IACHR ANNUAL REPORT 2008

CHAPTER IV - HUMAN RIGHTS DEVELOPMENTS IN THE REGION
COLOMBIA (Continuation)

IV.        THE SITUATION OF HUMAN RIGHTS DEFENDERS, COMMUNITY LEADERS, AND TRADE UNIONISTS

110.          In 2008, the efforts of human rights defenders, community leaders and trade unionists continued to be plagued by threats against their lives and persons.  Attempts to pin spurious charges on human rights defenders also continued.

111.          This year, the Commission is particularly troubled by the situation of trade unionists.  The Observatory for the Protection of Human Rights Defenders reported that nearly 40 trade unionists were murdered in Colombia between January and August 2008.[153]  According to the figures of the Observatory of the Presidential Program for Human Rights and International Humanitarian Law, 16 unionized teachers along with 16 members of other trade unions were murdered between January and September 2008.  A comparison with 2007 reveals a 52% increase in the number of trade unionist killings.[154]   In its observations the State writes that the follow-up done by the Prosecutor’s Office found 41 recorded cases in which unionized workers were killed; the incidents claimed a total of 42 victims.[155]

112.          On March 12, 2008, a significant number of civil society and human rights organizations that form part of the Stimulus Committee for the National Meeting of Victims and that announced and took part in the protest march held on March 6, 2008, received death threats from the self-titled Águilas Negras.[156]  Specifically the threats were leveled at the members of MINGA, REINICIAR, FUNDIP, ASOPRON, ANDAS, ASDEGO, FENACOA, ASOMUJER, TAO, CODHES, and CUT,[157] some of whom are beneficiaries of various precautionary measures issued by the IACHR to protect their lives and physical integrity.

113.          The IACHR made public its concern at these threats against human rights defenders and members of civil society organizations[158] in Colombia, and reiterated the recommendation contained in its Report on the Situation of Human Rights Defenders in the Americas,[159] to urgently adopt effective measures to protect the life and physical integrity of human rights defenders who are threatened, and to ensure that these measures are decided on in consultation with the defenders.  Furthermore, in light of statements made by agents of the State that linked the march to the activities of guerrilla organizations (see section below on “Freedom of Expression and Social Protest”), the commission feels compelled to point out that “statements by state representatives, expressed in the context of political violence, sharp polarization, or high levels of social conflict, puts out the message that acts of violence aimed at suppressing human rights defenders and their organizations enjoy the acquiescence of the government. For this reason, indiscriminate and unfounded criticisms that help create adverse conditions for the work of human rights defenders are profoundly harmful to the democracies of the hemisphere.”[160]

114.          In its observations the State writes that on November 10, 2008, a meeting was held with organizations that defend human rights.  The international community was also present.  The State underscored its determination to protect all citizens, especially the most vulnerable populations, as a universal principle of respect for and enforcement of human rights.  It also said that it will keep in place and strengthen all the guarantees necessary for human rights defenders and social leaders to be able to lodge their complaints concerning alleged violations of human rights.[161]

115.          The IACHR has followed the threats made toward another organization protected by precautionary measures: the Comisión Intereclesial de Justicia y Paz.  Members of the Justice and Peace Commission who work with Afro-Colombian communities in the Naya basin began to receive threats from the Águilas Negras in March 2008.  Around August 2008, the Águilas Negras issued death threats against eight members of the Justice and Peace Commission that help Afro-Colombian communities protected by provisional measures in humanitarian zones situated in the Curvaradó basin, Department of Chocó[162].  The aim of the threats is to prevent the human rights organization from continuing with its work with Afro-Colombian communities.  Risk studies carried out by the authorities reveal that the danger extends also to members of the organization who work in Bogotá. On September 21, 2008, a member of the Justice and Peace Commission working in Curvaradó was abducted so that he might provide information on the locations of the families of other members of the organization.  He was later released with the threat that unless he left the area he would be executed. [163]

