CHAPTER V

RIGHT TO PERSONAL LIBERTY

Transcribed below are the international provisions of the American Convention on Human Rights and the provisions of the 1991 Constitution of Colombia that protect and defend these fundamental rights and punish their violation:

A. LEGAL PROVISIONS IN RESPECT OF THIS RIGHT


American Convention on
Human Rights
Article 7. Right to Personal Liberty

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.
Colombian Constitution
Article 28. Every individual is free. No person or family may be molested, imprisoned or arrested, detained or their domicile searched, except by virtue of a written order from the competent legal authority, done in accordance with the proper legal formalities and for the reasons previously stipulated by law.

Anyone taken into preventive custody shall be brought before the competent judge within the next 36 hours, so that said judge may adopt the necessary decision within the time period prescribed by law.

No one may be detained, imprisoned or arrested for debts or subjected to any penalties or security measures other than those prescribed by law.

Article 53. Paragraph 5.
Labor law, contracts, agreements and conventions may not diminish the liberty, human dignity or rights of the workers.


B. PETITIONS THAT CONCERN THIS RIGHT

The right to personal liberty was discussed at length in the Commission's 1981 report because of the many petitions that had been received alleging violations of this right. At present, politically or presumably politically motivated arbitrary arrests have become selective rather than massive; in many cases, such arrests precede the persons' enforced disappearance. According to the information supplied to the IACHR, arbitrary arrest is a violation that affects all Colombian society.

The right to personal liberty has been reinforced by the new provisions of the 1991 Constitution and with abrogation of certain provisions in the previous constitution. Under article 28 of the old constitution, even in times of peace if there were serious grounds to fear disruption of public order, the Government, after consulting the ministers, could order, at its discretion, the arrest of individuals when there was serious evidence that they had violated the public peace. The Commission's last report on Colombia discussed the problems caused and the abuses committed with enforcement of this article of the constitution.

The Special Commission had an opportunity to hear firsthand from nongovernmental human rights organizations and representatives of other university, professional and religious institutions, how very selective the arrest warrants carried out by the police and army are, most of which are to arrest individuals associated, either directly or indirectly, with the subversive movement, trade union members suspected of acting as tools to disrupt social order in coordination with subversive movements, and the friends, relatives and associates of these persons, or human rights leaders and activists, who are automatically regarded as subversive collaborators because of the work they do to protect and defend human rights. In areas where the violence is greatest, such as Medellin and Barrancabermeja, the Commission was repeatedly told, quite plainly, that those who had nothing to fear, feared nothing; this underscored the eminently selective nature of the arrests and the fact that anyone who was in no way associated with the guerrilla warfare or counter-guerrilla warfare or who was not suspected of such associations, did not have to worry about arbitrary arrest, except if some mistake were made. The same sources, however, said that everyone was afraid of falling victim to some violation of the right to life, either when a bomb exploded or a weapon was fired.

As examples of violations of the right to personal liberty, the Commission will cite one where, as with so many other cases, the Government of Colombia was either directly or indirectly responsible. The case is No. 10,235 and concerned a series of events that occurred in 1981 and 1982 when high-ranking DIPEC officials like Col. Nacin Yanine Díaz--chief of that agency--and other agency officials carried out a series of operations to arrest a group of young men who belonged to a subversive organization. To obtain funds for their guerrilla activities, these young men reportedly kidnapped three children of a wealthy Colombian businessman associated with drug trafficking; when they were not paid the ransom that they demanded, they murdered the three children. What follows is an account of the facts and the decisions adopted by the Commission after exhausting the procedures established in the American Convention:

