Abstract
This chapter outlines key elements of Colombian history to locate debates over rights of victims in the history of violence and human rights activism. This chapter identifies the main factors that may explain how the figure of the victim came to play a prominent role in legal and political debates on criminal justice in the 1990s and early 2000s. These include: i) the armed conflict and the high number of victims of human rights violations, ii) the increasing human rights activism, iii) the growing acceptance of human rights, iv) the 1991 Constitution, and v) the progressive jurisprudence of the Constitutional Court. The first section of this chapter explores the history of the 1991 Constitution. The second section describes the mixed or “quasi-accusatorial” criminal justice system adopted in the 1991 criminal justice reform. This section also analyzes the figure of the civil party (partie civile) that allowed victims to participate in criminal proceedings as civil actors to seek compensation, as in many civil law jurisdictions. The final section examines the jurisprudence of the Constitutional Court on victims’ rights and the civil party, emphasizing the expansion of the role and rights of victims in criminal proceedings in 2002. Since victims’ rights in international law were a crucial factor in the development of this doctrine by the Constitutional Court, this section includes a brief review of relevant international instruments and jurisprudence.
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Notes
- 1.
Some scholars argued that the origin of the current armed conflict is the period of violence between the liberal and conservative political parties (“La Violencia” 1948–1958). In 1958, democracy was restored through “National Front,” which was an agreement between those two political parties to share the state power excluding minorities and other political groups (Bushnell 1997; Grupo de Memoria Histórica 2013; Pécaut 2006).
- 2.
During the Cold war, the core of the American national security doctrine was to fight against communism, so the United States government promoted strong security measures and policies against enemies like leftists and communists after the passing of the National Security Act of 1947. The primary means they used to deal with the communist threat was military force. Following the National Security Doctrine, most of the Latin American governments focused on the internal dissident as the enemy, so they adopted repressive security measures within an anti-subversive plan. This context favored the establishment of authoritarian governments in Latin America through the rise of military regimes (e.g. Chile, Argentina, Peru) or the declaration of states of emergency (e.g. Colombia) (Gallón Giraldo 1979; Medina Quiroga 1988; Taffet 2007).
- 3.
The IACommHR received, in 1978 and 1979, several complaints regarding mistreatment and torture at detention centers during interrogations by Colombian public agents. In 1979, the IACommHR also received several claims related to violations of the right of personal liberty such as abuses of authority in arrests and massive arrests of citizens. In addition, the IACommHR received information about numerous violations by state agents of the right to life (e.g. Case 4667: Arango and Pabón Vega, Case 7348: Luis Arcesio Ramírez, Case 7547: Fabio Vasquez Villalba, Case 7348: Zambrano Torres, Case 7756: Rubio Alfonso, Case 7757: Camelo Forero, and Case 7758: Contador). Furthermore, the IACommHR received complaints about violations of the right to fair trial and due process, particularly in trials of civilians by military courts (IACommHR, Report on the situation of human rights in the Republic of Colombia, June 30, 1981).
- 4.
In 1979, the following complaints were submitted to the Human Rights Committee in relation to violations of human rights in the context of the Security Statute.
On February 5, 1979, Pedro Pablo Camargo, professor of International Law at the National University, submitted a communication on behalf of the husband of María Fanny Suarez de Guerrero based on the following facts. On 13 April 1978, a military judge ordered a raid to be carried out at a house in Bogotá. Authorities believed that Miguel de Germán Ribon, former Ambassador of Colombia to France, was being held captive by a guerrilla group in that house. Miguel de Germán Ribon was not found and police officers decided to hide in the house to await the arrival of the suspected kidnappers. The police killed seven people, including María Fanny Suarez de Guerrero, when the victims entered the house. Although the police stated initially that the victims had died while resisting arrest, the National Institute of Legal Medicine and Forensic Science demonstrated that none of the victims fired a shot and that they were killed at point-blank range (Pedro Pablo Camargo v. Colombia, Communication No. 45/1979, U.N. Doc. CCPR/C/OP/1 at 112, 1985).
On February 6, 1979, Pedro Pablo Camargo submitted a communication on behalf of Orlando Fals Borda, his wife, Maria Cristina Salazar de Fals Borda, Justo Germán Bermúdez and Martha Isabel Valderrama Becerra. The communication argues that they all were victims of violations of Article 14 of the International Covenant on Civil and Political Rights because they were brought before military tribunals that were not competent, independent, and impartial, and because they were deprived of procedural rights and guarantees (Orlando Fals Borda et al. represented by Pedro Pablo Camargo v. Colombia, Communication No. 46/1979, U.N. Doc. CCPR/C/OP/1 at 139, 1985).
On December 18, 1979, Consuelo Salgar Montejo, Director of the Colombian newspaper El Bogotano, submitted a communication on her own behalf. She claimed that the Security Statute breached Articles 9 and 14 of the Covenant. A military court sentenced her for the alleged offense of having sold a gun. She argued that Articles 9 and 14 of the Covenant were violated because she was denied the right to appeal to a higher tribunal; military tribunals are not competent, independent, and impartial; and she was arbitrarily detained and imprisoned (Consuelo Salgar de Montejo v. Colombia, Communication No. 64/1979, U.N. Doc. CCPR/C/OP/1 at 127, 1985).
- 5.
According to the IACommHR, measures under state of siege such as the Security Statute affected human rights in the country:
The Commission believes that the conditions deriving from the state of siege which has been in effect almost without interruption for several decades have become an endemic situation which has hampered, to a certain extent, the full enjoyment of civil freedoms and rights in that, among other things, it has permitted trials of civilians by military courts. The Commission also believes that in general the state of siege has not resulted in the suspension of constitutional guarantees and that, because of its peculiar features it has not posed a real obstacle to the operation of democratic institutions (IACommHR, Report on the situation of human rights in the Republic of Colombia, June 30, 1981)
.
- 6.
For instance, Decree 3671 of 1986 conferred jurisdiction to military tribunals to investigate and try civilians for drug trafficking. The Supreme Court of Justice declared this Decree unconstitutional, arguing that authorities in the criminal justice system should be impartial and independent, and thus, civilian courts should try civilians accused of any criminal offense. In order to address this situation, the government of President Barco issued Decree 750 of 1987. This Decree created the Special Tribunal of Criminal Proceedings (Tribunal Especial de Instrucción) to investigate and prosecute crimes against life and personal integrity that cause a special social upheaval that they disturb public order. However, the Supreme Court of Justice also declared unconstitutional Decree 750 of 1987 because the new tribunal was not adequately incorporated in the structure of the judicial branch.
