ON THE SITUATION OF HUMAN RIGHTS
TO A FAIR TRIAL AND DUE PROCESS /
The national Constitution of Colombia recognizes the legal guarantee of
right to a fair trial and to due process. Article
26 of the Constitution reads: “No
one may be tried except in conformity with laws enacted prior to the commission
which he is charged, by courts having competent jurisdiction, and in accordance
with all formalities proper to each case. In
criminal matters, a permissive law or law favorable to the defendant, even if
enacted after the commission of the alleged offense, shall be applied in
preference to a restrictive or unfavorable law.” /
Furthermore, Title XV of the Colombian Constitution deals with the
administration of justice and its structure and operation.
The 1979 constitutional reform made substantial changes in this area.
Also, Article 170 of the Constitution of Colombia establishes military
jurisdiction in the following terms: “Courts-martial or military tribunals
shall take cognizance, in accordance with the provisions of the Military Penal
Code, of all offenses committed by military personnel in active service, and in
relation to that service.”
Before, during and after the on-site investigation, the Commission
received claims referring to irregularities in the functioning of the justice
system and due process in Colombia. These
claims have been processed in accordance with the Commission’s Rule of
B. The Ordinary Justice System
The ordinary justice system is the responsibility of the judicial branch
of Government. According to the Constitution, justice is a public service
that is the responsibility of the nation. Title
XV of the Constitution regulates the structure and operation of the
administration of justice, as is discussed in Chapter I of this report.
The 1979 Constitutional reform made significant changes in Colombia’s
judicial system. Among these were
the establishments of the Office of the Attorney General and the Superior
Council of Judicature. The latter
has, in addition to other powers, the functions of administering the judicial
service, seeing to it that justice is administered and enforced promptly, and
ruling on conflicts of competence that arise between different jurisdictions.
In the area of the judicial branch of Government, this reform also gives
the government the power to establish judicial offices in accordance with
corresponding legislative measures and to establish the territorial area of the
judicial districts and circuits. Article
62 of the 1979 reform states: “As
from January 1, 1981, the national Government shall invest no less than ten
percent of the general expenses budget in the judicial branch and the Public
Ministry.” Furthermore, for the
purpose of carrying out the constitutional reform, a draft organic law for the
Office of the Attorney General of the Republic was prepared. This proposal was submitted to the congress of the Republic
for approval. The law gives the
Office of Attorney General very important functions in connection with the
administration of justice. In
addition to other powers, the office is responsible for prosecution of crimes
and accusation of suspects before the respective authorities, exercise of
overall direction of the judicial police, supervision of the execution of legal
measures handed down by criminal judges during the processing of the case,
without prejudice to the constitutional powers of the office of the Procurator
General of the Nation, conducting criminal suits before the Supreme Court of
Justice involving public officials being tried by that body, exercise of
criminal action in cases taken up by the Supreme Court of Justice on the grounds
of responsibility for violation of the constitution or laws, or for improper
conduct of office against high state officials, and in the crimes taken up in
the first instance by the Supreme Court of Justice, and the investigation and
accusation of persons must be done by delegates of the Attorney General,
following the rules of the penal procedure code.
In addition, it is also empowered in cases involving responsibility for
criminal violations committed by senators and representatives in the case of
Article 75 of the National constitution, for investigating these facts and
making accusations to the Supreme Court of Justice.
The Constitutional reform of 1979 was supplemented by the passage of a
new penal code and a new code of criminal procedure.
analysis of the structure and operation of the ordinary penal justice system in
Colombia is given in a document from the Ministry of Justice, dated January 16,
1981, which was provided to the Commission.
This document reads as follows:
present penal procedure code of criminal procedure recognizes a combined system,
with a clear emphasis on the inquisitorial criminal procedure system.
The new statute on penal procedure that will be issued on January 29
adopts the accusatorial system, as provided for in Legislative Act. No. 1 of
1979 which established the basic structure of the institution of the Attorney
General of the Nation.
the current system, judges conduct the investigation, rule on the case presented
and if they find that it has merit, hear the case and issue the corresponding
verdict. Under the new system, the
investigation will be the responsibility of the Attorney General of the nation
by himself or trough his agents who will also be responsible for determining
whether to indict the alleged criminal or not and bring him before the judicial
organ which will be responsible for trying him.
is important to note that in both the current and the future systems under our
fully democratic constitutional structure, there is a separation of branches of
Government. The judicial branch is
independent of the executive in the choice of its members and in the taking of
its decisions, which can be seen easily in a simple reading of our
For greater guarantees to the members of society, judicial officials also
have disciplinary control exercised by two institutions, which are also
independent of the executive branch. These
are the Superior Council of Judicature and the Office of the Procurator General
of the Nation.
In the two systems, the officials responsible for administering criminal
justice, in descending order, are:
Penal appeals section of the Supreme Court Justice.
Penal sections of the Superior Courts of Judicial
Superior Customs Court.
Criminal Instruction Judges.
Justice of Minors.
special cases the administration of justice is exercised by the senate
(impeachment of highest state officials) or by military courts.
also has, in both the old and the new system, the democratic institution of
trial by jury in criminal cases.
certain crimes of great importance, the democratic spirit in Colombia penal law
is such that essentially political crimes such as rebellion and sedition are
judged by a jury in both the old code and the new.
simple study of our constitutional standards such as Article 26 as well s those
articles of the present and future codes of criminal procedure leads to the
conclusion that Colombia’s juridical structure guarantees fully the right to a
fair trial. The accused, from the
very moment that he is apprehended or captured, must be assisted by legal
systems state how the investigation official must look for the facts and
circumstances that establish and point to the responsibility of the accused as
well as those that exempt the person and extinguish or attenuate that
is important to note how the new system that will adopt the upcoming code, by
leaving the investigation and the indictment to the Attorney General or his
agent, eschews any prejudgment on the part of the judge.
