doc. 22
30 June 1981
Original:  Spanish






A.       Political Organization of the Colombian State


          1.       Colombia is constituted as a centralized republic under the Constitution of 1886, which was decreed “for the purpose of strengthening the national unity and assuring the ends of justice, liberty and peace”.  [1]/


          The Colombian constitutional system, as set forth in the1986 text, has undergone significant amendment.  These changes were designed to strengthen separation of public powers. [2]/  Pursuant to Article 2 of that text, sovereignty is vested essentially and exclusively in the nation and from it came the public powers which are exercised according to the terms set forty by the Constitution.


          The Constitution upholds that essential principle by asserting,  “the branches of public power are the legislative, the executive and the judicial”; and, “the Congress, the President and the judges have separate functions, but collaborate harmoniously in the realization of the aims of the state”.


          2.       The legislative branch consists of the Congress of the Republic, which is bicameral and consists of the Senate and the Chamber of Representatives.  The first is made up of two senators for each department and one ore for each 200,000 inhabitants or for each fraction greater than 100,000 inhabitants that the department has in excess o f the first 200,000.  The second is composed of two representatives for each department and one more for each 100,000 or fraction greater than 50,000 inhabitants that it has in the direct vote of citizen.  Congressional members represent the entire nation and should cast their votes only in the interest of justice and the public good. [3]/


          3.       The executive branch, or the Government, is made up of the President of the Republic and the ministers of state or chiefs of administrative departments, and in each particular case, the President and the minister or chief of the corresponding administrative department.  The President of the Republic is elected in one day by the direct vote of the citizens and for a term of four years, in the manner prescribed by law.  The President may not be re-elected in any case for the succeeding term.  In the case of the President’s complete inability to serve, he is replaced by a designate who is elected by the Congress.  [4]/


          4.       The judicial Brach consist of the Supreme Court of Justice, the highest district courts and all other courts that the law may establish.  The Senate performs specified judicial functions and justice is a public service that is responsible to the nation.  [5]/


          The Supreme Court of Justice is composed of the number of judges that the law prescribes and is divided into sections, which hear their respective matters separately, except those in which the entire court participates. [6]/


          The Supreme Court of Justice exercises judicial control for the purpose of maintaining the integrity of the Constitution and carrying out the powers entrusted to it in this area. [7]/


B.       Human rights in the Colombian constitutional system


          1.       The rights that are inherent to the dignity of the human being are contained in the current Colombian constitutional system.  In effect, Title III of the 1886 Constitution and its subsequent amendments regulate civil rights and social guarantees.  Other provisions of the basic text complement a legal order designed to protect and safeguard human rights.


          2.       An analysis of constitutional law identifies the following guarantees:


a)       “The authorities of the Rep7lic are established to protect the lives, honor and goods of all persons residing in Colombia, and to secure the fulfillment of the social obligations of the state and of individuals.“  Furthermore, as regards the right to life, the constitution prescribes, that “in no case may the lawmaker impose the death penalty.”  [8]/


b)       The right to personal integrity and liberty means that  “no one may be molested in his person or family, or imprisoned or arrested or detained, or have his domicile searched, except by virtue of a warrant issued by competent authority, with all legal formalities and for cause defined previously by law.”  In no case there “be detention, imprisonment or arrest for debts or purely civil obligations, except for judicial bond.”   Furthermore, “no one may be compelled in criminal, correctional or police proceedings to testify against himself or against his relatives within the fourth civil degree of consanguinity or second degree of affinity.”  Prohibition of slavery is provided thusly: “There shall be no slave, “who sets foot in the territory of the Republic, shall thereby be free.”[9]


c)       The right to work is viewed as “a social obligation and shall enjoy the special protection of the state”; and “the right to strike, except for public services, is guaranteed.”  “Public aid is a function of the state.”  [10]/


d)       “Private persons are not answerable to the authorities, only for violation of the Constitution and of the laws.  Public officials are answerable for the same violations, and also for exceeding their powers, or for omissions in the fulfillment of their duties.”  “In the case of manifest violation of a constitutional provision in detriment of any person, the order of a superior shall not exempt from responsibility the agent who executed it.  Military in service are excepted from this provision.  With respect to them, the responsibility shall devolve exclusively on the superior who gave the order.”  [11]