As a response to those decisions of the Supreme Court, Decree 1631 of 1987 created a Public Order Jurisdiction to try crimes that sought to persecute or intimidate any person for their political beliefs and opinions, whether party related or not. This intent was presumed in cases of crimes commited against some state representatives, archbishops and bishops, justices and judges, political candidates, social or union leaders, or journalists. Decree 1631 of 1987 increased punishments for such crimes.
Decree 180 of 1988 created criminal offenses related to terrorism and increased several penalties. This Decree expanded the scope of crimes within the public order jurisdiction to include all offenses related to terrorism. It also established obligatory pretrial detention and prohibited benefits such as parole or sentence reductions for these crimes (art. 45). In addition, this Decree stated that the head of the judicial police could order wiretapping in these cases (art. 47). Furthermore, Decree 182 of 1988 imposed restrictive habeas corpus procedures in cases within the public order jurisdiction.
- 7.
Political violence had been “normal” in rural areas in the history of Colombia, except for some urban attacks of the M-19 guerrilla group (the occupation of Dominican Embassy in Bogotá in 1980, and the takeover of the Palace of Justice in 1985) (Bushnell 2007, pp. 358–363).
- 8.
For example, 1163 members of the Patriotic Union Party were killed, including two presidential candidates (Bernardo Jaramillo y Jaime Pardo Leal). In 1985, the FARC guerrilla group created this party within a peace process with the Colombian government (Inter-American Commission on Human Rights—IACommHR, case 11.227, Colombia).
- 9.
The Inter-American Court of Human Rights (IACtHR) has declared that the Colombian state is responsible for the human rights violations in massacres committed by paramilitary groups. The Court has found that members of the Colombian Army acquiesced to the acts perpetrated by paramilitary groups, collaborated with these groups, or participated in paramilitary incursions and illegal acts. For example, Case of the 19 Merchants, Judgment of July 5, 2004; Case of the Mapiripán Massacre, Judgment of September 15, 2005; Case of the Ituango Massacres, Judgment of July 1, 2006; Case of the Pueblo Bello Massacre, Judgment of January 31, 2006.
- 10.
For example, in January 1989, a paramilitary group, which operates in collaboration with state agents, murdered 12 members of a judicial commission in the district of “The Rochela.” They were carrying out an investigation of another massacre committed by paramilitaries (“19 merchants”). Inter-American Court of Human Rights, Case of the Rochela Massacre v. Colombia, Judgment of May 11, 2007.
- 11.
- 12.
Valencia upheld arrest warrants for Pablo Escobar and Gonzalo Rodríguez Gacha (“El Mexicano”) for the murder of Jaime Pardo Leal (presidential candidate of the Union Patriotic), and upheld a warrant arrest for Pablo Escobar for the murder of Guillermo Cano (Director of the newspaper El Espectador).
After the assassination of judge Valencia, 50 of 55 judges of the Tribunal of Bogotá resigned, and judges from across the country went on strike. Judicial representatives sought effective protection and safety, in a context of massive violence against judicial officials.
- 13.
For example, Decree 1860 of 1989 established an administrative procedure for the extradition of people involved in drug trafficking and related crimes, without the approval of the Supreme Court of Justice. Decrees 1856 and 1893 regulated a confiscation program to seize drug traffickers’ assets. After the seizure of properties of suspected drug traffickers, they had to prove that they bought these properties with legally earned incomes, or the government would keep their assets. Decree 1895 established penalties for illicit enrichment. Decree 1966 established some rules on the Tribunal of Public Order in order to ensure the anonymity of the judges. Decree 1859 attributed to judicial police officials the power to arrest and keep isolated for 7 days suspected of drug trafficking and crimes related to terrorism. Decree 1863 conferred jurisdiction to judges of military tribunals to search places that could have people or objects related to crimes.
- 14.
Some of the students were Oscar Ortiz from Rosario, Oscar Guardiola and Diego López from Javeriana, and Catalina Botero from Los Andes (Lemaitre Ripoll 2009, p. 92).
- 15.
Pablo Escobar influenced the National Constituent Assembly to prohibit the extradition of Colombian citizens; he surrendered the same day of the approval of this article (Lemaitre Ripoll 2009, p. 138).
- 16.
A tutela action is a complaint that any citizen may bring before any judge in order to seek the protection of fundamental rights; judges must decide these actions within 10 days.
- 17.
María Mercedes Carranza (AD M-19), María Teresa Garcés Lloreda (AD M-19), Helena Herrán de Montoya (Liberal Party), and Aída Abella Esquivel (Patriotic Union Party).
- 18.
Women’s groups in Bogotá created a worktable of women for constitutional reform (Lemaitre Ripoll 2009, pp. 209–211; Morgan and Alzate Buitrago 1991, pp. 375–379; Wills 2007, pp. 221–222).
- 19.
An NGO from Cali invited women’s groups around the country to discuss proposals on women’s demands; this meeting became the “Woman and National Constituent Assembly Network” (Red Mujer y Constituyente) and included 75 organizations from various regions (Lemaitre Ripoll 2009, pp. 209–211; Morgan and Alzate Buitrago 1991, pp. 375–379; Wills 2007, pp. 221–222). Although this Network had a long list of members, leaders and active participants were mainly privileged women (urban and middle or upper-class) (Morgan and Alzate Buitrago 1991, pp. 402–403), so their proposals excluded a diversity perspective in accordance with factors like race, class, ethnicity, and sexual orientation.
- 20.
(CEDAW) was ratified and approved in Colombia by Law 51 of 1981.
- 21.
Report of the Special Rapporteur on VAW, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 1995/85. Document E/CN.4/1996/53, par. 48–49.
- 22.
The committee of presidential advisors that the President Gaviria designated to draft the project to submit to the National Constituent Assembly had the representation of two transnational agendas. On one hand, neoliberal economists educated in the U.S. promoted the inclusion of some elements of the Washington Consensus agenda (e.g. Ministro de Hacienda and Director Departamento de Planeación Nacional). On the other hand, a group of neo-constitutionalist lawyers promoted the efficacy of rights; Manuel José Cepeda was one of the leaders of this group (Rodriguez Garavito 2009, p. 50–55).
- 23.
A few members of the National Constituent Assembly (María Teresa Garcés—AD-M-19, Alfredo Vásquez Carrizosa—Patriotic Union, and Julio Salgado—Liberal Party) opposed the creation of the Attorney General’s Office. They suggested strengthening and improving existing institutions of the criminal justice system (Gaceta Constitucional 81, May 24, 1991).
