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OEA/Ser.L/V/II.53
doc. 22
30 June 1981
Original: Spanish
REPORT
ON THE SITUATION OF HUMAN RIGHTS
IN THE REPUBLIC OF COLOMBIA
SUMMARY
OF TIME SPENT ON THE DIFFERENT STAGES OF THE ORAL COURT-MARTIAL OF THE MEMBERS
OF THE SELF-NAMED SUBVERSIVE MOVEMENT, FUERZAS ARMADAS REVOLUCIONARIAS DE
COLOMBIA (FARC).
1.
The reading of the brief took two months and eight days, from November 5,
1979 to February 13, 1980.
2.
The evidence period took 18 days, from February 13, 1980 to March 31,
1980.
3.
Drafting of the indictments took 13 days, from March 18 to March 31,
1980.
4.
For transferring the briefs to the parties; to the prosecutor, one day,
April 1 and to the defense attorneys, seven days, from April 7, to April 14,
1980.
5.
The prosecutor’s argument took 15 days, from April 15 to April 30,
1980.
6.
The refutations of the defense attorneys took eight months and 11 days,
from May 5, 1980 to January 16, 1981, by which date the last of the attorneys
had finished. Included in these
periods are Saturdays, Sundays and holidays during which the court was not in
session. The verdict will probably
be handed down on January 19, 1981. On
that day the proceedings of the court-martial will be suspended, declaring a
recess for preparation of the judicial decision which will probably take a time
of two months, leading to a reading of the verdict in mid-march, 1981.
ADDITIONAL
INFORMATION ABOUT THE ORAL COURT-MARTIAL
1.
NUMBER OF PERSONS ON TRIAL 153
2.
PROCESSED AFTER INDICTMENT
50
3.
ACCUSED WITHOUT INDICTMENT
103
4.
ACCUSED PERSONS PRESENT
36
5.
ACCUSED PERSONS TEMPORARILY RELEASED 3
6.
ACCUSED PERSONS WHOSE DETENTION HAS BEEN SUSPENDED
1
7.
ACCUSED PERSONS ABSENT
10
5.
The defense attorneys of the alleged member of the FARC turned over to
the Commission, several trial documents relating to the challenges of the
presiding officer of the oral court-martial. /
The Defense attorneys also turned over to the Commission the request that
they submitted to the presiding officer of the oral court-martial to decree
“The nullity of all these proceedings and the consequent release of the
detained persons."” The final part of this 18-page document reads as
follows:
We
respectfully summarize our arguments as follows:
1.
Article 441.1 of the Military Penal Code and other articles consistent
with it have been violated due to lack of jurisdiction and competence, in
accordance with the points made herein;
2.
Also, Article 441.2 has been violated since serious error have been made
in the legal designation of the penal violations and in the designation of the
names of several of the accused, as can be seen in an examination of the cases;
3.
Article 441.5 has been violated since the court officers were not
appointed by obligatory drawing of lots, as dealt with in Article 547 of the
Military penal Justice Code.
4.
Likewise, Article 441.6 has been violated since the indictments are not
prepared in legal form, their drafting is defective, does not coincide with the
earlier description and makes no distinction among the different types of
rebellion as described;
5.
Finally, Articles 23, 25, 26, 61 and 170 of the National Constitution,
have been violated, as have the American Convention on Human Rights and the
Universal declaration of Human Rights of the United Nations Charter.
These rules are part of our domestic law since they were approved by the
Congress in which Colombia ratified these international conventions.
6.
Also, all related rules of the Penal Procedure Code and Articles 413 and
414 of the Military Penal Justice Code have been violated.
In
addition, the defense attorneys turned over to the Commission a copy of the
resolution of the Superior Military Tribunal regarding the appeal “interposed
by Dr. Hermelinda Castellanos J., the attorney of the accused person, María
Herminia Quintero, incriminated for rebellion, of the decision taken by the oral
court-martial in which the revocation of the arrest warrant for her client was
denied.” /
6.
On November 26, 1980, the Superior Tribunal of the Judicial District of
Bogotá, Penal Section, issued a ruling that confirmed the final dismissal
handed down in a legal ruling of July 18, 1980, by Superior court 30 of Bogotá,
in favor of three persons accused of the crimes of falsehood and false testimony
in the trial of the FARC. /
7.
