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ANNUAL REPORT 2009
CHAPTER IV
HUMAN RIGHTS DEVELOPMENTS IN THE REGION
COLOMBIA (Continuation)
B. The situation of human rights defenders, community leaders, and trade unionists
75. In 2009, the work of human rights defenders and community and trade union leaders continued to be affected by threats against their life and personal safety.
76. In its observations, the State cited several measures taken on behalf of human rights defenders. Specifically, it mentioned approval of the follow-up mechanism for the agreements on procedural guarantees; the notice of September 3, 2009, sent to governors and city and district mayors in Colombia, in which the Ministry of Interior and Justice recognized the legitimacy and importance of the work done in the framework of the Constitution and legislation by organizations that defend human rights, and by social and community leaders; it rejected and condemned threats and actions against the social leaders, and requested expeditious and timely investigations to identify and punish the responsible parties.[133]
77. In 2009, the situation of union members was particularly worrisome. The Observatory of the Presidential Human Rights Program reported 10 homicides of unionized teachers and 13 homicides of union members in other sectors between January and September 2009. A comparative analysis with 2008 shows a 52% decrease in the number of murders of union members.[134] According to statistics of the Observatory for Protection of Human Rights Defenders (OMTC – FIDH), five union members were murdered in Colombia in the two months of April and May 2009.[135]
78. The State noted in its observations that as of October 2009 there had been 54 convictions for crimes against union members.[136] In addition, it reported progress in protecting members of trade organizations with congressional approval on June 26, 2009 of Law 1309, amending some articles of the Criminal Code related to “punishable conduct against the legally protected assets of members of a trade organization,”[137] signature of an agreement with the Labor Section of the Supreme Court of Justice and the Information Center of the International Labor Organization (ILO) and the Department of International Labor Standards, and the signature of an agreement of understanding between the Procuraduría General de la Nación [Office of the Attorney General of the Nation] and the Turín Information Center of the Department of International Labor Standards on cooperation and information on international labor standards and coordination and monitoring of decisions of the Procuraduría and ILO on labor matters.[138]
79. The IACHR has followed up on threats and acts of violence against organizations devoted to the defense of human rights and against their members. In this context, on March 12, 2009, the Commission issued a press release[139] in which it condemned the death of Álvaro Miguel Rivera Linares, who was found dead on March 6, 2009 in his apartment in Cali, gagged and handcuffed, with his teeth broken and marks of blows to his body and head. Information received indicated that Álvaro Rivera had gone to Cali to escape the threats and harassment he had suffered in Villavicencio, also has a result of his activism for the rights of the lesbian, gay, bisexual, and transsexual community (LGBT). Furthermore, at a hearing held in March 2009 in the framework of the 137th Regular Session of the IACHR, the Commission received information about acts of violence by agents of the National Police, harassment and intimidation against members of the LGBT community. In particular, mention was made of the murders of Alexander Guao Sierra on July 12, 2009, and transgender rights defender Wanda Fox on October 25, 2009.[140]
80. On October 17, 2009 Islena Rey Rodríguez, President of the Meta Civic Committee for Human Rights and the beneficiary of provisional measures issued by the Inter-American Court of Human Rights,[141] was the victim of an armed attack allegedly perpetrated by the FARC in the municipality of Puerto Rico, Meta Department. The Commission deplores the continued acts of harassment and violence against persons engaged in defense of human rights.
81. On October 23, 2009, the IACHR became aware of threats from a group known as “Águilas Negras Nueva Generación” against the following: the Association for Investigation and Social Action (NOMADESC); the Central Unitaria de Trabajadores (CUT - Valle); Proceso de Comunidades Negras (PCN); Community Council of the District of La Toma; the Indigenous Council [Cabildo] of Cerro Tijeras; Licifrey Arara, mining leader of the municipality of Suárez (Cauca); Edwar Villegas, member of the CUT Human Rights Team (Valle); José Goyes, member of the Political Commission of the Indigenous Regional Council of Cauca (CRIC); Diego Escobar, a CUT director (Valle); Plutarco, member of the 21st Century Human Rights Association of Buenos Aires (Cauca); and, Meraldiño Cabiche, councilor of the municipality of Suárez (Cauca). The threat states that these persons and organizations are military targets.[142]
C. Internal Displacement
82. The phenomenon of internal displacement continues to affect the civilian population in Colombia. The Single Displaced Population Registry recorded a total of 3,226,442 internally displaced persons up to September 30, 2009. The Advisory Office for Human Rights and Displacement (CODHES) referred to a total of 4,629,190 internally displaced persons at the end of 2008.[143]
83. The Commission has observed that displacements affect mostly persons and communities located in zones where there are large numbers of armed confrontations. MAPP/OAS reported on the heavy impact of displacement on indigenous communities, especially in the Departments of Chocó and Nariño. More specifically, in Nariño displacements occurred as a result of the massacre of the Awá indigenous peoples,[144] (see III A below); and in Chocó, they were due to retaliations by armed groups.[145]
84. The Commission also received information about acts of intimidation, harassment, and violence committed by illegal armed groups between April 2008 and April 2009 against residents of the Municipality of Argelia, Cauca Department, which resulted in the forced displacement of at least 23 families during that period, most of them from the town of Popayán. The information indicates that, in view of their precarious situation these families were obliged to return to the Municipality of Argelia and that they continue to receive threats, based on the complaints that they have filed. The Commission is particularly concerned at the humanitarian situation and security of the displaced persons as well as the sustainability of the processes for their return.
85. The State said that between January and August 2009, there were 562 humanitarian missions coordinated by Social Action of the Group of Prevention, Emergency Care, and Repatriation and its territorial units.[146] The State added that the National Prevention Directorate (Mesa Nacional de Prevención) made 26 contingency plans and between January and August 2009, there were 161 daily blogs with continuous monitoring of the situation of violence in the country in order to verify the risk conditions for displacement of the population. It also activated mechanisms for prevention and immediate action by the State. It said that between January and August 2009 the National Observatory of Forced Displacement prepared 21 reports that included a quantitative and qualitative analysis of the violence and forced displacement. Finally, it said that during the same period the Early Warning System of the Ombudsman’s Office (Defensoría del Pueblo) issued 18 risk reports and 18 notes in the framework of the Municipal Committees for Comprehensive Care of the Displaced Population.[147]
86. The Constitutional Court of Colombia periodically examines the situation of the population displaced in the context of the armed conflict. In judgment T-025 of 2004, it declared the existence of a state of unconstitutionality due to the effects of forced displacement, and ordered that public policies must effectively protect the rights of displaced persons and correct the unconstitutional state of affairs. These directives became progressively more specific in future follow-up orders or orders of the Constitutional Court. In 2009, the Constitutional Court issued the following orders: 004 on displacement of indigenous peoples; 005 on displacement of the Afro-descendant population; 007 on coordination by territorial entities of public policies to assist displaced persons; 008 on the continued unconstitutional state of affairs with regard to displaced people; 009 on homicide of a family member of the League of Displaced Women; 011 on the system for information on and registration of the displaced population; and 222 on the adoption of urgent precautionary measures to protect the fundamental rights of the Afro-descendant population of Caracolí belonging to the Community Council of the Curvaradó River Basin.[148]
87. In Order 008, the Constitutional Court pointed out that “despite the budget efforts by the government, and the progress made in various components of assistance to the displaced population, there is agreement both in the national government and on the part of regulatory agencies, international organizations, and the Follow-Up Commission that conditions are such that the qualification of “state of unconstitutionality” still applies. It pointed out that even though “the government contends that budgeted funds are adequate to protect the effective exercise of the rights of the displaced population, the level of coverage of virtually all components continues to be far from acceptable.”[149]
88. Finally, the Court ordered the Director of Social Action, as coordinator of the National System for Comprehensive Care of the Displaced Population, to appear before the Second Review Chamber of the Constitutional Court in July 2010 to demonstrate that the unconstitutional state of affairs had been corrected.[150]
89. The Commission will continue to monitor the measures adopted to attend to the situation of the displaced population and compliance with the orders issued by the Constitutional Court within the time limits stipulated by it.
III. THE SITUATION OF ETHNIC GROUPS IN COLOMBIA
90. Colombia is a multi-ethnic and multicultural country, and its own Political Constitution protects the ethnic and cultural diversity by recognizing the right to equality and establishing the obligation of promoting conditions to ensure that said equality is real and effective in terms of the situation of discriminated or marginalized groups.[151]
91. Despite this legal recognition, ethnic groups are the targets of violence stemming from the armed conflict, both individually and collectively, and this jeopardizes their autonomy and their territorial and cultural rights. In 2009, the IACHR continued to receive information on the situation of violence afflicting especially indigenous peoples and Afro-descendant communities and community councils in certain regions of the country.
A. Indigenous peoples
92. So far there is no agreement between the indigenous organizations and the State that would make it possible to say precisely how many indigenous peoples live in Colombian territory; the figures range between 84 and 102.[152] The indigenous peoples are scattered in 32 departments of the national territory, speaking 64 languages and with their own cosmic views, history, and spirituality.[153] The cultural richness of these peoples is reflected in their diverse life styles, generally linked to the land, and their methods of social organization and different ways of settling conflicts, which have enabled them to maintain their cultural identity.[154] This cultural wealth is threatened by the continued violence in many of the regions where these peoples live. As we have seen in previous years, illegal armed groups are interested in the ancestral lands of indigenous peoples, either for strategic reasons or for cultivation and processing of illegal substances.
93. This situation, together with the exploitation of the natural wealth of these lands, has generated increased violations of the individual and collective human rights of the indigenous peoples. Specifically, according to information provided by the National Indigenous Organization of Colombia (ONIC), between 2002 and 2009, 45,339 indigenous peoples were victims of displacement due to violence.[155]
94. ONIC reported that from January to July 2009, 3,059 indigenous people were victims of forced displacement.[156] The Commission observes with special concern the impact of displacement on the relationship between indigenous people and their ancestral territory, the impossibility of access to sacred sites, and the loss of identity, among other things. The Commission reiterates that the State should pay particular attention to displacements of indigenous peoples who need assistance adapted to their culture, identity, cosmic vision, language, and traditions. The Constitutional Court stated as follows in February 2009:
the indigenous groups are particularly defenseless and exposed to the armed conflict and its aftermath, especially displacement. They have to face the dangers inherent in the conflict on the basis of pre-existing structural conditions of extreme poverty and institutional neglect, which are catalysts for the serious individual and collective human rights violations entailed by the penetration of the armed conflict into their territories. […] [T]he indigenous peoples of Colombia […] are in danger of being exterminated culturally or physically by the internal armed conflict, and they have been victims of egregious individual and collective violations of their human rights and of international humanitarian law, all of which has resulted in their forced individual or collective displacement.[157]
The Court further declared that “the Colombian State has the dual obligation to prevent the causes of forced displacement of indigenous peoples and to attend to the displaced indigenous population with the differentiated approach it requires,”[158] and it ordered that a program to guarantee the rights of indigenous peoples affected by displacement be designed and implemented within six months of notification of the order.[159] The State said in its observations that on August 11, 2009, the Constitutional Court received a request for a six-month delay and a progress report on compliance with Order 004 of 2009.[160] The Commission values this decision of the Constitutional Court and will follow up on progress in implementing said program within the time limits set.
95. As regards the food situation of children, in hospital visits by the Indigenous Association of Cauca AIC-EPS-I from January to September 2009, it identified 60 cases of malnutrition, 55% of which (33 cases) corresponded to boys and 45% (27 cases) to girls.[161]
96. In 2009, the Commission continued to receive information on acts of violence against indigenous peoples. The ONIC reported that from January to May 2009, 56 homicides of indigenous persons were recorded, which represents a 124% change in comparison with the same period in 2008.[162] The State said in its observations that the complaints received had been processed and joint action had begun among government agencies to protect the special rights of the indigenous peoples. It also said that the National Human Rights and International Humanitarian Law Unit of the Office of the General Attorney (Fiscalía General de la Nación) is doing a special follow-up and thus far has assigned 182 investigations, which have led to conviction of 168 persons in 16 verdicts.[163]
97. The Commission expressed its concern over the situation of vulnerability of indigenous peoples in Colombia and the attacks on their leaders, in an attempt to break the unity of these peoples and their ability to defend their rights, and especially the right to autonomy and to their land. Thus, the IACHR has stated that the constant acts of violence against indigenous peoples threatened not only their life and personal safety, but also their very existence as peoples.
98. In 2009 serious acts of violence were committed against the Awá people[164]. On February 6, FARC massacred eight indigenous Awá.[165] Moreover, civil society sources informed the IACHR of the assassination of other members of the Awá indigenous people in the protected areas of Tortugaña, Telembí, and El Sande, crimes also attributed to FARC. In a press release, the IACHR repudiated the acts of violence and the serious violations of international humanitarian law perpetrated against the Awá people and urged the state to investigate the acts and prosecute the perpetrators. The IACHR further reiterated its concern over the security situation of indigenous peoples living in zones affected by the armed conflict. It requested the state to take the necessary states to protect them and to refrain from action that could endanger the life and personal safety of indigenous peoples, and in particular of the Awá people.[166] According to newspaper reports, these acts of violence triggered the displacement of hundreds of Awa people from their lands. Available information also indicates that Awa protected areas or reserves are surrounded by anti-personnel land mines, which makes it difficult for the Awa to circulate and for officials and humanitarian organizations to have access to them.[167] The State said in its observations that two investigations at the inquiry stage are underway for the homicide of 11 members of the Awá people.[168]
99. In addition, ONIC reported that on July 17, 2009, members of the Alto Palai community of El Gran Rosario protected area, Gonzalo Paí and his wife María Pascal, six months’ pregnant, were murdered.[169] Subsequently, in August 26, 2009, a second massacre was perpetrated against the Awá indigenous peoples in El Gran Rosario reserve, located in the Department of Nariño. This time an armed group opened fire on one of their homes, causing the death of twelve persons, including seven minors. At least three more persons were wounded.[170] The Commission evaluated and followed up on the situation and these serious acts were condemned by the international community, which demanded an immediate and unequivocal response from the state to ensure respect for the cultural identity and comprehensive and effective protection for indigenous peoples.[171]
100. In response, the state pledged to have an investigative committee made up of the Human Rights and Humanitarian Law Unit of the National Office of the Prosecutor General, the CTI, and the Judicial Police Department (DIJIN) clarify the facts,[172] along with the assistance of OACNUDH in Colombia.[173]
101. In October 2009, the Defense Ministry reported the arrest of members of ‘Los Cucarachos’ gang, a criminal organization engaging in drug trafficking and kidnapping, and the alleged perpetrators of the massacre of 12 indigenous Awá. It further reported that said gang and the members arrested are under investigation for other massacres, kidnappings, and extortion in the Department of Nariño.[174] The State also reported to the IACHR that on October 5, 2009, the Second Criminal Judge of the Municipality of Tumaco, with guarantee control functions, issued detention orders against five persons who had participated in that massacre, who were charged with aggravated homicide, conspiracy to commit a crime, and illegal bearing of arms.[175]
102. The state reported that it had taken on the commitment to organize a consultation with the Awá indigenous people, in order to deal specifically with the problems of that community and their current needs. The state also reiterated its commitment to find and adopt measures that would enable the Awá people to exercise and enjoy their rights, and it indicated that it would continue implementing the necessary measures to protect them. In this regard, it indicated that, under the National Human Rights Commission, it was working on a protection plan, measures for individual and collective protection, the risk map, and humanitarian care.[176] At the same time, the state advised that the national government met with Awá leaders to define the immediate steps to be taken in the face of the humanitarian emergency, as well as a proposal for a Plan for the Ethnic Protection of the Awá People.[177]. The state also said that on July 9, 2009, the Ministry of Interior and Justice and various authorities signed agreements with the Indigenous Unit of the Awá People (UNIPA) and the Association of Traditional Indigenous Authorities - AWA-CAMAWARI. The state indicated that it hoped that a proposal for an Ethnic Protection Plan would come out of these two agreements, for prior consultation.[178]
103. The State also reported that in February 2009 about 500 Awá of the Tortugaña Telembí Reserve were displaced and a second displacement of 146 personas occurred on September 1, 2009, from the Gran Rosario Indigenous Reserve to the community of La Guayacana in Tumaco.[179] At the same time, the state reported that to deal with the problem of the displacement of the Awá community, Social Action had set up a committee of experts for humanitarian emergencies, made up of eight members working in the places receiving the displaced population in the municipalities of Samaniego, Ricaurte, and Barbacoas in the Department of Nariño, and conducting periodic verification missions in the area where the displaced population was concentrated,[180] which made it possible to carry out the protection actions for this population. In addition, the State informed that in the component of prevention and mitigation of forced displacement a contingency plan was approved on January 31, 2009, which was activated when the displacement occurred.