- 24.
For instance, Augusto Ramírez Ocampo (Conservative Party), Álvaro Echeverri Uruburu (AD-M-19), Carlos Daniel Abello Roca (National Salvation Movement), and Hernando Londoño (Liberal Party) (Gaceta Constitucional 81, May 24, 1991).
- 25.
See, for example, Informe de Minoría del Constituyente Fernando Carrillo Flórez (Liberal Party).
- 26.
See, for example, Informe de la Comisión Cuarta de la Asamblea Constituyente sobre Fiscalía General de la Nación; Antonio Navarro Wolff (AD-M-19) et al., Proyecto de Acto Reformatorio de la Constitución No. 7; Hernando Londoño Jiménez (Liberal Party), Proyecto de Acto Reformatorio de la Constitución No. 11; Antonio Galán Sarmiento (Liberal Party), Proyecto de Acto Reformatorio de la Constitución No. 125.
- 27.
For example, the Code established the following requirements regarding right to personal liberty. First, a written order to deprive someone’s liberty issued by a judicial authority, judge or prosecutor, except in flagrante delicto cases or administrative detention (art. 28 Constitution 1991; art. 4, 371, 372, 374, 378 CPC). Second, presence of defendant’s lawyer during interrogatories (art. 377 CPC), but the Code allowed interrogatory without attorney in flagrante delicto cases (art. 161 CPC) or when the detainee was in danger of death (art. 355 CPC). Third, providing information to a detainee about the charges against him; the authority that ordered the detention; and the rights to counsel, to remain silent, and to indicate a person to communicate the detention (art. 377 CPC).
- 28.
The 1938 Criminal Procedure Code abolished the right to exercise private prosecution for certain crimes recognized by the Judicial Code of 1931. Since 1938, the victim could only participate in criminal proceedings through the constitution of civil party.
- 29.
The accusation by formal party is the ancient accusatory procedure. Every judge may allow any man lawfully competent to become party against the accused.
The principle of equal combat between the two adversaries always requires the imprisonment of the accuser as well as the accused. According to a rule borrowed from the Roman law, the accuser who was worsted was obliged to suffer the punishment which he had demanded (…) This very harsh rule was, however, more honored in the breach than in the observance. A remission of the punishment was granted to the unsuccessful accuser on a petition directed by him to the court. This was called “praying for total pardon and remission.” A severe punishment was inflicted in the case of calumnious accusation alone (Esmein 2000, p. 121).
- 30.
The constitution of civil party was “totally distinct from the denunciation, where the private individual [was] merely the instigator of an action in which the official prosecutor [figured] alone” (Esmein 2000, p. 144).
On the disappearance of the accusation, the denunciation came more and more into use. It took place when any one did not wish to make form party against any one other for a crime; he can always denounce him to the court and offer to produce or name witnesses. The judge was by no means bound to prosecute (…) The punishment of retaliation and the obligation to remain in prison were alone spared to the denunciator (Esmein 2000, p. 122).
- 31.
In civil law jurisdictions, the written dossier plays a central role (Langer and Roach 2013, p. 276). According to the 1991 Criminal Procedure Code, prosecutors and police had to document all their activity in a written dossier.
- 32.
Crimes prosecuted on complaint are normally less serious crimes. For example, insult, petty theft, and minor assault.
- 33.
For a detailed explanation of “new law” and criticisms of this interpretative theory in Colombia, see (López Medina 2006). Additionally, for the development of this kind of new interpretation theories in Latin America, and its possible negative and unintended effects, see (Esquirol 2011).
- 34.
The Dworkinian rights conception of rule of law
assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizens through courts or judicial institutions (…) The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule book conception does, between the rule of law and substantive justice; on the contrary, it requires, as part of the ideal of law, that the rules in the rule-book capture and enforce moral rights (…).
The rights conception (…) will insist that at least one kind of political question is precisely the question that judges faced with hard cases must ask. For the ultimate question it asks is whether the plaintiff has the moral right to receive, in court, what he or she demands (…) But though the rights model concedes that the rule book is in this way a source of moral rights in court, it denies that the rule book is the exclusive source of rights. If the rule book is silent, or if the words in the rule book are subject to competing interpretations, then it is right to ask which of the two possible decisions in the case best fits the background moral rights of the parties (Dworkin 2001, p. 11, 16).
- 35.
On the reception of civil law in Latin America, see (Eder 1950; Merryman and Pérez-Perdomo 2007).
- 36.
“Article 93. International treaties and agreements ratified by Congress which recognize human rights and prohibit their restriction during states of emergency shall take precedence over domestic legislation. The rights and obligations enshrined in this Constitution shall be interpreted in accordance with the international human rights treaties ratified by Colombia.”
- 37.
Constitutional Court, judgment C-225 of 1995, Justice Alejandro Martínez Caballero.
For an overview of the constitutional block, see (López Medina and Sánchez Mejía 2008; Uprimny 2006).
- 38.
Interview with Luis Guillermo Pérez, Lawyer, José Alvear Restrepo Lawyers’ Collective -CAJAR, July 30, 2014.
- 39.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations, General Assembly, Resolution 40/34, 1985. In this resolution, the Assembly adopted the text recommended by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders (26 August–6 September 1985).
For a detailed evolution of this Declaration, see, (Lamborn 1987; Clark 1994).
- 40.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations, General Assembly, Resolution 40/34, 1985.
- 41.
This resolution recalls the principles contained in two documents: (i) “Question of the impunity of perpetrators of human rights violations (civil and political).” Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119. United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/1997/20/Rev.1). (ii) “Impunity” Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher. United Nations Commission on Human Rights (E/CN.4/2005/102/Add.1).
- 42.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, United Nations, General Assembly, Resolution 60/147, 2006. For a detailed explanation about the process of drafting and the content of this Resolution, (see Bassiouni 2006).
This Resolution was based on two reports: (i) “Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms.” Final report submitted by Mr. Theo van Boven, Special Rapporteur. United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/1993/8). (ii) “The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms.” Final report of the Special Rapporteur, Mr. M. Cherif Bassiouni, submitted in accordance with Commission resolution 1999/33. United Nations Commission on Human Rights (E/CN.4/2000/62).
- 43.
Principle 3. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, United Nations, General Assembly, Resolution 60/147, 2006.
- 44.