This constitutes a greater guarantee of impartiality for the accused
point that should be recalled here is how the Attorney General of the Nation is
an integral part of the Public Ministry and is totally independent of decisions
of the executive branch. /
The National Convention of Magistrates and Judges was held in Bogotá in
November 1980, with representative’s form 21 departments of the country.
This convention examined the situation of judicial power and the
participants discussed and adopted motions on the state of insecurity and lack
of protection for public servants in the justice system.
The national Association of Public Officials and Employees of the
Judicial Branch remitted to the Commission several of the motions discussed at
the convention as well as the conclusions adopted. /
C. The Military criminal justice
Military penal jurisdiction is based, as already stated, on Article 170
of the Colombian National Constitution which reads, “Court martial or military
tribunal shall take cognizance, in accordance with the provision of the Military
Penal Code, of all offenses committed by military personnel in active service,
and in relation to that service.”
Furthermore, Article 58 of the Constitution states, “Justice is
administered by the Supreme Court, by the higher district tribunals, and by such
other tribunals and lower courts as may be established by law.”
The oral court-martial operates on the basis of these constitutional
provisions. The oral court-martial
were established in the military criminal justice code, as were those that have
been given responsibility for trying civilians for the commission of certain
crimes when the public order is declared disturbed and a state of siege is
declared for all or part of the national territory so that they may exercise
those functions on an extraordinary basis. /
The Supreme Court of Justice has stated its opinion on the constitutional
nature of the military courts and the legality of their trying civilians for
crimes committed, on an exceptional basis.
In a finding dated August 13, 1979, the Supreme Court of Justice held
that the military criminal justice system “expands its competence to try
common crimes by authorization of the constitution itself,” adding, “Article
61 of the constitution allows, during a state of siege, the extension of
military justice to the trying of common crimes when they have some connection
with the disturbance of public order or with the causes that have led to the
that ruling, on which the court based its opinion on Decree 1923 of September
26, 1978 which promulgates the Security Statute, the Court recalled its ruing of
August 13, 1970 on this same matter in which this highest court of the land set
forth its doctrine in the following terms:
Article 170 of the constitution establishes courts-martial and military
courts for the military penal system as an integral part of the branch of public
power which has responsibility for administering justice; Article 58, for its
part, includes in the judicial branch all other tribunal and courts that he law
may establish; including among the latter are oral courts-martial created by
Decree 250 of 1958 and law 141 of 1961. Finally,
article 61 of the Constitution allows, during a state of siege, the extension of
military criminal jurisdiction to try common crimes that have some connection
with the disturbance of order or with the causes that have led to the unusual
the Military tribunals are also an establishment of the Constitution, as are
ordinary judges, the simple transfer of competence from the judges to the
tribunals for the trial of certain common crimes during the state of siege,
using the procedures of military justice, does not imply the establishment of ad
hoc tribunals or the subjection of persons accused to newly developed
procedural stands since they are enshrined in the pre-existing law.
justice expands its competence to judge common crimes by authorization of the
Constitution itself. /
In an analysis of the Ministry of Justice of Colombia relating to the
military criminal justice system, which was turned over to the Commission, the
following is stated:
Military Criminal Justice Code is enshrined in Decree 250 of June 11, 1958 and
it takes up: 1) crimes and punishments in general; 2) military crimes and
punishments; 3) jurisdiction, competence and organization of the military penal
justice system; 4) procedures that should de in effect for the investigation of
crimes and for the expedition of military penal sanctions.
By the Supreme Court of Justice
By the Superior Military Tribunal
By the judges of First instance
By the presiding officers of the oral court-martial
By the officials of the military criminal instruction
advocates are the legal advisors of the judges of first instance.
the cases, as in ordinary cases, the Public Ministry acts as the representative
of society’s interest.
and second Instance Court exists, as do ordinary and extraordinary appeals.
the terms of Article 121 of the national Constitution, the Government may, in
cases of war, armed conflict, disturbance of the public order or domestic
strife, declare a state of siege an in the exercise of the powers that this
unusual Government situation confers on it, rule that certain crimes committed
by civilians and therefore subject to the competence of the ordinary justice
system be judged by the military penal judicial system for as long as the state
of siege last.
is a special system of governing in out juridical structure but it is important
to note that the trials conducted by the military penal justice system though
oral courts-martial are conducted with all constitutional guarantees and the
fullest respect for the right to a fair trial.
In these court-martials, evidence is advanced and refuted freely, and the
verdicts are independent. Without the slight4st error, one can say that the
findings of trial juries are equivalent or similar to those of the officers of
to that same Article 121 of the National Constitution, decrees issued by the
Government on the basis of the powers of the state of siege are revised by the
Supreme Court of Justice (a body totally independent of the executive) for
purposes of determining their constitutionality. This system protects human rights and individual liberties.
present trials of civilians, who may have committed certain crimes, by the
military criminal justice system, exist because of decrees issued of the basis
of the state of siege, decrees that were declared expressly constitutional by
the Supreme Court of Justice.
The Commission has received several documents criticizing the operation
of the military criminal judicial system, especially the fact that this justice
is military in nature and that it judges civilians under unusual circumstances
of disturbance of the public order and implementation of the state of siege.
