Sat, 19 Jul 2003
General Observations
As part of its democratic security policy and within its anti-terrorist strategy, the Colombian Government has presented Legislative Act 223 for approval by the Congress of the Republic. This Act would modify various articles of the National Constitution, establishing restrictions on rights to privacy, to freedom of communication, to freedom of residence, and to personal liberties. At the same time, the Colombian Government has proposed giving judicial police powers to members of the Armed Forces.
This constitutional reform project has already been approved in a first round of voting in the Congress of the Republic. Final ratification of the Act requires approval by the House of Representatives and the Senate of the Republic in a second round of voting which will begin this coming 20th of July, 2003.
By establishing permanent constitutional limitations on the above mentioned rights, the Colombian Government fails to recognize established international human rights instruments which prohibit limitations of these rights that are not temporary. This constitutional reform, by establishing permanent limitations on the exercise of various rights, openly violates the Vienna Convention on Treaty Rights.
At the same time, the project currently under debate in the Congress of the Republic fails to recognize statements made by the United Nations High Commission on Human Rights, which has stressed: "An effective international anti-terrorist strategy should use human rights as the unifying framework. The idea that human rights violations are admissible under certain circumstances is erroneous." While the struggle of authorities to reestablish public order is valid, this struggle is legitimate only in so far as it is developed in compliance with international human rights law. This requirement has been accepted by the member States of the Organization of American States (OAS), and is recognized in the Interamerican Anti-terrorist Convention.
Freedom of communication in the new constitutional order
The project to reform Article 15 of the National Constitution stipulates a permanent change: "Exclusively in order to prevent cases of terrorism, a statuatory law will regulate the form and conditions under which authorities identified under this law, without previous legal authorization, may intercept or record conversations and other forms of private communication of persons for whom information exists that they are involved in activities aimed at preparation for said acts."
The International Agreement on Political and Civil Rights (Article 17) and the American Human Rights Convention (Article 11) clearly prohibit all arbitrary and abusive interference in communications, making these permanent limitations on the exercise of freedom of communications inadmissible.
The proposed regulation, by eliminating the principle of legal reserve and allowing any government functionary to order the recording or interception of communications, authorizes arbitrary and abusive interference in communications. The reasons for which privacy may be violated are of a general character: simple suspicions, regardless of how well founded they may prove to be, are sufficient grounds for any functionary to threaten this right. With this constitutional reform, one may be attacked and punished for being potentially dangerous, opening the possibility for persecution based on imagined causes.
The terms utilized in this reform project fail to recognize legal principles, relying on vague and incorrect descriptions which do not permit proper demarcation and definition of the limits placed on the action of authorities.
Rights to domestic privacy and liberty within the constitutional reform
The reform also consecrates permanent restrictions on personal liberties, stating that: "Exclusively in order to prevent cases of terrorism, a statutory law will regulate the form and the authorities that may carry out detentions and domestic searches, with immediate notification of a judge who will exercise the posterior legal and security controls within the following thirty-six (36) hours, and who will establish drastic sanctions on those who abuse this measure."
This reform authorizes public servants, civilian and military, to deprive people of their liberty and to perform domestic searches without obtaining a previous legal order, providing only posterior controls on these measures. This openly violates the presumption of innocence, as well as the inviolability of residence and the right to personal liberty.
The Office of the United Nations High Commission on Human Rights in Colombia, in its role as advisor and monitor of recommendations formulated by international organizations, has indicated that: "permanently granting administrative authorities the capability to aprehend and retain, for up to thirty six hours, people who have not violated a law or do not have an outstanding arrest warrant proves to be incompatible with international regulations."
For the 8 months during which the regulations of internal commotion were in effect (conmoción interior - regulations which allowed members of the Public Forces to deprive people of their liberty without a legal order), the Banco de Datos recorded 831 arbitrary detentions, or an average of 3.5 people detained daily. In those cases where it was possible to establish the social sector of the victims, 30 were human rights defenders, 48 were trade unionists, 73 were social leaders or politicians from oppositions parties, 141 were campesinos, 34 were students, and 68 were leaders of populations subject to forced internal displacement. At the same time, making use of their ability to detain people without a legal order, the Public Forces deprived 10 foreign nationals of their liberty, all of whom were working as international observers or in humanitarian aid programs.
These statistics alone allow one to deduce the profound risks to respect for the right to personal liberty: the loss of legal reserve has led to restrictions on the right to personal liberties and has unleashed massive violations of this right.
The way in which the Public Forces have utilized these capabilities has already been reviewed by the Attorney General's Office (Procuraduría de la Nación), which has presented an analysis of the persecution of legal organizations, warning of profound risks to protection of human rights, as well as the stigmatization and persecution of various social sectors. The Procuraduría indicated: "...For example, in the detentions that took place during Operación Heroica in Saravena (Arauca), on the 12th of November of 2002, many community and union leaders were detained. In the same way, many raids of offices of regional NGOs and trade unions took place without netting positive results."
In spite of the declaration of the Constitutional Court, which found that the Public Forces could not deprive people of liberty or perform domestic searches without a legal order even in Rehabilitation Zones, and in spite of the warnings of the Attorney General's Office regarding the risks, the Colombian Government has expressed that: "The experience of... Arauca reaffirms the need to reinforce the integral presence of the State through a larger and more active presence of the Public Forces, which would permit the Public Prosecutor (Fiscalía) and the legal powers to put an end to the high levels of impunity."
Granting judicial police functions to the Public Forces
Last April 24 the President of the United Nations Commission on Human Rights, in agreement with the Colombian Government, made a declaration related to the human rights situation in which: "The Commission...takes note of the decision of the Constitutional Court in which parts of Decree 2002 are declared unconstitutional because they grant judicial police powers to the armed forces, and appeals to the Government to not attempt to give permanent character to these measures through the law."
In spite of this call, the Colombian Government - through the project of the Legislative Act - seeks: "To combat delinquency and at the request of the national government, the Prosecutor's Office (Fiscalía General de la Nación) may form special units of judicial police including members of the Military Forces, who under their direction and coordination will carry out operational support functions, to protect and assist, in those places of the national territory where there is no legal authority that one can immediately appeal to, or where access to judicial police functionaries is not possible due to exceptional circumstances of public order."
This regulation openly violates principles established by the United Nations, related to the obligation of States to respect human rights and democratic principles. In fact, the due separation of the branches of public power is debilitated due to the lack of independence and impartiality of the judicial system.
In this same sense, the Interamerican Human Right Commission states: "The use of military as judicial policy agents by public prosecutors may lead to the violation of citizen rights, to rigged evidence, or to hiding evidence which may implicate the Armed Forces, who are often charged with alleged human rights abuses."
Granting judicial police functions to the Armed Forces is a threat to the independence and impartiality of justice: at the same time, it authorizes the military investigation of civilian personnel - all in the midst of an internal armed conflict in the country, within which the Armed Forces are one of the parties in dispute.
We call on the many branches of the United Nations system, on the European Union, and on the Interamerican Human Rights Commission, to persist in demanding that the government of Colombia comply with all international instruments and recommendations in the field of human rights.
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