Report No. 108 (2021) IACHR. Petition No. 87-10 (Colombia)

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

REPORT No. 108/21

PETITION 87-10

REPORT ON ADMISSIBILITY

RODRIGO PARRA VARGAS

COLOMBIA

OEA/Ser.L/V/II

Doc. 115

3 J. 2020

Original: Spanish

Approved by the Commission electronically on J. 3, 2021.

Cite as: IACHR, R. No. 108/21, Petition 87-10. A.. R.P.V.. Colombia. J. 3, 2021.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Rodrigo Parra Vargas
:	Rodrigo Parra Vargas
Respondent S.:	Colombia
Rights invoked:	Articles 7 (personal liberty), 8 (fair trial), 11 (right to privacy), 17 (right s of the family), 19 (rights of the child), 24 (equality before the law) and 25 (judicial protection) of the American Convention on Human Rights1

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:	J. 20, 2010
N. of the petition to the S.:	N. 5, 2014
S.’s first response:	M. 25, 2015
Additional observations from the petitioner:	J. 22, 2016; J. 21, 2017, September 21, 2017, October 26, 2017, N. 16, 2017, N. 23, 2017, J.7., 2018 and May 14, 2019.
Additional observations from the S.:	N. 24, 2015

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (deposit of the instrument 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 8 (fair trial) and 25 (judicial protection) of the American Convention, in relation to its Articles 1.1
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., on December 9, 2009
Timeliness of the petition:	Y., on J. 20, 2009

V. FACTS ALLEGED

1. Rodrigo Parra Vargas. (hereinafter “the petitioner”) claims he was criminally convicted in a proceeding which did not fully prove his culpability. He also claims being denied access to justice, due to the rejection of the cassation remedy he filed against the conviction, based on an alleged untimeliness, although the remedy was filed pursuant to the deadline communicated to him by the court who heard the matter on second instance.

2. The petitioner was deprived of his liberty by virtue of an arrest warrant issued on J. 23, 2007 by the 17 Delegate Prosecutor’s Office, for his alleged responsibility in a crime of aggravated carnal access. On N. 26, 2008 the first instance judgment was issued, in which he was found responsible for the referred crime and was sentenced to 200-month imprisonment and the inhabitation to work at any public office for 20 years. He holds that the proceedings were biased against him, since no due investigation was conducted so as to clarify the facts.

3. The counselor of the petitioner appealed the condemnatory judgment, which was confirmed by the Superior Court of the Judicial District of Bogotá in a hearing held on M. 10, 2009. The petitioner holds that he did not attend such hearing because he was not transported by the penitentiary system; for this reason, the court of appeals ordered for the referred judgment to be personally notified to him in the incarceration center at which was imprisoned. On April 14, 2009 the second instance court issued a secretarial report which indicated that as of that date started the countdown of 60 common working days to file the cassation remedy; and expressly established that the deadline to file such cassation remedy expired on J. 13, 2009. The defense counsel of the petitioner filed the cassation remedy on J. 13, 2009, but the remedy was rejected by the Cassation Chamber of the Supreme Court of Justice on N. 9, 2009, based on an alleged untimeliness and with no assessment concerning merits. In the Cassation Court’s view, the court of appeals made a mistake by ordering that the petitioner be personally notified of the judgment since what law mandated was only a personal communication. T., it understood that the last notifications for purposes of calculating the filing deadline had been those given to the defender of the petitioner and to the Prosecutor’s Office at the very hearing in which the appeal was decided. The petitioner adds that he filed an appeal for reversal against the judgment to reject the cassation remedy on account of untimeliness, but that the remedy was unsuccessful.

4. The petitioner considers that the rejection of his cassation remedy with no assessment on its merits infringed his access to justice based on a mistake from the very magistrates; and that the parties had to legitimately trust in what had been notified by the court of appeals concerning the legal deadline. The petitioner highlights that the secretarial report was not manifestly contrary to the legal order since, even if the court of appeals were to have erred in ordering him to be personally notified of the judgment, such order was complied with. This is why he considers that the court of appeals acted within legal parameters when setting the date of personal notification carried out in the incarceration center as the starting point for the calculation of the deadline for the filing of the cassation remedy.

5. On its part, the S. controverts the facts exposed by the petitioner and holds that all of the evidence in the proceedings was integrally valued; considers in consequence, that the matter subject of the petition was heard and judged by domestic jurisdiction. It holds that the S. acted in accordance with the principles which lead the right to due process on criminal matters and that it complied with the structural elements which conform it: the presumption of innocence, the right to defense, public due process without delays, the right to submit evidence and the right to appeal a condemnatory judgment.

6. It also holds that the cassation remedy was filed a month past the deadline, which is why it was rejected. It explains that, according to applicable law, the time to file the remedy expired 60 working days as of the last notification of the recurred judgment. The last notification of the appeal’s judgment against which the cassation remedy was filed took place on M. 10, 2009 at the same hearing in which the appeal was decided. T., the time ended on J. 12, 2009 yet the remedy was not filed until J. 13, 2009.

7. The Cassation Chamber of the Supreme Court of Justice decided on December 9, 2009 not to reinstate the rejection for untimeliness via a duly motivated judgment in which it expressed that “if the reporting M. of the Court gave a wrong approach to the 4^th subsection of Article 169 of the procedural statute, which simply orders to communicate the prosecuted deprived of liberty of the decisions notified at hearings, this does not excuse any party to take advantage of this situation”; and that the error of the magistrate who decided the appeal did not exempt the parties since “whenever the text of the law is clear, as in this case, there is no contrary interpretation admitted”. The judgment rejects the argument that the alleged victim had the legitimate right to trust the time indicated to him on the secretarial report and it is held that “it is clear that the slip cannot generate legal effects, as it would be, in this matter, altering the rules for the calculation of times and deadlines stipulated in the law.

8. The S. holds that the petition verses on mere inconformity with the judgment of the national courts and that the petitioner does not know the subsidiary and complementary nature of the Inter-American system, since he intends to controvert before the IACHR a matter already heard, examined and judged by domestic jurisdiction. For this reason, it requests that the petition be unadmitted for being manifestly unfounded pursuant to Article 47.c of the American Convention.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

1. The Commission observes that the alleged victim has informed about the remedies he filed domestically and that the S. has not submitted observations concerning compliance of such requirement, nor the timeliness of the petition.

2. The petitioning alleged victim challenged the criminal sentence against him by means of an appeal that was rejected on M. 10, 2009 by the Superior Court of Bogotá; then filed a cassation remedy before the Cassation Chamber of the Supreme Court of Justice, which was dismissed on account of untimeliness on N. 9, 2009. F., he filed a reversal remedy against untimeliness, which was dismissed on December 9, 2009. T.S. has not raised, nor does it appear on the casefile information as to any additional unexhausted remedies which may be suitable to address the claims of the petitioner domestically. For these reasons, the IACHR concludes that the petition meets the requirements of Article 46.1(a) of the American Convention. Since the definitive decision was issued on December 9, 2009 and the petition was filed on J. 20, 2010, the Commission concludes it also meets the requirement of Article 46.1(b) of the American Convention.

VII. ANALYSIS OF COLORABLE CLAIM

3. The petitioner claims denial of justice due to the rejection of his...