These documents state that the armed forces are exercising a growing
influence in the administration of justice through the existence of the oral
courts-marital. During the on-site
investigation, in response to the Commission’s concern with this matter, the
president of the congress of the Republic stated that trial in these types of
courts is done for the sake of the quickness that characterizes them and that in
Colombia the true power rest in reason and truth and in the existence of a state
of law and a pluralistic democratic system.
A document given to the Commission by the Colombian government makes the
are taken precisely from the common or ordinary code; for example, in both
provisions, including the new penal procedure code, the Supreme Court of Justice
has the same functions such as trial of high state officials as well as those
relating to appeal and review cases; the Superior Military Tribunal is composed
of fifteen (15) magistrates of whom twelve (12) are civilian attorneys and three
(3) military attorneys, who, to hold those positions, must meet the
constitutional and legal requirements of the regular justice system to be the
magistrates of judicial district courts; the judicial district court has ten
(10) prosecutors, all of whom are civil attorneys who must meet the same legal
formalities required of those who hold this position in the ordinary justice
system. The functions of this court
are the same as those established in the normal rules for judicial officers of
We should note that the Government’s assignment to the military penal
justice system, of the trials of crimes against state security has been declared
constitutional by the Supreme Court of Justice.
Furthermore, it should be made clear that the courts-martial or the
military courts are constitutional in origin, are not ad hoc
institutions, but institutions that have been legally recognized since 1910 in
Article 170 of the Colombian constitution.
It is not too much to note, also, that the findings handed down by the
Superior Military Tribunal are also subject to the extraordinary remedies of
appeal and review by the penal section of the Supreme Court of Justice.
D. Oral court martial
In the present state of affairs in Colombia, that is, a situation in
which a state of siege is in effect since the public order was declared
disturbed by Decree No. 2131 of October 7, 1976, oral courts-martial are
functioning in accordance with a military criminal justice code.
The power to convoke oral courts-martial is the responsibility of the
judges of first instance mentioned for the procedure of courts-martial, with the
same jurisdiction and competence, and such convocation can be given whether or
not a prior investigation exists. These
courts-martial are composed of a presiding officer, three officers, a
prosecutor, a legal advisor and a secretary.
With the exception of those cases called for in the code, the second
instance for all cases heard under military justice is the Superior Military
Tribunal. The extraordinary
remedies are appeals and review. The
second instance verdicts handed down by the Superior Military Tribunal in cases
involving crimes whose punishment entails the deprivation of liberty of five
years or more may be appealed within fifteen days following the date of
notification or the moment of notification.
This remedy may be used, processed and ruled on for the reasons and
according to the standards of the penal procedure code.
In criminal matters tried by the military criminal justice system, the
case may be reviewed for the reasons and in accordance with the rules of that
same code. /
In recent months, civilians accused of belonging to different subversive
movements have been tried by oral courts-martial for crimes included under
Legislative decree No. 1923 of September 6, 1978, the decree that promulgates
the Security Statute. Article 9 of
this statute states: “The
military penal justice system, through the procedure of oral courts-martial and
the competence conferred to it by current legal provisions, shall try the crimes
refereed to in Articles 1, 2, 3, 5, 5, and 6, in addition to those committed
against the life and personal security of the members of the armed forces and
against civilians in the service of the armed forces and against members of the
Administrative Department of Security (DAS), whether or not in the performance
of duties, and against public officials by reason of their public office or the
exercise of their functions.” /
The Office of the Procurator General of the Nation, in its condition of
Public Ministry, has accredited delegates to be present at the oral
courts-martial. The Commission
received from that office documents containing several communications in which
the designated attorneys reports on completion of their mission in connection
with the oral courts-martial of the alleged members of the M-19 and the FARC.
The Commission has proven that despite the exceptional status of trials
of civilians by military courts, some of these take an excessively long time.
One of these was the case of the oral courts-martial held at La Picota
penitentiary in Bogotá. Others are
conducted rapidly, as was the oral court-martial in the area of Ipiales, which
ended in May 1981.
By Decree No. 2482 of October 9, 1979, the Government of Colombia amended
Article 574 of the Military Criminal Justice Code.
This decree established that when there is a prior investigation, only
the opinion of the judge advocate, which is discussed in Article 567 of that
code, and other procedural pieces that the attorneys may request, should be
read. That amendment also states
that when a prior investigation exist, the oral court-martial shall heard the
reports of the examination officer without allowing the accused person or the
defending attorneys to be present. When
this decree was adopted, several attorneys submitted petitions of
unconstitutionality of the infringed on the right to due process legally
recognized in Article 26 of the national Constitution by eliminating the reading
of evidence. In its finding of
December 3, 1979, the Supreme court of Justice declared the decree
On March 12, 1980, the President of the Republic appointed a committee to
recommend “to the executive, legal procedures that can be adopted to shorten
the duration of cases being tried in oral courts-martial.”
As a result the Colombian Government issued Decree No. 536 of March 14,
1980. This decree, declassed
constitutional by the Supreme Court of Justice, reads as follows in Article 1:
“When there is a prior investigation, the proceedings in oral
courts-martial shall be as follows: After the court is installed and the
provisions of Article 573 complied with, the finding of the judge advocate
provisions of Article 573 complied with, the finding of the judge advocate which
is discussed in article 567 of the Military Criminal Justice Code shall be read,
along with such other documents as the prosecutor, the attorneys, the accused
persons or the court officers may request.”
