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OEA/Ser.L/V/II.53 REPORT
ON THE SITUATION OF HUMAN RIGHTS
CHAPTER V
RIGHT
TO A FAIR TRIAL AND DUE PROCESS [1]/
A. General
Considerations
1.
The national Constitution of Colombia recognizes the legal guarantee of
right to a fair trial and to due process. Article
26 of the Constitution reads: “No
one may be tried except in conformity with laws enacted prior to the commission
which he is charged, by courts having competent jurisdiction, and in accordance
with all formalities proper to each case. In
criminal matters, a permissive law or law favorable to the defendant, even if
enacted after the commission of the alleged offense, shall be applied in
preference to a restrictive or unfavorable law.” [2]/
Furthermore, Title XV of the Colombian Constitution deals with the
administration of justice and its structure and operation.
The 1979 constitutional reform made substantial changes in this area.
Also, Article 170 of the Constitution of Colombia establishes military
jurisdiction in the following terms: “Courts-martial or military tribunals
shall take cognizance, in accordance with the provisions of the Military Penal
Code, of all offenses committed by military personnel in active service, and in
relation to that service.”
2.
Before, during and after the on-site investigation, the Commission
received claims referring to irregularities in the functioning of the justice
system and due process in Colombia. These
claims have been processed in accordance with the Commission’s Rule of
Procedure. B. The Ordinary Justice System
1.
The ordinary justice system is the responsibility of the judicial branch
of Government. According to the Constitution, justice is a public service
that is the responsibility of the nation. Title
XV of the Constitution regulates the structure and operation of the
administration of justice, as is discussed in Chapter I of this report.
The 1979 Constitutional reform made significant changes in Colombia’s
judicial system. Among these were
the establishments of the Office of the Attorney General and the Superior
Council of Judicature. The latter
has, in addition to other powers, the functions of administering the judicial
service, seeing to it that justice is administered and enforced promptly, and
ruling on conflicts of competence that arise between different jurisdictions.
In the area of the judicial branch of Government, this reform also gives
the government the power to establish judicial offices in accordance with
corresponding legislative measures and to establish the territorial area of the
judicial districts and circuits. Article
62 of the 1979 reform states: “As
from January 1, 1981, the national Government shall invest no less than ten
percent of the general expenses budget in the judicial branch and the Public
Ministry.” Furthermore, for the
purpose of carrying out the constitutional reform, a draft organic law for the
Office of the Attorney General of the Republic was prepared. This proposal was submitted to the congress of the Republic
for approval. The law gives the
Office of Attorney General very important functions in connection with the
administration of justice. In
addition to other powers, the office is responsible for prosecution of crimes
and accusation of suspects before the respective authorities, exercise of
overall direction of the judicial police, supervision of the execution of legal
measures handed down by criminal judges during the processing of the case,
without prejudice to the constitutional powers of the office of the Procurator
General of the Nation, conducting criminal suits before the Supreme Court of
Justice involving public officials being tried by that body, exercise of
criminal action in cases taken up by the Supreme Court of Justice on the grounds
of responsibility for violation of the constitution or laws, or for improper
conduct of office against high state officials, and in the crimes taken up in
the first instance by the Supreme Court of Justice, and the investigation and
accusation of persons must be done by delegates of the Attorney General,
following the rules of the penal procedure code.
In addition, it is also empowered in cases involving responsibility for
criminal violations committed by senators and representatives in the case of
Article 75 of the National constitution, for investigating these facts and
making accusations to the Supreme Court of Justice.
[3]/
The Constitutional reform of 1979 was supplemented by the passage of a
new penal code and a new code of criminal procedure.
2. An
analysis of the structure and operation of the ordinary penal justice system in
Colombia is given in a document from the Ministry of Justice, dated January 16,
1981, which was provided to the Commission.
This document reads as follows: The
present penal procedure code of criminal procedure recognizes a combined system,
with a clear emphasis on the inquisitorial criminal procedure system.
