CONCLUSIONS AND RECOMMENDATIONS

A. Conclusions

1. The Commission believes that the Republic of Colombia has adopted a number of laws that will assist in the observance of the rights recognized in the American Convention on Human rights, to which Colombia is a Party. The Constitutional Reform of 1979 conferred upon the Procurator General of the nation specific powers for the defense of human rights.

2. The Commission believes that the conditions deriving from the state of siege which has been in effect almost without interruption for several decades have become an endemic situation which has hampered, to a certain extent, the full enjoyment of civil freedoms and rights in that, among other things, it has permitted trials of civilians by military courts. The Commission also believes that in general the state of siege has not resulted in the suspension of constitutional guarantees and that, because of its peculiar features it has not posed a real obstacle to the operation of democratic institutions.

3. Under the aegis of the state of siege, and as a result of the measures adopted to maintain public order, the Government also issued the Security Statute, a legal instrument that brings together many provisions of earlier decrees. Although the Security Statute is exceptional in nature, it grants military and police authorities the power to impose penalties, it permits trials of civilians by military courts, restricts the right to a fair trial and other constitutional guarantees, and includes types of lengthy punishments that are inconsistent with the exceptional nature of the Stature.

4. The Commission observes that the conditioned Amnesty law promulgated by the Government did not produce the effects that were hoped for in terms of re-establishing peace and good social order among Colombians.

5. in connection with the right to life, judging by the examples given in Chapter II of this Report, the Commission is of the opinion that this right has been the object of violations, in some cases. The Commission realizes that investigations have been conducted to clarify facts and administrative and disciplinary measures have been taken in those cases. With respect to penal action to punish those responsible for these acts, these have been started by the trials have entailed lengthy legal procedures. Despite this, the government’s efforts have not been totally successful in preventing or suppressing these abuses.

6. With respect to the right to personal liberty, the Commission believes that, although the Government has attempted to meet and comply with the requirements in effect for application of Article 28 of the Constitution relating the arrest and detention of persons during times of peace when there are serious reasons to fear a disturbance of the public order, in practice there have been abuses of authority such as mass arrests, illegal detention procedures and in some cases illegal searches and seizures, and extension of the legal period for interrogation and investigation. In the opinion of the Commission, this is owing to the lack of regulations to determine the boundaries and the applications of Article 28.

7. In accordance with its reviews of the documents and information in its possession, which are given in this report, the commission believes that the right to personal security has also been violated. These violations have come during the interrogation stage of persons detained by reason of the measures promulgated to combat violence stemming from the action of subversive groups and have led to mistreatment and torture. The Commission also observes that, through the Office of the Procurator General of the nation, investigative procedures designed to verify claims made in connection with these violations have been initiated and conducted. However, virtually none of these cases has yet resulted in punishment of the alleged perpetrators. Many of the cases have been closed for lack of merit to continue the judicial investigation. It is obvious that the government’s efforts to prevent and repress such abuses have not produced sufficiently effective results.

8. As regards the jail system, the Commission recognizes the efforts the Colombian Government has made, through the ministry of Justice, to modernize the legal rules governing this system. In addition, the Commission has seen that persons held at the detention centers are well treated but that the conditions there are deficient. Among others is the problem of overcrowding owing to the large criminal population.

9. As concerns the right to a fair trial and due process, the Commission believes that the ordinary system of justice is operating normally and in accordance with the laws governing it. The military justice system does not offer sufficient guarantees because its rules contain restrictions on the right to a fail trial and in practice, procedural irregularities that impede due process have occurred.

10. The Commission believes that, in general, Colombian observes the other rights guaranteed in its Constitution and recognized in the American Convention on human Rights. Freedom of conscience and religion are exercised without qualification. Freedom of thought and expression are carried out with all necessary guarantees to make the, effective. The right of assembly and the freedom of association are practiced with a few restrictions deriving from the state of siege in effect and the Security Statute. The right to participate in government is fully practiced and these rights are helping to fortify the democratic system of the Government within the state of law that exist in Colombia.

11. The commission believes that the military operations that the Government conducted to combat armed subversions in rural areas have led to harmful excess against the local people, and, to a lesser extent, the Indian communities. These excesses have been abuses of authority that have led to mass arrests and displacement of citizens in rural areas. On the other hand, the commission believes that the Government has adopted measures, now being executed, that will be helpful in different ways to the Indian communities of Colombia and useful in solving their complex problems.

B. Recommendations

Based on the forgoing conclusions, the commission believes it appropriate to formulate the following recommendations to the government of Colombia:

1. Lift the state of siege soon as circumstances allow; and comply with the provisions of article 27 of the American Convention Human Rights.

2. In the future, apply article 121 of the constitution only in exceptionally serious cases.

3. Repeal the security statute as soon as circumstances permit. If the circumstances do not permit this, amend the statute to make it compatible with the new Penal Code and make its standards consistent with the guarantees on the American Convention on Human Rights.

4. As regards the right of life, adopt more effective measures to clarify fully questions relating to violations of this right and to punish those responsible for them, when called for.

5. As for the right to personal liberty, issue legal regulations for article 28 of the Constitution so that persons arrested or detained are guaranteed the right to fair trial, are informed of the charges against them as well as making known the time and place of their detention, and so that their legal status is defined in accordance with the legal terms for setting them free of placing them at the disposal of the competent authority, in accordance with article 7 and 8 of the American Convention on Human Rights.

6. As relates to the right to personal security:

a. The Office of the Procurator General of the nation, as an institution of the public ministry, should, on the basis conferred on him under the Constitutional Reform of 1979, expedite investigations into abuses of authority in the area of human rights for the purpose of punishing those responsible for mistreatment and torture.

b. Without prejudice to the matters discussed in the previous paragraph, the rules for the Office of Procurator General of the Nation should be amended so that he may have more effective instruments to investigate facts and to punish those responsible for them.

c. All interrogations of detained persons should be done in the presence of a defense attorney and the person conducting the interrogation should be identified.

d. Rules from competent authorities to the military units of the country to refrain from blindfolding detained persons who are being interrogated to determine the truth of the charges against them, should be enforced rigorously; and

e. All essential measures should be adopted to make necessary improvements to the detention centers; the new penitentiary code that is being drafted should be promulgated as soon as possible and this new code should provide the prisoners, inter alia guarantees of medical care, education, spiritual counseling and recreational activities, and existing overcrowding should be revealed; the budgetary amounts appropriated for that purpose should be executed.

1. with respect to the right to fair trail and due process:

a. The provisions of Article 62 of the Constitutional Reform of 1979 should be carried out for the investment of no less than 10% of the general expense budget for the judicial branch and The Public Ministry;

b. The military system of criminal justice should be modified substantially so that it effectively guarantees the right to fair trial of accused persons; and

c. The new Code of Military Procedure should be issued as soon as possible and this new code should either eliminate or, if this is not possible, limit military trials of civilians to crimes that truly affect state security.

2. As for military operations in rural areas and the protections of local people and Indian communities:

a. While these measures are being executed, all necessary efforts should be made to protect all persons not connected with the event, especially the rural people and Indians living in the areas where the operations are carried out.

b. Special mechanism should be put into practice in rural areas to process the claims of persons affected by such operations so that these persons are effectively protected; and

c. Special priority should be given to the Indian Development Plan now in process of execution; the rules of convention 107 of 1957 of the International Labour Organization in connection with this matter should be observed; and legislative measures aimed at promoting better living conditions and developing the Indian Communities, in a way compatible with human dignity, should be approved forthwith.