CHAPTER IV

THE RIGHT TO A FAIR TRIAL

          The rights to a fair trial, to due process and to judicial guarantees deserve special consideration because of the multiple factors that come into play in their exercise and enforcement.  Transcribed below are the pertinent provisions of the American Convention on Human Rights and of the new 1991 Constitution of the Republic of Colombia that protect and defend these basic rights and establish penalties for their violation:

          A. LEGAL PROVISIONS IN EFFECT IN RESPECT TO THE RIGHT TO A FAIR TRIAL

         B. INTERNATIONAL HUMAN RIGHTS LAW ON THE RIGHT TO A FAIR TRIAL

         The norms that concern the right to a fair trial, as can be seen from the above table, are covered in various articles of the American Convention on Human Rights and the 1991 Constitution of Colombia.

         The right to a fair trial is actively enforced when effective punishment and  a given reparation are sought and obtained.  The right to an inquiry into one's claim when one is the victim of a violation by another, i.e., the right to claim and demand justice, implies that the individual responsible for the violation will be somehow held accountable and that the one whose rights were violated or who suffered some injury will be paid civil damages as compensation.  This right is fundamentally civil in nature and is premised on the principle that anyone who inflicts harm is obliged to pay for it and, conversely, the one who suffers the injury has the right to demand satisfaction of his right.

         The right to a fair trial also implies the right to demand fair treatment when an individual is being investigated or accused of a criminal offense, in which case the first guarantee of a fair trial is the right to be presumed innocent and then to receive a fair trial, with all the guarantees that enable the accused to continue to be held innocent until his criminal guilt has been established through trial.  

         To avoid any confusion as to the jurisdiction of international bodies, it is important to mention the finding of the Inter-American Court of Human Rights in the Velasquez Rodriguez case, dated July 29, 1988, to the effect that "the international protection of human rights should not be confused with criminal justice.  States do not appear before the Court as defendants in a criminal action.  The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible." (paragraph 134).

         To this must be added the Court's finding in paragraph 176 to the effect that the State "is obligated to investigate every situation involving a violation of the rights protected by the Convention.  If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.  The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized in the Convention."

         C. ORGANIZATION AND OPERATION OF THE JUSTICE SYSTEM

         The report prepared by the Inter-American Commission on Human Rights in 1980 contained a careful study of the organization and operation of the justice system in Colombia.  Since then, the text of Colombia's Constitution has changed, as have its code of criminal procedure, its penal code, its military justice system and others.  At present, the justice system in Colombia is divided among the following jurisdictions:  the regular courts (Supreme Court 234 et seq. NC, District Courts, National Courts (Public Order), judges and prosecutors); administrative jurisdiction (Council of State 236 et seq, NC, and administrative tribunals); constitutional jurisdiction (Constitutional Court 239 et seq, NC); special jurisdictions (Military 221 NC, indigenous 246 NC, justices of the peace 247 NC); disciplinary jurisdiction (Superior Council of the Judiciary, 254 et seq NC).

         The description, organization and functions of all these organs of the justice system are discussed and explained in Chapter III, section d) of this report, so that no further discussion is required in this chapter.

         D.    THE OFFICE OF THE ATTORNEY GENERAL AND THE PUBLIC DEFENDER'S OFFICE

         While Title VIII of the Constitution concerns the Judicial Branch, Title X, titled Organs of Control --which includes fiscal control by the Office of the Comptroller General of the Republic-- also includes articles on the functions of the Attorney General of the Nation, described in Chapter 2.  The Attorney General heads the Public Prosecutor's Office and is elected by the Senate to a four-year term, from a slate of candidates put together by the President of the Republic, the Supreme Court and the Council of State.  The chief functions that the Constitution assigns to the Attorney General of the Nation are as follows:

             To see that the Constitution, laws, court rulings and government decrees are observed; to protect human rights and ensure their observance, with the help of the public defender; to defend the interests of society; to defend collective interests, especially the environment; to see that government functions are performed diligently and efficiently; to exercise oversight of the official conduct of those in public office, including those elected by the public; to exercise disciplinary authority; to prosecute the necessary investigations and impose the sanctions required by law; to intervene in trials and with judicial or administrative authorities, whenever necessary to defend legal order, the public domain, or fundamental rights and guarantees; to submit annual performance reports to Congress; to demand from public officials and private citizens such information as deemed necessary.

         The legal system for the protection of human rights in Colombia includes an Office of the Attorney Delegate for the Defense of Human Rights, which is part of the Public Prosecutor's Office; its investigatory function is intended to defend those rights and guarantees.  The Attorney Delegate monitors for the observance of human rights, investigates reports of human rights violations and imposes disciplinary sanctions.  The Office of the Attorney Delegate for the Defense of Human Rights has the following functions and authorities:

         a)  to mediate and help find a solution to conflicts that arise as a result of violation of Law 74 of 1968 (which approved the International Covenant of Economic, Social and Cultural Rights and the International Covenant of Civil and Political Rights) and other international agreements on this subject that the Congress of the Republic has approved, among them:  the Convention against torture and other cruel and inhuman punishment, adopted by the United Nations on December 10, 1984 and approved through Law 70 of 1986; the American Convention on Human Rights, ratified by Law 16 of 1972, and the Geneva Conventions, approved by Law 5 of 1960;

         b)  disciplinary action, one hearing only, for participating in acts that constitute genocide, torture and enforced disappearance and related crimes committed by members of the Ministry of National Defense, the Military Forces, National Police, directors or personnel of security agencies attached to or affiliated with those institutions and other staff and employees in the performance of their functions;

         c)  to process with the competent authorities the complaints made by national or international organizations concerning human rights violations;

         d)  to promote and disseminate the defense of human rights and to respond to the reports that national or international organizations request concerning violations of human rights and fundamental freedoms;

         e)  to process claims demanding, by way of Colombian diplomatic authorities and on behalf of Colombian nationals, that foreign governments honor their obligations under international law, especially claims on behalf of individuals on trial;

         f)  to see that human rights are observed by the prisons, courts, police, and psychiatric institutions, so that those being held in confinement are treated with proper respect, are not subjected to cruel, degrading and inhuman treatment, and receive timely legal, medical and hospital care.  If a violation is discovered, the attorney delegate is to file the appropriate actions.