C. CASES INVESTIGATED BY THE COMMISSION

Case 10,235: Orlando García Villamizar and others

On October 6, 1981, a car was stopped at the third bridge on a highway north from Bogota. Inside the car were Zuleika Adied Alvarez Rojas, and Yadid and Yoluk Alvarez Murillo, who were on their way to school. The car and the children inside were intercepted by four people, one of whom was wearing the uniform of a traffic policeman; the other three claimed to be members of the F-2. The abduction of the children climaxed in late May and early June 1982, when the Alvarez children were killed by their abductors in the hamlets of Murcas and Patio Bonito, in the jurisdiction of the municipality of Gachalá (Cundinamarca). On September 18, 1982, F-2 agents with the National Police Force discovered their bodies in cloth sacks. The investigation into the kidnapping was conducted by staff of DIPEC under the command of then Col. Nacin Yanine Díaz. They arrested a number of people whom they suspected might somehow be implicated in the kidnapping and murder of the children. Between March 4 and September 13, 1982, as part of the operations conducted by the F-2, 13 people were either arrested or disappeared; two of them were eventually murdered. The sequence of events was as follows:

On March 4, 1982, as part of these investigations, two young men, Pedro Pablo Silva and Orlando García Villamizar, were arrested near the Universidad Nacional where the two were studying. Various witnesses watched as they were forced into a green panel truck, license plates HL 6794.

On March 8, 1982, two brothers, Samuel Humberto and Alfredo Rafael San Juan Arévalo, were arrested under similar circumstances. They, too, were university students.

On August 18 of that year, Edgar Helmut García, the brother of Orlando García, left his home for an appointment with Rodolfo Espitia, who was a neighbor, and with another mutual friend. Edgar Helmut took the opportunity to take his four-year old nephew, Camilo Andrés, for a walk. The child was the son of Orlando García who had disappeared. Edgar and Rodolfo never showed up for the appointment with their friend. The boy, Camilo Andrés, was delivered to the XV Police Station by Major Alipio Vanegas Torres, DIPEC's Chief of Counterintelligence.

On August 23, 1982, Gustavo Campos Guevara, also a student at the Universidad Nacional, was the victim of an enforced disappearance. The young man left his home for the university and never returned. As to his whereabouts, his family received one phone call from him, made from some military facility.

On September 11, 1982, Hernando Ospina Rincón was taken by individuals in civilian dress who identified themselves as members of the F-2. They appeared at his mechanics shop in the "Las Ferias" neighborhood of Bogota, in a wine-colored Mercedes Benz, license plates FC-9405. They asked for the owner of the shop and when Hernando identified himself as the proprietor, they shoved him into a coffee-creme colored panel truck, with the identifying numbers 459.

On September 12, 1981, one day later, another student, Rafael Guillermo Prado Useche, a friend of Pedro Silva and the García brothers, was arrested. At the time of his arrest, Rafael Guillermo was on his way to the shop of Hernando Ospina, where he had his car for repairs. The mother and sister of the young Prado Useche say that he was pushed violently into a wine-colored Mercedes Benz, license plate FC-9405, the same vehicle used by the abductors of Hernando Ospina Rincón the day before.

On September 13, 1982, Edilbrando Joya and Francisco Antonio Medina were taken. The former was a student at the Universidad Nacional and a friend of Edgar García. He was apprehended near his house in Bogota, by individuals in a red camper. Two days later, he was seen in the municipality of Gachalá, heavily guarded by F-2 personnel. Francisco Antonio Medina left his home on the morning of September 13 and never returned. His brother Arnulfo was taken that same day by F-2 personnel. Arnulfo's captors forced him to confess to his part in a kidnapping, telling him that they had already killed Francisco. On the night of September 13, Francisco Antonio Medina was found dead in a supposed anti-kidnapping operation in the town of Anolaima.

On September 15, 1982, in an F-2 operation in the municipality of Gachalá where Edgar García Villamizar and Edilbrando Joya had been seen, the intelligence corps apprehended the brothers Bernardo Helí and Manuel Darío Acosta Rojas. When Bernardo was arrested, his brother Manuel Darío, who was deaf, rushed at the F-2 agents who were beating up his brother, which is why he, too, was taken. There has been no further news of him. Bernardo Helí was found dead on October 7, 1982, supposedly "shot down" in a police operation conducted by those same F-2 agents. These arrests were made in two stages: four occurred in March 1982, and the others were made between August and September. This would appear to indicate that the purpose of the first arrests was to ascertain the whereabouts of the children of Jader Alvarez; the other arrests, which took place after the children's dead bodies were discovered, were for revenge.