104. With respect to the care provided for the first group of displaced persons, the State said there were 17 follow-up missions to check on the status of each of the comprehensive care components for the displaced persons, which provided them with food, toilet articles, etc. It said that the food rations were adjusted in accordance with the traditional Awá diet.[181] It said that the displaced persons were resettled in the El Verde building in the El Diviso subdivision, Barbacoas, and at UNIPA headquarters, at that organization’s request. It said that the entities of the Departmental Committee for Integral Care of the Displaced Population took the necessary actions to provide shelter, which included the construction and installation of kitchens, bathrooms, septic fields, water tanks, and classrooms for the children.[182] It said that these shelters house 120 displaced persons, and mainly the men go out to work each day. It added that there are health brigades for persons housed in the shelters and essential medicines have been given to the hospital serving them, and all displaced persons are receiving mental health and nutrition services. The State also said that the indigenous guard of the displaced community provides security for those housed at the UNIPA administrative headquarters and the national army continuously patrols the street.[183]
105. The State said that the second group of displaced persons is housed at the Indigenous House of the Reserve in La Guayacana district. It said that since the displacement there has been monitoring of the emergency situation and food aid has been provided, along with construction of a place to eat, a well, bathrooms, toilet kits, and ongoing medical care. It added that mental health services have been provided to all displaced persons and there has been a nutritional assessment of the child population. The State says that the security of this displaced population is the responsibility of the National Police and the Carabineros’ Mobile Squad, along with the Indigenous Guard.[184]
106. On October 28, 2009, the Commission requested the State, in accordance with the powers and obligations set out in Articles 41 and 43 of the American Convention on Human Rights, to provide information on the murders of members of the Awá indigenous people. Specifically, the Commission asked the State for information on the outcome of the investigation carried out by the commission composed of the Unit for Human Rights and International Humanitarian Law of the Office of the Attorney General, the CTI and DIJIN; measures implemented to date under individual and collective protection schemes; the risk and humanitarian assistance map for the Awá people; the status of the investigations opened in response to the murders of members of the Awá indigenous people in February and August 2009; and the status of the investigation of the members of the band known as “Los Cucarachos.”
107. In its response of November 23, 2009, the State said that 15 persons have been transferred from the risk zone by the victim and witness protection program of the Office of the Prosecutor General and given security services.[185] The State said in its observations that the Awá indigenous people is experiencing imminent threats and that the action of armed irregular groups in the area has a direct effect on their living conditions and the guarantee of this population’s human and ancestral rights, and that the Protection Program of the Human Rights Office of the Ministry of Interior and Justice has granted individual and collective protection measures to the Awá, agreed upon with the beneficiaries and leaders.[186] It said that that self-protection systems have been found to be appropriate and viable for reducing this population’s risk, so the communities have been given telephones and radios operated by the leaders and indigenous guard, as well as transportation assistance and armor for the Awá organizations’ headquarters.[187] The State said that it has agreed with the indigenous peoples that the best protection scheme is the Ethnic Safeguard Plan, a process that will be implemented with the various Awá indigenous organizations in a participatory and mutually acceptable manner.[188]
108. The Commission appreciates the efforts made by the government; however, it remains concerned by the serious acts of violence committed against the Awá indigenous people and awaits the results of the investigations initiated into the deaths of the members of the Awá indigenous people. It will follow up on the care provided by the State to displaced persons and the progress made in adopting effective measures to prevent violence.
B. Afro-descendant and Raizal community councils and communities
109. Afro-descendants and mestizos comprise the most extensive minority in Colombia. They live primarily along the Pacific coast and form considerable majorities or minorities in a number of large and medium-sized cities, including Cartagena, Buenaventura, Cali, Turbo, Barranquilla, Medellín, and Quibdó. According to the 2005 census, 10.6% percent of the total population of the country identifies itself as black or Afro-Colombian, including the Palenquera and Raizal, or 4,311,757 persons.[189] Although programs have been initiated to improve the situation of the Afro-descendant population,[190] the state has recognized[191] that the situation of the Afro-Colombian population is more difficult than that for the population on average, and that certain manifestations of racism having to do with cultural aspects persist in the country.
110. This sector of the population is particularly disadvantaged from the standpoint of health infrastructure, roads, and access to education. In its comments, the state emphasized that in 2007, it began developing a comprehensive long-term plan for Afro-descendant communities, with the participation of high-level departmental advisory committees and community councils. The plan is designed to “provide inputs for designing and implementing a government policy for positive differentiation, through action for structural change, in the framework of an ethno-development model.” The main components of the plan are inclusion and reparation policies, sectoral ethno-development policies, and territorial and regional policies. In December 2008, it agreed to seek international cooperation resources in order to continue with the process of socialization and territorialization under this plan.[192]
111. In view of their socially disadvantaged situation, Afro-descendant communities have been particularly affected by the conflict. On the one hand, the community councils located in Urabá and along the Atrato River and its tributaries have been targets of violence by armed actors, due to their claims for collective land titles pursuant to Law 70 of 1993[193] and the rights recognized by the 1991 Constitution. Moreover, urban populations, such as the ones in the city of Buenaventura, a strategic port of exit for drug trafficking, have been afflicted by armed groups disputing control of the region. As a result, these populations have been particularly subjected to violence, forced displacement, and seizure of their land. In 2009, the Commission continued receiving reports of acts of violence and intimidation against these populations.[194]
112. In March 2009, the IACHR published the Preliminary Observations of the Inter-American Commission on Human Rights after the Visit of the Rapporteur on the Rights of Afro-descendants and against Racial Discrimination in the Republic of Colombia,[195] in which it emphasized that “the disparities between the social and economic conditions of Afro-descendants and the rest of the Colombian population are closely linked to the social exclusion that this segment of the population has suffered for generations” and that “elimination of structural discrimination remains an enormous challenge for this population, which remains invisible through neglect.”[196]
113. The Commission refers back to these Preliminary Observations to reiterate that “stigmatization by armed actors, the failure of the security forces to do their duty to protect them, omissions in the provision of assistance in the humanitarian crisis that affects displaced persons, land seizures, impunity, and, in general, racism and racial discrimination all afflict Afro-Colombians, who have been hit particularly hard by the armed conflict.” [197]
114. Moreover, the Commission has repeatedly expressed its concern over the lack of judicial resolution regarding most of the acts of violence that have affected Afro-descendant communities and caused their displacement in the midst of the armed conflict.[198]. Colombia faces the challenges connected with the fact that armed groups and members of the security forces have been found to bear responsibility for the perpetration of multiple crimes in the framework of the conflict, as well as provision of reparation to the victims. The IACHR has stated that “establishing the truth about what happened during the conflict, searching seriously for justice through the determination of the responsibility of the perpetrators vis-à-vis the victims, and the reparation of the damage caused -- far from generating obstacles for the agreements that can lead to peace-building -- constitute basic pillars of its strength.”[199] It is vital that any peace-building operation include investigation of and reparations for acts of violence, displacement and discrimination suffered by Afro-descendants. The State said in its observations that the National Human Rights and International Humanitarian Law Unit of the Public Prosecutor’s Office has begun follow-up of cases involving victims who belong to the Afro-descendant communities, and to date 73 persons have been implicated in 34 investigations involving a total of 72 victims.[200]
115. The Commission has further stated that despite the fact that the socioeconomic levels of the Afro-descendant communities that reside in the inter-oceanic corridor between the Urabá zone and the Pacific coast are the lowest in the country, the territories that they inhabit are of enormous strategic value and rich in biodiversity and natural resources. Consequently, not only are they victims of institutional neglect on the part of the State, but they have also suffered particularly cruelly at the hands of armed actors and economic actors, the latter very often in alliance with the former.[201]. The violations of human rights and of international humanitarian law committed against Afro-descendant communities are aimed at inducing terror and displacement, as well as the illegal appropriation of land.[202]
116. The Commission has determined that another factor leading to displacement and the seizure of land is the expansion of the biofuel industry through the planting of African oil palm, a single crop well-known for its harmful effect on the soil and biodiversity. Although it is planted in an attempt to stimulate development in Afro-Colombian communities, and has ostensibly received active encouragement from the State with official funding,[203] in many instances this activity has been undertaken without consulting the communities concerned or against their will, through the illegal seizure of collectively owned land. It is alleged that 61% of Afro-Colombians who have received property deeds have been displaced and that they have been unable to return to their homes because of the violence and subsequent hostile takeover of their lands by third parties.[204]
117. Furthermore, the Commission is still worried about the situation of the Community Councils of Jiguamiandó and Curvaradó, which are under the protection of provisional measures issued by the Inter-American Court of Human Rights. In this regard, the Commission has stated that the lands deeded to those Afro-descendant communities have been seized for the purpose of using them for the lucrative biofuel business. This has had an adverse effect on the biodiversity in this zone and on the resources used by these communities for their daily subsistence.
118. These territories are undergoing a process of legal recovery and material restitution of the seized land, under the guidance of the Ministries of Agriculture and Interior and Justice.[205] With regard to this process, on July 17, 2009, the Constitutional Court[206] issued Order 222 of 2009 in order to put in place an urgent precautionary measure to protect the fundamental rights of the Afro-Colombian community of Caracolí belonging to the Curvaradó Community affected by internal forced displacement, in the context of efforts to correct the state of unconstitutionality declared in judgment T-025 of 2004 and in Order 005 of 2009 on protection of the fundamental rights of the Afro-descendant population that has been the victim of forced displacement.[207] The precautionary measures consist in the immediate and indefinite suspension of the court order of eviction against the members of that community, which had been issued by the Juzgado Promiscuo of the Riosucio Circuit, in Chocó Department, and the adoption of protective measures for the Caracolí community, in consultation with the community, within the framework of the provisional measures adopted by the Inter-American Court of Human Rights. The Constitutional Court recognized these communities as subject to enhanced constitutional protection, by mandate of the Colombian Constitution, and the international obligations of the Colombian State in the area of human rights and international humanitarian law.[208] The Commission values this decision of the Constitutional Court and will continue to observe compliance with the provisional measures issued by the Inter-American Court.
119. In judgment T-025 of 2004, the Constitutional Court recognized that the Afro-descendant population qualified as subjects for special constitutional protection, thereby justifying “the adoption of measures for positive differentiation, which are adapted to their situation of special vulnerability and defenselessness, and which, through preferential treatment, are conducive to ensuring the effective exercise of their rights.” Similarly, in January 2009, the Constitutional Court issued order 005-09 for the protection of the fundamental rights of the Afro-descendant population that are victims of forced displacement, within the framework of the unconstitutional state of affairs declared in judgment T-025 of 2004.[209] The Commission values the fact that the Constitutional Court conducted an exhaustive analysis of the need for a differentiated approach that takes into account the diversity of the displaced Afro-descendants. In this regard, the Constitutional Court specified that the fundamental rights of the members of Afro-descendant populations have been violated with displacement, as they are “specially protected groups by virtue of the precarious conditions confronted by the persons subject to forced displacement.”[210]
120. In cited case law, the Court has recognized the international commitments[211] of the state in the area of international human rights and humanitarian law, which “require the authorities to adopt a preventive approach to forced displacement that is sufficiently differentiated and specific that it will have an impact on the underlying causes of this phenomenon and its disproportionate effect on Afro-descendant communities and their members.”
121. The Constitutional Court recognized the lack of preferential, differentiated assistance to these people and ordered the various government institutions to implement the relevant policies to ensure that the displaced Afro-descendant population can effectively exercise its fundamental rights.[212] The Commission values this decision of the Constitutional Court and will follow up on the progress made in implementing its orders within the time periods stipulated by it.[213]
122. The Commission observes that despite the legislative and jurisprudential efforts made by the state, there are still obstacles to the full, effective exercise of the rights of indigenous peoples and Afro-Colombian communities. The impact of displacement on the Afro-descendant and indigenous populations should be given special attention by the agencies responsible for implementing the programs to assist the displaced population in its efforts to attend to its specific needs.
IV. USE OF INTELLIGENCE TECHNIQUES AGAINST HUMAN RIGHTS DEFENDERS, COMMUNITY LEADERS, AND JOURNALISTS
123. In February 2009, the press disclosed that the Administrative Department for Security (DAS) had intercepted the telephone calls of a large number of public figures, including members of the Executive, Legislative, and Judicial Branches, members of political parties, human rights defenders, and journalists, among others.
124. In response, the IACHR issued Press Release No. 9/09, in which it expressed its concern over intelligence operations in Colombia and urged the authorities to investigate the facts to determine the responsible parties.[214] Subsequently President Uribe announced his decision that the National Police and not DAS would be responsible for court-ordered wire-tapping.[215] After the information on intercepted telephone calls was uncovered, the DAS Director of Intelligence resigned.[216]
125. In July 2009 the Commission received information on the creation under DAS of a Special Strategic Intelligence Group, known as “G3,” that, inter alia, would conduct intelligence operations on activities linked to litigation of international cases and on international contacts of organizations engaged in the defense of human rights. In addition, information was published that, in that context, the G3 had conducted an intelligence operation on the occasion of the visit of an IACHR delegation, headed by former Commissioner Susana Villarán, to the city of Valledupar in 2005 to “determine the cases studied by the Rapporteur and the testimony presented by the NGOs, in addition to the lobbyist group they support to exert pressure for condemnation of the state.”
126. On the basis of this information, the IACHR, pursuant to the powers and obligations established in Articles 41 and 43 of the American Convention on Human Rights, requested the state to provide information on intelligence operations by the Administrative Department for Security (DAS) involving IACHR operations related to the Republic of Colombia. In its request, the IACHR indicated that the information, apparently based on steps taken in the context of judicial investigations, is a matter of serious concern to the IACHR, since on the one hand it involves compliance with rules governing on site visits by the IACHR according to which the IACHR should be guaranteed the freedom to conduct private interviews with persons, groups, entities, or institutions, and on the other it has to do with the state’s commitment to comply in good faith with the purposes of the American Convention and other treaties of the inter-American system.