This way, the reading of documents becomes optional in nature by those
involved in the trial. /
In the agreement reached between the government of Colombia and the
Commission through an exchange of notes dated April 23 and 24 1980, it is stated
that the Commission or its authorized representatives may exercise freely, under
the terms of law, throughout the whole of the national territory all its
functions and the following activities, in addition to others:
Have complete freedom to speak with attorneys representing
persons being tried in the cases before the oral courts-martial and all those
subject to military justice.
Be present at, under the conditions of the law, the oral
courts-martial and assur4e itself of the procedural guarantees and their legal
conduct, and also have the power to submit to competent authorities any
observations that it may consider appropriate to avoid any violation of the
rights of those being tried.
the terms of this agreement, the Commission, through its members and the
attorneys of its office of Executive Secretary, has been observing the public
stage of the oral courts-martial in Colombia at different times since the month
of April 1980. This procedure has
complied with the agreement reached in this area with the Colombian Government.
Commission has opened four multiple or joint cases relating to the oral
courts-martial: No. 7348 on the Movimiento 19 de Abril
(M-19) which has 107 claims; No 7375 on the Fuerzas Armadas
Revolucionarias Colombianas (FARC),
35 claims; No. 7605 on the Ejército de Liberación Nacional (ELN), six claims;
and No 7818 on the Oral Court-Martial held in the city of Ipiales, also relating
to theM-19. The Commission has
processed these cases in accordance with its rules.
The Government of Colombia has furnished the Commission with statistical
data on the cases being tried under military justice system.
These data are:
1980, the military criminal justice system conducted three hundred thirty-four
(334) oral courts-martial for different crimes, some of which such as rebellion
were political, while others were common crimes such as extortion, kidnapping,
blackmail, homicide of public officials, robberies of firms and persons, and so
on. These cases show not only the
speed but also the effectiveness of the military criminal justice system in
providing the procedural guarantees and requirements of first and second
instance courts and guarantees and requirements of first and second instance
courts and for cases before the Supreme Court of Justice, as provided by law.
the specific situation of cases involving political crimes, to demonstrate the
speed of this judicial form, the following cases of courts-martial between 1980
and 1981 can be mentioned. The
duration of these trials was twenty (20) days to (2) months.
of twenty-one members of the Auto Defensa Obrera Subversiva Movement
(ADO) held in Bogotá.
of 31 members of the M-19 subversive movement held in Melgar (Toledaima).
of nine members of the Pedro Leon Arboleda Subversive movement (PLA) held in
of 13 members of Court-martial of 25 members of the Pedro Leon Arboleda
Subversive movement (PLA) held in) held in Pasto.
of 25 members of the Pedro Leon Arboleda Subversive movement (PLA) held in
of 35 members of the M-19 Subversive movement held in Bucaramanga.
of 14 members of the Fuerzas Armadas Revolucionarias de Colombia subversive
movement (FARC) held in Villavicencio.
of six members of the so-called Brigada Negra, part of the Ejército de Liberación
Nacional Subversive movement (ELN) held in Medellín.
of 66 members of the M-19 subversive movement held in Ipiales started in
mid-April of this year, which lasted no longer than ten (10) days.
E. Oral Court Martial: M-19
Through officials of its office of Executive Secretary, the Commission
was present for the sentencing at the Oral Court-Martial, which tried and
sentenced three persons accused of belonging to the M-19 subversive movement. /
This court-martial was held
in Cali in June 1980.
The oral court-martial of alleged members of the M-19, including high
officers of this movement, held in the city of Bogotá, was in the preliminary
or investigation state until February, 1981.
This part of the trial is private. According
to the terms of Article 497 of the Military persons who may participate are the
investigation official, the trial judge and his secretaries, the individual
agent of the Public Ministry, the accused, his attorney, and the civil party, if
Under the terms of the agreement reached with the Government of Colombia
in April, 1980, from March 1981 on the Commission was able to be present
regularly through its members and staff officials, at this case held at the
facilities of La Picota Penitentiary in Bogotá.
During the on-site investigation, as one of its initiatives, the
Commission requested the Government to provide information on this oral
court-martial. The Commission has
received 202 special forms, one for each of the accused.
These forms contain the name of the accused person, the address, date of
arrest, date of unsworn statement, the data of the arrest warrant, the date of
trial, the current status of the detained person, including the name of the jail
where he is located, and the charges against him, as well as the legal
provisions invoked by the state.
In addition, the Commission met with and took claims from alleged members
of the M-19 being held at the La Picota central Penitentiary in Bogotá.
It has also talked with and taken information from their defense
attorneys. As a result of these
charges, it opened multiple case No. 7348, which is being processed in
accordance with the pertinent rules of the Commission.
In January, 1981, an official of the Executive Secretariat of the
Commission met with the presiding officer and the prosecutor of this oral
court-martial. The staff member
gathered information about the following points:
The oral court-martial was convoked for November 16, 1979,
and was installed on November 21. Its
distinguishing feature is the oral argument procedure used on the basis of
Article 586 of the Military Criminal Justice Code. This article provides, “All proceedings in the oral
courts-martial are oral and the only written documents are the minutes, the
indictments and the sentence unless it is absolutely necessary to add some other
document. However, summaries of the
oral arguments of the parties may be added.
The appointment of the defense attorney and their statement
lasted from November 22 to December 14, 1979 to August 5, 1980.
Evidence was taken from August 11 to October 27, 1980.
The races for preparation of indictments began October 27, 1980.
And ended January 13, 1981. The
readings if indictments took place on January 13, 1981.
From January 13 to February 12, 1981, the briefs were transferred to the
prosecutor and to the defending attorneys.
