Colombia 1981 - Chapter V(a)

OEA/Ser.L/V/II.53
doc. 22
30 June 1981
Original: Spanish

REPORT ON THE SITUATION OF HUMAN RIGHTS
IN THE REPUBLIC OF COLOMBIA

SUMMARY OF TIME SPENT ON THE DIFFERENT STAGES OF THE ORAL COURT-MARTIAL OF THE MEMBERS OF THE SELF-NAMED SUBVERSIVE MOVEMENT, FUERZAS ARMADAS REVOLUCIONARIAS DE COLOMBIA (FARC).

1. The reading of the brief took two months and eight days, from November 5, 1979 to February 13, 1980.

2. The evidence period took 18 days, from February 13, 1980 to March 31, 1980.

3. Drafting of the indictments took 13 days, from March 18 to March 31, 1980.

4. For transferring the briefs to the parties; to the prosecutor, one day, April 1 and to the defense attorneys, seven days, from April 7, to April 14, 1980.

5. The prosecutor’s argument took 15 days, from April 15 to April 30, 1980.

6. The refutations of the defense attorneys took eight months and 11 days, from May 5, 1980 to January 16, 1981, by which date the last of the attorneys had finished. Included in these periods are Saturdays, Sundays and holidays during which the court was not in session. The verdict will probably be handed down on January 19, 1981. On that day the proceedings of the court-martial will be suspended, declaring a recess for preparation of the judicial decision which will probably take a time of two months, leading to a reading of the verdict in mid-march, 1981.

ADDITIONAL INFORMATION ABOUT THE ORAL COURT-MARTIAL

1. NUMBER OF PERSONS ON TRIAL 153

2. PROCESSED AFTER INDICTMENT 50

3. ACCUSED WITHOUT INDICTMENT 103

4. ACCUSED PERSONS PRESENT 36

5. ACCUSED PERSONS TEMPORARILY RELEASED 3

6. ACCUSED PERSONS WHOSE DETENTION HAS BEEN SUSPENDED 1

7. ACCUSED PERSONS ABSENT 10

5. The defense attorneys of the alleged member of the FARC turned over to the Commission, several trial documents relating to the challenges of the presiding officer of the oral court-martial. [16]/

The Defense attorneys also turned over to the Commission the request that they submitted to the presiding officer of the oral court-martial to decree “The nullity of all these proceedings and the consequent release of the detained persons."” The final part of this 18-page document reads as follows:

We respectfully summarize our arguments as follows:

1. Article 441.1 of the Military Penal Code and other articles consistent with it have been violated due to lack of jurisdiction and competence, in accordance with the points made herein;

2. Also, Article 441.2 has been violated since serious error have been made in the legal designation of the penal violations and in the designation of the names of several of the accused, as can be seen in an examination of the cases;

3. Article 441.5 has been violated since the court officers were not appointed by obligatory drawing of lots, as dealt with in Article 547 of the Military penal Justice Code.

4. Likewise, Article 441.6 has been violated since the indictments are not prepared in legal form, their drafting is defective, does not coincide with the earlier description and makes no distinction among the different types of rebellion as described;

5. Finally, Articles 23, 25, 26, 61 and 170 of the National Constitution, have been violated, as have the American Convention on Human Rights and the Universal declaration of Human Rights of the United Nations Charter. These rules are part of our domestic law since they were approved by the Congress in which Colombia ratified these international conventions.

6. Also, all related rules of the Penal Procedure Code and Articles 413 and 414 of the Military Penal Justice Code have been violated.

In addition, the defense attorneys turned over to the Commission a copy of the resolution of the Superior Military Tribunal regarding the appeal “interposed by Dr. Hermelinda Castellanos J., the attorney of the accused person, María Herminia Quintero, incriminated for rebellion, of the decision taken by the oral court-martial in which the revocation of the arrest warrant for her client was denied.” [17]/

6. On November 26, 1980, the Superior Tribunal of the Judicial District of Bogotá, Penal Section, issued a ruling that confirmed the final dismissal handed down in a legal ruling of July 18, 1980, by Superior court 30 of Bogotá, in favor of three persons accused of the crimes of falsehood and false testimony in the trial of the FARC. [18]/

7. In the claims received and processed by the Commission with respect to person’s accused of belonging to the FARC, in matters concerning the right to a fair trial and due process, the following charges can be mentioned:

1) Interrogation weeks after being arrested;

2) Arrest warrant issued without any statement or testimony against the accused;

3) Interrogation and unsworn testimony taken without an attorney present due to failure to inform the attorney of the dates or places of the formalities;

4) Double jeopardy and simultaneous cases under way in different courts for the same acts;

5) Refusal to expand the formalities as requested by the attorneys;

6) Lack of formalities called for by the judge;

7) Total innocence with respect to the charges made against him; no direct, indirect or even conjectural evidence exists;

8) The extra-procedural evidence that was presented was not incorporated into the documents;

9) Multiple testimony exists that on the date of the events, the accused person was in a place other than that in which the events occurred. He does not know any of the attackers and was forced to accept the role attributed to him and to name accomplices. He has not visited Yacopi, the place of the events, for more than two years.

10) Double jeopardy and lack of evidence, since the only evidence against the accused person is the confession which was obtained through violence;

11) Negligence of the judge in taking evidence in his behalf; the evidence consisted of face-to-face encounters which were also recommended by the judge advocate of the Military Institutes Brigade. Face-to-face encounters with persons accused by the accused person;

12) Extended periods of incommunication;

13) Excessive delays in bringing to trial; improper combination with other cases;

14) Accusation of having taken part in the attack on the army patrol in Corinto when the case showed that on the day of the occurrence of these events he was in Bogotá at a party with other friends;

15) No consideration was given to evidence showing that the accused person did not participate in the attack;

16) Confession in unsworn testimony obtained by physical torture, thereby invalidating the evidence. The torture nullifies the confession and for this reason the arrest warrant and the trial are not justified. Under these circumstances, one may not assume that the crime of rebellion exists;

17) The Military penal justice system disregards the point that not only should incriminate evidence is taken, but that evidence that favors those being tried should also be taken. All legal and constitutional guarantees required for the right to a fair trial would be violated in this case;

18) Lack of attorney in the examination, except in the unsworn testimony and in this case the attorney was a court-appointed military person and the judge did not appoint him immediately as was his duty. No court-appointed attorney was designated for the examination stage;