116.          The danger to the members of the Comisión Intereclesial de Justicia y Paz appears to have become more acute following the initiation of proceedings for restitution of collective lands seized for use in the biofuel industry and the pre-trial detention of former state agents as part of judicial proceedings to clear up human rights violations perpetrated in Chocó,[164] among other factors.  The IACHR convened a public hearing to examine the situation of the Justice and Peace Commission in the course of its 133rd regular session in October 2008.[165]

117.          On November 6, 2008, the IACHR received information about threats made by a group calling itself ABM Gonzaga against Fernando Escobar, a municipal official in Soacha, in connection with the alleged extrajudicial execution of 11 youths in that municipality, which is located in the Department of Cundinamarca.  The threats also included Jahel Quiroga Carrillo, Director of Corporación REINICIAR; Gustavo Petro, a Senator for the Polo Democrático party; Iván Cepeda, Director of the National Victims Movement (MOVICE); Jorge Rojas, Director of the Office of the Advisor for Human Rights and Displacement (CODHES), and the General Workers Union (CUT).[166]

118.          Another issue of particular concern in 2008 has been the harnessing of intelligence machinery against human rights defenders and opposition leaders.  At its 133rd regular session,^[167] the IACHR took cognizance of memorandums issued by the Administrative Security Department (DAS), which requested that information be gathered on members and leaders of the Polo Democrático party, including Senator Gustavo Francisco Petro Urrego, and their alleged links to “clandestine movements,” terrorist groups, outlawed groups, civil society organizations, trade-union or nongovernmental organizations, and “persons willing to testify against the Government.”

119.          At the hearings held on October 23, 2008, the State reported that the DAS officials responsible for the memorandum in question had been dismissed and the director of that institution had resigned.  Quite apart from the importance of this information, which was also made public through the press, the IACHR is troubled by the existence of DAS policies on the collection of information connected with the activities of human rights defenders, community and political leaders, witnesses to human rights violations, and their protection, and it intends to follow up on this matter.

120.          In its observations the State mentions the recent passage of a Military Intelligence Act whose purpose is “to strengthen and create new guarantees for the citizenry, keep information confidential and protect public servants who work in the intelligence-gathering area.”    The State writes that limits, goals and principles have been established to govern intelligence work, based on the Constitutional Court’s jurisprudence.  It adds that the Military Intelligence Act strengthens internal and external controls to ensure transparency and better supervision of intelligence operations from the inside; it provides for the creation of new centers to house and protect intelligence databases and files, thereby guaranteeing that the information obtained will be held in the strictest confidence and kept up to date, and that nothing will be entered into the record for discriminatory purposes.[168]

V.         FREEDOM OF EXPRESSION AND SOCIAL PROTEST

121.          In first place, the IACHR celebrates the release of journalists Mario Alfonso Puello[169] and Javier García Rangel,[170] who were held by the National Liberation Army (ELN) for four years and two months, respectively.  The IACHR has repeatedly indicated that the taking of hostages constitutes a serious breach of International Humanitarian Law.  Furthermore, the Commission notes with satisfaction the continued implementation of the Journalist Protection Program by the Ministry of the Interior and Justice and draws attention to a recent decision of the Constitutional Court of Colombia ordering the Ministry to bring said program into line with the professional needs of journalists and the requirements of legal due process.[171]

122.          The Commission highlights the recent case law of the Supreme Court of Justice on access to information, which requires public entities to justify their decision when they refuse to disclose information citing reasons of national security.  In its decision, the Court ruled that the Army had violated a journalist’s rights of petition by its refusal to provide him with information about the circumstances in which 10 persons said to be members of armed groups had met their deaths, on the grounds that those were matters pertaining to national defense and security.[172]

123.          The Commission also notes that in 2008 there were no murders directly relating to the practice of journalism and it values the progress in the investigation of a number of facts connected with murders of journalists.[173]  However, notwithstanding the progress made, the impunity that surrounds crimes committed against journalist remains especially serious and,[174] therefore, the Commission urges once again the Colombian authorities to investigate these crimes, impose appropriate penalties on those responsible, and provide adequate reparations to the victims.

