REPORT Nº 5/97
March 12, 1997
The petitioners in this case (REINICIAR and the Comisión
Colombiana de Juristas) allege that the Republic of Colombia (the
"State", the "Colombian State" or
"Colombia") is responsible for violations of the human
rights set forth in the American Convention on Human Rights (the
"Convention" or the "American Convention") in
relation to the persecution of the membership of the Patriotic Union
political party. The Inter-American Commission on Human Rights (the
"Commission") finds that the case is admissible.
The Patriotic Union formed as a political party on May 28, 1985
as a result of peace negotiations between the Revolutionary Armed
Forces of Colombia (the "FARC") and the State of Colombia
presided by President Belisario Betancur Cuartas.
The parties agreed, during those peace negotiations, to the
establishment of the Patriotic Union as a political party which would
enjoy the guarantees necessary to allow it to function to the same
extent as all other political parties.
The State further confirmed that it would ensure that the
leadership of the FARC would be allowed to participate in political
The Patriotic Union was not conceived as a political party in
the strictest sense of the term, but more as a political alternative
to the traditional power structure that would serve as a vehicle for
the various manifestations of civil and popular protest.
The Patriotic Union was also envisioned as the political
vehicle of the FARC for possible reassimilation into civilian life.
The newly-formed party received immediate support from
opposition left-leaning political movements, such as the Communist
Party, and quickly obtained significant electoral success in elections
in 1986 and 1988.
Allegations of the Petitioners
The petitioners have alleged that, since the formation of the
Patriotic Union, its membership has suffered systematic persecution,
manifesting itself in extrajudicial executions, disappearances,
unfounded criminal prosecutions, attempted assassinations and threats.
The petitioners assert that the persecution of the membership
of the Patriotic Union constitutes an attempt to eliminate the party
as a political force through violence and intimidation carried out
against its members and leaders.
The petitioners allege that the acts committed against the
members of the Patriotic Union constitute genocide and the violation
of the human rights protected in the Convention.
The petitioners argue that the State of Colombia is responsible
for the human rights violations committed against the Patriotic Union
on several grounds. First,
they assert that State agents have been involved in crimes committed
against members of the Patriotic Union. Second, they claim that the State of Colombia has not
fulfilled its duty to ensure the human rights of the members of the
Patriotic Union party by failing to act adequately to prevent,
investigate and punish the crimes committed against the members of the
Position of the State
The State has argued that the petitioners' claim regarding
genocide should not be admitted for decision by this Commission.
The State has sought to establish, among other theories, that
the facts set forth by the petitioners do not tend to establish
genocide, because they do not fit within the definition of that
The State has also argued that the claim of the petitioners is
inadmissible for failure to meet the technical requirements for the
admissibility of a petition set forth in articles 46 and 47 of the
Convention and article 32 of the Regulations of the Inter-American
Commission on Human Rights (the "Regulations of the
State has also argued that the case may not be admitted as presented,
because the victims and facts do not demonstrate sufficient connection
and have not been adequately individualized.
In addition, the State has asserted that the Commission may not
admit the case on the grounds that the Commission previously analyzed
the facts subject of the petition in a general report relating to the
human rights situation in Colombia.
The State has finally argued that the petition is inadmissible
for failure to meet the requirement of exhaustion of domestic
PROCEEDINGS BEFORE THE COMMISSION
Before a formal petition was received in this case, the
Commission acted pursuant to article 29 of its Regulations, on October
23, 1992, to request the State of Colombia to implement precautionary
measures for the protection of certain leaders of the Patriotic Union
On December 16, 1993, the petitioners filed a formal petition
with the Commission in this case.
The Commission opened case 11.227 on February 16, 1994 and sent
the pertinent parts of the petition to the State of Colombia for its
December 21, 1993, the Commission again acted to request the
implementation of precautionary measures by the State of Colombia on
behalf of the leadership of the Patriotic Union party.
The State responded to the Commission's request for
precautionary measures on February 2, 1994.
petitioners submitted additional background information in the case on
April 6, 1994.
State delivered to the Commission its answer in the case on June 3,
1994. The petitioners
provided their rejoinder on August 5, 1994.
The response of the petitioners was sent to the State on August
State requested an extension of time to respond to the rejoinder of
the petitioners on September 23, 1994.
The Commission granted the extension on September 27, 1994.
State sent to the Commission its response to the petitioners'
rejoinder on November 28, 1994. The
petitioners responded with their observations on January 6, 1995.
