CHAPTER III

RIGHT TO PERSONAL LIBERTY [1]/

A. General Comments

1. Colombian law protects the right to personal liberty. The Constitution states, “No one may be molested in his person or family, or imprisoned or arrested, or detained, or have his domicile searched, except by virtue of a warrant issued by competent authority, with all legal formalities and for cause previously defined by law.” It goes on to say, “In no case shall there be detention, imprisonment or arrest for debts or purely civil obligations.” [2]/

2. The Colombian Constitution also contains a provision, article 28, which empowers the Government, after receiving the opinion of a council of Ministers, to apprehend and jail persons during times of peace when there are serious reasons to fear disturbances of the public order and there is good reason to suspect that such persons are acting against the public peace. The exercise of this power requires the observance of certain precise conditions: “If ten days have elapsed since the time of the arrest and the detained person has not been set free, the government shall proceed to order his liberty or shall place him at the disposal of competent judges with the alleged evidence in order that they may reach a decision in accordance with the law.” [3]/

3. Furthermore, the Constitution states in Article 121 on the power of the President to declare the public order disturbed throughout the entire county or part of it in a state of siege, that through such a declaration. “The government shall have, in addition to the powers conferred by domestic law, such powers as the Constitution grants for time of war or of disturbance of the public order, and those which, in accordance with the rules accepted in the law of nations, exist in time of war between nations.” [4]/

B. Charges in connection with this right

1. In 1979, in particular during the first few months of that year, the Commission received several claims relating to violations of the right of personal liberty. These charges mentioned irregularities and abuses of authority in arrest procedures, massive arrests of citizen, violations of constitutional guarantees and improper exercise of Article 28 of the Constitution by Colombian authorities.

2. During the on-site investigation of April 1980, and after it, the commission received new information regarding the same charges. The charges relate to the following events: a) arrests following raids; b) detention, including warrants; c) jailing, with the use of violence; d) detention including removal of personal effects; e) damages during the raids; f) jailing for more than ten days; and g) being held incommunicado for lengthy periods. [5]/

The Commission transmitted the pertinent parts of the charges to the Colombian Government, which has replied to the request for information. The government has states that, with respect to these matters, it has complied with the terms and formalities set in Article 28 of the Constitution and with the provisions relating to the Code of Criminal Procedure. In addition, it made a number of clarifications, which it considered appropriate.

Several examples of the Government¢s replies follow:

a) “The terms of Article 28 of the national constitution were complied with by keeping him in jail for a period of ten (10) days, as ere the terms on holding persons incommunicado and definition of legal situations as set out in Article 434 and 437 of the Code of Criminal Procedures;”

b) “Starting with the arrest, his legal situation was resolved opportunely and in accordance with the precepts and rules of Article 286 of the national Constitution, and Articles 431, 434 and 437 of the Code of Criminal Procedure;”

c) “For his transfer for the purpose of preventing his escape from the town of Bolivar to Bucaramanga and from Bucaramanga to Bogotá, he was taken under security arrangements in accordance with the Jail Code (Decree 1817 of 1964). In addition, there was no need to hold him incommunicado since, when he was arrested, his juridical situation was already defined.” [6]/

3. The Commission received a document on irregular arrests from a group of defense attorneys, which states:

As can easily be seen in this case, most of the accused persons were jailed, were deprived legal counsel, were held for terms of more than then days without being placed under the orders of the competent judge and were subjected to irregular interrogations. It is not true that there were orders to hold them under Article 28 of the National Constitution and therefore, rules set forth in Colombian law and in the United nations Charter were violated. These rules prevent authorities from acting this way and from holding persons for such lengthy periods without legal counsel and being subject to illegal and irregular measures.

A look at the file on the arrest warrants, place of imprisonment, length of time held and the lack of legal counsel in the interrogation will show this. These persons were kept at places other than normal jails, beyond all control. [7]/

4. Among the charges it received, the Commission processed the claim for Mr. Sergio Roman Betarte Benitez, an Uruguayan. In the pertinent parts this claims states that he was arrested on January 3, 1979 after having given unsworn testimony to the judge and held at the Cavalry School and later on, at the La Picota Penitentiary in Bogotá. [8]/

In a letter dated January 19, 1981, the Government of Colombia answered the Commission as follows:

SERGIO ROMAN BETARTE BENITEZ, accused of the crime of rebellion, was captured on January 3, 1979 by troops of the Military Institutes Brigade. Testimony taken on January 11, 1979, by the first Military Criminal Instruction Court. In this procedure, he was represented by Dr. José Luis Rois Aguilar, and later by Dr. Arturo Fúene Macías. In his unshorn statement, he makes no reference to mistreatment.

The office that conducted the investigation ruled on January 20, 1979, that he should be held under preventive detention. While being tried by court-martial, he was sent to the Superior Court (division) of Bogotá since it had jurisdiction and there he was set free.