         There is an administrative disciplinary procedure that is not jurisdictional and that is conducted directly via the Office of the Attorney General of the Nation, thanks to which certain crimes and human rights violations have been clarified and some punishment, however minimal, has been imposed against some of the authors of such violations.  The procedure is as follows:

         1. Any individual may file a complaint against a public employer or public enterprise.  This complaint procedure is handled through one of the following attorney-delegate offices: for administrative oversight; for judicial oversight; for police oversight; for the military forces; for human rights (in cases of enforced disappearances, torture, death and genocide, but not for cases of summary execution).  Since 1990, complaints can also be filed with the Office of Special Investigations, which prosecutes cases of unlawful enrichment, serious human rights violations and such others as the Attorney General may assign to it.  The Office of Special Investigations, however, does not impose the disciplinary punishment; instead, it simply conducts the preliminary investigation.

         2. Once the complaint has been filed, there are two alternatives:  a) based on the preliminary investigation, disciplinary proceedings are instituted, or b) the case is filed.

         3. If disciplinary administrative proceedings are instituted, the first step is to present the list of charges against the public official in question.

         4. Next, the suspect presents countercharges rebutting the charges.

         5. Evidence is introduced (a kind of probatory phase).

         6. Decision:  a) not to impose punishment, or b) to impose disciplinary punishment in the form of fines, suspensions of up to sixty days, or dismissal.  The decision must be presented in the form of a resolution explaining the grounds for the decision.

         7. The decision can be challenged, either in the form of a petition for reinstatement or as an appeal, which would trigger a review of the decision and then a new resolution either confirming the original decision or changing it.

         It is important to note that this is not a confidential procedure.  Quite the contrary, under a 1985 law, proceedings must be public.  However, the various attorneys delegate, especially the Office of Special Investigations, have been keeping these proceedings confidential, even though copies of the proceedings may be requested whenever necessary.

         A recent report released by the Office of the Attorney General of the Nation in June 1993, almost two years after its first report, makes a critical evaluation, as did the first report, of the conduct of State agents where human rights violations are concerned.  Its finding is that the number of violations by state agents has declined in the last year, while human rights violations by guerrilla groups has continued to increase.  The report states that the incidence of human rights violations in which State agents are involved points up the fact that State violence is at least in part a reflection of the violence rampant in society; that social violence is one of the main causes of the excesses committed by State agents.  He reports that the public institutions that have committed human rights violations during the period covered in the second report were as follows:  the National Police, the Military Forces, the Administrative Security Department (DAS), and the Technical Corps of the Criminal Investigations Police.  The Office of the Attorney General also points out that violations by the Technical Corps of the Criminal Investigations Police are below previous years since it is now under the Office of the Attorney General of the Nation.  The report also states that the Prosecutor's Office handed down decisions in 55 cases in which military personnel were involved; of these, 56% were for acquittal, and 44% for conviction.  The Prosecutor's Office has also issued 1,000 indictments against the National Police, which is the equivalent of 73% of all of the indictments against the institution during 1992; its members have been found guilty in 60% of the decisions handed down by the Attorney General of the Nation.

         The Attorney General's report also mentions some of the reasons why members of the military forces commit serious human rights violations:  1) a state of mental confusion sets in, called the error theory, because agents attached to "State security and defense agencies are trained to pursue a collective enemy"  and tend to assume that some sort of "direct association exists, for example, between unions or peasant interest groups and subversive elements; when counter-guerrilla activities are undertaken, these passive subjects are not identified as independent victims, but rather as part of the enemy", with the result that the State agents "violate the human rights of independent passive subjects because they mistakenly identify them as either enemies or allies of the enemies"; 2) they regard them as ideological enemies, which prompted the Office of the Attorney General to recommend that "there must, under no circumstances, be any ideological enemies; instead only military enemies.  The only enemy is the one who uses arms to challenge the State.  Tacit or explicit sympathies do not make any individual or group a military enemy"; and 3) military personnel, by virtue of being trained for warfare, have a tendency to violate the right to life and the right to personal integrity more than the right to freedom; they tend not to use intimidating or dissuasive tactics but rather to opt to eliminate whomever they perceive as enemy."  Moreover, the report finds that in most cases the authors of the violations are subordinates or middle-level officers who are subject to very little control, operating independently and not as a link in the chain of command with a sense of obedience to higher authority; when they take decisions on their own, human rights violations are the result.[1]

         The Public Defender

         The provisions that concern the public defender appear in Title X, Articles 281 et seq of the Constitution.  He/she is assigned the following functions:  to guide and instruct inhabitants of the national territory and Colombian citizens living abroad, in the exercise and defense of their rights vis-a-vis the competent authorities or private entities; to disseminate human rights and to recommend policies for teaching human rights; to invoke the right of habeas corpus and file petitions for protection, without prejudice to the laws that assist the interested parties; to organize and direct public defense in accordance with the law; to file actions in matters related to its sphere of competence; to present bills on matters within its competence; to submit reports to the Congress on the performance of its functions, and the other functions that the law determines.

