-101-
137. In addition, there is a dispute between the parties with regarding to whether
the trucks that transported the group of approximately 60 members of the
paramilitary group and the alleged victims from Pueblo Bello to the “Las Tangas”
ranch in the Department of Córdoba, went through the military roadblock located in
San Pedro de Urabá or whether they used alternate roads, trails or routes.
138. The Court observes that there is no dispute about the existence and location
of a military roadblock at the entrance to San Pedro de Urabá and a military base in
this locality, or that there are side roads and trails off the principal road between
Pueblo Bello and San Pedro de Urabá. However, the evidence in the case file is
inconclusive as to whether or not these other routes were drivable by trucks with the
characteristics mentioned above (supra paras. 80 to 84, 95(130) to 95(132) and
95(135)). Irrespective of the route taken by these trucks, this Court considers that
Colombia did not adopt sufficient prevention measures to avoid a paramilitary group
of approximately 60 men from entering the municipality of Pueblo Bello at a time of
day when the circulation of vehicles was restricted and then leaving this zone, after
having detained at least the 43 alleged victims in the instant case, who were
subsequently assassinated or disappeared. In brief, the mobilization of a
considerable number of people in this zone, whatever route they took, reveals that
the State had not adopted reasonable measures to control the available routes in the
area.
139. The foregoing leads the Court to indicate that the State did not adopt, with
due diligence, all the necessary measures to avoid operations of this size being
carried out in a zone that had been declared “an emergency zone, subject to military
operations,” and the latter situation places the State in a special position of
guarantor, owing to the situation of armed conflict in the zone, which had led the
State itself to adopt special measures.
140. The Court observes that even though the January 1990 massacre in Pueblo
Bello was organized and perpetrated by members of a paramilitary group, it could
not have been carried out if there had been effective protection for the civilian
population in a dangerous situation that was reasonably foreseeable by the members
of the Armed Forces or State security forces. It is true that there is no evidence
before the Court to show that the State was directly involved in the perpetration of
the massacre or that there was a connection between the members of the Army and
the paramilitary groups or a delegation of public functions from the Army to such
groups. However, the responsibility for the acts of the members of the paramilitary
group in this case in particular can be attributed to the State, to the extent that the
latter did not adopt diligently the necessary measures to protect the civilian
population in function of the circumstances that have been described. For the
reasons set out in the previous paragraphs, the Court concludes that the State did
not comply with its obligation to ensure the human rights embodied in Articles 4, 5
and 7 of the Convention, because it did not comply with its prevention and protection
obligations to the detriment of those who disappeared and were deprived of life in
this case.
141. It is also necessary to decide whether this situation was duly investigated in
the domestic proceedings opened to this end, in light of the guarantee obligations in
Article 1(1) of the Convention.
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