March 17, 1995, the State requested an extension of time to respond to
the petitioners' observations of January 6, 1995.
The Commission granted the extension requested by letter of
March 21, 1995. The State submitted its response to the petitioners'
observations on April 5, 1995. On
June 14, 1995, the petitioners submitted their observations in
relation to the State response of April 5, 1995.
petitioners sent additional information to the Commission on March 29,
1995. This information
sought to address specific questions relating to the admissibility of
petitions involving groups of victims.
On May 2, 1995, the State sent a note to the Commission
protesting the fact that information about the March 29 communication
of the petitioners, which the State had not received, had been
published in the press. The
Commission forwarded the communication of the petitioners of March 29
to the State on May 15, 1995. The
State responded to the petitioners' communication on July 21, 1995.
December 10, 1996, the Commission received additional information in
the case. The Commission
forwarded that information to the State on December 19, 1996.
December 19, 1996, the Commission directed notes to each of the
parties communicating its decision to place itself at the disposition
of the parties in this case for the purposes of seeking a friendly
Commission requested a response from the parties within 30 days.
The petitioners responded on January 24, 1997.
They stated their willingness to engage in friendly settlement
negotiations if the State agreed to address several issues considered
by the petitioners to be crucial to an acceptable friendly settlement.
The response of the petitioners was sent to the State on
February 6, 1997.
State requested an extension of time to respond to the Commission's
offer to place itself at the disposition of the parties for the
purposes of seeking a friendly settlement.
The Commission granted an extension of 30 days by letter dated
February 5, 1997.
Commission convoked hearings in this case on several different
occasions. At each of
these hearings, representatives of the State and the petitioners
appeared before the Commission to argue questions of fact and law
pertinent to the case.
ANALYSIS OF ADMISSIBILITY
The presentation of facts which tend to establish a violation
to article 47(b) of the Convention, the Commission may find a petition
inadmissible when it does not state facts that tend to establish a
violation of the rights guaranteed by the Convention.
The petitioners allege that extrajudicial executions,
disappearances, assassination attempts, false judicial proceedings and
threats have been carried out against the members of the Patriotic
Union named as victims in this case in an attempt to eliminate the
political party. The
petitioners ask the Commission to conclude that the acts alleged
constitute genocide, interpreting the American Convention in
concordance with customary international law and the Convention on the
Prevention and Punishment of the Crime of Genocide (the
"Convention on Genocide"). They then assert that the genocide implies violations of the
specific articles of the American Convention.
Convention on Genocide, which codifies customary international law on
defines genocide as:
any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group,
Killing members of the group;
Causing serious bodily or mental harm to members of the group;
Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.
petitioners have not alleged facts which would tend to show that the
Patriotic Union is a "national, ethnical, racial or religious
group." Instead, the
petitioners have alleged that the members of the Patriotic Union have
been persecuted solely because of their membership in a political
group. Although political
affiliation may be intertwined with national, ethnic or racial
identity under certain circumstances, the petitioners have not
alleged that such a situation exists in relation to the membership of
the Patriotic Union.
definition of genocide provided in the Convention does not include the
persecution of political groups, although political groups were
mentioned in the original resolution of the General Assembly of the
United Nations leading to the preparation of the Convention on
The mass murders of political groups were explicitly excluded
from the definition of genocide in the final Convention.
Even in its more recent application in fora such as the
Yugoslavia War Crimes Tribunal, the definition of genocide has not
expanded to include persecution of political groups.
Commission concludes that the facts alleged by the petitioners set
forth a situation which shares many characteristics with the
occurrence of genocide and might be understood in common parlance to
constitute genocide. However,
the facts alleged do not tend to establish, as a matter of law, that
this case falls within the current definition of genocide provided by
international law. The
Commission therefore shall not analyze the allegation of genocide on
the petitioners have alleged facts which tend to establish a pattern
and practice of mass political killings and extreme persecution
carried out against the membership of the Patriotic Union in an
attempt to eliminate the party physically and as a political force.
The petitioners attached to their petition a list of 1163
members of the Patriotic Union who were extrajudicially executed
between 1985 and 1993. They
also provided a list of 123 persons who were forcibly disappeared, a
list of 43 persons who survived assassination attempts and a list of
225 persons who were threatened during that same time period.
The petitioners have continued to provide lists of numerous
Patriotic Union members killed each year.
In the hearing held before the Commission in this case in
October of 1996, the petitioners presented information indicating that
one Patriotic Union activist was assassinated every two days for the
period covering January to September, 1996.
petitioners also attached to the original petition a decision of the
Colombian Constitutional Court which referenced the "progressive
elimination" of the Patriotic Union.
