Case Summary and Outcome

The Inter-American Court of Human Rights held that Colombia was internationally responsible for serious human rights violations, including the Convention’s right to freedom of expression and political rights, committed over two decades ago against members and militants of the Unión Patriótica (U.P.) political party. Unión Patriótica was a Colombian political party created in 1985 that suffered systematic violence and political persecution for over two decades. The case was brought before the Inter-American Court of Human Rights by both Colombia and the Inter-American Commission on Human Rights, with the support of a group of Colombian NGOs. Colombia partially admitted its international responsibility for the facts but limited its scope only to the violation of the Convention’s duty to “prevent”.

In contrast, the IACtHR, and the other petitioners, argued that Colombia had shown tolerance, acquiescence, and complicity with the grave violations suffered by approximately six thousand victims—who were sympathizers or members of Unión Patriótica. The IACtHR held that Colombia was responsible for the systematic violence against members and sympathizers of the U.P., who suffered from acts such as forced disappearances, massacres, extrajudicial executions and murders, threats, attacks, various acts of stigmatization, improper prosecutions, torture, forced displacement, among others. The IACtHR also held that these acts were a form of systematic extermination against the Unión Patriótica political party, and its members and militants, with the participation of state agents, and with the tolerance and acquiescence of the authorities. In turn, the Court also deemed as arbitrary the decision of the Colombian Electoral Council to deprive the U.P. political party of its legal personality after being unable to reach a certain level of electoral support, without having considered the stigmatizing and intimidating effect of the systematic violence against its members. The IACtHR held that the patterns of violence and systematic stigmatization against the victims were aimed at excluding the members of Unión Patriótica from the democratic field in Colombia, violating their political rights, freedom of expression, and freedom of association. In light of this, the IACtHR also held that Colombia violated its duties to respect, and to prevent, under the American Convention concerning the rights to recognition as a person before the law, to life, to due process, to personal integrity, to personal liberty, to freedom of movement and residence, and to the rights of the child.

---

Facts

On 28 May 1985, the Unión Patriótica (hereafter Unión Patriótica, U.P. or the victims) was formed as a political organization in Colombia after a “peace process” between the Colombian government and the Revolutionary Armed Forces of Colombia (hereafter FARC), known as the “Acuerdos de la Uribe”.

The U.P. was conceived as a left-wing political alternative opposed to the traditional power structures in Colombia. It rose rapidly within Colombian national politics and in some regions of Colombia where there had been, traditionally, a strong guerrilla presence. As a result, an alliance arose in Colombia between paramilitary groups, sectors of traditional politics—the state’s security forces—, and business groups, to counteract the rise of the U.P. In this context, U.P. sympathizers, members, and militants suffered acts of violence for more than two decades throughout Colombia. The acts of violence suffered by U.P. members included threats, attacks, acts of stigmatization, persecution and improper prosecution, forced displacement, torture, extrajudicial executions and assassinations, forced disappearances, and massacres, among others.

On December 16, 1993, the “Corporación para la Defensa y Promoción de los Derechos Humanos – Reiniciar” and the “Comisión Colombiana de Juristas” (hereinafter, the petitioners) filed a complaint with the Inter-American Commission on Human Rights (hereinafter, the Commission) against Colombia, arguing that for twenty years the country violated the human rights of approximately six thousand victims who were members and militants of the U.P. The petitioners held that all these acts were a form of systematic extermination against the U.P. political party, its members, and militants, perpetrated by state agents and individuals acting with the tolerance and acquiescence of national authorities. The organization “Derechos con Dignidad” and the family of Miguel Ángel Díaz also joined the petition.