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, United Nations, General Assembly, Resolution 60/147, 2006
8. For purposes of the present document, victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute gross violations of international human rights law, or serious violations of international humanitarian law. Where appropriate, and in accordance with domestic law, the term “victim” also includes the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
9. A person shall be considered a victim regardless of whether the perpetrator of the violation is identified, apprehended, prosecuted, or convicted and regardless of the familial relationship between the perpetrator and the victim.
- 45.
Human Rights Council, Resolution 12/12, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development: Right to the Truth, A/HRC/RES/ 12/12, October 12, 2009.
- 46.
The UN General Assembly adopted the International Convention for the Protection of all Persons from Enforced Disappearances on December 20, 2006. The Convention entered into force on December 23, 2010.
- 47.
See, e.g., International Conferences of the Red Cross and Red Crescent: 1st Conference, Paris, 1867; 2nd Conference, Berlin, 1869; 22nd Conference, Tehran, 1973.
- 48.
“Article 32. In the implementation of this Section, the activities of the High Contracting Parties, of the Parties to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol shall be prompted mainly by the right of families to know the fate of their relatives” (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977).
- 49.
(Ferstman 2002; Henzelin et al. 2006; McCarthy 2012; Zegveld 2010).
- 50.
(Hirst 2013; Karstedt 2010; SáCouto and Cleary 2008).
- 51.
Article 5 of the Rome Statute lists the crime of aggression as one of the crimes under the jurisdiction of the ICC. However, the Statute did not define this crime or set out jurisdictional conditions. On June 11, 2010, the Review Conference of Rome Statute (held in Kampala, Uganda) adopted amendments to the Rome Statute, including a definition of the crime of aggression. The ICC will be able to exercise its jurisdiction over this crime in 2017 at the earliest. States Parties agreed on a delay mechanism that comprises the following requirements:
2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute” (Article 15ter, Resolution RC/Res.6, June, 2010).
- 52.
Rule 85, ICC Rules of Procedure and Evidence.
- 53.
Rule 94–97, ICC Rules of Procedure and Evidence.
- 54.
Rule 98, ICC Rules of Procedure and Evidence.
- 55.
Article 68.3 Rome Statute
Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.
- 56.
Rule 89–92, ICC Rules of Procedure and Evidence.
- 57.
Colombia ratified the ACHR on May 25, 1973 and recognized the jurisdiction of the Inter-American Court on June 21, 1985.
- 58.
IACtHR, Case Bámaca Velásquez v. Guatemala, Judgment of November 25 of 2000. Case Myrna Mack Chang v. Guatemala, Judgment of November 25 of 2003, par. 232. Case Escué Zapata v. Colombia, Judgment of July 4 of 2007.
- 59.
Separate Concurring Opinion of Judge Sergio García- Ramírez. IACtHR, Case Bámaca Velásquez v. Guatemala, Judgment of November 25 of 2000, par. 5.
- 60.
IACtHR, Case Velásquez Rodríguez v. Honduras, Judgment of July 29 of 1988, par. 166.
The second obligation of the States Parties is to “ensure” the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.
- 61.
IACtHR, Case Velásquez Rodríguez v. Honduras, Judgment of July 29 of 1988, par. 172. Case of Garibaldi v. Brazil, Judgment of September 23 of 2009, par. 141. Case Anzualdo Castro v. Peru, Judgment of September 22 of 2009, par. 179.
- 62.
IACtHR, Case of Garibaldi v. Brazil, Judgment of September 23 of 2009, par. 113. Case Godínez-Cruz v. Honduras, Judgment of January 20 of 1989, par. 188. Case Velásquez Rodríguez v. Honduras, Judgment of July 29 of 1988, par. 177.
- 63.
IACtHR, Case Anzualdo Castro v. Peru, Judgment of September 22 of 2009, par. 123. Case Pueblo Bello Massacre v. Colombia, Judgment of January 31 of 2006, par. 143. Case Godínez-Cruz v. Honduras, Judgment of January 20 of 1989, par. 188.
- 64.
IACtHR, Case Escué Zapata v. Colombia, Judgment of July 4 of 2007, par. 106.
- 65.
IACtHR, Case “Street Children” (Villagran-Morales et al.) v. Guatemala, Judgment of November 19 of 1999, par. 230.
- 66.
IACtHR, Case Escué Zapata v. Colombia, Judgment of July 4 of 2007, par. 106.
- 67.
See, e.g., IACtHR, Case Barrios Altos (Chumbipuma Aguirre and others v. Peru), Judgment of March 14 of 2001. Case Almonacid Arellano v. Chile, Judgment of September 26 of 2006. Case Gomez Lund (Guerrilha do Araguaia) v. Brazil, Judgment of November 24 of 2010. Case Gelman v. Uruguay, Judgment of February 24 of 2011, par. 229.
Regarding the prohibition of torture (art. 7 ICCPR), the Human Rights Committee also concluded that amnesties are incompatible with the duty of states to investigate such acts; to guarantee freedom of such violations within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and rehabilitation (General Comment No. 20).
- 68.
According to the Judge Diego García Sayán, the doctrine established in the Case Barrios Altos has been very relevant in Latin America.
The effect of this judgment is particularly interesting for two reasons. First, the steps taken in Peru to comply in full with this judgment of the court resulted in effective measures to combat the impunity of grave human rights violations. In addition, the judgment had an impact on the reasoning and conceptual development of several of the highest courts in the region in relation to the crucial issue of impunity (Garcia-Sayan, 2011, p. 1842).
- 69.
IACtHR, Case Barrios Altos (Chumbipuma Aguirre and others v. Peru), Judgment of March 14 of 2001, par. 41, 43.
All amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra- legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law…
Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the aims and spirit of the Convention. This type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation.
- 70.
IACtHR, Case Gelman v. Uruguay, Judgment of February 24 of 2011, par. 229.
The incompatibility with the Convention includes amnesties of serious human rights violations and is not limited to those which are denominated, “self-amnesties,” and the Court, more than the adoption process and the authority which issued the Amnesty Law, heads to its ratio legis: to leave unpunished serious violations committed in international law. The incompatibility of the amnesty laws with the American Convention in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect in what regards the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention.
- 71.
IACtHR, Case of the Ituango Massacres, par. 299; Case of the “Mapiripán Massacre,” Judgment of September 15, 2005, par. 237.
- 72.
The Inter-American Court of Human Rights argues:
148. The Court has previously ruled that the right to know the truth is included in the right of victims or their next of kin to have the harmful acts and the corresponding responsibilities elucidated by competent State bodies, through the investigation and prosecution provided for in Articles 8 and 25 of the Convention.
