37
123. To this regard, this Tribunal has sustained that in view of every violation of
rights protected by the Convention, the duty to investigate
must be carried out seriously and not as a simple formality deemed in advance to be
unfruitful. It must have a sense and be assumed by the State as its own juridical duty
not as simple proceedings on particular interests, which depend on procedural initiative
by the victims or their relatives or the private delivering of the probative elements
without public authority looking effectively for truth.” 55
124. This same criterion has been endorsed by the Committee of Human Rights of
the United Nations on several occasions wherein it has stated that:
the Party State has the obligation to investigate the alleged violations of human rights,
in particular the forced disappearance of people and the violations of the right to life,
and to bring criminal charges, to judge, and punish the liable parties of said violations.
Said obligation is only applicable a fortiori in cases in which the active parties of these
violations have been identified. 56
125. Regarding the statement on partiality and dependence of military justice, it is
reasonable to consider that military court officials who acted in the leading process
to investigate the events in El Frontón lacked the required independence and
impartiality as stipulated in Article 8(1) of the Convention to efficiently and
exhaustively investigate and punish the liable parties.
126. As has been stipulated (supra para. 59 ñ), the courts that had knowledge of
the facts related to these events "constitute a high Body of the Armed Institutes" 57
and the military men who were members of these tribunals were, at the same time,
members of the armed forces in active duty, a requirement to be part of military
tribunals. Thus, they were unable to issue an independent and impartial judgment.
127. On the other hand, the Court states that since the date of the riot subduing in
El Frontón prison, the relatives of Nolberto Durand Ugarte and Gabriel Pablo Ugarte
Rivera ignored their fate and did not have access to an effective recourse to
investigate the facts, identify, and punish the liable parties.
128. The Court has said that "Article 8(1) of the Convention must be interpreted in
an open way so that said interpretation be endorsed both in the literal text of that
standard as well as in its essence." 58 With this interpretation, said text
also includes the right of the victims’ relatives to judicial guarantees since "every act of
forced disappearance deprives the victims of the protection of the law and causes great
suffering to them and their relatives" (Statement by the United Nations on the
Protection of Every Person against Involuntary Disappearance, Article 1(2)). 59
129.
This Tribunal has also stated that:
55
Villagrán Morales et al Case, supra note 10, para. 226; Godínez Cruz Case, supra note 9, para.
188; and Velázquez Rodríguez Case, supra note 9, para. 177.
56
United Nations, Committee of Human Rights. Arhuacos vs. Colombia, para. 8.8 August 19, 1997,
CCPR/C/60/D/612/1995; and United Nations. Committee of Human Rights. Bautista vs. Colombia, para.
8.6, November 13, 1995, CCPR/C/55/D/563/1993.
57
Executive Order No. 23201; Organic Law of Military Justice, Preliminary Title I.
58
Blake Case, supra note 10, para. 96.
59
Blake Case, supra note 10, para. 97.
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