124.          Throughout 2008, the Commission has received information about assaults on journalists and other persons who exercise their right to free expression to voice critical or dissenting opinions, such as Pedro Antonio Cárdenas,[175] Pedro José Severiche Acosta,[176] Sandra Patricia Troncoso,[177] Lila Leyva and Evelin Coba Vides.[178]  In some cases the attacks were incited by public officials who sought to prevent certain information from coming to light.  The IACHR has also received information about assaults committed during marches or public demonstrations by private citizens.[179]

125.          The IACHR was also informed of at least 20 cases of journalists who were allegedly threatened for reasons to do with practicing their profession.  In most cases the threats came following the publication or broadcast of reports of alleged local government corruption.[180]  In this connection, the IACHR expresses its concern at the circulation of pamphlets signed by alleged members of armed groups.  On March 11, 2008, a pamphlet allegedly authored by the armed group known as the Águilas Negras was circulated in the Municipality of Manaure, Guajira, in which the journalist Kenneth Rivadeneira and eight other persons in the region were declared military targets.[181]  Similarly, the Commission has been told that in several cases the threats have prompted the communicators to leave their homes.  The state’s observations indicate that the Ministry of the Interior’s Protection Program devotes approximately US$ 764.000.oo per annum to the  protection of journalists under threat[182].

126.          The Commission notes with concern that most of these threats are designed to intimidate not only the journalists, but also the media outlets for which they work.  This, combined with the fact that most of the threats occur in provincial areas, leads to the conclusion that the warnings may be intended to close down community radio stations.  The Commission reiterates that, as stated in Principle 9 of the Declaration of Principles on Freedom of Expression, “the murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression.”  The Commission also reiterates that, as the Office of the Rapporteur for Freedom of Expression has noted, threats of this type help to create a climate conducive to self-censorship.[183]

127.          The Commission notes with concern that high-ranking public officials make statements that tend to generate an atmosphere of intimidation that may dramatically curb freedom of expression by persons who do not agree with government policies and lead to extremely serious situations such as the ones described next. On February 10 and 11 2008, a presidential adviser[184], spoke dismissively about a march announced for March 6, 2008, to commemorate victims of paramilitary groups, claiming that it had been convened by the FARC.  This high-ranking official also associated the organizers of the demonstration with that outlawed group.[185]  Subsequently, the Office of the President issued press releases in which it undertook to ensure the safety of those taking part in the demonstration but did not refute the serious claims made by the senior adviser, who continued to hurl accusations, especially at the human rights defender Iván Cepeda, one of the organizers of the march. 

128.          Following these declarations, the AUC issued similar statements about the organizing committee of the demonstration.   A number of visible organizers of the demonstration were the victims of serious assaults and Edgar José Molina, Manuel José Reina Collazos, Leonidas Gómez Rozo and Carlos Burbano were murdered, all between February 23 and march 5, 2008.[186]  The State indicates that these murders are being investigated.  Furthermore, a threat e-mailed on March 11, 2008, labeled 28 human rights defenders taking part in the March as military targets, saying that they had links to guerrilla groups. 

129.          The IACHR is troubled by the emergence of a pattern of sweeping negative statements about dissenting grassroots movements that link them to outlawed armed groups or “terrorist organizations” and suggest that behind their public demonstrations lurk their intent on destabilizing the State.  This situation recurred during the cane cutters’ strike called in southwest Colombia on September 15, 2008, to denounce and renegotiate working conditions in this sector.  High-ranking government officials –including the President of the Republic[187] and the Minister of Agriculture and Rural Development–[188] and senior representatives of the sugar growers association, including the president of ASOCAÑA,[189] told the media and the public that the strike was infiltrated by “dark forces”, “alien forces,” or, more explicitly, the FARC guerrilla movement.

