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Iván Roberto Duque Gaviria, Ramón María Isaza Arango, Mauricio Alvares Segura and Jorge
Eliécer Mosquera Mosquera. Finally, this report states that “the proceedings are at the
investigative stage, having been initiated with the confession of Mr. Duque Gaviria on March
22, 2007.”
190. Based upon the evidence presented by the parties, the Court observes that the
application of the Justice and Peace Law is at the initial stage of proceedings, during which
the confessions of some of the demobilized individuals are being received. During a future
second stage, it will be determined whether the demobilized individuals who have applied
meet the eligibility requirements to accede to the benefits established by the Law. The
corresponding decisions will be adopted, inter alia, by the National Prosecutor’s Unit for
Justice and Peace and by the Superior Tribunals of the Judicial District that have been
selected to this purpose. The Court notes that the application of this special procedure adds
to the 18 years of judicial proceedings held in relation to this case.
191. Likewise, the Court notes that the representatives argued that “the Court should
have established general principles that permit a demobilization process that respects the
principles and standards of truth, justice, and reparations.” Moreover, the Commission
expressed that “it is very important that the Court establish, as it has done in other cases,
guiding principles for the process of the application of this legal framework within the
domestic courts.” The Commission suggested that these principles should include, inter alia,
“a principle of proportionality that does not benefit only the accused, but rather which
constitutes a right for the victim of grave violations of human rights.” Likewise, the
Commission “note[d] that it is important” that the Court “ratify the principle of the direct
and principal responsibility of the State to provide redress to the victims of the demobilized
groups” and that “in the investigation of grave violations of human rights it is impossible to
reconcile soft or illusory punishment, or punishments which represent the mere appearance
of justice with the American Convention.” The State, when referring to the proportionality of
the punishment, maintained that although the Court might not indicate “precisely and
mathematically what would be the minimum and maximum penalties applicable to a
particular case” it could “give general criteria for evaluation”.
192. Given that uncertainty exists with regard to the content and scope of Law 975, and
the fact that the initial special criminal proceedings are underway which could provide
juridical benefits to individuals who have been identified as having some relationship to the
events of the Rochela Massacre, and taking into account that no judicial decisions have yet
been issued in these proceedings, as well as the parties’ requests (supra para. 191), the
Court deems it important to indicate, based on its jurisprudence, some aspects of the
principles, guarantees and duties that must accompany the application of the juridical
framework of the demobilization process. Likewise, it is necessary to indicate that state
agents and authorities are obligated to guarantee that internal norms and their application
conform to the American Convention199.
193. In order for the State to satisfy its duty to adequately guarantee the range of rights
protected by the Convention, including the right to judicial recourse, and the right to know
and access the truth, the State must fulfill its duty to investigate, try, and, when
appropriate, punish and provide redress for grave violations of human rights. To achieve
this objective, the State should observe due process and guarantee the principles of
199
Cf. Case of La Cantuta, supra note 8, para. 173; Case of the Dismissed Congressional Employees (Aguado
Alfaro et al.), supra note 16, para. 128; and Case of Almonacid Arellano et al., supra note 16, para. 124.
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