On 6 December 2017, the Commission issued Merits Report 170/17, in which it held that Colombia was “responsible for the violation of the rights to recognition as a person before the law, to life, to personal integrity, to personal liberty, to judicial guarantees, to honor and dignity, to freedom of expression, to freedom of association, to the special protection of children, to freedom of movement and residence, to political rights, to equality and non-discrimination, to judicial guarantees and to judicial protection, established in Articles 3, 4, 5, 7, 8, 11, 13, 16, 19, 22, 23, 24 and 25 of the American Convention […]; for the violation of Articles 1, 6 and 8 of the ICPPT; and for the violation of Articles I a) and b) of the CIDFP.” [para. 1586 of the Commission Merits Report][1]

In the Merits Report, the Commission acknowledged the enormous complexity involved in determining the definitive list of victims during the two decades of systematic violence suffered by the members and militants of the U.P., but accepted the consolidated figure presented by the petitioners of 6,528 victims—between 1984 and 2006. The Commission also stated that from this consolidated figure, 3,134 were victims of deprivations of their right to life, 514 were disappeared, 133 suffered torture, 224 suffered arbitrary detentions, 501 were threatened or harassed, 1,600 were displaced, 291 suffered attempted homicides, and 129 suffered unfounded prosecutions. In addition, the Commission ordered Colombia to fully compensate the victims and their families.

In September 2017, Colombia “acknowledged its responsibility for failing to comply with its duty to protect the members and militants of the U.P., although it argued that some specific facts and the determination of the victims remained in dispute.” [para. 2] However, on 15 May 2018, Colombia submitted its response to the Merits Report 170/17, alleging that the Commission failed to recognize the efforts made by the country to provide reparations to the victims and the importance of its domestic transitional justice mechanisms to solve some of the pending issues. Colombia also refused to provide reparations to the victims in the terms required by the Commission in its Merits Report.

On 13 June 2018, Colombia submitted the case “Members and Militants of Unión Patriótica v. Colombia” to the Inter-American Court of Human Rights. Colombia rejected the broad scope of international responsibility assigned to it by the Commission in its Merits Report. On the issue, it asserted that “the theory of attribution of international responsibility applied by the Commission does not take into account the multiple complexities of the case and is also contrary to international law and international human rights law.” [para. 249] Moreover, Colombia acknowledged its international responsibility for violating its obligation to guarantee and prevent the violation of the rights enshrined in articles 4, 5, 3, 7, 13, 16, 22, 23, 8, and 25 of the American Convention on Human Rights, but did not admit that it had failed to comply with its obligation to “respect” these rights under Article 1(1) of the Convention. Colombia also argued that the facts established in the Commission Report on the Merits “are not sufficient to prove a situation of acquiescence, tolerance and collaboration” [para. 347] in the human rights violations suffered by members and militants of the U.P.

At the same time, Colombia affirmed that it did not deliberately fail in its duty to investigate, prosecute, and punish those responsible. On this point, the country explained that it has developed a complex model of transitional justice in accordance with international human rights law. It also emphasized that there was no deliberate omission to investigate the human rights violations in this case, but rather “an overflow of institutional capacity, derived from the complexity of the internal context.” [para. 464] At the same time, Colombia clarified that it continues to make important advances that should not be ignored or disregarded.

On 29 June 2018, the Inter-American Commission on Human Rights also brought the case before the Inter-American Court of Rights on the grounds that Colombia had violated the human rights, for more than twenty years, of more than six thousand victims—who were members and activists of the U.P. political party since 1984. The Commission argued that the facts of the case demonstrated that the members and militants of U.P were exterminated. Specifically, the Commission considered that the state was internationally responsible for severely violating the human rights of the victims, including “deprivations of the right to life, forced disappearances, threats, harassment, forced displacement and attempted murder of the members and militants of the Unión Patriótica political party.” [para. 1].

The Commission emphasized that “the State violated political rights, freedom of thought and expression, freedom of association, and the principle of equality and non-discrimination, since the motive for the alleged human rights violations was the alleged victims’ membership in a political party and the expression of their ideas through that political party.” [para. 1]. The Commission also argued that Colombia’s recognition of international responsibility was limited because it only accepted violations of the Convention’s duty to “guarantee or prevent” but not of the duty to “respect” the international treaty, even though Colombia was directly responsible for the acts of violence against U.P. members.

Furthermore, the Commission held that Colombia violated the right to freedom of expression of the members of the U.P. by having subjected them to “constant terror and anxiety in the context of an extermination that took place over a very long period and with an alarming figure of thousands of victims.” [para. 294] The Commission also emphasized that “through actions perpetrated by State agents, a stigmatization of U.P. members was consolidated to exclude them from the democratic game, thus affecting their political rights and their freedom of expression and assembly.” [para. 323] Also, the Commission noted that these events affected members and militants of the U.P. and their families, which in many cases included children.

