رسالة مفتوحة من المكلفين بولايات في إطار الإجراءات الخاصة التابعة لمجلس حقوق الإنسان إلى حكومة وكونغرس جمهورية كولومبيا

29 September 2014

In our capacity as Special Procedures mandate-holders of the United Nations Human Rights Council, we would like to express our concern at the possible adoption by the Congress of the Republic of Colombia of Bill No. 85 (Senate) of 2013¹. This bill aims to restructure and expand the scope of the jurisdiction of military and police courts. In October 2012, we raised similar concerns with regard to Legislative Act No. 2 of 2012, which was subsequently declared unconstitutional by the Constitutional Court of Colombia in its judgment C-740 of 2013.

We believe that, if adopted, Bill No. 85 could seriously undermine the independence and impartiality of the judiciary, and extend military jurisdiction to crimes that should fall within the jurisdiction of ordinary criminal courts. Its adoption would also undermine the equal and effective enjoyment of fair trial guarantees, and represent a major setback in Colombia’s long-standing fight against impunity for international human rights and humanitarian law violations.

In line with the mandate entrusted to us by the Human Rights Council, we would like to offer our assistance to the Government of Colombia, with a view to ensuring that any reform of the military and police justice builds upon, and does not undermine, the fundamental guarantees enshrined in the international and regional human rights treaties to which the State is party.

We are seriously concerned that the current legislative proposal would unjustifiably extend the jurisdiction of military and police courts to offences that should clearly fall under the jurisdiction of ordinary courts. According to Bill No. 85, military and police courts would have an extensive jurisdiction covering, inter alia, homicide, breaches of international humanitarian law, breaches of information and data protection, crimes against public security and crimes against the civilian population (article 8). The Bill also includes under the exclusive jurisdiction of the military and police courts crimes against the honour, certain economic crimes, and personal injuries (article 9).

The Constitutional Court of Colombia and a number of international and regional human rights mechanisms have clearly stated that military criminal jurisdiction shall have a restrictive and exceptional scope, and shall lead to the protection of special juridical interests related to the functions assigned by law to the military. Therefore, military courts should only be competent to try crimes or offenses that by their very nature threaten the legally protected interests of the military order.

Moreover, since military and police courts in Colombia are part of the executive branch, extending their jurisdiction to matters that should be heard by ordinary criminal courts would result in a breach of the right to a fair trial before a competent, independent and impartial tribunal established by law². It would also exacerbate the problems and concerns already documented by international human rights mechanisms in terms of access to justice, impunity for human rights violations, including past abuses, and respect for the fair trial and due process rights of the accused.

With regard to the jurisdiction ratione personae, we note with concern that under the proposed legislative reform the jurisdiction of military and police courts will not only apply to active members of the armed forces and the police, but also to retired military or police members, as well as civilian or non-uniformed personnel working in the military and police criminal justice system (article 2).

In line with the jurisprudence of international and regional mechanisms, we would like to stress that the trial of civilians in military tribunals presents serious problems as far as the equitable, impartial and independent administration of justice and respect for fair trial guarantees are concerned. Personal jurisdiction of military tribunals should be limited to criminal offences and breaches of discipline allegedly committed by active members of the armed forces. In no case should a military tribunal established within the territory of the State exercise jurisdiction over civilians accused of having committed a criminal offence in that same territory.

With regard to the ratione materiae jurisdiction of military tribunals, we are concerned that the Bill would extend the jurisdiction of military and police courts to crimes that, by their nature, are unrelated to service, and should therefore be heard exclusively by ordinary criminal courts. In line with the jurisprudence of international and regional human rights mechanisms, we call on the Government to ensure that the jurisdiction of military tribunals be limited to criminal offences of a strictly military nature, i.e. to offences that by their own nature relate exclusively to legally protected interests of military order.

Furthermore, despite the fact that article 98 of the Bill excludes some gross human rights violations – crimes against humanity, genocide, enforced disappearance, extrajudicial execution, sexual violence, torture and forced displacement – from the jurisdiction of military and police courts, these courts would in practice retain jurisdiction over a number of ordinary crimes that might also constitute human rights violations.

