HUMAN RIGHTS PROTECTION IN THE
LEGAL AND POLITICAL SYSTEM
A. THE POLITICAL CONSTITUTION OF COLOMBIA
1. Pursuant to its Political Constitution, Colombia is a unitary,
decentralized republic, democratic, participatory and pluralist in nature, founded on the
respect for human dignity. Colombian sovereignty belongs to the people, and public power
emanates from the people. The people exercise their sovereignty directly or through their
2. The current Colombian Constitution was adopted in 1991. The previous
constitution dated to 1886 and had suffered many amendments, including major amendments in
1910, 1936, 1945, 1957 and 1968. The adoption of the 1991 Constitution was seen as an
extremely important step towards the modernization of the State, the diversification and
amplification of the democratic process and the possibility of peace.
3. On August 24, 1990, the Government of President César Gaviria
Trujillo convened a National Constituent Assembly, pursuant to Decree No. 1926. On
December 5, 1990, the people of Colombia elected the 70 representatives who would serve in
that Assembly. It was an historic election in that the voters and candidates included
former members of armed dissident groups, recently reassimilated into mainstream society.
For example, the leaders of the M-19 participated in these elections. The representation
elected to the General Assembly was the following: Liberal Party - 25; Democratic Alliance
M-19 - 18; Movement for National Salvation (Movimiento de Salvación
Nacional) - 11;
Social Conservative Party (Partido Social Conservador) - 5; independent Conservative Party
ballots - 4; Patriotic Union (Unión Patriótica)- 2; Indigenous Movement (Movimiento
Indígena)- 2; Evangelical Movement (Movimiento Evangélico) - 2; Hope, Peace and Liberty
(Esperanza, Paz y Libertad) - 2; Revolutionary Workers' Party (Partido Revolucionario de
los Trabajadores) - 1; Indigenous Movement Quintin Lame (Movimiento Indígena Quintín
Lame) - 1. The last two elected representatives did not have the right to vote.
4. After six months in session, on July 5, 1991, the National
Constituent Assembly enacted the new Constitution, which consists of 380 articles and 60
transitory provisions. At the time of the writing of the "Second Report on the
Situation of Human Rights in Colombia," the new Colombian Constitution was of
extremely recent implementation and application. At this time, seven years after the
adoption of the Constitution, the Inter-American Commission on Human Rights (the
"Commission", the "IACHR" or the "Inter-American
Commission") is able to better analyze the application of the standards and
mechanisms it provides for the protection of human rights.
B. THE STRUCTURE OF THE COLOMBIAN STATE
5. Like the 1886 Constitution it replaced, the 1991 Constitution
establishes three branches of government: legislative, executive and judicial. It also
establishes independent autonomous organs with specific functions to carry out the
additional functions of the Colombian State. As the Commission noted in its "Second
Report on the Situation of Human Rights in Colombia," the executive branch of
government has historically been granted preeminent powers in the constitutional
structure. However, the present constitution seeks to balance the relationship between the
branches. To this end, the Constitution gives greater powers to the legislature to provide
for political control over government and reinforces the independence of the judiciary and
the role of judicial review of legislative and administrative acts. (See Organizational
Chart of the Colombian State attached to this Chapter as Annex 1).
1. The Legislative Branch
6. The Legislative Branch consists of the Senate and the Chamber of
Representatives, which together form the Colombian Congress which sits in the capital of
the Republic. The basic function of the Congress is to amend the constitution, make laws
and exercise political control over the government. Its members are all elected directly
by the people for four-year terms of office. The Senate has 100 members elected at the
national level, and the members of the Chamber of Representatives are elected by
districts. Two additional seats in the Senate are set aside for representatives of the
indigenous communities. Legislation may also provide for the election of members to the
Chamber of Representatives, other than by district, to ensure the participation of ethnic
groups and political minorities. Both the Senate and the Chamber of Representatives have
committees on human rights.
7. The Congress has several important special powers. For example,
Congress may grant amnesties or pardons for political crimes. Congress also has the power
to approve or reject treaties which the Government makes with other states or with
international bodies. Congress is required to give priority treatment to draft legislation
for the approval of human rights treaties submitted by the Government for its
consideration. The Congress may also grant the President of the Republic specific,
extraordinary powers to issue norms that have the force of law, for a period of up to six
months, when necessity or the public interest so requires.
2. The Executive Branch
8. The Executive Branch is headed by the President of the Republic, who
serves as head of state, head of government and supreme administrative authority. The
Executive Branch is also composed of the cabinet members and the directors of
administrative departments. Pursuant to Article 188 of the Constitution, the President
must not only observe and enforce the Constitution and the laws of Colombia but must also
guarantee the rights and freedoms of all Colombians. The President has a term of office of
four years and may not stand for re-election. The Cabinet includes the Ministers of
Foreign Affairs, the Interior and Justice, all of whom fulfill important roles in the area
of human rights protection. The Ministry of Foreign Affairs maintains constant relations
with the Inter-American Commission, since it is the Government's foreign policy executor
and leader for human rights and other issues.
9. Within the Office of the President of the Republic, there exists an
Office of the Presidential Adviser for the Defense, Protection and Promotion of Human
Rights (Consejería Presidencial para la Defensa, Protección y Promoción de los Derechos
Humanos). This office acts upon complaints regarding human rights violations processed in
the domestic systems. The Office performs this work in cooperation with the relevant
authorities, particularly the Office of the Prosecutor General of the Nation
General de la Nación), the Office of the Procurator General of the Nation (Procuraduría
General de la Nación) and the pertinent tribunals. The Office also works to address
requests made of the Colombian Government by intergovernmental and nongovernmental
international bodies, in connection with the human rights situation in the country and the
obligations undertaken by the Colombian State by virtue of the treaties and conventions
which it has ratified. This Office thus carries out work relating to cases and situations
processed by the Inter-American Commission on Human Rights. The Office carries out this
part of its work in cooperation with the Colombian Ministry of Foreign Affairs.
3. The Judicial Branch
10. The Constitution provides that the administration of justice in
Colombia is the responsibility of the Constitutional Court, the Supreme Court of Justice,
the Council of State (Consejo de Estado), the Superior Council of the Judiciary
Superior de la Judicatura), the Office of the Prosecutor General of the Nation, the
various tribunals and judges and the military justice system. The Constitution establishes
that the administration of justice is a public function. The decisions made by the
judiciary are independent and its proceedings are public. (See the Chart of Jurisdictions
in Colombia attached to this Chapter as Annex 2).
a. The Supreme Court
11. The Supreme Court is the highest of the courts in the ordinary
jurisdiction. Twenty-three magistrates are elected to serve on the Court by the Court
itself from lists of candidates submitted by the Superior Council of the Judiciary. The
magistrates serve an eight-year term. The members of the Court sit in plenary and in
separate chambers for civil, criminal and labor appeals.