The new statute on penal procedure that will be issued on January 29
adopts the accusatorial system, as provided for in Legislative Act. No. 1 of
1979 which established the basic structure of the institution of the Attorney
General of the Nation. In
the current system, judges conduct the investigation, rule on the case presented
and if they find that it has merit, hear the case and issue the corresponding
verdict. Under the new system, the
investigation will be the responsibility of the Attorney General of the nation
by himself or trough his agents who will also be responsible for determining
whether to indict the alleged criminal or not and bring him before the judicial
organ which will be responsible for trying him. It
is important to note that in both the current and the future systems under our
fully democratic constitutional structure, there is a separation of branches of
Government. The judicial branch is
independent of the executive in the choice of its members and in the taking of
its decisions, which can be seen easily in a simple reading of our
constitutional charter.
For greater guarantees to the members of society, judicial officials also
have disciplinary control exercised by two institutions, which are also
independent of the executive branch. These
are the Superior Council of Judicature and the Office of the Procurator General
of the Nation.
In the two systems, the officials responsible for administering criminal
justice, in descending order, are: 1.
Penal appeals section of the Supreme Court Justice. 2.
Penal sections of the Superior Courts of Judicial
Districts. 3.
Superior Customs Court. 4.
Superior judges. 5.
Circuit Judges. 6.
Criminal Instruction Judges. 7.
Municipal Judges. 8.
Justice of Minors. In
special cases the administration of justice is exercised by the senate
(impeachment of highest state officials) or by military courts. Colombia
also has, in both the old and the new system, the democratic institution of
trial by jury in criminal cases. For
certain crimes of great importance, the democratic spirit in Colombia penal law
is such that essentially political crimes such as rebellion and sedition are
judged by a jury in both the old code and the new. A
simple study of our constitutional standards such as Article 26 as well s those
articles of the present and future codes of criminal procedure leads to the
conclusion that Colombia’s juridical structure guarantees fully the right to a
fair trial. The accused, from the
very moment that he is apprehended or captured, must be assisted by legal
counsel. Both
systems state how the investigation official must look for the facts and
circumstances that establish and point to the responsibility of the accused as
well as those that exempt the person and extinguish or attenuate that
responsibility. It
is important to note how the new system that will adopt the upcoming code, by
leaving the investigation and the indictment to the Attorney General or his
agent, eschews any prejudgment on the part of the judge.
This constitutes a greater guarantee of impartiality for the accused
person. Another
point that should be recalled here is how the Attorney General of the Nation is
an integral part of the Public Ministry and is totally independent of decisions
of the executive branch. [4]/ 3.
The National Convention of Magistrates and Judges was held in Bogotá in
November 1980, with representative’s form 21 departments of the country.
This convention examined the situation of judicial power and the
participants discussed and adopted motions on the state of insecurity and lack
of protection for public servants in the justice system.
The national Association of Public Officials and Employees of the
Judicial Branch remitted to the Commission several of the motions discussed at
the convention as well as the conclusions adopted. [5]/
C. The Military criminal justice
system
1.
Military penal jurisdiction is based, as already stated, on Article 170
of the Colombian National Constitution which reads, “Court martial or military
tribunal shall take cognizance, in accordance with the provision of the Military
Penal Code, of all offenses committed by military personnel in active service,
and in relation to that service.”
Furthermore, Article 58 of the Constitution states, “Justice is
administered by the Supreme Court, by the higher district tribunals, and by such
other tribunals and lower courts as may be established by law.”
The oral court-martial operates on the basis of these constitutional
provisions. The oral court-martial
were established in the military criminal justice code, as were those that have
been given responsibility for trying civilians for the commission of certain
crimes when the public order is declared disturbed and a state of siege is
declared for all or part of the national territory so that they may exercise
those functions on an extraordinary basis. [6]/
2.
The Supreme Court of Justice has stated its opinion on the constitutional
nature of the military courts and the legality of their trying civilians for
crimes committed, on an exceptional basis.
