REPORT Nº 112/99*
On March 6, 1996, the Inter-American Commission on Human Rights
(hereinafter "the Commission") received a petition submitted
by the Colombian Commission of Jurists (hereinafter "the
petitioners") against the Republic of Colombia (hereinafter
"the State," "the Colombian State," or
"Colombia") for the alleged forced disappearance of Alvaro
Lobo Pacheco, Gerson Rodríguez, Israel Pundor, Angel Barrera, Antonio
Flórez Ochoa, Carlos Arturo Riatiga, Víctor Ayala, Alirio Chaparro,
Huber Pérez, Alvaro Camargo, Rubén Pineda, Gilberto Ortiz, Reinaldo
Corso Vargas, Hernán Jáuregui, Juan Bautista, Alberto Gómez, Luis
Sauza, Juan Montero, and Ferney Fernández (hereinafter "the
victims") by members of the National Army and civilians allegedly
part of a paramilitary group, from October 6 to 18, 1987, in the
municipality of Puerto Boyacá, department of Boyacá, in the middle
The petitioners allege that the State is responsible for
violations of the right to life (Article 4), the right to humane
treatment (Article 5), the right to personal liberty (Article 7),
respect for judicial guarantees (Article 8), and the right to judicial
protection (Article 25), all in connection with Article 1(1) of the
American Convention on Human Rights (hereinafter the
"Convention" or the "American Convention").
In addition, they allege violations of those same rights pursuant
to Articles I, XVIII, and XXVI of the American Declaration of the Rights
and Duties of Man (hereinafter "the American Declaration").
In arguing the admissibility of this case, the petitioners invoke
the exceptions to the requirement to exhaust domestic remedies.
The State provided information on the status of the proceedings
in the domestic jurisdiction to clear up the alleged disappearances
without expressly questioning compliance with the exhaustion
After analyzing the positions of the parties and compliance with
the requirements provided for in the Convention, the Commission decided
to declare the case admissible.
PROCESSING BEFORE THE COMMISSION
On March 29, 1996, the Commission proceeded to open the case
under number 11,603, and transmitted the pertinent parts of the
complaint to the Colombian State, giving it 90 days to submit
On May 21 and July 31, 1996, the State requested extensions of
the term for submitting its answer.
On June 6 and August 8, 1996, the Commission granted the
extensions requested. The
State submitted its answer on September 17, 1996; the pertinent parts
were transmitted to the petitioners.
On December 12, 1996, the petitioners submitted their
observations, which were duly transmitted to the State.
On March 3, 1997, during the 95th regular session, a hearing was
held on the case in which the petitioners stated their interest in
exploring the possibility of a friendly settlement.
On June 18 and 19, 1997, the Commission requested additional
information from the State on domestic remedies.
On October 6, 1998, during the 100th regular session of the
Commission, a third hearing was held on the case.
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioners allege that on October 6, 1987, Alvaro Lobo
Pacheco, Gerson Rodríguez, Israel Pundor, Angel Barrera, Antonio Flórez
Ochoa, Carlos Arturo Riatiga, Víctor Ayala, Alirio Chaparro, Huber Pérez,
Alvaro Camargo, Rubén Pineda, Gilberto Ortiz, Reinaldo Corso Vargas,
Hernán Jáuregui, Juan Bautista, Alberto Gómez, Luis Sauza, Juan
Montero, and Ferney Fernández, all merchants, were travelling in a
caravan, in several vehicles, from the city of Cúcuta, department of
Norte de Santander, to the city of Medellín, department of Antioquia.
When they reached the "El Diamante" farm, in the
municipality of Puerto Boyacá, department of Boyacá, they were stopped
by the shooting of firearms, alleged to come from a military
check-point. The alleged
victims are then said to have been forced to take a detour along another
road, where they were intercepted and held by a paramilitary group that
allegedly operated in coordination with members of the National Army
and which is alleged to have taken control of their vehicles and
merchandise. There has been
no news as to their whereabouts since that time.
The petitioners state that the family members of the alleged
victims reported the occurrence to the authorities immediately.
Nonetheless, neither the Bárbula Battalion of the Army nor the
Police at Puerto Boyacá or Puerto Araujo took any action to determine
the whereabouts of the 17 merchants allegedly disappeared.
As a result, in subsequent days the victims' families organized
several search parties. The
groups that went to Puerto Araujo were allegedly intercepted near the
"El Diamante" farm, where they allegedly received death
threats from the same paramilitary group.
