I/A Court H.R., Case of Vereda La Esperanza v. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 31, 2017. Series C No. 341.

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 - "La Esperanza" is a rural settlement in Colombia located in a geographical area of strategic and economic importance where several armed actors operated at the time of events in 1996. The case concerned the enforced miser of 12 persons and the arbitrary deprivation of life of another person by a paramilitary group with the cooperation of the Army. The Inter American Court determined State responsibility for the acquiescence of the law-enforcement officials and the support they had provided to the paramilitary group, specifically, by facilitating raids on the rural settlement. The victims of those events were perceived as sympathizers or collaborators with the "guerrilla" groups that operated in the region.Investigations were launched following the events and are still pending. Two persons who lodged complaints concerning the events subsequently disappeared in similar circumstances. Several members of the paramilitary group, who demobilized under Law 975 of 2005, have appeared before the "Justice and Peace" jurisdiction.

 

Law

 

(a) Articles 8 (1) (right to fair trial) and 25 (right to judicial protection), in conjunction with Article 1 (1) (obligation to respect and guarantee rights without discrimination) of the American Convention on Human Rights (ACHR) ) and Article III of the Inter American Convention on Forced Disappearance of Persons- The Inter-American Court emphasized the special nature of the "Justice and Peace" jurisdiction regulated by Law 975. Defendants who seek to benefit from the provision must provide a complete and truthful confession about the criminal acts committed as a member of the illegal armed group They must provide information on the factual circumstances and about all the participants in the execution of the crimes. In addition, the Court examined the length of the proceedings. It analyzed four elements: (a) the complexity of the matter; (b) the procedural activity of the interested party; (c) the conduct of the judicial authorities; and (d) the impact on the legal situation of the person involved in the proceedings. The Court determined that the length of the proceedings (in excess of 12 years) was due to the extreme complexity of the case, in the context of a massive demobilization process of members of armed groups. This process had in a significant number of judicial actions concerning thousands of victims of criminal acts that had had to be investigated simultaneously by the judicial authorities. Therefore, the Court found no violation of the judicial guarantee of a reasonable time.

 

The Court noted that prior to the year 2000 the crime of enforced disappearance was not established in law. Therefore, the investigation was carried out under the crime of homicide. The Court held that, regardless of the nomen iuris charged, the investigation was oriented to the determination of the factual circumstances of the case and some elements of the crime of enforced disappearance had been investigated. Moreover, the Criminal Cassation Chamber had later allowed the Office of the Prosecutor to reclassify the charges for some of the defendants under the concept of "flexible legality." The Court thus concluded that there was no State responsibility in this aspect.

 

The Inter-American Court considered, in order to guarantee the effectiveness of the investigation, that the State must provide all the necessary means to protect the justice operators, investigators, witnesses and relatives of the victims from harassment and threats, whose purpose is to hinder the proceedings. Therefore, in relation to the two complainants who had disappeared during the course of the proceedings, the Court found that the State had failed to adopt adequate protective measures for those participating in the proceedings.

 

The Inter-American Court also stated that the relatives of victims of serious human rights violations have the right to know the truth. In cases of enforced disappearance, the right to know the whereabouts of disappeared victims constitutes an essential component of this right. The Court held that although falling within the scope of the right of access to justice, it also constitutes an autonomous right with its violation of the different rights in the ACHR, depending on the context and particular circumstances of the case. While the Court recognized the efforts of the State to locate the whereabouts of the disappeared victims in the instant case, it was noted that 20 years after the facts the whereabouts of the victims remained unknown. Thus, bearing in mind that uncertainty about the whereabouts of their loved ones is one of the main sources of mental and moral suffering of the relatives, the State was found to be responsible for the violation of the right to know the truth.

 

Additionally, the Court stated that the need to use the rationalization mechanism of criminal action known as "prioritization" was in accordance with the mechanism established by different international entities. In addition, the Court could not act on the fourth-instance body and it was not its role to decide on the suitability of one "prioritization" mechanism established at the domestic level compared to another. Such analysis would only be appropriate when there may be notorious or flagrant breaches of the domestic legislation which violate the duty of due diligence or judicial guarantees protected by the ACHR. Such a situation was not present in the instant case as the criteria for prioritization was set out clearly, therefore, no violation was established.

 

Conclusion : no violation and violation (unanimously).

 

(b) Reparations - The Inter-American Court established that the court constituted per se a form of reparation and ordered the State to: (i) continue and conduct the ongoing investigation and criminal proceedings; (ii) conduct a thorough search to determine the whereabouts of the victims whose fate were still unknown; (iii) publish the judgment and its official summary; (iv) perform an act to acknowledge the State's international responsibility; (v) provide medical, psychological and / or psychiatric treatment to the victims that request it; (vi) erect a monument in the memory of the persons disappeared and executed;(vii) provide scholarships for public university studies for the siblings of the victims that request it; and (viii) pay compensation in respect of pecuniary and non-pecuniary damage, as well as costs and expenses.