The estimated starting date of the public stage is some time during the
month of February 1981.
In all, 166 accused persons were present when the
court-martial began. Ten additional
persons who were listed as absent prisoners were arrested and included later,
bringing the total number of persons detained to 176;
Of the 176 detained, as mentioned above, two persons were
referred to the common justice system. These
were Mr. Victor Vivanco and Mrs. Alba Nelda Gonzales Sousa, both Uruguayans.
The presiding officer of the court-martial explained that the transfer
from the military justice to the common justice system was done in view of the
fact that their conduct consisted of falsehood and not rebellion.
This conclusion was reached as a result of the legal study of this case.
It was added that, under the terms of the Colombian juridical structure,
this falsehood falls under the competence of a Superior Court Judge of the
common system and this case was transferred
to Superior court Judge 28 of Bogotá;
Of the 176 persons mentioned, 34 were set free during the
preliminary proceedings due to insufficient evidence. Of the remaining detainees, indictments were prepared against
115 and 26 were set free insufficient evidence to bring them to trial.
In this connection, the presiding officer of the court-martial stated
that there was enough proof to detain them, as had been done, but not enough to
try them or to prepare an indictment against them.
For a guilty verdict, full proof and the corpus delecti
of a crime were required;
Furthermore, of the 176 persons, Mr. Sergio Betarte Benitez
was separated from the M-19 case since Benitez, an Uruguayan, was not involved
in the rebellion but only in a kidnapping as a separate crime. Therefore,
this accused was referred to the Military Institutes Brigade because the act or
the crime of which he was accused was committed in Bogotá.
This was the kidnapping of Mr. Miguel de German Ribon on March 25, 1978.
It was added that this crime falls under the competence of the Military
Criminal Justice System in accordance with decree 2260 of 1976, which assigned
to the military justice system of public order and state of siege.
It was also stated that this determination was made on the basis of
Article 311 of the Military Criminal Justice Code in accordance with Article 577
of that same code. /
With respect to the absent prisoners, the trial started
with 53 in this category of whom 25 were put on trial.
Of the total, 29 were not tried since their legal status was resolved.
The defense attorneys involved in this case totaled 45, all
of them civilians who were responsible for defending the accused attorneys, 15
in all, who were military personnel. Most
of them were attorneys and law students, as was already explained.
The prosecutor of this oral court-martial stated that he
has been performing his duties for 15 months, since November 21, 1979, in
accordance with Article 375 of the Military Criminal Justice Code which reads as
follows: “The public Ministry
represents the interests of society. Those
who are its staff members must seek the punishment of persons responsible for
crimes and the defense of innocent parties; they should request that all
necessary proof be taken and intervene in the formalities and actions of the
The prosecutor also stated that contrary to the common
justice system, where several prosecutors can be appointed, according to a
decision of the Procurator general of the nation, under the military penal
system, there is only one military prosecutor for each court-martial, as state
in Article 568 of the Military Criminal Justice Code. /
Furthermore, as a result of the conversation between the presiding
officer and the prosecutor of the oral court-martial of the M-19, the following
information on this case was turned over to the Commission:
The court-martial was convoked by means of resolution No. 15 of November
16, 1979, by the command of the Military Institutes Brigade. It was installed on November 21, 1979 at 9:00 a.m.
and special characteristics
The court-martial proceeded as provided in Decree Law 0250 of 1958—the
Military Criminal Justice Code—Fourth Book, Title VI, Chapter II, procedure of
oral court-martial, whose distinguishing feature is the oral nature of the
Installation November 21, 1979
Appointment of defense attorneys November 22,1979 to
And taking office
December 14, 1979
Reading of case files December 17, 1979 to
August 5, 1980
Submission of evidence
August 11, 1980
October 27, 1980
Recess to prepare indictments
October 27, 1980
January 10, 1981
Reading to prepare indictments
January 13, 1981
Transfer of brief to prosecutor and January 15, 1981
February 13, 1981
Possible start of public stage
February 16, 1981.
Accused persons present for start of trial
Accused persons missing but arrested during the
Accused persons present sent to common justice
Accused persons present not tried and set free during
Accused persons present and tied
Accused persons present not tried and set free
Accused persons absent at the start of court-martial
Accused persons absent and called to justice
Accused persons absent not tried and legal status
Civilians defense attorneys involved in case
Infractions of law being tried
Robbery of arms, deposit,
General Command of
Dec. 31, 1978 and
Jan. 1, 1979
B. Kidnapping and death of
Dr. Nicolas Escobar
May. 29, 1978 and
Jan. 3, 1979
c. Kidnapping of Dr. Miguel de German Ribon
Mar, 25, 1978
kidnapping of Nicaraguan Ambassador
William Barquero Montiel
May, 10, 1978
Death of Police agent Victor
Caldas de Bucaramanga neighborhood
Kidnapping of physicians Carlos Garcia Orjuela
And Miguel Antonio Cuervo Escobar, at the
Nov. 22, 1978
Kidnapping of Mr. Alberto Uribe Gomez, Manager
Of the newspaper El Caleno and the seizure of
Apr. 16, 1979
Kidnapping of employees of Radio Duitama and
Vendedores de Duitama, and seizure of the
Sept. 13, 1979
Seizure of vehicles of Bon Ami coffee and
Lechesan Dairy Products Company, Bucaramanga.
