|
|
|
CHAPTER III THE POLITICAL AND LEGAL SYSTEM IN COLOMBIA continued...
I.
THE GOVERNMENT'S FAILURE TO ACT UPON THE COMMISSION'S
RECOMMENDATIONS
As to the Colombian Government's observance of the obligations it
undertook by its commitment to the international system of human rights
law, it has to be said that despite the interest it demonstrates in its
interactions with the Inter-American Commission on Human Rights, the
careful attention it gives to the Commission's requests for information
and the spirit of cooperation obvious in its representatives, which the
Commission appreciates and is grateful for, it is nevertheless not
heeding the recommendations that compensatory damages be paid to the
relatives of victims of human rights violations in those cases where the
Commission, after concluding its examination of a case processed in
accordance with the provisions of the American Convention on Human
Rights, has expressly declared that the Government is responsible for
the human rights violations.
The authority of the Commission to make recommendations and
monitor for their fulfillment is expressly stipulated in articles 50 and
51 of the American Convention. It
would be absurd for international law to endow the Commission with the
authority to make recommendations to states if those states did not have
to comply with those recommendations.
Moreover the Convention itself stipulates that in some cases,
that refusal to comply with recommendations may be grounds for a
decision by the Commission to take a case to the Inter-American Court of
Human Rights or to order that the case be published.
Also, under the provisions of the Vienna Convention and the
principle of pacta sunt servanda,[14]
Colombia is required to comply faithfully with its international human
rights commitments.
To justify its failure to comply, the Government of Colombia has
invoked the advisory support of the Council of State, which is not
binding, and refuses to comply with the Commission's recommendations by
invoking its domestic laws. That
is an obvious violation of
the right of the relatives of the victims to a just compensation and a
violation of the Colombian Government's international obligations in
this area.
The Colombian Government demands that those who have filed
petitions with the Commission submit their case again to the domestic
courts by filing suit against the State with the Council of
State--Administrative-Adjudicatory Tribunals--seeking damages.
These arguments disregard the fact that the Commission's
recommendations come out of an international process wherein
representatives of the victims' next-of-kin, who enjoy the same rights
as the Government's representatives enjoy, have persuaded the Commission
that the Colombian State is responsible for the facts under
investigation and therefore has an obligation to pay them compensatory
damages.
The following is the text of the Council of State's finding in
response to the request from the Minister of Foreign Affairs of
Colombia.
Request from the Ministry of Foreign Affairs seeking the
Council's opinion on the binding nature of the recommendations that the
Inter-American Commission on Human Rights makes to the Colombian State
(File No. 461). The
question that the Minister of Foreign Affairs put to the Council is
answered as follows:
Based on Article 237, subparagraph 3 of the Constitution and
pursuant to the provisions of Article 98, subparagraph 2 of the
Administrative-Adjudicatory Code, the National Government is seeking the
Honorable Council's opinion on the issue put to it, with the following
observations:
I. LEGAL BACKGROUND
INFORMATION
1. The Inter-American
Commission was established under Resolution VII of the Fifth Meeting of
Ministers of Foreign Affairs of the Organization of American States,
held in Santiago, Chile, in 1959.
Until 1970, the Commission operated as an autonomous institution
and its work to promote human rights in the Americas consisted mainly of
reports on the situation of the fundamental rights in the member
countries of the Organization of American States.
The Commission's legal foundation, between the time it was first
established and the time the American Convention on Human Rights entered
into force, was the American Declaration of the Rights and Duties of
Man, approved by a resolution passed at the Bogota Conference in 1948.
The Commission became one of the principal organs of the
Organization of American States when the Protocol of Buenos Aires
amending the OAS Charter was signed in 1967 and entered into force on
February 27, 1970. As of
then, the Commission ceased to be an autonomous institution. In effect, Article 111 of the amended Charter states that:
"There shall be an Inter-American Commission on Human
Rights, whose principal function shall be to promote the observance and
protection of human rights and to serve as a consultative organ of the
Organization in these matters. An
inter-American convention on human rights shall determine the structure,
competence, and procedure of this Commission, as well as those of other
organs responsible for these matters."