149. Once more, the Court wishes to highlight the important role played by the different Chilean Commissions (supra paras. 82(26) to 82(30)) in trying to collectively build the truth of the events which occurred between 1973 and 1990. Likewise, the Court appreciates that the Report of the Comisión Nacional de Verdad y Reconciliación (National Truth and Reconciliation Commission) includes Mr. Almonacid-Arellano’s name and a brief summary of the circumstances of his execution.
150. Notwithstanding the foregoing, the Court considers it relevant to remark that the “historical truth” included in the reports of the above mentioned Commissions is no substitute for the duty of the State to reach the truth through judicial proceedings. In this sense, Articles 1(1), 8 and 25 of the Convention protect truth as a whole, and hence, the Chilean State must carry out a judicial investigation of the facts related to Mr. Almonacid-Arellano’s death, attribute responsibilities, and punish all those who turn out to be participants.” (Case Almonacid Arellano v. Chile, Judgment of September 26 of 2006).
- 73.
Some countries in Latin America created truth commissions to address gross human rights violations perpetrated by the military regimes (e.g. National Truth and Reconciliation Commission of Chile and the National Commission of the Disappearance of Persons in Argentina).
- 74.
American Convention on Human Rights
Article 1. Obligation to Respect Rights
1.The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.
- 75.
It is important to note that Filipini replied to Pastor. Filipini suggests the relevance of a contextual and historical analysis of human rights organizations. In addition, he agrees that human rights do not include a right to punishment, but in some cases the punishment is necessary, and thus it is possible to explore an individual legitimation to claim the punishment in those cases. Finally, he maintains that it is possible to justify the punishment of violations perpetrated by state agents from a perspective of ultima ratio, since the punishment may have a dissuasive effect on state agents (2005/B).
- 76.
IACtHR, Case of the Massacres of El Mozote and nearby places v. El Salvador, Judgment of October 25 of 2012, Concurring opinion of Judge Sergio Garcia-Sayan, par. 37, 38.
37. A negotiated solution to the internal armed conflict raises several issues regarding the weighing of these rights, within the legitimate discussion on the need to conclude the conflict and put an end to future serious human rights violations. States have a legal obligation to address the rights of the victims and, with the same intensity, the obligation to prevent further acts of violence and to achieve peace in an armed conflict by the means at its disposal. Peace as a product of a negotiation is offered as a morally and politically superior alternative to peace as a result of the annihilation of the opponent. Therefore, international human rights law should consider that peace is a right and that the State must achieve it.
38. Thus, in certain transitional situations between armed conflicts and peace, it can happen that a State is not in a position to implement fully and simultaneously, the various international rights and obligations it has assumed. In these circumstances, taking into consideration that none of those rights and obligations is of an absolute nature, it is legitimate that they be weighed in such a way that the satisfaction of some does not affect the exercise of the others disproportionately.
- 77.
IACtHR, Aloeboetoe et al. Case, Judgment of September 10, 1993 (Reparations), par. 214.
- 78.
IACtHR, Case of the Pueblo Bello Massacre v. Colombia, Judgment of January 31, 2006 (Merits, Reparations and Costs), par. 226–229; Case of the 19 Merchants v. Colombia, Judgment of July 5, 2004 (Merits, Reparations and Costs), par. 267; Maritza Urrutia Case, Judgment of November 27, 2003, par. 143, 144; “Street Children” Case, Judgment of May 26, 2001 (Reparations), par. 103; Case of Garrido and Baigorria v. Argentina, Judgment of August 27, 1998 (Reparations and Costs), par. 41; IACtHR, Aloeboetoe et al. Case, Judgment of September 10, 1993 (Reparations), par. 46.
- 79.
IACtHR, Fernández Ortega et al. v. Mexico, Judgment of August 30, 2010, par. 192.
Article 8 of the Convention reveals that the victims of human rights violations, or their next of kin, should have wide ranging possibilities of being heard and taking part in the respective proceedings, both in order to clarify the facts and punish those responsible, and also to seek due reparation.
- 80.
In the Constitutional Court, a Review Chamber—composed by three justices—decides cases of tutela. There are nine Review Chambers. Sometimes the chambers hold different positions on a specific topic; in this situation the Court decides to unify jurisprudence. All justices issue judgments of unification and judgments on constitutional challenges. In consequence, unification judgments and constitutionality judgments show the position of the Constitutional Court on an issue and are considered more binding than decisions of a Review Chamber.
- 81.
The Supreme Court of Justice nominated Jorge Arango Mejía, Fabio Morón Díaz, and José Gregorio Hernández. The National Government (President Gaviria) nominated Eduardo Cifuentes Muñoz, Hernando Herrera Vergara, and Alejandro Martínez Caballero. The Council of State nominated Antonio Barrera Carbonell, Carlos Gaviria Díaz, and Vladimiro Naranjo Mesa.
- 82.
- 83.
See, e.g., the constitutionality challenge of the criminalization of abortion (C-013/97).
- 84.
For instance, Hernández wrote the majority opinion in the UPAC case (C-700/99). 800.000 middle class people took loans to buy their houses under the UPAC system, and were at risk of losing their homes because of an economic crisis. The Court defended the interests of UPAC debtors.
- 85.
- 86.
Constitutional Court, Judgment C-051 of 1995, Justice Jorge Arango Mejía.
- 87.
- 88.
Colombian Constitutional Court, judgment T-275/94, Justice Alejandro Martínez Caballero.
- 89.
“16. Families of the deceased and their legal representatives shall be informed of, and have access to any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence” (Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. res. 1989/65, annex, 1989 U.N. ESCOR Supp. (No. 1) at 52, U.N. Doc. E/1989/89).
- 90.
“Article 32. In the implementation of this Section, the activities of the High Contracting Parties, of the Parties to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol shall be prompted mainly by the right of families to know the fate of their relatives” (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977).
- 91.
“[T] he State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains” (IACtHR, Velásquez Rodríguez Case, Judgment of July 29, 1988, par. 181).
- 92.
Colombian Constitutional Court, judgment C-293/95, Justice Carlos Gaviria Díaz.
- 93.
“It is always possible for the judge to adopt a strategic attitude toward the legal materials, to try to make them mean something other than what they at first appeared to mean, or to give them a meaning to the exclusion of other initially possible meanings (…)
It is always possible to behave strategically in the sense of trying to make a particular rule interpretation look good. There is no definition of the rule of law that could prevent judges from making this effort, and it is plausible that the rule of law requires judges to make it, at least some of the time” (Duncan Kennedy, 1998, p. 181).