On March 3, 1981, the claimant commented on the government¢s reply. The pertinent parts of those comments, which were transmitted to the Colombian Government in letters dated march 18 and April 3, 1981, are as follows:

I have reread several times the letter dated January 19, 1981, in which the Colombian Government notified you to the following effect: “Sergio Román Betarte Benítez, accused… while being tried by court-martial, was sent to the Superior Court (division) of Bogotá since it had jurisdiction and there he was set free.”

Mr. Betarte Benítez is a prisoner at the central penitentiary of Colombia (La Picota) in cell block No. 1, cell No. 329, at the disposal of Judge 106 of the military criminal instruction court, following a ruling issued by the Commanding Officer of the Military Institutes Brigade, Brigadier General Josue Leal Barrera, on February 26, 1981.

Mr. Betarte Benítez in under the orders of Judge 106 of the military criminal instruction court and is accused of a crime that is being tried in an oral court-martial which is now in the public stage and is being conducted for those accused of belonging to the April 19 movement (M-19).

This is a flagrant violation of the unity of the case, as contained in Article 26 of the Constitution of Colombia.

He was separated from this court-martial on January 13, 1981, when, on the instructions from the presiding officer of the court-martial, he was placed at the disposal of the commanding officer of the Military Institutes Brigade.

On January 22, 1981, a request to revoke the warrant of imprisonment against him was submitted to that commanding officer. The request was denied, in said document of February 26, 1981.

It is also true that he has been tortured, as previously communicated to you.

Mr. Betarte Benítez was never placed at the disposal of the civil or ordinary system of justice and has been in jail since January 3, 1979, without ever having gained his freedom during that time.

In March 1981, the Commission met with Mr. Betarte at the La Picota prison. Mr. Betarte turned over documents relating to his case and requested the Commission to intervene on his behalf before the Colombian government so that he could be deported to Sweden a county that had granted him a visa. A ticket for this trip was given to him through the offices of the United Nations High Commissioner for Refugees, which, as he stated, declared him a political refugee on November 20, 1980. The Commission made this known to the Government on March 18, 1981, and requested that it consider the matter in light of Colombian law.

On June 16, 1981, the Colombian Government replied. The pertinent parts of the government¢s reply are as follows:

1. The presiding officer of the oral court-martial against the members of the M-19 subversive movement, for rebellion and other crimes, separated Sergio Román Betarte Benítez from that case in January, 1981 and placed him at the disposal of the Military Institutes Brigade where he is being tied for kidnapping former Ambassador Miguel de German Ribón. The accused is in the La Picota jail of Bogotá.

2. Due to an error in the source of information on this case, it had been communicated that Betarte Benítez had been set free when in fact that release had been accorded to another Uruguayan citizen also associated with the M-19 case. That error is hereby corrected.

3. With respect to the unity of the case mentioned by the attorney of Betarte Benítez, this is a technical procedural question dealt with by the presiding officer of the court-martial, whose decisions the national government may not review and in any case, it does not constitute a violation of a human right.

4. As so explained the recourses of domestic jurisdiction nave not yet been exhausted.

C. Application of Article 28 of the Constitution

1. On April 16, 1979, the Commission received and processed a claim dealing with the application of Article 28 and alleged violations of the provisions of the American Convention on Human Rights. The pertinent parts of the charges are as follows:

In accordance with Article 46 of the Convention, the remedies under domestic law have been exhausted and, there has also been an unjustified delay in the decision of the Government of Colombia with respect to may request of February 8, 1979.

Concretely, on February 8, 1979, I sent a respectful petition to the President of Colombia in which I requested suspension, as promptly as possible, of the application of Article 28 of the National Constitution because it was being used not only to deny habeas corpus in cases of arbitrary detentions and other basic procedural guarantees, but also to violate the American Convention on Human Rights of 1969 and the International Pact on Civil and Political Rights of the United nations of 1966. Both of these international instruments were signed and ratified by Colombia and put in effect in this country.

On February 13, I received telex No. 014138 from Diana Turbay Quintero, the private secretary of the President, in which she acknowledged receipt of my note dated February 8, 1979, to the President. On the same day, through another telegram, I requested the President of the Republic “to make an urgent, thorough reply to may attentive request of February 8, with respect to suspension of Article 28 of the Constitution since it is in violation of the international pacts on human rights.”

On March 20, 1979, I send another telegram to the President of the Republic: “For purposes of exhausting remedies under domestic law, and in the exercise of the constitutional rights of petition, I respectfully request you to reply to my attentive petition of February 8 on suspension of application of Article 28 of the Constitution because it is in violation o International of American treaties on human rights.”

To date, however, the President of Colombia has not replied to my request of February 8, 1979, and therefore I believe that the remedies of Colombia¢s judicial system have been exhausted, a conclusion that can be reached through interpretation of a paragraph of Article 18 (administrative silence) of Decree 2733 of 1959 which regulates the right of petition and issued standards on administrative procedures:

“Paragraph. Governmental procedures shall be considered to be exhausted when several of the remedies mentioned in the foregoing articles have been interposed and they are understood to be denied after the term of one (1) month has passed without any final ruling on them.”

