CHAPTER IV

 

THE RIGHT TO A FAIR TRIAL

 

          The rights to a fair trial, to due process and to judicial guarantees deserve special consideration because of the multiple factors that come into play in their exercise and enforcement.  Transcribed below are the pertinent provisions of the American Convention on Human Rights and of the new 1991 Constitution of the Republic of Colombia that protect and defend these basic rights and establish penalties for their violation:

 

          A. LEGAL PROVISIONS IN EFFECT IN RESPECT TO THE RIGHT TO A FAIR TRIAL

 

   American Convention on Human Rights

Constitution of Colombia

                             Article 7.

 

5.  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 proceedings.  His release may be subject to guarantees to assure his appearance for trial.

 

6.  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.  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.

 

               Article 8.  Right to a Fair Trial

 

1.  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.

Article 29.  Due process shall apply to all types of judicial and administrative proceedings.

 

No one may be judged except in accordance with laws that existed prior to the commission of the act with which the individual is charged, by a competent judge or tribunal, and in accordance with all the proper formalities required in each case.

 

In criminal matters, the more benign law, even though enacted subsequent to the commission of the crime, shall be applied in preference to the more severe or unfavorable law.

 

Every person is presumed innocent until proven guilty by a court of law.  The accused has the right to defend himself and to be assisted by counsel of his own choosing or appointed ex officio, during the investigation and trial; the defendant has the right to public due process and to know the charges against him; he has the right to challenge a conviction and may not be tried twice for the same crime.

 

Any evidence obtained in violation of due process shall be null.

 

Article 31.  Every court ruling may be appealed or reviewed, save for the exceptions that the law stipulates.

 

The higher court may not increase the penalty imposed when the convicted party is the only appellant.

 

Article 33.  No one can be forced to testify against himself or against his spouse, permanent companion or relative to the fourth degree of consanguinity, second degree of affinity or first degree of civil relationship.

2.  Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.  During the proceedings, every person is entitled with full equality, to the following minimum guarantees:

 

a.  the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;

 

b.  prior notification in detail to the accused of the charges against him;

 

c.  adequate time and means for the preparation of his defense;

 

d.  the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

 

e.  the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

 

f.   the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

 

g.  the right not to be compelled to be a witness against himself or to plead guilty; and

 

h.  the right to appeal the judgment to a higher court.

 

3.  A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.

 

4.  An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.

 

5.  Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.

 

      Article 9.  Freedom from Ex Post Facto Laws

 

No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed.  A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed.  If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.

 

 

 

Article 30.  Anyone who believes that he has been unlawfully deprived of his freedom, has the right to file before any judicial authority, at any time, either personally or through another party, a petition of habeas corpus, which shall be decided within the space of 36 hours.

 

Article 86.  Every individual shall have the right to file an action with the courts, at any time and at any place, via a summary procedure instituted by himself directly or by someone acting on his behalf, seeking immediate protection [tutela] of his fundamental constitutional rights, whenever said rights are violated or threatened by the actions or omissions of any public authority.

 

The protection shall consist of an order that the offending public authority take action where it is lacking or refrain from taking the improper action.  The ruling, will shall be executed immediately, may be challenged with the competent judge; in any event, the ruling is to be referred to the Constitutional Court for review.

 

This action is only appropriate when the interested party has no other means of legal defense except that used as a temporary mechanism to avoid irreparable harm.

 

The petition for protection must be ruled on within ten days.

 

The law shall establish those cases wherein actions seeking protection are permissible against private parties charged with delivering a public service or whose conduct gravely and directly affects the collective interest or in respect of those to whom the petitioner is subordinate or has no means of defense.

 

Article 87.  Every individual may go to the court to demand fulfillment of a law or administrative act.  When the petition prospers, the sentence shall order the authority at fault to carry out the duty not being fulfilled.