127. Specifically, the IACHR requested the government for detailed information on all of the intelligence operations conducted by state agencies regarding members of the IACHR and the staff of its Executive Secretariat, the objectives of the intelligence operations of state agencies regarding the IACHR and the staff of the Executive Secretariat, a description of the destination and use of the report resulting from all intelligence operations conducted by government agencies regarding members of the IACHR and the staff of its Executive Secretariat, and investigations conducted by the Office of the National Prosecutor General [Fiscalía General de la Nación] and the Procuraduría General de la Nación on intelligence activities related to IACHR activities involving the Republic of Colombia, including specific information on the proceedings initiated against officials involved and their current status. The Commission made the information available to the OAS Secretary General and the Permanent Council, so that they could adopt relevant measures.[217]
128. In response, the state indicated that “the alleged illegal intelligence activities carried out by persons linked to the Administrative Department for Security are the subject of both criminal and disciplinary judicial proceedings being conducted by organs independent of the Executive Branch with the full backing of the national government.”[218] It further stated that “to date, among the cases heard that are part of both criminal and disciplinary investigations, there are no cases referring specifically to the Inter-American Commission on Human Rights, and there are no known orders regarding its officials or members,” and it explained that its main objective was to clarify the facts, to identify the responsible parties, and to impose sanctions, in order to guarantee respect for and the continuity of the government policy to comply with its obligations under conventions with different international organizations.[219]
129. Subsequently, the Ministry of Foreign Affairs of the Republic of Colombia issued a press release in the following terms:
1. At the request of the government, the Office of Prosecutor and the Procuraduría General de la Nación, completely autonomous entities independent of the Executive, opened criminal and disciplinary investigations on this and other cases of alleged irregular activities of DAS staff members. 2. On this case, the national government has with absolute transparency provided all the necessary cooperation to the Prosecutor’s Office in its investigative processes. 3. At the initiative of the President of the Republic, administrative measures were adopted within the Administrative Department for Security–DAS—and the entity is currently undergoing reorganization. 4. The government rejects and condemns any type of activity by government employees that violate rights and hamper the exercise of the freedoms of persons or organizations, and it expects the investigations to be brought to a prompt conclusion and the responsible individuals to be identified. 5. The government indicates its respect for the work performed by international organizations in its country, and in particular the Inter-American Commission of Human Rights.[220]
130. Together with intelligence operations against the IACHR, an issue of special concern to the Commission in 2009 was the use of intelligence mechanisms against human rights defenders, social leaders, and journalists, among others. The IACHR received information describing activities carried out by the “G3,” including “pursuit of organizations and persons in opposition to government policies, with a view to restricting or neutralizing their action.” As indicated above, in its Press Release No. 9/09, the IACHR expressed its concern in this regard and urged the authorities to investigate the facts and determine the responsible parties, as well as to impose the corresponding sanctions. According to information that is public knowledge, the Prosecutor’s Office partially canceled the investigation into DAS intelligence activities and decreed the release of its former head of intelligence and former director of counter-intelligence, due to procedural errors.[221] The IACHR will continue to follow up on measures directed at providing judicial clarification of the facts.
131. At a hearing held in November 2009 in the framework of the 137th Regular Session of the IACHR, civil society organizations reported on the intelligence activities of which members of the “José Alvéar Restrepo” Lawyers’ Collective (CAJAR) have been the target. In that context, they said that the DAS intelligence files contained organizational charts with detailed information about the members of CAJAR, including their names, photographs, the positions they held, fingerprints, and résumés. The DAS is also said to have investigated the “private lives, property, psychological profiles, ideological tendencies, weaknesses, strengths, and vices” of the CAJAR members. They said that they and their families have been followed and kept under surveillance in public places and at work by undercover agents, who filmed and photographed them. They claimed to have been the target of acts of sabotage while travelling, given that DAS agents allegedly had detailed information on routes and destinations.[222]
132. During Its 137th Regular Session, the IACHR received information to the effect that the intelligence activities of “G3” reputedly targeting human rights defenders, journalists, and judicial officials were intended to collect strategic intelligence, identify risks and threats to the government and national security, carry out “offensive intelligence and psychological warfare” measures, and prosecute opponents of the government’s policies. These measures were part of a pattern of intimidation and harassment designed to neutralize or restrict activities of individuals and organizations with opposition leanings.[223]
133. In that context, the Commission received information that suggests that beneficiaries of precautionary measures granted by the IACHR who are also covered by the Protection Program for Human Rights Defenders were followed by members of the protective escort provided by the DAS. Those agents are said to have used confidential information from the Program to carry out intelligence activities and ordered the tapping of communication equipment.[224] In the State’s response, it says “the need to report and have information on its protected persons should not be regarded as surveillance, but as the performance of its functions.”[225] The Commission is concerned for the security situation of the beneficiaries of its precautionary measures and will follow up on the protection systems offered by the State.
134. The current Director of the DAS, Mr. Felipe Muñoz, was present at the hearings held during the 137th Regular Session of the IACHR and provided information on criminal prosecutions and disciplinary measures instituted to get to the bottom of the illegal intelligence activities conducted by the DAS. He also said that the process has begun of abolishing the entity and creating a new civilian intelligence agency. The IACHR also held a meeting with the Vice President of Colombia, Francisco Santos Calderón, at which it reiterated its concern at the illegal intelligence activities and urged the government to take judicial steps to clear up the facts.
135. According to the information received, in response to the complaints of illegal activities by the DAS the Attorney General ordered a special group to be set up to investigate the facts. This group made a number of visits to the DAS and seized intelligence documents. The State said in its observations that as soon as the information gathered by “G3” was located, the director of DAS personally called the Office of the Attorney General and delivered 104 files.[226] According to publicly known information, a substantial amount of evidence on these activities was illegally removed from the institution some weeks before the visit by representatives of the Office of the Attorney General. The State said in its observations that DAS has always cooperated with the Office of the Attorney General in the investigations prompted by these facts and that there has been significant progress in just 10 months.[227]
136. On March 5, 2009, Law 1288 of 2009 took effect. This law contains “provisions to strengthen the legal framework that allows organizations to conduct intelligence and counter-intelligence activities, to fulfill their constitutional and legal mission, as well as other provisions.” In its analysis for 2008, the IACHR mentioned the state’s reference to the law approved in December 2008, to the effect that its purpose is it “to strengthen and create new guarantees for citizens, keep information confidential, and protect public servants who work in the intelligence-gathering area.”[228] The state spoke of this law as a step towards reorganizing the intelligence services.
137. Nevertheless, the Commission has received information establishing the unsuitability of the Intelligence Law (Law 1288 of 2009) “for eradicating the serious risks to human rights defenders and community leaders who are persecuted and harassed by intelligence agencies, […] not only due to insufficient declarations of principle and the absence of mechanisms to make them effective, but also because […] it strengthens the same arrangements that gave rise to the excesses and abuses of the security organizations.”[229] More specifically, the Commission is concerned over the lack of mechanisms to ensure that persons on whom intelligence is collected have access to it and can therefore correct or update it, or, if applicable, remove the information from the intelligence files. Also, the Commission has become aware of clandestine investigations against human rights defenders. It has been pointed out that “two of the distinctive aspects of cases against defenders are the use of false testimony of former combatants and the use of inadmissible intelligence files.”[230]
138. In September 2009, the United Nations Rapporteur on the Situation of Human Rights Defenders, Margaret Sekaggya, paid a visit to Colombia. In statements made at the end of her visit, she concluded that “patterns of harassment and persecution of human rights defenders, and frequently of their families persist […] and it appears that some of these violations are attributed to members of the guerrilla, new illegal armed groups, and paramilitary groups which, according to the human rights defenders, have not been dismantled.” She further reported that “one basic reason for the lack of security of human rights defenders has to do with the fact that they are systematically singled out and stigmatized by government officials.”[231]
139. In view of this situation, the IACHR reiterates its recommendation contained in its Report on the Status of Human Rights Defenders in the Americas[232] that effective measures must be urgently adopted, in consultation with the interested parties, to protect the life and safety of the human rights defenders being threatened. In the State’s observations, it reports the increasing importance assigned by the Human Rights Unit of the Prosecutor General’s Office to cases in which the victims are human rights defenders, and notes that to date 26 investigations have been launched, which have implicated 31 persons, and that in addition there have been 12 convictions of 27 individuals.[233]
140. The IACHR values the high-level treatment that the government has accorded to the illegal activities of the DAS. Having said that, the Commission remains deeply concerned and will continue to monitor the judicial measures to clarify the facts, the creation and mandate given to the new intelligence agency, and the permanent cessation of these illegal activities by all government agencies
V. FREEDOM OF EXPRESSION[234]
141. During the year 2009, the IACHR continued receiving information about the exercise of freedom of expression in Colombia. The following section sets forth some the advances and current challenges in this subject area.
A. Advances in the area of freedom of expression
142. The Commission observes with satisfaction the advancement of some judicial investigations of assassinations of journalists. In January 2009, the Office of the Attorney General of the Nation sentenced the former Mayor of Barrancabermeja, Julio César Ardila Torres, and two other former functionaries of the Mayor’s Office, to 28 years in prison as the masterminds of the murder of the journalist José Ementerio Rivas, which occurred in 2003. According to the judicial body, Julio César Ardila paid 150 million pesos to paramilitaries in the zone to assassinate the journalist, motivated by the constant accusations made by José Rivas against the former official of having links to the AUC.[235]
143. In April of 2009, the Criminal Court of the Specialized Circuit of Quibdó, department of Chocó, sentenced Franklin Isnel Díaz Mosquera, alias “Juancho,” to 34 years in prison as the perpetrator of the assassination of the journalist Elacio Murillo Mosquera. The murder was carried out in 2007 and the masterminds have still not been identified. According to the judgment, the journalistic denunciations by Elacio Murillo about the actions of paramilitary groups in the zone motivated the crime.[236]
144. The Council of State condemned the Nation for the murder of the journalist Henry Rojas Monje, which occurred in 1991. Henry Rojas, correspondent with the newspaper El Tiempo in Arauca, was murdered by two members of the National Army. According to the judgment of March 24, 2009, the State’s responsibility arose from the fact that the soldiers who killed the journalist were public functionaries. However, this decision questioned the impunity for this crime, since the masterminds were not identified.[237]
145. In voluntary statement before the Unit on Justice and Peace, the demobilized paramilitary Jorge Enrique Ríos, alias “Sarmiento,” confessed to having assassinated the journalist Flavio Iván Bedoya, on April 27, 2001. According to Jorge Enrique Ríos, the order to assassinate Flavio Bedoya arose from an interview the journalist had done with the commander “Marcos,” head guerrilla of the FARC.[238] The Commission observes that in this process a definitive decision has not yet been adopted.
146. On the other hand, the Commission emphasizes that in March of 2009, the Constitutional Court reiterated its jurisprudence in the area of rectification, according to which opinions are not rectifiable, since they are protected by the right to freedom of expression and opinion.[239] Additionally, the Commission notes that the judgment of the Constitutional Court establishes that journalists will not be criminally responsible for information they make public about some persons who are judicially absolved of the acts that are reported. This ruling modifies the previous situation, in which a person accused of defamation could not absolve him- or herself, even if the truth of his or her affirmations was proven, if it involved facts that were the object of a judgment of absolution or closure of the investigations.[240]
147. In this respect, Principle 10 of the Declaration of Principles indicates that:
[p]rivacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.
148. The Commission notes that through a decision of the Constitutional Court, constitutional protection of the confidentiality of sources was authorized. Concretely, in response to journalistic denunciations made by the Diario del Huila, which linked a Senator of the Republic with alleged irregular activities, the Senator demanded that the media reveal its sources, considering that the information threatened his good name and honor. In this respect, the Court considered that “in principle and while the legislator does not establish a clear, reasonable, necessary, and proportionate disposition to the contrary, the privacy guaranteed by Article 74 of the Constitution is not subject to limitations.”[241]
149. In this respect, it should be noted that Principle 8 of the Declaration of Principles on Freedom of Expression states that “[e]very social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”
150. The Commission takes note of the advances in the area of contracting and assigning official publicity in Colombia. In Cartagena, department of Bolívar, the implementation of the norms issued in 2008 has continued, creating an official committee and establishing a series of criteria for the contracting of official publicity. In the same vein, during 2009, the government of Caldas issued a decree with similar characteristics and has begun its implementation.[242] In this respect, it is fitting to recall that Principle 13 of the Declaration of Principles states that the arbitrary and discriminatory assignation of official publicity “with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law.”
151. On the other hand, the Commission recognizes the importance of the continuation of the Program for the Protection of Journalists of the Ministry of the Interior and Justice. Nevertheless, it expresses its concern over possible delays in the implementation of protective measures and judicial orders regarding this point that have been issued against government officials in charge of this public policy.[243]
B. Assassinations, attacks, threats, and illegal detentions of journalists
152. The Commission deplores the assassinations of journalists that occurred in 2009. In the municipality of Patía, department of Cauca, José Everardo Aguilar of Radio Súper was assassinated on April 24, 2009, when an unidentified individual entered his residence and shot him several times. José Aguilar was a journalist recognized in his municipality for his criticism and denunciations of corruption at the local and departmental levels.[244] Three months later, the Police reported that they had captured the perpetrator of the crime.[245] In this regard, in a communication of October 6, 2009, the State informed the Office of the Special Rapporteur for Freedom of Expression that the murder perpetrated against the communicator was strongly repudiated by the National Government and that the competent prosecutor’s office had already opened an investigation in which the adoption of special rules was requested given the “particular situation of the victim and the gravity of the acts.” Finally, it reported that there was no request for protection on behalf of the murdered journalist found in the database of the Program for the Protection of Journalists and Social Communicators.
153. On September 22, 2009, in the municipality of Supía, department of Caldas, Diego Rojas Velásquez, a reporter with a community channel, was assassinated.[246] According to the information received, Diego Rojas was working for the community channel Supía TV when he received a telephone call related to the coverage of a story in the municipality of Caramanta, department of Antioquia. The information adds that the journalist left the channel at around 6:30 p.m. and was intercepted a few blocks away by a group unknown individuals who fired four shots at him, killing him immediately. According to the information received, the local authorities stated that they did not know of any threats against the life of the community journalist.
154. On December 13, 2009, the State said that according “to statistics as of October 31, 2009, from the Observatory […] of the Presidential Human Rights Program, Office of the Vice President of the Republic,” during that period “there [had] only been the homicide of [José Everardo Aguilar,] who worked for Radio Súper.”[247]
155. The Commission notes with concern that some judicial investigations of assassinations of journalists have been closed without any results or have been paralyzed after some advances.[248] The IACHR exhorts the State to investigate these crimes, sanction those responsible proportionately, and make reparations to the victims. The state of impunity for crimes against journalists continues to be especially serious.
156. On this matter, the State said on December 13, 2009, that the National Human Rights Unit had launched 48 investigations into crimes against journalists. According to the State, “these investigations have implicated 38 persons, and there have also been 17 convictions in 13 verdicts.”[249]
157. In this sense, it recalls that Principle 9 of the Declaration of Principles on Freedom of Expression states that 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. It is the duty of the State to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.”
