A) Statement of Facts
1. Our claimant, Jesús Ernesto Rosario Quintana, is not in possession of his passport but of his driving license and claims to be of Colombian nationality.
2. The claimant is member of the ACIEM Colombian engineer association.
3. Our claimant has a chemical company called Quintana-Chem placed in the city of Cali that trade oil and oil products.
4. His mother lives in El Carmen since his father’s death, a city in the North Western part of the Norte de Santander Province.
5. His company was successful and able to buy small businesses.
6. He is friend of the manager of ECO PETROL.
7. On 26th of July 2006 in the evening our claimant received a called from somebody he did not know asking him to send them chemicals for their cocaine production.
8. The person who called did not say his name nor which company or organization he did represented.
9. The claimant did not reported the call to the police.
10. Three days later another person called him saying he was a member of a grupo de autodefensa and asking for chemicals for their cocaine production.
11. The claimant told him to call a week later. He did not call the police to report the call.
12. Fifteen days later the same man called again. Our claimant said he could not do what they were requesting.
13. The man said that if he refused to cooperate he would become a military objective.
14. On August 18th he found his car on fire. Nobody, nor the guards, saw anything. Our claimant went home by taxi. When he arrived home he found the windows of his house broken with stones. Our claimant took another taxi to an hotel in the other part of the town.
15. The next day he had a business meeting with his very friend Miguel Ángel Días to whom he told everything that happened to him. His friend recommend him to abandon Cali.
16. The next day our claimant went to Bogotá and left his deputy in charge of his company. He rented a flat in the Teusaquillo district. From there he called his deputy quite often.
17. On August 24th he received a call in his apartment in Bogotá. The voice told him that if he did not cooperated he would be killed as a military objective.
18. On August 24th, after the call he immediately left the flat and went to El Carmen by bus.
19. He did not called his company anymore because there was no phone at home.
20. He remained at his mother’s house for three months.
21. While he was living in El Carmen he develop a stomach problem that lasts until today.
22. During that time he did not try to find a job nor asked her mother to help him to find a job.
23. On November 28th our claimant left his mother’s house. On November 30th he arrived to Cartagena by a rented car.
24. In the port somebody took him to the captain of a ship that was going to Spain. He agreed with the captain the he would be in the ship and he would pay him.
25. He was hidden in a small cabin full of boxes for eight days.
26. When the ship arrived two men threw him into the water near the cost.
27. When he arrived to the shore two guards told him he was not in Spain but Asylia.
28. Then he went to the Office of Immigration to ask for protection.
B) Country of Origin Assessment
Since the decade of the 1960’s, the internal armed conflict in Colombia is full of violations of Human Rights and the International Humanitarian Law. As have been proved by the organization Human Rights Watch[1] , the three parties of the conflict: guerrillas, paramilitary groups and Colombian armed forces commit serious abuses such as kidnappings, killings and massacres as well as creating an atmosphere of terror among the civil population.
According to this report, the Colombian army continues to commit violations of the international humanitarian law and do not show interest to investigate and sanction the responsibles. The most remarkable fact being that they cannot, or refuse to, distinguish between civilians and combatants. In the parts of the country where the paramilitaries are present, the Colombian army tolerate their violations and, moreover, provide information to facilitate their operations.
The National Police has incorporated human rights and international humanitarian law to its discourse topic. It has, also, start training their official according to these international norms. However, there are still policemen involved in violations. The most frequent cases being those in which they arrest and kill suspects. In occasions they have provided with internal information to the paramilitaries to help them with their black lists. The police has not intervened when the paramilitaries select and kill civilians. Sometimes, the police has considered, in public, a whole community as sympathizers of the guerrilla and deprived them from police protection, thus violating their responsibility of protecting civilians in dangerous situations according to the Colombian and international law.
Both paramilitary groups and guerrillas continue to be well-financed through resources from the drug business. Paramilitaries have also become increasingly involved in large-scale corruption schemes, infiltrating national governmental institutions, controlling local politicians, and diverting funds from state agencies.[2]
The Autodefensas Unidas de Colombia (AUC) consist of, at least, seven paramilitary groups. Even though the AUC usually operate jointly with the Colombian security forces, they also act independently. The leader of the AUC, Carlos Castaño, has declared his willingness to conform his forces to respect humanitarian international law. However, he says this is very difficult to comply because of the characteristics of the Colombian conflict by which it is not possible to distinguish between combatants and civilians- there are many combatants without uniform nor identification. In general terms, the AUC depend on the violation of these international norms to make the war. They have killed civilians and combatants out of combat, forced displacement, torture, dead threats, among other violations.