 

Article 89.  In addition to those established in the preceding article, the law shall establish such other remedies, actions and procedures as may be necessary to be able to challenge the integrity of the legal system or to seek protection of one's individual rights, group rights or collective rights, in the face of some action or omission on the part of public authorities.

 

Article 226.  The administration of justice is a public function.  Its decisions are independent.  The proceedings shall be public and permanent, save in those cases stipulated by law and wherein the material right shall prevail.  Procedural formalities shall be observed carefully and a failure to do so shall be punished.  The administration of justice shall be decentralized and autonomous.

 

 

            Article 10.  Right to Compensation

 

Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through a miscarriage of justice.

 

         Article 25.  Right to Judicial Protection

 

1.  Everyone has the right to simple and prompt  recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

 

2.  The States Parties undertake:

 

a.  to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the  state;

 

b.  to develop the possibilities of judicial remedy; and

 

c.  to ensure that the competent authorities shall enforce such remedies when granted.

Article 229.  Every person has the right to accede to the courts.  The law shall indicate those cases in which he may do so without attorney representation.

 

 

 

 

 

 

 

 

 

 


 

         B. INTERNATIONAL HUMAN RIGHTS LAW ON THE RIGHT TO A FAIR TRIAL

 

         The norms that concern the right to a fair trial, as can be seen from the above table, are covered in various articles of the American Convention on Human Rights and the 1991 Constitution of Colombia.

 

         The right to a fair trial is actively enforced when effective punishment and  a given reparation are sought and obtained.  The right to an inquiry into one's claim when one is the victim of a violation by another, i.e., the right to claim and demand justice, implies that the individual responsible for the violation will be somehow held accountable and that the one whose rights were violated or who suffered some injury will be paid civil damages as compensation.  This right is fundamentally civil in nature and is premised on the principle that anyone who inflicts harm is obliged to pay for it and, conversely, the one who suffers the injury has the right to demand satisfaction of his right.

 

         The right to a fair trial also implies the right to demand fair treatment when an individual is being investigated or accused of a criminal offense, in which case the first guarantee of a fair trial is the right to be presumed innocent and then to receive a fair trial, with all the guarantees that enable the accused to continue to be held innocent until his criminal guilt has been established through trial.  

         To avoid any confusion as to the jurisdiction of international bodies, it is important to mention the finding of the Inter-American Court of Human Rights in the Velasquez Rodriguez case, dated July 29, 1988, to the effect that "the international protection of human rights should not be confused with criminal justice.  States do not appear before the Court as defendants in a criminal action.  The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible." (paragraph 134).

 

         To this must be added the Court's finding in paragraph 176 to the effect that the State "is obligated to investigate every situation involving a violation of the rights protected by the Convention.  If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.  The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized in the Convention."

 

         C. ORGANIZATION AND OPERATION OF THE JUSTICE SYSTEM

 

         The report prepared by the Inter-American Commission on Human Rights in 1980 contained a careful study of the organization and operation of the justice system in Colombia.  Since then, the text of Colombia's Constitution has changed, as have its code of criminal procedure, its penal code, its military justice system and others.  At present, the justice system in Colombia is divided among the following jurisdictions:  the regular courts (Supreme Court 234 et seq. NC, District Courts, National Courts (Public Order), judges and prosecutors); administrative jurisdiction (Council of State 236 et seq, NC, and administrative tribunals); constitutional jurisdiction (Constitutional Court 239 et seq, NC); special jurisdictions (Military 221 NC, indigenous 246 NC, justices of the peace 247 NC); disciplinary jurisdiction (Superior Council of the Judiciary, 254 et seq NC).

 

         The description, organization and functions of all these organs of the justice system are discussed and explained in Chapter III, section d) of this report, so that no further discussion is required in this chapter.

