Report No. 62 (2016) IACHR. Petition No. 4449-02 (Colombia)

• Year: 2016
• Petition Number: 4449-02
• Report Number: 62
• Respondent State: Colombia
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Saulo Arboleda Gómez

REPORT No. 62/16

PETITION 4449-02

REPORT ON ADMISSIBILITY

SAULO ARBOLEDA GÓMEZ

COLOMBIA

OEA/Ser.L/V/II.159

Doc. 71

December 6, 2016

Original: Spanish

Approved by the Commission at its session No. 2070 held on December 6, 2016.
159^th Regular Period of Sessions.

Cite as: IACHR, Report No. 62/16. Petition 4449-02. A.. Saulo Arboleda Gómez. Colombia. December 6,2016.

www.cidh.org

REPORT No. 62/ 16¹

PETITION 4449-02

REPORT ON ADMISSIBILITY

SAULO ARBOLEDA GÓMEZ

COLOMBIA

DECEMBER 6, 2016

I. SUMMARY

1. On November 5, 2002, the Inter-American Commission on Human Rights (hereinafter “the Commission,” “the Inter-American Commission,” or “the IACHR”) received a petition lodged by S.A.G. (hereinafter “the Petitioner” or “the alleged victim”) against the Republic of Colombia (hereinafter “Colombia” or “the S.”) alleging violation of his right to a fair trial in criminal proceedings against him.

2. According to the petitioner, he was investigated and convicted in criminal proceedings triggered in 1997 by the dissemination of illegal recordings related to the granting process for a radio broadcast station license which he oversaw in his capacity as Minister for Communications. He indicates that said audio material, obtained illegally in violation of his right to privacy, was used as evidence against him in proceedings that did not meet minimum due process requirements. He also states that, under the C. legal system, he could not appeal the conviction pronounced by the Criminal Division of the Supreme C. of Justice, which decided his case in sole instance. The alleged victim claims violation of his rights to a fair trial, protection of honor and dignity, equal treatment under the law, and judicial protection.

3. According to the S., it did not violate the petitioner’s human rights at any time since, it argues, due process and due judicial protection were provided in all legal proceedings. It also indicates that the petition was presented out of time and that the alleged victim has not yet exhausted the adequate domestic remedies available.

4. W. prejudice to the merits of the case, having examined the positions of the parties, and in accordance with the requirements of Articles 31 to 34 of the Rules of Procedure of the IACHR (hereinafter “the Rules of Procedure”) and Articles 46 and 47 of the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”), the Commission has decided to declare the petition admissible in order to examine the arguments as to alleged violation of the rights enshrined in Articles 8 (Right to a fair trial) and 25 (Right to judicial protection) of the Convention, in conjunction with Articles 1(1) and 2 thereof. H., the Commission has decided to declare the petition inadmissible with respect to the allegations of violation of the rights in Articles 11 and 24 of the American Convention. The Commission has also decided to notify the parties of this decision, to publish it, and to include it in its Annual Report to the General Assembly of the Organization of American S.s.

II. PROCESSING BY THE COMMISSION

5. The IACHR received the petition on November 5, 2002. D. the initial evaluation phase, it received additional information on J. 21, 2003; J. 22, 2004; February 28, M.4., and September 28, 2005; and M. 30, 2007. On September 20, 2013, the IACHR sent the S. copies of the relevant parts of the petition and additional information received during the initial evaluation phase, giving it three months to submit its observations, on the basis of Article 30(3) of its Rules of Procedure. The S.’s response was received on December 24, 2013, and was forwarded to the petitioner.

6. The petitioner submitted additional observations on September 23, 2013; April 28 and September 2 and 25, 2014; M. 19, A.2., May 12, and J. 8, 2015; and M. 14 and April 19, 2016. The S. presented additional observations on February 23, 2015 and J. 18, 2016. All observations were duly forwarded to the opposing party.

