9
recognized that while the intervening state’s attorney shows interest in the
investigation, the State has still not complied with what the Court has ordered. They
proposed, as an additional mechanism, a special review commission to analyze and
motivate the investigation.
22.
That in the hearing, the Inter-American Commission stated its concern that
12 years have passed since the Judgment on the merits for the case was handed
down, and expressed its conviction that a coherent and good-faith interpretation of
the Orders of the Tribunal could allow the overcoming of domestic obstacles so that
the State could abide by this obligation. The Commission stated that it is understood
that obstacles of domestic law cannot be put forward as impeding compliance with
international obligations. Likewise, regarding the halting of the procedure in one of
the investigations related to this case, the Commission stated that the military
justice system is not satisfactory for bringing to trial violations of human rights like
the forced disappearances of Isidro Caballero Delgado and María del Carmen Santana
Ortiz. The Commission requested more detailed information on this aspect of the
case.
23.
That the Court acknowledges the information supplied by the State and
regrets that the clarifying of the facts and identifying of those responsible still has
not been achieved. The Inter-American Court deems it appropriate to request that in
its next report, the State report on the advances made in the investigations related
to this case. Likewise, the Tribunal finds it necessary for the State to present more
information regarding the appeal for review that is under consideration, particularly
on its viability in this case, in which the Tribunal found violation of the right to life
and personal liberty, as established in Articles 4 and 7 of the American Convention
on Human Rights, with regard to Article 1(1) of said treaty, and that, in accordance
with its case law on said violations, the State has an obligation to investigate the
facts.
24.
That the Tribunal has ruled clearly on Colombia’s obligation to investigate the
facts, and has declared that the State has not complied with that obligation and that
it remains pending compliance. In that regard, in relation with the responsibility to
investigate, the Tribunal deems it appropriate to recall that in its Order dated
November 27, 2003, it found:
That the Court, as determined by its case law, considers it inadmissible to invoke
provisions of domestic law to try and prevent the investigation and punishment of
those responsible for human rights violations. Any interpretation to the contrary would
deny the effet util of the provisions of the American Convention with regard to the
domestic law of the States Parties and would deprive the international proceeding of
one of its principal functions, because, instead of being conducive to justice, it would
foster the impunity of those responsible for such violations [...]
That judgment C-004 of 2003 of the Constitutional Court of Colombia […] finds that it
is admissible to file an action for judicial review “against the preclusion of the
investigation, the termination of the proceeding, and an acquittal in proceedings
concerning human rights violations […], provided that […] a decision of an
international body that monitors and controls human rights, formally accepted by”
Colombia has declared the State responsible for the human rights violations. The
Court deems it extremely important for Colombia to adopt all necessary measures to
clarify the facts by carrying out judicial proceedings that lead to the identification and
punishment of those responsible. The next of kin of the victim should have full access
and capacity to intervene at all stages and in all instances of these investigations, in
accordance with domestic law and the provisions of the American Convention […].