ADMINISTRATION OF JUSTICE AND RULE OF LAW
A. LEGAL FRAMEWORK
1. This Chapter will focus on several different aspects of the administration of justice and rule of law in Colombia. First, the Inter-American Commission on Human Rights (the "Commission," the "IACHR" or the "Inter-American Commission") will examine the impunity which prevails in Colombia and the lack of response from the State to the populations reasonable demands for justice in cases of human rights violations. The Commission will then proceed to analyze the application of the due process rights guaranteed to criminal defendants in the American Convention on Human Rights (the "Convention" or the "American Convention"). The Commission will also make reference to reforms to the administration of justice which have been proposed. The norms to be applied thus derive from a number of different provisions of the American Convention and other international instruments as well as from the jurisprudence of the international bodies which interpret these instruments. In many cases, Colombian domestic law includes provisions parallel to those found in international human rights law.
1. The Administration of Justice in Relation to Human Rights Violations
2. Article 1(1) of the American Convention on Human Rights requires States Parties to "respect the rights and freedoms recognized [therein] and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms." The Inter-American Court of Human Rights (the "Court" or the "Inter-American Court") has clarified that a State fails to comply with its obligation to respect rights when State agents, or persons acting with the tolerance or acquiescence of the State, violate the rights protected in the Convention.( 1 ) The Court has established an even broader obligation, however, in relation to the duty to ensure the free and full exercise of the rights and freedoms guaranteed in the Convention. The Court has stated that:
This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.( 2 )
3. The Commission and the Court have established that the duty to investigate and punish the perpetrators of human rights violations generally requires the State to carry out a serious, impartial and effective criminal proceeding.( 3 ) The requirement of a criminal proceeding derives from the fact that other proceedings do not provide for an adequate sanction for most human rights violations, which would also generally constitute criminal acts. For example, disciplinary sanctions which may be assessed by the Procurator General of the Nation pursuant to Colombian law are not adequate in cases of extrajudicial executions. A criminal proceeding, on the other hand, provides for an investigation and even compensation to the victims or their family members, as well as an adequate sanction. An effective criminal investigation and sanction also serve as the best means of complying with the States additional obligation to prevent further human rights violations. For these reasons, the Commission will focus on criminal proceedings in Colombia in analyzing impunity and the States response to human rights violations through the administration of justice.
4. The right of victims and their family members to an adequate administration of justice in relation to human rights violations also derives from Articles 8 and 25 of the Convention. Articles 8 and 25 provide individuals with the right of access to a remedy for violations of their rights, the right to pursue and be heard in judicial proceedings before a competent tribunal and the right to a timely decision by the appropriate legal authority. Article 25(1) of the American Convention sets forth that:
Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the State concerned or by this Convention.
Article 8(1) of the Convention provides that:
Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
5. The Colombian Constitution similarly provides for the right to access the judicial system to petition for and receive a remedy for violations of rights. Thus, Article 229 of the Constitution provides that, "[t]he right of all persons to have access to the administration of justice is guaranteed." Article 87 of the Constitution provides that, "[a]ll persons can appear before the judicial authorities to require compliance with a law or administrative act." Article 89 establishes that:
In addition to the remedies established in the previous articles, the law will establish any other remedies, actions or procedures necessary to allow for the protection of the integrity of the legal system and the protection of the rights of individuals, groups or collectives, as against the action or omission of State authorities.
Finally, Article 92 of the Constitution establishes the right of any individual to "request the competent authority to apply criminal or disciplinary sanctions in cases arising from the acts of the State authorities."
6. The Colombian Constitution further provides for the application of due process guarantees in proceedings instituted with the objective of receiving a remedy for violations. The Constitution provides broadly that, "[d]ue process will apply in all judicial and administrative cases."
2. The Administration of Justice and the Right to Due Process for Criminal Defendants
7. The general principles regarding the rights of criminal defendants are set forth in Article 8 of the Convention. Article 8(1), cited above, establishes the right of a criminal defendant to due process and to be heard by a competent, independent and impartial tribunal. Article 8(2) establishes that, "[e]very person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law." Article 8(2) then proceeds to establish the following specific minimum guarantees to be granted to defendants in criminal proceedings:
a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;
b. prior notification in detail to the accused of the charges against him;
c. adequate time and means for the preparation of his defense;
d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;
f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;
g. the right not to be compelled to be a witness against himself or to plead guilty; and
h. the right to appeal the judgment to a higher court.
8. Article 7 of the Convention, relating to the right to personal liberty, also includes provisions relating to due process for criminal defendants. Thus, Article 7(2) provides that, "[n]o one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto." Article 7(3) provides that, "[n]o one shall be subject to arbitrary arrest or imprisonment."
9. Article 7(4) further provides that, "[a]nyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him." Article 7 also includes several due process rules regarding detention before trial and review of detention which will be discussed in greater depth in the Chapter of this Report relating to the rights of detained persons.
10. Colombian law similarly establishes due process rights for criminal defendants. Article 29 of the Constitution provides, in pertinent part, that:
All persons are presumed innocent until they have been declared guilty in a judicial proceeding. Any accused person has the right: to a defense and to the assistance of a lawyer of his own choosing, or one provided by the state, during the investigation and the trial; to a fair and public proceeding without unjustified delays; to present evidence and to controvert the evidence brought against him; to appeal a conviction and to not be judged twice for the same events.
Evidence obtained in violation of due process is null and void.
Article 33 of the Constitution further provides that "[n]o one will be obliged to make statements against himself."
11. Article 28 of the Constitution also sets forth due process rights relating to the detention of criminal suspects or defendants. That article provides that, "[n]o one may be . . . reduced to prison or arrest or detained . . . except pursuant to a written order of the competent judicial authorities, according to the formalities of the law, and for reasons previously defined in the law."
B. IMPUNITY AND DENIAL OF JUSTICE
12. As the Commission noted in its special report on Colombia, included in its 1996 Annual Report, the problems of impunity and denial of justice continue to be prominent in Colombia. Impunity in relation to all types of crimes is widespread. In June of 1996, the Superior Council of the Judiciary reported that between 97% and 98% of all crimes go unpunished, and that 74% of crimes go unreported. Other State authorities provide similar statistics. According to information issued by the National Police, 90% of all crimes go unpunished. According to the 1996 report of the Commission for the Rationalization of Public Spending and Finances, the level of impunity in all cases has reached 99.5%. That organization asserts that only one out of every 100 crimes reaches the trial stage of criminal proceedings. Another sign of impunity is the inability of the State to carry out arrest warrants against defendants. As of January 1998, State entities reported that there existed 214,907 outstanding arrest warrants which had not been executed.( 4 )
13. This situation has not changed in any significant manner from that described by the Commission in its "Second Report on the Situation of Human Rights in Colombia" in 1993. At that time, the Ministry of Justice considered that only 20% of crimes came to the attention of the authorities. Of those 20% of all cases, only 4% reached a final decision by the judicial authorities.( 5 )
14. It appears that the rate of impunity is even greater in relation to crimes involving human rights violations, resulting in a failure by the State to comply with its responsibilities and a denial of justice to the victims of violations and/or their family members. Human rights monitors assert that virtually 100% of all crimes involving human rights violations go unpunished. The experience of the Commission in the cases that are brought before it substantially supports this assertion. The Commission is aware of only a very few cases in which State agents responsible for human rights violations have received criminal convictions.
15. In some well-known cases, domestic authorities and international bodies, such as the Commission, have pressed for sanctions to no avail. For example, in the case of the massacres in Trujillo, processed before the Commission as Case 11.007, the petitioners allege that little has been achieved as regards the criminal sanction of those responsible. As part of a friendly settlement proceeding initiated in this case before the Commission, a special committee composed of governmental and non-governmental bodies and organizations carried out an investigation into the massacres, which provided significant information about what had happened and the identity of the perpetrators. The President of Colombia then accepted international responsibility for the human rights violations which occurred. State entities proceeded to carry out a number of programs to assist the victims of the violence and the rest of the Trujillo community. The Office of the Procurator General also revoked a prior disciplinary decision, which had imposed no disciplinary sanctions, and issued a new decision requiring the dismissal of an Army colonel and a National Police lieutenant. Nonetheless, the petitioners allege that seven years after the violent events in Trujillo, the criminal proceedings have not resulted in the sanction of those responsible for the human rights violations which occurred. The Commission has confirmed that the individual named by numerous sources as having been responsible for coordinating the paramilitary group in the area, Henry Loaiza Ceballos (aka "El Alacrán"), has never been convicted. In fact, eight years after the massacres, the proceeding against him has thus far resulted only in the formulation of formal charges against him.
16. Impunity in Colombia is structural and systemic.( 6 ) It is not simply a question of leaving numerous individual crimes unpunished. Rather, the issue is one of the creation of an entire system of impunity which affects the culture and life of the nation even for those individuals who are not directly affected by human rights violations or other crimes. Most international observers agree that this high level of impunity is itself one of the most serious human rights violations occurring in Colombia.( 7 ) The United Nations Special Rapporteur for the Independence of Judges and Lawyers visited Colombia at the end of 1996. He noted in his report that the lack of an appropriate investigation and trial in cases involving human rights violations constitutes one of the most serious concerns regarding the administration of justice in Colombia, both before the civilian courts as well as, in particular, before the military courts.( 8 ) In addition, impunity for those responsible for committing human rights violations is one of the most important factors contributing to the continued violation of human rights and to the general increase in violence. The Commission deplores the situation of impunity that exists in Colombia and notes that the State will face responsibility for all violations of human rights that occur until such time as it takes the necessary measures to ensure that justice is administered fairly and effectively in Colombia.