In the claims received and processed by the Commission with respect to
person’s accused of belonging to the FARC, in matters concerning the right to
a fair trial and due process, the following charges can be mentioned:
1)
Interrogation weeks after being arrested;
2)
Arrest warrant issued without any statement or testimony against the
accused;
3)
Interrogation and unsworn testimony taken without an attorney present due
to failure to inform the attorney of the dates or places of the formalities;
4)
Double jeopardy and simultaneous cases under way in different courts for
the same acts;
5)
Refusal to expand the formalities as requested by the attorneys;
6)
Lack of formalities called for by the judge;
7)
Total innocence with respect to the charges made against him; no direct,
indirect or even conjectural evidence exists;
8)
The extra-procedural evidence that was presented was not incorporated
into the documents;
9)
Multiple testimony exists that on the date of the events, the accused
person was in a place other than that in which the events occurred.
He does not know any of the attackers and was forced to accept the role
attributed to him and to name accomplices.
He has not visited Yacopi, the place of the events, for more than two
years.
10)
Double jeopardy and lack of evidence, since the only evidence against the
accused person is the confession which was obtained through violence;
11)
Negligence of the judge in taking evidence in his behalf; the evidence
consisted of face-to-face encounters which were also recommended by the judge
advocate of the Military Institutes Brigade.
Face-to-face encounters with persons accused by the accused person;
12)
Extended periods of incommunication;
13)
Excessive delays in bringing to trial; improper combination with other
cases;
14)
Accusation of having taken part in the attack on the army patrol in
Corinto when the case showed that on the day of the occurrence of these events
he was in Bogotá at a party with other friends;
15)
No consideration was given to evidence showing that the accused person
did not participate in the attack;
16)
Confession in unsworn testimony obtained by physical torture, thereby
invalidating the evidence. The
torture nullifies the confession and for this reason the arrest warrant and the
trial are not justified. Under
these circumstances, one may not assume that the crime of rebellion exists;
17)
The Military penal justice system disregards the point that not only
should incriminate evidence is taken, but that evidence that favors those being
tried should also be taken. All
legal and constitutional guarantees required for the right to a fair trial would
be violated in this case;
18)
Lack of attorney in the examination, except in the unsworn testimony and
in this case the attorney was a court-appointed military person and the judge
did not appoint him immediately as was his duty.
No court-appointed attorney was designated for the examination stage;
19)
The acts proven against the accused, by means of confession, refer to
earlier years when the Security Statute was not in force and military justice
did not have competence. In
December of 1979, a conflict of competence was settled in favor of the common
justice system. The case was referred to the common justice system which
granted provisional liberty;
20)
An arrest warrant for escape was issued when the crime of escape did not
exist in this case and even if it did exist, this court-martial would not be
competent to hear it because this crime is being investigated by the military
penal justice system;
21)
Evidence was requested but was refused;
/
8.
The claims that contain the aforementioned irregularities were
transmitted to the Colombian Government, which has been regularly answering the
Commission’s request for information. The
following are several examples of the government’s replies in this area:
a)
Roberto Amaya Gaitan
Accused of the crimes of rebellion and aggravated homicide, his unsworn
testimony was taken on April 17, 1979, by the Seventh Military Penal Instruction
Judge and he was assisted in this formality by Dr. Gustavo Pardo Tores.
He is currently being counseled by Dr. Alvaro Moreno Novoa. On June 4 of this year, the command of the Military
Institutes Brigade communicated to the presiding officer of the oral
court-martial that this civilian had claimed that he was tortured. The complaint was referred to the Delegate Procurator General
for the Armed Forces for corresponding investigation. This will exhaust the disciplinary jurisdiction to establish
whether the penal law was violated.
The court that conducted the investigation decreed preventive detention
for Roberto Amaya Gaitán in a legal measure dated April 23, 1979, since there
was sufficient merit for this, in accordance with Article 439 of the Code of
Criminal Procedure.
At this time, the accused is present at the hearing of the oral
court-martial, which is now its public stage.
b)
Salvador Correa Alfaro
Sworn testimony was taken on January 8, 1979, and he was counseled in
this proceeding by Dr. Heraclito Martínez Ardila.