12. The Supreme Court is appellate in nature but also has the
responsibility of investigating and trying certain high-level officials in first instance
for any punishable offense of which they stand accused. These officials include the
President of the Republic, the cabinet ministers, the Prosecutor General, the Procurator
General, the Ombudsman for Human Rights (Defensor del Pueblo), other high-ranking
officials and members of Congress. The Supreme Court also acts as a tribunal of cassation,
including in cases tried in the military justice system.
b. The Council of State
13. The Council of State is the highest tribunal in the
contentious-administrative jurisdiction. It also serves as the Governments advisory
body on matters of administrative law. Twenty-six magistrates are elected to the Council
of State by that same body from lists of candidates submitted by the Superior Council of
the Judiciary. The magistrates serve an eight-year term. The members of the Council of
State serve in plenary chamber and in the contentious-administrative chamber and in the
advisory and civil service chambers.
14. The contentious-administrative chamber takes cognizance of actions
seeking nullification, on the grounds of unconstitutionality, of decrees issued by the
national government which do not fall within the jurisdiction of the Constitutional Court.
It also hears cases alleging the illegality of national administrative acts issued by any
branch of government or by private entities performing public functions. The third section
of the contentious-administrative chamber handles matters of direct reparations for
government acts and omissions which cause harm to individuals. These proceedings include
those in which individuals seek to hold the State liable for human rights violations
committed by its agents.
c. The Constitutional Court
15. The Constitutional Court represents the constitutional jurisdiction
provided for as part of the Colombian judicial system. The Senate elects the magistrates
of the Constitutional Court for an eight-year term. The magistrates should have
backgrounds in different areas of the law.
16. The Constitutional Court has a number of functions, including the
following: 1) decides cases brought by citizens alleging the unconstitutionality of acts
that amend the Constitution on the grounds of procedural error; 2) decides whether the
convocation of a referendum or constituent assembly to amend the Constitution complies
with the Constitution where procedural error is alleged; 3) decides cases filed by
citizens alleging the unconstitutionality of laws or decrees with force of law, on
procedural or substantive grounds; 4) decides the constitutionality of the decrees issued
by the Government pursuant to a declaration of state of emergency; 5) decides the
constitutionality of draft laws and statutes that the Government has challenged as
unconstitutional, on procedural or substantive grounds; 6) reviews lower court decisions
on actions by individuals for the protection of constitutional rights ("tutela"
actions); 7) decides the constitutionality of international treaties.
17. The Commission has observed that the Constitutional Court, which
only began to function in 1992, has attained a high level of respectability and prestige
through its independent and objective treatment of issues of great importance for the
exercise of human rights and the rule of law in Colombia. The Court has issued
well-reasoned decisions on issues ranging from the constitutionality of amnesties for
political crimes, legislation relating to the rights of women in the work force, declared
states of emergency, etc... The Court's role as the final arbiter in tutela actions, which
serve to define fundamental rights, has also been extremely positive. The Court has issued
decisions ordering protection for the rights of indigenous groups, members of the
Patriotic Union political party and others. The Commission will discuss some of these
decisions at greater length in the relevant sections of this Report. The Commission is
very pleased to report that the Commission and the Constitutional Court of Colombia have
developed a special agreement for cooperation between the two bodies. This agreement will
be signed in the headquarters of the Commission on November 17, 1998.
d. The Office of the Prosecutor General of the
18. The Office of the Prosecutor General of the Nation consists of the
Prosecutor General, the delegate prosecutors (fiscales delegados) and other functionaries.
The Supreme Court of Justice elects the Prosecutor General of the Nation, from a list of
candidates submitted by the President, for a four-year term. The Office of the Prosecutor
General forms part of the judiciary and enjoys administrative and budgetary autonomy.
19. The Office of the Prosecutor General has the responsibility of
acting, either independently or in response to a complaint, to investigate crimes and to
bring charges against suspects before the competent courts and tribunals in both the
ordinary and regional justice systems. The Office of the Prosecutor General does not have
this competence in the case of crimes which fall under the jurisdiction of the military
justice system. The creation of the Office of the Prosecutor General and the resulting
establishment of two separate entities for the investigation and the trial of criminal
cases is an innovation in the 1991 Constitution.
20. In order to carry out its functions as an investigative and
prosecutorial body, the Office of the Prosecutor General may adopt measures to ensure that
criminal suspects will appear before the courts, including the issuance of preventive
detention orders. The Office of the Prosecutor General also directs and coordinates the
work of investigative entities which depend upon the National Police and other similar
agencies. The Office may also adopt measures to protect victims, witnesses and other
persons involved in criminal proceedings.
21. Within the Office of the Prosecutor General, there exist several
areas which work closely with human rights cases. The Human Rights Unit (Unidad de
Derechos Humanos) works to prosecute cases of special importance involving alleged human
rights violations before the regional justice system tribunals. This Unit works with many
of the cases which have been presented before the Inter-American Commission as individual
complaints. The Office of International Affairs (Oficina de Asuntos
to coordinate with and provide information to international bodies, including the
Commission, in regards to cases which are of interest to those bodies and which are being
prosecuted by the Office of the Prosecutor General.
22. The Commission considers that the creation of the Office of the
Prosecutor General of the Nation constituted an important advance in the administration of
justice in Colombia. The Office has developed a reputation as a generally credible public
office. It has also professionalized and made more efficient the investigation and
prosecution of criminal cases, although there continue to exist serious problems in the
criminal justice system in Colombia which will be discussed in greater depth later in this
Report. As the Commission has previously noted, the Human Rights Unit of the Office of the
Prosecutor General of the Nation deserves special recognition for having achieved advances
in important human rights cases in the face of strong attacks from various sectors that
have sought to impede the work of that office. The Human Rights Unit has ordered numerous
detentions of alleged violators of human rights and has obtained some important
e. The Superior Council of the Judiciary
23. The Superior Council of the Judiciary is also an institution
created by the Constitution of 1991. The Superior Council is divided into the
Administrative Chamber (Sala Administrativa) and the Jurisdictional Disciplinary Chamber
(Sala Jurisdiccional Disciplinaria). The Administrative Chamber consists of six
magistrates, two of whom are elected by the Supreme Court, one by the Constitutional Court
and three by the Council of State. The Jurisdictional Disciplinary Chamber is composed of
seven magistrates elected by Congress.
24. The Superior Council of the Judiciary carries out numerous
administrative and organizational duties relating to the Colombian courts and the practice
of law in Colombia. For example, the Superior Council prepares lists of candidates for
appointments to the judiciary, punishes misconduct by members of the judiciary and
practicing attorneys, monitors the performance of law firms and offices and prepares the
proposed budget for the judiciary.
25. The Superior Council of the Judiciary has one additional
responsibility which has a significant impact on many cases involving serious human rights
violations. The Superior Council has jurisdiction to settle the conflicts of competence
which arise between the different jurisdictions. This role becomes relevant in human
rights cases when the Superior Council must often decide whether a case should come under
the jurisdiction of the ordinary justice system or that of the military justice system.
f. Military Criminal Courts
26. Article 221 of the Constitution of Colombia reads as follows:
Military courts martial or tribunals shall take
cognizance, in accordance with the provisions of the Military Penal Code, of crimes
committed by members of the Public Forces in active service and in connection with that
service.( * )
This provision applies to members of the National
Police as well as to members of the Military Forces (Army, Navy and Air Force), which
together constitute the Public Forces.
