compensation: the damage done and the loss of
income suffered by the victim as a result of abuse of
authority by an agent of the State or an error on the
part of the civil service. Other aspects of the right of
victims of human rights violations to compensation,
such as the right to protection of family members,6
are not covered by the decisions of administrative
courts or the Council of State. From this standpoint,
administrative litigation does not fully guarantee the
right to compensation.
investigation being conducted against some of those
responsible for the incidents in the case. The
decision by the Attorney-General’s Office was based
on the fact that one of the officers involved had died
and that disciplinary action was being taken against
the others under article 34 of Act No. 200 of 1995,
which set a statute of limitations of five years for
disciplinary matters.
5.7 Lastly, the authors reiterate that the only
appropriate
domestic
remedy
is
criminal
proceedings, which in the present case are being
conducted in the military courts. In accordance with
the Committee’s case law and that of other
international human rights bodies, the military courts
in Colombia cannot be considered an effective
remedy for dealing with human rights violations
committed by members of the army. Even if a
military criminal trial might be considered an
appropriate remedy, the military criminal court has
been conducting its criminal investigation for more
than five years without any apparent results. The
Colombian Military Criminal Code stipulates a
period of no more than 30 days within which to
complete the initial investigation (art. 552) and no
more than 60 days for completion of the proceedings
when there are two or more offences or defendants
(art. 562). The trial, in one of the various procedural
formats, must be conducted within two months (arts.
652 to 681), by a summary court martial dealing
with offences against life and the person (art. 683).
The proceedings taking place in the military criminal
court have exceeded these terms.
5.4 As regards the State party’s contention that
the Government has requested the AttorneyGeneral’s Office to consider the possibility of
transferring the criminal proceedings to the ordinary
courts in the light of Constitutional Court decision
No. C-358, the authors make the following
observations:
– Transfer of the criminal proceedings
currently being conducted by the military authorities
to the ordinary courts is not a certainty, but merely a
possibility. In similar situations, the military courts
have refused to comply with Constitutional Court
decisions.
– Notwithstanding
Constitutional
Court
decision No. 358/97, declaring a number of articles
of the Code of Military Justice unconstitutional, the
provisions of the Constitution governing military
jurisdiction remain in force and their ambiguous
wording makes it possible for violations of human
rights by members of the armed forces to be
prosecuted in the military courts.
– The Ascanio Ascanio family filed an appeal
to have the case transferred to the ordinary courts in
the light of Constitutional Court decision No.
358/97. Their appeal was turned down by the Office
of the Public Prosecutor.
Decision on admissibility
6.1 At its seventieth session, the Committee
considered the admissibility of the communication
and ascertained, as required under article 5,
paragraph 2 (a), of the Optional Protocol, that the
same matter was not being examined under another
procedure of international investigation or
settlement.
– It was in fact the Office of the Public
Prosecutor that decided, without any legally valid
grounds for doing so, to transfer the preliminary
proceedings in the case to the military courts.
6.2 With regard to article 5, paragraph 2 (b), of
the Optional Protocol, the Committee considered
that the length of time taken in the judicial
proceedings relating to the investigation of the
deaths and prosecution of the perpetrators was
unjustified. In addition, it recalled that, if the
violation that is the subject of the complaint is
particularly serious, as is the case with violations of
basic human rights, particularly the right to life,
remedies of a purely disciplinary and administrative
nature cannot be considered sufficient or effective.
Furthermore, the compensation proceedings have
been unreasonably prolonged.
5.5 With regard to the State party’s contention
that the authorities to which the victims’ relatives
had turned have “carried out their functions”, the
authors state that this assertion is far from the truth,
since the communications sent identify each of the
State institutions to which an appeal was made and
indicate the status of the proceedings in each.
5.6 The criminal proceedings have remained
within the military criminal jurisdiction, yet the
victims’ families have been unable to become parties
to the proceedings. On 27 February 1998, the
Human Rights Division of the Attorney-General’s
Office ordered the discontinuance of the disciplinary
6
6.3 On 13 October 2000, the Committee declared
the communication admissible, considering that the
facts presented gave rise to issues under articles 6, 7,
CCPR/C/D/563/1993, para. 10.
64
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