The Committee, accordingly, is of the view that the State party is under an obligation to take effective measures to remedy the violations which Raul Cariboni has suffered and, in particular, to grant his adequate compensation.
The Committee expresses its appreciation for the measures taken by the State party since March 1985 to ensure observance of the Cov~nant and co-operation with the Committee.
December 1983 (date of initial letter) Date of decision on admissibility: 26 March 1985 The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, Meeting on 2 November 1987, Baying COncluded its consideration of communication No. 161/1983, submitted to the Committee by Joaquin Berrera Rubio under the Optional Protocol to the International Covenant on Civil and Political Rights, Baying taken into account all written information made available to it by the author of the communication and by the State party concerned, Adopts the following: Views under article 5. paragrQPh 4. of the Optional Protocol
The author of the communication (initial letter dated 1 December 1983 and subsequent letter dated 4 October 1986) is Jaoquin David Herrera Rubio, born on 3 December 1958, a Colombian citizen, living in Bogota, Colombia. He submits the communication on his own behalf and in respect of his decea:ed ~arents, ,Jose Joaqin Herrera and Emma Rubio de Herrera. -190-
On 5 April 1981, the author was taken to the pri.on in Florencia and informed that hi' parent. had been killed. At his request, he was immediately brouCilht again before the military judge, before whom he retracted his "confe•• ioll" and denounced the death threat. received earlier concerning his parents. Hi. n.w declaration allegedly di.appeared from hi. dos.ier.
The author .t.ate. that on 13 December 1982 he was releaseu from prt.on due to Amnesty Law No. 35 of 1982 coneelning political ~etainees.
With regard to his parents' deaths, the author state. the followingl Hi. father, Jo.' Joaquin Herrera, 54 years old, wa. treaaurer ol lhe Council ol Community Ar.tion (.l.wltILf1L.Ac~lonComunal) in the village of aaUineta belonging to the municipality of Doneellol his mother, !mma Rubio de Herrera, 52 yean old, had been ..leroted town Councillor fOl' the l.r..ot.tL.DllIlQ.trAtlcol they were both farmers. In February 1981, his parent.' home way .earched by approximately 20 memberB of the armed forre. and the author's father wa. ordered to follow them. He returned ono hour later bearing .ign8 at beating,. One week later the .Mltt group, part at the IlllttAlIQIL.Cg.l.wnh..1A, led by a captain, a lieutenant ftnd a corporal (their name. are given), detained hi. father for .everal houro during which he waR subjected to torture. The same happened the following day. On 27 March 1981, at 3 a.m., a qroup of individUAls in military uniform" identified a8 members of the "counter·-querrilla", arrived at the home of the author'. parents and ordered his father to follow them. When hi. mother objwcted, she we. also obliged to follow them. The author's brothers reported the disappearance of theil· p~rent8 innedietely afterwards to th£ Tribunal of Doneello. One week later they were called by the authorities of Doneello to identify the bodies of their parentsl their father's body was decapitated and his hands tied with a rope.
With regard to the question of exhaustion of domestic remedies, the author .tate. that from prison he wrote to the President of Colombi~, to the Oftice of the
The author claims that his communication reveals violations of articles 6, 7, 9, 10 and 17 of the International Covenant on Civil and Political Rights. He indicates that the pxesent case is not being examined under another procedure of international investigation or settlement.
By its decision of 22 March 1984, the Working Group of the Human Rights Committee transmitted the communication under rule 91 of the provisional rules of procedure to the State party concerned, requesting information and observations relevant to thp. q~estion of admissibility of the communication. The Working Group also requested the State party to provide the Committee with (a) copies of any court orders or decisions relevant to the case of Joaquin David Herrera Rubio and (b) copieE of the death certificates and medical report~ and of the reports of whatever inquiry was held in connection with the deaths of Jose Joa~uin Herrera and Emma Rubio de Herrera.
No reply was received from the State party in this connection. The time-limit establIshed by the Working Group's decision expired on 15 July 1984.