For instance, extrajudicial execution does not constitute a typified human rights violation under Colombian legislation, but is prohibited by general criminal law provisions on homicide, aggravated homicide or homicide of protected persons. As a result, cases of alleged extrajudicial execution (like the so-called falsos positivos) would fall under the jurisdiction of military and police courts, pursuant to article 8 of Bill No. 85, when the alleged perpetrator is a member of the armed forces.

Other crimes that may also constitute human rights violations, such as violence against and killings of human rights defenders, peaceful protesters or journalists, committed by members of the military or the police may also be qualified as military crimes pursuant to articles 8 or 9 and therefore be subject to the jurisdiction of military and police courts.

Regardless of the nature of the offence, we would like to stress that the jurisdiction of ordinary courts should always prevail over that of military courts in cases concerning offences allegedly involving serious human rights violations, including when the alleged acts were committed by military or police personnel. In case of doubt, the ordinary jurisdiction should take precedence over military jurisdiction in clarifying or determining the facts of a case, as both international human rights mechanisms and the Colombian Constitutional Court have reiterated.

The proposed reform also foresees the creation of a Technical Investigative Body as a specialized unit of the Office of the Military and Police Attorney General. This Body would function as judicial police for the military and police justice system and would, inter alia, receive complaints and grievances about crimes, conduct the investigation under the direction of the military prosecutor, and carry out arrest or search warrants or any other action required by the investigation (article 33).

We are very concerned that in practice this body will be charged with the first assessment of whether or not a criminal offence has taken place, and whether or not it falls within the jurisdiction of military and police courts or ordinary courts. This would undermine the right to an impartial, objective and independent investigation and the principle of natural judge, as set out in international human rights instruments. This is of particular concern given that the preliminary investigation phase is essential for the clarification of facts and responsibilities, including the identification of an independent and impartial tribunal previously established by law which has competence to hear the case.

In sum, we believe that the adoption of the proposed reform would represent a significant step back in Colombia’s efforts to comply with its international human rights and humanitarian law obligations. This is especially serious in the context of the significant efforts made by the Colombian State to address and prevent repetition of the notorious human rights violations committed in the past, in particular the extra-judicial killings carried out between 2002 and 2008 by some members of the armed forces (also known as falsos positivos). Precisely as a result of these efforts, since 2009 Colombia has achieved a notable reduction in the occurrence of these types of violations, as a number of international human rights mechanisms have noted with satisfaction.

In light of the negative implications that the adoption of the legislative reform would have on the justice system, the rule of law and the enjoyment of human rights in Colombia, we call on the Government and the Congress of the Republic of Colombia to seriously reconsider the proposed reform of the military and police justice system. We offer our advisory services to assist the Colombian State in its efforts to strengthen its legislative and institutional framework for the achievement of human rights and peace for all in Colombia.

Mads ANDENAS, Chair-Rapporteur of the Working Group on Arbitrary Detention

Patricia ARIAS, Chair-Rapporteur of the Working Group on the use of mercenaries as a means of violating human rights and impeding the exercise of the right of peoples to self-determination

Pablo DE GREIFF, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence

Ariel DULITZKY, Chair-Rapporteur of the Working Group on Enforced or Involuntary Disappearances

Michel FORST, Special Rapporteur on the situation of human rights defenders

Christof HEYNS, Special Rapporteur on extrajudicial, summary or arbitrary executions

David KAYE, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

Maina KIAI, Special Rapporteur on the rights to freedom of peaceful assembly and of association

Gabriela KNAUL, Special Rapporteur on the independence of judges and lawyers

Rashida MANJOO, Special Rapporteur on violence against women, its causes and consequences

Juan E. MENDEZ, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

Frances RADAY, Chair-Rapporteur of the Working Group on the issue of discrimination against women in law and in practice

Notes

1. The Bill’s reference before the Senate is No. 85 of 2013, but before the House of Representatives it is No. 210 of 2014.

In its general comment No. 32, the Human Rights Committee affirmed that the notion of a competent, independent and impartial tribunal established by law as set out in article 14, paragraph 1, of the International Covenant on Civil and Political Rights designates a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature (CCPR/C/GC/32, paras. 18-19).