34
those responsible", 128 and must be completed within a reasonable time. 129 The due diligence on the
part of the judicial authorities must take into account the complexity of the facts, the context within
which they occurred and the patterns explaining their commission, avoiding omissions in the
gathering of evidence and in the pursuit of logical lines of enquiry. 130
151. In regard to the attack suffered by Mr. Vélez in the present case, two members of
the military forces were disciplined with "a severe reprimand" in connection with the acts of August
29, 1996. 131 In this respect, the Commission observes, as has the Court, that an investigation of a
disciplinary nature tends to protect the administrative function and the correction and control of
public officials, so that it may supplement but must not entirely replace the function of the criminal
courts. 132 As such, it is necessary to examine the criminal proceedings undertaken in this respect.
152.
The criminal investigation into the attack suffered by Mr. Vélez was started by the
National Public Prosecutor but was then sent to the criminal military courts. These courts archived
the investigation by writ of nolle prosequi on October 3, 1997, considering that it was not possible
to identify the perpetrators. 133 As a consequence no individual was criminally punished in relation
to the attack perpetrated by members of the Colombian Army against Mr. Vélez.
153. The Inter-American Court has established in a consistent manner that within a State
under the democratic rule of law, the criminal military courts must have a restricted and exceptional
scope in their jurisdiction and must seek to protect special juridical interests associated with the
functions assigned by law to the military forces. As such, members of the military must only be
tried for the commission of crimes or misdemeanors that due to their nature harm the juridical
interests of the military system itself. 134
154. In regard to the attack against Mr. Vélez, the State of Colombia argued that the
criminal military court's undertaking of the investigation was in accordance with international
standards. The State basically advanced two arguments in this regard. Firstly, it stressed that the
attack against Mr. Vélez was in contravention of, and in subordination against, issued orders, and
that there was no intent to act outside the functions constitutionally assigned to the military
forces. 135 Secondly, it alleged that the attack against Mr. Vélez did not constitute a grave violation
of human rights such as extra-judicial executions, forced disappearance and torture, so that there
was no basis to exclude the application of the criminal military courts. 136
155. The Commission observes in this regard that the jurisprudence of the Inter-American
Court clearly establishes that "military criminal jurisdiction is not the competent jurisdiction to
128
I/A Court H.R., Case of Tibi v Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of
September 7, 2004. Series C No. 114, para.159.
129
See I/A Court H.R., Case of the Miguel Castro Castro Prison v Peru. Merits, Reparations and Costs. Judgment of
November 25, 2006. Series C No. 160, para.436.
130
I/A Court H.R., Case of the Rochela Massacre v Colombia. Merits, Reparations and Costs. Judgment of May 11,
2007. Series C No. 163, para.158
131
State’s brief received on August 4, 2009, p. 18.
132
Cf. I/A Court H.R., Case of the Pueblo Bello Massacre v Colombia. Merits, Reparations and Costs. Judgment of
January 31, 2006. Series C No. 140, para.203.
133
State’s brief received on August 4, 2009, p. 38.
134
Cf. I/A Court H.R., Case of the Pueblo Bello Massacre v Colombia. Merits, Reparations and Costs. Judgment of
January 31, 2006. Series C No. 140, para.189.
135
State’s brief received on August 4, 2009, p. 41.
136
State’s brief received on August 4, 2009, p. 42.