CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second periodic reports of States parties due in 1993
* The initial report submitted by Colombia is contained in document
CAT/C/7/Add.1; for its consideration by the Committee, see documents
CAT/C/SR.36 and 37 and Official Records of the General Assembly,
Forty-fifth session, Supplement No. 44 (A/45/44), paras. 313
to 340. For the additional information submitted by Colombia on
28 August 1990, see document CAT/C/7/Add.10.
[4 August 1995]
* Together with this report, the Government submitted general information
on the Republic of Colombia which may be consulted in the archives
of the Centre for Human Rights. A similar text on the same subject-matter
which was submitted by the Government of Colombia on 12 April 1995
is reproduced in document HRI/CORE/1/Add.56.
1. The problem of human rights in Colombia goes beyond any explanation
that reduces the scope of responsibility to acts or omissions by
the Government. At least a brief reference has to be made to the
context of complex historical, social and political factors in which
it is situated in order to have a better idea of the true situation,
which is multifaceted.
2. In the
first place, account must be taken of structural factors, such as
the country's social and economic inequalities, the weakness of
the Government's presence in recently occupied areas, the dynamics
of accelerated economic growth in settlement areas and, above all,
limitations resulting from the political system which was in force
for over 100 years, starting with the 1886 Constitution.
has one of the longest-lasting democratic traditions in Latin America,
based on the free play of party politics and power sharing, the
absence of military coups, the separation of powers and individual
freedoms embodied in the Constitution and governed by law. Poverty
levels are lower than those in many nations in the region and there
have been significant advances in social indicators in the last
20 years. Guerilla violence has been centred in places where recent
economic development has been the most rapid.
4. In addition
to structural factors, account must be taken of some specific historical
and political factors, which include the existence of a guerilla
tradition resulting from the two-party violence that shook the country
for several decades and its impact on intellectual, university and
trade union sectors, some of which helped to create armed resistance
to the political system. This encouraged the development of restrictive
procedures, a repressive and symbolic increase in penalties and
offences and the strengthening of the most traditional sectors in
their different levels of resistance or reaction.
terrorism, for its part, was to emerge as an unforeseen variable
that would dangerously threaten the economic and social system of
Colombia, a country which has paid the highest price in the crusade
against this multifarious type of crime.
6. As the
Government's capacity to offer an institutional solution to conflicts
began to be limited, the guerillas and drug traffickers strengthened
their economic and war-making power with money and weapons from
all over the world, a situation which helped create private forms
of justice, as had occurred in the case of self-defence and paramilitary
the Government of Colombia has taken on the major task of strengthening
political institutions to enable them to cope with current social
conditions, it cannot allow short-term solutions if it is to bring
about structural changes unprecedented in the history of the country.
This also requires a general commitment by society to the creation
of a new approach to human rights for which the Government is mainly,
but not exclusively, responsible.
new Colombian Constitution was born out of a major democratic debate
in which the entire country took part. It is a social covenant,
an agreement on the basics, a peace treaty resulting from a dialogue
between opposing sides in an atmosphere of tolerance. It embodies
over 70 rights covered by 85 articles divided into the following
five chapters: fundamental rights; social, economic and cultural
rights; collective rights; machinery for the protection and enforcement
of rights; and duties and obligations of citizens. In addition to
other basic rights, it guarantees the rights of the child, equality,
freedom of expression, freedom of the press and information, the
right to freedom of assembly and association, the right to privacy
and personal autonomy, the right of defence, the right to freedom
of conscience and worship and equality of religions, the cultural
rights of indigenous peoples and the rights to strike, to collective
bargaining, to health and social security, to education and culture
and to a healthy environment. It prohibits the following: the death
penalty, slavery, traffic in human beings, torture, enforced disappearance,
life imprisonment, confiscation and administrative detention.
9. In 1991,
the remedy of habeas corpus was also given constitutional status.
In accordance with this remedy, persons who are deprived of their
liberty and consider their detention unlawful may apply to any judicial
authority, either directly or through a representative, for a review,
within a maximum of 36 hours, of the lawfulness of the proceedings
instituted by the authority and, as appropriate, for immediate release.
II. INFORMATION ON NEW MEASURES AND NEW DEVELOPMENTS
(ARTICLES 2 TO 16)
Constitution provides that the Government has direct responsibility
for giving effect to the principles, rights and duties embodied
in it. This is the Government's purpose and the source of its legitimacy,
together with the discharge of other functions, such as providing
public service, guaranteeing participatory democracy, defending
territorial independence and integrity and maintaining public order
(art. 2 of the Penal Code). In addition, Government authorities
have a duty to protect the life, honour, property, beliefs and other
rights and freedoms of all persons residing in Colombia and to monitor
the fulfilment of the social duties of the Government and private
individuals (art. 2 of the Constitution). Government officials are
vested with authority, which they must exercise appropriately and
responsibly, subject to penalties for abuses of authority, omissions
or acts contrary to this principle.
constitutional provision expressly prohibiting torture is reproduced
below and some legislative developments are analysed which are aimed
at the establishment of checks and safeguards to prevent and punish
this practice, in accordance with the provisions of article 4 of
No one shall be subjected to enforced disappearance, to torture
or to cruel, inhuman or degrading treatment or punishment".
Court judgement No. C-106/95 of 15 March 1995 refers to this article
of the Constitution, stating that "the right to personal integrity
is directly connected to the right to life. It entails recognition
of the dignity of the human being and prohibits torture as an instrument
of punishment, intimidation or means of obtaining information"
(Judge Eduardo Cifuentes Muñoz).
should also be made to the statement by Constitutional Court Judge,
Dr. Ciro Angarita, in his ruling No. C-587 of 12 November 1992 that
torture may be imputed both to the Government and to private individuals:
be imputed both to the Government and to private individuals.
So the right not to be tortured, like the right not to be subjected
to enforced disappearance or to cruel, inhuman or degrading
treatment, postulates ways in which the actual rights that are
to be protected may be violated; the right to personal integrity,
autonomy and, in particular, human dignity".
Constitutional Court ruling also states:
of the Constitution is even broader than the international instruments
ratified by Colombia in this regard, since, as stated above,
the Colombian Constitution also prohibits torture in cases where
the torturer is a private individual.
Thus, the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, acceded to by Colombia in Act No. 78 of 15 December
1986, defines torture as 'any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted ... by
or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity'.
provision nevertheless states that this definition of torture
is without prejudice to any international instrument or national
legislation which does or may contain provisions of wider application.
This is exactly what the Colombian Constitution does in prohibiting
torture not only when it is inflicted by a public official or
with his consent or acquiescence, but also when it is inflicted
by a private individual, as stated in the preceding paragraph
of this ruling.
The inclusion in
the Constitution of the right not to be tortured, together with
the other eventualities set out in article 12, is aimed at protecting
the right to personal integrity, whose violation had been a
matter of constant concern to high judicial bodies, particularly
the Council of State.
to the Constitution, the practice of torture, which is expressly
prohibited by the Constitution, may be imputed not only to the
Government but also to private individuals. Not only the Government,
but also private individuals, must therefore be punished, no
matter who has practised torture. This unambiguous conclusion
is derived both from the records of the Constituent National
Assembly and from the large body of case law that preceded it".
to the situation described in the initial report, the following
changes have taken place in this regard.
279 of the Penal Code (Decree No. 100 of 1980) was repealed by Decree
Law No. 180 of 1988, supplementing some provisions of the Penal
Code within the framework of the Statute for the Defence of Democracy,
the set of rules on the state of siege that became permanent legislation
in order to deal with the many types of violence besetting the country
at that time.
