CHAPTER III

THE POLITICAL AND LEGAL SYSTEM IN COLOMBIA

          A. EARLIER CONSTITUTIONAL PROVISIONS THAT PROVIDED THE FRAMEWORK FOR THE POLITICAL, LEGAL AND HUMAN RIGHTS SYSTEM IN COLOMBIA

          The 1886 Constitution of Colombia examined under the section on the Legal and Political System of Colombia in the Commission's 1981 report, was based on earlier constitutions in Colombian history:  the Constitutional Act of the Independent Free State of El Socorro, August 15, 1810; the Constitution of Cundinamarca, March 30, 1811; the Constitution of the Republic of Tunja, December 9, 1811; the Constitution of the State of Antioquia, March 21, 1812; the Constitution of the State of Cartagena de Indias, June 15, 1812; the Constitution of the Republic of Cundinamarca, July 18, 1812; the Constitution of the State of Mariquita, June 21, 1815; the Constitution of August 30, 1821; the Constitution of April 29, 1830; the Constitution of the State of Nueva Granada, February 29, 1832; the Constitution of Nueva Granada, April 20, 1843; the Constitution of Nueva Granada, March 20, 1853; the Political Constitution for the Granadian Confederation, May 22, 1858, and the Constitution of the United States of Colombia, May 8, 1863.  The Constitution of the Republic of Colombia adopted on August 4, 1886, was amended by, inter alia, Legislative Act No. 3 of October 3, 1910, Legislative Act No. 1 of August 5, 1936, and Legislative Act No. 1 of February 16, 1945.

          B.          HISTORY OF THE NATIONAL CONSTITUTIONAL ASSEMBLY

          The history behind the new Constitution of Colombia adopted in 1991 is as follows:  via Decree No. 1926, dated August 24, 1990, the Government of President César Gaviria Trujillo convened a National Constitutional Assembly.  On December 5, 1990, the people of Colombia elected the 70 members of that Assembly.  It was an historic election in that the voters and candidates included former members of the guerrilla movement, recently reassimilated into mainstream society, among them the leaders of the April 19th Movement (M-19).  The outcome of the election was as follows:

          Partido Liberal:  25 Assemblymen; Alianza Democrática M-19: 18; Movimiento de Salvación Nacional: 11; Partido Social Conservador: 5; independent Conservative Party slates: 4; Unión Patriótica: 2; the Indigenous Movement: 2; the Evangelical Movement: 2; Esperanza, Paz y Libertad: 2; Partido Revolucionario de los Trabajadores: 1; Movimiento Indígena Quintín Lame: 1.  These last two assemblymen were elected but do not have the right to vote in the Assembly.

Horacio Serpa of the Liberal Party, Antonio Navaro Wolff of the M-19 Democratic Alliance and Alvaro Gómez of the National Salvation Movement were elected presidents of the National Constitutional Assembly.[1]

         C.         THE 1991 CONSTITUTION

         After 6 months in session, on July 5, 1991, the National Constitutional Assembly enacted the new Constitution, which consists of 380 articles and 60 transitory provisions.

         This report contains a very brief description of the new Colombian Constitution, emphasizing the main features of the political structure of the Colombian State.  Also mentioned are the human rights provisions contained in that Constitution, with an indication of the specific article wherein each human right is addressed.

         Under Title I, on the Fundamental Principles, articles 1 through 10 provide the following frames of reference:  Colombia is a State organized as a single, decentralized, participatory and pluralistic republic, founded upon respect for human dignity, the work and the solidarity of its people and to ensure that the general welfare prevails.  The essential functions of the Colombian State are to serve the community, promote general prosperity and guarantee the effectiveness of the principles, rights and duties established in the Constitution; to enable all its citizens to have a voice in the decisions that affect them and in the economic, political, administrative and cultural life of the Nation; to defend the Nation's independence, preserve its territorial integrity, and ensure peaceful coexistence and justice; it adds that the authorities of the Republic are instituted to protect the life, honor, property, beliefs, and the other rights and freedoms of all residents of Colombia and to ensure that the State and private parties fulfill their social obligations.

         The fundamental principles set forth in Articles 1 and 2 of the Constitution contain the bases upon which the rule of Colombian law and respect for and defense of human rights rest: that sovereignty resides exclusively in the people from which the public power emanates and that it is the people who exercise sovereignty, either directly or through their representatives.

         Article 4 provides that the Constitution is the law of laws and that in the event of some incompatibility between a provision of the Constitution and a law, the provisions of the Constitution shall take precedence; under article 5, the State recognizes the primacy of the individual's inalienable rights, without discrimination of any kind, and protects the family as the basic institution of society.

         Other basic principles are that individuals who have violated the law or the Constitution are answerable exclusively to the Colombian authorities; that public servants are answerable for failing to perform their functions or overstepping their authority; that the State recognizes and protects ethnic diversity; that it is the obligation of the State and of its parts to protect the property and cultural heritage of the Nation; that foreign relations are based on national sovereignty, respect for the self-determination of peoples and on the recognition of the principles of international law to which Colombia is bound; that Spanish is the official language of Colombia, but the languages and dialects of ethnic groups are also official within their territory and education in communities with linguistic traditions shall be bilingual.

         Title II of the Colombian Constitution contains an impressive catalogue of human rights, which are enumerated in detail in the corresponding section.  They appear in Chapter 1 (articles 11 to 41) under the heading of fundamental rights; Chapter 2 (articles 42 to 77) contains the social, economic and cultural rights; Chapter 3 (articles 78 to 82) contains the collective rights and environmental rights; Chapter 4 (articles 83 to 94) refers to the rights to protection and enforcement of the rights described earlier, while Chapter 5 (article 95) concerns duties and obligations.

         Particular mention should be made of the fact that under Article 93, international human rights treaties ratified by Congress are preeminent and may not be restricted in states of emergency.  It also provides that the rights and duties established in the Constitution shall be interpreted in accordance with international human rights treaties ratified by Colombia, adding that the rights and guarantees contained in the Constitution and in international conventions shall not be understood as a denial of other rights that, being inherent in the human person, are not expressly stipulated in either the Constitution or those conventions.

