HUMAN RIGHTS PROTECTION IN THE COLOMBIAN
LEGAL AND POLITICAL SYSTEM
A. THE POLITICAL CONSTITUTION OF COLOMBIA
1. Pursuant to its Political Constitution, Colombia is a unitary, decentralized republic, democratic, participatory and pluralist in nature, founded on the respect for human dignity. Colombian sovereignty belongs to the people, and public power emanates from the people. The people exercise their sovereignty directly or through their representatives.
2. The current Colombian Constitution was adopted in 1991. The previous constitution dated to 1886 and had suffered many amendments, including major amendments in 1910, 1936, 1945, 1957 and 1968. The adoption of the 1991 Constitution was seen as an extremely important step towards the modernization of the State, the diversification and amplification of the democratic process and the possibility of peace.
3. On August 24, 1990, the Government of President César Gaviria Trujillo convened a National Constituent Assembly, pursuant to Decree No. 1926. On December 5, 1990, the people of Colombia elected the 70 representatives who would serve in that Assembly. It was an historic election in that the voters and candidates included former members of armed dissident groups, recently reassimilated into mainstream society. For example, the leaders of the M-19 participated in these elections. The representation elected to the General Assembly was the following: Liberal Party - 25; Democratic Alliance M-19 - 18; Movement for National Salvation (Movimiento de Salvación Nacional) - 11; Social Conservative Party (Partido Social Conservador) - 5; independent Conservative Party ballots - 4; Patriotic Union (Unión Patriótica)- 2; Indigenous Movement (Movimiento Indígena)- 2; Evangelical Movement (Movimiento Evangélico) - 2; Hope, Peace and Liberty (Esperanza, Paz y Libertad) - 2; Revolutionary Workers' Party (Partido Revolucionario de los Trabajadores) - 1; Indigenous Movement Quintin Lame (Movimiento Indígena Quintín Lame) - 1. The last two elected representatives did not have the right to vote.
4. After six months in session, on July 5, 1991, the National Constituent Assembly enacted the new Constitution, which consists of 380 articles and 60 transitory provisions. At the time of the writing of the "Second Report on the Situation of Human Rights in Colombia," the new Colombian Constitution was of extremely recent implementation and application. At this time, seven years after the adoption of the Constitution, the Inter-American Commission on Human Rights (the "Commission", the "IACHR" or the "Inter-American Commission") is able to better analyze the application of the standards and mechanisms it provides for the protection of human rights.
B. THE STRUCTURE OF THE COLOMBIAN STATE
5. Like the 1886 Constitution it replaced, the 1991 Constitution establishes three branches of government: legislative, executive and judicial. It also establishes independent autonomous organs with specific functions to carry out the additional functions of the Colombian State. As the Commission noted in its "Second Report on the Situation of Human Rights in Colombia," the executive branch of government has historically been granted preeminent powers in the constitutional structure. However, the present constitution seeks to balance the relationship between the branches. To this end, the Constitution gives greater powers to the legislature to provide for political control over government and reinforces the independence of the judiciary and the role of judicial review of legislative and administrative acts. (See Organizational Chart of the Colombian State attached to this Chapter as Annex 1).
1. The Legislative Branch
6. The Legislative Branch consists of the Senate and the Chamber of Representatives, which together form the Colombian Congress which sits in the capital of the Republic. The basic function of the Congress is to amend the constitution, make laws and exercise political control over the government. Its members are all elected directly by the people for four-year terms of office. The Senate has 100 members elected at the national level, and the members of the Chamber of Representatives are elected by districts. Two additional seats in the Senate are set aside for representatives of the indigenous communities. Legislation may also provide for the election of members to the Chamber of Representatives, other than by district, to ensure the participation of ethnic groups and political minorities. Both the Senate and the Chamber of Representatives have committees on human rights.
7. The Congress has several important special powers. For example, Congress may grant amnesties or pardons for political crimes. Congress also has the power to approve or reject treaties which the Government makes with other states or with international bodies. Congress is required to give priority treatment to draft legislation for the approval of human rights treaties submitted by the Government for its consideration. The Congress may also grant the President of the Republic specific, extraordinary powers to issue norms that have the force of law, for a period of up to six months, when necessity or the public interest so requires.
2. The Executive Branch
8. The Executive Branch is headed by the President of the Republic, who serves as head of state, head of government and supreme administrative authority. The Executive Branch is also composed of the cabinet members and the directors of administrative departments. Pursuant to Article 188 of the Constitution, the President must not only observe and enforce the Constitution and the laws of Colombia but must also guarantee the rights and freedoms of all Colombians. The President has a term of office of four years and may not stand for re-election. The Cabinet includes the Ministers of Foreign Affairs, the Interior and Justice, all of whom fulfill important roles in the area of human rights protection. The Ministry of Foreign Affairs maintains constant relations with the Inter-American Commission, since it is the Government's foreign policy executor and leader for human rights and other issues.
9. Within the Office of the President of the Republic, there exists an Office of the Presidential Adviser for the Defense, Protection and Promotion of Human Rights (Consejería Presidencial para la Defensa, Protección y Promoción de los Derechos Humanos). This office acts upon complaints regarding human rights violations processed in the domestic systems. The Office performs this work in cooperation with the relevant authorities, particularly the Office of the Prosecutor General of the Nation (Fiscalía General de la Nación), the Office of the Procurator General of the Nation (Procuraduría General de la Nación) and the pertinent tribunals. The Office also works to address requests made of the Colombian Government by intergovernmental and nongovernmental international bodies, in connection with the human rights situation in the country and the obligations undertaken by the Colombian State by virtue of the treaties and conventions which it has ratified. This Office thus carries out work relating to cases and situations processed by the Inter-American Commission on Human Rights. The Office carries out this part of its work in cooperation with the Colombian Ministry of Foreign Affairs.
3. The Judicial Branch
10. The Constitution provides that the administration of justice in Colombia is the responsibility of the Constitutional Court, the Supreme Court of Justice, the Council of State (Consejo de Estado), the Superior Council of the Judiciary (Consejo Superior de la Judicatura), the Office of the Prosecutor General of the Nation, the various tribunals and judges and the military justice system. The Constitution establishes that the administration of justice is a public function. The decisions made by the judiciary are independent and its proceedings are public. (See the Chart of Jurisdictions in Colombia attached to this Chapter as Annex 2).
a. The Supreme Court
11. The Supreme Court is the highest of the courts in the ordinary jurisdiction. Twenty-three magistrates are elected to serve on the Court by the Court itself from lists of candidates submitted by the Superior Council of the Judiciary. The magistrates serve an eight-year term. The members of the Court sit in plenary and in separate chambers for civil, criminal and labor appeals.
