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REPORT
Nº 1/94
CASE 10.473
COLOMBIA
February 1 1994(*)
I. BACKGROUND:
1. On
May 30, 1989, the Inter-American Commission on Human Rights received a
complaint against the Colombian State for alleged violations of the
right to life, to safety and personal security, and to justice, which
was subsequently expanded by the petitioner on June 30 of the same
year, in reference to the following:
II. THE
FACTS:
Introduction
1.1 On August 15 and 16, 1987, the municipality of Sabana de
Torres, in the north of the Department of Santander, celebrated the
town's livestock festival with a fair, a parade of floats, a bullfight
and a grand ball. The
mayor of the locality, Dr. ALVARO GARCES PARRA, a prominent
activist of the Unión Patriótica - Frente Amplio del Magdalena Medio
alliance, was present and took part in all these celebrations.
During the ball on the night of the 15th and in the early
morning of the 16th, during the ball, when the mayor got up from the
table where he was seated with his family in order to go out to the
dance floor, he was killed by a group of persons from outside the area
who had sat down at a table near his.
The bodyguards who accompanied him at all times were unable to
prevent his death, (two of these guards also died as a result of the
attack).
The murder (As recounted by family members present at
the time)
1.2 At
approximately 3:45 a.m. in the early morning of August 16, when a song
was dedicated to Yolanda Garcés Parra, sister of the mayor, everybody
who was at his table, which was 2 meters from the dance floor, got up
to dance, except for his mother and two of his sons.
The opening chords of the music were still in the air when the
first shot was heard. Myriam
Garcés Parra saw a man with his hand out of sight move closer to her
brother, then when he raised his hand she heard the shot.
The bullet
Before the murder; the military plot
1.3 One day
before the mayor's murder, a group of persons including LUIS
FRANCISCO ROA MENDOZA, LUIS MEDINA TIRADO, LUIS HORACIO TRASLAVINA
and ISIDRO CORRENO ESTEVEZ entered the barracks of the Ricaurte
Battalion and went to the
Second Military Intelligence Section (S-2), to the office of
CAPTAIN LUIS ORLANDO ARDILA ORJUELA and where MAJOR OSCAR ECHANDIA
SANCHEZ was third in command of the Battalion.
At this meeting, as was established by the investigation, (1) the
details of the killing of the mayor were finalized and scheduled for
that night, the 15th, and the morning of the 16th; (2) the men were
handed the weapon that would be used to kill the mayor, a Smith and
Wesson No. 7489, and (3) a special license bearing a seal belonging to
Captain Ardila was issued in the name of RAUL BERMUDEZ ALCANTARA,
the man who actually killed mayor Garcés Parra.
After the murder; military cover-up and assistance
to the wounded killers
1.4 Almost half
an hour after the murder of mayor Alvaro Garcés Parra, i.e.
approximately 4 a.m. in the morning of August 16, Major Jesús Echandía
Sánchez (one of the officers involved in the plot) and Dr. L.J. Pardo
de Arteaga, attached to the Battalion of the 5th Military Brigade,
brought to the Clínica Santa Teresa in Bucaramanga, the capital of
Santander Department and close to where the events took place, LUIS
FRANCISCO ROA MENDOZA, who had three recent bullet wounds.
The killer was registered as a "soldier" wounded in
combat and his hospital bill was paid by the Army authorities.
It has also been reported, but has never been confirmed or
denied, that another of the wounded gunmen, Amado Ruiz, took refuge in
the Luciano D'Lhuyar Battalion barracks in San Vicente de Chucurí.
III. THE
VICTIMS:
2. In
addition to the persons who were wounded, the following died as a result
of the criminal attack:
ALVARO GARCES PARRA,
Mayor of Sabana de Torres
CARLOS GAMBOA RODRIGUEZ,
security guard
JOHN JAIRO LOAIZA PAVAS,
security guard
ELIDA ANAYA DUARTE,
resident of the locality.
