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CHAPTER V
RIGHT TO PERSONAL LIBERTY
Transcribed below are the international provisions of the
American Convention on Human Rights and the provisions of the 1991
Constitution of Colombia that protect and defend these fundamental
rights and punish their violation:
A. LEGAL
PROVISIONS IN RESPECT OF THIS RIGHT
B. PETITIONS
THAT CONCERN THIS RIGHT
The right to personal liberty was discussed at length in the
Commission's 1981 report because of the many petitions that had been
received alleging violations of this right.
At present, politically or presumably politically motivated
arbitrary arrests have become selective rather than massive; in many
cases, such arrests precede the persons' enforced disappearance.
According to the information supplied to the IACHR, arbitrary
arrest is a violation that affects all Colombian society.
The right to personal liberty has been reinforced by the new
provisions of the 1991 Constitution and with abrogation of certain
provisions in the previous constitution.
Under article 28 of the old constitution, even in times of peace
if there were serious grounds to fear disruption of public order, the
Government, after consulting the ministers, could order, at its
discretion, the arrest of individuals when there was serious evidence
that they had violated the public peace.
The Commission's last report on Colombia discussed the problems
caused and the abuses committed with enforcement of this article of the
constitution.
The Special Commission had an opportunity to hear firsthand from
nongovernmental human rights organizations and representatives of other
university, professional and religious institutions, how very selective
the arrest warrants carried out by the police and army are, most of
which are to arrest individuals associated, either directly or
indirectly, with the subversive movement, trade union members suspected
of acting as tools to disrupt social order in coordination with
subversive movements, and the friends, relatives and associates of these
persons, or human rights leaders and activists, who are automatically
regarded as subversive collaborators because of the work they do to
protect and defend human rights. In
areas where the violence is greatest, such as Medellin and
Barrancabermeja, the Commission was repeatedly told, quite plainly, that
those who had nothing to fear, feared nothing; this underscored the
eminently selective nature of the arrests and the fact that anyone who
was in no way associated with the guerrilla warfare or counter-guerrilla
warfare or who was not suspected of such associations, did not have to
worry about arbitrary arrest, except if some mistake were made.
The same sources, however, said that everyone was afraid of
falling victim to some violation of the right to life, either when a
bomb exploded or a weapon was fired.
As examples of violations of the right to personal liberty, the
Commission will cite one where, as with so many other cases, the
Government of Colombia was either directly or indirectly responsible.
The case is No. 10,235 and concerned a series of events that
occurred in 1981 and 1982 when high-ranking DIPEC officials like Col.
Nacin Yanine Díaz--chief of that agency--and other agency officials
carried out a series of operations to arrest a group of young men who
belonged to a subversive organization.
To obtain funds for their guerrilla activities, these young men
reportedly kidnapped three children of a wealthy Colombian businessman
associated with drug trafficking; when they were not paid the ransom
that they demanded, they murdered the three children.
What follows is an account of the facts and the decisions adopted
by the Commission after exhausting the procedures established in the
American Convention:
C. CASES INVESTIGATED
BY THE COMMISSION
Case 10,235: Orlando
García Villamizar and others
On October 6, 1981, a car was stopped at the third bridge
on a highway north from Bogota. Inside
the car were Zuleika Adied Alvarez Rojas, and Yadid and Yoluk Alvarez
Murillo, who were on their way to school.
The car and the children inside were intercepted by four people,
one of whom was wearing the uniform of a traffic policeman; the other
three claimed to be members of the F-2.
The abduction of the children climaxed in late May and early June
1982, when the Alvarez children were killed by their abductors in the
hamlets of Murcas and Patio Bonito, in the jurisdiction of the
municipality of Gachalá (Cundinamarca).
On September 18, 1982, F-2 agents with the National Police Force
discovered their bodies in cloth sacks.
The investigation into the kidnapping was conducted by staff of
DIPEC under the command of then Col. Nacin Yanine Díaz.
They arrested a number of people whom they suspected might
somehow be implicated in the kidnapping and murder of the children.
