Inter-American Court of Human Rights. Case of Gutiérrez-Soler v. Colombia. Judgment of September 12, PDF

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Inter-American Court of Human Rights Case of Gutiérrez-Soler v. Colombia Judgment of September 12, 2005 (Merits, Reparations and Costs) In the case of Gutiérrez Soler, the Inter-American Court of Human

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Inter-American Court of Human Rights Case of Gutiérrez-Soler v. Colombia Judgment of September 12, 2005 (Merits, Reparations and Costs) In the case of Gutiérrez Soler, the Inter-American Court of Human Rights (hereinafter the Inter-American Court or the Court ), composed of the following judges : * Sergio García Ramírez, President; Alirio Abreu Burelli, Vice President; Oliver Jackman, Judge; Antônio A. Cançado Trindade, Judge; Manuel E. Ventura Robles, Judge; Diego García Sayán, Judge; and Ernesto Rey Cantor, Judge ad hoc; also present, ** Emilia Segares Rodríguez, Deputy Secretary, pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter the Convention or the American Convention ) and Articles 29, 31, 53(2), 55, 56, 57 and 58 of its Rules of Procedure (hereinafter the Rules of Procedure ), delivers the following judgment. I INTRODUCTION OF THE CASE * Judge Cecilia Medina-Quiroga informed the Court that, for reasons beyond her control, she would be unable to be present at the deliberations and sign this judgment. ** The Secretary of the Court Pablo Saavedra-Alessandri informed the Court that, for reasons beyond his control, he would be unable to be present at the deliberations and sign this judgment. 2 1. On March 26, 2004, pursuant to the provisions of Articles 50 and 61 of the American Convention, the Inter-American Commission on Human Rights (hereinafter the Commission or the Inter-American Commission ) filed before the Court an application against the Republic of Colombia (hereinafter the State or Colombia ) originating in petition No , received at the Secretariat of the Commission on November 5, The Commission filed the application, for the Court to determine whether the State had violated the rights in Articles 5(1), 5(2) and 5(4) (Right to Humane Treatment); 7(1), 7(2), 7(3), 7(4), 7(5) and 7(6) (Right to Personal Liberty); 8(1), 8(2)(d), 8(2)(e), 8(2)(g) and 8(3) (Right to a Fair Trial); and 25 (Right to Judicial Protection) of the Convention, in relation to the obligation set forth in Article 1(1) (Obligation to Respect Rights) of said treaty, to the detriment of Wilson Gutiérrez- Soler. In the application, the Commission pointed out that the [alleged] deprivation of personal liberty and inhumane treatment of Wilson Gutiérrez-Soler was perpetrated by a State agent and a private individual (a former State agent himself) who[,] with the sufferance of government officers[,] used the means available to the Public Force to arrest the [alleged] victim and to try and exact form him a confession using torture, for the alleged commission of a crime in relation of which the domestic courts eventually found him innocent. With respect to local action, Mr. Gutiérrez-Soler [allegedly] exhausted all domestic legal remedies in his pursuit of justice and relief; nevertheless, his complaints were dismissed. To this respect, the Commission stated that [t]he [alleged] impunity of the those responsible and the lack of reparation ten years after the facts, have not only destroyed Gutiérrez- Soler s life project and that of his family, but have also adversely impacted on their safety and, in some cases, forced them into exile. 3. Furthermore, the Commission asked the Inter-American Court to order the State, under Article 63(1) of the Convention, to take the measures of reparation detailed in the application. Lastly, the Commission requested that the Order of the Court the State to pay the costs and expenses arising from the domestic legal proceedings and from the proceedings under the Inter-American System. II COMPETENCE 4. The Court has jurisdiction to hear the instant case pursuant to Article 62(3) of the Convention as Colombia has been a State Party to the American Convention since July 31, 1973 and accepted the contentious jurisdiction of the Court on June 21, III PROCEEDING BEFORE THE COMMISSION 5. On November 5, 1999, the Inter-American Commission received a petition filed by the Corporación Colectivo de Abogados José Alvear Restrepo (Lawyers Institutional Group José Alvear Restrepo ) (hereinafter the petitioners ), which was processed under number On November 14, 2001, during its 113th Session, the Commission adopted Admissibility Report No. 76/01, by which it concluded that it had jurisdiction to 3 hear the petition filed by the petitioners for an alleged violation of Articles 5, 8 and 25, and Article 1(1) of the Convention, and decided to declare the admissibility of the instant case in relation to the alleged violation of Articles 5, 8, 25 and 1(1) of the American Convention. 