IV. PROCESSING
OF THE CASE BEFORE THE IACHR
3. Upon
receipt of the complaint and without prejudging its admissibility, the
Government of Colombia was notified on October 16, 1989.
4. The
Government of Colombia responded to the Commission on January 15, 1990,
and with regard to the case of the murder of ALVARO GARCES PARRA
informed it that the internal investigation process was still in
progress, detailing the status of each of the following proceedings:
DISCIPLINARY PROCEEDINGS, CASE BEFORE ORDINARY CRIMINAL COURT,
CASE BEFORE MILITARY CRIMINAL COURT, and, later, CASE BEFORE
ADMINISTRATIVE LAW COURT. The
Colombian Government reiterated its undertaking to inform the Commission
regarding the progress of these proceedings, which it has in fact done,
and regarding the final outcome of same insofar as a decision is
reached, noting that the internal mechanisms were in full play, which
meant that the internal remedies provided for in Colombian legislation
had not been exhausted.
5. The
Colombian Government having responded in a timely fashion to the
complaint as detailed above, the Commission continued to process the
case in accordance with the rules laid down in the Inter-American
Convention on Human Rights and its Regulations, giving each of the
parties an opportunity to argue as it felt appropriate concerning
statements the other made.
6. As
part of its process of receiving and examining information from the
parties the Commission made available to the Colombian Government the
pertinent parts of the communications sent by the petitioner formulating
observations as to their allegations and/or making reference to known
or new evidence. The notes
sent to the Colombian Government by the Commission were the following:
Note of February 1, 1990, acknowledging receipt of the
information sent in response to the petitioners' request;
Note of June 13, 1990, transmitting the complainant's
observations on the Colombian Government's response to its complaint;
Note of August 31, 1990, acknowledging receipt of the information
sent by the Colombian Government in response to the complainant's
observations detailing the progress of the case before the Santander
Administrative Court;
Note of October 29, 1990, transmitting the petitioner's response
to its note of August 31 of the same year;
Note of January 17, 1991, acknowledging receipt of additional
information and noting the reopening of the investigation by the
Eleventh Criminal Trial Court of Bucaramanga upon the request of the
Office of the Attorney General of the Nation for the purpose of
determining the facts regarding the murder of Mayor ALVARO GARCES;
Note of July 11, 1991, requesting additional information
concerning the status of the investigation;
Note of July 26, 1991, acknowledging receipt of information on
the progress of the case.
7. The
Commission also informed the petitioner regarding the responses sent by
the Colombian Governments, forwarding the relevant parts thereof.
The list of notes sent to the petitioner by the Commission is as
follows:
Letter of February 1, 1990, transmitting Government's response;
Letter of June 13, 1990, acknowledging receipt of observations
concerning the Colombian Government's response;
Letter of August 31, 1990, transmitting additional information
provided by the Colombian Government in connection with petitioner's
observations;
Letter of October 29, 1990, acknowledging receipt of
supplementary observations concerning the Colombian Government's
response of August 31, 1990;
Letter of January 14, 1991, transmitting the Colombian
Government's response of January 10, 1991;
Letter of January 22, 1991, sending additional response by the
Government communicated in note of January 15, 1991;
Letter of April 16. 1991, acknowledging receipt of additional
information sent by complainant on March 20, 1991;
Letter of August 2, 1991, transmitting Colombian Government's
note of July 26, 1991, and
Letter of June 16, 1992, providing additional information
requested by complainant.
V. REMEDIES
UNDER DOMESTIC LAW
8. A
following summary is given of the information provided by the parties
and updated during the processing of the case before the IACHR,
regarding the investigations performed and proceedings brought before
the Colombian authorities concerning the murder of the Mayor of Sabana
de Torres and of the findings and decisions resulting therefrom:
1) BEFORE
THE ORDINARY CRIMINAL COURT
The 11th Criminal Trial Court opened its investigation to
determine the circumstances in which the killing of a number of persons
took place in Sabana de Torres and on January 8, 1988, it issued an
order for investigation of the crime and ordered the questioning of the
following Colombian Army personnel:
Privates REINALDO LANDAZABAL, GERARDO ORTEGA BARRERA, YESID
CANCINO VARGAS; Corporal PLINIO SANDOVAL TOSCANO;
Sergeant JORGE ELIECER CARDENAS CORRALES; Captain LUIS ORLANDO
ARDILA ORJUELA; Major OSCAR ECHANDIA SANCHEZ and the physician for the
local military personnel Dr. LINDA JENNY DE ARTEAGA.