In a finding dated August 13, 1979, the Supreme Court of Justice held
that the military criminal justice system “expands its competence to try
common crimes by authorization of the constitution itself,” adding, “Article
61 of the constitution allows, during a state of siege, the extension of
military justice to the trying of common crimes when they have some connection
with the disturbance of public order or with the causes that have led to the
unusual situation.” In
that ruling, on which the court based its opinion on Decree 1923 of September
26, 1978 which promulgates the Security Statute, the Court recalled its ruing of
August 13, 1970 on this same matter in which this highest court of the land set
forth its doctrine in the following terms: c)
Article 170 of the constitution establishes courts-martial and military
courts for the military penal system as an integral part of the branch of public
power which has responsibility for administering justice; Article 58, for its
part, includes in the judicial branch all other tribunal and courts that he law
may establish; including among the latter are oral courts-martial created by
Decree 250 of 1958 and law 141 of 1961. Finally,
article 61 of the Constitution allows, during a state of siege, the extension of
military criminal jurisdiction to try common crimes that have some connection
with the disturbance of order or with the causes that have led to the unusual
situation. Since
the Military tribunals are also an establishment of the Constitution, as are
ordinary judges, the simple transfer of competence from the judges to the
tribunals for the trial of certain common crimes during the state of siege,
using the procedures of military justice, does not imply the establishment of ad
hoc tribunals or the subjection of persons accused to newly developed
procedural stands since they are enshrined in the pre-existing law. “Military
justice expands its competence to judge common crimes by authorization of the
Constitution itself. [7]/
3.
In an analysis of the Ministry of Justice of Colombia relating to the
military criminal justice system, which was turned over to the Commission, the
following is stated: The
Military Criminal Justice Code is enshrined in Decree 250 of June 11, 1958 and
it takes up: 1) crimes and punishments in general; 2) military crimes and
punishments; 3) jurisdiction, competence and organization of the military penal
justice system; 4) procedures that should de in effect for the investigation of
crimes and for the expedition of military penal sanctions. a)
By the Supreme Court of Justice b)
By the Superior Military Tribunal c)
By the judges of First instance d)
By the presiding officers of the oral court-martial e)
By the officials of the military criminal instruction
courts. Judge
advocates are the legal advisors of the judges of first instance. In
the cases, as in ordinary cases, the Public Ministry acts as the representative
of society’s interest. First
and second Instance Court exists, as do ordinary and extraordinary appeals. Under
the terms of Article 121 of the national Constitution, the Government may, in
cases of war, armed conflict, disturbance of the public order or domestic
strife, declare a state of siege an in the exercise of the powers that this
unusual Government situation confers on it, rule that certain crimes committed
by civilians and therefore subject to the competence of the ordinary justice
system be judged by the military penal judicial system for as long as the state
of siege last. This
is a special system of governing in out juridical structure but it is important
to note that the trials conducted by the military penal justice system though
oral courts-martial are conducted with all constitutional guarantees and the
fullest respect for the right to a fair trial.
In these court-martials, evidence is advanced and refuted freely, and the
verdicts are independent. Without the slight4st error, one can say that the
findings of trial juries are equivalent or similar to those of the officers of
oral court-martial. According
to that same Article 121 of the National Constitution, decrees issued by the
Government on the basis of the powers of the state of siege are revised by the
Supreme Court of Justice (a body totally independent of the executive) for
purposes of determining their constitutionality. This system protects human rights and individual liberties. The
present trials of civilians, who may have committed certain crimes, by the
military criminal justice system, exist because of decrees issued of the basis
of the state of siege, decrees that were declared expressly constitutional by
the Supreme Court of Justice.
4.
The Commission has received several documents criticizing the operation
of the military criminal judicial system, especially the fact that this justice
is military in nature and that it judges civilians under unusual circumstances
of disturbance of the public order and implementation of the state of siege.
These documents state that the armed forces are exercising a growing
influence in the administration of justice through the existence of the oral
courts-marital. During the on-site
investigation, in response to the Commission’s concern with this matter, the
president of the congress of the Republic stated that trial in these types of
courts is done for the sake of the quickness that characterizes them and that in
Colombia the true power rest in reason and truth and in the existence of a state
of law and a pluralistic democratic system.
5.
