Report No. 47 (2010) IACHR. Petition No. 1325-05 (Colombia)

• Report Number: 47
• Year: 2010
• Petition Number: 1325-05
• Alleged Victim: Masacre Estadero "El Aracatazzo"
• Respondent State: Colombia
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility

14

REPORT No. 47/10¹

PETITION 1325-05

ADMISSIBILITY

ESTADERO “EL ARACATAZZO” MASSACRE

COLOMBIA

March 18, 2010

I. SUMMARY

1. On November 21, 2005, the Inter-American Commission on Human Rights (hereinafter “the Commission”) received a petition presented by José Luis Viveros Abisambra and María Stella Montoya Montoya in which it was alleged that on August 12, 1995 approximately 15 members of paramilitary groups, with the acquiescence and participation of agents of the Republic of Colombia (hereinafter “the State,” “the Colombian State,” or “Colombia”), killed 18 persons including Jorge Luis Julio Cárdenas, Luis Alberto Guisao Ríos, Mélida María Jiménez Borja, Leonardo Minota Mosquera, Francisco Leonardo Panesso Castañeda, Willington de Jesús Tascón Duque, Héctor Alonso Tascón Duque, Libia Úsuga Úsuga, and Jorge Iván Zúñiga Becerra, at the Estadero “El Aracatazzo” in the El Bosque neighborhood, municipality of Chigorodó, department of Antioquia. The petition was submitted on behalf of nine victims and their next-of-kin.² It was alleged, moreover, that the State did not respond with the due judicial clarification of these facts.

2. The petitioners alleged that the State was responsible for the violation of the rights to life, judicial guarantees, and judicial protection, established in Articles 4, 8, and 25 of the American Convention on Human Rights (hereinafter the “Convention” or the “American Convention”) and Article XVIII of the American Declaration of the Rights and Duties of Man (hereinafter “American Declaration”). They allege that the State has not identified and punished the persons responsible, and that the results of the contentious-administrative proceeding are not sufficient to make reparation for the consequences. The State argued that the petitioners’ claims were inadmissible considering that notwithstanding the complexity of the matter, investigations were under way and domestic remedies existed that had produced important results, accordingly there is a failure to abide by the requirement of prior exhaustion of domestic remedies, provided for at Article 46(1)(a) of the American Convention. The petitioners invoked the exception to the prior exhaustion requirement set forth at Article 46(2)(c) of the American Convention.

3. After analyzing the parties’ positions and compliance with the requirements of Articles 46 and 47 of the American Convention, the Commission decided to declare the case admissible for the purposes of the alleged violation of Articles 4(1), 8(1), 25 and, in application of the principle of iura novit curia, Articles 2 and 5 in conjunction with Article 1(1) of the American Convention. In addition, it decided to rule it inadmissible as regards to article XVIII of the American Declaration, notify the parties of the report and order its publication.

II. PROCESSING BEFORE THE COMMISSION

4. The IACHR recorded the petition under number P1325-05 and after a preliminary analysis, on December 19, 2005 it transmitted a copy of the pertinent parts to the State, with a term of two months to submit information, pursuant to Article 30(2) of the Rules of Procedure. In response, the State requested an extension of 30 days to submit its observations, which was granted by the IACHR. On July 10, 2006, the petitioner submitted additional information, which was forwarded to the State. On January 25, 2007, the Commission reiterated its request for information to the State.

5. The State submitted its observations on May 31, 2007, and the annexes to its observations on July 2, 2007, which were transmitted to the petitioners for their observations. In response, the petitioners requested an extension, which was granted by the IACHR. On October 31, 2007 the Commission received the petitioners’ observations, which were transmitted to the State for its observations. In response, the State requested a 30-day extension to submit observations, which was granted by the IACHR. On March 31, 2008 the Commission received the response from the State, and on April 11, 2008, it received the annexes corresponding to that response. On August 19, 2008, the petitioners stated their interest in attending a hearing during the 133^rd regular period of sessions of the IACHR, which was not granted by the Commission.

6. On April 28, 2009, the Commission, in keeping with Article 30(5) of its Rules of Procedure, asked the State and the petitioners for updated information on the criminal and contentious-administrative proceedings that had unfolded in relation to the petition in question. On May 15, 2009, the petitioners submitted a brief with the information requested. On May 29, 2009, the State asked for an extension, which the Commission granted. On June 11, 2009, the Commission received a brief with the information requested without the attachments indicated, which were requested of the State. On July 30, 2009, the Commission received the annexes corresponding to said communication.

III. THE PARTIES’ POSITIONS A. The petitioners

7. By way of background, the petitioners allege that the municipality of Chigorodó, department of Antioquia, is located in the region known as Urabá³, where historically various illegal armed groups have sought to control, on occasions with the support of the Armed Forces and National Police, and landowners and businesspersons interested in bringing about the displacement of peasant farmers so as to use their lands for stock-raising, banana plantations, and African palm plantations. They indicate that in the 1990s General Rito Alejo del Río took over as Commander of the 18^th Brigade (Brigada XVIII) of the National Army, with jurisdiction in the zone, and that in that capacity that General provided support to various paramilitary groups said to have perpetrated acts of violence against the inhabitants of the zone.⁴

8. The petitioners allege that on August 12, 1995, at 9:45 pm, approximately 15 members of paramilitary groups entered the Estadero “El Aracatazzo” in the El Bosque neighborhood, municipality of Chigorodó, department of Antioquia, and killed 18 persons.⁵ They allege that the paramilitaries, who moved on foot and were bearing short- and long-range weapons, had travelled freely along the road that led to the Estadero “El Aracatazzo”, with the acquiescence of agents of the Armed Forces who were bivouacked at a checkpoint that the “Voltígeros” Infantry Battalion No. 46 of the National Army had set up along that same road, at a site known as “El Idema,” 1,500 meters from “El Aracatazzo.”

9. The petitioners allege that the Armed Forces, and specifically two of its agents, had served as accomplices in carrying out the massacre insofar as they apparently failed to take the military measures to react to the shots fired at the Estadero “El Aracatazzo” and provide assistance to the civilian population that was there. They allege that one indication of the omission by the members of the Armed Forces bivouacked at the checkpoint is the resonance test done at “El Aracatazzo” in which “… eleven shots were fired, one by one, with an AK47 rifle at exactly 10:36 pm, subsequently two shots were fired with a Galil 5.56 rifle at 10:40 pm. It [was] noted for the record that at the time of the test … at the site known as Idema one could hear the 11 detonations noted, and the two subsequent ones clearly by the persons who were there.”⁶ They also allege that the testimony of several witnesses would confirm the presence of the Armed Forces in the area near the Estadero “El Aracatazzo” and that the agents bivouacked at the checkpoint located at “El Idema” would have heard the shots.

10. The petitioners indicate that several years after the facts, the criminal investigations had been ineffective and were still open. As for the establishment of liability of state agents, the petitioners...