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view of the fact that the investigations are in a preliminary stage and subject to
confidentiality of legal proceedings. Besides, the State considered that the aspects of
the investigations must be mainly discussed within the scope of the criminal
procedure and using the appropriate procedural remedies, inasmuch as the
representatives of the victims play the role of "partie civile" in the action. It also
mentioned that, unless there is an alleged due process violation, this Tribunal is not
allowed to analyze in depth and decide on the procedural actions because this is
within the scope of the domestic procedure and, in this case, of the prosecutor in
charge of the investigation who, according to the information of the court file, shall
make the appropriate legal decisions. Finally, the State based its request on the
respect for the right to due process of the accused, which includes the right not to
deal with matters that adversely affect them without their participation. Otherwise,
according to the State, the success of an objective and sound investigation may be
jeopardized, inasmuch as the accused may request the dismissal of the investigation
and may succeed.
21.
That the representatives stated that, without detriment to what was
expressed by the State, the Court should learn about and value the progress of the
domestic judicial procedures, in view of the international obligation of the State that
derives from the judgment of the Court and that the comprehensive and generic
study of the domestic decisions should not affect the right to due process of the
accused. Besides, some of the decisions, like the extradition of a former paramilitary
chief (infra Considering clauses 37 to 41) and discussions regarding the collaboration
of said people in the procedure of Justice and Peace, have been directly adopted by
the Government and outside the scope of the criminal procedure; therefore, the
representatives did not have the space or appropriate opportunity to contest them or
agree on mechanisms to ensure the victims’ rights. They could not either participate
in the discussions regarding the future collaboration of said people with the
procedure of "justice and peace" and the benefits he could get in the United States
as a result of the cooperation agreements entered into with the United States courts
and, on the contrary, the proceedings conducted in that sense have been repeatedly
turned down by the Colombian and the United States authorities.
22.
That the Commission stated that even though the obligation to investigate
into the facts and punish must be carried out within the framework of the criminal
system of the State, this does not exclude or limit the Court's powers to analyze
whether that is appropriate and effective to solve the situation of the instant case.
23.
That this Tribunal is aware of the risk implied in making public certain
information related to the internal investigations, regarding the effectiveness of the
investigation in itself as well as the people involved or interested in the investigation.
Moreover, there may be several hypothesis or situations related to the publication of
the information presented within the framework of the case, as to the material
aspect of the information and the moment or procedural stage of the case as well.
24.
That during the processing of the merits, when the State was held responsible
for alleged violations of the American Convention and other applicable treaties, in
recent cases the State has alleged the reservation of information during the stage of
investigations, in order not to present to the Court certain documentation requested
regarding domestic criminal procedures. In this case, the Tribunal deemed that the
State had to forward the documentation so required, by informing about the
reservation and the need, expediency or relevance of keeping the due confidentiality
of the information. In such cases, the Court considered that the State’s refusal to
submit the documents cannot be held to the victims' detriment, but to the State's