158. The Commission was also informed that there were at least 40 cases of journalists threatened for reasons presumably related to their work and that these were concentrated in the departments of Atlántico, Valle del Cauca, Córdoba, and Huila.[250]
159. According to information received by the Commission, in Barranquilla, department of Atlántico, grave threats against communicators had been presented, by means of a pamphlet presumably created by the illegal armed group “Águilas Negras.”[251] Subsequently, the reporters José Granados, of the newspaper El Heraldo,[252] and Daniel Castro, of the newspaper El Sol, received intimidating telephone calls. Luis Camacho Montaño, of the newspaper La Libertad, was assaulted and threatened by various men who approached him on the street.[253]
160. On the other hand, the station Radio Diversia, belonging to the LGBT community of Bogotá, was the victim of a robbery of equipment and later of threats, which were received through email. Carlos Serrano, director of the station, felt it was necessary to leave the country temporarily. Apparently, the threats were made by “social cleansing” groups.[254]
161. With respect to the Radio Diversia case, on December 13, 2009, the State said that “the Office of Indigenous, Minority, and Roma Affairs of the Ministry of Interior and Justice did a technical study on the level of risk and degree of threat posed by the National Police, finding it ‘normal,’ and therefore the case was referred to the Committee for Rules and Risk Assessment–CRER of the Program for Protection of Journalists and Media Workers in the meeting of September 28, 2009, at which it was recommended that four (4) Avanatel communication devices be provided for Nicolay Paulina Duque Aricapa, Carlos Serrano, Laura Giselle Vargas La Torre, and Liceth del Carmen Rochel Páez.” It also reported that the National Police had been asked to provide “preventive security measures around the station.”[255]
162. The Office of the Special Rapporteur also learned that the president of the Inter-American Press Association (IAPA), Enrique Santos Calderón, had been warned of a supposed plan to attempt to kill him, which was discovered by Colombian intelligence organs. The attempt was also planned against Juan Manuel Santos, at that time the Minister of Defense.[256]
163. According to information received, the columnist and writer Gustavo Álvarez Gardeazabal was attacked and threatened by unknown individuals who entered his residence and stole part of his journalistic material. According to Gustavo Álvarez, six armed men entered his house in Tuluá, Valle del Cauca, bound and aimed firearms at the journalist and his maid, searched the journalist’s documents and archives, and took away computers and cellular telephones. It is worth reiterating that Principle 9 of the Declaration of Principles on Freedom of Expression states that intimidation and threats against journalists “violate the fundamental rights of individuals and strongly restrict freedom of expression.”
164. On the other hand, the Commission learned of new acts of aggression against journalists by members of the Police and private individuals. Specifically, in 2009, the following journalists, among others, were attacked in different circumstances: Emilio Castrillón, of the newspaper El Pilón of Valledupar, Cesar,[257] Luisa Alario Solano and Hernando Vergara, of the newspapers Q' Hubo and El Heraldo, also in Valledupar,[258] and Álvaro Miguel Mina, of Caracol Radio in Cali, Valle del Cauca.[259]
165. The Commission notes with concern the possible illegal detention of Hollman Morris, director of the program Contravía, and Camilo Raigozo, a collaborator with the weekly Voz, by the National Army. The incidents occurred in February of 2009, when the reporters were returning from obtaining images and conducting interviews with several captives of the FARC minutes before they were liberated. The journalists were held for several hours in the municipality of Unión Peneya, department of Caquetá, during which time they were recorded with a video camera by an agent of the Division of the Judicial Police (SIJIN). According to the information received, they were also ordered to hand over their journalistic material, which the communicators refused to do. The journalists were able to leave after mediation by the regional office of the Human Rights Ombudsman.[260]
166. In relation to the mentioned incident, in addition to other declarations of high-ranking government officials, on February 3, 2009, the President of Colombia, Álvaro Uribe, stated in a press conference that Hollman Morris “[shielded] himself with his condition as a journalist to be a permissive accomplice of terrorism, […], one thing are those friends of terrorism who function as journalists, and another thing are the journalists.” The President added that Hollman Morris “took advantage […] of his situation as a journalist, […] and had a terrorist party in an alternative location to that of the liberation of the soldier and the police officers, last Sunday.”[261] The President referred to the journalist Jorge Enrique Botero in similar terms. According to the information received, after the declarations by the authorities, Hollman Morris received several threatening calls. On previous occasions, the journalist had to leave the country as a result of serious threats against his life. Hollman Morris has been the beneficiary of precautionary measures from the IACHR since 2000.
167. In this context, the Special Rapporteur for Freedom of Expression and the Rapporteur of the United Nations for Freedom of Opinion and Expression, on February 9, 2009, issued a joint press release in which they expressed their concern over the recent declarations against journalists by high-ranking officials of the Colombian government.[262] As stated by the IACHR, this type of statements not only increases the risk to those who practice journalism or defend human rights, “but also could suggest that that the acts of violence aimed at silencing them have, in some way, the government’s acquiescence.”[263]
168. As the Commission has reiterated, in these cases, the State must not only exercise diligently its duty to guarantee, but also it has to avoid increasing the level of risk to which journalists are exposed. In this connection, the IACHR 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.[264] 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.[265] 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. 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”[266].
169. In light of the above, when the existence of stigmatizing statements would have increased the level of risk, the authorities must adopt all the necessary measures to decrease it, among which, the explicit and public recognition of the legitimacy of those who exercise a critical and independent journalism. Also, the Commission deems it pertinent to remind the State once more that high ranking officials must refrain from giving public statements that stigmatize critical journalists and generate an environment of intimidation that affects freedom of expression in the country. This obligation is particularly important in a context of polarization and armed conflict like the Colombian.
170. As regards the Hollman Morris case, in a note of December 13, 2009, the State said that “Mr. Morris has received precautionary measures requested by the [IACHR] and despite the extraordinary risk to his life he took an extreme risk, without telling the State from which he demanded protection.” The State adds that the President of the Republic said on February 3, 2009: “as the competent authority said this week, journalist Morris did not carry out his obligations as a person protected by the [IACHR]. The Government of Colombia has given him all the protection, and he ignored his duties. For example, he shook his bodyguards. We are required by the [IACHR] to protect journalist Morris, as we have protected so many Colombians, because this security has been democratic. Our effort has been for all Colombians, whether friends or opponents of the government. Journalist Morris did not carry out his obligations. This is a serious matter. It is one of the accusations that must be made against journalist Morris.” Finally, the State said that “Mr. Morris was not detained, ‘and his journalistic materials’ were not confiscated by police agents as the IACHR was erroneously told.” [267]
C. Illegal interceptions of journalists
171. The Commission notes with concern the public information about illegal interceptions and surveillance of journalists, judges, and opposition politicians by the DAS, an entity dependant of the Presidency of the Republic.
172. As mentioned above, the news of wiretapping was revealed in an article in Semana magazine published in February 2009.[268] Two years earlier this magazine had denounced the possible infiltration of the intelligence agency by paramilitary groups.
173. In 2008, the Constitutional Court of Colombia had found that DAS security agents assigned as part of the protection measures for a journalist critical of the government had recorded intelligence about her movements.[269] In this decision, the Court ordered that the journalist be given all the information on her in the possession of the security agency that was not legally confidential and that the necessary corrective measures be adopted in the program for protection of journalists.
174. Furthermore, other journalists who were beneficiaries of precautionary measures granted by the Commission and who have had access to the judicial investigation underway on these facts have said that the DAS agents assigned to protect them were in charge of following them.[270] They have also reported that the intelligence agents were charged with monitoring their telephone calls, e-mails, and movements, in order to know in detail all about their journalistic activities. They said that DAS officials made a note of the contents of their articles and the sources with whom they talked.[271] They say that according to the investigation carried out by the office of the Attorney General they were regarded as “targets” against whom it was necessary to pursue “offensive intelligence” activities because of their dissident or critical ideas and opinions. By the same token, important organizations that champion freedom of expression have issued statements and reports in which they denounce the fact that journalists should have been spied on by the very persons whom the State assigned to protect them.[272] In this connection, the magazine that broke the news of the scandal said that the DAS secret agents who leaked the information about the existence of illegal wiretaps told them that the purpose of the surveillance and eavesdropping was to know in detail not only about the investigations that the journalists were pursuing but the information sources on which they relied.[273]
175. According to local organizations[274] and communications media,[275] at least 20 journalists have been victims of systematic interceptions and surveillance and on them there would be annotations in the intelligence archive in which the secret police would have evaluated and qualified their critical opinions or the coverage of relevant news for the government. Also the Commission is concerned that some journalists, like Hollman Morris and Daniel Coronell,[276] would have received strong and stigmatizing statements on part of high ranking public officials due to a critical editorial line with respect to the current government. According to the information received, some of the journalists that have been subject to systematic interceptions and surveillance are the following: Hollman Morris, director of the program Contravía; Claudia Julieta Duque, of Radio Nizkor; Daniel Coronell, Ignacio Gómez, and Juan Luis Martínez, of Noticias Uno; Norbey Quevedo, investigations editor of El Espectador, and Ramiro Bejarano, a columnist with this newspaper; Alejandro Santos, editor of Semana; Edulfo Peña and Jineth Bedoya, journalists with El Tiempo, and Salud Hernández, a columnist with this media; Félix de Bedout and Julio Sánchez Cristo, of W Radio; Darío Arizmendi, director of 'Caracol Radio' and Fabio Callejas of the same station; Carlos Lozano, editor of the weekly Voz; Jenny Arias and Vicky Dávila, of RCN Radio y Televisión; Yamid Amat and Marilyn López of the public channel CM&.
176. In this sense, it is recalled that Principle 8 of the Declaration of Principles on Freedom of Expression states that “[e]very social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.” For its part, Article 9 recalls that “[t]he 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. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.” Finally, Principle 13. states that “[t]he means of communication have the right to carry out their role in an independent manner. Direct or indirect pressures exerted upon journalists or other social communicators to stifle the dissemination of information are incompatible with freedom of expression.”
177. In consequence, the Commission exhorts the Colombian Government to adopt all the corrective measures necessary to stop illegal interceptions and surveillance of journalists by intelligence bodies; to move forward adequately all the administrative, disciplinary, and penal proceedings aimed at establishing what happened, to identify, and to sanction those responsible; and to adopt all the mechanisms to ensure the rights to privacy and personal integrity of communicators, as well as the confidentiality of sources. In this point the Commission notes that the most important measure to avoid criminal acts on part of State agents is the public recognition of the legitimacy of the activities of critical journalists. In particular this recognition is of fundamental importance with respect to those journalists that, in public statements of high ranking officials of the executive power, have been associated with criminal acts for the simple fact of having a critical editorial line with respect to the government[277].
178. With respect to these facts, the State said the following on December 13, 2009:
in general, the Colombian State wishes to respectfully call the Commission’s attention to various aspects in the draft report. In the section of the document dealing with the Department of Administrative Security–DAS–, the primary source of information is media reports that, although of some value, in many cases lack all necessary information for a complete understanding of illegal wiretapping. The main source is the Revista Semana, which has dealt with this topic this year. Without minimizing the value of media coverage, it seems that a report by an international organization that is evaluating the situation in a State regarding subjects of great complexity such as this one should also cite official sources that would facilitate balanced treatment of the topic with the necessary depth.[278]
179. In this regard, the IACHR wishes to note that the primary source of information to report these extremely serious facts was in fact the Revista Semana, because it was the magazine that denounced the systematic surveillance and harassment suffered by several journalists.[279] The text of this section of the Annual Report was sent for the State’s information before publication, so that it could supplement or if necessary refute the information presented there. In the State’s note of December 13, 2009, it said the acts reported are not part of an “institutional policy” and asked the IACHR to take into account all the measures taken to prevent and punish them.[280] As noted above, in the framework of the IACHR’s 137th period of sessions, the current director of DAS reported on criminal and disciplinary cases underway to clarify the illegal intelligence activities carried on by that agency, as well as the start of the process of shutting that agency down and creating a new civil intelligence entity.
180. Finally, with respect to the right of journalists to know the illegal information obtained by the DAS while carrying out its protective duties, the Commission learned that during 2009, the journalist Claudia Julieta Duque had to initiate contempt proceedings as a result of the failure to comply with the judicial order issued by the Constitutional Court, in which it ordered the Government to give her all the information about her contained in intelligence files that were not subject to express legal reservations. The judicial order to supply information was based on the confirmation of the existence of information illegally obtained by members of the journalist’s security detail, belonging to the DAS.[281] According to information officiously sent by the Director of the DAS to the Special Rapporteurship, no information about the journalist exists in the installations of that institution.
181. On December 13, 2009, the State said that on September 30, 2009, the Council of State issued an order of revocation declaring that “the Director of DAS carried out all orders of protection (tutela) judgment T-1037 of 2008 since he assumed office on January 22, 2009, and therefore was not guilty of contempt (desacato).”[282]
182. The Commission has repeatedly recognized the importance of the Program for the Protection of Journalists and Social Communicators implemented by the Colombian Government. Nevertheless, the Commission expresses its concern regarding the facts mentioned above and calls upon the Ministry of the Interior and Justice to take the corrective measures necessary and to guarantee the effective protection of journalists at risk.
183. The Commission underlines the duty of the states to prevent and investigate actions that limit freedom of expression. In this sense, Principle 5 of the Declaration of Principles establishes that “[p]rior 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. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.”
184. Additionally, Principle 3 of the Declaration of Principles on Freedom of Expression states that “[e]very person has the right to access to information about himself or herself or his/her assets expeditiously and not onerously, whether it be contained in databases or public or private registries, and if necessary to update it, correct it and/or amend it.”
D. Right to access to information
185. The Commission expresses its concern about some articles of the Intelligence Law (Law 1288 of 2009). On the one hand, Article 21 delegates to the Executive Branch the power to define concretely what information can be subject to reserve. In this respect, the law establishes that “documents, information, and technical elements” of the “organs that carry out intelligence and counterintelligence activities”—which are not defined by the law—have the character of reserved information “according to the degree of classification warranted in each case,” delegating to the Executive Branch to establish this “degree of classification.”[283] The same norm delegates to the Executive Branch the power to define the time periods of reserve within the maximum of 40 years established by the law itself. On this point, the State said on December 13, 2009 , that “although the statement is true […] that information can be declared reserved for up to 40 years, it must be taken into account that said law also prescribes limits on the State’s intelligence and counterintelligence activities for respect of human rights; it provides that these activities must be in strict compliance with the Constitution, legislation, international humanitarian law, and especially respect for the principle of reserved information, which guarantees the protection of rights to reputation, good name, personal and family privacy, and due process.”[284]
186. In this respect, the Commission permits itself to recall that Principle 4 of the Declaration of Principles on Freedom of Expression states that “[a]ccess to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.”
187. Additionally, the Commission expresses its concern about the legal norms that establish the obligation to maintain the absolute confidentiality of information classified as reserved, having as its only exception the duty to denounce “the presumed commission of a crime against humanity by a public servant who carries out intelligence and counterintelligence activities.”[285] This exception would require a person with knowledge of grave violations of human rights that cannot be classified as crimes against humanity or that have been committed by persons or functionaries who are not assigned intelligence functions to abstain from denouncing them or reporting them to competent authorities under penalty of being criminally responsible for failing to comply with the duty of confidentiality.