1. The Military Justice System
17. The problem of impunity is aggravated by the fact that the majority of cases involving human rights violations by members of the States public security forces are processed by the military justice system.( 9 ) The Commission has repeatedly condemned the military jurisdiction in Colombia and in other countries for failing to provide an effective and impartial judicial remedy for violations of Convention-based rights, thereby insuring impunity and a denial of justice in such cases.( 10 ) In Colombia specifically, the military courts have consistently failed to sanction members of the public security forces accused of committing human rights violations.
18. The Colombian Ministry of Defense has cited figures indicating that more than 45% of criminal proceedings carried out under the military justice system result in convictions. However, those statistics do not state what types of crime result in convictions. The Commission has, on several occasions, asked the Ministry of Defense to provide a breakdown of the types of cases which result in criminal convictions by type of crime, victim, etc Yet, this information has never been made available. It is generally understood that almost all of these convictions relate to crimes which are traditionally military in nature, such as desertion and disobedience of direct orders. On the other hand, cases of human rights violations tried in the military courts are protected by impunity.
19. The problem of impunity in the military justice system is not tied only to the acquittal of defendants. Even before the final decision stage, the criminal investigations carried out in the military justice system impede access to an effective and impartial judicial remedy. When the military justice system conducts the investigation of a case, the possibility of an objective and independent investigation by judicial authorities which do not form part of the military hierarchy is precluded. Investigations into the conduct of members of the State's security forces carried out by other members of those same security forces generally serve to conceal the truth rather than to reveal it. Thus, when an investigation is initiated in the military justice system, a conviction will probably be impossible even if the case is later transferred to the civil justice system. The military authorities will probably not have gathered the necessary evidence in an effective and timely manner. In those cases which remain in the military justice system, the investigation will frequently be conducted in such a manner as to prevent the case from reaching the final decision stage.
20. The military criminal justice system has several unique characteristics which prevent access to an effective and impartial judicial remedy in this jurisdiction. First, the military justice system may not even be properly referred to as a true judicial forum. The military justice system does not form part of the judicial branch of the Colombian State. Rather, this jurisdiction is operated by the public security forces and, as such, falls within the executive branch. The decision-makers are not trained judges, and the Office of the Prosecutor General does not fulfill its accusatory role in the military justice system.
21. Second, the judges in the military justice system are generally members of the military in active service. The courts martial ("consejos verbales de guerra") are also generally composed of members in service. In 1995, the Constitutional Court interpreted the Constitution as allowing only retired, not active, military officers to serve on courts martial. The Court decided that these entities administered justice, even though they did not form part of the judicial branch. The constitutional principles requiring impartiality and objectivity in the administration of justice thus applied to their actions. The Court determined that these principles were compromised where members of the armed forces in active service served on the courts martial. The Court noted, in this context, that:
[T]he social conflict situation faced by the country for the last several years places members of the forces of public order . . . in a situation where they must participate in the different repressive actions required to subdue the enemies of the [institutional] order and, at the same time, serve as judges of the excesses committed in the course of those actions which constitute crimes.( 11 )
22. The Commission believes that the reasoning set forth by the Constitutional Court explains one of the most serious problems inherent in the processing of human rights cases by the military justice system. Nonetheless, the Colombian legislature responded to the Constitutional Court decision by modifying Article 221 of the Constitution to provide specifically that active military officials may serve on the courts martial.
23. Thus, currently, the commander of the respective division, brigade or battalion serves as the judge in first instance in cases brought against members of the public security forces in the military justice system. The commander carries out the activities of a first instance tribunal in conjunction with the officers which he names to participate in courts martial. The decision at the first instance level is then subject to appeal to the Superior Military Tribunal. The President of the Superior Military Tribunal is the general commander of the Military Forces.
24. This arrangement allows for military officials to serve as judges of first instance over incidents which occurred in operations that they ordered and directed, as commanders of the military unit involved. The Commission made special note of the lack of impartiality inherent in such a situation in the case of Arturo Ribón Avilán, known as "the Milk" case. In that case, the Commission found that the National Police in Bogotá had extrajudicially executed members of the M-19 armed dissident group whom they found distributing milk in a neighborhood in the south of Bogotá. The Commission found that the criminal proceeding initiated in the military criminal justice system did not constitute an adequate investigation or provide an effective judicial remedy, because the military commander who directed the operation in which the persons were killed also served as judge in that proceeding.( 12 )
25. In addition, the proceeding takes place within the hierarchy of the security forces. The members of the courts martial respond hierarchically to their superiors in almost all aspects of their lives as soldiers or police officers. Pursuant to the norms governing the public security forces, they are bound to follow the orders of their superiors or face severe consequences. It is thus difficult, if not impossible, for these individuals to become independent and impartial judges free from the influence of their commanders or other superiors. As noted above, their commanders may also have ordered and directed the very operation which they are asked to analyze as members of a court martial. Their commanders may face responsibility if any irregularities are found. This situation may lead to pressure by commanders on the courts martial or outright orders designed to obtain a verdict absolving soldiers of all responsibility for any acts they allegedly committed in violation of human rights.
26. Also, throughout the proceedings in the military justice system, members of the military are engaged in judging the actions of their military colleagues, making impartiality difficult to achieve. Members of the military often feel bound to protect their colleagues who fight by their side in a difficult and dangerous context. This problem was raised by the Constitutional Court in its 1995 decision regarding the courts martial. Other Colombian State authorities have also noted that members of the State's security forces have "a deep-seated sense of esprit de corps" which is sometimes misinterpreted as requiring them to cover up or remain silent about crimes committed by fellow soldiers or police officers.( 13 )
27. The Commission understands that certain crimes truly relating to military service and military discipline may be tried in military tribunals with full respect for judicial guarantees. Thus, the Colombian Constitution provides, in Article 221, that crimes committed by members of the armed forces "in active service, and related to that service" will fall under the jurisdiction of military tribunals.( 14 ) The Commission considers, however, that various state entities have interpreted excessively broadly the notion of crimes committed in relation to military service.
28. First, the Superior Council of the Judiciary, responsible for deciding jurisdictional conflicts, has consistently issued decisions granting jurisdiction to the military courts in cases where acts which would constitute grave human rights violations are alleged. Traditionally, the tribunal sent almost all cases involving crimes allegedly committed by members of the security forces to the military jurisdiction, without seriously analyzing the requirement of connection to service. The tribunal also resisted with vehemence any suggestion that the military jurisdiction should not receive cases involving crimes against humanity or other particularly serious human rights violations. The tribunal at one point stated that any such suggestion formed part of a "pseudo-Marxist" current of thought.( 15 )
29. This position led the Superior Council of the Judiciary to transfer the criminal proceeding carried out against retired three-star general Farouk Yanine Diaz to the military jurisdiction on November 26, 1996. Retired general Yanine was being investigated for alleged involvement in the organization and support of paramilitary groups in the Middle Magdalena region of Colombia in the 1980s. The specific case transferred to the military jurisdiction involved the alleged forced disappearance and extrajudicial execution of 19 merchants in the Middle Magdalena region in October of 1987.( 16 ) On June 24, 1997, retired general Yanine was absolved of all responsibility and his case was dismissed. Because of his status as general, Yanine was tried by the general commander of the Military Forces. At that time, General Harold Bedoya held that position. General Bedoya had previously made statements to the Colombian media defending General Yanine.
30. On August 5, 1997, the Constitutional Court of Colombia issued an extremely important decision delimiting the jurisdiction of the military justice system.( 17 ) That decision declared unconstitutional certain provisions of the Military Criminal Code (Código Penal Militar) which had been interpreted as granting broad jurisdiction to the military justice system. The Court held that the requirement that acts be committed "in relation to [military] service" constituted a significant limitation on military jurisdiction. The Court specifically held that the military courts might not hear particularly serious crimes, including crimes against humanity. The Court held that such crimes stand in complete contradiction to the duties and responsibilities of the public security forces and thus could not be committed in relation to military service. Finally, the Court held that the military jurisdiction should be treated as "exceptional." Thus, in situations causing doubt regarding the proper criminal jurisdiction, cases should be processed by the civilian justice system.
31. The Commission believes that this decision of the Constitutional Court provides an interpretation of military jurisdiction which corresponds to the limits which should be placed on that jurisdiction pursuant to international human rights law. The Commission wishes to highlight the contribution made by this decision to the incorporation of international human rights standards in domestic law as required by the Constitution. The decision constitutes a truly meritorious step by a State entity in Colombias struggle toward full human rights protection.
32. Unfortunately, the Commission has received information indicating that the decision of the Constitutional Court has not yet led to a significant change in the distribution of cases involving members of the public security forces accused of human rights violations. The military justice system still processes the majority of human rights cases, particularly the most notorious ones, a year after the Constitutional Court decision was issued. According to the information received by the Commission, several State entities are responsible for this situation.
33. The Superior Council of the Judiciary continues to resolve new jurisdictional conflicts by sending cases involving acts which would constitute grave human rights violations to the military justice system. The Commission understands that the tribunal has begun to submit some of the most serious cases, involving massacres or similar acts, to the civilian justice system. The Commission considers this change to be extremely important. However, in many other cases, the Superior Council continues to apply a very broad interpretation of acts committed in relation to military service.