In the effort to strengthen the inter-American human rights
system, the American Convention on Human Rights was approved in San
Jose, Costa Rica, in 1969, and was incorporated into our own system of
laws under Law 16 of 1972. The
Convention entered into force in July 1978, once instrument of
ratification no. 11 had been deposited.
This international instrument established two organs charged with
protecting human rights; A. The Inter-American Commission on Human Rights, and B. The
Inter-American Court of Human Rights.
A. The first of the
two, which is to say the Commission, is obliged to ensure that States
comply with the provisions of the Convention. Article 44 of the Convention gives it the authority to
receive complaints alleging human rights violations attributable to
States. Article 44 reads as
follows:
Article 44. Any
person or group of persons, or any nongovernmental entity legally
recognized in one or more member states of the Organization, may lodge
petitions with the Commission containing denunciations or complaints of
violations of this Convention by a State Party.
Thus, the petition is the first step in the international
processing of an individual case filed with the Inter-American
Commission on Human Rights, once the procedures provided for in Article
44 et seq of the American Convention on Human Rights have been
performed. If the
Commission's finding is that the State is not responsible for the acts
with which it is charged, the Commission orders the case filed.
On the other hand, if the Commission believes that the State,
through its agents, is responsible for human rights violations in a
given case, it is to prepare a report and resolution wherein it makes
certain recommendations to the responsible State.
As a rule those recommendations are that the State prosecute the
investigations, enforce the appropriate sanctions in the case of its
agents who violated the victim's or victims' rights by his/her actions
or omissions, and pay pecuniary damages to the victims' next-of-kin.
B. The second organ,
the Inter-American Court of Human Rights, is a jurisdictional body that
hears cases brought by the Inter-American Commission.
In exercise of its authorities, the Court can hand down verdicts
against States of the OAS that have expressly accepted its jurisdiction.
Colombia accepted that jurisdiction for events that occurred as
of June 21, 1985.
II
FACTS
After this brief sketch of the legal background, the Government
would like to inform the Council that the Colombian State was found
responsible for two disappearances and a homicide reported to the
Inter-American Commission on Human Rights.
These reports are, for the present, being kept confidential.
The Commission has postponed their publication to see what
measures the Colombian Government adopts.
In effect, the Commission's finding was that Colombia, because of
the actions of its agents, had violated the American Convention on Human
Rights in the following three cases:
1.
Case No. 10,319, concerning Mr. Isidro Caballero.
2.
Case No. 10,454, concerning Mr. Martín Calderón Jurado
3.
Case No. 10,581, concerning Mr. Alirio Pedraza Becerra
The Commission's recommendations appear in reports Nos. 31/91,
32/91 and 33/91, duly authenticated copies of which are being provided
to the Council.
As the three Reports-Resolution show, the Inter-American
Commission on Human Rights recommended to the Colombian State that it
continue the investigations underway until the sanctions required by law
are enforced. It also
recommended that the individuals wronged by the violations in these
three cases be compensated.
III QUESTIONS
1. Concerning the
compensations recommended by the Inter-American Commission on Human
Rights, are such suggestions binding upon the Colombian State?
2. What legal bases
and mechanisms are there for paying the reparations recommended by the
Inter-American Commission on Human Rights?
The Council considers:
1. Law 16 of 1972
ratified the American Convention on Human Rights of San José, Costa
Rica, signed on November 22, 1969.
That document established the human rights it protected and
organized the Inter-American Commission on Human Rights and the
Inter-American Court of Human Rights as the competent bodies to consider
matters related to the protection of human rights.
2. Articles 34 et seq
of the Convention prescribe the composition and functions of the
Commission. Article 50
ibidem provides that the Commission, once the corresponding proceedings
have been conducted, must approve a report wherein it is to state the
facts and its findings, containing "such proposals and
recommendations as it sees fit...." (Article 50) "If, within a
period of three months from the date of the transmittal of the report of
the Commission to the states concerned, the matter has not either been
settled or submitted by the Commission or by the state concerned to the
Court and its jurisdiction accepted, the Commission may, by the vote of
an absolute majority of its members, set forth its opinion and
conclusions concerning the question submitted for its
consideration" (Article 51). In
Article 51, paragraph 2, the Convention states that "The Commission
shall make pertinent recommendations and shall prescribe a period within
which the State is to take the measures that are incumbent upon it to
remedy the situation examined."