e)       The judicial guarantees state,  “no one may be tried except in conformity with laws enacted prior to the commission of the offense with which he is charged, by courts having competent jurisdiction, and in accordance with all formalities proper to each case.  In criminal matters, a permissive law or favorable to the defendants, even if enacted after the law, Commission of the alleged offense, shall be applied in preference to a restrictive or unfavorable law.”  [12]/


f)        “Private property is guaranteed,” as well as rights acquired by individuals and corporate bodies, but private property is viewed as having a “social function that entails obligations.”  Expropriation through judicial ruling and prior indemnity must be consistent with reasons of public utility or social interest as defined by the legislator.   However, in case of war and in furtherance of the re-establishment of public order, non-judicial authorities may decree expropriation and the indemnity does not have to be prior, but the real property may be occupied only temporarily.  The Constitution also guarantees, “freedom of enterprise and private initiative within the limits of the common welfare.”  It establishes that “the penalty of confiscation may not be imposed.”  [13]/


g)       The inviolability of the domicile and of correspondence means that no one’s domicile may be searched “except by virtue of a warrant issued by a competent authority” and in compliance with all legal formalities, and “correspondence by telegraph and mail is inviolable.” Likewise, private letters and papers may not be intercepted and searched, except in legally designated cases.  [14]/


h)       “Freedom of education is guaranteed,” and the state is responsible for “final inspection and supervision of institutions of learning, public and private.”  Primary education shall be free in all school of the state and compulsory to the extent determined by law.”  [15]/


i)        Freedom of thought and expression are put in the following terms:  “The press is free in time of peace, but responsible, under the law, for attacks on personal honor, the social order or the public tranquility.”  [16]/


j)        Freedom of association is recognized constitutionally:  “It is permitted to form companies, associations and foundations that are not contrary to morals or to lawful order.  Associations and foundations may obtain recognition as juridical persons.”  Religious associations require authorization issued by the respective ecclesiastic superior. [17]/


k)       The right of assembly is established in the following terms:  “Any number of people may assembly peacefully.  The authorities may disperse any assembly that degenerates into disorder or riot, or which obstructs public thoroughfares.  “Permanent political assemblies of the people are prohibited.”  [18]/


l)        The right to petition is conceived as the right of every person “to present respectful petitions to the authorities, on matters of general or private interest, and to obtain prompt action thereon.”  [19]/


m)      The fundamental text provides that, “the laws shall determine the responsibility to be incurred by public officials of all classes who violate” civil rights and social guarantees recognized in the constitution.  [20]


3.       Article 28 of the Colombian Constitution, which is under the title of civil liberties and social guarantees, has been the subject of various controversies because it is considered that its application on a road scale is associated. In practice, with the power that Article 121 confers upon the President of the Republic in connection with the implementation and enforcement of the state of siege. 


          The aforementioned constitutional standard provides the following:


“Even in time of war, no one may be p7nished ex-post facto, except under the terms of law, order or decree in which the act has been previously prohibited and the corresponding punishment determined.


This provision shall not prevent, even in time of peace, when there are serious reasons to fear disturbance of the public order, apprehension and holding by order of the government, after a decision by the ministers, of persons suspected, from serious indications, of attempting to disturb the public order.


If the persons retained have not been set free after ten days of apprehension, the Government shall proceed to order their freedom or place them at the disposal of competent judges with the evidence alleged so that the judges may make their decision in accordance with law.


