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OEA/Ser.L/V/II.53 REPORT
ON THE SITUATION OF HUMAN RIGHTS CHAPTER
VI OTHER
RIGHTS [1]/ A.
General Considerations
1.
The Commission considers it appropriate to refer in this chapter to other
rights recognized in the American Convention on Human Rights, which are also
regulated in Colombia’s internal legal structure.
These rights are included in the Constitution and are further developed
in different laws that make up that regulatory legal structure.
2.
As a result, the Commission considered it appropriate to examine the
situation in Colombia of the freedom of conscience and religion, freedom of
thought and expression, the right of assembly, the freedom of association and
the right to participate in government. B.
Freedom of Conscience and Religion
1.
As stated in Chapter 1 of this report, the Colombian Constitution
regulates all matters relating to religion and relations between the church and
the state. The Colombian state
guarantees the freedom of conscience by stating: “No one shall be molested by
reason of his religious opinions or compelled to profess beliefs or observe
practices contrary to his conscience.” If
further states: “The freedom of all sects that are not contrary to Christian
morality or to the laws is guaranteed. Acts
contrary to Christian morality or subversive of public order that may e
committed on the occasion or under the pretext of worship are subject to the
general law.” [2]/
The Constitution allows acts to be signed between the church and the
state to regulate their mutual relations. The
Vásquez-Palmas Concordat, which went into effect on July 2, 1975, to replace
the Concordat of 1887, regulates, in addition to other matters, those pertaining
to Catholic education, Catholic matrimony, the property of the church and
ecclesiastical privileges.
2.
Furthermore, Colombia’s legal system regulates punishments of those who
violate the freedom of religion and worship.
The penal Code provides that “Whoever through violence forces another
to perform a religious act or prevents him from participating in a ceremony of
the same type, shall be liable to confinement of three (3) to eighteen (18)
months.” It also states,
“Whoever disturbs or prevents the celebration of a religious ceremony or
function of any sect permitted in the nation shall be liable to confinement of
six(6) month to two (2) years,” [3]/
3.
During the on site investigation, the Commission met with public
authorities and high religious figures in Colombia.
In these meetings they examined the situation of freedom of conscience
and religion in that country.
The Commission has not received any formal denunciations pointing to
violations of this right in Colombia. To
the contrary, different types of information suggest that freedom of conscience
and religion in the different walks of national life is fully observed in
Colombia. C.
Freedom of Thought and Expression
1.
The Colombian Constitution legally recognizes freedom of thought and
expression in Article 32: “The press is free in time of peace, but liable,
under the law, for attacks on personal honor, the social order, or the public
tranquility.” It’s second
paragraph states: “No newspaper
publishing enterprise may, without permission of the Government, receive a
subsidy from other governments or from foreign companies.”
Besides this, law No. 51 of December 18, 1973 regulates freedom of
thought and expression, which regulates the exercise of journalism and issues
other provisions. According to this law, journalism in any of its forms is
recognized as a professional activity regulated and protected by the state.
The rules regarding journalism have, in addition to others, the following
objectives: guaranteeing the freedom of information, expression and work
association; defending the profession and establishing systems that give
journalists security and progress in the performance of their work.
Under the terms of this law, professional journalist are those persons
who, after meeting the requirements set in that law, work on a permanent basis
in the intellectual endeavors associated with the writing and designing of news
or graphics information in any social communications media. The professional journalist is not required to reveal his
sources of information or the origin of his news, without prejudice to the
liabilities that he may acquire for his information.
Public officials and especially police authorities are responsible for
guaranteeing free access of journalists and their admission to places of
information in order to carry out their informative work fully, except as
provided in reserved cases covered by the laws. Any violation of this provision is considered grounds for
misconduct punishable by discharge. [4]/
2.
The Security Statute promulgated by means of Legislative Decree no. 1923
of September 6, 1978 contains several provisions relating to freedom of the
press and expression when the public order is disturbed.
This law states: “For as
long as the disturbance of the public order persists, radio broadcasting
stations and television channels may not transmit information, statements, new
releases or commentaries relating to the public order, the halt of activities
because of illegal work stoppages or strikes or news that incites to crime or
makes apology for it,” It adds that the Ministry of Communications, “by
means of resolution with statement of reason, against which only the remedy of
personal review is in order, shall set the penalties for the information that
this article refers to, in accordance with pertinent rules of law 74 of 1966 and
Decree 2085 of 1975.” [5]/
During the Commission’s stay in Colombia, it saw that the freedom of
thought and expression were carried out normally and with full guarantees.