The Committee found, on the basis of the information before it, that is was not precluded by article 5, paragraph 2 (a), of the Optional Protocol from c~nsidering the commu~ication. The Committee was also unable to conclude that, in the circumstances of the case, there were effective domestic remedies which had not been exhausted. Accordingly the Committee found that the communication was not inadmissible under article 5, paragraph (b), of the Optional Protocol.
On 26 March 1985 the Human Rights Committee therefore decided: (a) That, in addition to acting on his own behalf. the author was justified in raising the case of his deceased parents, Jose Joaquin Herrera and Emma Rubio de Harrera; (b) That tbe communication was admissible; (c) That in accordance with article 4, paragraph 2, of the Optional Protocol, the State party should be requested to submit to the Committee, within six months of the date of the transmittal to it of the current decision, written explanations or statements clarifying the matter and the remedy, if any, that might have been taken by it; (d) That the State party again be requested to furnish the Committee with (i) copies of any court orders or decisions ,taken against JOaqu1n David Herrera Rubio and (ii) copies of the .death certificates and autopsy reports and of the reports of whatever inquiry was held in connection with the deaths of Jose Joaquin Herrera and Emma Rubio de Herrera.
In its submission under article 4, paragraph,2, of tt. Optional Protocol, dated 11 August 1986, the State party indicates that the killings of Jose Herrera -192- " ••• becaU8e it wa•••tabli.hed that no member ot the armed force. took part in those events. The repurt include. telegram No. 5047, dated 24 ~ay 1984, signed by the commandinq ofticer of thd Ninth Brigade with headquarter. in Neiva, .tating that the Honourable OJlciplinary Court had ~n 29 March 1984 a8cribed jurisdiction to inve.tigate these murder. to the Third High Court of Florencia (C~queta) which, by telegram No. 157 ot 18 Se~tember 1986 addressed to thi& office, reported that proceeding_ to date had revealed no involvement of any member of the arme~ force. and that the d085ier had been temporarily closed in conformity with article 473 of the Code of Criminal Pr~cedure."
'I'h" St.ate party also forwarded thtt text of a decision of the Penal Chamber c" the Superior Court of Florencia, d,ted 18 Februa~y 1983, finding, atter a judicial investigation lasting from ~4 September 1982 to 25 January 1983, that the killingl had been perpetrated by armed persona, without, howf'Vdr, being 3ble to determine to whlch group they belonged. 'l'hi. decision also quotus the testimony of the author's brother Luil Herr3ra Rublo, who .tated that his parents had no enemies in the commtmity and that they had only had problems with members of the Colombian army, who had repeatedly ~earched t~eir home and detained his father ~n a previous occa:don.
With rei ect to the criminal proceedings inftituted against t~e author and to the author's b~~egations ~hat he had been Bubj&cted to torture, the Attorney-Gen~ral Delegate for the ;rmed Forces stated thata "The Military Court of Criminal Investigation No. 37 [hereinafterl Court No. 31] attached to the Juanab~ Battalion (Floreneia), acting on a report dated 11 Fe~ruary 1981, ligned by the officor commanding the Colombia Airborne Battalion, opened on 18 February 1981 a criminal investigation againlt Alvaro Hurtatls and others on th~ charge of rebellion (involvement in the FARC (Fuer8as Armad&ti R"volucionarias de Colombia) rebol group), in connect. ion with events that occurred in Caquet~ in the years 1979, 1980 and 1981. During this inveltlgation, the accused's Itatement given