Report No. 182 (2020) IACHR. Petition No. 1609-10 (Colombia)

• Year: 2020
• Petition Number: 1609-10
• Report Number: 182
• Respondent State: Colombia
• Case Type: Inadmissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Guillermo Fino Serrano

REPORT No. 182/20

PETITION 1609-10

REPORT ON INADMISSIBILITY

GUILLERMO FINO SERRANO

COLOMBIA

OEA/Ser.L/V/II.

D.. 192

6 July 2020

Original: Spanish

Approved electronically by the Commission on July 6, 2020.

Cite as: IACHR, Report No. 182/20, Petition 1609-10. I.. G.F.S.. Colombia. July 6, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Claudia Ximena Fino Cantón
:	Guillermo Fino Serrano
Respondent State:	Colombia
Rights invoked:	Articles 7 (personal liberty) and 8 (right to a fair trial) of the American Convention on Human Rights 1, in relation to its article 1.1 (obligation to respect rights)

II. PROCEEDINGS BEFORE THE IACHR²

Filing of the petition:	November 6th 2010
Additional information received at the stage of initial review:	November 9th 2010
Notification of the petition to the S.:	November 29th 2016
State’s first response:	January 9th 2018
Additional observations from the petitioner:	August 13th 2018
Additional observations from the State:	April 18th 2019

III. COMPETENCE

Competence Ratione personae:	Yes
Competence Ratione loci:	Yes
Competence Ratione temporis:	Yes
Competence Ratione materiae:	Yes, American Convention (deposit of the instrument of ratification made on July 31st 1973)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	None
Exhaustion of domestic remedies or applicability of an exception to the rule:	No, in the terms of section VI
Timeliness of the petition:	N/A

V. FACTS ALLEGED

1. The petitioner party claims that Mr. G.F.S. (hereinafter, “the alleged victim” or “Mr. Fino Serrano”) was convicted on crimes of improper bribery and interest when celebrating contracts, through a criminal process that did not respect his right to defense and guarantee to an impartial and independent court.

2. S. states that on J. 8^th 2001 Mr. Fino Serano was named President of the Instituto de Seguros Sociales [Institute of Social Insurance] (hereinafter, ISS), position he held until August 27^th 2002. S. points out that on March 27^th 2004 the alleged victim filed a criminal suit stating that since October 15^th 2003, while he was in a political campaign running for the Consejo [Council] of Bogota, he started to be blackmailed via anonymous messages which demanded an amount of money in order not to disclose illicit acts he allegedly committed as President of the ISS.

3. The petitioner explains that on May 13^th 2004 the one responsible for extortions, Mr. Jesús Buriticá Restrepo, was captured in flagrancy. S. specifies that in the investigative stage such person made severe accusations against the victim, by indicating that he gave him an irregular commission equivalent to 30,000 dollars, sent by the legal representative of the multinational company Fresenius Medical Care Colombia S.A in order to accelerate an advanced payment corresponding to contract No. 110 from M. 20^th 2002, celebrated between such company and the ISS.

4. S. indicates that due to this on J. 22^nd 2004 the Fiscal General de la Nación [General Attorney of the Nation] assigned the Fiscal Segundo Delegado [Second Delegate Prosecutor] before the Tribunal Superior del Distrito Judicial [Superior Judicial District Court] of Cundinamarca to proceed with an investigation versus Mr. F.S.. S. claims that on September 17^th 2004 such authority issued an order of arrest versus the alleged victim and that on September 25^th 2004 a preventive detention measure was imposed by the crimes of improper bribery and unbecoming interest in the celebration of contracts.

5. S. says that on November 8^th 2004 Mr. Fino Serrano’s defense requested the benefit of substitution of the preventive detention measure for house arrest, but on November 23^rd 2004 such benefit was denied. S. alleges such decision was appealed, but the Prosecutor improperly denied the appeal. S. argues that on February 8^th 2005 the alleged victim filed an action for protection against such resolution, however on February 23^rd 2005 the Sala de Casación Penal de la Corte Suprema [Criminal Cassation Chamber of the Supreme Court] declared the demand inadmissible for considering that the matter raised should be settled in an ordinary process through a nullity action and not constitutionally.