The victims of the abductions in question were as follows:

1. Orlando García Villamizar, March 4, 1992;
2. Pedro Pablo Silva Bejarano, March 4, 1982;
3. Alfredo Rafael San Juan A., March 8, 1982;
4. Samuel Humberto San Juan A., March 8, 1982;
5. Rodolfo Espitia Rodríguez, August 18, 1982;
6. Edgar Helmut García Villamizar, August 18, 1982;
7. Gustavo Campos Guevara, August 23, 1982;
8. Hernando Ospina Rincón, September 11, 1982
9. Rafael Guillermo Prado J., September 12, 1982;
10. Edilbrando Joya Gómez, September 13, 1982;
11. Francisco Antonio Medina, September 13, 1982;
12. Bernardo Helí Acosta Rojas, September 15, 1982;
13. Manuel Darío Acosta Rojas, September 15, 1982.

Of the individuals named above, the following were defendants in the trial conducted by the 10th Superior Court of Bogota for the kidnaping and murder of the Alvarez children: Pedro Pablo Silva, Edgar Helmut, Orlando García Villamizar and Rafael Guillermo Prado Useche. Pedro Pablo and Edgar Helmut were convicted of the crime, subsequent to their disappearance. Orlando García and Guillermo Prado were cleared of all charges. The others who had disappeared and been murdered, were not named in the proceedings.

Processing of this case began on September 28, 1988, when the Commission forwarded to the Government the pertinent parts of the petition and requested any relevant information on the case.

The case was published in the annual Report of the Inter-American Commission on Human Rights for 1991, OEA/Ser.L/V/II.81, doc.6 rev. 1, February 14, 1992, Original: Spanish. Once the processing of the case was completed, it was submitted to the Commission at its 80th session, which resolved the following:

To declare that under the terms of Article 1.1 of the American Convention on Human Rights, the Government of Colombia has violated articles 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), and 25 (right to equal protection of the law) of that Convention of which Colombia is a State Party, in the abduction and subsequent disappearance of the following persons: Orlando García Villamizar; Pedro Pablo Silva Bejarano; Rodolfo Espitia Rodríguez; Edgar Helmut Garcia Villamizar; Gustavo Campos Guevara; Hernando Ospina Rincón; Rafael Guillermo Prado J.; Edilbrando Joya Gómez; Francisco Antonio Medina; Bernardo Heli Acosta Rojas, and Manuel Dario Acosta Rojas.

That Colombia must pay compensation to the victims' next of kin.

To recommend to the Government of Colombia that pursuant to the recommendations made by the fact-finding committees of the Office of the Attorney General and of the Attorney Delegate for Human Rights, it order that a thorough and impartial investigation of the facts denounced be reopened and that in view of the charges made by both those bodies and to avoid censurable acts that strike at the very grave but never disproved charges against the officers whose case was dismissed, it order that the case be reviewed taking into consideration the principle whereby res judicata does not exist when there has been serious judicial error.

To request that the Government of Colombia guarantee the safety of the witnesses to the events, who have risked their lives to provide their invaluable corporation in the efforts to ascertain the facts, and that it give them the protection they require.

To include this Report in the next Annual Report to the General Assembly of the Organization of American States.

Case 9477: Patricia Rivera

On November 28, 1984, the Inter-American Commission on Human Rights received a petition dated November 22, 1984, which was forwarded to the Colombian Government on December 5, 1984. The text of the petition, which was supplemented by information supplied by the parties, recounted the following facts:

At approximately 3:00 p.m. on December 10, 1982, in the city of Bogota, in the presence of a number of witnesses, PATRICIA RIVERA, her small daughters ELIANA and KATHERINE BERNAL RIVERA, ages 9 and 4, respectively, were seized on the street, despite their protests, their fierce resistance and their desperate cries for help. Also seized was an elderly gentleman, MARCO ANTONIO CRESPO, who had intervened to try to help. Mrs. Rivera and her daughters were in the vicinity of their residence when they were stopped by persons who identified themselves as belonging to a State security agency. Mr. Crespo, 74, tried to prevent the arbitrary arrest, but in the process became another victim. Neighborhood eyewitnesses to the abduction were Carlos Alfonso Olave Uribe, Ana Tulia Angel Angel, María Beatriz Roa, Crispin Rios Alvarez and Irma Mahecha de Montoya, who identified the abductors as detectives Alfonso Suarez Jaime, Campo Elias Tirado Amado and Jorge Luis Barrero or Borrero, members of the Administrative Security Department, DAS.