The Commission also argued that the judicial investigations carried out in Colombia about the human rights violations of U.P. members and leaders have been insufficient and were not conducted within a reasonable period, and therefore held that Colombia violated its duty to investigate, the right to judicial guarantees (article 8), and the right to judicial protection (article 25) of the Convention. In addition, it requested that Colombia be held responsible for the violation of the obligations established in Article 1.b of the Inter-American Convention on The Forced Disappearance of Persons, and Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.

[1] https://www.oas.org/es/cidh/decisiones/corte/2018/11227FondoEs.pdf

---

Decision Overview

The Inter-American Court of Human Rights had to analyze whether Colombia was internationally responsible for violating the rights to juridical personality, life, humane treatment, personal liberty, a fair trial, honor and dignity, freedom of expression, freedom of association, rights of the child, freedom of movement and residence, political rights, equality and non-discrimination, judicial guarantees and judicial protection, of the American Convention on Human Rights, to the detriment of the members and militants of the political party U. P.—who were subjected to various acts of violence over a long period.

The Inter-American Commission argued that Colombia carried out a systematic extermination plan against members and militants of the U.P. for over two decades and throughout the country. On this point, the Commission explained that this extermination was carried out through various violations of the human rights of the victims in the case, including threats, attacks, acts of stigmatization, persecution, forced displacement, torture, extrajudicial executions, assassinations, forced disappearances massacres, among others. In turn, the Commission argued that Colombia not only violated its duty to prevent, under the Convention, but also infringed its obligation to respect the rights of the victims—since public authorities allowed the extermination of the U.P. political party to take place, through cooperation, tolerance, and acquiescence.

For its part, Colombia acknowledged its international responsibility for violating its obligation to guarantee or prevent violations to the rights provided for in Articles 4, 5, 3, 7, 13, 16, 16, 22, 23, 8, and 25 of the American Convention on Human Rights, to the detriment of the victims in the case. However, Colombia argued that it did not fail to comply with its obligation to “respect” these rights under article 1.1 of the Convention because there was no acquiescence, tolerance, or collaboration on the part of the government in the human rights violations suffered by the victims. Furthermore, Colombia emphasized that it did not deliberately fail in its duty to investigate, judge, and punish those responsible, but rather that it has a transitional justice model that is investigating the facts.

Preliminarily, the Inter-American Court of Human Rights welcomed Colombia’s recognition of its international responsibility in this case. However, the Court held that Colombia’s acknowledgment of responsibility was of a limited and fragmented nature and did not consider the general context of the case, nor the systematic and generalized nature of the conduct carried out against the members and activists of the Unión Patriótica political party. The Court held that Colombia’s acknowledgment of international responsibility could not limit its competence, nor the victims’ right to the truth. Therefore, the Court decided that it was necessary “to issue the present judgment and to determine, in it, the facts that occurred and the human rights violations that have been committed.” [para. 80]

Next, the IACtHR held that the Commission was able to satisfactorily prove “the systematic violence against the members and sympathizers of the Unión Patriótica, which manifested itself through acts of various kinds such as forced disappearances, massacres, extrajudicial executions and murders, threats, attacks, various acts of stigmatization, improper prosecutions, torture, forced displacement, among others. These acts constituted a form of systematic extermination against the Unión Patriótica political party and its members and militants—and were carried out with the participation of state agents, and with the tolerance and acquiescence of the authorities.” [para. 243]

Moreover, the Inter-American Court emphasized that this systematic extermination sought to eliminate the U.P. as a political force in Colombia and that there was a “direct relationship between the emergence, activity, and electoral support of the U.P. and the murder of its militants and leaders in regions where the presence of these groups was interpreted as a risk to the maintenance of the privileges of certain sectors.” [para. 252] In turn, the IACtHR established that this violence “was carried out by State and non-State actors”, that the investigations into these events “were not effective”, that these violent acts were characterized by high levels of impunity in favor of the perpetrators, and that there was tolerance on the part of the Colombian authorities in the context of violence against the U.P. [para. 273] Moreover, the IACtHR considered that the violence was also carried out by paramilitaries who, in many cases, were linked to Colombian state actors.