Aug. 31, 1977 and
Feb. 18, 1978
Robbery of six mimeograph machines and other
Equipment owned by the OFCO Ltd. Co. of Bogotá
Nov. 8, 1978
Seizure of Uniroyal Croydon S.A. offices
Aug. 16, 1978
Seizure and robbery of arms from the
Armecol Ltda. Armory.
Apr. 17, 1978
The claims received and processed by the Commission in connection with
case 7348 on the M-19 make mention of certain aspects pertaining to the right to
a fair trial and due process. The
bodies of these claims mention the following points:
Violation of Article 28 of the Constitution by being forced to give
unsworn statement without defense attorney.
Inability to present any type of defense because the detained person was
Given unsworn testimony before a military court-appointed attorneys;
Failure to comply with Article 28 of the Constitution by not taking
testimony from witnesses;
Loss of procedural evidence and judicial rulings;
Total prevention from presenting any type of defense during the
Taking unsworn statement without attorney and adding words not spoken by
the detained person;
Failure to meet time periods to resolve the legal status of the person
Forcing persons to confess to acts of which they are accused without
these acts being criminal in nature;
Interrogation without an attorney who was not allowed to be present;
Refusal of the court to request the Council of Ministers to say whether
the arrest warrant existed;
Complete halt of the summary proceedings, with serious prejudice not only
to the parties or persons involved, who endured the rigors of delayed justice,
but to proper administration of justice and the society which has always viewed
military justice as a rapid and expeditious means of investigation and
punishment of crimes. Commissioning
for examination a judge from a locality other than the place in with there being
a military criminal instruction court in this place.
Lack of authorization for transfer of the judge and the detained persons
to the place in which the acts attributed to the accused persons were committed.
Preventing access of defense attorneys to the process.
Unlawful and arbitrary interference by military authorities, which
violated the right to a fair trial, and which the penal law itself does not
allow. Preventing the attorneys
involved from having access to the court by order of military authority.
The instruction judge called for the taking of evidence but this was not
carried out, for which reason there was no proof of the charges made.
Lack of proof of the acts investigated and of the full proof required
condemning, under Article 44 of the Military penal Statute, since no proof
existed, not even to detain. These
points are made in the claims relating to Rodrigo Castillo, Nelson Figueroa
Moncaleano and Ancizar Morales. These
points are included in the communication sent on march 28, 1979, to the
commanding officer and the senior judge advocate of the Eight Brigade and in the
communication sent May 8, 1980 to the presiding officer of the oral
court-martial, both by the defense attorney, Camilo Correa Cardona, relating to
the process for alleged violation of Decree 1923 to 1978:
Maintaining the accused persons for periods of more than ten days without
being placed under the order of competent judge;
Interrogation before a secretary without the presence of a judge or
Presentation of habeas corpus without any response;
Appointment by the judge of the lieutenant who directed the raid as
defending attorney, at the time of the detention.
The Government of Colombia has been responding to the request for
information from the Commission regarding these claims.
In this sense, some of its answers regarding the right of a fear trial
and due process are as follows:
Nelson Figueroa Moncaleano, Ancizar Morales and Rodrigo Castillo
These persons were placed at the disposal of military criminal
instruction judge 22 on February 15, 1979.
Their unsworn statements wee taken of February 29, 21 and 22
respectively. The first was
counseled by Dr. CAMILO CORREA CARDONA and the other two by the court-appointed
attorney, Second Lieutenant ULISES CANO PEREZ.
Their legal status was resolved by declaring that they were to be under
preventive detention of February 24, accused of the crime of rebellion. The
terms of Article 431,434 and 437 of the penal procedure code were followed.
Initially, during the interrogation carried out immediately after their
arrest, under the terms of Article 289 of the penal procedure, they confessed
their involvement of he judicial police. They
confirmed this to the judge and their defense attorney on the first occasion.
They retracted these statements in later expansion of their statements.
The File on NELSON FIGUEROA MONCALEANO notes that he had been tortured
physically or psychologically but, since there were no signs of violence on him,
the judge did not find any merit in starting an investigation into this matter.
As for ANCIZAR MORALES, he noted in his statement that he was neither
beaten nor threatened at any time. As
for RODRIGO CASTILLO, he too noted in his unsworn testimony that he had not been
hit or mistreated seriously but that he had only received injuries.
Even though the investigation was conducted by a judge who is located in
the city of Manizales, the procedures followed in the investigation were normal.
Rather than trying to delay the case, the Eighth Brigade wanted to complete the
investigation quickly, considering that the city of Armenia had only Military
Criminal Instruction Judge 33 who was in charge of several cases.
The charges state that one decision, a resolution of the General command
of the Military Forces, settled several cases.
Basically this was a matter of settling on a single judge since several
judges were involved in this case because it related to a single unlawful act
carried out throughout national territory with many perpetrators.
The purpose was to comply with the principle of non-bis in idem
(one act cannot have two legal consequences), and because Article 315 of the
Military Penal Code disposed of the matter that way.
At his point the commanding officer of the Military Institutes Brigade
was appointed to hear the entire case. In
consequence, this is not an attempt to have one decision settled different cases
because there was only one case against the three accused persons in question.
The purpose was simply to prevent the accused persons from appearing at
the case in Bogotá and also at the case in Armenia.
It is also alleged that here is not full proof against the accused
persons. This matter should be
defined during the upcoming stage of the trial. The presiding officer of the
court-martial will, after the evidence stage, determine whether or not there is
merit to judge them. For cases
having merit, the background information will be analyzed later and if there is
not full proof, a guilty verdict cannot be handed Edwin under the terms of
Article 444 of the Military Penal Code.
