CHAPTER III

THE POLITICAL AND LEGAL SYSTEM IN COLOMBIA

         continued...

I.      THE GOVERNMENT'S FAILURE TO ACT UPON THE COMMISSION'S

         RECOMMENDATIONS

         As to the Colombian Government's observance of the obligations it undertook by its commitment to the international system of human rights law, it has to be said that despite the interest it demonstrates in its interactions with the Inter-American Commission on Human Rights, the careful attention it gives to the Commission's requests for information and the spirit of cooperation obvious in its representatives, which the Commission appreciates and is grateful for, it is nevertheless not heeding the recommendations that compensatory damages be paid to the relatives of victims of human rights violations in those cases where the Commission, after concluding its examination of a case processed in accordance with the provisions of the American Convention on Human Rights, has expressly declared that the Government is responsible for the human rights violations.

         The authority of the Commission to make recommendations and monitor for their fulfillment is expressly stipulated in articles 50 and 51 of the American Convention.  It would be absurd for international law to endow the Commission with the authority to make recommendations to states if those states did not have to comply with those recommendations.  Moreover the Convention itself stipulates that in some cases, that refusal to comply with recommendations may be grounds for a decision by the Commission to take a case to the Inter-American Court of Human Rights or to order that the case be published.  Also, under the provisions of the Vienna Convention and the principle of pacta sunt servanda,[14] Colombia is required to comply faithfully with its international human rights commitments.

         To justify its failure to comply, the Government of Colombia has invoked the advisory support of the Council of State, which is not binding, and refuses to comply with the Commission's recommendations by invoking its domestic laws.  That is an obvious  violation of the right of the relatives of the victims to a just compensation and a violation of the Colombian Government's international obligations in this area.

         The Colombian Government demands that those who have filed petitions with the Commission submit their case again to the domestic courts by filing suit against the State with the Council of State--Administrative-Adjudicatory Tribunals--seeking damages.  These arguments disregard the fact that the Commission's recommendations come out of an international process wherein representatives of the victims' next-of-kin, who enjoy the same rights as the Government's representatives enjoy, have persuaded the Commission that the Colombian State is responsible for the facts under investigation and therefore has an obligation to pay them compensatory damages.

         The following is the text of the Council of State's finding in response to the request from the Minister of Foreign Affairs of Colombia.

           Request from the Ministry of Foreign Affairs seeking the Council's opinion on the binding nature of the recommendations that the Inter-American Commission on Human Rights makes to the Colombian State (File No. 461).  The question that the Minister of Foreign Affairs put to the Council is answered as follows:

           Based on Article 237, subparagraph 3 of the Constitution and pursuant to the provisions of Article 98, subparagraph 2 of the Administrative-Adjudicatory Code, the National Government is seeking the Honorable Council's opinion on the issue put to it, with the following observations:

           I. LEGAL BACKGROUND INFORMATION

           1.  The Inter-American Commission was established under Resolution VII of the Fifth Meeting of Ministers of Foreign Affairs of the Organization of American States, held in Santiago, Chile, in 1959.   Until 1970, the Commission operated as an autonomous institution and its work to promote human rights in the Americas consisted mainly of reports on the situation of the fundamental rights in the member countries of the Organization of American States.  The Commission's legal foundation, between the time it was first established and the time the American Convention on Human Rights entered into force, was the American Declaration of the Rights and Duties of Man, approved by a resolution passed at the Bogota Conference in 1948.

           The Commission became one of the principal organs of the Organization of American States when the Protocol of Buenos Aires amending the OAS Charter was signed in 1967 and entered into force on February 27, 1970.  As of then, the Commission ceased to be an autonomous institution.  In effect, Article 111 of the amended Charter states that:  "There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.  An inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters."