He is being assisted by Dr. Hernando Sandoval López at the hearing of
the court-martial. Having found
merit in accordance with Article 439 of the Code of Criminal Procedure, the
examining officer decreed his preventive detention for the crime of rebellion on
January 16, 1979. The file does not
contain any record deposited by the accused concerning mistreatment of
psychological pressures of any type.
The accused was sentenced, under terms of Resolution No. 174 December 26,
1978, issued by the Military Institutes Brigade Command, to a term of three
years of confinement for violation of Decree 1923 of 1978, Article 10.
c.
Arnulfo Mahecha Useche
Was captured on April 10, 1979, gave
unsworn testimony on April 21 of the same year, to Military Penal Instruction
Court. His attorney on that
occasion was Second Lieutenant Mauriciio Betancourt Giraldo.
He is being counseled at the hearing by Dr. Hernando Reyes Santos.
An arrest warrant was issued for him on April 23, 1979, by the examining
officer.
Since his arrest, his legal status was resolved opportunely under terms
of the precepts and formalities of Article 28 of the National Constitution and
Articles 432, 434 and 437 of the Code of Criminal Procedure.
This case contains no note of mistreatment of the accused.
The exonerating evidence requested was taken at the hearing of the
court-martial.
d)
Luis Alberto Pérez Mosquera
Was captured on June 11, 1979 and his unsworn testimony was taken on June
21 by Military Criminal Instruction Court 47.
He was represented in that formality by Dr. Carlos Alfonso Moreno Novoa
and is being defended in the court-martial by Dr. Hernán Suárez Sanz.
On June 27, 1979, the examining court found that the requirements of
Article 439 of the Penal Procedure Code had been met and decreed that he be held
under preventive detention.
There is no record in any of the criminal proceedings that the accused
was mistreated or made any note of such treatment at any time.
The fact that the first interrogation was taken without an attorney is
juridically possible since this formality is performed by the judicial police
and is one of the recognized powers of that body, under the terms of Article
289.8.c of the Code of Criminal Procedure.
Even though this interrogation has probative value, as stated in Article
306 of the Code, it is not taken into account by the military penal instruction
judges unless it is supported by other evidence.
As for the unsworn testimony, he was assisted by an attorney, Dr. Carlos
Alfonso Moreno Novoa, and not by a court-appointed attorney.
The aforementioned lawyer was replaced and Pérez Mosquera is now being
counseled at the hearing by Dr. Hernán Suárez Sanz.
The terms set in Article 28 of the National Constitution and Article 434
of the Code of Criminal Procedure which allows an accused person to be held incommunicado
for up to six days while unsworn testimony is being taken, when two or more
persons are arrested in a single case, as occurred in this one, were observed.
e)
Jesús Emilio Ramos Gil
Was captured on March 20, 1979, by order
of the Eight Military Penal Instruction Court.
He gave unsworn testimony on April 3 of the same year and was assisted by
a court-appointed attorney, Lieutenant Martha Lucia Padilla de Diez and referred
to the Common Justice System, for its action, on December 18, 1979, after an
arrest warrant was issued for him on April 10.
In the unsworn testimony, he stated that he had been mistreated by the
interrogators. In an amplification of that same statement given on June 15,
1979, he stated that he had been psychologically pressured.
A military official was appointed to be his attorney under the terms of
Articles 393 and 509 of the Military Penal Code.
These rules provide that in the event that a person cannot or does not
wish to appoint an attorney for military proceedings, these positions may be
filled by officers of the military forces.
Dr. Hernán Suárez Sanz assisted him following this until his case was
turned over to the competent judge. Since
there were no signs of violence, Military Criminal instruction Judge 8 did not
consider it in order to open any penal investigation.
f)
Obdulia Prada de Torres
Is accused of the crime of rebellion.
Before appearing at the oral court-martial that is trying her, she was
detained at the Buen Pastor National Women’s Jail in Bogotá.
She was arrested on December 10, 1978, at her residence in the city of
Bogotá where a significant quantity of war material was confiscated.
The examining official was the Third Military Penal Judge.