That Court decision also notes that, "[T]he simple numbers
of deaths and disappearances of [the party's] members and sympathizers
between 1985 and 1992 . . . shows in an unquestionable manner the
objective dimension of the political persecution carried out against
petitioners also included with their petition to the Commission the
Report on Cases of Homicide of Members of the Patriotic Union and
Hope, Peace and Liberty Political Parties prepared by the Colombian
Ombudsman for the People (the "Report of the Ombudsman").
That report also constitutes evidence tending to establish a
pattern of political persecution against the Patriotic Union.
The Report of the Ombudsman verified more than 700 homicides
committed against Patriotic Union members during the period between
1985 and 1992. The annex
to the Report of the Ombudsman contains numerous press clippings
relating to specific massacres and other acts of violence committed
against members of the Patriotic Union.
Report of the Ombudsman also defines more specifically some of the
characteristics of the violence carried out against the members of the
Patriotic Union, tending to establish the contours of a pattern of
persecution. For example,
the report concludes that the greatest numbers of violations of human
rights committed against the Patriotic Union coincide with those areas
where the Patriotic Union has achieved the greatest electoral support.
The report also notes that the violence against the Patriotic
Union is directed particularly against members of the party who are
elected to political office.
The Report of the Ombudsman also concludes that the greatest
violence against the members of the Patriotic Union occurred during
periods of electoral activity.
petitioners have also set forth before the Commission information
tending to prove that Colombian State agents have committed some of
the acts of persecution against the party and that the State of
Colombia has tolerated the pattern and practice of political
persecution against the Patriotic Union.
petitioners have never argued that there exists an affirmative policy
of the Colombian State to act in persecution and extermination of the
Patriotic Union. However,
the petitioners have alleged that members of the armed forces of
Colombia have committed some of the acts of persecution carried out
against the members of the Patriotic Union.
The petitioners indicated, in the lists of members of the
Patriotic Union affected by the persecution which were included with
the original petition, which actors were allegedly responsible for
each act of violence. In a portion of those cases, the petitioners have alleged
that members of the police and military committed the abuses.
According to the information submitted with the petition of the
petitioners, Colombian State entities also found indicia of
participation by State officials in some of the cases of violence
against the Patriotic Union. Disciplinary
proceedings against State officials were initiated in some cases.
petitioners also set forth facts tending to demonstrate that the State
of Colombia tolerates these acts committed by its agents and others
through its failure to adequately investigate and sanction the crimes
committed against the membership of the Patriotic Union.
The petitioners set forth in their petition that almost no
sanctions had been imposed in the 1163 cases of extrajudicial
execution that they list as having occurred between 1985 and 1993.
Similarly, the Report of the Ombudsman found that, in the 717
cases of extrajudicial executions verified in the report, only 10
cases had resulted in a final decision in the criminal courts.
Six of those final decisions resulted in acquittals.
In relation to the lack of results in the proceedings, the
Report of the Ombudsman further notes that, at the time of the
preparation of the report, over 40% of the cases had been ongoing for
more than four years.
Report of the Ombudsman concluded that "the guarantees and
security which would allow [the Patriotic Union] to carry out its
electoral activities, in the same manner as other political groups,
have not been granted to this political force and its
The Report further concluded that, "it is evident that the
weight of the law has not fallen upon those persons or authorities who
have violated the fundamental rights [of the members of the Patriotic
Union] or who have failed to respect the guarantees due to them."
information provided by the petitioners also tends to establish that
the State of Colombia has tolerated the pattern of persecution carried
out against the Patriotic Union by failing to act to prevent that
persecution. First, the
alleged failure to properly investigate and sanction acts committed
against the Patriotic Union would also constitute a failure to
effectively prevent human rights violations against the Patriotic
Union. The impunity
created by failure to investigate and sanction creates a situation in
which further abuses are likely to occur.
The Court has so established in several provisional measures
cases in which it ordered the implementation of effective measures to
investigate and sanction "as an essential element of the duty of
petitioners have alleged that the State has also failed to take other
effective measures to prevent the persecution of the Patriotic Union.
The information provided by the petitioners tends to establish
that the State of Colombia was aware of threats in certain cases and
failed to take appropriate action to prevent the consummation of acts
carried out against the Patriotic Union.
