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