          4.       Other aspect concerning human rights are regulated in the Colombian Constitution as follows:


a)       Nationally and citizenship are the subjects of Title II relating to residents, both national and foreign.  This part established the conditions and legal requirements in both cases.  To the end, “it is the duty of all nationals and foreigners to live in accordance to the Constitution and the laws, and to respect and obey the authorities.”  Foreigners enjoy the same civil liberties as those granted to Colombians and the same guarantees as those accorded to nationals, except for special commissions and limitations set forth in the law and established by the Constitution.  Political rights are reserved to nationals of the country and “the status of active citizenship in an indispensable prior condition for exercising the right to vote and be elected and to hold public office that entails related authority or jurisdiction.”  [21]/


b)       The freedom of conscience and religion is the subject of Title IV on religion and relations between the church and the state.  “The state guarantees the freedom of conscience.”  “No one shall be molested y reason of his religious opinions nor compelled to profess beliefs or to observe practices contrary to his conscience.”  Likewise, “freedom is guaranteed to all cults that are not contrary to Christian morality or to the laws.”  [22]/


c)       In the area of political rights, besides the freedoms of association, assembly and performance of public duties mentioned above, Colombia’s constitutional systems stipulate, “suffrage is exercised as a constitutional function.  Any person who votes for or elects a candidate does not impose obligations on the candidate nor confer a mandate to the official elected.”  Furthermore, it provides, “the law shall regulate all other matters concerning elections and vote counts and safeguard the independence of both functions; it shall define the crimes that impair the truth and freedom of voting an d shall establish the appropriate penalties.”  [23]/


d)       The Constitution also states, “no person or corporation may exercise simultaneously, in time of peace, political or civil authority and judicial or military authority.”  One of the powers of Congress is that of granting for serious reasons of political advisability,  "“General amnesties or pardons for political offenses."” The legislative body is prohibited from “decreeing acts of proscription or persecution against persons or corporations.”  Among the powers of the President of the Republic are the following: i)  “Ensure that throughout the Republic justice is administered promptly and enforced, and to provide judicial officers, under the terms of law, such help as may be necessary for the enforcement of their decisions”; ii) “Grants pardons for political offenses in accordance with the laws regulation the exercise of that power”; iii)  “preserve the public order throughout the territory and re-establish it wherever it has been disturbed.”  Finally,  “the President of the Republic, or whoever is acting in his place, shall be liable for his acts or omissions in violation of the Constitution or the laws.”  [24]/


C.       The Constitutional Reform of 1979


          1.       By legislative Act. No. 1 of November 21, 1979, the Congress of the Republic adopted the most recent constitutional reform of Colombia’s basic juridical structure.  This reform includes, in addition to other aspects, the establishment of the Attorney General’s office, changes in the Procurator General’s Office and as part of the latter, the Organization of the office of the Assistant procurator General for Human Rights.


          The aforementioned law introduced substantial modifications, especially to the section on administration of justice.  It established new offices in this area and led to the exercise of new powers aimed at effective observance of human rights.  [25]/


          2.       The reforms gives the Procurator General of the nations specific powers to defend human rights.  In particular, the provision expresses the following:


The Procurator General of the nation and his agents are responsible for defending human rights, securing social guarantees, the interest of the nation and the patrimony of the state, and supervising public administration.  In furtherance thereof, he shall have the following special powers:


1)       Rule of charges he receives concerning violations of human rights and social guarantees by public officials or employees, verifying them and giving hen due legal processing;


2)       Safeguard the integrity of the right to a fair trial and the legality of penal proceedings;


3)       Watch over the official conduct of public officials and employees and exercise disciplinary power over them, directly or by threatening the imposition of penalty, without prejudice to the powers of the respective superiors in rank.  Membership in career service shall be no obstacle to the correction that may be due;


4)       Bring before competent authorities any investigation of criminal infractions that public officials or employee may have committed;


5)       Monitor the conduct of officials and employees of the judicial branch and bring suit before the Supreme Council of Judicature or appropriate disciplinary action;


6)       Demand all information that he considers necessary for implementation of his powers, to which there may be no objection, except or the matters contained in No. 4 of Article 78;


7)       Represent judicially, by himself or through his agents, the interest of the nation, without prejudice to the interested agency establishing its own special agents when it deems advisable;


8)       Promote the enforcement of the laws, judicial sentences and administrative provisions;


9)       Submit an annual report to Congress on the exercise of his functions;


10)      Submit to the Congress for its consideration draft laws on matters within his area of responsibility, especially the defense of human rights and social guarantees;


11)     Appoint assistant Procurator Generals to the administrative law system in the manner and for the terms called for by law, appoint and remove other agents and employees in his dependent units and take care that the duties of this office are performed faithfully.


