ON THE SITUATION OF HUMAN RIGHTS
RIGHT TO PERSONAL LIBERTY /
law protects the right to personal liberty.
The Constitution states, “No one may be molested in his person or
family, or imprisoned or arrested, or detained, or have his domicile searched,
except by virtue of a warrant issued by competent authority, with all legal
formalities and for cause previously defined by law.” It goes on to say, “In
no case shall there be detention, imprisonment or arrest for debts or purely
civil obligations.” /
Colombian Constitution also contains a provision, article 28, which empowers the
Government, after receiving the opinion of a council of Ministers, to apprehend
and jail persons during times of peace when there are serious reasons to fear
disturbances of the public order and there is good reason to suspect that such
persons are acting against the public peace.
The exercise of this power requires the observance of certain precise
conditions: “If ten days have
elapsed since the time of the arrest and the detained person has not been set
free, the government shall proceed to order his liberty or shall place him at
the disposal of competent judges with the alleged evidence in order that they
may reach a decision in accordance with the law.”
the Constitution states in Article 121 on the power of the President to declare
the public order disturbed throughout the entire county or part of it in a state
of siege, that through such a declaration. “The government shall have, in addition to the powers
conferred by domestic law, such powers as the Constitution grants for time of
war or of disturbance of the public order, and those which, in accordance with
the rules accepted in the law of nations, exist in time of war between
Charges in connection with this right
1979, in particular during the first few months of that year, the Commission
received several claims relating to violations of the right of personal liberty.
These charges mentioned irregularities and abuses of authority in arrest
procedures, massive arrests of citizen, violations of constitutional guarantees
and improper exercise of Article 28 of the Constitution by Colombian
the on-site investigation of April 1980, and after it, the commission received
new information regarding the same charges.
The charges relate to the following events: a) arrests following raids;
b) detention, including warrants; c) jailing, with the use of violence; d)
detention including removal of personal effects; e) damages during the raids; f)
jailing for more than ten days; and g) being held incommunicado for
lengthy periods. /
The Commission transmitted the pertinent parts of the charges to the
Colombian Government, which has replied to the request for information.
The government has states that, with respect to these matters, it has
complied with the terms and formalities set in Article 28 of the Constitution
and with the provisions relating to the Code of Criminal Procedure.
In addition, it made a number of clarifications, which it considered
Several examples of the Government¢s
“The terms of Article 28 of the national constitution were complied
with by keeping him in jail for a period of ten (10) days, as ere the terms on
holding persons incommunicado and definition of legal situations as set
out in Article 434 and 437 of the Code of Criminal Procedures;”
“Starting with the arrest, his legal situation was resolved opportunely
and in accordance with the precepts and rules of Article 286 of the national
Constitution, and Articles 431, 434 and 437 of the Code of Criminal
“For his transfer for the purpose of preventing his escape from the
town of Bolivar to Bucaramanga and from Bucaramanga to Bogotá, he was taken
under security arrangements in accordance with the Jail Code (Decree 1817 of
1964). In addition, there was no need to hold him incommunicado
since, when he was arrested, his juridical situation was already defined.”
The Commission received a document on irregular arrests from a group of
defense attorneys, which states:
can easily be seen in this case, most of the accused persons were jailed, were
deprived legal counsel, were held for terms of more than then days without being
placed under the orders of the competent judge and were subjected to irregular
interrogations. It is not true that there were orders to hold them under
Article 28 of the National Constitution and therefore, rules set forth in
Colombian law and in the United nations Charter were violated. These rules prevent authorities from acting this way and from
holding persons for such lengthy periods without legal counsel and being subject
to illegal and irregular measures.
look at the file on the arrest warrants, place of imprisonment, length of time
held and the lack of legal counsel in the interrogation will show this.
These persons were kept at places other than normal jails, beyond all
the charges it received, the Commission processed the claim for Mr. Sergio Roman
Betarte Benitez, an Uruguayan. In
the pertinent parts this claims states that he was arrested on January 3, 1979
after having given unsworn testimony to the judge and held at the Cavalry School
and later on, at the La Picota Penitentiary in Bogotá.
In a letter dated January 19, 1981, the Government of Colombia answered
the Commission as follows:
ROMAN BETARTE BENITEZ, accused of the crime of rebellion, was captured on
January 3, 1979 by troops of the Military Institutes Brigade.
Testimony taken on January 11, 1979, by the first Military Criminal
Instruction Court. In this
procedure, he was represented by Dr. José Luis Rois Aguilar, and later by Dr.
Arturo Fúene Macías. In his
unshorn statement, he makes no reference to mistreatment.
office that conducted the investigation ruled on January 20, 1979, that he
should be held under preventive detention.
While being tried by court-martial, he was sent to the Superior Court
(division) of Bogotá since it had jurisdiction and there he was set free.
On March 3, 1981, the claimant commented on the government¢s
reply. The pertinent parts of those
comments, which were transmitted to the Colombian Government in letters dated
march 18 and April 3, 1981, are as follows:
have reread several times the letter dated January 19, 1981, in which the
Colombian Government notified you to the following effect:
“Sergio Román Betarte Benítez, accused… while being tried by
court-martial, was sent to the Superior Court (division) of Bogotá since it had
jurisdiction and there he was set free.”
