7.9 Finally, counsel refers to an incident on 31
August 1995, which is said to confirm that nothing
is, or will be, done to bring those responsible for
Nydia Bautista's death to justice. On this day,
Ms. Bautista's family and members of the
Association of Relatives of Disappeared Prisoners
(ASFADDES) met in a popular restaurant in Bogota,
to demonstrate on the occasion of the 8th
anniversary of Nydia's disappearance. Soon after
their arrival, an individual in civilian clothes entered
the restaurant and occupied a table next to theirs. All
those present identified Brigadier General Velandia
Hurtado, who continued to monitor the group
throughout the meeting. The presence of
Mr. Velandia Hurtado, who otherwise commands the
Third Army Brigade in Cali, on those particular
premises on that particular day, is considered to be
yet another instance of intimidation of Nydia
Bautista's family.
article 118 provides for the closure of those
preliminary enquiries in which more than two years
have gone by without the identification of a suspect.
This decision, counsel notes, had no basis in reality,
given the evidence of Mr. Garzón Garzón. Counsel
concludes that almost eight years have passed since
the date - 5 November 1987 - on which Magistrate's
Court 53 (Juzgado 53 de Instrucción Criminal) first
opened
preliminary
criminal
investigations
(Indagación Preliminar No. 280). Over a period of
almost eight years, the order to dismiss
Messrs. Velandia Hurtado and Ortega Araque
constitute the first true sanction, a sanction which
has still not been implemented.
7.6 By letter of 29 August 1995, counsel
complains that the State party's government continues
to stall in implementing the order of dismissal
pronounced against Mr. Velandia Hurtado. The latter
indeed appealed against the decision of the National
Human Rights Delegate to notify the decision of
5 July 1995 by registered mail (Acción de tutela, see
paragraph 7.2 above). On 2 August 1995, the
Administrative Tribunal of Cundinamarca decided in
his favour, on the ground that the mode of notification
chosen by the Human Rights Delegate's Office had
been illegal. It ordered the Office to notify Resolution
No. 13 personally to Mr. Velandia Hurtado.
Examination of the merits
8.1 The Human Rights Committee has examined
the present case on the basis of the material placed
before it by the parties, as required under article 5,
paragraph 1, of the Optional Protocol.
8.2 In its submission of 14 July 1995, the State
party indicates that Resolution 13 of 5 July 1995
pronounced
disciplinary
sanctions
against
Messrs. Velandia Hurtado and Ortega Araque, and
that the judgment of the Administrative Tribunal of
Cundinamarca of 22 June 1995 granted the claim for
compensation filed by the family of Nydia Bautista.
The State party equally 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 above-mentioned decisions constitute an
effective remedy for the family of Nydia Bautista.
The Committee does not share this view, because
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,
notably in the event of an alleged violation of the
right to life.
7.7 With this decision of the Administrative
Tribunal, counsel contends, Resolution No. 13 of
5 July 1995 cannot be implemented. Since the
remains of Nydia Bautista were recovered on
26 July 1990 and under the terms of the applicable
disciplinary procedure, a statute of limitations of five
years begins to run from the day of the "final
constituent act of the offence" ("último acto
constitutivo de la falta" - Law No. 24 of 1975, article
12), it is now likely that the case will be filed
because of prescription of the offences attributed to
Messrs. Velandia Hurtado and Ortega Araque.
7.8 Counsel further points out that far from
ordering the dismissal of Mr. Velandia Hurtado from
the armed forces, the authorities promoted him to
Brigadier General and, during the first week of
August 1995, awarded him the Order for Military
Merit "José Maria Cordova" - this award was made
pursuant to a decree signed by the President of the
Republic. This award, according to counsel,
constitutes an act of defiance vis-à-vis the
Colombian judicial organs and a reward for
Mr. Velandia Hurtado's past activities. In short, it
can only be interpreted in the sense that the
Colombian Executive is prepared to tolerate and let
go unpunished even serious human rights violations.
This attitude is said to have been confirmed by the
so-called Defensor del Pueblo in his second report to
the Colombian Congress, in which he criticizes that
human rights violators in Colombia can expect to
benefit from total impunity.
8.3 In respect of the alleged violation of article 6,
paragraph 1, the Committee recalls its General
Comment 6 [16] on article 6 which states, inter alia,
that States parties should take specific and effective
measures to prevent the disappearance of individuals
and establish effective facilities and procedures to
investigate, thoroughly, by an appropriate and
impartial body, cases of missing and disappeared
persons in circumstances that may involve a
violation of the right to life. In the instant case, the
Committee notes that both Resolution No. 13 of the
National Delegate for Human Rights of 5 July 1995
108
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents