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OEA/Ser.L/V/II.98 REPORT Nº 5/98
CASE 11.019
ALVARO MORENO MORENO
COLOMBIA (*)
April 7, 1998
I.
SUMMARY OF THE CASE
1. This
case addresses the violent death of Alvaro Moreno Moreno, a student who resided
in Bogotá, Colombia. According to
the petitioners, the Corporación Colectivo de Abogados "Jose Alvear
Restrepo," agents of the Metropolitan Police for Bogotá (the
"Police") detained and then killed Mr. Moreno on January 3, 1991.
They further allege that the circumstances surrounding the death of Mr.
Moreno were not adequately investigated and that the State failed to criminally
sanction the Police agents responsible for Mr. Moreno's death.
The petitioners thus allege that the Republic of Colombia (also
"Colombia", "the State" or "the Colombia State")
is responsible for violations of the American Convention on Human Rights (the
"Convention" or the "American Convention").
Based on the information submitted and its investigation and analysis in
this case, the Inter-American Commission on Human Rights (the
"Commission") concludes that the Colombian State is responsible for
violations of Articles 1, 4, 7, 8 and 25 of the American Convention.
II.
BACKGROUND
A.
Uncontested Background Information
2. On
January 3, 1991, at approximately 6:30 or 7:00 p.m., an attack was carried out
against a Police center known as "Los Libertadores" Center for
Immediate Attention ("CAI") in southeast Bogotá.
One Police agent lost his life in that attack and another was injured.
3. In
response to the attack, a Police operation was mounted in the area.
Police agents from various units, including from the Police intelligence
section ("SIJIN"), were called to the scene to provide support.
The Police agents were asked to gather information, search for suspects
and to take actions to prevent further attacks against other CAIs in the area.
4. The
following day, January 4, 1994, the Technical Corps of the Judicial Police -
Preliminary Investigations Unit for Zipaquirá ("Cuerpo Técnico de la
Policía Judicial - Unidad de Indagación Preliminar de Zipaquirá") found
a dead body in a place known as "llanos de la Diana" in the community
of El Verganzo de Tocancipá, Cundinamarca.
The body was subsequently identified, through the use of fingerprint
analysis, as belonging to Alvaro Moreno Moreno. It
was determined that numerous gunshot wounds were the cause of Mr. Moreno's
death.
B.
Allegations of the Petitioners
5. The
petitioners allege that SIJIN Police agents detained Mr. Moreno during the
operation carried out on January 3, 1991 after the attack on the Los
Libertadores CAI. They allege that
Mr. Moreno was subsequently killed by Police agents while held by the SIJIN.
6. The
petitioners further allege that the Police engaged in activities designed to
hide the truth regarding the death of Mr. Moreno and to prevent the identity of
those responsible from becoming known. Among
other things, they allege that the Police intentionally lost or destroyed
important records relating to the events of January 3, 1991.
7. Finally,
the petitioners allege that the Colombian State did not carry out timely and
adequate investigations into the death of Mr. Moreno and did not sanction those
responsible for his death. They
thus assert that the State has failed in its duty to provide for the right to be
heard within a reasonable time, access to an effective legal remedy and the
proper application of justice in this case.
C.
Position of the State
8. In
its responses in the case, the State has generally limited itself to providing
the Commission with information about the status of the various domestic
proceedings related to the case. The
State has suggested that it has carried out the appropriate investigations and
proceedings in a manner which will not allow impunity to prevail in this case.
III.
PROCESSING BEFORE THE COMMISSION
9. The
Commission received the petition in this case on May 5, 1992 in the course of an
on-site visit to Colombia. The
Commission opened case 11.019 on June 17, 1992 and sent the pertinent parts of
the petition to the Colombian State for its response.
10. On June
10, 1993, the Commission reiterated its request for an answer from the State
regarding the case. The State
provided its answer on August 20, 1993.