27. The military criminal justice system in Colombia has been organized
in accordance with the provisions of the Military Criminal Code (Código Penal
issued on December 12, 1988, pursuant to Decree 2250. The commander of the respective
division, brigade, battalion or other entity initiates the proceedings in the military
criminal justice system and serves as the court of first instance in conjunction with the
courts martial (consejos verbales de guerra) which he names. The courts martial are headed
by the President of the Court-Martial, who plays a special role in the proceedings. The
decisions of the courts martial may be appealed on certain grounds to the Superior
Military Tribunal (Tribunal Superior Militar). The Superior Military Tribunal is the
appellate tribunal in the military justice system. The President of the Superior Military
Tribunal is the Commander of the Military Forces.
4. Organisms of Control (Órganos de Control)
28. In the section setting forth the structure of the State and
establishing the three main branches of government, the Colombian Constitution also
establishes the "organisms of control" which do not fall under the three main
branches. The organs of control are the Public Ministry (Ministerio Público) and the
Comptroller General of the Republic (Contraloría General de la República). The
Comptroller General supervises the administration of public funds. The Public Ministry is
assigned functions relevant for the analysis of the human rights situation in Colombia.
29. The Public Ministry is headed by the Procurator General of the
Nation. The Procurator General is elected for a four-year term by the Senate from a list
of candidates presented by the President, the Supreme Court and the Council of State. The
Procurator General and his delegates are assigned a wide array of responsibilities,
including the protection of human rights and the defense of the Constitution and laws of
Colombia. The work carried out under the Public Ministry and the Procurator General is
divided among the Office of the Procurator General of the Nation and the Office of the
Human Rights Ombudsman.
a. Office of the Procurator General of the Nation
30. The Office of the Procurator General is responsible for carrying
out disciplinary investigations and sanctions against State agents, including both
civilians and members of the State's security forces. The Office thus has the right, for
example, to investigate human rights violations and eventually to order the removal from
service of members of the Military Forces, the National Police or any other State agent
for responsibility in those violations. The Office of the Procurator General of the Nation
is divided into the offices of the delegate procurators (procuradurías
carry out this work. For example, there exist delegate procurators for human rights
(responsible for disappearances, torture and massacres), for the Military Forces, for the
National Police and for the Judicial Police.
31. The Office of the Procurator General also may intervene in judicial
and administrative proceedings, including those carried out in the military justice
system, when necessary to preserve respect for human rights. In practice, this faculty
allows the Procurator's staff to request that additional persons be accused in criminal
cases, that investigations be opened or closed, that charges be brought, etc... in both
the ordinary criminal justice system and in the military criminal justice system. The
Commission notes, however, that the Office of the Procurator General's intervention in
criminal proceedings in the military justice system has been extremely limited.
32. The Office of the Procurator General plays an important and
generally positive role in human rights cases. The sanction of State agents involved in
human rights abuses constitutes an important piece of the reparation which must be
provided in such cases. The Office of the Procurator General has applied disciplinary
sanctions in many cases where the criminal proceedings have not resulted in the conviction
and criminal sanction of the individuals responsible for human rights violations. Although
the State is required in most of these cases to carry out effective criminal
investigations and proceedings, resulting in the criminal sanction of those responsible,
the State does at least discharge some of its duty to respond through the disciplinary
sanction. Those who commit human rights violations, using their authority as public
officials, should not continue to hold the same position of authority. Disciplinary
proceedings in the Colombian legal system can serve to ensure that they are not allowed to
33. It should be noted, nonetheless, that disciplinary proceedings in
Colombia have not always functioned in this positive manner. In many cases, the
proceedings have been ineffective and inefficient. The State has failed to sanction many
human rights violators by allowing the disciplinary action to be barred by the statute of
limitations or by acting ineffectively in gathering and preparing the necessary evidence.
In other cases, the sanctions assessed have not reflected the seriousness of the violation
34. The Commission notes that the Office of the Procurator General has
the power to carry out disciplinary investigations and sanctions against those judicial
authorities who act improperly in carrying out criminal proceedings, in both the ordinary
criminal justice system and the military criminal justice system. This faculty could serve
as an important tool for combating impunity in the administration of criminal justice.
However, to the knowledge of the Commission, the Office has seldom carried out such
investigations to a positive conclusion.
35. The Commission considers that the work of the Office of the
Procurator General of the Nation should continue to improve to ensure that the Office
fulfills its mission. The work of the Office should and can serve as an important tool for
the protection and promotion of human rights in Colombia.
b. Office of the Human Rights Ombudsman
36. The Office of the Human Rights Ombudsman carries out its duties
under the direction of the Procurator General of the Nation. The Ombudsman is elected by
the Chamber of Representatives, from a list of candidates presented by the President, to
serve a four-year term.
37. The Ombudsman works to achieve the promotion and protection of
human rights. As such, he is responsible for carrying out education, training and
publicity regarding human rights issues. In addition, the Ombudsman has the competence to
invoke the right of habeas corpus and the ability to initiate tutela proceedings.
38. The Office of the Human Rights Ombudsman has played an important
role in human rights protection in some cases. For example, in 1992 the Constitutional
Court ordered the Office of the Ombudsman to prepare a report regarding the situation of
the Patriotic Union political party. The report prepared was very clear and comprehensive
and has served as an important tool for understanding the tragic and complex situation of
the Patriotic Union. Similarly, the ombudsman appointed by the Office to the region of
Urabá for several years, María Girlesa Villegas, played an important role in bringing
human rights abuses in that area to the attention of the appropriate authorities and
international bodies. The Office of the Ombudsman has also carried out important work
relating to the indigenous populations. For example, the Office filed a tutela action on
behalf of the U'wa indigenous community defending their right to be consulted adequately
before oil exploration was carried out on their territory.
39. The Office of the Human Rights Ombudsman should receive the
necessary support from the Colombian Government and other entities of the Colombian State
in order to allow the Office to fulfill its promise as an organ dedicated to the promotion
and protection of human rights.
C. CONSTITUTIONAL PROTECTION FOR HUMAN RIGHTS
40. Colombia has a long history of providing legal and constitutional
protections for human rights. The forefather of human rights in Colombia, Antonio
translated the 1789 French Declaration of the Rights of Man from French to Spanish. As a
result of his work, Colombia was perhaps the first nation in the Spanish-speaking New
World where the subject of legal protection for human rights was discussed. The Colombian
constitutions that predated the 1886 and 1991 constitutions recognized the existence of
human rights in the Colombian legal structure.
41. The Constitution of 1991 demonstrates a renewed and deepened
emphasis on the recognition and protection of human rights. The very nature of the State
and its responsibilities, as set forth in Title I of the Constitution, reflect this
emphasis. As noted above, the constitutional description of the nature of the Colombian
State, found in Article 1 of the Constitution, includes a direct reference to the
principle of respect for human dignity. Article 2 of the Constitution then proceeds to set
forth the essential functions of the Colombian State, including that of ensuring the
effectiveness of the principles, rights and duties set forth in the Constitution. That
same article provides that the Colombian authorities are responsible for protecting the
life, honor, property, beliefs, and other rights and liberties of those living in
Colombia. Article 5 of the Constitution establishes that the State recognizes the primacy
of the inalienable rights of individuals, without discrimination of any kind.