On October 18, 1987, Messrs. Juan Montero, the brother-in-law of
one of the disappeared merchants, and Ferney Fernández were taken by
members of the paramilitary groups in the vicinity of that farm; to
date, their whereabouts remain unknown.
In terms of the investigations in the domestic jurisdiction,
petitioners note that on October 27, 1987, the Eighth Judge of Criminal
Investigation of Cimitarra allegedly initiated an investigation into the
victims' disappearance. They
allege that despite the statements of several witnesses and other
evidence as to who was responsible for the acts and the place where the
merchants were supposedly executed and their vehicles destroyed, the
judicial authorities did not carry out the judicial inspection required
to clear up the facts and collect the victims' corpses.
They allege that the evidence points to members of the National
Army and of the above-noted paramilitary group as the persons
responsible for the disappearances of the 19 merchants.
The investigation was in the hands of the Office of the Regional
Prosecutor of Cúcuta, yet no one was called to testify.
On March 31, 1995, the Office of the Regional Prosecutor handed
down called a number of civilians to testify and issued arrest warrants.
In September 1995, the investigation was transferred to the Human
Rights Unit of the Office of the Prosecutor-General.
On April 9, 1996, Army Major Oscar de Jesús Echandía Sánchez
and Sergeant Otoniel Hernández Arciniegas were called to testify.
The sergeant was arrested and placed at the disposal of the Human
Rights Unit. On May 29,
1996, an arrest warrant was issued for him.
On June 25, 1996, it was ordered that Col. Hernando Navas Rubio
and Gen. Farouk Yanine Díaz appear to testify.
The Commander of the Army asserted a jurisdictional dispute with
the Human Rights Unit of the Office of the Prosecutor General.
On November 26, 1996, the Superior Council of the Judiciary
decided to transfer the investigation and trial of the members of the
military implicated to the military courts.
The victims' families were unable, it is argued, to appeal this
decision. On June 18, 1997,
the military judge of first instance halted the proceedings, so as to
favor the officials called to testify.
On March 17, 1998, the Superior Military Tribunal affirmed that
The petitioners have questioned the legality of the decision by
the Superior Council of the Judiciary to transfer to the military courts
the trial of the Army members called to testify in the investigation by
the Office of the Prosecutor-General.
They point out that the Colombian Constitution gives the Supreme
Court of Justice jurisdiction in trials of Generals and Admirals of the
Armed Forces and National Police once they have been indicted by the
Office of the Prosecutor General. They
consider that former Army Gen. Farouk Yanine Díaz, implicated in the
proceedings for having planned the forced disappearance and
extrajudicial execution, had to be tried by the Supreme Court of
Justice, since the crimes of which he was accused had allegedly been
committed when he was an Army general.
They also allege that all the other members of the Army
implicated in the trial by the Office of the Prosecutor General are
retired from the military, and, therefore, under the Constitution, may
only be investigated and tried by regular courts.
They allege that the accused should have been tried in the
regular courts, with the Prosecutor-General as accuser and the Supreme
Court of Justice sitting in judgment.
They consider, therefore, that the decision of the Judicial
Council to transfer the case to the military courts violates domestic
In summary, petitioners allege that domestic remedies have not
been effective in clarifying the facts and in bringing to trial and
punishing the persons responsible.
They consider that the State has failed to comply with its duty
to judicially investigate the forced disappearance and extrajudicial
execution of the victims pursuant to the standards of the Convention.
They allege that the nine-year investigation of the crimes
committed has extended beyond a reasonable time without the persons
responsible being punished. They
allege that in this case, by transferring the investigation and trial of
the retired military officers allegedly involved to the military courts,
the State has denied the victims and their families the right to an
impartial and independent trial and the right to judicial protection,
thus they consider that domestic remedies have not been effective to
redress the alleged violations.
Position of the State
The State partially questioned the facts as presented by the
petitioners. In the hearing
held on October 6, 1998, the State argued that the alleged victims were
involved in contraband-related activities and that they took a detour
from their route not because of the shots allegedly coming from a
military check-point, but precisely to elude the check-point.
The State has provided information on the status of the domestic
proceedings, but has refrained from expressly calling into question
compliance with the requirement to exhaust domestic remedies or
petitioners' assertions regarding the effectiveness of the remedies
pursued to clarify the case in the domestic jurisdiction.
As for trial of the officers with rank of general by the military
jurisdiction, the State alleged that this measure was justified by the
need not to delay "unnecessarily" the proceedings against the
As for the responsibility of members of the Army in the facts of
the case, the State noted that based on the judgments of the military
criminal courts, while Gen. Yanine Díaz had participated in the
formation of autodefensa
groups, he was not aware of their criminal activities.