188. In this respect, the Commission permits itself to recall that as it has previously indicated in its 2008 Annual Report, in which it recalled that freedom of expression includes the right of public functionaries, including members of the Armed Forces and the Police, to denounce violations of human rights that they become aware of—which also constitutes compliance with a constitutional and legal duty that corresponds to them. The exercise of this manifestation of freedom of expression, which is vital for the preservation of the Rule of Law in the democracies of the continent, cannot be obstructed by the authorities nor can it be the cause of subsequent acts of retaliation against functionaries that made the denunciations. In terms of the Inter-American Commission
[…] the exercise of the right of freedom of thought and expression within a democratic society includes the right to not be prosecuted or harassed for one’s opinions or for one’s allegations about or criticisms of public officials. […] This protection is broader, however, when the statements made by a person deal with alleged violations of human rights. In such a case, not only is a person’s individual right to transmit or disseminate information being violated, the right of the entire community to receive information is also being undermined.[286]
189. On the other hand, regarding Article 25[287] of the Law, as indicated by the Constitutional Court of Colombia itself,[288] the duty to maintain confidentiality is not applicable to those who, in the exercise of their right to freedom of expression, make denunciations publicly or privately before competent authorities, such as communications media or human rights defenders. The responsibility derived from the exercise of this right is always subsequent and must be derived from the existence of certain damage to a legal aim defined by law and necessary in a democratic society.
E. Judicial proceedings against journalists who denounce facts of public interest
190. During 2009, the Commission learned of various cases of journalists and communications media that were judicially charged for disseminating information about issues of great public interest. Some of these proceedings were initiated by a magistrate of the Superior Council of the Judiciary for publications about the alleged relationships of this official with individuals being prosecuted for serious criminal acts. Rodrigo Pardo, editor of the magazine Cambio, was nearly taken to prison for alleged disobedience of a protective judgment (fallo de tutela) that ordered him to rectify some statements made in a report about the magistrate in the magazine. Other journalists who have been accused by the magistrate are the editor of the magazine Semana, Alejandro Santos – whose case gave rise to the Constitutional Court’s judgment, mentioned at the beginning of this section--; Daniel Coronell and María Jimena Duzán, columnists with this media; and Mauricio Vargas, a columnist with El Tiempo.[289]
191. In this sense, Principle 10 of the Declaration of Principles is reiterated, stating that
[p]rivacy laws should not inhibit or restrict investigation and dissemination of information of public interest. The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news.
192. On its part Principle states that “[p]ublic officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as “desacato laws,” restrict freedom of expression and the right to information.”
VI. PRESSURES ON THE JUDICIARY
193. During the final months of 2007, and in 2008 and 2009, a series of incidents that affected the work of high courts, and especially the Criminal Cassation Chamber of the Supreme Court of Justice, came to light. These incidents were accompanied by facts that suggest a situation of risk to justices and deputy justices of the Supreme Court who have been involved in clarifying cases linked to the so-called “parapolítica” or “parapolitics scandal”[290] [involving politicians suspected of collusion with paramilitaries].
194. In February 2009, accounts were published of DAS intelligence operations against Supreme Court justices (see IV above). Compiled press reports showed how Deputy Justice Judge Iván Velásquez, in charge of investigations of the parapolitics scandal, had around 1,900 calls intercepted, and that the President of the Supreme Court at the time, Francisco Ricaurte, and Justices Sigifredo Espinoza, Jaime Arrubla, María del Rosario González, and César Julio Valencia Copete had also had telephone calls intercepted.[291] After receiving this information, the IACHR learned that on February 25, 2009, the 23 justices on the Supreme Court met with the directors of the Police and DAS. It was learned that at that meeting, the justices spoke of their distrust in view of the monitoring and interception of their telephone calls.[292]
195. At a hearing held during the 134th Session of the IACHR, the petitioning organizations stated that various judges had experienced interception of telephone calls and constant monitoring so that the Executive Branch would know in advance any situation that may compromise it or any of its officials.[293] In its observations the State said that the national government has publicly apologized for the wiretapping of some of the high courts’ judges. It also expressed its support for investigations underway by the Prosecutor General’s Office to clarify these facts, and said “it has not been government policy to hide these situations, much less to encourage or sponsor them.”[294]
196. The judges responsible for investigating the parapolitical scandal, Iván Velásquez and María del Rosario González, beneficiaries of the Commission’s precautionary measures, were victims of death threats and acts of harassment. The Commission continuously monitors the security situation. On May 13, 2009, the IACHR requested the state to provide information on the situation reported by Supreme Court Justice César Julio Valencia Copete. Specifically, the Justice reported that his differences with the President of the Republic had put him “in serious and imminent risk as regards his life and personal safety.” The state responded that it had acted diligently in providing protection to the justice and said it was committed to the investigations into the allegedly intercepted telephone calls and monitoring of Valencia Copete.[295]
197. The State said in its observations that it has effectively satisfied the requirements for security of the Supreme Court Justices by appropriate internal mechanisms for the purpose, complying with obligations in the Constitution and conventions. It also said that the Director of the National Police has provided full guarantees for security and protection of the justices and their families, and has personally met the justices’ needs for protection, and they are participating directly in the implementation of the security plan. Finally, it said that the Prosecutor General’s Office has demonstrated a willingness and commitment to approve a special mechanism to follow up the protection system implemented for the judges’ security, if they so request. It has already been used in the cases of María del Rosario González and Iván Velásquez[296].
198. At its 137th Regular Session held in November 2009 the Commission took note of the concern of civil society organizations at the risk to which judicial officials are exposed, which could affect the independence of the judiciary. The State, for its part, says that the discussion before the Commission is primarily political, and is not consistent with the function and nature of the precautionary measures for the judges.[297] The Commission will continue to monitor this situation.
199. In September 2009, the Supreme Court of Justice decided to resume the investigations of politicians allegedly linked to paramilitary groups whose trials had been referred to the Office of the National Prosecutor General, in most cases due to rejection of jurisdiction. The Supreme Court stated as follows:
[…] as a rule in all those proceedings referred to the Office of Prosecutor by the Court, this legal entity (with the exceptions related to lack of a link between office and conduct), will reclaim jurisdiction, which it turned down by virtue of an interpretation that was revised as of September 1; however, the [Criminal Cassation] Chamber must in any event attend to the different procedural situations that arise at the time that the file is returned to the Court […].[298]
200. Thus the Court explained that the proceedings being conducted by the Prosecutor’s Office, such as gathering of evidence, remain fully valid, just like the decisions adopted to date by the different investigative and prosecuting entities, i.e., the Prosecutor’s Office and specialized judges, since “they were all executed within the framework of the powers that the Court at one point stipulated as part of its legitimate constitutional duty to interpret the legal system and particularly laws that have to do with criminal procedures.”[299] Between September and October 2009, the Supreme Court again took up the cases of Álvaro Araújo Noguera, Mario Uribe Escobar, and Rubén Darío Quintero.[300]
VII. CONCLUSIONS
201. The IACHR has stated that a lasting peace hinges on the non-repetition of crimes of international law, human rights violations, and serious violations of international humanitarian law, hence on clarification and redress of the consequences of violence through mechanisms to establish the truth of what happened, administer justice, and provide reparations for victims of the conflict. Colombia is still facing challenges in dismantling the illegal armed structures and in implementing the legal framework adopted for the purpose of prosecuting the crimes perpetrated during the conflict.
202. The IACHR is still concerned over the existence of non-demobilized holdouts in paramilitary structures, and the rearming and formation of new armed groups, and reiterates the need for the Colombian government to implement effective mechanisms designed to guarantee the dismantling of AUC structures and criminal gangs. The IACHR understands that over and above the established legal system, it is up to the state to play a key role and take on primary responsibility in guaranteeing the victims of crimes against international law effective access on equal terms to measures for comprehensive reparations, granted pursuant to the standards of international human rights law.
203. Moreover, the Commission is still concerned over the impact of violence on the civilian population, and especially on the most vulnerable groups, such as indigenous peoples and Afro-descendant communities, who require differentiated measures of humanitarian assistance. The Commission is also concerned about the attacks on human rights defenders and social leaders by armed groups operating outside the law and guerillas.
204. One issue especially preoccupying the Commission is the use of intelligence mechanisms against human rights defenders, community leaders, journalists, justice operators, international cooperation agencies, and international organizations. The IACHR will continue to follow up on the results of investigations for judicial clarification of the facts.
205. In view of these considerations, the IACHR recommends that the Colombian state:
1. Strengthen the work of the institutions called on to play a role in implementing the Justice and Peace law, especially units of the Office of the National Prosecutor General that perform a key investigative function, in terms of logistical support and security in order to ensure judicial clarification of the crimes perpetrated against victims of the conflict, and designate prosecutors specializing in sexual crimes or crimes involving children.
2. Strengthen mechanisms designed to protect and guarantee the security of victims of the conflict, witnesses, and human rights defenders who come forward to participate in the process of investigation and prosecution of the persons applying for the benefits of the Justice and Peace Law.
3. Bring the extradition of demobilized individuals under the Justice and Peace Law into line with the standards laid down by the Supreme Court of Justice of Colombia and by the Inter-American Commission and the Inter-American Court of Human Rights.
4. Adopt and implement cooperation agreements designed to ensure the holding and effective participation of extradited individuals in the proceedings that must be carried out in the framework of the Justice and Peace processes, as well as the rights of the victims to the truth, justice, and reparation.
5. Adopt and implement effective measures for the dismantling of armed structures operating outside the law and prevent emerging groups from gaining strength.
6. Strengthen mechanisms that ensure the prevention and investigation of possible extrajudicial executions and take all cases that may involve extrajudicial executions of civilians out of the military criminal courts and refer them to the regular courts.
7. Design, adopt, and implement effective policies that take into account the specific needs, in terms of 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, community and trade union leaders, and journalists, prevent their stigmatization and the undue use of intelligence mechanisms against them, and remove the risks affecting them through judicial investigation of acts of violence, harassment, and threats.
9. Adopt the necessary measures to ensure that judges and judicial operators can administer justice in conditions of security and independence, free from pressures of government entities and agents.
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Next] [133] The State also reported 10 meetings with representatives of the target population in the Committee on Rules and Risk Assessment (Comité de Reglamentación y Evaluación de Riesgos –CRER), which analyzed 362 cases of human rights defenders, providing opportunity for follow-up and dialogue to deal with cases with precautionary measures granted by the Inter-American Commission and provisional measures decreed by the Inter-American Court; four regional roundtables on prevention and protection from risks in 2009; meetings with the National Police and representatives of national and regional civil society organizations, in the framework of the ongoing institutional strengthening project for the National Police sponsored by MSD-USAID; roundtables for dialogue and social development with workers; and establishment of the Interagency Commission on Workers’ Human Rights. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 21-22. [134] Observatory of Human Rights, Office of the Vice-President of the Republic. Figures on the human rights situation and operational results of the security forces, comparing January-September 2008 and 2009. [135] Observatory for the Protection of Human Rights Defenders, “Open Letter to Mr. Álvaro Uribe Vélez, President of the Republic of Colombia: continued murders of trade unionists in Colombia,” July 28, 2009. [136] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 21. [137] The state indicated that the statute of limitations on homicide of trade unionists was made equivalent to that applied to genocide, forced disappearance, torture, and forced displacement, i.e., 30 years. The qualification for increased punishment was expanded in the case of any member of a labor organization, and the penalty was increased against any person who impedes or disrupts a legal meeting or the exercise of the right to strike, or the right of legitimate association or assembly, with fines ranging from 100 to 300 monthly minimum wages in force or arrest. DDH memorandum No. 33393/1734 of the Office of Human Rights and International Humanitarian Law of the Ministry of Foreign Affairs, Republic of Colombia, July 21, 2009. [138] Note DDH No. 33393/1734 of the Office of Human Rights and International Humanitarian Law, Ministry of Foreign Affairs of the Republic of Colombia, July 21, 2009. [139] IACHR, Press Release No. 11/09, “IACHR condemns murder of human rights defender in Colombia dated March 12, 2009. [140]Hearing on the Situation of Lesbians, Gays, Bisexuals and Transgender Persons in Colombia held on November 5 2009, in the framework of the 137th Regular Session of the IACHR. Available at http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2. [141] Inter-American Court, provisional measures requested by the Inter-American Commission on Human Rights regarding the Republic of Colombia, Case of Giraldo Cardona, Resolution of the President of the Court on October 28, 1996: “1. Request the Colombian Government to adopt, without delay, as many measures as necessary to protect the life and physical safety of Hermana Noemy Palencia, Islena Rey Rodríguez, Gonzalo Zárate, Mariela de Giraldo, and their two minor daughters Sara and Natalia Giraldo and to prevent irreparable damages to them, in strict compliance with the obligation to respect and guarantee human rights, pursuant to Article 1.1 of the American Convention on Human Rights.” The State says there is no evidence whatsoever that the actions were connected with the human rights defense activity of Ms. Islena Rey, and says that Islena Rey is the beneficiary of several security measures provided by the State. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 22. [142] Communication sent by the Proceso de Comunidades Negras (PCN) on October 23, 2009. [143] CODHES, Bulletin 75 of April 22, 2009. http://www.codhes.org/index2.php?option=com_docman&task=doc_view&gid=121&Itemid=50. [144] IACHR, Press Release 06/09, IACHR Condemns Murder of Indigenous Awá by the FARC, February 20, 2009. http://www.cidh.oas.org/Comunicados/Spanish/2009/06-09sp.htm [145] Thirteenth Quarterly Report of the Secretary General to the Permanent Council on the Mission to Support the Peace Process in Colombia (MAPP/OAS), October 19, 2009. [146] The State said that of the 562 humanitarian missions, 274 were prevention missions, 149 were for emergencies, and 139 were for repatriation. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 23. [147] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 23. [148] The orders or orders of the Constitutional Court of Colombia are available at: http://www.corteconstitucional.gov.co/relatoria/radicador/RADICADOR%20AUTOS%202009.php. [149] Constitutional Court, Order 008 of 2009, Judge Manuel José Cepeda, January 26, 2009, paras. 134-137. [150] The five criteria that led to declaration of an unconstitutional state of affairs are: “in the first place, the seriousness of the situation of violation of rights faced by the displaced population was specifically acknowledged by the same legislator in defining the ‘displaced’ status, and the massive violation of a variety of rights. In the second place, another element confirms the existence of an unconstitutional state of affairs related to forced displacement, and that is the high and increasing volume of protective legal actions brought by displaced persons to obtain different types of aid. In the third place, the accumulation of proceedings in suits filed for protection confirms this unconstitutional state of affairs, and shows that rights’ violations affect a large part of the displaced population, in many places in the country, and that the authorities have failed to adopt the required corrective measures. In the fourth place, the continued violation of these rights cannot be attributed to a single entity. In the fifth place, the violation of the rights of displaced persons is based on structural factors […] including the lack of correlation between what the laws provide for and the means to enforce them, which is seen most blatantly in the shortage of resources and institutional capacity to deal with the magnitude of the problem of displacement and to respond to it in a timely and effective way.” Constitutional Court, Judgment T-025 of 2008, Presiding Judge Manuel José Cepeda, January 22, 2004. Likewise, the Court ordered the director of Social Action to submit a progress report, effective October 30, 2009, detailing the measures adopted and implemented to correct the shortcomings identified in judgment T-025 of 2204 and the different follow-up orders/ orders, and on progress achieved in ensuring the effective exercise of rights. Constitutional Court, Order 008 of 2009, Judge Manuel José Cepeda, January 26, 2009, IX. Decision Second. [151] Article 7 of the Colombian Constitution: “The State recognizes and protects the ethnic and cultural diversity of the Colombian nation.”