Mass communications organs of different types, the press, the radio and
television, published their news and information as well as editorials without
restrictions on any type. The
Commission also saw that several news organs were publishing information and
editorials openly critical of the Government and that this did not lead to
restrictions on the further practice of this right.
4.
The Commission exchanged ideas with a number of media representatives and
did not hear any complaints or substantial denunciations relating to this area.
The Commission met with the Minister of Communications who explained a
number of matters relating to freedom of thought and expression. A few of these
were how radio and television broadcasts operate and what regulations apply to
them. He stated that because of
technical questions, all television radio, there is no type of prior censure at
all. The Minister of Communications
also mentioned certain sanctions levied against stations that have violated
these rules. One example he gave was Resolution 3741 of 1979, which
suspended Noticiero Todelar de Colombia for two days for violation of
Articles 25 and 51 of the Statute. This
station had aired an interview with guerrillas who said they belong to the M-19
movement. Another was Resolution
0771 of march, 5 1980, which fined Cadena Caracol 5,000 Colombian pesos
for having stated, shortly before certain holidays, that the Government had
suspended talks with the M-19 in connection with the seizure of the Dominican
Embassy. This, in the opinion of
the Minister, besides not being true, had an adverse effect on the negotiations
that were under way. The Minister
of Communications also mentioned regulations on movies and the existence of a
movie classification committee. He
also stated that the opposition political parties had full access to the press
and to radio and television programs.
5.
Another matter associated with the freedom of thought and expression that
deserves to be mentioned here refers to statements of defense attorneys involved
in the oral courts-martial. The
Commission, which has been attending the public stage of these oral
courts-martial has heard the statements and ideas of the defense attorneys, who
have been able to express with full liberty their points of view in the defense
of their clients. They have also
expressed their opinions on different subjects as well as their political and
ideological viewpoints.
D.
Right of Assembly and Freedom of Association
1.
The right of assembly and the freedom of association are legally
recognized in Colombia’s Constitution, as discussed in Chapter I of this
report.
The Constitution states: “Any
number of people may meet or assemble peacefully.
The authorities may disperse any assembly that degenerates into disorder
or riot, or that obstructs the public thoroughfares.” The Constitution ads:
“Permanent political assemblies of the people are prohibited.”
[6]/
2.
As concerns the freedom of association, Article 44 of the Constitution
states: “it is permitted to form
companies, associations, and foundations that are not contrary to morals or to
lawful order. Associations and
foundations may obtain recognition as juridical persons.
In order that they may be under the protection of the laws, religious
associations must present to the civil authority authorization issued by the
respective ecclesiastical superior.”
3.
The rights of assembly and association, as they relate to work and trade
union associations, are guaranteed in the Colombian Labor Code. [7]/
The substantive Labor Code states: “The
Colombian State guarantees the right of association and strike under the terms
set forth by the national Constitution and the laws.”[8]/
Furthermore, by regulating the right to organize, the code provides:
“The State guarantees to employers, workers and to all persons
exercising an independent activity the right to organize freely for the defense
of their interests, by forming professional or trade union associations and to
these, the right to join together or federate among themselves.”
“Trade unions should, in the exercise of this title, and they are
subject to the inspection and supervision of the governments as concerns the
public order and in particular, the cases that set forth herein.” [9]/
4.
During the on-site investigation, the Commission met with representatives
of private enterprise and of employee and worker unions.
It discussed at length different aspects of the rights of assembly and of
association in Colombia.
Among the meetings that the Commission held during the on-site
investigation were meetings with the Unión de Trabajadores de Colombia (UTC),
the Confederación de Trabajadores de Colombia (CTC), the Confederación
Sindical de trabajadores de Colombia (CSTC) and the Confederación general del
Trabajo (CFT). The representatives
of these labor groups, which are part of the National Trade Union Council,
turned several documents over to the Commission and expressed their points of
view to the members. Some of those present mentioned several social and economic
problems such as the high cost of living, which has a particularly hard impact
on workers, and low wages. They
stated that in 1980, the government had called for a wage adjustment of only
26%. They also mentioned that there
is a minimum wage for rural areas and another for the cities. Also, they said that the average family basket of goods for
blue-collar families costs 10,000 Colombian pesos.