III. POSITIONS OF THE PARTIES

A. Position of the Petitioner

7. The petitioner indicates that, on August 17, 1997, various communications media published an “illegal recording” obtained by unknown persons of a conversation between the alleged victim, then Minister for Communications, and R.V. Alvargonzález, then Minister for Mines and Energy, about the granting of a radio station broadcast license. He states that this illegal material provided the basis for criminal proceedings against him given that, on August 20, 1997, the Office of the Attorney General opened a preliminary investigation against him on an ex officio basis. On August 21, 1998, since the petitioner and Rodrigo Villamizar were both government ministers, they were charged before the Criminal Appellate Division of the Supreme C. of Justice (hereinafter “the Criminal Division”) with the crime of unlawful interest in a public contract. S., on May 14, 1999, the Criminal Division declared the proceedings against Rodrigo Villamizar null and void because it considered him to have acted in a private rather than ministerial capacity, which meant that it did not have the special jurisdiction established in Article 235 of the Constitution.

8. On October 25, 2000, the Criminal Division sentenced the alleged victim to a principal penalty of 54 months in prison, 15 monthly legal minimum wages, and disqualification from public office for the length of his prison term. In response, as there was no possibility of appeal, the petitioner lodged a tutela action [action for protection of constitutional rights] with the Sectional Council of the J. of Cundinamarca (hereinafter “the Sectional Council”), which was denied in a judgment issued on December 1, 2000. The alleged victim lodged an appeal with the Superior Council of the J. (hereinafter “the Superior Council”), which on February 1, 2001, upheld the contested decision, thereby denying the requested protection.

9. S., in a judgment of M.6., 2002, the Constitutional C. upheld the decision of the Superior C. of the J., arguing that the recording of the telephone conversation had been barred from evidence by both authorities, the Office of the Attorney General and the Supreme C. of Justice and that the evidence on which the charge and conviction were based came not from that recording but from separate, independent sources.

10. In addition, in the context of disciplinary proceedings also initiated as a result of the illegal recordings, the alleged victim indicates that the Administrative Tribunal of Cundinamarca reversed two rulings against him that had been issued by the Office of the Inspector General. In his opinion, this voiding of administrative sanctions is further evidence of his innocence and proves that the criminal conviction against him is unjust.

11. F., the alleged victim states that he lodged three actions for review that were rejected, as described below.

1. F. action for review

12. In the context of a tutela action, the investigation proceedings against R.V. were voided by Constitutional C. judgment T-058/2006. According to the petitioner, this circumstance constituted new evidence of his innocence. A., he lodged an action for review of his conviction with the Criminal Division. H., it was rejected in a decision of December 5, 2007, which indicated that the aforesaid ruling in the tutela action did not terminate the criminal investigation or absolve R.V. of criminal responsibility but merely invalidated the proceedings so that they could be reinitiated in accordance with internal procedures.

2. S. action for review

13. The petitioner reports that, in compliance with the constitutional ruling in (a) above, the Office of the Inspector General conducted a new investigation and determined in its decision of August 21, 2009, that R.V. had not acted in a public capacity. Considering this outcome to constitute new evidence, the alleged victim lodged a second action for review with the Criminal Division. H., the request was declared inadmissible on technical grounds in orders entered M.9. and May 4, 2011.

14. It should be noted that, following the above inadmissibility order, the petitioner, who considered the Criminal Division to have violated his right to due process, lodged a tutela action with the Superior C. of the J., which denied the requested protection on February 9, 2012.

3. T. action for review

15. The petitioner reports that, on the basis of the S.’s argument in its response to the petition filed at the IACHR, which pointed to the availability of the action for review under C. law, he presented a third action for review with the Criminal Division on September 16, 2014. H., the action was declared inadmissible in an order entered May 25, 2015, which stated that the allegations concerning the criminal proceedings presented no new evidence and which also instructed him to refrain in the future from initiating additional actions for review of the same decisions.

16. Following this rejection, the petitioner filed a tutela action with the Civil and Labor Divisions of the Supreme C. of Justice, which denied his requests, confirming the rejection of the third action for review of the conviction. The alleged victim indicates that protection was denied because the Supreme C....