Between March 4 and September 13, 1982, as part of the operations
conducted by the F-2, 13 people were either arrested or disappeared; two
of them were eventually murdered. The
sequence of events was as follows:
On March 4, 1982, as part of these investigations, two
young men, Pedro Pablo Silva and Orlando García Villamizar, were
arrested near the Universidad Nacional where the two were studying.
Various witnesses watched as they were forced into a green panel
truck, license plates HL 6794.
On March 8, 1982, two brothers, Samuel Humberto and
Alfredo Rafael San Juan Arévalo, were arrested under similar
circumstances. They, too, were university students.
On August 18 of that year, Edgar Helmut García, the
brother of Orlando García, left his home for an appointment with
Rodolfo Espitia, who was a neighbor, and with another mutual friend.
Edgar Helmut took the opportunity to take his four-year old
nephew, Camilo Andrés, for a walk.
The child was the son of Orlando García who had disappeared.
Edgar and Rodolfo never showed up for the appointment with their
friend. The boy, Camilo
Andrés, was delivered to the XV Police Station by Major Alipio Vanegas
Torres, DIPEC's Chief of Counterintelligence.
On August 23, 1982, Gustavo Campos Guevara, also a student
at the Universidad Nacional, was the victim of an enforced
disappearance. The young
man left his home for the university and never returned.
As to his whereabouts, his family received one phone call from
him, made from some military facility.
On September 11, 1982, Hernando Ospina Rincón was taken
by individuals in civilian dress who identified themselves as members of
the F-2. They appeared at
his mechanics shop in the "Las Ferias" neighborhood of Bogota,
in a wine-colored Mercedes Benz, license plates FC-9405.
They asked for the owner of the shop and when Hernando identified
himself as the proprietor, they shoved him into a coffee-creme colored
panel truck, with the identifying numbers 459.
On September 12, 1981, one day later, another student,
Rafael Guillermo Prado Useche, a friend of Pedro Silva and the García
brothers, was arrested. At
the time of his arrest, Rafael Guillermo was on his way to the shop of
Hernando Ospina, where he had his car for repairs.
The mother and sister of the young Prado Useche say that he was
pushed violently into a wine-colored Mercedes Benz, license plate
FC-9405, the same vehicle used by the abductors of Hernando Ospina Rincón
the day before.
On September 13, 1982, Edilbrando Joya and Francisco
Antonio Medina were taken. The
former was a student at the Universidad Nacional and a friend of Edgar
García. He was apprehended near his house in Bogota, by individuals
in a red camper. Two days
later, he was seen in the municipality of Gachalá, heavily guarded by
F-2 personnel. Francisco
Antonio Medina left his home on the morning of September 13 and never
returned. His brother Arnulfo was taken that same day by F-2 personnel.
Arnulfo's captors forced him to confess to his part in a
kidnapping, telling him that they had already killed Francisco.
On the night of September 13, Francisco Antonio Medina was found
dead in a supposed anti-kidnapping operation in the town of Anolaima.
On September 15, 1982, in an F-2 operation in the
municipality of Gachalá where Edgar García Villamizar and Edilbrando
Joya had been seen, the intelligence corps apprehended the brothers
Bernardo Helí and Manuel Darío Acosta Rojas.
When Bernardo was arrested, his brother Manuel Darío, who was
deaf, rushed at the F-2 agents who were beating up his brother, which is
why he, too, was taken. There
has been no further news of him. Bernardo
Helí was found dead on October 7, 1982, supposedly "shot
down" in a police operation conducted by those same F-2 agents.
These arrests were made in two stages:
four occurred in March 1982, and the others were made between
August and September. This
would appear to indicate that the purpose of the first arrests was to
ascertain the whereabouts of the children of Jader Alvarez; the other
arrests, which took place after the children's dead bodies were
discovered, were for revenge.
The victims of the abductions in question were as follows:
1.
Orlando García Villamizar, March 4, 1992;
2.
Pedro Pablo Silva Bejarano, March 4, 1982;
3.
Alfredo Rafael San Juan A., March 8, 1982;
4.
