On February 19, 1997, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition submitted by the
Association of Relatives of the Disappeared (ASFADDES), the Latin American
Federation of Associations of Relatives of the Disappeared (FEDEFAM), the
Colombian Commission of Jurists, and the Center for Justice and
International Law (CEJIL) (hereinafter “the petitioners”) against the
Republic of Colombia (hereinafter “the State”) in which it denounced
that on June 2, 1992, members of the National Police detained Norberto
Javier Restrepo (hereinafter “the victim”) in the municipality of
Medellín, department of Antioquia, and that days later he was found dead
with signs of torture.
The petitioners allege that the State is responsible for violations
of the rights to life, humane treatment, personal liberty, a fair trial,
and judicial protection, set forth at Articles 4, 5, 7, 8, and 25 of the
American Convention on Human Rights (hereinafter the “American
Convention”) in conjunction with the general obligation to guarantee
respect for the rights established in the Convention.
The State submitted information on the status of the domestic
proceedings aimed at clarifying the facts, and argued that the petition
should be declared inadmissible on grounds that the participation of state
agents in the detention and death of the victim had not been shown.
The petitioners argued that the judicial investigation still
pending had not refuted the participation of state agents in the facts
alleged and asked the Commission to declare the case admissible under the
exception to the prior exhaustion of domestic remedies requirement set
forth in Article 46(2)(c) of the Convention.
Based on the analysis of the parties’ positions, the Commission
concluded that it is competent to examine the petitioner’s claims and
that the case is admissible under Articles 46 and 47 of the American
PROCESSING BEFORE THE COMMISSION
On March 3, 1997, the Commission proceeded to open the case as Case
Nº 11.726 and transmitted the pertinent parts of the complaint to the
State, giving it 90 days to submit information.
On July 25, 1997, the State submitted its answer, whose pertinent
parts were transmitted to the petitioners.
On November 3, 1997, the petitioners submitted additional
information, which was timely remitted to the State with a term of 30 days
to present observations. On
August 17, 1998, the Commission reiterated its request to the State to
provide information. On
October 27, 1998, the State submitted its observations, which were duly
transmitted to the petitioners.
On March 1, 1999, during the 102nd session, a hearing was held on
the case attended by both parties. On
March 23, 1999, a written copy of the arguments submitted by the
petitioners during the hearing was transmitted to the State, which was
given 30 days to submit its observations thereto.
However, as of the date of approval of this Report the State has
not done so.
POSITIONS OF THE PARTIES
The petitioners affirm that on June 2, 1992, Norberto Javier
Restrepo left his home in the city of Medellín at 6:30 a.m.; no more was
heard from him that day. The
next day his mother, Lucila Restrepo Posada, received a brief call from
her son in which he asked about his family members.
On June 5, his mother received an anonymous telephone call in which
she was told that her son had been disappeared.
The petitioners allege that on June 6, 1992, the victim’s mother
began the search for her son at police stations, at the F-2 (intelligence
agency of the National Police), in hospitals, and through the media.
On June 7, Norberto Restrepo communicated with his mother for the
last time to tell her that he had been detained along the highway on the
road to “Las Palmas.” That
same day Mrs. Restrepo Posada presented an oral report of her son’s
disappearance to the Procuraduría Departamental of Antioquia
where, the next day, she was allegedly told that the National Police had
undertaken an operation in Las Palmas.
On June 10, 2000, the victim’s mother presented a complaint to
the Tenth Court of Criminal Investigation of Medellín.
On June 9, 1992, Norberto Restrepo’s body was found along the
highway that leads to the “El Cairo” cement factory in the
municipality of Santa Bárbara. In
the document certifying the official act of removal of the corpse, the
municipal inspector indicated as cause of death “presumed suicide by
bullet” even though no fire arms were found at the place and the victim
was found with his hands on his head; it was ordered that the corpse be
buried as a nameless person, without being identified.
On June 10, 1992, the “Center on the Disappeared” informed the
victim’s family members that a body was found with the characteristics
of Norberto Restrepo in the municipality of Santa Bárbara.
On June 11, the victim’s father, José Marco Restrepo, went to
Santa Bárbara and had the corpse exhumed and an autopsy performed.
The autopsy revealed that the body had acid burns, particularly on
the face, lacked the teeth in the lower jaw, had a fractured right hand,
and two bullet wounds, and that death was caused by tissular anoxia and
wounds inflicted by firearms.