It is obvious that more than sixty days have passed without the Government of Colombia having replied to my petition as is ordered under the terms of Article 1 of Decree 2733 mentioned above: “It is a basic duty of all public officials or agencies connected with branches of public authority or with the official or semiofficial, national, departmental or municipal establishments or institutes, to make effective the exercise of the right contained in Article 45 of the Constitution by promptly and opportunely ruling on petitions which, in the terms described, are made to them and which have a direct bearing on the activities for which they are responsible.”

I. BACKGROUND

1. On January 2, 1979, the Government of Colombia initiated application of paragraphs 2 and 3 of article 28 of the National Constitution:

“Art. 28, No person may, even in time of war, be punished ex post facto, and no punishment shall be inflicted if it is not under a law, order or decree in which the act has been previously prohibited and the punishment for its commission established.

“Even in time of peace, if there are serious reasons to fear a disturbance of the public order, this provision shall not prevent the arrest and detention by order of the Government, upon previous advice of the ministers, of persons suspected with good reason of attempting to disturb the public order.

“If ten days have elapsed since the time of the arrest and the detained person has not been set free, the Government shall proceed to order his liberty or shall place him at the disposal of competent judges with the alleged evidence in order that they may reach a decision in accordance with the law.

2. By means of application of Article 28 of the Constitution, the Government of Colombia has proceeded to detain many persons who are suspected of “disturbing the public order.” [9]/

II. LAW

It is obvious that Colombia has agreed, through the American Convention on Human Rights, “to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those tights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other social condition.” (Article 1). Likewise, it agreed to adopt, “in accordance with either constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedom” (Article 2).

If as yet the Government of Colombia has not adopted, as the current international instruments on human rights establish, “such legislative or other measures as may be necessary to give effect to those rights or freedoms” contained in the American Convention on Human Rights, it should at least abstain from applying paragraphs 2 and 3 of Article 28 of the National Constitution since their application is manifestly violative of the Pact of San José.

Certainly the Government of Colombia cannot, without violating the principle of good faith in compliance with its international obligations, apply paragraph 2 and 3 of this article on arrest and detention of persons “suspected with good reason of attempting to disturb the public order” because by so doing it violates articles 7 and 8 of the American Convention on Human Rights.

Article 7 of the Convention provides, on one hand, the right of all persons of personal liberty and security (No.1) and, on the other, that “No one shall be deprived of this 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” (paragraph 2). The causes of deprivation of physical freedom are given in Title V (capture, detention and liberty of accused persons) in the criminal procedure code which are consistent with Article 23 of the National Constitution: “No one may be molested in his person or family, nor imprisoned or arrested or detained, or his domicile residence searched, except by virtue of warrant issued by competent authority, with all legal formalities and for cause previously defined by law.

The application of paragraphs 2 and 3 of Article 28 of the Constitutions violates the guarantees, “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” (Article 7.4 of the Convention). The ten-day term is inconsistent with the clear conditions, promptly, and exempts the government of Colombia (in this specific case, the military authorities who raided the domiciles and held the persons) from the obligation of notifying every person held of the criminal charges made against him.

The application of paragraphs 2 and 3 of Article 28 of the Colombian Constitution also violates the guarantees, “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” (Articles 7.5 of the Convention). The power of the Government of Colombia to hold for ten days “persons suspected with good reason of attempting to disturb the public order” violates, in consequence, the guarantee of every criminally accused person to be taken ipso facto (promptly) to his natural judge, or to be set free within the normal terms established by the Colombian Code of Criminal Procedure.

It has been widely denounced that military officials detain persons for “interrogation” for a term of ten days under the detention procedure provided in Article 28 of the Constitution, and that this is done not taking into account the retroactive application of such a provision as has been denounced by the defense attorneys of persons being held on suspicion “of attempting to disturb the public order.”

In addition, paragraphs 2 and 3 of Article 28 of the Constitution violate the universally recognized guarantee of habeas corpus against arbitrary detention or jailing. This is recognized officially not only in Colombia¢s Code of Criminal procedure (Article 417 to 424) but also in Article 9.4 of the International Pact on Civil and Political Rights of the United Nations and Article 7.6 of the American Convention on Human Rights.

Article 7.6 of the Pact of San José reads:

“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. If 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.”

In consequence, paragraphs 2 and 3 of Article 28 of the Constitution, in the same form as the application of Article 425 of the Colombian Code of Criminal Procedure (“The provisions of this chapter shall not be applicable to the cases discussed in the second paragraph of Article 28 of the national Constitution unless the term of detention set in paragraph 3 of that article has lapsed”), constitute a serious restriction on the remedy of habeas corpus and therefore their current application by the Government of Colombia constitutes violation (ultra-vires) of the American Convention on Human rights.