[152]
Presentation of the National Indigenous Organization
(ONIC) to the
European Parliament
in April 2009.
In the State’s observations it said that official information in the
2009 Universal Periodic Review
(UPR) counts 84
indigenous groups and the police force counts 86.
Observations of
Colombia on the Draft Report of the Inter-American Commission on Human
Rights on the Country for 2009, December 13, 2009, p.
24. Another
source says that “[i]n the country there are officially 87 indigenous
peoples according to the DANE [National Administrative Department of
Statistics], and 102 peoples according to statistics of the National
Indigenous Organization (ONIC).” Available at: [153] According to the most recent population census (in 2005), 1,378,884 indigenous peoples reside in Colombia, accounting for 3.4% of the country’s population. At present there are 710 titled reserves or protected areas located in 27 departments and in 228 municipalities of the Colombian territory. The Commission points out the fact that the most recent population census of 2005 included the criterion of self-identification to establish the percentages of the indigenous peoples in Colombia. See: National Department of Statistics, Office of Census and Demography, Colombia One Multicultural Nation. Its Ethnic diversity, October 2006, available at: http://www.dane.gov.co/censo/files/presentaciones/grupos_etnicos.pdf. [154] National Planning Department, Office of Sustainable Territorial Development: "The indigenous peoples of Colombia at the threshold of the new millennium,” Bogota, 2004, page 33. According to the Planning Department, the most numerous peoples have between 149,827 members and 32,899. Other groups range from 14,000 to 26,000 members. There are 39 indigenous peoples with less than 1,000 inhabitants, and four peoples with less than 100; they are: Dujos with 98, Pisamira with 61, Makaguaje with 50, and Taiwano with 22 members. According to the National Indigenous Organization of Colombia (ONIC), 28 indigenous peoples have less than 500 inhabitants, 15 less than 200, and six less than 100. For 2001, the National Planning Department in Colombia estimated an indigenous population of 785.356 persons, a figure that accounts for 1.83% of the country’s total population. The Colombian State has established 710 indigenous reserves, with an approximate area of 32 million hectares, about 30% of the national territory, most of them as special conservation areas. See updated information for February 2006, Colombian Rural Development Institute - INCODER and UPR Commitment 81 in Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 24. [155] ONIC. Status of Human and Collective Rights of the Indigenous Peoples of Colombia: Ethnocide, Ethnic Cleansing, and Banishment. Report of the UN Special Rapporteur for the Rights of Indigenous Peoples, July 2009. [156] ONIC, Status of Human and Collective Rights of Indigenous Peoples of Colombia: Ethnocide, Ethnic Cleansing, and Banishment. Report of the UN Special Rapporteur for the Rights of Indigenous Peoples, July 2009.
[157]
Constitutional Court, Order 004/09, Judgment delivered by Judge Manuel
José Cepeda Espinosa,
[158]
Constitutional Court, Order 004/09, Judgment delivered by Judge Manuel
José Cepeda Espinosa, [159] Constitutional Court, Order 004/09, Judge Manuel José Cepeda Espinosa, January 26, 2009. The state reported to the Commission that on March 27, 2009, the Ministry of Justice instituted a permanent consultation mechanism with indigenous communities, for the purpose of complying with Order 004-09. Note VAM.DDH.OEA No. 46989/2268 of the Ministry of Foreign Affairs of Colombia dated September 17, 2009. As regards service to the displaced indigenous population, the State said that as of 2009, the Families in Action Program had benefitted 2,498,000 families, of which 327,000 are displaced families and 7,000 are indigenous families. UPR Commitments 57 and 58 in Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 24. [160] Report on Order 004 of 2009, Constitutional Court: Protection of the basic rights of persons and indigenous peoples displaced by the armed conflict or at risk of forced displacement, on the design and implementation of a guarantees program. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 24 and Annex. [161] Regional Indigenous Council of Cauca - CRIC/Health Program/Indigenous Association of Cauca AIC-EPS-I. Analysis of the health situation in 2007, 2008 and January-June 2009. The municipalities with the largest number of cases identified were Páez and Totoro with 16 cases, respectively. In most cases, these minors arrived with signs of physical abuse. Five deaths were identified or reported among these cases. [162] ONIC, Close to the arrival of the United Nations Special Rapporteur for Indigenous Peoples, systematic murders continue, July 17, 2009. Figures on the human rights situation and operational results of the security forces. [163] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 25 and 26. [164] According to the registered population of the Awá organizations (the Association of Traditional Indigenous Authorities, the Awá Indigenous Councils, the Indigenous Unit of the Awá People-UNIPA, and CAMAWARI, among others) there are more than 27,000 Awá indigenous people in Colombia today. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 31. [165] In a communiqué dated February 17, 2009, the FARC admitted responsibility for the murders of eight Awá indigenous persons, perpetrated on February 6, 2009. [166] IACHR, Press Release Nº 06/09 of February 20, 2009, “IACHR condemns murder of indigenous Awá by the FARC.” [167]IACHR, Press Release Nº 06/09 of February 20, 2009, “IACHR condemns murder of indigenous Awá by the FARC.” In addition, ONIC reported that: Floro Paí died on February 10, 2009 after walking on a mined field; Claudio Nastacuás and Ernesto Jiménez García were murdered on February 15, 2009 (after the massacre) the first allegedly by paramilitary groups, and the second by the National Liberation Army (ELN) ; José Hermes Criollo Guanga died on April 5, 2009 after walking in a mined field; and, Luis Alberto Cuasaluzan Canticuz and Ademelio Servio Bisbicus García were murdered on April 19 and May 11, 2009, respectively. ONIC, Close to the arrival of the United Nations Special Rapporteur for Indigenous Peoples, the systematic murders persist, July 17, 2009. [168] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 26. [169] ONIC, Close to the arrival of the United Nations Special Rapporteur for Indigenous Peoples, systematic murders continue, July 17, 2009.
[170]
United Nations Office of the High Commissioner for Human Rights in
Colombia (OACNUDH), “UN expert condemns murders of indigenous people
in Colombia,” August 31, 2009. Available at:
http://www.hchr.org.co/documentoseinformes/documentos/relatoresespeciales/2009/Comunicado%20Prensa%20
[171]
The United Nations Special Rapporteur on the Status of Human Rights
and Fundamental Freedoms of Indigenous Peoples, James Anaya, condemned
the murders in August 2009. He stated that: “the effective guarantee
of the human rights of indigenous peoples is profoundly linked to
their collective right to live in peace and security as separate
peoples, and not to be subjected to any act of violence. The
Rapporteur said that he hoped “that the Colombian authorities will
investigate the acts, punish the responsible parties, and compensate
the Awá people for the damage caused, in accordance with their
international human rights obligations.” Moreover, the Colombian
Office of the United Nations High Commissioner for Human Rights (OACNUDH),
pursuant to its observation mandate, gave special attention to the
situation of the Awá people, and particularly to this massacre, and
issued a series of recommendations to the state. Office of the
United Nations High Commissioner for Human Rights (OACNUDH), UN
expert condemns murders of indigenous peoples in Colombia. August
31, 2009. Available at:
http://www.hchr.org.co/documentoseinformes/documentos/relatoresespeciales/2009/Comunicado%20Prensa%20Pueblos% [172] Note VAM.DDH.OEA No. 46989/2268 of the Ministry of Foreign Affairs of Colombia, September 17, 2009. [173] The State reported that the Nariño Governor’s Office offered a reward of approximately $15,000 in addition to the $50,000 reward offered by the National Defense Ministry to citizens who report information leading to identification of the whereabouts of the responsible parties. Note VAM.DDH.OEA No. 46989/2268 of the Ministry of Foreign Affairs of Colombia, September 17, 2009.
[174]
Ministry of Defense, Press release of the Defense Minister on the
arrest of the alleged murders of the Awá people, October 6, 2009.
Available at:
http://www.cancilleria.gov.co/wps/portal/espanol/!ut/p/c1/04_SB8K8xLLM9MSSzPy8xBz9CP0os3gLUzfLUH9DYwN3d39z [175] Note VAM.DDH No. 54970/2579 from the Ministry of Foreign Affairs of Colombia, October 9, 2009. See. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 26. [176] Note VAM.DDH.OEA No. 46989/2268 from the Ministry of Foreign Affairs of Colombia, September 17, 2009. [177] Meetings held on 18 February 2009 in Pasto, 5 March 2009 en Barbacoa, Department of Nariño, and 17 March 2009. Note VAM.DDH.OEA No. 46989/2268 from the Ministry of Foreign Affairs of Colombia, September 17, 2009. [178] Note VAM.DDH.OEA No. 46989/2268 from the Ministry of Foreign Affairs of Colombia, September 17, 2009. [179] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 31. [180] Note VAM.DDH.OEA No. 46989/2268 from the Ministry of Foreign Affairs of Colombia, September 17, 2009. [181] The State says that the Government of Nariño provided a fund of 28 million Colombian pesos to purchase food. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 33 and Note of the Ministry of Foreign Affairs of Colombia DDH.OEA No. 64199/2993 of November 23, 2009. [182] The State said that all children displaced in the urban case of Samaniego are attending classes normally. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 35 and Note of the Ministry of Foreign Affairs of Colombia DDH.OEA No. 64199/2993 of November 23, 2009. [183] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 33-36 and Note of the Ministry of Foreign Affairs of Colombia DDH.OEA No. 64199/2993 of November 23, 2009. [184] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 38-40 y and Note of the Ministry of Foreign Affairs of Colombia DDH.OEA No. 64199/2993 of November 23, 2009. [185] Note of the Ministry of Foreign Affairs of Colombia DDH.OEA No. 64199/2993 of November 23, 2009. [186] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 31. [187] Safeguard Plan and Guarantees Program for the Awá people, formalized in Interagency Agreement No 140 of July 9, 2009, between the Ministry of Interior and Justice, UNIPA, and the Association of Indigenous Councils of the Awá People of Putumayo (ACIPAP). Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 26 and 27 [188] The State said that on July 14, 2009 there was a meeting of the National Human Rights Commission and indigenous organizations, which resulted in agreements based on the indigenous peoples’ perspective and Cosmo vision. It said that the organizations undertook to evaluate the proposal for construction of the risk map of the indigenous peoples. It said further that the Ministry of Interior and Justice officially contracted with the Delegate of the Indigenous Peoples for participation of the indigenous organizations in the Operational Secretariat of the National Human Rights Commission (CNDDHH). Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 29 and 30. Compare Note of the Ministry of Foreign Affairs of Colombia DDH.OEA No. 64199/2993 of November 23, 2009. [189] Although the 2005 census marks an improvement in estimating the Afro-descendant population, there are challenges remaining in determining with greater clarity the size of the Afro-descendant population in Colombia and their resulting social needs. [190] See: “Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66, para. 29. [191] Constitutional Court, Order 005-09, Judge Manuel José Cepeda, January 26, 2009. [192] Note DDH No. 5717/0223 of the Office of Human Rights and International Humanitarian Law of the Ministry of Foreign Affairs of the Republic of Colombia, February 5, 2009, page 45. [193] In 1993 Law 70 was approved. It recognizes collective ownership rights of black communities that have been occupying uncultivated land in rural areas near the Pacific basin rivers, the right to education in accordance with the needs of those communities and their cultural aspirations (ethno-education), and the right of the black communities to participate in mechanisms such as Territorial Planning Councils and Executive Councils of Autonomous Regional Corporations. [194] Hearing on the situation of Afro-Colombian, indigenous, and campesino communities in Norte de Cauca, held on November 5, 2009, during the 137th Regular Session of the IACHR. Available at http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2. [195] Preliminary Observations of the Inter-American Commission on Human Rights after the visit of the Rapporteur on the Rights of Afro-Descendants and against Racial Discrimination in the Republic of Colombia, March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66. [196] “Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66. [197] “Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66. [198] See Chapter IV of the IACHR Annual Reports for 1995, 1996, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007 and 2008. In the cases in which it was possible for organs of the inter-American system to exercise their jurisdiction, the IACHR has processed petitions and cases on the alleged violation of the human rights protected by the American Convention. See, for instance, IACHR Report No. 86/06, Marino López et al. (Operation Genesis), 2006 IACHR Annual Report. “Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66, para. 101. 101. [199] Report on the Demobilization Process in Colombia, OEA/Ser.L/V/II.120, Doc. 60, 13 December 2004, pp. 10-20; The IACHR Opines on Approval of the Justice and Peace Law in Colombia, Press Release N. 26/05, 15 July 2005. “Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66, para. 101. 101. [200] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 29 and 30.
[201]
Office of the Ombudsman, Defense Resolution No. 39, Human rights
violation: cultivation of African Palm in the collective territories
of Jiguamiandó y Curvaradó – Chocó, 2 June 2005, available at: [202].“Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66, para. 102. [203] In February 2009, the Office of the National Controller General issued his “Government Audit Report with a comprehensive approach, regular modality, on the fund for financing the agricultural sector - FINAGRO, 2005-2006 fiscal year, as part of the general audit plan - PGA 2007 – 2008,” which shows that the state used resources of the official agrarian financial system to provide 100% financing to companies such as URAPALMA for their oil palm plantations in Curvaradó. The audit report indicates that “FINAGRO approved rediscounts for three companies (…) for a total of $13.049 billion (…). By way of services in addition to the credit, it backed rediscounts through FAG for $4.090 billion (…). Moreover, it granted an ICR economic benefit for investment in a new project, consisting in a credit valued at $2,892 billion.” In the specific case of URAPALMA, rediscounts amounted to a total of $6.235 billion, and $5.422 billion has been disbursed, with an (ICR) benefit for payment of its credit valued at $2.892 billion, equivalent to over 50% of the value of the debt to the financial system, a figure that URAPALMA will not have to pay. This, together with the fact that approximately 50% of the debt has a FAG guarantee for $2.447 billion.” .Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66, párr.103. [204] AFRODES and Global Rights, Luces y Contraluces sobre la Exclusión: Los Derechos Humanos de las Comunidades Afrocolombianas, Bogotá, November 2007. “Preliminary observations of the Inter-American Commission on Human Rights, after the Visit of the Rapporteur on the Rights of Afro-Descendants and Against Racial Discrimination to the Republic of Colombia,” March 27, 2009, OEA/Ser.L/V/II.134 Doc. 66, párr.104. [205] Information provided by the Ministry of Interior and Justice during a meeting held in its offices in Bogota on November 19, 2008. [206] Special Chamber for Monitoring Judgment T-025 of 2004 and its compliance orders, made up of Judges Luis Ernesto Vargas Silva, Juan Carlos Henao Pérez, and Nilson Pinilla Pinilla. [207] Constitutional Court, Order 222-09, Judge Luis Ernesto Vargas Silva, 17 June 2009. [208] Constitutional Court, Order 222-09, Judge Luis Ernesto Vargas Silva, June 17, 2009. [209] Constitutional Court, Order 005-09, Judge Manuel José Cepeda, January 26, 2009. [210] Constitutional Court, Order 005-09, Judge Manuel José Cepeda, January 26, 2009. [211] On the subject of applicable international obligations, the Constitutional Court recognizes that […] iii) the American Convention on Human Rights reiterates the obligation of states parties to undertake “to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color (…), national or social origin, economic status, birth, or any other social condition” (Art. 1) and the right of all persons to “equal protection of the law, without discrimination.” (Art. 24). Constitutional Court, Order 005-09, Judge Manuel José Cepeda, January 26, 2009. [212] Constitutional Court, Order 005-09, Judge Manuel José Cepeda, January 26, 2009. On October 30, 2009, the State gave the Constitutional Court a progress report on compliance with Order 005 of 2009. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 41 and Annex. [213] The Constitutional Court ordered the Ministry of the Interior and Justice and the Ministry of Defense to present to the Office of the Ombudsman bimonthly reports on action taken to ensure compliance with the provisional measures issued by the Inter-American Court for the Communities of Jiguamiandó and Curvaradó; these reports should include an objective evaluation of the suitability of the measures adopted, in terms of the results obtained and shortcomings identified in the area of prevention of crimes against the protected persons. Constitutional Court, Order 005-09, Judge Manuel José Cepeda, January 26, 2009. [214] IACHR, “IACHR Concern over Colombian intelligence operations”, Press Release No. 09/09, February 26, 2009, http://www.cidh.oas.org/Comunicados/Spanish/2009/09-09sp.htm [215] Office of the President of the Republic of Colombia, Statement of President Uribe on the DAS, February 26, 2009. http://web.presidencia.gov.co/sp/2009/febrero/26/01262009.html [216] In a press release, the DAS Director indicated, among other things that “the USB reports and discs that contain some evidence that could be related to this case [of telephone wire-taps] correspond to a matter found in a search [conducted on February 25, 2009], jointly [by] the Technical Unit of the Prosecutor’s Office and the DAS, after an investigation conducted by DAS for over two years against illegal armed groups.” Press Release of the DAS Director, February 26, 2009: http://web.presidencia.gov.co/sp/2009/febrero/26/13262009.html.
