11.
The petitioners report that on April 16, 1998, Colonel Germán Galvis,
Chief of Staff of Mobile Brigade No. 1, submitted a report in which he indicated the
following: that on December 28, 1997, Soldier Oscar Iván Tabares Toro launched a
grenade that detonated in the tent in which Lieutenant Iván Ramiro Rodríguez Piza
and Corporal Ernesto Rodríguez Rojas were sleeping, after which he fled; that the
occupants of the tent were wounded; that criminal and disciplinary investigations into
the event were opened against Soldier Oscar Iván Tabares; that they had gathered
testimony regarding the addiction of Oscar Iván Tabares Toro to narcotic substances
and his membership in the Medellín militia, which had murdered him. They add that
on August 5, 1999, Mobile Brigade No. 1 notified the mother of the alleged victim of
the judgment of “Cacique Sugamuxi” Counter-Guerrilla Battalion Command No. 20,
dated October 22, 1998, convicting Oscar Iván Tabares Toro for the crime of
aggravated homicide.
12.
They allege that, in order to collect more information on the
whereabouts of her son, Mrs. Toro went to San Juanito, where she managed to speak
with some peasants in the area who told her that they had found the remains of a
military tent with what appeared to be blood stains at the site where the Army was
camped at the time of the disappearance of her son. The petitioners allege that this
evidence was delivered to the Fiscalía General de la Nación [National Office of the
Public Prosecutor], and that on May 1, 2000, they were informed that the results of
the test to determine whether they were blood stains were negative.
13.
Based on the above-mentioned facts, the petitioners allege that the
State violated the rights to juridical personality, life, humane treatment, and personal
liberty enshrined in the American Convention, to the detriment of Oscar Iván Tabares
Toro. They further allege that the State violated the rights to a fair trial and to judicial
protection, considered in conjunction with the general obligation to respect and
guarantee the rights protected by the Convention, to the detriment of the alleged
victim and his next of kin, since the authorities have not conducted an effective and
a full investigation into the disappearance of Oscar Tabares Toro.
14. As regards the admissibility of the petition, the petitioners allege that
the exception to the rule of prior exhaustion of domestic remedies stipulated in Article
46(2)(c) of the Convention applies to this case, in view of the unwarranted delay in
resolving the case. They point out that the criminal investigation has been in the
preliminary stage since it was opened in January 1998. They believe that this
situation amounts to a denial of justice, due to the unwarranted delay, which is a
manifestation of the ineffectiveness of the criminal investigation and calls for
application of the exception to the rule of prior exhaustion of domestic remedies
stipulated in Article 46(2)(c) of the American Convention.
Position of the State
15. The State is of the opinion that the petitioners’ complaint is inadmissible
due to application of the requirement of prior exhaustion of domestic remedies set
forth in Article 46(1) of the American Convention. On this point, it indicates that
domestic proceedings to clarify the events that led to the alleged forced
disappearance of Mr. Tabares Toro and the possible responsibility of State agents are
pending resolution.
16. More specifically, the State points out that the National Human Rights
Unit of the Fiscalía General de la Nación is conducting a criminal investigation,
assigned No. 463, which is in the preliminary investigation stage. The State alleges
that to assess the reasonability of the period of time referred to in Article 46(2) of
the American Convention, it is necessary to consider various external factors that
have influenced this case, such as the complexity of the events, the actors involved,

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