         Title III concerns nationality, citizenship, aliens and territory.  Title IV concerns the political rights and their exercise.  Its Chapter 1 regulates the methods of democratic participation (voting, plebiscite, referendum, public consultation, open town meetings, legislative initiatives and removing elected officials from office); in Chapter 2 of this title, the Constitution regulates political parties and political movements, while Chapter 3 concerns the status of the opposition.  The Constitution repeals the bipartisan system of government instituted in 1958 with the so-called "National Front".

         D.         POLITICAL-LEGAL STRUCTURE OF THE STATE

         Like the 1886 constitution it replaced, the 1991 Constitution establishes three branches of government:  legislative, executive and judicial.  It also establishes independent autonomous organs with specific functions.  Colombia's constitutional history has been one in which the executive branch of government has always been preeminent.  However, the present Constitution tries to balance the relationship between the executive and legislative branches by increasing the latter's powers.  Accordingly, the executive's authorities to legislate were curtailed and the Congress was given greater political control over government.  The governance and functions of the legislative branch of government are in article 114 and in articles 132 to 187.

         The Legislative Branch of Government, addressed in Title VI under the heading of Legislative Branch (articles 132 to 187), is composed of senators and representatives elected directly by the people to four-year terms of office that begin on July 20 following their election.  Their basic function is to amend the Constitution, make laws and exercise political control over the government and the administration.  Its members represent the people and must consider justice and the common welfare.  They are answerable to both society and to their constituents in discharging their duties.  The Senate and the House of Representatives together constitute the Congress, which has its seat in the capital of the Republic.  Congress has two regular sessions each year when it is a single legislature.  The Senate is composed of 100 members elected nationwide, while the House of Representatives, whose members are elected in territorial and special elections, has two representatives per territorial district and one for every 250,000 inhabitants or fraction over 125,000.

         One of the Colombian Congress' functions is to make the laws and, through them, to exercise the following functions: interpret, amend, and repeal laws; issue codes in all fields of law and amend their provisions; establish the rules by which government must operate when exercising the inspection and oversight functions stipulated in the Constitution; invest, for up to six months, the President of the Republic with specific, extraordinary authorities to issue norms that have the force of law when necessity so requires or the public interest so counsels.  These authorities are not to be conferred for purposes of issuing codes, statutes, charters, etc.; approve or disapprove the treaties that the Government concludes with other States or with entities of international law.  By a majority of two thirds of the members of both houses and for grave reasons of public interest, it may grant amnesties or general pardons for political crimes.  Should the persons pardoned or given an amnesty be relieved of any civil liability vis-a-vis private parties, the State shall be obligated to pay any damages due, etc.

         The Executive Branch is composed of the President of the Republic, who is head of government and supreme administrative authority, and of the ministers and directors of government departments.  Under Article 188, the President must not only observe and enforce the Constitution and the laws of the Republic but must also guarantee the rights and freedoms of all citizens.  Articles 115 and 188-227 concern the structure of the executive branch of government.

         Within the Office of the President of the Republic, there is an Office of the Presidential Adviser for the Defense, Protection and Promotion of Human Rights, organized as follows:

         Case area.  This area acts upon the complaints of human rights violations filed at the national level.  The work is performed jointly with the competent authorities, especially with the Office of the Attorney General and the Judiciary.  For cases reported by international organizations, an inter-institutional working group has been formed and must ascertain the status of the investigations and compile any information needed.  Through the Municipal and Regional Area and the municipal authorities that represent it, the job of defending, protecting and promoting human rights is performed on a national scale.  There is also a Human Rights Promotion and Dissemination Area.  The International Area involves functions established under Article 2, paragraph 3 of Decree No. 2111, to address requests that governmental and nongovernmental international entities make of the Colombian Government in connection with the human rights situation in the country and the obligations it has undertaken by virtue of treaties and conventions signed and ratified by the State.  This function is performed jointly with the Ministry of Foreign Affairs.

         The Judicial Branch is covered under Title VIII, under the heading Judicial Branch.  Title VIII contains 7 chapters: 1, General Provisions; 2, The Regular Courts; 3, Administrative Courts; 4, The Constitutional Court; 5, The Special Courts; 6, The Office of the Prosecutor General; 7, the Superior Council of the Judiciary.  The judicial branch of government is governed under Article 116 and articles 228 to 257 of the Constitution.  Under Article 116, the administration of justice is the responsibility of the Constitutional Court, the Supreme Court of Justice, the Council of State, the Superior Council of the Judiciary, the Office of the Prosecutor General of the Nation, the tribunals and judges.  That same article also mentions military criminal justice.  Congress is to exercise certain judicial functions.  Under Title VIII, the administration of justice is a public function; the decisions of the judiciary are independent and its proceedings are to be public and ongoing, with the exceptions that the law allows.

         a)         The Supreme Court (Ordinary Jurisdiction) is the highest of the ordinary courts.  It consists of 23 magistrates elected by the Court itself to an eight-year term from slates submitted by the Superior Council of the Judiciary.  The members of the Court sit on the full bench and on the Civil, Criminal and Labor Appeals benches.  While it is an appellate court, it also investigats and tries the President, ministers of state, the attorney general, the public defender, and in general high-ranking officials and members of Congress for any punishable offense of which they stand accused.

         b)         The Council of State (Administrative-Adjudicatory Jurisdiction) is the Government's advisory body on matters of administrative law and the supreme court for litigation in administrative law.  It consists of 26 magistrates elected by the Council of State to an eight-year term, from slates containing no fewer than three candidates, which the Superior Council of the Judiciary shall refer to it.  The members of the Council of State shall serve through the full chamber, the chamber for administrative law and the advisory and civil service chamber.