on 3 April 1981 implicated Joaquin Herrere Rublo (alias El Guara). who was arrtt.tl!l(\ "'y a patr'ol of the Colombia Battaliol' on 11 March 1981 in Cartagena del Chlar~ (Cdquet~). By decision dated 8 April 1981. Court Nu. Qr~ered the pre-trial detention of Joaquin He~rera Rubio on lhe charge of rebellion. In nppllcations dated 1 May and 11 June 1981, Joaquin Herrera Rublo reque~ted thJ permission of Court No. 31 to ma\e an addition la his unsworn etatemp,jt. In this statement to the Court on 15 June 1~81 he gave an account of (118 tortures to which he had been subjocted by members of the Colombia Battalion. The charges of torturtt wore also made on oath during the inquiry and Court No. 37 also recttived a sworn st~tement about them during its proceedings. Joaquin Herrera Rubio ~tated that the tortule described in the reports of the Offlce of the Attorney-General of ~hd nation and In those In th~ possession of the United Nations Human Rights Committee were inflicted on him 4n the Colombia Battalion, that he did not know the names of the soldiers who tortqrnd him since they bllndfnlded him first. that he brought no c~"rges "The rlorancia High Court, according to the photocopy of the regi.ter anne.ed, by court order dated 23 June 1983,. declared the amne£ty ~pp1icable to the Inve.tigation by virtu. of the p~ovi.ion. ot Act 35/82 and con.equently ordered tbat all proceedingl agalnlt Joaquin Herrera Rubio and other. on the charge. of rebellion, e.tortion and ftggravated theft should be ~tayed. The court decision ••• mad. no reference to and did not investigate tbe torturing :.If Joaquin Oavid Herrera Rublo."
On 2] March 1986, the A~torney-aeneral Delegate (or the Armed Forces decided not to op~n a form~l inve.tiga~~on with regard to the allegations of torture in the author'. ca.e. The deci.ion read. in part. "Mr. Herr..ra Rubio complained of the alleged torture. to Court No. 37 in ad4ition., made on 15 June 1981 and 28 Oct.ober 1981, to hi. statement a. an accu.ed per.on. The.e .ta~ement. a••ert that, when he wa. al~e.t.ed on 17 March 1981, army personnel from the Donc81lo Military Bas8 and the Cartagena del Chaira Military Ba.e tortured him, but a. they blindfolded him before do\ng 10, he could not identit} them. "Tt.e r~orencia regional otfice of the Attorney·aeneral was In.tructCltd to take a further statement trom Lhe complainant but it was not possible to di.covsr hi. whereabouts in the Department oi Caquetal it wa••tated that he wa. po••ib1y living in Puerto Llera•• "In Juirie. were ordered to be r .ade at the Municipal Pr ison into the phy.lcal condition of the complainant on his arrival there. The medical officer in charge of pri.ona und~r the HighjCourt state. that, aJnce medical record. for ea~h inmate had begun to be kept only from the last three months of 1983, he cannot .ubltantiate the allegation. "On the index card kftpt by the legal counsel's of tica, relating to Herrere Rubio h.ld on a charge of reb~llion. there ia no record that he ente~ed the pri,on with marks of tClrture or injuries. It states that he entered the p~i.on of the judicial district on 11 Augu.t 1981. "In view of the difficulties of obtaining evidence about eventa ~hich happened five years ago, thia office can take a decision only on the baail of the account given by the alleged victim to Court No. 37 in 1981 • ., The ftuthor states in pa~ -';I ,;",il 1.4 above that. he hac' already b.en released from imprisonment on 13 December 1982.
In his co~nent., ~ated 4 October 198f, the author dl.mis.s. the State party'. re.pon.e a. "a prime e.ample of the variOUI legal SUbterfuge) \l.ed I:y tlte arme~ forces, with the colluaion ol the other branches of government, t.o sale9uard their impunity" .