The Report of the Ombudsman concluded that some cases of
massacres analyzed in the report were characterized by an absence of
guarantees before the violence, despite previous warnings about the
In cases of violence committed by paramilitary organizations,
the Report of the Ombudsman concluded that, "[u]pon occasion the
armed forces or the police failed to appear when the violence occurred
and failed to confront the paramilitaries."
Commission thus concludes that the petitioners have set forth facts
and information tending to establish a pattern and practice of
political persecution carried out against the Patriotic Union with the
goal of exterminating that group and tolerance of that practice by the
State of Colombia. The
Court established, in the Velásquez Rodríguez Case, important
jurisprudence relating to the establishment of a claim of human rights
violations under the Convention on the basis of a pattern or practice.
The Court held that if a practice of grave human rights
violations may be shown to have been carried out by the State or at
least tolerated by it, and if the violation alleged in a specific case
can be linked to that practice, then the violation will be established
in the specific case.
petitioners have presented lists of specific victims who have
allegedly suffered extrajudicial executions, forced disappearances,
assassination attempts and threats as a result of the persecution of
the Patriotic Union. The
petitioners have provided certification indicating that each of the
individual victims was associated with the Patriotic Union.
Commission must therefore determine whether a pattern and practice of
persecution of the membership of the Patriotic Union with the
involvement or at least with the tolerance of the Colombian State has
been established to which these victims would be linked.
If so, the individual violations will be established as to the
listed victims and would constitute violations of the following rights
protected in the Convention: the
right to juridical personality (Article 3), the right to life (Article
4), the right to humane treatment (Article 5), the right to personal
liberty (Article 7), the right to freedom of association (Article 16),
the right to participate in government (Article 23), and the right to
a fair trial and to judicial protection (Articles 8 and 25). The petition is therefore admissible, pursuant to Article
47(b) of the Convention, on the grounds that the petitioners have
stated facts which would tend to establish multiple violations of the
Connection between facts and victims
State has argued that the case is inadmissible as presented for
failure to establish sufficient connection between the allegations of
violations against numerous individuals to allow them to be processed
and decided jointly by the Commission.
The State argues that the case involves "the aggregation
of numerous individual communications not necessarily with any
Regulations of the Commission establish that, "[a]ny petition
that states different facts that concern more than one person, and
that could constitute various violations that are unrelated in time
and place shall be separated and processed as separate cases."
The Commission has not interpreted this provision to require
that the facts, victims and violations set forth in a petition
strictly coincide in time and place in order to allow processing as a
the Commission has processed individual cases dealing with numerous
victims who have alleged violations of their human rights occurring at
different moments and in different locations so long as all of the
victims allege violations arising out of the same treatment.
Thus, the Commission may process as a single case the claims of
various victims alleging violations arising out of the application of
legislation or a pattern or practice to each of the victims, without
regard to the time and place in which the victims received this
similar treatment. The
Commission not only has refused to separate such cases for processing
but has also accumulated separate cases with such characteristics into
single cases for processing.
the petitioners have set forth facts which tend to demonstrate that
the victims in this case suffered violations as a part of an alleged
pattern and practice of political persecution against members of the
Patriotic Union, there exists the necessary connection between the
numerous individuals and facts identified to allow them to be
processed together. The
case is therefore appropriately admitted in its present form.
Individualization of the victims
State has argued, on the other hand, that this case is not admissible
as presented, because it relates to a broad phenomenon and therefore
is excessively general. The State asserts that the Commission does not have
competence to address "generic complaints" but rather may
only review cases which have been "adequately
support of this argument, the State first cites the technical
requirements set forth in Article 32 of the Regulations of the
Commission. Article 32(b)
provides that a petition addressed to the Commission shall include:
an account of the act or situation that is denounced,
specifying the place and date of the alleged violations and, if
possible, the name of the victims of such violations as well as that
of any official that might have been appraised of the act or situation
that was denounced.
lists of victims provided by the petitioners in this case include the
names of each victim and the date and place in which that victim
allegedly suffered a human rights violation as well as an indication
of the group allegedly responsible for the act committed.
The petitioners thus provided information adequate to comply
with the technical requirements set forth in Article 32(b) of the
Regulations of the Commission. The
Commission forwarded this information to the State in the form in
which it was received from the petitioners.
State next argues that the Commission must refuse to admit the case
because of its "collective nature" on the basis of precedent
established by the Commission in relation to a set of claims it
received regarding grave violations of the rights of labor union
activists in Colombia. The
claims relating to the labor union activists were apparently presented
to the Commission in a manner similar to that used by the petitioners
in the present case.
