I/A Court H.R., Case of the 19 Merchants v. Colombia. Merits, Reparations and Costs. Judgment of July 5, 2004. Series C No. 109.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2005-2-e.pdf

 

Headnotes:

 

It is a basic principle of the law on the international responsibility of the State, embodied in international human rights law, that this responsibility may arise from any act or omission of any State agent, body or power, independent of its hierarchy, which violates internationally enshrined rights. An illegal act that violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified), can lead to the international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.

 

In order to establish that a violation of the rights embodied in the Convention has occurred, it is not necessary to determine, as it is under domestic criminal law, the guilt of the perpetrators or their intention, nor is it necessary to identify individually the agents to whom the violations are attributed. It is sufficient to demonstrate that public authorities have supported or tolerated the violation of the rights established in the Convention.

 

Forced disappearance constitutes an unlawful act that gives rise to a multiple and continuing violation of a number of rights protected by the Convention; it is a crime against humanity. Forced disappearance also means that the obligation to organise the apparatus of the State in such a manner as to guarantee the rights recognised in the Convention has been disregarded.

 

Creating a threatening situation or threatening an individual with torture may, at least in some circumstances, constitute inhuman treatment.

 

The right to life plays a fundamental role in the American Convention as it is the essential for the exercise of the other rights. When the right to life is not respected, all the other rights are meaningless. States have the obligation to guarantee the creation of the conditions required in order to ensure that violations of this basic right do not occur and, in particular, the duty to prevent its agents from violating it.

 

Compliance with Article 4 ACHR, in relation to Article 1.1 ACHR, requires not only that no person be deprived of their life arbitrarily (negative obligation), but also that States adopt all appropriate measures to protect and preserve the right to life (positive obligation), under their obligation to ensure the full and free exercise of the rights of all those subject to their jurisdiction. This active protection of the right to life by the State involves not only its legislators, but all State institutions and those who must safeguard security, whether they are the police forces or the armed forces. Therefore, States must adopt all necessary measures, not only to prevent, try and punish the deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces.

 

Under democratic rule of law, military criminal jurisdiction should have a very restricted and exceptional scope and be designed to protect special juridical interests associated with the functions assigned by law to the military forces. Hence, it should only try military personnel for committing crimes or misdemeanors that, due to their nature, harm the juridical interests of the military system. When the military courts assume jurisdiction over a matter that should be heard by the ordinary courts, the right to the natural judge is violated as is, a fortiori, due process; this, in turn, is intimately linked to the right to access to justice itself.

 

The judge in charge of hearing a case must be competent, independent and impartial.

 

The State has the obligation to avoid and combat impunity, which the Court has defined as the absence of any investigation, pursuit, capture, prosecution and conviction of those responsible for the violations of rights protected by the American Convention. The State has the obligation to combat that situation with all available legal means, because impunity leads to the chronic repetition of human rights violations and to the total defenselessness of the victims and their next of kin. Only if all circumstances of the violation involved are clarified, can it be considered that the State has provided the victims and their next of kin with an effective remedy and complied with its general obligation to investigate and punish, allowing the victim's next of kin to know the truth, not only about the whereabouts of his remains, but also about what happened to the victim.

 

The purpose of international human rights law is to provide the individual with the means to protect internationally recognised human rights before the State (its bodies, agents and all those who act in its name). In the international jurisdiction, the parties and the matter in dispute are, by definition, different from those in the domestic jurisdiction.

 

The active protection of the right to life and of the other rights embodied in the American Convention is contained in the State obligation to ensure the free and full exercise of the rights of all those subject to its jurisdiction and requires that the State must adopt the necessary measures to punish the deprivation of life and other human rights violations, and also to prevent its own security forces or third parties acting with their acquiescence violating any of those rights.

 

The obligation to investigate must be carried out in a serious manner and not as a mere formality preordained to be ineffective. The investigation conducted by the State to comply with this obligation must be objective and assumed by the State as an essential legal obligation, not as a measure taken by private interests that depends upon the procedural initiative of the victim or his next of kin or upon evidence provided privately, without an effective search for the truth by public authorities.

 

Article 8.1 ACHR, together with Article 25.1 ACHR confers on the next of kin of the victims the right that the death of the latter will be investigated effectively by the State authorities; that proceedings will be filed against those responsible for these unlawful acts; and, if applicable, that the pertinent punishments will be imposed, and the losses that the said next of kin have suffered will be repaired.

 

The right to access to justice is not exhausted by the processing of domestic proceedings, but it also ensures the right of the victim or his next of kin to learn the truth about what happened, and for those responsible to be punished, in a reasonable time.

 

To consider whether the State respected the principle of reasonable time in the domestic proceedings to carry out an investigation, it is necessary to point out that the proceedings end when a final and firm judgment is delivered on the matter and that, particularly in criminal matters, the reasonable time must cover the whole proceeding, including any appeals that may be filed.