Finally, the application of paragraphs 2 and 3 of Article 28 of the Constitution violates the judicial guarantees of right to a fair trial established in Article 8 of the Convention, in particular the guarantees included in paragraph 1 of that article:

“Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal or any other nature.”

Unquestionably, the military or governmental nature of the military criminal justice system that is being applied against civilians or residents in violation of Articles 26, 55, 58 and 61 of the constitution of Colombia violates the requirement of competent, independent and impartial court provided in the Pact of San José and disregards the universally recognized legal principle of nemo udex in sua causa. Article 170 of the Constitution of Colombia provides a court-martial or military tribunal to try “crimes committed by military personnel in active service and in connection with active service, “ but not to try the crimes of either a common or political nature which ordinary citizens may commit. The institution of competent authority (the trial judge), especially in criminal matters, is officially recognized in Article 23 of the Colombian Constitution.

Furthermore, most of the new guarantees provided in the Pact of San José (Article 8) are being violated by the military “investigations” and the applications of the Security Statute as they are being carried out by the government of Colombia. [10]/

2. In communication No. 0674 of April 23, 1980, the government of Colombia replied to the Commission¢s requests for information about this case. The pertinent parts of its statement are as follows:

1. With respect to the petition to suspend application of the aforementioned article, the considerations given below are pertinent:

a) The President of the Republic may not restrict the powers that the National Constitution confers to the President or to the Government without violating the Constitution itself.

The power that Article 28 of the National Constitution confers must be exercised when circumstances so require.

b) Paragraphs 2 and 3 of Article 28 of the Constitution are not contrary to the American Convention on Human rights. Persons who are deprived of their physical liberty under the terms of the provisions contained in paragraph 2 are so deprived because, according to that provision, they are “suspected with good reason of attempting to disturb the public order,” when there are serious reasons to fear a disturbance of the public order.” In other words, the deprivation of liberty takes place on grounds and conditions set previously in the Constitution, that is, in accordance with Article 7.2 of the American Convention.

Paragraph 3 of Article 28 establishes a short period of ten days to define the status of the persons held. Although in the opinion of the Government of Colombia this paragraph is compatible with the requirements of the Convention, a very narrow interpretation of the term, “promptly,” as used in Article 7.5, would mean that the ten-day term is excessive, it should be kept in mind in any event that, under the present circumstances in Colombia, the application of the measures authorized by Article 28 of the National Constitution is strictly consistent with the provisions of Article 27.1 of the American Convention on Human rights which reads:

“1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required y the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion or social original.

At the end of this written statement, the claimant says that the application of paragraph 2 and 3 of Article 28 violates the guarantees established in Article 8 of the Convention. A simple reading of these two paragraphs is enough to see the inaccuracy of this statement. The reference that the claimant makes to military justice is out of order, considering that the application of Article 28 is a power of the government, which exercises that power under constitutionally established conditions. A quite different point which does not derive from Article 28 is that there are trials under the military criminal justice system in which civilians are tried in accordance with legal provisions that confer on that system trials of certain crimes during the state of siege. It is appropriate to state that there is no valid reason to consider that the involvement of the military criminal justice system violates the requirement of competent, independent and impartial court made in the Convention. It also cannot be considered that the conferral of trials involving certain crimes is unconstitutional. This conferral of power is duly founded in Article 61 of the Constitution and was so recognized by the Supreme Court of Justice in its ruling of October 30, 1978 on the constitutionality of Legislative Decree 1923 of 1978 (Security Statute).

c. The Government of Colombia has used the power granted to it in Article 28 only as strictly necessary. It has been especially watchful in this area and for this reason it requested the Honorable State Council, as the consultant body of the Government, review the application of Article 28 of the Constitution (Article 141). In fact, that high body issued a favorable judgment on September 13, 1978.

If one makes a careful study of the dissenting votes, one will observe that all the judges agreed that the government could and can hold persons, as established in Article 28, even without consulting the State Council, and in the exercise of the powers of Article 121 of the Court.

However, President Turbay Ayala preferred the narrower opinion so that here would be no doubt of full compliance with the Constitution (attached were the Government¢s request for opinion of the Honorable State Council and its favorable opinion).

2. The Claimant declares solemnly “That the remedies of domestic law have been exhausted.” This statement is not true. If the petition of the claimant were not resolved in the term of one month, it is understood to be denied and Government remedies exhausted, as stated in the paragraph of Article 18 of Decree 2733 of 1959. As amended by Article 80 of the contentious-administrative governmental remedies are exhausted, the claimant can have recourses to the contentious administrative judicial system, which he has not done to this time. On the topic of administrative silence and its legal consequences, the State council gave its opinion in a finding dated April 19, 1969:

The phenomenon of administrative silence which is understood to exhaust governmental remedies and which allows the interested party to have recourse to contentious-administrative jurisdiction, cannot be limited to the case of interposition of remedies. It would be completely illogical for lawmaker to have established this procedure for remedies, which are accessories, and not with respect to the request brought before the administration, which is the main point. The lawmakers wanted the administration to not stand mute against petitions made by citizens and, on the basis of this definitive criterion, that is how the individual rules should be interpreted, especially article 45 of the National Constitution and Decree 273 of 1955 which deal specifically with the constitutional right of petition. It should be noted that the remedy of personal review is not obligatory, as is provided for in Article 15 of the same decree, meaning that if a petition is not answered by the administration, it is not necessary to interpose any remedy of personal review and therefore it becomes evident that there is then a typical administrative silence which empowers the interested party to carry his case to the contentious-administrative courts.”

