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these were events which should have impelled the initiation of an ex oficio investigation. In addition, they
allege that the crimes and the uprooting of the displaced persons were know to the Government and the
FGN, and therefore a speedy investigation could have been undertaken from the time they occurred.
49.
They allege that an investigation to establish individual responsibility for the forced
displacement was never initiated --among other reasons because of the absence of criminal classification
of this type of conduct up until the year 2000--, and that there has been no comprehensive State
response in the face of the tutela actions lodged, resulting in "inconsequential decisions". From the
foregoing, they consider that the State has violated Articles 8 and 25 of the American Convention in
relation to Article 1.1, to the prejudice of Marino López's immediate family, the communities associated in
CAVIDA and the women head of household living in Turbo.
B.
Position of the State
50.
The State maintains that the case only refers to the events referred to in Admissibility
Report No. 86/06 and deals exclusively with the alleged violation of Articles 4, 5, 8.1, 24, 25 and 1.1 of
the American Convention, Articles 1 and 8 of the Convention to Prevent and Punish Torture, to the
prejudice of Marino López, and the alleged violation of Articles 5, 8.1, 17, 19, 21, 22, 24, 25 and 1.1 of the
American Convention, to the prejudice of those displaced from the Cacarica basin as a result of the
events occurring between February 24 and 27, 1997; and that the events that were not admitted in the
admissibility report should be ignored. In addition, it alleges that the Commission must only rule with
respect to events occurring after the entry into force of the Convention to Prevent and Punish Torture.
51.
It maintains that it is not responsible for the alleged violations of Articles 8, 17, 19, 21, 24
and 25 of the American Convention and that the allegations on violations of Articles 4 and 11 of the
American Convention to the prejudice of the displaced were not admitted in the admissibility report, and
as such cannot form the basis of the case on the merits.
52.
The State considers it important that the events be outlined in the historical context
without the said context generating international responsibility. In addition, it considers that the
statements in context should be duly proved. It alleges that the petitioners' statements in context are
based on books written by the alleged victims, which, according to the International Court of Justice, may
only constitute evidence in international proceedings to corroborate issues already proven.
53.
It alleges that the petitioners have based the contextual statements on reports issued by
international organs produced from their monitoring functions and that the said functions cannot result in
the prejudgment of a contentious case. In this respect, it stresses that the Convention enshrines one of
the IACHR's different functions as the "preparing studies and reports considered necessary for carrying
out its functions" (Article 41.e) and as "acting with regard to petitions and other communications in the
14
exercise of its authority in conformity with the provisions of Articles 44 and 51".
Therefore the State
rejects statements in context, which it considers lacking in evidence.
54.
It considers that the requirement of proof is greater with regard to the context presented
by the petitioners, on alleging the presumed existence of State policies or generalized practices of human
rights violations. It alleges that the statements in which they attempt to establish a nexus between the
Security Forces and the illegal self-defense groups as generalized State policy lacks evidentiary support
and ignores the State's position of permanently rejecting the phenomenon of illegal self-defense. It
maintains that the existence of paramilitary activity and the unfortunate and ad hoc connivance with some
members of the State's security forces is something already recognized by the Inter-American Court, but
in no case has the existence of an institutional policy of the State, directed to favoring or strengthening
14
The State alleges that in the IACHR's Rules, the proceedings for individual petitions (Chapter 11) and that for the
preparation of general reports (Chapter V) are governed by different chapters. It indicates that in this way, given that the nature and
proceedings to comply with one or other of the competences of international organs are different, the effects of its conclusions are
likewise different. It maintains that the Commission has been consistent in stressing that its monitoring activities cannot form a
prejudgment with regard to petitions or individual cases. Note of the Foreign Ministry, August 27, 2009, para. 27.