In accordance with Articles 62 and 64 of its Rules of Procedure,17 and in exercise of its powers concerning the international protection of human rights, a matter of international public order that goes beyond the will of the parties, the Court must ensure that statements of acknowledgement of responsibility are acceptable for the objectives sought by the inter-American system. This task is not limited to merely confirming, recording or taking note of the acknowledgement made by the State, or verifying the formal conditions of the said statements, but rather the Court must relate them to the nature and severity of the alleged violations, the demands and interest of justice, the particular circumstances of the specific case, and the attitude and position of the parties,18 so that it can identify, insofar as possible and in the exercise of its competence, the truth of what occurred.19
Taking into account the violations acknowledged by the State (supra para. 17), the Court considers that the dispute has ceased with regard to: (a) the violation of Articles 8 and 25 of the Convention to the detriment of the members of Marino López Mena’s family, owing to the unjustified delay in the proceedings required to identify and punish the masterminds and perpetrators of the death of Marino López, in evident violation of a reasonable time, and (b) the violation of the principle of reasonable time, in the terms of Articles 8 and 25 of the American Convention, to the detriment of the victims of forced displacement.
Regarding the rights contained in Articles 8 and 25 of the American Convention, the dispute remains with regard to the alleged violation of due diligence in the investigations. Likewise, the Court notes that the dispute continues with regard to: (a) the facts and claims relating to the alleged violations of Articles 4, 5, 8 and 25, in relation to Article 1(1) of the Convention, as well as with regard to the alleged violations of Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture to the detriment of Marino López Mena; (b) the alleged violation of the rights contained in Articles 5, 19, 8 and 25, to the detriment of the next of kin of Marino López; (c) the alleged violations of Articles 8, 25 and 5, in relation to Articles 19 and 22, in relation to Articles 1(1), 5, 11, 17, 19, 21 and 24 of the Convention, to the detriment of the members of the Afro-descendant communities of the Cacarica associated in CAVIDA and of the women heads of household who live in Turbo, and also to the detriment of their children, and (d) the establishment of eventual reparations, costs and expenses.
“Lack of competence ratione personae” The State argued that, although Article 35(1) of the Court’s Rules of Procedure indicates that the merits report must identify the presumed victims, the Commission has based this case on three different groups of victims, abandoning its criteria of individualization and identification. The State also indicated that the representatives had made a late submission of a list of the presumed victims of the forced displacement, “disregarding the fact that the peremptory and exclusive moment for the identification of the presumed victims […] is that of the submission of the case, on presenting the merits report.” Consequently, the State considered that the above constituted “a clear violation of its procedural guarantees and of equality of arms,” and requested that the Court declare the case inadmissible and that it accept as victims only those presumed victims who were duly identified and individualized.
The Commission considered that the State’s claims were inadmissible and observed that its arguments did not constitute a preliminary objection, because they did not contest the Court’s competence, but rather corresponded to the merits stage. The Commission also indicated that, both the list attached to the Merits report, and the list presented subsequently by the petitioners contained elements of individualized identification of the victims and that an explanation of the reasons for this determination had been provided.20 It pointed out that both parties were in agreement that a series of complications and difficulties justified the need to adopt flexible criteria to respond to the particularities of the case so that Article 35(2) of the Rules of Procedure was applicable.
The representatives argued that this objection should be rejected, because certainty existed as to those who constituted the universe of victims in the instant case, a delimitation that had been established fully in the Merits report. Regarding the differences between the lists, it clarified that several factors determined the failure to include these presumed victims: (a) the difficult physical access to Cacarica and even to the two humanitarian zones and the neighboring settlements, and (b) the impossibility that some people had to attend the meetings when the censuses of presumed victims were drawn up. They repeated that the State itself had mentioned these difficulties when referring to the reasons why the facts surrounding the forced displacements had not been investigated adequately. The representatives also considered that the violations committed by the State had harmed a cohesive human group, with historical and ethnic roots established before the events of this case. Consequently, they alleged that the presumed victims formed a collective universe in the terms of Article 35 of the Court’s Rules of Procedure. Lastly, they noted that the exclusion of one group of them would have serious effects on the process of reconstructing their individual, family and collective life project, and would have serious consequences for the community structure.
“The Commission’s failure to comply with the requirements established in Article 35(1)(c)) for the submission of the case” The State argued that, according to Article 35(1)(c)) of the Rules of Procedure, the Commission must indicate the real and verifiable reasons that led it to submit the case to the Court, and its observations on the State’s response to the recommendations made in the report. It affirmed that it had not failed to comply with the recommendations contained in the report and that the Commission had not taken into account the different actions taken by the State that were being “implemented successively, for short, medium and long-term execution and impact and which, therefore, required a prudential time for their full completion within the framework of domestic law, the State’s policies, and the institutional structure and coordination,” and could not be accomplished in the space of two months. The State therefore asked the Court not to consider that it had failed to comply with the recommendations in the Merits report that had to be implemented successively, which was the reason for the submission of the case to its jurisdiction, and, consequently, that it should “reject and deny the measures of reparation associated with the said recommendations that had been requested by the Commission in the pertinent section.”
The Commission indicated that its determination concerning reparations cannot be considered a preliminary objection. It also indicated that the information presented by the State had already been evaluated at the appropriate procedural moment (the Merits report) and that the State could have requested additional time to comply with the recommendations, a situation that did not occur in this case. It also indicated that the said information did not specify clearly how each recommendation had been complied with or, in particular, any progress in the domestic investigations and the rectification of the shortcomings noted in the case. It indicated that the submission of the case required an analysis of the entire case file, and it was not viable to divide up the aspects of the case submitted to the Court into “recommendations complied with” and “recommendations that have not been complied with.” The representatives did not present any arguments in this regard.
“Failure by the Commission to comply with the requirements for the submission of the case established in Article 35(1)(f)” The State contested the inclusion in the proceedings of the expert opinions of Federico Andreu Guzmán and Michael Reed, provided to this Court in other cases concerning Colombia, considering that they were limited to the specific circumstances of those cases. Similarly, the State indicated that part of the expert opinion of Javier Ciurlizza should not be admitted “because it has no relationship or interest for inter-American public order.”
The Commission observed that the expert opinions offered when submitting the case to the Court met the regulatory requirement of being related to aspects of inter-American public order. The representatives did not present arguments on this point.
“Non-compliance of the motions, arguments and evidence brief with the regulatory requirements” The State argued that, failing to respect the provisions of Article 40(a) of the Rules of Procedure, the representatives had presented a series of facts and claims that bore no relationship to the litis of the case and that the Court should therefore reject them. Moreover, the Court should also declare inadmissible those facts that could not be included in the factual framework submitted to the Court in the Merits report.
The Commission observed that the State’s allegations correspond to the merits of the matter and indicated that the information provided by the representatives merely complemented and developed the factual presumptions on which the processing of this case was based. Lastly, it indicated that the representatives have broad autonomy to request the measures of reparation they consider pertinent.
The representatives alleged that the only function of the facts referred to in the motions and arguments brief is to provide context to the events and facts that occurred during and after Operation Genesis, abiding by the factual framework established by the Commission. They stressed that the purpose of their arguments was to explain in greater detail that the crime committed against Marino López was a crime against humanity and, also, that clarifying and reinforcing a context does not mean that the Court must rule on new facts or on persons who are not in the universe of victims established by the Commission.