1988 provision increases the penalty for the offence of torture
and establishes that anyone who subjects another person to torture
is liable to between 5 and 10 years' imprisonment, unless the act
constitutes an offence liable to a severer penalty. In addition,
Decree Law No. 2790/90 proclaims the Statute for the Defence of
Justice and provides that an aggravating circumstance is that the
offence was committed against judicial officials, such as ordinary
and specialized judges and other participants in criminal proceedings
within their jurisdiction. In such cases, those responsible are
liable to a term of 15 to 25 years' imprisonment and to a fine equal
to between 50 and 200 times the minimum legal monthly wage.
system of criminal justice characterizes torture as a circumstance
that increases the penalty for the offence of abduction when it
is committed against the victim of the principal offence.
addition to these constitutional and legal provisions, there are
safeguards designed to prevent the practice of torture in situations
where a person is deprived of his liberty. Procedures relating to
arrest and detention contain measures designed to guarantee the
integrity of the person concerned during such time as he is deprived
of his liberty. The new Code of Criminal Procedure (Decree No. 2700
of 30 November 1991) provides that terms of imprisonment are to
be served in places and in the manner provided for by law (art.
45). Failure to comply with the legal requirements constitutes the
offence of unlawful deprivation of liberty, which is taken as arbitrary
conduct by an official and is liable to a term of one to five years'
imprisonment. When a person is arrested, there must be a record
that the arresting official: stated the grounds for the arrest,
informed the person concerned of and facilitated his right to consult
immediately with defence counsel and with the person to be apprised
of the arrest. These measures are designed to prevent detention
incommunicado by guaranteeing constant contact between the detainee
and his lawyers and relatives as a means of helping to prevent torture
and cruel and inhuman treatment.
order to ensure that the arrest is carried out in accordance with
these legal rules, provision is made for the remedy of habeas corpus
(art. 430 of the Code of Criminal Procedure), which protects freedom
when the rules have not been complied with or deprivation of liberty
is extended unlawfully. When an unlawful arrest has taken place,
the person concerned is entitled to the following guarantees:
may apply to any judge or magistrate in the place where the unlawful
arrest occurred or the place closest to it so that the judge or
magistrate may decide, within the next 36 hours at the latest, whether
his release should be ordered; the application may be submitted
to any judicial officer, but the proceedings are conducted exclusively
by the criminal judge;
remedy may be applied for by third parties on the person's behalf,
with no need for a power of attorney;
proceedings may not be suspended or postponed on account of holidays
or court recesses; since promptness is of the essence in this regard,
the decision-making process and action on the decision override
any contingencies or circumstances which may delay the proceedings.
Article 434 of the Code therefore prohibits the application from
being referred to another judge.
important safeguard is that there are provisions which invalidate
testimony, confessions or any other evidence obtained by torture.
In this connection, the Code of Criminal Procedure states that the
following constitute evidence: inspection, expert investigations,
documents, testimony and confession.
testimony and confession are the types of evidence in connection
with which a person may be subjected to torture, the requirements
that must be taken into account for them to be valid are described
official responsible for evaluating the testimony has to take account
of the principles of sound judgement in relation to:
nature of the object perceived;
state of health of the sense or senses by which the object was perceived;
circumstances of place, time and manner in which it was perceived;
personality of the deponent, the way in which he testified and any
peculiarities noted in his testimony.
method of interrogation in obtaining testimony is subject to the
the witness is present and has been identified, the official swears
him in and informs him of the exceptions to the duty to testify;
witness is informed of the facts about which he is to testify and
ordered to give an account of what he knows about them.
296 of the new Code of Criminal Procedure requires that, in order
to be valid, a confession must meet the following requirements:
must be made before a court official;
person concerned must be assisted by defence counsel;
person must have been informed of his right not to testify against
confession must be given consciously and freely.
26. A confession
in itself is not proper evidence; after it has been given in compliance
with the above-mentioned requirements, the competent official will
take steps to determine whether it is true (art. 297 of the Code
of Criminal Procedure). As in the case of testimony, assessment
of the confession's value as evidence is subject to the rules of
order to strengthen existing safeguards in respect of testimony
and confession, it is laid down that defence counsel must be present
when they are being heard, as a means of preventing unlawful pressures,
including torture and ill-treatment. In this connection, attention
is drawn to the work of the ombudsman, which is organized and supervised
by the Ombudsman's Office, an integral part of the Government Procurator's
Office, as provided for in the 1991 Constitution.
to constraints on the availability of resources, the court-appointed
counsel service provided in pursuance of Decree No. 053 of 1987
and its implementing Regulation No. 2666 of 26 December 1988, centralized
the criminal defence service in the prisons with the largest number
of inmates, thus making it difficult to provide services for everyone
who needed them. One problem with the system was that court-appointed
defence lawyers were always Government officials, which led to delays
in official proceedings, in the filling of posts and in travel by
the officials concerned. The new system is based on contract service
conclusion of agreements with the law faculties of the major universities.
work done by the Government Procurator's Office (of which the Ombudsman's
Office forms part) in criminal proceedings is carried out by the
Attorney-General and the purpose of his involvement is to protect
the legal system, public property and fundamental rights and guarantees.
In cases which involve violations of a convicted person's human
rights, the Attorney-General protects those rights and works together
with visiting magistrates in all matters relating to their functions
(art. 123 of the Code of Criminal Procedure).
22 of the Organization Statute of the Attorney-General's Office
(Act No. 4 of 1990) assigned the Office of the Attorney-General
for the Defence of Human Rights the following main functions:
"(b) To bring
disciplinary proceedings, and decide on them in sole instance
in connection with participation in acts of genocide, torture
and enforced disappearance committed, in the exercise of their
functions, by members of the Ministry of National Defence, the
Armed Forces, the National Police, officials and staff of bodies
belonging to or connected with those institutions, and other
officials and employees;
(g) Ensure the protection
of human rights in prisons, judicial and police premises and
view of the nature of torture, the law assigned specific jurisdiction
to the Office of the Attorney-General for Human Rights without regard
for the rank or organization to which the accused person belongs
and strengthened such jurisdiction as compared with the previous
legal system, according to which the Office of the Attorney-General
for Human Rights had jurisdiction only to conduct a disciplinary
investigation and turn it over to the competent Office, according
to the position of the accused, for a final decision.
was also distinguished from other offences to be investigated and
punished as violations of human rights, such as personal injury
cases, which are heard by other services in the Government Procurator's
Organization Statute of the Public Prosecutor's Office, Decree No.
2699 of 1991. Because the Public Prosecutor was concerned about
the human rights of accused persons, and in particular of citizens,
in relation to the criminal investigation powers of some officials,
he established the disciplinary regime provided for in chapter I,
section VII, of Decree No. 2699 of 1991, according to which torture
is a disciplinary offence against human rights (art. 21 of Decision
No. 017 of July 1992).
1993, the Constitutional Court declared that some of the decrees
issued in connection with the state of internal disturbance, including
the one which restricted the exercise of the right of habeas corpus
(the essential mechanism for preventing torture), were unenforceable
in proceedings before the Regional Courts, as was the decree ordering
that itinerant criminal investigation police units should be set
up comprising members of the armed forces.
important precedent in this regard is the judgement of 16 December
1987 by which the Council of State confirmed the ruling declaring
the Ministry of Defence administratively responsible for the mental
and physical injuries suffered by Dr. Olga López de Roldán, who
had been tortured on military premises in 1979. In a judgement of
5 February 1988, the same high court declared the Ministry of Defence
responsible for the death of Marcos Zambrano, who had been tortured
by military personnel in 1980.
regards political measures, in December 1991 the National Government
set forth its comprehensive policy to combat all types of violence
affecting the country, including torture. This policy was embodied
in the document entitled "National Strategy against Violence",
which gives details of inter-agency coordination activities and
the areas of jurisdiction of the various Government bodies in respect
of the strengthening of justice and policies to deal with different
types of violence and with the protection and promotion of human
and penitentiary system
persons deprived of their liberty may be subjected to conditions
of detention that are contrary to their dignity, as well as to unlawful
pressures, the Congress of the Republic adopted Act No. 65 of 1993
embodying the Penitentiary and Prison Code in an effort to monitor
compliance with security and protective measures and the enforcement
of custodial sentences (art. 1).
guiding principles of the Code relate to the lawfulness of detention,
equality before the law, respect for human dignity, the prohibition
of penalties such as exile, life imprisonment and confiscation,
and the lawfulness of arrest and detention.
also indicates which establishments may operate as places of detention
and describes the conditions for admission to each one. Detention
establishments are classified as: prisons, penitentiaries, special
prisons and penitentiaries, women's detention centres, prisons for
members of the security forces, prison farms, reformatories, rehabilitation
and other detention centres set up as part of the penitentiary and
new constitutional provisions establish tighter controls and impose
time-limits which make states of exception strictly transitional
in nature. They also indicate limitations on Government powers,
expressly guaranteeing the non-violation of fundamental rights.
