14. With respect to the prior exhaustion of domestic remedies requirement established in Article 46.1 of the American Convention, the petitioners maintain that the proceeding conducted in the military criminal jurisdiction does not constitute an effective remedy for developing an investigation of human rights violations. In this regard, they feel that the military investigation represents contempt of the Commission’s recommendations in its Second Report on the Situation of Human Rights in Colombia in that “military courts do not guarantee the effective right to justice since they lack independence” and impartiality. In addition, they allege that the military criminal investigation has fostered impunity instead of establishing responsibility for what happened. In this respect, they allege that the exceptions to the exhaustion of domestic remedies are applicable because the military criminal jurisdiction is not suitable in accordance with paragraphs a) and b) of Article 46.2 of the American Convention. 15. In response to the State’s allegations that the alleged victim died as a result of combat, the petitioners respond that actions were taken from the very start to conceal and alter the scene of the events. For example, they state that the photographs of the scene show a rifle superimposed on the body of the victim, but the alleged weapons seized (grenades and antipersonnel landmines) do not appear. They maintain that the alleged victim was not a member of illegal groups and was in conversation with his relatives at home at the time he was taken. Based on this, they consider that the State is responsible for violating the rights established in Articles 4 and 5 of the American Convention, to the detriment of Elio Gelves Carrillo and Articles 8 and 25 to the detriment of his relatives, all as they relate to Article 1.1 thereof. B. Position of the State 16. The State maintains that due to the alleged event proceedings were diligently conducted at the domestic level in the military criminal, administrative-contentious, and disciplinary jurisdictions. It alleges that on May 8, 1998 a military criminal investigation was launched against six members of the National Army. It maintains that on January 28, 1999 the Superior Council of the Judiciary settled the conflict of jurisdictions that arose with Delegate Prosecutor’s Office 40, determining that the competent jurisdiction was the military jurisdiction. The State indicates that on April 23, 2001 the First Instance Judge decided the case had no merit and ordered the investigation closed given that [the accused were acting] in strict compliance with a legal duty because the death of the alleged victim occurred as a result of an armed 2 confrontation in which legitimate defense was demonstrated and justified with sufficient evidence. It states that this decision was upheld on March 6, 2002 by the Military Superior Court. The State alleges that the military criminal jurisdiction has the characteristics of impartiality and independence of judges and that any observation in this regard should be proven with respect to each case. 17. The State indicates that the President of the Municipal Council of Fortul filed a complaint with the Office of the Attorney General (Procuraduría General de la Nación - PGN) and on September 11, 1998 that office ordered the permanent close of the preliminary disciplinary inquiry, based on the principle of in dubio pro reo, given that it was impossible to identify the three individuals who entered the home of the Gelves Carrillo family. It states that that ruling was not appealed by the petitioners. 18. The State indicates that in response to the administrative-contentious action filed by Griseldina Carrillo de Gelves, the Administrative-Contentious Court of Arauca declared the State responsible because it found the allegations of violations while on duty to have been proven and recognized moral damages for the parents and siblings of the alleged victim and material damages for his parents. It states that in compliance with that decision, payment of 127,873,548 Colombian pesos was ordered in 2001 and payment of 1,009,556 Colombian pesos was ordered in 2002 for interest due. It alleges that that ruling was not appealed by the petitioners. In this regard, the State alleges that an administrative contentious conviction does not imply criminal responsibility on the part of the agents of the State. It also alleges that the petition should not be admitted; at least with respect to the claims for reparations, given that there have already been reparations at the domestic level. 2 The State alleged that of the 20 witness statements taken, 13 were taken from relatives and acquaintances of the alleged victim. Ministry of Foreign Relations of Colombia. Note DIDHD/GOI No. 61950/2580 of October 19, 2010. 3