19) The acts proven against the accused, by means of confession, refer to earlier years when the Security Statute was not in force and military justice did not have competence. In December of 1979, a conflict of competence was settled in favor of the common justice system. The case was referred to the common justice system which granted provisional liberty;

20) An arrest warrant for escape was issued when the crime of escape did not exist in this case and even if it did exist, this court-martial would not be competent to hear it because this crime is being investigated by the military penal justice system;

21) Evidence was requested but was refused; [19]/

8. The claims that contain the aforementioned irregularities were transmitted to the Colombian Government, which has been regularly answering the Commission’s request for information. The following are several examples of the government’s replies in this area:

a) Roberto Amaya Gaitan

Accused of the crimes of rebellion and aggravated homicide, his unsworn testimony was taken on April 17, 1979, by the Seventh Military Penal Instruction Judge and he was assisted in this formality by Dr. Gustavo Pardo Tores. He is currently being counseled by Dr. Alvaro Moreno Novoa. On June 4 of this year, the command of the Military Institutes Brigade communicated to the presiding officer of the oral court-martial that this civilian had claimed that he was tortured. The complaint was referred to the Delegate Procurator General for the Armed Forces for corresponding investigation. This will exhaust the disciplinary jurisdiction to establish whether the penal law was violated.

The court that conducted the investigation decreed preventive detention for Roberto Amaya Gaitán in a legal measure dated April 23, 1979, since there was sufficient merit for this, in accordance with Article 439 of the Code of Criminal Procedure.

At this time, the accused is present at the hearing of the oral court-martial, which is now its public stage.

b) Salvador Correa Alfaro

Sworn testimony was taken on January 8, 1979, and he was counseled in this proceeding by Dr. Heraclito Martínez Ardila. He is being assisted by Dr. Hernando Sandoval López at the hearing of the court-martial. Having found merit in accordance with Article 439 of the Code of Criminal Procedure, the examining officer decreed his preventive detention for the crime of rebellion on January 16, 1979. The file does not contain any record deposited by the accused concerning mistreatment of psychological pressures of any type.

The accused was sentenced, under terms of Resolution No. 174 December 26, 1978, issued by the Military Institutes Brigade Command, to a term of three years of confinement for violation of Decree 1923 of 1978, Article 10.

c. Arnulfo Mahecha Useche

Was captured on April 10, 1979, gave unsworn testimony on April 21 of the same year, to Military Penal Instruction Court. His attorney on that occasion was Second Lieutenant Mauriciio Betancourt Giraldo. He is being counseled at the hearing by Dr. Hernando Reyes Santos. An arrest warrant was issued for him on April 23, 1979, by the examining officer.

Since his arrest, his legal status was resolved opportunely under terms of the precepts and formalities of Article 28 of the National Constitution and Articles 432, 434 and 437 of the Code of Criminal Procedure.

This case contains no note of mistreatment of the accused.

The exonerating evidence requested was taken at the hearing of the court-martial.

d) Luis Alberto Pérez Mosquera

Was captured on June 11, 1979 and his unsworn testimony was taken on June 21 by Military Criminal Instruction Court 47. He was represented in that formality by Dr. Carlos Alfonso Moreno Novoa and is being defended in the court-martial by Dr. Hernán Suárez Sanz.

On June 27, 1979, the examining court found that the requirements of Article 439 of the Penal Procedure Code had been met and decreed that he be held under preventive detention.

There is no record in any of the criminal proceedings that the accused was mistreated or made any note of such treatment at any time.

The fact that the first interrogation was taken without an attorney is juridically possible since this formality is performed by the judicial police and is one of the recognized powers of that body, under the terms of Article 289.8.c of the Code of Criminal Procedure. Even though this interrogation has probative value, as stated in Article 306 of the Code, it is not taken into account by the military penal instruction judges unless it is supported by other evidence. As for the unsworn testimony, he was assisted by an attorney, Dr. Carlos Alfonso Moreno Novoa, and not by a court-appointed attorney. The aforementioned lawyer was replaced and Pérez Mosquera is now being counseled at the hearing by Dr. Hernán Suárez Sanz.

The terms set in Article 28 of the National Constitution and Article 434 of the Code of Criminal Procedure which allows an accused person to be held incommunicado for up to six days while unsworn testimony is being taken, when two or more persons are arrested in a single case, as occurred in this one, were observed.

e) Jesús Emilio Ramos Gil

Was captured on March 20, 1979, by order of the Eight Military Penal Instruction Court. He gave unsworn testimony on April 3 of the same year and was assisted by a court-appointed attorney, Lieutenant Martha Lucia Padilla de Diez and referred to the Common Justice System, for its action, on December 18, 1979, after an arrest warrant was issued for him on April 10.

In the unsworn testimony, he stated that he had been mistreated by the interrogators. In an amplification of that same statement given on June 15, 1979, he stated that he had been psychologically pressured.

A military official was appointed to be his attorney under the terms of Articles 393 and 509 of the Military Penal Code. These rules provide that in the event that a person cannot or does not wish to appoint an attorney for military proceedings, these positions may be filled by officers of the military forces. Dr. Hernán Suárez Sanz assisted him following this until his case was turned over to the competent judge. Since there were no signs of violence, Military Criminal instruction Judge 8 did not consider it in order to open any penal investigation.

f) Obdulia Prada de Torres

Is accused of the crime of rebellion. Before appearing at the oral court-martial that is trying her, she was detained at the Buen Pastor National Women’s Jail in Bogotá. She was arrested on December 10, 1978, at her residence in the city of Bogotá where a significant quantity of war material was confiscated. The examining official was the Third Military Penal Judge. She was sentenced to three years of confinement under the terms of Article 10 of Decree 1923 of 1978. For the charges of rebellion, the Eight Military Penal Judges took her unsworn testimony on January 11, 1979, in which Dr. Artemio de Jesús Orrego López acted as her attorney. This formality was signed by those who participated in it and no correction or addition to it was observed. In the part dealing with exonerating evidence, no record was made of mistreatment but the unsworn testimony mentioned that she had been hit and for this reason the judge referred her to the Legal Medicine Institute, whose report says that Obdulia Prada de Torres did not shoe any signs of violence. Judge 8 invoked Article 439 of the Code of Criminal procedure to issue an arrest warrant. The accused woman had two separate cases against her, one for violating Article 10 of Decree 1923 of 1978 which deals with illegally trafficking in arms, ammunition and explosives, and another case, still in progress, for the crime of rebellion. She is currently being tried by the oral court-martial on this letter charge.

