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REPORT
Nº 32/92 BACKGROUND:
1. On
August 11, 1989, the Inter-American Commission on Human Rights received
the following complaint:
On October 8, 1988, Mr. Martín Calderón Jurado, President of the
Asociación Nacional de Usuarios Campesinos de García Rovira, legal
counsel to the Human Rights Solidarity
and Defense Committee of García Rovira and Chairman of the El Cerrito
Town Council, was traveling on the road from El Cerrito to Chitagá when,
at the fork in the road leading to Cacota (Norte de Santander) his car was
stopped by a paramilitary group that killed him, firing fifty bullets into
his body. Also killed was Primitivo Silva, the driver of the vehicle.
Martín Calderón Jurado's political leanings were liberal. Mr. Martín Calderón Jurado and his cousin Valentín Bastos Calderón had received death threats at a human rights meeting held in Málaga on August 6 and 7, 1987; the individuals named as the authors of those threats were associated with the police and the army. There is a tape of the charges they made.
After that, Valentín Bastos Calderón was murdered.
Martín Calderón Jurado took active part in the investigation that
the Office of the Attorney General of the Nation conducted into the murder
of his cousin Valentín Bastos Calderón and as a result was again
threatened.
2. When
this petition was conveyed to the Government of Colombia on September 20,
1989, that Government, in a letter dated October 25, 1985, reported that
the information had been brought to the attention of the competent
national authorities and that the Commission would be duly informed of the
status of the investigations. 3.
Later, on May 7, 1990, the Government of Colombia reported again
that:
Notwithstanding the previous communication, I would like to inform
the Commission of the special visit that the Special Prosecutor for the
Defense of
Once information is received on the developments in the criminal
proceedings, that information will be sent to the Commission.
As Your Excellency can appreciate, the remedies under domestic law
have not been exhausted and the mechanisms provided in the criminal laws
are in full motion.
4. Corroborating
his complaint, the petitioner sent the following incriminating testimony
to the Commission which was written and signed on January 15, 1989, by Mr.
Jairo Alberto Carvajal Tarazona, the "El Cerrito" Municipal
Representative, addressed to the Attorney General of the Nation:
Lieutenant Colonel Plinio Rodríguez Villamil was in the
jurisdiction of the town of El Cerrito on the day of the murder.
He was in a grey, two door Toyota, with a short wave telephone that
he used to call Sergeant Jiménez Ruiz César Augusto with the Battalion
in the city of Pamplona. He
ordered him and Sergeant Puentes Ramírez David, from the second section
of García Rovira Battalion, to take two 9 mm. Madsen submachine guns and
their accoutrements and to use a black, four-door Toyota van, Venezuelan
license plate No. XAS-910, which was the property of INCAL, driven by
Pedro Rueda, alias Zapatoca. They
were to take the road to Chitagá and near the town of Cácota they were
to stop the vehicle of Mr. Martín Calderón Jurado and kill him and
whomever was with him.
And this was how Mr. Martín Calderón Jurado and Mr. Primitivo
Silva lost their lives.
I was able to get this information because of some unusual
circumstances that occurred the day their bodies were to be brought in and
the day of their burial, such as the meeting held in the main park in El
Cerrito by Lieutenant Colonel Plinio Rodríguez Villamil, at about seven
in the evening, at which time he said that he was going to bomb Tabeta and
Mortiño (places in this district). That
same night some ten people were taken to the jail of the National Police,
myself among them; I identified myself but they did not acknowledge
anything and we spent that night in a cell. The next day, following the burial of the murdered men, that same Colonel stood up in the main park and, for no reason ordered that those people whom he believed to be suspicious be taken to the Police Station. That was how I learned that several people who went to retrieve the body of Mr. Martín Calderón Jurado had been mistreated by that Lieutenant Colonel; and around Puno Romeritos (Páramo del Almorzadero), he made five people walk barefooted for some forty minutes. A few days later I went to the Pamplona and while there at a place called El Camellón, this Sergeant second class Puente Ramírez David was there talking about the things that he had done and, drunk as he was, I got the information that I am supplying you. 5. Commenting on the Government's response and the content of that testimony, the petitioner on September 10, 1990, states the following:
The Colombian Government states in its communication that a report
presented by the Special Prosecutor for the Defense of Human Rights in
November 1989, states that the proceedings were turned over "to the
competent judge, who appointed the Technical Corps of the Judicial Police,
a strictly investigative body, to further the investigation and clarify
the circumstances of his death and anyone who may be responsible."