11. The
State's answer was transmitted to the petitioners who submitted their rejoinder
on October 4, 1993. The petitioners
submitted additional information regarding the case on December 30, 1993. The Commission forwarded the petitioners' rejoinder and
additional information to the State in communications dated December 7, 1993 and
January 10, 1994. The Commission
received the response of the State to these communications on March 15, 1994.
12. The
petitioners and the Colombian State exchanged additional written briefs and
information relating to the status of the domestic investigations and
proceedings and in relation to central questions of law and fact.
The Commission thus received written briefing from the petitioners on the
following dates: August 18, 1994;
January 25, 1995; July 14, 1995, and; January 29, 1996.
The Commission received written briefs from the State on the following
dates: October 20, 1994; April 26,
1995, and; November 13, 1995. The
Commission transmitted the pertinent parts of each of these communications to
the opposing party.
13. The
Commission held a hearing in relation to case 11.019 on February 23, 1996.
At that time, each of the parties had an opportunity to make oral
arguments before the Commission regarding points of fact and law relevant to the
case. During the hearing, the
Commission also placed itself at the disposition of the parties for the purpose
of seeking a friendly settlement of the matter.
14. On March
8, 1996, the petitioners sent a communication advising the Commission that
discussions had taken place within Colombia in relation to the possibility of
seeking a friendly settlement of the case.
The petitioners attached a letter directed to them from the Government,
making a proposal for the settlement of the case.
The petitioners requested that the friendly settlement proceedings be
formalized before the Commission. The
Commission sent the pertinent parts of the communication from the petitioners to
the State on April 1, 1996.
15. The
State requested an extension of time to respond on May 14, 1996 and again on
July 31, 1996. The Commission granted the two extensions of time.
16. The
State's response, submitted on September 24, 1997, provided information
regarding the merits of the case and the status of the domestic proceedings but
made no mention of friendly settlement or of the possibility of formalizing a
friendly settlement proceeding before the Commission.
The Commission forwarded the State's response to the petitioners on
October 1, 1996.
17. The
petitioners sent a further note to the Commission inquiring about the
possibility of initiating friendly settlement proceedings on October 17, 1996.
On October 24, 1996, the Commission sent a note to the Colombian State
reiterating its offer to place itself at disposition of the parties for the
purposes of arriving at a friendly settlement.
18. In a
communication dated November 5, 1996, the State confirmed that there had been
some discussion within Colombia regarding the possibility of entering into
friendly settlement negotiations in the case and that the State had made an
initial proposal for settlement. The
letter stated that the Government would notify the Commission when it reached a
decision regarding the possibility of a friendly settlement of the case and when
it formulated a position in response to the observations of the petitioners
regarding its initial proposal for friendly settlement.
The Commission forwarded this note to the petitioners on November 19,
1996.
19. On
January 29, 1997, the Commission sent a note to the State requesting
information regarding the position that the State had decided to adopt
regarding the possibility of entering into friendly settlement negotiations in
this case.
20. The next
communication from the State, dated March 4, 1997, provided information relating
to the merits of this case, specifically regarding the domestic proceedings.
21. On June
18, 1997, the Commission reiterated its request that the State make known its
position on the possibility of entering into friendly settlement negotiations. The Commission referenced its previous note of January 29,
1997 and requested that the State reply within 30 days. The Commission has received no further communications in this
case.
IV. ANALYSIS
A.
Admissibility
1.
Procedure for Deciding Admissibility
22. The
Commission has not prepared an independent admissibility decision in this case. Rather, the Commission sets forth its analysis of the
admissibility of the petition in this report, prepared in accordance with
Article 50 of the Convention, which also contains the conclusions of the
Commission on the merits of the petition. The Commission has adopted this
procedure for several reasons.
23. First,
it is not clear that the State has raised timely objections to admissibility.
The State provided its answer in this case more than one year after the
Commission opened the case and requested information from the State regarding
the allegations of the petitioners. The
answer was received only after the Commission reiterated its request for
information. This delay in
responding to the Commission's request for information is excessive.