g) Luis Enrique Rojas

Also know as “Ramiro” in the case, he is being tried by the oral court-martial for the crime of rebellion and is currently being held at the National Model Prussian in Bogotá. He was arrested on June 11, 1979, in the La Estanzuela neighborhood of Bogotá and was placed at the disposition of Military Penal Judge 8 who took his unsworn testimony within two days. Dr. Manlio Acero Larrota, an attorney designated by the accused person, acted as his representative. This judicial formality was signed by the persons associated with it. The testimony contains no corrections or amendments. At the end of the record, this accused charges that several irregular methods were used by the interrogators to obtain his confession. On June 25, 1979, an arrest warrant for him was issued.

h) Luis José Lozano Laguna

Is being tried by the oral court-martial, for the crime of rebellion, in accordance with the indictment against him. He is being held at the National Model Prison in Bogotá. He was arrested in Bogotá on December 12, 1978, while he was driving a vehicle which, according to the accused, belonged to the FARC subversive group. For the alleged crime of bearing arms, ammunition and explosives, he was examined for exonerating evidence on December 19, 1978, by the Third Military penal Judge. Major Gustavo González Giraldo was appointed to be his attorney. In that formality, he made no note of having been mistreated. After being placed at the disposal of the Eight Military penal Judges, his unsworn testimony was taken on January 3, 1979, at which time he was represented by his attorney, Dr. José Luis Roys Aguilar. In this same procedure he stated that he had been mistreated to obtain from him information that he did not have. Two investigations are under way in connection with this accused. One is for bearing arms, which is being carried out under the terms of Article 10 of Decree 1923 of 1978, and the other for the crime of rebellion. These investigations were started simultaneously. Military Penal Judge 8 issued an arrest warrant for him on January 4, 1979, for the crime of rebellion and he is now being tried on this charge by the oral court-martial.

i) Saul Bustos Escarrage

Was accused of the crimes of rebellion and aggravated homicide, in which the victims were five military persons in the municipality of Yacopi. He is being detained at the National Model Prison and is being tried by the oral court-martial. He was captured by the national police in the municipality of La Palma on February 6, 1979. He was placed at the disposal of the 8^th Military Penal Judge on April 11, 1979. In his unsworn testimony, he stated that he was mistreated by his interrogators. He was assisted in that proceeding by Dr. Alvaro Echeverri Uruburu. An arrest warrant was issued for him April 19, 1979, for the crime of rebellion.

j) Flaminio Avila

He is a half-brother to Aniceto Hueso and was not included in the convocation of the oral court-martial. He was captured on March 25, 1979, in the La Floresta neighborhood, along with Adelio Linares Pinzón. He was placed at the disposal of the First Military Judge on April 2, 1979. In the unsworn testimony taken three days later, he was represented by Dr. Hermelinda Castellanos Justinico. He noted in his testimony that at the time of his arrest, he was blindfolded but not mistreated. The testimony was singed by the judge, the accused, his attorney and the secretary. The First Military Judge ordered that Flaminio Avila Santos be set free on April 11, 1979, on condition that he appear before that court every eight days. [20]/

9. On February 2, 1981, the claimant in case No. 7375 concerning the oral court-martial of the FARC wrote to the Commission in reference to “the principal incidents in the culmination of the public stage of the oral court-martial against alleged members of the FARC.” This information is as follow:

As is well known, fifty persons were tried, ten of them absent, for different reasons. These reasons were as follows: six belong to an urban group located in Bogotá; 27, of whom ten were absent, were involved in an armed encounter with an army patrol in the Corinto area; seven were accused of belonging to an urban group in the municipally of la Dorada; and the other were charged with participating in the attempted escape of prisoners carried out by alleged helpers of the FARC.

The verdicts announced by the panel of officers was a follows: a) acquittal, for María Herminia Quintero, Ricardo Amaya, Alejandro Díaz, Samuel Díaz, Arnulfo Mahecha, Salvador Correa, Obdulia Prada de Torres, Fernando Mahecha and Romulo Bustos; and b) guilty, for all the others.

The presiding officer of the court-martial has already confirmed the acquittals and it is believed the sentencing others will take some two months.

With respect to María Herminia Quintero, the presiding officer ordered that copies of her case be sent to the common justice system and that she be placed at its disposal for investigation on the charges of false testimony. We remind you that this accused was called to the court-martial for having testified about the presence in Bogotá of several of the person’s accused of participating in the Corinto attack. At that time the military assumed that the accused were guilty and that consequently, the testimony of Herminia Quintero was false. In their opinion, this was a way to help the guerrillas and for that reason, the false testimony was connected to the crime of rebellion. This happened in November 1979, when the court-martial was just starting. The defense requested at that time that a conflict of jurisdiction be declared since false testimony is a crime that should be tried by the common justice system. Now that she is absolved for the crime of rebellion, they are requesting that she be tried for false testimony that is the military wants her to be tried twice for the same act.

Mr. Carlos Linares Pérez and the other persons accused by him of having participated in the events at Corinto were all found guilty. We remind you that Linares Pérez proved that he was Bogotá on the day of these events, offering testimonial and documentary evidence of this. The military penal justice system arrested witnesses and pressured them into changing their stories. They stated that Linares Pérez attorney had given them money to give slanted testimony. Dr. Delgadillo Bravo was arrested on the basis of this accusation. In a finding confirmed by the Superior Tribunal of Bogotá, which takes up cases already tried, the common justice system absolved Dr. Delgadillo and the witnesses completely and proved that Linares Pérez was in Bogotá on the day of the events, that his confession was wrong from him by torture and that the witnesses had been forced to retract their initial stories by the military. Despite the existence of this finding, which constitutes full proof and is a matter already judged, the verdict against Linares Pérez and the other persons accused by him of having participated in the encounter was guilty.

Also found guilty were Manuel Castillo Ruiseco, José Heriberto Higuita, Máximo Eduardo Cruz, Luis José Lozano Laguna who had been found guilty for the same acts but under charges of illegal carrying of arms.

