Elcida Arévalo Perez et al. v. Colombia

The author of the communication (initial letter dated 17 September 1984 and subsequent correspondence) is Elcida Arévalo P4res, 8 Colombian national residing in Colombia, writing on behalf of her sons, Alfredo Rafael and Samuel Humberto Sanjudn Arévalo, who disappeared in Colombia on 8 March 1982.

The author states that Alfredo Rafael (born on 7 October 1947), a student of engineering at the District University of Bogotá, left the family home in Bogotá, on 8 March 1982 at 8 a.m., with the intention to go to the university and that Samuel Humberto (born on 25 March 1959), a student of anthropology at the National University of Colombia, left their home on the same day at 3 p.m. for the purpose of attending to a job offer. They did not return and their whereabouts has been unknown ever since. The author further states that on the same day she was told by neighbours that their home had been watched by armed individuals carrying walkie-talkies, that these men had inquired about the activities of the Sanjudn * The text of an individual opinion submitted by kr. Nisuke Ando is reproduced in the appendix. ~3l- family and that they had ideatified themselves as agente of the F2 (a section of the Colombian police forces).

On 10 March 1982 the author roported the disappearance of her sons to the iocal police and to the Section of Disappeared Persons of the F2. She also regularly visited the morgues. Between June and September 1982 the case of her sone was reported to the assistant prowecutor of the Police, to the Armed Forces, to the Attorney General's office and to the Administrative Department of Security DAS. Investigations were carried out by most of these authorities for some weeks, but without results. ‘The author also mentions several letters written to the President of the Republic and states that, at the behest of his Office, a judga of a criminal court waa appointed in February 1983 to initiate the appropriate investigation. At the time of writing, she stated that these proceedings were still pending, due to frequent changes of judges.

The author claims that she could never obtain from the authorities any official information about her sons' whereabouts. However, in a letter dated 17 August 1982 from the alleged victims' father addressed to State Minister Rodrigo Escobar Navia (with copies sent to the President of Colombia, Minister of Justice and Attorney General), submitted to the Human Rights Committee as part of communication No. 1861/1984, it is stated that the parents of Alfredo and Samuel Sanjudn Arévalo received indications in August 1982 from the Chief of tho Administrative Department of Security, DAS, that their sons had been arrested by agents of the F2 and that on 13 August 1982 in the course of an dnaterview with the National Director of the F2, it wae iutimated that they would goon reappear ("confien en Dios que prontico apareceréa y estén tranquilos").

The author claims that articles 2, 6, 7, 9 and 10 of the International Covenant on Civil and Political Riyhts have been violated.

She indicater that the case of her sons is not being examined under another procedure of international investigation or settlement.

Having concluded that tne author of the comnunivetion was justified in acting on behalf of the alleged victims, the Working Group of the Human Rights Committee decided on 17 October 1964 to transmit the communication under rule 91 of the rules of procedure to the State party concerned, requesting information and observations relevant to the question of the admissibility of tha communication. The Working Group also requested the State party to forward copies of any official inquiries made in connection with the reported disappearance of Alfredo Rafael and Samuel Humberto Sanjudn Arévalo.

The deadline for the State party's submission under rule 91 of the Committee's rules of procedure expired on 20 Jenuary 1985. No rule 91 submission was received from the State party.

With regard to article 5, paragraph 2, of the Optional Protocol, the Committee noted that the author's statement, that the case of her sons was not. being examined under another procedure of international investigation or settlement, remained uncontested, §. With regard to article 5, paragraph 2 (b), of the Optional Protocol, the Committee was unable to conclude, on the besis of the information before it, that -32~ there were available remedies in the circumstances of the present cage which could or should have been pursued.

Oni1i1 July 1986 the Human Rights Committee therefore decided that the communication was admissible. The State party was further requested to forward copies of any official inquiries made in connection with the regorted disappearance vf Alfredo Rafael and Semuel Humberto Sanjudn Arévalo.

