Omar Fabio Guanga and Hugo Fernando Moreno Quiroga were murdered by the Army. At the JEP the soldiers confessed to the crime, despite this the family was not compensated by the Administrative Court of Huila.
Diario del Huila, Investigation
CARLOS ANDRÉS PÉREZ TRUJILLO
An unusual case of a ‘train crash’ in justice ended up re-victimizing the relatives of two farmers discharged by the Army in the municipality of Acevedo, southern Huila.
The story of Omar Fabio Guanga and Hugo Fernando Moreno Quiroga is part of those unusual cases where in one jurisdiction a fact is proven, and in another court it is unknown.
On September 5, 2006, Messrs. Guanga and Moreno were traveling on a motorcycle from a rural area to the urban area of Acevedo. According to the family’s story, this happened around 5:00 p.m.
The next day the employer of the two farmers went to the bakery located in the hamlet of San Isidro, because María Eugenia Moreno Quiroga, wife of Omar Fabio and sister of Hugo Fernando, worked there. The purpose was to find out the whereabouts of the two workers. She was astonished and did not know either, however, that same day it was reported on the radio that Messrs. Guanga and Moreno Quiroga “had been killed by members of the National Army, belonging to the Magdalena de Pitalito Battalion.”
Without justice and dead
Although the relatives of the victims have pointed out to the Council of State the criminal responsibility of the military: Major Luis Alberto Rojas Omaña, Sv Jhon Jairo Cuesta Barón, CP José Ricardo Tovar Bahos, dg. Carlos Julio González Aparicio and DG. Giovany García Moreno, like the material and intellectual authors of the death of those close to him, the JEP only records the submission to the Special Jurisdiction for Peace of the professional soldier Roel Darío Lemus Trujillo.
For María Eugenia Moreno Quiroga, who has incessantly sought justice in the contentious jurisdiction, recently before the Council of State she stated that this case was an “extrajudicial execution,” “with the sole purpose of the high command to show military results and to that soldiers and sub-officers were deserving of gifts or rewards.”
María Eugenia also stressed that the aforementioned commanders “confessed their crimes and took advantage of the Special Justice for La Paz.”
Faced with this reality, the relatives of the victims decided to sue the Nation (Ministry of Defense, Army). The first instance corresponded to the Fourth Administrative Court of Decongestion of Neiva. In this office all claims of the lawsuit were denied (September 30, 2014): “The failure of the State service that triggered the death of Messrs. Hugo Fernando Moreno Quiroga and Omar Fabio Guanga was not procedurally proven, finding that it was the victims’ own activity that led to the final result and the production of the unlawful damage for which the plaintiffs claim in the present case, a fact that breaks the causal link with the service and leads to exonerating the defendant entity from liability.”
On June 20, 2023, the Administrative Court of Huila – Second Decision Chamber, with a presentation by Judge Gerardo Iván Muñoz Hermida, confirmed the first instance ruling, which denied the claims of the lawsuit.
For this reason, María Eugenia Moreno Quiroga filed a tutea before the Council of State with the purpose of challenging the ruling of the Administrative Court of Huila, which, although there were two deaths in cases of proven ‘false positives’, did not repair the damage to the victims by a legal formalism.
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What the Council of State said
This court closing the contentious jurisdiction accepted what was decided by the Administrative Court of Huila and the first-degree judge. “In accordance with such reasoning, the court confirmed the first-degree ruling that denied the claims, since it was not demonstrated that the National Army had incurred a failure of service, or that another regime of state responsibility could be configured.”
“As can be seen from the content of the decision and the analysis of the evidentiary material related to the process, the plaintiff’s claim that the death of Mr. Omar Fabio Guanga and Mr. Hugo Fernando Moreno Quiroga had occurred in a situation that could be predicated as an extrajudicial execution carried out by the National Army, since it was not proven that it was a homicide deliberately carried out by state agents, or that the victim was in a state of defenselessness or inferiority, or that a montage had been demonstrated. the place of occurrence of the events or manipulation of the evidentiary material. On the contrary, it was demonstrated, with technical evidence, such as the autopsy procedure, testimonial evidence and even “indications”, that the death occurred during a combat or in legitimate and proportional fulfillment of the functions that corresponded to the Military body”.
On the other hand, the Council of State indicated that “it is necessary to note that the origin of the protection action against judicial rulings has been conceived as a residual and exceptional mechanism that is interposed when, eventually, once the legal system has been exhausted, they may be presented determinations harmful to fundamental rights. The above, to the extent that, within each process, “the parties have the ordinary and extraordinary judicial resources provided by the legislator to combat the decisions of the judges that they consider arbitrary or incompatible with their rights. If after exhausting these resources a clear judicial arbitrariness persists, only in that case is protection against judicial orders enabled.”.
In conclusion, “the Chamber considers that in the present matter the plaintiff did not prove that the questioned ruling had incurred any of the special causes of admissibility of the protection action against a judicial ruling of factual defect or substantive defect, sufficient reason to deny protection.”
As things stand, the relatives of the victims will continue to wait for reparation after the illegitimate and atrocious death of their relatives at the hands of the military forces.
Can a guardianship overturn a ruling from a high court?
Sentence C-590 of 2005 of the Constitutional Court systematized the so-called de facto channels in which the rulings issued by the judges of the Republic in their different specialties (criminal, civil, labor, administrative litigation, and others) could be incurred and, Consequently, the exceptional origin of the protection action against them.
Subsequently, through Ruling T-217 of 2010, that same Corporation redesigned the scope of understanding of the protection action against sentences and the notion of de facto was superseded by that of general and specific causes of procedure with the purpose of highlighting, with greater emphasis, the exceptional nature of the protection action against judicial decisions, which only when it has undoubted constitutional relevance is appropriate. This thesis is still valid, for example, among others, in Sentence SU-128 of 2021.
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