The IACtHR then rejected Colombia’s argument that its international responsibility was limited to the duty to guarantee and considered that it had also violated the duty to respect, laid out in Article 1(1) of the Convention. In this regard, after evaluating the evidence in the case, the Court concluded that “it is possible to conclude that there are clear patterns of state participation both directly and through acts of acquiescence, tolerance, and collaboration, in the systematic violence against members and militants of the UP.” [para. 278]

Subsequently, the IACtHR had to decide whether Colombia violated the political rights (Article 23), freedom of expression (Article 13), and freedom of association (Article 16), of the victims—as laid out in the American Convention on Human Rights.

On this point, the IACtHR recalled that of the total 6,528 victims, between 1984 and 2006, “200 were mayors, 418 were councilors, 43 were deputies, 26 were congressmen and 2 were governors. Similarly, acts of selective violence were recorded against grassroots militants and sympathizers of the Patriotic Union Party,” [para. 298] including 3,122 selective murders, 544 victims of forced disappearances, 478 victims of murders in massacres, 4 kidnappings, and 3 cases of other forms of violence.

Furthermore, the Inter-American Court stated that the evidence demonstrated that there was a direct relationship between the emergence, rise, popularity, and electoral support for the U.P. and the murder of its militants and leaders, in regions where the presence of this political party was interpreted as a risk to the privileges of certain groups. Under this pretense, the Court concluded that “the persecution was not limited to the party’s leaders, but was extended to the party’s social base, to create a generalized sensation of fear and terror that could progressively reduce electoral support for the U.P.” [para. 302]

Referring to its jurisprudence in Castañeda Gutman v. Mexico, and López Lone et al. v. Honduras, the IACtHR argued that “the relationship between political rights, freedom of expression, and freedom of association, together with the right of assembly, make the democratic game possible.” [para. 304] In turn, the IACtHR held that “the effective exercise of political rights constitutes an end in itself and, at the same time, a fundamental tool that democratic societies have for guaranteeing the other human rights provided for in the Convention.” [para. 309] Furthermore, the IACtHR held that Article 23 of the American Convention on Human Rights not only provides that individuals enjoy political rights, but also that countries must guarantee them through positive measures so that everyone has a real opportunity to exercise their political rights.

The IACtHR then held that the right to freedom of expression is a cornerstone that allows for the very existence of a democratic society—citing IACtHR Advisory Opinion, OC-5/85, and Carvajal v. Colombia.

Likewise, the IACtHR emphasized, referring to Herrera Ulloa v. Costa Rica, and Urrutia Laubreaux v. Chile, that “without the effective guarantee of freedom of expression, the democratic system is weakened and pluralism and tolerance are undermined; the mechanisms for citizen control and complaint can become inoperative and, ultimately, a fertile ground is created for authoritarianism to take root.” [para. 310] Subsequently, the IACtHR Court noted that freedom of expression has an individual and a social dimension “and requires, on the one hand, that no one is arbitrarily impaired or prevented from expressing his or her own thoughts and therefore represents a right of each individual; but it also entails, on the other hand, a collective right to receive any information and to know the expression of the thoughts of others.” [para. 311]

The Court held that the right to freedom of association entails the right of individuals to associate freely for ideological, political, or other purposes. The Court also affirmed, citing Escher v. Brazil and Extra-workers of the Judiciary v. Guatemala, that this right “is characterized by the fact that it enables individuals to create or participate in entities or organizations to act collectively in pursuit of the most diverse ends, provided that these are legitimate.” [para.316] Thus, the IACtHR held that countries should not limit or hinder the exercise of this right and that public authorities should not exert pressure or interfere in such a way as to alter or distort the purpose of the right of association.