In ite submiseaions under article 4, paragraph 2, of the Optional Protocol, dated 11 August 1966, 21 January and & July 1987, 20 October 1988 and 27 January 1989, the State party forwarded the Committee copies of the relevant police reports on the on-going investigations into the disappearance of the Sanjudn brothers.

A report from the Office of the Attorney-General of Colombia (Proguraduria General), dated 19 June 1986, indicates that pursuant to an order of the Attorney-General of Colombia, dated 21 May 1986, the Colombian lawyer Martha Julieta Tovar Cardona was entrusted with a general review of tha records of the Colombian Police Department aimed at determining whether the cases of 10 disappeared persons and 2 deceased persons had been properly investigated.

The report reflects that on 19 June 1986 Ms. Tovar Cardona studied the records of the investigations started by the Colombian Police on 8 March 1983 concerning the suspected crime of kidnapping of 12 persons, including the Sanjudn brothers. In her report Ms. Tovar Cardona notes that there were indictments against 18 police officials. She also notes the appointment of a judge ip charge of the investigations into the suspected ccime of kidnapping and that in the course of the police investigations the records of prior discoveries of corpses, on 7 and 27 June 1962, 11 and 19 July 1982, 28 September 1962, 21 November 1982, and 15 February 1983 had been examined. None of the bodies had been identified.

The next 16 pages of the 18-page report consist mainly of listings of the names of some 193 persons interrogated (including the names of police officials suspected of involvement in the disappearances), with an indication of the date and place of deposition. There is no indication, however, as to the contents of any of the depnsitione or ao to their relevance to the disappearance of the Sanjuén brothers. Except for declarations made by Elcida Maria Arévalo Péres and Yolanda Sanjuén Arévalo on 11 March 1983 it cannot be seen which, if any, of the other declarations and depositions listed relate to their cases. There is reference, however, to inquiries which had been made at prisons and police stations to ascertain that the Sanjudn brothers were not being detained there. Other references concern the appointment of court officials to evaluate the evidence and the assignment of persons for on-site inspections. There is no indication of the outcome.

Ms. Toyar Cardona observes that the Colombian Police has carried out very considerabla investigations into the alleged disappearances and killings. The investigations are said to have continued until the end of May 1986. It cannot be seen whether the indictments against the various police officers have led to any further actions against them.

Ma. Tovar Cardona concludes her report by making the following observations: Tho original records. numbered 15 1 9 1 2 6 1674 3858 63 40 94.690331 to 75 1 9 1 2 8 1850 3854 309 45 96.018761 inclusive were examined and, in conformity with the instruction given verbally by the attorney assigned to the -33- police, particular importance was attached to determining by means of dates of reception and trenamittal, the various activities undertaken in the preliminary proceedings both in ordinary jurisdiction and in the military criminal justice syatem as well as the various formalities carried out by the departments responsibie for acting on the files. In addition to this. because of their quantity and since they were not absolutely germane to the £ulfilment of the mandate of legal vigilance of the representative of the Office of the Attorney-General ausigned to the police, the items of judicial svidence were not considered as a whole. Nevertheless, a scrutiny of the material evidence available with which the preliminary proceedings were conducted, complicated as they were on many occasions by the passage of time, distances, the lack of resources, the lack of co-operation on the part of relatives, friends, neighbours or in general those who had knowledge of the facts in coming forward with their testimony or in participating in confrontation formalities, identification parades and the adducing of items of judicial evidence as a whole, An examination of the proceedings does not reveal any irregularity or delay constituting a breach of discipline which would justify bringing charges, pursuant to the opening of a formal disciplinary investigation, and accordingly since the task set out in the order of 21 May 1986 issued by the office of the attorney assigned to the police han been completed, the files are returned herewith."

