120
e)
the investigation carried out under regular venue regarding the 49
individuals who were tortured, executed, and made to disappear, reflects a
pattern of impunity where a few direct perpetrators are punished to provide
appearances of justice while in reality most of the perpetrators remain in a
situation of impunity;
f)
the investigation has not been conducted within a reasonable term. To
date, six years have passed since the order for the regular criminal
proceeding to commence, without any individual being definitively convicted
and punished. Delays in the instant case are due to the defects and mistakes
made by the authorities since the early stages of the investigation, to
involvement of the military criminal jurisdiction, and to lack of political
disposition to carry out the arrest warrants pending against paramilitary
leaders and to investigate high-ranking military officers, among others;
g)
the judicial officials have ignored the responsibility of civil and/or
military authorities present at times and places that were crucial to planning
and implementation of the massacre; they have even refused or arbitrarily
delayed execution of orders to commence investigations regarding
participation of State agents;
h)
for several years, the State disregarded orders to open investigations
(e.g. in the case of Carlos Ávila Beltrán) and did not follow-up on evidence in
the case file that showed the responsibility of other State agents; and
i)
the prospects of justice in this case are scant without the timely
intervention of the Court, as there is currently a strong effort by the national
government to demobilize the paramilitary without guaranteeing the rights to
truth, justice, and reparations. Only fourteen individuals have been formally
included in the criminal investigation of the facts; the other direct
perpetrators whose identities are unknown might benefit from the
demobilization program in the framework of Decree 128 of 2003. Paramilitary
leaders like Carlos Castaño might also be pardoned despite their convictions,
if a bill submitted in August 2003 is enacted. This bill –which should be
studied by the Court- refers to “reinsertion of members of armed groups
[outside the Law] who effectively contribute to attaining national peace.” The
current legal framework for demobilization, as well as that being established,
ensures impunity for most of these individuals, by denying the victims of
human rights violations access to an effective remedy before competent
judges or courts. By allowing those responsible for Mapiripán to receive legal
benefits, the Decree constitutes a legal impediment to the investigation.
Pleadings of the State
192. The State argued that it has breached neither Article 8(1) nor Article 25 of the
American Convention, asserting that:
a)
it has guaranteed and respected its obligations regarding the alleged
victims’ right to judicial protection, in compliance with the constitutional and
legal principles, as well as international provisions;
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