Article 1
Paragraph 1
1. Exercise of the right of peoples to self-determination. The 1991 Constitution recognizes the right of peoples to self-determination, as one of the foundations of Colombia's international relations, in article 9:
2. The recognition of this principle of law and international relations in a provision of the Constitution means that the Government of Colombia assumes political and legal obligations at the international level to support peoples who have not been able to exercise their right to self-determination, in accordance with the Charter of the United Nations, and has in fact done so.
3. In Colombia, sovereignty lies with the people. The 1991 Constitution furthermore strengthened the right of the Colombian people to self-determination by recognizing that sovereignty resides in the people and that public power emanates from the people.
4. Pursuant to the above article, the 1991 Constitution sets forth, in article 103, the constitutional mechanisms providing the Colombian people with the means for democratic participation in public affairs and guaranteeing their access to the various forms of participation:
5. Various laws have been enacted under the Constitution to give effect to article 103, including:
6. The creation of forums for participation in administrative management at the national and local levels is provided for in various laws, such as Environment Act No. 99 of 1993; Development Plan Organization Act No. 152 of 1994; National Health and Social Security System Act No. 100 of 1993; Education System Reform Act No. 115 of 1994; Afro-Colombian Communities (Rights, Participation and Development) Act No. 70 of 1993; and Decrees Nos. 36 of 1992 and 1809 of 1993 on National Indigenous Policy.
7. The National Economic and Social Policy Council (CONPES) approved the following programmes to be undertaken or strengthened with the participation of civil society (CONPES document No. 2779, May 1995):
(a) Publicity for the mechanisms of political participation contained in Act No. 13 of 1990 and other mechanisms, through the Citizen Participation Fund (Ministry of the Interior, Office of the Presidential Adviser for Institutional Development, National Registry Office);
(b) Establishment of the Inter-Agency Committee for Participation (CIP) under the Ministry of the Interior;
(c) Establishment of the "PARTICIPAR" database on the legal framework for participation; wide publicity for the relevant instruments (Office of the Presidential Adviser for Institutional Development, Ministry of the Interior);
(d) Promotion by each ministry of forums for participation, to be coordinated by the Inter-Agency Committee for Participation (CIP);
(e) Programmes to develop the capacities for participation of citizens and of civil organizations and their leaders (Ministry of the Interior, Social Solidarity Network, Citizen Participation Fund);
(f) Implementation of the "Done Deal" Programme with the aim of promoting respect for citizens' rights by public officials and their discharge of the mandates given to them in the participatory process (Office of the Presidential Adviser for Institutional Development);
(g) Preparation, in consultation with civil organizations, of the statutory framework for their participation, in accordance with articles 2, 39, 5, 103, 270 and 355 of the Constitution (Ministry of the Interior, Offices of the Presidential Adviser for Social Policy and of the Presidential Adviser for Institutional Development);
(h) Promotion of citizens' watch committees and their coordination with the public supervisory bodies (Ministry of the Interior);
(i) Definition of methodologies for assessing citizens' participation and the governability and legal foundation of the Colombian political system; holding of annual seminars to evaluate the policies of participation and citizens' exercise of their rights in this area (Ministry of the Interior, Citizen Participation Fund).
8. The rapid political and economic changes in the country and the persistence of phenomena of social conflict require a great effort to be made by the State and civil society to apply the constitutional reforms and the laws enacted to give effect to them. For this purpose, there is a broad, democratic and participatory legal base and a political commitment on the part of State institutions to disseminate the laws and to promote and defend the rights set forth in them.
9. Furthermore, the Constitution states in article 1:
10. The Constitution and the laws in force today thus guarantee the Colombian people the exercise of their right to self-determination.
11. The Ministry of the Interior notes that the concept of "self-determination" is not embodied in the special legislation for indigenous ethnic minorities; rather, the term "autonomy" is used, this being understood to mean the right of Colombia's indigenous peoples to their own ethnic and cultural identity, their own language and their own territory in communal tenure, the right to choose their own authorities, to be governed by their own rules and procedures and to follow their own customs and practices, and the right to the future enjoyment of fiscal, political and administrative autonomy in the management of territorial entities set up under article 320 of the Constitution.
12. The Colombian Constitution provides for the autonomy of the indigenous populations, clearly distinguishing it from the concept of self-determination, as follows:
Autonomy:
(1) Recognition of the ethnic and cultural diversity of the Colombian nation (art. 7);
(2) Recognition of the languages and dialects of the ethnic groups, in their respective territories (art. 10);
(3) Recognition of a special national electoral district, which elects two senators for the indigenous communities (art. 171);
(4) Creation of a special electoral district for political minorities and ethnic groups to ensure their participation in the Chamber of Representatives (art. 176);
(5) Formation of autonomous indigenous territorial entities (art. 329 in concordance with art. 1);
(6) Establishment of special jurisdiction to be exercised by the authorities of the indigenous peoples, within their territorial limits and in accordance with their own rules and procedures, provided that these are not contrary to the Constitution and the laws of the Republic (art. 246).
13. Self-determination of peoples. Article 9 of the Constitution clearly defines the scope of the concept of self-determination of peoples, considering it within the context of the foreign relations of the Colombian State, so that it implies recognition of another State's sovereignty.
14. The right of peoples to self-determination, as understood in international law, also entails permanent sovereignty over natural resources as a basic element. Endorsing both autonomy and self-determination would run counter to the Colombian constitutional order, under which wealth and the resources of the subsoil belong solely and exclusively to the nation.
Paragraph 2
15. Free disposal of natural resources. Colombia's territorial sovereignty is established by articles 101 and 102 of the Constitution, which state that the borders of Colombia are those defined in international treaties approved by Congress and duly ratified by the President of the Republic, and those determined by arbitral awards in proceedings to which Colombia is a party. Also part of Colombia are the subsoil, the territorial sea, the contiguous zone, the continental shelf, the exclusive economic zone, the airspace, the segment of the geostationary orbit and the electromagnetic spectrum and space in which it operates, in accordance with international law or with the laws of Colombia in the absence of international regulations. The territory and public assets forming part thereof belong to the nation.
16. Natural resources are protected in various constitutional provisions and particular reference should be made to the following articles:
Paragraph 3
17. Self-determination of peoples in trust territories. Although Colombia does not at present have responsibility for the administration of non-self-governing or trust territories, it has always promoted the right of peoples to self-determination within the General Assembly and specialized agencies of the United Nations.
18. Guarantee of human rights and guarantee of non-discrimination. As indicated in the previous report, the International Covenant on Civil and Political Rights was signed by the Government of Colombia on 21 December 1966 and incorporated into national legislation by the Congress of the Republic through Act No. 74 of 26 December 1968; the instrument of ratification was deposited on 29 October 1969. The Covenant entered into force for Colombia on 23 March 1976, in accordance with article 49, whereby the Covenant was to enter into force three months after the date of the deposit of the thirty-fifth instrument of ratification or accession. The guarantee of human rights is set forth in the second paragraph of article 2 of the Constitution, which refers to the goals of the State and the role of the public authorities:
19. Having been incorporated into the Constitution and national legislation, the rights covered by the Covenant are thus enforceable through the remedies and mechanisms established by the Constitution and the law and on the basis of the rule stated in article 93 of the Constitution, whereby instruments of international human rights law and of international humanitarian law form, together with the Constitution itself, a constitutional body of law:
20. Regarding this article of the Constitution, the legal literature acknowledges that the 1991 Constituent Assembly was wrong, in the technical legal sense, to refer to treaties ratified by Congress, since in fact Congress approves treaties by enactments and then the President, through the State's diplomatic agents, deposits the instrument of ratification or accession. It would have been more correct to say "ratified by the State".
21. Article 94 of the Constitution provides as follows:
The recognition of human rights thus goes very much further than the texts of domestic and international positive law.
22. In addition, article 13 of the Constitution states:
23. Some of the most significant recent enactments intended to provide effective safeguards of the civil and political rights of Colombians are summarized below:
(a) Act No. 24 of 15 December 1992 (annex 20) deals with the organization and functioning of the Office of the Ombudsman and establishes the Advisory Council of the Office of the Ombudsman, which is chaired by the Ombudsman and includes the chairmen and vice-chairmen of the Congressional human rights commissions, one representative of the National University of Colombia and one of the private universities, a nominee of the National Federation of Government Representatives of Colombia and four representatives of non-governmental organizations (NGOs) working in the field of the protection and promotion of human rights;
(b) Act No. 40 of 19 January 1993 (annex 21), which approved the National Statute against Abduction and encouraged the institutionalization of publicity campaigns aimed at preventing and combating the offence of abduction. Decree No. 1405 of 1 September 1995 (annex 22) established the Presidential Programme to Combat the Offence of Abduction, which will have the tasks, inter alia, of assisting the National Government in the formulation of an integrated policy designed to combat abduction, working out a plan for monitoring and evaluation in this area, and coordinating the formulation of a communications strategy to promote civic solidarity in the fight against this crime;
(c) Act No. 62 of 1993 (annex 23) restructures the National Police, defines its functions in respect of the protection of the human rights of the people, establishes the Office of National Police Commissioner, a non-uniformed official with responsibility for disciplinary matters relating to the National Police, and sets up the National System of Citizen Participation in Police Affairs;
(d) Act No. 104 of 30 December 1993 provided means for promoting harmonious civic relations and the efficiency of the justice system; called for the authorities to guarantee the free development and free expression and action of social movements and protests by the people which are carried out in accordance with the Constitution and the law; ordered the implementation of a programme of care and humanitarian assistance for the victims of political violence and terrorism; and instructed the Office of the Attorney General of the Nation to adopt and implement a programme for the protection of witnesses in cases of human rights violations, as well as to pursue the programmes of protection already under way. This Act - provisionally in effect until 31 December 1995 - was amended in part and extended by Act No. 241 of 26 December 1995 (annex 24);
(e) Act No. 30 of 1993 - the General Higher Education Act (annex 25) -singles out, among the main objectives of university and technical education, "training in respect for life and other human rights";
(f) By Act No. 171 of 1994, the Congress of the Republic approved Protocol II of 1977 Additional to the Geneva Conventions of 1949 relating to non-international or internal armed conflicts. The instrument of accession was deposited on 14 August 1995. Protocol II entered into force for Colombia on 16 February 1996. The text of Act No. 171 of 1994 is not annexed, as its substantive provisions are those of Protocol II itself.
