CCPR/C/60/D/612/1995
page 8
concluded that the authors had fulfilled the requirements of article 5,
paragraph 2 (b), of the Optional Protocol.
5.2
It had to be decided whether the disciplinary and administrative
proceedings could be regarded as effective domestic remedies within the
meaning of article 5, paragraph 2 (b). The Committee recalled that domestic
remedies must not only be available, but also effective, and that the term
“domestic remedies” must be understood as referring primarily to judicial
remedies. The Committee considered that the effectiveness of a remedy also
depended on the nature of the alleged violation. In other words, if the
alleged offence is particularly serious, as in the case of violations of basic
human rights, in particular the right to life, purely administrative and
disciplinary remedies cannot be considered adequate and effective. This
conclusion applies in particular in situations where, as in the present case,
the victims or their families may not be party to or even intervene in the
proceedings before military jurisdictions, thereby precluding any possibility
of obtaining redress before these jurisdictions.
5.3
With regard to the complaint under article 27, the Committee considered
that the authors had failed to substantiate how the actions attributed to the
military and to the authorities of the State party violated the right of the
Arhuaco community to enjoy its own culture or to practise its own religion.
Accordingly, that part of the complaint was declared inadmissible.
5.4
In the light of paragraphs 5.1 and 5.2 above, the
that the authors had met the requirements of article 5,
the Optional Protocol. Their complaints under articles
and 14 of the Covenant were sufficiently substantiated,
considered on their merits.
Committee considered
paragraph 2 (b), of
6, paragraph 1; 7; 9
and could be
The State party's information and observations on the merits and counsel's
comments thereon
6.1
In its submission under article 4, paragraph 2, of the Optional
Protocol, dated 14 November 1996, the State party observes that difficulties
of an internal nature arose in obtaining the information needed to reply to
the Committee in the case at hand. It considers that the case should be
declared inadmissible because of failure to exhaust available domestic
remedies and indicates that it would be willing to reopen the case if new
evidence warranting such a course came to light.
6.2
As far as the criminal proceedings are concerned, the State party
submits that the first proceedings instituted against Mr. Eduardo Enrique
Mattos and Mr. Alberto Uribe after the murders of the indigenous leaders were
unsuccessful and it was not possible to identify those responsible. On
18 January 1995, the investigation was assigned to the Seventeenth Public
Prosecutor's Office attached to the Valledupar District Court and under
article 326 of the Code of Criminal Procedure, it suspended the proceedings,
as no new evidence had come to light since 30 June 1992. On 23 March 1995,
the Seventeenth Public Prosecutor reopened the proceedings for the purpose of
considering the possibility of securing the cooperation of an alleged witness
to the events. On 9 May 1995, the witness was interrogated by a psychologist
on the staff of the Technical Investigation Unit in Bucaramanga. On