In paragraph 3 of that same article of the Convention, it states
that "When the prescribed period has expired, the Commission shall
decide by the vote of an absolute majority of its members whether the
state has taken adequate measures and whether to publish its
report."
3. Article 52 et seq
of the same Convention concern the composition and authorities of the
Inter-American Court of Human Rights.
Article 61 ibidem provides that only States Parties and the
Commission shall have the right to submit a case to the Court, once the
procedures with the Commission, prescribed under articles 48 to 50
ibidem, have been exhausted.
4. Further, Article
62, paragraph 1, of the Convention stipulates that a State Party may,
upon depositing its instrument of ratification or adherence to the
Convention or at any time thereafter, declare that it recognizes as
binding, ipso facto, and not requiring special agreement, the
jurisdiction of the Court on all matters relating to the interpretation
or application of the Convention. This
declaration, made unilaterally or by way of the Convention, is essential
for the Court to exercise jurisdiction over the matter submitted to it
for consideration.
5. Under Article 63 of
the American Convention on Human Rights, if the Court "finds that
there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the
enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of
the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured
party." Following the
same logic, Article 68, paragraph 2, stipulates that "That part of
a judgment that stipulates compensatory damages may be executed in the
country concerned in accordance with domestic procedure governing the
execution of judgments against the state."
6. After examining the
documents accompanying the request for an advisory opinion, the
conclusion is that the three reports of the Inter-American Commission on
Human Rights found that the Colombian State violated some of those
rights; they recommended that "compensatory damages be paid"
to the victims' next-of-kin and that the investigations be prosecuted
and carried through to completion, until the guilty party is punished;
none of those cases was submitted to the Inter-American Court of Human
Rights for a ruling.
7. Based on Article
51, paragraph 2 of the American Convention on Human Rights, the Council
believes that the Colombian State is, in principle, obliged to comply
with the recommendations of the Commission in the three cases in
question in this request for an advisory opinion "within the
framework of [its] domestic laws and constitutional provisions" as
stipulated under Article 41.b of the American Convention on Human
Rights. Consequently, it is
called upon to take the necessary measures to pursue, expand and
complete, as soon as possible, the criminal investigations instituted to
ascertain the facts related to the death and disappearance of the
individuals referred to in reports No. 33/91 (Case 10,581), 32/91 (Case
10,454) and 31/91 (Case 10,319).
8. Concerning the
compensatory damages that the Commission recommends in those reports,
however, it is the opinion of this Council that such compensatory
damages could not be acknowledged administratively; instead they would
have to be recognized by means of judgments handed down by competent
judicial bodies on suits filed by the aggrieved parties claiming
extra-contractual liability or by means of a settlement reached between
the State and the interested parties in the course of the legal
proceedings. Moreover, it
is the Council's view that if instead of these recommendations from the
Commission, the Inter-American Court of Human Rights had handed down
judgments ordering that compensatory damages be paid under Article 68,
paragraph 2 of the American Convention on Human Rights, those judgments
would be binding in Colombia and could be executed in the country
"in accordance with domestic procedure governing the execution of
judgments against the State."
Given the foregoing, the Council finds that:
1. The recommendations
of the Inter-American Commission on Human Rights are, in principle,
binding for the Colombian State, inasmuch as the latter signed and
ratified, without reservations, the American Convention on Human Rights.
2. The recommendations
made by the Inter-American Commission on Human Rights must be carried
out in accordance with the Constitution and laws of the country.
3. In the case in
point, the Colombian State must conduct, expand, and complete the
criminal investigations into the three cases of human rights violations
in question. But, under
Colombian law, the compensatory damages that the Commission is
recommending could only be ordered in judgments handed down by competent
judicial bodies in actions
brought by the interested parties or in settlements reached between the
State and the interested parties as part of the same legal process.
Let notification be made to the Minister of Foreign Affairs and
the Legal Secretary of the Office of the President of the Republic.
JAIME BETANCUR CUARTAS, Chairman of the Council, JAVIER HENAO
HIDRON, HUMBERTO MORA OSEJO, JAIME PAREDES TAMAYO, ELIZABETH CASTRO R.