Betarte Benítez is a prisoner at the central penitentiary of Colombia (La
Picota) in cell block No. 1, cell No. 329, at the disposal of Judge 106 of the
military criminal instruction court, following a ruling issued by the Commanding
Officer of the Military Institutes Brigade, Brigadier General Josue Leal
Barrera, on February 26, 1981.
Betarte Benítez in under the orders of Judge 106 of the military criminal
instruction court and is accused of a crime that is being tried in an oral
court-martial which is now in the public stage and is being conducted for those
accused of belonging to the April 19 movement (M-19).
is a flagrant violation of the unity of the case, as contained in Article 26 of
the Constitution of Colombia.
was separated from this court-martial on January 13, 1981, when, on the
instructions from the presiding officer of the court-martial, he was placed at
the disposal of the commanding officer of the Military Institutes Brigade.
January 22, 1981, a request to revoke the warrant of imprisonment against him
was submitted to that commanding officer. The
request was denied, in said document of February 26, 1981.
is also true that he has been tortured, as previously communicated to you.
Betarte Benítez was never placed at the disposal of the civil or ordinary
system of justice and has been in jail since January 3, 1979, without ever
having gained his freedom during that time.
In March 1981, the Commission met with Mr. Betarte at the La Picota
prison. Mr. Betarte turned over
documents relating to his case and requested the Commission to intervene on his
behalf before the Colombian government so that he could be deported to Sweden a
county that had granted him a visa. A
ticket for this trip was given to him through the offices of the United Nations
High Commissioner for Refugees, which, as he stated, declared him a political
refugee on November 20, 1980. The
Commission made this known to the Government on March 18, 1981, and requested
that it consider the matter in light of Colombian law.
On June 16, 1981, the Colombian Government replied.
The pertinent parts of the government¢s
reply are as follows:
The presiding officer of the oral court-martial against the members of
the M-19 subversive movement, for rebellion and other crimes, separated Sergio
Román Betarte Benítez from that case in January, 1981 and placed him at the
disposal of the Military Institutes Brigade where he is being tied for
kidnapping former Ambassador Miguel de German Ribón.
The accused is in the La Picota jail of Bogotá.
Due to an error in the source of information on this case, it had been
communicated that Betarte Benítez had been set free when in fact that release
had been accorded to another Uruguayan citizen also associated with the M-19
case. That error is hereby
With respect to the unity of the case mentioned by the attorney of
Betarte Benítez, this is a technical procedural question dealt with by the
presiding officer of the court-martial, whose decisions the national government
may not review and in any case, it does not constitute a violation of a human
As so explained the recourses of domestic jurisdiction nave not yet been
Application of Article 28 of the Constitution
April 16, 1979, the Commission received and processed a claim dealing with the
application of Article 28 and alleged violations of the provisions of the
American Convention on Human Rights. The
pertinent parts of the charges are as follows:
accordance with Article 46 of the Convention, the remedies under domestic law
have been exhausted and, there has also been an unjustified delay in the
decision of the Government of Colombia with respect to may request of February
on February 8, 1979, I sent a respectful petition to the President of Colombia
in which I requested suspension, as promptly as possible, of the
application of Article 28 of the National Constitution because it was being used
not only to deny habeas corpus in cases of arbitrary detentions and other
basic procedural guarantees, but also to violate the American Convention on
Human Rights of 1969 and the International Pact on Civil and Political Rights of
the United nations of 1966. Both of
these international instruments were signed and ratified by Colombia and put in
effect in this country.
February 13, I received telex No. 014138 from Diana Turbay Quintero, the private
secretary of the President, in which she acknowledged receipt of my note dated
February 8, 1979, to the President. On
the same day, through another telegram, I requested the President of the
Republic “to make an urgent,
thorough reply to may attentive request of February 8, with respect to
suspension of Article 28 of the Constitution since it is in violation of the
international pacts on human rights.”
March 20, 1979, I send another telegram to the President of the Republic:
“For purposes of exhausting remedies under domestic law, and in the
exercise of the constitutional rights of petition, I respectfully request you to
reply to my attentive petition of February 8 on suspension of application of
Article 28 of the Constitution because it is in violation o International of
American treaties on human rights.”
date, however, the President of Colombia has not replied to my request of
February 8, 1979, and therefore I believe that the remedies of Colombia¢s
judicial system have been exhausted, a conclusion that can be reached through
interpretation of a paragraph of Article 18 (administrative silence) of Decree
2733 of 1959 which regulates the right of petition and issued standards on
Governmental procedures shall be considered to be exhausted when several
of the remedies mentioned in the foregoing articles have been interposed and
they are understood to be denied after the term of one (1) month has passed
without any final ruling on them.”
