THE RIGHT TO A FAIR TRIAL
The rights to a fair trial, to due process and to judicial
guarantees deserve special consideration because of the multiple
factors that come into play in their exercise and enforcement.
Transcribed below are the pertinent provisions of the American
Convention on Human Rights and of the new 1991 Constitution of the
Republic of Colombia that protect and defend these basic rights and
establish penalties for their violation:
A. LEGAL PROVISIONS IN
EFFECT IN RESPECT TO THE RIGHT TO A FAIR TRIAL
B. INTERNATIONAL HUMAN
RIGHTS LAW ON THE RIGHT TO A FAIR TRIAL
The norms that concern the right to a fair trial, as can be seen
from the above table, are covered in various articles of the American
Convention on Human Rights and the 1991 Constitution of Colombia.
The right to a fair trial is actively enforced when effective
punishment and a given
reparation are sought and obtained.
The right to an inquiry into one's claim when one is the victim
of a violation by another, i.e., the right to claim and demand justice,
implies that the individual responsible for the violation will be
somehow held accountable and that the one whose rights were violated or
who suffered some injury will be paid civil damages as compensation.
This right is fundamentally civil in nature and is premised on
the principle that anyone who inflicts harm is obliged to pay for it
and, conversely, the one who suffers the injury has the right to demand
satisfaction of his right.
The right to a fair trial also implies the right to demand fair
treatment when an individual is being investigated or accused of a
criminal offense, in which case the first guarantee of a fair trial is
the right to be presumed innocent and then to receive a fair trial, with
all the guarantees that enable the accused to continue to be held
innocent until his criminal guilt has been established through trial.
To avoid any confusion as to
the jurisdiction of international bodies, it is important to mention the
finding of the Inter-American Court of Human Rights in the Velasquez
Rodriguez case, dated July 29, 1988, to the effect that "the
international protection of human rights should not be confused with
criminal justice. States do
not appear before the Court as defendants in a criminal action.
The objective of international human rights law is not to punish
those individuals who are guilty of violations, but rather to protect
the victims and to provide for the reparation of damages resulting from
the acts of the States responsible." (paragraph 134).
To this must be added the Court's finding in paragraph 176 to the
effect that the State "is obligated to investigate every situation
involving a violation of the rights protected by the Convention.
If the State apparatus acts in such a way that the violation goes
unpunished and the victim's full enjoyment of such rights is not
restored as soon as possible, the State has failed to comply with its
duty to ensure the free and full exercise of those rights to the persons
within its jurisdiction. The
same is true when the State allows private persons or groups to act
freely and with impunity to the detriment of the rights recognized in
C. ORGANIZATION AND
OPERATION OF THE JUSTICE SYSTEM
The report prepared by the Inter-American Commission on Human
Rights in 1980 contained a careful study of the organization and
operation of the justice system in Colombia.
Since then, the text of Colombia's Constitution has changed, as
have its code of criminal procedure, its penal code, its military
justice system and others. At
present, the justice system in Colombia is divided among the following
jurisdictions: the regular
courts (Supreme Court 234 et seq. NC, District Courts, National Courts
(Public Order), judges and prosecutors); administrative jurisdiction
(Council of State 236 et seq, NC, and administrative tribunals);
constitutional jurisdiction (Constitutional Court 239 et seq, NC);
special jurisdictions (Military 221 NC, indigenous 246 NC, justices of
the peace 247 NC); disciplinary jurisdiction (Superior Council of the
Judiciary, 254 et seq NC).
The description, organization and functions of all these organs
of the justice system are discussed and explained in Chapter III,
section d) of this report, so that no further discussion is required in
OFFICE OF THE ATTORNEY GENERAL AND THE PUBLIC DEFENDER'S OFFICE
While Title VIII of the Constitution concerns the Judicial
Branch, Title X, titled Organs of Control --which includes fiscal
control by the Office of the Comptroller General of the Republic-- also
includes articles on the functions of the Attorney General of the
Nation, described in Chapter 2. The
Attorney General heads the Public Prosecutor's Office and is elected by
the Senate to a four-year term, from a slate of candidates put together
by the President of the Republic, the Supreme Court and the Council of
State. The chief functions
that the Constitution assigns to the Attorney General of the Nation are
To see that the Constitution, laws, court rulings and government
decrees are observed; to protect human rights and ensure their
observance, with the help of the public defender; to defend the
interests of society; to defend collective interests, especially the
environment; to see that government functions are performed diligently
and efficiently; to exercise oversight of the official conduct of those
in public office, including those elected by the public; to exercise
disciplinary authority; to prosecute the necessary investigations and
impose the sanctions required by law; to intervene in trials and with
judicial or administrative authorities, whenever necessary to defend
legal order, the public domain, or fundamental rights and guarantees; to
submit annual performance reports to Congress; to demand from public
officials and private citizens such information as deemed necessary.
The legal system for the protection of human rights in Colombia
includes an Office of the Attorney Delegate for the Defense of Human
Rights, which is part of the Public Prosecutor's Office; its
investigatory function is intended to defend those rights and
guarantees. The Attorney
Delegate monitors for the observance of human rights, investigates
reports of human rights violations and imposes disciplinary sanctions.
The Office of the Attorney Delegate for the Defense of Human
Rights has the following functions and authorities:
a) to mediate and
help find a solution to conflicts that arise as a result of violation of
Law 74 of 1968 (which approved the International Covenant of Economic,
Social and Cultural Rights and the International Covenant of Civil and
Political Rights) and other international agreements on this subject
that the Congress of the Republic has approved, among them:
the Convention against torture and other cruel and inhuman
punishment, adopted by the United Nations on December 10, 1984 and
approved through Law 70 of 1986; the American Convention on Human
Rights, ratified by Law 16 of 1972, and the Geneva Conventions, approved
by Law 5 of 1960;
action, one hearing only, for participating in acts that constitute
genocide, torture and enforced disappearance and related crimes
committed by members of the Ministry of National Defense, the Military
Forces, National Police, directors or personnel of security agencies
attached to or affiliated with those institutions and other staff and
employees in the performance of their functions;
c) to process with
the competent authorities the complaints made by national or
international organizations concerning human rights violations;
d) to promote and
disseminate the defense of human rights and to respond to the reports
that national or international organizations request concerning
violations of human rights and fundamental freedoms;
e) to process claims
demanding, by way of Colombian diplomatic authorities and on behalf of
Colombian nationals, that foreign governments honor their obligations
under international law, especially claims on behalf of individuals on
f) to see that human
rights are observed by the prisons, courts, police, and psychiatric
institutions, so that those being held in confinement are treated with
proper respect, are not subjected to cruel, degrading and inhuman
treatment, and receive timely legal, medical and hospital care.