The Delegate procurators General to the administrative law judicial system shall have the same qualities, compensation and benefits as the members of the body before which they perform their functions.


12)      All other powers given by law.  [26]/


3.       As a measure to help implement the constitutional reform of 1979 with respect to the office of the Procurator General. This office submitted to the Congress of the Republic for its consideration and future approval, a draft law setting forth the structure, functions, powers and organization of that office of the Colombian State.  In that draft law, Articles 28 and 34 inclusive, established the office of the Procurator for the defense of Human Rights.  An examination of its precepts lead to the following deductions: (1) This specific Procurator’s office is responsible for watching over effective fulfillment of the human rights guaranteed in law 74 of 1978 and the rights and social guarantees contained in Title III of the national Constitution.  In furtherance of that power, the corresponding public official shall: a) receive charges and claims regarding violations, by public officials, official agencies or private persons of any class or level, of these rights and guarantees, and transmit them immediately; b) request information and documents immediately that it may consider advisable for that office or official of any rank; c) request from officials of the judicial branch, without exception, all necessary reports on acts being investigated, or if they are being investigated in connection with the violation of human rights or social guarantees by public officers of any rank, and proceed,  if the evidence warrants it, to order the corresponding disciplinary investigation and, through his agents, to bring whatever suit is necessary to decide on the pertinent civil liability to indemnify the victim.  For the purposes of this article, in no case may the secrecy of judicial investigation be invoked to withhold information but staffs members of the Procurator’s Office may not make public the data and reports that belong to that office.  (2) The office of the Procurator for the Defenses of Human Rights is also responsible for undertaking, through its agents, at the government’s initiative or at the request of any person or agency, visits, to establishments or institutions where violations of human rights or public liberties have been denounced, and to render, within a set time, a report on the conclusions reached and measures that may e taken to remedy the situation.  (3) When irregular situations arise from these visits, the delegate procurator or the regional or the sectional procurator, depending on the case, shall write to the competent agencies and inform them of the situation and make all necessary suggestions and demand the measures that can be taken to remedy the situation and, at the same time set a reasonable time period for fulfillment of those measures.  In either orally or in writing, in the same sense and for the same purposes the President of the Republic, the ministers or the commanders of the armed forces.  (4) The Procurator general may commission one or more of his agents on a permanent or temporary basis. To perform his functions in agencies or institutions that are responsible for task associated with human rights for the purpose of watching over the fulfillment of those rights and helping to have them respected and protected.  (5) When the function of enforcing and against any public official, the action shall be conducted thought the general procedures established in the law.  (6) When an act or situation resulting in a violation of human rights is the subject of some judicial action or of administrative proceedings, the Public Ministry shall intervene, if necessary, only to monitor the individual proceedings, to demand that the processing be given priority and to take part in it if the defends of rights and liberties so requires.  In this case, the Public Ministry shall have all the rights recognized to the party in the process.  [27]/

          4.       With respect to the Office of the Attorney General of the Nation, the draft provides that this office will prosecute crimes, at the Governments initiative or following charges made by any person, and present charges against alleged infractors to competent authorities, under the terms and in the cases pointed out by law.  The Attorney General shall be Chief of the national Police.                                                                  The Attorney General shall be appointed by all the members of the Supreme Court of Justice from a list referred to them by the President of the Republic.  The Attorney has, in addition to other special powers, the investigation of crimes either personally of through his agents, ensuring the presence of alleged criminal at the proceedings and initiating suits against them, all subject to the prescriptions of the law. He is also responsible for seeing to it that measures handed down by penal judges are executed.  The public Ministry is exercised by both the Procurator General and the Attorney General and by any other officials that the law may determine.  [28]/


