12
Case, Reparations, supra 15), considers it fair to award compensation for moral damages
caused to the relatives of Isidro Caballero-Delgado in the amount of US$ 20,000.00 (twenty
thousand dollars of the United States of America).
51.
The Court considers it fair to award compensation for moral damage caused by the
death of María del Carmen Santana in the amount of US$ 10,000.00 (ten thousand dollars
of the United States of America) to her nearest relative, pursuant to paragraphs 45 and
52(b) of this Judgment.
XVI
52.
The Court shall now deal with the distribution of the amounts awarded for the
various reparations and considers it fair to employ the following criteria:
a.
The reparation for material and moral damages in the case of Isidro CaballeroDelgado shall be divided as follows: one-third to his son Iván Andrés Caballero-Parra, onethird to his daughter Ingrid Carolina Caballero-Martínez, and one-third to his common-law
wife María Nodelia Parra, who shall also be reimbursed for expenses.
b.
In the case of María del Carmen Santana, the compensation for moral damages shall
be awarded to her nearest relative, as indicated in paragraphs 45 and 51 of this Judgment.
XVII
53.
As regards non-pecuniary reparations, the Commission requested reform of the
Colombian legislation on the remedy of habeas corpus and codification of the crime of
forced disappearance of persons, and that the judicial proceedings on the disappearance of
Isidro Caballero-Delgado and María del Carmen Santana should remain within the
jurisdiction of the ordinary courts and not be transferred to the military courts.
54.
On the first point, it claims that provision for the remedy of habeas corpus exists in
the 1991 Political Constitution of Colombia in exceedingly broad terms, but that Article 430
of the Criminal Code has not been brought into line with the new Constitution or with the
American Convention, insofar as it restricts judicial activity to a merely formal
ascertainment of the fact that the disappeared person is not in detention. At the public
hearing before this Court, the Agent of the Government said that the regulation on habeas
corpus was currently to be found in Law 15 of 1992; that the Constitutional Court had
declared that law to be consistent with the Political Constitution, and that the Ministry of
Justice, together with other governmental bodies, would establish a working group to
review that law. He also stated that the National Government had undertaken to enact a
law on the forced disappearance of persons.
55.
In that connection, the Court observes that in operative paragraph 3 of its Judgment
on the merits of December 8, 1995, it was ruled that Colombia had not violated Articles 2, 8
or 25 of the Convention concerning the duty to adopt measures to give effect to the rights
and freedoms ensured by the Convention, right to a fair trial and the judicial protection of
rights, so that it could not now reopen consideration of that question, which, in any event,
had been raised not in the petition, but at the Reparations Stage. At the same time,
examination of domestic legislation was not something to be undertaken at the Reparations
Stage of a proceeding, in addition to which, since in the instant case it had been impossible
to prove that the disappeared persons were being held in any of the official detention
establishments, the judicial authorities could not, in the absence of pertinent information as
to the disappeared persons' whereabouts, take any measure under the remedy of habeas