for the community to which they belonged and for society as a whole. It
objects to the argument by the State that the next of kin are at fault for not
having appeared motu proprio to promote the proceedings which the State
must promote on its own motion;
b)
that in case the estoppel ordered in favor of 37 accused persons by the
Human Rights Unit becomes res judicata, the State is under the obligation to
remove all domestic legal obstacles that impede fulfillment of this obligation.
The obligation to investigate the facts and to try those responsible pursuant
to the standards of the Convention is autonomous in nature and separate
from the reparation due for denial of justice. Therefore, the Commission
rejects the argument of the State that the only reparation due is its promise
to continue the investigation;
c)
to correct the acts of the State regarding the statements it made with
respect to the next of kin of the victims, specifically of N.N./Moisés and
Hernán Lizcano Jacanamijoy; the measures of satisfaction ordered must be
public, effective, and involve participation of the next of kin, since the
domestic judgments and the judgment on the merits issued by the InterAmerican Court have not fulfilled this purpose. The Commission also requests
that the mortal remains of N.N./Moisés be located and that his identity be
established; and
d)
to adopt all necessary measures to extend and improve functioning of
the school located in Las Palmeras, Municipality of Mocoa. This gesture,
together with inclusion of a reminder of the memory of the victims, would
allow their memory to live on in the community to which they belonged and
would contribute to avoid recidivism of the violations committed.
Arguments of the State
64.
The State, regarding this point, stated the following:
a)
with respect to the requirement for total elucidation of the facts, as
was stated by the representatives of the next of kin of the victims, this cannot
be posed in absolute terms, for the nature of the obligation to investigate is
one of means, not of results;
b)
the interested parties have not cooperated with criminal justice as
allowed by domestic legislation, that is, appearing as plaintiffs once the
proceedings have begun or promoting the preliminary investigation by
exercising the right to petition. While it is clear that it is the State’s obligation
to effectively render justice, it does not seem logical for the interested parties
to refuse to cooperate and to remain aside from the proceedings, and
afterwards to request monetary compensation, which would not satisfy their
wish to know the truth;
c)
the civil parties had the right to contest the estoppel decision in favor
of 37 persons, regarding the investigation. Furthermore, the trial against
three clearly identified persons continues.
As regards the statute of
limitations of penal action, pursuant to Colombian legislation, it was
interrupted with the resolution to prosecute, and the new term will not be less
than five years nor more than ten, and therefore the proceedings are not
about to prescribe;
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