In this regard, the Regulations of the Inter-American Commission on Human
Rights provide that the State will receive a period of 90 days to respond to the
Commission's original request for information on a case.
That period may be extended to a total of 180 days where the State
requests successive extensions of time, of no more than 30 days each, and
provides reasons for such requests.[1]
In this case, the State failed altogether to comply with these time
limits for providing its answer without any justification.
24. When it
submitted its answer, the State argued that the case was not susceptible to
analysis by an international body, such as the Commission, because domestic
remedies had not been exhausted. The
State suggested that proceedings before the contentious-administrative
jurisdiction constituted a remedy which should be exhausted before the case
could be brought before an international body.[2]
The State did not again raise this objection in any of its subsequent
communications relating to this case.
25. The
Inter-American Court of Human Rights (the "Court") has repeatedly
noted that an objection based on non-exhaustion of domestic remedies, "must
be made at an early stage of the proceedings by the State entitled to make
it" and has held that a State may waive an objection based on the
exhaustion requirement.[3]
The State made its only objection to admissibility in its answer, which
was submitted to the Commission in an untimely manner.
The State then failed to pursue the objection at any other point in the
proceedings before the Commission. The
Commission therefore considers that the State might be considered to have waived
its objection on exhaustion grounds.
26. Second,
the analysis of the State's objection to the admissibility of the petition in
this case on the grounds of failure to exhaust domestic remedies is necessarily
closely tied to an analysis of the merits of the case.
The petitioners argue that the requirement of exhaustion of domestic
remedies is excused in this case, pursuant to Article 46(2) of the Convention,
because domestic remedies have been ineffective and because there has been undue
delay in the resolution of the domestic proceedings which have been initiated in
the case. This line of
argumentation of the petitioners is linked directly to the petitioners' claim
that the State has failed to provide adequate judicial protection and access to
justice in this case.
27. In this
connection, the Inter-American Court of Human Rights (the "Court" or
the "Inter-American Court") has noted:
Under the Convention, States Parties have an obligation to provide
effective judicial remedies to victims of human rights violations (Art. 25),
remedies that must be substantiated in accordance with the rules of due process
of law (Art. 8(1)), all in keeping with the general obligation of such States to
guarantee the free and full exercise of the rights recognized by the Convention
to all persons subject to their jurisdiction (Art. 1).
Thus, when certain exceptions to the rule of non-exhaustion of domestic
remedies are invoked, such as the ineffectiveness of such remedies or the lack
of due process of law, not only is it contended that the victim is under no
obligation to pursue such remedies, but indirectly, the State in question is
also charged with a new violation of the obligations assumed under the
Convention. Thus, the question of
domestic remedies is closely tied to the merits of the case.[4]
28. Where
the applicability of the requirement of exhaustion of domestic remedies is
closely linked to the merits and may not be easily separated from that question,
it may be appropriate to decide the question of the admissibility of a petition
together with the merits of the case in order to avoid prejudging the merits of
the case in the decision on admissibility.[5]
Such is the situation presented in this case.
29. Therefore,
in order to address the objection to admissibility raised by the State, albeit
in an untimely manner, the Commission will proceed to discuss the question of
admissibility of the petition in this Article 50 report before proceeding to its
discussion on the merits.
2.
The Exhaustion of Domestic Remedies Requirement
a.
The Various Domestic Proceedings
30. The
domestic criminal investigations in this case began with the inspection and
removal of Mr. Moreno's cadaver from the site where it was found on January 4,
1991 by the Technical Corps of the Judicial Police.
At the same time and before they learned that the victim's body had been
found, Mr. Moreno's family members filed a complaint with the Office of the
General Procurator of the Nation ("Procuraduría General de la Nación")
asserting that Mr. Moreno had been detained and then disappeared.[6]
Several domestic proceedings were
triggered as a result of these initial actions by the Colombian authorities and
by Mr. Moreno's family members. The
trajectory of the various domestic proceedings, as presented to the Commission
by the petitioners and the State, is as follows:
i.