It is obvious that more than sixty days have passed without the
Government of Colombia having replied to my petition as is ordered under the
terms of Article 1 of Decree 2733 mentioned above:
“It is a basic duty of all public officials or agencies connected with
branches of public authority or with the official or semiofficial, national,
departmental or municipal establishments or institutes, to make effective the
exercise of the right contained in Article 45 of the Constitution by promptly
and opportunely ruling on petitions which, in the terms described, are made to
them and which have a direct bearing on the activities for which they are
January 2, 1979, the Government of Colombia initiated application of paragraphs
2 and 3 of article 28 of the National Constitution:
28, No person may, even in time of war, be punished ex post facto, and no
punishment shall be inflicted if it is not under a law, order or decree in which
the act has been previously prohibited and the punishment for its commission
in time of peace, if there are serious reasons to fear a disturbance of the
public order, this provision shall not prevent the arrest and detention by order
of the Government, upon previous advice of the ministers, of persons suspected
with good reason of attempting to disturb the public order.
ten days have elapsed since the time of the arrest and the detained person has
not been set free, the Government shall proceed to order his liberty or shall
place him at the disposal of competent judges with the alleged evidence in order
that they may reach a decision in accordance with the law.
means of application of Article 28 of the Constitution, the Government of
Colombia has proceeded to detain many persons who are suspected of “disturbing
the public order.” /
It is obvious that Colombia has agreed, through the American Convention
on Human Rights, “to respect the rights and freedoms recognized herein and to
ensure to all persons subject to their jurisdiction the free and full exercise
of those tights and freedoms, without any discrimination for reasons of race,
color, sex, language, religion, political or other opinion, national or social
origin, economic status, birth or any other social condition.”
(Article 1). Likewise, it
agreed to adopt, “in accordance
with either constitutional processes and the provisions of this Convention, such
legislative or other measures as may be necessary to give effect to those rights
or freedom” (Article 2).
If as yet the Government of Colombia has not adopted, as the current
international instruments on human rights establish, “such legislative or
other measures as may be necessary to give effect to those rights or freedoms”
contained in the American Convention on Human Rights, it should at least abstain
from applying paragraphs 2 and 3 of Article 28 of the National Constitution
since their application is manifestly violative of the Pact of San José.
Certainly the Government of Colombia cannot, without violating the
principle of good faith in compliance with its international obligations, apply
paragraph 2 and 3 of this article on arrest and detention of persons
“suspected with good reason of attempting to disturb the public order”
because by so doing it violates articles 7 and 8 of the American Convention on
Article 7 of the Convention provides, on one hand, the right of all
persons of personal liberty and security (No.1) and, on the other, that “No
one shall be deprived of this physical liberty except for the reasons and under
the conditions established beforehand by the constitution of the State party
concerned or by a law established pursuant thereto”
(paragraph 2). The
causes of deprivation of physical freedom are given in Title V
(capture, detention and liberty of accused persons) in the criminal
procedure code which are consistent with Article 23 of the National
Constitution: “No one may be
molested in his person or family, nor imprisoned or arrested or detained, or his
domicile residence searched, except by virtue of warrant issued by competent
authority, with all legal formalities and for cause previously defined by law.
The application of paragraphs 2 and 3 of Article 28 of the Constitutions
violates the guarantees, “Anyone who is detained shall be informed of the
reasons for his detention and shall be promptly notified of the charge or
charges against him” (Article 7.4
of the Convention). The ten-day
term is inconsistent with the clear conditions, promptly, and exempts the
government of Colombia (in this specific case, the military authorities who
raided the domiciles and held the persons) from the obligation of notifying
every person held of the criminal charges made against him.
The application of paragraphs 2 and 3 of Article 28 of the Colombian
Constitution also violates the guarantees, “any person detained shall be
brought promptly before a judge or other officer authorized by law to exercise
judicial power and shall be entitled to trial within a reasonable time or to be
released without prejudice to the continuation of the proceedings”
(Articles 7.5 of the Convention). The
power of the Government of Colombia to hold for ten days “persons suspected
with good reason of attempting to disturb the public order” violates, in
consequence, the guarantee of every criminally accused person to be taken ipso
facto (promptly) to his natural
judge, or to be set free within the normal terms established by the Colombian
Code of Criminal Procedure.
It has been widely denounced that military officials detain
persons for “interrogation” for a term of ten days under the detention
procedure provided in Article 28 of the Constitution, and that this is done not
taking into account the retroactive application of such a provision as has been
denounced by the defense attorneys of persons being held on suspicion “of
attempting to disturb the public order.”
In addition, paragraphs 2 and 3 of Article 28 of the Constitution violate
the universally recognized guarantee of habeas corpus against arbitrary
detention or jailing. This is recognized officially not only in Colombia¢s
Code of Criminal procedure (Article 417 to 424) but also in Article 9.4 of the
International Pact on Civil and Political Rights of the United Nations and
Article 7.6 of the American Convention on Human Rights.
Article 7.6 of the Pact of San José reads:
In consequence, paragraphs 2 and 3 of Article 28 of the Constitution, in
the same form as the application of Article 425 of the Colombian Code of
Criminal Procedure (“The provisions of this chapter shall not be applicable to
the cases discussed in the second paragraph of Article 28 of the national
Constitution unless the term of detention set in paragraph 3 of that article has
lapsed”), constitute a serious restriction on the remedy of habeas corpus
and therefore their current application by the Government of Colombia
constitutes violation (ultra-vires) of the American Convention on Human
Finally, the application of paragraphs 2 and 3 of Article 28 of the
Constitution violates the judicial guarantees of right to a fair trial
established in Article 8 of the Convention, in particular the guarantees
included in paragraph 1 of that article:
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent and impartial tribunal, previously established
by law, in the substantiation of any accusation of a criminal nature made
against him or for the determination of his rights and obligations of a civil,
labor, fiscal or any other nature.”