The IACtHR then applied the legal standards of political rights, the right to freedom of expression, and the right to freedom of association to the case. The IACtHR remarked that this is a case of high factual complexity, involving events that occurred over long periods of time and with multiple actors. It also recalled that in the case of Manuel Cepeda Vargas v. Colombia, the IACtHR had already noted the violence against members and activists of the U.P. In this regard, the IACtHR considered that one of the main motives for the violations against the victims’ rights in this case “was their membership and participation in the Unión Patriótica political party.” [para. 320]

The IACtHR then held that the “systematic and structural violence had a chilling effect on the militants and members of the U.P.” [para. 322] For the Court this violence perpetrated against the U.P. consolidated the stigmatization of its members. The IACtHR also considered evidence showing statements made by public officials in Colombia that described the U.P. as the “armed wing” of the FARC, and as a political party that combined politics with weapons. On this issue, the Inter-American Court stated that “this type of statement influenced the public imagination, which, in turn, influenced the violent actions against the members and militants of the U.P.” [para. 323] For the  reasons outlined above, the Inter-American Court concluded that “this climate of victimization and stigmatization did not create the necessary conditions for the militants and members of the Unión Patriótica to fully exercise their political rights of expression and assembly.” [para. 325]

Next, the IACtHR had to examine whether the loss of the legal personality of the U.P. political party was an arbitrary decision that violated the political rights, freedom of expression, and freedom of association of the victims in the case. On this point, the IACtHR recalled its Advisory Opinion 22/2016, on Ownership of the Rights of Juridical Persons in the Inter-American System, to argue that the affectations to juridical persons, such as political parties, may imply, directly or indirectly, the violation of human rights of natural or real persons. Likewise, the Inter-American Court remarked that the existence of opposing political parties is essential in a democratic society, without which agreements can’t reflect the diverse visions that exist in a society. At the same time, the Court held that “actions that prescribe or limit the actions of parties can affect the political rights not only of their members and militants but of the entire citizenry.” [para. 330]

The IACtHR then underscored that the actions taken by Colombia against the members and activists of the U.P. harmed popular support for that political party and its electoral results. The Court argued that the patterns of systematic violence against the U.P. contributed to the poor electoral results it obtained in the elections of 10 March and 26 May 2002, which led the Colombian National Electoral Council to withdraw the legal personality of the political party, for not complying with the requirements established in Law 130 of 1994. For these reasons, the Inter-American Court concluded that “the withdrawal of the legal personality of the Unión Patriótica was an arbitrary decision since it did not take into account the particular circumstances that affected the party’s real capacity to mobilize electoral forces.” [para. 336]

Given these circumstances, the IACtHR concluded that Colombia was responsible for the violation of the freedom of expression, the freedom of association, and the political rights of the victims, under the American Convention on Human Rights.

The IACtHR then had to analyze whether Colombia violated the rights to juridical personality, the right to life, the right to personal integrity, personal liberty, freedom of movement and residence, and the rights of the child, as enshrined in the American Convention on Human Rights and the Inter-American Convention on The Forced Disappearance of Persons.

The Court held that Colombia had recognized its international responsibility regarding the duty to “prevent” regarding the violation of articles 3, 4, 5, 7, 19, and 22 of the American Convention on Human Rights and article I.a of the Inter-American Convention on The Forced Disappearance of Persons.

About the executions and massacres of U.P. members and militants, the Inter-American Court recalled that the right to life, as laid out in Article 4 of the Convention, presupposes that no person should be arbitrarily deprived of his or her life and entails the obligation of countries to take positive measures to preserve this right. On the other hand, regarding the right to personal integrity under Article 5 of the Convention, the IACtHR said that every person has the right for their physical, mental, and moral integrity to be respected and that no one should be subjected to torture or cruel, inhuman or degrading treatments. At the same time, the IACtHR considered that when the affected persons are children, these violations should be analyzed considering the rights of the child under Article 19 of the Convention.

Then, the IACtHR held that with the information provided by the Commission, added to the lack of rebuttal on Colombia’s behalf, “there is sufficient evidence that adds to the general context to conclude that the State is also responsible for the violation of the right to life, due to a failure to respect —in the terms of Article 1(1) of the American Convention—, of the persons extrajudicially executed.” [para. 362]

Subsequently, on the subject of enforced disappearances, the IACtHR highlighted the permanent or continuous nature of these crimes, which lasts as long as the whereabouts of the disappeared person are not known or their remains are not identified. Likewise, the IACtHR held that to reach the truth of the facts presented by the Commission, it is necessary to use circumstantial evidence, indications, and presumptions, to demonstrate the occurrence of enforced disappearances, since due to their clandestine nature, these crimes are usually accompanied by the suppression of any type of element that would allow corroboration.