Samuel Humberto San Juan A., March 8, 1982;
5.
Rodolfo Espitia Rodríguez, August 18, 1982;
6.
Edgar Helmut García Villamizar, August 18, 1982;
7.
Gustavo Campos Guevara, August 23, 1982;
8.
Hernando Ospina Rincón, September 11, 1982
9.
Rafael Guillermo Prado J., September 12, 1982;
10. Edilbrando Joya Gómez,
September 13, 1982;
11. Francisco Antonio
Medina, September 13, 1982;
12. Bernardo Helí
Acosta Rojas, September 15, 1982;
13. Manuel Darío
Acosta Rojas, September 15, 1982.
Of the individuals named above, the following were defendants in
the trial conducted by the 10th Superior Court of Bogota for the
kidnaping and murder of the Alvarez children:
Pedro Pablo Silva, Edgar Helmut, Orlando García Villamizar and
Rafael Guillermo Prado Useche. Pedro
Pablo and Edgar Helmut were convicted of the crime, subsequent to their
disappearance. Orlando García
and Guillermo Prado were cleared of all charges.
The others who had disappeared and been murdered, were not named
in the proceedings.
Processing of this case began on September 28, 1988, when the
Commission forwarded to the Government the pertinent parts of the
petition and requested any relevant information on the case.
The case was published in the annual Report of the Inter-American
Commission on Human Rights for 1991, OEA/Ser.L/V/II.81, doc.6 rev. 1,
February 14, 1992, Original: Spanish.
Once the processing of the case was completed, it was submitted
to the Commission at its 80th session, which resolved the following:
To declare that under the terms of Article 1.1 of the American
Convention on Human Rights, the Government of Colombia has violated
articles 4 (right to life), 5 (right to humane treatment), 7 (right to
personal liberty), and 25 (right to equal protection of the law) of that
Convention of which Colombia is a State Party, in the abduction and
subsequent disappearance of the following persons:
Orlando García Villamizar; Pedro Pablo Silva Bejarano; Rodolfo
Espitia Rodríguez; Edgar Helmut Garcia Villamizar; Gustavo Campos
Guevara; Hernando Ospina Rincón; Rafael Guillermo Prado J.; Edilbrando
Joya Gómez; Francisco Antonio Medina; Bernardo Heli Acosta Rojas, and
Manuel Dario Acosta Rojas.
That Colombia must pay compensation to the victims' next of kin.
To recommend to the Government of Colombia that pursuant to the
recommendations made by the fact-finding committees of the Office of the
Attorney General and of the Attorney Delegate for Human Rights, it order
that a thorough and impartial investigation of the facts denounced be
reopened and that in view of the charges made by both those bodies and
to avoid censurable acts that strike at the very grave but never
disproved charges against the officers whose case was dismissed, it
order that the case be reviewed taking into consideration the principle
whereby res judicata does not exist when there has been serious
judicial error.
To request that the Government of Colombia guarantee the safety
of the witnesses to the events, who have risked their lives to provide
their invaluable corporation in the efforts to ascertain the facts, and
that it give them the protection they require.
To include this Report in the next Annual Report to the General
Assembly of the Organization of American States.
Case 9477: Patricia
Rivera
On November 28, 1984, the Inter-American Commission on Human
Rights received a petition dated November 22, 1984, which was forwarded
to the Colombian Government on December 5, 1984.
The text of the petition, which was supplemented by information
supplied by the parties, recounted the following facts:
At approximately 3:00 p.m. on December 10, 1982, in the city of
Bogota, in the presence of a number of witnesses, PATRICIA RIVERA, her
small daughters ELIANA and KATHERINE BERNAL RIVERA, ages 9 and 4,
respectively, were seized on the street, despite their protests, their
fierce resistance and their desperate cries for help.
Also seized was an elderly gentleman, MARCO ANTONIO CRESPO, who
had intervened to try to help. Mrs.
Rivera and her daughters were in the vicinity of their residence when
they were stopped by persons who identified themselves as belonging to a
State security agency. Mr.