A document given to the Commission by the Colombian government makes the
following points:
…Military rules
are taken precisely from the common or ordinary code; for example, in both
provisions, including the new penal procedure code, the Supreme Court of Justice
has the same functions such as trial of high state officials as well as those
relating to appeal and review cases; the Superior Military Tribunal is composed
of fifteen (15) magistrates of whom twelve (12) are civilian attorneys and three
(3) military attorneys, who, to hold those positions, must meet the
constitutional and legal requirements of the regular justice system to be the
magistrates of judicial district courts; the judicial district court has ten
(10) prosecutors, all of whom are civil attorneys who must meet the same legal
formalities required of those who hold this position in the ordinary justice
system. The functions of this court
are the same as those established in the normal rules for judicial officers of
this rank.
We should note that the Government’s assignment to the military penal
justice system, of the trials of crimes against state security has been declared
constitutional by the Supreme Court of Justice.
Furthermore, it should be made clear that the courts-martial or the
military courts are constitutional in origin, are not ad hoc
institutions, but institutions that have been legally recognized since 1910 in
Article 170 of the Colombian constitution.
It is not too much to note, also, that the findings handed down by the
Superior Military Tribunal are also subject to the extraordinary remedies of
appeal and review by the penal section of the Supreme Court of Justice. D. Oral court martial
1.
In the present state of affairs in Colombia, that is, a situation in
which a state of siege is in effect since the public order was declared
disturbed by Decree No. 2131 of October 7, 1976, oral courts-martial are
functioning in accordance with a military criminal justice code.
2.
The power to convoke oral courts-martial is the responsibility of the
judges of first instance mentioned for the procedure of courts-martial, with the
same jurisdiction and competence, and such convocation can be given whether or
not a prior investigation exists. These
courts-martial are composed of a presiding officer, three officers, a
prosecutor, a legal advisor and a secretary.
With the exception of those cases called for in the code, the second
instance for all cases heard under military justice is the Superior Military
Tribunal. The extraordinary
remedies are appeals and review. The
second instance verdicts handed down by the Superior Military Tribunal in cases
involving crimes whose punishment entails the deprivation of liberty of five
years or more may be appealed within fifteen days following the date of
notification or the moment of notification.
This remedy may be used, processed and ruled on for the reasons and
according to the standards of the penal procedure code.
In criminal matters tried by the military criminal justice system, the
case may be reviewed for the reasons and in accordance with the rules of that
same code. [8]/
3.
In recent months, civilians accused of belonging to different subversive
movements have been tried by oral courts-martial for crimes included under
Legislative decree No. 1923 of September 6, 1978, the decree that promulgates
the Security Statute. Article 9 of
this statute states: “The
military penal justice system, through the procedure of oral courts-martial and
the competence conferred to it by current legal provisions, shall try the crimes
refereed to in Articles 1, 2, 3, 5, 5, and 6, in addition to those committed
against the life and personal security of the members of the armed forces and
against civilians in the service of the armed forces and against members of the
Administrative Department of Security (DAS), whether or not in the performance
of duties, and against public officials by reason of their public office or the
exercise of their functions.” [9]/
4.
The Office of the Procurator General of the Nation, in its condition of
Public Ministry, has accredited delegates to be present at the oral
courts-martial. The Commission
received from that office documents containing several communications in which
the designated attorneys reports on completion of their mission in connection
with the oral courts-martial of the alleged members of the M-19 and the FARC.
5.
The Commission has proven that despite the exceptional status of trials
of civilians by military courts, some of these take an excessively long time.
One of these was the case of the oral courts-martial held at La Picota
penitentiary in Bogotá. Others are
conducted rapidly, as was the oral court-martial in the area of Ipiales, which
ended in May 1981.
By Decree No. 2482 of October 9, 1979, the Government of Colombia amended
Article 574 of the Military Criminal Justice Code.
