institutional liability of the State in relation to the
incidents forming the subject of the complaint.
military cases is the commander of the Second
Mobile Brigade, who is precisely the person
responsible for the military operation that gave rise
to the incidents forming the subject of the complaint.
4.4 According to the State party, the authors
conclude that “the families and NGOs have applied
to every possible source of legal remedy and have
exhausted all the legal paths open to them”, but they
do not state in what way those sources are carrying
out their functions. The authors themselves refer to
“the great mass of information collected by the
investigating authorities”; this confirms the
Government’s contention that the judiciary has been
working on the case and is continuing to do so.
State party’s admissibility submission and author’s
comments
4.1 In its communications dated 11 February and
9 June 1998, the State party requests that the
complaint be declared inadmissible on the grounds
that domestic judicial remedies have not been
exhausted, as required under article 5, paragraph 2 (b),
of the Optional Protocol to the International Covenant
on Civil and Political Rights.
4.5 The Government does not share the authors’
view that “the case has sunk in a morass of
impunity”. The remedies in themselves cannot be
described as ineffective, nor can generalizations be
made about their alleged ineffectiveness because of
the difficulties faced both by the authorities and by
the families of the victims in the exercise of those
remedies. For instance, the sister of one of the
victims submitted a petition to the National
Directorate of Public Prosecutors’ Offices requesting
it to rule that a conflict of jurisdiction existed, so that
the proceedings could be transferred from the
military criminal justice system to the ordinary
courts. This request could not be met and was
refused, simply because she had applied to an
administrative, and not a judicial, authority that was
not competent to deal with petitions of that type.
This clearly does not signify a denial of justice, and
the difficulties and delays in the handling of the
remedies cannot be interpreted as “impunity” on the
part of the State.
4.2 The State party maintains that the introduction
of proceedings and the presentation of complaints
before the investigating, supervisory and judicial
authorities of the State, mentioned in the authors’
communication with regard to the exhaustion of
domestic remedies, form a basis for initiating the
appropriate procedures but do not in themselves
signify the exhaustion of those remedies.
4.3 The State party also reports that various
proceedings are under way, from which it may be
concluded that domestic judicial remedies have not
been exhausted. The proceedings mentioned as
under way are as follows:
– As
regards
criminal
proceedings,
investigation proceedings are being conducted by
Court No. 47 of the Military Criminal Investigation
Department. Progress is being made in one of the
most important stages, namely that of investigation,
in the course of which various steps have been taken,
such as statements, identification of photographs,
exhumations and special visits to the place where the
incidents occurred and other neighbouring sites.
5.1 In communications dated 30 March and
19 October 1998, the authors maintain that the mere
existence of a procedural means of addressing
human rights violations is insufficient; such
remedies must have the capacity to protect the right
violated or, failing that, to compensate the damage
done. They note that the Human Rights Committee,
when dealing with particularly serious violations,
has held that only domestic remedies in criminal
justice can be deemed to constitute effective
remedies within the meaning of article 2, paragraph
3, of the Covenant.5 They also note that, according to
the Committee, purely administrative and
disciplinary remedies cannot be deemed adequate or
effective.
– In the light of Constitutional Court decision
No. C-358, the Government has requested the
Attorney-General’s Office to study the possibility of
transferring the criminal proceedings to the ordinary
courts.
– As regards disciplinary proceedings, the
Human Rights Division of the Attorney-General’s
Office has opened disciplinary proceeding file No.
008-153713 with a view to conducting a disciplinary
inquiry concerning the members of the armed forces
alleged to have been implicated.
5.2 The authors maintain that the disciplinary
procedure in question is a self-monitoring
mechanism for the civil service, whose function is to
ensure that the service is operating correctly.
– As regards administrative litigation,
proceedings have been initiated (see para. 2.15) to
obtain direct compensation and are at present under
consideration in the administrative litigation courts,
with a view to obtaining State compensation for
damage that the State may have caused to an
individual while performing its functions through
one of its agents; this could lead to a declaration of
5.3 According to the authors, administrative
litigation deals with only one aspect of the right to
5
63
See note 4.
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