Only Captain ARDILA and Major ECHANDIA were heard, on November
1988.
On February 1, 1988, the Court issued arrest warrants in respect
of the civilians ISIDRO CARREÑO ESTEVEZ, LUIS HORACIO TRASLAVIÑA and
LUIS FRANCISCO ROA MENDOZA, which were never carried out, and, when the
legal position of these persons was resolved on May 30, 1989, a new
judge in charge of the court was unable to find evidence justifying
issuance of arrest warrants.
The Court, after hearing the questioning of the Colombian Army
officers, took the position that their actions were connected with
official acts of the Armed Forces and that they should be judged by the
Military Criminal Court in respect of their participation in what took
place in Sabana de Torres, with the result that there was a conflict of
jurisdiction, on the grounds of which the Court sent the case documents
to the Fifth Brigade headquartered in Bucaramanga.
At the present time the ordinary criminal case concerning what
took place in Sabana de Torres is in the stage of "determination of
responsible parties" and there is "no known accused
individual" with regard to the commission of the crime.
2) BEFORE
THE OFFICE OF THE ATTORNEY GENERAL OF THE NATION
(Assigned to the Military Forces).
First proceeding, which concluded with Decision No. 20 of January
18, 1989, dismissing Major OSCAR ECHANDIA SANCHEZ and Captain
LUIS ORLANDO ARDILA ORJUELA from the Armed Forces as those responsible
for the acts which caused the death of the Mayor of Sabana de Torres,
Dr. ALVARO GARCES PARRA.
FACTS THAT INCRIMINATE CAPTAIN ARDILA.
The Office of the Attorney General took into consideration (1)
the statement by the former soldier GONZALO ORTEGA PARADA who accused
Captain Ardila of having asked him, as his informant and assistant, to
follow and observe the murdered mayor and of having ordered him to kill
the mayor, offered him the sum of Col$100,000 to do so.
He refused to carry out the order.
In addition to this statement and the fact (2) that Captain
Ardila owned a Mazda car, the most compromising circumstance was (3) the
visit to his office on August 15, 1987, the day before the mayor of
Sabana de Torres was gunned down, of LUIS MEDINA TIRADO, LUIS HORACIO
TRASLAVIÑA, LUIS FRANCISCO ROA MENDOZA and ISIDRO CARREÑO ESTEVEZ, and
(4) the expert opinion concerning the license issued by his military
unit in the name of RAUL BERMUDEZ ALCANTARA to carry revolver SW Nº
7489, although the expert was not positive as to the captain's signature
he was with regard to the impression of the seal of the Fifth Brigade
S-2 Ricaurte Battalion on the document.
(5) A further piece of evidence was formed by the fact that
ORTEGA PARADA's version concerning the threats made to him by Captain
ARDILA after the mayor's death was corroborated by the statement of
RODRIGO ORTIZ MONTERO (page 87 of reserve book).
The Court concludes that in light of all this testimonial and
documentary evidence, of such importance, the accused's effort to
discredit it does not carry sufficient weight.
FACTS THAT INCRIMINATE MAJOR ECHANDIA. Also
in this case, the Office of the Attorney General considered (1) that the
accusations of former soldier GONZALO ORTEGA PARADA concerning Major
ECHANDIA were not discredited by the latter's protestations.