The refusal either expresses or presumed, to grant a petition constitutes an act of government. In this connection, it is appropriate to mention the Article 62 of the contentious-administrative code whose text is as follows:

“Article 62. Decrees, resolutions and other acts of government, ministers and other officials, employees or administrative persons can be brought before the State Council or before the administrative courts, depending on the rules of competence set forth in the two preceding chapters, on the grounds of unconstitutionality or unlawfulness.

“When an act of a particular nature has been carried out by an official, employee or administrative person in the national system, and it violates an executive rule, there shall be recourse to the contentious-administrative judicial system.”

In consequence of the foregoing, the recourses of internal jurisdiction have not been exhausted in the case that this charge refers to. [11]/

D. Persons held under Article 28

1. As already stated, before Article 28 can be applied, the Government must comply with a number of requirements set forth in the Constitution. According to a document turned over to the Commission, in the opinion of the Colombian Government, on the basis of its applicable law, all prior requirements must be fully met for the processing of detention of persons held for reasons of public order. These requirements are as follows:

(1) The warrant of arrest and detention of persons must be given by the National Government (may be either oral or in writing).

(2) There must be a prior opinion from the State Council, in accordance with Article 141 of the Constitution even though this is a mandatory requirement, it does not necessarily have to be followed or respected by the Government since the responsibility for public order is the Government¢s and not the State Council¢s. Obviously, the State Council¢s opinion is of great importance since it can lend its judgement to the decision on the situation of public order prevailing at any given time. The state Council, according to commentators, does not have to issued a finding on each case of detention but must issue its general understanding of the overall situation of public order and the other circumstances discussed in Article 28.

(3) The prior opinion of the ministers is required; to arrive at his opinion, the situation of public order must be analyzed by the Council of Ministers and they must give their opinion on the detention of persons.

(4) Serious grounds must exist to fear a disturbance of the public order. The grounds and their seriousness are weighed by the National Government since the Government is responsible for public order.

(5) There must be good reasons to suspect that such persons are attempting to disturb the public order; also, the Government must weight the evidence on such persons.

(6) Article 28 demands that the maximum detention period be ten days; persons detained can be set free, by judgement of the Government, but the maximum time shall be ten days from the time of their apprehension, after which either they are se free or the Government must put them at the disposal of competent judges with the evidence or background information gathered so that the judge may decide the case under the terms of the law

(7) It is a preventive police measure allowed by the Constitution of the Government if it is kept in mind that the President of the Republic, under the terms of Article 120 of the Constitution, is responsible for preserving public order throughout the entire country and re-establishing it where it is disturbed.

(8) This rule applies in both time of peace, in case of domestic disturbance or external war.

(9) In the apprehension and detention discussed in Article 28, habeas corpus is not in order unless the detention term has lapsed, as provided for in Article 25 of the Criminal Procedure Code.

The National Government has complied strictly with the provisions of Article 28 of the National Constitution since the warrant for arrest and detention of a person has been given by the Government. There was the prior and favorable finding of the State Council, given September 13, 1978. In the different situations, there has always been a prior favorable opinion from the Council of Ministers. Serious grounds have been established for believing that the public order is threatened grounds that were serious when that the state of siege was decreed in 1976. Serious reasons that the persons apprehended and detained were attempting to disturb the public order were established. And finally, the apprehension and detention of those persons lasted the maximum of ten (10) days after which several citizens and foreigners were set free and others were placed at the disposition of competent judges and these persons have defined legal situations at law.

2. One of the requirements mentioned was the opinion of the State Council. According to the terms of Article 141 of the constitution, that body is responsible for “acting as supreme advisory board for the Government in matters relating to administration. It shall necessarily be heard in all the matters relating to administration. It shall necessarily be heard in all the cases specified by the Constitution and the law. In the cases dealt with in Article 28, 121, 122 and 212, the Government must hear the matter prior to the State Council. The opinions of the Council are not binding upon the Government except as provided for in Article 212 of the Constitution.”

In Colombia¢s present situation, the Government requested the opinion of the State Council in a communication dated September 13, 1978. This request in addition to others, made the following points:

Very respectively and attentively, and in furtherance of the mandate conferred on us by the President of the Republic and by the Council of Ministers, in special session held last night, we request the opinion of the body, as the consultive organ of the Government, to seek application of Article 28 of the National Constitution.

