41
Mariela Morales Caro, Pablo Antonio Beltrán Palomino, Virgilio Hernández Serrano, Carlos
Fernando Castillo Zapata, Luis Orlando Hernández Muñoz, Yul Germán Monroy Ramírez,
Gabriel Enrique Vesga Fonseca, Benhur Iván Guasca Castro, Orlando Morales Cárdenas,
César Augusto Morales Cepeda, Arnulfo Mejía Duarte, Samuel Vargas Páez, Arturo Salgado
Garzón, Wilson Humberto Mantilla Castilla, and Manuel Libardo Díaz Navas.
141. Moreover, based on the foregoing considerations, as well as the acknowledgment of
responsibility made by the State and the grounds presented in the section on International
Responsibility (supra para. 66), the Court finds that Colombia violated the right to personal
integrity, enshrined in Article 5 of the American Convention, in relation to Article 1(1) of the
same, to the detriment of the deceased victims’ next of kin and the next of kin of surviving
victim Arturo Salgado Garzón, who are identified in the Appendix of victims of the present
Judgment which for this purpose is considered part of the Judgment.
VIII
ARTICLES 8(1) AND 25 (JUDICIAL GUARANTEES AND JUDICIAL PROTECTION)
115
IN RELATION TO ARTICLE 1(1) OF THE AMERICAN CONVENTION
142. In the years following the massacre, judicial proceedings have been held in relation
to the events of the present case. These proceedings were held in the ordinary criminal
courts, the military criminal courts, disciplinary courts, and contentious administrative
courts. The Commission argues that the State has violated Articles 8, 25 and 1(1) of the
Convention, because “to a large extent, impunity reigns” with regard to the Rochela
Massacre. The representatives concur with the Commission and add that the ineffectiveness
of the proceedings and the de facto and de jure obstacles in the determination of the truth
of the events, as well as in the corresponding investigation, prosecution and punishment of
those responsible also constitute a violation of Articles 2 and 13116 of the Convention.
143. First, the Court deems it important to emphasize that, upon partially acknowledging
its responsibility for the violation of Articles 8, 25 and 1(1) of the Convention, the State
itself accepted that the “absence of legal effectiveness” was reflected, inter alia, by the fact
that: (i) judicial proceedings have gone on for more than 17 years and some of these
proceedings have not reached a final conclusion that would allow for the whole truth of the
events to be known; (ii) not all those involved in the massacre have been punished; (iii) for
long periods there was no procedural activity, and (iv) “legal and procedural problems have
115
Article 8(1) of the Convention Americana establishes that “[e]very person has the right to a hearing, with
due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”
Article 25 of the Convention stipulates:
1.
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or
tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have been committed by persons acting in the course
of their official duties.
2.
The States Parties undertake:
(a)
To ensure that any person claiming such remedy shall have his rights determined by the competent
authority provided for by the legal system of the state;
(b)
To develop the possibilities of judicial remedy; and
(c)
To ensure that the competent authorities shall enforce such remedies when granted.
116
As for the right to know the truth, the representatives allege that “in this specific case”, Article 13 of the
American Convention has also been infringed, given that the State fails to comply with “the duty to produce [and
provide] certain relevant information” about serious human rights violations, which is necessary “in order to
prevent their repetition."
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