34. For example, that tribunal transferred the case known as "Caloto" or "El Nilo" to the military justice system at the end of 1997, several months after the Constitutional Court issued its decision. The Office of the Prosecutor General of the Nation had handled the case until the General Inspector for the National Police decided to seek jurisdiction, thereby initiating the jurisdictional conflict. The Caloto case does not appear to have any relation to acts carried out in relation to military service. The case deals with a National Police and paramilitary massacre of a group of indigenous persons in the Department of Cauca. The case is processed before the Commission as Case 11.101 and is currently in friendly settlement proceedings at the international level.( 18 )
35. Some recent decisions of the Superior Council do not even cite the Constitutional Court decision when resolving difficult questions regarding jurisdiction in cases allegedly involving human rights abuses.( 19 ) The Commission understands that certain members of the Superior Council of the Judiciary consider that they must independently interpret the Constitution to reach decisions regarding the competence of the military justice system. However, the Colombian Constitution itself places with the Constitutional Court the authority to interpret the Constitution and to ensure its integrity and supremacy.( 20 ) The Commission believes that Superior Councils resolve to decide cases in defiance of the Constitutional Court decision constitutes a serious challenge to the rule of law in Colombia.
36. In addition, in those cases presented to it for transfer to the civilian justice system, based on the Constitutional Court decision, the Superior Council has refused to order the transfer. The Constitutional Court decision expressly established that the new rule of law set forth therein would apply to all proceedings in which no decision had yet been issued. As a result, some cases processed in the military justice system, in which a decision had not been reached, would necessarily need to be transferred to the civilian justice system. However, the Superior Council of the Judiciary has been unwilling to accede to the transfer of cases previously taken up by the military justice system.
37. For example, in the case known as Ríofrio,( 21 ) a civilian judge requested that the military justice system transfer to him the portion of the case brought against several military officials. He was asked to make this request by the Delegate Procurator in Criminal Matters. The case against these officials had been processed by the military justice system pursuant to a 1994 decision of the Superior Council of the Judiciary granting jurisdiction to that forum. The civilian judge requested the transfer pursuant to the intervening decision of the Constitutional Court. When the military justice system refused to grant the civilian judges request for a transfer, the jurisdictional conflict returned to the Superior Council of the Judiciary. That tribunal issued a decision in July 1998, in which it refused to decide the conflict on the grounds that it already decided the jurisdictional question in the case in 1994. The Superior Council refused to treat the decision of the Constitutional Court as a factor which might require it to reconsider its prior decision. The lawyers for the civil party in the Ríofrio case are considering the possibility of filing a tutela action against the Superior Council of the Judiciary seeking a decision from the Constitutional Court ordering the Superior Council to follow its decision.
38. The difficulties faced in cases brought before the Superior Council of the Judiciary might be avoided through decided action of other State entities in favor of compliance with the Constitutional Court decision. For example, the State's security forces have the competence independently to transfer to the civilian justice system those cases which belong in that jurisdiction pursuant to the Constitutional Courts decision. Such independent transfers would allow the security forces to demonstrate their support for the implementation of limitations on military jurisdiction. The security forces have pledged such support in relation to the proposed new Military Penal Code which seeks to reform the military jurisdiction by incorporating the limitations set forth by the Constitutional Court. During the meeting it held with representatives of the Military Forces during its on-site visit, the Commission was told that steps were being taken to allow for such automatic transfers. The officers present at that meeting told the Commission that representatives of the State's security forces would meet with counterparts from the Office of the Prosecutor General and the Office of the Procurator General to determine which cases should be transferred.
39. However, to the Commissions knowledge, the different entities never reached an agreement leading to the automatic transfer of cases by the military to the civilian justice system. In practice, it is thus necessary for the appropriate State entities to formally petition for a change of jurisdiction. The security forces then decide whether a given case will be transferred. If the petition to transfer is denied, the jurisdictional conflict must go before the Superior Council of the Judiciary with low probabilities of a favorable result for civilian jurisdiction.
40. Not only have the States security forces failed to automatically transfer cases to the civilian jurisdiction, they also continue to affirmatively request jurisdiction over cases being processed in the civilian justice system which appear to fall outside of their jurisdiction based on the Constitutional Courts decision. The Caloto case presents such a situation. Even more recently, the Army has requested the transfer to the military justice system of an investigation initiated by the Office of the Prosecutor General of the Nation regarding the alleged involvement of General Fernando Millán Pérez, commander of Brigade V in Bucaramaranga, in the formation of paramilitary groups. The Office of the Prosecutor General has refused to relinquish jurisdiction. The Superior Council of the Judiciary will thus decide the jurisdictional conflict.
41. The Commission notes that, in response to formal petitions, the security forces did transfer a significant number of cases to the civilian justice system after the decision by the Constitutional Court. As of March 9, 1998, the Ministry of Defense reported that 178 criminal proceedings had been transferred from the military justice system to the Office of the Prosecutor General of the Nation in compliance with the Constitutional Court decision.( 22 ) In its observations to this Report, the Colombian State noted that the central command of the Military Forces now reports that 471 criminal cases have been transferred from the military justice system to the ordinary justice system.
42. The Commission values the importance of these decisions to transfer cases. However, the Commission notes that a significant number of petitions to transfer have also been denied. In addition, Colombian non-governmental organizations allege that the transferred cases do not involve human rights violations.
43. In February of 1998, in a hearing on the general human rights situation in Colombia, the Commission asked the Government to provide it with information regarding the types of cases that had been transferred. The Government was also asked to provide a list of any cases open before the Commission that had been transferred. The Commission did not receive information regarding the transfer of any of the cases that it is currently processing. The Government did send a list of the cases that had been transferred, including few details other than the crime allegedly committed. The Commission notes that many of the transferred cases relate to crimes of extortion, embezzlement and unjust enrichment. Other cases involved crimes of perjury and even escape of prisoners. The Commission notes that these cases probably do not involve human rights violations. The Commission is concerned that the public security forces may have permitted the transfer of certain limited types of cases to show compliance with the Constitutional Court decision while maintaining matters involving the most serious human rights violations in the military justice system.
44. The Commission is also concerned that the civilian authorities involved in the administration of justice have not always acted decisively to assist in the implementation of the Constitutional Court decision. The Office of the Prosecutor General and the Office of the Procurator General, as well as other State entities, expressed to the Commission their interest in transferring human rights cases to the civilian justice system on the basis of the Constitutional Court decision. However, a coordinated policy between entities as to the procedures to adopt to seek transfers of cases does not appear to exist. Civil parties to cases often receive varied and contradictory information from the different entities when they seek assistance regarding the transfer of their human rights cases.
45. The Office of the Delegate Procurator for Criminal Matters has initiated the majority of the requests for the transfer of cases to the civilian justice system. Representatives of that Office have the competence to request that the authorities in the military justice system as well as the civilian system take certain actions in criminal proceedings. They have used this authority to request military judges to transfer cases which they are processing to the civilian courts. In other cases, they have petitioned civilian judges to seek jurisdiction over cases processed in the military justice system, leading to a formal jurisdictional conflict where the security forces refuse to cede jurisdiction. The Commission recognizes and values the effort made by the Office of the Procurator General.
46. However, it is not clear why the Office of the Procurator General has taken the primary role in seeking the transfer of cases. The procurators are not judicial officials and thus may only request that authorities with jurisdictional competence take actions. Meanwhile, the Office of the Prosecutor General forms part of the judiciary and has jurisdictional powers. Thus, prosecutors may also make requests to the military courts for the transfer of cases from that jurisdiction to their own. Unlike the delegate procurators, the prosecutors may also directly initiate jurisdictional conflicts which must be resolved by the Superior Council of the Judiciary in those cases where the military justice system refuses to transfer cases which they request.
47. Yet, the Office of the Prosecutor General has not been active in seeking the transfer of cases from the military jurisdiction to its own jurisdiction based on the Constitutional Court decision. Nor has the Office set forth any policy as to how it will handle petitions by civil parties requesting that it take action to remove cases from the military justice system. The Commission has received several complaints from civil parties and their lawyers regarding communications which they received in response to their requests that the Office of the Prosecutor General seek to obtain jurisdiction over human rights cases in the military justice system.
48. For example, in the Ríofrio case mentioned above, the lawyer for the civil party first sought assistance from the Office of the Prosecutor General before enlisting the support of the Delegate Procurator for Criminal matters to petition the civilian judge to request the transfer of the case. The lawyer filed a request with the National Directorate of Prosecutors (Dirección Nacional de Fiscalías) of the Office of the Prosecutor General of the Nation asking that body to seek the transfer of the case. The National Directorate denied the request, arguing that the Code of Criminal Procedure provided that a party to the proceeding must initiate a jurisdictional conflict by petition before the judicial authority believed by the party to have proper jurisdiction over the case. The National Directorate argued that it functions as an administrative entity rather than as a judicial authority and thus could not receive the petition presented by the civil party. The National Directorate asserted, in turn, that it does not act as a party to proceedings before the various prosecutors from the Office of the Prosecutor General or before any other judicial authority and thus could not formulate the petition for the transfer.( 23 )
49. Acting on the basis of this response, the attorney for the civil party presented a new petition directly to the Human Rights Unit, the jurisdictional unit of the Office of the Prosecutor General of the Nation which he believed to have proper jurisdiction over the case. He received a response from the Office of the Prosecutor General of the Nation indicating that his petition had been transferred to the National Directorate of Prosecutors, identified as the proper entity to deal with the issue.( 24 ) No unit within the Office of the Prosecutor General ever took any action to seek transfer of the case to its jurisdiction.