130.          Apropos of this protest, the Colombian intelligence authorities –the Administrative Security Department (DAS)– arrested and expelled from the country two French documentary filmmakers (Julien Dubois and Damien Fellous), banning them from entering the country for five years.[190]  Senior government officials have referred to journalists who cover demonstrations as criminals in spite of the absence of any evidence or investigations to support these allegations.  In the case of the aforementioned French journalists, notwithstanding the fact that the Director of the Administrative Security Department had said that there was no evidence of their involvement in outlawed groups,[191] the President of the Republic referred to this incident as follows: “[s]ome foreigners came and violated Colombian immigration laws.  They came, consorted with terrorists and, taking advantage of the indigenous protest, helped to disrupt law and order there (…) Those foreigners ought to be in jail.  We should not have deported them but prosecuted them and put them in prison because they are guilty of inciting violence (…) These visitors are criminals and act under false pretenses because here they are apologists for criminal acts and abroad they distort the facts.  This cannot be allowed.”[192]

131.          In this  connection, the Commission deems it pertinent to remind the State that the Inter-American Court has consistently held that freedom of expression (which also covers  political criticism and social protest) is a fundamental right that should be guaranteed not only with respect to the circulation of information or ideas that are received favorably or considered inoffensive or indifferent, but also to those that offend, shock or disturb the State or any other sector of the population; such are the demands of pluralism, tolerance and the spirit of openness, which are essential in a democratic society.[193]  Furthermore, in a recent ruling on the scope of the freedom of expression of public officials in the performance of their duties, the court held that it is not an absolute right and, therefore, may be subject to restrictions when it interferes with other rights recognized by the Convention, and particularly with the duties of the State with respect to all of the inhabitants of a particular territory.[194]  In this case, the Court noted that while on certain occasions state authorities have a duty to make a statement on public-interest matters, “in making such statements the authorities are subject to certain restrictions such as having to verify in a reasonable manner, although not necessarily exhaustively, the truth of the facts on which their opinions are based, and this verification should be performed subject to a higher standard than that used by private parties, given the high level of credibility the authorities enjoy and with a view to keeping citizens from receiving a distorted version of the facts.[195] Furthermore, they should bear in mind that, as public officials, they are in a position of guarantors of the fundamental rights of the individual and, therefore, their statements cannot be such that they disregard said rights.”

132.          In 2008, the Commission has also been informed about the frequent use of legal action to punish journalists for their opinions, which, in practice, can inhibit democratic and pluralistic debate about public affairs and give rise to self-censorship among journalists in the practice of their profession.  In this regard, the Commission warns against the possible opening of criminal investigations against journalists who refuse to reveal the source of information disclosed to them in confidence in the pursuit of their professional activities, and which could give rise to the presumption that a crime had been committed.  For instance, in August 2008, President Álvaro Uribe Vélez asked that a criminal investigation be opened into the journalist Daniel Coronell for failing to publicly disclose in a timely manner the existence of a video that contained an interview apparently tying President Uribe’s administration to a bribery scandal.[196] It is worth recalling in this respect that Principle 8 of the Declaration of Principles on Freedom of Expression provides that “[e]very social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”

133.          The Commission is also disturbed by the issuing of court orders to prevent news from being broadcasted.  In May 2008, a government prosecutor requested the reporters for the investigative program “Séptimo Día” to surrender all the material they had in connection with one of their shows and ordered them not to air it.  The order was issued as part of a criminal proceeding that was investigating allegations made by the program, according to which, a beautician was irregularly performing surgical procedures. In that regard Principle 5 of the Declaration of Principles on Freedom of Expression provides, “Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law.”
 