Secretary.
The Special Commission that made the on-site visits mentioned in
this report discussed this matter with government and legislative
authorities, who told the Commission that they were willing to correct
any internal shortcomings that might in any way obstruct fulfillment of
the Commission's resolutions.
The Commission conveyed to the representatives of the Colombian
Government its concern over the situation, particularly in view of the
following:
1.
Despite the amount of time that has passed, thus far no
compensatory damages settlement has been reached and the Colombian
Government does not appear to have taken any step to adapt its domestic
laws to the provisions of the American Convention, as required under
Article 2 thereof if it believes that there really is some
incompatibility.
2.
If the Colombian Government disagrees with any of the proposals
or recommendations contained in a given report issued by the Commission
on a case processed in accordance with the American Convention, then the
Convention gives the Government the means to express its disagreement by
referring the case in question, as is its right, to the Inter-American
Court of Human Rights for a decision.
The Government has not done this, but simply has failed to comply
with the Commission's recommendations.
3.
The Colombian Government cannot require the victims' next-of-kin,
who have resorted to an international forum precisely because they were
unable to obtain any satisfaction through their own domestic procedures,
to go now to the administrative-adjudicatory courts to seek compensatory
damages. Moreover, it is a
matter of record that this is a difficult and extremely bureaucratic
procedure, that the evidentiary demands are great and that the entire
proceeding can last anywhere from four to five years.
All this means that it is not readily accessible; in fact,
considering how many victims of human rights violations there are in
Colombia relatively few take their cases to these
administrative-adjudicatory courts, even though the latter are serious
and proper in conducting their proceedings on such cases.
4.
In addition to these considerations, there is also a time factor,
as an action seeking compensatory damages must be filed within two years
of the violation. Since
before accepting a case the Commission requires that reasonable steps be
taken to exhaust the remedies under domestic law and its decisions
generally do not come until after the two-year statute of limitation has
expired, the victims' next-of-kin can hardly be required to turn to the
administrative-adjudicatory courts once the procedure with the
Commission has been completed, since by that time the statute of
limitations for filing the action would have expired and the action
would, therefore, be extemporaneous and inadmissible on that basis.
The obligation to pay compensatory damages when a government has
violated an international obligation is not a debatable principle.
In the Velásquez Rodríguez case, the Inter-American Court of
Human Rights stated the following:
"...the obligation to indemnify is not derived from internal
law, but from violation of the American Convention.
It is the result of an international obligation."
The Court also cites the following jurisprudence of the
International Court of Justice at The Hague:
It is the principle of international law that jurisprudence has
considered "even a general concept of law," that every
violation of an international obligation which results in harm creates a
duty to make adequate reparation. Compensation, on the other hand, is the most usual way of
doing so (Factory at Chorzow, Jurisdiction, Judgment No. 8, 1927,
P.C.I.J., Series A., No. 9, page 21, and Factory at Chorzow, merits,
Judgment No. 13, 1928, P.C.I.J., Series A No. 17, page 29;
Reparation for Injuries Suffered in the Service of the United
Nations, Advisory Opinion, I.C.J. Reports 1949, page 184).
J. ARGUMENTS MADE BY THE
GOVERNMENT'S REPRESENTATIVE IN
DEFENSE OF THE DECREES ISSUED DURING THE STATE OF
EMERGENCY
As mentioned earlier, when the state of internal disturbance was
decreed in November 1992, the Colombian Government issued several
decrees laws, which are discussed under section F of this chapter.
What follows is the report of the Office of the Presidential
Advisor for the Defense, Protection and Promotion of Human Rights,
expressing its observations on this subject:
The decrees issued upon the declaration of internal disturbance
that the Colombian Government ordered on November 8 last in large part
concern administrative matters intended to prevent public monies from
being siphoned off for the guerrilla movement, to maintain control over
the resources that come from the budget (1835) and to establish the
obligations and penalties for government contractors (1875).
One of those decree laws (1811) stipulates the administrative
penalty for regional and local public servants who fail to observe
presidential orders in the area of public law and order (1811).
