I/A Court H.R., Case of Rodríguez Vera et al. (The Disappeared from the Palace of Justice) v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 14, 2014. Series C No. 287.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – On 6 November 1985 a guerrilla group known as the 19 April Movement (M19) seized the Colombian Palace of Justice, seat of the Supreme Court of Justice and the Council of State. It entered the compound in the morning firing indiscriminately and taking all those present hostage.  The Colombian Government, having decided not to negotiate, commenced a military operation to retake the Palace.  The armed forces used machine guns, grenades, rockets and explosives, as well as helicopters and tanks, during the operation. Be- tween 6 and 7 November, three fires broke out in the Palace, one of which totally destroyed the building and probably killed those who may have survived the gunfire and explosions.

 

In the aftermath, the military authorities searched, interrogated and identified the survivors and separated those they suspected of belonging to M-19 from the others. Those considered “special” or “suspects” by the authorities were transferred to military facilities where some were tortured and then forcibly disappeared. Due to the way the operation was carried out and the subsequent treatment of some of the bodies, no definitive death toll was established. The victims were cafeteria workers, visitors to the Palace of Justice (with the exception of one victim who was a member of M19) and one Auxiliary Justice of the Council of State, all of whom had allegedly survived but were subsequently either detained and tortured, forcibly disappeared and/or extra judicially executed.

 

After the events at the Palace of Justice, several investigations and proceedings were carried out before military tribunals, ordinary criminal courts, contentious-administrative tribunals, and disciplinary bodies of the Armed Forces and the National Police. Some of these were still ongoing at the time the Inter-American Court rendered its judgment.

Law

 

(a)     Preliminary objections – The respondent State raised, among others, an objection to the Inter- American Court’s jurisdiction ratione materiae. According to Colombia, the applicable law to the facts of the case was not international human rights law, but international humanitarian law as the relevant lex specialis. The Inter-American Court rejected that assertion as being inconsistent with its own case-law and a misrepresentation of the relationship between the two legal orders: it could refer to international humanitarian law when interpreting the obligations under the American Convention on Human Rights (ACHR) in order to more precisely define the scope of those obligations.

 

(b)    Partial acknowledgement of responsibility by the State – Even though Colombia recognised its international responsibility for certain facts of the case and some of the alleged violations, the Inter- American Court considered it appropriate to make a comprehensive determination of the facts and examine all the violations argued, both because of the egregious nature of the facts and the alleged violations, and to contribute to the reparation of the victims and non-repetition of similar events.

 

(c)    Substantive provisions of the ACHR

 

(i)      Articles 3 (juridical personality), 4(1) (life), 5 (humane treatment) and 7(1) (personal liberty), in relation to Article 1(1) (non-discrimination) – The Inter-American Court recalled that the disappearance of a person, because her or his whereabouts are unknown, is not the same as a forced disappearance. A forced disappearance is a violation of multiple human rights composed of three concurring elements: (a) the deprivation of liberty; (b) the direct intervention of State agents or their acquiescence; and (c) the refusal to acknowledge the detention and to reveal the fate or whereabouts of the person concerned. A forced disappearance subsists until the whereabouts of the disappeared person are discovered or their remains are reliably identified.

 

The Inter-American Court reiterated that, in the absence of direct evidence, it is legitimate to use circumstantial evidence, indications and presumptions as grounds for a judgment, provided that conclusions consistent with the facts can be inferred from them. Due to the nature of forced disappearances, which are characterised by the attempt to eliminate all trace and evidence of the fate of the victims, indicative or presumptive evidence is especially important in proving the allegations made. The Inter-American Court also stressed that in order to establish a violation of the rights enshrined in the ACHR, it is not necessary that the State’s responsibility be proved beyond any reasonable doubt.

 

Furthermore, the Inter-American Court stated that there is no bar to using indicative evidence to prove the concurrence of any of the elements of forced disappearance, including the deprivation of liberty. To this end it recalled its previous case-law[1] as well as the ECHR’s case-law[2]as examples of cases in which indicative and presumptive evidence was used to prove the deprivation of liberty that led to a person’s disappearance. In the instant case, the Inter-American Court found that, if the fact that the victims had exited the Palace of Justice alive in the custody of State agents could be sufficiently proven, this would satisfy the deprivation of liberty element.

 

After examining several indicative elements, the Inter-American Court concluded that all the circumstances that had emerged since the time of the events were consistent and led to the sole conclusion that ten out of twelve victims were forcibly disappeared. With regard to the remaining two victims, it found particular circumstances that led it to consider that they may have died during the taking and retaking of the Palace of Justice. The Inter- American Court found that the failure to determine the whereabouts of these two victims, due to a lack of due diligence by the State, did not, in itself, constitute a forced disappearance. However, the way in which the bodies of those who died were treated – burial in mass graves without respecting basic standards that would have facilitated their subsequent identification – and the ensuing failure to determine the whereabouts of the victims had entailed a violation of the obligation to ensure their right to life.

 

The Inter-American Court also concluded that a thirteenth victim, who was seen coming out of the Palace of Justice alive and in the custody of State agents who had denied his survival or detention, had survived the taking and retaking of the Palace of Justice, but was forcibly disappeared for several hours and later extrajudicially executed. The short duration of a forced disappearance did not affect its classification as such.