42. Title II of the Colombian Constitution contains an impressive
catalogue of human rights. Chapter 1 of Title II is titled "Regarding Fundamental
Rights." This Chapter sets forth, among others, the right to life and the prohibition
against forced disappearances, torture and cruel, inhuman or degrading treatment and
slavery. It also establishes the right to equal treatment and protection, the right to
juridical personality, the right to personal and familial privacy, the right to free
development of personality, the right to freedom of circulation, the right to honor, the
right to political participation and the rights to freedom of conscience, religion,
expression, reunion and association. The Constitution guarantees, in turn, the right of
rectification. The death penalty is prohibited by this Chapter. This Chapter also sets
forth the principle that peace is a right and duty.
43. Chapter I of Title II further establishes that the State must
create conditions which allow the right to equality to become real and effective and must
adopt special measures in favor of groups which suffer discrimination or
Further, the State must provide special protection for those who are especially weak, due
to economic, physical or mental reasons. The Constitution further guarantees the right to
work, teach, learn and research.
44. This same Chapter establishes that individuals have the right to be
informed about the information relating to them which has been gathered in data banks or
other records of public and private entities. The Constitution recognizes the right to
correct that information.
45. Chapter I of Title II also set forth explicit rights relating to
detention and due process. The authorities may not carry out any arrest or detention
except as set forth by law and by written order of the competent authority, although
perpetrators of crimes found committing a crime ("en flagrancia") may be
detained and brought before a judge by any individual. Any individual placed in detention
must be brought before a judge within 36 hours after his arrest. The right to due process
applies in all judicial and administrative actions. Everyone is presumed innocent until
proven guilty. Criminal defendants enjoy the right to a defense, a public trial and a
publicly appointed lawyer or one of their own choosing, during the investigation and trial
stages of criminal proceedings. Evidence obtained in violation of due process is
considered null and void. The writ of habeas corpus, which must be decided within 36
hours, is also established.
46. Chapter II of Title I sets forth the social, economic and cultural
rights recognized by the Constitution. This Chapter establishes that the family is the
fundamental unit of society. It further establishes that violence within the family is
considered destructive to that unit and will be sanctioned by the law. This Chapter also
sets forth a catalogue of fundamental rights guaranteed to children, including the right
to be protected from violence, exploitation and dangerous work.
47. Chapter II of Title I also sets forth the right to education, to
Social Security, to health care, to adequate housing and to recreation. It also
establishes the right to collective bargaining and the right to strike. The right to
property is guaranteed, but the State is also obliged to promote collective ownership of
48. Chapter III of Title II sets forth collective and environmental
rights. This Chapter provides for the right to a healthy environment. It also establishes
the duty of the State to protect environmental diversity and integrity and to protect
public space so that it may be reserved for common use. Finally, this Chapter prohibits
the fabrication, import, possession or use of chemical, biological and nuclear arms.
D. CONSTITUTIONAL MECHANISMS FOR HUMAN RIGHTS
49. The primary mechanism for protection against human rights
violations established in the Colombian Constitution is the "tutela" action.
Article 86 of the 1991 Constitution provides for this cause of action. This action allows
an individual to access the courts in an expedited manner to seek protection against
current or imminent violations of "fundamental rights" protected by the
Constitution. The Constitutional Court has the competence to review first instance
decisions in tutela actions. In addition, the Constitutional Court has broadened the
applicability of the tutela action through jurisprudence which expands the category of
rights which may be treated in a proceeding of this nature. The Court has adopted a line
of reasoning which allows the tutela action to be used also to protect rights which are related
or connected to those fundamental rights specifically included as being subject to
this protection pursuant to Article 86 of the Constitution.
50. The Commission has observed that the tutela action has become an
important tool for the prevention of human rights violations and for the protection of the
effective exercise of the rights set forth in the Constitution and in international
instruments relating to human rights. The remedy has generally been applied broadly and
rapidly. The decisions of the Constitutional Court in tutela actions have benefited
sectors of society which traditionally have not had access to rapid and effective judicial
protection, such as children, workers, indigenous communities and women.
51. In September of 1997, the Colombian Congress discussed legislation
proposed by the Council of State, the Supreme Court and the Superior Council of the
Judiciary which would have limited the tutela action. Congress did not adopt the
legislation. However, the Commission considers it necessary to express concern regarding
such proposals to reform the tutela action.
52. The Constitution also provides for the writ of habeas corpus as a
mechanism for protection against illegal deprivation of liberty. Article 30 of the
Constitution requires that a writ of habeas corpus must be decided within 36 hours.
53. In addition, the various judicial and control entities established
in the Constitution, as described above, apply their procedures in human rights cases
after a violation has occurred. These mechanisms, when they work properly and effectively,
may provide for the investigation, processing and sanction of human rights violators as
well as compensation for the harm caused.
E. STATES OF EXCEPTION IN THE COLOMBIAN LEGAL SYSTEM
54. Articles 212 and 213 of the Colombian Constitution allow the
President, with the consent of his ministers, to declare a state of exception principally
in two situations; the first is in the event of foreign war, while the second is in the
event of a serious disruption of the domestic public order that poses an imminent threat
to the stability of the democratic institutions, the security of the State or peace among
the citizenry.( 1 ) The President may only declare a
state of emergency in the second case when the emergency cannot be corrected through the
use of the normal police powers of the State. The Constitutional Court engages in a review
of the constitutionality of all declarations of states of emergency.
55. When the President declares a state of emergency, he enjoys special
faculties to take measures to correct the situation which led to the declaration of a
state of emergency and may issue special decrees with the force of law for this purpose.
However, the Constitution limits the special faculties given to the President on these
occasions to those "strictly necessary to correct the causes of the situation and to
prevent the extension of its effects." The Constitution further provides that human
rights and fundamental liberties may not be suspended during a state of emergency. The
norms of international humanitarian law must also be respected at all times. In addition,
the measures which are adopted pursuant to the state of emergency must be proportional to
the seriousness of the situation.
56. The requirements for the declaration of a state of emergency and
the restrictions on the measures which may be taken pursuant to such a declaration set
forth in the Colombian Constitution appear to be generally compatible with the
requirements established in Article 27 of the American Convention on Human Rights. The
American Convention allows for the declaration of a state of emergency "[i]n time of
war, public danger, or other emergency that threatens the independence or security of
[the] State." The Inter-American Commission has repeatedly made clear that the
conditions permitting the declaration of emergency are specifically stipulated and
strictly interpreted.( 2 )
57. First, the circumstances invoked to justify the declaration of the
state of emergency must be exceptional, very serious and must constitute an imminent
threat to the organized life of the State.( 3 ) Second,
the measures taken upon declaring a state of emergency are valid only so long as they are
limited "to the extent and for the period of time strictly required by the exigencies
of the situation."( 4 ) In addition, these measures
may not be inconsistent with the State's other obligations under international law and may
not involve discrimination on the ground of race, color, sex, language, religion, or
social origin.( 5 ) Third, certain fundamental rights
listed in Article 27(2) may not be suspended in any circumstances( 6 ).