7. On May 29, 2003, the Inter-American Commission, at the petitioners request, adopted precautionary measures in favor of Ricardo Gutiérrez-Soler, brother of the alleged victim, who [would have] endured a series of threats and harassments, and an attempted bomb attack, allegedly aimed at silencing the complaints filed by his next of kin against certain individuals, including Government officers, [allegedly] associated with the commission of the acts of the instant case. 8. On October 9, 2003 the Commission, according to Article 50 of the Convention, adopted Report No. 45/03, by which it concluded that: the Colombian State has violated Articles 5(1)(2) and (4), 7(1) (2) (3) (4) (5) and (6), 8(1), 8(2), 8(2)(d) and (e), 8(2)(g) and 8(3) and 25, in relation to Article 1(1) of the American Convention, to the detriment of Wilson Gutiérrez-Soler, by reason of the tortures and the cruel, inhuman and degrading treatment inflicted on him while held in custody by the State and on account of the failure by the State to satisfy the requirements of due process of law and right to judicial protection while investigating the violations and prosecuting the responsible parties. The State is also responsible for failure to comply with its fair trial obligations in relation to the violations endured by the victim while held in custody and for failure to compensate the damage caused, including the right to justice. With respect to the above, the Commission recommended that the State should: 1. adopt such measures as may be necessary to investigate and prosecute the parties responsible for the violation of Article 5 of the American Convention, before the ordinary courts, including the measures needed to reopen precluded proceedings or reexamine cases decided by military justice, as allowed by Constitutional Court precedent; 2. adopt such measures as may be necessary for Wilson Gutiérrez-Soler to receive adequate reparation for the pecuniary and non pecuniary damages caused as a result of the violation of Articles 5, 8 and 25; [and] 3. adopt such measures as may be necessary to prevent the occurrence of renewed acts of the same nature. 9. On December 26, 2003, the Commission issued Report No. 45/03 granting the State two months to notify the Commission of the measures adopted in compliance with the recommendations. 10. On January 23, 2004, the Commission, pursuant to Article 43(3) of the Rules of Procedure, notified the petitioners that it had adopted the report and submitted it to the State, and requested them to notify the Commission of their position regarding submission of the case to the Inter-American Court. The petitioners forwarded such information on February 26, On March 17, 2004, after a time extension had been granted, the term for the State to submit the Report No. 45/03-related information became due, without the State having forwarded any information on the matter. 12. On March 26, 2004, the Inter-American Commission decided to submit the instant case to the Court. 4 IV PROCEEDING BEFORE THE COURT 13. On March 26, 2004, the Commission filed an application with the Court regarding the instant case. 14. The Commission appointed officer Susana Villarán de la Puente and Executive Secretary Santiago A. Canton as delegates, and Ariel Dulitzky, Verónica Gómez, Norma Colledani and Lilly Ching as legal counsels. 15. On April 21, 2004, the Secretariat, once the application had been examined by the President of the Court (hereinafter the President ), served the application and its annexes on the State, and notified it of the term within which it was to answer the same and appoint its agents in the proceedings. Furthermore, the Secretariat, following instructions by the President, informed the State that it had the right to appoint an ad hoc Judge to participate in determining the case. 16. On that same day, in compliance with Article 35(1)(d) of the Rules of Procedure, the Secretariat served the application on the Centro por la Justicia y el Derecho Internacional and on the Colectivo de Abogados José Alvear Restrepo (Lawyers Group José Alvear Restrepo ) (hereinafter the Representatives ), appointed in the application as representatives of the alleged victim and his next of kin, and informed them that they had two months to file a brief with their requests, their arguments and their evidence. 17. On June 18, 2004, the State appointed Luz Marina Gil García and Luis Alfonso Novoa Díaz as agent and deputy agent, respectively, and Ernesto Rey Cantor as ad hoc Judge to participate in hearing the case. 18. On June 28, 2004, the Representatives filed their brief of requests, arguments and evidence (hereinafter the brief of requests and arguments ). 19. On August 31, 2004, the State filed a brief with its preliminary objections, its answer to the application and its comments on the brief of requests and arguments. The preliminary objections raised by Colombia consisted of: 1) impairment of the State s right to defend itself; and 2) failure to comply with the requirements for the exhaustion of domestic remedies. 20. On October 27, 2004, the Commission and the Representatives filed written arguments regarding the preliminary objections. 