12. The Supreme Court is appellate in nature but also has the responsibility of investigating and trying certain high-level officials in first instance for any punishable offense of which they stand accused. These officials include the President of the Republic, the cabinet ministers, the Prosecutor General, the Procurator General, the Ombudsman for Human Rights (Defensor del Pueblo), other high-ranking officials and members of Congress. The Supreme Court also acts as a tribunal of cassation, including in cases tried in the military justice system.
b. The Council of State
13. The Council of State is the highest tribunal in the contentious-administrative jurisdiction. It also serves as the Government’s advisory body on matters of administrative law. Twenty-six magistrates are elected to the Council of State by that same body from lists of candidates submitted by the Superior Council of the Judiciary. The magistrates serve an eight-year term. The members of the Council of State serve in plenary chamber and in the contentious-administrative chamber and in the advisory and civil service chambers.
14. The contentious-administrative chamber takes cognizance of actions seeking nullification, on the grounds of unconstitutionality, of decrees issued by the national government which do not fall within the jurisdiction of the Constitutional Court. It also hears cases alleging the illegality of national administrative acts issued by any branch of government or by private entities performing public functions. The third section of the contentious-administrative chamber handles matters of direct reparations for government acts and omissions which cause harm to individuals. These proceedings include those in which individuals seek to hold the State liable for human rights violations committed by its agents.
c. The Constitutional Court
15. The Constitutional Court represents the constitutional jurisdiction provided for as part of the Colombian judicial system. The Senate elects the magistrates of the Constitutional Court for an eight-year term. The magistrates should have backgrounds in different areas of the law.
16. The Constitutional Court has a number of functions, including the following: 1) decides cases brought by citizens alleging the unconstitutionality of acts that amend the Constitution on the grounds of procedural error; 2) decides whether the convocation of a referendum or constituent assembly to amend the Constitution complies with the Constitution where procedural error is alleged; 3) decides cases filed by citizens alleging the unconstitutionality of laws or decrees with force of law, on procedural or substantive grounds; 4) decides the constitutionality of the decrees issued by the Government pursuant to a declaration of state of emergency; 5) decides the constitutionality of draft laws and statutes that the Government has challenged as unconstitutional, on procedural or substantive grounds; 6) reviews lower court decisions on actions by individuals for the protection of constitutional rights ("tutela" actions); 7) decides the constitutionality of international treaties.
17. The Commission has observed that the Constitutional Court, which only began to function in 1992, has attained a high level of respectability and prestige through its independent and objective treatment of issues of great importance for the exercise of human rights and the rule of law in Colombia. The Court has issued well-reasoned decisions on issues ranging from the constitutionality of amnesties for political crimes, legislation relating to the rights of women in the work force, declared states of emergency, etc... The Court's role as the final arbiter in tutela actions, which serve to define fundamental rights, has also been extremely positive. The Court has issued decisions ordering protection for the rights of indigenous groups, members of the Patriotic Union political party and others. The Commission will discuss some of these decisions at greater length in the relevant sections of this Report. The Commission is very pleased to report that the Commission and the Constitutional Court of Colombia have developed a special agreement for cooperation between the two bodies. This agreement will be signed in the headquarters of the Commission on November 17, 1998.
d. The Office of the Prosecutor General of the Nation
18. The Office of the Prosecutor General of the Nation consists of the Prosecutor General, the delegate prosecutors (fiscales delegados) and other functionaries. The Supreme Court of Justice elects the Prosecutor General of the Nation, from a list of candidates submitted by the President, for a four-year term. The Office of the Prosecutor General forms part of the judiciary and enjoys administrative and budgetary autonomy.
19. The Office of the Prosecutor General has the responsibility of acting, either independently or in response to a complaint, to investigate crimes and to bring charges against suspects before the competent courts and tribunals in both the ordinary and regional justice systems. The Office of the Prosecutor General does not have this competence in the case of crimes which fall under the jurisdiction of the military justice system. The creation of the Office of the Prosecutor General and the resulting establishment of two separate entities for the investigation and the trial of criminal cases is an innovation in the 1991 Constitution.
20. In order to carry out its functions as an investigative and prosecutorial body, the Office of the Prosecutor General may adopt measures to ensure that criminal suspects will appear before the courts, including the issuance of preventive detention orders. The Office of the Prosecutor General also directs and coordinates the work of investigative entities which depend upon the National Police and other similar agencies. The Office may also adopt measures to protect victims, witnesses and other persons involved in criminal proceedings.
21. Within the Office of the Prosecutor General, there exist several areas which work closely with human rights cases. The Human Rights Unit (Unidad de Derechos Humanos) works to prosecute cases of special importance involving alleged human rights violations before the regional justice system tribunals. This Unit works with many of the cases which have been presented before the Inter-American Commission as individual complaints. The Office of International Affairs (Oficina de Asuntos Internacionales) works to coordinate with and provide information to international bodies, including the Commission, in regards to cases which are of interest to those bodies and which are being prosecuted by the Office of the Prosecutor General.
22. The Commission considers that the creation of the Office of the Prosecutor General of the Nation constituted an important advance in the administration of justice in Colombia. The Office has developed a reputation as a generally credible public office. It has also professionalized and made more efficient the investigation and prosecution of criminal cases, although there continue to exist serious problems in the criminal justice system in Colombia which will be discussed in greater depth later in this Report. As the Commission has previously noted, the Human Rights Unit of the Office of the Prosecutor General of the Nation deserves special recognition for having achieved advances in important human rights cases in the face of strong attacks from various sectors that have sought to impede the work of that office. The Human Rights Unit has ordered numerous detentions of alleged violators of human rights and has obtained some important convictions.
e. The Superior Council of the Judiciary
23. The Superior Council of the Judiciary is also an institution created by the Constitution of 1991. The Superior Council is divided into the Administrative Chamber (Sala Administrativa) and the Jurisdictional Disciplinary Chamber (Sala Jurisdiccional Disciplinaria). The Administrative Chamber consists of six magistrates, two of whom are elected by the Supreme Court, one by the Constitutional Court and three by the Council of State. The Jurisdictional Disciplinary Chamber is composed of seven magistrates elected by Congress.
24. The Superior Council of the Judiciary carries out numerous administrative and organizational duties relating to the Colombian courts and the practice of law in Colombia. For example, the Superior Council prepares lists of candidates for appointments to the judiciary, punishes misconduct by members of the judiciary and practicing attorneys, monitors the performance of law firms and offices and prepares the proposed budget for the judiciary.
25. The Superior Council of the Judiciary has one additional responsibility which has a significant impact on many cases involving serious human rights violations. The Superior Council has jurisdiction to settle the conflicts of competence which arise between the different jurisdictions. This role becomes relevant in human rights cases when the Superior Council must often decide whether a case should come under the jurisdiction of the ordinary justice system or that of the military justice system.
f. Military Criminal Courts
26. Article 221 of the Constitution of Colombia reads as follows:
Military courts martial or tribunals shall take cognizance, in accordance with the provisions of the Military Penal Code, of crimes committed by members of the Public Forces in active service and in connection with that service.( * )
This provision applies to members of the National Police as well as to members of the Military Forces (Army, Navy and Air Force), which together constitute the Public Forces.