With respect to the FARC, the biggest Colombian guerrilla, they have not tried to adapt their behavior according to the international norms. They only show their respect to the international humanitarian law when there is a political benefit in it. There have been proved massacres, planned killings to civilians, torture, attacks to non military objectives, such as ambulances, among other violations.
C) Issues
If our claimant goes back to Colombia, does he have the risk to be persecuted? As the present situation is in the country with the internal conflict and the well-founded fear he presents there is a risk of being persecuted and killed and so it would be violated his human right of being able to have right to freedom and life.
Is it our claimant able to receive protection from the authorities if he goes back to Colombia? The probability to receive an effective protection by the Colombian authorities is limited and even can be reverted and be detrimental to his right to freedom or life.
Is there a Convention reason for the claimant to be persecuted? As he refused to cooperate, the perception of the agent of persecution is that he is a political opposite because he is perceived as a supporter of the other part of the conflict.
D) Summary of Arguments
Our claimant, according to the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Protocol, which Asylia is party to, satisfies the definition of refugee established in the Art. 1 (2)[3] of the aforementioned Convention. He presents a well-founded fear of being persecuted if he goes back to Colombia because of perceived membership to a political group by the agents of persecution; he is since 8th of December 2006 out of Colombia and living in Asylia; and he is unwilling to avail himself to the protection of the authorities of his country because of the well-founded fear he suffers.
Even though our claimant is an asylum-seeker without the refugee status he should enjoy the human rights which are respected in the convention or treaties signed by Asylia, such as asylum if he may be persecuted, tortured, or deprived of freedom in his home country.
E) Arguments Section
A) Being Asylia party to the 1951 Geneva convention relating to the status of refugees and of its 1967 Protocol, we are going to present the grounds which our claimant Jesús Ernesto Rosario Quintana satisfies regarding the Convention Refugee Definition.
Well-founded fear. This is the key phrase of the definition of refugee. Our claimant is a businessman who possess a company called Quintana-Chem , we have evidence of that because he has a company magnetic security card to get into that company. Having this as a premise he should not be wanting to abandon his company nor his country at least he had a “well-founded” fear of being persecuted. He has fear because there is a future risk of being persecuted again, together to the facts that will be exposed in the next point. There is no need to prove he was persecuted but that there exists the risk that he can be in a future. Due to the dynamicity of the Colombian internal conflict, there was no alternative internal flight to consider, as the paramilitary groups may operate everywhere. The fact that he was the owner of a successful company makes him well-known and, thus the possibility of persecution may be greater. Our claimant also has evidence of similar situations that could happened to him. His friend, Miguel Ángel Días, told him about the brutal murder of his businessman friend that asked the police to protect him but they could not. This “may well show that is fear that sooner or later he also will become a victim of persecution is well-founded”. [4] There is not necessity for the claimant to show he sought and was refused protection because of the humanitarian law violations that are taking place in Colombia. Colombia is not respecting the Article 3 common to the four Conventions and Protocol II, thus defending the international humanitarian law. The development of stomach problems while living with his mother I El Carmen shows the stress and fear our claimant was and is suffering.
Persecuted. As a result of his refusal to co-operate with the group of autodefensa that called him, he was threatened of becoming a military objective and, thus existing a threat for his life. After that first threatening call, his car was set fire and somebody threw stones to the windows of his house. (We are going to consider this facts as true as they cannot be proved as there were no witnesses, but let us give the claimant the benefit of the doubt, as it is impossible for him to prove every single part of his case.) They were not isolated facts and are a clear evidence that somebody was following him. After a friend’s advice he went to Bogotá, however, he received another call there from the group of autodefensa, which scared him and evidences that the group was well connected and could find him easily. Normally those groups receive intelligence information from the Colombian forces to help them with their operations.[5] That is, as the paramilitary groups are provided with information from the State forces, it is probable that wherever he goes, he is going to be found easily, because the Colombian forces cover the whole country.