In accordance with the standards on criminal procedure in effect in
Colombia, there is a period of preliminary investigation before any
criminal proceedings are instituted in those cases where there is some
doubt as to whether or not an investigation should be instituted (Article
341 et seq. of the Code of Criminal Procedure). This preliminary inquiry
is used to determine whether the matter being denounced has in fact
occurred, whether it is a punishable offense under criminal law and to
supply the evidence so essential with respect to the identity or person of
the authors or accomplices. This phase lasts for sixty days, after which the judge
hearing the proceedings must refer same to the Technical Corps of the
Judicial Police, which has up to 180 days to establish those responsible
for the punishable offense. Once
this 180 days have expired, the Judicial Police Unit must suspend the
investigation if the identity of any of the authors or accomplices has not
been established and it is to file the proceedings until they are
requested by the judge hearing the case (Articles 347, 347 bis, 348 of the
Code of Criminal Procedure).
There is not the slightest doubt that there
was sufficient evidence to pursue the investigation and sanction those
responsible well before the date on which the Office of the Special
Prosecutor for Human Rights reports that it found the only existing
proceedings in the judicial police unit. As far back as January 23, 1989, the Municipal Representative
for El Cerrito had filed a written report with the Attorney General
concerning the authorship of the crime. The representative, Jairo Alberto
Carvajal Tarazona, told the prosecutor that Lieutenant Colonel Plinio Rodríguez
Villamil ordered Sergeant David Ramírez Puente to assassinate Martín
Calderón and anyone who was with him.
Mr. Carvajal Tarazona came by this information directly, as a
result of the incident with Sergeant Puentes Ramírez when he was drunk
and because of events that occurred on the day that Dr. Calderón Jurado
was buried.
On March 3, 1989, the Office of the Special
Prosecutor for the Military Forces ordered that the corresponding
investigation be launched, based on the complaint filed by the
representative of El Cerrito; thus far, that investigation has not
produced any results in terms of identifying and disciplining those
responsible for the crime.
For all of the foregoing reasons, we are
requesting that the Commission, at its next session, declare Colombia to
be responsible for the extrajudicial execution of Martín Calderón Jurado.
6.
When the petitioner's observations were sent to the Government on
October 24, 1990, they replied on December 18, 1990:
In this regard, I would like to inform Your
Excellency that on November 27, 1990, the National Bureau of Criminal
Investigation reported that the preliminary investigation into the death
of Martín Calderón Jurado is at the Preliminary Investigation Unit of
the city of Pamplona. During
the course of this investigation, work order No. 152 CTPJ-ULP was issued,
but with no results.
The National Bureau of Criminal Investigation
further stated that at the present time work order No. 784-CTPJ-ULP is
being processed, the purpose of which is to establish the identity of the
authors of the crime.
The National Bureau reports that as soon as
the findings of that work order arrive, they will be forwarded to this
Ministry.
A number of clarifications are in order with
respect to this investigation. The
crime was initially investigated by the competent criminal examining
judge, who was unable to compile the evidence needed to identify the
author or authors of the crime; that judge handed down a ruling ordering
that the proceedings be forwarded to the competent Technical Corps of the
Judicial Police.
The Office of the Attorney General of the
Nation monitors closely when proceedings are forwarded to the Technical
Corps, since the court ruling ordering that those proceedings be sent must
be reported to the agent of the Public Ministry, who may disagree and
ultimately file an appeal to have that order reversed.
Even though thus far the results have been
negative, all of the wheels of justice are in motion to discover the
author or authors of this heinous crime that took the life of Mr. Martín
Calderón Jurado.
Finally, as for the remedies under domestic
criminal law, I would like to inform Your Excellency that the officials
who have been in charge of this investigation have ordered that measures
be taken and evidence compiled, the single purpose being to shed light on
the events; because this is a preliminary investigation in Colombia, no
evidence may be made public, although the law is observed when each piece
of evidence is compiled.