If a violation is discovered, the attorney delegate is to file
the appropriate actions.
There is an administrative disciplinary procedure that is not
jurisdictional and that is conducted directly via the Office of the
Attorney General of the Nation, thanks to which certain crimes and human
rights violations have been clarified and some punishment, however
minimal, has been imposed against some of the authors of such
violations. The procedure
is as follows:
1. Any individual may file a
complaint against a public employer or public enterprise.
This complaint procedure is handled through one of the following
attorney-delegate offices: for administrative oversight; for judicial
oversight; for police oversight; for the military forces; for human
rights (in cases of enforced disappearances, torture, death and
genocide, but not for cases of summary execution).
Since 1990, complaints can also be filed with the Office of
Special Investigations, which prosecutes cases of unlawful enrichment,
serious human rights violations and such others as the Attorney General
may assign to it. The
Office of Special Investigations, however, does not impose the
disciplinary punishment; instead, it simply conducts the preliminary
2. Once the complaint has
been filed, there are two alternatives:
a) based on the preliminary investigation, disciplinary
proceedings are instituted, or b) the case is filed.
3. If disciplinary
administrative proceedings are instituted, the first step is to present
the list of charges against the public official in question.
4. Next, the suspect
presents countercharges rebutting the charges.
5. Evidence is introduced (a
kind of probatory phase).
a) not to impose punishment, or b) to impose disciplinary
punishment in the form of fines, suspensions of up to sixty days, or
dismissal. The decision
must be presented in the form of a resolution explaining the grounds for
7. The decision can be
challenged, either in the form of a petition for reinstatement or as an
appeal, which would trigger a review of the decision and then a new
resolution either confirming the original decision or changing it.
It is important to note that this is not a confidential
procedure. Quite the
contrary, under a 1985 law, proceedings must be public.
However, the various attorneys delegate, especially the Office of
Special Investigations, have been keeping these proceedings
confidential, even though copies of the proceedings may be requested
A recent report released by the Office of the Attorney General of
the Nation in June 1993, almost two years after its first report, makes
a critical evaluation, as did the first report, of the conduct of State
agents where human rights violations are concerned.
Its finding is that the number of violations by state agents has
declined in the last year, while human rights violations by guerrilla
groups has continued to increase. The
report states that the incidence of human rights violations in which
State agents are involved points up the fact that State violence is at
least in part a reflection of the violence rampant in society; that
social violence is one of the main causes of the excesses committed by
State agents. He reports
that the public institutions that have committed human rights violations
during the period covered in the second report were as follows:
the National Police, the Military Forces, the Administrative
Security Department (DAS), and the Technical Corps of the Criminal
Investigations Police. The
Office of the Attorney General also points out that violations by the
Technical Corps of the Criminal Investigations Police are below previous
years since it is now under the Office of the Attorney General of the
Nation. The report also
states that the Prosecutor's Office handed down decisions in 55 cases in
which military personnel were involved; of these, 56% were for
acquittal, and 44% for conviction.
The Prosecutor's Office has also issued 1,000 indictments against
the National Police, which is the equivalent of 73% of all of the
indictments against the institution during 1992; its members have been
found guilty in 60% of the decisions handed down by the Attorney General
of the Nation.
The Attorney General's report also mentions some of the reasons
why members of the military forces commit serious human rights
violations: 1) a state of
mental confusion sets in, called the error theory, because agents
attached to "State security and defense agencies are trained to
pursue a collective enemy" and
tend to assume that some sort of "direct association exists, for
example, between unions or peasant interest groups and subversive
elements; when counter-guerrilla activities are undertaken, these
passive subjects are not identified as independent victims, but rather
as part of the enemy", with the result that the State agents
"violate the human rights of independent passive subjects because
they mistakenly identify them as either enemies or allies of the
enemies"; 2) they regard them as ideological enemies, which
prompted the Office of the Attorney General to recommend that
"there must, under no circumstances, be any ideological enemies;
instead only military enemies. The
only enemy is the one who uses arms to challenge the State.
Tacit or explicit sympathies do not make any individual or group
a military enemy"; and 3) military personnel, by virtue of being
trained for warfare, have a tendency to violate the right to life and
the right to personal integrity more than the right to freedom; they
tend not to use intimidating or dissuasive tactics but rather to opt to
eliminate whomever they perceive as enemy."
Moreover, the report finds that in most cases the authors of the
violations are subordinates or middle-level officers who are subject to
very little control, operating independently and not as a link in the
chain of command with a sense of obedience to higher authority; when
they take decisions on their own, human rights violations are the
The Public Defender
The provisions that concern the public defender appear in Title
X, Articles 281 et seq of the Constitution.
He/she is assigned the following functions:
to guide and instruct inhabitants of the national territory and
Colombian citizens living abroad, in the exercise and defense of their
rights vis-a-vis the competent authorities or private entities; to
disseminate human rights and to recommend policies for teaching human
rights; to invoke the right of habeas corpus and file petitions
for protection, without prejudice to the laws that assist the interested
parties; to organize and direct public defense in accordance with the
law; to file actions in matters related to its sphere of competence; to
present bills on matters within its competence; to submit reports to the
Congress on the performance of its functions, and the other functions
that the law determines.
The Office of the Public Defender is part of the Public
Prosecutor's Office; it is ultimately under the Attorney General of the
Nation and is essentially responsible for seeing to it that human rights
are promoted, exercised and disseminated.
