Decision
the Committee from deciding on the merits of a case under its consideration. In the case at hand, there are exceptional circumstances that make this a sui generis case, in the light of the position of A.F.D. as a member and leader of M-19, which the military forces viewed as an enemy armed group that must be eliminated. The authors add that, during the years following the death of A.F.D., M-19 members were killed and disappeared and their families lived in terror, and many people were forced into exile. They point out that throughout the 1990s there were massive human rights violations and widespread impunity, 5 as well as persecution of officials who investigated serious human rights violations committed against members or former members of M-19. Similarly, lawyers who represented victims of human rights violations were persecuted and, in some cases, murdered, as was the case with their legal counsel, J.E.U.M. Given this situation, C.L.C.D. had a well-founded and legitimate fear that any claims she might bring before international bodies against the State party could expose her to serious danger and put her life and personal safety and that of her two daughters at risk. During the period from 1989 to 2003, when she and her children resided in the State party, naturally their priority was to ensure their own survival, and not to take any legal action that might put them at risk yet again. They were nonetheless subjected to persecution and threats and therefore had to leave the country once more. Finally, having returned to the State party in 2011, and in the light of the statements made by the Government to the effect that it would put forward legislation to protect the victims of the armed conflict, C.L.C.D. had hope of obtaining truth, justice and reparation for the death of her husband and the violations of their rights. However, the law that was ultimately passed did not provide them with that possibility. State party’s observations on admissibility 4. On 17 February 2015, the State party submitted its observations on the admissibility of the communication. It submits that the communication is inadmissible on the grounds that domestic remedies have not been exhausted, that it constitutes an abuse of the right of submission and that it is manifestly unfounded. 4. The State party submits that the communication primarily reflects the authors’ dissatisfaction with the judgments issued by the national courts concerning the death of their family member, and that they are asking the Committee to act as an appeal court (of fourth instance) to challenge the judicial proceedings of the military criminal justice system. However, it is not for the Committee to review judicial decisions issued by national courts that have been legitimately constituted and established pursuant to the Constitution, or to assess the facts, evidence and investigation of a case heard by national courts. 4. The authors’ communication constitutes an abuse of the right to submit a communication. While the Optional Protocol does not establish a deadline for submitting a communication to the Committee as regional human rights bodies do, in its jurisprudence the Committee has deemed some communications to be inadmissible on the ground of abuse of the right of submission, owing to the amount of time elapsed between when the facts occurred and when the case was submitted to the Committee. 4. In the case at hand, there was no obstacle preventing the authors from submitting a communication to the Committee earlier, at any point during a period of at least two decades. While at some point there might have been exceptional circumstances at play that would have prevented them from approaching the Committee, that was no longer the case as from around 1989, when the authors returned to the State party and took up residence in Bogotá. Even if it was previously not possible to submit the communication, as the authors claim, C.L.C.D. returned to live in the State party in 2011, and yet she did not submit the communication until 8 November 2013. Furthermore, the State party contends that the authors are abusing their right of submission by deliberately providing false or distorted information. For example, they claim that they suffered from a “widespread climate of persecution” that prevented them from remaining in the State party and availing themselves of the necessary legal remedies. This is contradicted, however, by the fact that V.F.C. and A.F.C. were able to complete their education, at both the basic and university levels, under completely normal circumstances, and that C.L.C.D. carried out very conspicuous activities as a founding member of the non-governmental organization Colectivo de Mujeres Excombatientes. If C.L.C.D. had believed that her life was at risk, she would not have led this organization, which is made up of women who previously served as combatants in M- 19 and other organizations. On the contrary, the Colectivo de Mujeres Excombatientes was given ample room to carry out its activities. Lastly, the peace process entered into with M- 19 was successful and culminated in the signing of the peace agreement on 9 March 1990. As a result of this agreement and an amnesty granted to former M-19 combatants, the latter were able to fully exercise their rights and even participated as the M-19 Democratic Alliance in the Constituent Assembly that prepared the Constitution adopted in 1991. 