The IACtHR recalled that Colombia recognized its international responsibility for these acts but only in relation to the Convention’s duty to “prevent”. On this point, the IACtHR concluded that there is sufficient evidence, that adds up to a general context, to conclude that the state was also responsible for having violated its duty to “respect the Convention” and considered that Colombia was internationally responsible for violating articles 3 (juridical personality), 4 (right to life), 5 (personal integrity), and 7 (personal liberty) to the detriment of the persons who suffered forced disappearance.

Next, regarding the alleged tortures, the IACtHR affirmed that torture and cruel, inhuman, or degrading treatments, are strictly prohibited under international human rights law. The IACtHR also held that the prohibition of torture is a peremptory norm in international law. Next, the IACtHR argued that the Commission provided sufficient evidence that several of the victims in the case suffered torture. On this issue, the IACtHR held that Colombia was responsible for these acts and hence for violating the Convention’s duty to respect.

Subsequently, the IACtHR examined whether Colombia had committed arbitrary detentions, attempted homicides, injuries, threats, and harassment. On this point, the IACtHR held that Article 7 of the Convention protects both the physical liberty of individuals and their personal security. The IACtHR also considered that states must protect the personal liberty of individuals from being undermined by the actions of state agents and private third parties.

On this point, the IACtHR considered that there was enough evidence that adds to the general context to conclude that the state was also responsible for the threats, illegal detentions, and acts of harassment, as well as for the injuries or attempts against lives, of the members and activists of the U. P. With this in mind, the IACtHR concluded that Colombia was responsible for violating Articles 5(1) (right to personal integrity) and 7 (personal liberty), concerning its “obligation to respect” included in Article 1(1) of the Convention.

The IACtHR then referred to the forced displacement suffered by the victims in the case. On this point, it recalled that Article 22 of the Convention establishes that the right to movement and residence is an indispensable condition for the free development of persons. The Court also recognized that this right entails the free movement of persons within a country and the right to remain in, enter, or leave, the territory of the state without unlawful interference. Furthermore, the IACtHR held that States are obliged to refrain from actions or omissions that may generate situations of forced displacement.  In turn, the IACtHR held that the right to movement and residence may be affected when a person is a victim of threats or harassment, and the state does not provide the necessary guarantees so that people can move and reside freely in the territory. On this point, the IACtHR considered that there was “sufficient evidence in addition to a general context to conclude that the State is also responsible for the violation of the right of movement and residence contained in Article 22 of the American Convention, in relation to its obligation to respect laid out in Article 1(1) of that treaty.” [para. 386]

The Court then examined whether the facts of the case involved a violation of the rights of children under Article 19 of the Convention. The IACtHR recalled that violations of other human rights of the Convention to the detriment of children constitute an autonomous violation of the aforementioned article. On this point, the IACtHR said that at least seven children were victims of extrajudicial executions or survived massacres against members of the U.P. The IACtHR held that Colombia had a special obligation to protect these children because of their greater vulnerability, and risk in which they found themselves, due to their age. Therefore, the IACtHR concluded that “the State is responsible for the violation of Article 19 of the American Convention to the detriment of these persons.” [para. 390]

Next, the IACtHR referred to the human rights violations committed against women—victims of the systematic extermination of the U.P. The IACtHR remarked that, according to the evidence provided by the Commission, “a significant number of the victims of the systematic extermination of the members and militants of the U.P. are women.” [para. 392] The Court considered various pieces of evidence that demonstrated the existence of sexual violence against several of the women victims in this case. In turn, the IACtHR concluded that “the sexual violations described in the facts of the case constituted a form of torture.” [para. 395]

The IACtHR also referred to the situation of the journalists who were victims of the systematic extermination of the U.P. The Court mentioned that the evidence submitted by the Commission showed that some of the “victims of the extermination of the U.P. were journalists by profession.” [para.396]  On this point, the Inter-American Court, citing the cases of Vélez Restrepo and family members v. Colombia,  Carvajal Carvajal et al. v. Colombia, held that “one of the most violent forms of suppressing the right to freedom of expression is through homicides against journalists and social communicators. This type of violence against journalists can even have a negative impact on other journalists who must cover events of this nature, who may fear suffering similar acts of violence.” [para. 399]. The IACtHR also recalled that the Bedoya Lima v. Colombia case had established the obligation of countries to protect journalists against all types of violence.