In connection with the trial for the Corinto encounter, it should also be noted that all the persons accused of having participated in it were accused and found guilty for the deaths of six soldiers who died in that clash. Colombia’s penal law states that deaths and injuries occasioned by rebels in combat do not lead to additional sanctions but theses crimes are punished strictly as rebellion. But, to impose these combined punishments, which will lead to up to 30 years of imprisonment, the military invented the idea, and focused this entire case on it, that the deaths of the soldiers came minutes after the combat was over ant that the guerillas had, with premeditation, set fire to the trucks in which the soldiers were riding for the purpose of burning them alive, when in fact everything indicates that the trucks caught fire as a result of the exchange of fire, the bullets that hit the gasoline tanks and the explosions of bombs and grenades.

In the final session, when the panel’s verdict was read, the presiding officer refused to let the defense attorney speak. The defense attorney wished to request a declaration that many of the verdicts were contrary to the evidence. Once again, this ruling suppressed the exercise of the right of defense.

We defense attorneys have requested nullity of the case since we believe that it has violated the right to a fair trial, the constitutional principle of due process and that the entire examination rest on evidence obtained by torture. Another cause we allege for nullity is the omission of defense petitions such as the declaration of cessation of the proceedings for Carlos Alberto Linares Pérez and other persons accused by him for having shown completely, by means of the Superior Tribunal ruling, that they could not have committed the crime investigated. Other grounds for nullity are that several indictments made presumptions and took as proven facts that which they ere required to prove. For example, several indictments concerning determined persons who might be guilty or not for the crime of rebellion, started with the assertion that the person’s profession was guerrilla fighter. Another fact that is irregular and ground for nullity is that the session in which the panel members responded to the indictments should not have been secret and separate but conducted in the presence of the presiding officer and the legal advisor.

For the defense there is no doubt the penal members being called to take a course to help promote them in their military careers, on the eve of the verdict, had an influence on them.

No doubt the presiding officer will confirm the guilty verdicts. The appeal will take no less than two years before the Superior Military Court. [21]/

10. As was already stated, the oral court-martial included in the Military penal Justice Code functioned as part of Colombia’s judicial system. The Security Statute, on the basis of circumstances relating to disturbance of the public order and the implementation of the state of siege, prescribes that these military courts may judge civilians for the commission of certain crimes. The aforementioned code states in Article 306, “The military penal judicial system is the authority that the Republic has to administer justice in this area. Competence to hear a military penal matter depends on the status of the agent, the nature of the infraction and the place where it was committed”. For its part, Legislative Decree No. 1023 which promulgated the Security Statute Prescribe in Article 9 that the military penal justice system, besides having competence in accordance with current legal provisions, will try specific crimes covered in that decree “through the procedure of oral court-martial.”

G. Oral court-martial: Ipiales

1. In April 1981, an oral court-martial began in the city of Ipiales, the Department of Nariño, for 66 of the 74 persons captured in military operations in Southern Colombia. These persons were charged with being members of the M-19. Eight of the persons held were moved to Bogotá for trial in the military court being held at the La Picota Penitentiary. [22]/

2. On March 26, 1981, the Commission received from the Permanent Committee for Human rights in Colombia a communication expressing the following:

We request the Commission intervene promptly and effectively with the Government of Colombia for the purpose of obtaining full and complete information on the situation of a large group of Colombian citizens, of both sexes, who are being held prisoner by the armed forces of our country and whose whereabouts are unknown.

Large groups of people, both here an abroad, have questions about the fate of these detained persons because military authorities have been completely closed as to how they were apprehended, the physical and psychological conditions in which they are being kept and because, on earlier occasions, other political prisoners had been mistreated and tortured.

Furthermore, more than ten days have eloped by since the day they were detained and they have not been placed at the disposal of any judicial authority with responsibility for conducting their investigation. Under these circumstances the persons detained could avail themselves of legal defense.

Another disturbing matter is that this meager information from the military is nothing more than a record of the number of prisoners and deaths during war operations, but no identification of these persons has been provided.

3. On April 11 of the same year, the Permanent Committee for Human Rights wrote once again to the Commission requesting that it take up the matter of the Ipiales court-martial. The Commission proceeded to process this claim by opening case no. 7818. It sent the following cablegram to the Government of Colombia on April 22:

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS HAS RECEIVED FOLLOWING CLAIM: “URGE PRESENCE OF OAS OBSERVERS AT COURT-MARTIAL REFUSES TO LET ATTORNEYS SPEAK, KEEP THEM OUT OF HEARING STOP WE REQUEST OAS TO ASK COLOMBIAN GOVERNMENT COMPLIANCE WITH CURRENT AGREEMENT ON SUPERVISION OF HUMAN RIGHTS AND PROCEDURAL GUARANTEES IN COURTS-MARTIAL BEING CONDUCTED AT IPIALES IS IN A PUBLIC OR PRELIMINARY STAGE. WE WISH TO INDICATE TO YOUR EXCELLENCY THAT IN ACCORDANCE WITH RULES OF COMMISSION REQUEST FOR INFORMATION DOES NOT IMPLY PREJUDGMENT OF ADMISSIBILITY OF CLAIM. ACCEPT, EXCELLENCY, THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION.

4. On May 19, 1981, the Government of Colombia replied to the Commission as follows:

1.          After the investigation started in the city of Ipiales concerning 74 members of the M-19 who were captured in military operations, the following attorneys appeared for the purpose of being appointed without having been requested by any of the incriminated persons. Jorge Enrique Cipagauta Galvis, Miguel Antonio Cano, Humberto Criales de la Rosa, Carlos Moreno Novoa, Alberto Echeverry Uruburu, Hernán Suárez Saenz, Carlos Pantoja Revelo, Carlos Rodríguez Mejia, Raúl Carvajalino, Jorge Eliecer Franco Pineda, Antermo de Jesús Urrego López, Arnulfo Cruz Castro, Jorge Arenas Salazar, Javier Velasco Guerrero and Jairo Bravo Velez.

2.          The following accused persons were moved to Bogotá at the request of the military judges: Carlos Toledo Plata, Rosemberg Pabón Pabón, Rafael Arteaga Giraldo, Gloria Amanda Rincón, Blanca Inés Chavarro, Wilder César Silva (Uruguayan), Miguel Angel Mojica, José Domingo Gómez Castiblando.