50. The Commission is extremely concerned by the continued tendency for the military justice system to treat the majority of cases involving alleged human rights violations by members of the State's public security forces. This situation seriously undermines the positive efforts to combat human rights violations currently being carried out in other areas by the various entities of the Colombian State. The Commission urges all State entities to work together to ensure that the civilian jurisdiction handles all cases not directly related to military service.
51. After many years of discussion regarding possible reforms to the military justice system, the executive branch finally presented to the legislature a proposed new Military Penal Code on September 9, 1997. This proposed reform to the Military Penal Code would incorporate the parameters for the military jurisdiction set forth in the Constitutional Court decision, explicitly removing from the military justice system crimes of torture, genocide, forced disappearance and other grave human rights violations.( 25 )
52. The proposed legislation contains other reforms that would seek to ameliorate problems existing under the current Military Penal Code. For example, the draft Code establishes the right of victims and their family members to constitute themselves as civil parties in criminal proceedings carried out before the military justice system. Currently, this right is established only pursuant to jurisprudence of the Constitutional Court, and there exists no provision in the Code regulating the right. The Commission has also received complaints indicating that the right to join the proceedings as a civil party, set forth by the Constitutional Court,( 26 ) has not always been respected. Clarification of this point in the law would thus be extremely important. The Commission has previously emphasized the importance of the right to act as a civil party in those cases where such participation is allowed by law.( 27 )
53. The proposed legislation would also limit the defense of due obedience. The proposed Code would establish that an allegation of due obedience would only serve as a defense if the act in question was carried out in compliance with a "legitimate" order from a "competent" authority.( 28 )
54. Finally, the reform legislation attempts to separate the duties of judge and serviceman by establishing that those officers who are assigned to serve within the regular hierarchy of the State's security forces may not also serve as judges. The law would thus require that those serving as judges be assigned exclusively to that duty. These judges would be removed from military duty and the hierarchical command structure. This reform would address some of the issues relating to lack of impartiality and independence described above.
55. The Commission recognizes the immense effort put into the preparation of this proposed reform to the Military Penal Code. The Commission commends the good faith of the different State entities which worked together to seek a compromise which would allow protection for human rights and, at the same time, be acceptable to all. However, the Commission joins with other international observers in noting that the new proposed Code fails to adequately address certain problems relating to the administration of justice and the protection of human rights.( 29 )
56. First, the provision in the proposed Code regulating the right to participation of the civil party places several significant limitations on this right. Pursuant to the proposed reform, the civil party would not have the ability to challenge any determinations that are not directly related to his claim for damages. The Code thus envisions the role of the civil party as one of plaintiff in a suit for damages rather than as participant seeking access to justice and a full remedy, including the investigation and sanction of those responsible for committing human rights violations. Prior Commission decisions have established, to the contrary, that civil parties should be recognized as playing "an important role in propelling the criminal process and moving it forward."( 30 ) The provision also limits the access of the civil party to certain documents included in the record of the case.( 31 )
57. Second, many observers have questioned the effectiveness of the limitations on the due obedience defense. They suggest that the proposed new rule relating to this defense may be too vague, because it does not clearly establish that due obedience will not constitute a defense in cases where compliance with orders requires actions in violation of human rights.
58. Third, some critics assert that the proposed Code does not provide adequately for a true separation of the judicial function from the military hierarchy. They question whether complete impartiality and objectivity can be achieved where the judges continue to be members of the military who act within the installations of the military unit over which they hold jurisdiction. They note that the judges will continue to form part of the public security forces rather than the judicial branch. They also point to the fact that the military commanders would still be responsible for evaluating the performance of the judges within their brigade or battalion.
59. Finally, experts have expressed doubt as to whether the incorporation of the parameters set forth by the Constitutional Court will truly result in the elimination of military jurisdiction over cases involving grave human rights violations and other crimes not related to military service. As noted above, several State entities have shown resistance to such a change in reaction to the Constitutional Courts decision. It is not clear that a legislative change will be more effective. For example, the Superior Council of the Judiciary has indicated that it will continue to apply its own interpretation of the constitutional provision establishing military jurisdiction. That body may thus decide that the new Military Penal Code provides an excessively restrictive interpretation of constitutional military jurisdiction and refuse to apply it in the manner intended.
60. The Commission nonetheless notes that adoption of this proposed reform to the Military Penal Code, with some modifications, would constitute an important advance in the protection of human rights. Although both the President and the public security forces pledged to actively seek passage of the measure, the legislature decided in December of 1997 to postpone the debate until the following year. At the time of the drafting of this report, a new Military Penal Code had not yet been adopted, although the new Government of President Pastrana had announced its interest in the passage of this legislation.
2. The Civilian Criminal Justice System
61. The civilian criminal justice system, consisting of both the ordinary and the regional justice systems, has also failed to effectively combat impunity and provide for the adequate investigation and sanction of human rights offenders. As noted above, the overall impunity rate is calculated at almost 100% in human rights cases. To reach this rate, even those proceedings carried out in the civilian justice system must fail in their task.( 32 )
62. There exist several factors leading to this failure. The Colombian State has not always provided the criminal justice system with sufficient resources and support to allow it to carry out its work effectively.( 33 ) There do not exist adequate numbers of prosecutors, judges, public defenders and jails to handle the great number of crimes committed each year in Colombia, including crimes which involve violations of human rights. Those public officials who carry out these tasks do not receive a level of remuneration that adequately reflects the nature and quantity of the work burden which they bear. As a result, some of these public employees simply refuse to carry out certain tasks or fail to act with the energy necessary to ensure the investigation and sanction of human rights crimes. Criminal investigations frequently fail, for example, because the investigations are carried out so slowly that the crime is allowed to prescribe. In other cases, prosecutors fail to bring charges against detained suspects within the time period allowed by law.
63. The Commission also received information indicating that, in some courts in some areas of the country, corruption has interfered with the effective administration of justice. According to this information, certain judges and prosecutors are influenced in their decisions by links to criminal organizations.
64. The State entities charged with the investigation, prosecution and decision of human rights cases also sometimes lack the political will to combat human rights violations. The Commission has received information indicating, for example, that some prosecutors simply do not pursue cases regarding alleged human rights violations, choosing instead to open cases regarding crimes by armed dissident groups or others. During the Commissions visit to the Urabá region of the Department of Antioquia, the regional prosecutor for Carepa provided the Commission with a list of open criminal investigations in that jurisdiction.( 34 ) That list contained more than 200 cases. Of those 200 cases, 117 involved crimes of rebellion or terrorism in which armed dissident groups or their members were named as the suspects. Cases involving other crimes also named members of armed dissident groups as suspects. Only 13 cases of any nature named paramilitary groups as suspects. No case involving the crime of organization of illegal paramilitary groups named a member of the State's security forces as a suspect. The distribution of the cases opened by the regional prosecutor does not correspond to the information received by the Commission reporting numerous human rights violations in the area by paramilitary groups, sometimes acting in coordination with members of the public security forces.
65. Prosecutors and investigators sometimes treat individuals who denounce crimes committed by paramilitaries or the State security forces as though they have acted improperly or illegally in questioning State or paramilitary actions. The Commission has received complaints regarding cases in which investigators have suggested that victims of alleged human rights violations are cooperating with armed dissident groups by denouncing violations.
66. As noted in Chapter IV of this Report, State security forces have also traditionally shown an unwillingness to execute arrest warrants against paramilitary groups involved in human rights violations. Without the arrest of these suspects, the criminal justice system cannot effectively sanction those violations.
67. The legitimate fear of public authorities involved in the administration of justice, as well as witnesses, also contributes to the ineffectiveness of criminal proceedings in human rights cases processed in the civilian justice system. Those responsible for human rights abuses sometimes ensure their impunity by threatening or attacking those who might contribute to a sanction against them. In its "Second Report on the Situation of Human Rights in Colombia," the Commission noted that:
Fear of falling victim to some reprisal has gripped judges, regardless of their rank in the judiciary, attorneys who defend their clients, the parties involved in legal disputes, criminal investigations, police who collaborate in investigating criminal prosecutions and witnesses who are key in determining the authorship of the facts under investigation and whose testimony can shed light on the facts and convict the guilty parties.( 35 )
The Commission believes that fear continues to play an important part in ensuring impunity in general, and particularly in human rights cases, in Colombia.
68. In 1992, several non-governmental organizations issued a study regarding violence against judges and lawyers during the period from 1970 to 1991.( 36 ) That study found that, during the period in question, an average of 25 judges and attorneys had been assassinated or assaulted each year because of their professional practice. The members of the judiciary most affected by this violence were those involved in criminal investigations and trials. The study found that drug trafficking was responsible for violence in 58 cases of violence out of a total of 240 for which an author or motive were identified. Paramilitary groups were responsible for 80 of those cases, State agents for 48 cases and the guerrilla movement for 32 cases. The Colombian State offered similar statistics. According to the State, between 1971 and 1991, 515 judges were targets of violence, including 278 homicides.( 37 ) According to information received by the Commission, the situation has not changed significantly in recent years. One exception might be an increase in violence against judges and lawyers by paramilitary groups.
69. In April of 1998, the murder of attorney Eduardo Umaña caused a great impact on Colombian society. Mr. Umaña had frequently denounced human rights violations and sought prosecution of the persons responsible, as well as serving as a defense attorney in criminal cases brought against labor leaders and others. Three armed individuals entered his apartment in Bogotá on April 18, 1998 and shot Mr. Umaña to death.
