14
measures for Ramiro Osorio Cristales and Salomé Armando Gómez Hernández, after
March 9, 1987, which would constitute a violation of Article 19 of the Convention.
47. The Court notes that during the proceeding before it the State argued for the
limitation of the Court’s jurisdiction, recognizing only the violations claimed by the
Commission, considering that the violations claimed by the representatives are based
on facts which occurred prior to the recognition of the Court’s adjudicatory
jurisdiction. In that regard, the Court believes that the State is correct when it points
out that the Court cannot hear the facts of the massacre themselves, given that they
effectively are beyond the Court’s competence. However, the Court notes that the
violations claimed by the representatives are not based on the facts of the massacre
themselves, but in those which allegedly took place after March 9, 1987, date on
which the State recognized the Court’s contentious jurisdiction. Based on the
foregoing, the Court will only adjudge on those facts which allegedly took place after
the recognition of the Court’s contentious jurisdiction, or had not ceased to exist as
of that date.
48. The Court has competence to analyze the facts which refer to the alleged denial
of justice in light of the procedural obligation derived from the duty to guarantee
rights arising from Articles 4 and 5 of the Convention, in relation to Article 1(1)
thereof, given that the representatives base the alleged violations on facts that fall
within the Court’s temporary jurisdiction.
49. The Court considers that the State’s obligation to investigate arises in favor of
those entitled to the right enshrined in Article 4 (Right to Life), considered along with
Article 1(1) of the Convention, which is applicable to Article 5 (Right to Humane
Treatment) of the Convention, in this case the deadly victims of the massacre, who
were not determined alleged victims (supra para. 21) in the instant case. Therefore,
the Court will not rule on the alleged violation of those Articles, with regard to the
obligation to guarantee those rights. However, the Court will examine the alleged
violation of Article 5 (Right to Humane Treatment) of the Convention for the suffering
caused by the alleged impunity, to the detriment of the 155 alleged victims who are
next of kin of the individuals killed, as well as in relation to the additional suffering of
the two surviving children.
50.
With regard to the Court’s jurisdiction on the alleged violation of Articles 17
(Rights of the Family), 18 (Right to a Name) and 19 (Rights of the Child) of the
Convention, the Court observes that the facts on which the representatives base
those violations refer to the situation presumably suffered by the two survivors of the
massacre, for not obtaining special protection measures, and in the case of Ramiro
Osorio Cristales, for having been separated from his family and with another name.
This situation remained until both children reached legal age, and Ramiro Osorio
Cristales reunited with his biological family in 1999 and recovered his name on May
15, 2002. Therefore, the Court considers that it has jurisdiction ratione temporis to
hear this situation as of March 9, 1987, date on which the State recognized the
Court’s jurisdiction.
51.
The Court considers that the controversy in this case remains, and that it has
competence to hear the facts and alleged violations of Articles 5, 17, 18, and 19 of
the Convention. Therefore, it partially rejects the preliminary objection filed by the
State, under the terms indicated in paragraphs 44 to 50 of this Judgment.
Consequently, the Court will examine and determine the alleged violation of said
rights in chapters IX and X of the instant Judgment.