 

         D.    THE OFFICE OF THE ATTORNEY GENERAL AND THE PUBLIC DEFENDER'S OFFICE

 

         While Title VIII of the Constitution concerns the Judicial Branch, Title X, titled Organs of Control --which includes fiscal control by the Office of the Comptroller General of the Republic-- also includes articles on the functions of the Attorney General of the Nation, described in Chapter 2.  The Attorney General heads the Public Prosecutor's Office and is elected by the Senate to a four-year term, from a slate of candidates put together by the President of the Republic, the Supreme Court and the Council of State.  The chief functions that the Constitution assigns to the Attorney General of the Nation are as follows:

 

             To see that the Constitution, laws, court rulings and government decrees are observed; to protect human rights and ensure their observance, with the help of the public defender; to defend the interests of society; to defend collective interests, especially the environment; to see that government functions are performed diligently and efficiently; to exercise oversight of the official conduct of those in public office, including those elected by the public; to exercise disciplinary authority; to prosecute the necessary investigations and impose the sanctions required by law; to intervene in trials and with judicial or administrative authorities, whenever necessary to defend legal order, the public domain, or fundamental rights and guarantees; to submit annual performance reports to Congress; to demand from public officials and private citizens such information as deemed necessary.

 

         The legal system for the protection of human rights in Colombia includes an Office of the Attorney Delegate for the Defense of Human Rights, which is part of the Public Prosecutor's Office; its investigatory function is intended to defend those rights and guarantees.  The Attorney Delegate monitors for the observance of human rights, investigates reports of human rights violations and imposes disciplinary sanctions.  The Office of the Attorney Delegate for the Defense of Human Rights has the following functions and authorities:

 

         a)  to mediate and help find a solution to conflicts that arise as a result of violation of Law 74 of 1968 (which approved the International Covenant of Economic, Social and Cultural Rights and the International Covenant of Civil and Political Rights) and other international agreements on this subject that the Congress of the Republic has approved, among them:  the Convention against torture and other cruel and inhuman punishment, adopted by the United Nations on December 10, 1984 and approved through Law 70 of 1986; the American Convention on Human Rights, ratified by Law 16 of 1972, and the Geneva Conventions, approved by Law 5 of 1960;

 

         b)  disciplinary action, one hearing only, for participating in acts that constitute genocide, torture and enforced disappearance and related crimes committed by members of the Ministry of National Defense, the Military Forces, National Police, directors or personnel of security agencies attached to or affiliated with those institutions and other staff and employees in the performance of their functions;

 

         c)  to process with the competent authorities the complaints made by national or international organizations concerning human rights violations;

 

         d)  to promote and disseminate the defense of human rights and to respond to the reports that national or international organizations request concerning violations of human rights and fundamental freedoms;

 

         e)  to process claims demanding, by way of Colombian diplomatic authorities and on behalf of Colombian nationals, that foreign governments honor their obligations under international law, especially claims on behalf of individuals on trial;

 

         f)  to see that human rights are observed by the prisons, courts, police, and psychiatric institutions, so that those being held in confinement are treated with proper respect, are not subjected to cruel, degrading and inhuman treatment, and receive timely legal, medical and hospital care.  If a violation is discovered, the attorney delegate is to file the appropriate actions.

 

         There is an administrative disciplinary procedure that is not jurisdictional and that is conducted directly via the Office of the Attorney General of the Nation, thanks to which certain crimes and human rights violations have been clarified and some punishment, however minimal, has been imposed against some of the authors of such violations.  The procedure is as follows:

 

         1. Any individual may file a complaint against a public employer or public enterprise.  This complaint procedure is handled through one of the following attorney-delegate offices: for administrative oversight; for judicial oversight; for police oversight; for the military forces; for human rights (in cases of enforced disappearances, torture, death and genocide, but not for cases of summary execution).  Since 1990, complaints can also be filed with the Office of Special Investigations, which prosecutes cases of unlawful enrichment, serious human rights violations and such others as the Attorney General may assign to it.  The Office of Special Investigations, however, does not impose the disciplinary punishment; instead, it simply conducts the preliminary investigation.