From the eyewitnesses' statements and the verbal descriptions that some of them provided, the identities of the officers who had participated in the abduction was established. Later, it was also shown that at the time of the disappearance, the yellow taxi, license plates SD-1485, which the witnesses had seen as the captives were forced inside, belonged to the Military Institutes Brigade, today the XIII Army Brigade, headquartered in Bogota. It was also clarified that Patricia was taken because state security agencies had mistakenly linked her with the kidnapping, some months earlier, of a well-known woman in Bogota society.

This complaint was forwarded to the Government of Colombia on December 5, 1984, and with that the statutory processing of this case began.

The information supplied by the Government of Colombia reported that the investigation into the facts denounced was instituted in Bogota's 81st Criminal Examining Court, which had implicated Alberto Alfonso Suárez Jaime, Campo Elías Tirado Amado, Armando Rodríguez Ossa and Jorge Luis Barrero or Borrero, in service with the DAS at the time these events occurred. The first three made unsworn statements before the 81st Criminal Examining Court of Bogota, while Jorge Luis Barrero or Borrero was declared defendant in absentia, since he was not captured even though that court had issued a warrant for his arrest. In a similar inquiry into the disappearance of Miguel Angel Díaz and Faustino López Guerra, Barrero or Borrero had been convicted and sentenced to 5 years imprisonment by the First Circuit Court of Tunja (Colombia), a sentence he served at El Barne prison in Tunja. The investigation into the disappearance of Patricia Rivera, her young daughters and Mr. Crespo is in the 103rd Criminal Examining Court and although almost ten years have passed since the crime was committed, no ruling has been handed down on the merits.

The facts denounced were witnessed by many people, many of whom either lived or worked in the neighborhood and therefore saw the abductors firsthand. They even tried to help Patricia Rivera and Mr. Crespo. The following were among the witnesses who cooperated:

CARLOS ALFONSO OLAVE URIBE knew Patricia personally because he had worked with her at Seguros Tequendama. The abduction took place at the street entrance to his tobacco shop so that he had a direct view of the abductors. Because their faces were not covered he was able to identify them. These individuals identified themselves to Patricia Rivera and to witness Olave as members of the F-2, and showed their Police credentials and a written arrest warrant for Patricia Rivera. They took her into custody on December 10, 1982, took her out of the tobacco shop and forced her and her small daughters into a yellow and black car. They refused to allow her to phone her family.

ANA TULIA ANGEL ANGEL, Mr. Olave Uribe's life-long companion and colleague, also witnessed the arrest of Patricia Rivera with her daughters and Mr. Marco Antonio Crespo; she was in the tobacco shop at the time and identified the individuals as F-2 agents.

MARIA BEATRIZ ROA DAZA, the cashier at La Milanesa Bakery, also located adjacent to the scene of these events, was an eyewitness as the elderly Mr. Marco Antonio Crespo, long a regular customer, entered the bakery to get help. He told her to stop eating because the F-2 was following him. She saw the young man face to face, who took out a radio transmitter and a card identifying him as an F-2 agent. She saw him take Mr. Crespo to the place where the other men were standing with Patricia and her small daughters and witnessed as they were all taken into custody and forced into a yellow and black cab.

CRISPIN RIOS ALVAREZ, the baker at La Milanesa Bakery, was, like María Beatriz Roa, working when he witnessed the victims being taken into custody. He also saw that Mr. Crespo was not allowed to telephone his family. He got a direct look at the faces of the abductors.