27. The military criminal justice system in Colombia has been organized in accordance with the provisions of the Military Criminal Code (Código Penal Militar) issued on December 12, 1988, pursuant to Decree 2250. The commander of the respective division, brigade, battalion or other entity initiates the proceedings in the military criminal justice system and serves as the court of first instance in conjunction with the courts martial (consejos verbales de guerra) which he names. The courts martial are headed by the President of the Court-Martial, who plays a special role in the proceedings. The decisions of the courts martial may be appealed on certain grounds to the Superior Military Tribunal (Tribunal Superior Militar). The Superior Military Tribunal is the appellate tribunal in the military justice system. The President of the Superior Military Tribunal is the Commander of the Military Forces.
4. Organisms of Control (Órganos de Control)
28. In the section setting forth the structure of the State and establishing the three main branches of government, the Colombian Constitution also establishes the "organisms of control" which do not fall under the three main branches. The organs of control are the Public Ministry (Ministerio Público) and the Comptroller General of the Republic (Contraloría General de la República). The Comptroller General supervises the administration of public funds. The Public Ministry is assigned functions relevant for the analysis of the human rights situation in Colombia.
29. The Public Ministry is headed by the Procurator General of the Nation. The Procurator General is elected for a four-year term by the Senate from a list of candidates presented by the President, the Supreme Court and the Council of State. The Procurator General and his delegates are assigned a wide array of responsibilities, including the protection of human rights and the defense of the Constitution and laws of Colombia. The work carried out under the Public Ministry and the Procurator General is divided among the Office of the Procurator General of the Nation and the Office of the Human Rights Ombudsman.
a. Office of the Procurator General of the Nation
30. The Office of the Procurator General is responsible for carrying out disciplinary investigations and sanctions against State agents, including both civilians and members of the State's security forces. The Office thus has the right, for example, to investigate human rights violations and eventually to order the removal from service of members of the Military Forces, the National Police or any other State agent for responsibility in those violations. The Office of the Procurator General of the Nation is divided into the offices of the delegate procurators (procuradurías delegadas) to carry out this work. For example, there exist delegate procurators for human rights (responsible for disappearances, torture and massacres), for the Military Forces, for the National Police and for the Judicial Police.
31. The Office of the Procurator General also may intervene in judicial and administrative proceedings, including those carried out in the military justice system, when necessary to preserve respect for human rights. In practice, this faculty allows the Procurator's staff to request that additional persons be accused in criminal cases, that investigations be opened or closed, that charges be brought, etc... in both the ordinary criminal justice system and in the military criminal justice system. The Commission notes, however, that the Office of the Procurator General's intervention in criminal proceedings in the military justice system has been extremely limited.
32. The Office of the Procurator General plays an important and generally positive role in human rights cases. The sanction of State agents involved in human rights abuses constitutes an important piece of the reparation which must be provided in such cases. The Office of the Procurator General has applied disciplinary sanctions in many cases where the criminal proceedings have not resulted in the conviction and criminal sanction of the individuals responsible for human rights violations. Although the State is required in most of these cases to carry out effective criminal investigations and proceedings, resulting in the criminal sanction of those responsible, the State does at least discharge some of its duty to respond through the disciplinary sanction. Those who commit human rights violations, using their authority as public officials, should not continue to hold the same position of authority. Disciplinary proceedings in the Colombian legal system can serve to ensure that they are not allowed to do so.
33. It should be noted, nonetheless, that disciplinary proceedings in Colombia have not always functioned in this positive manner. In many cases, the proceedings have been ineffective and inefficient. The State has failed to sanction many human rights violators by allowing the disciplinary action to be barred by the statute of limitations or by acting ineffectively in gathering and preparing the necessary evidence. In other cases, the sanctions assessed have not reflected the seriousness of the violation committed.
34. The Commission notes that the Office of the Procurator General has the power to carry out disciplinary investigations and sanctions against those judicial authorities who act improperly in carrying out criminal proceedings, in both the ordinary criminal justice system and the military criminal justice system. This faculty could serve as an important tool for combating impunity in the administration of criminal justice. However, to the knowledge of the Commission, the Office has seldom carried out such investigations to a positive conclusion.
35. The Commission considers that the work of the Office of the Procurator General of the Nation should continue to improve to ensure that the Office fulfills its mission. The work of the Office should and can serve as an important tool for the protection and promotion of human rights in Colombia.
b. Office of the Human Rights Ombudsman
36. The Office of the Human Rights Ombudsman carries out its duties under the direction of the Procurator General of the Nation. The Ombudsman is elected by the Chamber of Representatives, from a list of candidates presented by the President, to serve a four-year term.
37. The Ombudsman works to achieve the promotion and protection of human rights. As such, he is responsible for carrying out education, training and publicity regarding human rights issues. In addition, the Ombudsman has the competence to invoke the right of habeas corpus and the ability to initiate tutela proceedings.
38. The Office of the Human Rights Ombudsman has played an important role in human rights protection in some cases. For example, in 1992 the Constitutional Court ordered the Office of the Ombudsman to prepare a report regarding the situation of the Patriotic Union political party. The report prepared was very clear and comprehensive and has served as an important tool for understanding the tragic and complex situation of the Patriotic Union. Similarly, the ombudsman appointed by the Office to the region of Urabá for several years, María Girlesa Villegas, played an important role in bringing human rights abuses in that area to the attention of the appropriate authorities and international bodies. The Office of the Ombudsman has also carried out important work relating to the indigenous populations. For example, the Office filed a tutela action on behalf of the U'wa indigenous community defending their right to be consulted adequately before oil exploration was carried out on their territory.
39. The Office of the Human Rights Ombudsman should receive the necessary support from the Colombian Government and other entities of the Colombian State in order to allow the Office to fulfill its promise as an organ dedicated to the promotion and protection of human rights.
C. CONSTITUTIONAL PROTECTION FOR HUMAN RIGHTS
40. Colombia has a long history of providing legal and constitutional protections for human rights. The forefather of human rights in Colombia, Antonio Nariño, translated the 1789 French Declaration of the Rights of Man from French to Spanish. As a result of his work, Colombia was perhaps the first nation in the Spanish-speaking New World where the subject of legal protection for human rights was discussed. The Colombian constitutions that predated the 1886 and 1991 constitutions recognized the existence of human rights in the Colombian legal structure.