 

Three elements should be taken into account in determining whether the time in which the proceeding was conducted was reasonable:

 

a. the complexity of the case;

b. the procedural activity of the interested part, and

c. the conduct of the judicial authorities.

 

A prolonged delay may, in some cases, constitute a violation of the right to a fair trial. The State must explain and prove why it has required more time that would be reasonable, in principle, to deliver final judgment in a specific case, according to the said criteria.

 

The formal existence of remedies is not sufficient; these must be effective, in other words, they must provide results or responses to the violations of rights included in the Convention. Those remedies that, owing to the general conditions of the country or even the particular circumstances of a case, are illusory cannot be considered effective.

 

Article 25.1 ACHR incorporates the principle of the effectiveness of the procedural protection mechanisms or instruments designed to ensure those rights. States Parties have an obligation to provide effective judicial remedies to the victims of human rights violations (Article 25 ACHR), remedies that must be substantiated in accordance with the rules of due process of law (Article 8.1 ACHR), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognised by the Convention to all persons subject to their jurisdiction.

 

The right to mental and moral integrity of the direct victims' next of kin can be violated, owing to the additional suffering they have endured as a consequence of the circumstances arising from the violations perpetrated against the direct victims, and owing to the subsequent acts or omissions of the State authorities in dealing with the facts; for example, with regard to the search for the victims or their remains, and also with regard to how the latter have been treated.

 

When an unlawful act occurs, which can be attributed to a State, this gives rise immediately to its international responsibility for violating the international norm, with the consequent obligation to cause the consequences of the violation cease and to repair the damage caused.

 

Summary:

 

On 24 January 2001, the Inter-American Commission on Human Rights filed an application with the Court against the State of Colombia for the Court to decide whether the State violated Article 4 ACHR (Right to Life) and Article 7 ACHR (Right to Personal Freedom), as a result of the detention, disappearance and execution on 6 October 1987, of [19] tradesmen [...] on 18 October 1987, in the municipality of Puerto Boyacá, Department of Boyacá, in the Magdalena Medio region, by a 'paramilitary' group that operated in the municipality of Puerto Boyacá masterminded by and with the support of Colombian Army officers. The Commission also requested the Court to decide whether the State had violated Article 5 ACHR (Right to Humane Treatment), Article 8.1 ACHR (Right to a Fair Trial) and Article 25 ACHR (Judicial Protection), to the detriment of the said alleged victims and their next of kin, and also to determine whether Colombia failed to comply with the provisions of Article 1.1 ACHR (Obligation to Respect Rights) thereof, with regard to the last two of the abovementioned articles.

 

In its Judgment of 5 July 2004, the Court held that the State violated the rights to personal liberty, humane treatment and life embodied in Articles 7, 5 and 4 ACHR, in relation to Article 1.1 ACHR thereof, to the detriment of the 19 tradesmen; the rights to a fair trial and to judicial protection embodied in Articles 8.1 and 25 ACHR, in relation to Article 1.1 ACHR, to the detriment of the 19 tradesmen and their next of kin; and the right to humane treatment embodied in Article 5 ACHR, in relation to Article 1.1 ACHR, to the detriment of the next of kin of the 19 tradesmen. The Court ordered the State to investigate effectively, in a reasonable time, the facts of this case, in order to identify, prosecute and punish all the masterminds and perpetrators of the violations committed against the 19 tradesmen, for the criminal and any other effects that may arise from the investigation into the facts, and the result of this measure shall be disseminated publicly; conduct, within a reasonable time, a genuine search during which it makes every possible effort to determine with certainty what happened to the remains of the victims and, if possible, return them to their next of kin; erect a monument in memory of the victims and, in a public ceremony in the presence of the next of kin of the victims, shall place a plaque with the names of the 19 tradesmen; organise a public act to acknowledge its international responsibility for the facts of this case and to make amends to the memory of the 19 tradesmen, in the presence of the next of kin of the victims, and in which members of the highest State authorities must take part; provide, free of charge, through its specialised health institutions, the medical and psychological treatment required by the next of kin of the victims; establish the necessary conditions for the members of the family of the victim, Antonio Flórez Contreras, who are in exile, to return to Colombia, if they so wish, and shall cover the costs they incur as a result of their return; pay special attention to guaranteeing the lives, safety and security of the persons who made statements before the Court and their next of kin, and shall provide them with the necessary protection from any persons, bearing in mind the circumstances of this case; pay the total amount of US$ 55,000 for loss of income to each of the 19 victims; and pay the total amount of US$ 2,000 for the expenditure incurred by the next of kin of several tradesmen when trying to discover their whereabouts; pay the total amount of US$ 80,000 in compensation for non-pecuniary damage caused to each of the 19 victims; pay compensation for non-pecuniary damage caused to the next of kin of the victims; and pay for costs and expenses.