This is because the emergency machinery provided for in the former
article 121 of the 1886 Constitution was not able to cope with the
new factors giving rise to violence.
Constitution brought about a significant change in the state of
siege provided for in the 1886 Constitution. The main changes were
concepts: the new provisions on states of emergency make a distinction
between the concepts of war and internal disturbance, assigning
each one specific consequences and granting the Executive powers
for each case;
one of the main achievements of the new provisions is that they
establish a well-defined temporal framework, 90 days for the first
declaration, extendable for up to two equal periods of time, the
last of which requires the approval of the Senate. This did away
with the indefinite nature of the state of siege, which created
institutional instability and constant legal uncertainty. In practice,
the time-limit means that the country (or part of it) cannot be
under a state of emergency for more than 270 days, during which
the Executive has an obligation to take the necessary measures to
deal effectively with the cause of the disturbance;
and connectedness: the emergency measures taken by the Government
must have an actual causal relationship with the occurrences giving
rise to the disturbance. The objective effect of the measures thus
has to be to eliminate the root causes of the internal disturbance.
There must also be proportionality between the threat and the measure
taken to attenuate it; otherwise, the door would be open to possible
abuses of power;
control by Congress: the new provisions strengthen the machinery
for political control by the legislature over decisions taken by
the Executive in the exercise of these emergency powers. In the
first place, the authorization of the Senate of the Republic is
required to declare war; secondly, while the state of war exists,
Congress retains all its powers and may at any time amend or repeal
decrees issued by the Government in the exercise of emergency powers.
Under a state of internal disturbance, the prior approval of the
Senate is required for the Executive to order the second 90-day
extension and it is the Government's obligation to submit a substantiated
report to Congress;
control by the Constitutional Court: the constitutional control
over legislative decrees formerly exercised by the Supreme Court
of Justice is maintained. This task is now part of the functions
of the Constitutional Court (art. 215 of the Constitution);
of Government powers: one of the most negative aspects of a state
of siege on the former pattern was the institutional abnormality
it reflected, inasmuch as the Executive encroached upon the areas
of activity and jurisdiction of the other powers, thus creating
a manifest imbalance between the three main branches. The new constitutional
provision clearly states that "the normal functioning of the
branches of Government power and other Government bodies shall not
be interrupted" (art. 214, para. 3, of the Constitution);
of the Executive: there are two levels of responsibility, namely,
political responsibility, which relates to the rightness of a decision
to declare a state of emergency and lies with the President and
his ministers; and legal responsibility, which also lies with these
officials and, in particular, with those who might be involved in
abuses of authority as a result of the exercise of emergency powers;
of human rights: the new Constitution expressly prohibits the suspension
of human rights and fundamental freedoms during states of emergency.
Since the Constitution does not list the rights protected by the
prohibition, it may be said that the provision covers and goes beyond
the guarantees in respect of states of emergency provided for in
the International Covenant on Civil and Political Rights. In addition,
the Constitution orders that the rules of international humanitarian
law must be respected in all states of emergency (art. 214). The
fact that treaties and conventions which recognize human rights
and prohibit them from being restricted during states of emergency
take precedence over internal law (art. 93 of the Constitution)
means that legislative decrees enacted by the Government are subordinate
to those international instruments. It should nevertheless be noted
that there are restrictions and limitations on the exercise of fundamental
rights during states of emergency that are compatible with the will
of the authors of the Constitution since they are designed to protect
the community. Thus, during a state of war, the restriction of the
right to freedom of movement within the national territory may protect
other basic rights, such as the right to life and personal integrity;
of the trial of civilians by military courts: civilians may not
be investigated or tried by military courts. This reaffirms the
doctrine of the right to due process of law and defines areas of
jurisdiction as a guarantee of human rights.
93 of the Constitution provides that international human rights
treaties and agreements take precedence over internal law:
International treaties and agreements, which have been ratified
by Congress, which recognize human rights and which prohibit
their restriction during states of emergency shall take precedence
over internal law".
constitutional rights must be included in the context of the public
human rights treaties ratified by the Congress of the Republic.
and in conformity with the provisions of the Inter-American Human
Rights Convention, which Colombia adopted under Act 16 of 1972,
and which enumerates the rights, including the right to physical
integrity, that may not be suspended, it follows that in Colombia
it is not possible to invoke any circumstances whatsoever to justify
91 of the 1991 Colombian Constitution stipulates as follows:
In the event of a manifest violation of a rule of the Constitution
to the detriment of any person whatsoever, superior orders do
not relieve the agent exercising them of responsibility.
personnel shall be exempt from this provision. Where they are
concerned, responsibility shall be borne solely by the superior
who issues the order."
article, which reproduces article 21 of the 1886 Constitution, concerns
the constitutional responsibility that lies with any authority who
specifically violates a fundamental right to the detriment of an
individual, thereby incurring each and every type of legal responsibility
(criminal, disciplinary, civil or administrative), and who may not
cite in justification an order, albeit a lawful one, received from
a higher authority.
order and discipline dictate an exception to this constitutional
rule for members of the armed forces on active service, in whose
case responsibility lies with the superior who gave the order. Nevertheless,
this exception may not be interpreted as justifying torture, since
the right to physical integrity, as has been observed, is inalienable,
and may not be suspended under any circumstances.
this regard, legal doctrine has determined the following requirements
for this exception to be applicable to the constitutional responsibilities
of public authorities to apply:
act must be performed in compliance with a military order;
order must have been given and carried out by serving personnel;
excesses must have been committed in carrying out the order; and
order must be binding in that it concerns acts to be performed in
connection with military duties, a requirement which by the same
token excludes acts that constitute offences. In other words, where
the practice of torture is concerned, responsibility rests both
with whoever issues the order and with whoever carries it out.
addition, the Penal Code provides that a punishable act is justified
if it is committed "in compliance with a lawful order given
by a competent authority in due form of law". (Art. 29.) According
to criminal law doctrine, the lawfulness of the order is essentially
determined by its permissibility. Consequently, an order is binding
and exempts the person carrying it out from responsibility solely
and exclusively if its content is permissible.
is a sine qua non if the execution of an order by a subordinate
is to nullify the criminal nature of the conduct.
I of the Constitution, which concerns fundamental rights, begins
by asserting in article 11 the inviolability of the right to life,
to which it accordingly adds the prohibition of any conduct that
implies disregard for that right or involves enforced disappearance
or torture, or cruel or degrading treatment, scourges against which
progress is being made through the development of policies and the
effective implementation of the measures necessary to prevent and
punish such human rights violations.
regarding the Convention's provisions on extradition, it should
be mentioned that the Constitution prohibits the extradition of
persons of Colombian nationality by birth, as well as of aliens
for political offences or crimes of opinion. In turn, article 17
of the Colombian Penal Code stipulates that "extradition shall
be requested, granted or offered in accordance with international
treaties", thereby satisfying the requirements of article 3
of the Convention.
same article of Colombia's Penal Code stipulates that in the absence
of international treaties, the Government shall request, offer or
grant extradition in accordance with what is laid down in the Code
of Penal Procedure, whose provisions concerning relations with foreign
authorities determine the machinery and procedure for offering or
should be mentioned that all the extradition treaties in force in
Colombia contain, in addition to the provisions that constitute
their aim and purpose, provisions on the observance of procedural
guarantees, and in some cases even specifically prohibit imposing
or inflicting corporal punishment or the death penalty upon the
the light of the above, we believe that the provisions of article
3 of the Convention against Torture concerning the legislative and
administrative procedure in respect of extradition, which also apply
to the expulsion or return of a person to another State when there
is a risk of his or her being subjected to torture or any other
human rights violation, have been complied with.