         The Administrative-Adjudicatory Chamber shall take cognizance of actions seeking nullification, on grounds of unconstitutionality, of any decree issued by the National Government that does not fall within the jurisdiction of the Constitutional Court; it shall also hear cases arguing the illegality of national administrative acts issued in any branch of government and by private bodies performing public functions; it shall hear cases to which either the nation or a territory or decentralized entity is party and cases wherein national bodies are seeking a ruling on government authorities.  The third section of the Administrative-Adjudicatory Chamber deals with direct reparations for government acts, omissions or operations, which would include proceedings in which the State is being held responsible for a human rights violation.

         c)         The Constitutional Court (Constitutional Jurisdiction) also has an uneven number of members, as determined by law.  Its magistrates are to represent various areas of the law.  They are elected by the Senate to an eight-year term and are not eligible for re-election.  The functions of the Constitutional Court are as follows:  to decide cases brought by citizens arguing the unconstitutionality of acts that amend the Constitution, whatever their origin, on the grounds of procedural error; to decide, before the people speak, whether a referendum or a constitutional assembly to amend the Constitution is constitutional on purely procedural grounds; to decide on the constitutionality of referenda on laws and on the public consultations and national plebiscites (in these last two cases, the actions can only assert procedural error in the convocation and conduct of the public consultation and plebiscite); to rule on cases filed by citizens claiming the unconstitutionality of laws on the grounds of both material content and procedural error; to settle suits brought by citizens arguing the unconstitutionality of decrees issued by the government with the force of law based on Article 150, paragraph 10, and Article 341 of the Constitution, on the grounds that they are materially or procedurally flawed; to rule on the exemptions covered in Article 137 of the Constitution; to hand down a definitive ruling on the constitutionality of the legislative decrees issued by the government pursuant to articles 212, 213 and 215 of the Constitution; to issue a final ruling on the constitutionality of bills or draft statutes that the Government has challenged as unconstitutional because of their material content and procedural error; to review, in the manner prescribed by law, court decisions on the protection of constitutional rights with a view to determining the scope of those rights; to rule definitively on whether the international treaties and the laws that approve them are exigible.  The Government shall refer those treaties and the laws that approve them to the Court within six days of the latter's enactment.  Any citizen may become a party to an action before this Court to argue for or against the constitutionality of the treaties and the laws approving them.  If the Court declares them to be constitutional, the Government may proceed to the exchange of notes; otherwise, the treaties shall not be ratified.  When the Constitutional Court declares one or several provisions of the multilateral treaty to be non-exigible, the President of the Republic may only indicate consent if the necessary reservation is stipulated.

         The work being done by the new Constitutional Court, whose magistrates were sworn in as recently as March 1992, deserves a special word of recognition from the Inter-American Commission on Human Rights for the work it is doing to defend, strengthen and consolidate Colombia's constitutional system.

         d)         The Office of the Prosecutor General.   The Office of the Prosecutor General of the Nation consists of the Prosecutor General, the attorneys delegates, and other officials that the law prescribes.  The Prosecutor General of the Nation shall be elected to a four-year term by the Supreme Court of Justice, from a slate submitted by the President.  He/she may not be reelected.  The Prosecutor General must have the same qualifications required to be a magistrate on the Supreme Court.  The Office of the Prosecutor General is part of the judiciary and is to have administrative and budgetary autonomy.   The Prosecutor General of the Nation and his/her delegates have competence throughout the national territory.  It is the function of the Office of the Prosecutor General--either ex officio or in response to a complaint filed--to investigate crimes and to bring charges against the suspected guilty parties with the competent courts and tribunals, except in the case of service-related crimes committed by members of the armed forces or National Police on active duty, in which case it shall:  1) ensure that those suspected of violating the criminal law appear before the courts, adopting the measures necessary to that end.  Also, if need be it shall take steps to see to it that those whose rights have been violated by the commission of the crime have their rights restored and are properly compensated for any damages caused; 2) evaluate and close the investigations conducted; 3) direct and coordinate the criminal police functions performed, by law, by the National Police and other agencies; 4) protect the victims, witnesses and parties in a legal proceeding; 5) perform the other functions that the law stipulates.

         The Office of the Prosecutor General is by law required to investigate that which is favorable and that which is unfavorable to the accused, and to respect his fundamental rights and procedural guarantees.  It is the duty of the Prosecutor General of the Nation:  to investigate and indict, where appropriate, high-ranking officials who enjoy constitutional privilege, with the exceptions stipulated in the Constitution; to appoint and remove, in keeping with the law, the employees in his government department; to help shape the State's policy toward crime and to submit bills in that regard; to invest public entities with temporary authority to serve as criminal investigations police, under the responsibility and functionally answerable to the Office of the Prosecutor General of the Nation; and to provide the government information on the investigations being carried out, whenever necessary to preserve public order.

         The Commission believes that the Office of the Prosecutor General may represent a significant change in Colombian criminal procedure.  The existing criminal procedure has two stages:  the investigatory stage where the evidence is compiled; and the trial itself, where the criminal responsibility of the accused is established.  To understand the function of the "fiscal" [prosecutor], one must recall that under the previous system both phases were performed by independent judges:  an examining judge investigated the crimes denounced and if he found sufficient cause requested that another judge, the trial judge, bring the suspected guilty parties to trial.  Under the new criminal procedure, it is not the judge, but rather the prosecutor who must investigate and indict suspected criminals after which judges will determine whether or not they are guilty.  Under the previous system, there was no single authority who took responsibility for the criminal investigation as a whole, so that each examining magistrate conducted his or her own investigation of the complaints that came to his or her office.  The system did not necessarily have specialists in specific subjects or someone to coordinate the many authorities involved in criminal investigations (the DAS, F2, DIJIN, the Technical Corps of the Criminal Investigations Police, etc.) that assisted them in their functions.  All these difficulties were compounded by the complexity of the cases and by the fact that the judges were not protected.