           In the effort to strengthen the inter-American human rights system, the American Convention on Human Rights was approved in San Jose, Costa Rica, in 1969, and was incorporated into our own system of laws under Law 16 of 1972.  The Convention entered into force in July 1978, once instrument of ratification no. 11 had been deposited.  This international instrument established two organs charged with protecting human rights;  A.  The Inter-American Commission on Human Rights, and B. The Inter-American Court of Human Rights.

           A.  The first of the two, which is to say the Commission, is obliged to ensure that States comply with the provisions of the Convention.  Article 44 of the Convention gives it the authority to receive complaints alleging human rights violations attributable to States.  Article 44 reads as follows:

           Article 44.  Any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization, may lodge petitions with the Commission containing denunciations or complaints of violations of this Convention by a State Party.

           Thus, the petition is the first step in the international processing of an individual case filed with the Inter-American Commission on Human Rights, once the procedures provided for in Article 44 et seq of the American Convention on Human Rights have been performed.  If the Commission's finding is that the State is not responsible for the acts with which it is charged, the Commission orders the case filed.

           On the other hand, if the Commission believes that the State, through its agents, is responsible for human rights violations in a given case, it is to prepare a report and resolution wherein it makes certain recommendations to the responsible State.  As a rule those recommendations are that the State prosecute the investigations, enforce the appropriate sanctions in the case of its agents who violated the victim's or victims' rights by his/her actions or omissions, and pay pecuniary damages to the victims' next-of-kin.

           B.  The second organ, the Inter-American Court of Human Rights, is a jurisdictional body that hears cases brought by the Inter-American Commission.  In exercise of its authorities, the Court can hand down verdicts against States of the OAS that have expressly accepted its jurisdiction.  Colombia accepted that jurisdiction for events that occurred as of June 21, 1985.

           II            FACTS

           After this brief sketch of the legal background, the Government would like to inform the Council that the Colombian State was found responsible for two disappearances and a homicide reported to the Inter-American Commission on Human Rights.  These reports are, for the present, being kept confidential.  The Commission has postponed their publication to see what measures the Colombian Government adopts.

           In effect, the Commission's finding was that Colombia, because of the actions of its agents, had violated the American Convention on Human Rights in the following three cases:

           1.           Case No. 10,319, concerning Mr. Isidro Caballero.

           2.           Case No. 10,454, concerning Mr. Martín Calderón Jurado

           3.           Case No. 10,581, concerning Mr. Alirio Pedraza Becerra

           The Commission's recommendations appear in reports Nos. 31/91, 32/91 and 33/91, duly authenticated copies of which are being provided to the Council.

           As the three Reports-Resolution show, the Inter-American Commission on Human Rights recommended to the Colombian State that it continue the investigations underway until the sanctions required by law are enforced.  It also recommended that the individuals wronged by the violations in these three cases be compensated.

           III           QUESTIONS

           1.  Concerning the compensations recommended by the Inter-American Commission on Human Rights, are such suggestions binding upon the Colombian State?  2.  What legal bases and mechanisms are there for paying the reparations recommended by the Inter-American Commission on Human Rights?

           The Council considers:

           1.  Law 16 of 1972 ratified the American Convention on Human Rights of San José, Costa Rica, signed on November 22, 1969.  That document established the human rights it protected and organized the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights as the competent bodies to consider matters related to the protection of human rights.

           2.  Articles 34 et seq of the Convention prescribe the composition and functions of the Commission.  Article 50 ibidem provides that the Commission, once the corresponding proceedings have been conducted, must approve a report wherein it is to state the facts and its findings, containing "such proposals and recommendations as it sees fit...." (Article 50) "If, within a period of three months from the date of the transmittal of the report of the Commission to the states concerned, the matter has not either been settled or submitted by the Commission or by the state concerned to the Court and its jurisdiction accepted, the Commission may, by the vote of an absolute majority of its members, set forth its opinion and conclusions concerning the question submitted for its consideration" (Article 51).  In Article 51, paragraph 2, the Convention states that "The Commission shall make pertinent recommendations and shall prescribe a period within which the State is to take the measures that are incumbent upon it to remedy the situation examined."  In paragraph 3 of that same article of the Convention, it states that "When the prescribed period has expired, the Commission shall decide by the vote of an absolute majority of its members whether the state has taken adequate measures and whether to publish its report."