17 of the Colombian Penal Code determines the machinery for extradition:
Extradition: Extradition shall be requested, granted or offered
in accordance with international treaties. In the absence of
an international treaty, the Government shall request, offer
or grant extradition in accordance with the provisions of the
Code of Penal Procedure.
of Colombians shall be subject to the provisions of international
35 of the new 1991 Constitution introduced a major change in this
respect, as it prohibited the extradition of Colombians by birth.
Simultaneously, and in conformity with a Colombian legal tradition,
it prohibited the extradition of aliens for political offences or
crimes of opinion:
The extradition of Colombians by birth is prohibited. Aliens
shall not be extradited for political offences or crimes of
Colombians who have
committed offences abroad, which constitute offences under Colombian
legislation, shall be tried and sentenced in Colombia."
Constitution categorically rules out the possibility of extraditing
either Colombians by birth, or aliens when political offences are
concerned, a provision that is in conformity with those of article
3, paragraph 1 of the Convention. In this regard, we may cite a
decision of the criminal court of cassation of the Supreme Court
of Justice, dated 26 May 1992:
of political offences. If ordinary offences are compared with
political offences, it has been observed that subjectively,
where the former are concerned, the offender is almost always
inspired by base motives, or under the influence of intemperate
passions, and acts out of perversity or in order to seek vengeance.
In the case of the latter, on the other hand, the motives are
almost always political or of public concern; the desire to
change the economic, political and social conditions of a community
are, as a general rule, the decisive factors where such offenders
While those are
the characteristic features of this type of offence, it should
be specified that:
1. The offence always
involves an attack upon the political and institutional organization
of the State;
2. It is committed
in a manner designed to achieve the maximum social prominence
and political impact;
3. It is committed
actually or ostensibly in the name and on behalf of a social
or political group;
4. It is motivated
by identifiable philosophical, political or social principles;
5. It is committed
in pursuit of actual or purported socio-political ends.
then, a political offence has a specific juridical target against
which its action is aimed or directed: the State, as a political
person or institution. Some consider that what are known as
offences against the existence and security of the State and
offences against the constitutional regime fall into this category.
It is equally clear
that political offences are committed in a particular manner
and possess characteristics distinct from their specific content,
albeit closely linked to it: the repercussions, the inspiration
and the motivation that are invariably and inseparably associated
with them. These characteristics are manifested in: seeking
to achieve maximum publicity; acting in the name of a sector
of society or of political opinion; and doing so under the dialectical
banner of a mass movement to achieve a specific socio-political
of the nature of the act itself, a political offence has a specific
purpose and a manner of commission that is peculiar to it and
addition to the above, and in order to ensure the observance of
this article of the Convention, Volume Five, Title I, Chapter III
of the Code of Penal Procedure lays down strict procedure whereby
the Government is authorized to offer or grant extradition, but
which requires the prior consent of the Supreme Court of Justice.
Government agency responsible for taking the relevant decision is
the Ministry of Justice but, since the request must be made through
diplomatic channels, and in exceptional cases through consular channels
or from Government to Government, the Ministry of Foreign Affairs
is required to
views on the desirability of granting the extradition in accordance
with international agreements or usage or whether the provisions
of the Code of Penal Procedure should apply.
our consideration of article 2 of the Convention the constitutional
and legal norms which characterize and penalize the offence of torture
were summarily described and aspects relevant to the contents of
this article were explored and updated with reference to the 1991
Constitution and the new Code of Penal Procedure.
279 of the Penal Code, as amended by Decree No. 180 of 1988 stipulates
Anyone who subjects another person to physical or mental torture
shall be liable to between five (5) and ten (10) years' imprisonment,
unless the act constitutes an offence liable to a heavier sentence."
Colombia criminal proceedings may be brought in respect of the offence
of torture when a person has been tormented by individuals who are
not even indirectly connected with the State. The law does not require
the perpetrator of the criminal act to be a public employee.
legislation classifies the offence of torture under the chapter
relating to protection of the legal right to individual autonomy,
which signifies the enjoyment of self-determination in the sphere
of personal freedom.
the initial report by the Government of Colombia dealt in detail
with the issues of complicity and participation in torture, in respect
of which there have been no legislative changes, we shall not take
them up in this report. However, as regards the authority competent
to try, investigate and punish the offence of torture, it should
be mentioned that Colombian legislation distinguishes between torture
affecting a political leader, a leading member of a civic or legal
committee, a journalist, a university professor, a trade-union leader,
specific public authorities or any inhabitant of the national territory
on account of their political or partisan beliefs or opinions, and
torture of any other citizen. Pursuant to article 71 of the Code
of Penal Procedure and in conformity with article 4 of Decree No.
2266 of 1991, the Regional Court, comprising in the first instance
the regional prosecutors and judges, and in the second instance
the National Court, tries cases of torture affecting the persons
designated by law in virtue of their public, political or professional
activity as mentioned above, the penalty for which ranges from 15
to 25 years' imprisonment (Decree No. 2790 of 1990, art. 8). Responsibility
for investigating acts of torture against other citizens lies with
the ordinary courts, i.e. with the sectional prosecutors and the
circuit courts in the first instance, and the Higher Judicial District
Courts in the second instance.
should be noted that most cases of torture are not investigated
separately, but in connection with criminal proceedings concerning
offences such as homicide or abduction, etc. This is due to the
conceptual difficulty posed by torture, which in most cases is clearly
a means of achieving a specific end (information or confession)
and not an end in itself.
regards punishment of the crime of torture, it is important to emphasize
the legislator's concern to impose a penalty consistent with the
seriousness of the physical pain or mental anguish caused, a concern
which is apparent in the significant increases in the severity of
sentences in recent years. Thus Decree-Law No. 100 of 1980, the
current Penal Code, laid down a sentence of from one to three years'
prison for torture. Subsequently, by Legislative Decree No. 180
of 1988, article 24, the sentence was increased to between 5 and
10 years' prison. Finally, Decree No. 2790 of 1990, article 8, stipulated
that the crime of torture, jurisdiction over which lies with the
Regional Court, carries a sentence of from 15 to 25 years' prison
and a fine of from 50 to 200 times the minimum wage.
essential purpose of article 5 of the Convention is to ensure the
establishment of jurisdiction in order to punish torture and other
cruel, inhuman or degrading treatment or punishment. The establishment
of jurisdiction is closely bound up with the juridical concept of
the scope of application of criminal law. In this connection, it
should be noted that in article 13 of the Penal Code, Colombian
criminal law clearly determines its spatial scope by reference to
the concept of territoriality:
Colombian criminal law shall apply to any person who infringes
it in Colombian territory, with such exceptions as are established
in international law.
shall be deemed to have been committed:
1. At the place
where all or part of the act occurred;
2. At the place
where the act which should have occurred did not occur;
3. At the place
where the result occurred or should have occurred."
concept central to this rule is "territory", which has
been expounded in legal doctrine and whose legal scope has been
determined as signifying any part of the space and all the objects
over which the State exercises its rule. These are, in detail:
regards the space:
territorial soil and subsoil;
continental sea and territorial waters;
owned by the State and private vessels flying the Colombian flag;
owned by the State and private aircraft registered in Colombia.
principle of the scope of application of Colombian criminal law
is a development of article 4 of the Constitution, paragraph 2 of
which lays down the obligation to abide by the Colombian legal order:
and aliens in Colombia are required to abide by the Constitution
and law and to respect and obey the authorities."
article 95 of the Constitution lays down what are known as civic
duties, which include the following:
is obliged to comply with the Constitution and laws.
and citizens have the following duties:
respect the duties of others and not to abuse their own.
act in conformity with the principle of social solidarity.