With respect to the arguments of the State, set forth below, as to
the lack of a motive on the part of the official agents for detaining the
victim, the petitioners allege that Mr. Restrepo was an active member of
the political grouping known as the Unión Patriótica and that he was
disappeared at the same time as another five persons who belonged to the
same group, whose incinerated bodies had been found in the municipality of
Caldas, between Medellín and Santa Bárbara, at about the same time.
The petitioners consider that the victim’s death occurred in the
context of the massive and systematic assassination of members of the
Patriotic Union and the State’s tolerance of this campaign.
As for the investigations undertaken in the domestic jurisdiction,
the petitioners allege that despite the time elapsed, the proceedings are
still at the preliminary investigation stage, with no suspect.
They call into question the removal of the corpse, which may have
impeded the victim’s identification, and the legality of the temporary
assignment of the investigation to the departmental prosecutor of the
Fifth Unit on Economic Property. They
argue that the lack of an effective investigation is largely attributable
to the negligence of the official investigation.
In addition, they note that once the investigation was transferred
to the Human Rights Unit of the Office of the Public Prosecutor, the
prosecutor designated to investigate the case was assassinated just days
after taking a series of investigative steps with the victim’s mother.
The petitioners allege that the State is responsible for violating
the rights to life, humane treatment, personal liberty, a fair trial, and
judicial protection, provided for in Articles 4, 5, 7, 8, and 25 of the
American Convention in conjunction with the general obligation to ensure
respect for those rights, set forth at Article 1(1) of the Convention.
With respect to the admissibility of the claim, the petitioners
argued that the exception to the requirement of prior exhaustion of
domestic remedies, provided for in Article 46(2)(c) of the Convention
applies. They allege that the
authorities have engaged in an unwarranted delay in investigating the
case, which has continued for more than eight years, without initiating
The position of the State
In its first answer, the State provided information on the status
of the proceedings in the domestic jurisdiction aimed at clarifying the
kidnapping and death of the victim, without expressly calling into
question compliance with the requirement to exhaust domestic remedies or
the assertions contained in the petition on the delay and the
ineffectiveness of the remedies pursued to clarify the case in the
Specifically, it reported that on June 10, 1992, the investigation
into the kidnapping of the victim began before the Court of Criminal
Investigation of Medellín, and that later a parallel investigation was
initiated into the victim’s death in the municipality of Santa Bárbara.
On June 20, 1994, the prosecutor assigned to the Office of the
Departmental Prosecutor for the municipality of Santa Bárbara, handed
down an interlocutory ruling pursuant to Article 118 of Law 23 of 1991,
archiving the case. In
addition, the State reported that the departmental prosecutor of the Fifth
Unit on Economic Property ruled that the investigation begun in Medellín
into the kidnapping and subsequent homicide of Mr. Restrepo be removed to
the Second Unit on crimes against life, and that that investigation, which
is at the preliminary investigative phase, is being pursued by the Tenth
Prosecutor Delegate before the Criminal Judges of the Circuit, and that it
had been impossible to identify the direct perpetrators and masterminds of
this crime. Later, the
investigation was moved to the Human Rights Unit of the Office of the
With respect to the alleged involvement of the SIJIN, the
intelligence division of the National Police, in the victim’s
disappearance the State, in its communication of October 27, 1998, alleged
that this was mere speculation, with no evidentiary support whatsoever.
In addition, it indicated that:
is no evidence that the Colombian State, through any of its agents, has
violated the American Convention on Human Rights, consequently the
Government of Colombia ... asks that ... the Commission refrain from
continuing the processing of this case, without prejudice to the duty to
continue the investigations aimed at clarifying the alleged disappearance
of Mr. Norberto Javier Restrepo.
the course of the hearing held during the 102nd session, representatives
of the State clarified that the investigation of the case had been
undertaken without any intent of ruling out the hypothesis of state
participation in the victim’s death.
They indicated that there were no motives for his detention, and
they questioned the petitioners’ assertion concerning the victim’s
membership in the Unión Patriótica.
The representatives of the State recognized the existence of
anomalies in the official act of removal of the victim’s corpse.
Nonetheless, they asserted that those anomalies had been cured in the
autopsy performed afterwards.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
The Commission is competent prima
facie to examine the petition in question.
The facts alleged in the petition occurred when the obligation to
respect and ensure the rights established in the Convention was already in
force for the Colombian State.