24. Programmes for the promotion of citizens' rights. As indicated in Colombia's third report, the National Government launched a governmental human rights programme in 1987 with the establishment of the Office of the Presidential Adviser for Human Rights. This Office has channelled international support and cooperation on the basis of agreements with the United Nations Centre for Human Rights in Geneva, the United Nations Development Programme, and the Governments of the Netherlands, Canada and Italy. The programme provides for the defence, promotion and protection of human rights by means of the reception and handling of complaints submitted by private individuals to the Office of the President of the Republic; human rights information and teaching programmes targeted at educators, State officials (members of the police, the military, judges, prosecutors, labour inspectors, municipal representatives) and at civil society in general; liaison and coordination with NGOs working in various fields; care for the victims of violence, in coordination with humanitarian NGOs such as the Colombian Red Cross; publication of books, magazines, periodicals, videos and posters; and advice to the National Government on a variety of matters relating to human rights and international humanitarian law.
25. In 1993 and 1994, the Office of the Presidential Adviser for Human Rights implemented a wide-ranging project entitled "Consolidation of the Mechanisms for the Protection and Defence of Human Rights at the Local Level", and involving the holding of more than 600 local information workshops. It also disseminated information through the media on human rights and the machinery of protection.
26. The Government's activities were strengthened with the creation of human rights offices or units in the Ministry of National Defence (1994), in the General Command of the Armed Forces (1992), in the Administrative Security Department (1993) and in several of the country's prisons. The Ministry of Defence established the Secretariat for Human Rights and Political Affairs, with branches in military garrisons and police departments throughout the country. One of its functions is to follow up on reports of violations of human rights and international humanitarian law.
27. With support from the Office of the Presidential Adviser for Human Rights, the Office of the Ombudsman and the International Committee of the Red Cross, the subject of human rights has been included in training in all areas and at every level for police officers and members of the armed forces.
28. Pursuant to Act No. 115 of 1994 - the General Education Act (annex 26) -the Ministry of Education is working on the formulation, implementation, monitoring and evaluation of the National "Education for Democracy" Project. This project aims not only to include education for democracy in the basic curriculum as a fundamental, compulsory and cross-disciplinary subject, but also to make it a topic for daily reflection by students, teachers and parents. The plan involves the academic community, NGOs and governmental institutions responsible for the promotion and protection of human rights and aims to ensure that the principles of democracy and human rights are incorporated into the institutional education projects that each educational establishment must draw up with the participation of the whole educational community (students, teachers, parents, directors, former pupils).
29. The Ministry of Education is mandated under the Constitution to formulate and implement educational programmes specially targeted at indigenous groups, covering basic and vocational education, training of indigenous teachers, and the design and production of teaching materials. Decree No. 2127 of 1992 established the Division of Ethnic Education as part of the organizational structure of the Ministry of Education and defined its functions. Act No. 70 of 1993 strengthened this mandate in respect of the black communities, which are entitled to education according to their needs, history, knowledge, skills and systems of values.
30. Judicial remedies for the protection and application of human rights. The judicial remedies for the protection of fundamental human rights are:
(a) The remedy of protection of fundamental rights (acción de tutela);
(b) The remedy of habeas corpus;
(c) The remedy of habeas data;
(d) The remedy of direct reparation.
These four remedies are judicial remedies, since applications may be filed in the courts, which consider and decide on them in judicial proceedings; and they are effective remedies, since public officials are obliged to comply with the respective judicial decisions, subject to disciplinary measures or, indeed, deprivation of liberty if the official or private individual concerned fails to comply with them.
31. There are various reasons for the existence of different remedies. Under the previous Constitution - that of 1886 - there had been only legislatively created remedies, such as the remedy of habeas corpus instituted and regulated by the Code of Criminal Procedure, and the remedy of compensation created by the Administrative Code for recovery of damages from the State based on its extra-contractual liability. The 1991 Constitution raised habeas corpus (art. 30) and direct reparation (art. 90) to the status of constitutional remedies and created the new remedies of protection of fundamental rights (art. 86) and habeas data (art. 15). The first two remedies belong to well-established branches of law, i.e. criminal law and public law or the law of public administration, and have a long legal tradition in Colombia. The 1991 Constitution maintained them as remedies proper to those branches of law. By contrast, the remedy of protection and the remedy of habeas data are now two typical constitutional forms of recourse to safeguard human rights. The remedy of protection of fundamental rights may be regarded as a general remedy to secure almost all fundamental rights, except the right to personal liberty - specifically protected by habeas corpus - and the right to privacy - specifically protected by habeas data.
The remedy of direct reparation allows residents of Colombia to obtain compensation from the State for wrongful injury caused by acts or omissions of the public authorities.
32. The remedy of protection of fundamental rights, created by the 1991 Constitution, has become the most powerful tool - not to say weapon - of the citizen to protect himself against abuses by the public authorities or by private individuals entrusted with providing a public service. In order to limit the power of the legislature to regulate this remedy, the 1991 Constituent Assembly drew up a quite detailed constitutional rule:
33. The remedy of protection was regulated by Decree No. 2591 of 1991, later amended by Decree No. 306 of 1992 (annex 27). The reason why this remedy was regulated by decrees of the President of the Republic and not by enactments of the Congress needs to be explained. The 1991 Constituent Assembly revoked the mandate of Congress that had been elected in 1990 for a four-year term and called for new elections to be held in October 1991 and for a new term of the legislature to begin on 1 December of the same year. To ensure that the 1991 Constitution entering into force on 4 July 1991 would not be kept in abeyance until a new Congress took office, the Constituent Assembly vested special powers in the President of the Republic for the purpose, inter alia, of regulating the right (sic) of protection (transitional art. 5); any decrees issued by the President in the exercise of those special powers were reviewed by a Special Legislative Commission (popularly known as the "little Congress") and that procedure was applied to Decree No. 2591 of 1991. In early March 1996, the Ministry of Justice and Law began work on reviewing experience with the application of the remedy of protection over the past four years, studying the legislative or constitutional amendments that the experience might suggest, and preparing the appropriate draft legislation.
34. In Colombia, the remedy of protection is the mechanism par excellence for safeguarding fundamental human rights. As in other countries which have set up similar mechanisms, lessons have been learned in a gradual process of experimentation by citizens, judges and lawyers and by those who have had to implement decisions on protection. Many injustices and abuses for which there had previously been no remedy can no longer be committed, since the decisions on protection have "tightened up" on arbitrariness and have obliged the public administration to take notice of persons applying for protection to curb injustice. There is no denying also that there has been abuse of the remedy and that it has been used for purposes not appropriate to a means of recourse intended to protect human rights.
35. The remedy can also be used to prevent the violation of rights, and not only for protection when violations have already occurred. It is available in Colombia to safeguard not only the fundamental rights referred to in the relevant chapter of the Constitution, but also all the fundamental rights which do not appear there or anywhere else in the Constitution, or in national or international instruments of positive law. In addition, protection is available against judicial decisions and judgements, with some limitations. Decisions on protection are binding on the public servants and private individuals to whom they apply and peremptory inasmuch as judges may punish contempt by imposing a penalty of up to six months' imprisonment and a fine of 20 times the minimum monthly wage on any person failing to comply with an order handed down by a judge on the basis of the legal provisions governing protection, without prejudice to any criminal proceedings that may be brought for fraudulent performance or non-performance.
36. In all, 65,000 instruments of protection had been transmitted to the Constitutional Court between the time it began its work and June 1995, a significant figure given that all proceedings for protection must be referred to the Court for possible review. According to a recent study published by the Ministry of Justice, "The remedy of protection has been an effective means of safeguarding the fundamental rights of individuals. No other innovation of the 1991 Constitution has had such social importance as the remedy of protection: it represents the most significant part of the reform initiated by the members of the Constituent Assembly in 1991. Its importance is recognized by applicants, judges and, in general, the national legal community. These features make the remedy of protection an irreversible addition to the country's legal panoply" (Republic of Colombia, Ministry of Justice and Law, Incidencia social de la acción de tutela, Document Series No. 22, Ministry of Justice, Santafé de Bogotá, Colombia, February 1996, 206 pp. This academic research was carried out by the Centre for Legal Studies of the Universidad de los Andes, annex 27 bis.)
37. The remedy of direct reparation is the other general judicial remedy and is very effective in cases where reparation or compensation is sought for negligence in the public service. It existed before 1991 on the basis of the legal provisions of the Administrative Code, although differently named, and was used frequently. The 1991 Constitution made it a constitutional remedy under article 90:
38. The main limitation of the remedy of reparation is that it ceases to be available two years after the events that caused the wrongful injury. However, the remedy has undoubted advantages for private individuals as it is sufficient for them to demonstrate the occurrence of the events, the injury sustained and the legal grounds for suing the State to obtain appropriate compensation, since the State bears strict liability and there is no need for the identity or liability of the public official who caused the injury to be determined in criminal or administrative proceedings. To give an idea of the magnitude of the penalties applicable under administrative law, it may be noted that, in 1995, the Ministry of Defence, which has responsibility for the armed forces and the police, was ordered to pay compensation in cases of misconduct in office amounting to Col$ 12,024 million and made settlements, both in and out of court, with claimants in other cases amounting to Col$ 18,354 million; it therefore had to pay a total of Col$ 30,378 million (about US$ 30 million). No statistics are available to determine what proportion of those compensation payments were made for human rights violations (the lack of such records is in the process of being remedied). However, that proportion may be estimated at between 20 and 30 per cent of the damages awarded against or agreed to by the Ministry of Defence.
39. Habeas corpus and habeas data will be discussed extensively in the sections dealing with the articles of the Covenant that relate directly to the rights protected by these remedies.