7.
In response to the Government's comments, the petitioner had the
following observations, dated March 16, 1991:
In this most recent communication, the
Government of Colombia has stressed the fact that "the remedies under
domestic law are still in process," and bases that assertion on two
main points: (FIRST) On the one hand, the existence of a preliminary inquiry
which, according to the Government's reply, cannot "be made
public," and (SECOND) on the other hand, the fact that
"information is expected from the Office of the Attorney General of
the Nation and from the National Bureau of Criminal Investigation."
The statements by the National Government
here add nothing new to what it has already presented to the Commission.
The relatives of the victim have exhausted every possible domestic
remedy, as we told you on a previous occasion.
Thus far, no ruling has been handed down to identify and sanction,
either through criminal or disciplinary proceedings, anyone for the
execution of Martín Calderón Jurado, even though there is evidence,
supplied to the Commission, regarding the authorship of the crime.
Therefore, for the sake of the general principles of procedural
economy, we shall not restate arguments already made in our previous
communications but we are enclosing a copy of it.
Consequently, we repeat our request to the
effect that the Commission declare the Colombian State responsible for
this violation of human rights.
8.
That communication from the petitioner was forwarded to the
Government on June 28, 1991, which was given 30 days in which to make
whatever observations it deemed appropriate. No response was forthcoming.
9.
On August 6, 1991, the Government of Colombia sent a note
requesting another 15 days in which to reply.
10.
On August 15, 1991, the petitioner stated the following:
In reference to case 10.454, we wish to
inform the Commission that based on what we know at this time, there is no
court ruling concluding the criminal proceedings against those responsible
for the crime that was committed against the person of Mr. Martín Calderón
Jurado, even though by now two years and ten months have passed since the
day of his murder.
11.
Finally, on August 22, 1991, the Government of Colombia sent a note
to the Commission to the following effect:
I would like to present to Your Excellency a
summary of the report that the National Human Rights Unit of the National
Bureau of Criminal Investigation submitted in connection with the criminal
proceedings conducted thus far into the murder of Mr. Calderón Jurado.
The investigation was initiated by the
Municipal Bench of Cácota, Norte de Santander, which conducted the
following proceedings, among others:
a judicial inspection of the scene of the events and a sketch
thereof; inspection of the vehicle in which Mr. Calderón Jurado was
traveling; taking a deposition from the wife of Mr. Martín Calderón in
which she states that "no one had threatened him"; taking
statements from Mr. Luis Antonio Salinas Calderón, Mr. Lizandro Salinas,
neighbors and the sister of the victim.
The Municipal Bench of Chitagá was commissioned to take testimony
to compile more information with a view to ascertaining the facts.
Later, the proceedings were sent to the
Second Ambulatory Criminal Examining Judge of Pamplona, who in turn
referred them to the Preliminary Investigations Unit of the Technical
Corps of the Judicial Police. Through
work order UIP No. 152, dated January 18, 1989, this investigative body
requested the Security Administration Department (DAS) of Pamplona to take
steps to identify the murderers.
The report presented by the DAS suggests that
the murder may have been politically motivated and that the authors may be
members of guerrilla groups or even a paramilitary group with extreme
rightist leanings, since Mr. Calderón Jurado was a political activist of
the liberal party.
The evidence compiled thus far does contain
certain clues as to the intellectual and material authorship of the
murder. On the understanding
that the investigations are confidential in nature, for the obvious
reasons, as soon as new information becomes available related to the
developments of the inquiries and their findings, this Ministry will
convey that information to the Inter‑ American Commission.
12.
At its 80º session the Commission adopted Report Nº 32/91, which
was referred to the Government of Colombia so that the latter might
whatever observations it deemed pertinent within three months of the date
of transmission. ANALYSIS:
1.
On the question of admissibility:
a.
The Commission is competent to examine the subject matter of the
case in as much as it involves violations of rights stipulated in the
American Convention on Human Rights, Article 4, concerning the right to
life, and Article 25, the
right to judicial protection, as provided in Article 44 of that
Convention, to which Colombia is a state party;
b.
