Report No. 72 (2009) IACHR. Petition No. 11.538 (Colombia)

Year2009
Petition Number11.538
Report Number72
Respondent StateColombia
Case TypeAdmissibility
CourtInter-American Comission of Human Rights
Alleged VictimHerson Javier Caro

REPORT No. 72/09

PETITION 11.538

ADMISSIBILITY

HERSON JAVIER CARO (JAVIER APACHE) AND FAMILY

COLOMBIA

August 5, 2009

I. SUMMARY

1. On September 5, 1995 the Inter-American Human Rights Commission (hereafter “the Commission”) received a petition presented by the Comisión Intercongregasional de Justicia y Paz today referred to as the Comisión Intereclesial de Justicia y Paz (herein after “the petitioners”) in which it is alleged that agents of the Republic of Colombia (herein after “the State”, “the Colombian State” or “Colombia”) are responsible for the extrajudicial execution of the youth Herson Javier Caro, known as “Javier Apache”, presumably committed by an agent of the State on November 15, 1992 in the El Castillo municipality, Medellín del Ariari, Colombia.

2. The petitioners maintain that the State was responsible for a violation of the rights to life, humane treatment, personal liberty, judicial protections, compensation, dignity and honor, and judicial guarantees as enshrined in Articles 4, 5, 7, 8, 10, 11 and 25 of the American Convention on Human Rights (herein after “the American Convention” or “the Convention”) against the alleged victim and his family, as well as the generic obligation to guarantee and respect the rights protected by the treaty, as highlighted in Article 1(1). For its part, the State alleged that the competent authorities complied with their duty to administer justice and the petitioner’s claims were inadmissible as the IACHR cannot function as a court of appeal.

3. After having analyzed the positions of the parties and compliance with the requirements as stated in Articles 46 and 47 of the American Convention, the Commission decided to rule that the case was admissible in order to examine the presumed violation of Articles 4(1), 5(1), 8(1) 19 and 25, in accordance with Article 1(1) of the American Convention. It also decided, to declare the case examining the presumed violation of Articles 7, 10 and 11 of the American Convention as inadmissible, notify the parties of the decision and order its publication in its annual report.

II PROCEDURE BEFORE THE COMMISSION

4. The IACHR registered the petition under number 11.538 and on October 5th, 1995 proceeded to transmit a copy to the pertinent organs of the State, with 90 days to respond and present information, in accordance with regulations in force at that time. On January 23, 1996, the State asked for a 30 day extension to present its observations, which was granted by the IACHR.

5. On March 1st, 1996 the State presented its answer, which was given to the petitioners on March 4th, 1996 for their observations within 45 days. On April 12, 1996 the petitioners presented their response, which was sent to the State on April 15th, with 45 days for presentation of its observations. On May 29th, 1996 the State asked for an extension in order to present its answer, which was granted. The State presented its answer on October 4th, 1996, which was sent to the petitioners for their observations. On February 17th, 1997 the State presented additional information, which was sent to the petitioners on February 27th, 1997. On March 24th, 1997 the IACHR reiterated its request for comments from the petitioners. On March 24th, 1997 the State presented additional information, which was sent to the petitioners on March 26th, 1997. On May 19th, 1997 the petitioners sent their response, which was sent to the State on May 20th, 1997. On September 17th, 1997 the State released additional information, which was given to the petitioners on September 22nd, 1997. On October 21st, 1997 the petitioners gave their response, which was sent to the State on November 4th, 1997 for their observations. On February 4th, 1998 the State gave its answer, which was sent to the petitioners on February 18th, 1998 for their observations.

6. On July 5th, 2001 the IACHR put itself at the disposition of the parties in order to find an amicable solution to the issue and asked them for updated information. On July 31st, 2001 the petitioners made explicit their conditions for an amicable solution, which were sent to the State for their observations, on August 10th, 2001. On the same date, the State asked for an extension in order to answer the communiqué of July 5th, 2001, which was granted by the Commission. On October 16th, 2001 the State indicated that in their view that budgets did not allow for an amicable solution to the issue. On April 13th, 2009 the IACHR asked for updated information from the parties in accordance with Article 30.5 of their Rules. On May 14th, 2009 the State presented its final observations.