Unquestionably, the military or governmental nature of the military
criminal justice system that is being applied against civilians or residents in
violation of Articles 26, 55, 58 and 61 of the constitution of Colombia violates
the requirement of competent, independent and impartial court provided in the
Pact of San José and disregards the universally recognized legal principle of nemo
udex in sua causa. Article 170
of the Constitution of Colombia provides a court-martial or military tribunal to
try “crimes committed by military personnel in active service and in
connection with active service, “ but not to try the crimes of either a common
or political nature which ordinary citizens may commit.
The institution of competent authority (the trial judge), especially in
criminal matters, is officially recognized in Article 23 of the Colombian
Furthermore, most of the new guarantees provided in the Pact of San José
(Article 8) are being violated by the military “investigations” and the
applications of the Security Statute as they are being carried out by the
government of Colombia. /
communication No. 0674 of April 23, 1980, the government of Colombia replied to
requests for information about this case. The
pertinent parts of its statement are as follows:
1. With respect to the petition to suspend application of the aforementioned article, the considerations given below are pertinent:
The President of the Republic may not restrict the powers that the
National Constitution confers to the President or to the Government without
violating the Constitution itself.
power that Article 28 of the National Constitution confers must be exercised
when circumstances so require.
Paragraphs 2 and 3 of Article 28 of the Constitution are not contrary to
the American Convention on Human rights. Persons
who are deprived of their physical liberty under the terms of the provisions
contained in paragraph 2 are so deprived because, according to that provision,
they are “suspected with good reason of attempting to disturb the public
order,” when there are serious reasons to fear a disturbance of the public
order.” In other words, the
deprivation of liberty takes place on grounds and conditions set previously in
the Constitution, that is, in accordance with Article 7.2 of the American
3 of Article 28 establishes a short period of ten days to define the status of
the persons held. Although in the
opinion of the Government of Colombia this paragraph is compatible with the
requirements of the Convention, a very narrow interpretation of the term,
“promptly,” as used in Article 7.5, would mean that the ten-day term
is excessive, it should be kept in mind in any event that, under the present
circumstances in Colombia, the application of the measures authorized by Article
28 of the National Constitution is strictly consistent with the provisions of
Article 27.1 of the American Convention on Human rights which reads:
In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures derogating from
its obligations under the present Convention to the extent and for the period of
time strictly required y the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law
and do not involve discrimination on the ground of race, color, sex, language,
religion or social original.
the end of this written statement, the claimant says that the application of
paragraph 2 and 3 of Article 28 violates the guarantees established in Article 8
of the Convention. A simple reading
of these two paragraphs is enough to see the inaccuracy of this statement. The reference that the claimant makes to military justice is
out of order, considering that the application of Article 28 is a power of the
government, which exercises that power under constitutionally established
conditions. A quite different point
which does not derive from Article 28 is that there are trials under the
military criminal justice system in which civilians are tried in accordance with
legal provisions that confer on that system trials of certain crimes during the
state of siege. It is appropriate
to state that there is no valid reason to consider that the involvement of the
military criminal justice system violates the requirement of competent,
independent and impartial court made in the Convention.
It also cannot be considered that the conferral of trials involving
certain crimes is unconstitutional. This
conferral of power is duly founded in Article 61 of the Constitution and was so
recognized by the Supreme Court of Justice in its ruling of October 30, 1978 on
the constitutionality of Legislative Decree 1923 of 1978
The Government of Colombia has used the power granted to it in Article 28
only as strictly necessary. It has
been especially watchful in this area and for this reason it requested the
Honorable State Council, as the consultant body of the Government, review the
application of Article 28 of the Constitution (Article 141). In fact, that high body issued a favorable judgment on
September 13, 1978.
one makes a careful study of the dissenting votes, one will observe that all the
judges agreed that the government could and can hold persons, as established in
Article 28, even without consulting the State Council, and in the exercise of
the powers of Article 121 of the Court.
President Turbay Ayala preferred the narrower opinion so that here would be no
doubt of full compliance with the Constitution (attached were the Government¢s
request for opinion of the Honorable State Council and its favorable opinion).
The Claimant declares solemnly “That the remedies of domestic law have
been exhausted.” This statement
is not true. If the petition of the
claimant were not resolved in the term of one month, it is understood to be
denied and Government remedies exhausted, as stated in the paragraph of Article
18 of Decree 2733 of 1959. As amended by Article 80 of the
contentious-administrative governmental remedies are exhausted, the claimant can
have recourses to the contentious administrative judicial system, which he has
not done to this time. On the topic
of administrative silence and its legal consequences, the State council gave its
opinion in a finding dated April 19, 1969:
phenomenon of administrative silence which is understood to exhaust governmental
remedies and which allows the interested party to have recourse to
contentious-administrative jurisdiction, cannot be limited to the case of
interposition of remedies. It would be completely illogical for lawmaker to have
established this procedure for remedies, which are accessories, and not with
respect to the request brought before the administration, which is the main
point. The lawmakers wanted the
administration to not stand mute against petitions made by citizens and, on the
basis of this definitive criterion, that is how the individual rules should be
interpreted, especially article 45 of the National Constitution and Decree 273
of 1955 which deal specifically with the constitutional right of petition. It
should be noted that the remedy of personal review is not obligatory, as is
provided for in Article 15 of the same decree, meaning that if a petition is not
answered by the administration, it is not necessary to interpose any remedy of
personal review and therefore it becomes evident that there is then a typical
administrative silence which empowers the interested party to carry his case to
the contentious-administrative courts.”
