Follow-up Report to the application in Colombia of the Recommendations of the Special Rapporteur on extrajudicial, summary or arbitrary executions - Executive SummaryDocument Transcript
Follow-up Report to the application in Colombia of the Recommendations of the Special Rapporteur on extrajudicial, summary or arbitrary executions -Executive Summary-The Colombian Commission of Jurists (CCJ) exhibits through the present summary the primaryconcerns and central topics of the Follow-up Report to the implementation by the State ofColombia of the Recommendations made by the Special Rapporteur during his visit to thecountry in June 2009. 1 This summary includes updated information up to June 2012 with regardto those aspects where such information was available.A. Homicides committed by Security forces1. Security officers continue to directly violate the right to life. The CCJ registered that, in theyear following the Special Rapporteur’s visit, 2 at least 70 people were victims of violations tothe right to life allegedly committed by security officers out of combat. 32. The military justice system continues to partake in the investigations and judgments ofextrajudicial execution cases, as well as it continues to lack collaboration with the ordinarypenal system.3. The Ministry of Defense, the Prosecutor General’s office (Fiscalía General de la Nación)and the Inspector General (Procuraduría General de la Nación) subscribed to a tripartiteagreement established in June 2011. In accordance to this agreement, the Government hasconformed a Technical group (Mesa técnica), that can “resolve jurisdictional conflicts whenthere is doubt about which natural judge has jurisdiction” 4 in cases regarding extrajudicialexecutions. This measure is openly unconstitutional because it ignores the fact that only theSuperior Judicial Council (sala jurisdiccional disciplinaria del Consejo Superior de laJudicatura)5 can decide the competent jurisdiction in those cases. Due to this, it is important tourge the Colombian State to implement measures that guarantee administrative and humanresources for the proper functioning of the Superior Judicial Council.4. Some of the military judges who have tried to comply with their duty to transfer theextrajudicial execution cases to the ordinary criminal system have been victims of threats andharassments. 65. Impunity in cases of extrajudicial executions committed by security officers that are beinginvestigated by the ordinary penal system continue. In the Soacha case, 7 even though there hasbeen a new condemnatory sentence on June 4 2012 against a mayor, a lieutenant, a private and1 Comisión Colombiana de Juristas. Informe de seguimiento a las recomendaciones del Relator Especial sobre EjecucionesExtrajudiciales, Sumarias o Arbitrarias. Febrero 16 de 2012. Available athttp://www.coljuristas.org/documentos/libros_e_informes/inf_2012_n1.pdf2 July 2009 to June 2010.3 Comisión Colombiana de Juristas. Cuadro de violaciones al derecho a la vida: ejecuciones extrajudiciales, homicidiossociopolíticos y desapariciones forzadas, Julio de 1996 a junio de 2010. Available at:http://www.coljuristas.org/documentos/cifras/cif_2012-05-04_01.pdf4 Procuraduría delegada para el ministerio público en asuntos penales. Oficio No. PDMP. 01182 del 02 de febrero de 2012.5 Constitución Política de Colombia, Artículo 256, numeral 6: “le corresponde al Consejo Superior de la Judicatura dirimir losconflictos de competencia que ocurran entre las distintas jurisdicciones”.6 Refer to the specific case of the military penal judge Alexander Cortés Cárdenas contained in pages 16 and 17 of the Report.7 Refer to the case of the Soacha individuals located on Page 20 of the Report.
