16
judge and, if applicable, punish the responsible, which entail the development of
national and international means, instruments and mechanisms to effectively
prosecute such conducts and punish the perpetrators, in order to prevent such acts
and avoid them carry on unpunished. Furthermore, the State cannot provide direct
or indirect protection to the accused of crimes humanity by means of the improper
application of legal concepts that threaten the pertinent international obligations. In
this way, the concept of extradition cannot consist, either, in a means to favor, foster
or guarantee impunity.
41.
That, according to what was informed, at least one of the former paramilitary
chiefs, who were prosecuted, has been extradited from Colombia to other State of
the area, though there will an accusation against him for several charges related to
the serious facts of this case. In fact, since the merits stage and during the whole
monitoring compliance stage, the State has mentioned the accusation against Mr.
Mancusso as one of the main achievements of the internal investigations. The Court
considers that in the decisions regarding the application of certain procedural
concepts to one person, the accusation of serious human rights violations must
prevail. The application of concepts like the extradition must not serve as a means to
favor, foster or guarantee impunity. Hence, based on the lack of agreement as to the
judicial cooperation between the States that arranged such extradition,21 it falls upon
Colombia to clarify the mechanisms, instruments and legal concepts that shall be
applied to guarantee that the extradited person will collaborate with the
investigations into the facts of the instant case, as well as, if applicable, to guarantee
the due process. The State must guarantee that the proceedings conducted outside
Colombia will not interfere or hinder the investigations into the serious violations
commited in the instant case or affect the rights of the victims recognized in the
Judgment.
*
*
*
42.
That it is necessary to note that more than 12 years have passed since the
Mapiripán massacre and more than 3 since the Tribunal delivered the Judgment. The
Court notes the work done by the Attorney General’s Office, through the Human
Rights Unit, since 30 people have been associated with the investigation, 18 have
been accused and 13 have been convicted. Some of these results were already
known by the time this Judgment was rendered, even the information related to one
of the former paramilitary chiefs.22 During the year 2008, the Court notes more
actions taken by the Attorney General's Office and orders to formally join other
persons to the criminal proceeding.
43.
That the Court notes the lack of specific actions addressed to identify and
formally join all the responsible and perpetrators of the massacre to the proceeding,
particularly, those addressed to public servants and members of the law enforcement
21
Before the question made by Judge Macaulay, the State clarified that the issue of cooperation
was a request, but not an agreement.
22
Upon confirming that, impunity is reflected in the trial and conviction in absentia of the
paramilitary who, while they hold high positions in the structures of the AUC, they have benefited from the
way the judicial system has acted, convicting them but without executing the punishment, the Tribunal
expressed in the Judgment: “the Court notes the fact communicated by the State, when it sent
information requested as evidence to facilitate adjudication, that on August 3d of [2005] an order was
issued to formally join Salvatore Mancuso Gómez to the proceeding, but the arrest warrant against him
was suspended “due to his role as representative of the Autodefensas Unidas of Colombia in the peace
process undertaken by the Government with said organization” (Cf. Case of the “Maripirán Massacre” V.
Colombia, supra nota 8, para. 240).