4. The authors did not exhaust domestic remedies in relation to the matter raised in this communication. Regarding the rules governing criminal proceedings in ordinary courts, 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. 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. 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. 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. 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. 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. 5. At the time of the events in question, claims brought before an administrative court against the State for direct reparation based on the State’s liability in tort were limited to compensation claims and did not cover other forms of reparation recognized under international law, such as restitution, rehabilitation, satisfaction or guarantees of non- repetition. 5. The ordinary courts only conducted a preliminary inquiry and never formally opened a criminal investigation by means of an order to initiate proceedings. Therefore, since the law did not allow for the filing as civil parties to the prosecution in the pretrial stage, the authors had no legal option to file as civil parties to the prosecution in the preliminary stage of the proceedings carried out by Court No. 75. Nor could they do so in the proceedings of the military courts. In addition, the military court proceedings were not conducted by an independent, impartial and competent court. The judge of first instance — the Brigadier General — was a civil servant in the executive branch and, moreover, was the superior of those accused of having carried out the extrajudicial killing of A.F.D. Furthermore, a military court cannot be considered to have jurisdiction in a case involving serious human rights violations. 5. Regarding the State party’s observations on Act No. 1448 of 2011, the authors state that the Act was adopted 25 years after the death of A.F.D. and that, consequently, at the time of the events in question, no such remedy was provided for in the domestic legal order; that the Act provides for certain forms of reparation, but not those relating to the bringing to justice of the perpetrators of human rights violations; that it expressly excludes members of illegal armed groups; and that this exclusion was reaffirmed by the Ministry of Justice and the Constitutional Court when reviewing the constitutionality of article 3 (2) of Act No. 1448. The Constitutional Court stated that members of illegal organized armed groups who were victims of violations of international humanitarian law or serious and flagrant violations of international human rights standards could have access only to ordinary legal procedures for obtaining truth, justice and reparation. At the time of his death, A.F.D. was a member of M-19, which, according to Colombian law, was an illegal organized armed group, meaning that the authors — as his family members — were not entitled to the reparation measures provided for in the Act. In addition, the mechanism set out in Act No. 1448 is not a judicial one and is therefore not an effective remedy, as it cannot provide satisfaction with respect to justice, truth and reparation. 5. The communication does not request the Committee to act as an appeal court of “fourth instance”. With regard to the proceedings carried out by the military criminal courts, the purpose of the information provided in the communication is to allow the Committee to determine whether or not those proceedings constituted an effective remedy before an independent, impartial and competent court, whether there was any denial of justice, and whether the State party fulfilled its obligation under the Covenant to conduct an effective, independent and impartial investigation. 5. With regard to the State party’s observation that the communication constitutes an abuse of the right of submission, the authors reaffirm their claim that they were unable to submit the communication earlier for security reasons, as doing so would have put their lives and personal safety at risk. Following the death of their loved one, various M-19 members, former members and sympathizers were killed or disappeared. This situation continued even in the years following the demobilization of M-19, as evidenced by the fact that the authors themselves had to leave the State party from 2000 to 2003. Even after the formation of the political party M-19 Democratic Alliance, members of M-19 were still subjected to persecution, murder and disappearance. By way of illustration, they attached a list of cases that occurred between 1990 and 2002. Issues and proceedings before the Committee Consideration of admissibility 6. Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol. 6. As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement. 