40. As can be seen, Colombians have a valuable set of judicial remedies directly related to the prevention of violations of their fundamental human rights and to redress for injury caused by such violations as may occur. However, it should not be forgotten that there are also the usual criminal and disciplinary remedies which make it possible to punish public servants whose conduct in breach of human rights may be regarded as criminal or disciplinable. Furthermore, criminal proceedings can also be brought to punish private individuals whose criminal acts may be regarded as having infringed the rights and freedoms of residents of Colombia.
41. Equality between men and women in the enjoyment of human rights. In the last few decades, the social status of women in Colombia has undergone significant changes, as reflected in their opportunities for employment, their improved access to education, control of fertility and equality before the law. As far as equality between men and women is concerned, there is full equality in the formal legal framework; real equality is still a target, relating not only to socio-economic disparities, but also to cultural factors that men, and frequently women themselves, assume to be a natural part of the functioning of society.
42. The framework within which the State is working to achieve equality comprises:
(a) The 1991 Constitution, the laws enacted pursuant to it, and prior laws, all of which have given shape to the gradual achievement of equality before the law;
(b) The definition of institutional structures, from 1990 onwards, for the formulation and implementation of policies of gender equality;
(c) Women and gender policies and programmes, which from 1990 onwards began to be formulated and shaped by the National Economic and Social Policy Council (CONPES);
(d) The National Development Plan incorporated the gender dimension into decisions on the investment of State resources for economic and social development.
43. Legislation for equality. Equality before the law in Colombia has made great strides. Laws have been enacted to regulate the participation of women in areas that are fundamental for the development of society as a whole: as citizens, in political law; as spouses and mothers, in civil law; as workers, in labour law; and, in criminal law, the aim has been to protect their physical integrity. The first legal and political measures aimed at creating conditions of equality for women were taken in the 1930s, when women were recognized as having proprietary rights in marriage, given civil capacity and entitled to witness all juridical acts, granted the right to higher education and paid work, allowed to exercise parental authority in respect of their natural children, granted the right to apply for alimony and were able to benefit from the establishment of the system of paternity search. In 1957, women became citizens enjoying the full exercise of their rights, including the right to be elected to positions of political responsibility and to perform public duties involving the exercise of authority and jurisdiction. The 1957 national plebiscite gave them the right to vote and confirmed their equal political rights. The labour legislation upheld the principle of equal remuneration for equal work in 1962 and this was regulated in 1981 with measures taken to provide equal opportunities in training and employment, equal remuneration, free choice of occupation and employment, protection of health, social security and maternity protection. The legislation on maternity protection established paid maternity leave for a period of 8 weeks (1950), later increased to 12 weeks (1990), and the right to time for breast-feeding during the first six months of the child's life (1967). Successive laws established the equal rights of men and women in respect of property and the exercise of parental authority, divorce for persons joined in civil marriage, with the same grounds for divorce being applicable to men and women, and the sharing of property and award of child custody, rights that were provided for in the 1991 Constitution for all married persons, including those married in the Catholic Church.
44. Act No. 51 of 1981 incorporated the Convention on the Elimination of All Forms of Discrimination against Women into national legislation. Legislation was adopted in 1982 on social security for women, and it was extended to employees in domestic service in 1988 and supplemented in 1993 by the creation of the country's Integrated Social Security System. The offences of forcible carnal knowledge and violent sex acts are penalized, without distinction as between men and women, under the Criminal Code (1980).
45. Equality before the law for women was definitively secured with the promulgation of the 1991 Constitution, which expressly prohibits discrimination on grounds of sex and promotes affirmative action to allow for greater participation of women in public affairs. Act No. 82 of 1993 - the Act on Support for Female Heads of Household (annex 28) - was promulgated pursuant to the Constitution and the Congress of the Republic has been debating (without result as yet) the enactment of legislation on violence against women. The Constitutional Court has made rulings clarifying the content of some laws aimed at ensuring equality, which are of great importance and scope. Mention should be made of the one relating to the recognition of a woman's domestic work as a contribution to the de facto community property held by permanent partners. The remedy of protection of fundamental rights is an instrument of considerable scope and has enabled progress to be made in realizing the right of pregnant adolescents to continue in formal education and the right to sex education for children, the Ministry of Education being mandated to incorporate it into the primary school curriculum. Proceedings to secure protection have, in actual fact, been instituted by women.
46. Colombian legislation is now among the most advanced in Latin America as regards equality between the sexes. The individual and collective action of Colombian women has highlighted the kinds of disadvantage suffered by women in the economic, legal, cultural and political fields, as well as the various forms of discrimination and their consequences. Women's participation in the drafting of a new constitution contributed in an important way to ensuring that equal protection of the law for men and women would be embodied in the 1991 Constitution. The State has expressed a willingness, at the formal legal level, to remedy situations of discrimination and has provided society with a framework of laws that will promote the further advancement of women, as indicated in Colombia's report to the Fourth World Conference on Women (annex 29).
47. While the legal framework is the basis for achieving equality, real achievements are possible only by ensuring its applicability and coverage. Efforts to implement the legislation are faced with obstacles that stem from an inefficient legal system and, for women in particular, compliance is subject to varying conditions of applicability depending on their socio-economic status, the levels of risk (as in the case of pregnancy tests or declarations of civil status to obtain employment), as well as on the cultural environment and their own knowledge of the law.
48. Work and income. Over the last few decades, Colombian women have been increasing their participation in productive activities more rapidly than men, with the result that the sex differential has tended to decrease with time. Women represented 38.6 per cent of the economically active population in 1980 and 42.6 per cent in 1991. This trend is the product of major changes in the age structure of the labour force. The educational level of women in the economically active population in 1990 for the four main cities was very similar to that of men, average school attendance being 8.7 years for men and 8.0 for women. The greater participation of women in the labour force reflects the higher levels of education.
49. Two elements characterize the dynamics of female employment in Colombia. The first is the rapid increase in the number of women in the labour force and the attainment of advantageous positions for a female élite in the formal sector of the economy. The second is the rapid inflow of a large number of women into paid employment on more disadvantageous terms, mostly in temporary and poorly paid jobs. In 1990, one out of every five Colombian households had a female head; the female head of household was earning Col$ 0.62 for each peso earned by a male head of household.
50. Regulatory framework:
(a) The Constitution: articles 25, 43 and 53, which provide that every one has the right to work under decent and fair conditions, as well as the non-renounceable right to social security; workers have equal opportunities for employment without discrimination and there exists the right to maternity protection; provision is made for special support for female heads of household;
(b) Act No. 11 of 1988: special social security scheme for female employees in domestic service earning less than the minimum legal wage (annex 30);
(c) Act No. 50 of 1990 on maternity protection (annex 31) provides for 12 weeks' paid maternity leave (the mother may cede the first week to her spouse or partner); prohibition of the dismissal of a pregnant or nursing woman, and compensation and fines for non-compliance with the regulations;
(d) Substantive Labour Code: articles 236 et seq. establish occupational health standards for women, including pregnant women;
(e) Decision No. 001531 of 1992 of the Ministry of Labour and Social Security on women's right to a working environment and living conditions that do not affect their health or fertility;
(f) Act No. 100 of 1993 set up the Integrated Social Security System to provide health care, pensions and supplementary social services;
(g) Act No. 119 of 1994 on the restructuring and modernization of the National Apprenticeship Service (SENA);
(h) Act No. 51 of 1993 on Support for Female Heads of Household;
(i) Act No. 160 of 1994 on the System of Agrarian Reform and Peasant Rural Development;
(j) Decree No. 1398 of 1990 pursuant to Act No. 51 of 1981, which stipulates that there shall be no discrimination against women in employment;
(k) Ministry of Labour decision No. 391 of 1990, which prohibits employers from demanding a pregnancy test as a condition for admission to or continuation in employment.
51. Health. The conditions of health of Colombian women have improved markedly in the last few decades, although considerable problems are still being encountered. Principal health needs relate to the socio-demographic structure of the population, general living conditions and the characteristics of the health-care system. Advancement in the process of demographic transition in Colombia has been accompanied by a process of epidemiological transition, as reflected in the age-specific mortality rate. The fall in population growth, accompanied by a drastic reduction in the birth rate in urban and rural areas, has contributed to the lowering of maternal and child mortality. These demographic features are bound up with general living conditions, which reveal housing, public-health and nutritional deficiencies, mostly affecting women and children, especially in rural and poor urban areas.
52. Regulatory framework:
(a) The 1991 Constitution establishes health care as a public service to be managed by the State. Regarding women and the family, it establishes the right of the family to decide freely and responsibly on the number of children it should have, and provides for protection for pregnant and nursing women; food allowances for women who are unemployed or abandoned and who are heads of household; free treatment in State health-care institutions for children under one year of age not covered by the social security system; protection of older persons through social security and food allowances; and support for the disabled;
(b) Act No. 50 of 1990 on protection for mothers and nursing women;
(c) Act No. 100 of 1993 on the Integrated Health and Social Security System;
(d) Act No. 60 of 1993 on the decentralization of the health services and transfer of the resources of the nation;
(e) Act No. 70 of 1993 on the implementation of the right to health of the Black communities and of female heads of household in such communities.
53. Education. Colombian women have significantly improved their educational status to reach levels very close to those of men. Women still show rates of illiteracy that are slightly higher than for men (12 per cent as against 11.5 per cent in 1985), but the reduction in illiteracy was markedly greater among women than among men relative to the 1968 census (28.9 per cent as against 25.2 per cent). In rural areas, female illiteracy is about 23 per cent.
54. With regard to the country's pyramidal socio-educational structure, fewer women than men have gained entry to higher education (6.2 per cent as against 7 per cent), but there are more females than males in secondary education (33.7 per cent as against 30.8 per cent) and equal numbers in primary education (50 per cent). The proportion of persons who do not manage to acquire any degree of formal education is very similar for both sexes (around 11 per cent).
55. As to educational performance, the Colombian system achieves close to "normal" standards, failing one fifth of pupils in first grade and 6 per cent of those in fifth grade, with a 12 per cent drop-out rate for primary education. The drop-out rate is lower for females than for males, this being influenced by the work factor, although, in rural areas and in the poorest homes, girls perform domestic work from the third grade of the primary level.
