CONCLUSIONS AND RECOMMENDATIONS
Having followed recent developments in Colombia closely, the Inter-American Commission on Human Rights hopes that the changes that the Constitution and the efforts of all Colombians have succeeded in introducing in the country's political and legal structure will, once the problems pointed out in this report have been corrected, help bring an end to the terrible crisis of violence and human rights violations in Colombia and consolidate peace and democracy in the nation.
From this Report, the Commission draws the following conclusions:
1) With the political and legal system instituted with the 1991 Constitution, significant progress has been made in the law to define and recognize human rights. The progress that the provisions of the Constitution represent, however, was tempered by the specific and generic laws enacted immediately after passage of the new Constitution to regulate those provisions. Those laws stipulate certain restrictions on the exercise of the human rights embodied both in the new Constitution and in the American Convention.
2) These restrictions, which would be excessive even in a normal situation, become that much more excessive when states of emergency are declared during which the remedies to protect one's rights are not available. Moreover, much of the temporary legislation issued under the state of emergency has become permanent law, as in the case of secret or public order courts; their institutionalization goes against Colombian domestic law as well as international human rights agreements binding upon Colombia.[1]
3) The exercise of human rights was restricted as a consequence of this situation and the remedies instituted to protect those rights were debilitated. But this was all possible because the presence of the military courts and the proceedings conducted on the cases remanded to military jurisdiction effectively eroded the authority of the judicial branch. The entire situation has meant a grievous violation of the right to a fair trial.
4) The military tribunals do not guarantee that the right to a fair trial will be observed, since they do not have the independence that is a condition sine qua non for that right to be exercised. Moreover, their rulings have frequently been biased and have failed to punish members of the security forces whose involvement in very serious human rights violations has been established.[2]
5) To this violation of the right to a fair trial must be added the serious constraints imposed on due process, particularly in evidence in the handling of petitions filed to protect the various human rights being affected, leaving the individuals concerned defenseless vis-à-vis the measures adopted by the political power.
6) The Commission believes that violations of the right to life have reached alarming proportions in Colombia in recent years. There is a clear political element in these violations of the right to life, since many of the victims have been individuals whose political positions are at variance with the Government's position or who have stated publicly their disagreement with the Government. These violations of the right to life have involved enforced disappearance, individual and collective summary executions and other atrocities discussed in this report.[3]
7) The evidence compiled by the IACHR and explained in the chapter on the right to personal safety and humane treatment points to the fact that torture, as a practice, has not been sufficiently investigated or punished. This is confirmed by the fact that virtually no public officials have been punished for their participation in torture.
8) The Commission believes that the right to personal liberty is seriously imperiled, particularly during states of emergency when almost all the remedies that protect human rights cannot be invoked.
9) The violations of the right to personal liberty frequently involve a failure to observe the legal formalities required when making arrests; arresting agents often do not identify themselves, do not have a valid arrest warrant or fail to show it. Compounding this are the physical restraints imposed upon many individuals taken into custody, in order to prevent them from identifying the place to which they are being taken or certain detention facilities.
10) The Commission has observed a marked increase in violations of union rights with enforcement of laws that are clearly at odds with the international instruments in force in Colombia on this subject. The right to strike, the right to associate for union purposes and the right to collective bargaining have been violated. Most serious of all is how the violations of the right to life are affecting the activities of union members.
11) It should also be noted that in Colombia the union movement has been one of the sectors hardest hit by the arbitrary arrests, enforced disappearances and assassinations.
12) The Commission has established that the agencies that defend human rights function under particularly adverse circumstances, because their activities are considered to be politically motivated or are viewed as a cover for subversive groups.
13) In addition to condemning all the excesses of State agents that are the cause of the serious human rights violations to which this report refers, the Commission is just as emphatic in its condemnation of the terrible aggression perpetrated against the Colombian people by irregular armed groups. The Commission considers the use of terrorism, whatever its form, to be utterly reprehensible, as are blackmail, extortion, kidnapping, torture and assassination as political weapons. Just as serious and indefensible is the destruction of the social infrastructure and the pollution of the environment. No one has the right to wrong the people of his country in this manner, much less those who profess to be the champions and defenders of their social causes. Repeated acts that seriously violate human rights corrupt and delegitimize the work of any human group, however noble its ideal; the right to social justice or to any other right does not justify the breach of the preeminent values of the human person.
