Report No. 112 (2009) IACHR. Petition No. 1265-06 (Colombia)

• Petition Number: 1265-06
• Report Number: 112
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Respondent State: Colombia
• Alleged Victim: Milene Pérez Lozano y otros

REPORT No. 112/09 PETITION 1265-06 ADMISSIBILITY MILENE PÉREZ LOZANO ET AL. COLOMBIA November 10, 2009 I. SUMMARY 1. On November 14, 2006, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition that L.D.O.G. (hereinafter “the petitioner”) lodged against the Republic of Colombia (hereinafter “the S., “the Colombian S. or “Colombia”) alleging its responsibility for the failure to investigate the death of I.E.B.J., to prosecute and punish those responsible, and the subsequent harassment of his lifetime partner, Milene Pérez Lozano and their three children. 2. The petitioner alleged that the S. was responsible for violation of the right to juridical personality, the right to life, the right to humane treatment, the right to personal liberty, the right to privacy, the right of assembly, the right to protection of the family, the rights of the child, the right to equal protection of the law, the right to a fair trial and to judicial protection, recognized in articles 3, 4, 5, 7, 8, 11, 15, 17, 19, 24 and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), in relation to articles 1(1) and 2 thereof, and articles 3, 4, 6 and 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará”. T.S., for its part, alleged that the petitioner’s complaint was inadmissible because of the failure to comply with the rule requiring exhaustion of local remedies, set forth in Article 46(1)(a) of the American Convention, and because the petition does not state facts that tend to establish violations of the rights guaranteed by the Convention. The petitioner, for his part, alleges that the criminal investigation was suspended over eight years ago and has not been reopened since. 3. A. examining the parties’ positions and the question of compliance with the requirements stipulated in articles 46 and 47 of the American Convention, the Commission decided to declare the petition admissible with respect to the alleged violation of articles 5, 8(1), 11(2), 17(1),19 and 25 of the American Convention, in relation to the obligations established in Article 1(1) of the American Convention; and in application of the principle of iura novit curia, it decided to declare the petition admissible with respect to Article 22(1) of the Convention, also in relation to the obligations established in Article 1(1) of the American Convention, and to order publication of its decision. II PROCESSING BY THE COMMISSION 4. The IACHR registered the petition as number P1265-06. A. doing a preliminary analysis, on January 14, 2008 the Commission forwarded a copy of the relevant parts of the petition to the S., giving it two months to present information, in accordance with Article 30(2) of the Rules of Procedure. In reply, the S. requested a 30-day extension on the time period for submitting its response. The Commission acceded to its request. T.S. filed its observations on A. 28, 2008, which were then forwarded to the petitioner for his observations. The Commission received the petitioner’s observations on J. 17, 2008, and forwarded them to the S., which had one month in which to answer the petitioner’s observations. 5. In reply, the S. requested a 30-day extension to submit its observations. The Commission granted the extension. T.S. then asked for another 30-day extension for filing its observations. The Commission acceded to this request as well. T.S. submitted its observations on December 2, 2008, which were forwarded to the petitioner for his observations. The petitioner’s observations were received on December 29, 2008 and forwarded to the S., which was given one month to submit its observations. The S. responded by requesting a 30-day extension for submitting its observations. The Commission agreed to the extension and on M. 12, 2009, the S. submitted its final observations. III. THE PARTIES’ POSITIONS A. The petitioner 6. The petition states that on A. 16, 2001, I.E.B., José Alcibiades R., A.C.V.a.M.H.M.L. were together at the “Guaro, K. y P.” tavern in Bogotá when, according to press accounts, a man entered, approached the table where the four men were sitting and shot them dead. 7. The petitioner alleges that after the murder of I.E.B., his lifetime partner, M.P.L., began to be harassed by police agents, who allegedly stopped her on numerous occasions to find out whether she had instituted any legal action over her lifetime partner’s death. The petitioner alleges that the harassment forced Milene Pérez Lozano and her three children to move from Bogotá to Cartagena, the city where she was born. He alleges further that they are living in constant fear and lack the economic means to meet their basic necessities. 