43
a)
Obligation to investigate the facts that amounted to the violations of the case
at hand, and to identify, prosecute and punish those responsible
160. The Commission pointed out that "given the particular [...] seriousness of the human
rights violations occurred in the present case, a complete reparation requires the State
investigates with due diligence the facts, in order to identify, prosecute and punish the
responsible for the detention, torture and execution of Germán Escué Zapata."
161. Furthermore, the representatives requested the Court to “order the Colombian State
to use all the means possible to carry out a serious, impartial and effective investigation
within a reasonable time, in order to prosecute the responsible […] and punish them in the
appropriate form."
162. The State reiterated “its commitment to continue with the criminal proceedings in
process in order to punish the responsible for the facts of the case at hand."
163. The Court positively values the State’s will to continue with the criminal proceedings
as well as the investigative proceedings carried out recently, which turned out in the
prosecution of three militaries as alleged co-perpetrators of “aggravated murder” committed
against the victim. Nevertheless and without prejudice to the foregoing, the Tribunal
considers that such measure does not imply per se an effective punishment of the
responsible. In addition, as has been mentioned, there are other facts related to said
murder which have not been investigated (supra, para. 109).
164. The Court has established in this Judgment that the domestic proceedings initiated in
the present case have not constituted effective recourses to guarantee a true access to
justice for the victim’s next of kin, within a reasonable time, comprising the enlightening of
the facts, the investigation and, when appropriate, the punishment of the responsible and
the reparations of the violations.
165. As has been stated by the Court, the State is under a duty to use all means available
to fight the situation of impunity surrounding the instant case, as impunity fosters the
chronic repetition of human rights violations and the total defenselessness of the victims
and their next of kin, who are entitled to learn about truth of the facts.135 Upon being
acknowledged and enforced in a specific situation, this right to truth becomes a relevant
means for redress.136 Thus, in the instant case, the right to truth creates a fair expectation
in the victims that the State is required to satisfy.137
166. Based on the foregoing, as well as the case law of this Tribunal,138 the Court orders
the State to carry out effectively the criminal proceedings in process and any future
proceedings in order to determine the corresponding responsibilities for the facts of the case
and to apply the appropriate legal provisions. Furthermore, Colombia, by means of its
135
Cf. Case of Velásquez-Rodríguez v. Honduras, supra note 18, para. 174; Case of Bueno-Alves v.
Argentina, supra note 9, para. 90; Case of Miguel Castro-Castro Prison v. Peru, supra note 17, para. 440.
136
In different testimonies, the victim’s relatives requested the Court to order the State to administer justice,
in this way. Cf. Affidavit rendered by Bertha Escué Coicue (records of the merits, Volume III, page 608), affidavit
rendered by Mario Pasu (records of the merits, Volume III, page 647), affidavit rendered by Ayénder Escué Zapata
(records of the merits, Volume III, page 652), affidavit rendered by Aldemar Escué Zapata (records of the merits,
Volume III, page 659) and statement rendered by Myriam Escué Zapata in the public hearing held before the Court
on January 29 and 30, 2007.
137
Cf. Case of Castillo-Páez v. Peru, Reparations. Judgment of November 27, 1998. Series C No. 4, para. 90;
Case of La Cantuta v. Peru, supra note 8, para. 222; Case of Miguel Castro-Castro Prison v. Peru, supra note 17,
para. 440.
138
Cf. Case of Baldeón-García v. Peru, supra note 38, para. 199; Case of La Cantuta v. Peru, supra note 8,
para. 228; Case of Miguel Castro-Castro Prison v. Peru, supra note 17, para. 440 and 441.
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