The author refute. the Stato party'. argument. \n the following waYI "In it. reply concecning the mu~d.r of my parents, the Colombian Govarnment totally absolve. the armod force. from blame, claiminq that the f,et of wearing military unitor~ i. in no way proof of the pr••ence of member. ol the a~med forces and insinuating that the crim. might have been committed by the FARe guerrilla group. "This reply i. completely a..:. odds with the facttj of the ca.e, as reported to the committee, member. of the armed force. repeatedly sear, "d the home of my parents, tortured my father and repeatddly told me, while 1 ~a8 in prison, that they would kill my parent., as indeed they did. "Tho complaint submitted to the committee give. the nameB of veriouB .erving member'. of the armed forcel responsible for the search"., torture and threats, yet the Attorney-General has nothing to say on tho subject. " "The insinuation that a guet'rilla group .ueh as FARC carried out tbe.e killings 19 absolutely inconsistent wit~ other information in the case One of the documents attached by the Attorney-General state. that I was charged with rebellion becau.e ~f my allequd links with FARC. It alIa notes that my mother was a councillol for the Democratic Front. a political organi.aton en10ying FARC support in the region. It would therefore be absurd to ima~ine that FARC could have committed this crime, when it thereby have been killin~ its own aympftthiaers. "Regarding the torture or which I was a victim. the Attorney-General states that the investigation into this matter was also closed because, htttI aliol "At the time, pria,;oners were not given a medical exwnlnatlon; "1here are difficulties in obtaining eviderce about events which happened five years ago; "It was only three months after the ill-treatment that. the injured party decided to report it. "The Attorney-General would also appear to be unawar" of the psycho~ogical presure on a prisonsr who has been subjected to cruelty and harasBment and lacks any means of defence. Such prisoners often decide not to file a complaint so as to saVd themselves or their families from further and even more cruel acts in retaliation. So it was with me, in deciding to report the torture aad threats which I had suffered only when I learned that my parents had been killed by the armed forces and could not therefore ~d subjected to further crIminal reprisals. "Las~ly, in order to understand the nature ot this crime, the Committee needs to have 80m8 idea of its context. "In 198], the Department o:~ Caqueta was the scene of a military ~oun~~r-insurgencyoperation under cover of which all kinds or crimes were committed. "Since this is a semI-forest are~ somewhat isolateG from the centre of the country and with poor communications, this operation waa largely paBsed over in uilence by the media. "Most villages in the area were Bubjected to stringent controls by the armed forces on the s~PP08ition that every peasant was 'collaborating wi~h the guerrillas'. MOBt of the popUlation Buffered Bearches, intimidation, plunder of their household goods, crops an~ cattle, and ~ruel, inhump~ and 6egrading treatment, torture was widely and sYGtemati~ally practised and there were numerous diseppearances and killings. Many peasants were arrested and then taken by military helicopter to villages whftre they were not known, there they were killed and their bodies thrown on to a ro,d or into a river (the number of pe r 80ns kil~ed may approach 1,000). "This array of premeditated crimes had the full backing of the Vari01l9 branches of Government. That is why domestic complaints were useless and all these crimes have so far gone absolutely unpunished." 8 1 The author's comments were transmitted to the State party on 27 November 1986.
In view of the conflicting statements by the parties, the Working Group of the Hwnan Rights Committee, at a special 8~s8ion in December 1986, decided to requ8s~ more detailed information fr~m the State party. By notd verba1a of 18 December 1986, the following specific questions were formulatedz (a) What investigations hav~ been undertaten with regar-d to those military officers who have been specifically name~ by the author and accused o~ having committed torture, carried out raids and made threats? (b) What invdstigations aro now b8ing carried out with regard to the deaths of the parents of Mr. Herrera Rubio and with regard to his allegatIons of torture? (c) Have charges been brought against anyone? 9.:'. The documents forwarded by th.. State pllrt~· appear to confirrn that no furt.her Inve.t:igai:.ions have been undeltaken or are pending in the Herrero ('a.e.
By a further letter, dated 8 JUly 1981, the Ministey of Foreign Affairs of ColoJllbia confh-med that the inve.tlgetlon. in the author's case have been concluded and that no legal proceedings against mlitary personnel could be initiated be~au.e of lack of sufficient evidence. The State party therefore requests the committee to consider the explanations and statements already submitted in adopting }ts views in the ca.e.
The Hwnan Rights Committee, having examined the present communication in the light of all the information made available to it by the parties as provided in article 5, paragraph 1, of th~ Optional P~otocol, hereby decides to base its view. on the following facts and considerations.