         The Office of the Public Defender is part of the Public Prosecutor's Office; it is ultimately under the Attorney General of the Nation and is essentially responsible for seeing to it that human rights are promoted, exercised and disseminated.  The Public Defender's Office enjoys administrative and budgetary autonomy.

         Apart from the functions stipulated in the Constitution, the Public Defender's Office has the following:  working with the Attorney General of the Nation to devise and adopt the policies for promoting and disseminating human rights in the country; to direct and coordinate the work of the various units that together constitute the Public Defender's Office; to make recommendations and observations to the authorities and private parties in the event of a threat to or violation of human rights and to see that they are promoted and exercised (the defender shall make those recommendations public and report to the Congress on the response received); to present an annual report to the Congress on its activities, which shall include an account of the type and number of the complaints received, the measures taken to correct them, specific mention of derelict officials and the administrative and legislative recommendations it deems necessary;  to assist the Attorney General in preparing reports on the human rights situation in the country; to bring suit, challenge or defend before the Constitutional Court and at the request of any person and when appropriate, laws where constitutional rights are at stake; to design the mechanisms needed to establish permanent communications and share information with national and international governmental and nongovernmental organizations that protect and defend human rights and to conclude agreements with national and international educational and research establishments to disseminate and promote human rights.

         Regulated by Law 24 of 1992, the Public Defender's Office is organized into four areas:  dissemination, processing of complaints, filing of legal remedies and public defense.  Attorneys delegates are being appointed for other areas such as the rights of the elderly and regional defenders.

         E. THE PETITION FOR TUTELA

         The petition for tutela to which Article 86 of the Constitution refers is a legal procedure that provides citizens a means to take rapid action in the event of injustices or abuses committed against rights upheld in the Constitution.  The petition for tutela has the following characteristics:  it can be filed either by the aggrieved party or by an intermediary at the aggrieved party's request.  The public defender may participate by cooperating with the aggrieved party.  The action can be filed at any time, including weekends, and with any judge or court that has jurisdiction in the place where the events in question occurred.  The aggrieved party need only describe the facts upon which the petition is based and include his or her name and address. As there are no legal formalities, the petition can be filed either verbally or in writing; if additional information is needed, the judge is to request it of the petitioner within three days following the filing of the action.  The respondent also has three days in which to present his/her defense before the judge, who must hand down a ruling within ten days.  Any appeal must be filed within the next three days; the decision on the appeal must be handed down within 20 days.  Decisions on such petitions are reviewed by the Constitutional Court at its discretion.[2]

         F. THE MAJOR PROBLEMS WITH THE JUSTICE SYSTEM

         There are any number of problems that affect the manner in which the justice system performs the functions that the Constitution and the laws assign to it.  Impunity, the military courts, violence against judges and attorneys, vigilantism:  these are but a few of those problems.

         a. Impunity

         One of the principal manifestations of the critical human rights situation in Colombia is the weakness of its judicial system, as evidenced by the high percentage of crime that goes unpunished.  According to the Ministry of Justice, approximately 20% of crimes committed in Colombia are investigated by the authorities.  Of that 20%, barely 4% end in conviction.[3]  That being the case, the Colombians do not have sufficient confidence in the ability of their judicial system to find a peaceful solution to their daily problems.

         The Government generally blames practical considerations such as the lack of budgeted funds, inadequate training and insufficient technical materials for investigators, delays in trials, a backlog of cases, the low salaries paid to judges, corruption and violence targeted at judges and vigilantism by citizens who prefer not to seek justice via the courts and do not provide authorities with the cooperation they need to conduct their investigations.  Based on this analysis, the government has taken a number of steps such as the drastic increase in the salaries of judges and an increase in the judiciary's budget, technical and budgetary support for the Office of the Prosecutor General, systematization and administrative improvement of the court system and legislative measures to reduce the backlog of cases.  The new Constitution also introduced some reforms.  For example, it has given the judicial branch of government total administrative autonomy and complete control over its budget and has changed the investigative system to create the Office of the Prosecutor General.

         But there other factors, too, that adversely affect the justice system, such as using the state of emergency legislation to amend the judicial system and a system that allows the identity of the judges and the witnesses to be kept secret when the cases are for crimes of terrorism and drug-trafficking.

         Other considerations such as the violence against judges and attorneys, the presence of a state-of-siege justice system, vigilantism, and certain features of the justice paradigm in Colombia, such as the element of secrecy in many situations: these are all factors that have to be taken into account if the problem of impunity is to be dealt with.  Some of these factors are discussed in the following sections.

         b. The state of siege legislation

         One of the factors that altered the judiciary's ability to administer justice under the previous constitution was that during states of emergency, proceedings in cases involving drug-trafficking, terrorism and political crimes were transferred to the special jurisdiction of the public order courts.  With enactment of the new Constitution, and as a result of the work of the Special Legislative Committee between July 15 and November 30, 1991, the Statute for the Defense of Democracy (Law 180, of 1988) and the Statute for the Defense of Justice (1991) became permanent law in Colombia.  The Statute for the Defense of Democracy classified certain behaviors as terrorist crimes, and made the penalties much harsher.  The Statute of the Defense of Justice merged and restructured the public order and specialized courts that heard cases involving drug-trafficking and terrorism crimes separately.

