3
for it. This would signify, neither more nor less, that the protective organs, the
Commission and the Court, are intrusive, unless their function is limited to
pronouncing judgment on whether the act took place. It would also signify that
international protection is not subsidiary to domestic protection but that,
conversely, it operates automatically. Neither of these two suppositions is true
under the American Convention.
For that reason
[t]his duty to prevent includes all those means of a legal, political,
administrative and cultural nature that promote the protection of human
rights and ensure that any violations are considered and treated as illegal
acts, which, as such, may lead to the punishment of those responsible and
the obligation to indemnify the victims for damages. (Ibid.)
The record of this case does not prove that "reasonable" steps to prevent acts of
this nature, do not exist, or if they do exist, that they have not been taken.
Conversely, the record gives the impression that the event under consideration was
probably due to an official who later was shown to suffer from mental disturbances,
which is surely beyond existing contingent measures of protection.
The duties of the State are not limited to prevention but also include investigation
of the facts so that "[i]f the State apparatus acts in such a way that the violation
goes unpunished and the victim's full enjoyment of such rights is not restored as
soon as possible, the State has failed to comply with its duty to ensure the free and
full exercise of those rights to the persons within its jurisdiction." (Ibid. para. 176
and para. 187, respectively.) The Court has stated that
[i]n certain circumstances, it may be difficult to investigate acts that violate
an individual's rights. The duty to investigate, like the duty to prevent, is not
breached merely because the investigation does not produce a satisfactory
result. Nevertheless, it must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his
family or upon their offer of proof, without an effective search for the truth
by the government. This is true regardless of what agent is eventually found
responsible for the violation. Where the acts of private parties that violate
the Convention are not seriously investigated, those parties are aided in a
sense by the government, thereby making the State responsible on the
international plane. (Ibid. para. 177 and para. 188 respectively.)
In this case, the Government submitted to the Court copies of more than one
thousand pages of records of investigations, now reopened based on the testimony
of Gonzalo Arias-Alturo, which are precisely what have allowed this Court to infer
that the violation of human rights was committed at the hands of those persons
implicated and discussed therein.
Based on these documents, the internal procedures have included the following:
a.
Writ of habeas corpus:
Was interposed on February 10, 1989, before the First Superior Court of
Bucaramanga by María Nodelia-Parra, companion of Caballero-Delgado. On
that same date and after having obtained information "in the institutions and
organizations of the State where a person can be detained for several
causes," the judge concluded that Caballero was not deprived of his liberty
by institutions of the State. Moreover, according to the judge, a writ of
habeas corpus should be interposed before the criminal judge of the closest