They also referred to the state of siege that has been in effect for
several decades.
According to these spokesmen the state of siege has resulted in
repressive measures, especially in rural areas, that have had an impact on the
local people when operations are conducted against guerrilla groups.
They also explained the problems that crop up in attempting to exercise
the freedom of association and to obtain legal personality status for a given
union, owing to obstacles placed in their way by the Ministry of Labor.
They added that following the enforcement of the Security Statute issued
for the purposes of the state of siege, the military has intervened in several
labor disputes and that the police have dispersed groups of workers when they
were on strike.
A preventative of the Confederación Sindical de Trabajadores de Colombia
(CSTC) stated that a national civil work stoppage was being prepared to request
the Government to put an end to the state of siege.
A leader of the Confederación de Trabajadores de Colombia (CTC) stated
that, in his opinion, the Colombian trade union movement is very concerned with
the state of affairs in Colombia but that the government is the product of free
elections and not a de-facto government.
He also said that, to some extent, workers have benefited from the
Government’s policy. This, he
said, does not ignore the fact that there have been some violations of human
rights.
5.
In addition, the commission held conversations with representatives of
the private sector whom later turned over to it a document stating their points
of view on the state of affairs in Colombia.
These representatives also stated that the private sector has played a
leading role in national development, in helping the working class, in
generating employment, in housing and education for the working class.
These representatives also stated their concern with the climate of
violence generated by subversive activities, which have had a negative effect on
social conditions in Colombia. They
added that Colombia is a state of law, a country of laws, in which human conduct
must abide by the rules of the Constitution and legal standards.
They also stated that citizens are free to act as they please up to the
point where their activities cause injury or prejudice to the state or to
individuals or corporate bodies. E.
Right to Participate in Government
1.
The Colombian Constitution guarantees citizens the right to participate
in Government. In the area of
elections, it states, “All male citizens shall elect by direct vote the
municipal counselors, deputies to the departmental assemblies, representatives,
senators and the President of the Republic,” It also states, “Suffrage is exercised as a constitutional function.
Any person who votes for or elects a candidate does not impose any
obligation on the candidate or give any mandate to the official elected. “ [10]/
Moreover, the Constitution prescribes in Article 178:
“Officials of the judicial branch and the subordinate employees
thereof, as well as those of the Public Ministry, may not be active members of
political parties or participate in discussions of electoral nature, in the
exercise of suffrage. Violation of
this conjunction constitutes misconduct, which shall occasion loss of
employment.”
The Colombian Constitution also says that a person must be a citizen in
order to elect and be elected and to hold public employment that includes
authority or jurisdiction.
2.
Law No. 28 of May 16, 1979, adopted the Electoral Code regulating all
matters in this area. This legal
structure provides, “Authority shall protect the exercise of the right of
suffrage, grant full guarantees to citizens in the electoral process and shall
act with impartiality so that no party or political group may derive advantages
over another,” It also says, “The two political parties that have obtained a
majority in the latest elections shall be represented equally, and under equal
conditions, in the electoral organization, without prejudice to the system of
political impartiality and guarantees that are accorded to all citizens.” [11]
/
3.
Furthermore, the Colombian Penal Code states the crimes related to
suffrage, and the penalties for them, and repeats the provisions contained in
the Electoral Code. [12]/
The Penal Code provides as follows for violation of political rights:
“Whoever in the cases specially stipulated as crimes prohibits or prevents the
exercise of political rights by means of violence or deceitful maneuver shall be
liable to confinement of six (6) to eighteen (18) months.
If the person responsible for the act described in the preceding clause
is a public employee, he shall also be liable to loss of employment.” [13]/
4.
The Commission was able to see that Colombia observes fully the right to
participate in Government, in accordance with its legally established precepts.
The system that functions in Colombia is one of preponderant
participation of the two traditional party organizations, the Liberal party and
the Conservative party, although it has other parties that are represented in
the legislature such as the Communist Party.
This does not mean that citizens who do not belong the two principal
parties cannot exercise their political rights freely.
