The ruling of the Inter-American Court of Human Rights of November 22, 2016 in the case of Yarce and Others v. Colombia (Series C, No. 325).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. The complaint was then communicated by Colombia.
In the case, the complaint on protecting human rights defenders from violations of the right to life and forced displacement was successfully considered.
Protecting human rights defenders from violations of the right to life and forced displacement.
Circumstances of the case
The circumstances of the case relate to the events that took place in 2002 in the context of the internal armed conflict in Colombia, when military operations were carried out to gain control over the area of Medellin, known as the "Commune 13". The applicants, five human rights defenders and their families, were victims of widespread and systematic violence, as well as intra-urban forced displacement. In particular, the three applicants were detained after being convicted in collaboration with partisans, but were released due to insufficient evidence. Yarse was killed in 2004. The remaining applicants were forcibly displaced from their places of residence. Three of them left in 2002 with their families after the threats of the paramilitary forces, while another left after the Yarsa murder. The two applicants also lost their homes, which were occupied and destroyed by armed groups.
QUESTIONS OF LAW
(a) Articles 4 (1) (right to life) and 5 (1) (right to personal integrity) of the American Convention on Human Rights (hereinafter - ACHR) in conjunction with article 1 (1) ACHR (obligation to respect and respect rights) and article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter referred to as the Belem do Para Convention). State authorities that learn about a particular risk situation should determine or evaluate whether the person who is the subject of threats and intimidation requires taking protective measures, or refer the case to the competent authority for this purpose, and also offer the threatened person timely information on the available measures. The adequacy of protective measures for human rights defenders requires three elements. These measures should (i) be consistent with the functions that human rights defenders perform, (ii) be subject to a risk assessment, and (iii) allow for changes in accordance with changes in the level of risk.
In the present case, the state was aware that Yars was threatened because of her activities as the head of the community in connection with the complaints filed. Indeed, this forced the Colombian authorities to issue a protective warrant in 2003. In the special circumstances of the present case, the decision to release a person who had previously been detained on charges by the victim increased her risk factors. In addition, the state did not take protective measures to mitigate the risk, and the 2003 protective order did not meet the three above-mentioned elements. Finally, the state had a special duty to protect human rights defenders, aware of the context of systematic violence against them. Thus, the Colombian authorities violated their obligation to prevent the violation of the right to life to the detriment of Yarsa. This in turn affected the personal integrity of her children.
The case has violated the requirements of the ACHR Convention (adopted unanimously).
(b) Articles 5, 11 (right to honor and dignity), 17 (rights of the family), 19 (rights of the child), 21 (rights to property) and 22 (rights to freedom of movement and residence) of the ACHR in conjunction with Article 1 ( 1) and article 7 of the Belem do Para Convention. Freedom of movement is an essential condition for the free development of a person. The ACHR protects the right of a person not to be forcibly displaced within the State party, and not to be expelled from the territory of the state in which he is legally located. Forced displacement is a complex phenomenon that affects various human rights, and the displacement situation should be perceived as an “actual vulnerability situation” that could cause particular and disproportionate harm to women. This situation obliges states to take positive measures to eliminate the impact of this situation of vulnerability. As such, States should take measures that facilitate the safe and voluntary return of displaced persons to their place of residence or their voluntary relocation to another location. In situations of forced displacement, states also have an obligation to ensure family reunification, especially with children.
In the present case, the state did not ensure the voluntary and safe return of the applicants. The limited amount of state assistance contributed to the harm suffered by the applicants as a result of their forced displacement. In addition, the lack of protection by Colombia of their abandoned homes, which were subsequently occupied and destroyed by armed groups, constituted a violation of their right to property. Lastly, while the Inter-American Court of Human Rights recognized the differential effect of forced displacement on women, he did not see any specific grounds for breach of the Belem do Para Convention.
The case has violated the requirements of Articles 5, 11, 17, 19, 21 and 22 of the ACHR regarding Article 1 (1), the requirements of Article 7 of the Belem do Para Convention were not violated (adopted unanimously).
(c) Article 16 (freedom of association) of the ACHR in conjunction with Article 1 (1) of the ACHR. ACHR includes the right of a person to freely establish and be a member of non-governmental organizations, associations or groups involved in human rights monitoring, information, and promotion. The Inter-American Court of Human Rights decided that, given the important role of human rights defenders in democratic societies, the free and full exercise of this right makes it incumbent on the state to create legal and factual conditions that enable them to carry out their tasks freely. In the present case, the applicants were not able to carry out their work as human rights defenders freely due to the State’s evasion of providing the necessary conditions for the safe return to “Commune 13”. As a result, their right to freedom of association was violated.
The case has violated the requirements of the Convention (adopted unanimously).
(d) Compensation. The Inter-American Court of Human Rights found that the decision itself constituted a form of reparation, and ordered the state (i) to take the necessary measures to conduct an investigation to establish, convict and, if necessary, punish those responsible for the forced removal of one of the applicants and her family members, ( ii) provide medical and psychological assistance to victims, (iii) publish the decision and its official summary, (iv) publicly acknowledge its international responsibility, (v) adopt a program, create courses or a workshop through the relevant government bodies in “Commune 13”, aimed at promoting and clarifying the work of human rights defenders, and (vi) to pay compensation for pecuniary and non-pecuniary damage, as well as legal costs and expenses.