Commission determined that it should not process the set of claims
relating to the labor union activists in one case through the
individual petition mechanism, finding the group of cases to be
"beyond the scope" of that mechanism. The Commission therefore simply provided information and its
observations regarding these cases in the Second Report on the
Situation of Human Rights in Colombia.
Commission, however, did not determine that the claims could not be
processed on an individual case basis on the grounds that the petition
was generic or collective. Rather, the Commission believed at the time that the large
number of victims and claims made the petition inappropriate for
processing as a single case under the individual petition system. However, as noted above, the Commission possesses and has
exercised the competence to consider numerous individual claims in a
single case so long as the claims are adequately connected. There exists no provision in the Convention, in the Statute
of the Inter-American Commission on Human Rights or in the Regulations
of the Commission which limits the number of individual claims or
victims which may be considered in this manner.
Commission opted for the publication of its observations regarding the
claims of violations against labor union activists in the special
country report relating to Colombia based upon its consideration of
the alternative that would be most favorable for the protection of the
human rights established in the Convention.
The Commission possesses, pursuant to article 41 of the
Convention, a variety of functions and powers.
The Commission makes the decision to employ one or more of
these functions or powers in relation to a given situation, always
considering the overarching function of the Commission to promote
respect for and defense of human rights.
The competence to process individual petitions and to prepare
such studies or reports as it considers advisable are among those
functions and powers listed in Article 41.
into account the nature of the set of claims of violations against
labor union members and the fact that the Commission received the
complaint in the context of an on-site visit to Colombia, the
Commission decided to publish the information about the set of claims
in the special country report resulting out of the on-site visit
rather than to process the case through the individual petition
mechanism. This decision
does not constitute a precedent which precludes the processing of the
present case through the individual petition system.
Exhaustion of domestic remedies and the period for submission
of a petition to the Commission
State has argued that the present case is inadmissible, pursuant to
Article 46(1)(a) of the Convention for lack of compliance with the
requirement of exhaustion of domestic remedies.
The State also argues that the case is inadmissible, pursuant
to Article 46(1)(b) of the Convention, for failure to file the
petition with the Commission within the appropriate time period.
State reiterates, in relation to the question of exhaustion of
domestic remedies, its argument that the petition filed in this case
does not meet the technical requirements for admissibility, because it
does not adequately specify the details of the individual violations
alleged. The State
asserts that, as a result, compliance with the requirement of
exhaustion of domestic remedies cannot be determined.
Therefore, according to the State, the petition does not
include "information on whether the remedies under domestic law
have been exhausted or whether it has been impossible to do so,"
as required by Article 32(d) of the Regulations of the Commission.
the Commission previously noted, the petitioners did provide lists of
the violations alleged including the necessary details, including the
names of the victims and the date and place of each alleged violation.
The Commission forwarded that information to the State.
The State therefore possesses information which would allow it
to determine the status of domestic proceedings which have been
initiated. In fact, the
Report of the Ombudsman included information about the proceedings
initiated in many individual cases.
more importantly, the petition and other briefs submitted by the
petitioners contain important information regarding the overall
ineffectiveness of domestic remedies in addressing the crimes
committed against the Patriotic Union.
This information is of utmost importance in guiding the
Commission in its decision on the question of exhaustion of domestic
remedies, without reference to individual attempts to exhaust domestic
remedies. The State
received this information presented by the petitioners regarding
domestic remedies. The
technical requirements for admission have therefore been met, and the
Commission concludes that the State was not placed at a procedural
disadvantage in arguing the question of exhaustion of domestic
State argues, as a substantive matter, that the applicable domestic
remedies have not been exhausted in this case and that no exception to
the requirement of exhaustion has been established.
Pursuant to Article 46(1)(a) of the Convention, the Commission
may not find a case admissible unless "the remedies under
domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law."
Article 46(2) sets forth several exceptions to the requirement
of exhaustion of domestic remedies where effective remedies do not
exist or where access to effective remedies has been unavailable or
has been delayed as a matter of law or fact.
The jurisprudence of the Court has established that, "the
State claiming non-exhaustion has an obligation to prove that domestic
remedies remain to be exhausted and that they are effective."
State asserts that the criminal judicial system of Colombia provides
for suitable remedies for the violations alleged by the petitioners.
The State notes, for example, that the Colombian Penal Code
criminalizes homicide and provides for an increased penalty in cases
of homicide of public officials, politicians and candidates for
petitioners have argued that the State has not discharged its burden
of demonstrating that adequate and effective domestic remedies exist
to address the persecution of the Patriotic Union and that those
remedies have not been exhausted.