           3.  Article 52 et seq of the same Convention concern the composition and authorities of the Inter-American Court of Human Rights.  Article 61 ibidem provides that only States Parties and the Commission shall have the right to submit a case to the Court, once the procedures with the Commission, prescribed under articles 48 to 50 ibidem, have been exhausted.

           4.  Further, Article 62, paragraph 1, of the Convention stipulates that a State Party may, upon depositing its instrument of ratification or adherence to the Convention or at any time thereafter, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of the Convention.  This declaration, made unilaterally or by way of the Convention, is essential for the Court to exercise jurisdiction over the matter submitted to it for consideration.

           5.  Under Article 63 of the American Convention on Human Rights, if the Court "finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated.  It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party."  Following the same logic, Article 68, paragraph 2, stipulates that "That part of a judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution of judgments against the state."

           6.  After examining the documents accompanying the request for an advisory opinion, the conclusion is that the three reports of the Inter-American Commission on Human Rights found that the Colombian State violated some of those rights; they recommended that "compensatory damages be paid" to the victims' next-of-kin and that the investigations be prosecuted and carried through to completion, until the guilty party is punished; none of those cases was submitted to the Inter-American Court of Human Rights for a ruling.

           7.  Based on Article 51, paragraph 2 of the American Convention on Human Rights, the Council believes that the Colombian State is, in principle, obliged to comply with the recommendations of the Commission in the three cases in question in this request for an advisory opinion "within the framework of [its] domestic laws and constitutional provisions" as stipulated under Article 41.b of the American Convention on Human Rights.  Consequently, it is called upon to take the necessary measures to pursue, expand and complete, as soon as possible, the criminal investigations instituted to ascertain the facts related to the death and disappearance of the individuals referred to in reports No. 33/91 (Case 10,581), 32/91 (Case 10,454) and 31/91 (Case 10,319).

           8.  Concerning the compensatory damages that the Commission recommends in those reports, however, it is the opinion of this Council that such compensatory damages could not be acknowledged administratively; instead they would have to be recognized by means of judgments handed down by competent judicial bodies on suits filed by the aggrieved parties claiming extra-contractual liability or by means of a settlement reached between the State and the interested parties in the course of the legal proceedings.  Moreover, it is the Council's view that if instead of these recommendations from the Commission, the Inter-American Court of Human Rights had handed down judgments ordering that compensatory damages be paid under Article 68, paragraph 2 of the American Convention on Human Rights, those judgments would be binding in Colombia and could be executed in the country "in accordance with domestic procedure governing the execution of judgments against the State."

           Given the foregoing, the Council finds that:

           1.  The recommendations of the Inter-American Commission on Human Rights are, in principle, binding for the Colombian State, inasmuch as the latter signed and ratified, without reservations, the American Convention on Human Rights.

           2.  The recommendations made by the Inter-American Commission on Human Rights must be carried out in accordance with the Constitution and laws of the country.

           3.  In the case in point, the Colombian State must conduct, expand, and complete the criminal investigations into the three cases of human rights violations in question.  But, under Colombian law, the compensatory damages that the Commission is recommending could only be ordered in judgments handed down by competent judicial bodies in  actions brought by the interested parties or in settlements reached between the State and the interested parties as part of the same legal process.

           Let notification be made to the Minister of Foreign Affairs and the Legal Secretary of the Office of the President of the Republic.  JAIME BETANCUR CUARTAS, Chairman of the Council, JAVIER HENAO HIDRON, HUMBERTO MORA OSEJO, JAIME PAREDES TAMAYO, ELIZABETH CASTRO R. Secretary.