- 94.
“[T]he supposedly neutral semantic questions the House of Lords used permitted a decision that gave more effect to the judge’s personal convictions than a frankly political jurisprudence would have allowed. The semantic questions, precisely because they are not political in form, do not discriminate amongst the kinds of political judgment that will, inevitably, influence the answers judges give them. They attract hidden political judgment that may be inconsistent in principle with the legislation being enforced” (Dworkin 2001, p. 30).
- 95.
Aquiles Arrieta pointed out that the majority in the judgment C-293 of 1995 was very unusual, and argued that this majority was possible because of the logical reasoning (Interview with Aquiles Arrieta, Assistance Justice in the Constitutional Court, May 2014).
- 96.
Carlos Gaviria wrote the opinions to decriminalize euthanasia (C-239/97) and drug possession for personal consumption (C-221/94), defending the individual autonomy and the idea of criminal law as last resort.
- 97.
The Trujillo case was the torture and murder of more than one hundred people during the late 1980s and early 1990s. This case was an example of massacres carried out in Colombia, so activists documented this case to show a pattern of political violence in the country. The Trujillo Commission was the result of an agreement between the government and NGOs within a process in the Inter-American Commission on Human Rights. The Trujillo Commission was a mini truth commission, which included government, military and NGOs representatives (Tate 2007, p. 55–64).
- 98.
For instance, Arango wrote dissenting opinions in some judgments on states of emergency (C-466/95, C-027/96, and C-122/97).
- 99.
“Article 32. (…) the right of families to know the fate of their relatives” (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977).
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations, General Assembly, Resolution 40/34, 1985.
In addition, the dissenting opinion cited some recommendations of the Committee of Ministers of the Council of Europe (Recommendation No. R(85) 11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure, June 28, 1985; Recommendation No. R(87) 21 of the Committee of Ministers to Member States on Assistance to Victims and the Prevention of Victimization, September 17, 1987).
- 100.
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, United Nations, General Assembly, Resolution 40/34, 1985.
- 101.
Article 2 International Covenant on Civil and Political Rights; Article 1 American Convention on Human Rights.
- 102.
IACtHR, Case Velásquez Rodríguez v. Honduras, Judgment of July 29 of 1988, par. 166.
- 103.
Justices of Constitutional Court are appointed for a non-renewable period of 8 years (Article 233 Constitution).
- 104.
The Supreme Court of Justice nominated Alfredo Beltrán Sierra, Jaime Córdoba Triviño, and Clara Inés Vargas Hernández. The Council of State listed Rodrigo Escobar Gil, Eduardo Montealegre Lynett, and Jaime Araújo Rentería. National Government (President Pastrana) nominated Álvaro Tafur Galvis, Manuel José Cepeda Espinosa, and Marco Gerardo Monroy Cabra.
- 105.
- 106.
- 107.
- 108.
- 109.
- 110.
- 111.
- 112.
- 113.
In 1999, the Code of Military Justice was amended. The new legislation incorporated the institution of the civil party in proceedings of military justice. This Code established that the participation of civil party in military courts could only contribute to determine the truth, the victim could not seek redress from the offender in military courts, and the victim must seek reparation from the state before administrative judges.
The majority opinion written by Justice Araújo argued that victims have rights to truth, justice, and reparation, taking into account international human rights law and constitutional principles. Thus, victims are entitled to participate as civil parties in military courts to seek not only truth and justice but also reparation. Consequently, the prohibition of seeking reparation in the military justice system was declared unconstitutional (Constitutional Court, judgment C-1149/01, Jaime Araújo Rentería).
The conservative justices (Rodrigo Escobar, Marco Gerardo Monroy, and Álvaro Tafur) wrote a dissenting opinion. They argued that the rules of the Code of Military Justice provided the best guarantee to ensure victims’ right to reparation, as the state is in a better position than the offender to provide economic compensation. Moreover, they claimed that a different regulation for the civil party in the military courts and the ordinary criminal justice system was justified, and Congress has discretion to define the proceedings to ensure victims’ rights.
- 114.
Justice Córdoba did not participate in this judicial decision because he recused himself.
- 115.
To cite only one example, in the Palace of Justice case victims participated in the criminal process to achieve truth and justice after they obtained compensation in the administrative jurisdiction. In 1985, the M-19 guerrilla group took over the Palace of Justice (the seat of the Supreme Court of Justice and the Council of State) in downtown Bogotá. Hours later, Army soldiers retook the building. Many people were killed, including some justices. 11 people were disappeared during Army operations.
Some relatives of the victims of forced disappearance got financial compensation from the state through administrative proceedings (e.g. Council of State—Third Section, Judgment October 13, 1994, Justice Daniel Suárez). However, they were always interested in participating in criminal proceedings to know the truth about the circumstances of the disappearance and the fate of the disappeared persons, and to bring members of the Army to justice. Victims participated as civil party in criminal proceedings against state representatives.
- 116.
Colombian Constitutional Court, judgment C-228 of 2002, p. 18, 35.
- 117.
IACtHR, Case Velásquez Rodríguez v. Honduras, Judgment of July 29 of 1988; Case Barrios Altos (Chumbipuma Aguirre and others v. Peru), Judgment of March 14 of 2001; Case of Suárez-Rosero v. Ecuador, Judgment of November 12, 1997.
IACommHR, Annual Report 1997, OEA/Ser.L/V/II.98, April 13, 1998; Case 10843 (Chile); Annual Report 1996 OEA/Ser.L/V/II.95, March 14, 1997.
- 118.
International Covenant on Civil and Political Rights, article 2; American Convention on Human Rights, article 25; Universal Declaration of Human Rights, article 8; American Declaration of the Rights and Duties of Man, article XVIII.
- 119.
European Convention on Human Rights (art. 13 right to an effective remedy).
Charter of Fundamental Rights of the European Union (art 47 right to an effective remedy and a fair trial).
European Convention on the Compensation of Victims of Violent Crimes, 1993.
Committee of Ministers of the Council of Europe, Resolution (77) 27 of the Committee of Ministers on the Compensation of Victims of Crime, September 28, 1977; Recommendation No. R(85) 11 of the Committee of Ministers to Member States on the Position of the Victim in the Framework of Criminal Law and Procedure, June 28, 1985; Recommendation No. R(87) 21 of the Committee of Ministers to Member States on Assistance to Victims and the Prevention of Victimization, September 17, 1987.