She was sentenced to three years of confinement under the terms of
Article 10 of Decree 1923 of 1978. For
the charges of rebellion, the Eight Military Penal Judges took her unsworn
testimony on January 11, 1979, in which Dr. Artemio de Jesús Orrego López
acted as her attorney. This formality was signed by those who participated in it and
no correction or addition to it was observed.
In the part dealing with exonerating evidence, no record was made of
mistreatment but the unsworn testimony mentioned that she had been hit and for
this reason the judge referred her to the Legal Medicine Institute, whose report
says that Obdulia Prada de Torres did not shoe any signs of violence.
Judge 8 invoked Article 439 of the Code of Criminal procedure to issue an
arrest warrant. The accused woman
had two separate cases against her, one for violating Article 10 of Decree 1923
of 1978 which deals with illegally trafficking in arms, ammunition and
explosives, and another case, still in progress, for the crime of rebellion. She is currently being tried by the oral court-martial on
this letter charge.
g)
Luis Enrique Rojas
Also know as “Ramiro” in the case, he is being tried by the oral
court-martial for the crime of rebellion and is currently being held at the
National Model Prussian in Bogotá. He
was arrested on June 11, 1979, in the La Estanzuela neighborhood of Bogotá and
was placed at the disposition of Military Penal Judge 8 who took his unsworn
testimony within two days. Dr.
Manlio Acero Larrota, an attorney designated by the accused person, acted as his
representative. This judicial
formality was signed by the persons associated with it.
The testimony contains no corrections or amendments. At the end of the record, this accused charges that several
irregular methods were used by the interrogators to obtain his confession.
On June 25, 1979, an arrest warrant for him was issued.
h)
Luis José Lozano Laguna
Is being tried by the oral court-martial, for the crime of rebellion, in
accordance with the indictment against him.
He is being held at the National Model Prison in Bogotá.
He was arrested in Bogotá on December 12, 1978, while he was driving a
vehicle which, according to the accused, belonged to the FARC subversive group.
For the alleged crime of bearing arms, ammunition and explosives, he was
examined for exonerating evidence on December 19, 1978, by the Third Military
penal Judge. Major Gustavo González
Giraldo was appointed to be his attorney. In
that formality, he made no note of having been mistreated.
After being placed at the disposal of the Eight Military penal Judges,
his unsworn testimony was taken on January 3, 1979, at which time he was
represented by his attorney, Dr. José Luis Roys Aguilar.
In this same procedure he stated that he had been mistreated to obtain
from him information that he did not have.
Two investigations are under way in connection with this accused.
One is for bearing arms, which is being carried out under the terms of
Article 10 of Decree 1923 of 1978, and the other for the crime of rebellion.
These investigations were started simultaneously.
Military Penal Judge 8 issued an arrest warrant for him on January 4,
1979, for the crime of rebellion and he is now being tried on this charge by the
oral court-martial.
i)
Saul Bustos Escarrage
Was accused of the crimes of rebellion and
aggravated homicide, in which the victims were five military persons in the
municipality of Yacopi. He is being
detained at the National Model Prison and is being tried by the oral
court-martial. He was captured by
the national police in the municipality of La Palma on February 6, 1979. He was placed at the disposal of the 8th Military
Penal Judge on April 11, 1979. In
his unsworn testimony, he stated that he was mistreated by his interrogators.
He was assisted in that proceeding by Dr. Alvaro Echeverri Uruburu.
An arrest warrant was issued for him April 19, 1979, for the crime of
rebellion.
j)
Flaminio Avila
He is a half-brother to Aniceto Hueso and was not included in the
convocation of the oral court-martial. He
was captured on March 25, 1979, in the La Floresta neighborhood, along with
Adelio Linares Pinzón. He was
placed at the disposal of the First Military Judge on April 2, 1979.
In the unsworn testimony taken three days later, he was represented by
Dr. Hermelinda Castellanos Justinico. He
noted in his testimony that at the time of his arrest, he was blindfolded but
not mistreated. The testimony was
singed by the judge, the accused, his attorney and the secretary.
The First Military Judge ordered that Flaminio Avila Santos be set free
on April 11, 1979, on condition that he appear before that court every eight
days. /
9.
