18
95.
The State stresses that in the context of the application of Law 975 of 2005, the seven
26
demobilized who referred to Marino López's death have been indicted by the Justice and Peace Unit of
the FGN (UJP-FGN). The victims are entitled to complete participation in these proceedings and an order
27
for reparation in integrum embracing material and moral damages, satisfaction measures, guarantees of
non-recurrence and measures of rehabilitation, is obtainable.
96.
The State alleges that despite the fact that at least five of these seven demobilized are
indicted and subject to preventive detention, the petitioners have provided no information with respect to
their participation in these criminal actions before the UJN-FGN. In addition, the State invites Mr. López
Mena's immediate family, as well as the allegedly displaced persons, to participate in the said
proceedings in accordance with its rules, and thus ensure comprehensive reparations.
97.
As regards the measures of satisfaction and guarantees of non-recurrence, the State
points out that (i) despite the fact that the contentious administrative courts are advancing in the
recognition of these types of measures, domestic judgments constitute per se a type of reparation, as the
Inter-American Court has recognized; and that (ii) however independently the guarantees of nonrecurrence may be ordered by the Conseil d'Etat, they may be represented by public policies, draft
legislation and included in the very criminal investigation.
98.
Finally, the State alleges that in the present case, the existence of the contentious
administrative remedy, the allegation by the petitioners of the State's responsibility for Marino López's
death and for the displacement of persons on the occasion of "Operation Genesis", are inconsistent with
the omission in filing of a direct compensation suit claiming for the alleged prejudice caused by the State.
The State considers that this constitutes a tacit renunciation of reparations, at least in its monetary
aspect. Therefore, based on the principle of subsidiarity, it maintains that it is not appropriate that
economic reparations are being claimed directly before the Commission.
IV.
ANALYSIS OF THE MERITS
A.
Consideration of the Evidence
99.
Before turning to an analysis of the merits, it is also appropriate for the Commission to
rule on the parties' allegations on their appraisal of the context in which the material events of the case
occurred. In particular, the petitioners have referred to the context of the armed conflict in Colombia at
the time the events occurred and the circumstances prior to February 24, 1997 and subsequent to
February 27, 1997, which they consider a framework for a systematic pattern of human rights violations.
In addition, they have mentioned the history and contextual events in describing the geographic,
historical, socio-economic and cultural situation of the area's Afro-descendant communities prior to and
during the time of the events.
100.
For its part, the State considers it important that the events are set within the historical
context without this said context generating its international responsibility. In addition, it considers that
the petitioners' contextual submissions have not been duly proved and are based upon information issued
by international organizations as a byproduct of their monitoring function and this cannot lead to a
prejudging of a contentious case. Therefore, it rejects all those contextual submissions it considers
26
Fredy Rendón Herrera, Diego Luis Hinestroza Moreno, Luis Muentes Mendoza, William Manuel Soto Salcedo, Franklin
Hernando Segura, Rubén Darío Rendón Blanquicet, and Alberto García Sevilla. Note of the Foreign Ministry, August 27, 2009,
paras. 172 and 209.
27
The State highlights as an example of the intention to make reparation in integrum the judgment given by the Justice
and Peace Chamber of the Superior Court of Bogota against the demobilized Wilson Salazar Carrascal which, after establishing the
existence of criminal responsibility, decided: “3) To sentence WILSON SALAZAR CARRASCAL, identified by national identity
document number 77.131.463 of San Martin, Cesar, also know as "El Loro, Lorenzo or Cepillo” to the main penalty of four hundred
and sixty months (460) in prison, for his responsibility in the commission of the crimes of aggravated homicide in the course of
repeated offences, extortion and material forging of public documents, crimes the FGN accused him of [..]“. It also highlights that
material and moral reparations were ordered for the victims. Note of the Foreign Ministry, August 27, 2009, para. 209.