          5.       The Constitutional reform creates a Superior Council of the Judicature composed of the number of magistrates that the law may set.  This Council will have the same rank as the Supreme Court of Justice and the Council of State.  Among its powers are those of administering the judicial career service and seeing to it that justice is enforced and administered promptly.  For this purpose it shall examine and punish any misconduct of staff members and employees of the judicial branch.  It is also responsible for resolving any conflicts of competence that arise between different jurisdictions. [29]/


          6.       Article 121 of the Constitution is also amended.  The draft states that the Government shall send to the Supreme Court, on the day following their issue, all legislative decrees for the purpose of allowing the court to declare, in definitive form, whether these decrees have been issued in full compliance with the formal provisions of that article, and whether the norms they contain are in accord with the powers of the Government during the state of siege.  If the Government does not comply with this duty, the Court will place the decrees under review immediately on its own initiative furthermore, the decrees submitted to review might be declared unconstitutional. [30]/


          7.       The Supreme Court of Justice is entrusted with protecting the integrity of the Constitution.  As part of this competence, it hands down final decisions on questions of the unconstitutionality of legislative laws because of errors of form.  One of the rules that forms the background for the actions of the Supreme Court of Justice is the rule which states that any citizen may exercise the actions set forth in Article 214 -–relating to the guardianship of the Constitution and unconstitutional laws—or intervene in related proceeding as prosecutor or defender.  Furthermore, it provides that in all cases of incompatibility between the Constitution and the law, the constitutional provisions shall be given preference.  [31]/


Since Legislative Act No. 3 of 1910 has been in force, all persons have had the right to bring before the Court a public suit for unconstitutionality of any law or decree which is the competence of the Court when the person believes that the law violates the Constitution.  The constitutional Reform of 1979 expanded the competence of the Court to include cases of the unconstitutionality of legislative acts but only for errors of form.


D.       Other Legal Structures


I.        The new penal code


1.       On January 23, 1980 the President of the Republic decreed the new Penal Code of Colombia.  [32]/  This legal system is aimed at refurbishing the traditional system of criminal investigation of crimes by setting up new mechanisms for this area and developing an efficient system for criminal acts and applicable penalties. [33]/


2.       Among the guidelines for Colombian criminal law contained in the code, the following are defined:


a)       Legality:  No one may be punished for an act that is not expressly stated as punishable y the current penal law at the time when the act is committed, nor subjected to penalty or security measure not established in it.


b)       Punishable act: For any conduct to be punishable, it must be of typified, unlawful and culpable. 


c)       Favorability:  The permissive or favorable law, even when after the fact, will be applied in preference to the restrictive or unfavorable law.  This principle also holds for those who have already been sentenced.


d)       Equality before the law: The penal law shall be applied to persons without taking into account any consideration not established in the law.


e)       Nature judge: No person may be tried by a special judge or court established after the commission of the punishable act nor may there be any violations of the correct forms of each trial.


f)       Functions of punishment and security measures: Punishment has retributive, preventive, protective and social recovery functions.  Security measures seek to cure, instruct and rehabilitate.  [34]/


3.       Punishments are subdivided into major and accessory.  The first include imprisonment, confinement and fine. The second, house restriction, loss of public or official employment, interdiction of civil rights and functions, prohibition from exercising some art, profession or vocation, suspension of patria potestad, expulsing form national territory of foreigners, and prohibition of alcoholic drinks.  The maximum duration of the punishment is as follows: imprisonment, up to thirty years; home restrictions, up to five years; interdiction of rights and public functions, up to ten years; prohibition from exercise of an art, profession or vocation, up to five years; suspension of patria potestad, up to fifteen years; and prohibition from alcoholic drinks, up to three years.  Safety measures are admission to a psychiatric establishment or suitable clinic, admission to a study or work house and supervised liberty.[35]/


          4.       In regulating crimes in particular, the Colombian penal code classifies them into crimes against the existence or security of the state; against the Constitutional system; against public administrations; against legal authority; against the economic and social order; against voting; against the family; against individual liberty and other guarantees; against sexual freedom and decency; against moral integrity; against life and personal security; against economic worth. [36]/