         The Legislative Committee's decision to retain the penalties in crimes established under the state of siege decree in 1988 and its decision to maintain separate judges to hear cases wherein the crimes alleged are terrorism and drug-trafficking is contrary to the democratic principles of the Constitution, especially Title II, concerning the fundamental rights.  If one analyzes the Constitution rationally, there is no way to infer from it that it allows the states-of-emergency system to be institutionalized indefinitely.  Article 214, subparagraph 2 of the Constitution makes legislation that suspends fundamental rights and freedoms unlawful.  Nevertheless, some parts of the state-of-emergency legislation deny important judicial guarantees.  An example was the declaration of internal disturbance decreed on July 9, 1992.  Invoking the state of internal disturbance, Decree 1156 of 1992 was issued to the effect that anyone accused of drug-trafficking or terrorism was permitted to use habeas corpus only in the circumstances stipulated in Chapter III.

             Equally disturbing is the fact that Law 15 of 1992, enacted by Congress to transform Decree 1156 of 1992 into permanent law, provides that habeas corpus can only be used if an individual's legal and constitutional guarantees are violated when he is taken into custody or if he is held too long in custody.  And so, the Government has again curtailed the right of habeas corpus, as it did back in 1988 and 1989 by means of decrees that, insofar as habeas corpus was concerned, had become unconstitutional once the 1991 Constitution took effect.

         The American Convention on Human Rights prohibits any infringement or restriction of basic guarantees, one of which is habeas corpus.  It would be best if the Colombian Government would henceforth refrain from using states of emergency to modify or limit guarantees, because such measures affect the independence and the autonomy of the justice system.[4]

         By the same token, if the Constitution limits what can be legislated in states of emergency, all the more reason to conclude that what can be legislated in normal times is also limited, given the fact that such legislation is permanent.  The new Code of Criminal Procedure adds to the permanent body of law certain practices that, in the state of emergency legislation, were problematic for the human rights situation.

         Though not an exhaustive analysis or examination of the problem, it might be well to mention some of the measures that could hardly be said to respect citizens' guarantees:  the new Colombian penal legislation that took effect in July 1992 transformed the special public order courts into permanent courts, under the name of "regional jurisdiction and national tribunal."  This is one way of keeping the identity of judges and witnesses and the evidence secret, and the lab reports and tests confidential.  This was all done by Decree 2271 of 1991, which transformed decrees 2790 of November 20, 1990 and 0099 of January 14, 1991, originally issued as state of siege decrees, into permanent law.

         Since it is difficult to say which part of these decrees the Constitutional Court declared to be unconstitutional and therefore null and which part is still in effect, the following are some of the provisions of Legislative Decree 0099 of 1991 which amended and made additions to the so-called Statute for the Defense of Justice contained in Legislative Decree 2790 of November 20, 1990, put into effect by virtue of Decree 2271 of 1991 and not challenged by the Constitutional Court.  Those provisions of Legislative Decree 0091 concern secret evidence, secret witnesses and secret expert reports:

         Article 20.  The evidence will be argued during the trial phase.  The Criminal Investigations Police will submit the evidence or add to the case file whatever evidence is made available to it and that it considers pertinent, and need not have an order to that effect; the only party that can be present is the agent from the corresponding public prosecutor's office ... [not the defense attorney].

         Article 22.  When the safety of the witnesses so warrants, authorization shall be given for witnesses to place their fingerprint on the deposition rather than their signatures; but in such cases, an agent from the public prosecutor's office must be present, who shall certify that the fingerprint is that of the person making the deposition.  Any reference to the name and particulars of the individual making the deposition shall be omitted in the text, which shall be part of the corresponding case file, along with a record indicating that the identity of the deponent has been removed and where it has been sent.

         To weigh the testimonial evidence, the public order judge may at any time request the separate document to which the second part of this article refers and prohibit the other parties or participants to the proceedings from access to it.  The confidentiality of that document will be lifted should it be discovered or established that the witness perjured himself or gave false testimony for fraudulent purposes.

         The same procedure can be followed in respect of expert reports or any other evidence where the identity of the individual who had a part in it should be kept confidential.

         Article 27.  As of the commission of the acts in question, the official from the office of the public prosecutor's must compile evidence to establish the nature and degree of injury caused by the infraction and may submit the evidence to any judge in the nation, with the exception of public order judges.  The only costs shall be those incurred to produce the evidence and will be transferred to the case file during the proceedings.  Witnesses and expert witnesses who play some role in the proceedings described above shall, if they request it, be entitled to the same confidentiality and safety measures provided for in Article 22 of this decree.

         Article 50.  When a judge believes that his/her identity or the identity of the participants in the proceedings should be kept confidential to guarantee their safety, he/she shall order that any measure or mechanism required to ensure their confidentiality and safety be taken when the evidence is submitted and that the cross-examination, requests for clarification of rulings, or any other similar petition be made and processed in writing.

         No change was made in the legal system by which the previous special courts operated, so that at present the regional judges and the national tribunal have exclusive jurisdiction over crimes associated with drug trafficking and terrorism, rebellion, rioting and illegal possession of weapons. By law, these crimes are to be tried in the secret proceedings discussed earlier.  The Commission is disturbed that this is still part of Colombian law.[5]

         As for secret witnesses, the Government of Colombia responded to the criticism in the report as follows:

         Decree 709 of 1993, which establishes the possibility of handing down a conviction based on testimony given by witnesses whose identity is kept confidential, has been ruled unconstitutional by the Court, so that secret testimony can only be used to order precautionary measures.[6]