58. The Commission notes that the 1991 Colombian Constitution provides
additional limitations on the figure of the state of emergency in Colombia which
constitute significant improvements over the parameters established in previous
constitutions. The Constitution now establishes time limits for states of emergency.
States of emergency declared as a result of war can last indefinitely. However, a state of
emergency declared because of a grave internal disturbance may initially last only ninety
days. It may then be extended twice. A second extension requires advance approval by the
Senate. Legislative decrees enacted during a state of emergency may remain in effect for
an additional 90 days after the state of emergency has ended. Thus, in the event of a
grave internal disturbance, the President may declare a state of emergency which can
continue for up to 270 days and may adopt special measures which may remain in place for
as long as 360 days.
59. The Constitution also now provides for judicial review of state of
emergency declarations by the Constitutional Court. The establishment of this check
constitutes an important move forward. The Government must immediately refer to the
Constitutional Court the legislative decrees it issues in exercise of the special powers
granted pursuant to a declaration of a state of emergency. The Constitutional Court then
makes the definitive ruling as to the constitutionality of the measures adopted.
60. The Commission has always considered that measures imposing a state
of emergency should be exceptional and strictly supervised. The Commission thus always
carefully analyzes this mechanism. In Colombia, careful supervision of the use of the
state of emergency is particularly necessary. As the Commission noted in its 1996 Annual
Report, Colombia had, at the time of that writing, been governed under states of emergency
for 36 of its past 44 years.( 7 )
61. Despite the legal improvements mentioned above, the Commission
continues to observe worrisome trends regarding the use of the state of emergency in
Colombia. First, the time period established in the Constitution for states of emergency
based on grave internal disturbance may be excessive in many cases. The state of emergency
may only last as long as the exceptional circumstances leading to the emergency continue.
The Commission finds it difficult to envision many situations where an extraordinary
circumstance requiring a declaration of a state of emergency would continue for 270 days
or nine months.
62. The Constitution does provide that the state of emergency must be
terminated as soon as the situation of public disturbance has been resolved. The state of
emergency may thus theoretically be terminated before the nine-month maximum period has
expired. However, the existence of the lengthy maximum period in the Constitution
encourages use of that full period of time. The Commission notes that such has been the
experience under the 1991 Colombian Constitution. For example, President Ernesto Samper
declared a state of emergency in October of 1995 which continued for the maximum period of
time. On that occasion, the Government also took advantage of the Constitutional provision
allowing the special measures adopted under the state of emergency to continue in effect
for an additional 90 days. Colombia was thus governed under state of emergency measures
for a full year.
63. This provision allowing for the special measures adopted to
continue in effect for an additional 90 days after the termination of the state of
emergency also concerns the Commission. As mentioned above, international law and the
American Convention clearly establish that any special measures must be limited to the
period of time strictly required by the exigencies of the situation. The Commission finds
no justification for a Constitutional provision which allows special measures to continue
after the state of emergency justifying those measures has terminated.
64. The Commission also expresses its continuing concern regarding the
reasons presented to justify states of emergency and the types of measures adopted
pursuant to those states of emergency. In its "Second Report on the Situation of
Human Rights in Colombia," the Commission expressed its concern regarding the states
of emergency announced in 1992, pursuant to Decrees 1155/92 and 1793/92. In this report,
the Commission will refer to the more recent state of emergency declared in November of
1995 by ex-President Ernesto Samper, pursuant to Decree 1900 of 1995.
65. As justification for this declaration of emergency, the President
cited "violent events in different areas of the country" and the murder of
conservative politician Alvaro Gómez Hurtado.( 8 ) The
Commission believes that the situation cited as providing grounds for the declaration of a
state of emergency does not constitute an exceptional situation which could not have been
addressed by normal means. The Commission notes, in this regard, that the American
Convention permits restrictions and limitations on the rights protected therein which
should be invoked before resorting to a state of emergency.
66. Additional violent events of the kind generally occurring in
Colombia cannot justify a state of emergency, as they are not exceptional and do not
constitute an imminent threat to the organized life of the nation. In the declaration of
state of emergency, the President asserted that the violent events prove the existence of
"various violent apparatuses" which have a capacity to destabilize the State.
Yet, the President did not even make clear in the decree which of the various possible
sources of violence (armed dissident groups, drug trafficking, etc...) were considered to
have responsibility for the exceptional situation, requiring special measures to combat
67. Nor may the assassination of political leader Alvaro Gómez Hurtado
justify the state of emergency. It is an unfortunate fact that political leaders are often
killed in Colombia. The situation was thus not exceptional and there is no indication that
the normal police powers of the State could not function to clarify the death and bring
those responsible to justice. In fact, the murder of Mr. Gómez was not clarified in
judicial proceedings during the entire period of the state of emergency. More recently,
the authorities have named suspects in the case, although no state of emergency exists.
68. The Constitutional Court confirmed the legality of the state of
emergency in a decision issued in January of 1996. Some commentators have suggested that
the Court did not adequately analyze whether a sufficient connection existed between the
cited causes of the state of emergency and the special measures adopted to correct the
situation. It has also been suggested that the Court approved this state of emergency as a
result of political pressure placed upon the Court after it declared unconstitutional a
previous state of emergency declared by President Samper in August of 1995.
69. The Commission wishes to emphasize the importance of judicial
review of declarations of states of emergency. Such review provides a crucial guarantee
against the declaration of states of emergency other than on the grounds and pursuant to
the limitations set forth in the Colombian Constitution and international law. All
entities of the Colombian State, including the Constitutional Court, should jealously
guard this mechanism.
70. The Commission is thus concerned by additional information
indicating that proposed constitutional reform measures presented in August of 1996 would
have eliminated Constitutional Court judicial review of states of emergency.(
9 ) The Commission views as a negative development the proposal of
these types of reforms. The adoption of such measures would clearly have a negative effect
by eliminating judicial review. The mere proposal of these measures also may have a
negative effect by serving as a means of political pressure on the Constitutional Court,
thus limiting the Court's independence in reaching decisions regarding states of
71. The Commission also expresses concern regarding the nature of the
special measures adopted by President Samper during the state of emergency declared in
November of 1995. The vague rationale for the state of emergency based on "violent
events in different areas of the country" makes impossible any analysis as to whether
the measures adopted were those strictly necessary to correct the situation. This is
particularly true since it is not even clear which sources of violence the measures were
intended to combat.
72. Nonetheless, the Commission does note that many of the measures
adopted provided the military with broad power over civilian authorities and the general
population. Specifically, in April 1996 President Samper issued Decree 717, creating
"special public order zones" ("zonas especiales de orden público").
In those areas of the country designated as public order zones, the military authorities
acquired operational control over the territory and over all authorities, including local
government officials and the judicial police.