Criminal Proceeding
31. After
the identification of Mr. Moreno's cadaver, the 27th Judge for Criminal
Investigation for Bogotá began to carry out investigative proceedings in
relation to his death. In June of
1991, for example, this Judge carried out on-site judicial inspections at the
Los Libertadores CAI and at the systems office for the Metropolitan Police for
Bogotá. The 27th Judge for
Criminal Investigation for Bogotá became Prosecutor 262 of the Special
Investigations Unit when the Constitution of 1991 entered into force and changed
the structure of the criminal justice system in Colombia.
32. The
criminal investigation was formally opened on November 25, 1991, and one Police
officer was named as a suspect. The
following day, a civil party was accepted in the case.
In March and July of 1992, additional Police suspects were named in the
case.
33. On
September 10, 1992, the Office of the Inspector General for the Police requested
to have the case transferred to the military justice system.
When the Office of the Prosecutor General ("Fiscalía General de la
Nación")[7]
refused to relinquish jurisdiction over the case, the Superior Council of the
Judiciary ("Consejo Superior de la Judicatura")[8]
was asked to decide which jurisdiction should handle the case.
The Superior Council of the Judiciary decided, on October 29, 1992, that
the case should remain under the jurisdiction of the civil criminal justice
system.
34. During
1993 and 1994, the prosecution issued several arrest warrants against Police
agents. During this time, the case also was transferred periodically
to new prosecutorial units.
35. The case
was then transferred, in late 1994, to the Office of the Regional Prosecutor for
Bogotá ("Fiscalía Regional de Bogotá").[9]
The Regional Prosecutor's Office decided to transfer the case to the
military justice system on March 10, 1995.
36. On April
28, 1995, the Office of the Inspector General for the National Police, acting as
trial court judge in this case for the military justice system, decided to
return the case to the civil criminal justice system.
The 1992 decision of the Superior Council of the Judiciary formed the
basis for this decision.
37. The
Office of the Regional Prosecutor for Bogotá reassumed jurisdiction over the
case on May 18, 1995. On May 26,
1995, the investigation was declared complete and was closed.
Formal charges were not made, however, and the case was thus not brought
to trial.
38. On
August 15, 1995, the case was transferred to the National Unit for Human Rights
(the "Human Rights Unit") of the Office of the Prosecutor General for
further investigation. The case was
assigned to a prosecutor on September 26, 1996.
At the end of 1996, the Human Rights Unit resolved several outstanding
motions and ordered that new investigative proceedings be carried out.
39. The case
remains with the National Unit for Human Rights in the investigative stage.
No formal charges have yet been made and the case has not been brought to
trial.
ii.
Disciplinary Proceeding
40. The
Office of the Procurator General of the Nation carried out two separate
disciplinary proceedings related to the death of Alvaro Moreno Moreno.
The Delegate Procurator for the Judicial Police carried out an
investigation into the alleged irregular detention and subsequent death of Mr.
Moreno at the hands of Police agents. The
Delegate Procurator for the National Police carried out an investigation into
the alleged cover-up of the events of January 3, 1991 and into the internal
Police disciplinary investigation which absolved the Police of all
responsibility in the case.
41. On June 14, 1994, the
Procurator Delegate for the National Police reached its decision in the
disciplinary case under its jurisdiction. The
decision exonerated three persons named as defendants in the proceedings and
sanctioned a fourth individual with five days suspension from active duty.
42. On
August 11, 1992, the Procurator Delegate for the Judicial Police brought
disciplinary charges against five individuals for failure to properly process
the detention of Mr. Moreno, including failure to present him before the proper
authorities. In decisions dated
September 27 and November 1, 1995, the Procurator Delegate for the Judicial
Police issued a decision in this disciplinary proceeding.