Other decree laws concern the mechanisms provided and created to
protect officers of the court (1873), to establish a salary system for
and provision the Armed Forces (2094) and to pay compensatory damages
for terrorist acts that disrupt transportation (2006).
INCORA is authorized to order that uncultivated properties in
petroleum and mining areas be set aside.
In the legal field, procedures are established for the attachment
and forfeiture of property used to commit drug- and terrorism-related
crimes (1874); mechanisms are instituted to allow prosecutors to offer
benefits to individuals if they cooperate with the justice system
(1833); a witness and victim protection program is created (1834);
regional judges are given jurisdiction over cases involving the theft of
petroleum (05), and municipal criminal judges are permitted to institute
proceedings in cases that are the jurisdiction of regional judges
(1941).
Through decree 08, gun control was strengthened and authorization
was given to suspend valid safe-conducts.
The most recent decree, 007, requires that citizens identify
their portable telecommunication systems to prevent them from being used
by criminal groups.
Changes were instituted in the system for promoting police
officers. Another change
introduced into the police system that is very relevant to the human
rights issue: so long as it
remains in effect, members of the police can be retired, regardless of
their length of service and without the State having to institute the
disciplinary proceedings currently required to prove misconduct.
None of these decree laws seems to raise questions about the
possibility of human rights violations or violations of the Government's
international commitments in this area.
There have been, however, criticisms of two other decrees.
One of them concerns freedom of the press and freedom of
information. In effect,
Decree 1812 makes it unlawful for the radio or audiovisual media to
transmit interviews with or communiques from guerrillas or drug
traffickers. They may,
however, report those interviews and communiques.
Reporting the information after the fact is in no way restricted.
Journalists are subject to one restriction, which is that they
may not identify witnesses to terrorist, subversive and drug-related
incidents. The prohibitions that this decree establishes are already
routine in many countries. Given
the magnitude of the disruption of public law and order in Colombia,
these measures constitute very slight restrictions of the freedom of
expression recognized in the Constitution and therefore are consistent
with Colombia's international obligations.
The other decree (1810) orders that criminal investigating police
units be established in the public forces, "supervised and
coordinated by and answerable to the Prosecutor General of the
Nation". These units
may only discharge the formalities that the Criminal Investigating
Police perform in cases of terrorism, drug trafficking or subversion
that are the competence of regional judges and only when there is no
other criminal investigating police authority on the scene.
The decree in no way authorizes the military forces to conduct
criminal investigations into civilians or to file indictments against
them in criminal proceedings, contrary to what certain documents
from nongovernmental organizations have claimed.
The Constitution allows the criminal investigative police
functions to be assigned to the military forces, provided this is done
under the supervision and control of the Prosecutor's Office.
Under the Constitution, a state of internal disturbance lasts 90
days. The Government may
extend that period one time only on its own initiative; if it
wishes to extend it a second time, it must have the Senate's prior
consent. Any decrees issued
are examined by the Supreme Court to ensure that they are constitutional
and will be lifted once the state of emergency is over, unless Congress
independently decides to incorporate them into laws enacted according to
normal constitutional procedure.
When one considers the enormity of the challenge that the
guerrilla movement and drug-trafficking pose for the country, its
resources, its ability to act and to destroy the enemy, the decisions
taken in the state of emergency seem in no way excessive.
The provisions of the present Constitution are such that such
states of emergency cannot be allowed to seriously alter the legal
system, as was possible under the earlier constitution.
During states of emergency, the Government cannot try civilians
in courts martial, for example, or alter the structure of the judiciary,
remove judges or restrict the authority and functions of Congress.
Nor can it suspend the fundamental rights and freedoms,
particularly those expressly included in the covenants on civil and
political rights, or the mechanisms for their protection; there are very
strict time limitations and proportionality considerations that the
Constitutional Court and the Congress monitor.
States of emergency usually suggest a drastic restriction of
individual rights; in Colombia, however, those rights have not been
seriously altered by the state of emergency.
The most significant change has been in the Government's capacity
to employ various administrative rules to cope with the challenges with
which existing democratic institutions must now contend.
K. RECENT LEGISLATION
ENACTED PURSUANT TO THE CONSTITUTION
Subsequent to approval of this report, the Colombian Government
reported that there have been legislative developments in the last two
years to implement and regulate the 1991 Constitution.