This decree established that when there is a prior investigation, only
the opinion of the judge advocate, which is discussed in Article 567 of that
code, and other procedural pieces that the attorneys may request, should be
read. That amendment also states
that when a prior investigation exist, the oral court-martial shall heard the
reports of the examination officer without allowing the accused person or the
defending attorneys to be present. When
this decree was adopted, several attorneys submitted petitions of
unconstitutionality of the infringed on the right to due process legally
recognized in Article 26 of the national Constitution by eliminating the reading
of evidence. In its finding of
December 3, 1979, the Supreme court of Justice declared the decree
unconstitutional.
On March 12, 1980, the President of the Republic appointed a committee to
recommend “to the executive, legal procedures that can be adopted to shorten
the duration of cases being tried in oral courts-martial.”
As a result the Colombian Government issued Decree No. 536 of March 14,
1980. This decree, declassed
constitutional by the Supreme Court of Justice, reads as follows in Article 1:
“When there is a prior investigation, the proceedings in oral
courts-martial shall be as follows: After the court is installed and the
provisions of Article 573 complied with, the finding of the judge advocate
provisions of Article 573 complied with, the finding of the judge advocate which
is discussed in article 567 of the Military Criminal Justice Code shall be read,
along with such other documents as the prosecutor, the attorneys, the accused
persons or the court officers may request.”
This way, the reading of documents becomes optional in nature by those
involved in the trial. [10]/
6.
In the agreement reached between the government of Colombia and the
Commission through an exchange of notes dated April 23 and 24 1980, it is stated
that the Commission or its authorized representatives may exercise freely, under
the terms of law, throughout the whole of the national territory all its
functions and the following activities, in addition to others: a)
Have complete freedom to speak with attorneys representing
persons being tried in the cases before the oral courts-martial and all those
subject to military justice. b)
Be present at, under the conditions of the law, the oral
courts-martial and assur4e itself of the procedural guarantees and their legal
conduct, and also have the power to submit to competent authorities any
observations that it may consider appropriate to avoid any violation of the
rights of those being tried. Under
the terms of this agreement, the Commission, through its members and the
attorneys of its office of Executive Secretary, has been observing the public
stage of the oral courts-martial in Colombia at different times since the month
of April 1980. This procedure has
complied with the agreement reached in this area with the Colombian Government. The
Commission has opened four multiple or joint cases relating to the oral
courts-martial: No. 7348 on the Movimiento 19 de Abril
(M-19) which has 107 claims; No 7375 on the Fuerzas Armadas
Revolucionarias Colombianas (FARC),
35 claims; No. 7605 on the Ejército de Liberación Nacional (ELN), six claims;
and No 7818 on the Oral Court-Martial held in the city of Ipiales, also relating
to theM-19. The Commission has
processed these cases in accordance with its rules. 7.
The Government of Colombia has furnished the Commission with statistical
data on the cases being tried under military justice system.
These data are: In
1980, the military criminal justice system conducted three hundred thirty-four
(334) oral courts-martial for different crimes, some of which such as rebellion
were political, while others were common crimes such as extortion, kidnapping,
blackmail, homicide of public officials, robberies of firms and persons, and so
on. These cases show not only the
speed but also the effectiveness of the military criminal justice system in
providing the procedural guarantees and requirements of first and second
instance courts and guarantees and requirements of first and second instance
courts and for cases before the Supreme Court of Justice, as provided by law. For
the specific situation of cases involving political crimes, to demonstrate the
speed of this judicial form, the following cases of courts-martial between 1980
and 1981 can be mentioned. The
duration of these trials was twenty (20) days to (2) months. Court-martial
of twenty-one members of the Auto Defensa Obrera Subversiva Movement
(ADO) held in Bogotá. Court-martial
of 31 members of the M-19 subversive movement held in Melgar (Toledaima). Court-martial
of nine members of the Pedro Leon Arboleda Subversive movement (PLA) held in
Bogotá. Court-martial
of 13 members of Court-martial of 25 members of the Pedro Leon Arboleda
Subversive movement (PLA) held in) held in Pasto. Court-martial
of 25 members of the Pedro Leon Arboleda Subversive movement (PLA) held in
Medellín. Court-martial
of 35 members of the M-19 Subversive movement held in Bucaramanga. Court-martial
of 14 members of the Fuerzas Armadas Revolucionarias de Colombia subversive
movement (FARC) held in Villavicencio. Court-martial
of six members of the so-called Brigada Negra, part of the Ejército de Liberación
Nacional Subversive movement (ELN) held in Medellín. Court-martial
of 66 members of the M-19 subversive movement held in Ipiales started in
mid-April of this year, which lasted no longer than ten (10) days. E. Oral Court Martial: M-19
1.