Joaquin Herraro Rubio was arrested on 17 March 1981 by members ot the Colombian armed force~ on suspicion of being a "guerrillero". He cleims that he WIU' tortured ("l!Iubrnarine", "hanging" and beatings) by Colombian military authorities who also threatened him that unless he signed b confes.ion his parents would be killed. On 27 March 1981, persons in civilian clothes and others wearing military uniforms, identifying themuelves as memberB of the counter-querr!lla, ~ame to the home of lhe author' 8 pluents and led them away by force. One week later the bodies of Jose Herrera and Emmh Rubio de Herrera were found in the vicinity. At that time the District of Caqueta is repol'ted to have been the scene of a military counter-insurgency operation, during which most village. in the area were Mubjected to stringent controls by the armed forces. The State party has shown that a judicial investigation of the killing8 was c~rried out from 24 Sep~ember 1982 to 25 January 1983, and claims that is was establishod that no member of the drmed forces had taken part in the killings. With respect to the author's allegations of torture, the State party contends that they are not cr8dible in view of th. fact that three months elapsed from the time ol the alleged ill-treatment befnl8 the author's complaint was brouqht to the attention of the Court.
Whereas the Committeo considers that there is reason to believe, in the 1i9ht of the author's allegations, that Colombian military persons bear responsibility for the deaths of Jose Herrera and Emma Rubio de Herrera, no conclusive evidence has heen produced to establish the identity of the murderers. In this connection the Committee r~fer8 to its general comment No. 6 (16) concerning article 6 of the Cove.,ant, which provides, .iJlttu __Ali.A, that Stat&s parties should take sped fie and effective measures to provent the disappearance of individuals and establish effective facilities and procedures to ivestigate thoroughly, by an appropriate impartial body, cases of missing and disappeared persons in circumstances which may involve n violation of the right to life. Thp Committee has duly noted thn State party's submissions concerning the investigations carried out in this case, which, however, appeur to have been inadequate in the light of the State party's obligati~n8 under article 2 of the Covenant.
With regar" to the bUt'den of proof, the Committee halll ah:eady established in other caeee (f~r e.ample, No•• 30/1978 and 85/1981) AI that t:lie cannot reat ~lone on the author of the co~nunlcatlone, aspecially considering that tbe author and the State party do not alwaye have equal aCCPS8 to the evi~enee and that frequently the State party alone has access to relevant information. In the circumstances, due weight muet be given to the authors' allegations. It is implicit in article 4, parograph 2, of the Optional Protocol that the State party has the duty to inve.tigate in good faith all allegations of violation of the Cov~nant made against it and its authoritie., and to furniah to the Committee the information available to it. In no circumstancee ahould a State party fail to inveetigate fully allegations of ill-treatment when the person Ot' persons allegedly r~sponsibl. for th~ ill-treatment are identified by the author of a communication. The State party has in this matte I provided no precise information dnd reports, int8r_~liA, on the questioning of military official~ accused ot maltreatment ot prisoners, or on the questioning of their auperiore.
The Human Rights Committee, acting under article ." pal'agraph 4, of the Optional Protocol to the International Covenant of Civil an~ Political Right., is of the view that the facts a. found by the Committee disclose violations of thfJ Covenant with respect tOI Article 6, becau..e the Btate party failed to take appropx'iate meallures to prevent the disappearance and aubeequent killings of Jos' Herrera and Emma Rubio de Herrera and to inve.t.igate ettectively the reeponsibiUty for their murdersl and Article 7 and article 10, pftragraph 1, because Joaquin Herrera Rubio was subjected to torture and Ul-treatment during hill detention.
The Committee, accordingly, is of the view that tho State party is under an obligation, in accordance with the provisions ot articl~ 2 of the Covonant, to take effective measures to remedy the violations that. Hr. HI!I['rttra Rublo has suffered and further to investigate said violations, to take actiun th.reon as appropriate and to take steps to ensure that similar violations do not occur in the future.