-121-
208. Likewise, in Kaya v. Turkey, the European Court of Human Rights decided
that the violation of a right protected by the Convention could not be remedied
exclusively by the establishment of civil responsibility and the corresponding award
of compensation to the relatives of the victims.242
209. In this case, the claims were filed starting in 2000 and there is no evidence
that any of the proceedings have culminated with judgments, agreements or
abandonment of the action. In other words, proceedings have been filed by the next
of kin of the persons disappeared and deprived of life, 11 or 12 years after the acts
occurred (a lapse of time that cannot be attributed to the State); therefore, it is
irrelevant to examine the reasonableness of the time in relation to the time when the
facts occurred. Also, in cases of human rights violations, the State has the obligation
to make reparation, so that although the victims or their next of kin should have
ample opportunity to seek just compensation, this obligation cannot rest exclusively
on their procedural initiative or on the contribution of probative elements by private
individuals. Thus, in the terms of the obligation to provide reparation that arises from
a violation of the Convention (infra paras. 227 to 229), the administrative-law
proceedings do not constitute per se an effective and adequate recourse to repair
that violation comprehensively.
210. Consequently, since these administrative-law proceedings are still being
processed and have not produced concrete results at the date this judgment is
delivered, the Court considers it irrelevant, in the circumstances of the instant case,
to examine more extensively the scope and characteristics of the administrative-law
jurisdiction, as a useful and effective recourse for the effects of a case of this nature,
or to assess its application in this case.
*
*
*
211. Having examined each of the proceedings opened at the domestic level in
relation to the events of Pueblo Bello, as well as the general interaction of these
proceedings in the context of the impunity that reigned during the period in which
they were applied, the Court concludes that the series of failures to comply with the
established protection and investigation obligations have contributed to the impunity
of most of those responsible for the violations committed. The military command
could not have been unaware of an attack on the civilian population of the
proportions underscored in this case, in a zone inhabited by paramilitary groups and
where such groups were active. Although some of the members of the paramilitary
group have been convicted, generalized impunity subsists in this case, since the
whole truth about the facts has not been determined and all the masterminds and
perpetrators of the facts have not been identified. Moreover, it is relevant that most
of the members of the paramilitary group convicted are not serving their sentences
because the arrest warrants against them have not been executed.
212. The Court concludes that the domestic procedures and proceedings have not
constituted, either individually or as a whole, effective recourses to guarantee access
to justice, determination of the whereabouts of the disappeared, the whole truth
about the facts, the investigation and sanction of those responsible, and reparation
242
Cf. European Court of Human Rights. Kaya v. Turkey [GC], judgment of 19 February 1998,
Reports of Judgments and Decisions 1998-I, § 105.
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