41. The Constitution of 1991 demonstrates a renewed and deepened emphasis on the recognition and protection of human rights. The very nature of the State and its responsibilities, as set forth in Title I of the Constitution, reflect this emphasis. As noted above, the constitutional description of the nature of the Colombian State, found in Article 1 of the Constitution, includes a direct reference to the principle of respect for human dignity. Article 2 of the Constitution then proceeds to set forth the essential functions of the Colombian State, including that of ensuring the effectiveness of the principles, rights and duties set forth in the Constitution. That same article provides that the Colombian authorities are responsible for protecting the life, honor, property, beliefs, and other rights and liberties of those living in Colombia. Article 5 of the Constitution establishes that the State recognizes the primacy of the inalienable rights of individuals, without discrimination of any kind.
42. Title II of the Colombian Constitution contains an impressive catalogue of human rights. Chapter 1 of Title II is titled "Regarding Fundamental Rights." This Chapter sets forth, among others, the right to life and the prohibition against forced disappearances, torture and cruel, inhuman or degrading treatment and slavery. It also establishes the right to equal treatment and protection, the right to juridical personality, the right to personal and familial privacy, the right to free development of personality, the right to freedom of circulation, the right to honor, the right to political participation and the rights to freedom of conscience, religion, expression, reunion and association. The Constitution guarantees, in turn, the right of rectification. The death penalty is prohibited by this Chapter. This Chapter also sets forth the principle that peace is a right and duty.
43. Chapter I of Title II further establishes that the State must create conditions which allow the right to equality to become real and effective and must adopt special measures in favor of groups which suffer discrimination or marginalization. Further, the State must provide special protection for those who are especially weak, due to economic, physical or mental reasons. The Constitution further guarantees the right to work, teach, learn and research.
44. This same Chapter establishes that individuals have the right to be informed about the information relating to them which has been gathered in data banks or other records of public and private entities. The Constitution recognizes the right to correct that information.
45. Chapter I of Title II also set forth explicit rights relating to detention and due process. The authorities may not carry out any arrest or detention except as set forth by law and by written order of the competent authority, although perpetrators of crimes found committing a crime ("en flagrancia") may be detained and brought before a judge by any individual. Any individual placed in detention must be brought before a judge within 36 hours after his arrest. The right to due process applies in all judicial and administrative actions. Everyone is presumed innocent until proven guilty. Criminal defendants enjoy the right to a defense, a public trial and a publicly appointed lawyer or one of their own choosing, during the investigation and trial stages of criminal proceedings. Evidence obtained in violation of due process is considered null and void. The writ of habeas corpus, which must be decided within 36 hours, is also established.
46. Chapter II of Title I sets forth the social, economic and cultural rights recognized by the Constitution. This Chapter establishes that the family is the fundamental unit of society. It further establishes that violence within the family is considered destructive to that unit and will be sanctioned by the law. This Chapter also sets forth a catalogue of fundamental rights guaranteed to children, including the right to be protected from violence, exploitation and dangerous work.
47. Chapter II of Title I also sets forth the right to education, to Social Security, to health care, to adequate housing and to recreation. It also establishes the right to collective bargaining and the right to strike. The right to property is guaranteed, but the State is also obliged to promote collective ownership of property.
48. Chapter III of Title II sets forth collective and environmental rights. This Chapter provides for the right to a healthy environment. It also establishes the duty of the State to protect environmental diversity and integrity and to protect public space so that it may be reserved for common use. Finally, this Chapter prohibits the fabrication, import, possession or use of chemical, biological and nuclear arms.
D. CONSTITUTIONAL MECHANISMS FOR HUMAN RIGHTS PROTECTION
49. The primary mechanism for protection against human rights violations established in the Colombian Constitution is the "tutela" action. Article 86 of the 1991 Constitution provides for this cause of action. This action allows an individual to access the courts in an expedited manner to seek protection against current or imminent violations of "fundamental rights" protected by the Constitution. The Constitutional Court has the competence to review first instance decisions in tutela actions. In addition, the Constitutional Court has broadened the applicability of the tutela action through jurisprudence which expands the category of rights which may be treated in a proceeding of this nature. The Court has adopted a line of reasoning which allows the tutela action to be used also to protect rights which are related or connected to those fundamental rights specifically included as being subject to this protection pursuant to Article 86 of the Constitution.
50. The Commission has observed that the tutela action has become an important tool for the prevention of human rights violations and for the protection of the effective exercise of the rights set forth in the Constitution and in international instruments relating to human rights. The remedy has generally been applied broadly and rapidly. The decisions of the Constitutional Court in tutela actions have benefited sectors of society which traditionally have not had access to rapid and effective judicial protection, such as children, workers, indigenous communities and women.
51. In September of 1997, the Colombian Congress discussed legislation proposed by the Council of State, the Supreme Court and the Superior Council of the Judiciary which would have limited the tutela action. Congress did not adopt the legislation. However, the Commission considers it necessary to express concern regarding such proposals to reform the tutela action.
52. The Constitution also provides for the writ of habeas corpus as a mechanism for protection against illegal deprivation of liberty. Article 30 of the Constitution requires that a writ of habeas corpus must be decided within 36 hours.
53. In addition, the various judicial and control entities established in the Constitution, as described above, apply their procedures in human rights cases after a violation has occurred. These mechanisms, when they work properly and effectively, may provide for the investigation, processing and sanction of human rights violators as well as compensation for the harm caused.
E. STATES OF EXCEPTION IN THE COLOMBIAN LEGAL SYSTEM
54. Articles 212 and 213 of the Colombian Constitution allow the President, with the consent of his ministers, to declare a state of exception principally in two situations; the first is in the event of foreign war, while the second is in the event of a serious disruption of the domestic public order that poses an imminent threat to the stability of the democratic institutions, the security of the State or peace among the citizenry.( 1 ) The President may only declare a state of emergency in the second case when the emergency cannot be corrected through the use of the normal police powers of the State. The Constitutional Court engages in a review of the constitutionality of all declarations of states of emergency.
55. When the President declares a state of emergency, he enjoys special faculties to take measures to correct the situation which led to the declaration of a state of emergency and may issue special decrees with the force of law for this purpose. However, the Constitution limits the special faculties given to the President on these occasions to those "strictly necessary to correct the causes of the situation and to prevent the extension of its effects." The Constitution further provides that human rights and fundamental liberties may not be suspended during a state of emergency. The norms of international humanitarian law must also be respected at all times. In addition, the measures which are adopted pursuant to the state of emergency must be proportional to the seriousness of the situation.
56. The requirements for the declaration of a state of emergency and the restrictions on the measures which may be taken pursuant to such a declaration set forth in the Colombian Constitution appear to be generally compatible with the requirements established in Article 27 of the American Convention on Human Rights. The American Convention allows for the declaration of a state of emergency "[i]n time of war, public danger, or other emergency that threatens the independence or security of [the] State." The Inter-American Commission has repeatedly made clear that the conditions permitting the declaration of emergency are specifically stipulated and strictly interpreted.( 2 )
57. First, the circumstances invoked to justify the declaration of the state of emergency must be exceptional, very serious and must constitute an imminent threat to the organized life of the State.( 3 ) Second, the measures taken upon declaring a state of emergency are valid only so long as they are limited "to the extent and for the period of time strictly required by the exigencies of the situation."( 4 ) In addition, these measures may not be inconsistent with the State's other obligations under international law and may not involve discrimination on the ground of race, color, sex, language, religion, or social origin.( 5 ) Third, certain fundamental rights listed in Article 27(2) may not be suspended in any circumstances( 6 ).