70. The Commission has not received information which would assure it that the State is taking all necessary measures to prevent violence against judges, lawyers and others involved in the administration of justice. The same impunity which prevails in the majority of cases also tends to prevent effective investigations and sanctions in cases of violence against these persons. The Commission urges the State to provide the necessary protections for these individuals and, at the same time, reminds those officials involved in the administration of justice of their duty, which may not be renounced, to provide for effective investigations and sanctions against those who commit human rights violations.
71. The structure of the criminal justice system in Colombia also contains certain rigid elements which make effective investigations and sanctions more difficult and restrict the rights of victims and their families to access to justice and a remedy. For example, the victims and their family members may only participate in criminal proceedings as civil parties after a suspect has been named and a formal investigation has been opened.( 38 ) These individuals are thus excluded from the initial investigation stage of the proceedings in which suspects are identified. The victim or his family members may have important information which would lead to the identification of those responsible for the crimes. Yet, they are precluded from requesting the gathering of evidence or the taking of testimony until after a suspect has already been named.
72. The Commission wishes to emphasize that some judges and prosecutors have sought to fully discharge their duties and to combat impunity. In this regard, the Commission reiterates its recognition of the work of the Human Rights Unit of the Office of the Prosecutor General of the Nation. In its report on Colombia included in the 1996 Annual Report, the Commission noted that the Human Rights Unit had been able to "push forward criminal investigations in several important human rights cases, including several cases under study by the Commission."
73. The Human Rights Unit was created by the Prosecutor General as a new strategy for fighting impunity. The Unit began to function on October 1, 1995 with competence over all territory in Colombia in cases involving violations of human rights and international humanitarian law assigned to it. The Unit consists of 25 prosecutors and 10 members of the Technical Investigation Corps (Cuerpo Técnico de Investigación "CTI").
74. The Unit continues to move criminal investigations forward at a faster rate than is the norm in Colombia and also continues to issue arrest warrants against members of the Military Forces, paramilitary groups and others. In 1997 and 1998, the Unit issued more than 190 preventive detention orders and brought formal criminal charges against 56 individuals.( 39 ) According to information provided to the Commission by the Government, judicial decisions have been issued in thirteen cases prosecuted by the Unit. The majority of those decisions were convictions of members of paramilitary groups and armed dissident groups. At least one decision did reach several State agents who were convicted of kidnapping, homicide and formation of armed death squads.
75. Nonetheless, the Human Rights Unit faces obstacles which prevent the full realization of its potential to combat impunity. The size of the unit presents an obvious problem. The small number of prosecutors assigned to the Unit cannot possibly address the overwhelming number of serious human rights cases which arise in Colombia. Although the convictions the Unit has achieved are significant, they do not begin to reach all of the authors of human rights violations and all of the cases.
76. This problem is aggravated by the fact that the National Directorate for Prosecutors has not made clear the criteria which it utilizes for assigning cases to the Human Rights Unit. Victims and non-governmental human rights organizations have complained of arbitrariness in the selection of cases. Some organizations have received unclear responses to requests that the Human Rights Unit takes jurisdiction over certain cases. These organizations may be told that the cases do not fall within the parameters established for the Human Right Unit. Yet, no information is provided regarding which cases do come within those parameters.
77. The Unit has also not always received adequate support from other State entities. The Unit frequently has difficulty ensuring the execution of the arrest warrants which it issues. For example, the Unit has issued arrest warrants against both Fidel and Carlos Castaño. Yet, despite Carlos Castaños very public activities, he has not been detained. In addition, the Commission has received information indicating that some civil and military institutions in Colombia have suggested that the Human Rights Unit should be dismantled. Those suggestions appear to stem, at least in part, from the pressure which the Unit has brought to bear on important military officials as a result of its investigations.
78. Many of the prosecutors from the Human Rights Unit have received threats as a result of their work and several, including the prior director of the Unit, have been forced to flee the country and seek shelter abroad. The Commission received information regarding one case in which a member of the State's public security forces accused of committing human rights violations stated in a public hearing that the Human Rights Unit defended subversives and that its members would suffer the consequences. The Commission is concerned by the fact that the paramilitary groups have announced a similar position in formal communiqués. For example, the Peasant Self-Defense Organizations for Córdoba and Urabá (Autodefensas Campesinas de Córdoba y Urabá - "ACCU") prepared a letter in which the organization refers to the Human Rights Unit as "the insurgency in institutional form."( 40 )
79. The Commission is also concerned about the information it has received regarding the murder of Edilbrando Roa López. Mr. Roa was an investigator with the CTI group assigned to the Human Rights Unit. This investigator had been involved in various investigations into human rights cases, including the case of the forced disappearance of Nidia Erika Bautista. At the time of his death, he was investigating a massacre that took place in the Mesopotamia region of the Department of Antioquia. Members of paramilitary groups had threatened several witnesses in the case. On September 3, 1998, Mr. Roa was travelling to the region to investigate these threats when he was detained in a roadblock. He was subsequently killed along with the driver of the vehicle which transported him. The Commission has also received information regarding the possible existence of a plan to attack State agents working with the Office of the Prosecutor General of the Nation, particularly the Human Rights Unit, who have been assigned to carry out investigations against paramilitary groups.
80. The Commission has received information indicating that the State does not always take the special measures necessary, under these circumstances, to ensure the safety of the members of the Unit. Because the Unit for Human Rights has shown its potential to serve as an effective tool against impunity in human rights cases, the Commission strongly urges Colombia to maintain the Unit and to provide it with the material and human resources necessary to allow it to intensify its work.
C. DUE PROCESS RIGHTS FOR CRIMINAL DEFENDANTS
81. The Commission has received numerous complaints regarding violations of the due process rights of criminal defendants. The majority of these complaints arise in the context of the regional justice system. The Commission will thus focus its analysis on issues of due process in that system. Some of the due process failings mentioned in the discussion of the regional justice system may also present themselves in cases processed in the other jurisdictions. The Commission does not attempt here to analyze all of the due process complaints brought to its attention but rather to focus on several broad issues of special concern. The Commission will likely be asked in the future to address additional due process issues, in the context of individual cases or general reports, such as the constitutional and legislative provisions which provide for an exception to the right of appeal in certain criminal cases.
1. Background on the Regional Justice System
82. The regional justice system has its origin in laws and emergency decrees from the 1980s establishing a "public order" jurisdiction. This special jurisdiction was established to handle cases involving particularly serious crimes, such as terrorism and drug trafficking, which presented special risks to those involved in the administration of justice. Additional emergency decrees issued in 1990 and 1991 restructured the public order jurisdiction and established special measures for the protection of those involved in the process. These new measures included a provision to maintain secret the identity of those involved in the proceedings, including the judges and prosecutors.
83. Pursuant to authority granted by a transitory provision of the 1991 Constitution, a special legislative commission converted these decrees into permanent legislation. At the same time, it was established that this special jurisdiction would expire in the year 2002. However, a 1996 law reduced that time period and dictated that the regional justice system must cease to exist by June 30, 1999.
84. The current jurisdiction of the regional justice system includes drug-related crimes, crimes against the state and constitutional order, arms manufacturing and trafficking, terrorism and membership in illegal armed groups. In practice, a wide array of cases is processed by the regional justice system.
85. In fact, one of the first problems associated with the regional justice system relates to the inadequate description of the crimes which fall within its competence. Because the jurisdiction of the regional justice system is not clearly delineated, many different types of crimes at least begin their processing in this system. Even if these cases are later transferred to another jurisdiction, the defendants have meanwhile been subjected to the due process violations which occur in all stages of the processing of a case in the regional justice system, as described below.
86. The vague description of the jurisdiction of the regional justice system also leads to a situation in which certain individuals with resources or influence may avoid this jurisdiction while less fortunate individuals are unable to do so. A study conducted by the law school at the National University of Colombia found that 25% of the defendants in the regional justice system are rural peasants, while 18% are street merchants. Another 9.3% are manual laborers and 7.5% are bus drivers.( 41 )
2. Due Process Issues in the Regional Justice System
87. The Commission has received information indicating that members of the State's public security forces sometimes detain suspects without an arrest warrant. These officials generally assert that the capture was justified as a capture in flagrante delicto, carried out against an individual caught in the act of carrying out a crime. As noted above, Colombian law prohibits arrests without warrant in most cases.( 42 ) There does exist an exception for cases of detention in flagrante delicto.( 43 ) However, the Commission has been informed that the requirements for an in flagrante capture have frequently not been fulfilled in cases of arrest without warrant.
88. As was also noted above, Article 7(2) of the American Convention specifically provides that no one shall be deprived of physical liberty except "under the conditions established beforehand" by the constitution or laws. Authorities violate this provision when they carry out captures in cases where neither of the two possible conditions for arrest under Colombian law, capture in flagrante delicto or capture with an arrest warrant, are met. The Inter-American Court has specifically held that detentions in violation of domestic law provisions which require an arrest warrant, except in the case of captures in flagrante delicto, constitute a violation of Article 7(2) and (3) of the Convention.( 44 )
89. The Commission received information regarding the alleged illegal detention of Juan González Huber and Eduardo Herminso Guillen. Members of the Army captured these two individuals in Puerto Rico, Department of Caquetá on October 14, 1997. The two detainees were accused of involvement in the bombing of a bridge carried out that same day presumably by armed dissident groups.