Based on the foregoing conclusions, the IACHR is making the following recommendations to the Colombian Government:
1. Under the previous constitution, the State too often declared a state of emergency. This opinion was one widely shared by those who testified before the Commission. For more than forty years, Colombians have been subjected to measures allowed only if a state of emergency has been declared. The new Constitution has curbed the Executive's authority to decree states of emergency. It would therefore be best for the Chief Executive henceforth to declare states of emergency only in truly exceptional, extremely grave cases where the life of the Nation is imperiled, and thus avoid the tendency to continue to live under exceptional laws on a permanent basis.
2. However necessary they may have been, the Commission is disturbed by the two declarations of states of internal disturbance recently ordered by the Colombian Government. In July 1992, the Government ordered a state of internal disturbance when a group of prisoners requested release; it also restricted habeas corpus. Again, by Decree 1793 of November 1992, a state of internal disturbance was instituted and, on that basis, exceptional measures were ordered. One such measure was that the criminal-investigation functions of the courts were assigned to the military. The Inter-American Commission on Human Rights would therefore recommend to the Colombian Government that henceforth it do everything possible to take the routine administrative measures when events occur of the kind that prompted the declarations of internal disturbance. States of emergency are to be reserved for only the most serious matters.
3. As Commander-in-Chief of the Armed Forces, in exercise of the power conferred upon him by the Constitution (Article 189, paragraph 3) and the authorities given to him under decrees 095 and 096 of 1989, the President has the authority to retire, at his discretion, members of the Armed Forces who have been seriously implicated in human rights violations. The Government of Colombia has used this constitutional and legal authority in cases of functional or administrative inefficiency. In cases of serious and obvious violations of basic human rights by members of the armed forces and to continue measures to protect those rights, it would be best if the Colombian Government would retire from active service anyone that an administrative investigation by the Office of the Attorney General finds to be patently involved or associated with serious cases of fundamental human rights violations, independently of the court decisions that may eventually be handed down.
4. The Commission is concerned that under the new Constitution, military jurisdiction continues to cover members of the Colombian Police. The risks that military jurisdiction involves can be minimized by establishing a proper set of rules to curb any abuse. Therefore, it is recommended that the regulations governing the use of that jurisdiction explicitly exclude acts of torture, extrajudicial execution and enforced disappearance, and that they specify that such crimes shall be judged by the ordinary courts. This could be helpful in dealing with the impunity problem that the military courts in Colombia have thus far posed.
5. The human rights instruction that, under the Constitution, all members of the police and military are to receive is of the utmost importance. Given the gravity of the human rights situation in Colombia, the Commission is recommending, as a matter of priority, strict compliance with that constitutional mandate.
6. The existence of judges "with no faces" and of secret proceedings to introduce and take testimony from witnesses, to offer and introduce evidence and expert reports, etc., is contrary to the principles of the American Convention. Any form of secret justice in Colombia should be eliminated in favor of an across-the-board strengthening of the justice system, particularly the fundamental guarantees.
7. The democratic organs for judicial inquiry and trial need to be strengthened in Colombia. A court system that has the proper infrastructure to perform its function would not need the constant series of judicial reforms that have been instituted. Creating, even for reasons that the Colombian Government believes justified, special mechanisms, procedures and structures to try such crimes as drug trafficking or terrorism has indirectly served to weaken the regular courts and has eroded public confidence in the courts. Therefore, it would be better for the Colombian State to try other alternatives. It must strengthen the courts and set in motion suitable mechanisms to settle the day-to-day conflicts that arise. The benefit would be twofold: it would discourage the spread of vigilantism and restore the confidence that Colombians should have in their system of justice.
8. The newly created Public Defender's Office and the role it plays as guardian of the people should be strengthened, as these are real guarantees that human rights will be exercised and defended in Colombia.
9. A new type of examining judge, called a fiscal, was recently added to the legal system and has an important role to play in investigating crime. Although judges of this type have the help of the Criminal Investigations Police, it is also important to establish a very modern police corps. Its members must have a solid background in law and civil rights to ensure that they are mindful and respectful of human rights when conducting criminal investigations. Members of military and police intelligence should not be members of this police corps, as they have so often been accused of abusing private citizens and violating fundamental rights.