          5.       Crimes against the constitutional system are rebellion, sedition and riot.  Crimes against public safety are conspiracy to commit crime, terrorism and instigating the commission of a crime.  Crimes against suffrage are electoral disturbance, constraining the elector, electoral violence and fraud corruption of the elector, fraudulent vote and promotion of fraud, electoral corruption of the elector, fraudulent vote and promotion of fraud, electoral fraud, delay in the delivery of voting documents, alteration of electoral votes, hiding, withholding and illicit possession of voting certificates, and guarantees, include, in their different forms, kidnapping, arbitrary detention, crimes against personal independence, cremes against the  inviolability of the home or place of work, violation of secrets and communications, crimes against freedom of work and association, crimes against the exercise of political rights, and the crimes against religious thought and respect for the dead.  Crimes against life and personal security include homicide, personal injury abortion, and abandonment of minors and invalids. [37]/


II.       The new code of Criminal Procedure


          1.       Through Decree No. 0181 of January 29, 1981, the Government issued the Code of Criminal procedure, which will go into effect on January 29m 1982.  This replaces the present criminal procedure structure contained in Decree 409 of 1971.  The new code introduces the accusatorial system, eliminates the civil aspect from the criminal process, sets forth the functions of the Attorney General of the nation and the procedures to follow before arraignment Prosecutors and Trials Judges.


          2.       It should be noted that this legal system follows the accusatorial procedure in the criminal investigation so as to guarantee a more expeditious criminal procedure.


III.      The Military Criminal Justice Code


          1.       The Military Criminal Justice Code was adopted though Decree No. 0250 of July 11, 1958, and adopted as a law of the Republic in law 141 of December 16, 1961.  It was issued by the military junta that government at that time, basing its decision on the powers contained in Article 121 of the Constitution pertaining to the state of siege.


          According to the considerations set forth in that decree, the promulgation of this code was owing to two reason”:  one, that through Decree 3518 of 1949, the public order had been declared disturbed and the state of siege put into effect for the whole territory of the Republic; and two, because it was decided that only one legal instrument on this matter, rather than many incomplete decrees, should set out an organized and methodical approach to this type of justice, the procedure involved and the substantive rules that were to be applied.


          2.       The Military Criminal Justice Code regulates the following areas: 1) crimes and punishments in general; 2) military crimes and punishments; 3) jurisdiction, competence and organization of military criminal justice; 4) procedure to be followed in the investigation of crimes and application of military criminal punishment. [38]/


          Military punishments are major and accessory.  The major punishments and their duration are as follows: imprisonment, from on e to 24 years; incarceration, six month to 12 years; confinement, one day to five years; and fine.  Accessory penalties and their duration are as follows: full discharge from the armed forces; temporary separation from the armed forces, from six months to two years; interdiction of rights and public functions, up to 24 years; loss of patria potestad, pr suspension of patria potestad, six months to 12 years; loss of retirement pay, pension or compensation; prohibition from living in a particular place, from three to five years; good conduct bond; banishment to penal agricultural colonies, from one to ten years; and expulsion of aliens from national territory.  The code also stipulates certain security measures. [39]/


          The code classifies and regulates the following types of crimes: against the existence and security of the state; against the constitutional system and the internal security of the state; against discipline; against service; against the interest of the armed forces; against administration; against life and personal integrity; against military honor; against the civilian population; against the property of the state; against the security of the armed forces; against international law; special crimes and those relating to the navy and the air force; special provisions relating to police and students of the officers schools, and other military crimes.  [40]/


          3.       In matters pertaining to criminal litigation, the code says that every violation of military criminal law originates a criminal proceeding and that, under military jurisdiction, infractions of the common criminal law can result in civil actions.  Military criminal jurisdiction is an authority the Republic possesses to administer justice in this area.  Several categories of persons are subject to its jurisdiction.  These are military personnel in active service, military personnel in reserve or retirement status, foreign military personnel in the service of the armed forces, prisoners of war and spies, civilians who are part of the armed forces, and private person, that is;  civilians who are not in the service of the armed forces, who commit specific crimes of civilians, as set forth in the Military Criminal Code which also typifies the crimes which fall under military criminal jurisdiction.  The code also establishes that military authority has the duty to request from civil authorities accused persons whom they may put on trial and the civilian authorities must place such persons at the military’s disposal. At any stage in criminal procedures under military criminal jurisdiction, but before the verdict is found in the first instance, the Supreme court of Justice may shift the venue of a military criminal proceeding; after hearing the opinion of the venue of a military criminal proceeding, after hearing the opinion of the Procurator general for the armed forces, either at its own initiative or at the request of a party, when it considers such a change advisable for proper application of justice or a serious illness of the accused person so requires. [41]/