The refusal either expresses or presumed, to grant a petition constitutes
an act of government. In this
connection, it is appropriate to mention the Article 62 of the
contentious-administrative code whose text is as follows:
62. Decrees, resolutions and other
acts of government, ministers and other officials, employees or administrative
persons can be brought before the State Council or before the administrative
courts, depending on the rules of competence set forth in the two preceding
chapters, on the grounds of unconstitutionality or unlawfulness.
an act of a particular nature has been carried out by an official, employee or
administrative person in the national system, and it violates an executive rule,
there shall be recourse to the contentious-administrative judicial system.”
In consequence of the foregoing, the recourses of internal jurisdiction
have not been exhausted in the case that this charge refers to. /
Persons held under Article 28
already stated, before Article 28 can be applied, the Government must comply
with a number of requirements set forth in the Constitution.
According to a document turned over to the Commission, in the opinion of
the Colombian Government, on the basis of its applicable law, all prior
requirements must be fully met for the processing of detention of persons held
for reasons of public order. These
requirements are as follows:
The warrant of arrest and detention of persons must be given by the
National Government (may be either oral or in writing).
There must be a prior opinion from the State Council, in accordance with
Article 141 of the Constitution even though this is a mandatory requirement, it
does not necessarily have to be followed or respected by the Government since
the responsibility for public order is the Government¢s
and not the State Council¢s.
Obviously, the State Council¢s
opinion is of great importance since it can lend its judgement to the decision
on the situation of public order prevailing at any given time.
The state Council, according to commentators, does not have to issued a
finding on each case of detention but must issue its general understanding of
the overall situation of public order and the other circumstances discussed in
The prior opinion of the ministers is required; to arrive at his opinion,
the situation of public order must be analyzed by the Council of Ministers and
they must give their opinion on the detention of persons.
Serious grounds must exist to fear a disturbance of the public order. The grounds and their seriousness are weighed by the National
Government since the Government is responsible for public order.
There must be good reasons to suspect that such persons are attempting to
disturb the public order; also, the Government must weight the evidence on such
Article 28 demands that the maximum detention period be ten days; persons
detained can be set free, by judgement of the Government, but the maximum time
shall be ten days from the time of their apprehension, after which either they
are se free or the Government must put them at the disposal of competent judges
with the evidence or background information gathered so that the judge may
decide the case under the terms of the law
It is a preventive police measure allowed by the Constitution of the
Government if it is kept in mind that the President of the Republic, under the
terms of Article 120 of the Constitution, is responsible for preserving public
order throughout the entire country and re-establishing it where it is
This rule applies in both time of peace, in case of domestic disturbance
or external war.
In the apprehension and detention discussed in Article 28, habeas
corpus is not in order unless the detention term has lapsed, as provided for
in Article 25 of the Criminal Procedure Code.
National Government has complied strictly with the provisions of Article 28 of
the National Constitution since the warrant for arrest and detention of a person
has been given by the Government. There
was the prior and favorable finding of the State Council, given September 13,
1978. In the different situations,
there has always been a prior favorable opinion from the Council of Ministers.
Serious grounds have been established for believing that the public order
is threatened grounds that were serious when that the state of siege was decreed
in 1976. Serious reasons that the
persons apprehended and detained were attempting to disturb the public order
were established. And finally, the
apprehension and detention of those persons lasted the maximum of ten (10) days
after which several citizens and foreigners were set free and others were placed
at the disposition of competent judges and these persons have defined legal
situations at law.
of the requirements mentioned was the opinion of the State Council.
According to the terms of Article 141 of the constitution, that body is
responsible for “acting as
supreme advisory board for the Government in matters relating to administration.
It shall necessarily be heard in all the matters relating to
administration. It shall
necessarily be heard in all the cases specified by the Constitution and the law. In the cases dealt with in Article 28, 121, 122 and 212, the
Government must hear the matter prior to the State Council.
The opinions of the Council are not binding upon the Government except as
provided for in Article 212 of the Constitution.”
present situation, the Government requested the opinion of the State Council in
a communication dated September 13, 1978. This
request in addition to others, made the following points:
respectively and attentively, and in furtherance of the mandate conferred on us
by the President of the Republic and by the Council of Ministers, in special
session held last night, we request the opinion of the body, as the consultive
organ of the Government, to seek application of Article 28 of the National
brutal, monstrous and absurd assassination of former Minister Rafael Pardo
Buelvas, yesterday at his home the responsibility for which is claimed by the 14th
of September Command of Worker self-defense which accused him of murders; the
death in Pereira of Mr. Hugo Velez Marulanda; the brutal homicide of police
agents in Paujil (Caqueta) in the area of Cimitarra, in the Central Magdalena
area; the demand for economic contributions at Uraba; and the explosion last
night of two bombs of considerable explosive power at Villavicencio and in Santa
Marta at the newspaper El Informador, are evidence of the existence and
execution of a terrorist plan
throughout the entire country.
