Report No. 99 (2020) IACHR. Petition No. 1010-09 (Colombia)

• Year: 2020
• Petition Number: 1010-09
• Report Number: 99
• Respondent State: Colombia
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Merardo Iván Vahos Arcila y Familia

REPORT No. 99/20

PETITION 1010-09

REPORT ON ADMISSIBILITY

MERARDO IVÁN VAHOS ARCILA AND FAMILY

COLOMBIA

OEA/Ser.L/V/II.

D.. 109

24 A. 2020

Original: Spanish

Approved by the Commission electronically on A. 24, 2020.

Cite as: IACHR, Report No. 99/20, Petition 1010-09. A.. Merardo Iván Vahos Arcila and family. Colombia. A. 24, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Oscar Darío Villegas Posada
:	Merardo Iván Vahos Arcila and Family
Respondent S.:	Colombia
Rights invoked:	Articles 4 (life), 5 (humane treatment), 7 (personal liberty), 8 (fair trial), 11 (privacy), 19 (rights of the child) and 25 (judicial protection), in connection with Article 2 of the American Convention on Human Rights;1 Articles I (life, liberty and personal security), XI (preservation of health and well-being) and XVIII (fair trial) of the American Declaration of the Rights and Duties of Man;2 and Article 14 (due process) of the International Covenant on Civil and Political Rights

II. PROCEEDINGS BEFORE THE IACHR³

Filing of the petition:	December 8, 2009
Additional information received at the stage of initial review:	A. 11, 2010
N. of the petition to the S.:	J. 13, 2011
S.’s first response:	October 17, 2011
Additional observations from the petitioner:	November 22, 2011; A.3., 2017; May 20, 2019
Additional observations from the S.:	A. 2, 2012
N. of the possible archiving of the petition:	M. 27, 2017
Petitioner’s response to the notification regarding the possible archiving of the petition:	A. 3, 2017
Precautionary measure granted:

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (instrument deposited on J. 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 4 (life), 5 (humane treatment), 8 (fair trial), and 25 (judicial protection) of the American Convention on Human Rights in connection with Articles 1.1 and 2
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., the exceptions in Articles 46.2.b and c of the ACHR are applicable
Timeliness of the petition:	Y., under Section VI

V. SUMMARY OF FACTS ALLEGED

1. The instant petition is about the alleged extrajudicial execution of Mr. M.I.V.A. (hereinafter “the alleged victim”), which took place on August 9, 2000 and the lack of an exhaustive investigation to get to bottom of the motives for his death. The petitioner argues that at the time of the events, small land-holding farmers (campesinos) and workers, as well as the alleged victim, were facing an ongoing situation of violence, because in rural areas groups operating outside the law were engaging in illegal activities of extorsion, illicit crop-growing and kidnappings; and the workers were being confused with the guerrilla force members and mistakenly becoming victims in police operations or direct victims under the phenomenon known as ‘false positives,’ that is, intentional murdering of civilians by soldiers to pass them off as rebels killed in battle.

2. The petitioner claims that on August 9, 2000, the alleged victim was on his way to work as a sugar cane cutter in the settlement (Vereda) of Bengala of the municipality of Yolombó, in the Department of Antioquia, when he came across uniformed men belonging to the special forces Rural Gaula group of Antioquia,⁴ which was moving through the area in an operation to rescue a civilian, who had been kidnapped by the guerrilla forces. He contends that the agents shot the alleged victim dead for no reason and abandoned his body on the road. He asserts that the disproportionate action caused the death of the alleged victim, who at no time acted illegally in front of the agents, but was simply walking through the scene of the events unaware. He notes that the alleged victim’s family members learned about the incidents in the afternoon, and the removal of the body was performed by the Prosecutor of the Municipality of Cisneros, who on August 10, 2000, forwarded the background information to the Sectional Prosecutor’s Office of Yolombó.

3. The petitioner claims that the S. did not conduct a thorough or diligent investigation to elucidate the motives surrounding his death, but on the contrary, the defendants consistently sought to conceal any sort of information on this score.

4. The petitioner contends that no criminal investigation was conducted into the death of the alleged victim in the ordinary jurisdiction. He asserts that the aforementioned Section Prosecutor’s Office of Yolombó did not bring the case in court, as it decided that the Military Criminal Investigating Magistrates of the Fourth Brigade of Medellin should be requested to investigate, because this was the competent jurisdiction to carry out the investigation. He notes that this military court responded on February 25, 2005, explaining that it was not competent to conduct the investigation, because the jurisdiction of Yolombó (the site where the death of the alleged victim took place) belongs to the Infantry Battalion of Bombona, headquartered in Puerto Berrío, and asserted that Puerto Berrío is the venue where the investigation proceedings should be opened. The petitioner notes that the military criminal justice system was unable to provide information about the case, on the grounds “that the case file could not be found anywhere.”

5. As for the disciplinary jurisdiction, he claims that the alleged victim’s wife filed a disciplinary complaint with the Regional Office of Oversight (Procuraduría Regional) of Antioquia on September 5, 2000, which did not take any investigatory steps, and did not issue an order to open the preliminary investigation until February 22, 2002, though as of the present date no further information is available.

6. The petitioner claims that a motion for direct reparation was filed with the administrative claims court on J. 10, 2001, in order to compensate the family members of the alleged victim, and the motion was granted by the Tenth Decision Chamber of the Administrative Claims Court of Antioquia, in a judgment of J. 24, 2007, recognizing administrative responsibility of the Ministry of Defense of the Nation, the Army and the National Police and the DAS, for the damages caused to the alleged victim and his family. In this judgment, the trial court judge noted that the abandoned body of the alleged victim presented “dirt under the fingernails, which suggests he was a person engaged in field labor, as is reinforced by the statements given in the proceeding and the Mayor and Sectional Prosecutor attest.”

7. The petitioner asserts that the National Army and the DAS filed appeals against the trial court judgment with the Council of S., for which leave was granted to appeal but no ruling has been issued on the appeal since the filing of the instant petition. T., he contends there has been unwarranted delay and, consequently, a lack of reparation.

8. For its part, the S. alleges the Commission’s lack of competence ratio materiae, with respect to the American Declaration of the Rights and Duties of Man and the International Covenant on Civil and Political Rights.

9. It argues that, in the administrative claims proceeding that is currently being heard before the Council of S., the DAS contests the petitioner’s claims, on the grounds that the facts that are the subject of the claim cannot be attributed to it. To provide a basis for this challenge, it cites a certification issued on August 9, 2000 by Major René Cadena Montenegro, commander of GAULA Group of Antioquia, which establishes that this group did not conduct operations in the sector nor did the National Army. It further argues that the National Police filed a motion for exoneration in the administrative proceeding, citing as grounds the act of a third party, because it was not members of the National Police who committed the crime, but “groups operating outside the law wearing attire of the Institution and the Army.”

10. The S. alleges that the exceptions to prior exhaustion of domestic remedies provided for in Articles 46.2.b and c are not applicable. With respect to the exception set forth in Article 46.2.b, it claims that the petitioner not only was able to gain access to the Colombian legal system, but that this system respected the procedural guarantees of the parties. A., as for the exception set forth in Article 46.2.c, the S. contended that the direct...