3. To respect
and support the democratically chosen authorities."
article 57 of the Code relating to the Political and Municipal Regime
states as follows:
"The laws are
binding on all the country's inhabitants, including aliens,
whether domiciled in Colombia or temporary residents, with the
exception, in the case of the latter, of such rights as are
conferred by international treaties."
addition to the establishment of criminal jurisdiction for offences
committed on the territory, article 5, paragraph 1 (a) also provides
for the establishment of jurisdiction over offences committed "on
board a ship or aircraft registered in that State;". In compliance
with this treaty obligation, article 14 of the Colombian Penal Code
provides for what is known as "extended territoriality"
which it defines as follows:
law shall apply to anyone who commits a punishable act on board
a Colombian naval vessel or military aircraft which is outside
It shall also apply
to anyone who commits a punishable act on board any other Colombian
aircraft or vessel on the high seas, if criminal proceedings
have not been instituted abroad."
article 15, paragraphs 2 to 6 of the Penal Code establishes the
notion of the extraterritoriality of Colombian criminal law, which
satisfies the requirements of article 5, paragraphs 1 (b) and (c)
and 2 of the Convention against Torture.
Extraterritoriality. Colombian criminal law shall apply:
1. To a person who
commits an offence abroad against the existence and security
of the State, the regime of the Constitution, the social economic
order, public health or the public administration, or who falsifies
Colombian currency, a public credit document, stamped paper
or an official stamp, even if that person has been acquitted
abroad or sentenced abroad to a lesser penalty than provided
by Colombian law.
In all cases any
time for which that person has been in custody shall count towards
the time for which the penalty is to be served.
2. To a person in
the service of the Colombian State who enjoys immunity under
international law and commits an offence abroad.
3. To a person in
the service of the Colombian State who does not enjoy immunity
under international law and commits an offence abroad other
than one of the offences mentioned in article 15 (1), and who
has not been tried abroad.
4. To a Colombian
citizen who, except in the circumstances provided in the preceding
sections, is in Colombia after having committed an offence in
foreign territory which under Colombian criminal law is punishable
with a custodial penalty of not less than two years, and who
has not been tried abroad.
If the penalty is
a lesser one, proceedings shall not be taken except on complaint
or on the application of the Attorney-General of the Nation.
5. To an alien who,
except in the circumstances provided in article 15 (1), (2)
and (3), is in Colombia after having committed an offence abroad
prejudicial to the State or to a Colombian citizen which under
Colombian law is punishable with a custodial penalty of not
less than two years, and who has not been triad abroad.
In this event proceedings
shall not be taken except on complaint or on the application
of the Attorney-General of the Nation.
6. To an alien who
has committed an offence abroad prejudicial to another alien,
if and only if:
(a) He is in Colombian
(b) The offence
is one which in Colombia is punishable with a custodial penalty
of not less than three years;
(c) The offence
is not a political offence; and
(d) An application
has been made for extradition, and extradition has not been
granted by the Colombian Government. Should extradition not
have been accepted there will be no case for criminal proceedings.
In the event referred
to in this section, proceedings shall not be taken except on
complaint or on the application of the Attorney-General of the
Nation, and only if the offender has not been tried abroad."
doctrine has observed in respect of this norm that paragraph 2 develops
the principle of "active personal jurisdiction" as it
provides that the country's criminal law shall apply to anyone who,
while enjoying immunity and being in the service of the State, commits
a violation of the legal rights of Colombian citizens or aliens
(in the case of torture), of the Colombian State or of any other
State. This provision is hardly logical, as the immunity to which
the person is entitled precludes his being subject to the criminal
law of the State in which he committed the offence, particularly
when a Colombian citizen is concerned. However, if the person who
meets the requirements is an alien, the "objective or defensive
principle" is invoked, as the purpose of applying national
law is to safeguard the interests of the State.
3 also enshrines the principle of "active personal jurisdiction"
by postulating that the criminal law applies to anyone -regardless
of whether he is a national or an alien - who, without being entitled
to diplomatic immunity, commits an offence (such as torture) other
than those set out in paragraph 1. Naturally, if the person is an
alien, the country's criminal law applies by virtue of "objective
or defensive jurisdiction" which is the reason for adding the
words "who has not been tried abroad".
4 requires that Colombian criminal law apply to Colombians present
in Colombia after having committed abroad a crime that carries a
custodial sentence of not less than two years (torture carries a
minimum custodial sentence of five years) provided they have not
been tried abroad.
"objective or defensive principle" is developed in paragraph
5, which stipulates that Colombian criminal law applies to aliens
who, after having committed an offence against the legal rights
of the State or of its citizens which is liable to a custodial sentence
of over two years (as in the case of torture) is in Colombia and
has not been tried abroad. It is moreover a prerequisite that a
complaint shall have been lodged by or at the request of the Attorney-General.
the "principle of universal jurisdiction" is covered by
paragraph 6, which safeguards the interests of other nations and
of the international community whensoever they have been injured
by aliens present in Colombian territory, provided the offences
are not political ones. In this case too, a complaint has to be
lodged by or at the request of the Attorney-General, and if an application
for extradition has been made, it must have been refused by the
classification of the conduct in question is dealt with in article
256 of the Penal Code for the Armed Forces, which covers both physical
and mental torture. The article states:
subjects another person to physical or mental torture shall
be liable to between one (1) and three (3) years' imprisonment,
unless the act constitutes an offence liable to a heavier sentence."
to article 169, paragraph 1 of decree No. 2550 of 1988, the current
Penal Code for the Armed Forces, under the heading "Offences
against international law", "forcing a prisoner of war
to fight against his own country, or subjecting him to physical
or mental ill-treatment", constitutes a breach of international
section on "arrest", paragraphs 14 ff, of ministerial
Instruction No. 007 of 1993, issued by the Minister of National
Defence to regulate the operation of the anti-extortion and anti-abduction
units (UNASE), establishes as part of the procedure the obligation
to inform the arrested person or the offender who is caught in
flagrante delicto of his rights, as set forth in the Constitution
and the law and also the obligation to draw up a formal record of
the provision of information on the rights of the arrested person.
its official letter No. 4150-MDEPSG-725 of 9 May 1994, the Office
of the Secretary-General, upon the instructions of the Minister
of Defence, issued directives for strengthening the system for the
defence of the human rights of each and every member of the institution.
Under standing instruction No. 018 dated 25 May 1994, the Ministry
of National Defence provided for the restructuring and expansion
of its office of human rights, and for the creation of such offices
within the armed forces.
the terms of standing instruction No. 100-3 of 3 June 1994, the
Armed Forces High Command issued instructions for the creation of
human rights offices within the armed forces in order to determine
functions and optimize their coordination in the handling of this
matter. Through temporary instruction No. 029 of 30 September 1994,
directives were issued for the launching of a special campaign for
the armed forces, promoted by the Ministry of Defence in coordination
with the Presidential Advisory Council for Defence, Protection and
Promotion of Human Rights, to eradicate all types of abuses and
violations on the part of uniformed staff and to strengthen educational
programmes that render more steadfast and unshakeable the values
by which all uniformed personnel should be guided both in the performance
of their functions and when off duty.
is to be understood as the act by which a State hands a person over
to another State that so demands with a view to putting that person
on trial or to carrying out a sentence, should the person have already
been tried and sentenced. None the less, as has already been stated,
the Constitution allows only for the extradition of aliens, thereby
prohibiting the extradition of native-born Colombians:
The extradition of native-born Colombians is prohibited. The
extradition of aliens for political crimes or for their opinions
shall not be permitted.