[217]Also
see IACHR, Press Release 59/09, “IACHR expresses concern over
intelligence operations focusing on the activities of the
Inter-American Commission in Colombia,” August 13, 2009: [218] Note VAM/DDH/OEA No. 41362/2052 of the Ministry of Foreign Affairs of the Republic of Colombia, dated July 31, 2009. [219] Note VAM/DDH/OEA No. 41362/2052 of the Ministry of Foreign Affairs of the Republic of Colombia, dated July 31, 2009.
[220]
Press Release of the Ministry of Foreign Affairs of the Republic of
Colombia, August 13, 2009:
http://www.cancilleria.gov.co/wps/portal/espanol/!ut/p/c1/04_SB8K8xLLM9MSSzPy8xBz9CP0os3gLUzfLUH9DYwN3d39z [221] El Tiempo, “Due to procedural errors, the investigation into the DAS “chuzadas” dropped by the Prosecutor’s Office, September 22, 2009. [222] Hearing on Case 12.380 – Alirio Uribe Muñoz and other members of the Colectivo de Abogados José Alvear Restrepo, Colombia, held in the framework of the 137th Regular Session of the IACHR, November 5, 2009, available at http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2. At the aforementioned hearing, the “José Alvéar Restrepo” Lawyers’ Collective (CAJAR) presented documents from the DAS intelligence files to which it has had access as a civil party in the criminal proceedings underway. The documents are marked “SECRET” or “CONFIDENTIAL” and contain personal data, photographs of members of CAJAR and their families in public places, a complete psychological profile that describes the habits, weaknesses, strengths, likes, hobbies and friendships of one of the members of CAJAR, morphological studies, telephone wiretap orders, monitoring of international travel, and payment vouchers for the lease of properties from where the intelligence activities were carried out [223] Hearing on Case 12.380 – Alirio Uribe Muñoz and other members of the Colectivo de Abogados José Alvear Restrepo, Colombia, held in the framework of the 137th Regular Session of the IACHR, November 5, 2009, available at http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2. [223] Hearing on Guarantees for the Exercise of the Rights of members of the National Movement of Victims of State Crimes, Colombia, held on November 5, 2009, in the framework of the 137th Regular Session of the Inter-American Commission on Human Rights. http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2. [224] Hearing on Case 12.380 – Alirio Uribe Muñoz and other members of the Colectivo de Abogados José Alvear Restrepo, Colombia, held in the framework of the 137th Regular Session of the IACHR, November 5, 2009, available at http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2. [224] Hearing on Guarantees for the Exercise of the Rights of members of the National Movement of Victims of State Crimes, Colombia, held on November 5, 2009, in the framework of the 137th Regular Session of the Inter-American Commission on Human Rights. http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2. [225] The State adds that on November 28, 2008, it issued Directive OPLA 016, which banned intelligence work by protection services and established mechanisms for control and follow-up. Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 42 and Annex. [226] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 42 and annex that includes note DIR. 020846 from the Director of DAS, Felipe Muñoz, to the National Director of CTI in the Attorney General’s Office, dated March 19, 2009. [227] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 42 and 52-53. [228] Note DDH No. 5717/0223 of the Office of Human Rights and International Humanitarian Law, Ministry of Foreign Affairs, Republic of Colombia, dated February 5, 2009, page 55. [229] Corporation for the Defense and Promotion of Human Rights (REINICIAR), Document analyzing Colombian Intelligence Law (Law 1288 of 2009), received by the IACHR on September 14, 2009. [230] Human Rights First, Human Rights Defenders, objects of unfounded accusations—arrested and stigmatized in Colombia, February 2009, available a: http://www.humanrightsfirst.org/pdf/090211-HRD-colombia-esp.pdf. [231] Statement of the United Nations Special Rapporteur on the Status of Human Rights Defenders, September 21, 2009. [232] IACHR, Report on the Status of Human Rights Defenders in the Americas, OEA/Ser.L/V/II.124. Doc-5 rev. 1, 7 March 2006, recommendation 6. [233] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 43. [234] The preparation of this report was assigned by the Commission to the Office of the Special Rapporteur for Freedom of Expression.
[235]
Fundación para la Libertad de Prensa (FLIP), January 22, 2009.
Condenados autores intelectuales de asesinato de periodista en 2003 (Masterminds
of 2003 murder of journalist sentenced). Available in Spanish at:
http://www.flip.org.co/veralerta.php?idAlerta=341.
Diario El Tiempo, January 21, 2009. Como avance contra la impunidad
calificó la SIP condena por crimen de periodista en Barrancabermeja (IAPA
classifies the conviction for crime against journalist in
Barrancabermeja as an advance against impunity).
Available in
Spanish at: [236]FLIP, April 8, 2009. Condenado autor material del asesinato de Elacio Murillo (Perpetrator of assassination of Elacio Murillo convicted). Available in Spanish at: http://www.flip.org.co/veralerta.php?idAlerta=355. El Tiempo, March 18, 2009. Condenan a 34 años de prisión a alias “Juancho” por asesinato del periodista Elacio Murillo (Alias “Juancho” sentenced to 34 years in prison for assassination of journalist Elacio Murillo). Available in Spanish at: http://www.eltiempo.com/colombia/justicia/condenan-a-34-anos-de-prision-a-alias-juancho-por-asesinato-del-periodista-elacio-murillo_4884685-1.
[237]
Federación Internacional de Periodistas (FIP), March 27, 2009.
Ceso-FIP valora el fin de la impunidad por el asesinato del periodista
colombiano Henry Rojas Monje (Ceso-FIP values the end of impunity for
the assassination of Colombian journalist Henry Rojas Monje).
Available in
Spanish at:
[238]
Portal Verdad Abierta, July 31, 2009. Ex para confiesa asesinato de
periodista Flavio Bedoya (Ex “para” confesses to assassination of
journalist Flavio Bedoya). Available in Spanish at: [239]Constitutional Court, Judgment T-219 of 2009. Presiding Judge Mauricio González Cuervo. With this decision, the Court overturned a judgment of the Superior Court of Bogotá against Alejandro Santos, editor of the magazine Semana, for a series of articles published about the magistrate of the Superior Council of the Judiciary, José Alfredo Escobar Araújo. Despite having made rectifications on two occasions, the magazine faced a new order of rectification and its editor, a contempt charge for failing to comply with it. [240] Constitutional Court, Judgment C-417 of 2009. Presiding Judge Juan Carlos Henao Pérez. FLIP, July 3, 2009. Corte Constitucional amplía el alcance de la veracidad como defensa en injuria y calumnia (Constitutional Court expands the reach of the veracity defense for defamation crimes). Available in Spanish at: http://www.flip.org.co/veralerta.php?idAlerta=371. Grupo de Interés Público de la Universidad de Los Andes, July 2009. Acción pública de inconstitucionalidad contra el artículo 224 del Código Penal (Public action for unconstitutionality against Article 224 of the Penal Code). Available in Spanish at: http://gdip.uniandes.edu.co/interno.php?Id=6&Menu=10&lang=es. [241] Constitutional Court, Judgment T-298 of 2009. Presiding Judge Luis Ernesto Vargas Silva.
[242]
FLIP, May 11, 2009.
Avanza la política pública sobre publicidad oficial en Cartagena (Public
policy on official publicity advances in Cartegena).
Available in
Spanish at:
http://flip.org.co/veralerta.php?idAlerta=364. Regarding Cartegena,
se also Office of the Mayor of Cartagena, May 13, 2009. La FLIP
destaca avances en la regulación de la pauta official (FLIP highlights
advances in the regulation of official publicity). Available in
Spanish at:
http://sigob.cartagena.gov.co/prensa/default.asp?codigo=270&tipo=Comunicados.
In the case of the governorship of Caldas, see FLIP, April 24, 2009.
La Gobernación de Caldas expide decreto sobre publicidad official (The
governorship of Caldas issues decree on official publicity). Available
in Spanish at:
http://www.flip.org.co/veralerta.php?idAlerta=359. Governorship
of Caldas, March 27, 2009. Gobernación de Caldas expide decreto sobre
publicidad official (Governorship of Caldas issues decree on official
publicity). Available in Spanish at:
http://www.gobernaciondecaldas.gov.co/index.php?option=com_content&view=article&id=177: [243] Portal La Silla Vacía, October 12, 2009. La otra cara del Programa de Protección del Gobierno (The other face of the Government’s Protection Program). Available in Spanish at: http://www.lasillavacia.com/historia/4726. In relation to this issue, the Administrative Tribunal of Cundinamarca declared the Director of Human Rights of the Ministry of the Interior and the Director of the Administrative Department of Security (DAS, by its Spanish acronym) to be in contempt for failing to comply with a 2008 order of the Constitutional Court to adjust the protection plan for journalist Claudia Julieta Duque and to provide her with the information about her found in the files of the intelligence entity. The judgment is available in Spanish at: http://www.derechos.org/nizkor/colombia/doc/desacato.html.
[244]
Reporters without Borders (RSF), April 28, 2009. Radio reporter gunned
down in Cauca. Available at:
http://www.ifex.org/colombia/2009/04/28/radio_reporter_gunned_down_in_cauca/.
FIP, April 27, 2009. La FIP condena firmemente el asesinato de un
veterano periodista en Colombia (FIP strongly condemns the
assassination of a veteran journalist in Colombia). Available in
Spanish at:
http://www.ifj.org/es/articles/la-fip-condena-firmemente-el-
[245]
RSF, July 15, 2009. Suspect arrested in the investigation into the
murder of a radio journalist. Available at:
http://www.rsf.org/Radio-reporter-gunned-down-in.html. FLIP, July
12, 2009. Capturado sicario de periodista en el Cauca (Assassin of
journalist captured in Cauca). Available in Spanish at:
http://www.flip.org.co/veralerta.php?idAlerta=372.
After this
chapter was sent to the State, the Office of the Special Rapporteur
received information that on November 13, 2009, the First Special
Judge in Popayán acquitted Arley Manquillo Rivera, allegedly the
material author of the assassination. According to the information
received, the verdict ignored evidence submitted by the Prosecutor’s
Office, based on the testimony of Agnolia Aguilar, the journalist’s
daughter, who witnessed the crime. The court considered Agnolia
Aguilar’s testimony “disturbed” by the violent scene she witnessed.
The Prosecutor’s Office said it would appeal the decision. See Freedom
of the Press Foundation (FLIP).
November 15, 2009. Absuelto presunto asesino de periodista.
Available in Spanish at:
http://www.flip.org.co/veralerta.php?idAlerta=393;
El Tiempo newspaper. November 16, 2009. Declaran inocente a
presunto asesino de periodista José Everardo Aguilar en el Cauca.
Available
in Spanish at
http://www.eltiempo.com/colombia/occidente/declaran-inocente-a-presunto-asesino-de-periodista-en-el-cauca_6602868-1;
[246] Inter-American Press Association (IAPA), September 25, 2009. IAPA condemns murders of journalists in Mexico, Colombia. Available at: http://impunidad.com/index.php?comunicados=detail&idioma=us&id=4265. Diario La Patria, September 23, 2009. Asesinaron a periodista oriundo de Supía (Journalist from Supía murdered). Available in Spanish at: http://www.lapatria.com/Noticias/ver_noticia.aspx?CODNOT=76570&CODSEC=4. FIP, September 23, 2009. Fecolper condena asesinato de periodista en Caramanta, Antioquia (Fecolper condemns assassination of journalist in Caramanta, Antioquia). Available in Spanish at: http://www.fipcolombia.com/noticiaAmpliar.php?noticia=4136. FLIP, September 23, 2009. Asesinado periodista en Supía, Caldas (Journalist assassinated in Supía, Caldas). Available in Spanish at: http://www.flip.org.co/veralerta.php?idAlerta=383. [247] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 43. [248]Last October, the Office of the Attorney General of the Nation precluded the investigation of the former president of the assembly of Huila, Carlos Augusto Rojas, for the assassination of the journalist Nelson Carvjal Carvajal, which occurred in Pitalito, Huila on April 16, 1998. In 2008, the Supreme Court had been asked to reopen the case. This petition rejected the request for revision. Inter-American Press Association (IAPA), October 12, 2009. Cierran investigación contra político colombiano por asesinato de Nelson Carvajal (Investigation closed against Colombian politician for assassination of Nelson Carvajal). Available in Spanish at: http://www.impunidad.com/index.php?shownews=405&idioma=sp. [249] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 43. [250]FLIP, August 12, 2009. Informe semestral sobre libertad de prensa en Colombia (Semiannual report on freedom of the press in Colombia), p. 3. Available in Spanish at: http://www.flip.org.co/veralerta.php?idAlerta=378. [251] FIP, February 1, 2009. Ceso-FIP y FECOLPER condenan amenazas de muerte contra periodistas en Barranquilla (Ceso-FIP and FECOLPER condemn death threats against journalists in Barranquila). Available in Spanish at: http://www.fipcolombia.com/noticiaAmpliar.php?noticia=3004. FLIP, August 12, 2009. Informe semestral sobre libertad de prensa en Colombia (Semiannual report on freedom of the press in Colombia), pages 17 - 19. Available in Spanish at: http://www.flip.org.co/veralerta.php?idAlerta=378.
[252]
FIP, April 3, 2009. ACSA rechaza amenazas contra periodista del diario
El Heraldo (ASCA rejects threats against journalist from the newspaper
El Heraldo). Available in Spanish at:
[253]
FLIP, July 2, 2009. Periodista es asaltado y amenazado en
Barranquilla, Atlántico (Journalist is assaulted and threatened in
Barranquilla, Atlántico).
Available in
Spanish at:http://www.flip.org.co/veralerta.php?idAlerta=370.
Diario El Tiempo, April 2009. Amenazas a periodistas en Barranquilla
pasaron de los panfletos a la intimidación armada (Threats to
journalists in Barranquilla went from pamphlets to armed intimidation).