          Military criminal jurisdiction is exercised by the Supreme Court of Justice, the Superior Military Court, judges of first instance and by those who replace them in special cases, by the presiding officer of the oral courts-martial, and by officials of military criminal proceedings. The Supreme Court of Justice, penal law section, has a number of powers in relation to military criminal justice.  These are hearing appeals and reviewing the second instance verdicts of the superior Military Court, deciding on applications for pardon, and ruling on conflicts of competence that arise between military criminal justice authorities and between these and other jurisdictions.  The code establishes ordinary recourses, which are reversal, appeal and review of facts as well as law, along with extraordinary appeals, which are cassation and rehearing, and also decides on the organization and operation of oral courts-martial. [42]/


          4.       Military criminal jurisdiction is based on Article 170 of the political constitution.  This article provides, “Courts-Martial or military tribunals shall take cognizance, in accordance with the provisions of the Military Penal Code, of all offenses committed by military personnel in active service, and in relation to that service.”


          The foregoing notwithstanding, during the period the state of siege is in effect, military jurisdiction has been extended to trials of civilian for certain crimes.  Substantive provisions and the procedures set forth in the Military Criminal Justice Code are applied to these persons through the rules contained in constitutional legal exceptions.  This situation has given rise to controversies of differing scopes because it is considered that the situation itself interferes with the full procedural guarantees and the effective separation of public powers by displacing the competent judicial branch as defined constitutionally.


          The existence of military courts in Colombia was declared to be in accordance with the National Constitution, when their constitutionality was challenged, through a ruling of the Supreme Court of Justice.  [43]/


[ Table of Contents | Previous ]


[1]  Article 1 and Preamble of the Political constitution of Colombia


[2]   Amendments and laws amending the constitution that were developed in 1910, 1936, 1947, 1975, 1977 and 1979.

[3]   Articles 93, 99, 105 and 114 of the Political Constitution.

[4]   Articles 57, 114, 124 and 129 of the Political Constitution.

[5]   Article 58 of the Political Constitution.

[6]   Article 147 of the Political Constitution.  According to the law governing it, the Supreme Court is divided into sections of penal appeals, civil appeals and labor appeals.  a 1968 amendment established the constitutional section.  The highest court for administrative law matters is the State Council composed of a number of representatives determined by law.  This court is divided into chambers or sections to separate the functions assigned to it from all the others that the constitution and the law assign to it.  The Supreme Court of Justice and the State Council are of equal rank.

[7]   Article 214 of the Political Constitution.

[8]    Articles 16 and 29 of the Political Constitution.

[9]   Article 22, 23 and 25 of the Political Constitution.

[10]  Articles 17, 18 and 19 of the Political Constitution.

[11]   Article 20 and 21 of the Political Constitution.

[12]   Article 26 of the Political Constitution.

[13]   Article 30, 32, 33 and 34 of the Political Constitution.

[14]   Article 23 and 38 of the Political Constitution

[15]   Article 41 of the Political Constitution

[16]   Article 42 of the Political Constitution.

[17]   Article 44 of the Political Constitution.

[18]   Articles 47 and 47 of the Political Constitution.

[19]   Article 45 of the Political Constitution.

[20]   Article 51 of the Political Constitution.

[21]   Article 8 and following of the Political Constitution.

[22]   Article 53 of the Political Constitution.

[23]   Article 179 and 180 of the Political Constitution.

[24]   Article 61; Article 76, No. 19; Article 78, No. 6; Article 119, Nos. 2 and 4; Article 120, No. 7; and Article 130 of the Political Constitution.

