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A new path to justice in Latin America: Inter-American Court sets historic precedent in case of journalist assassinated in Colombia

IFEX spoke with the people involved in the process to gain an understanding of the lessons learned, with an eye to possible future use in other cases in the fight against impunity.

Daniel Garzon Herazo/NurPhoto via Getty Images

This is a translation of the original article.

Impunity: The phantom that walks between the shadows of corruption and covers up the most heinous of actions. The absence of governments that bring those responsible for attacks and other crimes to justice, the lack of timely investigations that identify assassins, the pervasive failure to mete out punishment… all these factors come together to make Latin America the perfect hotbed for assassinations of journalists who are simply carrying out their work.

Seeking the truth, informing society and supporting an article with facts… this professional work costs journalists their lives, a reality that has been demonstrated in many cases. With impunity indices of higher than 90% in several Latin American countries, the assassins aim to not only kill the messenger but also to generate fear and self-censorship among the journalists in general, who see that they have no assurance of the most basic guarantees for safety in carrying out their work.

Within this gloomy panorama there is a glimpse of hope, in the form of justice. The Inter-American Court of Human Rights has emitted a historic resolution in a complicated case that has spanned more than 20 years and originated in Colombia, a country with one of the highest levels of crimes against journalists.

The Inter-American Court's ruling condemned the Colombian state for the 1998 assassination of journalist Nelson Carvajal. The ruling sets a historic precedent in the fight against impunity by holding the State responsible for violating a journalist's right to life and freedom of expression, despite the fact that the perpetrator of the crime has not been ascertained. The Court is also holding the Colombian state responsible for delays in the investigation.

The ruling in the case is in and of itself a strike against impunity, but its greatest value lies in what it means for the future and its role in providing a key tool, a judicial precedent and a source of legal resources to achieve similar results in other cases. Going forward, it will not be just the direct perpetrators of a crime that face punishment. Several experts and participants in the Carvajal case told IFEX that the omissions of governments will also be on trial.

IFEX spoke to the people involved in the process in order gain an understanding of the lessons learned, with an eye to possible future use by organisations that are fighting against impunity.


Important precedent

Ricardo Trotti is the executive director of the Inter American Press Association (IAPA), the organisation that took the case to the Inter American Commission on Human Rights (IACHR) and later participated as a co-litigant in the process before the Inter-American Court, which began in 2015.

Trotti told IFEX, "Faced with the impunity in this case, we expected a sentence that would bring justice to bear, and serve as a precedent for the other 26 cases that IAPA has presented and continues to maintain before the IACHR. This first ruling in an emblematic case helps us in the formulation of future strategies. The most important thing, beyond the precedent, is that the Inter-American Court of Human Rights recognised the pain suffered by Nelson's relatives and evaluated very well the economic reparations they should receive at various levels."

For Trotti, the Colombian state's attitude is one that is very common in countries throughout the region. He noted that "when problems have taken place under a previous administration, governments have a marked tendency to resist accepting responsibility for serious issues they have inherited."

Trotti considers the ruling to be an important precedent for two fundamental reasons: firstly because it is the first case involving an assassinated journalist to be resolved by the Inter-American Court, and secondly because it opens doors for the presentation of many other cases involving journalists that have either been forgotten or where impunity reigns.

For future scenarios, Trotti pointed out that although not all cases of assassinated journalists presented before the IACHR will arrive at the Inter-American Court, this ruling does establish guidelines that can be included in negotiation processes and agreements arriving at "friendly solutions" with individual governments.

He added, "The creation of this important precedent serves as a reference for working harder on potential friendly solutions, such as re-opening stalled judicial investigations, examining irregularities in judicial processes and demanding commitments for reparation of damages suffered by the victim's relatives."

For other organisations, Trotti recommends they have patience because the Inter-American Human Rights System's processes "are very slow and it is important to keep up the pressure by updating the cases," as well as by identifying lawyers that are "human rights specialists" in order to push the cases forward.


Opening the way

IAPA followed its own advice. In 2015 it contacted the Robert F Kennedy Human Rights center to request support in litigating the case. The case was taken up by Angelita Baeyens, the center's litigations director.

"We began to work with the Carvajal family to prepare the litigation before the Court, including filling in some information gaps and reinforcing some testimonies regarding not just the actual assassination but also the family's experiences and its long and complicated path in the search for justice," Baeyens explained.

Among the points that were highlighted, one that stood out was the fact that nine of Carvajal's relatives had to go into exile outside the country due to the threats and attacks they suffered while seeking justice.

"This is common in these types of cases: the relatives become the principal investigators instead of the State. This, sadly, brings with it a lot of risks that in this case were very high level and obvious," Baeyens noted.

"One of the biggest challenges in the case was that the victims and their representatives were unable to gain access to the judicial file. The family was unable to become a civil party in the process because when they looked for lawyers the fear was so great that nobody would take on that role, or they asked for a lot of money, more than the family had," she added.

According to Baeyens, "This case helped to bring to light the risks taken by journalists who investigate issues of corruption. There is an absence of law and order where people can feel protected. Key witnesses were threatened, another was assassinated. The problems continued, like a virus that kept spreading beyond the actual case."

Baeyens made several points pertaining to the case, but in her opinion one of the greatest victories with regard to the future is that the State was held responsible for failing to protect the right to life. "This is a major precedent. Above all because the extreme context of violence faced by journalists in the country was recognised, a precedent that can be used in future cases," she added.

"The case sends a strong message across the continent. It is a legal victory that allows us to hope that impunity will be reduced now that this level was reached with the Court's ruling. The message that the State did not do enough and is being held responsible for it by an international court is very strong. Impunity exists at a very high level but now States know they can be judged for their responsibility in allowing this situation to exist," the lawyer said.

Another important aspect for organisations that are preparing cases is that this ruling confirms the responsibility of the State without evidence being presented that Carvajal had been threatened previously.

"In many cases this evidence exists and is well documented, which makes it even more difficult for States to evade their responsibility," Baeyens said.

Baeyens noted that there are several other cases "in line" to be presented before the Inter-American Court and she "has a lot of hope" that they will garner favourable resolutions thanks to the precedent set by the Carvajal case.

"There is still a lot to do, we must not abandon the fight," she said, adding that now the goal is to get the Inter-American Court to proclaim that in cases of crimes against journalists the State must apply increased due diligence–making an even greater effort than in common crime cases in recognition of the relevance and social impact of crimes against journalists.

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