In addition, it was alleged that at the time of the events he was
serving as Director of the School of Advanced Studies of the Army and
did not have official duties in the region.
ANALYSIS OF JURISDICTION AND ADMISSIBILITY
The Commission has prima
facie jurisdiction to examine the petition in question.
The facts alleged in the petition took place when the obligation
to respect and ensure the rights established in the Convention had
already entered into force for the Colombian State.
In terms of the alleged violation of the provisions of the
American Declaration, it should be noted that from the entry into force
of the American Convention for Colombia on July 18, 1978, the
Convention, and not the Declaration, became the applicable source of
so long as the petition refers to an alleged violation of rights that
are substantially identical in both instruments, and does not involve a
In this case, the rights allegedly violated by the Colombian
State under the Declaration are similarly protected under the
Convention, and the facts that gave rise to the petitioners' claim took
place in 1987, i.e., after the American Convention had entered into
force for Colombia. Therefore,
the Commission shall only refer to the alleged violations of the
Convention, not of the Declaration.
The Commission proceeds, then, to analyze whether the
requirements established in Articles 46 and 47 of the American
Convention have been satisfied in the instant case.
Exhaustion of domestic remedies and time requirement for filing
The Commission notes that the State has not expressly raised an
objection on grounds of failure to exhaust domestic remedies, even
though it provided information on the status of domestic proceedings.
Petitioners, for their part, have alleged that the investigation
that the State should have undertaken on its own initiative for the
purpose of clarifying the disappearances, and to try and punish the
persons responsible, has been prolonged for an unreasonable time, has
not been effective, and has generated impunity.
They request, therefore, that the case be declared admissible
under Article 46(2) of the American Convention, which provides that the
prior exhaustion requirement and the six-month rule on filing of
petitions do not apply when:
the domestic legislation of the state concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated;
b. the party alleging
violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them; or
c. there has been
unwarranted delay in rendering a final judgment under the aforementioned
The Commission considers that in this case the question of
exhaustion of domestic remedies is closely linked to the allegations of
fact and law regarding the alleged failure of the duty to provide access
to justice and judicial protection pursuant to Articles 8 and 25 of the
American Convention. In
this respect, one should recall that the Inter-American Court of Human
Rights has noted that:
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
Therefore, the decision on the application of the objections set
forth in Article 46(2) must be deferred to the merits stage, in which
the Commission will determine whether the investigation of the facts and
the trial of the persons responsible undertaken by the State's organs
meets the standards set forth in the American Convention.
The Commission considers that compliance with the requirement of
submitting a petition within six months of notification of the final
decision in the domestic courts is related to the availability of
adequate and effective remedies to prosecute the persons responsible for
the disappearance of the alleged victims.
Therefore, the Commission must also defer determination as to
whether the time period established in Article 46(1)(b) of the American
Convention applies in this case. In
any event, it should be noted that the State has not called into
question the timeliness of the petition's submission.
Duplication of procedures
It does not appear from the record of the case that the subject
matter of the petition is pending before any other international
procedure for settlement or that it reproduces a petition already
examined by this or another international organ.
Therefore, the Commission considers that the requirements set
forth in Articles 46(1)(c) and 47(d) of the Convention have been met.
Characterization of the facts alleged
The Commission considers that the arguments of the petitioners
relating to the alleged violation of the rights to life, physical
integrity and liberty as well as the delay in the investigation and the
failure to effectively prosecute and sanction the responsible, could
constitute a colorable claim of violation of the rights protected in
Articles 4, 5, 7 and 8 in conjunction with Article 1(1) of the American
Convention. As the claims
stated in the complaint are not manifestly groundless or out of order,
the Commission considers the requirements established in Articles 47(b)
and (c) to have been met.
The Commission considers that it has jurisdiction to examine the
claim submitted by the petitioners and that the case is, in principle,
admissible, pursuant to the requirements established at Articles
46(1)(c) and 47 of the American Convention.
Based on the arguments of fact and law set forth above, and
without prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible.
To report this decision to the Colombian State and to the
To continue to analyze the merits.
To place itself at the disposal of the parties in order to reach
a friendly settlement based on respect for the rights protected in the
American Convention and to invite the parties to set forth their views
on such a possibility; and,
To publish this decision and to include it in its Annual Report
to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., September
27, 1999. (Signed:) Robert K. Goldman, Chairman; Hélio Bicudo, First
Vice-Chairman; Claudio Grossman, Second Vice-Chairman; Jean Joseph Exumé
and Carlos Ayala Corao, Commissioners.