On February 2, 1981, the claimant in case No. 7375 concerning the oral
court-martial of the FARC wrote to the Commission in reference to “the
principal incidents in the culmination of the public stage of the oral
court-martial against alleged members of the FARC.” This information is as
follow:
As is well known, fifty persons were tried, ten of them absent, for
different reasons. These reasons
were as follows: six belong to an urban group located in Bogotá;
27, of whom ten were absent, were involved in an armed encounter with an
army patrol in the Corinto area; seven were accused of belonging to an urban
group in the municipally of la Dorada; and the other were charged with
participating in the attempted escape of prisoners carried out by alleged
helpers of the FARC.
The verdicts announced by the panel of officers was a follows: a)
acquittal, for María Herminia Quintero, Ricardo Amaya, Alejandro Díaz, Samuel
Díaz, Arnulfo Mahecha, Salvador Correa, Obdulia Prada de Torres, Fernando
Mahecha and Romulo Bustos; and b) guilty, for all the others.
The presiding officer of the court-martial has already confirmed the
acquittals and it is believed the sentencing others will take some two months.
With respect to María Herminia Quintero, the presiding officer ordered
that copies of her case be sent to the common justice system and that she be
placed at its disposal for investigation on the charges of false testimony.
We remind you that this accused was called to the court-martial for
having testified about the presence in Bogotá of several of the person’s
accused of participating in the Corinto attack. At that time the military
assumed that the accused were guilty and that consequently, the testimony of
Herminia Quintero was false. In
their opinion, this was a way to help the guerrillas and for that reason, the
false testimony was connected to the crime of rebellion.
This happened in November 1979, when the court-martial was just starting. The defense requested at that time that a conflict of
jurisdiction be declared since false testimony is a crime that should be tried
by the common justice system. Now
that she is absolved for the crime of rebellion, they are requesting that she be
tried for false testimony that is the military wants her to be tried twice for
the same act.
Mr. Carlos Linares Pérez and the other persons accused by him of having
participated in the events at Corinto were all found guilty.
We remind you that Linares Pérez proved that he was Bogotá on the day
of these events, offering testimonial and documentary evidence of this.
The military penal justice system arrested witnesses and pressured them
into changing their stories. They
stated that Linares Pérez attorney had given them money to give slanted
testimony. Dr. Delgadillo Bravo was
arrested on the basis of this accusation. In
a finding confirmed by the Superior Tribunal of Bogotá, which takes up cases
already tried, the common justice system absolved Dr. Delgadillo and the
witnesses completely and proved that Linares Pérez was in Bogotá on the day of
the events, that his confession was wrong from him by torture and that the
witnesses had been forced to retract their initial stories by the military.
Despite the existence of this finding, which constitutes full proof and
is a matter already judged, the verdict against Linares Pérez and the other
persons accused by him of having participated in the encounter was guilty.
Also found guilty were Manuel Castillo Ruiseco, José Heriberto Higuita,
Máximo Eduardo Cruz, Luis José Lozano Laguna who had been found guilty for the
same acts but under charges of illegal carrying of arms.
In connection with the trial for the Corinto encounter, it should also
be noted that all the persons accused of having participated in it were accused
and found guilty for the deaths of six soldiers who died in that clash.
Colombia’s penal law states that deaths and injuries occasioned by
rebels in combat do not lead to additional sanctions but theses crimes are
punished strictly as rebellion. But, to impose these combined punishments, which will lead to
up to 30 years of imprisonment, the military invented the idea, and focused this
entire case on it, that the deaths of the soldiers came minutes after the combat
was over ant that the guerillas had, with premeditation, set fire to the trucks
in which the soldiers were riding for the purpose of burning them alive, when in
fact everything indicates that the trucks caught fire as a result of the
exchange of fire, the bullets that hit the gasoline tanks and the explosions of
bombs and grenades.
In the final session, when the panel’s verdict was read, the presiding
officer refused to let the defense attorney speak. The defense attorney wished to request a declaration that
many of the verdicts were contrary to the evidence.
Once again, this ruling suppressed the exercise of the right of defense.