The brutal, monstrous and absurd assassination of former Minister Rafael Pardo Buelvas, yesterday at his home the responsibility for which is claimed by the 14th of September Command of Worker self-defense which accused him of murders; the death in Pereira of Mr. Hugo Velez Marulanda; the brutal homicide of police agents in Paujil (Caqueta) in the area of Cimitarra, in the Central Magdalena area; the demand for economic contributions at Uraba; and the explosion last night of two bombs of considerable explosive power at Villavicencio and in Santa Marta at the newspaper El Informador, are evidence of the existence and execution of a terrorist plan throughout the entire country.

On the same date, September 13, 1978, the Secretary General of the State Council wrote to the President of the Republic and transmitted to him the requested opinion. The text is as follows:

In a communication dated today, the Government, through the Ministers of Justice, Dr. Hugo Escobar Sierra, of National Defense, General Luis Carlos Camacho Leyva and the Secretary General of the Office of the President, Dr. Alvaro Perez Vives, requested the council to issue its opinion as referred to in Article 141, paragraph 1, clause 2, to seek application of Article 28 of the National Constitution.

The Ministers and the Secretary General explained to the full Council the serious circumstances and events that led the Government to make this request.

The Council, after the ministers and the Secretary General withdrew, made a detailed examination of the reasons alleged by the aforementioned officials, considered the situation and analyzed the circumstances of state of siege in the country, in view of the effect of Article 121 of the national Constitution, the legal implications of this status along with the measures that can be taken under the terms of Article 28 of the Constitution.

The Council considered that pursuant to the Constitution, Article 28 could be used in both times of peace as well as d8ring domestic disturbance and external war.

Furthermore, it believes that the events explained y the government are sufficient reasons to fear greater disturbance of the public order and these circumstances empower it to take the public order and measures provided for in the aforementioned article 28 of the Constitution.

As on an earlier occasion, the Council repeats that these powers should be exercised by the Government, following the limitations and requirements set forth by that rule for each specific case, namely: Order of the Government, opinion of the ministers, serious reason to suspect that the persons are attempting to disturb the public order and that the maximum duration of the detention, on these grounds, does not exceed ten days, all of which are citizen¢s guarantees established in the Constitution. [12]/

3. As has been expressed, for application of article 28 of the Constitution, the Council of Ministers must first issue its opinion. In January 1981, the Colombian Government handed over to the Commission a statistical summary of the application of Article 28 during the period covered by January 1, 1979 to April 15, 1980. It expressed to the Commission that this was the first time that the Government had turned over such information since it is considered it is confidential in nature. Law 63 of October 17, 1923, makes the meetings of the Council of Ministers, when it acts as a consultative body, “strictly confidential” in nature.

The statistical summary mentioned above shows the following figures:

1) That the Council of Ministers was presented with request for the arrest and detention of 3,043 persons.

2. That of the aforementioned number, 1,548 persons were arrested, 1,467 were not arrested and 28 names were repeated on the list, for the total of 3,043 given above.

3. Of the total 1,548 arrested, the following categorization can be made:

a) 685 persons were set free before the end of the ten-day period:

b) 280 persons were placed at the disposal of judges;

c) Detention warrants were issued for 444 persons;

d) Detention warrants were revoked for 47 persons;

e) Nine persons were sentenced by court-martial;

f) 83 persons were sentenced for bearing arms unlawfully.

4. In reference to application of Article 28 of the Constitution, the Government of Colombia also reported, in addition to other matters, the following to the Commission:

The criminal law prosecutes an individual who has committed a specific punishable act and competent authority orders his arrest. Subversion however, is an action that involves the crimes of rebellion, sedition and riot, which frequently entail. Several persons in their execution, and especially when the arrests follow military actions or combats using regular forces, many members of subversive groups are arrested.

When the government has ordered the arrest or detention of a person or persons, it has always done so on the basis of serious cause to suspect that they are attempting to disturb the public order. No proof is required, simply the suspicion. There has always been the prior opinion of the ministers, meeting in council. And it is good to note, that in Legislative Act No. 1 of 1968, the legislators set the term of ten (10) days for detentions decreed by the government in time of peace on the grounds of public order. This rule thus modified has been viewed by the most demanding persons as a true step forward to guaranteeing the personal liberty of individuals since previously the detention was for an unlimited length of time.