On the same date, September 13, 1978, the Secretary General of the State
Council wrote to the President of the Republic and transmitted to him the
requested opinion. The text is as
a communication dated today, the Government, through the Ministers of Justice,
Dr. Hugo Escobar Sierra, of National Defense, General Luis Carlos Camacho Leyva
and the Secretary General of the Office of the President, Dr. Alvaro Perez Vives,
requested the council to issue its opinion as referred to in Article 141,
paragraph 1, clause 2, to seek application of Article 28 of the National
Ministers and the Secretary General explained to the full Council the serious
circumstances and events that led the Government to make this request.
Council, after the ministers and the Secretary General withdrew, made a detailed
examination of the reasons alleged by the aforementioned officials, considered
the situation and analyzed the circumstances of state of siege in the country,
in view of the effect of Article 121 of the national Constitution, the legal
implications of this status along with the measures that can be taken under the
terms of Article 28 of the Constitution.
Council considered that pursuant to the Constitution, Article 28 could be used
in both times of peace as well as d8ring domestic disturbance and external war.
it believes that the events explained y the government are sufficient reasons to
fear greater disturbance of the public order and these circumstances empower it
to take the public order and measures provided for in the aforementioned article
28 of the Constitution.
on an earlier occasion, the Council repeats that these powers should be
exercised by the Government, following the limitations and requirements set
forth by that rule for each specific case, namely:
Order of the Government, opinion of the ministers, serious reason to
suspect that the persons are attempting to disturb the public order and that the
maximum duration of the detention, on these grounds, does not exceed ten days,
all of which are citizen¢s
guarantees established in the Constitution.
has been expressed, for application of article 28 of the Constitution, the
Council of Ministers must first issue its opinion. In January 1981, the Colombian Government handed over to the
Commission a statistical summary of the application of Article 28 during the
period covered by January 1, 1979 to April 15, 1980. It expressed to the Commission that this was the first time
that the Government had turned over such information since it is considered it
is confidential in nature. Law 63
of October 17, 1923, makes the meetings of the Council of Ministers, when it
acts as a consultative body, “strictly confidential” in nature.
The statistical summary mentioned above shows the following figures:
the Council of Ministers was presented with request for the arrest and detention
of 3,043 persons.
of the aforementioned number, 1,548 persons were arrested, 1,467 were not
arrested and 28 names were repeated on the list, for the total of 3,043 given
the total 1,548 arrested, the following categorization can be made:
685 persons were set free before the end of the ten-day period:
280 persons were placed at the disposal of judges;
Detention warrants were issued for 444 persons;
Detention warrants were revoked for 47 persons;
Nine persons were sentenced by court-martial;
83 persons were sentenced for bearing arms unlawfully.
In reference to application of Article 28 of the Constitution, the
Government of Colombia also reported, in addition to other matters, the
following to the Commission:
The criminal law prosecutes an individual who has committed a specific
punishable act and competent authority orders his arrest.
Subversion however, is an action that involves the crimes of rebellion,
sedition and riot, which frequently entail. Several persons in their execution,
and especially when the arrests follow military actions or combats using regular
forces, many members of subversive groups are arrested.
When the government has ordered the arrest or detention of a person or
persons, it has always done so on the basis of serious cause to suspect that
they are attempting to disturb the public order.
No proof is required, simply the suspicion. There has always been the prior opinion of the ministers,
meeting in council. And it is good
to note, that in Legislative Act No. 1 of 1968, the legislators set the term of
ten (10) days for detentions decreed by the government in time of peace on the
grounds of public order. This rule
thus modified has been viewed by the most demanding persons as a true step
forward to guaranteeing the personal liberty of individuals since previously the
detention was for an unlimited length of time.
It should be noted that under the Colombian System of criminal Justice,
citizens could be arrested in other ways. Examples
are orders issued by competent judicial authority, entailing compliance with the
requirements of the criminal procedural statute, or their apprehension in the
act of commission of the crime, under the terms of Article 24 of the national
Constitution. For this reason it is
necessary to make this distinction. Besides this, neither the Colombian government nor the
judicial authorities are aware of any case in which the capture, arrest or
detention has exceeded the legally established terms.
Another point that should be made is that preventive detention should not
be confused with the other cases mentioned above. When a person is detained by decision of a judge, there is no
time period for setting him free unless the judge himself revokes the detention
or the accused person pays the penalty or the crime of which he is accused. /
the charges made in case No. 4056, discussed in Part C of this chapter,
reference is made to the alleged violation of the effective implementation of habeas
corpus by stating that the application of Article 28 “violates the
universally recognized guarantee of habeas corpus…
claims received by the Commission regarding persons who are detained and on
trial mentioned the lack of effectiveness and exercise of habeas corpus.
