5
Santana. This investigation was initiated under orders from Lieutenant
Colonel Diego Velandia, Commander of the Santander Infantry Battalion,
because of the publication of newspaper articles which "directly and in a
general manner accuse soldiers of the Morrinson Base of having
apprehended Isidro Caballero-Delgado and María del Carmen Santana on
February 7, 1989 in the District of Guaduas. They remain disappeared."
As part of this investigation, personnel from the base who were in service on
the day of the events, were questioned. Several inspections were also
conducted to determine if, on February 7, 1989, operations by a troop from
the Morrison Base had been ordered and executed. María Nodelia Parra was
summoned to render sworn testimony about the events investigated, but
she did not appear. They also requested and added to the file those
documents relating to investigations completed by the Office of Criminal
Investigation of Valledupar and the Municipal Representative of San Alberto.
On June 6, 1989, the 26th Court mentioned above, decided to suspend the
preliminary investigation into the disappearance of Caballero-Delgado and
Santana and to close the proceedings provisionally, without prejudice, so
that if a person were later accused it could continue the investigation.
One cannot attribute to the Republic of Colombia negligence or indolence in the
investigation. Moreover, the fact that those implicated have been absolved in the
first proceeding does not signify that there is "collusion" between them and the
Public Power given that the rules that criminal judges must apply require that
doubts be resolved in favor of the accused. Nor has it been demonstrated that the
judges were not independent.
***
Except in reference to the duty to make reparations, this judgment of the Court
lacks legal analysis proving that the Republic of Colombia violated the Convention.
That is to say that the Court has made a pure and simple application of the risk
theory which goes beyond not only what the States accepted on giving their
consent to the Convention but also the previously cited case law of the Court.
The duty to make reparations is not autonomous in either the domestic or the
international order. That is to say, to impose reparations it is first necessary to
demonstrate a violation of the Convention. The Court has already stated in the
Velásquez Rodríguez and Godínez Cruz Cases that "[t]he State has a legal duty to
take reasonable steps to prevent . . . to carry out a serious investigation . . . to
identify those responsible, to impose the appropriate punishment and to ensure the
victim adequate compensation." (Ibid., para. 174 and para. 184, respectively.) This
sequence is not accidental.
Therefore, there cannot be a violation of the Convention due to the failure to make
reparation, unless that reparation arises from an injury due to another violation.
Article 63(1) of the Convention recognizes it in this way and provides that:
1.
If the Court finds that there has been a violation of a right or
freedom protected by this Convention, the Court shall rule that the injured
party be ensured the enjoyment of his right or freedom that was violated. It
shall also rule, if appropriate, that the consequences of the measure or
situation that constituted the breach of such right or freedom be remedied
and that fair compensation be paid to the injured party.
The reasoning of the Court on the subject of reparations is even weaker as it
continues. Paragraph 69 of this Judgment states that "[i]n the instant case