Available
in Spanish at:
http://www.eltiempo.com/colombia/caribe/amenazas
[254]FLIP,
May 26, 2009. Emisora activista de derechos de la comunidad LGBT
recibe amenazas (Activist radio station for LGBT rights receives
threats). Available in Spanish at:
http://www.flip.org.co/veralerta.php?idAlerta=367. RSF, June 5,
2009. Help for threatened community gay radio station. Available at:
http://www.rsf.org/Help-for-threatened-community-gay.html. El Tiempo,
May 8, 2009. Amenaza a director de Radio Diversia prende alarmas en el
Distrito por agresiones a sectores LGBT (Threat to director of Radio
Diversia causes worry in the District about attacks against LGBT
groups). Available in Spanish at:
http://www.eltiempo.com/colombia/bogota/amenaza-a-director-de-radio-diversia-prende-alarmas-en-el-distrito-por- [255] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 43-46.
[256]
El Tiempo, March 26, 2009. Guerrilleros que iban a atacar a Presidente
de la SIP y MinDefensa estarían preparando secuestros (Guerrillas who
were going to attack the President of IAPA and the Defense Ministry
were planning abductions). Available in Spanish at:
http://www.eltiempo.com/colombia/justicia/guerrilleros-que-iban-a-atacar-a-presidente-de-la- [257] FLIP, May 8, 2009. Policía de Valledupar agrede a reportero gráfico (Valledupar Police attack photojournalist). Available in Spanish at: http://www.flip.org.co/veralerta.php?idAlerta=363. FIP, May 7, 2009. Amenazados periodistas en Barranquilla y Miami, y golpeado fotógrafo en Valledupar (Journalist threatened in Barranquilla and Miami, and photographer beaten in Valledupar). Available in Spanish at: http://www.fipcolombia.com/noticiaAmpliar.php?noticia=3566.
[258]
FLIP, September, 2009. Periodistas agredidos por guardias
penitenciarios en Valledupar, Cesar (Journalists attacked by prison
guards in Valledupar, Cesar). Available in Spanish at:
[259]
Diario El País, October 6, 2009. Agreden al periodista Álvaro Miguel
Mina (Journalist Álvaro Miguel Mina attacked).
Available in
Spanish at: [260]RSF, February 4, 2009. Polémica en torno al acoso del ejército a tres periodistas que cubrieron la liberación de unos rehenes de las FARC (Controversy surrounding persecution by the army of three journalists who were covering the liberation of some FARC hostages). Available in Spanish at: http://www.rsf.org/Polemica-en-torno-al-acoso-del.html. FLIP, February 2, 2009. Ejército retiene a periodistas y les exige la entrega de su material periodístico (Army detains journalists and orders them to hand over their journalistic material). Available in Spanish at: http://www.flip.org.co/veralerta.php?idAlerta=342.
[261]
Committee to Protect Journalists (CPJ) and Human Rights Watch (HRW),
February 6, 2009. CPJ and Human Rights Watch object to President
Uribe’s accusations against journalist Hollman Morris. Available at:
http://www.ifex.org/colombia/2009/02/06/cpj_and_human_rights_watch_object/.
FLIP, February 4, 2009. La FLIP exhorta al gobierno para que cesen
las declaraciones estigmatizadoras contra periodistas (FLIP exhorts
government to cease making stigmatizing declarations against
journalists). Available in Spanish at:
http://www.flip.org.co/veralerta.php?idAlerta=344.
El
Tiempo, February 11, 2009. Acusaciones de Uribe contra periodistas
generan cascada de reacciones (Uribe’s accusations against journalists
generate a cascade of reactions).
Available in
Spanish at:
http://www.eltiempo.com/colombia/politica/
[262]
IACHR, Office of the Special Rapporteur for Freedom of Expression,
February 9, 2009. Joint Press Release, R05-09. Available at:
http://www.cidh.oas.org/relatoria/showarticle.asp?artID=738&lID=1.
Fundación para la Libertad de Prensa. February 4, 2009. La FLIP
exhorta al gobierno para que cesen las declaraciones estigmatizadoras
contra periodistas (FLIP exhorts government to stop making
declarations stigmatizing journalists).
Available in
Spanish at: [263] IACHR, Office of the Special Rapporteur for Freedom of Expression, 2004. (OEA/Ser.L/V/II/122. Doc.5 rev.1). Available at: http://www.cidh.oas.org/annualrep/2004eng/chap.4.htm#COLOMBIA. [264] See, inter alia I/A Court H. R., Case of Herrera Ulloa. Judgment of July 2, 2004. Series C No. 107; Ivcher Bronstein Case. Judgment of February 6, 2001. Series C No. 74, and “The Last Temptation of Christ” Case (Olmedo Bustos et al.). Judgment of February 5, 2001. Series C No. 73. [265] I/A Court H.R., Case of Apitz-Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Judgment of August 5, 2008. Series C No. 182. [266] I/A Court H.R., Case of Apitz-Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Judgment of August 5, 2008. Series C No. 182, paragraph 131. [267] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 46-48. [268] Semana magazine, February 21, 2009. El Das sigue grabando [The DAS is still recording]. Available at http://www.semana.com/noticias-nacion/das-sigue-grabando/120991.aspx [269] Constitutional Court of Colombia. Judgment T-1037 of 2008. Judgment delivered by Judge Jaime Córdoba Triviño. The judgment ordered the replacement of the protection arrangements for the journalist Claudia Julieta Duque, who had received threats following investigations into the murder of the reporter Jaime Garzón. The judgment also ordered the adjustment of the protection program for journalists in line with the demands of the practice of the profession of journalism and the rules of due process of law. Finally, the judgment ordered the DAS to deliver to the journalist concerned all of the information that the agency had on her that was not confidential by law. [270] Cfr. Hearing on the Right to Freedom of Expression in Colombia held at the IACHRduring its134th Regular Session. In this connection see Hollman Morris and Daniel Coronell, among others, FLIP, August 12, 2009. Semi-annual report on freedom of the press in Colombia. Available at http://flip.org.co/veralerta.php?idAlerta=378 [271] FLIP, August 12, 2009. Semi-annual report on freedom of the press in Colombia. Available at http://flip.org.co/veralerta.php?idAlerta=378
[272]
FLIP, August 12, 2009. Semi-annual report on freedom of the press in
Colombia. Available at
http://flip.org.co/veralerta.php?idAlerta=378. Communication from
Centro de Solidaridad Federación Internacional de periodistas Ceso
Fip, sent to the Office of the Special Rapporteur for Freedom of
Expression, July 1, 2009. RWB, May 15, 2009. Former intelligence
officials leak list of news media and journalists whose phones were
tapped. Available at
[273]
Semana magazine, February 21, 2009. El Das sigue grabando
[The DAS is still recording]. Available at
http://www.semana.com/noticias-nacion/das-sigue-grabando/120991.aspx.
According to information published by this magazine, a detective from
the operations department of the DAS explained to the magazine that
the purpose of the wiretaps and surveillance was to control possible
“threats” for the government. In the case of the news media and
journalists, the interviewee said that […] it has several objectives,
one of which is to keep the government abreast of what is happening in
the media, which gives the State room for maneuver in critical
situations […] there is sporadic monitoring of a number of editors or
chiefs in order to identify what journalists call the ‘editorial
line’. However, the main effort centers on journalists who handle
‘hard’ information and sources. In that way two birds are killed with
one stone: it is known what story they are working on and, most
important of all, who they are talking to. And another detective
added, “the priority is to know the information in possession of those
(media) that trouble the government, either because they are harshly
critical or because unlike other media they are not under its thumb.”
Semana magazine, February 21, 2009. El Das sigue grabando
[The DAS is still recording]. Available at
[274]
Communication from the Centro de Solidaridad Federación Internacional
de periodistas Ceso Fip, sent to the Office of the Special Rapporteur
for Freedom of Expression, July 1, 2009. RWB, May 15, 2009. Former
intelligence officials leak list of news media and journalists whose
phones were tapped. Available at:
[275]
See also El Espectador, February 22, 2009. Revelan lista completa de
‘chuzados’ (Complete list of those ‘stung’ is revealed). Available in
Spanish at:
[276]
IACHR. Annual Report 2008. Volume II: Annual Report of the Special
Rapporteurship on Freedom of Expression. Chapter II, paragraph. 77.
Available at: [277] Cfr. IACHR. Special Rapporteurship on Freedom of Expression, February 9, 2009. Joint Press Release, R05-09. Available at: http://www.cidh.oas.org/relatoria/showarticle.asp?artID=738&lID=2 [278] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 1-2.
[279]
On December 12, 2009, after this chapter was sent to the State, the
Office of the Special Rapporteur received information that the
Prosecutor’s Office had an instruction manual “prepared on paper for
DAS’s exclusive use,” which reportedly detailed the procedure to be
used to threaten Claudia Julieta Duque, a journalist who said she was
a victim of illegal wiretapping by that agency. On this point see:
Semana. December 12, 2009. Manual para amenazar [Manual for
threatening]. Available in Spanish on:
http://semana.com/noticias-nacion/manual-para-amenazar/132562.aspx;
International Federation of Journalists.
December 16, 2009. Denuncian un manual de agentes de inteligencia
para amenazar a una periodista en Colombia.
Available in
Spanish at:
http://www.ifj.org/es/articles/denuncian-un-manual-de-agentes-de-inteligencia-para- [280] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 47. [281] Federación Colombiana de Periodistas, July 15, 2009. Desacato de autoridades frente a orden de entregar información sobre periodista (Contempt by authorities facing an order to hand over information about journalist). Available in Spanish at: http://www.fipcolombia.com/noticiaAmpliar.php?noticia=3929. See also, FLIP, July 13, 2009. Por incumplir tutela a favor de periodista, tribunal inicia desacato contra miembros del gobierno (For failure to comply with order in favor of journalist, tribunal initiates contempt proceedings against members of the government). Available in Spanish at: http://flip.org.co/veralerta.php?idAlerta=373. [282] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 47. [283] Article 21. Reserve. “Due to the nature of the functions carried out by organisms that engage in intelligence and counterintelligence activities, their documents, information, and technical elements shall be supported by a legal reservation for a maximum term of 40 years and shall have the character of reserved information according to the level of classification that is warranted in each case. Paragraph. The public servant who decides to support him- or herself with reserve to avoid providing information must do so setting forth in writing the reasonability and proportionality of his/her decision and basing it on this legal disposition. In any case, these decisions are subject to legal and constitutional remedies and actions.” [284] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 48. [285] Article 23. Exception to the duties of denunciation and declaration. “Public servants of the organs that carry out intelligence and counterintelligence activities are obligated to maintain the confidentiality of all that they see, hear, or learn in the course of the exercise of their duties. In this sense, the public servants referred to in this article are exempt from the duty to denounce and cannot be obligated to testify. In the case that the organism considers it necessary to testify in a proceeding, it may do so through its Director or his or her delegate, in the capacity of proof of reference. The exclusion of the duty of denunciation does not apply in cases in which the public servant has information related to the alleged commission of a crime against humanity by a public servant who carries out intelligence or counterintelligence activities.” [286] IACHR. Report No. 20/99. Case No. 11.317. Rodolfo Robles Espinoza and Sons. Peru. February 23, 1999, para. 148. [287] Article 25. Modification of sentences for the crimes of revelation and use of reserved documents and abusive access to the information system. “With the objective of guaranteeing the legal reserve of intelligence and counterintelligence documents and avoiding their revelation by members of the organs that carry out this type of activities, Articles 194, 195, 418, 419, and 420 of the Penal Code will remain like this: Article 194. Revelation and use of reserved documents. One who, for the benefit of him/herself or others or with prejudice against another, reveals or uses the contents of a document that must be held in reserve, will incur a penalty of five (5) to eight (8) years in prison, if the conduct does not constitute a crime sanctioned with a greater penalty.” [288] See, among others, Constitutional Court, Judgments C-038 of 1996 and T-634 of 2001.
[289]
El Tiempo, July 31, 2009. Dejar sin efectos orden de arresto contra
Rodrigo Pardo, piden Andiarios, Asomedios y SIP (Dismiss the order for
arrest against Rodrigo Pardo, request Andiarios, Asomedios, and IAPA).
Available
in Spanish at:
http://www.eltiempo.com/colombia/justicia/dejar-sin-efectos-orden-de-arresto-contra-rodrigo-pardo- [290] The Nuevo Arco Iris Corporation (CNAI) reported on June 20, 2009 that 83 members of Congress were involved in the parapolitics criminal proceedings.” A CNAI study concluded that the political movements and parties that benefited from the parapolitica had managed to strengthen their electoral power and their position of hegemony in local, regional, and national political power structures. It pointed out that, for instance, if it is assumed that the degree of involvement of a party with paramilitaries is defined as the number of senators investigated by the parapolitica who are elected, the parties aligned with the governing party are the most involved in these investigations. Of the five government parties most involved in parapolitica, four increased or maintained their seats (Alas Equipo Colombia, Colombia Democrática, Convergencia Ciudadana y Apertura Liberal), and only one, Colombia Viva, declined considerably in the 2006 and 2007 elections for governors, mayors, and local deputies. Nuevo Arco Iris Corporation, Political Balance of Parapolitica, November 27, 2009: http://www.nuevoarcoiris.org.co/sac/files/arcanos/arcanos_14_diciembre_2008_files/arcanos_14_informe_parapolitica.pdf, page 84, and Corporación Nuevo Arco Iris, List of congressmen involved in parapolitca processes, June 20, 2009, http://www.nuevoarcoiris.org.co/sac/files/oca/analisis/parapolitica_legislativa_JUNIO_2009.pdf. [291] Reporting of El Espectador newspaper, “Reveal complete list of ‘chuzados,’” February 22, 2009, http://www.elespectador.com/impreso/tema-del-dia/articuloimpreso120505-revelan-lista-completa-de-chuzados?page=0,0
[292]
El
Tiempo newspaper, Interceptions of telephone calls will be handled
by the National Police and not the DAS, February 26, 2009,
http://www.eltiempo.com/colombia/justicia/interceptaciones-telefonicas-legales-seran- [293] Hearing on the Rule of Law and the Independence of the Judiciary in Colombia, held during the 134th Session of the IACHR on March 23, 2009, available at: http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=8 [294] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 51. [295] Note DDH/OEA No. 30447/1542 from the Ministry of Foreign Affairs of the Republic of Colombia, June 6, 2009. [296] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, pp. 51-52. [297] Observations of Colombia on the Draft Report of the Inter-American Commission on Human Rights on the Country for 2009, December 13, 2009, p. 52. [298] Supreme Court of Justice, Criminal Cassation Chamber, Single 27032, P/Álvaro Araújo Castro, September 15, 2009. [299] Supreme Court of Justice, Criminal Cassation Chamber, Single 27032, P/Álvaro Araújo Castro, September 15, 2009.
[300]
“Last week three cases were returned to the Court by the judges that
had them: the case of Álvaro Araujo Noguera, accused by the
Prosecutor’s Office of alleged complicity with Rodrigo Tovar Pupo,
'Alias Jorge 40'; the case of Ciro Ramírez, who is under investigation
for drug trafficking and parapolítica; and, the case of Rubén
Darío Quintero, who was recently named by alias 'El Alemán' for having
endorsed lists for Congress made up of paramilitaries.” The Supreme
Court will try all of the congressmen for parapolitica,
September 15, 2009, available at: |