         During its first year, the Office of the Prosecutor General managed to handle 186,000 of the 325,000 cases it received when it started to function, which made the system 50% more efficient than it had been.  Criminal investigations rely on more technologically sophisticated methods, prosecutors' performance is more closely scrutinized and the  procedures have been streamlined.  As for the protection of human rights, the report on the first year of the Prosecutor's Office stresses that it handles requests from governmental and nongovernmental, national and international organizations concerning criminal investigations being conducted into human rights violations anywhere in the national territory and constantly monitors each investigation to make certain that the relevant constitutional and legal principles are being observed.  It states that thus far, it has or is investigating 1,724 cases involving human rights violations of various types:  700 cases of disappearance, 782 cases of murder, 70 cases of mass murder, 20 cases of torture, 69 cases of threats, 50 kidnapping cases and 28 cases of arbitrary arrest, routed through various government agencies, particularly the Ministry of Foreign Affairs and the Office of the Presidential Advisor for Human Right, and 45 cases reported by nongovernmental organizations such as Amnesty International, Justice and Peace, the Andean Commission of Jurists, and so on.[2]

         e)         The Superior Council of the Judiciary.  Chapter 7 makes provision for a new body called the Superior Council of the Judiciary.  It has two chambers:  the administrative, consisting of 6 magistrates (elected as follows:  two by the Supreme Court, one by the Constitutional Court and three by the Council of State), and the disciplinary jurisdictional chamber, composed of 7 magistrates elected by Congress.  The functions of the Superior Council of the Judiciary are as follows:  to administer the judiciary service; to prepare lists of candidates for appointment as members of the judiciary and to send those lists to the body that must make the appointment (the exception is the military criminal courts, which are governed by their own rules); to examine the conduct and punish misconduct by members of the judiciary and practicing attorneys, as required by law; to monitor the performance of law firms and offices; to prepare the proposed budget of the judiciary that is to be submitted to the government and to execute it as it is approved by Congress, and to settle any conflicts of competence that may arise among the various jurisdictions.

         f)         Military Criminal Courts.  Article 221 of the Constitution of Colombia reads as follows:  Military courts martial or tribunals shall take cognizance, in accordance with the provisions of the Military Penal Code, of service-related crimes committed by members of the public forces while in active service.  The military criminal jurisdiction in Colombia has been organized in accordance with the provisions of the Military Penal and Criminal Procedure Code, issued on December 12, 1988, through Decree Law No. 2550, which entered into force in June 1989.

         Under the previous Code of Military Criminal Justice, issued through Decree Law No. 250 of 1956, military courts were competent to hear cases of common crimes committed by military while in active service in times of war, armed conflict, disruption of the public order or internal disturbance.  Under the new criminal code, however, the scope of military criminal justice is as follows:  the provisions of this code shall apply to military in active service who commit a military or service-related common punishable offense, within or outside national territory, with those exceptions stipulated in international law.  It shall also apply to officers, subordinates and agents of the National Police.

         Military Criminal Jurisdiction consists of the Military Superior Tribunal, the lower courts, the chairmen of the courts martial and military criminal pretrial staff.  The Military Superior Tribunal is composed of a General Commander of the Armed Forces, who presides; there are another 15 magistrates, 10 prosecutors for all the chambers and the subordinate staff required by law.  The Government may add additional staff when necessary.  The magistrates and prosecutors are appointed by the government to five-year terms.

         E. HUMAN RIGHTS UNDER THE COLOMBIAN CONSTITUTIONAL SYSTEM

         Colombia has a history of promoting and defending human rights.  One of the reasons is perhaps the repeated waves of violence that it has had to contend with over the course of its history.  One of the forefathers of human rights in Colombia was undoubtedly Antonio Nariño, who translated the 1789 French declaration of the rights of man from French to Spanish.  Thanks to Nariño, Colombia was perhaps the first nation in the Spanish-speaking new world where the specific subject of human rights was discussed.  Moreover, the Colombian constitutions that predated the 1886 and 1991 constitutions recognized human rights in Colombia.

         Human dignity and human rights are at the heart of the new Constitution inasmuch as they are the raison d'etre and fundamental purpose of the Colombian State, as its preamble and articles 1 and 2 state.  What follows is a list of some of the rights recognized in the new Colombian Constitution:  adolescence, 45; acquired rights, 58; a balanced diet, 43, 44, 46; a healthy environment, 79; love, 44; the elderly, 46; appeal, 31, 158; immediate enforcement, 85; asylum, 36; association, 38; political association 107; union association, 39; health care and environmental sanitation, 49; free health care, 50; honor, 15; movement and residence, 24, 31; personal rights, 15; challenge evidence, 29; care, 44; culture, 70; due process, 29; self defense, 29; the rights of the physically handicapped, 47; education, 44, 67; territorial entities, 287, 360; aliens, 100, family, 42, 44; fundamental rights, 11, 12, 13, 14, 15, 1, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 45, 36, 37, 38, 39, 40, 41, 152, 250; habeas data, 15, habeas corpus, 30, 282; emoluments, 50, honor, 21; strike, exercise and prohibitions, 56; human rights, 20, 67, 93, 94, 95, 118, 214, 222, 277, 282, 377; equality, 13; challenge a court ruling, 29; inalienable rights of the individual, 4; the inherent rights of the human person, 94; physical integrity, 12, 44; international humanitarian law, 214; international law, 9, 101, 214, 235; family privacy, 15; personal privacy, 15; inviolability of communications, 15; inviolability of domicile, 28; right to a fair trial, 229; freedom of communication, 20; freedom of conscience, 18; freedom of worship, 19; freedom of business, 333; freedom to choose one's profession or trade, 26; freedom of information 20; freedom of opinion, 20; freedom of migration, 24; personal liberty, 17, 28; freedom of association, 38; free competition, 333; freedom of expression, 20, 44; freedom to develop one's personality, 16; women's rights, 43; nationality, 44, 96; collective bargaining, 55; children, 44; not to be punished by having one's property confiscated, 34; not to be punished with life imprisonment, 34; not to be punished with exile, 34; not to be tried twice for the same crime, 29; not to be tortured, 12; not to be forced to testify against one's self, 33; not to be a victim of mistreatment, 17; not to be a victim of enforced disappearance, 12; not to be subjected to servitude, 17; not to suffer discrimination, 13; not to be enslaved, 17; the right to a name, 44; competitive examination for employment, 265; heads of household, 68; timely payment, 53; political participation, 40, 265; individual rights, 58; political parties, 107; peace, 20, 22, 67, 95; petition, 23, 219; politicians, 100, 175; to present evidence, 29; to present respectful petitions to the authorities, 23; confidentiality, 355; private property, 58; intellectual property, 61; collective property, 329, communal or public properties, 95; protection, 45; recognized in the Constitution, 95; recognition of legal status, 14; recreation, sports and free time, 44, 52; rectification, 20; the right to correct personal data, 15; the right of reply, 112; the right to meet and to demonstrate, 37, 219; health, 44, 49, 50, 54, 64, 78, 95, 300, 336, 356, 366; the right to professional privacy, 74; social security, 44, 46, 48, 50, 53, 57, 64; the right to join a trade union, 39; the social rights of workers, 215; the social, economic and cultural rights, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76. 77; the right to vote and participate in elections, 99; the right to trial, 228; the rights of the elderly, 46; workers, 53, 77, 215, 336; the right to work, 25; protection, 86; life, 11, 44; decent housing, 51, 64; vote, 100, 103, 219, 258.