3.          When the oral court-martial was installed in the city of Ipiales, the only attorneys included in the first hearing were the following: Aurelio Jiménez Callejas, Jorge Eliecer Franco Pineda, Carlos Pantoja Revelo, Favio Velasco Guerrero, Jairo Bravo Velez and Magda González de Medina. At the opening session the accused persons caused disorders to prevent the oral court-martial from proceeding normally. Because of this situation the presiding officer of the oral court-martial, in accordance with Article 553 of the Military Penal Justice Code, had 28 of the persons on trial placed in confinement; the attorneys requested that this punishment be revoked and, after the judge refused, for no legal reason and in a complete lapse of professional ethics, they walked out of the hearing.

Since this behavior is considered an infraction of the law on the Statute of Attorney, the judge, in furtherance of his obligations, denounced them to the Judicial District of Pasto and had copies of the proceedings sent to the Superior Council of Judicature and to the different judicial district tribunals which had issued them their professional cards.

It is noted that Dr. Magda González Medina had in her possession a letter sent to the persons being tried at Ipiales from the self-named “Superior Command of the M-19,” whose members are now in the La Picota Jail in Bogotá where they are being tried by another oral court-martial. The letter exhorts those on trial at Ipiales to continue the struggle and to take positions of confrontation in the hearing.

4.          The persons on trial are now being counseled by the following attorneys: Alberto Echeverry Uruguru, Alberto Moreno Novoa, Hernán Suárez Saenz, Edy Hernández Cárdenas (Panamanian) who is aiding three of the five Panamanians among the accused, and Carlos Pantoja Revelo.

5.          The accused have been granted all types of guarantees, ranging from attorneys for their defense, as well as personal privileges such as visits, deliveries of clothing, medical care and adequate lodging. Neither the office of the Procurator general of the nation nor the Delegate procurator General for the Military Forces has received complaints from any of the persons incriminated. The attorneys have had everything they need to carry out their work. In this area neither military nor civilian authorities have received any complaints. Consequently, the assertions made by the claimants are completely lacking in foundation.

5. In addition the Commission received other information on this case. On April 15, 1981, the defense attorneys issued the following communication:

The undersign defense attorney of the oral court-martial currently under way in Ipiales at “Cabal” mechanized Group No. 3 against alleged members of the M-19 wish to inform national and international public opinion of the following:

1.          On April 15, 1981, we appeared at the installations of the Cabal Group to perform our duties as attorneys and encountered several problems in gaining access to the installation of the oral court-martial. We were able to gain admittance only after the court-martial had started without the attorneys being present.

2.          Once inside the chapel where the court-martial was being held, we found out and were able to see that many of the accused persons being detained were not present in the court since they had been placed under confinement in the jail for having requested the presence of their attorneys and for having attempted to sing the national hymn of the Republic of Colombia.

3.          In view of this highly unusual situation, all of us attorneys requested respectfully that the presiding officer of the court rescinds the sanction and allow the accused to be present in the court. This petition was supported by the delegate of the Officer of the Procurator General of the nation, Dr. Manuel María Muñoz Martínez, although the presiding officer of the court-martial, Colonel Héctor Julio Ayala Cerón, refused to change his decision or to let the defense attorneys speak.

4.          In view of this restraint on the right to fair trial which is legally recognized in the national Constitution, in the Declaration of Human Rights, in international treaties signed by the national Government and in the codes of the Republic, we decided to withdraw from the court and to have the record show the exact reason for our leaving. This position was supported by the accused present who were forced by the military police to remain.

We will maintain this position until the normal conduct of the case and the respect for the right to a fair trail is guaranteed.

6. In May of this year, the Commission was present at the public stage of this oral court-martial through an attorney from the Office of the Secretary.

Certain aspects with which the Commission acquainted itself are the following: a) the military trial was for 66 persons and ended with a guilty verdict for all of them; b) the attorneys for the detained persons, after arguing a lack of guarantees for the right to a fair trial, requested a change of venue, under the provisions of Article 316 of the Military Penal Justice Code; c) the presiding officer of the court sent a compliant on April 15 to the national Council of the Judicature referring to six of the defense attorneys, alleging that they failed to conduct themselves professionally. One of the attorneys was accused of attempting to transmit a letter from the detained persons at La Picota in Bogotá to those detained al Ipiales; d) family members of the accused persons released a press communiqué charging several types of mistreatment of the detained persons; e) on May 11, the 66 accused persons stated that they were going on a hunger strike; f) among those being tried are five Panamanian citizens; g) several defense attorneys arrived from Bogotá and were accepted by the presiding officer of the court; h) the detained persons protested and requested the presence of their attorneys and some of them were put in jail as punishment; I) the 16 attorneys issued a communiqué after withdraw in from the court; this communiqué is included in this chapter; j) the attorney requested to be informed of the crimes and applicable rules and whether these were the rules contained in the Security Statute or in the Penal Code; k) the presiding officer of the court stated that the applicable law should be the new penal code; 1) several of those detained told the Commission delegate that they had been tortured indifferent ways during their interrogation; m) as the prosecutor of the court-martial stated, the threat from the subversive elements develops in five stages: I) formation of a subversive apparatus; ii) consolidation and development of subversive apparatus; iii)revolutionary action on all fronts; iv) control of institutions –control of area and a moving war—the M-19 columns disembarked and attempted to control Choco, The Mira River and Putumayo; v) general insurrection or the state of war of insurrection; n) according to the same prosecutor, the members of the M-19 were now in states iii and iv and had gone to Cuba after the seizure of the Dominican Embassy in April of 1980 and other had been sent to take a course on military training between November 19, 1980 and February 4, 1981.

7. Of all the explanations given in this chapter, the Commission emphasizes the following points: the common justice system is operating normally and the Constitutional Reform of 1979 will help to improve the structure of the system and make it work better once the Attorney General starts his functions and the accusatorial system goes into effect.

The military penal justice system has worked too fast at times, and too slow at others; procedural irregularities that prevent adequate functioning o the system have been observed. The competence of the military justice system has been expanded by giving it the power to try a number of crimes, which, in the Commission’s opinion, should e decided by the common justice system, which provides greater procedural guarantees of due process. Complaints have been heard regarding the manner of conducting the interrogations in particular, attorneys have not been allowed to be present at them, the interrogations are conducted at military installations and military persons conduct them. In addition, the legal status of the accused person is not defined within the time periods set by law. The very great number of persons being tried in a court-martial such as the one being conducted in Bogotá for member of the M-19 and the other court-martial which ended in may in Ipiales makes it impossible to conduct a trial that extends full procedural formalities due to the problems inherent in a trial this size. These problems refer to the defense of the accused, the taking of evidence, and the juridical assessment of the investigations and, in general, the direction and thrust of the trial. All of this works to the detriment of persons who are proven innocent after a long period of detention.