Such persons may start political organizations and participate in public
decisions and in elections at different levels within a system of political
pluralism and democracy based on the rights and guarantees recognized in the
National Constitution.
5.
It should be noted here that persons who object to the two-party system
as well as other political commentators have asserted that democracy in
Colombia’s political system is more formal than real.
They offer as one of their arguments the high percentage of non-voters,
which has reached 50% of those, entitled to vote.
In Contrast to this, those who support the prevailing two-party system
indicate that the high percentage of non-voters includes those for whom voting
is not a possibility for different reasons.
This group would include dead persons whose names are still on voter
registration lists, persons living outside the country or temporarily abroad and
rural citizens who find it difficult to go to the municipal seats or the voting
places or to leave their families alone while they go to vote.
Another cause, they say, for the high rate of non-voting is the apathy
among many city people toward the political process and active involvement in
it. Furthermore, the percentage of non-voter varies according to the circumstances. The percentage is higher in elections for lower officials than for the president in national elections. 6. On the basis of the foregoing, the Commission has observed that these rights are in full effect but it believes that the practice of them could be improved. As a result of the conditions that have gone into effect under the state of siege and the implementation of the Security Statute, the right of assembly and the freedom of association have been somewhat limited, thereby endangering the full exercise of those rights.
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The American Convention
on Human Rights reads as follows in Article 12 of freedom of conscience and
religion: “1.
Everyone has the right to freedom of conscience and of religion.
This right includes freedom to maintain or to change one’s religion
or beliefs, and freedom to profess or disseminate one’s religion or
beliefs, either individually or together with others, in public or in
private. 2. No one shall be
subject to restrictions that might impair his freedom to maintain or change
his religion or beliefs. 3.
Freedom to manifest one’s religion and beliefs may be subject only to the
limitations prescribed by law that are necessary to protect public safety,
order, health, or morals, or the rights or freedoms of others. 4. Parents or guardians, as the case may be, have the right
to provide for the religious and moral education of their children or wards
that is in accord with their own convection’s.”
Article 13 on freedom of thought and expression in that same
Convention provides the following: “1.
Everyone has the right to freedom of though and expression. This right includes freedom to seek, receive, and impart
information and ideas of all kinds, regardless of frontiers, either orally,
in writing, in print, in the form of art, or though any other medium of
one’s choice. 2. The exercise
of the right provided for tin the foregoing paragraph shall not be subject
to prior censorship but shall be subject to the subsequent imposition of
liability, which shall be expressly established by law to the extent
necessary to ensure: a) respect for the rights or reputations of other; or
b) the protection of national security, public order, or public health or
morals. 3.
The right of expression may not be restricted by indirect methods or
means, such as the abuse of government or private controls over newsprint,
radio broadcasting frequencies, or equipment used in the dissemination of
information, or by any other means tending to impede the communication and
circulation of ideas and opinions. 4.
Notwithstanding the provisions of paragraph 2 above, public
entertainment’s may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of childhood
and adolescence. 5. Any
propaganda for war or any advocacy of national, racial or religious hatred
that constitute incitements to lawless violence or to any other similar
illegal action against any person or group of persons on any grounds
including those of race, color, religion, language, or national origin shall
be considered as offenses punishable by law.”
No restrictions may be placed on the exercise of this right other
than those imposed in conformity with the law and necessary in a democratic
society in the interest of national security, public order, or to protect
public health or morals or the rights or freedoms of others.”
Article 16 on freedom of association reads as follows: Everyone has
the right to associate freely for ideological, religious political,
economic, labor, social, cultural, sports or other purposes.
2. The exercise of this right shall be subject only to such
restrictions established by law as may be necessary in a democratic society,
in the interest of national security, public safety or public order, or to
protect public health or morals for the rights and freedoms of others.