IRMA MAHECHA DE MONTOYA, a neighbor, was cleaning the windows of her house, meters away from where the events occurred. She witnessed everything and recalled it in vivid detail. She also saw the black and yellow cab into which Patricia Rivera, her daughters and Mr. Crespo were forced.

Based on the statements received and on the verbal descriptions of Carlos Olave, Crispín Ríos and Beatriz Roa, the 81st Criminal Examining Court arraigned ALBERTO ALFONSO SUAREZ JAIME, CAMPO ELIAS TIRADO AMADO and JORGE LUIS BARRERO or BORRERO. The first two made unsworn statements while the third was declared defendant in absentia. The testimony of the witnesses was corroborated by the statements made by officers Suárez Jaime and Tirado Amado, active members of the DAS at the time of the events.

The processing of case 9477 continued over a lengthy period, during which the petitioners and the Government of Colombia had an opportunity to make their respective allegations. The Commission took into account the fact that as the case unfolded, it was established that members of Colombia's intelligence service had participated in the events in which Patricia Rivera, Gilma Eliana and Katherine Bernal Rivera and Marco Antonio Crespo were taken into custody and subsequently disappeared; that the responsible parties, nevertheless, had never been sanctioned; that the Government of Colombia did not deny the facts but continued to insist that the remedies under domestic law had not been exhausted even though the case had been under investigation for more than 10 years, an argument to which no serious consideration could be given because of the unwarranted delay; and the fact that in resolutions AG/RES. 666 (XIII-0/83) and AG/RES. 742 (XIV-0/84) the General Assembly of the Organization of American States declared that "the practice of the forced disappearance of persons in the Americas is an affront to the conscience of the hemisphere and constitutes a crime against humanity."

At its 82nd session, the Inter-American Commission on Human Rights considered this case of arbitrary arrest that became the typical case of enforced disappearance, and in exercise of its authorities, found that:

The Government of Colombia has failed to comply with its obligation to respect and guarantee articles 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty) and 25 (right to judicial protection) in relation to Article 1.1, upheld in the American Convention on Human Rights, of which Colombia is a State party, in the abduction and subsequent disappearance of Patricia Rivera, Gilma Eliana and Katherine Bernal Rivera and Marco Antonio Crespo.

To recommend to the State of Colombia that it pay compensatory damages to the victims' next-of-kin; that it continue and expand the investigation into the facts denounced and punish those responsible; and that it guarantee the safety and give the necessary protection to the eyewitnesses to the events.
D. KIDNAPPING IN COLOMBIA

For many years now, kidnappings in Colombia where men, women, children and the elderly are seized in order to demand ransom from their families, have arbitrarily violated their right to personal liberty. According to statistics supplied by Colombia's National Police, the number of kidnappings wherein ransom was demanded went from 44 in 1980 to 781 in 1989, 1282 in 1990 and 1550 in 1991. Of these, approximately half have been the work of rebel groups while the other half have been the work of organized crime and profit-motivated. In effect, according to those sources, the guerrilla movement was allegedly responsible for 16 kidnappings in 1980, 401 in 1989, 599 in 1990 and 802 in 1991, while common criminals abducted 28, 380, 683, and 748 people in those same years. The National Police estimate that in 75% of the cases, the victim is released once the abductors have been paid a ransom; that in 14% the victims die (some are murdered by their abductors when no deal is struck; others die in captivity from health problems, while still others are killed in rescue attempts); 11% are rescued by the authorities.

The alarming increase in this vile and inhuman crime in Colombia is due to the following: 1) guerrilla organizations are now making widespread use of kidnapping to bankroll their activities or for the propaganda effect; 2) a relatively powerful criminal machinery is developing in Colombian society organized for the very purpose of abducting people for ransom. A fairly sophisticated set-up is needed to pull off a kidnapping and to be able to establish the potential victim's patterns, hold him in one place and negotiate the ransom. All this presupposes an initial investment. There are gangs of kidnappers who break up after a number of abductions; there are others that specialize in kidnapping and remain in operation longer.