73. The mechanism provided in Decree 717 for the designation of public
order zones added to the transfer of power to military authorities. The decree provided
that the local military commanders would, where they considered necessary, propose the
designation of public order zones in the areas under their control. The governor of the
relevant department would then define the public order zones based on this proposal.( 10 )
74. The special measures adopted in the public order zones included
granting the military and the police authorization to carry out searches without judicial
order. The military and the police also were authorized to detain, without a judicial
order, any person considered to have a connection to criminal activities. The detained
individual could then be held by the security forces for a period of 36 hours before being
taken before a judicial authority.( 11 )
75. The Commission must note, in relation to these measures, that it
has previously expressed concern regarding provisions which allow the military to carry
out investigations and arrests, even in emergency situations.( 12 ) These functions should properly belong to regular or special judicial
police forces acting under the supervision of the judiciary. The mobilization of the armed
forces to combat crime implies placing troops trained for combat against an armed enemy in
situations which require specialized training in law enforcement and interaction with
civilians. In addition, this situation creates serious confusion regarding the balance of
powers and the independence of the judiciary. The authority usually granted to the
judicial bodies to order or deny searches, to order and carry out arrests or to release
individuals in detention is transferred to authorities which form part of the executive
branch. These difficulties lead to an additional concern regarding the provision which
allowed these detentions by military authorities to continue without any judicial review
for a period of 36 hours.
76. The militarization of the public order zones may have contributed
to the violent events which occurred during the marches and activities organized by the
inhabitants of Guaviare, Putumayo and Caquetá between July and September of 1996. These
protest activities were directed against alleged abuses committed by State security forces
in the course of implementing drug eradication strategies.
77. Confrontations occurred between the protestors and the security
forces during the course of the protests. According to information received by the
Commission from non-governmental organizations and eyewitnesses, the confrontations
resulted in the arbitrary detention of more than 400 persons, physical violence against
representatives of the press, the killing of 13 persons and the injury of 111 more.( 13 ) According to the information given to the
Commission, the deaths and injuries resulted from the use of excessive force by members of
the Colombian security forces. The Commission has received information indicating that
Colombian security forces, on many occasions, used tear gas and discharged their guns to
impede the advance of the protest marches without regard to the rules on proportionality
in the use of force which govern such situations.
78. The Commission considers that, despite the remaining troubling
questions regarding the use of states of emergency, it is nonetheless finally becoming
clear in Colombia that this mechanism may only be used in exceptional circumstances and in
a limited manner. The Government has recently desisted from declaring states of emergency
in circumstances which, in the past, might well have provoked such a declaration. For
example, the situation leading up to the municipal elections of October, 1996 presented
extremely difficult circumstances, including the boycott of the elections by various armed
dissident and paramilitary groups and the kidnapping of several Organization of American
States ("OAS") election observers. Yet, the Government did not declare a state
of emergency for the electoral period.
F. COLOMBIA AND INTERNATIONAL HUMAN RIGHTS LAW
1. Colombia's International Obligations
79. The Colombian State has shown an ever-increasing willingness to
work cooperatively with the international community toward the improvement of the human
rights situation in Colombia. To this end, in 1996, the Government of Colombia accepted
the establishment in Bogotá of an office of the United Nations High Commissioner for
Human Rights. The office began its work in the first part of 1997. Its mandate includes
supervision of the human rights situation in Colombia and the provision of assistance to
the Government, civil society and non-governmental organizations in the field of human
rights protection. The office also has the competence to refer individual complaints which
it receives to the pertinent international bodies, including the Inter-American
Commission. The office is headed by Almudena Mazarrasa, a Spanish national, and began its
work with a staff of only five human rights experts. Recently, there has been discussion
regarding the possible expansion of the office. The Colombian Government has also signed
agreements with the International Committee of the Red Cross and with the Office of the
United Nations High Commissioner for Refugees to carry out work in Colombia. Within the
Colombian Government, the 1290 Commission created by presidential decree brings together
high-level Government officials to work on the implementation of general recommendations
from international human rights bodies.
80. The Colombian State has signed and ratified most of the
international covenants, protocols and conventions related to human rights. In addition to
ratifying the American Convention on Human Rights on July 31, 1973, Colombia accepted the
competence of the Inter-American Court of Human Rights on June 21, 1985. In the
inter-American system, Colombia also ratified the Inter-American Convention on the
Prevention, Punishment and Eradication of Violence against Women on November 15, 1996 and
the Protocol of San Salvador for the protection of economic, social and cultural rights.
The legislature also recently approved legislation allowing for ratification of the
Inter-American Convention to Prevent and Punish Torture.( 14
) In the universal human rights system of the United Nations, Colombia is a party to the
International Covenant on Economic, Social and Cultural Rights, the International Covenant
on Civil and Political Rights, the Optional Protocol to the International Covenant on
Civil and Political Rights as well as other important instruments relating to human
rights. In addition, Colombia is a state party to the four 1949 Geneva Conventions
providing for the application of international humanitarian law and their Additional
Protocols of 1977, as well as the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict. (See Chart of the Status of Ratifications of the
Major International Instruments Relating to Human Rights attached to this Chapter as Annex
81. The Commission considers that the tasks being undertaken by
Colombian authorities for the protection of human rights would be strengthened if the
Colombian State were to ratify additional international instruments, such as the
Inter-American Convention on the Forced Disappearance of Persons. The Colombian Government
signed this treaty in 1994, but the Colombian Congress has not yet ratified the agreement.
The Commission does note that the Colombian Constitution prohibits the forced
disappearance of persons and the Colombian Government, in 1997, again presented
legislation which would establish the crime of forced disappearance of persons. As of the
date of the final approval of this Report by the Commission, the draft law had been
approved by the Chamber of Representatives and was scheduled to be taken up by the Senate
in the coming months.
82. Pursuant to article 93 of the Constitution of Colombia,
international treaties and conventions relating to human rights prevail over contrary
norms in the domestic legal system. In addition, the rights and duties set forth in the
Constitution must be interpreted in conformity with the international human rights
treaties ratified by Colombia.
83. Colombia has certain substantive and jurisdictional obligations
which emanate from the treaties which it has ratified. First, Colombia must comply with
the norms for the protection of human rights in the various treaties which it has
ratified. Second, Colombia has accepted the jurisdiction of the international bodies
established to serve as a last resort in cases where human rights violations have occurred
and have not been corrected and/or repaired on the domestic level by the Colombian State.
84. The international bodies with jurisdiction over human rights cases,
such as the Inter-American Commission on Human Rights, seek to ensure compliance with
international norms. Where a violation of those norms occurs, the Inter-American
Commission, the Inter-American Court of Human Rights or other international bodies may
eventually issue a decision finding the State responsible for the violation and ordering
the restoration of the violated right where possible, the punishment of those responsible
for the violation and monetary and other compensation for the harm caused.
