1. The author of the
communication dated 7 February 1996 is Alfonso Aponte Guzman, a Colombian
national resident in the United States of America. The author is also acting
on behalf of his wife, Matilde Landazabal López, and his children, William
Alfonso, Ricardo, Clara Milena and Victor Adolfo Aponte Landazabal. He
alleges violations of the International Covenant on Civil and Political
Rights by Colombia. No articles are specifically invoked, but those at issue
are articles 6, paragraph 1; 9, paragraph 1; 12; 17; and 23, paragraph 1, of
the Covenant. The author is not represented by counsel.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 In 1993, the author was a witness in a trial in Ibague, Colombia, in
connection with an offence of extortion and kidnapping. He states that he
had testified under special witness-protection legislation and that his
identity should therefore not have been made public. However, on 2 November
1993, he received a telegram addressed to him at his home, from the
coordinator of the Anti-Extortion and Kidnapping Unit of the Public
Prosecutor's Office, containing a summons to give further evidence against
the kidnap gang. He claims it was the Public Prosecutor's Office that
revealed his identity, in violation of the special legislation on the
protection of witnesses, thereby putting his and his family's lives at risk.
2.2 The author claims to have received anonymous threatening letters and
telephone calls. The Office for the Protection of Victims and Witnesses gave
him protection in Ibague, providing judicial escorts from 6 September 1993
to 28 April 1994. It later assisted him in obtaining visas to enable him and
his family to travel to the United States, which they did on 28 April 1994,
leaving Bogota for Miami.
2.3 The author claims that he and his family left Bogota under the
protection of the said legislation and with a commitment from the Colombian
authorities to provide them with means of subsistence in the United States.
He claims, however, that he received no financial support from the
authorities for a long time, in spite of repeated requests, both through the
Colombian Consulate in Miami and directly to the Prosecutor's Office.
2.4 The author claims that the authorities of his country denied him such
assistance on the grounds that he had left Colombia voluntarily, and said
that if he wished to avail himself of assistance under the special
witness-protection legislation he would have to return to Colombia.
2.5 On 26 October 1995, the United States granted the author and his family
asylum and issued the author with a work permit.
2.6 The author brought an action of protection for restitution of his rights
and provision of protection. On 11 December 1996, his claim was rejected by
the Administrative Tribunal of Cundinamarca.
2.7 Mr. Aponte appealed to the General Secretariat of the State Council,
which revoked the Cundinamarca Administrative Tribunal judgement on 20
February 1997 and ruled instead that the author's rights should be
protected; it ordered the Public Prosecutor's Office to provide full
protection and social assistance to the Aponte Landazabal family, including
back payment of expenses for their removal from the country and the costs of
displacement and maintenance for as long as circumstances required. The
Public Prosecutor's Office requested a review of this decision by the
3.1 The author contends that the events described amount to violations of
his rights under the Covenant, namely his rights to life, to security of
person, and to family-life. He claims that, as a result of the State party's
failure to keep his identity as a witness secret, he received death threats
that compelled him and his family to leave Colombia; and that in the United
States he had no means of subsistence. He claims that the authorities, far
from carrying out a diligent investigation into the incident, have done
everything possible to cover it up and that no officials from the office
that revealed his identity have been disciplined. Moreover, he claims that
he has not received any compensation.
3.2 The author also claims a violation of the right to work, because on
leaving Colombia he had to leave his business behind.
THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 In its submission of 14 November 1996, the State party argues that the
communication should be declared inadmissible, on the grounds that domestic
remedies have not been exhausted.