It should be noted that under the Colombian System of criminal Justice, citizens could be arrested in other ways. Examples are orders issued by competent judicial authority, entailing compliance with the requirements of the criminal procedural statute, or their apprehension in the act of commission of the crime, under the terms of Article 24 of the national Constitution. For this reason it is necessary to make this distinction. Besides this, neither the Colombian government nor the judicial authorities are aware of any case in which the capture, arrest or detention has exceeded the legally established terms. Another point that should be made is that preventive detention should not be confused with the other cases mentioned above. When a person is detained by decision of a judge, there is no time period for setting him free unless the judge himself revokes the detention or the accused person pays the penalty or the crime of which he is accused. [13]/

E. Habeas Corpus

1. In the charges made in case No. 4056, discussed in Part C of this chapter, reference is made to the alleged violation of the effective implementation of habeas corpus by stating that the application of Article 28 “violates the universally recognized guarantee of habeas corpus… [14]/

2. Furthermore, claims received by the Commission regarding persons who are detained and on trial mentioned the lack of effectiveness and exercise of habeas corpus. The following cases are illustrative:

a) Charge relating to Antonio José Puentes and his wife, Carmen Amparo Porro de Puentes, April 24, 1980:

They presented a writ of habeas corpus to the Ibaque Municipal Court in February 1979, but received no reply;

b) Charge relating to Edgard Alirio Avirama and Marco Anibal Avirama Avirama, April 1980:

The attorney for the victims, Dr. Miguel Antonio Vazquez Llano, submitted a writ of habeas corpus to First Municipal Criminal Court of Popayan of February 13, 1979. From this came information that Edgard and Marco were under arrest because of their ties with the M-19 movement;

c) Claim relating to Clementina Torres Alvarez and her son, Raul Mauricio Artunduaga Torres, April 25, 1980:

A writ of habeas corpus was submitted to Judge 102 of the Military Criminal Court and Judge 100 of the Military Criminal Court. [15]/

These charges were answered by the Colombian Government in letter No. 00144 of January 19, 1981 to the Commissioner. In the part concerning the writ of habeas corpus, the letter reads as follows:

Clementina Torres Alvarez: “With respect to the writ of habeas corpus, since it was not proposed for her in the form and in the manner ordered by law, it was not processed. To this end, this remedy is not submitted to officials of the military criminal justice system but to the municipal criminal court of the locality.”

Antonio José Fuentes: “The records for this case show that a writ of habeas corpus was submitted in February, 1979, but freedom was not granted because this procedure had not been carried out in accordance with terms of law”

Carmen Amparo Fuentes Parra: “habeas corpus was not appropriate in this case since she was granted liberty under the terms of the law of criminal procedure.”

The Government¢s reply does not address the case of Messrs. Edgard Alirio Avirama and Marco Aníbal Avirama with specific reference to habeas corpus. However, in the matters concerning the claim of Fabian Sanchez Gómez, transmitted by the Commission as part of the same case No. 7348, the response from the government states:

The arrests were in accordance with orders from competent authority but since there were no grounds for linking him procedurally, he was set free in accordance with the provisions in effect for habeas corpus.

3. Through the Ministry of Justice, the Government turned over to the Commission on January 16, 1981, an analysis of habeas corpus in Colombia, described in the following terms:

This extremely important writ for the protection of personal liberty and individual rights is officially recognized as a reflection of the fundamental freedoms established in Title III of the National Constitution and set out in Articles 417 to 425 of the current Code of Criminal Procedure.

The basis for this is the right of all persons to know the reasons for which they have been deprived of their liberty. Habeas corpus is appropriate as a remedy when the person has been deprived of his liberty for more than 48 hours and believes that the law is being violated.

The petition can be submitted directly by the person who believes his rights have been violated, or can be presented by another person on his behalf, or the Public Ministry can present the writ. In the latter case, in our constitutional legal structure (Legislative Act No. 1 of 1979) the Office of the Procurator General of the Nation is responsible for defending the legality of accused persons and the respect for human rights.

The writ of habeas corpus is studied immediately and the judge to whom it is presented hears it.

If the petition is in order, the judge requests the respective authorities to inform him within 24 hours in writing about the date of the arrest and the reasons for it. He may also personally question the aggrieved person.

If the reports or any other means of information prove that the person has been arrested or detained without legal formalities, the judge shall call for this being set free immediately and shall initiate the corresponding criminal investigation of the authorities who carried out the arbitrary arrest. The new criminal code (which went into effect on January 29, 1981) provides complete regulations on arbitrary detention as a crime (Articles 272 to 275). Specifically, Article 275 punishes the judge who ignores habeas corpus with arrest from six months to two (2) years and loss of employment.

From a practical standpoint, there is no room for doubt that habeas corpus has operated and continues operating satisfactorily in Colombia. In the country¢s courts, one can clearly see how writs of habeas corpus have been processed with all the legal formalities and the fullest respect for the essential human right of liberty.

The new Code of Criminal Procedure that will be issued on January 29, 1981 likewise guarantees habeas corpus as an action guaranteeing individual liberty against unlawful placement in prison or under arrest and unlawful deprivation of liberty.

The guarantee of habeas corpus is even broader and more complete in our future criminal procedure statute. In that statute it is in order for both felonies and misdemeanors and also for police actions involving abuse. It also makes the habeas corpus process more flexible.

Notes_______________________

[1] Article 7 of the American Convention on Human Rights reads as follows: “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. T. 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 provided 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.