56. Regulatory framework:
(a) The 1991 Constitution, under which the State, society and the family are responsible for education; education is compulsory between 5 and 15 years of age, up to ninth grade, and free in State institutions. Education is defined as a person's right and as a public service with a social function;
(b) The General Education Act of 1993, which covers education for democracy and equality;
(c) The National Sex Education Plan, under which sex education, including aspects of gender equality, is compulsory;
(d) The Minors' Code, which calls for the Ministry of Education to set up a national programme to help primary school drop-outs catch up and re-enter the system without major trauma;
(e) The Constitutional Court: case law on the right to receive sex education in school and the right of pregnant adolescents to continue in formal education.
57. Violence against women. The Survey on Prevalence, Demography and Health in 1990 revealed a high level of ill-treatment of women and children. This situation reflects a general climate of violence in the country and the stereotypical thinking that ill-treatment of women is normal. The initial findings of specific research suggest that unemployment and greater poverty of households are causing violence in the family to increase.
58. The phenomenon of the sexual exploitation of women, young persons and children of both sexes is commonly associated with drug abuse and crime, thus multiplying the risks to the lives, health and security of those concerned. It gives rise to serious problems of social invisibility and moral insensitivity.
59. Regulatory framework:
(a) Act No. 51 of 1981 on the elimination of all forms of discrimination against women considers violence and prostitution as forms of discrimination;
(b) Prostitution is not punishable in Colombia and does not constitute an offence, but its actual regulation is left to the departmental assemblies and town councils;
(c) The 1991 Constitution prohibits slavery, servitude and traffic in persons, and secures freedom of profession or occupation;
(d) The Criminal Code imposes sanctions for sexual intercourse with minors under 14 years of age, procurement and international traffic in women and minors under 14;
(e) The National Police Statute (Act No. 62 of 1993) seeks to control the levels of violence, arbitrariness and corruption that have characterized its relations with the world of prostitution;
(f) Approval by the Executive of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, which has been submitted to Congress for incorporation into national legislation;
(g) Approval by the Senate of the Republic of a bill on the prevention and punishment of violence within the family, which is now pending before the House of Representatives.
60. Socio-political participation. Colombia is in the process of redefining its model of democracy, passing from the representative model to the participatory model. Participation following this model is guaranteed under the Constitution not only by the creation of new forums, especially at the regional and local levels, but also by the advances made in affirmative action to ensure the adequate and effective participation of women at decision-making levels in the public administration.
61. The participation of women in presidential and parliamentary elections has historically been lower than that of men. Although women constitute half of the electorate, 64 per cent did not vote in the 1991 parliamentary elections.
62. During the 1982-1986 presidential term, 12 women were appointed as deputy ministers and 2 as ministers, and a good number of women took up high-level posts in the executive branch. In 1988, 1 per cent of high-level Government posts, 35 per cent of advisory posts and 31 per cent of executive posts were held by women. In 1992, 7 per cent of ministers and deputy ministers were women.
63. Since 1988, mayors have been elected by popular vote. For this period, 58 out of 200 female candidates were elected. In 1990 the number rose to 65, or 6 per cent of the 1,013 mayors elected.
64. Women hold 7 per cent of the seats in the Senate and 6.9 per cent of those in the House of Representatives. In the departmental assemblies, they represent 10.6 per cent of the deputies. In the municipal councils, their level of representation has never been more than 8.3 per cent. Women's representation on the local administrative boards, which are forums for citizen participation in local planning and the formulation of investment plans, is no more than 15 per cent.
65. No woman served in 1991 in the highest posts (president or vice-president) in the Constitutional Court, the Council of State or the Supreme Court. No woman has achieved that distinction in the history of the Supreme Court and only three women have done so in the Council of State. In 1993, there was one woman in the Supreme Council of the Judiciary. The female presence has been greater among officers of the courts: 18.5 per cent in the Supreme Court and 33 per cent in the Council of State. Women's participation as judges is increasing: 81 per cent in family courts, 1 per cent in civil courts and 25 per cent in labour courts. In the Ministry of Foreign Affairs, women account for about 50 per cent of high-level and professional posts, but only 6.8 per cent of ambassadorial posts. Overall, this means that the higher the ranking, the lower the number of women.
66. Women represent about 50 per cent of all participants in political party conventions, but are very rarely appointed to leadership posts. The Liberal Party has one woman in the national leadership and the Conservative Party none.
67. In the trade unions, women have increased their representation to 25.5 per cent of the membership in the country's four major departments (1990).
68. In the cooperative sector, women accounted for two per cent of the members (1987), mainly in cooperatives providing mutual aid and services. In community-based organizations, female participation is very low: in the case of Bogotá (1988), it was only 21 per cent, women being employed largely in secretarial positions; 11 per cent served in the office of the board chairman.
69. The country has 13 second-level national peasant organizations. Women work in most of these organizations. Two of them are entirely women's organizations.
70. Regulatory framework:
(a) The 1991 Constitution: article 13 provides for political and civic participation, without discrimination on grounds of sex; article 40 guarantees adequate and effective participation of women at decision-making levels in the public administration;
(b) Act No. 152 of 1994, the Development Plan Organization Act, provides for the representation of women in the National Planning Council and in the departmental and municipal councils.
71. Institutional framework. In fulfilment of the obligation arising under Act No. 51 of 1981 approving the Convention on the Elimination of All Forms of Discrimination against Women, the Government promulgated Decree No. 1398 of 1990 establishing the Committee for Coordination and Monitoring of Policies to Combat Discrimination (annex 32). The predecessor to this Committee had been appointed in 1980 (Decree No. 367 of 1980) with very limited functions. At the end of 1990, the Government set up the Office of the Presidential Adviser for Youth, Women and the Family, under the Office of the President of the Republic, with responsibility for defining policies and programmes and for intersectoral coordination and liaison with NGOs. In the pursuance of its activities, the Office defined the first national policy for women, which was approved by the National Economic and Social Policy Council (CONPES) in 1992. Together with the Ministry of Health, it coordinated the start-up of the "Health for Women and Women for Health" Programme; together with the Ministry of Agriculture, it defined and extended financial and technical support for the national policy for rural women, approved by CONPES in January 1984; with the Ministry of Education it launched the co-education programme; in association with the justice system, it coordinated and supported the family counselling programme; and it carried out demonstration programmes in the field of income generation and facilitation of domestic work. It also instituted gender-awareness programmes for public officials and for women's organizations.
72. The Government which took office in August 1994 set up the Advisory Commission for Equality and Participation of Women by Decree No. 2055 of 1994 (annex 33) as an advisory body serving the National Government. The bodies responsible for the definition, coordination and monitoring of policies of equality, as established by CONPES in its Document 2726 of 30 August 1994 (annex 34), comprise the Women and Gender Secretariat within the Office of the Presidential Adviser for Social Policy and the Gender Unit within the Ministry of the Environment, the woman Minister with that portfolio being responsible for the policy of equality.
73. The Act on the National Development and Investment Plan 1995-1998 (annex 34 referred to above) defines a new permanent institutional structure for policy implementation, in the form of the National Directorate for Equality, a body with administrative autonomy and its own resources, attached to the Office of the President of the Republic. The National Director, a woman, will serve on CONPES. In September 1995, this body will begin its work of consolidating and reinforcing the policies and programmes in effect.
74. Strategies and programmes. On the basis of the CONPES Document on the Policy of Participation and Equality for Women (annex 33 referred to above), the Government has defined the strategies and programmes that will enable progress to be made in promoting a cultural exchange to overcome the subordination of women and in bringing about development with equality for women and men:
(a) Institutionalization of policy: development and strengthening of the National Directorate for Equality;
(b) Culture of equality between men and women: public campaigns on equality; sensitization of public officials, NGOs and civil society in general to gender stereotypes and their consequences; training of public officials at the national and regional levels to introduce the gender dimension into all State programmes;
(c) Participation in the labour market: inclusion of women in the major national programmes on employment and income generation (National Small Business Plan, Solidarity Network emergency employment programmes); support for working women through improved coverage of the Community Family Welfare Centres catering for children under 7 years of age; amendments to the law to establish flexible working hours and other conditions for combining motherhood with paid employment (National Directorate for Equality); encouragement of membership of the Pension Solidarity Fund;
(d) Integrated health services for women: encouragement for women to join the contributory health scheme and for poor women to join the subsidized health scheme; health education and reproductive health programmes; maternal and child health (MCH) programme to provide medical and nutritional care for pregnant and nursing women and their children under one year of age; improvement of the coverage and quality of the health services; improvement of the coverage of hospital delivery care;
(e) Standard-setting activities: promotion of consultation between the public authorities and the women's social movement for the development of standards of equality and participation: participation in public administration and in forums for civil society; flexible working hours; violence against women; protection of family property;
(f) Legal protection: extension of the coverage of family counselling centres;
(g) Strengthening of women's organizations: support for national and local organizations to raise awareness and provide training and information on the services offered by the State and forums and mechanisms for participation;
(h) Research: studies and analyses of gender issues and the status of women.
75. Protection of human rights in states of emergency. This part of the report analyses the relationship and correspondence between the protection of human rights in states of emergency by international human rights law and by Colombian domestic law.
76. Colombia has a dual obligation under international human rights law, since it is also bound by article 27 of the 1969 American Convention on Human Rights (Pact of San José, Costa Rica). The rules of the American Convention on Human Rights bear marked similarities to the requirements of article 4 of the Covenant and there are also some differences, which relate to the list of those human rights which constitute non-derogable core rights and the international body to be notified of decisions on states of emergency, i.e. the Office of the Secretary-General of the Organization of American States (OAS).