- 120.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts Protocol I, 8 June 1977.
- 121.
The Constitutional Court highlighted that several state constitutions in the U.S. have provided victims with rights to: (i) be treated with fairness and with respect for their dignity, (ii) be informed about the justice system and the progress of the case, (iii) be notified of all court proceedings related to the offense, and (iv) be present during public court proceedings.
The Constitutional Court also emphasized that a victims’ rights amendment to the U.S. Constitution has been proposed. The proposed amendment includes victims’ rights to: reasonable notice of, and to not be excluded from, public proceedings relating to the offense; to be heard at any release, plea, sentencing, or other proceeding involving any right of victims; to proceedings free from unreasonable delay; to reasonable notice of the release or escape of the accused; to due consideration of the crime victim's safety, dignity, and privacy; and to restitution.
- 122.
“Throughout the 1990s human rights work became increasingly professionalized, and new institutional norms and practices developed. Solidarity groups were replaced by NGOs staffed by well-trained, full time professionals, often lawyers (…)
Activists responded to the pressures and opportunities created by the shifts within Colombia’s political landscape and funding and training offered by international partners to create these NGOs, with new mandates and rules of information production. This professionalization of human rights knowledge production centered on objective reporting that depoliticized human rights knowledge, adhering to legal standards and using a dispassionate tone rather than explicitly expressing alliance with leftist programs” (Tate 2007, pp. 107, 108).
- 123.
During the 1990s, human rights organizations brought to the Inter-American System some cases on serious human rights violations. For instance:
-
On December 1990, Enrique Rodríguez Hernández filed a complaint before the Inter-American Commission—IACommHR on Palace of Justice case. José Alvear Restrepo Lawyers’ Collective (CAJAR) and Center for Justice and International Law (CEJIL) were co-petitioners.
-
On March 6, 1996, Colombian Jurists Commission filed a complaint before the IACommHR on 19 merchants massacre. On January 24, 2001, the Inter-American Commission filed before the Court on this case.
-
On October 8, 1997, José Alvear Restrepo Lawyers’ Collective (CAJAR) filed a complaint before the IACommHR on La Rochela massacre.
-
On October 6, 1999, José Alvear Restrepo Lawyers’ Collective (CAJAR) and Center for Justice and International Law (CEJIL) filed a complaint before the IACommHR on Mapiripán massacre.
-
- 124.
A group of NGOs, including the Asociación de Familiares de Detenidos Desaparecidos de Colombia (Association of families of disappeared detainees in Colombia) -ASFADDES-, the Colectivo de Abogados “José Alvear Restrepo” (José Alvear Restrepo Lawyers’ Collective), the Comisión Intercongregacional de Justicia y Paz (Intercongregational Commission of Justice and Peace), the Comité Permanente por la Defensa de los Derechos Humanos (Permanent Committee for the Defense of Human Rights) -CPDH-, and many more, created the Project Colombia Nunca Más (Colombia Never Again). This campaign sought to denounce human rights violations in the country, to fight their impunity, and to publicize the truth. The Project Colombia Never Again organized a database on human rights violations and published several reports. Truth Commissions in the Southern Cone inspired this Project.
http://www.movimientodevictimas.org/~nuncamas/index.php?option=com_content&view=featured&Itemid=21.
- 125.
- 126.
Some of the women’s networks are: Red Nacional de Mujeres, Red de Educación Popular entre Mujeres de América Latina y el Caribe, Red de Derechos Sexuales y Reproductivos, Red Mujer y Habitat, Ruta Pacífica de las Mujeres, Iniciativa de Mujeres Colombianas por la Paz, Liga de Mujeres Desplazadas.
- 127.
In 1995, some feminist activists from the NGO Casa de la Mujer drafted a bill on domestic violence to enforce the article 42 of the 1991 Constitution. Senator Piedad Córdoba presented this bill to Congress and feminist groups and women’s organizations advocated for the adoption of this bill that became the Law 294 of 1996. This law was the first legislative step to combat domestic violence; it established domestic violence as specific crime punished with prison, measures to protect the victims and education programs for batterers (López Téllez 2009, p. 244; Wills 2007).
Law 575 of 2000 amended the domestic violence law. Senator Piedad Zuccardi promoted this reform to address judges’ complaints on judicial congestion related to domestic violence cases. Thus, Law 575 removed some responsibilities for addressing such violence from judicial representatives. This legislative reform attributed to administrative authorities (Family Comissions—Comisarías de Familia) the power to issue protective measures for victims and established alternative dispute resolution mechanisms (ADR) to deal with such cases like equity conciliation (conciliación en equidad) and peace judges (jueces de paz). Feminist, women’s groups, and human rights organizations considered Law 575 a step back from the progress made by Law 294, as the measures adopted underestimates and perpetuates the VAW (Báez et al. 2008, pp. 32, 33; López Téllez 2009, p. 58).
- 128.
Law 360 of 1997 reformed the regime of the Criminal Code of 1980. This reform promoted by Senator Piedad Córdoba began to transform the traditional perspective on sexual violence. First of all, the title of the section “crimes against sexual prude” was replaced by “crimes against sexual freedom and human dignity.” In addition, the article 307 of the Criminal Code was removed; this rule established the extinction of prosecution if the offender marries the victim. Feminist groups and women’s organizations had claimed that this rule reproduced the subordination of women and violated CEDAW. Moreover, Law 360 increased punishment against crimes of sexual violence (López Téllez 2009, p. 57).
- 129.
One of the strategies within the transnational discourse of judicial reform towards Latin America has been the promotion of ADR mechanisms. The central goals are improving access to justice for unprivileged people and increasing the efficiency of the judicial system (Salas 2001; Sieder 2003, 2004). In this context, the 1991 Constitution introduced ADR mechanisms such as conciliation and arbitration (art. 116), peace judges (art. 247). The Criminal Procedure Code has regulated the conciliation to address minor crimes (art. 38 Decree 2700 of 1991, art. 6 Law 81 of 1993, art. 41 Law 600 of 2000, art. 522 Law 906 of 2004). The Constitutional Court has accepted ADR mechanisms to resolve minor offenses C-060 of 2001, C-103 of 2004.
- 130.
Constitutional Court, judgment C-004 of 2003, Justice Eduardo Montealegre.
- 131.
Constitutional Court, judgments C-004 of 2003, Justice Eduardo Montealegre; C-580 of 2002, Justice Rodrigo Escobar Gil.
- 132.
Constitutional Court, judgment C-580 of 2002, Justice Rodrigo Escobar Gil.