         The Constitution and laws contain mechanisms to protect these rights, such as the remedy to seek protection of one's basic rights (tutela), popular actions and the constitutionality challenge, which are discussed elsewhere in this report.  Every Colombian citizen is also protected by an international system to defend and protect human rights, which they may resort to directly if their claims are ignored or when all domestic legal remedies have been exhausted.

         F.         STATES OF EMERGENCY UNDER THE EXISTING LEGAL SYSTEM

         Articles 212 and 213 of the Constitution provide for two types of states of emergency:  the first is in the event of foreign war, while the second is in the event of a serious disruption of the domestic public order that poses an imminent threat to democratic stability, the security of the State and peace among its citizens and that cannot be corrected exercising the ordinary authorities with which the police are invested.  A state of emergency can only be declared in extraordinarily grave situations and never for minor disturbances.  All this is compatible with international human rights law, which emphasizes that there must be very serious reasons for declaring a state of emergency.  The American Convention on Human Rights provides that guarantees may only be suspended in times of war, public danger, or some other emergency that threatens the independence or security of the State Party... (Article 27).  The provisions of the American Convention have been repeatedly interpreted by the Inter-American Commission on Human Rights to mean that a state of emergency can only be declared in an exceptional situation that truly represents a threat to the organized life of the State; the exceptional situation must be such that it cannot be dealt with by the ordinary means the State routinely uses.

         States of emergency declared because of war can last indefinitely.  A state of emergency declared because of a grave internal disturbance can last ninety days and can be extended twice.  The second extension, however, requires advanced approval by the Senate.  Moreover, legislative decrees enacted during a state of internal disturbance can remain in effect for up to another ninety days after matters have returned to normal.  This means that in the event of a grave internal disturbance, the measures adopted pursuant to the state of emergency can last as many as 360 days under the new Constitution.  When one considers that under the previous Constitution, a state of emergency could last indefinitely, which actually happened, the fact that the new Constitution sets a time limit is a significant constitutional and legal change.[3]

         Unlike the previous Constitution, which allowed certain constitutional guarantees to be suspended during a state of emergency, subparagraphs 2 to 6 of Article 214 of the new Constitution provide the following:

         Human rights may not be suspended, nor may the basic freedoms.  The rules of international humanitarian law shall be respected at all times.  A statute shall regulate the authorities of the Government during states of emergency and shall stipulate the judicial controls and guarantees available to protect rights, pursuant to international treaties.  The measures adopted must be proportional to the severity of the events.  (This statutory law is now being negotiated in Congress).  The three branches of government and the organs of the State shall not be impaired by a state of emergency.  As soon as the foreign war has ended or the reasons that prompted the state of emergency because of internal disturbance no longer obtain, the government shall declare public order restored and shall lift the state of emergency.  The President and the ministers shall be held accountable when they declare a state of emergency without there being any foreign war or internal disturbance; they, as well as the other government officials, shall be responsible for any abuses they may have committed in exercising the authorities conferred upon them in the preceding articles.  The Government shall refer to the Constitutional Court, the day following their issuance, the legislative decrees it issues in exercise of the powers referred to in the preceding articles, so that the Court may deliver the definitive ruling as to their constitutionality.  If the Government fails to send said legislative acts to the Constitutional Court, the latter shall take cognizance of them ex officio and immediately.

         Article 214 also provides the following: "...the President of the Republic and the ministers shall be held accountable if they declare a state of emergency when none of the circumstances provided for in the first paragraph obtains; they shall also be responsible for any abuse committed in exercising the authorities that the Constitution gives the government during states of emergency."

         Even though the 1991 Constitution introduced important changes in the state-of-emergency system, the Commission is disturbed by the two internal disturbance declared by the Chief Executive in 1992, because it questions whether there was cause and because certain fundamental rights were restricted.

         Through Decree 1155/92 of July 9, 1992, the Government of Cesar Gaviria declared a state of internal disturbance in Colombia to avoid releasing more than 1200 people accused of drug trafficking and terrorism.  Although this danger could not be settled by any of the ordinary authorities with which government authorities are vested, on the other hand it does not seem that to allow the accused to exercise their lawful right should pose "an imminent threat to democratic stability, the security of the State or peace among its citizens."  On the basis of this provision of Decree 1156, the exercise of the right of habeas corpus was restricted.  In effect, Article 3 of Decree 1156 of 1992 expressly stipulates that suspects charged with drug trafficking and terrorism shall not be permitted to file petitions of habeas corpus when they believe they satisfy the legal requirements for provisional release; it orders that arguments for provisional release are to be made during the respective proceedings.  It also stipulates that the petition of habeas corpus may not be used to vacate an order of incarceration issued by the judge hearing the case.

         Article 30 of the Constitution stipulates that the guarantee of habeas corpus may be invoked at any time, before any judge and by any person who considers that he or she has been unlawfully deprived of his or her freedom.  Therefore, the chief executive cannot limit the use of habeas corpus to certain stages in the proceedings or prevent someone accused of certain crimes from using habeas corpus to challenge a decision by the judge hearing the case ordering the accused's incarceration.

         The Inter-American Court of Human Rights has established specific jurisprudence on this issue in Advisory Opinion No. 8/87, where it stated that habeas corpus cannot be limited or suspended at any time because "the right to life and to humane treatment are threatened whenever the right to habeas corpus is partially or wholly suspended."  The United Nations Working Group on Enforced Disappearance took the same position.  The Commission itself, in its report on Colombia in 1989-90, pointed to the need to take swift legal and institutional measures to restore habeas corpus to its proper place.  These international pronouncements were disregarded when the Colombian Government gave those accused of drug trafficking and terrorism fewer opportunities to exercise the right to file a petition of habeas corpus.  Unlike Colombia's Constitutional Court, which ruled that the restriction was not unconstitutional, the Commission believes it is patently at odds with Article 214 of the Constitution, which provides that the government shall not suspend fundamental rights and freedoms in states of emergency.