58. The Commission notes that the 1991 Colombian Constitution provides additional limitations on the figure of the state of emergency in Colombia which constitute significant improvements over the parameters established in previous constitutions. The Constitution now establishes time limits for states of emergency. States of emergency declared as a result of war can last indefinitely. However, a state of emergency declared because of a grave internal disturbance may initially last only ninety days. It may then be extended twice. A second extension requires advance approval by the Senate. Legislative decrees enacted during a state of emergency may remain in effect for an additional 90 days after the state of emergency has ended. Thus, in the event of a grave internal disturbance, the President may declare a state of emergency which can continue for up to 270 days and may adopt special measures which may remain in place for as long as 360 days.
59. The Constitution also now provides for judicial review of state of emergency declarations by the Constitutional Court. The establishment of this check constitutes an important move forward. The Government must immediately refer to the Constitutional Court the legislative decrees it issues in exercise of the special powers granted pursuant to a declaration of a state of emergency. The Constitutional Court then makes the definitive ruling as to the constitutionality of the measures adopted.
60. The Commission has always considered that measures imposing a state of emergency should be exceptional and strictly supervised. The Commission thus always carefully analyzes this mechanism. In Colombia, careful supervision of the use of the state of emergency is particularly necessary. As the Commission noted in its 1996 Annual Report, Colombia had, at the time of that writing, been governed under states of emergency for 36 of its past 44 years.( 7 )
61. Despite the legal improvements mentioned above, the Commission continues to observe worrisome trends regarding the use of the state of emergency in Colombia. First, the time period established in the Constitution for states of emergency based on grave internal disturbance may be excessive in many cases. The state of emergency may only last as long as the exceptional circumstances leading to the emergency continue. The Commission finds it difficult to envision many situations where an extraordinary circumstance requiring a declaration of a state of emergency would continue for 270 days or nine months.
62. The Constitution does provide that the state of emergency must be terminated as soon as the situation of public disturbance has been resolved. The state of emergency may thus theoretically be terminated before the nine-month maximum period has expired. However, the existence of the lengthy maximum period in the Constitution encourages use of that full period of time. The Commission notes that such has been the experience under the 1991 Colombian Constitution. For example, President Ernesto Samper declared a state of emergency in October of 1995 which continued for the maximum period of time. On that occasion, the Government also took advantage of the Constitutional provision allowing the special measures adopted under the state of emergency to continue in effect for an additional 90 days. Colombia was thus governed under state of emergency measures for a full year.
63. This provision allowing for the special measures adopted to continue in effect for an additional 90 days after the termination of the state of emergency also concerns the Commission. As mentioned above, international law and the American Convention clearly establish that any special measures must be limited to the period of time strictly required by the exigencies of the situation. The Commission finds no justification for a Constitutional provision which allows special measures to continue after the state of emergency justifying those measures has terminated.
64. The Commission also expresses its continuing concern regarding the reasons presented to justify states of emergency and the types of measures adopted pursuant to those states of emergency. In its "Second Report on the Situation of Human Rights in Colombia," the Commission expressed its concern regarding the states of emergency announced in 1992, pursuant to Decrees 1155/92 and 1793/92. In this report, the Commission will refer to the more recent state of emergency declared in November of 1995 by ex-President Ernesto Samper, pursuant to Decree 1900 of 1995.
65. As justification for this declaration of emergency, the President cited "violent events in different areas of the country" and the murder of conservative politician Alvaro Gómez Hurtado.( 8 ) The Commission believes that the situation cited as providing grounds for the declaration of a state of emergency does not constitute an exceptional situation which could not have been addressed by normal means. The Commission notes, in this regard, that the American Convention permits restrictions and limitations on the rights protected therein which should be invoked before resorting to a state of emergency.
66. Additional violent events of the kind generally occurring in Colombia cannot justify a state of emergency, as they are not exceptional and do not constitute an imminent threat to the organized life of the nation. In the declaration of state of emergency, the President asserted that the violent events prove the existence of "various violent apparatuses" which have a capacity to destabilize the State. Yet, the President did not even make clear in the decree which of the various possible sources of violence (armed dissident groups, drug trafficking, etc...) were considered to have responsibility for the exceptional situation, requiring special measures to combat that source.
67. Nor may the assassination of political leader Alvaro Gómez Hurtado justify the state of emergency. It is an unfortunate fact that political leaders are often killed in Colombia. The situation was thus not exceptional and there is no indication that the normal police powers of the State could not function to clarify the death and bring those responsible to justice. In fact, the murder of Mr. Gómez was not clarified in judicial proceedings during the entire period of the state of emergency. More recently, the authorities have named suspects in the case, although no state of emergency exists.
68. The Constitutional Court confirmed the legality of the state of emergency in a decision issued in January of 1996. Some commentators have suggested that the Court did not adequately analyze whether a sufficient connection existed between the cited causes of the state of emergency and the special measures adopted to correct the situation. It has also been suggested that the Court approved this state of emergency as a result of political pressure placed upon the Court after it declared unconstitutional a previous state of emergency declared by President Samper in August of 1995.
69. The Commission wishes to emphasize the importance of judicial review of declarations of states of emergency. Such review provides a crucial guarantee against the declaration of states of emergency other than on the grounds and pursuant to the limitations set forth in the Colombian Constitution and international law. All entities of the Colombian State, including the Constitutional Court, should jealously guard this mechanism.
70. The Commission is thus concerned by additional information indicating that proposed constitutional reform measures presented in August of 1996 would have eliminated Constitutional Court judicial review of states of emergency.( 9 ) The Commission views as a negative development the proposal of these types of reforms. The adoption of such measures would clearly have a negative effect by eliminating judicial review. The mere proposal of these measures also may have a negative effect by serving as a means of political pressure on the Constitutional Court, thus limiting the Court's independence in reaching decisions regarding states of emergency.
71. The Commission also expresses concern regarding the nature of the special measures adopted by President Samper during the state of emergency declared in November of 1995. The vague rationale for the state of emergency based on "violent events in different areas of the country" makes impossible any analysis as to whether the measures adopted were those strictly necessary to correct the situation. This is particularly true since it is not even clear which sources of violence the measures were intended to combat.
72. Nonetheless, the Commission does note that many of the measures adopted provided the military with broad power over civilian authorities and the general population. Specifically, in April 1996 President Samper issued Decree 717, creating "special public order zones" ("zonas especiales de orden público"). In those areas of the country designated as public order zones, the military authorities acquired operational control over the territory and over all authorities, including local government officials and the judicial police.