* Commissioner Alvaro Tirado Mejía, of Colombian nationality, did not participate in the discussion and decision on this Report, in keeping with Article 19(2)(b) of the Commission's Regulations.
The petitioners allege that the merchants were executed on the
"El Diamante" farm, owned at the time by Mr. Henry Pérez,
according to a report drawn up by the Intelligence Unit of the
Departamento Administrativo de Seguridad (DAS), May 10, 1988.
petitioners allege that the DAS report indicates that at the time of
the events the paramilitary group under the command of Henry de Jesús
Pérez, owner of "El Diamante," totally controlled the
sector that includes parts of the municipalities of Puerto Boyacá
(department of Boyacá) and Puerto Berrío (Antioquia), and enjoyed
the support of the Association of Ranchers and Farmers of the Middle
Magdalena Region (ACDEGAM: Asociación de Ganaderos y Agricultores
del Magdalena Medio), known drug-traffickers from the region, and
the military commanders of the National Army assigned to the Bárbula
Battalion, as well as the members of the National Police at Puerto
Boyacá and Puerto Berrío, among other municipalities.
On March 31, 1995, the Office of the Regional Prosecutor of Cúcuta
issued arrest warrants for the preventive detention of Nelson Lesmes
Leguiazón, Carlos Alberto Yepes Londoño, and Wilson de Jesús Pérez
Durán, who were arrested on June 5; the same decision was made with
respect to Marcelino Panesso Ocampo, who was convicted of
perpetrating the La Rochela massacre of September 5, 1995, against
Alonso de Jesús Baquero Agudelo.
On January 29, 1996, the investigation was partially closed with
respect to Nelson Lesmes Leguiazón, Carlos Alberto Yepes Londoño,
Wilson de Jesús Pérez Durán, and Marcelino Panesso Ocampo.
Jairo Iván Galvis Brochero was also called to testify.
On February 7, 1996, an arrest warrant was issued for Luis
Alberto Arrieta Morales, for the crimes of extorsive kidnapping,
aggravated homicide, and an infraction of Article 2 of Decree 1194
of 1989 (crimes of paramilitarism and paid assassination).
He was held in the maximum security prison at Itagüí.
On March 7, 1996, the investigation concluded with an
indictment of Carlos Alberto Yepes Londoño and Marcelino Panesso
Ocampo, for the crimes of extorsive kidnapping, aggravated homicide,
and an infraction of Article 2 of Decree 1194 of 1989 (crimes of
paramilitarism and paid assassination), of Nelson Lesmes Leguiazón
for the crimes of extorsive kidnapping and aggravated homicide; and
of Wilson de Jesús Pérez for violation of Article 2 of Decree 1194
of 1989 (crimes of paramilitarism and paid assassination).
On March 29, 1996, it was ordered that Waldo Patiño García
and Robinson Gutiérrez de la Cruz be called to testify.
On May 14, 1996, Oscar de Jesús Echandía Sánchez, Jairo Iván
Galvis Brochero, Waldo Patiño García, and Robinson Gutiérrez de
la Cruz were ordered to appear, and on May 25 they were declared to
be in absentia. On
August 9, 1996, it was ordered that they be arrested and held in
Judgment of the Superior Military Tribunal of March 17, 1998, p. 9.
Colombia ratified the American Convention on Human Rights on July
In issuing its pronouncement on the legal value of the American
Declaration, the Court affirmed that, in principle, for the States
Parties to the Convention, the specific source of obligations in
relation to the protection of human rights is the Convention itself.
Inter-American Court of Human Rights, Advisory Opinion
OC-10/89, Interpretation of the American Declaration of the Rights
and Duties of Man within the Framework of Article 64 of the American
Convention on Human Rights, of July 14, 1989, para. 46.
The Inter-American Commission has ruled in similar terms, see
Report 38/99, Argentina,
Annual Report of the IACHR 1998, para. 13.
The Commission has established that it has jurisdiction to examine
violations of the Declaration and the Convention so long as it is a
continuing violation of the rights protected in these instruments,
such as that caused, for example, by a denial of justice that
originates before the State in question has ratified the Convention
and continues after the expression of consent and the entry into
force of the Convention for that State.
See, e.g., Res. 26/88,
Case 10,190, Argentina, Annual Report of the IACHR 1987-1988.
I/A Court HR, Case of Velásquez
Preliminary Objections, Judgment of June 26, 1987,