Report No. 63 (2021) IACHR. Petition No. 1294-11 (Colombia)

• Year: 2021
• Case Type: Admissibility
• Respondent State: Colombia
• Court: Inter-American Comission of Human Rights

REPORT No. 63/21

PETITION 1294-11

REPORT ON ADMISSIBILITY

JORGE DE JESUS CASTRO PACHECO

COLOMBIA

OEA/Ser.L/V/II

Doc. 68

17 March 2021

Original: Spanish

Approved electronically by the Commission on March 17, 2021.

Cite as: IACHR, Report No. 63/21. Petition 1294-11. A.. J. de J.C.P.. Colombia. March 17, 2021.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner	Claudia Ximena Fino Caranton
Alleged victim	J. de J.C.P.
Respondent S.	Colombia
Rights invoked	Articles 7 (personal liberty), 8 (fair trial), 24 (equal protection) and 25 (judicial protection) of the American Convention on Human Rights1, in relation to Article 1.1 thereof (obligation to respect rights)

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:	September 21, 2011
Additional information received during the initial study of the petition:	September 23, 2011
N. of the petition:	J. 26, 2017
S.’s first reply:	May 4, 2018
Additional observations by the petitioner:	August 30, 2018
Warning of potential archive:	A. 12, 2017
Response of the petitioner to the potential archive of the petition:	A. 16, 2017

III. COMPETENCE

Ratione personae:	Yes
Ratione loci:	Yes
Ratione temporis:	Yes
Ratione materiae:	Yes, American Convention (instrument of ratification deposited on July 31,1973)

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	Articles 7 (personal liberty), 8 (fair trial) and 25 (judicial protection) of the American Convention, in relation to Article 1.1 thereof (obligation to respect rights)
Exhaustion or exception to the exhaustion of domestic remedies	Yes, on March 24, 2011
Timeliness of the petition	Yes

V. ALLEGED FACTS

1. The petitioner invokes the international responsibility of Colombia for the violation of Mr. J.C.P.'s rights to personal liberty, fair trial, equal protection and judicial protection, by virtue of his criminal prosecution and conviction decided by the Supreme C. of Justice as a single-instance tribunal – i.e., with no right to appeal.

2. The petition explains that Mr. J.C. was registered for the 2006 legislative elections as part of an electoral list of candidates for the “Colombia Viva” movement. The head of this list was Mr. D.N.M.C., who was the only senator actually elected from said movement. On May 24, 2007, the 15th Specialized Prosecutor's O. of the National Counter-Terrorism Unit initiated a preliminary investigation against several persons, including Mr. J.C.P., for possible links with paramilitary armed groups. On August 10, 2007, the Criminal Decision Chamber of the Supreme C. of Justice formally indicted senator D.M., who resigned his seat in Congress in order to be prosecuted by the ordinary jurisdiction and not by the tribunal with special parliamentary jurisdiction – that is, the Supreme C. of Justice. After the arrest of Mr. M., there was a vacancy in his legislative seat, for which Mr. J.C.P., as the second in line on the list for the “Colombia Viva” political movement, was summoned by the Senate Board of Directors to serve as Senator, which he effectively did as of December 19, 2007. On February 8, 2008, the Supreme C. of Justice opened an investigation against Mr. J.C., and on February 14, 2008 it summoned him to declare. F. with said summons, on February 19, 2008, M.C. resigned from his seat and from his privilege of parliamentary jurisdiction; as a result of this, the Supreme C.'s Criminal Decision Chamber, by a ruling of February 25, 2008, decided that it was not competent to investigate him, as his case had ceased to fall under its constitutional parliamentary jurisdiction, for which reason it referred the process to the O. of the General Prosecutor of the Nation. On A. 22, 2008, the Prosecutor's O. formally began investigation against M.C. by summoning him to declare, and on May 12, 2008, the Delegate Prosecutor's Unit before the Supreme C. of Justice ordered his preventive detention, considering him allegedly responsible for the offense of aggravated conspiracy to commit crimes, and ordering his arrest; all of this took place within the framework of the so-called “para-politics scandal”. Mr. C. voluntarily appeared before the Barranquilla Prosecutor's O. on May 15, 2008 and was detained. Against the ruling of May 12, 2008, a request for reconsideration was filed with a subsidiary appeal, which were denied by the Delegate Prosecutor and the Deputy General Prosecutor of the Nation, respectively.