The Commission thus proceeds to analyze whether this case meets the
requirements established in Articles 46 and 47 of the American Convention.
Exhaustion of domestic remedies and time for submitting the
The Commission notes that the State has not made any express
objection on grounds of failure to exhaust domestic remedies, even though
it provided information about the status of the domestic proceedings.
The petitioners, for their part, argue that the judicial
investigation aimed at clarifying the detention and death of the victim,
and judging and punishing the persons responsible has been drawn out for
an unreasonable time and has proven ineffective, and they ask that the
case be declared admissible under the exception provided for in Article
46(2)(c) of the American Convention.
Article 46(2) provides that the requirement of prior exhaustion of
domestic remedies is not applicable when:
a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;
b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies.
As appears from the information provided by both parties, on June
10, 1992, the investigation was begun in the Court of Criminal
Investigation of Medellín into the victim’s kidnapping.
After the appearance of the victim’s body in the municipality of
Santa Bárbara, the departmental prosecutor (Fiscal Seccional)
initiated a parallel investigation, which was archived on June 20, 1994.
For his part, the departmental prosecutor for the Fifth Unit on
Economic Property ruled to remit the investigation begun in Medellín into
the kidnapping and later homicide of Mr. Restrepo to the Second Unit on
Crimes against Life, where it was still in the preliminary investigative
stage eight years after the facts.
The Commission considers that, as a general rule, a criminal
investigation should be undertaken promptly to protect the interests of
the victims, to preserve the evidence, and even to safeguard the rights of
all persons who may be considered suspects in the context of the
investigation. As the
Inter-American Court has indicated, while every criminal investigation
should meet a series of legal requirements, the rule of prior exhaustion
of domestic remedies should not lead to a situation in which international
action on behalf of victims comes to a halt or is rendered ineffective.
In addition, the Commission notes that in this case, the State did
not expressly and timely allege failure to meet the requirement of Article
46(1) as a grounds of inadmissibility.
Therefore, given the characteristics of this case, the Commission
considers that the exception provided for in Article 46(2)(c) of the
American Convention applies to the claim referring to the alleged
violation of the rights to life, humane treatment, personal liberty and
judicial protection of Norberto Javier Restrepo, and consequently that the
requirements set forth in the American Convention regarding exhaustion of
domestic remedies do not apply, nor, consequently, the six-month period
for submitting the petition.
Duplication of procedures and res
It does not appear from the record that the subject matter of the
petition is pending before another international procedure for settlement,
nor that it reproduces a petition already examined by this or any other
international body. Accordingly,
the requirements established in Articles 46(1)(c) and 47(d) of the
Convention have been met.
Characterization of the facts alleged
The Commission considers that the petitioners’ allegations with
respect to the alleged violation of the rights to life, humane treatment,
personal liberty, and judicial protection of Norberto Javier Restrepo
could constitute a violation of the rights guaranteed in Articles 4, 5, 7,
8, and 25 of the Convention, in conjunction with Article 1(1).
Since these aspects of the claim are clearly not without foundation
or out of order, the Commission considers that the requirements set forth
in Articles 47(b) and (c) of the American Convention to be met.
The Commission considers that it is competent to examine the claim
submitted by the petitioners, and that the case is, in principle,
admissible, in keeping with the requirements set forth in Articles
46(1)(c) and 47 of the American Convention.
Based on the arguments of fact and law set forth above, and without
pre-judging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare admissible the petitioners’ claim as to the alleged
violations of Articles 4, 5, 7, 8, 25, and 1(1), to the detriment of
Norberto Javier Restrepo.
To give notice of this decision to the Colombian State and to the
To continue to analyze the merits.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed in the city of Washington, D.C., October 5, 2000.
(Signed:) Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Juan E. Méndez, Second Vice-Chairman; Marta Altolaguirre, Robert K.
Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
 See Report 5/97,
Annual Report of the IACHR 1996, p. 103.
 Note EE DH 937187 of the General Bureau for Special
Matters of the Ministry of Foreign Affairs, July 22, 1997.
 Note EE DH 056191 from the General Bureau for Special
Matters of the Ministry of Foreign Affairs, October 27, 1998.
 Colombia ratified the American Convention on Human
Rights on July 31, 1973.
 I/A Court HR, Case of Velásquez Rodríguez, Preliminary Objections, Judgment of June 26, 1987, para. 93.