It should be noted that this reply took into account the information
provided by the presiding officer of the oral court-martial.
This information noted only certain aspects but was not full enough to go
into great details because the preliminary proceedings are private.
Later the Honorable Inter-American Commission on Human Rights will be
able to gather more information during the upcoming public stage of the oral
Now, it should be mentioned that the principal argument for some of the
defense attorneys is to deny what was said during the interrogations and the
first unsworn statement. They state
that the confession was obtained by violence, without stopping to think that
mandate of our penal procedure, a confession does not constitute not full proof.
There is only a presumption of truth regarding the confession, according
to the provisions of Article 475 of the Military penal statute, “for as long
as no evidence is presented to the contrary, provided that the body of the crime
is fully proven.”
José Absalón Molina Zapata
This accused appeared voluntarily on May 23, at the Nueva Granada
batallion in Barrancabermeja (Santander). His
unsworn statement was taken June 7, 1979, by Military Criminal Instruction Judge
100. He was assisted by Second Lieutenant Jorge L. Mejía R., a
court-appointed attorney, under the terms of Article 431 of the penal procedure
code. He made no note of any type
about threats or mistreatment. The
judge, the accused, and the attorney sign the record and authenticated by the
secretary, without any changes or words added since there is no space to fill,
even between the lines.
The examining judge issued an arrest warrant on June 15, 1979, since
there was sufficient merit in accordance with Article 349 of the penal procedure
Carlos Augusto Erazo Murcia
This person gave unsworn testimony to
Judge No. 6 to the Military Penal Court on February 2, 1979.
His court-appointed attorney was lieutenant-attorney Martha Padilla de
Diez. He was placed under
preventive detention of February 7, accused of rebellion.
As for the mistreatment, this charge was found to have no merit since
there were no signs of personal injury.
The fact that he was interrogated without an attorney is legally possible
since this is a formality carried out by the judicial police freely and
spontaneously as part of the powers that those agents have, under Article
289.c.8 of the Penal Procedure Code. Even
though the interrogation has probative value, under Article 306 of the code, it
is not taken into account by military examining judges unless other evidence
supports it. As for the unsworn testimony according to the record he was
assisted by an officer attorney, and if he had denied the charges that would
have been so entered into the record.
Martin Beliesteros Robies
This person charged with rebellion, was captured on June 28, 1979, by the
troops of the Fifth Brigade. His
unsworn testimony was taken on July 13, 1979, by the Military Criminal
Instruction Court 100. He was assisted in that formality by Second Lieutenant Marco
Lino Romero Mosquera and is currently being counseled by Dr. Jorge Eliecer
In his unsworn statement, he makes no charges of having been tortured.
The office that carried out the investigation ruled on July 23, 1979 that
this person should be kept under preventive detention since there was sufficient
merit to do so, under the terms of Article 439 of the Penal Procedure Code.
Carlos Enrique Molina Zapata
Charged with rebellion. He was captured on June 5, 1979, by troops of the Fifth
Brigade and his unsworn testimony was taken on June 7 of the same year by
Military Criminal Instruction Court 100. He
was assisted in that formality by Captain Hernan Contreras and is currently
being counseled by Dr. Rafael María Barrios Mendivil. His statement makes no charges of having been mistreated.
The office that conducted the investigation ruled on July 15, 1979, that
he should be held under preventive detention since there is sufficient merit for
Jorge Eliecer Díaz Russi
Accused of rebellion.
He was captured on January 29, 1979, by troops of the Fifth Brigade and
his statement was taken on February 5, 1979, when he was assisted by Dr. Roberto
Trejos Aquiles. At this time he is
being counseled by Dr. Eduardo Carreño Wilches. In his own sworn statement, he makes no charges of
mistreatment and the record includes no such charge.
Military Criminal Instruction ruling dated February 7, 1979, since there
was sufficient merit for this under the terms of Article 439 of the Penal
Procedure Code. The record is
signed by the accused and his attorneys contradict his statements.
Mario Rincon Morales
Accused of rebellion. He
was captured on February 13, 1979, by troops of the Eight Brigade.
His testimony was taken on March 1, 1979, when he was assisted by
Lieutenant José Horacio Mendoza Samudio. The
examining court decreed that he be held under preventive detention in a ruling
issued march 5, 1979, since there was sufficient evidence, under the terms of
Article 439 of the Penal Procedure Code.
Starting October 21, 1980, he was given provisional liberty by the
presiding officer of the oral court-martial.
There is no record in his file of his having been mistreated.
Marlen Esther Linares Landinez
Accused of rebellion. She
was captured on February 23, 1979, and her unsworn testimony was taken on
February 27 of the same year by Military Criminal Instruction Court 106.
She was assisted by Lieutenant Julia Isabel Gantiva Arias. After the unsworn testimony formality was accomplished, the
examining court ordered that she be set free immediately and unconditionally.
Eduardo Loffsher Torres
Accused of rebellion. He was
captured on February 27, 1979, and his unsworn testimony was taken on March 20,
1979, by Military Criminal Instruction Court 47.
He was assisted by Dr. Gloria Lucy Zamora de Patiño, and is currently
being counseled by Dr. Jenaro Alfonso Sanchez Moncaleano.
In his unsworn testimony, he states that he was the victim of arbitrary
treatment. The Delegate procurator
General for the Military Forces conducted an investigation into this matter
following charges made by a committee of the Council of Bogotá.
Under the terms of a writ issued July 17, 1979, these formalities were
closed considering that there were not any grounds to undertake a disciplinary
investigation. The examining court
decreed that this person be held under preventive detention in a ruling issued
March 15, 1979, since there was sufficient merit for this, under the terms of
Article 439 of the Penal procedure Code.