90. The Army never suggested that there existed an arrest warrant for the two individuals, and the local prosecutor testified that she had not issued such a warrant. The requirements for a detention in flagrante delicto pursuant to Colombian law were also apparently not met.
91. Colombian law permits a detention in flagrante delicto when the person detained is surprised in the moment when he is carrying out a criminal act or when he is surprised with objects, instruments or other traces which indicate that he committed a criminal act "moments before." A detention in flagrante is also allowed where the arresting authority has followed the detainee from the scene of the crime or where the detaining authority has responded to cries for help.( 45 )
92. However, Army officials recognized that they did not detain the two individuals until 40 minutes after the explosion. They asserted that they decided to capture Juan Gonzalez Huber and Eduardo Herminso Gullen based on second-hand information provided to them by civilians in the area who allegedly identified the two men as having taken part in the bombing.( 46 ) Colombian law would not appear to permit a capture without an arrest warrant under these circumstances.
93. The Commission has also received information indicating that Colombian authorities sometimes fail to inform suspects in cases processed by the regional system of the reasons for their capture. According to this information, the suspect also may not be informed of the charge or charges against him within a reasonable time. Even when the legal situation of the accused is formalized and preventive detention is ordered, the charges against the accused are not always made clear. This failure to inform the accused of the reasons for his arrest and the charges against him constitutes a blatant violation of Article 7(4) of the Convention.
94. Analysts of the regional justice system have also pointed out due process problems arising from the fact that members of the State security forces carry out much of the preliminary investigation. This situation results partly from a provision of the law which allows judicial police assigned to the different security forces or to the Office of the Prosecutor General to carry out investigations, including interrogation of the accused in some cases, on their own or pursuant to orders from the prosecutor.( 47 ) However, in some cases, members of the security forces take it upon themselves to carry out investigations without any clear authority to do so.
95. Members of the security forces prepare reports, based on their investigations, regarding suspects. These reports are placed directly on the record in the proceeding before the regional justice system. These reports frequently do not clearly identify the testimonial or documentary sources upon which they rely. In some cases they are even treated as secret documents in the proceeding, precluding any possibility for the accused or his lawyer to controvert their contents. Yet, the prosecutors and judges in the regional justice system frequently treat them as important evidence. Such a procedure places severe limitations on the accuseds right to a defense.
96. The initial gathering of evidence by members of the security forces also often includes interviews of witnesses and suspects. These investigative activities often take place without the presence of either a defense attorney or a prosecutor or other judicial authority. The information obtained is then frequently introduced directly into the criminal file and utilized as evidence for issuing preventive detention orders or even for convictions. These procedures present several serious due process problems.
97. First, Article 8(2)(d)-(e) of the American Convention establishes the right of the accused to have the representation of a lawyer. The Commission has interpreted this provision to include the right to have a lawyer present for all important stages of the proceedings, particularly where the defendant is held in detention. Thus, for example, the Commission has noted that procedures which do not allow for the presence of an attorney "during the first part of the proceeding, in which decisive evidence against the defendant may be produced, could seriously affect his right to a defense."( 48 ) The Commission has also established the right of a defendant, in general, to have an attorney present when giving a statement or undergoing interrogation.( 49 )
98. Yet, according to the information received by the Commission, persons accused in the regional justice system and held in detention frequently do not have a defense attorney present in the initial stages of the investigation when they are interrogated and when important evidence gathering takes place. In addition, confessions and adverse witness testimony obtained without the presence of a defense attorney in these early stages are placed in the record and utilized to reach important decisions regarding the fate of the defendant.
99. Second, the lack of supervision by prosecutorial or judicial authorities over important evidence gathering, including confessions by the defendant, means that there sometimes will not exist adequate assurances as to the integrity of the evidence and/or confessions obtained. Yet, again, prosecutors and judges use this evidence to make important determinations once a formal criminal proceeding has been opened without any further confirmation or analysis.
100. Presumably for these reasons, Colombia law establishes that an acceptance of responsibility by the accused in the initial investigation stage will only be treated as a confession if rendered before the prosecutor.( 50 ) However, the Commission has received information indicating that this provision is routinely ignored and that prosecutors and judges treat confessions obtained in any stage of the proceedings before any authority as a strong if not decisive indicator of guilt.
101. Also, the presence of a judge, prosecutorial authority or defense attorney when an accused person is questioned is necessary to ensure that other rights, in addition to due process rights, are not violated. When a suspect is left alone with members of the security forces for questioning, there exists a greater danger that he may be subjected to torture or inhumane treatment, in violation of Article 5 of the Convention.
102. The information provided to the Commission regarding the detention of Juan González Huber and Eduardo Herminso Guillen may provide an example of the due process difficulties involved in initial investigations controlled essentially by members of the States security forces. In that case, the two suspects were presented to the local prosecutor in Puerto Rico, Caquetá after their arrest. However, the commander of the local Army base testified that he retrieved the two suspects from the police station several hours later and informed the prosecutor that he would interrogate them and then return them.( 51 ) This officer further testified that he took the two suspects to his military base and held them there during the night. He stated that his soldiers rotated in the questioning of the suspects during the night.( 52 ) The information available to the Commission indicates that no judge, prosecutor or defense lawyer was present during this interrogation, despite the fact that Juan Gonzalez Huber had specifically requested an attorney.
103. The two suspects subsequently declared before the authorities that they were subjected to tortures during the time they were held by the Army. They stated that they were tied to a tree on the base grounds and were hit in the stomach and the head by the soldiers. The soldiers also allegedly threatened them with death if they did not confess to the bombing of the bridge.
104. A confession obtained while the suspects were held at the military base was subsequently introduced on the record. The commander of the base indicated that he had taped the confession at midnight on the night that the two suspects were captured. The Office of the Regional Prosecutor was then asked to bring formal charges against the suspects and order preventive detention based on the tapes which were referred to as containing a "confession."( 53 )
105. In this case, the Office of the Regional Prosecutor declared the proceedings and confession to be invalid and ordered the suspects to be freed. However, the Commission has received other complaints and information, from various sources, regarding cases of confessions obtained by torture. In some of those cases, the confessions are subsequently used in proceedings against the suspects.
106. The Commission wishes to emphasize that torture of detained suspects violates the fundamental right to be free from torture and inhumane treatment protected in Article 5 of the Convention. Article 8(3) of the Convention also establishes clearly that confessions shall not be treated as valid if made under coercion of any kind.( 54 ) The Commission considers that the current procedures and practices permitted in the initial investigation stage of cases before the regional justice system create conditions propitious for the violation of these rights.
107. The Commission has also detected a serious due process problem in the fact that certain regional prosecutors are based in military installations. These prosecutors work from offices physically placed in military bases and tend to be seen as the prosecutors for the respective military battalion or brigade. They generally work in close cooperation with military authorities.
108. The Commission believes that this situation seriously compromises the objectivity and independence of the prosecutor. At a minimum, under these circumstances, members of the Army have greater access to the prosecutor than do other individuals, including other State authorities and private individuals. In fact, for private individuals, it may be quite difficult to obtain any access because of restrictions on entry into military installations. Yet, these regional prosecutors are charged with pursuing a variety of crimes. The investigation and prosecution of many of these crimes would require significant contact with authorities and individuals outside of the military.
109. In practice, according to credible information received by the Commission, the regional prosecutors who act in military installations become members of the team that works in those installations. Although they do not depend hierarchically upon the military officers in a technical sense, they tend to act upon the orders of the commander of the brigade or battalion in coordination with the soldiers.
110. Thus, for example, the Commission has received complaints alleging that these regional prosecutors in military installations act as facilitators for the actions which the Army seeks to execute by providing the legal formalities necessary. According to these complaints, they sign arrest warrants and orders to search presented to them by the military without carrying out any independent analysis as to whether the legal and factual foundations for those orders exist.
111. The Commission has also received credible information indicating that these prosecutors sometimes accompany Army units in their operations to ensure that any actions they carry out may be legalized in the moment with a hastily drawn up order permitting a search or arrest. One non-governmental organization claimed to have knowledge of several cases in Barrancabermeja in which prosecutors participated in military search and seizure operations carrying Army weapons and in full military uniform.
112. Given the broad authority granted to prosecutors in Colombia, the Commission expresses its extreme concern that some regional prosecutors act in a manner which does not guarantee the criminal defendant his right to confront an independent and impartial decision-maker. The Commission notes that it has always found serious human rights issues in situations where the military enjoy authority to carry out criminal investigations and arrests. This body expresses its hope that the current regional justice system does not serve as a façade for just such a system.
113. The Colombian public received information regarding other alleged instances of military intervention in proceedings before the regional justice system upon the death of well-known criminal defense lawyer Eduardo Umaña. In a document prepared before his death, Mr. Umaña denounced a case in which the commander of the Nueva Granada battallion directly intervened before the regional justice system to impede the release of a defendant.( 55 ) This commander sent a letter to the judicial authorities charged with the investigation on April 23, 1996. In that letter, he stated that he had learned from the prosecutors that the defendant would be released shortly. He asked that the defendant not be released and informed the authority that several witnesses had provided information regarding the criminal conduct of the accused individual.
114. On May 29, 1996, the judicial authority issued an order for preventive detention against the suspect, giving as grounds the commanders letter. This authority apparently did not even interview the witnesses mentioned by the commander or read their written statements directly. Rather, he depended on the information provided by the commander and complied with this officers request to maintain the accused individual in prison.