3. On October 24, 2008, the O. of the Delegate Prosecutor before the Supreme C. of Justice finalized the investigation, and on the following December 2, it issued an indictment against Mr. C. as the author and co-author of the interlinked offences of aggravated conspiracy to commit crimes and voter constraints. Once this decision was appealed, on A. 24, 2009, the O. of the Deputy General Prosecutor of the Nation decided to declare that the criminal action fell under the statute of limitations with respect to the crime of voter constraint, and to confirm the accusation for the crime of conspiracy to commit a crime. Once this decision became final, the case was referred to the Specialized Criminal Circuit C.s of Santa Marta. H., on May 7, 2009, at the request of the Prosecutor's O., the Criminal Decision Chamber of the Supreme C. ordered the remission of the case to the Judicial District of Bogotá, where it was assigned to the Sixth Specialized Criminal Circuit C. of this city, which asserted jurisdiction and continued with the process. On July 29, 2009, the preparatory hearing was held before said C..

4. On September 16, 2009, without there being any request in that sense by the relevant parties to the proceedings, the Sixth Specialized Criminal Circuit C. of Bogotá referred the process back to the Supreme C. of Justice, invoking the jurisprudential change that had taken place with regard to the jurisdiction of the Supreme C. to prosecute and adjudge upon former congressmen linked to the "para-politics scandal" - jurisprudential change which materialized in the Order of September 1, 2009 of the Criminal Decision Chamber of the Supreme C.. On September 28, 2009, the Criminal Decision Chamber reasserted its jurisdiction over the case against M.C., at the stage in which it then was, taking into account that the link between the attributed crime and the role of congressman had been configured through the fact that M.C. had colluded with the paramilitary groups in order to obtain a Senatorial seat. The Criminal Decision Chamber gathered certain items of evidence, and a public hearing was held which ended on A. 22, 2010. On May 12, 2010, the Supreme C. of Justice sentenced M.C. to the principal penalties of 90 months of imprisonment and the payment of a fine in the amount of 6,500 legal monthly minimum wages, as well as the accessory penalty of disqualification from the exercise of public rights and offices for the same period of time. G. that the Supreme C. ruling was issued by it acting as a court of single instance, no ordinary appeal against it was possible. On July 12, 2010, M.C. filed a constitutional writ of protection (acción de tutela) before the Civil Decision Chamber of the Supreme C. of Justice, which was rejected. In response to this rejection, M.C. filed a new constitutional writ of protection before the Sectional Council of the Judiciary of Cundinamarca on August 15, 2010, and it was denied on September 3, 2010; the first instance denial ruling was appealed, and the Superior Council of the Judiciary –Disciplinary Jurisdictional Chamber– modified it in the sense of declaring the tutela inadmissible. The process was referred to the Constitutional C. for its eventual review, and the Constitutional C. by order of March 24, 2011 decided not to select the casefile. With this, the petitioners allege that domestic legal remedies have been exhausted.

5. In his petition, M.C. raises several reasons for which he considers that his human rights under the American Convention were violated, including the following: (a) The right to be tried by a competent, independent and impartial judge or tribunal previously established by law, in the terms of Article 8.1 of the Convention, was violated, since the criminal procedural legislation previously established that M.C. had to be prosecuted and tried by the specialized judges of the ordinary jurisdiction and not by the Supreme C. of Justice, whose subsequent jurisprudential change did not enable the first-instance criminal judge to relinquish his legal jurisdiction and refer the process to the Criminal Decision Chamber, as he did; to the same extent, he alleges that the jurisprudential decisions of the Supreme C. of Justice, such as the order of September 1, 2009 in which it modified its position on its own jurisdiction over the crime of conspiracy to commit a crime in coordination with illegal paramilitary groups and its relationship with the congressmen in exercise of their functions, could not displace the attribution of competences carried out by express and specific legal provisions which preexisted the corresponding judicial decision. In short, the petition alleges that after his resignation from the Senatorial seat, M.C. had acquired a consolidated right to be prosecuted by the...