77. One of the reasons for the frequent application of states of emergency is that there is an internal armed conflict in Colombia which has very particular characteristics, but whose existence has a daily impact on the population not directly involved in the hostilities, on civil society, on public opinion and on the national economy. As already stated in this report, the aim of the Government of Colombia is to find ways of bringing about a negotiated political settlement of this non-international armed conflict. In this regard, the Government wishes to draw the international community's attention to its willingness to achieve internal peace through dialogue and negotiation with the violent opponents of the constitutional regime. If a negotiated peace were to be secured, would it not then be possible to devote the resources now being spent on the war to building a more just society and meeting the needs of the least advantaged segments of the population? It should also not be forgotten that Colombia has also suffered and continues to suffer from a very difficult situation brought about by the corruption that drug trafficking has succeeded in introducing in many areas and at many levels of society and the State, and that this has furthermore made it necessary, particularly when the drug traffickers have used terrorist methods, to adopt emergency measures. However, it is inadmissible that anyone should state, a priori, that emergency measures have been taken for the purpose of violating human rights or covering up such violations or to limit the exercise of public freedoms. Any such statement would need to be backed up by proof drawn from the texts of the special provisions and with reference to cases in which human rights have been wilfully violated through use of the special powers of the Executive.
78. Constitutional provisions in force for states of emergency. It should be stated at the outset that the constitutional provisions in force in Colombia go much further and offer more safeguards for the protection of human rights in states of emergency than the minimum requirements of international human rights law, as contained in article 4 of the International Covenant on Civil and Political Rights and article 27 of the American Convention on Human Rights. This is clearly illustrated by the fact that article 214, paragraph 2, of the Constitution prohibits the suspension of human rights and fundamental freedoms in such circumstances and also stipulates that the rules of international humanitarian law must be respected. In addition, the Constitution calls for legal and political safeguards to be applied both for the declaration of states of emergency and for the use of special powers. It furthermore requires the special powers of the Executive to be regulated by a statutory act.
79. Declaration of states of emergency. Under articles 212, 213 and 215 of the Constitution, the President may declare a state of emergency, in a decree bearing the signatures of all the ministers, on the basis of the following constitutional criteria:
(a) Substantive grounds and reasons for declaring states of emergency:
(i) Foreign war or declaration thereof;
(ii) Internal disturbance or serious disruption of public order which poses an imminent threat to institutional stability, the security of the State or civil harmony and which cannot be dealt with by the ordinary powers of the police authorities;
(iii) For reasons other than those listed above which threaten or disrupt the economic, social or ecological order;
(b) Formal requirements:
(i) Decree of the President of the Republic bearing the signatures of all the ministers;
(ii) Under Colombian law, this decree must be proclaimed and brought to the knowledge of the public;
(c) Political and legal safeguards:
(i) At the political level, the Congress of the Republic must be convened or may meet as of right or on its own initiative immediately in cases of foreign war or within three days of the declaration of an internal disturbance. Under article 214, paragraph 5, of the Constitution, the President and the ministers bear responsibility when declaring states of emergency without a foreign war or internal disturbance having occurred, and they are also responsible, as are other officials, for any abuse they may have committed in the exercise of special powers;
(ii) At the legal level, the Constitution stipulates that the decree declaring a state of emergency and the special decrees issued by the Government in exercise of the special powers are subject to supervision by the Constitutional Court. The Government is required to transmit them to this high court on the day following their issuance; should it not do so, the Court will automatically and immediately take cognizance of them. In this regard, it should be noted that article 214, paragraph 1, states that measures decided on by the Government in exercise of the special powers may relate only to matters that have a direct and specific bearing on the situation defined by the declaration of the state of emergency. Another limitation on the Government is that a state of emergency declared for reasons of internal disturbance cannot last for more than 90 days; this may be extended for two periods of the same duration, the second of them requiring the prior and favourable opinion of the Senate of the Republic.
80. Protection of human rights in states of emergency. Regarding the protection of human rights in states of emergency, it has already been noted that Colombian law goes well beyond the "standard" minimum requirements of article 4 of the Covenant and article 27 of the American Convention on Human Rights. Article 214, paragraph 2, of the Constitution provides that human rights and fundamental freedoms cannot be suspended. It furthermore stipulates that the rules of international humanitarian law must be respected. The Constitution therefore embodies the most modern theories on the complementarity of the two systems of international law to ensure that the human person is always protected, even in the gravest and most severe situations of emergency.
81. Act No. 137 of 1994, the Statutory Act on States of Emergency (referred to above as annex 12), regulates in very great detail the powers by which the Government may limit the exercise of particular rights in such circumstances, so that the limitations do not affect core rights and freedoms (art. 7 of Act No. 137). Articles 27 and 28 of the Act allow the Government to place restrictions on the press, radio and television in the case of a foreign war, as well as to limit freedom of movement and residence with a view to protecting civilian lives and facilitating military operations. The Act also permits the establishment of special zones of movement or residence.
82. In cases of internal disturbance, Act No. 137 specifies in article 38 the powers that may be exercised by the Government and the limitations it may impose on private individuals in respect of freedom of movement and residence; temporary requirements of technical and professional services and the establishment of restrictions on the press, radio and television; freedom of assembly and public demonstration; the interception or recording of communications - by order of the competent judicial authority - and the preventive detention of individuals - by order of the competent judicial authority - when there is evidence of their involvement in offences; regulation of the supply of basic necessities and essential services; the subordination or denial of the exercise of certain rights in respect of aliens; the imposition of fiscal or quasi-fiscal levies; and the search - by order of the competent judicial authority - of private residences.
83. As can be seen from this list of the Government's powers under the Statutory Act on States of Emergency (Act No. 137), the protection afforded for the basic core of human rights contemplated in article 4 of the Covenant and in article 27 of the American Convention on Human Rights goes well beyond satisfying the minimum requirements of international human rights law.
84. In particular, consideration should be given to two fundamental aspects:
(a) The last subparagraph of article 213 of the Constitution provides that civilians may in no case be investigated or tried by the military criminal justice system;
(b) Article 214, paragraph 2, requires that the statutory law on states of emergency should establish safeguards for the protection of human rights in conformity with international treaties. In this regard, article 4 of Act No. 137, the Statutory Act on States of Emergency, specifies the limitations on the Government as follows:
(i) The right to habeas corpus is non-derogable;
(ii) The judicial safeguards essential for the protection of fundamental rights cannot be suspended;
(iii) Article 57 of the Act secures the remedy of protection of fundamental rights so that the application for it and its handling cannot be made conditional or restricted in states of emergency.
85. As can be seen, the constitutional and legal rules in force in Colombia faithfully conform to the requirements laid down by the instruments of international human rights law and international humanitarian law and indeed go much further than the international rules as far as the protection of human rights in states of emergency is concerned.
86. Lastly, it should be pointed out that the Government of Colombia has always fulfilled its treaty obligation to inform the Secretary-General of the United Nations of the declaration of states of emergency and their termination, by decision either of the Government or of the Colombian courts; the Secretary-General has also been notified of the special measures adopted. Such information has likewise been provided to the Secretary-General of the Organization of American States.
87. Constitutional and legal safeguards of human rights. As already mentioned, the Colombian Constitution provides in article 93 that international treaties and agreements to which the State is a High Contracting Party and which recognize human rights and prohibit their restriction during states of emergency take precedence over internal law; in addition, the rights and duties set forth in the Constitution must be interpreted in accordance with the international human rights treaties ratified by Colombia. Furthermore, the Constitution stipulates that the enunciation of the rights and guarantees contained in the Constitution and in the international agreements in force is not to be construed as negating other rights inherent in the human person which are not expressly referred to therein (art. 94).
88. On the basis of these provisions of the Constitution, the Constitutional Court, in its ruling on the constitutionality of Protocol II of 1977 Additional to the Geneva Conventions of 1949, applied and developed the originally French theory of a constitutional body of law ("bloque de constitucionalidad") and has raised it to the status of constitutional jurisprudence. In accordance with the Court's jurisprudence, international treaties in the field of international human rights law and international humanitarian law to which Colombia is a party form, together with the Constitution, a single body of law, i.e. they are integrated with the Constitution itself in what may be described as one "block". Accordingly, the State, the Government and public officials cannot fail to take cognizance of any of the rights and guarantees set forth in such treaties.
89. Right to life, guarantees of the right to life and abolition of the death penalty. The death penalty does not exist in Colombia; it was abolished in 1910. The 1991 Constitution stipulates that there will be no death penalty and states in its preamble that the people of Colombia, represented by their delegates, promulgate the Constitution for the purpose, inter alia, of ensuring life to the members of the nation. Article 11 stipulates:
90. The Constitution provides that the authorities are established in order to protect the lives of citizens and safeguards the right to life as a fundamental right through the remedy of protection, which was introduced to protect fundamental rights by guaranteeing a prompt, efficient and effective legal defence.
91. The internal armed conflict, the drug traffic, the excesses committed in connection with subversive and counter-subversive activities, private justice, common crime and impunity, as well as poverty, are some of the country's most compelling problems. All are linked to the phenomenon of violence. Many etiological, historical and sociological analyses have been made of the violence in Colombia, an endemic problem which is as old as the country's history as a republic and has been at a high level for the last four decades. At the same time, the Government and non-governmental organizations continue their many efforts to build a society in which conflicts are settled without the use of force.
92. Significant progress has recently been made by the Government in strengthening institutional and legislative mechanisms to build a country in which harmonious relations and social justice prevail. It is obvious, however, that such legal support is not enough to build the country to which all aspire; also needed is the unswerving determination of the Government to implement a set of policies aimed at restoring a sense of citizenship, reconciling the people with the Government, bringing about a negotiated peaceful settlement of the internal armed conflict and reducing significantly the high levels of poverty that afflict millions of Colombians.
93. Since he assumed office in August 1994, the President of the Republic, Ernesto Samper Pizano, has taken a clear stand on the responsibility of the State to protect and promote human rights. The Government recognizes that there have been abuses and arbitrary behaviour by some public officials and, in an effort to curb, prevent and penalize such behaviour, has put into effect a set of measures, some of which were mentioned earlier, while others will be discussed below. One important way of coming to grips with the problem of human rights violations is to try to determine its exact dimensions. The statistics produced by non-governmental organizations in Colombia tend to misrepresent the proportions of political violence and human rights violations by public officials, through improper handling of the indicators, as seen earlier. What is certain is that the figures show that some of the most serious types of human rights violations have begun to decrease and we cannot but point to this fact as an encouraging sign, in the midst of a very complex picture.