In respo. ie to the Committee's request for more precise information about the progress of investigations concerning the disappearance of the Sanjuan brothers, the State party indicated by note of 22 January 1987 that the case of the Sanjudén brothers (file No. 45317) was under review and that a statement of charges against members of the police force could follow. By letter of 27 January 1989 the Colombian Ministry of Foreign Affairs informed the Committee that a criminal investigation is being conducted by Court 34 of the Criminal Bench of Bogota: In these criminal proceedings, the Ninth Criminal Investigation Judge of Bogotá, who initially heard the case, on 25 1 3 1 2 9 1933 2315 107 56 95.628174 May 1983, admitted an application for related civil proceedings brought by the relatives of the victims. Such proceedings are established in Colombian criminal legislation for compensation, in the event that the acts reported are confirmed for the damages incurred, both materially and morally. Further, they offer the injured parties or their representatives an opportunity of requesting evidence in order to ascertain the truth about the offence, its perpetrators and accessories, their criminal liability and the nature and exteat of the damages inourred as well as many other activities granted to them by the law, such as the filing of remedies. In the case of the Sanjudn Arévalo brothers, the records show that their representatives have not made e fective use of that right and have confined themselves to requesting copies of the proceedings, without really moving matters forward. Because of the alleged involvement of members of the national police force, the military criminal proceedings were expedited by the Inspector-General of Police, the judge of the court of first instance, who, on 125 1 4 1 4 2 523 3497 178 44 94.523544 March 19875 1 4 1 4 4 914 3493 313 58 95.898994 qualified the pre-trial proceedings by dismissing the case against the officers, non-commissioned officers and members of the police alleged to be implicated. The decision was taken on the ground that the requirements of article 5395 1 4 1 7 5 1406 3707 64 41 96.658928 of the Code of Military Criminal Justice are not satisfied, i.e. full proof of corpus delicti or the existence of a convincing statement offering solid grounds for credibility or serious evidence ~34- identifying the accused as the principals or accomplices of the act under investigation ... This decision by the judge of the court of first instance was tranamitted to the Military Superior Court which confirmed it in tote.” | 8. With regard to the disciplinary investigations, the State party adds that the Attorney-General has reactivated the proceedings and accordingly appointed a special commission by an order dated 85 1 4 3 1 8 1701 701 278 45 86.132660 November 1988, comprising two co-ordinating lawyers of the Judicial Police and two technical investigators to continue to investigate the events that led to the disappearance of the Sanjudn Arévalo brothers. Having completed their mission, the appointed officials submitted cn 275 1 4 7 1 2 442 988 277 45 96.262115 November 19865 1 4 7 1 4 936 985 99 47 96.066368 the relevant evaluation report suggesting the upening of a i disciplinary investigation against the chief of the DIPEC (the former Intelligence Corps of the National Police), the chief of the Intelligence and Counter-Intelligence Section of the DIPEC, the chief of the Judicial Police of the DIPEC, and the non-commissioned officers and members of the National Police Force who acted on the orders of the aforementioned officers. The Office of the Attorney-General, on the basis of the evaluation report, ordered by decree of 195 1 4 9 6 2 446 1474 274 44 95.626678 December 19885 1 4 9 6 4 937 1473 98 44 96.710358 the proceedings to ha referrad to the Office of the Attorney-General assigned to the National Police so that a formal disciplinary investigation may be opene45 1 4 9 8 5 1324 1605 238 58 96.021111 against the aforemontioned officers and non-commissioned officers.” 8.35 1 5 1 1 2 515 1821 103 41 94.558273 The State party further observes that since the invastigations are stil} continuing and the applicable judicial procedures are pending, domestic remedies have not been exhausted. 9. No further submissions have heen receivad from the State party or from the author of the communication. 10. The Human Rights Committee has considered the present communication in the light of all written information mede available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. In adopting its views, the Committee stresses that it is not making any finding on the guilt or innoceace of the Colombian officials who are currently under investigation for possible involvement iu the disappearance of the Sanjudén brothers. The Committee limites itself to expressing its views on the question whether eny of the Covenant righta of the Sanjudn brothers have been violated bry the State party, in particular articles 65 1 7 1 9 3 732 2860 103 45 95.720284 and 9. In this coanection the Committees refare to its general comment 65 1 7 2 1 3 704 2927 123 52 96.558044 (16) concerning article 65 1 7 2 1 7 1609 2927 65 44 96.468697 of the Covenant, which provides, intex alia, that States parties should take specific and effective measures to prevent the disappearance of individuale and estabiish facilities and procedures to investigate thoroughly, by an appropriate impartial body, cases of missing and disappeared persons in circumstances which may involve a violation of the right to life. The Committee has duly noted the State party's submissions concerning the investigations carried out hitherto in this case. 11. The Human Rights Committee notes that the parents of the Sanjudn hrothers received indications that their sons had been arrested by agents of the F2". The Committee further notes that in none of the investigations ordered by the G:vernment has it been suggested that the disappearance of the Sanjudén brothers was caused by persone other than Government officials. In all these circumstances, therefore, the Committee, acting under article 5, paragraph 4, of the Optional ~35- Protocol to the International Covenant on Civil and Political Rights, finds that the right to life enshrined in article 6 of the Covenant and the right to liberty and sevurity of the person laid down in article 9 of the Covenant have not been effectively protected by the State of Colombia.