They therefore argue that an exception to the requirement of
exhaustion of domestic remedies applies, and that it was therefore
unnecessary to demonstrate that the victims listed in this case
attempted to exhaust domestic remedies.
petitioners first assert that adequate domestic remedies do not exist,
because Colombian legislation does not establish the crime of
genocide. They argue that
there exists no domestic remedy to address the genocide which they
allege forms the subject of this case.
Commission has concluded that the facts and violations alleged in this
case do not, as a matter of law, constitute genocide.
The failure of Colombian law to criminalize genocide thus does
not imply the nonexistence of a domestic remedy to address the
violations at issue in this case.
the petitioners submitted further information to establish the
ineffectiveness of the domestic remedies provided for under domestic
law and the resulting application of an exception to exhaustion.
As set forth above, the petitioners offered evidence with their
petition showing that, at the time of the submission of the petition,
only ten criminal cases initiated in relation to the violence against
the Patriotic Union had been resolved and almost none had resulted in
the sanction of those responsible.
The State has never alleged that this information was
inaccurate. During the
processing of this case, the petitioners have continued to provide the
Commission with additional lists of members of the Patriotic Union who
have been extrajudicially executed or who have been subjected to other
persecution. The State
has still not offered any information regarding the successful
investigation or prosecution of any of the grave incidents of
persecution against the members of the Patriotic Union.
Court has made clear that "the mere fact that a domestic remedy
does not produce a result favorable to the petitioner does not in and
of itself demonstrate" the inexistence of effective remedies.
However, the jurisprudence of the Court also suggests that,
when a state is faced with numerous alleged violations and strong
indicators that those violations fall into a pattern of political
persecution, the domestic remedy employed may be assumed to be
ineffective if some minimal proportion of success is not achieved.
The Colombian State's failure to successfully conclude criminal
proceedings in cases involving the Patriotic Union suggests that the
remedy provided by the domestic criminal justice system of Colombia is
evidence in the record corroborates the ineffectiveness of the
domestic criminal proceedings as a remedy in the case of persecution
of members of the Patriotic Union.
In a hearing before the Commission held on October 8, 1996, the
General Director of the Colombian Office of the Prosecutor, Dr.
Armando Sarmiento Mantilla, gave testimony regarding the criminal
investigations carried out in relation to the persecution of the
membership of the Patriotic Union.
He stated that the Office of the Prosecutor did not have
competence to investigate the crimes committed against the members of
the Patriotic Union as a group, because the acts of violence were
committed in various departments of Colombia by different actors.
He stated that the lack of connection between the cases
therefore precluded any form of joint investigation.
The inability or refusal of the Office of the Prosecutor to
investigate these cases in a systematic manner, despite the evidence
indicating that they fall into a pattern of persecution, necessarily
hinders the effectiveness of the remedy of criminal prosecution in the
Court has established that domestic remedies need not be attempted
where they exist in law but not in fact, as shown by a pattern of
ineffectiveness of those remedies.
The petitioners have provided significant evidence establishing
an exception to exhaustion based on a pattern of ineffectiveness of
domestic remedies in addressing the violations committed against the
Patriotic Union. The
State has had an opportunity to refute that evidence and has failed to
do so. The State has
provided no evidence to demonstrate the effectiveness of the legally
available domestic remedies.
Court has established that, under these circumstances, an objection to
admissibility by a State on the grounds of failure to exhaust domestic
remedies may be rejected.
The Commission therefore does not accept the State's objection
to admissibility on the grounds of failure to exhaust domestic
remedies. The Commission
expressly reserves its decision on the substantive issues relating to
judicial remedies, which decision may be guided by the presentation of
further evidence on those issues during the analysis of this case on
domestic remedies have not been exhausted, the requirement set forth
in Article 46(1)(b) of the Convention that the petition be filed
within a period of six months following the date of the notification
of the final ruling in the domestic proceedings does not apply.
The Commission therefore rejects the State's contention that
the petition does not meet the technical requirements for admission
because it does not provide information which would allow a
determination regarding the six-month deadline.
provision regarding time limits applicable in the present case is that
found in Article 38(2) of the Regulations of the Commission.
That provision establishes that, "the deadline for
presentation of a petition to the Commission shall be within a
reasonable period of time . . . as from the date on which the alleged
violation of rights has occurred."
original petition in the case addressed alleged violations committed
against the members of the Patriotic Union between 1985 and 1993.
The petition was filed on December 16, 1993.