Crespo, 74, tried to prevent the arbitrary arrest, but in the process
became another victim. Neighborhood
eyewitnesses to the abduction were Carlos Alfonso Olave Uribe, Ana
Tulia Angel Angel, María Beatriz Roa, Crispin Rios Alvarez and Irma
Mahecha de Montoya, who identified the abductors as detectives Alfonso
Suarez Jaime, Campo Elias Tirado Amado and Jorge Luis Barrero or
Borrero, members of the Administrative Security Department, DAS.
From the eyewitnesses' statements and the verbal descriptions
that some of them provided, the identities of the officers who had
participated in the abduction was established.
Later, it was also shown that at the time of the disappearance,
the yellow taxi, license plates SD-1485, which the witnesses had seen as
the captives were forced inside, belonged to the Military Institutes
Brigade, today the XIII Army Brigade, headquartered in Bogota.
It was also clarified that Patricia was taken because state
security agencies had mistakenly linked her with the kidnapping, some
months earlier, of a well-known woman in Bogota society.
This complaint was forwarded to the Government of Colombia on
December 5, 1984, and with that the statutory processing of this case
began.
The information supplied by the Government of Colombia reported
that the investigation into the facts denounced was instituted in
Bogota's 81st Criminal Examining Court, which had implicated Alberto
Alfonso Suárez Jaime, Campo Elías Tirado Amado, Armando Rodríguez
Ossa and Jorge Luis Barrero or Borrero, in service with the DAS at the
time these events occurred. The
first three made unsworn statements before the 81st Criminal Examining
Court of Bogota, while Jorge Luis Barrero or Borrero was declared
defendant in absentia, since he was not captured even though that
court had issued a warrant for his arrest.
In a similar inquiry into the disappearance of Miguel Angel Díaz
and Faustino López Guerra, Barrero or Borrero had been convicted and
sentenced to 5 years imprisonment by the First Circuit Court of Tunja
(Colombia), a sentence he served at El Barne prison in Tunja.
The investigation into the disappearance of Patricia Rivera, her
young daughters and Mr. Crespo is in the 103rd Criminal Examining Court
and although almost ten years have passed since the crime was committed,
no ruling has been handed down on the merits.
The facts denounced were witnessed by many people, many of whom
either lived or worked in the neighborhood and therefore saw the
abductors firsthand. They
even tried to help Patricia Rivera and Mr. Crespo.
The following were among the witnesses who cooperated:
CARLOS ALFONSO OLAVE URIBE knew Patricia personally because he
had worked with her at Seguros Tequendama.
The abduction took place at the street entrance to his tobacco
shop so that he had a direct view of the abductors.
Because their faces were not covered he was able to identify
them. These individuals
identified themselves to Patricia Rivera and to witness Olave as members
of the F-2, and showed their Police credentials and a written arrest
warrant for Patricia Rivera. They
took her into custody on December 10, 1982, took her out of the tobacco
shop and forced her and her small daughters into a yellow and black car.
They refused to allow her to phone her family.
ANA TULIA ANGEL ANGEL, Mr. Olave Uribe's life-long companion and
colleague, also witnessed the arrest of Patricia Rivera with her
daughters and Mr. Marco Antonio Crespo; she was in the tobacco shop at
the time and identified the individuals as F-2 agents.
MARIA BEATRIZ ROA DAZA, the cashier at La Milanesa Bakery, also
located adjacent to the scene of these events, was an eyewitness as the
elderly Mr. Marco Antonio Crespo, long a regular customer, entered the
bakery to get help. He told
her to stop eating because the F-2 was following him.
She saw the young man face to face, who took out a radio
transmitter and a card identifying him as an F-2 agent.
She saw him take Mr. Crespo to the place where the other men were
standing with Patricia and her small daughters and witnessed as they
were all taken into custody and forced into a yellow and black cab.
CRISPIN RIOS ALVAREZ, the baker at La Milanesa Bakery, was, like
María Beatriz Roa, working when he witnessed the victims being taken
into custody. He also saw
that Mr. Crespo was not allowed to telephone his family.
He got a direct look at the faces of the abductors.