The Committee takes this opportunity to indicate that it would welcome information on any relevant measures taken by the State party in respect of the Committee's views and, in particular, invites the State party tc inform the Committee uf further developments in the investigation of the disappearance of the Sanjudén brothers. AOPENDIX

rule 9¢.. paragraph 3, of t= Committee's rules of procedure, aoncernin, tha views of the Committee on o Colombia I have no objection to the Committee's invitation that the State party continue to inform it of further developments i: the investigation into the disappearance of the Sanjudn brothers (para. 12 of the views).

However, in inviting the State party to continue to inform, the Committee notes that the Sanjud4n brothers were arrested in the first place by the agents of the 'F2', It further notes that “in none of the investigations ordered by the Government has it been suggested that the disappearance of the Sanjudn brothers was caused by private persons". Thus, “f{In] #11 these circumstances ... the Committee finds that the right to life enshrined in article 6 of the Covenant and the right to libesty and security of the person laid down in article 9 of the Covenant have not been effectively protected by the State of Colombia" (ibid).

I hav~ three reservations concerning these findings:

Firatly, the finding that the Sanjuan brothers were arrested ... by agente cf the ‘F2' is based on a statemert contained in a letter of the victims' father (para. 2.3). According to this letter, the parents of the brothers “received indications in August 19825 1 6 1 4 5 1049 1995 130 42 49.939957 from the Chief of the Administrative Department of Security ... thac their sons had been arrested by agents of the ‘F2'.

In my opinion, the Committee should have made it clear that its finding is based on that particular letter. Moreover, the letter's evidentiary value must be treated with caution.

Secondly. the finding that “in none of the investigations ordered by the Government has it been suggested that the da.appearance ... was caused by private persons" is not, in my opinion, well founded. It is true that the information contained in paragraphs 2.7 and 8 refers merely to the possible involvement of officers aud members of the Nat.onal Police in the brothers’ disappearance.

Nevertheless, eince the investigations of the case are still continuing and the applicable judicial procedures are pending (para. 8.3), it ig not proper for the Committee to make auch a finding at this stage, notwithstanding the posaeibility that it might be established that private persons were involved in the disappearances.

Thirdly, the finding the (In) all these circumstances ... the right to life ... and the right to liberty end security of the person ... have not been effectively protected by the State of Colombia" is, in my opinion, too sweeping.

It is true that many cases of disappearances, including this one, are reported to have occurred in Colombia, and that the investigations of these cases seem to have encountered a number of difficulties. This situation is indeed deplorable.

Nevertheless, considering the efforts made by the Colombian Government, which can be ascertained from ite replies to the Committee's requeste fur clarifications, I em unable to persuate myself that the Committee's sweeping finding is justified.