85. The Colombian State is obliged to comply, in good faith, with the
recommendations of the Commission set forth in its reports on individual cases. This
obligation derives directly from Colombia's commitment to provide for the protection of
human rights, assumed through ratification of the American Convention on Human Rights and
the Charter of the OAS. By nature of this commitment, Colombia is automatically required
to observe the norms set forth in the American Convention as well as in the American
Declaration of the Rights and Duties of Man. The Commission is the body in the OAS system
which has primarily responsibility regarding human rights issues and has been given a role
as a supervisory organ in relation to the States' human rights commitments.(
15 ) The Commission thus is charged with determining whether the
State has failed to fulfill its freely-assumed obligations and, if so, with making
recommendations for the resolution of the human rights situation. The State must comply
with those recommendations in order to comply with the obligations it has assumed upon
ratification of the American Convention and the OAS Charter.
86. Colombia is also bound to comply with the decisions issued by the
Inter-American Court of Human Rights, which is a fully jurisdictional body which issues
binding judicial decisions.( 16 ) The binding nature
of the State's obligations is not construed as a violation of sovereignty or as a breach
of the internal political and institutional structure since the State has freely accepted
to be bound under international law.
2. Colombia's Compliance with the Recommendations of
the Inter-American Commission on Human Rights
87. As regards the Colombian State's international obligations before
the Commission, it must be noted that the Colombian Government has cooperated very fully
in all aspects of the proceedings before the Commission. The Government demonstrates,
through its representatives, great interest in its interactions with the Commission. The
Commission appreciates and is grateful for the spirit of cooperation and collaboration
displayed by the Colombian Government.
88. The Commission is pleased to note that the Colombian State has
advanced significantly in the area of compliance with the Commission's recommendations
since the publication of the "Second Report on the Situation of Human Rights in
Colombia." The Commission stated, in its second report on Colombia, that the
Colombian State had not heeded the Commission's recommendations regarding the payment of
compensatory damages. The Commission noted, at that time, that even where the Commission
concluded its examination of a case pursuant to the provisions of the American Convention
on Human Rights and declared that the Colombian State was responsible for human rights
violations, the State did not comply with the recommendation that compensation be paid to
the victims of the human rights violations or their relatives.
89. At that time, the Colombian State sustained that victims of human
rights violations, who had received a favorable decision from the Commission, would
nonetheless be required again to submit their case to the domestic courts to seek
compensation through the regular contentious-administrative proceeding. This position
found its support in a decision of the Council of State addressing this question. That
decision held that the Commission's recommendations are obligatory but that compensatory
damages might only be paid pursuant to a domestic proceeding initiated for that purpose.( 17 )
90. Since the publication of the "Second Report on the Situation
of Human Rights in Colombia," the Colombian State has eliminated the domestic legal
barriers to compensation in compliance with Commission recommendations. In fact, the State
has provided a special mechanism to facilitate State compliance with the Commission's
recommendations regarding compensation.
91. The State took these important steps through the adoption of Law
288 on July 5, 1996. Law 288 provides that, "the National Government shall pay, after
concluding the processing provided for by this law, the indemnization of damages caused as
a result of human rights violations found in express decisions by certain international
human rights bodies which will be named in this law."( * )
92. The law then proceeds to name the Inter-American Commission on
Human Rights and the United Nations Human Rights Committee charged with supervising the
International Covenant on Civil and Political Rights as the two international bodies whose
findings will trigger compensation by the Colombian State. The law establishes a Committee
of Ministers, composed of the Minister of the Interior, the Minister for Foreign Affairs,
the Minister of Justice and the Minister of Defense. This Committee of Ministers must
review the decision of the international body and issue a favorable opinion in order for
the compensation to occur. The committee is required to issue a favorable opinion "in
every case where the requirements of fact and law are met."( * )
93. The law also provides for an innovative procedure to be implemented
where the Committee of Ministers does not issue a favorable opinion. In those cases, the
State may not simply refuse to pay the compensation recommended without further action.
Rather, the law specifically provides that the Government will be required to appeal the
decision of the pertinent international body. When ex-President Ernesto Samper signed Law
288, he made clear that this provision requires the Colombian Government to take a case
before the Inter-American Court of Human Rights in certain cases if the Government decides
that it does not accept the recommendations of the Inter-American Commission. The law also
provides that, if the Government fails to file the appropriate appeals in the
international system within the pertinent deadlines, it must comply with the
recommendation to provide compensation.
94. The adoption of Law 288 has had a dramatic positive effect in terms
of securing Colombian compliance with the recommendations of the Commission regarding
monetary compensation. The Committee of Ministers issued favorable opinions in nine cases
decided by the Inter-American Commission before the passage of Law 288, paving the way for
compensation in those cases pursuant to the recommendations of the Commission to that
95. The law has not yet been applied in a sufficient number of cases to
allow a full analysis of its functioning, but its application in the first case decided
after passage of Law 288, the Arturo Ribón Avila case (11.142), is instructive. In
response to the Commission's initial decision in the case, prepared pursuant to Article 50
of the Convention, the Committee of Ministers issued a favorable opinion for compensation
only as to certain of the victims named in the case. The Committee of Ministers refused to
issue a favorable opinion as to the other victims. The Government thus requested that the
Commission reconsider its decision that the State was responsible for violations of human
rights as to the other victims. The Commission considered the Governments arguments
in favor of reconsideration in the preparation of its second report, prepared pursuant to
Article 51 of the Convention. The Commission made modifications to its original report but
reaffirmed its conclusions regarding the human rights violations against all of the named
victims. Upon receiving this second and final decision of the Commission, the Committee of
Ministers issued a favorable opinion as to the remaining victims. All of the victims named
in the case thus benefited from compensation.
96. The Government might have taken the Arturo Ribón Avila case to the
Inter-American Court of Human Rights upon receiving the initial decision of the Commission
adopted in conformity with Article 50 of the Convention. Pursuant to Article 51 of the
Convention, the Government would have been required to submit the case to the Court within
three months after the transmittal of the Article 50 report. However, the Government
decided instead to request that the Inter-American Commission reconsider its decision. The
Commission's second decision then became binding for purposes of the application of Law
288, because there exists no mechanism for further appeal or reconsideration of the
Commission's second Article 51 decision. In addition, the possibility of an appeal to the
Court was foreclosed because of the expiration of the three-month period. The State was
thus required to provide compensation, pursuant to Law 288. The State complied with this
97. The Commission considers, nonetheless, that the decision of the
Colombian State to send a future case to the Inter-American Court of Human Rights could
constitute an important precedent. No State has yet brought a contentious case before the
Court. The decision of the Colombian State to invoke the mechanism for appeal to the Court
envisioned in Law 288 might allow the inter-American human rights system to move forward
in a new and positive direction. Where States disagree with the Commission's decision,
they might be encouraged to debate the case before the Court rather than simply ignoring
the Commission's recommendations as has occurred in some cases in the past.
98. The Commission is, in general, extremely pleased with the adoption
and application of Law 288. However, the Commission must point out some important
difficulties which continue to exist in Colombia relating to compliance with Commission
recommendations and the full reparation of human rights violations.
