IX.4
CRIMINAL INVESTIGATIONS AND PROCEEDINGS AND OTHER PROCEDURES
(Articles 8 and 25 of the Convention)
Arguments of the Commission and of the parties
The Commission and the representatives considered that the State had violated the right to judicial guarantees and judicial protection established in Articles 8 and 25, in relation to Article 1(1) of the American Convention, and that, in particular, it had failed to comply with the obligations to investigate, prosecute and punish those responsible for torturing Marino López, pursuant to Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of Marino López. The representatives also argued that the normative framework of the demobilization proceedings, which grants legal benefits to the members of the paramilitary groups who demobilize, impairs the right to justice of the victims and, thus, the obligation to adopt domestic legal provisions established in Articles 1(1) and 2 of the Convention.
The Commission observed that, more than 14 years after the events occurred, one investigation is still at the preliminary stage, and that neither the criminal proceeding nor the investigations of the ordinary justice system609 nor the one under the Justice and Peace Law,610 have produced any result as regards administering justice and providing reparation, because no judgments have been delivered convicting those who have confessed to having taken part in the events that are the subject of this case. It also considered that, even though at least 38 members of the Army participated in Operation Genesis and numerous members of paramilitary groups had taken part in the incursions in the Cacarica river basin, of these, only one Army General and one soldier and some members of paramilitary groups had been prosecuted.
Furthermore, the Commission argued that the judicial proceedings have been drawn out, so that the reasonable time frame established in the Convention has been exceeded, and the responsibility for this can be attributed to the judicial authorities. According to the Commission, in the present case, the delay has reduced the possibility of uncovering the truth of the events and of prosecuting the perpetrators. The Commission also referred to the inefficiencies in the investigations owing to the failure to protect participants in the proceedings.611 Regarding the disciplinary proceedings opened owing to the facts of this case, the Commission pointed out that none of them has led to any real results; that some of them are still at the preliminary stages, and that others have prescribed. Lastly, it indicated that the extradition to the United States of America of individuals who had testified under the Justice and Peace Law constitutes an obstacle to resolving the impunity of the events.612
The representatives added that the State had failed to comply with its obligation to investigate and punish, impartially and diligently and within a reasonable time, all those responsible for the events of this case and, consequently, “has failed to comply with its obligation to ensure the victims the right to the truth and the right to justice.” They also indicated that the domestic judicial proceedings were characterized by a lack of due diligences manifested by the absence of a comprehensive investigation of the facts. They indicated that, as a result of this, after nearly 15 years had elapsed, the events of this case remain in impunity.613
Regarding the additional shortcomings in the investigation into the paramilitaries presumably involved in the events, the representatives charged that there had been obstructions de facto and de jure as a result of the demobilization procedure. In addition, they argued that the legal framework of the demobilization procedure, which granted legal benefits to the members of the paramilitary groups who demobilized, also affected the victims’ right to justice.
Lastly, the representatives indicated that the protection ruling T-955/03 handed down by the Constitutional Court ordering the suspension of logging, and some disciplinary procedures opened by the Public Prosecution Service against local environmental authorities had not guaranteed “the effective enjoyment of the right to collective property and the natural resources, in the terms in which these rights are recognized in the case law of the Inter-American Court.” They added that the State had “not taken effective measures to repair the environmental damage that this situation has generated and to ensure that the said activities do not continue.”
In Chapter IV of this Judgment the Court established that the State had acknowledged its international responsibility for the violation of Articles 8(1) and 25(1) of the Convention, in relation to Article 1(1) of this instrument, to the detriment of “the next of kin of Marino López Mena, who were duly identified and individualized, as well as of the victims of forced displacement determined by the Court,” owing to the violation of a reasonable time, without it having been possible, to date, to identify and punish the masterminds and perpetrators of the said offenses. The dispute remained with regard to the State’s responsibility for the alleged violation of the other rights that the representatives and the Commission alleged had been violated (supra para. 22).
Despite the foregoing, the State indicated that the reasonable time for an investigation cannot be examined in abstract, but rather case by case, and indicated that, although the criminal investigations had been conducted diligently and responsibly, no results had been obtained because of the complexity of the events under investigation, owing to the modus operandi of the illegal organizations that instigated the events, the vulnerable conditions of the population that was the victim of those events, and the difficulty for the judicial officials to access the area where the events occurred.
In addition, in its brief of August 13, 2013, with observations on the evidence forwarded by the Prosecutor General’s Office, the State indicated, inter alia, that “the documentation provided by the Prosecutor General’s Office reveals the significant efforts and progress made in the administration of justice, as well as Colombia’s commitment to seek the truth in this case,” and that the State “has been evaluating the functioning of the system of criminal investigation in Colombia […] in order to better combat organized crime; to obtain a better knowledge of the context of the armed conflict in Colombia, so as to improve the approach to transitional justice procedures; to respond to the demands of civil society and, in general, to make the administration of justice more effective.” It stressed that, as a result of the above, it had recently created the National Analysis and Context Unit as an “instrument of criminal policy focused on dealing mainly with phenomena of organized crime, by using tools to analyze crimes and create contexts, in order to coordinate the isolated information that is currently in different units of the Prosecution Service.”614