94. Recognition of the difficult human rights situation in Colombia is a basic tenet of President Samper's humanitarian policy. This has been the foundation of the Government's policy, which is aimed at curbing the phenomena that are conducive to violence and its attendant human rights violations; punishing those responsible for the violations; and using all possible means to guarantee respect for and promotion of the human rights, especially the right to life, of all the inhabitants of the national territory.
95. With regard to its relations with non-governmental human rights organizations, the Government promotes an open-door policy for individuals and organizations specializing in the promotion and protection of human rights, which it considers to be its partners in the task of guaranteeing the fundamental rights of the inhabitants of the national territory. It seeks to maintain constructive relations with human rights bodies in trying to eliminate violations and, for its part, will spare no effort to protect the lives and integrity of their members.
96. In accordance with these principles, the Government sponsored two important consultations with non-governmental organizations during the period under review. The first took the form of the National Human Rights Commission, which was established by Decree No. 1533 of 1994 (referred to above as annex 10) and recessed in late 1995 as a result of a decision by the non-governmental organizations, and the second, the Commission for the Clarification of the "Trujillo Case", Inter-American Commission on Human Rights, case No. 11007.
97. It should be noted that the 1994-1998 National Development Plan contains a specific section on human rights and that this is the first time in the country's history that human rights have been explicitly referred to in the Development Plan and included among its priority tasks. Despite these efforts by the Government, the fact that so many violent attacks take place in Colombia cannot be ignored; they have made Colombia the world leader in statistics on violent deaths, with an annual rate of nearly 80 violent deaths per 100,000 inhabitants, by far the highest in the world. The extent and nature of the State's responsibility for this horrible statistic may be debatable, but a theoretical discussion of this problem does not mean that recognition of the situation can be avoided.
98. In order to deal with this situation, the Government is promoting a decisive human rights policy, whose main programmes and legislative and administrative measures are described below:
Government policy for strengthening the system of justice focuses on the following areas:
(a) Technical and human resources support to make the system more efficient and streamline judicial departments;
(b) Promotion of access to judicial and legal services and the administration of justice: citizens' access to such services will be made easier and out-of-court conciliation mechanisms will be widely promoted. A citizens' counselling service is also planned;
(c) Crime prevention and social rehabilitation as the central feature of prison policy;
(d) Organization of medical, legal and psychological assistance programmes for victims, with special emphasis on minors;
(e) Construction and renovation of prisons.
On 15 November 1994, the President of the Republic issued Presidential Directive No. 04 ordering officials of the executive branch of Government to help create conditions favourable to conciliation procedures at the pre-trial or trial stage in proceedings against the nation, with a view to relieving pressure on judicial departments and enabling them to operate promptly and economically.
The Public Prosecutor's Department has issued a decision establishing the National Human Rights Procurators Unit, whose purpose is to expedite investigations into serious violations of human rights and international humanitarian law;
The Unit is responsible for coordinating and monitoring the investigatory functions carried out by the Judicial Police;
This measure reflects the high priority given by the Public Prosecutor to the investigation of human rights violations and is an important step forward by the country in combating impunity.
Other measures adopted by the Government of Colombia are the following:
Special Commission for the investigation of the violence in Trujillo;
In March 1994, the Ministry of Defence established a commission for the reform of the Military Criminal Code, whose work focused on the following areas:
Adoption of the adversarial system;
The following are some recent legislative bills aimed at the protection and promotion of human rights:
(a) Bill on the adoption of the Inter-American Convention on Forced Disappearance of Persons
The Organization of American States Convention was submitted to the Congress of the Republic for approval, without reservations, in 1994. Congress did not complete the process. The Government intends to resubmit the bill, which it regards as being of fundamental importance, to Congress for consideration.
(b) Act No. 62 of 1993, on the reform of the National Police
Act No. 62 of 1993 introduced a reform of the National Police. The following are among its most significant elements:
(c) Bill on compensation
The Ministries of Foreign Affairs and Justice, the Legal Department of the Office of the President of the Republic and the Office of the Presidential Adviser for Human Rights submitted a bill to the Congress of the Republic "providing for compliance with the recommendations of intergovernmental human rights organizations on compensation for loss or injury". The bill is currently under consideration by the Senate.
(d) Implementing Decree No. 173 of 1993
This decree contains regulations governing the "Pre-trial Administrative Conciliation" mechanism provided for in Act No. 23 of 1991. Decree No. 173 of 1991 provides for compensation for mental and physical injury caused by public officials, through an expeditious procedure involving participation by the Government Procurator's Office and the approval of an agreement between the parties by the administrative court, which decides the matter within a period of not more than two months.
(e) Justices of the peace
The bill relating to the justices of the peace defines the scope of the justices' competence and the procedures to be followed by them in mediating minor conflicts within the community.
(f) Access to justice without a lawyer
This bill before Parliament is intended to enable individuals to carry out a series of steps and procedures relating primarily to the administration of justice, without need of a lawyer.
(g) Enforcement proceedings
This bill has been submitted by the Government to the Congress of the Republic. Its purpose is to institute rules governing the constitutional provision (art. 87) which enables individuals to appear before the judicial authority to demand the application of a law or the fulfilment of an administrative act. It is currently being processed by the legislature.
(h) Material responsibility of the State
This bill provides for the possibility of State claims for restitution from a public official who is guilty of an act or omission that had a bearing on the injury caused. It is due to be submitted to the Congress of the Republic shortly.
(i) Single disciplinary code
The following are among the most significant aspects of this recently adopted law:
(j) Statute of the Administration of Justice
This bill lays down regulations governing the constitutional provisions on the organization and jurisdiction of the judiciary. Among the proposed regulations are the remedy of direct compensation for unsatisfactory performance of judicial services and the civil liability insurance policy required of all members of the judiciary.
The Ministry of Defence ordered the establishment of the Office for Human Rights and Political Affairs of the Ministry of Defence and that of human rights and international humanitarian law offices in all military garrisons and police stations. To date, 126 human rights offices have been established within the army, 5 in the navy and 3 in the air force; offices have been established in the Police Department, the Department of Military Intelligence, the Narcotics Division, the 33 local police departments and the 15 police training schools.
With regard to the police, Act No. 62 of 1993 assigned the National Police Commissioner the function of instituting disciplinary and criminal investigations against members of the police force if necessary and sponsoring prevention policies.
8. National Communications Network for the Protection of Human Rights in Colombia
In order to streamline the handling and processing of cases of human rights violations, the Government, in cooperation with the Government of the Netherlands, has put into operation the National Communications Network for the Protection of Human Rights, which will use information technology to supply prompt information to the bodies responsible for investigating and monitoring human rights violations.
The project will design, develop and implement a comprehensive information system which will collect data on human rights violations throughout the national territory and send information to bodies with competence and capacity to investigate and/or punish human rights violations.
This is an initiative aimed at crime prevention and respect for human rights through coordinated action by the national, departmental and local authorities and the public.
The Citizens' Security Plan is intended by the Government to modernize the police and make it more professional by expanding the reform introduced in Act No. 62 of 1993, emphasizing its civilian nature and its preventive action and promoting a closer and more positive relationship with the community.
10. Programmes for resolving specific regional and social situations of violence and human rights violations
The Government plans to pay special attention to the regions and communities hardest hit by violence by promoting inter-agency and policy coordination schemes aimed at promoting harmonious relations.
It should be noted that one of the objectives of the Act on the Reorganization of the Ministry of the Interior is to provide the Ministry with the tools for promoting harmonious relations at the local, regional and national levels and improving the institutional response to the needs of citizens in order to defuse conflicts that adversely affect human rights as a whole.
Efforts will also focus on strengthening human rights at the local level, through promotion and education activities for building up local promotion and protection bodies such as municipal councillors, human rights committees and groups and other kinds of associations.
The inappropriately named "paramilitary" or "self-defence" groups have traditionally been connected with the peasants' reaction to guerrilla attacks. In recent years, however, the drug traffic has played an important role in the problem by establishing armed groups to serve its interest and to take over large stretches of land.
According to a study by Alejandro Reyes Posada (a researcher with a National University's Institute of Political Studies) entitled "Geography of violence in Colombia", in 67 per cent of the municipalities where military groups are present, there has also been an increase in the rate of land acquisition by drug traffickers.
The Government is concerned about persistent reports of participation by State officials in the activities of such organizations, which is nearly always the choice of an individual or a small group of officials rather than a "counterinsurgency strategy".
The Government intends to deal with this problem on several fronts, as follows:
(a) Small Arms Amnesty Act, which is to be submitted by the Executive to Congress for consideration and will contain specific rules;
(b) Revival of existing legal mechanisms prohibiting hired killers and private justice (Decrees Nos. 813, 814 and 815 of 1989);
(c) Study by the Ministry of the Interior on the offer by some private justice groups to enter into a dialogue with the Ministry with a view to their disbandment and in preparation, according to the Minister, for turning themselves over to the system of justice;
(d) Establishment by the Public Prosecutor's Office of specialized units for investigating offences committed by private justice groups.
Human rights education for the police force is aimed not only at providing instruction on the body of universal legislation governing harmonious relations in society, but at creating the conditions necessary for the observance of that legislation out of a personal ethical and moral conviction that will prevent abuses and cover-ups in the mistaken belief that these are necessary for the protection of military honour.
It is a well-known fact that confrontation has serious effects on the psychological structure of the individuals directly involved, creating confusion and causing some officials to see a contradiction between the strict observance of ethical standards and the strategic and tactical objectives of the military. The escalating brutality of the fighting in Colombia creates a desire for vengeance and reprisals as a result of the pain and hatred that barbarous acts would make any human being feel. This is the breeding ground for political violence. Under these circumstances, some officials have committed human rights violations in the belief that they were acting on behalf of the nation.