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[16] Among these documents is the resolution dated May 23, 1980. Of the Military Institute Brigade ruling on the challenge of the presiding officer of the court. The preamble and the operative part of this resolution read as follows: “1. The challenge is based essentially on the following statements: ¢In the study that he made, the presiding officer did not consider that there was evidence of torture and for that reason he did not make any charge…¢ ¢But logically it facts are presented in the form of an alibi to escape justice, they cannot be the subject of an investigation, ¢ 2. The torture alleged by the accused persons and several defense attorneys, while not the object of the trial being carried out, is very likely to be the subject of the defense attorneys¢ arguments. Or the trial but is useful to fend off wisely the concerns of the defense attorneys and the accused persons who believe that any action, ma matter how small, can show a sign of bias. This challenge, MANZZINI affirms, has the purpose not only of preventing unjust decisions but also avoiding embarrassing situations for the judge and keeping the society confident in the administration of justice by eliminating cases that could give way to criticism or malicious statem6tns since, in dealing with justice even appearances are important. It is obvious that Colonel CASTELLANOS PERILLA does not have the power to order an investigation into alleged torture and that he has the duty to denounce them and the complainants have the obligation to denounce them within 30 days of becoming aware of them. 3. The matter of this incident refers to the proper conduct of the trial and, so that it does not affect the dynamics of the case, it should be taken into account, one means of obtaining a fair decision. The consequences that can be deduced seem that it should be to submit the settlement of incidents to the same guarantees that are established for the basic decision. ¢ In applying the science of human justice, it should be noted that this system of justice may not be infallible, or immediate, and for this reason WERNER GOLDSCHMIDT said ¢The attempt to reach the goal of integrity would make justice more fallible and slower and the efforts to make it more rapid and exact, make it more divided. ¢ Now, if on one hand it is necessary to protect even more the right to a fair trial so that in this trial its legitimacy is not compromised to the least extend and, on the other to keep the institution of oral courts-martial intact, the challenge should be accepted, with the exception that no critical judgement can be made of the conduct of the presiding officer, Colonel CASTELLANOS PERILLA, since the question at hand was an unusual situation, one not foreseen, but in a situation of conflict between justice and the juridical security of the case, the latter should be forestalled so that the former continues to prevail. Finally, in comparing the statement made by several of the defense attorneys with the recording and the minutes of may 8, of this year, one can infer that the words of the presiding officer were not quoted exactly. Since the punctuation was missing, it seems that several ideas were expressed when only one interpretation was being given for Article 12 of the penal procedure code. In consequence, to protect the integrity of the Military Penal Judicial System and that of its officials, as well as the ethics of the exercise of the lawyer’s profession, this command believes that official copies of this incident should be made and sent to the Superior Council of Judicature. Without further facts, the command of the Military Institutes Brigade, acting as the judge of first instance and administering justice on behalf of the Republic and under the authority of law, RESOLVES: FIRST. To accept the challenge made to Colonel RUDY CASTELLANOS PERILLA, the presiding officer of the oral court-martial currently judging alleged members of the self-named criminal organization, “FUERZAS ARMADAS REVOLUCIONARIAS DE COLOMBIA,” by several of the defense attorneys, SECOND. To appoint a high officer to replace him, by means of resolution with statement of reason. THIRD. To send copies of this legal measure to the Honorable Superior Council of Judicature, as stated in the preamble above.” On May 21, 1980, the defense attorneys wrote to the commanding officer of the Military Institutes Brigade with respect to this challenge. They said: “With great dismay, we the defense attorneys in the oral court-martial judging alleged members of the FARC, were informed during the session of yesterday of the complete text of Resolution 01 in which you accept our challenge of Colonel RUDDY CASTELLANOS and ordered his removal as presiding officer of the court but, simultaneously and in inexplicable contradiction, requested an investigation be opened against us, the defense attorneys, who promoted and won the incident because we allegedly made mistakes in professional ethics when we challenged the aforementioned officer. You also say that the conduct of the Colonel was consistent with current legal procedures and that we attorneys have been ready to “take advantage of any event, any stance or any statement by the military judicial authority or the Public Ministry for the purpose of achieving our designs and forgetting at times the sacred principles that protect the exercise of the profession of law.” You also affirm that it is necessary to defend the prestige of the army and to safeguard the institution of oral court-martial, to protect the Colonel from the attorneys and from unjust accusations. All of this concludes with acceptance of the challenge that we made and a change of presiding officers. No, General, you cannot play with challenges. Either we were completely wrong and you should have retained the officer in his position and backed him as his ranking superior, or he did make the mistake we charged him, and which the law clearly establishes (manifest partiality and judgement) and the only thing to do was what you did, remove Colonel Rudy Castellanos and accept our challenge because we were completely right. But one thing you may not do is rule in our favor and remove the Colonel but say that you are doing so to protect him from criticism, malicious statements or unjust accusations by the defense attorneys and attempt to coerce us and prevent the free exercise of our profession by accusing us before the Superior Council of Judicature for simply having carried out our duty. We insist once again that the fundamental problems of these cases are the tortures and the violation of human rights and the right to a fair trial using evidence obtained by coercion and violence, thereby invalidating everything that has been done and detouring the investigation while General Vega Uribe enjoys a high diplomatic post in London. Attempts to elude all these unusual legal situations is precisely the reason for International and now this contradictory resolution of yours which merely seeks once again to intimidate us and restrict once again the right to a fair trial while at the same time, attempting to excuse conduct, that violates the law, of the high army official in the temporary exercise of the high position of judge of the Republic. This cannot serve the interests of the armed forces, to defend. Much less can it “safeguard” the oral court-martial, which are now so discredited, that even Dr. Alvaro Gomez Hurtado is requesting that they be eliminated. General: we will face any accusations you make against us. But are you who have violated the law and fairness. For this reason we will take all necessary legal action to investigate and punish the violations that you have committed by issuing such an absurd legal measure which in no way helps continue defending our clients without any vacillation, as we promised to do when we accepted, on oath, the instructions of our clients who are being accused in this case.” Furthermore, on August 27, 1980, the Military Institutes Brigade issued another resolution on another challenge of the presiding officer of the oral court-martial in addition to other points, this document contains the following: “Having Seen”: The command of the Military Institutes Brigade, serving as judge of first instance, enter the patter of resolving the challenge of Colonel OTONIEL ESCOBAR CIFUENTES, presiding officer of the oral court-martial convoked under the terms of resolution 1916 of November 2, 1979, made by Dr. HUMBERTO CRIALES DE LA ROSA and supported by the defense attorneys, CARLOS J. DUICA, ARTEMEO DE J. ORREGO, HERMELINDA CASTELLANOS JUTINICO, JOSE MIGUEL ARIAS LONDONO, HERNANDO SUAREZ SANZ and HERNANDO REYES SANTOS.” C. In a statement signed by the aforementioned defense attorneys, they offer as their reasons manifest partiality against the defense, of the presiding office into their adversary, and prejudgment of matters involved in the case, invoking Article 301.4 to (1) Harassment of the defense attorneys in the court-martial and violation of jurisdiction because the presiding officer has sanctioned the mistakes of several attorneys and put hem in conflict with their clients. (2) Refusal to let speak the attorney whom wished to interpose a remedy during the session of the 25^th day of this month, thereby making defense impossible. (3) In clear violation of the law, the undersigned state that they denounce the presiding officer of the court-martial to the Honorable Superior Military Tribunal. (4) They say that the presiding officer has the obligation to reside in the Military institution until the verdict is handed down and that they have been subjected to exhaustion work schedules, contrary to the work schedule for the prosecutor and several other defense attorneys, that some of the attorneys haven punished without having created any disorder even when the presiding officer did not have competence to punish them since Article 601 of the Military Criminal Justice Code applies to military persons, all of which translates into acts of partiality and thereby makes the oral court-martial a private matter and establishing the novel principle that writs are unchangeable and unexceptionable. (5) Not having allowed Article 417, which is a denial of justice that implies manifest partiality against justice and another attempt to influence the prisoners against their attorneys. Finally, they submit as evidence: A copy of the claim made to the Honorable Superior Military Court. A copy of the statement made by the detained persons. And the actions of the court-martial during the days of the month of August.” RESOLVES: FIRST: To declare without foundation the points raised by Drs. HUMBERTO CRIALES DE LA ROSA, HERMELINDA CASTELLANOS JUTINICO, JSOE REYES SANTOS and CARLOS J. DUICA, to challenge Colonel OTONIEL ESCOBAR CIFUENTES, presiding officer of the oral court-martial, convoked under the terms of Resolution 196 of November 2, 1979 of this command, SECOND: To not accept the proposed challenge on the grounds given in the preceding preamble. THIRD: To Rule that Colonel OTONIEL ESCOBAR CIFUENTES should continue as presiding officer of the oral court-martial or which he was designated and installed. FOURTH: TO order that this decision is remitted to the presiding officer of the oral court-martial, for all legal purposed. FIFTH: To send authentic copies of this measure to the Honorable Superior Tribunal of the Judicial District of Bogotá so that it may hear any possible charges of disciplinary omissions that the aforementioned defense attorneys may have committed against the faithful and proper administration of justice.”

