Notification of the State and the representatives. The Commission’s submission of the case was notified to the State and the representatives on November 29, 2011.
Brief with motions, arguments and evidence. On January 29, 2012, the representatives presented their brief with motions, arguments and evidence3 (hereinafter “motions and arguments brief”), pursuant to Articles 25 and 40 of the Rules of Procedure.
Answering brief. On June 7, 2012, the State submitted to the Court its brief filing preliminary objections,4 answering the submission of the case, and with observations on the motions and arguments brief (hereinafter “answer” or “answering brief”).Initially, the State appointed Assad Jose Jater Peña and Jorge Alberto Giraldo Rivera as Agents. Subsequently, on January 29, 2013, it appointed Rafael Nieto Loaiza as Agent for this case.5
Observations on the preliminary objections. On August 9 and 10, 2012, the Commission and the representatives each presented their observations on the preliminary objections and the document that the State had entitled “partial acknowledgement of responsibility.”
Public hearing and additional evidence. On December 19, 2012, the President issued an Order,6 in which he required that the statements of 14 presumed victims, four expert witnesses proposed by the representatives, two expert witnesses offered by the Commission, and two expert witnesses proposed by the State be received by affidavit. In this Order, the President also convened the parties and the Commission to a public hearing that took place on February 11 and 12, 2013, during the Court’s ninety-eighth regular session, which was held at its seat.7 During the hearing, the Court received the statements of two presumed victims and one expert witness proposed by the representatives, one expert witness proposed by the Commission, and one deponent for information purposes, one expert witness and one witness proposed by the State, as well as the final oral observations and arguments of the Commission, the representative of the presumed victims, and the State, respectively. During the said hearing, the Court requested the parties to present certain helpful information and documentation.
Amici curiae. On January 14, February 27, and March 1, 12 and 14, 2013, respectively, the Members of the Black Ethnic Group victims of the forced displacement from Bajo Atrato, Chocó, Colombia, Thomas Mortensen of Christian Aid (UK and Ireland),the International Center for Transitional Justice, Jaime Arturo Fonseca Triviño of the Confesion Voluntariado Misionero Cristiano MANOS UNIDAS, the Coordinación Colombia Europa Estados Unidos,8 and Macarena Sáez of the American University Washington College of Law Impact Litigation Project,9 submitted amicus curiae briefs.
Final written arguments and observations. On March 13, 2013,10 the representatives and the State forwarded their final written arguments, and the Commission presented its final written observations. The representative and the State responded to the Court’s requests for helpful information and documentation.
Observations on annexes to the final arguments. The briefs with final written arguments and observations were forwarded to the parties and to the Commission on April 4, 2013.
Helpful evidence. The President granted the representatives and the State a time frame for presenting any observations they deemed pertinent on the helpful evidence requested by the Court (infra paras. 61 to 69), as well as on the information and attachments forwarded by the representatives and the State. On April 24 and 30, 2013, the representatives11 and the State, respectively, forwarded the observations requested.
Observations of the Commission. On April 26, 2013, the Inter-American Commission presented its observations on the annexes to the final written arguments of the representatives.
Provisional measures. On May 30, 2013, in an order of the Court, a request for provisional measures filed in favor of Bernardo Vivas Mosquera, Jhon Jairo, Sofía Roa, Elvia Hinestroza Roa, Etilvia Páez, Edwin Orejuela, Sofía Quinto, Ángel Nellys Palacios, Emedelina Palacios, Josefina Mena, Pascual Ávila Moreno and Alicia Mosquera Hurtado was rejected.12
III
COMPETENCE
The Court is competent to hear this case, pursuant to Article 62(3) of the Convention, because Colombia has been a State Party to the Convention since July 31, 1973, and acknowledged the contentious jurisdiction of the Court on June 21, 1985. Furthermore, Colombia ratified the Inter-American Convention to Prevent and Punish Torture on December 2, 1998.
Declaration by the State and observations of the Commission and of the representatives
Declaration by the State The State partially acknowledged its international responsibility in this case, as follows:
For the violation of the right to judicial guarantees and judicial protection established in Articles 8 and 25 of the Convention in relation to the obligation to respect the rights contained in Article 1(1) of this instrument with regard to the members of Marino López Mena’s family “who were duly identified and individualized,” owing to the violation of the reasonable time that, to date, had prevented identifying and punishing the masterminds and perpetrators of the death of Marino López Mena.
With regard to the victims of forced displacement who are considered as such by the Court, the violation of Articles 8 and 25 of the Convention, owing to the unjustified delay in identifying and punishing the masterminds and perpetrators of this displacement, in violation of the reasonable time.
Since the commencement of the contentious case, it had described the efforts and the progress made by the judicial authorities in order to clarify the facts alleged in this case, indicating the remedies available to the victims to obtain judicial protection;13 nevertheless, despite the efforts made and the existence of criminal investigations,14 to date no concrete results had been obtained owing to “the complexity of the events that are being investigated, was a result, in particular, of the modus operandi of the illegal organizations that originated the facts, the vulnerable situation of the population that was a victim of those facts, and the difficult conditions for the access of the judicial officials to the area where the events occurred.”
Observations of the Commission and of the representatives The Commission argued that, “although this acknowledgement of responsibility is assessed positively, it is of limited scope and only refers to one of the numerous factors of impunity that have been proved in this case; that is, non-compliance with the guarantee of a reasonable time.”15 It also indicated that the dispute still subsisted with regard to the violation of the other rights established in the American Convention and in the Inter-American Convention to Prevent and Punish Torture.16 Accordingly, the Commission asked the Court: (a) to grant legal effect to the acknowledgement; (b) to prepare a detailed description of the events and of the violations that occurred, and (c) to make a thorough analysis of the violations that had been partially accepted and those that had been contested, and to proceed to declare the international responsibility of the State in this case.
Meanwhile, the representatives indicated that they appreciated the fact “that the State had acknowledged the vulnerable situation of the victims and the difficulties of access to the site of the events,” but that, in reality, “the investigations conducted by the State lacked rigor and determination, and it was this, and not the difficulties indicated by the State, that explain why the case remains in total impunity 15 years after the events.” Therefore, they considered that the State had “not acknowledged the factual and legal grounds that led the Commission to declare it responsible for the violation of Articles 8 and 25 to the detriment of the victims” and, consequently, that the said procedural action, was “not aimed at ending the dispute concerning this fact, so that it cannot be considered a true acknowledgement of responsibility, or a positive contribution to the progress of the instant case,” nor was it helping to establish the truth of what happened. Thus, they asked that the State’s acknowledgment of responsibility be rejected and that the Court proceed to “determine precisely what happened.”