The petition satisfies the formal requirements for admissibility as
spelled out in the American Convention on Human Rights and the Regulations
of the Inter-American Commission on Human Rights;
c.
In the instant case, it is obvious that the petitioners have been
unable to secure effective protection from the domestic jurisdictional
agencies; those agencies have discarded the evidence available to them and
have failed to bring charges against the members of the military who were
directly named as the responsible parties; therefore, whether or not the
remedies under domestic law have been exhausted, those remedies cannot be
invoked on the Colombian Government's behalf to suspend the processing
that this Commission is giving to this case, in view of the undue delay
that the internal investigation of this process has suffered; moreover,
because the very fact that the proceedings have been in the hands of the
Technical Corps of the Judicial Police since November 1989 one is forced
to conclude that the investigation, based on the provisions of Articles
347, 347 bis and 348 of Colombia's Code of Criminal Procedure, has been
suspended by the Judicial Police;
d.
The present petition is not pending settlement in any other
procedure under an international organization and does not duplicate an
earlier petition already examined by the Commission;
2.
On the investigations conducted by the Government
of Colombia:
a.
The investigations conducted by the Colombian Government
authorities through the Office of the Attorney General of the Nation, the
Office of the Special Prosecutor for the Military Forces and the Regional
Prosecutor for Bucaramanga, based on the evidence made available to them,
all point to individuals in active military service with the Army's García
Rovira Battalion as the individuals responsible for these deaths;
3.
On other aspects of the case:
a.
The facts prompting the petition are not such that they can be
resolved by means of the friendly settlement procedure provided for in
Article 48.1.f of the Convention and in Article 45 of the Regulations of
the IACHR, and neither of the parties has requested that the Commission
use this procedure;
b.
Since the friendly settlement procedure does not apply, the
Commission must comply with the provisions of Article 50.1 of the
Convention, by drawing up its report and conclusions on the matter put to
it for consideration;
c.
In the prosecution of the instant case, all legal and regulatory
procedures set forth in the Convention and in the Regulations of the
Commission have been exhausted;
4.
Other considerations:
a.
As this case has unfolded, it has been established--and the
Colombian Government has not denied--that agents of the Colombian armed
forces participated in the murder of Martín Calderón Jurado and
Primitivo Silva, driver of the vehicle.
b.
That the Government of Colombia requested reconsideration of the
Commission's report on January 16, 1992, during the period provided for;
c.
That the Government of Colombia, while it made various observations
regarding particular factual matters contained in the Commission's
reports, did not provide any new evidence which would lead the Commission
to modify its report;
d.
That there are no new considerations presented in the Commission's
files that would lead it to any other conclusion.
THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS,
In the exercise of its authority,
1.
Concludes that the Government of Colombia has failed to comply with
its obligation to respect and guarantee Articles 4 (the right to life), 5
(the right to humane treatment), and 25 (on judicial protection), in
connection with Article 1.1, upheld in the American Convention on Human
Rights, to which Colombia is a State Party, in respect of the murder of
Mr. Martín Calderón Jurado, and Primitivo Silva, driver of the vehicle.
2.
Concludes that Colombia must pay compensatory damages to the
victim's next of kin.
3.
Recommends to the Government of Colombia that it order the
investigations of the murder of Mr. Martín Calderón Jurado and the
driver of the vehicle, Mr. Primitivo Silva, be completed and those
responsible for these heinous crimes be punished.
4.
Requests the Government of Colombia to guarantee the security and
give the necessary protection to Mr. Jairo Alberto Carvajal Tarazona,
Municipal Representative of "El Cerrito" and other witnesses to
the events who have provided their cooperation in order to clarify the
facts.
5.
Orders the publication of this report in the Annual Report to the
General Assembly, pursuant to Article 48 of the Commission's Regulations
and Article 53.1 of the Convention, inasmuch as the Government of Colombia
did not adopt measures to correct the situation denounced, within the time
period stipulated in Report Nº 32/91.
(*) Commission member Dr. Alvaro Tirado Mejía abstained from participating in the consideration and voting on this Report. |
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