REPORT No. 109/18
CASE 12.870
MERITS
YENINA ESTHER MARTINEZ ESQUIVIA

COLOMBIA 1
XXX XX, 2018

I.

SUMMARY

1.
On December 22, 2005, the Inter-American Commission on Human Rights (hereinafter
“the Inter-American Commission,” “the Commission,” or “the IACHR”) received a petition lodged by
Yenina Esther Martínez Esquivia (hereinafter “the petitioner”) alleging the international responsibility
of the Republic of Colombia (hereinafter “the Colombian State,” “the State,” “or “Colombia”).

2.
The Commission adopted admissibility report No. 62/12 on March 20, 2012. 2 On April
10, 2012 the Commission notified the parties of that report and placed itself at their disposal to pursue
a friendly settlement, yet the parties did not agree to pursue such a settlement. The parties had the terms
provided in the Commission’s Rules of Procedure for filing their additional observations on the merits.
All the information received by one party was duly forwarded to the other.

3.
The petitioner alleged that she was terminated in her position as Delegate Prosecutor
before the Criminal Courts of the Circuit of Cartagena, without any explanation or due process. She also
indicated that her termination occurred after having participated in an investigation related to the
criminal offense of breach of public duty (prevaricato) that she was pursuing against an official who
granted a license to build a sanitary landfill without carrying out the prior consultation with the
communities affected.

4.
The State argued that the Attorney General of the Nation has the power to remove
prosecutors appointed provisionally at his discretion, that these acts do not require any explanation, and
that they are presumably legal. It said that the presumption of legality may be refuted by the official
affected in cases of abuse of authority, by filing a motion for nullity before the contentious-administrative
jurisdiction, but that said remedy was filed after it was time-barred. It argued that the alleged victim’s
rights to judicial guarantees and judicial protection were not violated.

5.
Based on the determinations of fact and law, the Inter-American Commission concluded
that the Colombian State is responsible for violations of Article 8(1), 8(2)(b), 8(2)(c) (judicial
guarantees), Article 9 (freedom from ex post facto laws), Article 23(1)(c) (political rights), and Article
25(1) (judicial protection) of the American Convention on Human Rights (hereinafter “the American
Convention” or “the Convention”), in relation to the obligations established at Articles 1(1) and 2 of the
same instrument. The Commission then made its recommendations.
II.

ARGUMENTS OF THE PARTIES

A.

The petitioner

1 In keeping with Article 17(2) of the Commission’s Rules of Procedure, Commissioner Luis Ernesto Vargas Silva, of Colombian
nationality, did not participate in the deliberations bate or decision on the instant case.

2 IACHR. Report No. 62/12. Petition 1471-05. Yenina Esther Martínez Esquivia. Colombia. March 20, 2012. In that report, the IACHR
found admissible the claims related to Articles 8 and 25 in relation to Article 1(1) of the American Convention, and found
inadmissible the claims related to Articles 19, 24, and 26 of the same instrument.

Select target paragraph3