6. The petitioner party indicates that on March 23^rd 2006 the Juzgado Cuarto Penal del Circuito de Bogotá [Fourth Criminal Court of the Circuit of Bogotá] sentenced the alleged victim on first instance for the crimes of improper bribery and unbecoming interest in the celebration of contracts to seventy months of imprisonment, payment of a fine and prohibition for seventy months to work and exercise rights in public office. S. specifies such decision was appealed and that on October 31^st 2007 the Tribunal Superior [Superior Court] of Armenia revoked the sentence and acquitted Mr. F.S., by considering that the proof provided did not distort the presumption of innocence of the defendant. She argues that the Fiscalía General de la Nación [General Attorney of the Nation] filed an extraordinary remedy of cassation against such resolution and on July 8^th 2009 the Casación Penal de la Corte Suprema de Justicia [Criminal Cassation Chamber of the Supreme Court] declared the action founded and confirmed the first instance condemnatory sentence. On such Chamber’s criteria, the Tribunal Superior [Superior Court] of Armenia did not properly fathom all the evidence, which clearly and consistently proved Mr. Fino Serrano’s responsibility in the crimes attributed to him.

7. She sustains that the defense of the alleged victim filed for nullity versus such decision of the Supreme Court, however on July 24^th 2009 the Sala de Casación Penal [Criminal Cassation Chamber] of such court declared the action inadmissible, since it does not proceed versus Cassation sentences. S. points out that in response to this, Mr. Fino Serrano’s representative filed an action for protection, claiming that the criminal process violated his rights to defense and to a neutral judge, since the Fiscalía General de la Nación [General Attorney of the Nation] designated partial prosecutors with no competence to investigate the reported facts, and that the magistrates who issued the cassation decision against him were disabled since they had previously adopted decisions related to his case.

8. S. specifies that on November 11^th 2009 the Sala de Casación Civil [Civil Cassation Chamber] of the Supreme Court of Justice rejected the action, indicating that the actions for protection do not correspond against decisions by the Supreme Court. S. argues that on J. 19^th 2010 the defense of Mr. Fino Serrano filed another action for protection before the Consejo Superior de la Judicatura de Cundinamarca, [Higher Council of the Cundinamarca Judiciary] contradicting once again the sentence by the Supreme Court. On February 1^st 2010 such judicial entity declared the resource inadmissible since, among other reasons, the alleged victim did not apply for the disqualification of the questioned magistrates in a timely manner neither did he question the designation of competent prosecutors for his case at the right procedural time. S. explains that such decision was appealed and that on April 14^th 2010 the Sala Disciplinaria del Consejo Superior de la Judicatura [Disciplinary Chamber of the Higher Council of the Judiciary] confirmed the inadmissibility of the action. F., on J. 7^th 2010 the Sala de Selección de la Corte Constitucional [Selection Chamber of the Constitutional Court] excluded the file from revision.

9. The petitioner party claims that the criminal process breached the alleged victim’s right to defense, since in spite the fact that on August 10^th 2004 the Prosecutor ordered to listen to him through free version sessions, such act did not take place since the prosecutor in charge of the investigation could not attend due to other duties. She argues that authorities did not reschedule to carry out such free version sessions and that on September 16^th 2004 the investigation was initiated without prior compliance of such diligence, which would call for nullity of all proceedings.

10. A., she says that the aforementioned process breached the guarantee of an impartial and independent judge. In this regard, claims that the Fiscal General de la Nación [General Prosecutor of the Nation] disregarded the competence pre-established by law 600 of 2000 by designating the F.S. Delegado [Second Delegate Attorney] before the Court of Cundinamarca to investigate the reported facts, disrespecting the fact that it was the job of the Fiscal...