So, he made his best to reallocate himself into other parts of the country but with no success, that is why he wanted to come to Europe. He was persecuted by this paramilitary group and that together to the impossibility of making his livelihood because of the fear he suffered and the “general atmosphere of insecurity in the country of origin”[6] makes our claimant to have a well-founded fear of persecution on “cumulative grounds”.[7] He suffered persecution and has a risk of future persecution in the country because there are proves of the unwillingness or refuse of the authorities to offer effective protection to its citizens as exposed in the country of origin assessment section.[8]
Ground. Mr. Jesús Ernesto Rosario Quintana had a very successful chemical company, one day he received a call from a paramilitary group asking for his cooperation by providing them with chemicals for their cocaine production. He refused to cooperate and as a consequence of that he became a military target. According to the protection categories applied to Colombian asylum-seekers we may consider that the ground satisfied by our claimant is political, even though he stated in the interview that he had never been involved in drugs, politics or crime:
“Irregular armed actors often kidnap and/or extort persons deemed to hold an opposing political opinion. They also use kidnapping and extortion to finance political / military objectives, targeting anyone seen as a possible source of funds, regardless of the victim’s social status or political activity. Due to the significance of the income derived from ransom and extortion to fund political-military activities, refusal or inability to pay is viewed as an act or indication of political opposition, resulting in persecution and violence. This is reflected in letters written by the irregular armed groups demanding payment of a “war tax” (the so called “vacuna”) and a threat to mark victims as a military target upon failure or refusal to pay”.[9]
What it is important here is that the paramilitary group- the agent of persecution- considers him as a political opposite – imputed ground- and as such as a military target, even though he has no political involvement in the conflict.
Outside the country of nationality/former habitual residence. Even though our claimant is not in the possession of his passport, he possess his driving license and we also have the evidence of the claimant that he is from Colombia.
Owing to such fear, is unwilling to avail himself of the protection of that country. Our claimant rejected the idea of calling the police after any call he received. He trusted more his friend Miguel Ángel Días who advice him not to call the police and abandon Cali. The situation in Colombia regarding the protection of its civilians by the national authorities is not effective, thus our claimant was afraid to call the police as this could have any kind of connection with the paramilitary group he wanted to avoid. “The mere fact of refusing to avail himself of the protection of his Government, or a refusal to return, may disclose the applicant's true state of mind and give rise to fear of persecution.”[10]
B) As the subsidiary protection with which or claimant was granted with the first instance decision- one-year residence permit, is not enough in order to find protection our claimant can also seek for asylum in other international and European instruments Asylia is party to. The asylum-seeker should enjoy also human rights even though he does not enjoy the refugee status.
1. As Asylia is party to the Universal Declaration of Human Rights (UDHR), this state should respect article 14 which says that in cases of persecution everybody has the right to enjoy asylum in other country.[11]As explained in section A 2 our claimant has a well-founded fear of persecution, so he should enjoy asylum and not just one-year residence permit.
2. Asylia is party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT) since 1985. As such, it should respect the convention and cannot return our claimant to Colombia if there are “substantial grounds for believing that he would be in danger of being subjected to torture.”[12] The actual situation in Colombia is chaotic and seems non probable that in the period of one year , the risk of being tortured by part of our claimant is expired. So, it should be taken in consideration the mass violations of Human Rights in Colombia since the last forty years.
3. In the Art. 13 of the International Covenant on Civil and Political Rights (ICCPR) of which Asylia is party, it is specified a protection for aliens lawfully in the territory of a signatory member. According to Art. 7, states must not expose our claimant to torture, cruel or inhuman or degrading treatment or punishment on return to another country by extradition, expulsion or refoulement.[13]
4. As party to the European Convention of Human Rights (ECHR), Asylia should not expel our claimant when the one-year residence permit expires if his presence in Colombia presents the same persecution risks as in the present (Non-refoulement principle).
F) Submissions
The present situation in Colombia, due to the instability and chaos of the internal conflict, makes not probable that he could receive effective protection in his country in case of being persecuted. Moreover, the level of corruption in the institutions of the country is very high as they reject to investigate wrongdoings of their officials and tend to do fair trials to military suspects of massacres and selective killings to the civil population. In addition to this, our claimant could not continue his life normally which could have strong effects in his physical condition with risk to get worse his stomach problem because of the stress of constant fear for his life, nor carry on with his work as owner of his company because he would be at risk of more threatening calls extorting him or being killed. That is why, as our claimant satisfies all the requirements of the definition of refugee, we ask the tribunal to grant him with such status determination because the one-year residence permit is not enough to provide him with minimum standards of living.
[1] http://hrw.org/spanish/informes/1998/guerra.html#resumen
[2] http://hrw.org/englishwr2k7/docs/2007/01/11/colomb14884.htm
[3] http://www.unhcr.org/cgi-bin/texis/vtx/protect?id=3c0762ea4
[4] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Par.43
[5] http://hrw.org/spanish/informes/1998/guerra.html#resumen
[6] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Par.53
[7] Par 53
[8] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Par.65
[9] http://www.unhcr.org/country/col.html International Protection Considerations Regarding Colombian Asylum-Seekers and Refugees. Par 96
[10] Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Par. 83
[11] http://www.un.org/Overview/rights.html
[12] http://www.hrweb.org/legal/cat.html
[13] http://www.ohchr.org/english/law/ccpr.htm
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