The Procurator Delegate determined that four of the individuals should be
sanctioned with removal from their positions in the Police Department.
One of the individuals was exonerated.
iii.
Contentious-administrative Proceeding
43. On
October 28, 1993, the Administrative Tribunal for the Department of Cundinamarca[10]
issued a decision requiring the Colombian State to pay monetary compensation to
Mr. Moreno's family members for his death.
The Third Section of the Contentious-Administrative Chamber of the
Council of State ("Sección Tercera de la Sala de lo Contencioso
Administrativo del Consejo de Estado") affirmed the lower court decision
awarding damages. The family
received payment of the damages awarded in the contentious-administrative
proceeding on April 27, 1995.
b.
Analysis of the Commission Relating to the Requirement of Exhaustion of
Domestic Remedies
44. The
Commission decides that, pursuant to Article 46(2) of the American Convention,
the requirement of exhaustion of domestic remedies found in Article 46(1)(a) is
not applicable in this case. Article
46(1)(a) specifies that admission of a petition requires that "remedies
under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law."
Those remedies which must be exhausted are those which are suitable to
address the alleged infringement of a legal right.[11]
45. However,
pursuant to Article 46(2), exhaustion is not required where the party alleging
violations of his rights has effectively been denied access to the remedies
theoretically available under domestic law.
Article 46(2) also excuses exhaustion where "there has been
unwarranted delay in rendering a final judgment" in relation to the
domestic remedies invoked. The
petitioners have adequately shown that the provisions of Article 46(2) excuse
exhaustion in the instant case.
46. In a
case such as this one, where the violation of a right may properly be
characterized as a criminal offense, the victims or their family members have
the right to obtain a judicial investigation and a decision by a court of
criminal law which determines, where possible, those responsible for the crimes
committed and punishes them accordingly.[12]
Thus, the appropriate remedy to be invoked is a criminal proceeding,
which allows for criminal investigation and sanction as well as providing for
the possibility of monetary compensation to the family members of the victim.
47. Yet, it
became clear even before the petition in this case was filed before the
Commission that the criminal proceeding was not advancing at a reasonable pace
toward the clarification of the events of January 3, 1991 and the sanction of
those responsible for Mr. Moreno’s death.
The criminal investigation was not formally opened, and the civil party
was not allowed to take part in the investigation, until eleven months after Mr.
Moreno’s death. At that time,
only one suspect was named. Further
suspects were not named for several more months.
This delay in the investigation occurred despite the fact that the Judge
who originally carried out the investigations had already found convincing
evidence that Mr. Moreno had been detained by the Police on January 3, 1991
shortly before his death, in judicial inspections carried out in June of 1995.
48. The
Commission notes that this delay in the initial stages of the investigation
necessarily prejudiced the possibility for success in the investigation.
An investigation will always have a greater opportunity to clarify the
events in question if it is carried forward soon after the occurrence of those
events. Evidence vital to the
prosecution of a case becomes increasingly difficult to obtain as time lapses.
In addition, after the investigation was formally opened, the case was
transferred numerous times to different prosecutors, resulting in further delay
and thereby prejudicing the possibility of obtaining the evidence necessary to
identify and sanction the individuals responsible for Mr. Moreno’s death.
49. In 1995,
four years after Mr. Moreno’s death, the Office of the Regional Prosecutor for
Bogotá decided to submit the case to the military justice system.
The case was subsequently transferred back to the civil criminal justice
system, but several more months were lost in this process.
50. In
response to the petitioners' arguments suggesting that the 1995 transfer to the
military jurisdiction contributed to a denial of access to an effective remedy,
the State recognized that "the transfer of the investigation from one
jurisdiction to another may contribute to a situation of delay in obtaining
positive results in the investigation."[13]
The State suggested that this delay was nonetheless justifiable as a
means of ensuring that the proper judicial system exercised jurisdiction over
the case so as to protect the eventual results of the proceedings from challenge
on jurisdictional grounds.[14]
51. However,
such reasoning does not justify the transfer which occurred in this instance.