 

Conclusion: violation of all rights referenced above regarding eleven victims and violation of Article 4 regarding two victims (unanimously).

 

(ii)     Articles 5 (humane treatment), 7 (personal liberty) and 11 (privacy), in relation to Article 1(1) (non-discrimination) – All forms of deprivation of personal liberty should strictly respect the relevant provisions of the ACHR and domestic law, pro- vided that the latter is compatible with the ACHR.

 

If the substantive and formal aspects of domestic law are not observed when depriving a person of his or her liberty, this deprivation will be unlawful and contrary to the ACHR, in light of Article 7(2). On the other hand, the arbitrariness referred to in Article 7(3) ACHR should not be reduced to “contrary to the law”, but should be interpreted more broadly to include elements of irregularity, injustice and unpredictability. The prohibition of arbitrary detention is a non-derogable right and cannot be suspended during an internal armed conflict.

 

In the instant case, while there was no dispute regarding the detention and torture of two of the four victims, Colombia had disputed the circumstances and illegality of the detentions and allegations of torture with respect to the other two. After considering the existing circumstantial elements, it found it sufficiently proven that the two disputed victims had been detained without a court order under suspicion of belonging to or collabo- rating with the M-19, following which they were subjected to various types of physical and psycho- logical ill-treatment by military authorities.

 

The Inter-American Court concluded that the deprivation of liberty of three of the victims was not duly registered, was not executed in accordance with the established norms, was not justified by objective and specific reasons and, at the time of the events, was denied by the State. Consequently, it found their deprivation of liberty to be unlawful and arbitrary. The detention of the fourth victim was also unlawful. When arguing that a detention was made in flagrante delicto, the State had the burden of proof. In this case, Colombia had failed to provide such evidence.

 

Under the ACHR, an act constitutes torture when the ill-treatment: (a) is intentional, (b) causes severe physical or mental suffering, and (c) is perpetrated for a purpose or objective. An individual’s right to physical and mental integrity can be violated at different levels ranging from torture to other types of abuse or cruel, inhuman or degrading treatment the physical and mental after effects of which vary in intensity according to factors that are endogenous and exogenous to the person which must be analysed in each specific situation.

 

The Inter-American Court concluded that three of the victims had been subjected to torture, while the remaining victim was subjected to inhuman and degrading treatment, taking into account his own testimony on the severity of the ill-treatment. Furthermore, it found that one victim had been subjected to electric shocks on his genitals which constituted sexual violence and also entailed a violation of Article 11 of the ACHR, while certain ill-treatment suffered by another victim was aggravated due to gender-based violence that constituted violence against women.

 

Conclusion: violation (unanimously).

 

(iii)   Articles 8(1) and 25 (fair trial and judicial protection), in relation to Article 1(1)(non-discrimination) of the ACHR and Articles I(b) and XI of the Inter-American Convention on Forced Disappearances and Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture – States are under a positive obligation to investigate human rights violations, in accordance with the rules of due process of law, and to ensure that everything necessary is done to discover the truth of what happened and to prosecute and duly punish those eventually found responsible. In forced disappear- ance cases, this obligation also entails the duty to carry out all necessary measures to determine the fate of the victim and his or her whereabouts.

 

The Inter-American Court found that the investigation by the military tribunals of one of the forced disappearances and the torture of two of the victims had violated the right to an ordinary, independent and impartial judge. It also found that Colombia had failed to open an immediate and effective investigation ex officio and to carry out the necessary search activities to determine the whereabouts of the victims and had not acted with due diligence during the initial investigation procedures and, to a lesser extent, in the investigations that were currently under way. Lastly, it considered that the investigation had not been carried out within a reasonable time.

 

Conclusion: violation (unanimously).

 

(iv)    Articles 4 (life) and 5 (humane treatment) – The Inter-American Court reiterated that the obligation to ensure the rights to life and personal integrity encompasses an obligation to prevent third parties from violating the protected rights enumerated in the Convention. It found that Colombia had been aware of a real and imminent danger to the justices and employees of and visitors to the Palace of Justice, but had failed to take appropriate, sufficient and opportune measures to counter the danger, because even though it had made an assessment of the security and designed a security plan, the plan was not in operation at the time of the events, when the danger subsisted.

 

Conclusion: violation (unanimously).

 

The Inter-American Court also unanimously determined violations of Article 5 of the ACHR (humane treatment) due to the suffering experienced by the victims’ next of kin.

 

(d)     Reparations – The Inter-American Court ordered the State to (a) carry out the necessary investigations into the various violations identified; (b) conduct a thorough search to determine the whereabouts of the eleven victims whose fate was still unknown; (c) provide appropriate medical, psychological or psychiatric treatment for the victims; (d) publicise the judgment in newspapers and on radio and television; (e) carry out a public act of recognition of international responsibility; (f ) prepare a documentary of the facts of the case; and (g) pay certain sums as compensation for pecuniary and non-pecuniary damage and reimburse costs and expenses.



[1] González Medina and family members v. Dominican Republic, 27 February 2012, Series C240; and Osorio Rivera and family members v. Peru, 26 November 2013, Series C290.

[2] Khadzhialiyev and Others v. Russia, 3013/04, 6 November 2008, Information Note 113.