10. Decisions that affect the fundamental guarantees of individuals accused of crimes should be taken only after consulting with the judge hearing the case. Under the new criminal procedure system in Colombia, the fiscal can make certain decisions about releasing defendants without consulting the judge. This system should be changed to ensure that the Colombian State is in compliance with the principles of the American Convention.
11. In criminal proceedings, it is important that the victims of the violence or human rights violations have the opportunity to participate actively, from the start of the investigations. The existing provisions of the code of criminal procedure are similar to the previous code and do not allow victims to participate in the inquiries conducted by the public prosecutor's office until an indictment or arrest warrant is handed down. But no indictment or arrest warrant can be issued until the identity of the individual accused of violating the criminal law is established. So, because the victims (those most likely to be able to identify their assailants) are not permitted to participate, individuals guilty of violating basic rights often go unpunished. Therefore, the codes of criminal procedure and military criminal justice should be amended to allow the victims to participate from the start of the investigations.
12. The existing criminal laws do not classify enforced disappearance as a crime. Therefore, to elaborate upon the provisions of the new Constitution, Article 12 of which provides for and prohibits enforced disappearance, a law must be enacted to make it a criminal offense and stipulate punishment.
13. As for the protection of personal liberty, the necessary mechanisms must be implemented to keep a national record of detainees in order to make certain that the civil rights and judicial guarantees of every individual detained are respected.
14. The Colombian State must take all necessary measures to guarantee its citizens' right to life. The Commission would especially urge that paramilitary and self-defense groups be dismantled once and for all and that the serious violence and human rights violations perpetrated by such groups be investigated and punished.
15. Because the rights of workers to form and join unions and to associate for lawful purposes are being violated, the IACHR is recommending to the Colombian Government that it give the members of labor unions and union officials effective guarantees of their rights to form and join unions, their freedom of association, and their right to life, personal safety and humane treatment.
16. Another issue that is of great concern to the IACHR concerns the limitations on freedom of information and expression in Colombia. The Commission would particularly like to draw the Government's attention to Decree 1812, of 1992, which allows censorship of the press under certain circumstances. It would be best if freedom of information in Colombia were not restricted by exceptional rules that are themselves contrary to the American Convention.
17. As to the open warfare between the armed forces and guerrilla groups, which has claimed countless innocent victims among the civilian population, the IACHR believes it is imperative that the rules of international humanitarian law be observed, particularly Article 3 of all the 1949 Geneva Conventions; it also believes that consideration should be given to acceding to the Additional Protocol II of the Geneva Conventions, which concerns the protection of victims in armed conflicts that are not international in nature.
18. Respect for ethnic and minority groups is a right recognized in the new Constitution of Colombia. It is essential that the necessary measures be taken to enable such groups to survive and develop, and that their ethnic and cultural diversity be acknowledged.
19. The important work that nongovernmental human rights organizations are doing to protect, defend and promote the rights of citizens must be supported and guaranteed by the Colombian Government.
20. Thus far, the IACHR has produced Reports 24/87 (Case 9620), 1/92 (Case 10,235), 32/91 (Case 10,454), 33/91 (Case 10,581), 22/93 (case 9477), case 23/93 (case 10,456) and 24/93 (case 10,537) wherein it recommends to the Colombian Government that it investigate those cases until it establishes the identity of those responsible and punishes them for the violations to which each case refers; that it compensate the victims' next-of-kin and provide effective protection to witnesses who have risked their lives to help ascertain the facts. The Commission is deeply disturbed by the Colombian Government's failure to heed those recommendations and is, therefore, again urging compliance.
Notes____________________
[1] According to a report supplied by the Government, discussed in the pertinent part of this report, some of the restrictions to which this conclusion refers have been declared unconstitutional.
[2] The Second Report of the Office of the Attorney General of the Nation, cited in Chapter IV in the discussion of military justice, makes reference to the reasons for this problem.
[3] "The number of Government-associated victims is as high as the number of victims among the opposition; there are areas in the grips of local civil wars and the victims are on both sides." Observations and comments of the Government of Colombia on the Report of the IACHR.