6. With regard to the requirement to exhaust domestic remedies, the Committee takes note of the authors’ claim that they did not have access to an effective remedy. The Committee also takes note of the State party’s argument that the authors did not exhaust all domestic remedies, since the rules of procedure governing criminal proceedings in the ordinary courts at the time offered them broad scope for participating in the proceedings as civil parties, of which they did not avail themselves; and that, at the same time, the authors did not ask to be included in the Central Registry of Victims, which would have allowed them to access the various forms of humanitarian support, assistance and reparation set out in Act No. 1448 of 2011 within the framework of a transitional justice mechanism. The Committee notes, however, that the State party’s observations describe in general terms the powers granted to civil parties to the prosecution in criminal proceedings of the ordinary courts, without explaining specifically how those rules would have applied to the authors’ participation in the proceedings before Court No. 75, which did not formally open a criminal investigation but merely conducted a preliminary inquiry. Furthermore, despite the time that has elapsed, no criminal investigation has been conducted with a view to shedding light on the circumstances surrounding the death of A.F.D. and punishing those responsible. The Committee recalls its jurisprudence according to which, in cases of serious violations, a judicial remedy is required. Accordingly, the Committee concludes that there is no impediment to the admissibility of the communication under article 5 (2) (b) of the Optional Protocol. 6. The Committee notes the State party’s argument that the communication constitutes an abuse of the right of submission within the meaning of article 3 of the Optional Protocol because there was nothing to prevent the authors from submitting the communication to the Committee earlier, at least after 1989, and that, even if it was not possible to submit the communication after that date, C.L.C.D. returned to live in the State party in 2011, and yet she did not submit the communication until 8 November 2013. The Committee also notes the authors’ claim that, in practice, they were unable to submit a communication to the Committee earlier for security reasons, since even after they took up residence again in the State party in 1989, and throughout the 1990s, the persecution of persons connected with or related to M-19 continued, and many such persons became victims of murder or enforced disappearance. They therefore had reason to fear that any claims they might make against the State party before international bodies could put them at serious risk and, in fact, they were obliged to leave the State party once again and seek refuge in other countries from 2000 to 2003. 6. The Committee points out that, although there is no explicit deadline for the submission of communications under the Optional Protocol, in accordance with rule 96 (c) of its rules of procedure, “[a]n abuse of the right of submission is not, in principle, a basis of a decision of inadmissibility ratione temporis on grounds of delay in submission. However, a communication may constitute an abuse of the right of submission, when it is submitted after five years from the exhaustion of domestic remedies by the author of the communication, or, where applicable, after three years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay taking into account all the circumstances of the communication.” The Committee also recalls its jurisprudence according to which a communication is considered to constitute an abuse of the right of submission when an exceptionally long period of time has elapsed, without sufficient justification, between the relevant events in the case or the exhaustion of domestic remedies and the submission of the communication.9 6. In the case at hand, the Committee notes that the judicial activity concerning the death of A.F.D. took place between 1986 and 1987 and that, as there were no other effective remedies, the matter could have been submitted to the Committee subsequently — about 30 years ago. The State party claims in general terms that the exceptional circumstances that might have prevented the authors from submitting the communication to the Committee ceased to exist around 1989, when they returned to live in the State party; and that, following the signing of the peace agreement between the Government and M-19, former combatants from that group enjoyed all their rights and even participated in political life through the political party known as the M-19 Democratic Alliance. The Committee notes, however, that the authors have illustrated their claims of persecution with specific cases of M-19 members or persons associated with the group who were reportedly killed or disappeared between 1990 and 2002, including, in 1998, J.E.U.M., who had been their legal representative and the lawyer of their family member; and that the State party has not explicitly contested these claims. Moreover, between 2000 and 2003, the authors again left the State party to reside in other countries, either as refugees or under international protection. That being said, the Committee notes that the authors have not convincingly explained what was preventing them from submitting a communication to the Committee after 2004, even if they were outside the country. Notwithstanding the seriousness of the facts on which the authors’ complaints are based, the Committee is of the view that, in the absence of such explanations, and given that the relevant events in the case took place in 1986, the late submission of the communication has not been sufficiently justified and constitutes an abuse of the right of submission. Thus, the Committee concludes that the communication is inadmissible under article 3 of the Optional Protocol. 7. The Committee therefore decides: (a) That the communication is inadmissible under article 3 of the Optional Protocol; (b) That this decision shall be transmitted to the State party and to the authors of the communication.