115. Another frequent complaint received by the Commission regarding the regional justice system relates to the defendants right to be assisted by an attorney. According to these complaints, restrictions are often imposed in the regional justice system making it difficult for the defendant to speak with his attorney in private. The Commission considers that such limitations constitute a flagrant violation of the defendants right "to communicate freely and privately with his counsel," protected by Article (8)(2)(d) of the American Convention.
116. The Commission has also received significant information indicating that many defendants in the criminal justice system do not receive adequate representation from their attorneys. This lack of adequate representation has the greatest impact on poorer defendants. These individuals do not have sufficient financial resources to hire a private attorney. The State therefore has the obligation to provide an attorney. The Colombian Code of Criminal Procedure provides for the provision of defense attorneys to indigent defendants. In first instance, the State must seek to name a public defender from the Office of Public Defenders in the Office of the Human Rights Ombudsman. In those cases where a public defender is not available, the State names a de oficio defender. The de oficio defender is an attorney who does not serve as a public defender by profession but who must fulfill the obligation to serve as criminal defense attorney when called by the State to do so.
117. In practice, there exist far too few public defenders to satisfy the needs of defendants who must be provided with a state-appointed attorney. As a result, a great number of defendants receive the assistance only of a de oficio defender. The de oficio defenders have frequently been accused of failing to provide a serious and competent defense. The Commission has received complaints indicating that the de oficio defenders appear for proceedings only when absolutely required to do so and only to sign the documents necessary to prove that a lawyer represented the defendant. The de oficio lawyers rarely object to any proceedings carried out and generally do not engage in any independent preparation of the defense case. In addition, in many cases, the defense lawyer is named just as an investigative or other proceeding or hearing is about to begin, precluding any possibility for reasonable preparation.
118. The Commission notes that international standards have established that the right to counsel means the right to effective counsel.( 56 ) The State does not discharge its duty in this regard by simply appointing an attorney but rather must ensure that the defendant is receiving an adequate defense by state-appointed counsel. Where the State fails to do so, it violates the provisions of Article 8(2)(e) of the American Convention.
119. One of the most criticized aspects of the regional justice system has been the use of "secret" or "faceless" prosecutors, judges and witnesses. The reserve of the identity of crucial actors in the criminal proceeding has been a central element of this jurisdiction.
120. Reforms implemented in 1996 by the Office of the Prosecutor General of the Nation sought to limit the use of anonymity in the proceedings in the regional justice system. The Prosecutor General issued a resolution providing that the use of reserve of identity for judicial authorities would be used only as an exceptional measure. In addition, it was established that a conviction could not be based on evidence provided by anonymous witnesses alone. The Commission considers that these restrictions constitute an important, although insufficient, step towards limiting the arbitrariness imposed by the "faceless" justice system. However, defense attorneys have indicated to the Commission that the new restrictions have not yet had a significant effect on the functioning of the system.
121. In the context of Colombia and other countries, the Commission has repeatedly noted that "faceless" justice systems do not provide adequate due process guarantees for criminal defendants.( 57 ) The anonymity of the prosecutors, judges and witnesses deprives the defendant of the basic guarantees of justice.
122. Because the defendant does not know who is judging or accusing him, he cannot know whether that person is qualified to do so. Nor may he know whether there exists any basis to request recusal of these authorities based on incompetence or lack of impartiality. As a result, the defendant cannot be guaranteed trial by a competent, independent and impartial court as guaranteed by Article 8(1) of the American Convention.
123. The defendant is also prevented from carrying out any effective examination of the witnesses against him. The right to examination is largely important, because it provides the defendant with the opportunity to question the witnesss credibility and knowledge of the facts. The defendant cannot adequately examine a witness if he does not possess any information regarding the witnesss background or motivations and does not know how the witness obtained information about the facts in question. The "faceless" justice system thus also leads to the violation of Article 8(2)(f) of the American Convention, guaranteeing the right of the defense to examine witnesses.
124. These dangers, inherent in a criminal system which provides for the anonymity of its central participants, have had a very real impact in the regional justice system in Colombia. The provisions allowing for the anonymity of witnesses have led to particularly serious anomalies.
125. In some cases, the same witness has provided incriminating evidence against defendants in testimony provided under several code names. In this manner, judges are led to believe that several witnesses corroborated one anothers testimony against the defendant when, in fact, only one witness existed. For example, César Carrillo, ex-president of the Workers Labor Union (Unión Sindical Obrera), was charged with terrorism and placed in preventive detention based on "cloned" testimony. In that proceeding, it was discovered that prosecutors duplicated the testimony of one witness and provided different code names for each of the duplicated statements. The Office of the Procurator General of the Nation found that the "cloned" testimonies had served as the basis for the charges brought against Mr. Carrillo and other members of the union and sanctioned three prosecutors.( 58 ) Several months later, Mr. Carrillo was finally released from detention.
126. Important information calling into question the credibility of secret witnesses has been revealed as well. For example, certain witnesses who testify against defendants in proceedings in the criminal justice system have received payment from the military according to the number of convictions which they help to obtain. The State's security forces have also sometimes provided these witnesses with food and lodging during extended periods of time. One of the witnesses in the criminal proceeding against the members of the Workers Labor Union revealed that he received these types of payments for his testimony in that case and others. In at least one case, it has been suggested that a member of a paramilitary group served as a witness presented by the Army in a criminal proceeding in the regional justice system.( 59 ) The due process rights of the defendant are, of course, severely compromised if he is convicted on the basis of this type of testimony without any opportunity to question the credibility of the witness. Yet, in most cases, the defendant does not have access to information which would reveal these credibility issues, because the identity of the witnesses is held in reserve.
127. The Commission thus expresses its most serious concern regarding the lack of due process rights for defendants prosecuted in the regional justice system. The system was instituted as a well-intentioned effort to combat the impunity which the Commission itself has named as a serious human rights problem. However, the rights of the defendant to due process of law, as guaranteed in the American Convention and other international instruments, may not be sacrificed to achieve this lofty goal.
128. In any case, carefully conducted studies have shown that the regional justice system has not served as an effective tool for combating impunity. One such study found that this system only manages to issue final decisions in 8% of the proceedings initiated in relation to crimes falling within its jurisdiction.( 60 )( 61 )
129. The Commission does note that the Human Rights Unit of the Office of the Prosecutor General of the Nation is a unit composed of prosecutors who act within the regional justice system. The Commission has expressed its opinion that this Unit has acted in a manner which has allowed more serious and effective investigations. The Commission expresses its firm belief, nonetheless, that the Unit could operate at the same level of effectiveness without recurring to the regional justice system, thereby protecting the rights of defendants.
130. The Commission is aware that legislation has been presented on several occasions to dismantle the regional justice system earlier than the June, 1999 date for its automatic elimination. However, such legislation has never been enacted and is now unlikely to be approved and implemented before the automatic deadline. The Commission deeply regrets that the Colombian State has not acted previously to implement the reiterated recommendations of this and other bodies urging that the system be dismantled. The Commission now calls upon the Colombian State to immediately dismantle the regional justice system and to take all measures necessary to ensure that is not extended in time or reinstated.
D. PROPOSED CONSTITUTIONAL REFORMS RELATING TO THE ADMINISTRATION OF JUSTICE
131. Over the last several years, the President and certain members of Congress proposed, on various occasions, constitutional reforms which would have resulted in significant changes to the administration of justice in Colombia. Many of these reforms, which were eventually either withdrawn or defeated in most cases, have raised serious questions about their compatibility with Colombias obligations under the American Convention and other human rights instruments.
132. One such reform sought to prevent the Constitutional Court from reviewing declarations of states of emergency and to eliminate the current time constraints on such declarations. This proposed reform also would have converted certain emergency measures into permanent legislation, including a measure that would authorize the military to investigate crimes, including those involving civilians, even in non-emergency situations. This reform package also included a measure to legalize detention without a warrant for a period of up to seven days.
133. Additional proposals for reform sought to limit or bar civilian criminal and disciplinary investigations of members of the State's security forces. This reform would have had the result of replacing civilian disciplinary investigations carried out against the Military Forces and the police by the Office of the Procurator General of the Nation with internal military disciplinary investigations. As to criminal investigations, jurisdiction would presumptively lie with the military justice system and would only be granted to the Office of the Prosecutor General of the Nation in certain circumstances and upon request of that Office. Thus, civilian prosecutorial authorities would not be permitted to begin an investigation into alleged wrongdoing unless and until a decision was issued granting jurisdiction to the Office of the Prosecutor General. The Commission views with particular concern these proposed reforms.
134. For the reasons set forth above, almost all crimes committed by members of the public security forces are tried in military courts, which have been found not to be impartial and which have created a situation of impunity to protect those servicemen. The constitutional reforms would have made it much more difficult for impartial civil prosecutorial authorities to even initiate investigations against members of the military and the police.
135. Similarly, the reforms would have precluded disciplinary review of actions by members of the security forces and the police by civilian authorities. Such a change would have several problematic consequences. First, civil disciplinary proceedings currently serve at times to fill partially the gap left by ineffective criminal proceedings. Thus, at least some sanction is levied against members of the public security forces who commit violations, even though that sanction is often light in comparison to the abuse committed and cannot satisfy the right to justice of the victim or his family members. However, a prohibition of review by the Procurator General in cases involving members of the security forces would preclude use of even this mechanism.