2three professional soldiers for the extrajudicial execution of Fair Leonardo Porras, 8 there are 15pending investigations related with this case that have not advanced to this date.6. With regard to the adoption of legal measures that difficult the investigation of theviolations of human rights by the ordinary penal system and/or exonerate the authors of saidviolations from prosecution and trial, two initiatives of constitutional reform that would mean aregrettable setback in the fight against impunity in Colombia are being discussed in Congress: a. On February 2012 the national Government withdrew the proposal of a constitutional reform to the military jurisdiction included as part of the Justice’s reform bill,9 and in March they presented a whole new constitutional reform proposal, exclusively on restructuring the penal military justice system. 10 Up to this date, this last proposal has already been approved in the Congress in half of the debates it needs (4 out of 8) and it contemplates several concerning measures: - The creation of a new tribunal of criminal guarantees11; - The inclusion of a restrictive list of crimes excluded from the military justice system jurisdiction including a group of conducts that constitute severe violations to human rights: “The Military Penal System will not know about the crimes against humanity, crimes of genocide, enforced disappearance, torture, extrajudicial executions, forced displacement, sexual abuses, acts of terror against civilians and recruitment of children. Excluding the crimes stated above, the infractions to Humanitarian International Law will be exclusively known by the military courts.” 12 But it leaves other crimes, like arbitrary detentions, cruel, inhuman and degrading treatments, amongst others, out. - The attribution that is exclusively granted to the military justice system to investigate and judge International humanitarian law’s breaches exceeds the limited role that this type of justice should play in a democratic society. This draft bill also emphasizes in the need to “harmonize national legislation with international humanitarian law”, in the understanding that international humanitarian law would effectively allow an offensive position in the context of armed conflict, whereas national penal law would supposedly restrict security forces by only allowing a defensive position. This proposal is preoccupying because it can lead to a flexible interpretation of international humanitarian law, understood as a license to the parts in conflict to commit excesses and be exempt from responsibilities, as opposed to its main objective of protecting civilians and individuals not taking part of the hostilities.8 El Espectador. Junio 4 de 2012. Condenados a 52 años mayor y teniente del Ejército por falso positivo en Soacha.http://www.elespectador.com/noticias/judicial/articulo-350918-condenados-52-anos-mayor-y-teniente-del-ejercito-falso-positivo9 “Gobierno anunció retiro del fuero militar de la reforma a la justicia”, Eluniversal.com.co, Cartagena, febrero 19 de 2012, En:http://www.eluniversal.com.co/cartagena/nacional/gobierno-anuncio-retiro-del-fuero-militar-de-la-reforma-la-justicia-6556610 Proyecto de acto legislativo 192 de 2012 Cámara – 16 de 2012 Senado, “Por el cual se reforman los artículos 116, 152 y 221de la Constitución Política de Colombia”.11 The proposal to establish a special court of criminal guarantees that is allowed to participate “in any investigation or criminalproceeding against members of the security forces (Article 1)” is confusing, since is not easy to understand why there should besuch a wide power of control in all processes against military members, without a restriction, at least, to those processes in whichthe offense has a direct link with the service. But even if this form of control is restricted to the latter processes, this guaranteecourt would remain questionable, because it ignores the right to equality by establishing an unjustified difference in the treatmentof members of the security forces that are subjected to criminal proceedings and other persons who are under the samecircumstances. It is worth remembering that in both, ordinary and military criminal justice, there are “guarantees judges”responsible for protecting the constitutional rights of the accused. Thus, the draft bill seems to assume that these judges, in theordinary criminal justice and in the military criminal justice, do not fulfill their duty adequately, and therefore seeks to replacethem. So, this draft bill creates a parallel justice exclusive for the military, a privilege that opposes to the constitutional duty totreat all people equally.12 Congreso de la República de Colombia. Informe de Conciliación al Proyecto de Acto Legislativo Número 16 de 2012 Senado,192 de 2012 Cámara. Gaceta del Congreso, Año XXI número 340. Junio 12 de 2012