- 133.
Constitutional Court, judgment C-004 of 2003, Justice Eduardo Montealegre.
It is thus clear that in cases of impunity for violations of human rights or grave breaches of international humanitarian law resulting from the State’s blatant inability to fulfill its duty to punish such conduct, in reality there is no res judicata. In such cases, the rights of victims overrule the non bis in idem guarantee. Thus, the existence of a decision to acquit formally considered res judicata must not impede the reopening of an investigation, even when no new facts or evidence arise, because the res judicata is a mere illusion.
- 134.
Constitutional Court, judgment C-578 of 2002, Justice Manuel José Cepeda.
- 135.
The Constitutional Court has accepted ADR mechanisms to resolve minor offenses. See, e.g. C-060 of 2001, C-103 of 2004.
- 136.
A lawyer from the NGO Colectivo de Abogados José Alvear Restrepo claimed the unconstitutionality of the provision on ADR mechanisms (art. 1 par. 1 Law 575) based on the following reasons: (i) domestic violence is a violation of human rights that affects human dignity, children’s rights, and women’s rights, and may constitute torture; (ii) the Colombian state has the international obligation to combat impunity for serious human rights abuses; (iii) human rights violations cannot be regulated as small claims or individual and community problems; (iv) ADR mechanisms are inadequate to address domestic violence, since the conditions of equality and voluntariness of the parties necessary in ADR are absent in VAW cases because of gender hierarchy; (v) the competence of conciliators and peace judges is restricted to small claims.
http://www.colectivodeabogados.org/IMG/pdf/5-_AI_ley_575_de_2000.pdf.
- 137.
Convention of Belém do Pará, art. 7:
The States Parties condemn all forms of violence against women and agree to pursue, by all appropriate means and without delay, policies to prevent, punish and eradicate such violence and undertake to:
c. include in their domestic legislation penal, civil, administrative and any other type of provisions that may be needed to prevent, punish and eradicate violence against women and to adopt appropriate administrative measures where necessary.
- 138.
Constitutional Court, judgment C-1195 of 2001, Justices Manuel José Cepeda and Marco Gerardo Monroy. Justice Jaime Araújo wrote a dissenting opinion.
- 139.
Jesuit Fr. Javier Giraldo wrote his doctoral thesis on liberation theology in France. He led the creation of the Intercongregational Commission for Justice and Peace.
Among progressive religious orders we began exploring how we might protect the human rights of victims of the Colombian state. The bishops were not interested in helping, but in early 1988 the superiors of 35 orders [which we call congregations] came together to found the Comisión de Justicia y Paz. Its goal was to provide humanitarian and legal support, especially in areas of intense conflict –Santander, Valle del Cauca, Magdalena Medio, Putumayo and Urabá. We would gather facts about human rights abuses in a databank and would publicize situations of crisis. Some cases we would take to the courts. Our staff developed close relationships with some impoverished communities that were suffering in the midst of the armed conflict and that gained courage to declare themselves peace communities (Interview with Father Giraldo quoted in Tate 2007, pp. 115, 116).
- 140.
The following is an extract from one of the letters that Father Giraldo sent to the highest authorities of the country regarding the situation of human rights in the Uraba region:
Since the past 23 of February the residents of more than 15 villages of the Bajo Atrato, the majority of them belonging to the municipality of Riosucio, of the department of Choco, began to be forced through violent means to abandon their dwellings and their livelihoods by groups that identified themselves in some cases as “paramilitaries” and in other cases as “self defense groups.” Some of those villages, such as Salaqui, Tamboral, Perquerre and others were bombed in order to force the displacement of the population. In the village of Vijao, on Feb. 27, they assassinated a young man Marino Lopez with extreme cruelty, dismembering his body in the presence of various members of the community… In this moment the stadium of Turbo is overflowing with several hundred displaced families and another large group of displaced families is found in Quibdo.
General Rito Alejo Del Rio, Commander of the XVII Brigade of the Army, talked last week with the displaced people that were taking shelter in the stadium of Turbo and when he was asked to guarantee their safe return to their zones of origin, he responded that he could not guarantee that, since that zone was undergoing military operations and was being submitted to a general “sweeping.” Therefore, there is no doubt about the close relationship between the National Army and the paramilitary groups that terrorize the region and have identified themselves as responsible for the criminal displacement of massive numbers of peasants and for extrajudicial executions and forced disappearances… (Letter wrote by Father Giraldo to the highest authorities of the country, March 12, 1997. In: http://www.derechos.org/nizkor/colombia/doc/girletter.txt).
- 141.
Constitutional Court, Judgment T-249 of 2003, Justice Eduardo Montealegre.
- 142.
Colombian Constitutional Court, judgment C-228/02, p. 18, 35.
- 143.
Interview with Luis Guillermo Pérez, Lawyer, José Alvear Restrepo Lawyers’ Collective -CAJAR, July 30, 2014.
- 144.
Interview with Fabio Bernal, judge at the Criminal Chamber of the Tribunal of Bogotá, July 22, 2014.
Interview with Fernando Pareja, judge at the Criminal Chamber of the Tribunal of Bogotá, August 1, 2014.
- 145.
IACommHR, Annual Report of the Inter-American Commission on Human Rights, March 7, 2003.
12. Also in relation to the fulfillment of the State’s obligations under the Inter-American system, the IACHR must encourage the continuation of the State’s efforts to implement special programs to protect beneficiaries of precautionary measures and provisional measures granted by the IACHR and the Inter-American Court of Human Rights, respectively: in particular those granted in favor of victims and witnesses of human rights violations, human rights defenders, justice operators, trade union leaders, and vulnerable groups such as indigenous peoples and afrodescendants.
13. The “Program for the Protection of Witnesses and Persons under Threat” provides for security measures and travel within Colombia and abroad, emergency humanitarian relief, communications systems and protection for the premises of human rights organizations for its beneficiaries. This program is an important, albeit still insufficient, response in light of the mounting threats, acts of harassment and constant attacks against human rights defenders, as well as the casualties registered during 2002.
- 146.
IACommHR, Third report on the human rights situation in Colombia, February, 1999.
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Sánchez-Mejía, A.L. (2017). The Expansion of Rights of Crime Victims in the Context of the 1991 Constitution. In: Victims’ Rights in Flux: Criminal Justice Reform in Colombia. Ius Gentium: Comparative Perspectives on Law and Justice, vol 62. Springer, Cham. https://doi.org/10.1007/978-3-319-59852-9_1
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