At the time of the transfer, there already existed a three-year old
decision by the competent authority indicating that the military justice system
should not be granted jurisdiction over the case. The Office of the Regional Prosecutor for Bogotá thus made
the decision to transfer the case to the military justice system either
negligently or in direct defiance of a legitimate prior judicial decision.
52. After
the case returned to the civil criminal jurisdiction, in May of 1995, the
prosecution declared the investigation closed.
At this juncture, the prosecution should have formally charged some or
all of the suspects or issued a determination that there existed insufficient
evidence to continue against them. The
prosecution failed to take this required action within the period of time
provided for pursuant to the applicable laws.
53. The
subsequent transfer of the case, in August of 1995, to the Human Rights Unit of
the Office of the Prosecutor General constituted a positive move for the
reactivation of the investigation. However,
a prosecutor from the Human Rights Unit was not actually assigned to the case
until one year later, on September 26, 1996.
A full year later, the Unit for Human Rights, like the other
prosecutorial units who have handled the case, has failed to formally charge any
defendants in the case and bring this case to trial.
54. Six
years after the events of January 3, 1991, the criminal proceedings remain in
the investigative stage. Furthermore,
there exists no indication that those proceedings will result in the
identification and sanction of those responsible for Mr. Moreno’s death.
55. The
State has suggested that the involvement of the civil party caused some of the
delay in the criminal proceedings.[15]
The procedural activity carried out by those persons interested in a
judicial proceeding is relevant to the analysis of whether the proceeding has
suffered from undue delay.[16]
56. However,
in the present case, the State has never offered any information regarding the
specific procedural activities carried out by the civil party which might have
caused a delay in the criminal proceedings.
The Commission cannot assume, based on the mere fact that a civil party
has become involved in a case, that the civil party has contributed to an undue
delay in the proceedings. The
Commission also notes that the civil party was not formally included in the case
until almost one year after Mr. Moreno was killed.
The initial delay in the proceedings, which prejudiced the subsequent
investigations, obviously cannot be attributed to the civil party.
57. The
Commission thus concludes that the criminal proceedings initiated in this case
have not allowed for access to an effective remedy.
In addition, an unjustified delay of more than six years has occurred
without a final decision by the criminal tribunals in this case.
Exhaustion of the remedy provided through the criminal proceeding is thus
excused.
58. In
addition to the criminal proceedings, a disciplinary proceeding and a
contentious-administrative proceeding were initiated in relation to Mr. Moreno's
death. The Commission considers that neither of those proceedings could have
resulted in a suitable remedy for the violations alleged in this case and thus
need not have been exhausted.
59. A
disciplinary proceeding, including the possibility of a disciplinary sanction,
simply is not sufficient in a case involving the violent death of a person,
allegedly at the hands of Police agents and in Police custody.
Such a case should terminate in the criminal sanction, wherever possible,
of the persons responsible for the crimes committed.
The disciplinary sanction of those responsible could not adequately
repair the rights violated.
60. In
addition, the disciplinary proceedings which took place related to omissions
allegedly committed by Police agents, such as the failure to maintain proper
records and the failure to properly present Mr. Moreno to the authorities upon
his detention. The disciplinary
proceedings were never intended to address the petitioners’ central allegation
that State agents killed Alvaro Moreno Moreno while he was held in Police
detention. They thus could not have
resulted in an adequate remedy for the violations alleged.
61. The
contentious-administrative proceeding is the only proceeding actually referenced
by the State to support the inadmissibility of this case for failure to exhaust
domestic remedies. The Commission
has concluded in other Colombian cases that the contentious-administrative
proceeding is "intended only as a means of supervision of the State's
administrative activity and to obtain compensation for damages caused by abuse
of authority."[17]
The Commission has thus concluded that the contentious-administrative
proceeding is generally not an adequate "means of redress of human rights
violations" and thus need not be exhausted in a case such as this one.[18]
62. In this
case, the State has specifically emphasized that the contentious-administrative
proceeding provides only monetary compensation to persons who have suffered harm
caused by State agents, “justly or unjustly.”[19]
Monetary compensation for damages inflicted, without any determination as
to wrongdoing, is not an adequate or appropriate remedy in this case.