In view of this problem, the Government, through the Ministry of Defence and the Office of the Presidential Adviser for Human Rights, is assessing human rights education programmes for the police and armed forces in an effort to design an ambitious educational project aimed at getting police officers to adopt the cause of human rights as their own so that abuses will be curbed and punished and, above all, so that further abuses will not be committed.
In pursuance of these goals, the Ministry of Defence has set itself the long-term strategic objective of promoting and strengthening a human rights culture and ethic within the police and armed forces. Human rights should not be perceived as an antimilitary or anti-institutional issue. In addition to broadening the cultural outlook of the members of these forces, learning about and observing human rights will have a positive effect on the discipline and professionalism inherent in it.
The following policies have been implemented in order to achieve this objective:
(a) "Special campaign for human rights observance", aimed at army personnel and police officers at the national level; the methodology of this educational campaign consists of holding regional seminars to consider cases of violations of human rights and international humanitarian law as a basis for group reflection and discussion. The campaign is sponsored by the Ministry of Defence and the Office of the Presidential Adviser for Human Rights and is run by a team of professionals;
(b) Mass production of teaching materials for all military garrisons and police stations, such as posters and pamphlets. As part of this information campaign, the basic rules of human rights and international humanitarian law were printed on a card, which all the soldiers carry in their pockets;
(c) Training seminars for human rights instructors in the training schools for commissioned and non-commissioned officers of the national army, run by the Office of the Presidential Adviser for Human Rights in coordination with the Military Weapons and Services School;
(d) Human rights training workshops as part of the advancement courses for uniformed and non-uniformed police officers and special courses for members of the Judicial Police;
(e) Participation of the Ministry of Defence in all situations that may be used to publicize and formulate human rights promotion and protection policies.
(a) Formulation of a special programme to facilitate the task of the International Committee of the Red Cross of gathering up-to-the-minute information on detentions and arrests throughout the national territory;
(b) Formulation of a special programme for the protection of witnesses in trials involving human rights violations and persons at risk or those whose personal integrity is under threat for ideological or political reasons;
(c) Systematic efforts to find persons missing for political reasons
and formulation of a programme to centralize information on missing persons and unidentified corpses.
On 23 August 1994, Presidential Decree No. 1533 of 1994 established the Human Rights Commission as a body for the coordination of policies and measures for the protection of human rights.
The Commission brought together the most representative governmental and non-governmental sectors with responsibilities and interests in the field. In a constructive and enterprising spirit, these sectors set themselves the task of holding discussions to reach consensus on the most important human rights topics.
Background
As part of Peace Agreement concluded on 9 April 1994 between the Government and the Corriente de Renovación Socialista (Socialist Renovation Movement (CRS)), a guerrilla group that has demobilized and re-entered democratic civilian life, it was decided that the Office of the Presidential Adviser for Human Rights would hold a forum to analyse the proposals submitted by the CRS during the negotiations;
Pursuant to that mandate, the Office of the Presidential Adviser for Human Rights and the CRS agreed to establish a Preparatory Committee for the Forum so that, from the outset, all sectors concerned with human rights would be involved in discussing and identifying solutions to the problem;
The Forum, called "Human Rights: Goals and Proposals", was held on 21 and 22 July 1996; 450 people took part; work was divided among four committees dealing with four central topics: peace policies, international humanitarian law, protection of human rights and impunity;
The constructive and enterprising nature of the event produced a broad consensus on initiatives relating to the areas discussed.
Establishment and functions of the National Human Rights Commission
Presidential Decree No. 1533 of 18 July 1994 established the Human Rights Commission, the main purpose of which was to continue developing the topics and proposals of the above-mentioned Forum and spell out their details to the extent necessary for agreement and approval;
The Commission was established for a period of six months, extendable once, and was in fact extended.
Composition
Article 3 of Decree No. 1533 stipulated that the Human Rights Commission would be made up of: the Director of the Administrative Department of the Office of the President of the Republic, the Minister of the Interior, the Minister of Defence, the Minister for Foreign Affairs, the Presidential Adviser for Human Rights, the Presidential Adviser for Peace, the Presidential Adviser for Defence and National Security, the Public Prosecutor, the Attorney General, the Ombudsman, the Director of the Colombian Red Cross, a representative of the Colombian Episcopal Conference, the Representative of the International Committee of the Red Cross, and a representative of each of the following human rights non-governmental organizations: Citizens' Initiative for Peace; Andean Commission of Jurists, Colombian Section; Standing Committee for the Defence of Human Rights, International Working Group for Human Rights; as international observers: Inter-American Commission on Human Rights, Chargé d'Affaires of the Kingdom of the Netherlands.
In accordance with its functions, the Commission has agreed to accept the following other bodies as members: Ministry of Justice, Sole Workers' Federation (CUT), People's Research and Education Centre (CINEP), Association of Retired Army Officers, Corporación Utopias, National Department of Planning, Committee on Solidarity with Political Prisoners and the Human Rights Committee of the House of Representatives.
Functions
The Commission has an Executive Committee made up of governmental and non-governmental bodies, the CRS and the Government Procurator's Office.
The basic rule for decision-making is that decisions are adopted by consensus.
To process and analyse the problems with which it is concerned, the Commission initially established four working groups dealing with the same topics dealt with by the above-mentioned Forum:
Peace policies;
International humanitarian law;
Protection of human rights; and
Impunity.
For the second phase, after an assessment of the work accomplished, it was decided to use a new methodology consisting of the establishment of technical groups to analyse disagreements and do further work on insufficiently treated topics.
All member bodies of the Commission participate in the work of each Working Group.
The plenary met once a month to be informed of and discuss the Working Groups' progress.
Assessment
This was the most extensive attempt ever made in Colombia to find collective and coordinated solutions to the human rights problem.
The discussions were not devoid of healthy debate, but there was a constructive and positive feeling on the whole.
Although consensus could not be expected on all the matters dealt with, the Government had hoped that this exercise in coordinating the complex human rights problem would lead to some basic agreements on practical measures as a result of initiatives by civilian and military, governmental and non-governmental sectors.
The Commission is currently in recess owing to a decision by the non-governmental organizations to withdraw in order to express their disagreement with the emergency measures taken by the Government at the end of 1995. The Government hopes to complete the process with the coordinated preparation of a final assessment of activities and results.
In order to fulfil the highest obligation of the Colombian State to avoid wars and humanize any armed conflicts that take place within its territory, the Government has implemented a peace policy that aims to find new ways of negotiating with armed insurgent groups and has made significant progress in humanizing such conflicts.
As already stated, the Government of Colombia has the political will to seek a negotiated political solution to the internal armed conflict affecting the country and assures the United Nations Human Rights Committee that it is willing to establish contacts and hold talks with the armed insurgent groups. The international community can keep itself informed and seek ways of contributing to this process through the Committee. Despite the foregoing, however, the Government of Colombia cannot fail to fulfil its constitutional obligation to maintain and restore law and order in the country and defend national unity and the territorial integrity of the State by all legitimate means; to that end, it will use every means made available to it by the Colombian Constitution and the laws to carry out its mandate under the Constitution through the legitimate use of force.
In his statement on taking office, President Ernesto Samper indicated that he was willing to negotiate with the guerrilla movements, appointed a High Commissioner for Peace and called on all citizens to cooperate in building harmonious relations.
In pursuance of these objectives, the Colombian Congress adopted Act No. 171 of 1994, by which Colombia accedes to Protocol II Additional to the Geneva Conventions of 1949, approved by the President of the Republic on 16 December 1994. Additional Protocol II of 1977 entered into force for Colombia on 15 February 1996.
The Government's humanitarian policy is more ambitious still. The President has proposed that the guerrilla groups should observe some minimal rules of conduct, as prescribed by international humanitarian law, and is prepared to ask the armed forces and the police to observe the same rules and to hold discussions with the armed insurgent groups on verification mechanisms which might be supervised by the Government Procurator's Office or the International Committee of the Red Cross.
The President of the Republic accepted the proposal by the High Commissioner for Peace that a preparatory phase for possible negotiations should start on the basis of the following guidelines:
The process should be discreet and confidential;
Despite the fact that the presidential initiative did not strike a responsive chord with the guerrilla groups, the Government is prepared to continue its peace efforts in the full knowledge that peace is an essential prerequisite for effectively guaranteeing all citizens the most fundamental human right: the right to life.
The Government has been working to strengthen international cooperation mechanisms, which have a positive effect on the human rights situation. International cooperation should be based on objectivity, reciprocity, balance and respect for national sovereignty.
Following this approach, President Samper's Government has taken account of the recommendations made by various intergovernmental organizations and will continue to take them into account in designing its human rights policy.
It has a careful review of the country's situation with regard to international human rights law and international humanitarian law for the purpose of determining the extent to which they are being implemented and designing appropriate measures.
The Government formally invited Amnesty International to open a permanent office in Colombia. This proposal was made by the Minister for Foreign Affairs to Mr. Pierre Sané, Secretary-General of Amnesty International, during his visit to the country in November 1994. The purpose of the invitation was to enable Amnesty International to adopt a direct and sensible approach to human rights in Colombia so that its evaluations might help to design solutions that would benefit the country.
Mr. Francis Deng, Representative of the Secretary-General on internally displaced persons, visited the country in July 1994. In October 1994, at the invitation of the Government, the country was visited by Mr. Bacre Waly Ndiaye, Special Rapporteur on extrajudicial, summary or arbitrary executions and Mr. Nigel S. Rodley, Special Rapporteur on the question of torture appointed by the the United Nations Commission on Human Rights. During their stay in Colombia, the Special Representative and the Special Rapporteurs had the opportunity to speak with governmental authorities, various non-governmental human rights organizations and other sectors of civil society.
The United Nations High Commissioner for Human Rights, Mr. José Ayala Lasso, also accepted an official invitation by the Government to visit the country and meet with State authorities and non-governmental human rights organizations. This visit was held from 11 to 16 December 1994. The President of the Republic requested the High Commissioner to open an office in Colombia. To this end, Mr. Ayala Lasso appointed Mr. Philippe Texier and Mr. Carlos Villán Durán to determine the matters to be dealt with by the Colombia office as a matter of priority. Mr. Texier and Mr. Villán Durán visited the country in August 1995. On the basis of a statement made by the Chairman of the United Nations Commission on Human Rights at its fifty-second session, the High Commissioner for Human Rights was requested to open the Colombia office. Preparations for and negotiations on the necessary basic agreements are now under way.
