232. Based on all the above findings, the Court concludes that the State is responsible for
the violation of the right to protection of the family, embodied in Article 17(1) of the
Convention, in relation to Article 1(1) thereof, to the detriment of Luis Gonzalo Vélez
Restrepo, Aracelly Román Amariles, Mateo Vélez Román, and Juliana Vélez Román, and also
for violating the right to special protection of children embodied in Article 19 of the
American Convention to the detriment of Mateo and Juliana Vélez Román.
XI
RIGHTS TO JUDICIAL GUARANTEES AND JUDICIAL PROTECTION,
IN RELATION TO THE OBLIGATIONS TO RESPECT AND GUARANTEE RIGHTS
233.
First, it should be recalled that the State acknowledged partially its responsibility for
the violation of Articles 8(1) 226 and 25227 of the Convention, in relation to Article 1(1)
thereof, for three reasons (supra para. 14(c)): (i) the absence of “a serious investigation
that would have allowed the perpetrators of the attack suffered by Mr. […] Vélez Restrepo
on August 29, 1996, to be determined and punished under criminal law;” (ii) because “[n]o
serious investigation was conducted that that would have allowed the presumed authors of
the threats of which Mr. […] Vélez Restrepo was presumably a victim to be determined and
punished under criminal law,” and (iii) because “[t]here was a violation of reasonable time
in the investigation underway for the presumed attempted kidnapping of Mr. Vélez Restrepo
on October 6, 199[7].”
234. In its brief with observations on the State’s partial acknowledgment of responsibility,
the Commission stated that the dispute that subsisted with regard to the violation of Articles
8(1) and 25 of the Convention was the alleged violation in relation to “the proceedings
under the military criminal justice in the instant case.”
235. The Court must rule on the matter that remains in dispute concerning the alleged
violation of the principle of the natural judge, owing to the investigation conducted by the
military criminal jurisdiction into the attack perpetrated by members of the Army against
Mr. Vélez on August 29, 1996, and make some additional considerations on the lack of
effective and diligent investigations in the instant case (infra section B).
A)
Alleged violation of the guarantee of a natural judge
Observations of the Commission and arguments of the parties
236. The Commission and the representative indicated that the assignment of the criminal
investigation into the attack on Mr. Vélez at Caquetá in 1996 to the military criminal
jurisdiction “not only formally violated the right of access to justice of Mr. Vélez, but also
226
Article 8(1) of the American Convention establishes:
1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial Court, previously established by law, in the substantiation of any accusation
of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal,
or any other nature.
227
Article 25 of the American Convention stipulates:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent
court or Court for protection against acts that violate his fundamental rights recognized by the constitution or laws
of the state concerned or by this Convention, even though such violation may have been committed by persons
acting in the course of their official duties.
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