VI.        PRESSURE ON THE JUDICIARY

134.          A series of incidents and facts have come to light in the final months of 2007 and over the course of 2008 that warrant attention because they undermine the work of high judicial organs, in particular the Criminal Cassation Chamber of the Supreme Court of Justice, through mechanisms not provided for in the Constitution.   These incidents have been accompanied by facts that suggest the existence of a situation of risk for deputy justices of the Supreme Court.

135.          On July 11, 2007, the Criminal Cassation Chamber of the Supreme Court of Justice, in its decision to dismiss the proceeding in favor of Orlando César Caballero Montalvo, ruled that “[…] offences committed by persons linked to paramilitary groups, as is the case with members of self-defense groups that have demobilized pursuant to agreements with the national government, cannot, in any circumstances, be charged with the crime of sedition, since such behaviors cannot be categorized as political crimes” and that, therefore, “no one who has had ties to paramilitary or self-defense groups, regardless of the level of their involvement in the organization or the crimes committed on its account, is entitled to benefit from an amnesty or pardon.  Furthermore, they may be extradited and, as a general rule, shall be barred from public service, and, if they are elected to serve in any public body, their criminal record as a result of having committed a crime punishable by imprisonment shall render them ineligible and, therefore, be grounds for loss of investiture.” [197]  In response to that judgment, President Álvaro Uribe said that “the independence of the courts is relative because like any other state institution they must collaborate for the good of the nation [...] one cannot put ideological bias first in such an important matter.”[198]  In response, the justices of the Supreme Court issued a press release in which they rejected “the President of the Republic’s serious and dangerous criticism of the way in which the Chamber conducts its business, which is not consistent with his invitation to dialogue or conducive to harmonious collaboration among the different branches of government.”[199]

136.          Justice Valencia Copete, who was then President of the Supreme Court, said that on September 26, 2007,[200] he received a call from President Uribe expressing his annoyance at the alleged plea-bargain offer by Deputy Justice Iván Velázquez (of the committee of inquiry for the so-called parapolítica) to the paramilitary known by the alias "Tasmania" in exchange for disclosing information that would implicate Senator Mario Uribe Escobar (the cousin of President Uribe, who was under investigation by the Court for suspected links to paramilitary groups).[201]  However, President Uribe denied having called Justice Valencia Copete to inquire about his cousin’s fate in the investigation and, in response to the justice’s refusal to rectify his statement, filed a criminal suit for defamation and slander with the House of Representatives.[202]  Deputy Justice María del Rosario González would have been subject to an investigation after including Mario Uribe in her own investigation of the parapolítica.

137.          Both Deputy Justices in charge of the investigation into the so-called parapolítica scandal, Iván Velásquez and María del Rosario González, have been the target of death threats and harassment.  The Commission has requested the State to furnish information on the security situation of the two justices with a view to ensuring greater transparency and strengthening their respective security arrangements.

138.          On June 26, 2008, the Supreme Court of Justice convicted former Congresswoman Yidis Medina Padilla for acceptance of bribes  since, as she herself  admitted,  she voted in favor of the constitutional reform bill on presidential reelection "in order to obtain bureaucratic benefits offered by certain officials with ties to the national government, which subsequently materialized in the appointment of several of her political followers to positions in various government  entities and the granting of services contracts to others.”[203]

139.          This judgment prompted another statement from the President of the Republic, in which he said that the “Criminal Chamber of the Supreme Court of Justice based its decision on the self-incrimination in the acceptance of bribes of a person with an obvious criminal past, so as to put undue pressure, through abuse of office and illegal assumption of authority, on other justice administration organs, in order to accuse honest officials of involvement in the supposed taking of bribes […] The Criminal Chamber of the Supreme Court of Justice applies selective justice, a way of acting that inspires fear in its constitutional judge, the Congress of the Republic […] [t]he lure of power offered by a dying terrorist movement, to which the judges of the criminal chamber of the Supreme Court of Justice have allowed themselves to be drawn, does not appear to have a judicial solution.” in that press release, the President also said that he would call on the Congress of the Republic to pass "a bill on a referendum inviting the people to order the immediate repetition of the 2006 presidential elections.”