         Through Decree 1793, of November 1992, the Government of President Gaviria again declared a state of emergency by reason of internal disturbance, wherein an all-out war on the guerrilla movement was declared.  Based on this declaration, the following emergency measures were ordered: criminal investigations were assigned to the military forces (Decree 1810); popularly elected mayors and governors who did not adhere to the central government's policy vis-a-vis the guerrilla movement were subject to sanctions (Decree 1811); certain public information could not be disseminated to the media (decree 1812); an office was created to protect victims and witnesses in trials being heard by regional judges (Decree 1834).

         The Commission was particularly disturbed by the fact that members of the military were to be allowed to perform functions ordinarily performed by the criminal investigations police in investigations conducted by prosecutors into cases involving civilians.  When prosecutors use military personnel as criminal investigators, citizens' rights can be violated, evidence can be faked or even concealed when it is incriminating to the armed forces, which is frequently accused of alleged human rights violations.  And so the Commission was gratified to see that this measure was never put into effect since the Constitutional Court declared it unconstitutional in the compulsory review it must make of all decrees issued in exercise of emergency powers.

         The Commission believes that in many respects, this report has already served an important purpose.  Its objections to certain laws and decrees in the Colombian system were taken into account and helped bring about meaningful changes, as in this case.  The criticism of the decree was heeded and State agencies did not enforce it.  Cited below are a number of paragraphs from the Constitutional Court's ruling No. C-034, February 8, 1993, explaining the reasoning behind the Court's finding that 1992 Decree 1810 was unconstitutional:

         Given their constitutional objectives (defending the sovereignty, independence and integrity of the territory and the constitutional order), the military forces do not have  competence to serve as criminal investigating police.  In truth, giving the military forces the functions of criminal investigating police would pervert their nature.

         To give the military forces dual functions (a military function and an investigative police function) and to introduce the corresponding dual hierarchy of authority (the highest ranking military officer and the Prosecutor General of the Nation) would break the backbone of the military's structure, destroy the single command chain and in some sense guarantee that in the event of a conflict between the two functions (a possibility that cannot be discounted given the climate of armed conflict in several parts of the national territory and that has forced the military to strengthen its presence and increase its operatives) the function of criminal investigating police would take precedence.

         From a constitutional standpoint, to include military personnel in criminal investigation police units was tantamount to administration interference in the judiciary.[4]

         The Commission hopes that in Colombia, states of emergency will become the exception rather than the rule and that when a declaration of a state of emergency really is necessary, the guarantees set forth in the American Convention and the Colombian Constitution will be respected.

         G.  EMERGENCY DECREES BECOME PERMANENT LAW

         To illustrate how the emergency decrees have been incorporated into and are now part of Colombia's permanent body of law, the following is a summarized table of what were originally called the Statutes for the "Defense of Democracy" and for "Defense of Justice", specifying the acts they criminalize and punish and the procedures that they establish.  Also highlighted are the norms that were subsequently enacted in order to supplement these statutes or modify them, including the provisions of the Code of Criminal Procedure and Law No. 81 of November 2, 1993, which amended that code.

STATUTE FOR THE DEFENSE OF DEMOCRACY.  Decrees 180-88 and related decrees

I.       Crimes heard by Public Order Courts (today known as Regional Courts)

         1.  Terrorism.  2.  Aiding and abetting terrorism or terrorist activities.  3.  Failing to report terrorist activities.  4.  Demanding or soliciting funds for terrorism.  5.  Recruiting, forcibly or otherwise, for terrorist groups.  6.  Forming or joining armed groups (members).  7. Conspiracy to commit crime.  8.  Arson, destruction or vandalization of boats, aircraft or any other means of transportation by a terrorist act.  9.  Firing upon or using explosive devices to destroy vehicles.  10.  Possession, manufacture, trafficking and use of arms or toxic substances.  11.  Using or throwing dangerous substances or objects.  12.  Manufacture or trafficking in arms and munitions used exclusively by the Military Forces or the National Police.  13.  Instructing, training and outfitting armed groups.  14. Unlawfully using transmitters or receivers.  15.  Administering resources gotten by means of terrorism.  16.  Intercepting official correspondence.  17.  Unlawful use of uniforms and insignia.  18.  Usurping authority.  19.  Inciting others to commit military crimes to aid terrorist activities.  20.  Kidnapping (S.P. Cualificado) [Translator's note:  the expression "S.P. Cualificado" literally means "qualified passive subject," i.e. that the passive subject of the crime has some position or rank that distinguishes him/her from ordinary passive subjects]  when the victims are public order judges, procedure, Decrees 181/88 or 474/88.  21.  Torture in terrorist activities (S.P. Cualificado)*.  22.  Extortion for purposes of terrorism.  23. Personal or family threats for terrorist ends.  24.  Terrorist attacks against industrial complexes and other institutions.  25. Hijacking of aircraft, boats or other means of mass transportation.  26.  Homicide for terrorist ends (S.P. Cualificado)*.  27.  Personal injury inflicted for terrorist ends (S.P. Cualificado)*.  28.  Injury caused by unlawful armed groups.  29.  Adulteration of foods and medicines.[5]

         In addition to the acts criminalized in Decree 180 of 1988, others contained in decrees that either pre- or post-dated the state of siege also became permanent law, such as:  possession of personal defense weapons, munitions or explosives without a permit and bearing arms that are to be used solely by the Armed Forces (Decree 3664 of 1986); increased penalties for the crime of insurrection and for the crime of rioting, unlawful assembly and violence (Decree 1857 of 1989); impairing the free exercise of the right to vote by using weapons at political or electoral events (Decree 1859 of 1989); Unlawful enrichment (Decree 1895 of 1989).  In this case, the burden of proof was on the accused.[6]

         Those who either commit or participate in the commission of these crimes shall be exempt from punishment when they provide effective cooperation in ascertaining the facts; there are also monetary rewards for vital information.[7]

II.         Proceedings:

         1.          Preliminary inquiry

         1.1.  Competent authorities:  the specialized Public Order teams and members of the military forces, national police and the Administrative Security Department that are not part of the Criminal Investigations Police.