73. The mechanism provided in Decree 717 for the designation of public order zones added to the transfer of power to military authorities. The decree provided that the local military commanders would, where they considered necessary, propose the designation of public order zones in the areas under their control. The governor of the relevant department would then define the public order zones based on this proposal.( 10 )
74. The special measures adopted in the public order zones included granting the military and the police authorization to carry out searches without judicial order. The military and the police also were authorized to detain, without a judicial order, any person considered to have a connection to criminal activities. The detained individual could then be held by the security forces for a period of 36 hours before being taken before a judicial authority.( 11 )
75. The Commission must note, in relation to these measures, that it has previously expressed concern regarding provisions which allow the military to carry out investigations and arrests, even in emergency situations.( 12 ) These functions should properly belong to regular or special judicial police forces acting under the supervision of the judiciary. The mobilization of the armed forces to combat crime implies placing troops trained for combat against an armed enemy in situations which require specialized training in law enforcement and interaction with civilians. In addition, this situation creates serious confusion regarding the balance of powers and the independence of the judiciary. The authority usually granted to the judicial bodies to order or deny searches, to order and carry out arrests or to release individuals in detention is transferred to authorities which form part of the executive branch. These difficulties lead to an additional concern regarding the provision which allowed these detentions by military authorities to continue without any judicial review for a period of 36 hours.
76. The militarization of the public order zones may have contributed to the violent events which occurred during the marches and activities organized by the inhabitants of Guaviare, Putumayo and Caquetá between July and September of 1996. These protest activities were directed against alleged abuses committed by State security forces in the course of implementing drug eradication strategies.
77. Confrontations occurred between the protestors and the security forces during the course of the protests. According to information received by the Commission from non-governmental organizations and eyewitnesses, the confrontations resulted in the arbitrary detention of more than 400 persons, physical violence against representatives of the press, the killing of 13 persons and the injury of 111 more.( 13 ) According to the information given to the Commission, the deaths and injuries resulted from the use of excessive force by members of the Colombian security forces. The Commission has received information indicating that Colombian security forces, on many occasions, used tear gas and discharged their guns to impede the advance of the protest marches without regard to the rules on proportionality in the use of force which govern such situations.
78. The Commission considers that, despite the remaining troubling questions regarding the use of states of emergency, it is nonetheless finally becoming clear in Colombia that this mechanism may only be used in exceptional circumstances and in a limited manner. The Government has recently desisted from declaring states of emergency in circumstances which, in the past, might well have provoked such a declaration. For example, the situation leading up to the municipal elections of October, 1996 presented extremely difficult circumstances, including the boycott of the elections by various armed dissident and paramilitary groups and the kidnapping of several Organization of American States ("OAS") election observers. Yet, the Government did not declare a state of emergency for the electoral period.
F. COLOMBIA AND INTERNATIONAL HUMAN RIGHTS LAW
1. Colombia's International Obligations
79. The Colombian State has shown an ever-increasing willingness to work cooperatively with the international community toward the improvement of the human rights situation in Colombia. To this end, in 1996, the Government of Colombia accepted the establishment in Bogotá of an office of the United Nations High Commissioner for Human Rights. The office began its work in the first part of 1997. Its mandate includes supervision of the human rights situation in Colombia and the provision of assistance to the Government, civil society and non-governmental organizations in the field of human rights protection. The office also has the competence to refer individual complaints which it receives to the pertinent international bodies, including the Inter-American Commission. The office is headed by Almudena Mazarrasa, a Spanish national, and began its work with a staff of only five human rights experts. Recently, there has been discussion regarding the possible expansion of the office. The Colombian Government has also signed agreements with the International Committee of the Red Cross and with the Office of the United Nations High Commissioner for Refugees to carry out work in Colombia. Within the Colombian Government, the 1290 Commission created by presidential decree brings together high-level Government officials to work on the implementation of general recommendations from international human rights bodies.
80. The Colombian State has signed and ratified most of the international covenants, protocols and conventions related to human rights. In addition to ratifying the American Convention on Human Rights on July 31, 1973, Colombia accepted the competence of the Inter-American Court of Human Rights on June 21, 1985. In the inter-American system, Colombia also ratified the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women on November 15, 1996 and the Protocol of San Salvador for the protection of economic, social and cultural rights. The legislature also recently approved legislation allowing for ratification of the Inter-American Convention to Prevent and Punish Torture.( 14 ) In the universal human rights system of the United Nations, Colombia is a party to the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Optional Protocol to the International Covenant on Civil and Political Rights as well as other important instruments relating to human rights. In addition, Colombia is a state party to the four 1949 Geneva Conventions providing for the application of international humanitarian law and their Additional Protocols of 1977, as well as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. (See Chart of the Status of Ratifications of the Major International Instruments Relating to Human Rights attached to this Chapter as Annex 3).
81. The Commission considers that the tasks being undertaken by Colombian authorities for the protection of human rights would be strengthened if the Colombian State were to ratify additional international instruments, such as the Inter-American Convention on the Forced Disappearance of Persons. The Colombian Government signed this treaty in 1994, but the Colombian Congress has not yet ratified the agreement. The Commission does note that the Colombian Constitution prohibits the forced disappearance of persons and the Colombian Government, in 1997, again presented legislation which would establish the crime of forced disappearance of persons. As of the date of the final approval of this Report by the Commission, the draft law had been approved by the Chamber of Representatives and was scheduled to be taken up by the Senate in the coming months.
82. Pursuant to article 93 of the Constitution of Colombia, international treaties and conventions relating to human rights prevail over contrary norms in the domestic legal system. In addition, the rights and duties set forth in the Constitution must be interpreted in conformity with the international human rights treaties ratified by Colombia.
83. Colombia has certain substantive and jurisdictional obligations which emanate from the treaties which it has ratified. First, Colombia must comply with the norms for the protection of human rights in the various treaties which it has ratified. Second, Colombia has accepted the jurisdiction of the international bodies established to serve as a last resort in cases where human rights violations have occurred and have not been corrected and/or repaired on the domestic level by the Colombian State.
84. The international bodies with jurisdiction over human rights cases, such as the Inter-American Commission on Human Rights, seek to ensure compliance with international norms. Where a violation of those norms occurs, the Inter-American Commission, the Inter-American Court of Human Rights or other international bodies may eventually issue a decision finding the State responsible for the violation and ordering the restoration of the violated right where possible, the punishment of those responsible for the violation and monetary and other compensation for the harm caused.