Colombians who have
committed crimes abroad which are considered as such under national
legislation shall be tried and sentenced in Colombia."
discretionary power exercised by the national Government in deciding
whether to offer or grant the extradition of a person who has been
sentenced or tried abroad in no way constitutes a protection for
accused persons or a mechanism of impunity. Article 25 of the Code
of Penal Procedure makes it the duty of every inhabitant of Colombian
territory over 18 years of age to inform the authorities of punishable
acts of which they might have knowledge and which should be investigated
officially, as is the case with torture, which is not on the list
of offences that require a complaint to be filed given in article
33 of the Code. For public officials which designation applies to
those who decide on the extradition proceedings, this duty includes
initiating the investigations without delay, if they are competent
to do so, or bringing them to the attention of the competent authorities.
addition to the above-mentioned constitutional prohibitions, article
565 of the Code of Penal Procedure stipulates that there shall be
no extradition when the person whose surrender is requested is being
investigated or has been sentenced for the same crime in Colombia.
right of defence may be exercised by the defendant himself or through
his counsel, as laid down in article 567 of the Code of Penal Procedure:
- Right of defence. As soon as extradition proceedings commence,
the person shall have the right to designate an advocate, and
if he does not do so counsel shall be appointed for him by the
procedure further ensures the conditions for a fair and impartial
trial with the full exercise of due process:
- Procedure. Once the file has been received by the court, a
copy is transmitted to the person whose extradition is requested,
or his counsel, who are allowed 10 days in which to request
any evidence deemed necessary. Once that period has expired,
a period of 10 days, to which should be added any time required
for travel, shall be devoted to the consideration of the evidence
requested, as well of any other evidence which the court deems
necessary for its decision.
Once the evidence
has been assembled, the case shall remain in the hands of the
office of the court for five days for pleadings.
Article 557 - Opinion
of the court. When the aforesaid period has ended, the court
shall issue its opinion.
A negative opinion
of the Supreme Court of Justice shall be binding on the Government;
if, however, that decision is in favour of extradition, it shall
leave the Government free to act in accordance with the national
Article 558 - Legal
grounds. The court shall base its decision on the formal validity
of the documentation submitted; on full proof of the identity
of the wanted person; on the rule of double jeopardy; on the
equivalence of the ruling issued abroad; and, where appropriate,
on compliance with the provisions of international treaties.
Article 559 - Decision
to refuse or grant extradition. Once the file containing the
opinion of the Supreme Court of Justice has been received, the
Ministry of Justice shall have a period of 15 days within which
to issue its decision either to grant or to refuse the extradition
be added that against such decisions the remedies are designated
in our legislation as governmental measures are applicable prior
to approaching the administrative jurisdiction court for an action
III, article 279, of the Colombian Penal Code, concerning offences
against the autonomy of the person, contains the following provision:
- Torture: Anyone who subjects another person to physical or
mental torture shall be liable to between one (1) and three
(3) years' imprisonment, unless the act constitutes an offence
liable to a severer penalty."
Code for the Armed Forces deals with this offence in the same terms.
accordance with the forgoing, one may conclude that in order to
implement article 7 of the Convention, in both ordinary and military
courts, there exist legal provisions applicable to torture as a
crime. Similarly, our legal system contains provisions concerning
attempted crimes and joint participation, which are applicable to
all crimes defined under Colombian law. These categories therefore
broaden the scope of the types of crimes by describing behaviours
that precede the act, in the case of attempted crimes, or by indicating
the possibility of joint responsibility of the subjects, in the
case of joint participation.
regard to due process and the right to fair treatment at all stages
of the proceedings, Colombian law takes as its point of departure
the guidelines (based on the constitutional system) applicable to
all types of legal and administrative actions, including the following:
process. No one may be tried except in conformity with laws that
predate the act of which he or she is accused, before a competent
judge or tribunal, and in accordance with the procedure appropriate
to each case;
of innocence. Every individual is presumed innocent and shall be
treated as such as long as there has been no court pronouncement
as to his or her criminal liability;
of defence. Anyone who is accused is entitled to the rights of the
defence and to the assistance of counsel of his own choosing or
appointed by the court;
of human dignity. Every individual has the right to be treated with
due respect for the inherent dignity of the human being;
corpus. This may be invoked when a person is arrested in violation
of constitutional or legal guarantees, or when the deprivation of
his liberty is prolonged illegally;
rule of law. In their decisions, judicial officers are bound only
by the provisions of the Constitution and the law;
judicata. No individual whose situation has been determined
by a duly enforceable judicial sentence may be retried for the same
principle. Every judicial decision may be appealed before a higher
court, except that when the accused is the sole appellant, the higher
court may not impose a heavier penalty.
as these principles have been established and are applied as such
in criminal trials, the Colombian Government considers that article
7 of the Convention is fully complied with.
has concluded both bilateral and multilateral extradition treaties,
of which the following are in force:
- Convention on
the Reciprocal Extradition of Offenders between New Granada
and the French Republic, signed at Bogotá on 9 April 1850;
- Treaty of Extradition
with Great Britain, signed at Bogotá on 27 October 1888;
- Convention on
Extradition of Offenders with Spain, signed at Bogotá on 23
- Agreement on Extradition
signed at Caracas, Venezuela, on 18 July 1911 in the Bolivar
- Convention on
Extradition with Belgium, signed at Brussels on 21 August 1912;
Convention to the Extradition Treaty with Belgium, signed at
Bogotá on 21 November 1931;
Convention to the Extradition Treaty with Belgium, signed at
Bogotá on 24 February 1959;
of Extradition with Chile, signed at Bogotá on 16 November 1914;
- Treaty of Extradition
with Panama, signed at Panama on 24 December 1927;
of Extradition with Costa Rica, signed at San José de Costa Rica
on 7 May 1928;
of Extradition with Mexico, signed at Mexico City on 12 June 1928;
Treaty to the Treaty of Extradition with Great Britain, signed at
Bogotá on 2 December 1929;
of Extradition with Nicaragua, signed at Managua on 25 March 1929;
of Extradition with Cuba, signed at Havana on 2 July 1932;
on Extradition signed at Montevideo, Uruguay, on 26 December 1933
at the Seventh American International Congress;
of Extradition with Brazil, signed at Rio de Janeiro on 28 December
of Extradition with the United States of America, signed at Washington
on 14 September 1979.
its initial report on the Convention, Colombia provided information
on the applicability of the bilateral and multilateral international
treaties to which it is a party. It should be added that in the
period under review, Colombia has neither negotiated nor signed
any other extradition treaty.
between the Colombian authorities and foreign governments regarding
the application of penal law and of legal cooperation in general
are regulated by the provisions of international treaties, international
conventions, intergovernmental agreements and internationally accepted
usage, and for any matters not covered by such instruments, or in
the absence thereof, the Code of Penal Procedure is applied.
elaboration of agreements on different areas of the law unquestionably
contributes to clearer and more efficient action on the part of
the competent institutions to provide society with the instruments
needed to regulate relations between individuals or between individuals
and the State. In the penal field proper, judicial cooperation is
becoming one of the most important means of facilitating the administration
of justice in Colombia, as in other countries.
dynamics of crime make it imperative that countries respond quickly
and that they keep in view the need to update and intensify at both
bilateral and multilateral level, exercises in cooperation and mutual
the legal substructure exists for managing international relations
in all matters concerned with the application of criminal law, a
subject dealt with by the Colombian Penal Code, the establishment
of a system of international cooperation in this area, translated
into bilateral and multilateral instruments, is designed to endow
the judicature with greater flexibility and resources through rapid
and effective interchange of information and evidence, indispensable
to the authorities of each State in trying criminals.
addition to efforts in the international domain, the Government
has backed up this policy by the implementation of seven domestic
strategies aimed at improving public acceptance of the judicial
system namely: developing the role of the justices of the peace;
settling disputes outside of the courts; refining alternative methods
for conflict resolution; State legal aid; developing constitutional
actions (known as popular actions and actions of compliance); the
democratization of legal information (law and case law); and the
creation of "houses of justice", all of which strategies
entail close relations with the community.
in order to enhance public participation in modernizing the Colombian
justice system, the Government is endeavouring to encourage the
development of non-governmental organizations founded specifically
to support and monitor the legal sector and to prepare technical
studies for promoting the efficiency and accessibility of the courts.
these initiatives fall within the framework of the plan known as
"justice for people", which embodies specific development
proposals for the various institutions in the sector, and which
complements the National Development Plan for the period 1994-1998.
article 10 of the Convention, the armed forces' penal procedure
contains clear provisions on methods of obtaining testimony; article
532 prohibits the use of violence to obtain statements; and article
594 guarantees the defendant the right to be interrogated free of
any pressure and without taking an oath, in accordance with the
dictates of due process as set forth in article 28 of the Constitution.
the Armed Forces High Command has laid down guidelines for subordinate
units, based on the human rights policies emanating from the Office
of the President of the Republic:
instruction No. 3 of 3 May 1993
Security for the people
To define the responsibility of State agencies in the development
of the second stage of the national strategy against violence.
instruction No. 100-6 CGFM-EMCD1-J-572 of 22 September 1994
Instructions on human rights
To implement activities on fundamental aspects of human rights and
to issue instructions for the reinforcement of programmes on the
dissemination of information on and promotion of respect for human
rights among members of the armed forces.