 

         2. Once the complaint has been filed, there are two alternatives:  a) based on the preliminary investigation, disciplinary proceedings are instituted, or b) the case is filed.

 

         3. If disciplinary administrative proceedings are instituted, the first step is to present the list of charges against the public official in question.

 

         4. Next, the suspect presents countercharges rebutting the charges.

 

         5. Evidence is introduced (a kind of probatory phase).

 

         6. Decision:  a) not to impose punishment, or b) to impose disciplinary punishment in the form of fines, suspensions of up to sixty days, or dismissal.  The decision must be presented in the form of a resolution explaining the grounds for the decision.

 

         7. The decision can be challenged, either in the form of a petition for reinstatement or as an appeal, which would trigger a review of the decision and then a new resolution either confirming the original decision or changing it.

 

         It is important to note that this is not a confidential procedure.  Quite the contrary, under a 1985 law, proceedings must be public.  However, the various attorneys delegate, especially the Office of Special Investigations, have been keeping these proceedings confidential, even though copies of the proceedings may be requested whenever necessary.

 

         A recent report released by the Office of the Attorney General of the Nation in June 1993, almost two years after its first report, makes a critical evaluation, as did the first report, of the conduct of State agents where human rights violations are concerned.  Its finding is that the number of violations by state agents has declined in the last year, while human rights violations by guerrilla groups has continued to increase.  The report states that the incidence of human rights violations in which State agents are involved points up the fact that State violence is at least in part a reflection of the violence rampant in society; that social violence is one of the main causes of the excesses committed by State agents.  He reports that the public institutions that have committed human rights violations during the period covered in the second report were as follows:  the National Police, the Military Forces, the Administrative Security Department (DAS), and the Technical Corps of the Criminal Investigations Police.  The Office of the Attorney General also points out that violations by the Technical Corps of the Criminal Investigations Police are below previous years since it is now under the Office of the Attorney General of the Nation.  The report also states that the Prosecutor's Office handed down decisions in 55 cases in which military personnel were involved; of these, 56% were for acquittal, and 44% for conviction.  The Prosecutor's Office has also issued 1,000 indictments against the National Police, which is the equivalent of 73% of all of the indictments against the institution during 1992; its members have been found guilty in 60% of the decisions handed down by the Attorney General of the Nation.

 

         The Attorney General's report also mentions some of the reasons why members of the military forces commit serious human rights violations:  1) a state of mental confusion sets in, called the error theory, because agents attached to "State security and defense agencies are trained to pursue a collective enemy"  and tend to assume that some sort of "direct association exists, for example, between unions or peasant interest groups and subversive elements; when counter-guerrilla activities are undertaken, these passive subjects are not identified as independent victims, but rather as part of the enemy", with the result that the State agents "violate the human rights of independent passive subjects because they mistakenly identify them as either enemies or allies of the enemies"; 2) they regard them as ideological enemies, which prompted the Office of the Attorney General to recommend that "there must, under no circumstances, be any ideological enemies; instead only military enemies.  The only enemy is the one who uses arms to challenge the State.  Tacit or explicit sympathies do not make any individual or group a military enemy"; and 3) military personnel, by virtue of being trained for warfare, have a tendency to violate the right to life and the right to personal integrity more than the right to freedom; they tend not to use intimidating or dissuasive tactics but rather to opt to eliminate whomever they perceive as enemy."  Moreover, the report finds that in most cases the authors of the violations are subordinates or middle-level officers who are subject to very little control, operating independently and not as a link in the chain of command with a sense of obedience to higher authority; when they take decisions on their own, human rights violations are the result.[1]

 

         The Public Defender

 

         The provisions that concern the public defender appear in Title X, Articles 281 et seq of the Constitution.  He/she is assigned the following functions:  to guide and instruct inhabitants of the national territory and Colombian citizens living abroad, in the exercise and defense of their rights vis-a-vis the competent authorities or private entities; to disseminate human rights and to recommend policies for teaching human rights; to invoke the right of habeas corpus and file petitions for protection, without prejudice to the laws that assist the interested parties; to organize and direct public defense in accordance with the law; to file actions in matters related to its sphere of competence; to present bills on matters within its competence; to submit reports to the Congress on the performance of its functions, and the other functions that the law determines.