The following cases are illustrative:
relating to Antonio José Puentes and his wife, Carmen Amparo Porro de Puentes,
April 24, 1980:
They presented a writ of habeas corpus to the Ibaque Municipal
Court in February 1979, but received no reply;
relating to Edgard Alirio Avirama and Marco Anibal Avirama Avirama, April 1980:
The attorney for the victims, Dr. Miguel Antonio Vazquez Llano, submitted
a writ of habeas corpus to First Municipal Criminal Court of Popayan of
February 13, 1979. From this came
information that Edgard and Marco were under arrest because of their ties with
the M-19 movement;
Claim relating to Clementina Torres Alvarez and her son, Raul Mauricio
Artunduaga Torres, April 25, 1980:
A writ of habeas corpus was submitted to Judge 102 of the Military
Criminal Court and Judge 100 of the Military Criminal Court. /
These charges were answered by the Colombian Government in letter No.
00144 of January 19, 1981 to the Commissioner.
In the part concerning the writ of habeas corpus, the letter reads
Torres Alvarez: “With respect to
the writ of habeas corpus, since it was not proposed for her in the form
and in the manner ordered by law, it was not processed.
To this end, this remedy is not submitted to officials of the military
criminal justice system but to the municipal criminal court of the locality.”
José Fuentes: “The records
for this case show that a writ of habeas corpus was submitted in
February, 1979, but freedom was not granted because this procedure had not been
carried out in accordance with terms of law”
Amparo Fuentes Parra: “habeas
corpus was not appropriate in this case since she was granted liberty under
the terms of the law of criminal procedure.”
reply does not address the case of Messrs. Edgard Alirio Avirama and Marco Aníbal
Avirama with specific reference to habeas corpus.
However, in the matters concerning the claim of Fabian Sanchez Gómez,
transmitted by the Commission as part of the same case No. 7348, the response
from the government states:
arrests were in accordance with orders from competent authority but since there
were no grounds for linking him procedurally, he was set free in accordance with
the provisions in effect for habeas corpus.
the Ministry of Justice, the Government turned over to the Commission on January
16, 1981, an analysis of habeas corpus in Colombia, described in the
extremely important writ for the protection of personal liberty and individual
rights is officially recognized as a reflection of the fundamental freedoms
established in Title III of the National Constitution and set out in Articles
417 to 425 of the current Code of Criminal Procedure.
basis for this is the right of all persons to know the reasons for which they
have been deprived of their liberty. Habeas
corpus is appropriate as a remedy when the person has been deprived of his
liberty for more than 48 hours and believes that the law is being violated.
petition can be submitted directly by the person who believes his rights have
been violated, or can be presented by another person on his behalf, or the
Public Ministry can present the writ. In
the latter case, in our constitutional legal structure
(Legislative Act No. 1 of 1979) the Office of the Procurator General of
the Nation is responsible for defending the legality of accused persons and the
respect for human rights.
writ of habeas corpus is studied immediately and the judge to whom it is
presented hears it.
the petition is in order, the judge requests the respective authorities to
inform him within 24 hours in writing about the date of the arrest and the
reasons for it. He may also
personally question the aggrieved person.
the reports or any other means of information prove that the person has been
arrested or detained without legal formalities, the judge shall call for this
being set free immediately and shall initiate the corresponding criminal
investigation of the authorities who carried out the arbitrary arrest.
The new criminal code (which went into effect on January 29, 1981)
provides complete regulations on arbitrary detention as a crime
(Articles 272 to 275). Specifically,
Article 275 punishes the judge who ignores habeas corpus with arrest from
six months to two (2) years and loss of employment.
a practical standpoint, there is no room for doubt that habeas corpus has
operated and continues operating satisfactorily in Colombia.
In the country¢s
courts, one can clearly see how writs of habeas corpus have been
processed with all the legal formalities and the fullest respect for the
essential human right of liberty.
new Code of Criminal Procedure that will be issued on January 29, 1981 likewise
guarantees habeas corpus as an action guaranteeing individual liberty
against unlawful placement in prison or under arrest and unlawful deprivation of
The guarantee of habeas corpus is even broader and more complete in our future criminal procedure statute. In that statute it is in order for both felonies and misdemeanors and also for police actions involving abuse. It also makes the habeas corpus process more flexible.
Article 7 of the American Convention on Human Rights
reads as follows: “1. Every
person has the right to personal liberty and security.
2. No one shall be
deprived of his physical liberty except for the reasons and under the
conditions established beforehand by the constitution of the State Party
concerned or by a law established pursuant thereto.
3. No one shall be
subject to arbitrary arrest or imprisonment.
4. Anyone who is
detained shall be informed of the reasons for his detention and shall be
promptly notified of the charge or charges against him.
T. Any person detained
shall be brought promptly before a judge or other officer authorized by law
to exercise judicial power and shall be entitled to trial within a
reasonable time or to be released without prejudice to the continuation of
the proceedings. His release
may be subject to guarantees to assure his appearance for trial.
6. Anyone who is
provided of his liberty shall be entitled to recourse to a competent court,
in order that the court may decide without delay on the lawfulness of his
arrest or detention and order his release if the arrest or detention is
unlawful. In States Parties
whose laws provide that anyone who believes himself to be threatened with
deprivation of his liberty is entitled to recourse to a competent court in
order that it may decide on the lawfulness of such threat, this remedy may
not be restricted or abolished. The
interested party or another person in his behalf is entitled to seek these
No one shall be detained for debt.