It was also amply demonstrated that (2) it was Major ECHANDIA who
put LUIS FRANCISCO ROA MENDOZA involved in the killing of the Mayor of
Sabana de Torres, in the Clínica Santa Teresa in Bucaramanga and even
paid his hospital bill; (3) that the correction made by Dr. LINA JENNY
DE ARTEAGA, on responding to his answers contradicted him in stating
(pp. 429-430) "I did not go to get anybody from outside in
the street with Major ECHANDIA..." did not support his veracity
either.
DECISION.
On the basis of these facts and in addition to the fact that the
officers implicated did not succeed in discrediting the charges brought
against them concerning the events which occurred in Sabana de Torres
and resulted in the death of the mayor Dr. ALVARO GARCES PARRA,
"the maximum penalty hereby imposed on them, is DISCHARGE."
/s/ MANUEL SALVADOR BETANCUR, Assistant Attorney General for the
Armed Forces.
3) BEFORE
OFFICE OF THE ATTORNEY GENERAL OF THE NATION. 2nd proceeding,
which considers the appeal lodged against the above-cited Decision
No. 20 of January 18, 1989, and confirms it with Decision No. 406
of November 23, 1989.
The Assistant Attorney General for the Armed Forces, in exercise
of the powers conferred by Article 143 of the National Constitution, Law
25 of 1983 and Article 217 of Decree 85 of 1989, after considering the
reasons for discharge contained in Decision No. 20 of January 18, 1989,
and finding that it concurs with the opinions stated therein, DECIDES:
NOT TO REINSTATE and hence to UPHOLD the disciplinary
penalty of discharge and absolute dismissal imposed on the officers of
the National Army Major OSCAR ECHANDIA SANCHEZ and Captain LUIS ORLANDO
ARDILA ORJUELA on account of the events in connection with the death of
the mayor of the Municipality of Sabana de Torres on August 16, 1987.
/s/ JOSE PLINIO MORENO RODRIGUEZ, Assistant Attorney General for
the Armed Forces.
4) BEFORE
THE MILITARY CRIMINAL TRIAL COURT
a) The
11th MILITARY CRIMINAL TRIAL COURT of Bucaramanga, Colombia, concluded
its deliberations on February 23, 1989, and ruled in the following way
on the questions of responsilibity of Officers ECHANDIA SANCHEZ and
ARDILA ORJUELA; After
a recapitulation of the facts proven in the investigation,
the Military Criminal Trial Court concluded that the following facts
were certain and unquestionable:
Concerning the victims:
On September [sic (Tr.)] 16, 1987, in the early morning, the
Mayor ALVARO GARCES PARRA was killed by act of violence, as were
also JOHN JAIRO LOAIZA PAVAS, CARLOS RODRIGUEZ GAMBOA and ELIDA ANAYA
DUARTE, the latter succumbing to wounds received during the events
investigated. Also injured
were LORENZA CASTRO DE SUAREZ and MYRIAM CASTRO DE ALVAREZ.
Concerning the actual perpetrator:
It is proven that the person who killed the Mayor of Sabana de
Torres by a shot in the head was RAUL BERMUDEZ ALCANTARA, who was also
killed during the perpetration of his criminal act.
Verification of multiple participation.
It is evident that RAUL BERMUDEZ ALCANTARA was not alone in the
commission of his crime but that a number of individuals were involved
because of the shootout which occurred in the building and then outside
of it.
Identification of the killers.
Regarding the other killers who accompanied RAUL BERMUDEZ
ALCANTARA, Dr. VICTOR ENRIQUE NAVARRO JIMENEZ, in his capacity as
Special Prosecutor in the preliminary proceedings, stated that he knew
that the following individuals had left San Juan Bosco Laverde heading
for Sabana de Torres to kill the mayor:
AUGUSTO AMADO RUIZ, LUIS HORACIO TRASLAVIÑA, RAUL BERMUDEZ
ALCANTARA, LUIS ROA MENDOZA and SERVIVILIO CEPEDA QUIROGA.
Raúl Bermúdez was killed during the murder and Luis Roa Mendoza
and Augusto Amado Ruiz were wounded.