[17] In its preamble and the operative part, this document reads as follows: “On the basis of the foregoing, the Section considers and believes that the appeal in reference was properly denied and, in consequence, in unanimously so resolving, declares and rules that its action be sent to the lower court so that it be made part of the case. We act in conformity with the provisions of the legal standards cited in the body of this measure in harmony with the precepts of Articles 438 and 439 of the Military Penal Justice Code and Article 203 and following of the Penal Procedure Code, and other consistent provisions. Under the terms of the foregoing, the Superior Military Tribunal, in its Decision Section, administering justice on behalf of the Republic and under the authority of law, RESOLVES: 1. To declare that the appeal interposed by Dr. Hermelinda Castellanos J., against the decisions taken by the presiding officer of the oral court-martial in connection with her client, Mrs. María Herminia Quintero, in the case of warrants, was properly denied and in consequence to the appellant, the appeal is not granted because it is nor according to law, all of which were the reasons given in the preamble o this legal measure. 2. To rule that the present formalities are sent to the lower court for all attendant legal purposes, as was also explained in the preamble. 3. Make all necessary notifications.”

[18] In the part on the statement of the facts, this document reads as follows: “The basis for the start of these summary proceedings consisted of the copies remitted by the presiding officer of the oral court-martial, the pertinent parts of the case provided by the Military Institutes Brigade against alleged members of the GARC, by reason of the events that occurred on January 18, 1979, when an army patrol was attacked at the Corinto area, within the municipal boundaries of Yacopi, resulting in the death of several military persons and the dynamiting of several vehicles. During the course of the investigation, the individual, Carlos Alberto Linares Pérez appeared to be involved in these events and confessed his participation in them, only to retract his statements later, arguing that on January 17, 18 and 19, 1979, he had been in the City of Bogotá and that his presence in this city could be attested to by other employees of the Caja de Crédito Agrario, located on Avenida Colón. As a result, through his attorneys, Dr. Didier Martínez Molina, initially, and subsequently Dr. Eduardo Delgadillo Bravo, he requested that evidence be taken that would confirm his later version.

The result of this was that the director of the Caja de Crédito confirmed, in a letter dated August 13, 1979, certified for military penal instruction judge 47, the payment of check No. 0244602 drawn on account No. 03-1063-8 to the order of Luis Armando Ochoa for the sum of one hundred and twenty thousand pesos, adding a point not asked by the examining judge which reads as follows: ‘4) For the payment of this instrument, the holder of the account appeared to confirm the check on the date mentioned and during the morning hours,’ this being an obvious reference to the accused person Linares Pérez. This certification was ratified by Mr. Fabio Augusto Aranguren during his testimony of August 14, 1979, and corroborated on August 27, 1979, by José Alvaro Rodríguez Linares, a cashier at the credit agency.” In the preamble, the document includes the following points: “The fact that was cast into doubt during these formalities was the presence of Carlos Alberto Linares Pérez on January 18, 1979, at the bank office, and the attendant truth or lack of it of the statement made by José Alvaro Rodríguez Linares and Fabio Augusto Aranguren to military penal instruction court 47, as well as the certification issued by Aranguren to the same court.”

