13
There may be a third stage after the final report. In fact, with the lapse of the time period the
Commission has given the State to comply with the recommendations contained in the final report, and
if they have not been accepted, the Commission shall decide whether to publish it, and this decision
must also be based upon the alternative most favorable for the protection of human rights. [Certain
Attributes of the Inter-American Commission on Human Rights (Arts. 41, 42, 44, 46, 47, 50
and 51 of the American Convention on Human Rights), Advisory Opinion OC-13/93 of July 16,
1993. Series A No. 13, paras. 48, 50 and 54.]
50.
The supporting documents indicate that the Commission, by approving and subsequently processing
Report Nº 31/91, did not contemplate filing the case with the Court but merely publishing the report. That
decision changed one year later, in Report Nº 31/92. The reasons for that change are not as clear as would
be hoped and the Commission’s vaguely worded letter of February 28, 1992, does not help. In the time
between the request for reconsideration and Report Nº 31/92, the Commission conducted an on-site visit to
Colombia, during which it held a hearing at which the Government indicated that it was impossible for it to
pay compensation because the Commission’s Report “was not a binding decision, as would be the case of a
judgment of the Inter-American Court, but was simply a recommendation,” pointing to its domestic legal
provisions.
51.
It can be deduced from the foregoing that, in the Commission’s judgment, the only way in which the
Government would compensate those who, according to the Commission, were its victims would be through
a judgment of the Inter-American Court, which would be enforceable on the domestic plane. Such an
interpretation is in keeping with the object and purpose of the Convention, which is the protection of human
rights, and the Court must accept it.
52.
Nevertheless, the Court must point out that there is no reason why the Commission should not
faithfully follow the procedural rules. As it has said before and repeats today, although it is true that the
object and purpose of the Convention can never be sacrificed to procedure, the latter is, in the interests of
legal certainty, binding on the Commission.
53.
The Court is also of the opinion that the Commission’s statements regarding the possible publication
of the report should not be understood as an anticipated decision by the Commission, for that decision was
always conditioned upon the Government’s reaction to the recommendations.
54.
Hence, it must be concluded that, as a result of the extension granted at the request and for the
benefit of the Government through a petition for reconsideration, the 90-day period to which Article 51(1) of
the Convention refers began to run on October 2, 1992, the date on which the decision of September 25,
1992, to adopt the report as final was transmitted to the Government. Since the application was filed by the
Commission with the Court on December 24, 1992, it must be deemed to have been submitted in a timely
fashion.
55.
In view of the foregoing, the Court dismisses the second preliminary objection interposed by the
Government.
VII
56.
In its third objection, Colombia invokes the non-exhaustion of domestic remedies by the alleged
victims, relying principally on the following arguments: that from the moment of its first appearance before
the Commission, Colombia has argued that domestic remedies -which are not limited to habeas corpus- have
not been exhausted; that in cases involving the disappearance of citizens, the Court and the Commission
have determined that the only remedy capable of “redressing the wrong” is habeas corpus and that none of
the other domestic remedies is fully capable of redressing the possible damage caused by the State. That
although the foregoing statement is accurate, it is based on a much broader interpretation of the meaning of
habeas corpus than that provided for under Colombian law. Pursuant to that law, the measures taken are
not really aimed at determining the whereabouts of the person who has been detained; rather, the habeas
corpus remedy under Colombian law proceeds on the assumption that the place of detention and the
authorities involved in the violation of the constitutional and legal rights of the detainee are known. In the
absence of that information, there exist other appropriate procedural means of investigating the illegal
deprivation of liberty and reestablishing the right violated and, where appropriate, of punishing those
responsible and fixing the compensation due.