85. The Colombian State is obliged to comply, in good faith, with the recommendations of the Commission set forth in its reports on individual cases. This obligation derives directly from Colombia's commitment to provide for the protection of human rights, assumed through ratification of the American Convention on Human Rights and the Charter of the OAS. By nature of this commitment, Colombia is automatically required to observe the norms set forth in the American Convention as well as in the American Declaration of the Rights and Duties of Man. The Commission is the body in the OAS system which has primarily responsibility regarding human rights issues and has been given a role as a supervisory organ in relation to the States' human rights commitments.( 15 ) The Commission thus is charged with determining whether the State has failed to fulfill its freely-assumed obligations and, if so, with making recommendations for the resolution of the human rights situation. The State must comply with those recommendations in order to comply with the obligations it has assumed upon ratification of the American Convention and the OAS Charter.
86. Colombia is also bound to comply with the decisions issued by the Inter-American Court of Human Rights, which is a fully jurisdictional body which issues binding judicial decisions.( 16 ) The binding nature of the State's obligations is not construed as a violation of sovereignty or as a breach of the internal political and institutional structure since the State has freely accepted to be bound under international law.
2. Colombia's Compliance with the Recommendations of the Inter-American Commission on Human Rights
87. As regards the Colombian State's international obligations before the Commission, it must be noted that the Colombian Government has cooperated very fully in all aspects of the proceedings before the Commission. The Government demonstrates, through its representatives, great interest in its interactions with the Commission. The Commission appreciates and is grateful for the spirit of cooperation and collaboration displayed by the Colombian Government.
88. The Commission is pleased to note that the Colombian State has advanced significantly in the area of compliance with the Commission's recommendations since the publication of the "Second Report on the Situation of Human Rights in Colombia." The Commission stated, in its second report on Colombia, that the Colombian State had not heeded the Commission's recommendations regarding the payment of compensatory damages. The Commission noted, at that time, that even where the Commission concluded its examination of a case pursuant to the provisions of the American Convention on Human Rights and declared that the Colombian State was responsible for human rights violations, the State did not comply with the recommendation that compensation be paid to the victims of the human rights violations or their relatives.
89. At that time, the Colombian State sustained that victims of human rights violations, who had received a favorable decision from the Commission, would nonetheless be required again to submit their case to the domestic courts to seek compensation through the regular contentious-administrative proceeding. This position found its support in a decision of the Council of State addressing this question. That decision held that the Commission's recommendations are obligatory but that compensatory damages might only be paid pursuant to a domestic proceeding initiated for that purpose.( 17 )
90. Since the publication of the "Second Report on the Situation of Human Rights in Colombia," the Colombian State has eliminated the domestic legal barriers to compensation in compliance with Commission recommendations. In fact, the State has provided a special mechanism to facilitate State compliance with the Commission's recommendations regarding compensation.
91. The State took these important steps through the adoption of Law 288 on July 5, 1996. Law 288 provides that, "the National Government shall pay, after concluding the processing provided for by this law, the indemnization of damages caused as a result of human rights violations found in express decisions by certain international human rights bodies which will be named in this law."( * )
92. The law then proceeds to name the Inter-American Commission on Human Rights and the United Nations Human Rights Committee charged with supervising the International Covenant on Civil and Political Rights as the two international bodies whose findings will trigger compensation by the Colombian State. The law establishes a Committee of Ministers, composed of the Minister of the Interior, the Minister for Foreign Affairs, the Minister of Justice and the Minister of Defense. This Committee of Ministers must review the decision of the international body and issue a favorable opinion in order for the compensation to occur. The committee is required to issue a favorable opinion "in every case where the requirements of fact and law are met."( * )
93. The law also provides for an innovative procedure to be implemented where the Committee of Ministers does not issue a favorable opinion. In those cases, the State may not simply refuse to pay the compensation recommended without further action. Rather, the law specifically provides that the Government will be required to appeal the decision of the pertinent international body. When ex-President Ernesto Samper signed Law 288, he made clear that this provision requires the Colombian Government to take a case before the Inter-American Court of Human Rights in certain cases if the Government decides that it does not accept the recommendations of the Inter-American Commission. The law also provides that, if the Government fails to file the appropriate appeals in the international system within the pertinent deadlines, it must comply with the recommendation to provide compensation.
94. The adoption of Law 288 has had a dramatic positive effect in terms of securing Colombian compliance with the recommendations of the Commission regarding monetary compensation. The Committee of Ministers issued favorable opinions in nine cases decided by the Inter-American Commission before the passage of Law 288, paving the way for compensation in those cases pursuant to the recommendations of the Commission to that effect.
95. The law has not yet been applied in a sufficient number of cases to allow a full analysis of its functioning, but its application in the first case decided after passage of Law 288, the Arturo Ribón Avila case (11.142), is instructive. In response to the Commission's initial decision in the case, prepared pursuant to Article 50 of the Convention, the Committee of Ministers issued a favorable opinion for compensation only as to certain of the victims named in the case. The Committee of Ministers refused to issue a favorable opinion as to the other victims. The Government thus requested that the Commission reconsider its decision that the State was responsible for violations of human rights as to the other victims. The Commission considered the Government’s arguments in favor of reconsideration in the preparation of its second report, prepared pursuant to Article 51 of the Convention. The Commission made modifications to its original report but reaffirmed its conclusions regarding the human rights violations against all of the named victims. Upon receiving this second and final decision of the Commission, the Committee of Ministers issued a favorable opinion as to the remaining victims. All of the victims named in the case thus benefited from compensation.
96. The Government might have taken the Arturo Ribón Avila case to the Inter-American Court of Human Rights upon receiving the initial decision of the Commission adopted in conformity with Article 50 of the Convention. Pursuant to Article 51 of the Convention, the Government would have been required to submit the case to the Court within three months after the transmittal of the Article 50 report. However, the Government decided instead to request that the Inter-American Commission reconsider its decision. The Commission's second decision then became binding for purposes of the application of Law 288, because there exists no mechanism for further appeal or reconsideration of the Commission's second Article 51 decision. In addition, the possibility of an appeal to the Court was foreclosed because of the expiration of the three-month period. The State was thus required to provide compensation, pursuant to Law 288. The State complied with this obligation.
97. The Commission considers, nonetheless, that the decision of the Colombian State to send a future case to the Inter-American Court of Human Rights could constitute an important precedent. No State has yet brought a contentious case before the Court. The decision of the Colombian State to invoke the mechanism for appeal to the Court envisioned in Law 288 might allow the inter-American human rights system to move forward in a new and positive direction. Where States disagree with the Commission's decision, they might be encouraged to debate the case before the Court rather than simply ignoring the Commission's recommendations as has occurred in some cases in the past.
98. The Commission is, in general, extremely pleased with the adoption and application of Law 288. However, the Commission must point out some important difficulties which continue to exist in Colombia relating to compliance with Commission recommendations and the full reparation of human rights violations.
99. First, petitioners before the Commission have pointed to delays in the disbursement of compensation pursuant to Law 288. After the decision is made by the Colombian State to provide compensation through this mechanism, the case must still be sent to the contentious-administrative jurisdiction for final processing and a determination of the amount to be paid. This proceeding sometimes suffers from delay, according to information submitted by the representatives of some of the victims benefiting from Law 288. These delays may result from administrative or bureaucratic difficulties or from a failure by the Government to designate sufficient funds for this type of compensation in a timely manner.