Through officials of its office of Executive Secretary, the Commission
was present for the sentencing at the Oral Court-Martial, which tried and
sentenced three persons accused of belonging to the M-19 subversive movement. [11]/
This court-martial was held
in Cali in June 1980.
2.
The oral court-martial of alleged members of the M-19, including high
officers of this movement, held in the city of Bogotá, was in the preliminary
or investigation state until February, 1981.
This part of the trial is private. According
to the terms of Article 497 of the Military persons who may participate are the
investigation official, the trial judge and his secretaries, the individual
agent of the Public Ministry, the accused, his attorney, and the civil party, if
any.”
Under the terms of the agreement reached with the Government of Colombia
in April, 1980, from March 1981 on the Commission was able to be present
regularly through its members and staff officials, at this case held at the
facilities of La Picota Penitentiary in Bogotá.
During the on-site investigation, as one of its initiatives, the
Commission requested the Government to provide information on this oral
court-martial. The Commission has
received 202 special forms, one for each of the accused.
These forms contain the name of the accused person, the address, date of
arrest, date of unsworn statement, the data of the arrest warrant, the date of
trial, the current status of the detained person, including the name of the jail
where he is located, and the charges against him, as well as the legal
provisions invoked by the state.
In addition, the Commission met with and took claims from alleged members
of the M-19 being held at the La Picota central Penitentiary in Bogotá.
It has also talked with and taken information from their defense
attorneys. As a result of these
charges, it opened multiple case No. 7348, which is being processed in
accordance with the pertinent rules of the Commission.
3.
In January, 1981, an official of the Executive Secretariat of the
Commission met with the presiding officer and the prosecutor of this oral
court-martial. The staff member
gathered information about the following points: a)
The oral court-martial was convoked for November 16, 1979,
and was installed on November 21. Its
distinguishing feature is the oral argument procedure used on the basis of
Article 586 of the Military Criminal Justice Code. This article provides, “All proceedings in the oral
courts-martial are oral and the only written documents are the minutes, the
indictments and the sentence unless it is absolutely necessary to add some other
document. However, summaries of the
oral arguments of the parties may be added. b.
The appointment of the defense attorney and their statement
lasted from November 22 to December 14, 1979 to August 5, 1980.
Evidence was taken from August 11 to October 27, 1980.
The races for preparation of indictments began October 27, 1980.
And ended January 13, 1981. The
readings if indictments took place on January 13, 1981.
From January 13 to February 12, 1981, the briefs were transferred to the
prosecutor and to the defending attorneys.
The estimated starting date of the public stage is some time during the
month of February 1981. c.
In all, 166 accused persons were present when the
court-martial began. Ten additional
persons who were listed as absent prisoners were arrested and included later,
bringing the total number of persons detained to 176; d.
Of the 176 detained, as mentioned above, two persons were
referred to the common justice system. These
were Mr. Victor Vivanco and Mrs. Alba Nelda Gonzales Sousa, both Uruguayans.
The presiding officer of the court-martial explained that the transfer
from the military justice to the common justice system was done in view of the
fact that their conduct consisted of falsehood and not rebellion.
This conclusion was reached as a result of the legal study of this case.
It was added that, under the terms of the Colombian juridical structure,
this falsehood falls under the competence of a Superior Court Judge of the
common system and this case was transferred
to Superior court Judge 28 of Bogotá; e.
Of the 176 persons mentioned, 34 were set free during the
preliminary proceedings due to insufficient evidence. Of the remaining detainees, indictments were prepared against
115 and 26 were set free insufficient evidence to bring them to trial.
In this connection, the presiding officer of the court-martial stated
that there was enough proof to detain them, as had been done, but not enough to
try them or to prepare an indictment against them.