         The Special Commission that made the on-site visits mentioned in this report discussed this matter with government and legislative authorities, who told the Commission that they were willing to correct any internal shortcomings that might in any way obstruct fulfillment of the Commission's resolutions.

         The Commission conveyed to the representatives of the Colombian Government its concern over the situation, particularly in view of the following:

         1.         Despite the amount of time that has passed, thus far no compensatory damages settlement has been reached and the Colombian Government does not appear to have taken any step to adapt its domestic laws to the provisions of the American Convention, as required under Article 2 thereof if it believes that there really is some incompatibility.

         2.         If the Colombian Government disagrees with any of the proposals or recommendations contained in a given report issued by the Commission on a case processed in accordance with the American Convention, then the Convention gives the Government the means to express its disagreement by referring the case in question, as is its right, to the Inter-American Court of Human Rights for a decision.  The Government has not done this, but simply has failed to comply with the Commission's recommendations.

         3.         The Colombian Government cannot require the victims' next-of-kin, who have resorted to an international forum precisely because they were unable to obtain any satisfaction through their own domestic procedures, to go now to the administrative-adjudicatory courts to seek compensatory damages.  Moreover, it is a matter of record that this is a difficult and extremely bureaucratic procedure, that the evidentiary demands are great and that the entire proceeding can last anywhere from four to five years.  All this means that it is not readily accessible; in fact, considering how many victims of human rights violations there are in Colombia relatively few take their cases to these administrative-adjudicatory courts, even though the latter are serious and proper in conducting their proceedings on such cases.

         4.         In addition to these considerations, there is also a time factor, as an action seeking compensatory damages must be filed within two years of the violation.  Since before accepting a case the Commission requires that reasonable steps be taken to exhaust the remedies under domestic law and its decisions generally do not come until after the two-year statute of limitation has expired, the victims' next-of-kin can hardly be required to turn to the administrative-adjudicatory courts once the procedure with the Commission has been completed, since by that time the statute of limitations for filing the action would have expired and the action would, therefore, be extemporaneous and inadmissible on that basis.

         The obligation to pay compensatory damages when a government has violated an international obligation is not a debatable principle.  In the Velásquez Rodríguez case, the Inter-American Court of Human Rights stated the following:  "...the obligation to indemnify is not derived from internal law, but from violation of the American Convention.  It is the result of an international obligation."  The Court also cites the following jurisprudence of the International Court of Justice at The Hague:

         It is the principle of international law that jurisprudence has considered "even a general concept of law," that every violation of an international obligation which results in harm creates a duty to make adequate reparation.  Compensation, on the other hand, is the most usual way of doing so (Factory at Chorzow, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A., No. 9, page 21, and Factory at Chorzow, merits, Judgment No. 13, 1928, P.C.I.J., Series A No. 17, page 29;  Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, page 184).

         J. ARGUMENTS MADE BY THE GOVERNMENT'S REPRESENTATIVE IN

                  DEFENSE OF THE DECREES ISSUED DURING THE STATE OF

                  EMERGENCY

         As mentioned earlier, when the state of internal disturbance was decreed in November 1992, the Colombian Government issued several decrees laws, which are discussed under section F of this chapter.  What follows is the report of the Office of the Presidential Advisor for the Defense, Protection and Promotion of Human Rights, expressing its observations on this subject:

         The decrees issued upon the declaration of internal disturbance that the Colombian Government ordered on November 8 last in large part concern administrative matters intended to prevent public monies from being siphoned off for the guerrilla movement, to maintain control over the resources that come from the budget (1835) and to establish the obligations and penalties for government contractors (1875).  One of those decree laws (1811) stipulates the administrative penalty for regional and local public servants who fail to observe presidential orders in the area of public law and order (1811).  Other decree laws concern the mechanisms provided and created to protect officers of the court (1873), to establish a salary system for and provision the Armed Forces (2094) and to pay compensatory damages for terrorist acts that disrupt transportation (2006).  INCORA is authorized to order that uncultivated properties in petroleum and mining areas be set aside.