The IACtHR then examined whether Colombia violated the right to honor and dignity of the victims in the case, in light of the statements made by public officials against members and militants of the U.P. The IACtHR said that from the mid-1980s until 2013, numerous Colombian public officials issued a series of statements linking the U.P. and the Communist Party to the FARC. The IACtHR also noted that some of these statements labeled the U.P.  as “the real enemy” and “the armed wing of the FARC.” [para. 410]

Furthermore, the IACtHR mentioned that various state organs in Colombia acknowledged that the stigmatization of U.P. members and militants had an impact on the violence unleashed against them. The Inter-American Court recalled that in the case of Cepeda Vargas v. Colombia, it held that the statements of Colombian public officials linking the U.P. and the Communist Party with the FARC placed its members in a position of greater vulnerability and risk.

Hence, the IACtHR concluded that Colombia not only failed to prevent the attacks against the reputation and honor of the victims but that through its public officials, it directly contributed to these attacks, aggravating the situation of vulnerability suffered by the members and leaders of the U.P.  In turn, the Court held that “this victimization through stigmatization deepened the intimidating effect among the members and militants of the party, which hindered their participation in the democratic game and, therefore, the exercise of their political rights, as well as the full exercise of their political rights, of expression and of assembly.” [para. 415] The IACtHR also concluded that Colombia was responsible for a violation of the right to honor and dignity, as laid out in Article 11 of the ACHR, to the detriment of the leaders and activists of the U.P.

Subsequently, the IACtHR examined whether Colombia violated the rights to a fair trial (Article 8) and judicial protection (Article 25) of the Convention, Article 1(b) of the Inter-American Convention on The Forced Disappearance of Persons, and Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of the victims in the case.

The IACtHR argued that state parties are obliged to provide effective judicial remedies to victims of human rights violations under Article 25 of the Convention and that such remedies must be pursued in accordance with the rules of due process of law under Article 8 of the Convention. The IACtHR also emphasized that the right of access to justice must ensure that the victims and their relatives can know the truth about what happened within a reasonable time and, if necessary, that those responsible for human rights violations are investigated and punished.

Later, the Inter-American Court recognized that the judicial investigation of the systemic violence against members and militants of the U.P. is “highly complex due to the diversity of actors involved in these events because it is a violence that is often carried out with the support of State actors and also because it is carried out by non-state actors with extensive macro-criminal structures.” [para. 473] However, the IACtHR found that in most cases “the investigation took a long time to be initiated even though the authorities were aware of the events that had taken place.” [para. 475] The Court also noted that even decades after the events occurred, several investigations are still in their initial or preliminary stages. The IACtHR recalled that Colombia recognized its international responsibility for the violation of the rights to a fair trial and judicial protection in the framework of the investigations of the acts of violence against the members and militants of the U.P. due to its failure to comply with the Convention’s duty of prevention. However, the IACtHR concluded that Colombia “is responsible for a violation of the rights of the leaders and members of the Unión Patriótica due to its failure to respect.” [para. 468]

Moreover, the IACtHR found that Colombia “violated the right to truth as an autonomous right in relation to the State’s duty to investigate and clarify the facts and to publicly disseminate information” on the findings [para. 478]. The IACtHR held that every person, including the relatives of the victims of serious human rights violations, has the right to know the truth. It also explained that the right to truth has a dual nature, as an individual right to know the truth for the victims and their family members, and also as a “right of society as a whole.” [para. 479] In this sense, the Court concluded that both “the victims’ family members and society must be informed of everything that happened in relation to those [human rights] violations.” [para. 479]

Next, the IACtHR had to analyze whether the events presented violated the right to integrity (Article 5 of the Convention) regarding the victims’ family members. The IACtHR held that the violation of the right to integrity of the relatives of the victims of serious human rights violations can be declared by applying a presumption in favor of parents, children, spouses, siblings, and partners—by weighing the circumstances of each case. On this basis, the IACtHR concluded that Colombia was “responsible for a violation of the right to personal integrity contained in Article 5(1) of the Convention to the detriment of the relatives of the victims of enforced disappearance and executions.” [para. 425]

For all the reasons set out above, the IACtHR concluded that Colombia was responsible for the violation of the rights to juridical personality, to life, to personal integrity, to personal liberty, to freedom of movement and residence, to the rights of the child. It also held that Colombia breached the Inter-American Convention on The Forced Disappearance of Persons, for the executions, disappearances, torture, arbitrary detentions, threats, harassment, and displacement of members and militants of the UP.