         The Commission is pleased by the important change that has been made to conform Colombian laws to the provisions of the American Convention on Human Rights.  The Commission has also duly noted the recent change in Colombian law with enactment of the State of Emergency Statute, which will reportedly allow full, unrestricted exercise of the remedy of habeas corpus, a basic guarantee of judicial protection embodied in the Constitution of Colombia and in Article 25 of the American Convention.  It is gratified to have helped restore this fundamental provision.

         c. Military jurisdiction

         The Colombian Constitution made no changes as regards the military jurisdiction recognized in Article 221 of the Constitution.  It was extended to include members of the national police and is used in cases where the crime committed by an active member of the Armed Forces is service-related.  The Commission believes that what constitutes a service-related criminal offense must be very clearly defined so that human rights violations are not classified as service-related.  Such a regulation, which is highly advisable, must require that for an act to be regarded as service-related, it must have been committed as part of an operation and on orders from a legitimate military authority.  The Colombian Constitutional Court has ruled (Ospina Case, June 8, 1992) that the argument that the individual in question was "following orders" cannot be used as an excuse by a member of the military who receives an order to commit acts that are obvious human rights violations, such as torture, enforced disappearance and extrajudicial execution.  It must be made very clear that such acts are utterly alien to any service duty.  Rarely, however, do the military criminal courts sanction members of the armed forces for these violations.  In fact, military criminal justice prevents ordinary judges from trying military and police, even in cases of crimes against humanity.

         When the victims of crimes committed by members of the armed forces are civilians or when those crimes result in some damage or injury to private parties, the law must clearly establish that the aggrieved parties may be civilian parties to the proceedings.  Under the present interpretation of the law, the civilian party may not be present in the proceedings, and neither relatives nor the victim may participate in the proceedings or demand swift and full justice.

         The system for weighing evidence is particularly unbalanced.  On occasion, military courts dismiss evidence for the prosecution because it has been supplied by the victims' relatives and is not considered credible for that reason; on the other hand, defense evidence provided by the defendants themselves is admissible.

         The appropriate administrative sanctions are frequently not applied, even in obvious cases of human rights violations committed by officers.  Although on occasion these penalties have been enforced either by law enforcement authorities or by the Office of the Attorney General, which has the authority to do this, there are many cases in which judicial impunity is compounded by the absence of any administrative sanction.  Public officials who violate human rights must be removed from their posts using the procedures and administrative authority that the law determines.

         The Office of the President of the Republic, as the highest government authority, can remove officials whose conduct, upon investigation, is found to have violated basic principles of human rights.  This would undo the State system that allows agents of this type to go unpunished.

         The Special Rapporteur on Extrajudicial Executions of the United Nations Commission on Human Rights, who visited Colombia in October 1989, recommended in a January 1990 report that all members of the Armed Forces and National Police who are either part of or support paramilitary groups, hired assassins or drug-traffickers be separated from service; it was also recommended that the constitutional authorities conferred upon the President to appoint and remove agents of the Executive Branch be exercised in order to sever those members of the Armed Forces involved in these groups.  While the Government has already taken some steps in this direction, as in the case of Col. Luis Bohórquez Montoya and other officers who have been dismissed because of their obvious relations with paramilitary groups, a more energetic effort must be made to dismiss these armed forces and police officers.

         Decree 2094 of 1992, issued in exercise of the state-of-emergency powers, allows the police authorities to retire agents without having to resort to disciplinary proceedings to prove that said agents engaged in irregular activities.  There must be broader enforcement of this decree.  At the same time the Government should continue to invite and act upon all dismissal and sanction requests that the Office of the Attorney General submits as a result of its disciplinary inquiries.

         Another way to deal with the impunity created by the military courts would be to act upon the important recommendations made by the Public Defender's Office in a recent report on human rights violations against members of the Unión Patriótica and the reassimilated guerrilla group once known as Ejército Popular de Liberación and today known as Esperanza, Paz y Libertad.  The pertinent parts of said report read as follows:

         The Military Criminal Courts are constantly asserting jurisdiction over cases if the regular courts' investigations point to members of the military as the suspects.  The military courts assert jurisdiction without first establishing whether the requirements for military jurisdiction are all present.  Therefore, it is important that the office of the Prosecutor General of the Nation settle conflicts of competence when it is unclear whether the requirements of Article 221 of the Constitution are present.

         The possibility of amending the Military Code of Criminal Justice must be examined, in order to allow civilians to participate in proceedings if their presence would further prosecution of the case.  This would apply in crimes other than strictly military crimes; in other words, crimes where there is a specific and identifiable passive subject, as happens in the case of violations of fundamental rights.

         It is also recommended that consideration be given to creating a Military Criminal Justice system, charged with administering military justice exclusively, and independent of the Armed Forces structure per se.  The Constitution provides for military jurisdiction, so there must be a specialized branch that conducts proceedings against members of the public forces.

         The Office of the Attorney General of the Nation should strengthen the Public Prosecutor's Office's participation in trials being heard by military criminal judges.[7]

         In this section devoted to the military court and to the problems created by allowing the military courts to try members of the military accused of violating human rights, some mention must be made of the serious objections that the Attorney General made in his Second Report on Human Rights, June 1993, to the way in which State security and defense agencies obstruct the investigations conducted by the Office of the Attorney General, because of the "deep-seated and sometimes misplaced esprit de corps among members of the military; at times an investigator finds it impossible to compile reliable information quickly because the accused's comrades-at-arms conceal information, conspire among themselves or simply remain silent."  Therefore, in the prosecutor's investigations, "members of the military forces end up with fewer charges against them than they should have; the investigation is made so difficult that it is equally difficult to assign any blame."