No. 85272-CEDE5-DH-345 of 5 April 1994
Dealing with criminal subversion
Measures to deal with the continual offences committed by subversive
groups against members of the armed forces and the civilian population.
instruction No. 100-2 CGFM-EMCD1-571 of 13 May 1994
Human rights information dissemination campaign
Purpose: To issue
instructions for developing the dissemination campaign to
be conducted by the Armed Forces High Command for the purpose
of disseminating programmes concerning information on and
respect for human rights among members of the armed forces.
letter No. 003354-EMCD1-DH725 of 20 May 1994
Subject: Human rights
Purpose: To issue
instructions for strengthening the defence of human rights
among members of the armed forces who are victims of subversion
instruction No. 018 MDN-ASP-725 of 25 May 1994
restructuring and expansion of the armed forces
office of human rights
Purpose: To restructure
and expand the human rights office within the Ministry of
Defence and create corresponding offices in the armed forces
in order to determine functions and optimize their coordination
in dealing with the matter.
instruction No. 100-3-CGFM-EMCD1-DH-725 of 3 June 1994
of human rights offices
Purpose: To issue
instructions for the creation of human rights offices in the
armed forces in order to determine functions and optimize their
coordination in dealing with this matter.
instruction No. 0023-MDN-ASP-725 of 6 July 1994
seminar on military justice and human rights
To issue instructions for conducting the "executive seminar
on military justice and human rights" to be held by the Ministry
of National Defence from 25 to 29 July 1994 for military personnel,
the national police and members of government agencies.
instruction No. 021-CGFM-CEFLU-336 of 14 July 1994
Subject: Plan for
human rights education
To issue orders for providing human rights education.
instruction No. 973-COFAC-IGEFA-725 of 29 August 1994
Establishment of an Office for Human Rights
To provide instructions for establishing offices responsible for
human rights in the Air Force, with a view to determining functions
and optimizing their coordination in dealing with this matter.
instruction No. 028-MDFN-514 of 30 September 1994
Campaign for the observance of Human Rights
To issue instructions for a special campaign in the armed forces,
promoted by the Ministry of Defence in coordination with the Presidential
Advisory Council for Defence, Protection and Promotion of Human
Rights, for the purpose of eradicating all types of abuses and/or
violations by armed forces personnel and reinforcing the educational
programmes which will render more steadfast and unshakeable the
principles and values which all armed forces personnel should manifest
in the performance of their duty and off duty.
No. 18260-CG-ING-DH-725 of 27 March 1995
Mechanisms for operating human rights offices
Deployment by the Commanders of the various forces of efficient
action for dissemination of information, preparation of staff, and
organization of the offices themselves in order to prevent undermining
of the fundamental principles embodied in articles 93, 94, and 222
of the Political Constitution of Colombia.
Presidential Advisory Council for Defence, Protection and Promotion
of Human Rights is carrying on with its teaching activity with a
view to creating a human rights culture, based on respect for fundamental
freedoms and specific guarantees of the fundamental rights of the
individual. The 1991 Constitution makes the Office of the Ombudsman
the State institution directly responsible for the dissemination
of information on human rights, a function which it performs through
the National Directorate for the Promotion of and Dissemination
of Information on Human Rights. The task of this Directorate is
to disseminate knowledge of human rights in the different sectors
of the State and society, and give guidance and instruction on the
exercise and protection of these rights to all the inhabitants of
order to comply with its constitutional mandate, the Office of the
Ombudsman has, inter alia, planned a human rights training
programme for public officials. The aim is to give the latter the
theoretical and practical information they need in order to implement
correctly the policy on the recognition, protection and application
of human rights. Specific courses have been planned for the following
groups of officials: district attorneys and their staff; members
of the police force; members of the corps of prison guards. The
courses are structured on the basis of three broad areas of study:
concepts: notions, exercise and limits of human rights;
law applicable to human rights;
law applicable to armed conflicts.
the section corresponding to criminal prosecution, the Code of Penal
Procedure grants exclusive power in this matter to the State as
represented by the Attorney-General of the Nation during the pre-trial
investigation stage, and to the competent judges during the public
phase of the proceedings:
Entitlement to conduct criminal proceedings. Criminal proceedings
are the responsibility of the State and are conducted exclusively
by the Office of the Attorney-General of the Nation during the
pre-trial investigation stage and by the competent judges during
the trial stage on the terms laid down in this code. In exceptional
cases this entitlement is exercised by Congress."
competent to hear criminal cases have the duty to initiate criminal
proceedings when they are apprised by any of the following means
that a punishable act has been committed: denunciation, complaint,
report, confidential information, public knowledge, personal knowledge
or any other means of information.
order to initiate criminal proceedings for the offence of torture,
no complaint by a party is required; in other words, the officer
of the law has the duty to initiate proceedings proprio motu
when he learns by any means whatsoever that such an unlawful act
the last two reports submitted by the Office of the Attorney-General
of the Nation on human rights it was stated that, in view of the
serious nature of the offence, complaints of torture undergo a very
stringent investigation because the diversity of the alleged acts,
which range from simple ill-treatment to torture proper, makes it
extremely difficult for the investigator to determine whether he
is dealing with a case of bodily harm or a case of genuine torture.
In either case, however, the preliminary proceedings to establish
the reality of the facts and the identity of the perpetrators are
the responsibility of the Special Investigations Bureau, a subdivision
of the Office of the Attorney-General with criminal investigation
powers and personnel trained for this type of investigation.
should be noted that the biggest increase in human rights complaints
by ordinary citizens to the Office of the Attorney-General has concerned
torture, reported acts of which increased by at least 23 per cent
in 1993-1994 compared with 1992, according to the analysis of the
data recorded in the most recent report on human rights submitted
by the monitoring body. It is worth noting in this regard that,
according to the report from the Human Rights Data Bank of the Centro
de Investigaciones de Educación Popular (popular education investigations
centre) (CINEP), 21 cases of torture were reported in Colombia between
January and October 1994.
regard to the measures which the States parties undertook to adopt
for the protection of anyone submitting a report or a complaint
of torture and their witnesses, Decree 2699 of 1991 assigns this
responsibility to the Office of the Attorney-General of the Nation,
through its Office for the Protection of Victims and Witnesses Assisting
1044 of 30 December 1993 set up the "Programme for the protection
of witnesses, victims, persons involved in the cases and officials
of the Office of the Attorney-General of the Nation", whereby
"full protection and social assistance will be granted to such
persons and their relatives to the fourth degree of blood relationship,
the first degree of relationship by marriage, and the first degree
of civil relationship, and to their spouses or permanent partners,
if they are at risk of aggression or their lives are in danger because
or at the time of their participation in criminal proceedings"
(art. 63). The persons covered by this programme may be accorded
physical protection, social assistance, a change of identity and
of domicile, and other temporary or permanent measures designed
to guarantee adequately the preservation of their physical and moral
integrity and that of their families. When the circumstances so
require, the protection may include a transfer abroad, including
travel and subsistence expenses for the period and under the conditions
indicated by the Office of the Attorney-General of the Nation (Act
104, art. 65 of 1993). Lastly, the Protection Programme may also
cover witnesses who take part in investigations conducted by the
Office of the Attorney-General of the Nation concerning acts serious
enough to be regarded as atrocities.