IRMA MAHECHA DE MONTOYA, a neighbor, was cleaning the windows of
her house, meters away from where the events occurred.
She witnessed everything and recalled it in vivid detail. She also saw the black and yellow cab into which Patricia
Rivera, her daughters and Mr. Crespo were forced.
Based on the statements received and on the verbal descriptions
of Carlos Olave, Crispín Ríos and Beatriz Roa, the 81st Criminal
Examining Court arraigned ALBERTO ALFONSO SUAREZ JAIME, CAMPO ELIAS
TIRADO AMADO and JORGE LUIS BARRERO or BORRERO.
The first two made unsworn statements while the third was
declared defendant in absentia.
The testimony of the witnesses was corroborated by the statements
made by officers Suárez Jaime and Tirado Amado, active members of the
DAS at the time of the events.
The processing of case 9477 continued over a lengthy period,
during which the petitioners and the Government of Colombia had an
opportunity to make their respective allegations.
The Commission took into account the fact that as the case
unfolded, it was established that members of Colombia's intelligence
service had participated in the events in which Patricia Rivera, Gilma
Eliana and Katherine Bernal Rivera and Marco Antonio Crespo were taken
into custody and subsequently disappeared; that the responsible parties,
nevertheless, had never been sanctioned; that the Government of Colombia
did not deny the facts but continued to insist that the remedies under
domestic law had not been exhausted even though the case had been under
investigation for more than 10 years, an argument to which no serious
consideration could be given because of the unwarranted delay; and the
fact that in resolutions AG/RES. 666 (XIII-0/83) and AG/RES. 742
(XIV-0/84) the General Assembly of the Organization of American States
declared that "the practice of the forced disappearance of persons
in the Americas is an affront to the conscience of the hemisphere and
constitutes a crime against humanity."
At its 82nd session, the Inter-American Commission on Human
Rights considered this case of arbitrary arrest that became the typical
case of enforced disappearance, and in exercise of its authorities,
found that:
The Government of Colombia has failed to comply with its
obligation to respect and guarantee articles 4 (right to life), 5 (right
to humane treatment), 7 (right to personal liberty) and 25 (right to
judicial protection) in relation to Article 1.1, upheld in the American
Convention on Human Rights, of which Colombia is a State party, in the
abduction and subsequent disappearance of Patricia Rivera, Gilma Eliana
and Katherine Bernal Rivera and Marco Antonio Crespo.
To recommend to the State of Colombia that it pay compensatory
damages to the victims' next-of-kin; that it continue and expand the
investigation into the facts denounced and punish those responsible; and
that it guarantee the safety and give the necessary protection to the
eyewitnesses to the events.
D. KIDNAPPING
IN COLOMBIA
For many years now, kidnappings in Colombia where men, women,
children and the elderly are seized in order to demand ransom from their
families, have arbitrarily violated their right to personal liberty. According to statistics supplied by Colombia's National
Police, the number of kidnappings wherein ransom was demanded went from
44 in 1980 to 781 in 1989, 1282 in 1990 and 1550 in 1991.
Of these, approximately half have been the work of rebel groups
while the other half have been the work of organized crime and
profit-motivated. In
effect, according to those sources, the guerrilla movement was allegedly
responsible for 16 kidnappings in 1980, 401 in 1989, 599 in 1990 and 802
in 1991, while common criminals abducted 28, 380, 683, and 748 people in
those same years. The
National Police estimate that in 75% of the cases, the victim is
released once the abductors have been paid a ransom; that in 14% the
victims die (some are murdered by their abductors when no deal is
struck; others die in captivity from health problems, while still others
are killed in rescue attempts); 11% are rescued by the authorities.
The alarming increase in this vile and inhuman crime in Colombia
is due to the following: 1)
guerrilla organizations are now making widespread use of kidnapping to
bankroll their activities or for the propaganda effect; 2) a relatively
powerful criminal machinery is developing in Colombian society organized
for the very purpose of abducting people for ransom.
A fairly sophisticated set-up is needed to pull off a kidnapping
and to be able to establish the potential victim's patterns, hold him in
one place and negotiate the ransom.