3. The provisions of
this article do not bar the imposition of legal restrictions, including even
deprivation of the exercise of the right of association, on members of the
armed forces and the police.” And
finally, Article 23 on the right to participate in government reads:
“1. Every citizen
shall enjoy the following rights and opportunities: a) to take part in the
conduct of public affairs, directly or through freely chosen
representatives; b) to vote and to be elected in genuine periodic elections,
which shall be by universal and equal suffrage and by secret ballot that
guarantees the free expression of the will of the voters; and c) to have
access, under general conditions of equality, to the public service of his
country. 2. The law may regulate the exercise of the rights and
opportunities referred to in the preceding paragraph only on the basis of
age, nationality, residence, language, education, civil and mental capacity,
or sentencing by a competent court in the criminal proceedings.” [2]
Article 53 of the
Constitution. This same article
also states: “The government may conclude agreements with the Holy See,
subject to later approval by the congress to regulate, on the bases of
reciprocal deference and mutual respect, relations between the state and the
Catholic Church.” Article 43
of the Constitution reads as follows: “Priestly
functions are incompatible with holding public office.
Catholic priest may, nevertheless, be employed in the fields of
public education or charity.” [3]
Articles 294 and 295 of
the new Penal Code. In
addition, Article 296 provides for punishment of those who damage or injure
persons or property used in the worship, by stating as follows:
“Whoever damages the objects used in a worship or the symbols of
any legally permitted religion or publicity offends such worship or its
members by reason of their investiture shall be liable to confinement of
three (3) months to one (1) year.” [4]
Article 1,2,11 and 12 of
Law No. 51. This law also sets
the requirements that must be met for the permanent exercise of the
profession of journalist, the establishment of the professional
journalist’s card, the powers of the Ministry of national Education to
grant that card and other aspects related to it, matters relating to boards
of directors of journalist’s organizations of a guild or a trade union
nature, and the establishment of February 9 of each year as Colombian
Journalist’s Day. Furthermore,
Article 10 stipulates the following: “The
social communications media of the public sector, governmental agencies and
public corporations of a community nature, sector, governmental agencies and
public corporations of a community nature, public establishments, industrial
and commercial state enterprises and mixed economy corporations, regardless
of heir denomination, which establish or have informational or news
services, may employ only professional journalists in connection with
strictly journalistic services.” [5]
Article 13 of the
Security Statute. Article 13 of the same statute reads as follows: “The
ministry of Communications is hereby empowered, under the terms of Article 5
of Decree 3418 of 1954m to recover temporality, for the estate, full control
of any and all the broadcasting frequencies or channels used by private
persons whenever necessary to prevent the disturbance of the public order
and to re-establish normality. Permits
to provide broadcasting services withdrawn by the Colombian State shall be
understood to be temporarily suspended.” [6]
Articles 46 and 47 of the
Constitution. [7]
In addition, the new
Colombian Penal Code, Article 292, specifically, regulates the violation of
the rights of assembly and association for labor purposes:
“Whoever impedes or prevents a lawful meeting or the exercise of
the rights that labor laws grant or who takes reprisals for reasons of
legitimate strike, assembly or association shall be liable to confinement
for one (1) to five (5) years and a fine of one to fifty-thousand pesos.” [8]
Article 12 of the
Substantive Labor Code. Article13
of this code reads: “The
provisions of this code contain the minimum rights and guarantees recognized
for workers. Any stipulation affecting or ignoring this minimum shall
produce no effect.” [9]
Article 352, Chapter I,
Title I on Trade Unions, Second Part on the Right to Organize, of the
Substantive Labor Code. The
Code also regulates the protection of the right of association, workers
unions and their classifications, organizations of worker unions, the number
of affiliates, their juridical personality and the functions attributed to
the Ministry of Labor in this area. [10]
Articles 171 and 179 of
the Colombian Constitution. The
Constitution also states in Article 180,
“The law shall regulate all other matters concerning elections and
vote counting, ensuring the independence of both functions; define the
crimes that may impair the honesty and freedom of the suffrage, and
prescribe due penalties. [11]
Articles 5 and 6 of the
Electoral Code. The Electoral
Code regulates all matters in this area.
Title XI regulates crimes against suffrage such as disturbance during
votes, constraint of electors, trading votes, fraudulent votes, promotion of
fraudulent votes, electoral falsehood, delays in turning over documents
relating to a vote, culpable behavior, alteration of electoral results,
multiple personal identification, withholding and improper possession of
identification cards, refusal to register, refusal to sign vote counting
minutes, violation of political rights, obstruction of party activities and
disturbance of political assemblies. [12]
Articles 248 to 258 of
the new Colombian Penal Code. [13] Article 293 of the new Colombian Penal Code. |