This principle shall not limit the orders of a competent judicial
authority issued for nonfulfillment of duties of support.
Article 23 of the Political Constitution.
Article 24 of that Constitution reads as follows:
“An offender who is caught flagrante delicto may be arrested
and taken before a judge by any person.
If the agents of authority pursue him and he takes refuge in his own
dwelling, they may enter for the purpose of apprehending him; and if he
seeks to escape in the dwelling of another person, the consent of the owner
or tenant thereof shall first be obtained.”
As regards arbitrary detention, the criminal code provides:
“Article 272. Illegal
deprivation of liberty. An
official who, in the abuse of his authority, deprives another of his
freedom, shall be liable to imprisonment of one (1) to five (5) years and
shall be discharged from employment. Article
273. Unlawful prolongation of
deprivation of liberty. An
official who unlawfully prolongs the deprivation of liberty of a person
shall be liable for a term of six (6) months to two (2) years and loss of
employment. Article 274.
Special arbitrary detention. An
official who without complying with all legal requirements deceives a person
to deprive him of liberty or to keep him under security measures is liable
to confinement for six (6) months to two (2) years and loss of
full test of Article 28 is given in Chapter I.B.3 of this report.
The text of this articles
the conditions and formalities to which its application is subject are given
in chapter I.E.I.2 of this report.
7348 and 7378 are referring to the M-19 and the FARC, respectively.
 Case 7348 referring to the
M-19 and case 7375 referring to the FARC.
Government communications sent to the Commission dated August 22 and
October 15, 1980
Memorandum dated April 22, 1980, delivered to the Commission by the
attorneys defending those persons associated with court-martials being
conducted at the Baraya Batallion and the related investigation of them, for
trial as presumed member of the Fuerzas Armadas Revolucionarias Colombianas
The original claim is
dated April 24, 1980. The
Commission transmitted the pertinent parts of this claim to the government
in a note dated November 3, 1980, as part of multiple case 7348 relating to
the M-19. Later, the Commission
treated this as a separate case, No.
7819, for processing purposes, which it mentioned, to the Colombian
government in a letter dated April 30, 1981.
For more on this case see also Chapter V. E.3 of this report on the
oral court-martial of the M-19.
3,4,5 and 6 of this section on background deal with aspects that are exactly
similar to the first part of this charge.
case dealing with the charge presented by Dr. Pedro Pablo Camargo was
originally No. 4056. On April
18, 1979, the Commission transmitted to the government the pertinent parts
mentioned above. On July 11 of
the same year, the Commission sent additional information provided by the
claimant, who later sent to the Commission other documents providing
supporting information. On
April 34, 1980, the government replied to the Commission and the pertinent
parts were transmitted to the claimant for his observations to the
Commission in connection with the government¢s
reply. These observations wee
then sent by the Commission to the government on July 25, 1980.
On August 29, 1980, the Colombian government replied to the
Commission and the pertinent parts were remitted to the claimant on
September 10. On September 29, the claimant sent new observations to the
Commission and these in turn were transmitted to the government on October
7, 1980. The government then
replied to the Commission on November 21.
government replied to the Commission in communication No. 0674 of April 23,
1980, sent through the Colombian diplomatic mission to the OAS on May 7,
1980. On August 29, 1980, in
communication No. 001755, the Colombian government wrote to the Commission
repeating the ideas and considerations it gave earlier on this case and on
November 21 of the same year, in communication No. 698, it repeated its
opinions once again on this case.
opinion of the Council of State was approved by a majority of 12 votes of
its members. Other counselors
dissented or issued clarifications of their votes.
Those dissenting were the counselors Jaime Betancur Cuartas, Jaime
Paredes Tamayo, Jorge Valencia Arango, Humberto Mora Osejo and Miguel Lleras
Pizarro. The counselor Jorge
Davila Hernández made a clarification of his vote.
In cases of dissent and clarification, the considerations on which
those members of the Council of state based their opinion are explained.
the speech that the President of the Republic delivered to the members of
Association of Democratic Attorneys in a meeting on February 7, 1979, he
made the following point about the application of Article 28: “There are
two ways to interpret Article 28 of the national Constitution. One is when the public order is disturbed and the country is
under a state of siege in which authority might be appropriate without any
further limitations than those established under international law in this
area. The other is the
restrictive rule of Article 28 of the Constitution, which even during times
of peace can be applied, with a limit of ten days on the detention. We discounted the fact that we were in a state of siege and
that we should proceed without any further limitation than that of
international law for its application, just as it could be applied only
during times of peace with the limitations of the ten-days period.
As a result, we put ourselves in a position by which we have shown
that we do not want to abuse any of the measures that the lawmakers
established to guarantee state security and to defend it against all threat
as that surround it in modern times, not only in the case of Colombia but in
most democratic countries.
Colombian Penal Code establishes, in Article 275, the following:
“Rejection of habeas corpus.
Any judge who does not process or decide within the legal terms a
petition of habeas corpus or prevents its processing in any way shall
be liable to arrest for six (6) months to two (2) years and loss of
parts of these cases given above are for the charges contained in case No.
7348 relating to the M-19 which was transmitt4d to the government in a
communication on November
3, 1980. The persons to whom
the charges referred were being detained.