legal system embodies clearly defined procedures for obtaining fair
and adequate compensation not only for acts of torture but also
for any other type of abuse committed by public officials. The commonest
of these procedures, and the quickest and most effective way of
obtaining satisfaction, is to bring a direct indemnity action before
the administrative jurisdiction courts. This judicature has courts
competent to hear cases in each of the departments into which the
country is divided politically, and is assisted by the Council of
State which is the highest authority in this area of the law.
under direct indemnity action procedure provide for two types of
compensation for victims or their relatives:
for moral damage, calculated in grams of gold;
for material damage caused, including luerum cessans and
Political Constitution of 1991, article 90, provides for the possibility
of State claims for restitution from a public official who causes
damages of this nature. The Constitution states:
The State will answer materially for the extralegal damages
for which it is responsible, caused by deeds of commission or
omission of the public authorities. In the event that the State
is ordered to make compensation for some damage or another,
which may have been the consequence of the fraudulent or seriously
criminal behaviour of one of its agents, the former will have
to claim restitution from the latter."
ensures that compensation for damage paid by the State does not
become a screen for the illegal activities of some of its officials.
Code of Penal Procedure, articles 43 to 55, deals with criminal
indemnification proceedings as part of ordinary criminal proceedings,
in the following terms:
or collective criminal indemnification proceedings for compensation
for damage or injury caused by punishable acts may be brought
before the civil courts or as part of criminal proceedings,
at the discretion of the injured parties, whether natural persons
or legal entities, or by their heirs or successors, or by the
Government Procurator's Office or the Ombudsman when collective
interests are affected."
case-law (Supreme Court of Justice, plenary division, sentence of
March 1990), specifies the recourses available to the bringer of
the criminal indemnification action:
"... the injured
party does not necessarily have to resort to criminal proceedings
in suing for compensation for the damages suffered, since articles
37 and 39 of the Code of Penal Procedure (corresponding to articles
43 and 45 of the new Code) give him the right of direct recourse
to the civil court, as is necessarily the case when the act
is not classified as criminal but has caused injury.
The right to request
compensation for damages caused by the offence is thus not then
subject to the result of the corresponding criminal proceedings.
The bringer of the indemnification action may choose one of
the following options in order to obtain effective compensation
for the damage:
(a) Institute indemnification
proceedings before the civil court from the moment when the
allegedly illegal act takes place, in which case the result
of the indemnification action is independent of the result of
the criminal action; however, if the civil action is initiated
after judgement has been given in the criminal case, that judgement
creates res judicata in the civil proceedings if it is
recognized that the act alleged to have caused the injury did
not take place, or that the accused did not commit it, or that
he acted in the performance of a legal duty or in lawful self-defence.
(b) Initiate the
indemnification action as part of the criminal proceedings,
in which case the result of the plaintiff's action depends on
what is decided in the latter."
Constitutional Court has ruled that in military criminal procedure
it shall be mandatory for criminal indemnification proceedings to
be brought as part of the military criminal proceedings so that
the victims or their relatives may by this means claim compensation
for the damage caused. The Constitutional Court ruled as follows
in a custody judgement on 15 June 1994:
this Court has pointed out that article 229 of the Charter should
be brought into line with article 13 idem, so that the right
of 'access' on an equal footing to the courts means not only
an equal opportunity of being admitted to the courtroom but
also the right to identical treatment from magistrates and courts
vis-à-vis similar situations. It therefore constitutes
unjustified discrimination that persons who are victims of or
have been injured by offences investigated by the ordinary criminal
courts should have access to criminal indemnification proceedings,
while those who are victims of or have been injured by unlawful
acts investigated by military criminal courts cannot do so.
In view of the above,
the Court considers that if a person has been a victim of or
has suffered injury from an act investigated by a military criminal
court, he has right of access to criminal indemnification proceedings."
should also be noted that a reform of the Code of Military Criminal
Justice is currently in progress whereby criminal indemnification
proceedings become mandatory within that system.
as a means of creating a comprehensive system of compensation for
damage caused by violations of human rights by public officials,
the national Government is preparing a bill for submission to the
legislative chambers whereby it will be empowered to pay compensation
recommended by intergovernmental human rights organizations.
legal system in Colombia bans from its proceedings statements and
other evidence which have been obtained in violation of due process;
article 250 of the Code of Penal Procedure thus expressly rejects
"... has been
obtained illegally to determine liability. The official shall
order the rejection of evidence which is prohibited by law ...".
a safeguard, the exceptions to the obligation to testify are specified,
article 283 of the Code of Penal Procedure stating that:
"No one shall
be obliged to testify against himself or against his spouse
or permanent partner or relatives to the fourth degree of blood
relationship, the second degree of relationship by marriage
or the first degree of civil relationship.
The official concerned
shall inform of this right any defendant who is to be interrogated
and any person who is to give evidence."
addition, according to article 284 of the Code of Civil Procedure,
the following are exempted from this duty on account of their occupation
are not obliged to testify concerning what has been told them
in confidence or has come to their knowledge by virtue of their
ministry, profession or functions:
1. Ministers of
any religion recognized by the Republic;
3. Any other person
who by law can or must observe secrecy."
Supreme Court of Justice (Criminal Division, judgement of 24 March
1983), comments as follows on this matter:
this formality by the examining magistrate or official does
not in itself affect the validity of the evidence nor of the
case record to which he has access, though the person concerned
may indeed, by failing to carry out this duty, have committed
a disciplinary fault. On the other hand, if a person who knows
that he is exempted from the obligation to testify is by some
means compelled to do so, not only is the legality of the proceedings
invalidated, but the examining magistrate or official who proceeds
in such a way would be committing an offence."
296 of the Code of Penal Procedure stipulates as one of the requirements
that a confession should meet:
"4. That it
should be made consciously and freely."
this point, legal doctrine comments that the confession must be
correct, sincere and truthful, because in the other contingencies
described by the author the confession is not recognized by the
court, which must elucidate the facts with other items of probative
evidence, since it is not acceptable for the purposes we are considering
to admit what are called forced, imaginary, unwitting, untrue, involuntary,
rash, partial, or tacit confessions, confessions due to laxity,
etc., but on the contrary the confession must be complete and genuine.
Colombian punitive legislation provision is made for the application
of the ordinary system of penal justice to all persons who commit
punishable acts and come under its jurisdiction, i.e. do not have
the right to be tried by special courts as in the case of military
personnel, who, as laid down in the political constitution, must
be tried by military courts when their acts are committed in the
course of duty.
respect to the investigation of other acts that constitute cruel,
inhuman or degrading treatment or punishment but are not definable
as torture, the penal legislation has provided for this category
in Chapter 3 of Book 2, on protection of "personal autonomy",
which does not preclude, as is indeed explained in article 279 of
the Penal Code, the applicability of different penal categories
in the event that the offence is subject to a severer penalty and
that its definition corresponds to the unlawful act committed by
the agent. Within these categories are included the offences enumerated
in Title X against personal freedom and other guaranteed rights,
and the offences against life and personal integrity that are dealt
with in Title XIII of the Penal Code.
List of annexes
annexes are available for consultation in the archives of the United
Nations Centre for Human Rights.)
Constitution of Colombia, 1991
65 of 1993 establishing the penitentiary and prison code.
agreement on the rules governing the Code of Penal Procedure.
conventions and treaties adhered to bilaterally by Colombia.
49 of 1982 approving the Inter-American Convention on Proof of and
Information on Foreign Law.
21 of 1981 approving the Inter-American Convention on General Rules
of Private International Law.
16 of 1981 approving the Inter-American Convention on Extraterritorial
Validity of Foreign Judgements and Arbitral Awards.