9
investigations and that up to this moment it has not complied with that obligation.
Likewise, in the private hearing, they pointed out that up until that moment the Public
Prosecutors’ Office had not made progress in any action seeking to determine which
State agents participated in the facts. The representatives also indicated that “what
has been stated by the Government in its report, in the sense that they [have] never
formally and within the procedure required the charging of the crime of forced
disappearance is not true,” since they had requested it on several opportunities. They
consider that there is a lack of seriousness, effectiveness, and promptness in carrying
out the investigations since no specific actions leading to determine the participation of
State agents were proven, despite being it necessary to prioritize the boost to the
investigations given the time that has gone by.
14.
That the Commission indicated that even though the State had informed of
multiple actions, it omitted providing specific information, such as for example what
arrest warrants have been withdrawn. It also mentioned that the only specific
investigation process is the request of inquiry of one person and that it had not
indicated if it was carried out. The Commission also mentioned that the State does not
make any reference whatsoever to the progress in the criminal proceedings already
started against some of the planners and perpetrators of the facts of the present case,
or the execution of the arrest warrants issued and reiterated up to that moment. It
pointed out that the State was compelled to provide suitable and relevant information,
in the sense that it shall reflect specific and effective results. During the hearing, the
Commission requested that the Court require from the State more detailed and specific
information. Further on in its observations, the Commission requested that the State
inform in a summarized manner, the investigations it is carrying out regarding this
case, in order to be able to determine if the access to justice is guaranteed.
15.
That upon issuing the Judgment,10 this Tribunal concluded that the partial
impunity and the lack of effectiveness of the criminal process in this case was reflected
in two aspects: first of all, the majority of those responsible had not been linked to the
investigations or had not been identified or indicted, when considering that around 60
men participated in the massacre. Secondly, in the trial and conviction in absence of
the paramilitaries, they had been benefited through the act of justice that convicts
them, but does not make the punishment effective.
16.
That having more than three years gone by as of the mentioned Judgment, the
Tribunal observes that there has not been any substantive progress in the
investigation, taking into account the number of people who allegedly participated in
the massacre in relation to the number of people linked to the investigation.
Additionally, the lack of specific actions addressed to identifying and linking all those
responsible and the planners of the massacre, specifically those who were public
officials and members of the police force, is clear. Even though the State argued that
this is a line of investigation, it has not provided a satisfactory explanation of the
factors that have prevented up to this moment the linking of other state agents,
despite the clear existence of elements in that sense. In what refers to the lack of
investigations into the crime of forced disappearance, it is appropriate to remember
that in those cases the State is compelled to carry out an investigation ex officio and
without delay, in a serious, impartial, and effective manner. The effective search for
the truth corresponds to the State and does not depend on the procedural initiative or
the provision of evidentiary elements by the victim or its next of kin.
10
Cf. Case of the Pueblo Bello Massacre v. Colombia. Merits, Reparations, and Costs. Judgment of
January 31, 2006. Series C No. 140, para. 183.