Links between the killers.
The investigations revealed a relationship between BERMUDEZ
ALCANTARA, the killer of the mayor, and the other individuals who on
August 15 were at the Battalion HQ.
Based on the fact that as far back as 1982 and as detailed in the
documents, they were all connected with the paramilitary group
"MAS". It was
further evident that there was a relationship between BERMUDEZ ALCANTARA
and AMADO RUIZ, because a paper with the telephone number of the
latter's brother was found on the dead killer.
In addition, ARNULFO AMADO RUIZ, brother of AUGUSTO AMADO RUIZ,
was also found to be linked with Luis Francisco Roa Mendoza.
Links between the killers and Captain Ardila:
(1) This relationship is evidenced by the visit made, as recorded
in the Guard Register, to the Captain's office in the Second Section of
the Ricaurte Battalion, of which he was the commanding officer, by the
individuals identified as the killers on August 15. (2) It is doubly
incriminating and inexplicable that Captain Ardila, as Chief of Military
Intelligence of the Battalion, upon being confronted with so serious an
accusation, did not deploy his investigative agents and other means at
his disposal to establish and determine exactly what the said visitors
were doing and where they were on the day they came to the Unit, instead
of limiting himself, as he did, to simply denying that fact and leaving
it to the investigator to prove it.
(3) In addition, Captain Ardila's links with the killers were confirmed
when there was found in the wallet of BERMUDEZ ALCANTARA, who was killed
in the shootout, the license to carry a revolver with the genuine stamp
of the Second Section of the Ricaurte Battalion which, as confirmed by
statements of his subordinates, remained in his office and was only used
by persons duly authorized to do so and in his presence, which indicates
that he either apposed said stamp himself or had someone apply it upon
his instructions.
Links between the killers and Major Echandía:
These links were evidenced by the following:
(1) Major ECHANDIA admitted that he knew ROA MENDOZA from past
time when he was acting as Military Mayor of Puerto Boyaca. In view of
this relationship (2) his statement that ROA MENDOZA came to the
Battalion Ricaurte HQ on August 15, 1987 and did not speak with his
"friend or acquaintance" is inconsistent, since he knew that
he was on the premises. (3)
ROA MENDOZA was in the Battalion HQ on the morning of August 15
just hours after he received bullet wounds and he went to his friend
Major ECHANDIA who immediately picked him up and took him to the Clínica
Santa Teresa. (4) To have
him receive surgical treatment, Major ECHANDIA lied by identifying him
as a soldier wounded in military action.
(5) Afterwards, he again lied to the investigator by telling it
that he picked him up after he was injured in a street brawl because he
was an old informer of his and that he had compassion on him. (6)
Instead of taking the wounded killer to a State hospital, which would
have been consistent with the latter's modest means as a fellow of
peasant background with no family, he took him to an expensive private
clinic. (7) He personally
undertook to pay his expenses, writing a personal guarantee check for
the purpose. (8) He also
involved the Ricaurte Battalion in the payment. (9) Finally, it is
incriminating to Major ECHANDIA that, in his capacity as third in
command of the Ricaurte Battalion, he did not take steps to verify where
ROA MENDOZA, HORACIO TRASLAVIÑA and ISIDRO CARREÑO ESTEVEZ were and
what they were doing in the Technical Unit the day before the events,
whereby his position was seriously compromised. This conduct demonstrates that there was indeed an
understanding between Major ECHANDIA and ROA MENDOZA that obliged the
major to take care of the killer, rather than the alleged reasons of
pity, and shows that he was aware of the plan and participated in it
from the beginning and also after the murder of GARCES PARRA.
Other incriminating evidence.
The statements of former soldier ORTEGA are considered accurate
in that they are confirmed by other statements such as those of JAIME
CASTRILLON BLANDON, ALVARO LOPEZ MIRANDA, ERNESTO ACEVEDO MENDOZA and
BRUNO VASQUEZ MENDEZ, to the effect that some days before the events
ORTEGA was telling them that Captain ARDILA was going to order the
killing of the Mayor of Sabana de Torres.
