Examination of the merits
and the Villafañe Chaparros brothers and Manuel de
la Rosa Pertuz, according to the evidence gathered
by the Human Rights Division, were coordinated
from Valledupar and almost certainly from No. 2
Artillery Battalion “La Popa” (sheet 19).
8.1 The Human Rights Committee has examined
the present communication in the light of all the
information made available to it by the parties, as
provided for under article 5, paragraph 1, of the
Optional Protocol.
7.3 In the above-mentioned decision of 1992, the
Human Rights Division considered, in the following
terms, that the two officers' participation in the
events had been established:
8.2 In its submission of 14 November 1996, the
State party indicates that Lieutenant Fernández
Ocampo and Lieutenant-Colonel Izquierdo retired
from the army at their own request, on the basis of
decisions 7177 of 7 September 1992 and 9628 of
26 December 1991, respectively. Moreover, the
recommendation by the Human Rights Division of
the Attorney-General's Office that these two persons
should be dismissed was not implemented, since
they retired from the army at their own request. The
State party also reiterates its desire to guarantee fully
the exercise of human rights and fundamental
freedoms. These observations would appear to
indicate that, in the State party's opinion, the abovementioned decision constitutes an effective remedy
for the families of the deceased indigenous leaders
and for the Villafañe brothers. The Committee does
not share this view: purely disciplinary and
administrative remedies cannot be deemed to
constitute adequate and effective remedies within the
meaning of article 2, paragraph 3, of the Covenant,
in the event of particularly serious violations of
human rights, especially when violation of the right
to life is alleged, as it indicated in its decision on
admissibility.
“Luis Fernando Duque Izquierdo and Pedro
Antonio Fernández Ocampo took part in both the
physical and psychological torture inflicted on José
Vicente and Amado Villafañe Chaparro, members
of the Arhuaco indigenous community, and on a
civilian, Manuel de la Rosa Pertuz Pertuz, and also
the abduction and subsequent killing of Angel
María Torres, Luis Napoleón Torres and Antonio
Hugues Chaparro” (sheet 30).
On the basis of the evidence gathered by the
Human Rights Division, counsel rejects the
Colombian Government's argument justifying the
delays and standstill in the investigations.
7.4 Counsel submits that the disciplinary
procedure which led to the ordering of the two
sanctions was not judicial, but administrative in
nature - a “disciplinary investigation”, which is
aimed at “preserving the orderly conduct of the
public service and protecting the principle of legality
infringed by State agents who commit minor
administrative offences”. By virtue of his
disciplinary powers, the Attorney-General of the
Nation may, once the disciplinary procedure has
been completed, order administrative sanctions if
necessary. Private individuals cannot be parties to a
disciplinary investigation nor can they institute
criminal indemnity proceedings. Neither can persons
injured as a result of an administrative offence use
the disciplinary procedure to obtain appropriate
compensation for the injury suffered. The purpose of
disciplinary proceedings is not to provide
compensation for the injury caused by the behaviour
of the State agent or to restore the infringed right. In
this connection, counsel refers to the previous
decisions by the Committee1.
8.3 In respect of the alleged violation of article 6,
paragraph 1, the Committee observes that decision
No. 006/1992 of the Human Rights Division of
27 April 1992 clearly established the responsibility
of State agents for the disappearance and subsequent
death of the three indigenous leaders. The
Committee accordingly concludes that, in these
circumstances, the State party is directly responsible
for the disappearance and subsequent murder of Luis
Napoleón Torres Crespo, Angel María Torres
Arroyo and Antonio Hugues Chaparro Torres, in
violation of article 6 of the Covenant.
8.4 As to the claim under article 7 in respect of the
three indigenous leaders, the Committee has noted the
results of the autopsies, and also the death certificates,
which revealed that the indigenous leaders had been
tortured prior to being shot in the head. Given the
circumstances of the abduction of Mr. Luis Napoleón
Torres Crespo, Mr. Angel María Torres Arroyo and
Mr. Antonio Hugues Chaparro Torres, together with
the results of the autopsies and the lack of information
from the State party on that point, the Committee
concludes that Mr. Luis Napoleón Torres Crespo,
Mr. Angel María Torres Arroyo and Mr. Antonio
Hugues Chaparro Torres were tortured after their
disappearance, in violation of article 7.
7.5 Counsel reiterates that domestic remedies
were exhausted when the relevant criminal
complaint was lodged with the competent ordinary
court and also when criminal indemnity proceedings
were instituted. The proceedings were closed. There
has been unjustified delay in the proceedings.
1
Communication No. 563/1993 (Nydia Bautista de
Arellana v. Colombia), Views adopted on 27 October 1995,
para. 8.2
140
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