127
venue, represented here by the Public Prosecutor’s Office of the Human Rights Unit
whose competence was challenged, insofar as they definitely did not fulfill the
constitutional functions assigned to the security forces, and these circumstances
completely deny them the guarantee of military criminal jurisdiction, for which reason
they may not be tried under military criminal justice; the file will therefore be forwarded
to said Unit of the Public Prosecutor’s Office for appropriate action.249
204. Therefore, on February 21, 2002 the High Council of the Judiciary settled the
clash of jurisdictions that had been raised, ruling that the proceedings should take
place under regular criminal jurisdiction, represented by the Human Rights Unit of
the Office of the Attorney General (supra para. 96.109). On June 28, 2002 the
Human Rights Unit annulled the decisions of the military criminal courts and the case
returned to regular courts, leaving the evidence tendered and the actions taken by
said Unit untouched (supra para. 96.110).
205. The Court notes that the first attempts for the facts that took place in
Mapiripán to be heard by military criminal courts go back to April 1999. At that time,
the Full Court of the Constitutional Court of Colombia had ruled on the scope of
competence of military criminal jurisdiction and it had stated, inter alia, that
[…] for a crime to fall under the competence of military criminal jurisdiction […] the
punishable fact must arise from exceeding powers conferred or abuse of authority in the
framework of an activity directly linked to a function that pertains directly to the armed
corps. [I]f the agent has criminal intent from the start, and then uses his position to
carry out the punishable act, the case falls under regular jurisdiction, even in those
cases where there might be an abstract relationship between the aims of the security
forces and the perpetrator’s punishable act. […T]he tie between the criminal act and the
service-related activity is broken when the crime is unusually grave, as in the case of
crimes against humanity. Under these circumstances, the case must be allocated to
regular courts, given the total contradiction between the crime and the constitutional
mandates of the security forces.250
206. The Court therefore notes that the Council of the Judiciary could have applied
this jurisprudence of the Constitutional Court from the outset, since it already existed
as precedent, and was reiterated in the aforementioned November 13, 2001
judgment of said court.
b)
Administrative-law proceedings
207. The case file before the Court shows that the next of kin of four of the victims
of the Mapiripán Massacre have initiated administrative-law proceedings for direct
reparation of the property-related and moral damages due to the facts, before the
Administrative Court of Meta and against the Ministry of Defense, National Army.
208. In this regard, the Court views in a positive light that on February 1, 2005,
the State and the next of kin of Sinaí Blanco Santamaría, Álvaro Tovar Muñoz and
José Rolan Valencia reached a full friendly settlement through administrative-law
proceedings (supra para. 96.130). The State pointed out that said judgments had led
to res judicata. Likewise, regarding the status of said proceedings when this
Judgment is issued, the Court notes that:
249
See February 21, 2002 ruling, issued by the High Council of the Judiciary (file with appendixes to
the application, appendix 55, pages 853, 855 and 856).
250
See judgment C-358 of August 5, 1997, issued by the Constitutional Court.
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