Kidnapping is a very serious problem in Colombian society and has become quite sophisticated in terms of the criminal means used to perpetrate it. The reactions have been very violent; understandably there are those who demand harsher penalties for such criminal behavior. On the other hand, State anti-kidnapping mechanisms have been devised consisting of members of security agencies. On October 22, 1990, the National Security Council created UNASE (Special Anti-extortion and Kidnapping Unit), composed of members of the National Police, the Army and the DAS. It went into operation on November 1, 1990; its purpose is to secure the freedom of kidnapping victims. The thinking was that strengthening the security apparatus and making the penalties for these crimes tougher would help stop kidnapping.

While it is the Colombian State's obligation to protect citizens from behaviors such as kidnapping, it is also important to maintain proper control of the strategy adopted, since these anti-kidnapping apparatuses could lead to serious human rights violations, as demonstrated in the case known as "collective case" No.10,235, involving the enforced disappearance of the alleged kidnappers, mentioned earlier, or the rescue of Diana Turbay. In the Turbay case, several officers of the National Police were disciplined by the Office of the Attorney General in January 1992 because of excesses committed in the operation wherein the kidnap victim was killed.[1]

In the short time it has been in operation, UNASE has already been accused of human rights violations. Two examples are as follows: on September 11, 1991, three young students from Antioquia (Franklin Peláez, Camilo Alberto Cervantes, Luis Guillermo Agudelo) were found dead at kilometer 15 of the Santa Helena departmental road. Their bodies showed signs of torture. Some days earlier, these young men had been detained by ten men travelling about in two Mitsubishi jeeps. Apparently they belonged to UNASE. The Office of the Regional Prosecutor of Antioquia, therefore, was investigating that unit. Also, on April 14, 1992, two members of "A Luchar" (Elgilio Mejía and Egides Povedas), were found murdered at the site known as Punto Gallina in Plato (Magdalena). The two had been detained by members of UNASE.

Because these agencies are not subject to any type of control, some of their members end up being accused of human rights violations, engaging in the very activities they are supposed to combat. An example is the case of UNASE's Second Lt. Luis Jaramillo Bedoya, who was detained in early April 1992 on charges of having participated, along with other members of that specialized corps, in the abduction of a citizen.[2]

In August 1992, with the backing of a million signatures, a bill was submitted to Congress to combat kidnapping, a crime that, it is said, has become an industry in Colombia. The bill is the product of a study conducted by the "Fundación País Libre", created in 1992 after the release of journalist Francisco Santos, who was held by drug traffickers. Under the bill, which is an effort to arm the State with the legal means to wipe out kidnapping, the present penalty of sixteen years' imprisonment would be increased to sixty years; there would be no pardon or amnesty for these crimes and the property used in the kidnapping would be seized and the Prosecutor's Office would keep the assets of the kidnap victim, his or her close relatives, friends and any groups of which these people are members under surveillance; failure to report a kidnapping and participation in negotiating ransom and release would also be punishable as criminal offenses.

E. STATISTICS

POLITICALLY OR PRESUMABLY POLITICALLY MOTIVATED
ARBITRARY DETENTIONS, 1981-1991


1981 2322
1982 2400
1983 1325
1984 1783
1985 3409
1986 1106
1987 1912
1988 1450
1989 732
1990 1102
1991 1392

Total 18933[3]

 KIDNAPPING IN COLOMBIA

F. FINAL OBSERVATIONS

At present, arbitrary arrests by Colombian authorities for political or ideological reasons are selective in nature. There are many cases of individuals who disguise themselves as security agents for the purpose of kidnapping or extortion. Prolonged detentions beyond the time allowed by law are generally not reported. It is hoped that the provisions of the new Constitution and the activities of the institutions created to protect human rights will be effective in defending this right. It is also hoped that the rules governing the public order courts will not lead to abuses.

[1] See El Espectador, January 15, 1992.
[2] El Tiempo, Friday, April 10, 1992.
[3] Source: Information from the Andean Commission of Jurists, Colombian Branch, "La situación de derechos humanos en Colombia: compleja pero no confusa," Bogota, September 1992, p. 4.
[4] Idem.