[2] Article 23 of the Political Constitution. Article 24 of that Constitution reads as follows: “An offender who is caught flagrante delicto may be arrested and taken before a judge by any person. If the agents of authority pursue him and he takes refuge in his own dwelling, they may enter for the purpose of apprehending him; and if he seeks to escape in the dwelling of another person, the consent of the owner or tenant thereof shall first be obtained.” As regards arbitrary detention, the criminal code provides: “Article 272. Illegal deprivation of liberty. An official who, in the abuse of his authority, deprives another of his freedom, shall be liable to imprisonment of one (1) to five (5) years and shall be discharged from employment. Article 273. Unlawful prolongation of deprivation of liberty. An official who unlawfully prolongs the deprivation of liberty of a person shall be liable for a term of six (6) months to two (2) years and loss of employment. Article 274. Special arbitrary detention. An official who without complying with all legal requirements deceives a person to deprive him of liberty or to keep him under security measures is liable to confinement for six (6) months to two (2) years and loss of employment.”

[3] The full test of Article 28 is given in Chapter I.B.3 of this report.

[4] The text of this articles the conditions and formalities to which its application is subject are given in chapter I.E.I.2 of this report.

[5] Cases 7348 and 7378 are referring to the M-19 and the FARC, respectively.

[6] Case 7348 referring to the M-19 and case 7375 referring to the FARC. Government communications sent to the Commission dated August 22 and October 15, 1980

[7]. Memorandum dated April 22, 1980, delivered to the Commission by the attorneys defending those persons associated with court-martials being conducted at the Baraya Batallion and the related investigation of them, for trial as presumed member of the Fuerzas Armadas Revolucionarias Colombianas (FARC).

[8] The original claim is dated April 24, 1980. The Commission transmitted the pertinent parts of this claim to the government in a note dated November 3, 1980, as part of multiple case 7348 relating to the M-19. Later, the Commission treated this as a separate case, No. 7819, for processing purposes, which it mentioned, to the Colombian government in a letter dated April 30, 1981. For more on this case see also Chapter V. E.3 of this report on the oral court-martial of the M-19.

[9] Nos. 3,4,5 and 6 of this section on background deal with aspects that are exactly similar to the first part of this charge.

[10] This case dealing with the charge presented by Dr. Pedro Pablo Camargo was originally No. 4056. On April 18, 1979, the Commission transmitted to the government the pertinent parts mentioned above. On July 11 of the same year, the Commission sent additional information provided by the claimant, who later sent to the Commission other documents providing supporting information. On April 34, 1980, the government replied to the Commission and the pertinent parts were transmitted to the claimant for his observations to the Commission in connection with the government¢s reply. These observations wee then sent by the Commission to the government on July 25, 1980. On August 29, 1980, the Colombian government replied to the Commission and the pertinent parts were remitted to the claimant on September 10. On September 29, the claimant sent new observations to the Commission and these in turn were transmitted to the government on October 7, 1980. The government then replied to the Commission on November 21.

[11] The government replied to the Commission in communication No. 0674 of April 23, 1980, sent through the Colombian diplomatic mission to the OAS on May 7, 1980. On August 29, 1980, in communication No. 001755, the Colombian government wrote to the Commission repeating the ideas and considerations it gave earlier on this case and on November 21 of the same year, in communication No. 698, it repeated its opinions once again on this case.

[12] The opinion of the Council of State was approved by a majority of 12 votes of its members. Other counselors dissented or issued clarifications of their votes. Those dissenting were the counselors Jaime Betancur Cuartas, Jaime Paredes Tamayo, Jorge Valencia Arango, Humberto Mora Osejo and Miguel Lleras Pizarro. The counselor Jorge Davila Hernández made a clarification of his vote. In cases of dissent and clarification, the considerations on which those members of the Council of state based their opinion are explained.

[13] In the speech that the President of the Republic delivered to the members of Association of Democratic Attorneys in a meeting on February 7, 1979, he made the following point about the application of Article 28: “There are two ways to interpret Article 28 of the national Constitution. One is when the public order is disturbed and the country is under a state of siege in which authority might be appropriate without any further limitations than those established under international law in this area. The other is the restrictive rule of Article 28 of the Constitution, which even during times of peace can be applied, with a limit of ten days on the detention. We discounted the fact that we were in a state of siege and that we should proceed without any further limitation than that of international law for its application, just as it could be applied only during times of peace with the limitations of the ten-days period. As a result, we put ourselves in a position by which we have shown that we do not want to abuse any of the measures that the lawmakers established to guarantee state security and to defend it against all threat as that surround it in modern times, not only in the case of Colombia but in most democratic countries.

[14] The Colombian Penal Code establishes, in Article 275, the following: “Rejection of habeas corpus. Any judge who does not process or decide within the legal terms a petition of habeas corpus or prevents its processing in any way shall be liable to arrest for six (6) months to two (2) years and loss of employment.”

[15] The parts of these cases given above are for the charges contained in case No. 7348 relating to the M-19 which was transmitt4d to the government in a communication on November 3, 1980. The persons to whom the charges referred were being detained.