Salcedo on December 5, 2011, in case file No. 2332 (evidence file, folio 17697), and Expansion of statement made by Diego Luis Hinestroza Moreno on January 18, 2011, in case file No. 2332 (evidence file, folio 17708).

638 Cf. Voluntary confessions referring to the case of Marino López Mena: Fredy Rendón Herrera on October 24, 2007 (evidence file, folio 17247), Diego Luis Hinestroza Moreno on April 2, 2008 (evidence file, folio 17164), Luis Muentes Mendoza on April 22, 2008 (evidence file, folio 17165) and on December 1, 2008 (evidence file, folios 17167 and 17252), Alberto García Sevilla on August 28, 2008 (evidence file, folio 1766), Rubén Darío Rendón Blanquiceth on July 17, 2008 (evidence file, folio 17169), Franklin Hernandez Seguro on August 6, 2008 (evidence file, folio 17171), and William Manuel Soto Salcedo on July 9, 2008 (evidence file, folio17167); Combined confessions, Operation Cacarica (Genesis) on April 28, 29 and 30, 2010, of the candidates Fredy Rendón Herrera, William Manuel Soto Salcedo, Diego Luis Hinestroza Moreno, Luis Muentes Mendoza, Franklin Hernandez Seguro, Alberto García Sevilla and Julio César Arce Graciano (evidence file, folios 17870 to 17932 and 17935); Statements by the former AC Élmer Cárdenas Bloc, in relation to the so-called “Operation Cacarica (Genesis)” (evidence file, folios 18372 to 18398).

639 Cf. 48th Delegate Prosecutor before the Justice and Peace Court, Dossier on the Elmer Cárdenas Bloc. Genesis. Context immediately before it was planned (evidence file, folios 44465 to 44536), structures described by Fredy Rendón in voluntary confession made on November 26, 2009 (evidence file, folios 45250 to 45443), Ideology of the organization (evidence file, folios 45238 to 45248, and 45459 to 45489), Chain of command (evidence file, folios 45490 to 45512), and Demobilization proceedings (evidence file, folios 45513 to 45526).

640 Cf. Case of Manuel Cepeda Vargas v. Colombia, para. 166.

641 Cf. Case of the Mapiripán Massacre v. Colombia. Monitoring compliance with judgment. Order of the Inter-American Court of Human Rights of July 8, 2009, considering paragraph 40.

642 In proceedings 30451, the Criminal Cassation Chamber issued a negative opinion on the request for extradition of an individual who was a candidate for the benefits establshed in the Justie and Peace Act, based on the following argments: (i) it violated the spirit of Law 975 of 2005; (ii) it ignored the rights of the victims; (iii) it disrupted the functioning of the administration of Colombian justice, and (iv) the severity of the crimes committed for which the individual’s extradition was requested was less than the crimes that he was accused of in Colombia. Cited in the Case of Manuel Cepeda Vargas v. Colombia, para. 166.

643 Cf. El derecho a no ser discriminado. Primer informe sobre discriminación racial y derechos de la población afrocolombiana (summary), 2008, Bogota : Universidad de los Andes. Observatorio de Discriminación Racial. Programa de Justicia Global y Derechos Humanos y CIJUS; Proceso de Comunidades Negras (PCN); Centro de Estudios de Derecho; Justicia y Sociedad (Dejusticia) (evidence file, folios 8242 to 8311); Comisión Intereclesial de Justicia y Paz. El proyecto paramilitar en Colombia (evidence file, folios 8587 to 8602); Secretariado Nacional de Pastoral Social Bogota, “Situación de guerra y de violencia en el Departamento del Chocó 1996-2002,” November 2002, pp. 56 and ff. (evidence file, folios 8756 to 8817); “Pasion y muerte de un denunciante en Colombia” (evidence file, folios 9764 to 9800), and Report “A Wrong Turn,” issued by Human Rights Watch in November 2002 (evidence file, folio 9806).

644 Cf. Case of the Mapiripán Massacre v. Colombia, para. 215, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 167.

645 Cf. Case of the Pueblo Bello Massacre v. Colombia. Merits, para. 203, and Case of the Santo Domingo Massacre v. Colombia. Preliminary objections, merits and reparations, para. 167.

646 Cf. Case of Velásquez Rodríguez v. Honduras, Merits, para. 177, and Case of Mendoza et al. v. Argentina, para. 218.

647 Cf., inter alia, Case of the Pueblo Bello Massacre v. Colombia, para. 184, Case of the Ituango Massacres v. Colombia. Preliminary objection, merits, reparations and costs, para. 293, Case of Valle Jaramillo et al. v. Colombia, para. 156, and Case of Furlan and family members v. Argentina, para. 156.

648 Case of the Saramaka People v. Suriname, Preliminary objections, merits, reparations and costs, para. 177. See also Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24.

649 Cf. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 261, and Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987, para. 24.

650 Cf. Case of Velásquez Rodríguez v. Honduras, Merits, paras. 63, 68 and 81, and Case of Cabrera García and Montiel Flores v. Mexico. Preliminary objection, merits, reparations and costs. Judgment of November 26, 2010. Series C No. 220, para. 142. Also, Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8 American Convention on Human Rights). Advisory Opinion OC-9/87 of October 6, 1987. Series A No. 9, para. 24.

651 Cf. Case of Baena Ricardo et al. v. Panama. Competence. Judgment of November 28, 2003. Series C No. 104, para. 73, and Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of August 28, 2013. Series C No. 268, para. 228.

652 Cf. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, para. 263, and, mutatis mutandi, Case of Baena Ricardo et al., v. Panama, Competence. para. 82, and Case of Mejía Idrovo v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment of July 5, 2011. Series C No. 228, para. 104.

653 Cf. Case of Furlan and family members v. Argentina. Preliminary objections, merits, reparations and costs, para. 209, and Case of Baena Ricardo et al. v. Panama, Competence, para. 82.

654 Cf. Cundimarca Administrative Court, First Section, proceedings A.T 00-1378 of September 7, 2001 (evidence file, folio 46913).

655 Cf. Constitutional Court, Judgment T-955 of October 17, 2003, pp. 92 to 95 (evidence file, folios 23 to 226).

656 Article 63(1) of the American Convention establishes: “If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.”

657 Cf. Case of Velásquez Rodríguez v. Honduras. Reparations and costs, para. 25, and Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador, para. 243.

658Case of Castillo Páez v. Peru. Reparations and costs, para. 50, and Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador, para. 243.

659Cf. Case of Ticona Estrada et al. v. Bolivia. Merits, reparations and costs, para. 110, and Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador, para. 245.

660 Cf. Case of Velásquez Rodríguez v. Honduras. Reparations and costs, para. 26, and Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador, para. 244.

661

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