For a guilty verdict, full proof and the corpus delecti
of a crime were required; f.
Furthermore, of the 176 persons, Mr. Sergio Betarte Benitez
was separated from the M-19 case since Benitez, an Uruguayan, was not involved
in the rebellion but only in a kidnapping as a separate crime. Therefore,
this accused was referred to the Military Institutes Brigade because the act or
the crime of which he was accused was committed in Bogotá.
This was the kidnapping of Mr. Miguel de German Ribon on March 25, 1978.
It was added that this crime falls under the competence of the Military
Criminal Justice System in accordance with decree 2260 of 1976, which assigned
to the military justice system of public order and state of siege.
It was also stated that this determination was made on the basis of
Article 311 of the Military Criminal Justice Code in accordance with Article 577
of that same code. [12]/ g.
With respect to the absent prisoners, the trial started
with 53 in this category of whom 25 were put on trial.
Of the total, 29 were not tried since their legal status was resolved. h.
The defense attorneys involved in this case totaled 45, all
of them civilians who were responsible for defending the accused attorneys, 15
in all, who were military personnel. Most
of them were attorneys and law students, as was already explained. i.
The prosecutor of this oral court-martial stated that he
has been performing his duties for 15 months, since November 21, 1979, in
accordance with Article 375 of the Military Criminal Justice Code which reads as
follows: “The public Ministry
represents the interests of society. Those
who are its staff members must seek the punishment of persons responsible for
crimes and the defense of innocent parties; they should request that all
necessary proof be taken and intervene in the formalities and actions of the
case.” j.
The prosecutor also stated that contrary to the common
justice system, where several prosecutors can be appointed, according to a
decision of the Procurator general of the nation, under the military penal
system, there is only one military prosecutor for each court-martial, as state
in Article 568 of the Military Criminal Justice Code. [13]/ 4.
Furthermore, as a result of the conversation between the presiding
officer and the prosecutor of the oral court-martial of the M-19, the following
information on this case was turned over to the Commission: 1. Start
The court-martial was convoked by means of resolution No. 15 of November
16, 1979, by the command of the Military Institutes Brigade. It was installed on November 21, 1979 at 9:00 a.m. 2. Activities
and special characteristics
The court-martial proceeded as provided in Decree Law 0250 of 1958—the
Military Criminal Justice Code—Fourth Book, Title VI, Chapter II, procedure of
oral court-martial, whose distinguishing feature is the oral nature of the
proceedings.
3.
Important dates
a.
Installation November 21, 1979
b.
Appointment of defense attorneys November 22,1979 to
And taking office
December 14, 1979
c.
Reading of case files December 17, 1979 to
August 5, 1980
d.
Submission of evidence
August 11, 1980
To
October 27, 1980
e.
Recess to prepare indictments
October 27, 1980
To
January 10, 1981
f.
Reading to prepare indictments
January 13, 1981
g.
Transfer of brief to prosecutor and January 15, 1981
Defenders to
February 13, 1981
Possible start of public stage
February 16, 1981.
4.
Important points
1.
Accused persons present for start of trial
166
2.
Accused persons missing but arrested during the
Preliminary proceedings
10
3.
Accused persons present sent to common justice
2
4.
Accused persons present not tried and set free during
Summary proceedings
34
5.
Accused persons present and tied
115
6.
Accused persons present not tried and set free
126
7.
Accused persons absent at the start of court-martial
53
8.
Accused persons absent and called to justice
25
9. 9.
Accused persons absent not tried and legal status
10.
Civilians defense attorneys involved in case
45
11.
Court-appointed defenders
15
12.
Infractions of law being tried
a.
Robbery of arms, deposit,
General Command of
Military Forces
Dec. 31, 1978 and
Jan. 1, 1979
B. Kidnapping and death of
Dr. Nicolas Escobar
May. 29, 1978 and
Soto
Jan. 3, 1979
c. Kidnapping of Dr. Miguel de German Ribon
Mar, 25, 1978
d.
kidnapping of Nicaraguan Ambassador William Barquero Montiel , &nbs |