Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Expands Expression
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The Inter-American Court of Human Rights found that Colombia had breached, among others, the right to freedom of association of four female human rights defenders. The case arose in the context of an armed conflict in Colombia, during which five women were subjected to harassment and intimidation for their human rights work. One of these women, Mrs. Yarce, was assassinated. A petition was filed on behalf of the five women to the Inter-American Commission of Human Rights, which then submitted the case to the Inter-American Court of Human Rights. The Inter-American Court concluded that Colombia had failed to guarantee the necessary means for four of the women to exercise freely their work as human rights defenders. In relation to Mrs. Yarce, the Inter-American Court held that Colombia failed to guarantee her right to life.
This case arose during an internal armed conflict and a time of great social unrest in Colombia. In 2002, the government declared a state of emergency in the country, including in Comuna 13 (a neighborhood in the city of Medellín). For over thirty years, Comuna 13 was known for violence between armed groups wanting territorial control and management of organised crime in the area. The neighborhood was also one of Medellín’s most impoverished areas. During this time, Colombia launched several military operations with the sole purpose of taking back its control over Comuna 13 from illegal armed groups. This resulted in civilian casualties, and attacks by paramilitaries against the population also continued. Consequently, numerous people were displaced and forced to leave to other communities in Medellín. Many human rights advocates were being harassed and persecuted in Comuna 13, with women human rights advocates being particularly vulnerable. At the time, violence against women was “widespread” in Colombia and women human rights defenders were subject to disappearances, rape, torture, displacement and exile. [para. 87 and 93]
Myriam Eugenia Rúa, Luz Dary Ospina, María del Socorro Mosquera, Mery del Socorro Naranjo and Ana Teresa Yarce were women human rights activists in Comuna 13. Mrs. Rúa was forced to leave Comuna 13 due to the ongoing conflict and after a neighbor told her the paramilitaries had her name on a list of people they wanted to assassinate. A criminal complaint was filed about this displacement, but the subsequent investigation had been suspended on a couple of occasions and nobody had been held responsible for the displacement. Her home was later raided by paramilitaries. Like Mrs. Rua, Mrs. Ospina had also been displaced following constant threats, recurring violence, and the suggestion her name was on a list. Following her displacement, paramilitaries raided her house and it was eventually destroyed. Convictions were brought against two members of an illegal group for these activities, and investigations were continuing at the time the case was before the Inter-American Court of Human Rights.
Mrs. Mosquera, Mrs. Naranjo and Mrs. Yarce were arrested without a warrant by a joint force of the army and the police because two neighbors said they were part of illegal armed groups. They were released following ten days of detention, and the criminal file against them was eventually closed. When Mrs. Mosquera, Mrs. Naranjo and Mrs. Yarce returned to Comuna 13, paramilitary groups subjected them to threats, intimidation and persecution because they had spoken out against human rights violations. Mrs. Yarce filed a criminal complaint relating to her forced displacement and intimidation by armed groups. Following this complaint, Mrs. Yarce started to receive threats and was forced to leave her home. The Public Prosecutor in Colombia ordered that the police and the military protect the well-being of Mrs. Yarce and her family. A year later, on October 6, 2004, Mrs. Yarce was assassinated. The police apprehended one of the suspects responsible for Mrs. Yarce’s killing and he was later convicted of homicide.
On October 24, 2004, the Interdisciplinary Group for Human Rights submitted a petition before the Inter-American Commission of Human Rights on behalf of the five women human rights defenders.
Even though the experiences of the five women amounted to a violation of various rights, the Inter-American Court of Human Rights (Court) considered separately whether Colombia had violated their right to freedom of association. To find a violation, the Court had to consider whether the events experienced by the five women were linked to their activities as members of community and human rights organisations. The victims’ representatives alleged that the events experienced by the women, including their forced displacement, interfered with the performance of their roles as human rights advocates and defenders [para. 269]. The representatives argued that this, in turn, infringed their right to freedom of association as guaranteed by Article 16 of the American Convention of Human Rights. On the other hand, the state contended that their internal investigations found no nexus between the criminal actions and the victims being human rights defenders. [para. 270]
The Court observed that Article 16(1) of the American Convention recognises that everyone within a Member State has the right and freedom to associate with any person or group, and to pursue a common interest with this person or group without pressure or interference. The Court also highlighted that this right gives rise to a positive obligation on Member States to create the necessary legal and factual conditions for its free exercise. [para. 271] This positive obligation imposed on Member States includes a duty to prevent interferences with the right to freedom of association, protect those who exercise it and investigate infringements of this right. [para. 271]
The Court noted that there was no dispute between the parties that the women were human rights defenders. The Court also took into account the fact that the women’s displacement, the detention of Mrs. Mosquera, Mrs. Ospina and Mrs. Yarce, and the death of Mrs. Yarce occurred at a time when there was an ongoing armed conflict in Comuna 13. The Court noted that during this time the government ordered several military operations in the area and some of the events occurred under a state of emergency. The Court emphasised that the women were viewed as leading figures in defending the rights of the people of Comuna 13 during this time.
The Court concluded that the state did not guarantee to Mrs. Rúa, Mrs. Mosquera, Mrs. Ospina and Mrs. Naranjo the necessary conditions for a safe return to Comuna 13 following their displacement. [para. 275] The Court held that, during their displacement, their right to freedom of association was affected as they could not freely carry out their work as human rights defenders because their community work required them to be in Comuna 13 . [para. 275] Furthermore, the death of Mrs. Yarce negatively impacted Mrs. Mosquera and Mrs. Naranjo as they were forced to cease their work as human rights defenders and leave Comuna 13 due to fear and insecurity. [para. 275] Accordingly, the Court held that Colombia had failed to guarantee the necessary means for members of various organizations to exercise freely their duties as human rights defenders. [para. 275]
However, the Court did not consider Article 16 of the American Convention to have been infringed in relation to the death of Mrs. Yarce. According to the Court, the State could not be held liable, through its agents, for the murder of Mrs. Yarce. The Court deemed that the possible infringement of the right of association was an unfortunate consequence of her death. [para. 276]
For these reasons, the Court determined that Colombia violated the right to freedom of association of Mrs. Rúa, Mrs. Ospina, Mrs. Mosquera and Mrs. Naranjo. [para. 277]
Alongside the right to freedom of association, the Court also found Colombia to have violated:
The Court concluded that their decision was to be considered a form of reparation, but also ordered monetary damages to the victims and their family members. More importantly, the Court ordered Colombia to implement a program or workshop to take place in Comuna 13 with the sole purpose of promoting and highlighting the work of human rights organizations in Comuna 13 and the important work of human rights defenders. [para. 350].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by recognising that a state has a positive obligation to protect their citizens when they are exercising their right to freedom of association, and to guarantee the conditions necessary for exercising the right. In this regard, the Court highlighted that human rights defenders who work within a certain community, need to be located in that community to carry out such work. This case also highlights the variety of remedies that can be ordered by the Inter-American Court of Human Rights, including orders to promote the work of NGOs and human rights defenders in a certain area.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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