The Commission considers that the petition was filed within a
reasonable time frame after the occurrence of the alleged violations,
taking into account that all the violations are allegedly linked by a
pattern of persecution against the members of the Patriotic Union.
Previous reference to the violations alleged in the present
State has argued that the Commission must declare this case
inadmissible, because it previously addressed the allegations
regarding the political persecution carried out against members of the
Patriotic Union. The
Commission discussed the information it had received regarding the
systematic assassinations carried out against the Patriotic Union in
its Second Report on the Situation of Human Rights in Colombia.
the Convention nor the Regulations of the Commission require that the
Commission declare the inadmissibility of a case where the subject of
the case has previously been addressed in a general report.
In fact, Article 19(2)(b) of the Regulations of the Commission
specifically provides, in relevant part, that members of the
Commission may not discuss or decide a matter submitted to the
Commission only "if previously they have participated in any
capacity in a decision concerning the same facts"
(emphasis added). The
discussion of specific facts in a general country report does not
constitute a "decision" on those facts as would a final
report on an individual petition which denounced the same or similar
41 of the Convention grants the Commission the power:
. . .
to prepare such studies or reports as it considers advisable in
the performance of its duties;
. . .
to take action on petitions and other communications pursuant
to its authority under the provisions of Articles 44 through 51 of
two powers of the Commission are granted and implemented
Commission's invocation of one of these powers should not and does not
preclude the use of the other.
State appears to suggest that the Commission improperly included the
information regarding the Patriotic Union in the Second Report on the
Situation of Human Rights in Colombia, because the Commission did not
follow the procedure for individual petitions set forth in the
Convention and in the Regulations of the Commission.
Because the Commission's competence to prepare general reports
is independent from its power to process individual petitions, the
procedures for the processing of individual petitions need not be
applied in the preparation of general reports. In any case, the existence of a procedural flaw in regards to
the preparation of the general report would affect only the validity
of that report. It would not affect the admissibility of the present
case under the individual petition system.
processing of a case pursuant to the individual petition procedure is
more structured than the preparation of a general report, which serves
an informative rather than adjudicatory purpose.
In processing an individual petition, the Commission must
follow the procedures set forth in Articles 44 through 51 of the
Commission must engage in a careful analysis of the
case so that it may reach conclusions of fact and law, pursuant
to Articles 50 and 51 of the Convention.
the Commission set forth general conclusions in the Second Report on
the Situation of Human Rights in Colombia in relation to the
information it received regarding the Patriotic Union.
Independently and pursuant to the individual petition system,
it carefully considered the relevant questions of law and evidence
presented in order to prepare this admissibility report.
As a result, the conclusions of the Commission in this report
differ slightly from the general information presented in the Second
Report on the Situation of Human Rights in Colombia.
For example, the Commission suggested in the general report on
Colombia that the information it received indicated that genocide was
being carried out against the Patriotic Union.
Upon legal analysis, the Commission has concluded that the
information it has received in the context of the individual petition
process does not tend to establish the crime of genocide, as a matter
of law. It therefore
cannot be said that the information relating to the Patriotic Union
included in the general country report constituted a prejudgment with
regard to the decisions to be taken by the Commission in the case
pursuant to the individual petition process.
Commission further considers that it must be able to include
information on specific human rights situations in its general reports
on the human rights situations in the member states of the
Organization of American States.
The Commission must have the ability to include this
information even where the situation involves a previously opened or
potential future case under the individual petition system.
Otherwise, the Commission would be forced to exclude from its
general reports on countries the consideration of entire segments of
the human rights panorama in those countries.
the present case, the Commission published its Second Report on the
Situation of Human Rights in Colombia before it received the petition
which triggered the processing of this case under the individual
petition system. The
Commission could not ignore in its report the information it received
relating to allegations of serious political persecution and violence
against the Patriotic Union on the grounds that a petition might later
be filed. Nor could its
inclusion of this material imply a decision not to treat the situation
subsequently under the individual petition system.
a final consideration, the Commission notes that it has regularly
admitted and decided cases pursuant to the individual petition system
while also deciding to include information about the subject of the
case in general reports.
Lack of objection has converted these repeated decisions of the
Commission into a practice accepted by the member states of the
Organization of American States.
The Court has also indicated that the Commission may publish
information on a human rights situation in general reports while also
deciding, or even sending to the Court, an individual case involving
that same situation.