         Despite the power of the Office of the Attorney General, it nonetheless has difficulties investigating military personnel.  This fact itself reveals just how difficult it must be for the modest military judge who is assigned the task of investigating a high-ranking military officer or noncommissioned officer from his own military unit.  He has to contend with cover-ups, complicity or plain silence on the part of the accused's comrades-at-arms and, to use the words of the Attorney General, a deep-seated and sometimes misplaced esprit de corps among members of the military that makes it virtually impossible for the investigator to compile reliable information swiftly.  These elements are compounded by the fact that the judge himself is a military man and not a judge by profession; he is subject to pressure from his own comrades, who expect him to show solidarity for the institution and its members.  A lack of esprit de corps or failure to identify with his military comrades will be a blot on his service record.  Then, of course, there is also the problem of obedience to his superior officers in the military's vertical chain of discipline and conduct; these are all problems that Colombian military justice has to contend with and that undoubtedly serve to explain why, despite the evidence, military criminal courts acquit the majority of military accused of violating human rights.

         Another example of the lack of professional ethics on the part of some military judges is case 10456, which is that of IRMA VERA PEÑA, a peasant woman.  This case is discussed at greater length in Chapter VII, concerning the Right to Life.  The Commission established that Col. Plinio Rodríguez Villamil had served as military Criminal Examining Judge for the 25th Military Court.  But this was the same person who, as the Commander of "García Rovira" Infantry Battalion No. 13, had directed the operation in which his subordinates, on his orders, had killed Irma Vera Peña; he then had the audacity to serve as the judge in the case, acquitting his subordinates and himself of any responsibility.[8]

         Another irregularity in its justice system that the Commission pointed out for the Colombian Government is that in cases where the State is accused of violating human rights, it is the military criminal court that determines legal truth, rather than the regular criminal court.  When a regular court takes cognizance of a criminal case in which a member of the military is accused of committing a crime while in service, which is precisely the typical human rights violation that so often compromises the State's international responsibility in this regard, then that regular court must refrain from continuing to prosecute the case and refer it to the military courts to investigate and decide.   While the administration of justice in Colombia is poorly served by such a system, so are the right to a fair trial provided for in the American Convention on Human Rights and the inter-American system itself, which requires that States parties like Colombia act swiftly to adapt their due process laws to the American Convention.

         Cited below is the provision of the American Convention on Human Rights, of which Colombia is a party, that establishes the obligation of the contracting States to adopt their legislation to the provisions of the Convention:

         Article 2.  Domestic Legal Effects

             Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

         d. The existence of vigilante groups

         The weaknesses in Colombia's justice system and the fact that the violence that occurs in that country repeatedly goes unpunished, has generated a kind of vigilante justice that operates directly when the victim of the injustice takes justice into his own hands, or indirectly when the victim uses third parties to that end.

         Contract murder is the system whereby any individual in Colombia hires a paid assassin.  The hired gunman offers the prospect of swift justice to a father whose daughter has been raped and to the deceived lender.  For him there is no law.  It is easier and cheaper to hire the services of a gunman than to hire the services of an attorney.  These hired assassins can be found at street corners or in certain neighborhoods of the major cities. No appointment or professional consultation fees are needed.  Once the contract is made, generally the hired gunman performs it punctually and efficiently.  Anyone who tries to avoid payment pays with his life.  Hired killing has become a way of life and the hired killers are generally young men.  The practice is spreading among children and youth in poor neighborhoods; once introduced to a life of crime, they form gangs and get into the business of distributing drugs in Colombia's major cities like Medellin and Cali.  They then start to provide protection to those who sell drugs.  The first time they carry out a paid assassination, they charge not only money but also the right to keep the weapon that they were given to carry out the killing.  As of that time, and no matter how young he is, the hired gunman becomes a professional and acquires quite prominent status in his community and is accorded the "respect" paid a hired gunman.

         Generally, these hired assassins work for organized crime that engages in drug trafficking and also handle private contracts to execute individuals they were hired to kill.  As a rule, almost all hired gunmen end up being assassinated by other hired gunmen, to eliminate the possibility that they might testify against the individual who hired them.  At times the chain of assassinations may involve three or four young gunmen, in order to eliminate any trace of the individual who originally solicited or hired the services of the gunmen to eliminate someone.

         The self-defense and paramilitary groups.  As indicated when discussing the subject of violence, self-defense groups were developed for protection against the guerrilla movements' constant harassment of and threats to businessmen, their businesses, banks, ranches and the relatives of the wealthy, and later became paramilitary groups.  It was another form of defense and, in some cases, personal revenge that some private groups used and unfortunately still use, often with the acquiescence or complicity of the armed forces, to track down and punish those who have somehow harmed their interests or endangered their life or the lives of their loved ones.  The civilian self-defense and paramilitary groups are one of the most terrible instruments of clandestine and vigilante justice that exists in Colombia.  These groups are gradually being taken over by drug traffickers.  Thus, they are not only identified with the vigilante justice practiced by the large hacienda owners, businessmen and entrepreneurs who employ this type of private protection, but are also closely associated with the bloodiest crimes committed against prominent persons in Colombian politics.  These paramilitary groups have not only practiced vigilante justice by eliminating one or several persons at the same time on orders from the chief or boss for whom they work, but have also been used in the wars between organized criminal groups in which the so-called drug cartels settle their differences.  These groups have also engaged in the selective assassination of political leaders and union and grassroots leaders.

         The social cleansing groups:  For several years now, rightist groups have been operating in Colombia, basically serving the interests of the chief Colombian entrepreneurs.  On orders from the latter or on their own initiative, and often with the complicity of members of the armed forces, these groups carry out what has come to be called "social cleansing" killings.  This involves the murder of prostitutes, beggars, common criminals, drug addicts and other individuals considered to be on the fringes of society.