The Public Defender's Office enjoys administrative and budgetary
Apart from the functions stipulated in the Constitution, the
Public Defender's Office has the following:
working with the Attorney General of the Nation to devise and
adopt the policies for promoting and disseminating human rights in the
country; to direct and coordinate the work of the various units that
together constitute the Public Defender's Office; to make
recommendations and observations to the authorities and private parties
in the event of a threat to or violation of human rights and to see that
they are promoted and exercised (the defender shall make those
recommendations public and report to the Congress on the response
received); to present an annual report to the Congress on its
activities, which shall include an account of the type and number of the
complaints received, the measures taken to correct them, specific
mention of derelict officials and the administrative and legislative
recommendations it deems necessary;
to assist the Attorney General in preparing reports on the human
rights situation in the country; to bring suit, challenge or defend
before the Constitutional Court and at the request of any person and
when appropriate, laws where constitutional rights are at stake; to
design the mechanisms needed to establish permanent communications and
share information with national and international governmental and
nongovernmental organizations that protect and defend human rights and
to conclude agreements with national and international educational and
research establishments to disseminate and promote human rights.
Regulated by Law 24 of 1992, the Public Defender's Office is
organized into four areas: dissemination,
processing of complaints, filing of legal remedies and public defense.
Attorneys delegates are being appointed for other areas such as
the rights of the elderly and regional defenders.
E. THE PETITION FOR TUTELA
The petition for tutela to which Article 86 of the
Constitution refers is a legal procedure that provides citizens a means
to take rapid action in the event of injustices or abuses committed
against rights upheld in the Constitution.
The petition for tutela has the following characteristics:
it can be filed either by the aggrieved party or by an
intermediary at the aggrieved party's request.
The public defender may participate by cooperating with the
aggrieved party. The action
can be filed at any time, including weekends, and with any judge or
court that has jurisdiction in the place where the events in question
occurred. The aggrieved
party need only describe the facts upon which the petition is based and
include his or her name and address. As there are no legal formalities,
the petition can be filed either verbally or in writing; if additional
information is needed, the judge is to request it of the petitioner
within three days following the filing of the action. The respondent also has three days in which to present
his/her defense before the judge, who must hand down a ruling within ten
days. Any appeal must be
filed within the next three days; the decision on the appeal must be
handed down within 20 days. Decisions
on such petitions are reviewed by the Constitutional Court at its
F. THE MAJOR PROBLEMS WITH
THE JUSTICE SYSTEM
There are any number of problems that affect the manner in which
the justice system performs the functions that the Constitution and the
laws assign to it. Impunity,
the military courts, violence against judges and attorneys, vigilantism:
these are but a few of those problems.
One of the principal manifestations of the critical human rights
situation in Colombia is the weakness of its judicial system, as
evidenced by the high percentage of crime that goes unpunished.
According to the Ministry of Justice, approximately 20% of crimes
committed in Colombia are investigated by the authorities.
Of that 20%, barely 4% end in conviction.
That being the case, the Colombians do not have sufficient
confidence in the ability of their judicial system to find a peaceful
solution to their daily problems.
The Government generally blames practical considerations such as
the lack of budgeted funds, inadequate training and insufficient
technical materials for investigators, delays in trials, a backlog of
cases, the low salaries paid to judges, corruption and violence targeted
at judges and vigilantism by citizens who prefer not to seek justice via
the courts and do not provide authorities with the cooperation they need
to conduct their investigations. Based
on this analysis, the government has taken a number of steps such as the
drastic increase in the salaries of judges and an increase in the
judiciary's budget, technical and budgetary support for the Office of
the Prosecutor General, systematization and administrative improvement
of the court system and legislative measures to reduce the backlog of
cases. The new Constitution
also introduced some reforms. For
example, it has given the judicial branch of government total
administrative autonomy and complete control over its budget and has
changed the investigative system to create the Office of the Prosecutor
But there other factors, too, that adversely affect the justice
system, such as using the state of emergency legislation to amend the
judicial system and a system that allows the identity of the judges and
the witnesses to be kept secret when the cases are for crimes of
terrorism and drug-trafficking.
Other considerations such as the violence against judges and
attorneys, the presence of a state-of-siege justice system, vigilantism,
and certain features of the justice paradigm in Colombia, such as the
element of secrecy in many situations: these are all factors that have
to be taken into account if the problem of impunity is to be dealt with.
Some of these factors are discussed in the following sections.
b. The state of siege
One of the factors that altered the judiciary's ability to
administer justice under the previous constitution was that during
states of emergency, proceedings in cases involving drug-trafficking,
terrorism and political crimes were transferred to the special
jurisdiction of the public order courts.
With enactment of the new Constitution, and as a result of the
work of the Special Legislative Committee between July 15 and November
30, 1991, the Statute for the Defense of Democracy (Law 180, of 1988)
and the Statute for the Defense of Justice (1991) became permanent law
in Colombia. The Statute
for the Defense of Democracy classified certain behaviors as terrorist
crimes, and made the penalties much harsher.
The Statute of the Defense of Justice merged and restructured the
public order and specialized courts that heard cases involving
drug-trafficking and terrorism crimes separately.
The Legislative Committee's decision to retain the penalties in
crimes established under the state of siege decree in 1988 and its
decision to maintain separate judges to hear cases wherein the crimes
alleged are terrorism and drug-trafficking is contrary to the democratic
principles of the Constitution, especially Title II, concerning the
fundamental rights. If one
analyzes the Constitution rationally, there is no way to infer from it
that it allows the states-of-emergency system to be institutionalized
indefinitely. Article 214,
subparagraph 2 of the Constitution makes legislation that suspends
fundamental rights and freedoms unlawful. Nevertheless, some parts of the state-of-emergency
legislation deny important judicial guarantees.
An example was the declaration of internal disturbance decreed on
July 9, 1992. Invoking the
state of internal disturbance, Decree 1156 of 1992 was issued to the
effect that anyone accused of drug-trafficking or terrorism was
permitted to use habeas corpus only in the circumstances
stipulated in Chapter III.