 

         The Office of the Public Defender is part of the Public Prosecutor's Office; it is ultimately under the Attorney General of the Nation and is essentially responsible for seeing to it that human rights are promoted, exercised and disseminated.  The Public Defender's Office enjoys administrative and budgetary autonomy.

 

         Apart from the functions stipulated in the Constitution, the Public Defender's Office has the following:  working with the Attorney General of the Nation to devise and adopt the policies for promoting and disseminating human rights in the country; to direct and coordinate the work of the various units that together constitute the Public Defender's Office; to make recommendations and observations to the authorities and private parties in the event of a threat to or violation of human rights and to see that they are promoted and exercised (the defender shall make those recommendations public and report to the Congress on the response received); to present an annual report to the Congress on its activities, which shall include an account of the type and number of the complaints received, the measures taken to correct them, specific mention of derelict officials and the administrative and legislative recommendations it deems necessary;  to assist the Attorney General in preparing reports on the human rights situation in the country; to bring suit, challenge or defend before the Constitutional Court and at the request of any person and when appropriate, laws where constitutional rights are at stake; to design the mechanisms needed to establish permanent communications and share information with national and international governmental and nongovernmental organizations that protect and defend human rights and to conclude agreements with national and international educational and research establishments to disseminate and promote human rights.

 

         Regulated by Law 24 of 1992, the Public Defender's Office is organized into four areas:  dissemination, processing of complaints, filing of legal remedies and public defense.  Attorneys delegates are being appointed for other areas such as the rights of the elderly and regional defenders.

 

         E. THE PETITION FOR TUTELA

 

         The petition for tutela to which Article 86 of the Constitution refers is a legal procedure that provides citizens a means to take rapid action in the event of injustices or abuses committed against rights upheld in the Constitution.  The petition for tutela has the following characteristics:  it can be filed either by the aggrieved party or by an intermediary at the aggrieved party's request.  The public defender may participate by cooperating with the aggrieved party.  The action can be filed at any time, including weekends, and with any judge or court that has jurisdiction in the place where the events in question occurred.  The aggrieved party need only describe the facts upon which the petition is based and include his or her name and address. As there are no legal formalities, the petition can be filed either verbally or in writing; if additional information is needed, the judge is to request it of the petitioner within three days following the filing of the action.  The respondent also has three days in which to present his/her defense before the judge, who must hand down a ruling within ten days.  Any appeal must be filed within the next three days; the decision on the appeal must be handed down within 20 days.  Decisions on such petitions are reviewed by the Constitutional Court at its discretion.[2]

 

         F. THE MAJOR PROBLEMS WITH THE JUSTICE SYSTEM

 

         There are any number of problems that affect the manner in which the justice system performs the functions that the Constitution and the laws assign to it.  Impunity, the military courts, violence against judges and attorneys, vigilantism:  these are but a few of those problems.

 

         a. Impunity

 

         One of the principal manifestations of the critical human rights situation in Colombia is the weakness of its judicial system, as evidenced by the high percentage of crime that goes unpunished.  According to the Ministry of Justice, approximately 20% of crimes committed in Colombia are investigated by the authorities.  Of that 20%, barely 4% end in conviction.[3]  That being the case, the Colombians do not have sufficient confidence in the ability of their judicial system to find a peaceful solution to their daily problems.