21. On February 1, 2005, the President issued an Order in which he required Kevin Daniel Gutiérrez-Niño, Yaqueline Reyes, 1 Luisa Fernanda Gutiérrez-Reyes, Paula Camila Gutiérrez-Reyes, Leonardo Gutiérrez-Rubiano, Leydi Caterin Gutiérrez- Peña, Sulma Tatiana Gutiérrez-Rubiano, Ricardo Alberto Gutiérrez-Rubiano, Carlos Andrés Gutiérrez-Rubiano and María Elena Soler de Gutiérrez, witnesses proposed by the Representatives, to render testimony by affidavit. He also ordered Iván 1 In the application, this name appears as Yaqueline Gutiérrez-Reyes. However, as the birth certificate issued by the Registrar of Life Statistics reads Yaqueline Reyes, the Commission stated in its closing written arguments that it had incurred in a material mistake when identifying this person by the first-mentioned name. Thereafter, the Court used the second-mentioned name. 5 González Amado, expert witness proposed by the Representatives, to file his opinion by affidavit. Furthermore, in said Order, the President summoned the Inter- American Commission, the Representatives and the State to a public hearing which would be held at the seat of the Inter-American Court on March 19, 2005, to hear their closing oral arguments on the preliminary objections and possibly on the merits, reparations and indemnities in the instant case, as well as the witnesses and expert witnesses proposed by the Inter-American Commission and the Representatives (infra para. 27). By means of said Resolution, the President also informed the parties that they were entitled to submit their closing written arguments regarding preliminary objections and possibly regarding the merits, reparations and indemnities up to April 11, On February 15, 2005, the Representatives filed the statements by Kevin Daniel Gutiérrez-Niño, Yaqueline Reyes, Luisa Fernanda Gutiérrez-Reyes, Leydi Caterin Gutiérrez-Peña, Sulma Tatiana Gutiérrez-Rubiano and Carlos Andrés Gutiérrez-Rubiano. They also pointed out that the statements by Luisa Fernanda Gutiérrez-Reyes and Leonardo Gutiérrez-Rubiano, on account of their status as minors, could not be taken under the form of an affidavit in view of the domestic legislation regarding minors. Finally, they stated that, for reasons beyond their control, María Elena Soler de Gutiérrez, Ricardo Alberto Gutiérrez and Paula Camila Gutiérrez-Reyes could not render testimony. Nevertheless, on February 16, 2005, the Representatives submitted the statements by Ricardo Alberto Gutiérrez and Leonardo Gutiérrez-Rubiano. 23. On February 16, 2005, the State forwarded a copy of the case file of the proceedings brought before the Criminal Military Court System against Colonel Luis Gonzaga Enciso Baron for the crime of Bodily Injuries against Wilson Gutiérrez- Soler. 24. On February 17, 2005, the Representatives filed the statement by Iván González Amado. 25. On March 4, 2005, the State submitted in writing its comments on the statements filed by the Representatives (supra paras. 22 and 24). 26. On March 9, 2005, the State filed a brief wherein it stated that: The Republic of Colombia, in its capacity as State Party of, and in accordance with, the American Convention on Human Rights, considering the domestic proceedings and the facts stated in the application filed by the Inter-American Commission on Human Rights and in compliance with its international obligations and its policy of promotion, protection and respect of human rights hereby expressly and publicly: 1. Withdraws the two preliminary objections raised by the State, which consist of impairment of the State s right to defend itself and failure to comply with the requirements for the exhaustion of domestic remedies. 2. Acknowledges its international liability for the violation of Articles 5(1), (2) and (4); 7(1) (2) (3) (4) (5) and (6); 8(1) (2)(d) (2)(e) (2)(g) and (3) and 25 of the American Convention on Human Rights, in relation to the facts asserted in the application. 3. Derives said acknowledgment from the acts or omissions of certain government officials who, acted individually in breach of their legal duties. 4. Reaffirms as its State policy the promotion and protection of human rights and expresses its respect and consideration for the victim and his next of kin and asks forgiveness for the occurrences. 6 5. Understands that this acknowledgment of liability is in itself an act of satisfaction towards the victim and his next of kin. 6. Requests to the Honorable Court that, would it be deemed appropriate, the State, the Representatives of the victim and his next of kin be granted the opportunity to reach, with facilitation by the Commission on Human Rights, a friendly settlement on reparations and indemnities, for which the State proposes a maximum delay of six months. 7. In the event the foregoing request is not granted, the State [p]rays to the Honorable Court that the foregoing acknowledgment of liability be taken into consideration and deemed effective to all legal purposes, so that action on the merits of the case be deemed concluded and the hearing be directed to discuss reparations and indemnities. 