         In the legal field, procedures are established for the attachment and forfeiture of property used to commit drug- and terrorism-related crimes (1874); mechanisms are instituted to allow prosecutors to offer benefits to individuals if they cooperate with the justice system (1833); a witness and victim protection program is created (1834); regional judges are given jurisdiction over cases involving the theft of petroleum (05), and municipal criminal judges are permitted to institute proceedings in cases that are the jurisdiction of regional judges (1941).

         Through decree 08, gun control was strengthened and authorization was given to suspend valid safe-conducts.  The most recent decree, 007, requires that citizens identify their portable telecommunication systems to prevent them from being used by criminal groups.

         Changes were instituted in the system for promoting police officers.  Another change introduced into the police system that is very relevant to the human rights issue:  so long as it remains in effect, members of the police can be retired, regardless of their length of service and without the State having to institute the disciplinary proceedings currently required to prove misconduct.  None of these decree laws seems to raise questions about the possibility of human rights violations or violations of the Government's international commitments in this area.

         There have been, however, criticisms of two other decrees.  One of them concerns freedom of the press and freedom of information.  In effect, Decree 1812 makes it unlawful for the radio or audiovisual media to transmit interviews with or communiques from guerrillas or drug traffickers.  They may, however, report those interviews and communiques.  Reporting the information after the fact is in no way restricted.  Journalists are subject to one restriction, which is that they may not identify witnesses to terrorist, subversive and drug-related incidents.  The prohibitions that this decree establishes are already routine in many countries.  Given the magnitude of the disruption of public law and order in Colombia, these measures constitute very slight restrictions of the freedom of expression recognized in the Constitution and therefore are consistent with Colombia's international obligations.

         The other decree (1810) orders that criminal investigating police units be established in the public forces, "supervised and coordinated by and answerable to the Prosecutor General of the Nation".  These units may only discharge the formalities that the Criminal Investigating Police perform in cases of terrorism, drug trafficking or subversion that are the competence of regional judges and only when there is no other criminal investigating police authority on the scene.  The decree in no way authorizes the military forces to conduct criminal investigations into civilians or to file indictments against them in criminal proceedings, contrary to what certain documents from nongovernmental organizations have claimed.  The Constitution allows the criminal investigative police functions to be assigned to the military forces, provided this is done under the supervision and control of the Prosecutor's Office.

         Under the Constitution, a state of internal disturbance lasts 90 days.  The Government may extend that period one time only on its own initiative; if it wishes to extend it a second time, it must have the Senate's prior consent.  Any decrees issued are examined by the Supreme Court to ensure that they are constitutional and will be lifted once the state of emergency is over, unless Congress independently decides to incorporate them into laws enacted according to normal constitutional procedure.

         When one considers the enormity of the challenge that the guerrilla movement and drug-trafficking pose for the country, its resources, its ability to act and to destroy the enemy, the decisions taken in the state of emergency seem in no way excessive.  The provisions of the present Constitution are such that such states of emergency cannot be allowed to seriously alter the legal system, as was possible under the earlier constitution.  During states of emergency, the Government cannot try civilians in courts martial, for example, or alter the structure of the judiciary, remove judges or restrict the authority and functions of Congress.  Nor can it suspend the fundamental rights and freedoms, particularly those expressly included in the covenants on civil and political rights, or the mechanisms for their protection; there are very strict time limitations and proportionality considerations that the Constitutional Court and the Congress monitor.  States of emergency usually suggest a drastic restriction of individual rights; in Colombia, however, those rights have not been seriously altered by the state of emergency.  The most significant change has been in the Government's capacity to employ various administrative rules to cope with the challenges with which existing democratic institutions must now contend.