However, in expanding his unsworn statement to Criminal Examining Judge 4 (folio 247), he confirmed that his first version was truthful since Mr. Linares had definitely been at the bank and that threats to his personal security and that of his family occurred after giving the earlier version at the Military Criminal Instruction Court and that his retraction had been requested. He states verbatim: “I wish to state that the true declaration was the one I gave to Military Penal Instruction Court 47 because the certainty (SIC) that the client named Carlos A. Linares was present at the office on January 18, 1979, I cannot explain because the military justice system does not wish to accept the truth of that declaration and they have coerced me into declaring the contrary, that is, that Mi. Linares was not at the office, when the truth is that he was there on January 18, 1979, during the morning, when he gave the order to pay a check for $120,000 pesos, which shows the signature of the same client, Mr. Carlos A. Linares….’

The coercion alluded to consist of the fact that he was transferred to the military installations where hooded persons pressured him into changing his version since otherwise it would go very bad for him, 'that if they did not kill him, that they would put me in jail for 14 to 16 years.’ As for the payment of the check for the amount of $120,000 pesos, he states that he made a mistake by saying to the Military Penal Instruction Court 47 that he had had to request a remittance from the treasury, because what actually occurred was that they had provided that sum of money out of funds existing in the office vault.” “For his part, the a quo made a correct study and reached the conclusion that the requirements had been met to hand down the measure provided for in Article 491 of the Penal Procedure Code in favor of the accused and also decided to announce the final dismissal which is the subject of this consultation.”

“On the basis of the foregoing opinion, government attorney office 14 of the Tribunal considers that: ‘Certainly when the writ of arrest was announced against the two accused persons, Fabio Augusto Aranguren, Alvaro Rodríguez Linares, and the attorney, Eduardo Delgadillo bravo, there were suitable grounds to take such a decision, as a result of the contradictions that came about between the statements made by the first two and the communications of the director of the Caja Agraria and the manager, Mr. De la Rue, since these communications left with legal foundations the obvious fact that they stated that they had to request a remittance of money in order to pay the check for $120,000 to Ochoa, in addition to the mutual incriminations of the accused persons.

Now, however, we have to accept that the status of these accused persons has changed completely since the judicial examination formality undertaken by the examination official at the offices of the Caja Agraria on Avenida Colón cleared up the uncertainty or doubt that existed as to whether Mr. Carlos Alberto Linares Pérez had actually been depositing money and authorizing the payment of the check to the order of Ochoa, on January 18, 1979. That formality shows that there was regular processing of both the deposit and the payment of the check for the amount of $120,000. Besides this proof, there is another piece of evidence of vital importance. This is the handwriting evaluation that supplemented the evidence of the presence of Linares Pérez. It must be concluded then that the note signed by the director of the agency of the Caja Agraria, Mr. Fabio Augusto Aranguren, which was termed false, was no longer spurious and had to be recognized as a real fact. Now, besides this, the versions of the two accused, Alvaro Rodríguez Linares and Fabio Augusto Aranguren, have a logical explanation which are the psychological torture of which they were the victims by members of the Military Institutes Brigade, as can be involved persons, Carlos Alberto Linares and Manuel Castillo, and the versions of the professionals who acted as their defense attorneys, Drs. Jesús Urrego López and Eduardo Delgadillo.

It is also logical and reasonable to conclude that the evidence for the charge lost all validity when contrasted with the testimonial and documentary evidence that has been given. Consequently, if we make a full and objective analysis of these facts before we make an accusation, we have to reach the analysis of these facts before we make an accusation, we have to reach the unmistakable conclusion that they are based on a presumption not of law, since the presumption was shown to be false by each and every once of the pieces of evidence given in the foregoing section."

Actually, the Section believes that the administration of justice would have benefited greatly of the prudent petitions of the initial attorney of Carlos Alberto Linares Pérez, Dr. Didier Martínez, had been taken care of opportunely by the examining official without allowing the passage of time during which it is logical to think that the persons did not remember exactly what had happened in the month of January, 1979. It would also have been beneficial if Military Penal Instruction Judge 47, in response to the petition of Dr. Delgadillo Bravo, instead of refusing to make the judicial inspection, had ordered him to go to the offices of the Caja Agraria on Avenida Colón where he would find the documents necessary to establish the veracity of the statements of Linares Pérez, as finally happened in this case.

“What is affirmed to the contrary does not have any probatory value; when the accused denied the presence of Linares Pérez at the bank on January 18, 1979, they had been deprived of their liberty and they were being judged as prisoners for the crime of rebellion and this circumstance alone and, apart from the tortures mentioned in the writs, logically disturbed their reasoning. These were persons without any criminal record in their DAS dossier (folio 460) and connected for a considerable time with such a responsible agency as the Caja de Crédito Agrario Industrial y Minero. If we add to this that whenever José Alvaro Rodríguez, the cashier who personally prepared the deposit that Linares made, recalls the mistreatment to which he was subjected by members of the military justice system on April 25, 1980 (folio 520), he became so upset that he breaks down in tears in discussing the matter, we should reach the conclusion, as the Public Ministry did through its agents, and as the a quo did in the writ studied, that if at any time Fabio A. Aranguren and José A. Rodríguez had not stated the truth, this occurred when they were forced psychologically and that their initial version to Military Criminal Instruction Court 47 was a true version of events, except the error made by Mr. Aranguren which was perfectly explicable and which could be corroborated, as happened when the judicial examination formality rejected by the military justice system was carried out.”

As a result, the section shares the finding of government attorney office 14 of the tribunal to the effect that the presuppositions of Article 491…2 of the Penal Procedure Code are complied with, in order to rule in favor of the accused persons and that their case be dismissed definitively and as if this had been resolved by the a quo in the writ in question, it proceeds to confirm this since it is consistent with law.”

On the basis of the foregoing, the Superior Tribunal of the Judicial District of Bogotá, following the finding of the Public Ministry, resolved as follows: “To confirm the final dismissal in question.”

[19] Case No. 7375 for the FARC.

[20] Communications from the Government to the Commission dated October 15, 1980 and January 22, 1981, in connection with case No. 7375. The claimant, as part of the rules of the Commission, made observations, since they also deal with respect to the government’s reply, in a communication dated December 22 of the same year. The claimant’s observations, since they also deal with the right to security and personal integrity are included in Chapter IV of this report.

[21] The information from the claimant on February 2, 1981, was transmitted by the commission to the Colombian Government in a communication dated February 11, 1981. It is being processed in accordance with the Commission’s rules.

[22] Chapter I of this report, which reviews the implementation of the Security Stature in connection with the new penal code, refer to this oral court-martial.