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responsibility of the State for violation of Article 4 [of the American Convention] and
Article 3 of the 1949 Geneva Conventions, are still unclear.
The Commission also reserves the right to request exhumation of Hernán Lizcano
Jacanamejoy’s body and a reconstruction of the events in order to study the
trajectory of the bullets.
In its brief of reply, Colombia states simply that the analyses and conclusions that
the Commission reached regarding the fate of N.N./Moisés Ojeda and Hernán Lizcano
Jacanamejoy are very helpful to the Colombian authorities, have been studied
carefully and will be raised at the proper point in the proceedings.
37.
At the public hearing held on May 28, 2001, the State admitted responsibility
for violation of Article 4 of the Convention in the case of the death of N.N. Moisés
Ojeda.
As for the fate of Hernán Lizcano Jacanamejoy, at that public hearing the
Commission first asserted that the testimony of the police officers who participated
in the operation “is not credible” and analyzed other evidence tendered for this case.
The Commission drew the Court’s attention to the trajectory of the bullets in Hernán
Lizcano Jacanamejoy‘s body, according to the autopsy conducted.
In the
Commission‘s opinion, the trajectory “suggests an extrajudicial execution.“ As for
the evidence concerning the death of Hernán Lizcano Jacanamejoy, the Commission
asserted that:
The particular circumstances of this case are such that the burden of proof can be
reversed in order to establish the responsibility of the State in the violation of Mr.
Hernán Lizcano‘s right to life, from the very special angle of international human rights
law.
Colombia relied mainly on the testimony given by Victoria Eugenia Yepes and Pedro
Elías Díaz Romero about the evidences tendered in the local proceedings, most of
which are attached to the case file. Colombia’s agent concluded that:
Consequently, in this effort to clarify the facts, it should be noted that it has already
been shown that the Colombian justice system established -and the Commission
assumed in its application- that Mr. Lizcano Jacanamejoy died in combat. The State
cannot be held internationally accountable for his death, as this was neither a summary
nor extrajudicial execution.
38.
As previously noted (supra paragraph 27), the Court ordered exhumation of
the remains of Hernán Lizcano Jacanamejoy and the corresponding examinations anthropological analyses and forensic examination of the remains. The report from
these tests states that the victim was shot at least twice. It states the following
concerning the trajectory of the bullets:
Even though in this case the precise direction of the bullets could not be established
using the mortal remains, those pieces whose possible trajectory could be discerned
match what was described in the autopsy […]
The trajectories described in the autopsy, in some respects corroborated and in others
acknowledged as a possibility by the anthropological tests, are quite instructive in terms
of a hypothesis as to the mode or manner of death, first because both shots are
described as posterior-anterior. In particular, the autopsy describes the angle of the
bullet as entering the right side of the neck and exiting in the area of the right
abdomen; in other words, the trajectory was a vertical drop from the top, down. This