Three of the five statutes provided for in Article 152 of the
Constitution have been enacted. The new Statutes approved are as follows:
The Political Party Statute
defines the area in which such groups can operate and makes it incumbent
upon them to organize and operate in accordance with their own
respective bylaws, which must be approved by the National Electoral
Congress; the statute authorizes them to choose their representatives
and officials and sets a single date for holding those elections; it
also provides that election campaigns are to be financed by the State,
eliminating the requirements that political parties heretofore had to
satisfy in order to receive any appropriation. The latter were increased to be proportional to the number of
votes obtained. Moreover,
to strengthen party ethics and improve the moral conduct of party
leaders and members, the following have been established:
a) ethics tribunals to monitor the conduct of public servants
who, representing the party, hold positions in government; b) a
supervisor to ensure that the elected officials discharge their duties;
and c) public reports that must be regularly presented to the National
Electoral Council.[15]
The Political Participation Statute
elaborates upon the constitutional principle of participatory
democracy to make the citizen part of the political decision-making
process; it establishes rules to govern popular initiatives for
proposing enactment of new laws and makes it possible for the people to
overturn laws, thereby making the public a partner in the legislative
process. It gives the
public the opportunity to censure their elected officials both by the
ballot and by revoking the term of governors and mayors.
It also creates the possibility of holding referenda, enabling
the President to consult the public on issues of importance that
heretofore only Congress could decide.
The State of Emergency Statute
establishes mechanisms to rationalize the exercise and control of power
by the executive branch during a state of emergency, while authorizing
police measures to restore peace when disrupted, provided the measures
taken are a measured and relevant response to protect the intangible
fundamental rights and freedoms of persons.
It prohibits any restriction of the exercise of those mechanisms
created to protect and defend those rights and freedoms in concrete
cases, such as habeas corpus and tutela.
It also provides that the Government may restrict freedom of
movement and residence and the freedom to circulate information that
could have a direct impact on disturbing the public order, but without
thereby infringing upon freedom of information; it will also have
punitive power to criminalize behaviors, increase or reduce penalties
and in general amend provisions of the penal code and police code.
The Statute also elaborates upon the system of political and
judicial checks that will be exercised during states of emergency.
The political check is in the hands of Congress, which will be
able to amend and/or overturn decisions adopted by the Executive Branch
and to impeach the chief executive for any abuse that may have been
committed when the emergency measures were decreed.
The judicial check is exercised by the Constitutional Court,
which will automatically and immediately examine each and every measure
once the decreed emergency measures take effect.
This Statute still has to be reviewed by the
Constitutional Court to determine whether it is compatible with the
Constitution.
The Statute of the Public Defender's Office governs an institution designed to help the average citizen assert his
individual rights vis-à-vis the Government.
The National Police Reform Law,
approved in the first half of 1993, emphasizes the preventive and civic
role of the Police in civilian society, specifies the most effective
links with civilian society, creates a national citizen participation
system and gives the citizenry a role in protecting human life through
essentially preventive means. Its
bylaws describe police work as a profession requiring an academic
education that emphasizes ethics, values and respect for human rights.
It establishes three types of police:
urban, rural and special police corps.
As a control mechanism, the law calls for a Civilian High
Commissioner who will inspect and oversee the police to ensure
efficiency and morality.
The bill criminalizing the enforced disappearance of persons, passed by the Senate in the first 1992
legislative session and now in this year's second legislative session.
The bill establishes severe penalties for the crime of enforced
disappearance, penalties that become even more severe when certain
aggravating circumstances are present; the bill also provides for
significant advantages that can be offered to the perpetrators of crimes
in exchange for their cooperation in ascertaining the facts.
L. FINAL
OBSERVATIONS
Although the Commission still has its reservations about and
objections to the decrees issued under the state of emergency, it
nevertheless believes that they are still too recent and that their
interpretation and enforcement will have to be watched.
Therefore, the Commission is not yet in a position to either
refute or contradict the sense and scope that the Office of the
Presidential Adviser for Human Rights attributes to them and will remain
alert, watching to see how these decrees are applied and enforced as
events unfold.
|