         Popular militia:  In some of Colombia's cities, especially in the poorer neighborhoods of Medellín and Barrancabermeja, the police presence either markedly decreased or disappeared altogether.  The public had lost confidence in the police because of the latter's ineptitude, corruption and the criminal activities in which members of the police engaged.  For their part, the police were themselves being intimidated;  indeed, some 500 police officers were killed in the working class neighborhoods of these cities in 1991.  As the police presence disappeared, in several neighborhoods the power vacuum was filled by so-called "popular militia", composed of former guerrillas or hired gunmen.  Their modus operandi is to kill common criminals, thieves, young drug addicts as a last resort, after one or two advance warnings.  In many places the apparent calm and sense of security that these groups, which actively adopted the social cleansing strategy, brought to these neighborhoods won them the support of the majority of those who lived there.

         The complex process that consolidated these groups is disturbing to the Commission, since it indicates a serious breakdown in the State's ability to maintain law and order and preserve its monopoly on the use of force.  The Commission is troubled by the fact that these groups have instituted what amounts to a death penalty and that the community is sympathetic to the physical elimination of criminals.  These signs show the impact of the arguments once used to rationalize the so-called "social cleansing" by police agents or other elements in society.        

         e. Violence against judges and lawyers

         Recently, a study was done of the violence targeted at judges and lawyers in Colombia during the period from 1979 -1991,[9] which coincides with the period to which this report refers.  According to that report, during that period an average of 25 judges and attorneys have been either assassinated or assaulted each year because of their professional practice.  Of the 515 cases analyzed, 144 occurred in Bogota.  The figures are alarmingly high in the departments of Antioquia, with 110 cases, Valle del Cauca with 78, Santander with 26, Meta with 20 and Arauca with 17.  The members of the judiciary hardest hit have been the criminal examining magistrates (40 cases) and the magistrates of the superior courts (31).

         Contrary to popular belief, drug trafficking is not the only or even the principal cause of these crimes.  It is blamed for 58 cases out of a total of 240 for which there is a known author or motive; 80 of the remaining cases are attributed to paramilitary groups, 48 to state agents, 32 to the guerrilla movement and 22 to other factors.

         Of these, 278 were cases of homicide (13 magistrates and 18 deputy attorneys died in the taking and retaking of the Palace of Justice on November 6 and 7, 1985), 51 were assaults and 124 were death threats.  Fear is, without a doubt, one of the principal problems besetting the people of Colombia, but this is particularly true of those who are charged with administering justice.  Fear of falling victim to some reprisal has gripped judges, regardless of their rank in the judiciary, attorneys who defend their clients, the parties involved in legal disputes, criminal investigations police who collaborate in investigating criminal prosecutions and witnesses who are keys in determining the authorship of the facts under investigation and whose testimony can shed light on the facts and convict the guilty parties.

         The Special Preparatory Commission of the IACHR was told by the National Association of Judiciary Officials and Employees (ASONAL) that no judge is without fear, given the many cases of violent assassinations of judges and magistrates in retaliation for their judicial investigations.   The threat to those who participated in legal proceedings was so serious that in 1986 the attorney general at the time, Mr. Carlos Jiménez Gomez, stated the following:  "Prosecution appears to be on the decline in Colombia.  The witness who saw something, never saw anything; the witness who heard something, never heard anything.  He knows that there will come a time when he has to die for the truth."[10]

         One case brought to the Commission's attention is that of Father Alvaro Ulcué Chocué, murdered by two individuals on a motorcycle who were said to be members of the F2 secret police.  On November 10, 1984, they killed the priest, whose two cousins and sister had also been killed earlier.  The case acquired notoriety when the eyewitness identified the two men on the motorcycle who killed the priest and narrated in detail how the events transpired, but was later forced to make a public retraction.  Later still, when the danger had passed the same witness took back the retraction and confirmed his original statement, adding that he had been forced to lie and to retract his original version because he was being threatened.

         One of the events that undoubtedly affected Colombian judges was the attitude taken by the State powers when the Palace of Justice was seized in November 1985.  Something that a number of the members of ASONAL told the IACHR's Special Mission personally was that at the time judges felt that neither the country nor the public authorities considered their lives and personal safety to be worth special protection.  In effect, it is a well known fact that several times the Colombian Government has negotiated with guerrilla groups to save the lives of individuals being held hostage after having been kidnapped by those groups.  The Inter-American Commission was reminded that when some of the foreigners in the diplomatic corps in Colombia were taken hostage, the Commission itself had been requested to participate and to take some action to help secure the release and save the lives of the foreign diplomats being held captive by the M-19 in the Embassy of the Dominican Republic.