Also, the incident at Street 33 and Avenue 18 in the city of
Bucaramanga was corroborated, to the effect that Major ECHANDIA and
Captain ARDILA tried to force ORTEGA into a "yellow" car (like
that of Ardila). Further
the fact that the Guard Register who records the entry of persons into
the Ricaurte Battalion HQ had spilled a liquid, as if to destroy the
evidence, on the page that showed that FRANCISCO MENDOZA, LUIS HORACIO
TRASLAVINA and ISIDRO CARRENO ESTEVEZ were there in the Battalion HQ on
August 15, which indicates that an attempt to conceal this fact was made
by the officers involved. Then
there was the matter of Captain Ardila's hatred for and declared enmity
against the members of the Unión Patriótica, which was so extreme that
his conduct called for attention by his commanding officer.
Classification. The
facts having been proven and the guilt in connection therewith of Major
ECHANDIA and Captain ARDILA having been demonstrated, it is concluded
that the facts can be classified under Title VII, Chapters II and III of
the Second Book of the Military Criminal Code under the generic heading
of HOMICIDE and BODILY HARM, and that it is the judge's responsibility
to determine in a final decision whether those involved were acting as
coperpetrators, coparticipants, accomplices or accessories.
Decision. In
light of the foregoing, the 9th MILITARY CRIMINAL TRIAL COURT,
administering justice in the name of the Republic and by authority of
the Law: (1) ORDERS preventive
detention of National Army officers Major OSCAR DE JESUS ECHANDIA
SANCHEZ and Captain LUIS ORLANDO ARDILA ORJUELA, the personal and
military data of both of whom are duly recorded, as accused persons and
the persons presumed responsible for the crimes of homicide
against ALVARO GARCES PARRA, JOHN JAIRO LOAIZA PAVAS and ELIDA ANAYA
PAVADUARTE and of bodily harm against LORENZA CASTRO DE SUAREZ and
MYRIAM CASTRO DE ALVAREZ; crimes that are classified and for which the
penalties are specified in Book II, Title VII, Chapters II and III of
the Military Code of Criminal Justice, and in accordance with the
reasons set forth in the relevant part hereof; (2) NAMES as location for
said detention the Officers Detention Facility of the Fifth Brigade HQ;
(3) requests the Army Command to suspend the functions and powers of the
officers involved. /s/
Oscar Vicente Pedraza Durán, Military Criminal Trial Judge.
b) THE
COURT MARTIAL of the Fifth Brigade of Bucaramanga, which tried Major
Echandía and Captain Ardila, in its decision of October 3, 1989, found
the two officers not guilty of the murder of the mayor of Sabana de
Torres.
The Court Martial considered, among other things, the following:
that the Prosecutor refrained from seeking a verdict of guilty
because he did not believe there was full proof of the participation of
the accused; the
considerations of the defense to the effect that both officers had
served in a manner that demonstrated their loyalty and nonself-seeking
service in the interests of the institution; that the true identity of
the dead killer had not been proven; that the weapon used had never
appeared; that despite the fact that the killer was covered with blood,
there was no stain whatsoever on the license to carry the weapon, which
prompted the assumption that the license had been fabricated and placed
on the body to incriminate the army officers; that none of the agents of
the Attorney General's office who performed the prior investigations
deserved credibility; that there was a manufactured setup to incriminate
officers of the Colombian Army; that this case had been used by the
extreme left to discredit the good name and prestige of the Military and
that declaring the officers guilty would be continuing to play the game
of the subversive interests; that the entrance of civilians into the
facilities of the Ricaurte Battalion on August 15, 1987, could not be
held to be proof of a charge against the officers; that the imputations
against Captain Ardila did not in fact compromise him and neither did
the allegations against Major Echandía since he had performed an act of
charity for a wounded man who was an old acquaintance and an Army
informant; and that the principle that where there is doubt, the
defendant should be given the benefit should be taken into account.