99. First, petitioners before the Commission have pointed to delays in
the disbursement of compensation pursuant to Law 288. After the decision is made by the
Colombian State to provide compensation through this mechanism, the case must still be
sent to the contentious-administrative jurisdiction for final processing and a
determination of the amount to be paid. This proceeding sometimes suffers from delay,
according to information submitted by the representatives of some of the victims
benefiting from Law 288. These delays may result from administrative or bureaucratic
difficulties or from a failure by the Government to designate sufficient funds for this
type of compensation in a timely manner.
100. Second, Law 288 establishes mechanisms for the implementation of
monetary recommendations only. It does not provide for reparations to the affected
community, for reparation of a symbolic nature (such as the establishment of a library in
the name of the victims) or for compliance with the State's obligation to investigate,
prosecute and sanction those responsible for committing human rights violations.
101. As the Commission has noted on numerous occasions, monetary
compensation alone generally does not constitute adequate reparation for a human rights
violation. For this reason, the recommendations issued by the Commission in individual
cases generally include the following recommendations: 1) that the State undertake a
serious, impartial and effective investigation of the facts denounced so that the events
leading to the human rights violation may be clarified and so that the circumstances of
and the responsibility for the violations found may be fully detailed in an officially
sanctioned account; 2) that the State submit to the relevant judicial processes all of the
individuals responsible for the violations which occurred so that they may be sanctioned;
3) that the State adopt measures to make full reparation for the violations found,
including adequate and fair monetary compensation to the victims or their family members.
102. The Colombian State has not yet adopted mechanisms for compliance
with all of these recommendations. The Commission would urge the Colombian State to seek
means of broadening the current legal mechanisms for compliance with Commission decisions
to address recommendations other than those relating to monetary compensation. At the same
time, the Commission notes that the State may not suggest that the absence of such
mechanisms excuses compliance with the Commission's recommendations. The Convention itself
requires the State to modify domestic law or adopt new laws where necessary to allow full
compliance with the obligations accepted through ratification of the Convention (18). In addition, the State may not validly
argue that its domestic laws or legal regime prevent compliance with its obligations under
international law. (19)
Based on the foregoing, the Commission makes the
following recommendations to the Colombian State:
1. The Colombian State should provide adequate resources and support to
the state entities charged with promoting and protecting human rights and investigating
human rights abuses, particularly the Office of the Prosecutor General of the Nation, the
Office of the Procurator General of the Nation and the Office of the Human Rights
2. The Office of the Procurator General of the Nation should conduct
serious, impartial and effective disciplinary investigations into the conduct of State
agents alleged to have committed human rights violations.
3. The Office of the Procurator General of the Nation should play an
active role in pushing for effective and impartial criminal proceedings in cases relating
to alleged human rights violations.
4. The Office of the Procurator General of the Nation should take a
more active role in reviewing the conduct of those members of the States public
security forces who conduct criminal proceedings in human rights cases in the military
5. The Colombian State should abstain from adopting legislative or
other measures which will limit the effectiveness or scope of the tutela action or which
will limit access to that judicial remedy.
6. The President of Colombia should use his authority to declare a
state of emergency only in truly exceptional and serious circumstances which constitute an
imminent threat to the organized life of the State. Any state of emergency should comply
with the formalities and standards set forth in article 27 of the American Convention and
the jurisprudence of the Court and Commission with respect to that norm.
7. The Constitutional Court should continue to play an active role in
reviewing the legality of declared states of emergency, and the Courts authority in
this respect should not be limited.
8. The Colombian State should consider the possibility of ratifying
additional international human rights instruments, such as the Inter-American Convention
on the Forced Disappearance of Persons.
9. The Colombian State should consider broadening the current legal
mechanisms for compliance with Commission decisions in individual case reports to address
recommendations other than those relating to monetary compensation.
10. The Colombian State should comply fully with the recommendations of
the Commission formulated in individual case reports.
[ Table of Contents | Previous |
* ) The
text of Article 221 in Spanish reads as follows:
De los delitos cometidos por los miembros de la Fuerza Pública en
servicio activo y en relación con el mismo servicio, conocerán las cortes marciales o
tribunales militares, con arreglo a las prescripciones del Código Penal
The state of exception provided for in the Colombian Constitution essentially corresponds
to the state of emergency permitted, in certain circumstances, under Article 27 of the
American Convention on Human Rights. The terms "state of exception" and
"state of emergency" will therefore be used interchangeably.
2 ) See,
e.g., IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96,
Doc. 10 rev. 1, 24 April 1997, at 14 [hereinafter Ecuador Report].
3 ) See
id.; American Convention on Human Rights, art. 27(1).
American Convention on Human Rights, art. 27(1).
5 ) See
) See American Convention on Human Rights, art. 27(2).
Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95,
Doc. 7 rev., March 14, 1997, at 660 [hereinafter 1996 Annual Report].
8 ) See
Decree 1900 of 1995.
The package of reforms presented by the Government and members of the Congress included
other proposals relating to states of emergency. These proposals sought, for example, to
eliminate the time limits on the duration of states of emergency and to remove from the
legislature the limited faculties which it possesses when the President declares a state
of emergency. These proposals for reform were eventually withdrawn or defeated. The
Commission noted in its 1996 Annual Report that the reforms "raised serious questions
about their compatibility with Colombia's obligations under the American Convention and
other human rights instruments." 1996 Annual Report, at 658.
) The Constitutional Court issued a decision on July 4, 1996 invalidating this particular
provision regarding the designation of public order zones. The Court modified the
designation process so that the governors could either designate public order zones or not
on their own initiative, without deferring to the proposal of a military commander.
) The proposed constitutional reforms mentioned above included a proposal to make
permanent the provisions allowing for detentions without arrest warrants and granting
military authorities judicial police functions. This proposal did not meet with success in
) See, e.g., IACHR, Second Report on the Situation of Human Rights in Colombia,
OEA/SEr.L/V/II.84, Doc. 39 rev., October 14, 1993, at 61-62; Ecuador Report, at 16.
) See Comisión Colombiana de Juristas, Colombia, Derechos Humanos y Derecho
Humanitario: 1996, at 52.
) At the time of this writing, the Colombian Congress had adopted legislation approving
the ratification of the treaty. This legislation had been passed to the Constitutional
Court for its review. The instrument of ratification will be deposited at the Organization
of American States upon the issuance of a favorable decision by the Constitutional Court.
) See OAS Charter, arts. 52, 111; American Convention on Human Rights, art. 44 et
seq.; I/A Court H.R., Loayza Tamayo Case, Judgment of September 17, 1997, par. 80.
) See American Convention on Human Rights, arts. 63, 65, 68.
) See Decision of the Council of State in Case No. 461.
Spanish, the law reads:
El Gobierno Nacional deberá pagar, previa realización
del trámite de que trata la presente Ley, las indemnizaciones de perjuicios causados por
violaciones de los derechos humanos que se hayan declarado, o llegaren a declararse, en
decisiones expresas de los órganos internacionales de derechos humanos que más adelante
In Spanish, the text reads: "en
todos los casos en que se reunan los presupuestos de hecho y de derecho."
18 )See American
Convention on Human Rights, art.2.
19 ) See Vienna Convention on the law of Treaties, art. 27.