III POSITIONS OF THE PARTIES A. Position of the petitioners

7. The petitioners indicate that Herson Javier Caro was born in San Pedro de Borbur, Boyacá Department, on November 12th, 1977 and a little while after was take to the El Castillo Municipality, in Medellín del Ariari, an area characterized by a high level of violence and confrontations between the guerrillas and the police. They indicate that in El Castillo, where the family engaged in farming, he was known as Javier Apache for his mother’s life partner, Heliodoro Apache Oyola.

8. They indicate that on November 15th, 1992, when he was 15 years old, Javier Apache was sent by his parents to sell various kilos of coffee in the Hamlet of Puerto Unión. That same day, Army Battalion 21 Vargas was setting up roadblocks, and identification control of the local population and searches in the hamlet. It is alleged that some of the soldiers wore ski-masks and bandannas to cover their faces. They allege that this situation made the boy afraid as “he rarely went to urban areas without his parents” and on seeing someone being mistreated at the roadblock, “he began to move about nervously and once he started to run he was shot in the back”. They claim that members of the army forced a detained civilian, Jose Gabriel Ocampo Gallego, to take the boy, still wounded on the ground, to the hospital in El Castillo. They indicate that at approximately 11:00 AM, only moments after receiving medical attention, Javier Apache died.

9. They indicate that the afternoon of November 15th, 1992 Javier Apache’s parents went to Medellín del Ariari and upon seeking explanations for the incident, an army officer told them “if he ran away if must be for something”. He also told them that a collection had been made for the coffin and that the funeral arrangements were taken care of- it was held on November 16th, 1992.

10. The petitioners allege that the suffering endured by Javier Apache’s parents led them to not pay enough attention to the procedures related to removal of the body and the other paperwork. They mention that the Attorney General’s Office took testimony that directly proves that the military is responsible, nevertheless, five years later, only two soldiers have been punished, and this only by 30 days suspension. They claim that due to the facts prior inquest was settled before the Attorney General of Oriente on April 1st, 1996.

11. In light of the aforementioned facts, the petitioners allege that the State violated the rights enshrined in Articles 4, 5, 7, 8, 10, 11 and 25 of the American Convention and that the events in this case remain unpunished.

B. Position of the State

12. In response to the petitioners’ claim, the State notes that on the morning of November 15, 1992 the army was setting up roadblocks, and identification control of the local population and searches in the hamlet Puerto Unión, suspected of collaborating with the guerrillas. Regarding the presumed victim it notes that “as it was one of the few instances he left his house alone, this time sent by his parents to sell some coffee, and feeling fear due to the circumstance (the roadblock) and after seeing a person be mistreated by the soldiers, he began to move about nervously from one side to the other and upon running away was shot in the back, which caused his death moments later”.

13. It notes that the procedures related to the removal of the body were enacted by the El Castillo police inspector who sent the case to Prosecutor’s Office 27 attached to the Granada section, Meta department, based on 722. It indicates that prior investigation was ordered on August 5th, 1996. It notes that the investigation was suspended in October of 1997 and attached to the preliminary investigations which were sent to Prosecutor’s Office 14 delegated before the regional judges in the city of Villavicencio. It indicates that on June 12th, 1998 the Rebellion and Terrorism Unit of the Regional Prosecutor’s Office of Oriente ordered the opening of investigation 2118 against civilian Tiberio Silva and Sergeant Pedro Guarnizo Ovalle (Commander of the second platoon, Company A) On April 30th, 1999 the Regional Prosecutor’s Office of Oriente sent the investigation to Military Criminal Justice due to the purported participation of military personnel.

14. Military Criminal Court No.30 took over the investigation within the Vargas Battalion and on August 15th, 2000 returned the matter to ordinary civilian justice after determining that the person who killed Javier Apache was a civilian (driver Tiberio Silva) and not a member of the Army. They indicate that on October 4th, 2000 the Specialized Regional Prosecutor of Villavicencio took over the investigation and established that the perpetrator of the death of Javier Apache, Mr. Tiberio Silva had died on July 13th, 1997 due to action with a “firearm” in Acacías, Meta.

15. The State indicates that on March 12th, 2001 the Prosecutor for the Tenth Division, before the specialized judges in Villavicencio received the case and on May 9th, 2001 decided to refer the matter to the Military Criminal Justice. It indicates that on July 10th, 2001 Military Criminal Justice...

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