We defense attorneys have requested nullity of the case since we believe
that it has violated the right to a fair trial, the constitutional principle of
due process and that the entire examination rest on evidence obtained by
torture. Another cause we allege
for nullity is the omission of defense petitions such as the declaration of
cessation of the proceedings for Carlos Alberto Linares Pérez and other persons
accused by him for having shown completely, by means of the Superior Tribunal
ruling, that they could not have committed the crime investigated.
Other grounds for nullity are that several indictments made presumptions
and took as proven facts that which they ere required to prove.
For example, several indictments concerning determined persons who might
be guilty or not for the crime of rebellion, started with the assertion that the
person’s profession was guerrilla fighter.
Another fact that is irregular and ground for nullity is that the session
in which the panel members responded to the indictments should not have been
secret and separate but conducted in the presence of the presiding officer and
the legal advisor.
For the defense there is no doubt the penal members being called to take
a course to help promote them in their military careers, on the eve of the
verdict, had an influence on them.
No doubt the presiding officer will confirm the guilty verdicts.
The appeal will take no less than two years before the Superior Military
Court. /
10.
As was already stated, the oral court-martial included in the Military
penal Justice Code functioned as part of Colombia’s judicial system. The
Security Statute, on the basis of circumstances relating to disturbance of the
public order and the implementation of the state of siege, prescribes that these
military courts may judge civilians for the commission of certain crimes.
The aforementioned code states in Article 306,
“The military penal judicial system is the authority that the Republic
has to administer justice in this area. Competence
to hear a military penal matter depends on the status of the agent, the nature
of the infraction and the place where it was committed”.
For its part, Legislative Decree No. 1023 which promulgated the Security
Statute Prescribe in Article 9 that the military penal justice system, besides
having competence in accordance with current legal provisions, will try specific
crimes covered in that decree “through the procedure of oral court-martial.”
G.
Oral court-martial: Ipiales
1.
In April 1981, an oral court-martial began in the city of Ipiales, the
Department of Nariño, for 66 of the 74 persons captured in military operations
in Southern Colombia. These persons
were charged with being members of the M-19.
Eight of the persons held were moved to Bogotá for trial in the military
court being held at the La Picota Penitentiary.
/
2.
On March 26, 1981, the Commission received from the Permanent Committee
for Human rights in Colombia a communication expressing the following:
We request the Commission intervene promptly and effectively with the
Government of Colombia for the purpose of obtaining full and complete
information on the situation of a large group of Colombian citizens, of both
sexes, who are being held prisoner by the armed forces of our country and whose
whereabouts are unknown.
Large groups of people, both here an abroad, have questions about the
fate of these detained persons because military authorities have been completely
closed as to how they were apprehended, the physical and psychological
conditions in which they are being kept and because, on earlier occasions, other
political prisoners had been mistreated and tortured.
Furthermore, more than ten days have eloped by since the day they were
detained and they have not been placed at the disposal of any judicial authority
with responsibility for conducting their investigation.
Under these circumstances the persons detained could avail themselves of
legal defense.
Another disturbing matter is that this meager information from the
military is nothing more than a record of the number of prisoners and deaths
during war operations, but no identification of these persons has been provided.
3.
On April 11 of the same year, the Permanent Committee for Human Rights
wrote once again to the Commission requesting that it take up the matter of the
Ipiales court-martial. The
Commission proceeded to process this claim by opening case no. 7818. It sent the following cablegram to the Government of Colombia
on April 22:
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS HAS RECEIVED FOLLOWING CLAIM:
“URGE PRESENCE OF OAS OBSERVERS AT COURT-MARTIAL REFUSES TO LET
ATTORNEYS SPEAK, KEEP THEM OUT OF HEARING STOP WE REQUEST OAS TO ASK COLOMBIAN
GOVERNMENT COMPLIANCE WITH CURRENT AGREEMENT ON SUPERVISION OF HUMAN RIGHTS AND
PROCEDURAL GUARANTEES IN COURTS-MARTIAL BEING CONDUCTED AT IPIALES IS IN A
PUBLIC OR PRELIMINARY STAGE. WE
WISH TO INDICATE TO YOUR EXCELLENCY THAT IN ACCORDANCE WITH RULES OF COMMISSION
REQUEST FOR INFORMATION DOES NOT IMPLY PREJUDGMENT OF ADMISSIBILITY OF CLAIM.