Equally disturbing is the fact that Law 15 of 1992, enacted by
Congress to transform Decree 1156 of 1992 into permanent law, provides
that habeas corpus can only be used if an individual's legal and
constitutional guarantees are violated when he is taken into custody or
if he is held too long in custody.
And so, the Government has again curtailed the right of habeas
corpus, as it did back in 1988 and 1989 by means of decrees that,
insofar as habeas corpus was concerned, had become
unconstitutional once the 1991 Constitution took effect.
The American Convention on Human Rights prohibits any
infringement or restriction of basic guarantees, one of which is habeas
corpus. It would be
best if the Colombian Government would henceforth refrain from using
states of emergency to modify or limit guarantees, because such measures
affect the independence and the autonomy of the justice system.
By the same token, if the Constitution limits what can be
legislated in states of emergency, all the more reason to conclude that
what can be legislated in normal times is also limited, given the fact
that such legislation is permanent.
The new Code of Criminal Procedure adds to the permanent body of
law certain practices that, in the state of emergency legislation, were
problematic for the human rights situation.
Though not an exhaustive analysis or examination of the problem,
it might be well to mention some of the measures that could hardly be
said to respect citizens' guarantees:
the new Colombian penal legislation that took effect in July 1992
transformed the special public order courts into permanent courts, under
the name of "regional jurisdiction and national tribunal."
This is one way of keeping the identity of judges and witnesses
and the evidence secret, and the lab reports and tests confidential.
This was all done by Decree 2271 of 1991, which transformed
decrees 2790 of November 20, 1990 and 0099 of January 14, 1991,
originally issued as state of siege decrees, into permanent law.
Since it is difficult to say which part of these decrees the
Constitutional Court declared to be unconstitutional and therefore null
and which part is still in effect, the following are some of the
provisions of Legislative Decree 0099 of 1991 which amended and made
additions to the so-called Statute for the Defense of Justice contained
in Legislative Decree 2790 of November 20, 1990, put into effect by
virtue of Decree 2271 of 1991 and not challenged by the Constitutional
Court. Those provisions of
Legislative Decree 0091 concern secret evidence, secret witnesses and
secret expert reports:
Article 20. The
evidence will be argued during the trial phase.
The Criminal Investigations Police will submit the evidence or
add to the case file whatever evidence is made available to it and that
it considers pertinent, and need not have an order to that effect; the
only party that can be present is the agent from the corresponding
public prosecutor's office ... [not the defense attorney].
Article 22. When the
safety of the witnesses so warrants, authorization shall be given for
witnesses to place their fingerprint on the deposition rather than their
signatures; but in such cases, an agent from the public prosecutor's
office must be present, who shall certify that the fingerprint is that
of the person making the deposition.
Any reference to the name and particulars of the individual
making the deposition shall be omitted in the text, which shall be part
of the corresponding case file, along with a record indicating that the
identity of the deponent has been removed and where it has been sent.
To weigh the testimonial evidence, the public order judge may at
any time request the separate document to which the second part of this
article refers and prohibit the other parties or participants to the
proceedings from access to it. The
confidentiality of that document will be lifted should it be discovered
or established that the witness perjured himself or gave false testimony
for fraudulent purposes.
The same procedure can be followed in respect of expert reports
or any other evidence where the identity of the individual who had a
part in it should be kept confidential.
Article 27. As of
the commission of the acts in question, the official from the office of
the public prosecutor's must compile evidence to establish the nature
and degree of injury caused by the infraction and may submit the
evidence to any judge in the nation, with the exception of public order
judges. The only costs
shall be those incurred to produce the evidence and will be transferred
to the case file during the proceedings.
Witnesses and expert witnesses who play some role in the
proceedings described above shall, if they request it, be entitled to
the same confidentiality and safety measures provided for in Article 22
of this decree.
Article 50. When a
judge believes that his/her identity or the identity of the participants
in the proceedings should be kept confidential to guarantee their
safety, he/she shall order that any measure or mechanism required to
ensure their confidentiality and safety be taken when the evidence is
submitted and that the cross-examination, requests for clarification of
rulings, or any other similar petition be made and processed in writing.
No change was made in the legal system by which the previous
special courts operated, so that at present the regional judges and the
national tribunal have exclusive jurisdiction over crimes associated
with drug trafficking and terrorism, rebellion, rioting and illegal
possession of weapons. By law, these crimes are to be tried in the
secret proceedings discussed earlier.
The Commission is disturbed that this is still part of Colombian
As for secret witnesses, the Government of Colombia responded to
the criticism in the report as follows:
Decree 709 of 1993, which establishes the possibility of handing
down a conviction based on testimony given by witnesses whose identity
is kept confidential, has been ruled unconstitutional by the Court, so
that secret testimony can only be used to order precautionary measures.
The Commission is pleased by the important change that has been
made to conform Colombian laws to the provisions of the American
Convention on Human Rights. The
Commission has also duly noted the recent change in Colombian law with
enactment of the State of Emergency Statute, which will reportedly allow
full, unrestricted exercise of the remedy of habeas corpus, a
basic guarantee of judicial protection embodied in the Constitution of
Colombia and in Article 25 of the American Convention.
It is gratified to have helped restore this fundamental
c. Military jurisdiction
The Colombian Constitution made no changes as regards the
military jurisdiction recognized in Article 221 of the Constitution.
It was extended to include members of the national police and is
used in cases where the crime committed by an active member of the Armed
Forces is service-related. The
Commission believes that what constitutes a service-related criminal
offense must be very clearly defined so that human rights violations are
not classified as service-related.
Such a regulation, which is highly advisable, must require that
for an act to be regarded as service-related, it must have been
committed as part of an operation and on orders from a legitimate
military authority. The
Colombian Constitutional Court has ruled (Ospina Case, June 8, 1992)
that the argument that the individual in question was "following
orders" cannot be used as an excuse by a member of the military who
receives an order to commit acts that are obvious human rights
violations, such as torture, enforced disappearance and extrajudicial
execution. It must be made very clear that such acts are utterly alien
to any service duty. Rarely,
however, do the military criminal courts sanction members of the armed
forces for these violations. In
fact, military criminal justice prevents ordinary judges from trying
military and police, even in cases of crimes against humanity.