3 The creation of a mixed Commission (civilians and militaries) that can preliminarily investigate the facts in order to determine the competent jurisdiction in those cases where “doubts exist over the actual competence of the military justice system” is also included in the bill. This proposal entails a veiled constitutional reform since it modifies the competence to solve the conflicts between the civil and the military jurisdiction attributed to the Superior Judicial Council. It also alters the operating presumption which states that in case of doubt with regard to the competent judge for a crime committed by members of the military forces, it is the ordinary courts that have competence. b. On the other hand, the bill known as legal framework for peace (“marco jurídico para la paz”) has been approved by the Colombian Congress after eight (8) debates 13. It contemplates a reform to include in the Constitution the use of instruments of transitional justice (judicial and non-judicial), and concretely the implementation of selection and prioritization criteria for the criminal investigations. This selection would have as a purpose to allow the Congress to approve, through a law proposed by the Government, several criteria to guide the choice of certain violations of human rights and international humanitarian law to be investigated. With regard to those cases that are not selected, the State can choose to renounce to the prosecution. If such a proposal is approved, it would represent a grave failure of the Colombian State to comply with its constitutional and international obligations to investigate human rights violations, as well as an absolute opposition towards the jurisprudence of the Constitutional Court on the matters of access to justice, victim’s rights and human rights. Also, approving the use of selection criteria would mean the granting of prohibited judicial benefits which have already been tried through laws, but that haven’t been approved because judges have closed this alternative. Specifically, the possibility to renounce to investigate in cases of human rights violations or breaches of international humanitarian law was already established through the figure of “principle of opportunity” for demobilized paramilitaries, and it was declared unconstitutional by the Constitutional Court in 2010. The main argument in this decision was that the renounce to prosecute and sanction people who committed these crimes was in opposition to the Constitution and against the international human rights law, the international humanitarian law, and the international criminal law. Thus, approving the use of selection criteria would allow the State to renounce to the criminal prosecution in cases of human rights violations or infractions to international humanitarian law, openly going against the jurisprudence of the Constitutional Court and the main international human rights obligations. The prioritization means the implementation of criteria to decide which cases should be investigated first and which others should be investigated later. That could lead to a violation of the State’s duty to investigate human rights violations in a reasonable lapse of time, or could even involve, in the actual application of the measure, the renounce to the investigation of the cases, as a consequence of budget, capacity or technical limitations.13 See: Texto aprobado en Sesión Plenaria del Senado de la República el día 14 de junio de 2012 en segunda vuelta al Proyectode Acto Legislativo 14 de 2011 Senado, 94 de 2011 Cámara, “Por medio del cual se establecen instrumentos jurídicos dejusticia transicional en el marco del artículo 22 de la Constitución Política y se dictan otras disposiciones.”
4 Lastly, an additional concern with regard to this constitutional reform’s project is that it would open the door for amnesties towards military, police and state agents14 or demobilized paramilitaries who have are responsible of violations of human rights and international humanitarian law.7. Ministry of Defense’s Directive No. 029 of November 17, 2005, which offers rewards andincentives to the members of the armed forces that kill people in combat, is still in force. Eventhough the Ministry of Defense firmly states in a response to a request remitted by the CCJ, that “The Permanent Ministerial Directive 029 of November 17, 2005, is no longer in force”15, itdoesn’t accurately provide the information about the act that explicitly revoked the directive.The Ministry of Defense states that:“Currently the Permanent Ministerial Directive 021 of the 9 of July 2011 serves the purpose ofregulating the criteria for the payments of rewards” but informs that “The Directives inquestion are classified documents that have legal reserve [which means] that its circulation isrestricted and their contents deal with topics closely related to public defense and safety. As aconsequence, the lack of expedition of copies of these documents has legal support due to theprinciples of reason and proportionality (law 57 of 1985).”168. Since there has been a discretionary use by state forces members of the “confidentialexpenses” (gastos reservados) for paying rewards to informers, and the fact that thoseexpenses, along with other informal funds, are the more likely source of payments to recruitersin the cases of extrajudicial executions committed by state forces members17, it is necessary toinsist in recommending the monitoring by the Office of the Comptroller General (ContraloríaGeneral de la República). The monitoring of the use of the funds with which they allegedlypaid rewards to civilians, made by the Office of the Comptroller General, is of imperative need.The results of this monitoring should be public.9. The State has failed to provide adequate information about the suspension of public