         1.2.  Authorities:  In addition to the functions and authorities given to the Technical Corps of the Criminal Investigations Police under the Code of Criminal Procedure, the Statute gives those same authorities the following functions and powers:  a.  To assist public order judges in the manner and to the degree that the latter indicate.  b.  To contribute urgently needed or force majeure elements, confining their functions to the following:  1)  their authorities in cases where the individual in question is caught in flagrante (arrest, etc.).  2)  Searches of private residences, with the permission of the resident, but under no circumstances on their own initiative.  3)  Searches of public places to confirm the illegal possession of firearms, explosives, munitions or other materials enumerated in the emergency provisions.  4.  Intercepting communications sent or received.

         1.3  Period of questioning:  -5 days from the date of capture; -The respective judge must be informed of the capture within 36 hours; -The individuals taken into custody and the case files must be turned over within the next 5 days, plus any additional period allowed because of distance; the judge may extend this period for another 10 days.  1.3.1.  Holding prisoners in custody and incommunicado (Decree 1859/89):  The criminal investigating police have 7 working days in which to turn over the case files and the prisoners when the latter were caught in flagrante.

         1.4.  Deciding the individual's legal status:  1.4.1. Time periods in which to decide the individual's legal status:  18 months as of the start of the pretrial hearing and 30 months when there are 3 or more defendants or crimes; 1.4.2.  Safety measures:  only preventive detention.  The pretrial hearing can be conducted so long as criminal action is not prescribed.

         2. Pretrial hearing and ruling

         2.1.  Competent authorities:  A specialized public order judge of first instance, and the public order tribunal in second instance.[8]  2.2.  The time frame for the pretrial hearing:  30 days following the complaint or the report.  2.3.  Procedure:  if the defendant's unsworn statement cannot be taken within ten days of the start of the pretrial hearing, a deadline (2 days) shall be given and a public defender appointed.  Both the Prosecution and the Defense have 8 days each to present their arguments and allegations.  -Ruling:  once the case is returned to the judge's chambers, the judge has 10 days in which to hand down his/her ruling.  Note:  the articles that denied the defendant's right to file a challenge during the pretrial period were declared unconstitutional by the Constitutional Court.  2.4.  The rulings on merits issued during the proceedings can be challenged using the ordinary remedies and within the appropriate jurisdiction; a higher court ruling can be challenged by means of the extraordinary remedies of cassation and review.

         Clarification;  Under articles 310 and 313 of the Code of Criminal Procedure, the authorities empowered to submit evidence and conduct investigations as criminal investigating police are as follows:  the Criminal Investigating Police of the National Police, the Technical Investigations Corps of the Office of the Prosecutor General of the Nation, the public officials attached to the prosecutorial offices and the Administrative Security Department (DAS).  These officials will be answerable to the prosecutor (heretofore a judge) assigned the case and may go so far as to compile and submit technical evidence or evidence resulting from the commission of the crime, activities that violate the right to privacy or implicate suspects on the basis of an unsworn statement or a deposition by an absent party.  Decree 1810 of 1992, which concerned internal disturbances, created units within the military forces but coordinated by the Prosecutor General of the Nation, to perform the functions of criminal investigating police, with the authority to compile and introduce evidence and present testimony specified by the Code of Criminal Procedure (Articles 1 to 5 of Decree 1810).  However, this decree has not yet become permanent law, although its articles were introduced into Bill 040, which the Government presented to Congress and which the latter now has under study.  That bill concerns the emergency provisions that could become permanent law.  Concerning Decree 1810 of 1992, the Constitutional Court ruled that it was unconstitutional for military personnel to submit evidence directly.   It nevertheless left the criminal investigating units intact within the military forces.

III.     Other restrictions

         1.  The identity of witnesses is to be kept confidential if they so request; the witness shall identify himself or herself to the judge and an official from the Public Prosecutor's Office.  2.  Arrest and custody of civil servants.  3.  Confidentiality of the proceedings;  copy of the proceedings may not be made public.[9]

STATUTE FOR THE DEFENSE OF JUSTICE.  Decree 2790/90[10]

I.         General observations

         1. Crimes referred to the ordinary courts.  Decree 2790 of 1990 returned a significant number of punishable offenses to the jurisdiction of the regular courts (articles 10 and 11), thereby relieving some of the congestion in the Public Order Courts, which it also endowed with administrative and efficient support.  These offenses are:  1)  Crimes against the existence and security of the State, described under Title I of Book II of the Penal Code;  2)  Carrying firearms used for one's personal defense or their ammunition;  3)  Simple kidnapping;  4)  Personal and family threats;  5)  Carrying, cultivating and trafficking narcotic drugs in amounts of up to 2,000 units, plants; 10,000 marijuana; 10,000 grams of hashish; 2,000 grams of coca or coca base, and 4,000 grams of methacualone; 6) Destruction of real property for consumption and trafficking of narcotic drugs, except for laboratories, in the same amounts; 7)  The punishable offense criminalized under Article 6 of Decree 1856, when the amount involved is less than 1,000 minimum wages;  8) Proceedings related to property seized on the occasion of previous violations.  Note:  The other crimes heard by the Public Order Court will be processed in accordance with the provisions of this Statute.

         2. Change of venue:  The Ministry of Justice may change the venue of the proceedings when the personal safety of the judge is endangered or when circumstances are present that could compromise:  public order; impartiality or independence in the administration of justice; procedural guarantees; the public nature of the proceedings; and the safety of the individual on trial.

         3. Public Order Criminal Investigation Police.  3.1.  The permanent investigative units consist of personnel from the following: the Technical Code of the Criminal Investigating Police, the Administrative Security Department (DAS), the National Police (DIJIN and SIJIN).  Note:  the Public Order Investigative Units that include military personnel must have the authorization of a criminal judge in order to:  1) conduct searches; 2) tap telephone lines; 3) make arrests, except in the case of an individual caught in flagrante delicto.  Note:  When the legal circumstances warrant it, searches may be conducted without a court order; however, the unit chief must take all criminal and disciplinary responsibility.