When the victims of crimes committed by members of the armed
forces are civilians or when those crimes result in some damage or
injury to private parties, the law must clearly establish that the
aggrieved parties may be civilian parties to the proceedings.
Under the present interpretation of the law, the civilian party
may not be present in the proceedings, and neither relatives nor the
victim may participate in the proceedings or demand swift and full
The system for weighing evidence is particularly unbalanced.
On occasion, military courts dismiss evidence for the prosecution
because it has been supplied by the victims' relatives and is not
considered credible for that reason; on the other hand, defense evidence
provided by the defendants themselves is admissible.
The appropriate administrative sanctions are frequently not
applied, even in obvious cases of human rights violations committed by
officers. Although on
occasion these penalties have been enforced either by law enforcement
authorities or by the Office of the Attorney General, which has the
authority to do this, there are many cases in which judicial impunity is
compounded by the absence of any administrative sanction.
Public officials who violate human rights must be removed from
their posts using the procedures and administrative authority that the
The Office of the President of the Republic, as the highest
government authority, can remove officials whose conduct, upon
investigation, is found to have violated basic principles of human
rights. This would undo the
State system that allows agents of this type to go unpunished.
The Special Rapporteur on Extrajudicial Executions of the United
Nations Commission on Human Rights, who visited Colombia in October
1989, recommended in a January 1990 report that all members of the Armed
Forces and National Police who are either part of or support
paramilitary groups, hired assassins or drug-traffickers be separated
from service; it was also recommended that the constitutional
authorities conferred upon the President to appoint and remove agents of
the Executive Branch be exercised in order to sever those members of the
Armed Forces involved in these groups.
While the Government has already taken some steps in this
direction, as in the case of Col. Luis Bohórquez Montoya and other
officers who have been dismissed because of their obvious relations with
paramilitary groups, a more energetic effort must be made to dismiss
these armed forces and police officers.
Decree 2094 of 1992, issued in exercise of the state-of-emergency
powers, allows the police authorities to retire agents without having to
resort to disciplinary proceedings to prove that said agents engaged in
irregular activities. There
must be broader enforcement of this decree.
At the same time the Government should continue to invite and act
upon all dismissal and sanction requests that the Office of the Attorney
General submits as a result of its disciplinary inquiries.
Another way to deal with the impunity created by the military
courts would be to act upon the important recommendations made by the
Public Defender's Office in a recent report on human rights violations
against members of the Unión Patriótica and the reassimilated
guerrilla group once known as Ejército Popular de Liberación and today
known as Esperanza, Paz y Libertad.
The pertinent parts of said report read as follows:
The Military Criminal Courts are constantly asserting
jurisdiction over cases if the regular courts' investigations point to
members of the military as the suspects.
The military courts assert jurisdiction without first
establishing whether the requirements for military jurisdiction are all
present. Therefore, it is
important that the office of the Prosecutor General of the Nation settle
conflicts of competence when it is unclear whether the requirements of
Article 221 of the Constitution are present.
The possibility of amending the Military Code of Criminal Justice
must be examined, in order to allow civilians to participate in
proceedings if their presence would further prosecution of the case.
This would apply in crimes other than strictly military crimes;
in other words, crimes where there is a specific and identifiable
passive subject, as happens in the case of violations of fundamental
It is also recommended that consideration be given to creating a
Military Criminal Justice system, charged with administering military
justice exclusively, and independent of the Armed Forces structure per
se. The Constitution provides for military jurisdiction, so there
must be a specialized branch that conducts proceedings against members
of the public forces.
The Office of the Attorney General of the Nation should
strengthen the Public Prosecutor's Office's participation in trials
being heard by military criminal judges.
In this section devoted to the military court and to the problems
created by allowing the military courts to try members of the military
accused of violating human rights, some mention must be made of the
serious objections that the Attorney General made in his Second Report
on Human Rights, June 1993, to the way in which State security and
defense agencies obstruct the investigations conducted by the Office of
the Attorney General, because of the "deep-seated and sometimes
misplaced esprit de corps among members of the military; at times
an investigator finds it impossible to compile reliable information
quickly because the accused's comrades-at-arms conceal information,
conspire among themselves or simply remain silent."
Therefore, in the prosecutor's investigations, "members of
the military forces end up with fewer charges against them than they
should have; the investigation is made so difficult that it is equally
difficult to assign any blame."
Despite the power of the Office of the Attorney General, it
nonetheless has difficulties investigating military personnel. This fact itself reveals just how difficult it must be for the
modest military judge who is assigned the task of investigating a
high-ranking military officer or noncommissioned officer from his own
military unit. He has to
contend with cover-ups, complicity or plain silence on the part of
the accused's comrades-at-arms and, to use the words of the
Attorney General, a deep-seated and sometimes misplaced esprit de
corps among members of the military that makes it virtually
impossible for the investigator to compile reliable information swiftly.
These elements are compounded by the fact that the judge himself
is a military man and not a judge by profession; he is subject to
pressure from his own comrades, who expect him to show solidarity for
the institution and its members. A
lack of esprit de corps or failure to identify with his military
comrades will be a blot on his service record.
Then, of course, there is also the problem of obedience to his
superior officers in the military's vertical chain of discipline and
conduct; these are all problems that Colombian military justice has to
contend with and that undoubtedly serve to explain why, despite the
evidence, military criminal courts acquit the majority of military
accused of violating human rights.
Another example of the lack of professional ethics on the part of
some military judges is case 10456, which is that of IRMA VERA PEÑA, a
peasant woman. This case is
discussed at greater length in Chapter VII, concerning the Right to
Life. The Commission
established that Col. Plinio Rodríguez Villamil had served as military
Criminal Examining Judge for the 25th Military Court.