4.2 The State party concedes that the author was the primary witness in an
extortion and kidnapping case in his home town of Ibague. However, it states
that under resolution No. 0-663 of 1993, on the Programme to Protect and
Assist Witnesses and Threatened Persons, the author should have been
relocated within Colombia before being entitled to relocation outside the
country. The author had refused internal relocation and consequently could
not be relocated in the United States at the expense of the Colombian
authorities. The State party further claims that it was Mr. Aponte's
spontaneous decision to travel abroad, and that he only requested help in
obtaining an entry visa for the United States and a ticket for himself. The
State party claims that it never informed the United States Embassy in
Bogota that the author would be travelling at the request and expense of the
Office for the Protection of Victims and Witnesses. It also states that, in
a letter to the Public Prosecutor, the author expressed the hope that he
would receive support from family members in Miami.
4.3 The State party denies that it failed to guarantee the Aponte family's
life and security, since the document mentioning the author's identity was a
purely internal one and thus did not put his life at risk. The State party
contends that it is the author himself, with his series of complaints to
national and international bodies, who has endangered his life by failing to
exercise due caution.
4.4 In additional comments dated 8 November 1996, the State party reports
that, by a decision of 19 December 1995, the Judicial Monitoring Division
found that there had been no negligence on the part of the then Head of the
Office for the Protection of Victims and Witnesses in the Public
Prosecutor's Office, since there was no evidence that any outside party had
knowledge of the telegram addressed to the author, and that the telegram did
not, therefore, constitute a threat to the Aponte family. It adds that,
according to the documents submitted, the author had by that time already
received threats, and it was for that reason he was seeking the protection
of the Office.
4.5 In its comments dated 15 October 1997, the State party informs the
Committee that the State Council had ordered that the author and his family
should be paid maintenance in the United States, as well as travel expenses.
It points out that it has requested the Constitutional Court to review the
case and that domestic remedies have consequently not been exhausted.
THE AUTHOR'S COMMENTS ON ADMISSIBILITY
5. On 10 October 1997, the author informed the Committee that, on 26
February 1997, the State Council had revoked the 11 December 1996 judgement
of the Administrative Tribunal of Cundinamarca, denying him financial
assistance. He claims that he brought an action for implementation of the
judgement, but that, when it was not implemented, the Administrative
Tribunal of Cundinamarca ordered the Public Prosecutor's Office, on 17 July
1997, to comply with the order. Furthermore, on 22 July 1997, the Office of
the Programme of Protection and Assistance contacted him through the
Colombian Consulate in Miami to transfer the first payment and inform him of
the procedure to be followed in the future.
COMMITTEE'S DECISION ON ADMISSIBILITY
6.1 The Committee considered the admissibility of the communication on 18
6.2 The Committee took note of the State party's request that the
communication should be declared inadmissible for failure to exhaust
domestic remedies. It also noted, with respect to the allegation concerning
the right to life, that the author brought several actions to clarify who
was responsible for the divulgation of his identity which, he claims, forced
him to flee the country. It considered that, in the circumstances, it must
be concluded that Mr. Aponte had diligently pursued remedies aimed at
establishing and clarifying his situation. More than three years after the
events giving rise to the communication, those responsible for the incident
had not been identified or disciplined. The Committee concluded that, in the
circumstances, domestic remedies had been "unreasonably prolonged" within
the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
6.3 With respect to the author's allegations under articles 6, paragraph 1;
9, paragraph 1; 12; 17; and 23, paragraph 1, of the Covenant, the Committee
considered that they had been sufficiently substantiated for purposes of
admissibility and that they should accordingly be considered on their
THE STATE PARTY'S OBSERVATIONS ON THE MERITS AND THE AUTHOR'S REPLY
7.1 In a written submission dated 4 November 1998, the State party maintains
that the Public Prosecutor's Office ordered the author to be paid the sum of
US$ 4,000 per month, in compliance with the instructions of the State
Council of 26 February 1997. It further states that the amount had been
determined on a unilateral and subjective basis, since the author had never
allowed the question to be studied.
