CCPR/C/116/D/2399/2014
despite the authors’ claims that they were unable to file as civil parties to the prosecution
during the pretrial stage (that is, during the preliminary investigation), in reality they could
have participated effectively in the proceedings. Under Decree No. 50 of 1987, persons
who had filed as civil parties to the prosecution enjoyed various powers during the
proceedings, such as the power to request the taking of evidence, to report property owned
by the accused and ask that it be seized, and to lodge an ordinary or extraordinary appeal
against a ruling. In addition, such persons had the option to request that proceedings be
annulled or that a judge be recused. Thus, the law provided broad scope for action during
the proceedings, of which the authors could have made full use if they had wished.
4.6
In their submission to the Committee, the authors erroneously interpret Act No.
1448 of 2011, and in particular article 3 (2) of the Act. While the Act provides that
members of illegal organized armed groups are not to be treated as victims, their spouses,
partners or permanent companions can be treated as direct victims of the harm suffered. In
this regard, even if it is assumed that the authors’ family member was active in M-19 at the
time of his death, the Act does not exclude the authors from being treated as direct victims.
Accordingly, they could have availed themselves of the various measures for
comprehensive reparation provided for in Act No. 1448, subject to the assessments that
must be carried out by the Unit for Support and Full Reparation for Victims in order for
victims to be included in the Central Registry of Victims. The authors also qualify as
victims on the basis of their claims that they were persecuted because of the fact that
C.L.C.D. was a member of M-19. However, the authors did not apply to be included in the
Central Registry of Victims.
4.7
Article 2 of the Optional Protocol refers to “all available domestic remedies”. It
therefore covers the obligation to exhaust not only strictly judicial remedies but also all
other legal remedies. For example, in this case, the authors could have asked to be included
in the Central Registry of Victims. Victims who are listed in the Registry are entitled to
receive humanitarian assistance in matters of health, education, funeral arrangements,
identity documentation, food, and family reunification, and to access other forms of
reparation. Act No. 1448 also recognizes and defines the rights of victims to truth, justice,
full reparation and guarantees of non-repetition, which are established as fundamental
pillars of a transitional justice mechanism.
4.8
The authors’ claims have not been sufficiently substantiated for purposes of
admissibility. The State party maintains that the authors have made serious allegations that
are not supported by the documentation submitted as an annex to their communication.
Authors’ comments on the State party’s observations on admissibility
5.1
On 17 April 2015, the authors responded to the State party’s observations on the
admissibility of the communication. They claim that the communication meets the
conditions for admissibility set out in the Optional Protocol and reiterate their claims
regarding the requirement to exhaust domestic remedies and the reasons why they were
unable to submit a communication to the Committee earlier.
5.2
While article 5 (2) (b), of the Optional Protocol establishes as a condition for
admissibility that the individual must have exhausted all available domestic remedies, in the
case of serious human rights violations — such as extrajudicial killings — neither
administrative or disciplinary remedies and sanctions nor administrative dispute
proceedings can be considered as suitable and effective remedies within the meaning of
article 2 of the Covenant. Similarly, a remedy cannot be considered effective if it does not
allow the victims or their family members to associate themselves with the prosecution in
judicial proceedings or even to intervene therein, thereby precluding the possibility of
obtaining reparation through the courts.
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