The Commission does not accept the State's objection to
admissibility on the grounds that the Commission has previously
analyzed this case.
on the foregoing,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
declare admissible the present case.
send this report on admissibility to the State of Colombia and to the
continue with the analysis of the relevant issues as they have been
defined in this report in order to make a determination on the merits
of the case.
publish this report in the Annual Report to the General Assembly of
See Reservations to the Convention on Genocide, 1951 ICJ
Rep. 15 (Advisory Opinion of 28 May); Restatement of the Law
Third, Restatement of the Foreign Relations Law of the United
States §702(a) and comment d (1987).
The State of Colombia
has ratified the Convention on Genocide and is bound by that
Commission has the competence to interpret the American Convention
in the light of the Convention on Genocide and customary
Article 29(b) of the
Convention provides that the provisions of the Convention shall
not be interpreted as "restricting the enjoyment or exercise
of any right or freedom recognized by virtue of the laws of any
State Party or by virtue of another convention to which one of the
said states is a party."
The Court has noted with favor that the Commission has
interpreted this provision as providing the Commission with
competence to invoke treaties other than the American Convention
"regardless of their bilateral or multilateral character, or
whether they have been adopted within the framework or under the
auspices of the inter-American system."
I/A Court H.R., "Other Treaties" Subject to the
Advisory Jurisdiction of the Court (article 64 American Convention
on Human Rights), Advisory Opinion OC-1/82 of September 24, 1982.
Series A No. 1, pars. 43-44.
 See Study on the Prevention and Punishment of the
Crime of Genocide prepared by Mr. Nicodeme Ruhashyankiko, Special
Rapporteur for the Sub-Commission on Prevention of Discrimination
and Protection of Minorities, UN Doc. E/CN.4/Sub.2/416 (1978) at
21; Leo Kuper, supra 4, at 118.
See Secretary General's Report on Aspects of Establishing
an International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia, Article
4, 32 I.L.M. 1163 (1993) (defining genocide as acts of persecution
committed "with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group").
Decision of the Constitutional Court of Colombia, Action for
Protective Relief ("Tutela"), No. T-439, July 2, 1992
(decision in an action for protection brought by a member of the
Patriotic Union - Luis Humberto Rolón Maldonado).
Report on Cases of Homicide of Members of the Patriotic Union and
Hope, Peace and Liberty Political Parties prepared by the
Colombian Ombudsman for the People [hereinafter Report of the
Ombudsman] at 39.
Serech and Saquic Case, Provisional Measures, Resolution of the
Inter-American Court of Human Rights of June 28, 1996; Vogt Case,
Provisional Measures, Resolution of the Inter-American Court of
Human Rights of June 27, 1996.
 See, e.g., Report No. 24/82 (Chile), March 8, 1982,
Annual Report of the Inter-American Commission on Human Rights
1981-1982, OEA/Ser.L/V/II.547, Doc. 6 rev. 1, 20 September 1982
(finding violations of the human rights of 50 individuals who were
deported from Chile under emergency legislation).
 See I/A Court H.R., International Responsibility for
the Promulgation and Enforcement of Laws in Violation of the
Convention (articles 1 and 2 of the American Convention on Human
Rights), Advisory Opinion OC-14/94 of December 9, 1994, par. 43.
 In relation to this point, the Commission notes that the
State has the nonderogable and nondelegable duty to prosecute
public action crimes ("delitos de acción pública"),
crimes for which the State has exclusive power to prosecute, in
order to preserve public order and ensure the right to justice.
In those cases, therefore, the victim and his family
members cannot be required to exhaust domestic remedies.
The State, through its prosecutorial and judicial bodies,
must apply the criminal laws, initiating and moving a case forward
through its various procedural stages to completion.
 To name just a few examples, the Commission reported
generally on the Myrna Mack case in Guatemala before formally
finding that case admissible pursuant to the individual petition
system and, similarly, reported on the case relating to the
massacre at the Honduras and La Negra farms in Colombia before
deciding and publishing its final decision in that case pursuant
to the individual petition system.
See Report 10/96, Case 10.636 (Guatemala)
(admissibility report), Annual Report of the Inter-American
Commission on Human Rights 1995, OEA/Ser.L/V/II.91, Doc. 7 rev.,
February 28, 1996; Fourth Report on the Situation of Human Rights
in Guatemala, OEA/Ser.L/V/II.83, Doc. 16 rev., June 1, 1993 at 22;
Report 2/94, Case 10.912 (Colombia), Annual Report of the
Inter-American Commission on Human Rights 1993, OEA/Ser.L/V/II.85,
Doc. 9 rev., February 11, 1994; Second Report on Colombia at 143.