Decision. In virtue of these considerations, the Court
Martial unanimously decides as follows:
(1) Major OSCAR DE JESUS ECHANDIA SANCHEZ and Captain LUIS
ORLANDO ARDILA ORJUELA are declared not guilty of homicide in respect of
the person of ALVARO GARCES PARRA, by being the organizers of the
crime, in accordance with the grounds set forth in the relevant part
of this decision. (2) As a
result, Major ECHANDIA SANCHEZ (in absentia) and Captain ARDILA ORJUELA,
are acquitted of the crime of homicide of which ALVARO
GARCES PARA was victim. (3)
It orders that all proceedings against Major OSCAR DE JESUS ECHANDIA
SANCHEZ (in absentia) and Captain LUIS ORLANDO ARDILA ORJUELA in respect
of the crime of homicide against the persons of JOHN JAIRO LOAIZA
PAVAS, CARLOS RODRIGUEZ GAMBOA and ELIDA ANAYA DUARTE, and in respect of
bodily harm to LORENZA CASTRO DE SUAREZ and MYRIAM CASTRO DE ALVAREZ be
halted; (4) It grants Major ECHANDIA SANCHEZ (in absentia) and
Captain ARDILA ORJUELA the benefit of provisional liberty,
against posting of a bond of Col$50,000; (5) If the absent defendant
Major ECHANDIA SANCHEZ presents himself and meets the requirements for
the granting of provisional liberty set forth in (4) preceding, the
warrant issued for his arrest shall be canceled; (6) It orders the release
of Captain ARDILA ORJUELA once all the requirements set forth in (4) of
this decision have been met.
c) THE
BOGOTA SUPERIOR MILITARY COURT. In
a decision announced on December 18, 1989, this court abstained from
considering the judgment submitted for its advisory opinion, thereby
leaving the acquittal pronounced by the Bucaramanga Court Martial
entirely unmodified.
5) THE
COURT OF ADMINISTRATIVE LAW. On
February 5, 1992, the Administrative Court of Santander
sentenced the Colombian State to pay compensation to the members of the
families of the victims, under which, conciliation between the parties,
the Government was required to pay Col$30 million to the members of the
family of murdered mayor Garcés Parra and Col$18 million to those of
the security guard Carlos Gamboa.
The Court, after considering, among other things, the facts
connected with the murder of the mayor of Sabana de Torres as contained
in the investigations conducted by the Office of the Attorney General of
the Nation (Decisions 20 and 406 of January 18, and November 23, 1989)
and of the Military Criminal Trial Court (of February 23, 1989) and
those of law contained in
the rules regulating the administrative law procedure and others
connected with the extracontractual responsibility of the State for
acts exceeding their authority on the part of public employees, as
occurred in the present case to the extent that the conduct of the
public employees concerned represented abuse of their powers and
responsibilities, the Administrative Court of Santander, administering
justice in the name of the Republic of Colombia and by authority of the
law,
HEREBY DECIDES:
That the State, Ministry of Defense, National Army, is
administratively responsible for the material harm and pain and
suffering caused to his family by the death of Dr. ALVARO GARCES PARRA;
that the State, Ministry of Defense, National Army, is administratively
responsible for the material harm and pain and suffering caused to the
family of CARLOS GAMBOA RODRIGUEZ; The Court hereby orders the Colombian
State Ministry of Defense, National Army, to pay to the family of Alvaro
Garcés the value of 1,000 grams of gold at the price certified by the
Banco de la República on the date of this decision;
The Court hereby orders the Colombian State, Ministry of Defense,
National Army, to pay to the mother of Alvaro Garcés the value of 1,000
grams of gold at the price certified by the Banco de la República on
the date of this decision, as compensation for the pain and suffering
caused by the death of her son; The Court hereby orders the State,
Ministry of Defense, National Army, to pay as material damages the sum
of Col$6,547,575.31 to the family of Alvaro Garcés, as compensation for
the losses caused by loss of income;
The Court hereby orders the State, Ministry of Defense, National
Army, to pay to the family of Carlos Gamboa the value of 1,000 grams of
gold, at the price certified by the Banco de la República on the date
of this decision, as compensation for pain and suffering caused by the
death of their husband and father; The Court hereby orders the State,
Ministry of Defense,
National Army in the abstract to pay the material losses caused to the
Gamboa family, which shall be settled by incident taking as grounds the
bases previously laid down in the part setting out the grounds for this
decision.