 

         The Government generally blames practical considerations such as the lack of budgeted funds, inadequate training and insufficient technical materials for investigators, delays in trials, a backlog of cases, the low salaries paid to judges, corruption and violence targeted at judges and vigilantism by citizens who prefer not to seek justice via the courts and do not provide authorities with the cooperation they need to conduct their investigations.  Based on this analysis, the government has taken a number of steps such as the drastic increase in the salaries of judges and an increase in the judiciary's budget, technical and budgetary support for the Office of the Prosecutor General, systematization and administrative improvement of the court system and legislative measures to reduce the backlog of cases.  The new Constitution also introduced some reforms.  For example, it has given the judicial branch of government total administrative autonomy and complete control over its budget and has changed the investigative system to create the Office of the Prosecutor General.

 

         But there other factors, too, that adversely affect the justice system, such as using the state of emergency legislation to amend the judicial system and a system that allows the identity of the judges and the witnesses to be kept secret when the cases are for crimes of terrorism and drug-trafficking.

 

         Other considerations such as the violence against judges and attorneys, the presence of a state-of-siege justice system, vigilantism, and certain features of the justice paradigm in Colombia, such as the element of secrecy in many situations: these are all factors that have to be taken into account if the problem of impunity is to be dealt with.  Some of these factors are discussed in the following sections.

 

         b. The state of siege legislation

 

         One of the factors that altered the judiciary's ability to administer justice under the previous constitution was that during states of emergency, proceedings in cases involving drug-trafficking, terrorism and political crimes were transferred to the special jurisdiction of the public order courts.  With enactment of the new Constitution, and as a result of the work of the Special Legislative Committee between July 15 and November 30, 1991, the Statute for the Defense of Democracy (Law 180, of 1988) and the Statute for the Defense of Justice (1991) became permanent law in Colombia.  The Statute for the Defense of Democracy classified certain behaviors as terrorist crimes, and made the penalties much harsher.  The Statute of the Defense of Justice merged and restructured the public order and specialized courts that heard cases involving drug-trafficking and terrorism crimes separately.

 

         The Legislative Committee's decision to retain the penalties in crimes established under the state of siege decree in 1988 and its decision to maintain separate judges to hear cases wherein the crimes alleged are terrorism and drug-trafficking is contrary to the democratic principles of the Constitution, especially Title II, concerning the fundamental rights.  If one analyzes the Constitution rationally, there is no way to infer from it that it allows the states-of-emergency system to be institutionalized indefinitely.  Article 214, subparagraph 2 of the Constitution makes legislation that suspends fundamental rights and freedoms unlawful.  Nevertheless, some parts of the state-of-emergency legislation deny important judicial guarantees.  An example was the declaration of internal disturbance decreed on July 9, 1992.  Invoking the state of internal disturbance, Decree 1156 of 1992 was issued to the effect that anyone accused of drug-trafficking or terrorism was permitted to use habeas corpus only in the circumstances stipulated in Chapter III.

 

             Equally disturbing is the fact that Law 15 of 1992, enacted by Congress to transform Decree 1156 of 1992 into permanent law, provides that habeas corpus can only be used if an individual's legal and constitutional guarantees are violated when he is taken into custody or if he is held too long in custody.  And so, the Government has again curtailed the right of habeas corpus, as it did back in 1988 and 1989 by means of decrees that, insofar as habeas corpus was concerned, had become unconstitutional once the 1991 Constitution took effect.

 

         The American Convention on Human Rights prohibits any infringement or restriction of basic guarantees, one of which is habeas corpus.  It would be best if the Colombian Government would henceforth refrain from using states of emergency to modify or limit guarantees, because such measures affect the independence and the autonomy of the justice system.[4]

 

         By the same token, if the Constitution limits what can be legislated in states of emergency, all the more reason to conclude that what can be legislated in normal times is also limited, given the fact that such legislation is permanent.  The new Code of Criminal Procedure adds to the permanent body of law certain practices that, in the state of emergency legislation, were problematic for the human rights situation.