ACCEPT, EXCELLENCY, THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION.
4.
On May 19, 1981, the Government of Colombia replied to the Commission as
follows:
1.
After the investigation started in the city of Ipiales concerning 74
members of the M-19 who were captured in military operations, the following
attorneys appeared for the purpose of being appointed without having been
requested by any of the incriminated persons.
Jorge Enrique Cipagauta Galvis, Miguel Antonio Cano, Humberto Criales de
la Rosa, Carlos Moreno Novoa, Alberto Echeverry Uruburu, Hernán Suárez Saenz,
Carlos Pantoja Revelo, Carlos Rodríguez Mejia, Raúl Carvajalino, Jorge Eliecer
Franco Pineda, Antermo de Jesús Urrego López, Arnulfo Cruz Castro, Jorge
Arenas Salazar, Javier Velasco Guerrero and Jairo Bravo Velez.
2.
The following accused persons were moved to Bogotá at the request of the
military judges: Carlos Toledo Plata, Rosemberg Pabón Pabón, Rafael Arteaga
Giraldo, Gloria Amanda Rincón, Blanca Inés Chavarro, Wilder César Silva
(Uruguayan), Miguel Angel Mojica, José Domingo Gómez Castiblando.
3.
When the oral court-martial was installed in the city of Ipiales, the
only attorneys included in the first hearing were the following: Aurelio Jiménez
Callejas, Jorge Eliecer Franco Pineda, Carlos Pantoja Revelo, Favio Velasco
Guerrero, Jairo Bravo Velez and Magda González de Medina.
At the opening session the accused persons caused disorders to prevent
the oral court-martial from proceeding normally.
Because of this situation the presiding officer of the oral
court-martial, in accordance with Article 553 of the Military Penal Justice
Code, had 28 of the persons on trial placed in confinement; the attorneys
requested that this punishment be revoked and, after the judge refused, for no
legal reason and in a complete lapse of professional ethics, they walked out of
the hearing.
Since this behavior is considered an infraction of the law on the
Statute of Attorney, the judge, in furtherance of his obligations, denounced
them to the Judicial District of Pasto and had copies of the proceedings sent to
the Superior Council of Judicature and to the different judicial district
tribunals which had issued them their professional cards.
It is noted that Dr. Magda González Medina had in her possession a
letter sent to the persons being tried at Ipiales from the self-named
“Superior Command of the M-19,” whose members are now in the La Picota Jail
in Bogotá where they are being tried by another oral court-martial.
The letter exhorts those on trial at Ipiales to continue the struggle and
to take positions of confrontation in the hearing.
4.
The persons on trial are now being counseled by the following attorneys:
Alberto Echeverry Uruguru, Alberto Moreno Novoa, Hernán Suárez Saenz, Edy Hernández
Cárdenas (Panamanian) who is aiding three of the five Panamanians among the
accused, and Carlos Pantoja Revelo.
5.
The accused have been granted all types of guarantees, ranging from
attorneys for their defense, as well as personal privileges such as visits,
deliveries of clothing, medical care and adequate lodging.
Neither the office of the Procurator general of the nation nor the
Delegate procurator General for the Military Forces has received complaints from
any of the persons incriminated. The
attorneys have had everything they need to carry out their work.
In this area neither military nor civilian authorities have received any
complaints. Consequently, the
assertions made by the claimants are completely lacking in foundation.
5.
In addition the Commission received other information on this case.
On April 15, 1981, the defense attorneys issued the following
communication:
The undersign defense attorney of the oral court-martial currently under
way in Ipiales at “Cabal” mechanized Group No. 3 against alleged members of
the M-19 wish to inform national and international public opinion of the
following:
1.
On April 15, 1981, we appeared at the installations of the Cabal Group to
perform our duties as attorneys and encountered several problems in gaining
access to the installation of the oral court-martial.
We were able to gain admittance only after the court-martial had started
without the attorneys being present.
2.
Once inside the chapel where the court-martial was being held, we found
out and were able to see that many of the accused persons being detained were
not present in the court since they had been placed under confinement in the
jail for having requested the presence of their attorneys and for having
attempted to sing the national hymn of the Republic of Colombia.
3.