But this was the same person who, as the Commander of "García
Rovira" Infantry Battalion No. 13, had directed the operation in
which his subordinates, on his orders, had killed Irma Vera Peña; he
then had the audacity to serve as the judge in the case, acquitting his
subordinates and himself of any responsibility.
Another irregularity in its justice system that the Commission
pointed out for the Colombian Government is that in cases where the
State is accused of violating human rights, it is the military criminal
court that determines legal truth, rather than the regular criminal
court. When a regular court
takes cognizance of a criminal case in which a member of the military is
accused of committing a crime while in service, which is precisely the
typical human rights violation that so often compromises the State's
international responsibility in this regard, then that regular court
must refrain from continuing to prosecute the case and refer it to the
military courts to investigate and decide.
While the administration of justice in Colombia is poorly served
by such a system, so are the right to a fair trial provided for in the
American Convention on Human Rights and the inter-American system
itself, which requires that States parties like Colombia act swiftly to
adapt their due process laws to the American Convention.
Cited below is the provision of the American Convention on Human
Rights, of which Colombia is a party, that establishes the obligation of
the contracting States to adopt their legislation to the provisions of
Article 2. Domestic
Where the exercise of any of the rights or freedoms referred to
in Article 1 is not already ensured by legislative or other provisions,
the States Parties undertake to adopt, in accordance with their
constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effect to
those rights or freedoms.
d. The existence of
The weaknesses in Colombia's justice system and the fact that the
violence that occurs in that country repeatedly goes unpunished, has
generated a kind of vigilante justice that operates directly when the
victim of the injustice takes justice into his own hands, or indirectly
when the victim uses third parties to that end.
Contract murder is the system whereby any individual in Colombia
hires a paid assassin. The
hired gunman offers the prospect of swift justice to a father whose
daughter has been raped and to the deceived lender.
For him there is no law. It
is easier and cheaper to hire the services of a gunman than to hire the
services of an attorney. These
hired assassins can be found at street corners or in certain
neighborhoods of the major cities. No appointment or professional
consultation fees are needed. Once
the contract is made, generally the hired gunman performs it punctually
and efficiently. Anyone who
tries to avoid payment pays with his life.
Hired killing has become a way of life and the hired killers are
generally young men. The
practice is spreading among children and youth in poor neighborhoods;
once introduced to a life of crime, they form gangs and get into the
business of distributing drugs in Colombia's major cities like Medellin
and Cali. They then start to provide protection to those who sell
drugs. The first time they
carry out a paid assassination, they charge not only money but also the
right to keep the weapon that they were given to carry out the killing. As of that time, and no matter how young he is, the hired
gunman becomes a professional and acquires quite prominent status in his
community and is accorded the "respect" paid a hired gunman.
Generally, these hired assassins work for organized crime that
engages in drug trafficking and also handle private contracts to execute
individuals they were hired to kill.
As a rule, almost all hired gunmen end up being assassinated by
other hired gunmen, to eliminate the possibility that they might testify
against the individual who hired them.
At times the chain of assassinations may involve three or four
young gunmen, in order to eliminate any trace of the individual who
originally solicited or hired the services of the gunmen to eliminate
The self-defense and paramilitary groups.
As indicated when discussing the subject of violence,
self-defense groups were developed for protection against the guerrilla
movements' constant harassment of and threats to businessmen, their
businesses, banks, ranches and the relatives of the wealthy, and later
became paramilitary groups. It
was another form of defense and, in some cases, personal revenge that
some private groups used and unfortunately still use, often with the
acquiescence or complicity of the armed forces, to track down and punish
those who have somehow harmed their interests or endangered their life
or the lives of their loved ones. The
civilian self-defense and paramilitary groups are one of the most
terrible instruments of clandestine and vigilante justice that exists in
Colombia. These groups are
gradually being taken over by drug traffickers.
Thus, they are not only identified with the vigilante justice
practiced by the large hacienda owners, businessmen and entrepreneurs
who employ this type of private protection, but are also closely
associated with the bloodiest crimes committed against prominent persons
in Colombian politics. These
paramilitary groups have not only practiced vigilante justice by
eliminating one or several persons at the same time on orders from the
chief or boss for whom they work, but have also been used in the wars
between organized criminal groups in which the so-called drug cartels
settle their differences. These
groups have also engaged in the selective assassination of political
leaders and union and grassroots leaders.
The social cleansing groups:
For several years now, rightist groups have been operating in
Colombia, basically serving the interests of the chief Colombian
entrepreneurs. On orders
from the latter or on their own initiative, and often with the
complicity of members of the armed forces, these groups carry out what
has come to be called "social cleansing" killings.
This involves the murder of prostitutes, beggars, common
criminals, drug addicts and other individuals considered to be on the
fringes of society.
Popular militia: In
some of Colombia's cities, especially in the poorer neighborhoods of
Medellín and Barrancabermeja, the police presence either markedly
decreased or disappeared altogether.
The public had lost confidence in the police because of the
latter's ineptitude, corruption and the criminal activities in which
members of the police engaged. For
their part, the police were themselves being intimidated;
indeed, some 500 police officers were killed in the working class
neighborhoods of these cities in 1991.
As the police presence disappeared, in several neighborhoods the
power vacuum was filled by so-called "popular militia",
composed of former guerrillas or hired gunmen.
Their modus operandi is to kill common criminals, thieves,
young drug addicts as a last resort, after one or two advance warnings.
In many places the apparent calm and sense of security that these
groups, which actively adopted the social cleansing strategy, brought to
these neighborhoods won them the support of the majority of those who
The complex process that consolidated these groups is disturbing
to the Commission, since it indicates a serious breakdown in the State's
ability to maintain law and order and preserve its monopoly on the use
of force. The Commission is
troubled by the fact that these groups have instituted what amounts to a
death penalty and that the community is sympathetic to the physical
elimination of criminals. These
signs show the impact of the arguments once used to rationalize the
so-called "social cleansing" by police agents or other
elements in society.
e. Violence against
judges and lawyers
Recently, a study was done of the violence targeted at judges and
lawyers in Colombia during the period from 1979 -1991,
which coincides with the period to which this report refers.