8. The State points out that this statement does not imply an estimation or assessment of individual criminal liabilities. 27. On March 10 and 11, 2005, the Court held a public hearing, at which there appeared: a) For the Inter-American Commission: Juan Pablo Albán, Counsel; Lilly Ching, Counsel; Verónica Gómez, Counsel; and Víctor H. Madrigal Borloz, Counsel; b) For the Representatives: Viviana Krsticevic, Executive Director of the Centro por la Justicia y el Derecho Internacional (hereinafter CEJIL ); Roxana Altholz, attorney-at-law for CEJIL; Rafael Barrios, attorney-at-law for the Corporación Colectivo de Abogados José Alvear Restrepo (Lawyers Institutional Group José Alvear Restrepo ); Eduardo Carreño, attorney-at-law for the Corporación Colectivo de Abogados José Alvear Restrepo (Lawyers Institutional Group José Alvear Restrepo ); and Jomary Ortegón, attorney-at-law for the Corporación Colectivo de Abogados José Alvear Restrepo (Lawyers Institutional Group José Alvear Restrepo ); and c) For the State: Julio Aníbal Riaño, Ambassador, Luz Marina Gil García, Counsel; Luis Alfonso Novoa, Deputy Counsel; Janneth Mabel Lozano Olave, Counsel; Dionisio Araujo, Counsel; Priscila Gutiérrez Cortés, Counsel; and Margarita Manjarrez Herrera, Counsel. Also present were Wilson Gutiérrez-Soler, witness proposed by the Inter-American Commission and the Representatives; Ricardo Gutiérrez-Soler, witness proposed by the Representatives; María Cristina Nunes de Mendonça, expert witness proposed by the Inter-American Commission; and Ana Deutsch and Jaime Prieto, expert witnesses proposed by the Representatives. 28. During the public hearing, the State reiterated the statements contained in the brief dated March 9, 2005 (supra para. 26), to the effect that the State withdrew the preliminary objections it had raised and acknowledged its international liability in the instant case. 29. During the same public hearing, with respect to the acknowledgment of liability made by the State, the Commission stated that: The Commission desires to greet and express its satisfaction to the Republic of Colombia for its having made public its acceptance of the claim against it and its acknowledgment of international liability for having violated the American Convention in relation to the facts asserted in the application filed in the instant case for illegal arrest, torture and violation of the right to fair trial of Mr. Wilson Gutiérrez-Soler. The Commission wishes to highlight, in particular, the words of the declaration that express respect and consideration for the victim and his next of kin and the gesture of contrition we have just witnessed, through which apologies are made to them in the name of the State, and received as a first step along the way to reparation of the damage caused. The Commission understands that the points in fact and in law to be included in the judgment that this Honorable Court will hand down in the instant case will be an invaluable 7 contribution towards achieving the purpose and aim of the American Convention and the Inter-American System. Further, the Commission also heeds with satisfaction the proposal extended by the State to reach a friendly settlement regarding reparations. The Commission understands this alternative procedure is of great importance for settling violation of human rights cases. In accordance with its prior practice in this matter, the decision of the victim to get involved or not in a procedure of this kind hinges on many personal factors, with the extension of which the Commission does not claim to be acquainted. For this reason, the Commission will wait to hear the victim, Mr. Gutiérrez-Soler, speak his will on this matter. The Rapporteur of the Commission for matters related to Colombia and delegate in the instant case, Mrs. Susana Villarán, [ ] transmits to this hearing, to the parties and the to the Honorable Court her sincere expression of gratitude for the willingness evidenced by the Republic of Colombia to comply with its human rights obligations through this acceptance of the claim. It is an act that, besides reinforcing the commitment evidenced to the Inter-American System, leads the way to reparation and eradication of violations of the American Convention consisting in inflicting torture on individuals in the custody of Government officials. In the instant case, it is worth noting that the victim, Mr. Wilson Gutiérrez-Soler, has shown an unusual courage, for more than a decade, by reporting his case. With the gesture made today, the State has lived up to the challenge of acknowledging the crime and the denial of justice by apologizing to Mr. Gutiérrez-Soler and his next of kin, and by showing its commitment to redress in full the damage caused, both on individual terms and in such a way as to contribute in the constant endeavor of watching out for events of this nature not to happen again. 30. During the above mentioned public hearing, with respect to the acknowledgment of lia
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