Report No. 104 (2011) IACHR. Petition No. 12.336 (Colombia)

• Report Number: 104
• Petition Number: 12.336
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Respondent State: Colombia
• Alleged Victim: Elio Gelves Carrillo y otros

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REPORT No. 104/11

PETITION 12.336

ADMISSIBILITY

ELIO GELVES CARRILLO ET AL.

COLOMBIA¹

July 22, 2011

I. SUMMARY

1. On March 2, 1999 the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition submitted by Humanidad Vigente – Corporación Jurídica (hereinafter “the petitioners”) alleging responsibility on the part of the Republic of Colombia (hereinafter “the State” or “the Colombian State”) for the extrajudicial execution of Elio Gelves Carrillo, a 17-year old adolescent (hereinafter “the alleged victim”) allegedly carried out by agents of the State on May 27, 1997 in the municipality of Fortul, Arauca Department, as well as the failure to conduct an effective investigation in the ordinary jurisdiction with a view to the prosecution and punishment of those responsible.

2. The petitioners alleged that the State is responsible for violating the rights to life, personal integrity, judicial guarantees, and judicial protection enshrined in Articles 4, 5, 8, and 25 of the American Convention on Human Rights (hereinafter “the American Convention”), all consistent with the general obligation to respect and guarantee the rights established in Article 1.1 thereof. They maintained that the petition is admissible based on the exception to the exhaustion of domestic remedies in accordance with Article 46.2. a) and b) of the American Convention in that the military criminal jurisdiction does not represent a suitable venue. For its part, the State alleged that the petition is inadmissible given that the subject matter has been dully decided at the domestic level and the Commission cannot act as a fourth instance for review of established findings.

3. After examining the positions of the parties in the light of the admissibility requirements established in Articles 46 and 47 of the Convention, the Commission concludes that it is competent to hear the complaint and that the complaint is admissible based on the alleged violation of the rights enshrined in Articles 4 and 5 of the American Convention, to the detriment of the alleged victim and the alleged violation of Articles 8 and 25 thereof, to the detriment of the victim’s relatives, all as they relate to Article 1.1 of the Convention. In addition, pursuant to the principle of iura novit curia the Commission considers admissible the possible violation of Article 19 of the American Convention to the detriment of the alleged victim and Article 5, to the detriment of his relatives, all as they relate to Article 1.1 of the Convention. Accordingly, it decides to inform the parties of the report, to order its publication and include it in its Annual Report to the General Assembly of the OAS.

II. PROCESSING BY THE COMMISSION

4. The IACHR recorded the complaint under No. 12.336 and after a preliminary analysis it proceeded on October 26, 2000 to forward it to the Colombian State for its observations. On November 6, 2000 the petitioners submitted additional information that was forwarded to the State for its observations.

5. On February 9, 2001 the State submitted its response, which was forwarded to the petitioners for their observations. On March 16, 2001 the petitioners submitted their response, which was forwarded to the State for its observations. On May 23, 2001 the State asked for a 15-day extension, which was granted by the Commission. On June 6, 2001 the State submitted its response, which was forwarded to the petitioners for their observations.

6. On October 12, 2004 the Commission again asked the petitioners for information. On April 16, 2009 the Commission asked the parties for updated information. The petitioners and the State sought extensions on May 12 and 14, 2009, respectively, and these extensions were granted by the Commission.

7. The State submitted its response on June 12, 2009 and the annexes thereto on July 30, 2009; these were forwarded to the petitioners on August 17, 2010 for its information. On July 14, 2009 the petitioners submitted their response, which was forwarded to the State for its observations on August 17, 2010. The State and the petitioners asked for extensions on September 17 and September 22, 2010, respectively, which were granted by the Commission. On October 19, 2010 the State submitted its response, which was forwarded to the petitioners for their information.

III. POSITIONS OF THE PARTIES

A. Position of the petitioners

8. The petitioners allege that on the night of May 27, 1997 a group of people in civilian clothes broke into the home of the Gelves Carrillo family, forcibly removed Elio Gelves Carrillo despite the efforts of this mother, Griseldina Carrillo, to stop them, and some hours later shots were heard nearby. They state that Manuel Galves, father of the alleged victim, was also in the house and witnessed the events. They allege that the next morning the lifeless body of the alleged victim was found, in military dress and with an armband of the National Liberation Army (ELN). They state that the National Army announced on the local radio station that the alleged victim had been cut down in a confrontation with the Revolutionary Armed Forces of Colombia (FARC) and had been found with weapons in his possession.

9. They allege that the special military unit “Ure Delta 6” of the Heroes of Pisba Batallion of the National Army conducted “Operation Scorpion” in which they took the alleged victim, according to the testimony of soldiers who participated in the action and the action report.

10. In addition, they state that the alleged victim had been a member of the political organization called “Communist Youth” (JUCO) and that systematic persecution and murders of communist political activists by State agents are known in Colombia.

11. The petitioners maintain that preliminary investigation 172 was initiated with the Military Criminal Court 124 which was formally opened on May 8, 1998 with charges against six members of the National Army. They allege that in the Colombian military justice system has limited jurisdiction that is restricted to actions taken in the course of duty and military discipline. They indicate that the Colombian Constitution establishes that military justice is not part of the Judicial Branch and is run by State security forces. They allege that those who make the decisions are not judges of the Republic but rather members of the Army.

12. They maintain that based on the events Delegate Prosecutor’s Office 40 before the Criminal Judges of the Saravena Circuit (hereinafter “Delegate Prosecutor’s Office 40”) initiated preliminary investigation 1168. They state that on July 30, 1998 the Prosecutor raised the issue of a conflict of jurisdiction with the military criminal jurisdiction in that based on the evidence he concluded that Elio Gelves Carrillo was not killed in combat but was, rather, the subject of an extrajudicial execution and that since this represents a crime against humanity it should be heard in the ordinary jurisdiction. They indicate that the Superior Council of...