officialsinvolved in investigations for presumed extrajudicial executions.10. The State has violated the rights of extrajudicial executions victim’s families by grantingawards and acknowledgements to the members of the Security Forces that are beinginvestigated for their involvement in those crimes, and by the procedural actions made by theMilitary Defense (DEMIL) to obstruct the action of justice in extrajudicial execution cases.B. Killings and other breaches to humanitarian law made by guerrilla groups11. Guerrilla groups such as FARC and ELN continue to commit breaches to humanitarianlaw, against the lives of the population of Colombia. Furthermore, these groups continue toviolate the right to freedom and personal integrity by using weapons that are prohibited byhumanitarian law (landmines amongst others), kidnapping individuals and recruiting boys andgirls.14 The final part of the first section in article 1 of the bill calls: “A statutory law may authorize, in cases of a peace arrangement,to offer a differential treatment for the different members of the illegal armed groups who have taken part of the conflict, andalso for state agents, with regard to their participation in it”.15 Ministerio de Defensa, Oficio No. 14131/MDVPAIDH-725 de 20 de febrero de 2012.16 Ibidem.17 Naciones Unidas, Informe del Relator sobre ejecuciones extrajudiciales, sumarias o arbitrarias, Philip Alston. Misión aColombia. Documento A/HRC/14/24/Add.2 Disponible en:http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add.2_sp.pdf
512. With regard to the government’s position on the possibilities of peace negotiations with theguerrilla groups, President Juan Manuel Santos has given public declarations that disincentivespeople who are interested in elaborating proposals on the subject. Currently, the SuperiorTribunal of Cundinamarca is about to rule on an Action of Compliance (“acción decumplimiento”, a constitutional action to compel state agents to fulfill the law) against thePresident because he has not convoked the National Peace Council (“Consejo Nacional dePaz”) since his Government started in 2010.13. The Minister of Foreign Affairs has given declarations before the UN Security Council thatjeopardize UN agencies’ efforts in the protection of boys and girls victims of armed conflict, inaccordance to the resolution 1612 of the Security Council.C. Homicides committed by paramilitary groups14. The paramilitary groups have not been effectively dismantled. This has been recognized bythe Prosecutor General’s office (Fiscalía General de la Nación). However, the Governmentcontinues to deny the existence of said groups and considers them as organized criminals anddrug traffickers. This has negative consequences, particularly for the recognition, attention andprotection of their victims, who are not considered victims of the armed conflict anymore.15. The Government has promoted and supported the adoption of the “legal framework forpeace” bill18 and the law 1424 of 2010. This law hinders and blocks the Prosecutor General’spossibility to use valued information provided by the demobilized paramilitaries regardingserious violations of human rights in criminal investigations. But it was declared constitutionalby the Constitutional Court, arguing that the declarations proffered by the demobilized to a“non judicial mechanism towards the contribution of truth” (mecanismo no judicial decontribución a la verdad) can in fact be used in criminal prosecutions, only not in those againstdemobilized persons from their same armed group.D. Killings and threats against members of vulnerable groups and public servers16. During 2011, 33 human rights defenders were victims of violations to the right to life, thehighest number of this type of attacks since 1996. The National Labor union School (EscuelaNacional Sindical) registered that at least 23 union workers were murdered between Januaryand October 2011.In February 2012 written death threats against human rights defenders like the SantanderAgricultural Association (Asociación Agraria de Santander –ASOGRAS-), a group of peasantsand leaders of land restitution processes19 and 12 women, 20 among which is the Ombudsmandelegate for the Rights of Children, Youth and Women, 21 and people dedicated to the defenseof human rights including UN agencies present in Bogotá were made public. These threats were18 See number 6, supra.19 Direct urgent actions published by ASOGRAS and registered by the Comisión Colombiana de Juristas, received on February17th 2012, documents D-12016 y D-12017.20 Olga Amparo, Ana Jimena Bautista, Angélica Bello, Rubi Castaño, Piedad Córdoba, Maria Eugenia Cruz, Nini JohanaGonzales, Osana Medina, Claudia Mejía, Pilar Rueda, Yovana Sáenz y María Eugenia Urrutia. Tres hombres fueron tambiénamenazados: Iván Cepeda, Eusevio Mosquera y Gustavo Petro.21 Asociación de Afrocolombianos Desplazados (AFRODES), Afromupaz, el Alto Comisionada de las Naciones Unidas para losRefugiados (ACNUR), la organización Arco Iris, la Casa Mujer, la Consultoría para los Derechos Humanos y el Desplazamiento(CODHES), la Fundación Nacional Defensora de los Derechos Humanos de la Mujer (FUNDHEFEM), Juntos por la vida, lamarcha indígena, el Movimiento de Crímenes de Estado (MOVICE), el Programa de las Naciones Unidas para el Desarrollo(PNUD), la Ruta Pacífica y la corporación SISMA Mujer.