136. Second, the Office of the Procurator General currently plays the important role of providing a form of civil review of the criminal proceedings carried out in the military tribunals. The Office of the Procurator General has jurisdiction to carry out disciplinary investigations and punishment of military officials who improperly conduct criminal proceedings. This important civil review of actions taken by military officials in the military justice system would cease to exist under the reforms proposed.
137. The Commission considers that many of these reforms would have constituted a step backward in the protection of human rights in Colombia after the important advances made in the 1991 Constitution in favor of human rights. The Commission hopes that similar reforms will not be reintroduced and urges the organs of the Colombian State to consider the requirements set forth by the American Convention and other international human rights instruments when it considers proposing changes to domestic law.
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
( 1 ) See I/A Court H.R., Velásquez RodrÍguez Case, Judgment of July 29, 1988, pars. 169-70. ( 2 ) Id., par. 166. ( 3 ) See id., par. 177; IACHR, Report No. 4/98, Case 9853 (Colombia), April 7, 1998, par. 46; IACHR, Report No. 28/92, Multiple Cases (Argentina), October 2, 1992, pars. 32, 50; IACHR Report No. 10/95, Case 10.580 (Ecuador), September 12, 1995, pars. 42-48. ( 4 ) See "Hay 214,907 sindicados sin capturar," El Tiempo, January 5, 1998. ( 5 ) See "La acción del Gobierno en la lucha contra la impunidad," in Presidential Adviser for Human Rights, Lucha contra la Impunidad, 1989, at 66, 67. ( 6 ) In its observations to this Report, the Colombian State stated that it "shares with the Commission the belief that impunity is a structural problem which impacts in general the life of the nation and its culture." At the same time, the State suggested that the Commission should recognize the existence of a perception in society that the creation of the Office of the Prosecutor General has contributed to a change in the public's beliefs regarding impunity. The Commission would like to point out that, in Chapter II of this Report, it noted that the establishment of the Office of the Prosecutor General constituted an important step forward in the administration of justice in Colombia. ( 7 ) See, e.g., Report of the United Nations High Commissioner for Human Rights, E/CN.4/1998/16, March 9, 1998, par. 117. ( 8 ) See E/CN.4/1998/39/Add.2, Chapter V, par. 1. ( 9 ) The States public security forces include both the Military Forces and the National Police. ( 10 ) See, e.g., IACHR, Second Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, Doc. 39 rev., October 14, 1993, at 246 [hereinafter IACHR Second Report]; Report on the Situation of Human Rights in Brazil, OEA/Ser.L/V/II.97, Doc. 29 rev. 1, September 29, 1997, at 40-42. ( 11 ) Constitutional Court of Colombia, Sentence C-141, March 29, 1995. ( 12 ) See IACHR Report No. 26/97, Case 11.142 (Colombia), September 30, 1997, pars. 113, 139. ( 13 ) Procurator General of the Nation, Second Report on Human Rights, June, 1993, cited in IACHR Second Report, at 95. ( 14 ) Emphasis added. ( 15 ) See Superior Council of the Judiciary, Case No. 10916-A/162, January 23, 1997. ( 16 ) This case is currently being processed by the Commission under number 11.603. The reference to the case in this Chapter does not in any way imply a prejudgment by the Commission of the admissibility or the merits of the case. ( 17 ) See Constitutional Court, Sentence C-357/98, August 5, 1997. ( 18 ) The reference to the case in this Chapter in no way constitutes a prejudgment of its admissibility or merits. ( 19 ) See, e.g., Superior Council of the Judiciary, Case No. 14851-A, November 6, 1997. ( 20 ) See Political Constitution of Colombia, Art. 241. ( 21 ) The Commission is processing this case under the number 11.654. The reference to the case in this Chapter in no way constitutes prejudgment as to its admissibility or merits. ( 22 ) See Note from National Defense Ministry to Ministry of Justice , March 9, 1998. ( 23 ) See Office of the Prosecutor General of the Nation, National Directorate for the Prosecutors, Resolution No. 0357, October 21, 1997. ( 24 ) See Note from the Office of the Prosecutor General of the Nation to Reinaldo Villalba Vargas, November 19, 1997. ( 25 ) See Proposed Law Number 064, House of Representatives, September 9, 1997, Arts. 2-3 [hereinafter Proposed Law 064]. ( 26 ) See Constitutional Court, Decision No. 275/94, June 15, 1994. ( 27 ) See, e.g., IACHR, Report No. 28/92, Multiple Cases (Argentina), October 2, 1992, par. 34; IACHR, Report No. 29/92, Multiple Cases (Uruguay), October 2, 1992, par. 41. ( 28 ) See Proposed Law 064, Art. 34(2). ( 29 ) See Report of the United Nations High Commissioner for Human Rights, E/CN.4/1998/16, March 9, 1998, par. 143. ( 30 ) See, e.g., IACHR, Report No. 28/92, Multiple Cases (Argentina), October 2, 1992, par. 34. ( 31 ) See Proposed Law 064, Arts. 301-02. ( 32 ) Some commentators have suggested that the high rate of impunity in the civilian justice system makes irrelevant the discussion regarding limitations on the jurisdiction of the military justice system. These commentators suggest that effective investigations and sanctions will be equally rare even if international recommendations to exclude serious human rights cases from the military justice system are eventually adopted. The Commission is of the opinion that the effort to remove from the military jurisdiction cases not involving military crimes continues to be important. The Commission considers that the military justice system has characteristics inherent to its very conception and structure which prevent victims of human rights violations and their family members from obtaining impartial investigations and access to an effective remedy in that jurisdiction. On the other hand, the civilian criminal justice system provides, in theory, the recourse required in human rights cases. Thus, the Colombian State should simultaneously focus on ensuring that serious human rights cases are processed in the civilian justice system and on resolving the problems currently afflicting that system. ( 33 ) In this respect, the Commission is pleased to receive information from the Colombian State indicating that public funding directed at the administration of justice was doubled between 1990 and 1994. In this same period, there was a 53% increase in the number of functionaries assigned to the administration of justice. Between 1992 and 1993, salaries for these employees were raised at rates between 37% and 132%. The Commission has nonetheless received significant information indicating that the resources dedicated to the administration of justice are still insufficient. ( 34 ) See Note to the Inter-American Commission on Human Rights from the Office of the Prosecutor General of the Nation, Regional Directorate of Prosecutors for Medellín, Office of the Regional Prosecutor for Carepa, December 5, 1997, annexing a document entitled "Initial Investigations, Office of the Regional Prosecutor 103 for Carepa." ( 35 ) See IACHR Second Report, at 106. ( 36 ) See International Commission of Jurists and Andean Commission of Jurists, Colombia Section, Justicia para la justicia: Violencia contra jueces y abogados en Colombia 1979-1991, 1992. ( 37 ) See Ministry of Justice and Law, Republic of Colombia, Crimen organizado y justicia, 1995, p. 32. ( 38 ) See Criminal Procedure Code, art. 45. ( 39 ) See "Derechos humanos, en alerta roja," El Tiempo, September 9, 1998. ( 40 ) Letter from the Peasant Self-Defense Organizations for Córdoba and Urabá to the Prosecutor General of the Nation, May 21, 1998. ( 41 ) See National University of Colombia, Department of Law and Political and Social Sciences, Unit for Legal and Social Research, Justicia sin rostro. Estudio sobre la justicia regional [hereinafter Justicia sin rostro]. ( 42 ) See Political Constitution of Colombia, Art. 28. ( 43 ) See id., Art. 32. ( 44 ) See I/A Court H.R., Suárez Rosero Case, Judgment of November 12, 1997, pars. 44-47. ( 45 ) See Code of Criminal Procedure, Art. 370. ( 46 ) See Memorandum from the Armed Forces of Colombia, National Army to the Regional Prosecutor for Florencia, October 15, 1997. ( 47 ) See Code of Criminal Procedure, Arts. 312, 313. ( 48 ) See Annual Report of the Inter-American Commission on Human Rights 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, September 26, 1986, at 154. ( 49 ) See IACHR, Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.61, Doc. 47, October 5, 1983, at 91. ( 50 ) See Code of Criminal Procedure, Art. 322. ( 51 ) See Testimony of José Henry Martínez Campo, Commander of the Cazadores Battalion in Puerto Rico, Caquetá, before the Office of the Regional Prosecutor for Florencia, Department of Caquetá, October 18, 1997. ( 52 ) Id. ( 53 ) See Resolution of the Regional Directorate of Prosecutors, Santafé de Bogotá, Specialized Terrorism Unit, October 30, 1997. ( 54 ) Article 10 of the Inter-American Convention to Prevent and Punish Torture similarly establishes that no statement obtained through torture shall be admissible as evidence in a legal proceeding except as evidence in an action against those accused of committing torture. ( 55 ) See "Memorias anticipadas de Umaña," El Tiempo, April 22, 1998. ( 56 ) See, e.g., Miguel Angel Estrella v. Uruguay (74/1980) (29 March 1983), Selected Decisions of the Human Rights Committee under the Optional Protocol, International Covenant on Civil and Political Rights, Vol. 2, at 93; Application No. 9127/80 (6 October 1981) (unpublished), Strasbourg Digest of Case Law, vol. 2, at 846. ( 57 ) See, e.g., Annual Report of the Inter-American Commission on Human Rights 1996, at 658 (Colombia), 736 (Peru). ( 58 ) See "Procuraduría sanciona a fiscales de la USO," El Tiempo, March 13, 1998. ( 59 ) See "El documento de Umaña," El Tiempo, April 22, 1998. ( 60 ) See Justicia sin rostro, at 152.