According to that report, during that period an average of 25
judges and attorneys have been either assassinated or assaulted each
year because of their professional practice.
Of the 515 cases analyzed, 144 occurred in Bogota.
The figures are alarmingly high in the departments of Antioquia,
with 110 cases, Valle del Cauca with 78, Santander with 26, Meta with 20
and Arauca with 17. The members of the judiciary hardest hit have been the
criminal examining magistrates (40 cases) and the magistrates of the
superior courts (31).
Contrary to popular belief, drug trafficking is not the only or
even the principal cause of these crimes.
It is blamed for 58 cases out of a total of 240 for which there
is a known author or motive; 80 of the remaining cases are attributed to
paramilitary groups, 48 to state agents, 32 to the guerrilla movement
and 22 to other factors.
Of these, 278 were cases of homicide (13 magistrates and 18
deputy attorneys died in the taking and retaking of the Palace of
Justice on November 6 and 7, 1985), 51 were assaults and 124 were death
threats. Fear is, without a
doubt, one of the principal problems besetting the people of Colombia,
but this is particularly true of those who are charged with
administering justice. Fear
of falling victim to some reprisal has gripped judges, regardless of
their rank in the judiciary, attorneys who defend their clients, the
parties involved in legal disputes, criminal investigations police who
collaborate in investigating criminal prosecutions and witnesses who are
keys in determining the authorship of the facts under investigation and
whose testimony can shed light on the facts and convict the guilty
The Special Preparatory Commission of the IACHR was told by the
National Association of Judiciary Officials and Employees (ASONAL) that
no judge is without fear, given the many cases of violent assassinations
of judges and magistrates in retaliation for their judicial
threat to those who participated in legal proceedings was so serious
that in 1986 the attorney general at the time, Mr. Carlos Jiménez
Gomez, stated the following: "Prosecution appears to be on the decline in Colombia.
The witness who saw something, never saw anything; the witness
who heard something, never heard anything.
He knows that there will come a time when he has to die for the
One case brought to the Commission's attention is that of Father
Alvaro Ulcué Chocué, murdered by two individuals on a motorcycle who
were said to be members of the F2 secret police.
On November 10, 1984, they killed the priest, whose two cousins
and sister had also been killed earlier.
The case acquired notoriety when the eyewitness identified the
two men on the motorcycle who killed the priest and narrated in detail
how the events transpired, but was later forced to make a public
retraction. Later still,
when the danger had passed the same witness took back the retraction and
confirmed his original statement, adding that he had been forced to lie
and to retract his original version because he was being threatened.
One of the events that undoubtedly affected Colombian judges was
the attitude taken by the State powers when the Palace of Justice was
seized in November 1985. Something
that a number of the members of ASONAL told the IACHR's Special Mission
personally was that at the time judges felt that neither the country nor
the public authorities considered their lives and personal safety to be
worth special protection. In
effect, it is a well known fact that several times the Colombian
Government has negotiated with guerrilla groups to save the lives of
individuals being held hostage after having been kidnapped by those
groups. The Inter-American
Commission was reminded that when some of the foreigners in the
diplomatic corps in Colombia were taken hostage, the Commission itself
had been requested to participate and to take some action to help secure
the release and save the lives of the foreign diplomats being held
captive by the M-19 in the Embassy of the Dominican Republic.
In the incident at the Palace of Justice, which again was the
work of an M-19 commando, the Colombian Government, its armed forces and
then President Mr. Belisario Betancur disregarded the pleas from the
then President of the Supreme Court and almost all its members to
negotiate and enter into dialogue with the captors, in order to avoid a
massacre. This obviously
was not done, with the result that the army launched an attack to retake
the Palace of Justice by force. It
seemed as if the lives of the magistrates taken hostage either did not
matter or were not taken into consideration. The result is what has come to be called the holocaust at the
Palace of Justice. The
following magistrates and the court personnel perished:
Magistrates of the Supreme Court:
1. Dr. Alfonso Reyes
Echandía; 2. Dr. Manuel Gaona Cruz; 3. Dr. Luis Horacio Montoya Gil, 4.
Dr. Ricardo Medina Moyano; 5. Dr. José Eduardo Gnecco Correa; 6. Dr. Carlos José Medellín
Forero; 7. Dr. Darío Velásquez
Gaviria; 8. Dr. Alfonso Patiño Roselli; 9. Dr. Fabio Calderón Botero;
10. Dr. Pedro Elías Serrano Abadía; 11. Dr. Fanny González Franco. Deputy Magistrates:
1. Dr. Emiro
Sandoval Huertas; 2. Dr. Julio César Andrade Andrade; 3. Dr. Jorge A.
Correa Echeverry. Aides
to the Magistrates of the Court:
1. María Teresa Muñoz
de Jiménez,; 2. Hermógenes Cortés Nomelín; 3. Isabel Méndez de
Herrera; 4. Cecilia Concha Arboleda; 5. María Cristina Herrera Obando;
6. María Lida Mondol de Palacios; 7. Rosalba Romero de Díaz; 8. María
Yaneth Rozo Rojas; 9. Ruth Mariela Zuluaga de Correa; 10. Ana Beatriz
Moscoso de Cediel; 11. Libia Rincón Mora; 12. Nury Soto de Piñeros.
Deputy Magistrate of the Council of State:
Dr. Lisandro Romero Barrios.
Assistant attorneys with the Council of State:
Dr. Carlos Horacio Uram Rojas and Dr. Luz Stella Bernal Marín.
Aides with the Council of State and Prosecutors:
1. Ana María Nieto
de Navarrete; 2. Blanca Inés Ramírez de Angulo; 3. María Teresa
Barrios Rodríguez; 4. Jaime Alberto Córdoba Avila.
Luis Humberto García; 2. José Eduardo Medina Garavito, 3. Plácido
Barrera Rincón. The
Administrator of the Palace of Justice, Mr. Jorge Tadeo Mayo Castro.
The COBISEC guards: 1.
Gerardo Díaz Arbeláez; 2. Eulogio Blanco. The Elevator Operator at the Place of Justice, Mrs.