VII.       CONCLUSIONS

140.          The Commission has observed that for a lasting peace to endure, non-repetition of conduct criminalized under international law, human rights violations and gross violations of international humanitarian law must be guaranteed.  To that end, the crimes must be investigated and reparations made for the consequences of the violence, using mechanisms that can get at the truth of what happened, administer justice and compensate the victims of the conflict.  Colombia still faces challenges in dismantling the armed structures of outlawed groups and implementing the framework of laws put into place to prosecute the crimes committed during the conflict.

141.          The IACHR remains concerned by the existence of diehard paramilitary structures that refuse to demobilize and by the fact that groups are taking up arms again and new groups are forming.  It again urges the Colombian Government to implement effective mechanisms to ensure that the structures of the AUC are dismantled and criminal gangs broken up.

142.          The IACHR understands that, apart from the established legal system, the State has a central role and a principal responsibility in ensuring that victims of crimes against international law will have effective and equal access to measures of reparation, in keeping with standards of international human rights law.

143.          Also, the Commission is still troubled by the toll that the violence takes on the civilian population, particularly the most vulnerable sectors such as indigenous peoples and the Afro-Colombian communities, who require special humanitarian assistance measures.  Furthermore, it would draw the State’s attention to the increasing number of complaints alleging the involvement of police or military in violations of human rights.  The Commission also remains concerned over the attacks that outlaw groups and guerrillas level against human rights defenders and social leaders, and it trusts that the necessary measures will be adopted to safeguard freedom of expression in conditions of security and ensure that the courts can operate with the necessary guarantees for administering justice and without interference from other branches of government.

144.          Based on these considerations, the IACHR recommends to the Colombian State that it:

1.            Bolster the work of the institutions called upon to play a role in implementing the Justice and Peace Law, especially the units of the Prosecutor’s Office that play a pivotal investigative role, to provide logistical support and security that will ultimately enable the courts to solve the crimes committed against the victims of the conflict.

2.            Arrange mechanisms to protect and ensure the safety of the victims of the conflict, witnesses and human rights defenders that participate in the investigation and prosecution of those who seek to avail themselves of the Justice and Peace Law.

3.            Establish, through consensus, effective mechanisms to provide reparation to the victims of the conflict guided by the principles of comprehensiveness and non discrimination.

4.            Adopt effective measures to dismantle the armed outlaw groups and take steps to ensure that emerging groups do not gain strength.

5.            Bolster mechanisms that prevent and, where necessary, investigate possible extrajudicial executions by undertaking a careful review of police policies and practices regarding the use of force in clashes and in intelligence work;  disclosure of the findings of those evaluations where the law so permits; a review of the internal disciplinary control mechanisms used to make public the reason for separation from service in cases involving false positives; the disciplinary control efforts of the Office of the Inspector General of the Nation, with the participation of victims and their representatives; publication of statistics and periodic analyses of cases reported; the use of external control mechanisms by way of the Procurator General of the Nation’s Office (Procuraduría General de la Nación), and precluding military tribunals and officers from crime scenes and from any role in the investigation of cases.

6.            Transfer all cases that may involve extrajudicial executions of civilians from the military criminal justice system to the regular courts, and establish mechanisms to prevent and investigate possible extrajudicial executions.

7.            Design and adopt policies that take into consideration the specific needs with regard to land, health, education, and justice of indigenous peoples and Afro-Colombian communities affected by the armed conflict.

8.            Adopt the necessary measures to protect the work of human rights defenders, social and trade union leaders; to prevent stigmatization and the improper use of intelligence agencies; and to remove the risk that they are exposed to through the judicial clarification of acts of violence, intimidation and threats against them.

9.            Adopt the necessary measures to ensure that judges and justice operators can fulfill their role in the administration of justice with safety, independence and free from pressure from individuals and State agencies.