[25]  In signing the Legislative Act No. 1, the President of the Republic discussed the following matters in addition to others:  “This is an operational reform which, in stressing ethical and social values, covers two of the three branches of public power.  The reform we are approving today is not an attempt to rival any earlier reforms or to tear down old state structure to replace them by new, more novel ones.  The purpose was, and I believe this was achieve, to make national planning, justice and the Congress more functional and to widen the orbit of the Public Ministry in the very sensitive areas of criminal proceedings and protection of human rights.”

[26]   Article 40 of Legislative Act No. 1, which amends Article 143 of the Political Constitution.  Likewise, Article 59, No. 2 of the aforementioned law, which amends Article 215 of the Constitution, provides that the Procurator General shall act in all cases in which the Supreme Court of Justice must carry our its judicial functions.

[27]   Articles 28 and 34 of the aforementioned draft law.  The statement of Reasons that the Procurator General of the Nation attached to the draft includes, among others, the following concepts:   “The new constitutional text of Article 143 sets up the procurator General’s office as the defender and watchman of human rights and gives it responsibility for seeing to it that the right to a fair trial is not infringed upon and that penal proceedings are lawful.  As for the first of these, since it is difficult to define or enumerate them, the draft has followed a system of referring in general to those processes that are already pointed out in law 74 of 1968 which adopted several international agreements on this matter.  It also mentions the social guarantees and civil rights cited in Title III of the constitution.  It excludes those guarantees and liberties, which are under the protection and defense of other authorities, pursuant to the requirements of the Constitution itself.  The purpose of this is to avoid interference, duplication of authority and different functions, or competence held by different authorities.  In this connection, however, the Procurator General and his agents are given a number of very important powers to see to it that human rights are respected and defended at all times, either directly or through activities such as visits, reports, suggestions and even penalties for those agencies or authorities to which the law has entrusted in some fashion the care of the task of function related to those rights.  As for the second part the work of protecting the right to a fair trial, and the legality of legal processes, regardless of the jurisdiction responsible for them, is of highest importance that cannot be carried out except in a dynamic and ongoing manner through the special agents of the Procurator General’s office.  These agents can be parties to those processes and, from that position, they do as much as they can, within the law, to see to it that the integrity and legality are always well protected.  This work shall be done, in conjunction with the task of protecting human rights, through individual offices of Delegate procurators who will act permanently through inspectors and agents of the Procurator General.”

[28]   Articles 38, 41, 42 and 43 of Legislative Act No. 1, which amends Article 144, 145 and 146 of the Political Constitutions.

[29]   Article 44, 52 and 61 of Legislative Act No. 1 which amend Articles 148, 161 and 217 of the Political Constitution.

[30]   Article 34 of Legislative Act No. 1, which amends Article 121 of the Political Constitution.

[31]   Articles 58, 59 and 60 of legislative Act No. 1 which amend Articles 214, 215 and 216 of the Political Constitution.

[32]   Decree No. 100.  Article 3 of its general provisions stipulates that the code shall go into effect one year after its issue.  Decrees 141 and 172 of January 25 and 28, 1980, respectively, clarified several provisions of the new legal structure.

[33]   Colombia had been following the penal code contained in law 95 of April 24, 1936, which took effect on January 1 of the following year.

[34]   Colombia had been following the penal code contained in law 95 of April 24, 1936, which took effect on January 1, of the following year.

[35]   Article 41, 42, 44 and 93 of the new penal code.

[36]   Penal code, Second Book, Titles I through XIV

[37]   Penal code, second Book, Titles I, V, VII, X and XIII.

[38]   Article 1 of the Military Criminal Justice Code.

[39]   Article 39, 40, 41, 47 and 61 of the Military Criminal Justice Code.

[40]   Military Criminal Justice Code, Book Two, Titles I to XV.

[41]   Articles 300, 306, 307, 308, 312 and 316 of the Military Criminal Justice Code.

[42]  Articles 319, 320, 431, 566 and 597 of the Military Criminal Justice Code.

[43]   Ruling of the Supreme Court of Justice of August 13, 1970 (G.J. No. 2338 Bis, p. 314)