29
94.
The Tribunal considers it is not relevant to the purpose of the instant case to
determine if the militaries forced the door or if they threatened Mr. Aldemar Escué to let
them in. The truth is that the State agents entered into the residence of Germán Escué
Zapata and some members of his family, against the will of its occupants and without legal
authorization to do that. Thus, the Tribunal has to determine if such facts constitute a
violation of the rights enshrined in Article 112 of the Convention.
95.
The protection of the private life, family life and residence from arbitrary or abusive
interference implies an acknowledgment that there is a personal sphere which must be
exempt from and immune to the abusive or arbitrary invasion or attacks by third parties or
the public authority. In this regard, an individual’s home and private and family life are
intrinsically connected, because the residence is the space in which private and family life 98
can evolve freely . The Colombian Constitution, in force at the moment of the vent,
established in its Article 23 that:
No person can be disturbed in his private or family life, […] nor can his residence be searched, but by
virtue of a written order issued by competent authority, with the legal formalities and the reason
previously defined by law […].
96.
Based on the foregoing, the Court considers that the act of the militaries constituted
an arbitrary and abusive interference in the residence of Mr. Germán Escué Zapata. Thus,
the Court considers that the State violated the right enshrined in Article 11(2) of the
American Convention, in conjunction with Article 1(1) therein, to the detriment of Escué
Zapata and his relatives who, has been proved, lived there at the time of the events, to wit:
Bertha Escué Coicue, Myriam Zapata Escué, Etelvina Escué, Mario Pasu and Aldemar Escué
Zapata.
97.
Finally, the Court observes that the State has not investigated the mentioned facts, thus failing to comply
with its duty to guarantee with respect to Article 11(2) of the Convention, in accordance with Article 1(1) therein.
X
99
ARTICLE 8 (RIGHT TO FAIR TRIAL) AND 25 (RIGHT TO JUDICIAL PROTECTION )100 IN
CONJUNCTION WITH ARTICLE 1(1) (OBLIGATION TO RESPECT RIGHTS) OF THE AMERICAN
CONVENTION
98
Cf. Case of the Ituango Massacres v. Colombia. Judgment of July 1, 2006. Series C Nº. 14, para. 193 and
194.
99
Article 8 of the Convention, in its relevant part, provides that:
1.
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a
competent, independent, and impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him or for the determination
of his rights and obligations of a civil, labor, fiscal, or any other nature.
[…]
100
Article 25 of the Convention, in its relevant part, provides that:
1.
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention, even though
such violation may have been committed by persons acting in the course of their official duties.
[…]