6allegedly made by the paramilitary group Águilas Negras. 22 In all cases, the pamphlets madereference to the participation of these individuals and organizations in the strengthening andguidance of victims in the processes of land restitution.17. There has been dialogue between the government of President Juan Manuel Santos andNGOs in relation to the defenders of human rights. However, cases like the stigmatization ofthe victims’ lawyers in the Mapiripán massacre and of the displaced people from Las Pavascommunity, demonstrate not only the continuation of declarations made by State authoritiesthat disqualify the work done by defenders of human rights but also the State’s denial of thereality of these situations. These circumstances continue to put at risk the victims and thehuman rights defenders.18. Three years after the public revealment of the illegal intelligence activities made by theAdministrative Department of Security (Departamento Administrativo de Seguridad –DAS-)against human rights defenders, magistrates of the High Courts, politicians belonging to theopposition, union workers and journalists, amongst others, there has been no ordinarycondemnatory decision against the individual state agents responsible for these crimes. Theonly condemnatory decisions issued have been the product of the acceptance of charges of theprocessed, or the result of pre-agreements with the Prosecutor General’s Office. These rulingshave not contributed to the efficient definition of the circumstances of time, mode, place, theactors and intellectual determiners responsible of these illegal activities.19. The surfacing of new facts that suggest that the illegal activities against defenders of humanrights, magistrates of the High Courts, politicians belonging to the opposition, union workersand journalists have not ceased is extremely preoccupying.20. It is important to recommend that Colombia presents concrete results regarding theinvestigation, judgment and sanction of Colombian ex President Álvaro Uribe Vélez and hisrelation with the violations of human rights committed by the Administrative Department ofSecurity -DAS-.21. The Constitutional Court and numerous international organs of human rights protectionhave urged the State of Colombia to comply with the measures ordered in order to guaranteethe protection of indigenous communities and Afro-Colombians. None the less, the measurestaken by the State have been more formal than material, thus meaning that both communitiescontinue to suffer the consequences of the disrespect of their ancestral territories and of thegrave violations against their human rights.E. Institutional Strengthening22. The State has taken some measures towards the strengthening of the Early Warning Systemof the Ombudsman Office (Sistema de Alertas Tempranas de la Defensoría del Pueblo -SAT-),which have been reflected in a better capacity of analysis. However, these measures have notcontributed to improve the effectiveness of the preventive response by the authorities, becausethese measures have not dealt with the problems of lack of independence of the IntersectionalCommission of Early Warning System (Comisión Intersectorial de Alertas Tempranas –CIAT-), which prevent the Risk reports presented by the SAT from becoming actual Early warningsand activating the institutional response on time.22 Direct urgent actions published by ASOGRAS and registered by the Comisión Colombiana de Juristas received on February29th 2012, documents D-12018 y D-12019.
723. The Colombian State continues to fail in the implementation of an information system asrecommended by the Special Rapporteur. This weakens the task of defending the rights of thevictims, prevents the families of the victims from accessing to information on the judicialinvestigations and contributes to the unawareness of the Colombian society about themagnitude of impunity in cases of serious violations to human rights committed in the country.ConclusionThe recommendations formulated in 2009 have only been partially implemented by theColombian State, and although the number of extrajudicial executions has apparentlydiminished after the visit of the Special Rapporteur, they continue to occur and the main causesfor their commission remain untouched. Not only is the level of impunity deeply worryingbecause of the insufficient results in the prosecution of the responsible state agents, but alsobecause of the Governmental promotion of practices and legislative measures to prevent themembers of the military from accountability. A renewal of the 2009 recommendations and aclose follow-up are necessary.Bogotá, June 15th, 2012