117
190. The Inter-American Commission argued that the State has breached Articles
8(1) and 25 of the American Convention, in combination with Article 1(1) of that
convention, because:
a)
the State has not fulfilled its obligation to investigate the violations of
the right to liberty, to humane treatment and to life, committed against the
alleged victims, and to prosecute those responsible;
b)
the judicial actions carried out by the State to elucidate the
responsibility of civilians and military in committing the massacre do not fulfill
the requirements set forth in the American Convention regarding the right to
fair trial and to judicial protection;
c)
while the investigation by the Office of the Attorney General sheds
light on the events, it has not led to effective prosecution of all the civilians
and military responsible;
d)
while a first instance conviction was issued on June 18, 2003 against
five individuals, the facts in this case show that more than 100 individuals
participated in the massacre;
e)
despite the scale of the paramilitary incursion in Mapiripán and the
degree of collaboration that has been verified, the massacre has not been
legally elucidated within a reasonable term, those responsible have not been
effectively prosecuted, and the alleged victims have not received reparations;
f)
negligence of the State with regard to examination
circumstances of the massacre breaches the right to fair trial;
of
the
g)
assigning part of the investigation to military criminal justices
breaches the rights to judicial protection and to fair trial. The charges against
Brigadier General Humberto Uscátegui Ramírez and Lieutenant Colonel Orozco
Castro under military criminal jurisdiction refer only to omissions in
connection with their military function and to falsifying a document. The
charges of kidnapping for extortion, torture, homicide and constituting
paramilitary groups, which had initially been filed under regular justice were
set aside by military criminal justice. Having being sentenced to 40 months
in prison for the crime of malfeasance of public office by omission, and
acquitted of the crime of falsifying a public document, and after spending 16
months in prison, General Uscátegui was released by a decision of the High
Military Court. The fact that Brigadier General Uscátegui was tried under
military criminal venue deprived the alleged victims and their next of kin of
access to an independent and impartial court;
h)
when the State allowed the investigations to be conducted by the
bodies that were potentially involved, as under military venue, independence
and impartiality were clearly compromised.
Military jurisdiction is not
competent to hear human rights violations as these are not offenses in
connection with the military function and this jurisdiction should apply
exceptionally and only to function-related crimes committed by members of
the Armed Forces;
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