Regarding reparations, the IACtHR ordered Colombia to create a Commission to establish the identity of the victims and their family members, as listed in the Annexes to the judgment; to disseminate this judgment; and to carry out a public act of acknowledgment of international responsibility. The IACtHR also ordered Colombia to carry out an investigation to establish the truth regarding the serious violations of the human rights of the victims in the case, and to determine the criminal responsibilities of the perpetrators, as well as the whereabouts of the disappeared victims.

In turn, the IACtHR ordered Colombia to establish a national day to commemorate the victims of the U.P., to carry out activities to disseminate information about them, and to place plaques in five public spaces and a monument to commemorate their memory. It also ordered Colombia to produce an audiovisual documentary on the violence against the U.P., to carry out a national campaign in public media, and to hold academic forums in at least five public universities.

In addition, the IACtHR decided to grant compensation to the victims for the serious human rights violations suffered and for the physical, moral, and psychological damages caused. On this point, the IACtHR decided that Colombia should compensate each victim and their families for the damages suffered, deferring the final amount for each of them to the stage of compliance with the judgment. In general terms, the Court ordered Colombia to pay $55,000 USD for forced disappearance; $35,000 USD for violations to the right to personal integrity; $35,000 USD for extrajudicial executions; $20,000 USD for torture; $5,000 USD for attempted violations to the right to life, violations of personal integrity, arbitrary detentions, threats, harassment and undue criminalization through criminal proceedings; $10. 000 USD to those who were minors; USD 5,000 to survivors of massacres or attempted homicides who were minors; USD 5,000 for forced displacement; USD 5,000 for violations to the right to a fair trial; and USD $15,000 for forced displacement. The IACtHR also ordered Colombia to pay the victims compensation for material and non-material damages and the costs and expenses of the litigation.

Finally, the IACtHR ordered Colombia to publish this judgment and to submit a report—as a result of an agreement with the authorities of the U.P.— regarding the aspects to be improved or strengthened in the existing protection mechanisms in favor of the leaders, members, and militants of the U.P.

Concurring and dissenting votes

Judges Eduardo Ferrer Mac-Gregor Poisot and Ricardo C. Pérez Manrique presented a joint concurring opinion, which was also joined by Judge Patricio Pazmiño Freire.

First, judges Mac-Gregor and Pérez referred to the collective nature of the right to truth in a democratic society. The judges recalled that although the right to truth has been fundamentally framed within the right of access to justice, it is not limited to a “procedural or judicial truth”, as it is a right with autonomy. The judges stressed that the right to truth has a dual nature. On the one hand, it is an individual right to know the truth, in favor of the victims and their relatives, but it is also a right of society as a whole to be informed about what happened regarding serious human rights violations. They also explained that the novelty of the Members and Militants of Unión Patriótica v. Colombia judgment is that it recognized a violation of the right to the truth of society as a whole, beyond the rights of the specific victims in the case and their relatives. On this point, the judges explained that “by declaring ‘society as a whole’ as a victim of the case for a violation of that right, for the first time, the IACtHR confers legal consequences to the collective dimension of the right to truth, an aspect that it had mentioned on several occasions throughout its jurisprudence, but without conferring it a concrete application.” [para. 22]

Secondly, Judges Mac-Gregor and Pérez highlighted the importance of guaranteeing human rights to members, activists, and sympathizers of a political party in a democratic system. The judges explained that the IACtHR did not limit itself to examining violations of victims’ rights on an individual basis but conferred a collective dimension to these affectations. On this point, the judges explained that the serious violations suffered by more than six thousand victims who were members, militants, and sympathizers of the U.P. party, transcended the case and generated collective damage to Colombian society, substantially affecting the principle of representative democracy in Colombia.

---