63. In
addition, it is noted that in many member states of the O.A.S., including
Colombia, a decision to convict in a criminal proceeding generally includes or
precedes an order to pay compensation to those victims or family members who
participated in the proceedings as civil parties.
Thus, the criminal proceeding, which would constitute the appropriate
remedy in a case such as this one, provides for the possibility of obtaining
monetary compensation in addition to criminal sanction.
The petitioners should not then be required to seek exhaustion of the
administrative proceeding, which can provide only monetary compensation, when
there exists another proceeding which serves to provide monetary compensation as
well as the criminal investigation and sanction required in such a case.
Where the criminal proceeding is invoked and yet does not lead to a
remedy for the human rights violation, including an order to pay compensation,
the victims cannot then be asked to exhaust another remedy in order to obtain
that compensation.
64. In any
case, both the disciplinary and contentious-administrative proceedings were, in
fact, exhausted. The disciplinary
proceeding carried out by the Procurator Delegate for the National Police
terminated in a final decision dated June 14, 1994.
The unappealable decisions of the Procurator Delegate for the Judicial
Police, dated September 27 and November 1, 1995, completed the proceedings
before that body. The
contentious-administrative proceeding ended with the decision of the Council of
State confirming the sentence of the administrative tribunal awarding damages
and the final payment of damages on April 27, 1995.
The State itself has noted that the remedy available through the
contentious-administrative jurisdiction was exhausted.[20]
3.
Time for Filing the Petition
65. The
State has neither alleged nor shown that the petitioners presented their claim
to the Commission outside of the relevant time period for the filing of a
petition provided for in Article 46(b) of the Convention and Article 38 of the
Regulations of the Commission.[21]
The Commission therefore determines that the case is admissible without
reference to the question of the time period in which the petition was
submitted.
4.
Friendly Settlement
66. In
accordance with Article 48(1)(f) of the Convention, the Commission offered to
place itself at the disposition of the parties for the purposes of arriving at a
friendly settlement in the hearing held before the Commission on February 23,
1996. According to both the petitioners and the State, some
discussion of negotiation towards a friendly settlement subsequently occurred in
Colombia. However, the State
continued to provide briefs to the Commission relating to the merits of the case
and failed to respond to the petitioners’ request to formalize the friendly
settlement proceedings before the Commission.
67. In
response to a communication from the Commission reiterating its offer to place
itself at disposition of the parties for the purposes of arriving at a friendly
settlement, the State notified the Commission that it would define its position
on friendly settlement and would notify the Commission of its decision in this
regard. When the Commission received no further information from the
State on this point, the Commission
sent a note, on January 29, 1997, requesting a response regarding the position
the State had decided to adopt regarding the possibility of entering into
friendly settlement negotiations in this case.
The Commission received no response to this communication.
The Commission therefore reiterated, on June 18, 1997, its previous
request for information regarding the State’s position on friendly settlement.
The Commission granted the State a 30-day period of time to respond. The State has not yet responded to the Commission’s
request.
68. In the
meantime, while the Commission sought a response regarding the State’s
position on friendly settlement, the State provided an additional brief relating
to the merits of this case, specifically regarding the domestic proceedings, on
March 4, 1997.
69. The
Commission concludes that the State has implicitly indicated its desire not to
pursue friendly settlement negotiations at this time.
It arrives at this conclusion based, in part, on the State’s failure to
respond to its repeated requests for information regarding the State’s
position on friendly settlement. Also,
the Commission notes that the State has moved forward with the proceedings
before the Commission by continuing to submit briefs in this case.
