Convention would entail a modification of the Judgment and, consequently, would
contravene the scope of Article 67 of the Convention.
35.
In addition, the State considered that “the presumed victims of displacement who
were not recognized as injured party in the proceedings in question are not entitled to have
recourse to the mechanism established in paragraph 337 of the Judgment,” nor can they
benefit from Law 288 of 1996, because they were not identified in the proceedings before
the Court. It also indicated that, as established in paragraphs 294 and 338 of the Judgment,
it was possible for the presumed victims of displacement, who were not recognized during
the proceedings, to have recourse to the national administrative or judicial mechanisms to
obtain compensation, provided they met the requirements of Colombian law to do so and,
since “the foregoing […] applies to persons who the Court has not individualized as victims,
they must substantiate this status.” Similarly, the State indicated that the said paragraphs
of the Judgment “do not establish exceptions with regard to the exhaustion of proceedings,
compliance with the probative requirements, and observance of the time frames established
in Colombian law to obtain reparation through judicial or administrative mechanisms.
Considerations of the Court
36.
Regarding the displaced persons, the Judgment establishes the following:
265.
[…] the Court notes that, although the representatives argued the violation of Article
22 in relation to all the inhabitants of Santo Domingo, it is also true that the Commission only
identified and individualized as presumed victims those persons injured during the
bombardment with the cluster bomb. The Court also notes that, in the context of these
contentious proceedings, the representatives and the Commission have referred to 200 or 300
displaced persons without individualizing them.
266.
Regarding the foregoing, the Court observes that the failure to identify all the persons
who were displaced is partly due to the circumstances in which the facts of the case occurred
and the profound fear felt by the inhabitants of the village of Santo Domingo (supra para. 243).
This makes it impossible to know with certainty how many people were displaced in this case.
As indicated previously,19 the Court notes that many other villagers faced this situation but were
not individualized by the Commission or the representatives, so that this situation can only be
assessed in relation to those who have been identified in these proceedings as injured victims,
without prejudice to the measures that the State must adopt at the domestic level with regard
to the other displaced persons.
267.
In conclusion, the persons who survived the events that occurred in Santo Domingo
on December 13 and 14, 1998, were forced to leave their usual place of residence until
approximately January 1999. In this regard, the Court observes that the situation of internal
forced displacement faced by the victims who had been injured and their next of kin resulted
from the explosion of the cluster bomb in the village of Santo Domingo […], added to the fear
and the psychological effects of the nearby confrontations, as well as the machine gun attack
[…].
268.
The State is responsible for the violation of Article 22(1) of the Convention, in relation
to Articles 5(1) and 1(1) thereof, with regard to Edwin Fernando Vanegas Tulibila; Milciades
Bonilla Ostos; Ludwing Vanegas; Gleydis Xiomara García Guevara; Mario Galvis Gelves; Fredy
Monoga Villamizar (o Fredy Villamizar Monoga); Mónica Bello Tilano; Maribel Daza Rojas;
Amalio Neite González; Marian Arévalo; José Agudelo Tamayo; María Cenobia Panqueva; Pedro
Uriel Duarte Lagos; Ludo Vanegas; Adela Carrillo; Alcides Bonilla and Fredy Mora. Also the
children, Alba Yaneth García Guevara; Marcos Aurelio Neite Méndez; Erinson Olimpo Cárdenas;
19
Cf. Case of the “Mapiripán Massacre” v. Colombia. Merits, reparations and costs, para. 183, and Case of
the Ituango Massacres v. Colombia, para. 221.
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