100. Second, Law 288 establishes mechanisms for the implementation of monetary recommendations only. It does not provide for reparations to the affected community, for reparation of a symbolic nature (such as the establishment of a library in the name of the victims) or for compliance with the State's obligation to investigate, prosecute and sanction those responsible for committing human rights violations.
101. As the Commission has noted on numerous occasions, monetary compensation alone generally does not constitute adequate reparation for a human rights violation. For this reason, the recommendations issued by the Commission in individual cases generally include the following recommendations: 1) that the State undertake a serious, impartial and effective investigation of the facts denounced so that the events leading to the human rights violation may be clarified and so that the circumstances of and the responsibility for the violations found may be fully detailed in an officially sanctioned account; 2) that the State submit to the relevant judicial processes all of the individuals responsible for the violations which occurred so that they may be sanctioned; 3) that the State adopt measures to make full reparation for the violations found, including adequate and fair monetary compensation to the victims or their family members.
102. The Colombian State has not yet adopted mechanisms for compliance with all of these recommendations. The Commission would urge the Colombian State to seek means of broadening the current legal mechanisms for compliance with Commission decisions to address recommendations other than those relating to monetary compensation. At the same time, the Commission notes that the State may not suggest that the absence of such mechanisms excuses compliance with the Commission's recommendations. The Convention itself requires the State to modify domestic law or adopt new laws where necessary to allow full compliance with the obligations accepted through ratification of the Convention (18). In addition, the State may not validly argue that its domestic laws or legal regime prevent compliance with its obligations under international law. (19)
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
1. The Colombian State should provide adequate resources and support to the state entities charged with promoting and protecting human rights and investigating human rights abuses, particularly the Office of the Prosecutor General of the Nation, the Office of the Procurator General of the Nation and the Office of the Human Rights Ombudsman.
2. The Office of the Procurator General of the Nation should conduct serious, impartial and effective disciplinary investigations into the conduct of State agents alleged to have committed human rights violations.
3. The Office of the Procurator General of the Nation should play an active role in pushing for effective and impartial criminal proceedings in cases relating to alleged human rights violations.
4. The Office of the Procurator General of the Nation should take a more active role in reviewing the conduct of those members of the State’s public security forces who conduct criminal proceedings in human rights cases in the military justice system.
5. The Colombian State should abstain from adopting legislative or other measures which will limit the effectiveness or scope of the tutela action or which will limit access to that judicial remedy.
6. The President of Colombia should use his authority to declare a state of emergency only in truly exceptional and serious circumstances which constitute an imminent threat to the organized life of the State. Any state of emergency should comply with the formalities and standards set forth in article 27 of the American Convention and the jurisprudence of the Court and Commission with respect to that norm.
7. The Constitutional Court should continue to play an active role in reviewing the legality of declared states of emergency, and the Court’s authority in this respect should not be limited.
8. The Colombian State should consider the possibility of ratifying additional international human rights instruments, such as the Inter-American Convention on the Forced Disappearance of Persons.
9. The Colombian State should consider broadening the current legal mechanisms for compliance with Commission decisions in individual case reports to address recommendations other than those relating to monetary compensation.
10. The Colombian State should comply fully with the recommendations of the Commission formulated in individual case reports.
( * ) The text of Article 221 in Spanish reads as follows:
De los delitos cometidos por los miembros de la Fuerza Pública en servicio activo y en relación con el mismo servicio, conocerán las cortes marciales o tribunales militares, con arreglo a las prescripciones del Código Penal Militar.
( 1 ) The state of exception provided for in the Colombian Constitution essentially corresponds to the state of emergency permitted, in certain circumstances, under Article 27 of the American Convention on Human Rights. The terms "state of exception" and "state of emergency" will therefore be used interchangeably.
( 2 ) See, e.g., IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, 24 April 1997, at 14 [hereinafter Ecuador Report].
( 3 ) See id.; American Convention on Human Rights, art. 27(1).
( 4 ) American Convention on Human Rights, art. 27(1).
( 5 ) See id.
( 6 ) See American Convention on Human Rights, art. 27(2).
( 7 ) Annual Report of the Inter-American Commission on Human Rights 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., March 14, 1997, at 660 [hereinafter 1996 Annual Report].
( 8 ) See Decree 1900 of 1995.
( 9 ) The package of reforms presented by the Government and members of the Congress included other proposals relating to states of emergency. These proposals sought, for example, to eliminate the time limits on the duration of states of emergency and to remove from the legislature the limited faculties which it possesses when the President declares a state of emergency. These proposals for reform were eventually withdrawn or defeated. The Commission noted in its 1996 Annual Report that the reforms "raised serious questions about their compatibility with Colombia's obligations under the American Convention and other human rights instruments." 1996 Annual Report, at 658.
( 10 ) The Constitutional Court issued a decision on July 4, 1996 invalidating this particular provision regarding the designation of public order zones. The Court modified the designation process so that the governors could either designate public order zones or not on their own initiative, without deferring to the proposal of a military commander.
( 11 ) The proposed constitutional reforms mentioned above included a proposal to make permanent the provisions allowing for detentions without arrest warrants and granting military authorities judicial police functions. This proposal did not meet with success in the Congress.
( 12 ) See, e.g., IACHR, Second Report on the Situation of Human Rights in Colombia, OEA/SEr.L/V/II.84, Doc. 39 rev., October 14, 1993, at 61-62; Ecuador Report, at 16.
( 13 ) See Comisión Colombiana de Juristas, Colombia, Derechos Humanos y Derecho Humanitario: 1996, at 52.
( 14 ) At the time of this writing, the Colombian Congress had adopted legislation approving the ratification of the treaty. This legislation had been passed to the Constitutional Court for its review. The instrument of ratification will be deposited at the Organization of American States upon the issuance of a favorable decision by the Constitutional Court.
( 15 ) See OAS Charter, arts. 52, 111; American Convention on Human Rights, art. 44 et seq.; I/A Court H.R., Loayza Tamayo Case, Judgment of September 17, 1997, par. 80.
( 16 ) See American Convention on Human Rights, arts. 63, 65, 68.
( 17 ) See Decision of the Council of State in Case No. 461.
In Spanish, the law reads:
El Gobierno Nacional deberá pagar, previa realización del trámite de que trata la presente Ley, las indemnizaciones de perjuicios causados por violaciones de los derechos humanos que se hayan declarado, o llegaren a declararse, en decisiones expresas de los órganos internacionales de derechos humanos que más adelante se señalan.
In Spanish, the text reads: "en todos los casos en que se reunan los presupuestos de hecho y de derecho."
( 18 )See American Convention on Human Rights, art.2.
( 19 ) See Vienna Convention on the law of Treaties, art. 27.