It has thus not been possible to enter into a friendly settlement
proceeding.
5.
Other Admissibility Requirements
70. The
petition fulfills the other admissibility requirements contained in the
Convention and the Regulations of the Commission.
In accordance with Article 47(b) of the Convention, the Commission is
competent to examine this case as it adequately alleges violations of several
articles of the Convention. In
accordance with the requirement of Convention Articles 46(1)(c) and 47(d)
respectively, the Commission has received no information indicating that the
subject of the petition is pending settlement in another international
proceeding or that it duplicates a petition previously examined by the
Commission.
B.
Merits
1.
Findings of Fact Regarding the Underlying Violations
71. The
Commission finds that Police agents detained Alvaro Moreno Moreno on January 3,
1991. The record before the Commission includes several pieces of
crucial evidence on this point. First,
the record contains a copy of the “weekly summary report” dated January 7,
1991 provided by C.A.D. Station 100 to the Commander of the Metropolitan Police
for Bogotá. That report provides
information about the attack carried out on the Los Libertadores CAI.
The report then names Alvaro Moreno Moreno as a suspect and indicates
that he was placed at the disposition of the SIJIN.[22]
The record also contains the testimony of Lieutenant Adriana Patricia
Hernández Marín, an agent of the counterintelligence group of the SIJIN who
participated in the support operation carried out on January 3, 1991 after the
attack on the CAI. Ms. Hernández
testified that she maintained radio contact with the other Police officers who
participated in the support operation on January 3, 1991.
She stated that she heard another Police agent announce over the radio
that he had detained Alvaro Moreno Moreno and that he would take Mr. Moreno to
intelligence headquarters to carry out a background check.[23]
72.
The report of the Judicial Police Office for Special Investigations of
the Office of the Procurator General, issued on January 27, 1992, also reached
the conclusion that the Police detained Mr. Moreno on January 3, 1991.
That report stated that, “it has been clearly established that the
citizen Alvaro Moreno . . . was captured by units of the Metropolitan Police for
Bogotá and placed at the disposition of the SIJIN.”
Nor has the State ever denied in the proceedings before the Commission
that Police agents detained Mr. Moreno on the night in question.
73. Mr.
Moreno’s lifeless body appeared the following day with numerous gunshot
wounds. Thus, the last information
which exists regarding Mr. Moreno, before his death, indicates that he had been
detained by Police officials and was being held at the disposition of the SIJIN.
Given these circumstances, the State bears the burden of proving before
the Commission that Police agents did not cause Mr. Moreno’s death.
74. The
burden of proof lies with the State, because when the State holds a person in
detention and under its exclusive control, the State becomes the guarantor of
that person’s safety and rights. In
addition, the State has control over the information and evidence which might
establish the fate of the detained person.[24]
75. The
Colombian State has failed to meet its burden of proof in this case. The State has never even argued, much
less adduced any credible evidence, that Police agents did not execute Mr.
Moreno subsequent to his detention by the Metropolitan Police for Bogotá.
The Commission thus concludes that State Police agents executed Alvaro
Moreno Moreno after his detention on January 3, 1991.
2.
Conclusions of Law Regarding the Underlying Violations
a.
The Right to Life - Article 4
76. The
Commission concludes that Police agents violated Mr. Moreno’s right to life,
in violation of Article 4 of the Convention.
Article 4 of the American Convention provides that, “[e]very person has
the right to have his life respected. . . . No one shall be arbitrarily deprived
of his life.”
77. The
Commission has found that Police agents executed Alvaro Moreno Moreno after
detaining him on January 3, 1991. There
exist absolutely no indicia in this case suggesting that Mr. Moreno’s death
was justified in any manner. The
State has made no such argument and none arises from the evidence in the record
before the Commission. Police
agents thus arbitrarily deprived Mr. Moreno of his life in a clear violation of
the American Convention.
b.
The Right to Personal Liberty - Article 7 |