The judgment specified that if it were not appealed, the superior
court should be consulted. In that stage of the proceedings, as a result
of negotiations among the parties it was agreed that the State would pay
Col$30 million to the family members of the murdered mayor Garces Parra
and Col$18 million to the kin of the deceased security guard Carlos
Gamboa. This formula was
accepted and approved by the magistrates of the Administrative Law Court
on March 9, 1992, thereby acquiring the effect of res judicata.
9. With
respect to these proceedings, the parties have expressed their
observations which are summarized in the following:
VI. STATEMENT OF
THE GOVERNMENT OF COLOMBIA CONCERNING THE INVESTIGATIONS
Concerning the administrative disciplinary investigation
That administrative disciplinary investigations are not intended
to uncover the actual perpetrators or planners of punishable acts but to
review the conduct of officials and punish disciplinary shortcomings;
their objective is to determine nonperformance of duties by public
employees whereas criminal investigations are intended to determine
responsibility for crimes. Specifically,
the investigation of the conduct of Army Officers Ardila Orjuela and
Echandía Sánchez demonstrated that as public officials they failed in
the performance of their duties, but from no legal standpoint can the
findings of that disciplinary investigation be taken as a basis for a
judicial decision; criminal law must not be confused with disciplinary
law. Criminal law is
designed to maintain social or general order, whereas disciplinary law
has the specific purpose of verifying the conduct of public officials in
relation to an established administrative order;
the former seeks to investigate punishable facts while the latter
oversees discipline in the state agencies, for which it utilizes
corrective penalties. That
administrative disciplinary cases constantly refer to the rules and
proofs in criminal cases, since the legal formalities to be taken into
account to secure proofs in them are known, whereas decisions handed
down in administrative cases have no legal effect in a criminal case
because violation of a disciplinary rule does not imply violation of a
Criminal Code rule.
Concerning the Military criminal investigation
That the Court Martial that tried Major Oscar Echandía Sánchez
and Captain Luis Orlando Ardila Orjuela acquitted them on the grounds
that the proofs submitted did not give absolute certainty as to their
presumed masterminding of the crime committed against ALVARO GARCES
PARRA, and that a legal handwriting expert's opinion established that
the signature on a license authorizing Raúl Bermúdez Alcántara, the
killer who murdered ALVARO GARCES PARRA and a member of the gang of
criminals known as "Los Grillos", to carry a revolver, was not
that of Captain Ardila Orjuela or of Major Echandia Sanchez.
Furthermore, expert testimony also declared that the typewriter
used to prepare said license was not that of the Ricaurte Battalion's
Second Section, nor did it match the other machines of the Unit, which
were also checked out for the purpose.
Concerning the administrative law proceedings
That the law has established the administrative law courts in
Colombia as: (1) a means
for overseeing the State's administrative activity;
(2) a means for punishing abuses of authority by the Government
or the Executive; (3) an
institution to correct abuses by the Government or Executive; and (4) a
means by which private individuals harmed by acts, facts or procedures
can obtain redress and compensation for abuses by the executive, and
that the Council of State, the highest administrative law court, rules
on acts, facts and administrative operations of the national
authorities, handing down decisions against which there is no appeal,
and also hears, second instance appeals, against decisions by the
departmental administrative courts.
Concerning the proceedings before the ordinary criminal courts That the 11th Criminal Trial Court refrained from issuing measures to ensure effectiveness of the judgment against Luis Hora |