All this presupposes an initial investment.
There are gangs of kidnappers who break up after a number of
abductions; there are others that specialize in kidnapping and remain in
operation longer.
Kidnapping is a very serious problem in Colombian society and has
become quite sophisticated in terms of the criminal means used to
perpetrate it. The
reactions have been very violent; understandably there are those who
demand harsher penalties for such criminal behavior.
On the other hand, State anti-kidnapping mechanisms have been
devised consisting of members of security agencies.
On October 22, 1990, the National Security Council created UNASE
(Special Anti-extortion and Kidnapping Unit), composed of members of the
National Police, the Army and the DAS.
It went into operation on November 1, 1990; its purpose is to
secure the freedom of kidnapping victims.
The thinking was that strengthening the security apparatus and
making the penalties for these crimes tougher would help stop
kidnapping.
While it is the Colombian State's obligation to protect citizens
from behaviors such as kidnapping, it is also important to maintain
proper control of the strategy adopted, since these anti-kidnapping
apparatuses could lead to serious human rights violations, as
demonstrated in the case known as "collective case" No.10,235,
involving the enforced disappearance of the alleged kidnappers,
mentioned earlier, or the rescue of Diana Turbay. In the Turbay case, several officers of the National Police
were disciplined by the Office of the Attorney General in January 1992
because of excesses committed in the operation wherein the kidnap victim
was killed.[1]
In the short time it has been in operation, UNASE has already
been accused of human rights violations.
Two examples are as follows:
on September 11, 1991, three young students from Antioquia
(Franklin Peláez, Camilo Alberto Cervantes, Luis Guillermo Agudelo)
were found dead at kilometer 15 of the Santa Helena departmental road.
Their bodies showed signs of torture.
Some days earlier, these young men had been detained by ten men
travelling about in two Mitsubishi jeeps.
Apparently they belonged to UNASE.
The Office of the Regional Prosecutor of Antioquia, therefore,
was investigating that unit. Also,
on April 14, 1992, two members of "A Luchar" (Elgilio Mejía
and Egides Povedas), were found murdered at the site known as Punto
Gallina in Plato (Magdalena). The two had been detained by members of UNASE.
Because these agencies are not subject to any type of control,
some of their members end up being accused of human rights violations,
engaging in the very activities they are supposed to combat.
An example is the case of UNASE's Second Lt. Luis Jaramillo
Bedoya, who was detained in early April 1992 on charges of having
participated, along with other members of that specialized corps, in the
abduction of a citizen.[2]
In August 1992, with the backing of a million signatures, a bill
was submitted to Congress to combat kidnapping, a crime that, it is
said, has become an industry in Colombia.
The bill is the product of a study conducted by the "Fundación
País Libre", created in 1992 after the release of journalist
Francisco Santos, who was held by drug traffickers.
Under the bill, which is an effort to arm the State with the
legal means to wipe out kidnapping, the present penalty of sixteen
years' imprisonment would be increased to sixty years; there would be no
pardon or amnesty for these crimes and the property used in the
kidnapping would be seized and the Prosecutor's Office would keep the
assets of the kidnap victim, his or her close relatives, friends and any
groups of which these people are members under surveillance; failure to
report a kidnapping and participation in negotiating ransom and release
would also be punishable as criminal offenses.
E.
STATISTICS POLITICALLY OR PRESUMABLY POLITICALLY MOTIVATED ARBITRARY DETENTIONS, 1981-1991
1981 2322
Total 18933[3]
KIDNAPPING IN COLOMBIA
F. FINAL OBSERVATIONS
At present, arbitrary arrests by Colombian authorities for
political or ideological reasons are selective in nature.
There are many cases of individuals who disguise themselves as
security agents for the purpose of kidnapping or extortion. Prolonged detentions beyond the time allowed by law are
generally not reported. It
is hoped that the provisions of the new Constitution and the activities
of the institutions created to protect human rights will be effective in
defending this right. It is
also hoped that the rules governing the public order courts will not
lead to abuses.
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