         In the incident at the Palace of Justice, which again was the work of an M-19 commando, the Colombian Government, its armed forces and then President Mr. Belisario Betancur disregarded the pleas from the then President of the Supreme Court and almost all its members to negotiate and enter into dialogue with the captors, in order to avoid a massacre.  This obviously was not done, with the result that the army launched an attack to retake the Palace of Justice by force.  It seemed as if the lives of the magistrates taken hostage either did not matter or were not taken into consideration.  The result is what has come to be called the holocaust at the Palace of Justice.  The following magistrates and the court personnel perished:

             Magistrates of the Supreme Court:  1.  Dr. Alfonso Reyes Echandía; 2. Dr. Manuel Gaona Cruz; 3. Dr. Luis Horacio Montoya Gil, 4. Dr. Ricardo Medina Moyano; 5.  Dr. José Eduardo Gnecco Correa; 6. Dr. Carlos José Medellín Forero; 7.  Dr. Darío Velásquez Gaviria; 8. Dr. Alfonso Patiño Roselli; 9. Dr. Fabio Calderón Botero; 10. Dr. Pedro Elías Serrano Abadía; 11. Dr. Fanny González Franco.  Deputy Magistrates:  1.  Dr. Emiro Sandoval Huertas; 2. Dr. Julio César Andrade Andrade; 3. Dr. Jorge A. Correa Echeverry.  Aides to the Magistrates of the Court:  1.  María Teresa Muñoz de Jiménez,; 2. Hermógenes Cortés Nomelín; 3. Isabel Méndez de Herrera; 4. Cecilia Concha Arboleda; 5. María Cristina Herrera Obando; 6. María Lida Mondol de Palacios; 7. Rosalba Romero de Díaz; 8. María Yaneth Rozo Rojas; 9. Ruth Mariela Zuluaga de Correa; 10. Ana Beatriz Moscoso de Cediel; 11. Libia Rincón Mora; 12. Nury Soto de Piñeros.  Deputy Magistrate of the Council of State:  Dr. Lisandro Romero Barrios.  Assistant attorneys with the Council of State:  Dr. Carlos Horacio Uram Rojas and Dr. Luz Stella Bernal Marín.  Aides with the Council of State and Prosecutors:  1.  Ana María Nieto de Navarrete; 2. Blanca Inés Ramírez de Angulo; 3. María Teresa Barrios Rodríguez; 4. Jaime Alberto Córdoba Avila.  Drivers:  1. Luis Humberto García; 2. José Eduardo Medina Garavito, 3. Plácido Barrera Rincón.  The Administrator of the Palace of Justice, Mr. Jorge Tadeo Mayo Castro.  The COBISEC guards:  1.  Gerardo Díaz Arbeláez; 2. Eulogio Blanco.  The Elevator Operator at the Place of Justice, Mrs. Carlota Sánchez de Monsalve.

         The impunity in the judicial prosecution of these acts of violence against judges and attorneys is truly alarming:  98% of these crimes go unpunished; the courts have handed down decisions on only 13 cases, one acquittal and 11 convictions.  In 80% (412) of these cases, it has been impossible to ascertain whether an investigation or trial is even in progress.  Four cases (0.8%) are in trial, 79 (15.3%) are in the preliminary phase, and 1.6% have been closed when the investigations failed to produce anything.

         The State has not been sufficiently effective to put the anxiety to rest.  To address the issue of violence against judges and attorneys, on August 18, 1989, a Judiciary Security Fund was set up, a measure long past due since dozens of judges and attorneys had already been killed.  It was equally inadequate, since the fund had little in the way of financial resources and was weak on administration.

         A public order jurisdiction has been created and to protect it the identity of its judges is confidential, as is the identity of the witnesses, experts, criminal investigation staff and the nature of the evidence.  All of this is contrary to the principle of due process.  While these measures have afforded some measure of security to a minority sector of judges, particularly those most in danger such as judges who hear cases involving terrorism and drug trafficking, justices on the Supreme Court, magistrates on the Council of State, the Constitutional Court, the Superior Court of the Judiciary, and the Departmental Tribunals, the majority of judges still do not enjoy any special protection.

         To guarantee the safety of judiciary personnel, it is recommended that new positions for circulating judges be opened up.  It is also recommended that judges' professional organizations and bar associations be strengthened and that there be permanent oversight of judicial proceedings investigating these acts of violence; that complaints be investigated, solutions proposed and carried out.

         G.    FINAL OBSERVATIONS

         An independent judicial system must be organized that ensures proper administration of justice, the guarantees of due process and full exercise of human rights.  Jurisdictional functions must be exercised by specialized, technical civilian bodies, and the justice system must be removed from under the influence of military justice.

         The Commission is deeply concerned by the fact that Colombian justice is in large part governed by rules and regulations that can be traced to the powers permissible in states of emergency, which often means that the rights upheld in the American Convention are disregarded, as happened in the case of the right of habeas corpus and the institutionalization of secret trials.

         Although secret trials are intended to serve a good purpose, i.e., to protect the safety and lives of the judges, they nonetheless seriously violate the guarantees of due process and increase the margin for judicial error to the point that those people who are tried in secret are in danger of becoming victims of a miscarriage of justice.  The Commission urges the Government of Colombia to continue to seek ways to reconcile the twofold and not conflicting objectives of guaranteeing fully the lives and safety of judges, without diminishing the guarantees of due process.

         Naturally, the Commission is not opposed to measures that protect the life of the judge, the witness, the expert and of others who take part in the judicial inquiry.  Indeed, in exceptional cases, measures do have to be taken to protect their safety, independence and identity, so long as the basic guarantees of due process are not affected.  In some international proceedings before the Inter-American Court of Human Rights, in which the Commission and the governments have been the parties, the Commission--in order to protect the life and safety of some witnesses--has petitioned the Court, and the Court has agreed, not to reveal the identity of those witnesses to the representatives for the respondent government.  In such situations, the inter-American human rights justice system has tried to reconcile the quest for judicial truth, the parties' right to equal justice, and the right to life.  The Commission has also done the same, acting as a quasi-judicial body in processing certain individual cases involving complaints against States parties to the Convention.  The Commission believes that the search for truth and justice cannot be carried to such an extreme that it poses a threat to life; by the same token, however, the protection of the life and personal safety of the magistrates and those who cooperate with the justice system cannot be carried to such an extreme that truth and justice are compromised.  

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