CCPR/C/43/D/287/1988

B. Communication Mo. 287/1988. O.H.C. v. Colombia (decision

of 1 November 1991. adopted at the forty-third session)

Submitted by:

O.H.C. (name deleted)

Alleged victims;

The author and his brother

State party;

Colombia

Date of communication; 18 February 1988 (date of initial letter)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Bights,

Meeting on 1 Kovember 1991,

Adopts the following;

Decision on admissibiljty

1.

The author of the communication (initial submission dated

18 February 1988) is O.H.C, a Colombian citizen born in 1954 in Medellin,

Colombia, and currently residing in London. He submits the communication on

his own behalf and that of his brother, J.O.C., who is unable to himself

submit a complaint. It is submitted that both are victims of violations by

Colombia of articles 6, 7, 17 and 19 of the International Covenant on Civil

and Political Rights.

Fapts as submitted bv the author

2.1 The author was a student and union activist in Colombia prior to his

departure for the United Kingdom of Great Britain and Northern Ireland, where

he requested refugee status on 2 September 1988. Until September 1987, he had

served as vice-president of the National Association of Civil Servants in the

National University (Vice Presidente Nacional de la Asociacion de Empleados

Publicos de la Universiaaa Nacional). He claims that in 1987 and 1988, he and

his brother were repeatedly threatened by paramilitary groups in Medellin,

such as the group "Amor por Medellin". Several of his and his brother's

friends, all of whom were, like the author, engaged in some form of union

activities, were assassinated in the course of 1987.

2.2 On 5 September 1987, on the occasion of the eleventh National Congress of

the National Federation of Civil Servants, the author's apartment was

ransacked by armed men in uniform, allegedly members of a paramilitary group

whom the author suspects to have had links with the Colombian armed forces;

subsequently, he received death threats by telephone both at his home and

office.

2.3 On 5 February 1988, the author's brother disappeared. Two days later, he

was found in a paddock, unconscious and suffering from a cerebral concussion,

with signs of having been subjected to torture. He was admitted to a hospital

in Antioquia where he was treated, but he never recovered. The author states

that his brother has remained mute and semiparalysed as a result of the

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torture he was subjected to, and that even special therapy has not improved

his state. The author suspects that the paramilitary group to which the

incident was attributed was backed by the regular armed forces.

2.4 In the latter context, the author contends that the Colombian armed

forces regularly practice torture, are engaged in killings and disappearances,

and cooperate with, or at the very least tolerate, the activities of

paramilitary groups. He points to the report issued by the United Nations

Working Group on Enforced or Involuntary Disappearances after its visit to

Colombia in the autumn of 1988, which stated that there was indirect proof of

armed forces involvement in many of the disappearances occurring in Colombia.

2.5 With respect to his own case, the author indicates that a Sergeant Major

from the army, one D.T., told him that his participation in various

demonstrations had been noted by the army's intelligence service and aroused

considerable suspicion, and that the "army had it in for him" ("estaba muy

quemado con el ejercito"). In the first half of 1987, an agent of the special

security police was uncovered in a union meeting at the University of

Antioquia, in which the author participated. All these events, as well as the

ill-treatment of his brother, allegedly were designed to induce the author to

withdraw from his union activities.

2.6 As to the requirement of exhaustion of domestic remedies, the author made

several complaints to the Colombian Attorney-General's Office, to the Police

Department in Me&ellin and to several examining magistrates in Bogota. They

promised to investigate his and his brother's cases, but no conclusive result

has transpired. In particular, the author filed a complaint with the

examining magistrate Ho. 21 in Bogota, who had been instructed to investigate

matters related to interference with union activities in the National

University of Colombia. In spite of regular reminders, he did not receive a

reply; no o»e has been indicted, as those responsible for his brother's

situation and for the threats against his life have not been identified. The

author concludes that the Colombian judicial system is virtually inoperative,

as he contends was conceded even by a Colombian Federal Prosecutor, and that,

accordingly, he should be deemed to have complied with the requirements of

article 5, paragraph 2 {b), of the Optional Protocol.

Complaint

3.

It is submitted that the facts described above constitute violations of

articles 6, 7, 17 and 19 of the International Covenant on Civil and Political

Rights.

State party's information and observations

4.1 The State party submits that the communication is inadmissible on the

ground of non-compliance with article 5, paragraph 2 (b), of the Optional

Protocol, since the author failed to avail himself of available remedies.

4.2

In this context, it indicates that it has instructed the Office of the

Prosecutor-General and the National Office of Criminal Investigations in

Bogota to inquire into the author's allegations. As soon as these

investigations are concluded, they will be brought to the Committee's

attention.

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4.3 The State party points to several inconsistencies in the author's

presentation of the facts. For instance, he states that his brother was found

in a paddock on 7 February 1988, whereas the medical history of J.O.C.

submitted by the author indicates that he was admitted to the hospital of

Antioquia on 31 January 1988. Secondly, the State party submits that the

author has failed to substantiate any violation of his or his brother's right

to life. Finally, it contends that there is no evidence in the material

submitted by the author that, either directly or indirectly, would implicate

the armed forces of Colombia and thus establish the responsibility of the

State party. In the State party's opinion, it remains entirely possible that

J.O.C* has been the victim of a common crime.

Issues and proceedings before the Committee

5.1 Before considering any claims contained in a communication, the Human

Sights Committee must, in accordance with rule 87 of its rules of procedure,

decide whether or not it is admissible under the Optional Protocol to the

Covenant.

5.2 The Committee has noted the State party's contention that the author has

failed to exhaust available domestic remedies, as well as the author's reply

that such remedies would not be effective.

5.3 As to the alleged violations of article 19, the Committee finds that the

author has failed to sufficiently substantiate, for purposes of admissibility,

his claim; nor has he adduced any documentary evidence in support of his

contention.

5.4 As to the author's other allegations, the Committee notes that judicial

investigations into the events complained of are pending. While it is certain

that these investigations have encountered a number of difficulties, the

Committee observes that these difficulties are attributable primarily to the

fact that no direct involvement of the State party's regular armed forces has

been, or can at present be, proven. While fully understanding the

circumstances which led the author to submit his communication under the

Optional Protocol, the Committee cannot conclude on the basis of the

information before it that domestic remedies in Colombia would be a priori

ineffective and that difficulties in the judicial process would absolve the

author from exhausting domestic remedies.

6.

The Human Eights Committee therefore decides:

(a) That the communication is inadmissible under article 5,

paragraph 2 (b), of the Optional Protocol;

(b) That this decision be communicated to the State party and to the

author of the communication.

[Done in English, French, Russian and Spanish, the English text being the

original version.]

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