In view of this highly unusual situation, all of us attorneys requested
respectfully that the presiding officer of the court rescinds the sanction and
allow the accused to be present in the court.
This petition was supported by the delegate of the Officer of the
Procurator General of the nation, Dr. Manuel María Muñoz Martínez, although
the presiding officer of the court-martial, Colonel Héctor Julio Ayala Cerón,
refused to change his decision or to let the defense attorneys speak.
4.
In view of this restraint on the right to fair trial which is legally
recognized in the national Constitution, in the Declaration of Human Rights, in
international treaties signed by the national Government and in the codes of the
Republic, we decided to withdraw from the court and to have the record show the
exact reason for our leaving. This
position was supported by the accused present who were forced by the military
police to remain.
We will maintain this position until the normal conduct of the case and
the respect for the right to a fair trail is guaranteed.
6.
In May of this year, the Commission was present at the public stage of
this oral court-martial through an attorney from the Office of the Secretary.
Certain aspects with which the Commission acquainted itself are the
following: a) the military trial was for 66 persons and ended with a guilty
verdict for all of them; b) the attorneys for the detained persons, after
arguing a lack of guarantees for the right to a fair trial, requested a change
of venue, under the provisions of Article 316 of the Military Penal Justice
Code; c) the presiding officer of the court sent a compliant on April 15 to the
national Council of the Judicature referring to six of the defense attorneys,
alleging that they failed to conduct themselves professionally.
One of the attorneys was accused of attempting to transmit a letter from
the detained persons at La Picota in Bogotá to those detained al Ipiales; d)
family members of the accused persons released a press communiqué charging
several types of mistreatment of the detained persons; e) on May 11, the 66
accused persons stated that they were going on a hunger strike; f) among those
being tried are five Panamanian citizens; g) several defense attorneys arrived
from Bogotá and were accepted by the presiding officer of the court; h) the
detained persons protested and requested the presence of their attorneys and
some of them were put in jail as punishment; I) the 16 attorneys issued a
communiqué after withdraw in from the court; this communiqué is included in
this chapter; j) the attorney requested to be informed of the crimes and
applicable rules and whether these were the rules contained in the Security
Statute or in the Penal Code; k) the presiding officer of the court stated that
the applicable law should be the new penal code; 1) several of those detained
told the Commission delegate that they had been tortured indifferent ways during
their interrogation; m) as the prosecutor of the court-martial stated, the
threat from the subversive elements develops in five stages: I) formation of a
subversive apparatus; ii)
consolidation and development of subversive apparatus; iii)revolutionary action
on all fronts; iv) control of institutions –control of area and a moving
war—the M-19 columns disembarked and attempted to control Choco, The Mira
River and Putumayo; v) general insurrection or the state of war of insurrection;
n) according to the same prosecutor, the members of the M-19 were now in states
iii and iv and had gone to Cuba after the seizure of the Dominican Embassy in April of 1980 and other had been sent to take a course on
military training between November 19, 1980 and February 4, 1981.
7.
Of all the explanations given in this chapter, the Commission emphasizes
the following points: the common justice system is operating normally and the
Constitutional Reform of 1979 will help to improve the structure of the system
and make it work better once the Attorney General starts his functions and the
accusatorial system goes into effect.
The military penal justice system has worked too fast at times, and too
slow at others; procedural irregularities that prevent adequate functioning o
the system have been observed. The
competence of the military justice system has been expanded by giving it the
power to try a number of crimes, which, in the Commission’s opinion, should e
decided by the common justice system, which provides greater procedural
guarantees of due process. Complaints
have been heard regarding the manner of conducting the interrogations in
particular, attorneys have not been allowed to be present at them, the
interrogations are conducted at military installations and military persons
conduct them. In addition, the
legal status of the accused person is not defined within the time periods set by
law. The very great number of
persons being tried in a court-martial such as the one being conducted in Bogotá
for member of the M-19 and the other court-martial which ended in may in Ipiales
makes it impossible to conduct a trial that extends full procedural formalities
due to the problems inherent in a trial this size. These problems refer to the defense of the accused, the
taking of evidence, and the juridical assessment of the investigations and, in
general, the direction and thrust of the trial.
All of this works to the detriment of persons who are proven innocent
after a long period of detention.
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