8. The petitioner contends that petitions were filed with the Office of the Prosecutor General of the Nation, the Director of the National Police and the A. General of the Nation to request information about any criminal proceedings and disciplinary measures being pursued in connection with the events. The petitioner observes that the information requested was supplied only by the Office of the Prosecutor General of the Nation and the National Police; no substantive response was received from the A. General’s Office. 9. The petitioner also alleges that M.P.L. filed a petition with the Presidential Agency for Social Action and International Cooperation seeking economic aid. Her petition was denied on the grounds that her circumstances did not fit the prerequisites of Law 418 of 1997, which “establishes a number of tools for community living, the efficacy of justice and other provisions.” Another reason given for denying the request was that it was not filed within the time period prescribed by law, which is one year following the date on which the events occurred. 10. The petitioner points out that the Office of Sectional Deputy Prosecutor 31, Rapid Response Unit, had instituted investigation No. 9623-562937 into the death of I.E.B.. He notes that by a resolution dated September 18, 2002, Deputy Prosecutor 31 ordered copies sent to the Juvenile Criminal Court because of false testimony and false statements made against the investigation’s principal witness to the effect that the latter had allegedly used false identification and had allegedly given testimony implicating the sole suspect in the murder of Messrs. Becerra, R., C.a.M.. The petitioner states that on May 6, 2002, Prosecutor 31 issued an order dismissing the case against the sole suspect. 11. The petitioner contends that by Memorandum No. 4005 of J. 28, 2008, Prosecutor 31 allegedly had referred the matter to the Military Criminal Justice System in order to have a criminal and disciplinary investigation done of two members of the National Police presumably involved in the case by virtue of false testimony given against the person who initially testified in the investigation into the death of I.E.B.. The petitioner alleges that preliminary inquiry No. 642, conducted in Military Criminal Examining Court 144 against two members of the National Police, culminated in a decision in which the presiding officer dismissed the case through an interlocutory decree dated M. 13, 2003. The petitioner also contends that the National and Metropolitan Police found no record of any disciplinary actions against the two members of the National Police. The petitioner states that Deputy Prosecutor 31 continued the investigation to identify those responsible, under inquiry no 635086. On J. 27, 2003, the inquiry was suspended and closed without prejudice. 12. As for compliance with the rule set forth in Article 46(1)(a) of the American Convention, which stipulates that in order for a petition to be admissible, internal remedies must be pursued and exhausted, the petitioner argues that eight years have passed since the events of this case transpired and to this day they have not been effectively investigated and the responsible parties have not been brought to justice. He further contends that the inquiry has been shelved since 2003 and that the S. has taken no steps to reopen it. 13. Summarizing, the petitioner alleges that the S. is responsible for violation of the right to life, the right to humane treatment, the right to personal liberty, the right to have one’s honor respected and dignity recognized, the right of assembly, the rights of the family, the rights of the child, and the right to equality before the law, recognized in articles 3, 4, 5, 7, 11, 15, 17, 19, and 24 of the American Convention. He alleges that the failure to conduct a judicial investigation of the facts surrounding the death of I.E.B. constitutes a violation of the right to a fair trial and the right to judicial protection, recognized in articles 8 and 25 of the American Convention. He further contends that the S. has failed to fulfill its generic obligations to ensure respect for the Convention-protected rights and to adopt domestic legislative measures, as stipulated in articles 1(1) and 2 of the Convention. F., he alleges that the S. is responsible for violation of the rights protected in articles 3, 4, 6 and 7 of the Convention of Belém do Pará. B. T.S. 14. The S. alleges that the facts recounted in the petition do not tend to establish violations of the rights recognized in the American Convention. It argues that the facts as described in the petition and uncovered in the criminal investigation reveal that I.E.B.s murder is exclusively the work of private parties, not agents of the S.. It further contends that one cannot claim a violation of the rights protected in articles 8 and 25 of the Convention based solely on the fact that the person responsible for the death of four persons...