7.2 With regard to the alleged breach of confidentiality in respect of the
author's identity, which supposedly placed his life in danger, the State
party reports that a disciplinary enquiry was conducted against the official
named by Mr. Aponte, and definitively closed by the Judicial Monitoring
Division on 13 February 1996. According to the State party, the author has
since submitted various applications and appeals, but that these were
inadmissible since the case had been closed and no substantive aspects of
the dispute remained to be addressed.
7.3 The State party reports that the persons against whom the author
testified and whom he identified as having allegedly threatened him were
found not guilty; the author's assistance was therefore unproductive, and
the State party believes no threats were made. Furthermore, those who were
found guilty were not the people whom the author identified.
7.4 The State party considers that Mr. Aponte may have been making use of
the initial situation (alleged threats) to remain in the United States, and
that he hopes for a favourable decision so that the United States
authorities will extend his visa. It also recalls that it has suggested that
the author return, and has offered to place him in the witness-protection
programme in that event.
7.5 On 1 October 1999, the State party forwarded to the Committee a copy of
the protection ruling handed down by the Administrative Tribunal of
Cundinamarca. On 10 May 1999, the Tribunal found that the circumstances that
had warranted the payment of financial support to the author had changed:
hence the decision of the Public Prosecutor's Office to discontinue payment
was quite legal. The Division of the Tribunal that handed down the ruling
found no proof that Mr. Aponte's life continued to be in danger; the Public
Prosecutor's Office was thus unable to extend assistance and maintenance
under the protection programme indefinitely. According to the Tribunal, the
State Council ruling protecting the author's rights had clearly established
that financial assistance should be provided only as long as circumstances
required, and that, if those circumstances ceased to exist, the decision of
the Public Prosecutor's Office to discontinue payments could therefore not
be considered non-compliance.
7.6 The State party argues that the enquiry ordered by the Public
Prosecutor's Office found that, during the time the author was being guarded
by members of the Technical Investigation Unit (CTI), no real threats were
made against his or his family's lives, and that in any case the author
refused to allow his telephone to be monitored.
7.7 In a written submission of 2 August 1999, the author informed the
Committee that he had received from the Public Prosecutor's Office the sum
of US$ 4,000 per month over a seven-month period between September 1997 and
April 1998; the payments had then ceased after seven months. He therefore
brought an action for non-compliance against the Public Prosecutor's Office,
in order to compel the Office to implement the maintenance order issued by
the State Council. He also requested that the maintenance should be paid
retroactively and that he should receive compensation for damages and harm
for the "judicial error" of the Public Prosecutor's Office in failing to
keep a witness' identity secret. In a submission dated 24 March 2003, the
author reports that his claims were rejected by the Administrative Tribunal
of Cundinamarca on 12 December 2002.
7.8 The author claims that he has been obliged to undergo psychiatric
treatment as a result of the violations of his rights.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
8.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided for in article 5, paragraph 1, of the Optional Protocol.
8.2 Although the admissibility of the communication has already been
considered , Rule 93.5 of the Committee's Rules of Procedure allows for a
review of the Committee's admissibility decision upon consideration of the
merits. The Committee thus takes note of the State party's argument that the
official identified by Mr. Aponte was the subject of a disciplinary enquiry
that was definitively closed by the Judicial Monitoring Division on 13
February 1996. The Committee notes that, on 10 May 1999, the Administrative
Tribunal of Cundinamarca found that the decision of the Public Prosecutor's
Office to discontinue payments to the author could not be considered
non-compliance since there was no evidence that the Aponte family were at
continuing risk. It was this that led the Public Prosecutor's Office to
discontinue support and maintenance under the protection and assistance
programme. The Committee notes that the author adduces no evidence to the
contrary. It also notes that Mr. Aponte was not prevented from working in
the United States. Since it was those points that gave rise to the author's
complaints, and given that they are no longer valid, the Committee finds the
author's communication is insufficiently substantiated for purposes of
admissibility under article 2 of the Optional Protocol.
9. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
(b) That this decision shall be communicated to the author and, for
information purposes, to the State party.
[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]