         K. RECENT LEGISLATION ENACTED PURSUANT TO THE CONSTITUTION

         Subsequent to approval of this report, the Colombian Government reported that there have been legislative developments in the last two years to implement and regulate the 1991 Constitution.  Three of the five statutes provided for in Article 152 of the Constitution have been enacted.  The new Statutes approved are as follows:

         The Political Party Statute defines the area in which such groups can operate and makes it incumbent upon them to organize and operate in accordance with their own respective bylaws, which must be approved by the National Electoral Congress; the statute authorizes them to choose their representatives and officials and sets a single date for holding those elections; it also provides that election campaigns are to be financed by the State, eliminating the requirements that political parties heretofore had to satisfy in order to receive any appropriation.  The latter were increased to be proportional to the number of votes obtained.  Moreover, to strengthen party ethics and improve the moral conduct of party leaders and members, the following have been established:  a) ethics tribunals to monitor the conduct of public servants who, representing the party, hold positions in government; b) a supervisor to ensure that the elected officials discharge their duties; and c) public reports that must be regularly presented to the National Electoral Council.[15]

         The Political Participation Statute elaborates upon the constitutional principle of participatory democracy to make the citizen part of the political decision-making process; it establishes rules to govern popular initiatives for proposing enactment of new laws and makes it possible for the people to overturn laws, thereby making the public a partner in the legislative process.  It gives the public the opportunity to censure their elected officials both by the ballot and by revoking the term of governors and mayors.  It also creates the possibility of holding referenda, enabling the President to consult the public on issues of importance that heretofore only Congress could decide.

         The State of Emergency Statute establishes mechanisms to rationalize the exercise and control of power by the executive branch during a state of emergency, while authorizing police measures to restore peace when disrupted, provided the measures taken are a measured and relevant response to protect the intangible fundamental rights and freedoms of persons.  It prohibits any restriction of the exercise of those mechanisms created to protect and defend those rights and freedoms in concrete cases, such as habeas corpus and tutela.  It also provides that the Government may restrict freedom of movement and residence and the freedom to circulate information that could have a direct impact on disturbing the public order, but without thereby infringing upon freedom of information; it will also have punitive power to criminalize behaviors, increase or reduce penalties and in general amend provisions of the penal code and police code.  The Statute also elaborates upon the system of political and judicial checks that will be exercised during states of emergency.  The political check is in the hands of Congress, which will be able to amend and/or overturn decisions adopted by the Executive Branch and to impeach the chief executive for any abuse that may have been committed when the emergency measures were decreed.  The judicial check is exercised by the Constitutional Court, which will automatically and immediately examine each and every measure once the decreed emergency measures take effect.  This Statute still has to be reviewed by the Constitutional Court to determine whether it is compatible with the Constitution.

         The Statute of the Public Defender's Office governs an institution designed to help the average citizen assert his individual rights vis-à-vis the Government.

         The National Police Reform Law, approved in the first half of 1993, emphasizes the preventive and civic role of the Police in civilian society, specifies the most effective links with civilian society, creates a national citizen participation system and gives the citizenry a role in protecting human life through essentially preventive means.  Its bylaws describe police work as a profession requiring an academic education that emphasizes ethics, values and respect for human rights.  It establishes three types of police:  urban, rural and special police corps.  As a control mechanism, the law calls for a Civilian High Commissioner who will inspect and oversee the police to ensure efficiency and morality.

         The bill criminalizing the enforced disappearance of persons, passed by the Senate in the first 1992 legislative session and now in this year's second legislative session.  The bill establishes severe penalties for the crime of enforced disappearance, penalties that become even more severe when certain aggravating circumstances are present; the bill also provides for significant advantages that can be offered to the perpetrators of crimes in exchange for their cooperation in ascertaining the facts.

         L.  FINAL OBSERVATIONS

         Although the Commission still has its reservations about and objections to the decrees issued under the state of emergency, it nevertheless believes that they are still too recent and that their interpretation and enforcement will have to be watched.  Therefore, the Commission is not yet in a position to either refute or contradict the sense and scope that the Office of the Presidential Adviser for Human Rights attributes to them and will remain alert, watching to see how these decrees are applied and enforced as events unfold.