II.         Proceedings

         1.         Preliminary inquiry

         1.1.  Competent authorities:  Public Order Investigative Units.  1.2.  Notification:  Early the following day the Public Order Section Director will be notified so that he may assign the examining judge.  The judge may replace the Public Order Unit with another or order that a joint investigation be conducted.  The official from the Public Prosecutor's Office will also be notified of the starting date of the preliminary inquiry.  1.3.  Arrest.  The arrest will be recorded in a file each page of which will be signed by an official with the Public Prosecutor's Office.  Immediate notification:  1) the party specified by the person in custody;  2)  the official with the Public Prosecutor's Office;  3) the examining judge.  Note:  The individuals in custody and the original copy of the case file are to be remanded to the examining judge within five days of arrest.  During this period the individual can be held incommunicado.[11]

2.         Pretrial hearing

         2.1.  Competent authority:  Public Order Examining Judge, assisted by the Investigation Units.  2.2.  Time frame for taking the unsworn statement:  in the case of one individual in custody:  within three days of being brought before the court.  Two to five individuals in custody:  5 days.  More than five individuals in custody:  10 days.  2.3.  Establishing the individual's legal status. Time frame:  when there are one or two individuals under arrest:  10 days following the unsworn statement.  Five or more individuals:  20 days.  The Section Director may designate several judges to take the unsworn statements and determine the individual's legal position. - A declaration by an absent individual and appointment of a public defender, after posting a notification of case pending at the scene of the events.  2.4.  Review of proceedings:  the following shall have access to the case file:  1) the individual implicated by the proceedings;  2) the attorney for the defense;  3) the court assistants;  4) the Public Prosecutor's Office;  5)  the National Director of Criminal Investigations or his/her representative;  6)  the National Deputy Director for the Public Order Jurisdiction, and  7)  the Public Order Section Director.  Restriction:  In the case of the defense attorney, the court assistant and the accused, the decisions and evidence can be held on reserve until the investigation has been officially closed should the security and efficacy of the investigation so warrant.  2.5.  Confidentiality of the pretrial hearing:  copies of the proceedings may not be circulated.  2.6.  Evidence:  The investigative units may submit whatever evidence they deem pertinent and the evidence requested by the judge appointed to the case, by the official from the Public Prosecutor's Office and by the attorney for the defense.  Evidence requested by the defense attorney can be denied by a hearing and that decision cannot be appealed except by a one-time request filed with the Public Prosecutor's Office.  2.7.  Decree closing the investigation:  This is a case hearing decision that cannot be appealed.  Time frame for entering pleas, five days.  Time frame for a ruling on the pretrial hearing: 10 days by the end of which either an indictment or an order to dismiss the case or reopen the investigation must be handed down.

3.      Trial phase

         3.1.  Competent authority:  Public Order trial judge.  3.2.  Evidentiary period:  30 days to request evidence; 60 days to submit evidence.  Evidence can be submitted directly by the judge or through the investigations unit.  The evidence produced by the Criminal Investigation Police Unit can be re-examined.  3.4.  Time frame for a judgment:  8 days for entering pleas, 15 days for handing down a judgment.

III.         Special Institutions

         1.  The identity of judges is kept confidential by changing their case assignments and having the arguments submitted in writing.  2.  Notification of interlocutory decrees is through the Public Order Section Chiefs.  3.  Special procedure for the disposition of case-related properties.  4.  Preventive detention, as the one permissible means of guaranteeing that the suspect remains in custody.  5.  Apprehension and incarceration of public officials.  6.  Hospital or house arrest.  7.  Determining the appropriate authority to process and decide petitions of habeas corpus filed with the Magistrates of the Public Order Court.[12]  8.  Reducing sentence in exchange for effective cooperation during the investigation or immediate and unconditional provisional release.  9)  Monetary compensation to informants, whereby the money is paid either within or outside the country.[13]

         With the establishment of a public order jurisdiction, now called the regional jurisdiction, decrees and procedures have been established that infringe upon fundamental rights upheld in Colombia's Constitution, such as the right of defense (the secret witness has become standard practice; secret judges; secret prosecutors and officials, a proliferation of evidence that is kept secret and therefore impossible to refute; investigations into individuals who are only implicated when the examining phase is already at an advanced stage and hence do not have the procedural opportunity to defend themselves); the right to due process (military units introducing evidence, pressure exerted on suspects to get them to confess or to get them to make statements, confessions or accusations that are used in order to have them held in custody without properly weighing the evidence); the right to personal liberty (long periods of incarceration without the accused's situation being resolved; incarceration for crimes not committed; criminalizing noncriminal behaviors or behaviors that constitute some other type of punishable offense) and the right to be presumed innocent (orders of incarceration and arrest warrants issued on the basis of a single piece of secret evidence).

         H.     COLOMBIA AND THE INTERNATIONAL SYSTEM OF HUMAN

                  RIGHTS LAW

         As the 1989 Report of the Office of the Presidential Advisor for the Defense, Protection and Promotion of Human Rights quite rightly points out, the Colombian State has signed and ratified most of the international covenants, protocols and conventions related to human rights.  Accordingly, articles 93 and 214, paragraph 2, provide that international human rights and humanitarian law treaties are preeminent in the domestic legal system.  This means that Colombia has certain substantive and jurisdictional obligations.  From the jurisdictional standpoint, with ratification of these instruments, Colombia undertakes to accept the jurisdiction of the international bodies established to defend human rights in cases where the human rights of persons either living in or passing through the country have been violated, since the mission of international jurisdictional bodies is to ensure compliance with the covenants, conventions and protocols signed by the member countries; to try to restore a right that has been violated and to persuade the country to punish those responsible and order the damages due as a result of the violation.

         International organizations issue censures, generally moral in nature, when a country fails to honor the obligations it has undertaken.  It may, for example, have failed to prosecute the investigations via the mechanisms provided under domestic law; or if those mechanisms have been exhausted, it may have failed to give any genuine satisfaction by restoring the violated right.  The binding nature of these obligations is not construed as a violation of a nation's sovereignty or a breach of its political and jurisdictional structure.

         What follows is a list of the international human rights covenants, conventions and protocols by which Colombia is bound:        

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