The Government considers these visits to be especially important as steps forward in furthering cooperation with intergovernmental bodies and non-governmental human rights organizations.
To give effect to the recommendations of several members of the intergovernmental organization system for the protection of human rights, the President of the Republic issued Decree No. 1290 (annex 4) on 31 July 1995 "establishing the Commission for the analysis of and advisory assistance in implementing the recommendations of international human rights bodies". The Commission, which is composed of the Ministers for Foreign Affairs, the Interior, Justice and Defence, the High Commissioner for Peace, the directors of the National Planning Department and the Administrative Security Department and the Presidential Advisers for Defence and Security for Human Rights, is responsible, inter alia, for the implementation of the recommendations of the international human rights bodies and the experts appointed by them.
On 15 February 1996, an agreement was signed with the International Committee of the Red Cross, in accordance with the Headquarters Agreement adopted in 1980, governing ICRC's humanitarian activities in Colombia. ICRC has been working in the country since the late 1970s and has made a substantial contribution to protection and humanitarian assistance for the victims of the armed conflict.
President Samper's Government has also submitted several human rights cooperation projects for consideration by Governments and international organizations.
99. Prohibition of torture and cruel, inhuman or degrading treatment or punishment; prohibition of medical or scientific experimentation without consent. Torture and cruel, inhuman or degrading treatment or punishment are prohibited under article 12 of the Constitution, which stipulates:
100. Colombia adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment through Act No. 70 of 1986.
101. Torture is characterized as an offence in the section of the Criminal Code on offences against personal autonomy (art. 279) and carries a penalty of 5 to 10 years' imprisonment, unless the act constitutes an offence punishable by a heavier penalty.
The system of criminal justice characterizes torture as a circumstance that increases the penalty for the offence of abduction when it is committed against the victim of the principal offence.
102. In addition to these constitutional and legal provisions, there are safeguards designed to prevent the practice of torture in situations where a person is deprived of his liberty. Procedures relating to arrest and detention contain measures designed to guarantee the integrity of the person concerned during such time as he is deprived of his liberty. The new Code of Criminal Procedure (Decree No. 2700 of 30 November 1991) provides that terms of imprisonment are to be served in places and in the manner provided for by law (art. 45). Failure to comply with the legal requirements constitutes the offence of unlawful deprivation of liberty, which is taken as arbitrary conduct by an official. It is liable to a term of one to five years' imprisonment.
103. When a person is arrested, it must be placed on record that the arresting official stated the grounds for the arrest; and informed the person concerned of and facilitated his right to consult immediately with defence counsel and with the person to be apprised of the arrest. These measures are designed to prevent detention incommunicado by guaranteeing constant contact between the detainee and his lawyers and relatives as a means of helping to prevent torture and cruel and inhuman treatment.
104. In order to ensure that the arrest is carried out in accordance with these legal rules, provision is made for the remedy of habeas corpus (art. 430 of the Code of Criminal Procedure), which protects freedom when the rules have not been complied with or deprivation of liberty is extended unlawfully. When an unlawful arrest has taken place, the person concerned is entitled to the following guarantees:
(a) He may apply to any judge or magistrate in the place where the unlawful arrest occurred or the place closest to it so that the judge or magistrate may decide, within the next 36 hours at the latest, whether his release should be ordered; the application may be submitted to any judicial officer, but the proceedings are conducted exclusively by the criminal judge;
(b) The remedy may be applied for by third parties on the person's behalf, with no need for a power of attorney;
(c) The proceedings may not be suspended or postponed on account of holidays or court recesses.
105. Since promptness is of the essence in this regard, the decision-making process and action on the decision override any contingencies or circumstances which may delay the proceedings. Article 434 of the Code therefore prohibits the application from being referred to another judge.
106. Another important safeguard is that there are provisions which invalidate testimony, confessions or any other evidence obtained by torture. In this connection, the Code of Criminal Procedure states that the following constitute evidence: inspection, expert investigations, documents, testimony and confession.
107. Act No. 65 of 1993 introduced the new Penitentiary and Prison Code, which brings the penitentiary rules into line with the principles of the 1991 Constitution. It contains the basic principles to be applied in the enforcement of criminal penalties in a humane and modern way in keeping with the precepts of the Constitution and the international human rights instruments. This new legislation has made it possible to design a penitentiary policy based on the guiding principles of equality and respect for human dignity. These legal precepts ensure the observance of the International Covenant on Civil and Political Rights in legislation relating to the penitentiary system. Articles 5 and 6 of the Act stipulate that there shall be respect for human dignity in all detention centres and respect for constitutional guarantees and universally recognized rights, and prohibits all forms of psychological, physical or mental violence. The Act also states that penalties have a protective and preventive function and that their ultimate goal is resocialization, treatment, protection and rehabilitation of the individual who has committed an offence.
108. An inmate is held incommunicado only in the following cases:
(c) As punishment. In such cases, it may be ordered only for 60 days, with entitlement to two hours a day outside, and under the supervision of the prison doctor;
Other legislative measures
109. Article 60 of the Attorney General's Office Organization Statute (Act No. 201 of 1995) assigned the Office of the Procurator for the Defence of Human Rights the following main functions:
(a) To hear in first instance disciplinary proceedings in connection with human rights violations in cases of genocide, massacres, multiple killings, enforced disappearances and torture, as well as serious violations of humanitarian law, committed in the exercise of their functions by members of the Ministry of National Defence, the Armed Forces, the National Police and other public officials;
(b) Ensure the protection of human rights in prisons, judicial and police premises and psychiatric institutions, so that inmates will be treated with respect for their dignity and will not be subjected to torture or other cruel, degrading or inhuman treatment and will receive proper legal and medical assistance and hospital care. When it determines that a violation has taken place, it shall institute the appropriate proceedings.
In view of the nature of torture, the law assigned specific jurisdiction to the Office of the Procurator for Human Rights without regard for the rank or organization to which the accused person belongs. Torture was also distinguished from other offences to be investigated and punished as violations of human rights, such as personal injury cases, which are heard by other services in the Government Procurator's Office.
110. Because the Public Prosecutor was concerned about the human rights of accused persons, and in particular of citizens, in relation to the criminal investigation powers of some officials, he established the disciplinary regime provided for in chapter I, section VII, of Decree No. 2699 of 1991, the Organization Statute of the Public Prosecutor's Office, according to which torture is a disciplinary offence against human rights (art. 21 of Decision No. 017 of July 1992).
Judicial remedies
111. In 1993, the Constitutional Court declared that some of the decrees issued in connection with the state of internal disturbance, including the one which restricted the exercise of the right of habeas corpus (the essential mechanism for preventing torture), were unenforceable in proceedings before the regional courts, as was the decree ordering that mobile criminal investigation police units should be set up comprising members of the armed forces.
112. An important precedent in this regard is the judgement of 16 December 1987 by which the Council of State confirmed the ruling declaring the Ministry of Defence administratively responsible for the mental and physical injuries suffered by Dr. Olga López de Roldán, who had been tortured on military premises in 1979. In a judgement of 5 February 1988, the same high court declared the Ministry of Defence responsible for the death of Marcos Zambrano, who had been tortured by military personnel in 1980.
113. As regards political measures, in December 1991 the Government set forth its comprehensive policy to combat all types of violence affecting the country, including torture. This policy was embodied in the document entitled "National Strategy against Violence", which gives details of inter-agency coordination activities and the areas of jurisdiction of the various government bodies in respect of the strengthening of justice and policies to deal with different types of violence and with the protection and promotion of human rights.
114. Concerning whether an order by a superior or public authority may be invoked as justification for torture, article 91 of the 1991 Constitution stipulates:
Article 91 of the Constitution relates to the constitutional responsibility that lies with any authority who specifically violates a fundamental right to the detriment of an individual, thereby incurring each and every type of legal responsibility (criminal, disciplinary, civil or administrative), and who may not cite in justification an order, albeit a lawful one, received from a higher authority. Military order and discipline dictate an exception to this constitutional rule for members of the armed forces on active service, in whose case responsibility lies with the superior who gave the order. Nevertheless, this exception may not be interpreted as justifying torture, since the right to physical integrity, as has been observed, is inalienable and may not be suspended under any circumstances.
115. The classification of torture is dealt with in article 256 of the Military Criminal Code, which covers both physical and mental torture. The article states:
116. With regard to the right of individuals to file a complaint and to have their case promptly and impartially examined by the competent authorities and to have measures taken to ensure that the person who has filed the complaint and any witnesses are protected against ill-treatment or intimidation arising from the filing of the complaint or testimony, it should be noted that, in the last two reports submitted by the Office of the Attorney General of the Nation on human rights, it was stated that, in view of the serious nature of the offence, complaints of torture undergo a very stringent investigation because the diversity of the alleged acts, which range from simple ill-treatment to torture proper, makes it extremely difficult for the investigator to determine whether he is dealing with a case of bodily harm or a case of genuine torture. In either case, however, the preliminary proceedings to establish the facts and the identity of the perpetrators are the responsibility of the Special Investigations Bureau, a subdivision of the Office of the Attorney General with criminal investigation powers and personnel trained for this type of investigation.
117. It should be noted that the biggest increase in human rights complaints by ordinary citizens to the Office of the Attorney General has concerned torture, reported acts of which increased by at least 23 per cent in 1993-1994 compared with 1992, according to the analysis of the data recorded in the most recent report on human rights submitted by the monitoring body.
118. It is worth noting in this regard that, according to the report from the Human Rights Data Bank of the Centro de Investigaciones de Educación Popular (Popular Education Research Centre) (CINEP), 21 cases of torture were reported in Colombia between January and October 1994.
119. During the period covered by this report, 58 complaints of torture were submitted to international bodies by residents of Colombia. The competent national authorities conducted the appropriate investigations to ascertain the truth of the acts rep