Carlota Sánchez de Monsalve.
The impunity in the judicial prosecution of these acts of
violence against judges and attorneys is truly alarming:
98% of these crimes go unpunished; the courts have handed down
decisions on only 13 cases, one acquittal and 11 convictions.
In 80% (412) of these cases, it has been impossible to ascertain
whether an investigation or trial is even in progress.
Four cases (0.8%) are in trial, 79 (15.3%) are in the preliminary
phase, and 1.6% have been closed when the investigations failed to
The State has not been sufficiently effective to put the anxiety
to rest. To address the
issue of violence against judges and attorneys, on August 18, 1989, a
Judiciary Security Fund was set up, a measure long past due since dozens
of judges and attorneys had already been killed.
It was equally inadequate, since the fund had little in the way
of financial resources and was weak on administration.
A public order jurisdiction has been created and to protect it
the identity of its judges is confidential, as is the identity of the
witnesses, experts, criminal investigation staff and the nature of the
evidence. All of this is
contrary to the principle of due process.
While these measures have afforded some measure of security to a
minority sector of judges, particularly those most in danger such as
judges who hear cases involving terrorism and drug trafficking, justices
on the Supreme Court, magistrates on the Council of State, the
Constitutional Court, the Superior Court of the Judiciary, and the
Departmental Tribunals, the majority of judges still do not enjoy any
To guarantee the safety of judiciary personnel, it is recommended
that new positions for circulating judges be opened up.
It is also recommended that judges' professional organizations
and bar associations be strengthened and that there be permanent
oversight of judicial proceedings investigating these acts of violence;
that complaints be investigated, solutions proposed and carried out.
An independent judicial system must be organized that ensures
proper administration of justice, the guarantees of due process and full
exercise of human rights. Jurisdictional
functions must be exercised by specialized, technical civilian bodies,
and the justice system must be removed from under the influence of
The Commission is deeply concerned by the fact that Colombian
justice is in large part governed by rules and regulations that can be
traced to the powers permissible in states of emergency, which often
means that the rights upheld in the American Convention are disregarded,
as happened in the case of the right of habeas corpus and
the institutionalization of secret trials.
Although secret trials are intended to serve a good purpose,
i.e., to protect the safety and lives of the judges, they nonetheless
seriously violate the guarantees of due process and increase the margin
for judicial error to the point that those people who are tried in
secret are in danger of becoming victims of a miscarriage of justice.
The Commission urges the Government of Colombia to continue to
seek ways to reconcile the twofold and not conflicting objectives of
guaranteeing fully the lives and safety of judges, without diminishing
the guarantees of due process.
Naturally, the Commission is not opposed to measures that protect
the life of the judge, the witness, the expert and of others who take
part in the judicial inquiry. Indeed,
in exceptional cases, measures do have to be taken to protect their
safety, independence and identity, so long as the basic guarantees of
due process are not affected. In
some international proceedings before the Inter-American Court of Human
Rights, in which the Commission and the governments have been the
parties, the Commission--in order to protect the life and safety of some
witnesses--has petitioned the Court, and the Court has agreed, not to
reveal the identity of those witnesses to the representatives for the
respondent government. In
such situations, the inter-American human rights justice system has
tried to reconcile the quest for judicial truth, the parties' right to
equal justice, and the right to life.
The Commission has also done the same, acting as a quasi-judicial
body in processing certain individual cases involving complaints against
States parties to the Convention. The
Commission believes that the search for truth and justice cannot be
carried to such an extreme that it poses a threat to life; by the same
token, however, the protection of the life and personal safety of the
magistrates and those who cooperate with the justice system cannot be
carried to such an extreme that truth and justice are compromised.
In the two years that have passed since the new Constitution
took effect, petitions of tutela have proven to be very
popular and accessible, just as the framers of the 1991 Constitution
had intended. In the
first year, only 7,000 petitions were filed, 40% of which were
admitted; moreover, almost all of the fundamental rights recognized
in the Constitution have already been the subject of specific cases.
The rights most commonly claimed have been the right to due
process, the right to work, to education, to equality, to autonomy
and to privacy. The Constitutional Court receives between 50 and 100 requests
each day to review these actions and has taken up approximately 8%
of the total number of decisions.
Observations and Comments of the Government of Colombia on
the Commission's Report, August 3, 1993.
The Government of Colombia has informed the Commission that
with the Congress' recent approval of the State of Emergency
Statute, "there are no longer any restrictions on the exercise
of remedies to protect and defend rights in concrete cases, such as habeas
corpus and tutela", which means that "at this
point, the law is fully consistent with the jurisprudence by the
Inter-American Court of Human Rights regarding judicial guarantees
in states of emergency." Observations
and Comments of the Government of Colombia on the Report of the
Commission, August 3, 1993.
As to the objection to "secret proceedings"
conducted by public order courts that try cases involving drug
trafficking and terrorism, the Government acknowledges that the
ideal would be not to have to resort to keeping the names of judges
and witnesses confidential in any type of legal proceedings; but
Colombia's own experience has been that in some cases--as even the
Constitutional Court acknowledged by upholding the constitutionality
of the faceless judges system--this mechanism is essential to
protect the life and safety of judges and of those who cooperate
with the courts. This
protection is the ineluctable duty of the State and even the report
itself states that. Therefore,
the Government believes it is unfair to dismiss outright the
provisions concerning confidentiality.
Moreover, these protective measures have been very
instrumental in reducing the number of crimes that go unpunished.
The Government points out that the protection does not extend
to the material content of the evidence.
It also states that Decree 709 of 1993, which established the
possibility of handing down convictions based on the testimony of
unidentified witnesses, was ruled to be unconstitutional by the
Court, which means that secret testimony can only serve as the basis
for precautionary measures. Observations
and Comments by the Government of Colombia to the Report of the
Commission, August 3, 1993.
Office of the Public Defender, "Report of the Public
Defender for the Government, Congress and the Attorney General of
the Nation: Study of
the murders of members of the Unión Patriótica and Esperanza, Paz
y Libertad", Bogota, October 1992.