Mrs. ESPERANZA INES ESPITIA ESTRADA, his wife, is free at this time since
there are no grounds for holding her.
Alfonso Castro Pedraza
Accused of rebellion. He was
captured January 3, 1979 and his sworn testimony taken January 11, 1979 by
Military Criminal Instruction Court 1. At
his time he was assisted by Dr. Alvaro Echeverry Uruburu.
The same attorney is still counseling him.
In his unsworn testimony, he states that he was mistreated.
The file contains a search and seizure order signed y Military Criminal
Instruction Judge 106 and the preliminary proceedings contain no record of his
ribs being broken.
The office of the Delegate Procurator General for the Armed Forces made
an investigation of the charges formulated by a committee of the Council of
Bogotá. Under a writ issued July
17, 1979, it was decided to close these formalities in view of the fact that
there was insufficient to begin a disciplinary investigation.
The examining court decreed that this persons should be held under
preventive detention in a ruling issued January 20, 1979, since there was
suficient merit for it, under the terms of Article 439 of the Penal Procedure
While attending the public stage of the court-martial of the M-19 being
held at the La Picota Penitentiary in Bogotá, the Commission gathered the
From February 19, to March 16, 1981, the court-martial was suspended on
two occasions due to disorders and interruptions caused by the persons on trial,
as explained by the presiding officer of the military court, Colonel Rafael Marín
The Public stage continued until the end of June, 1981, with the
statements of the court-martial prosecutor, Colonel Augusto Pradilla;
The defense attorneys stated that there is an accumulation of
competence’s, in conflict with Article 441 of the Military Criminal Justice
Code, and that during the first few days of the public stage, they had
challenged the prosecutor. In their opinion, the prosecutor showed ill will toward the
accused persons. The presiding
officer of the court-martial rejected the challenge;
They further stated that they had challenged the representative of the
office of the Delegate Procurator General for the Military Forces because they
believed that he had participated in several interrogations.
They added that this matter was resolved since that representative did
not return to the case and the Procurator’s office soon accredited a new
On March 23, 1981, the defense attorney, Dr. Aquiles Romero Trejos, asked
the presiding officer of the court-martial to release records naming the alleged
members of the M-19 killed in combat with military forces during that month in
certain parts of the country. He
also asked that the bodies be exhumed since he thought that some of them might
be among those listed in the court-martial.
This way, time could be saved and the family members of the dead persons
could be informed;
Several detained persons and their defense attorneys requested the
Commission to inquire whether Mr. José Buritica, who was convoked to this
court-martial as an absent prisoner, could be transferred to La Picota for this
purpose. The presumption was that he was being detained in Pereira.
The Commission made these inquiries to the Colombian government;
On March 25, 1981, the presiding officer of the court-martial requested
the respective authorities to place at his disposal those persons detained in
military operations in the southern part of the country.
He also asked that he be informed as to whether any of those listed in
this military court were among the dead. Later
on, several of the persons detained in the aforementioned military operations
were transferred to the La Picota penitentiary in Bogotá to appear before this
court-martial. Among them were
important M-19 leaders such as Carlos Toledo Plata and Rosemberg Pabon Pabon;
Both the court-martial authorities and the defense attorneys gave the
Commission’s delegates the cooperation they needed to carry out their work.
Oral Court Martial: FARC
At different times the Commission observed the public stage of the Oral
Court-Martial of the FARC which was held in Bogotá at the Baraya Batallion.
This court-martial was concluded in March, 1981.
Commission attorneys were present proceeding during the months of April,
May, June, July and August of 1980 and January of 1981.
During some of these observation periods, the attorneys were present
during presentation of evidence and arguments by the prosecutor and the
counter-arguments by the defense attorneys.
They were also present when an objection was raised to the presiding
officer of the oral court-martial. During
the discussions both the prosecuting attorney and the defense attorneys spoke at
length and freely to explain their points of view.
On different occasions the accused offered their comments.
With respect to several of the accused, the central question in their
individual cases seemed to hang on confessions they made or the accusations made
by others. In situations such as
these, the defense attorneys insisted that several of these statements were
invalid since they had been obtained by unlawful physical mistreatment and
psychological pressures. It was also observed that a delegate from the Office of the
Procurator General of the Nation attended the trial regularly.
During the on-site investigation, the Commission received complaints from
detained persons accused of belonging to the FARC and opened a multiple case,
No. 7375, and processed it in accordance with its rules.
Furthermore, the Commission spoke with authorities form different areas
about this oral court-martial, with the presiding officer, the prosecutor, the
court officers and the defense attorneys for the purpose of gathering all
possible information for the performance of its work.
At the request of the Commission, the Colombian Government turned over
special data sheets on 51 persons, with the name of the accused person, address,
date of capture, date of interrogation, date of arrest warrant, date of trial,
current status of the person, as well as the name of the jail where he is being
held and the charges against him, and the legal provisions invoked by the State.
Furthermore, the defense attorneys informed the Commission, in January,
1981, that besides the oral court-martial being held in Bogotá, several other
court-martial had been held or were bout to be held to try the FARC, Two of
these were in Medellín, one with 36 tried persons, who ere found guilty, and
the other with approximately 16 accused persons.
Two courts-martial had been held in Tunja, with a total of 16 persons on
trial. There was one court-martial in Cali, with four persons on
trial, one in Bucaramanga that was still to be convoked, for 12 persons, and
another in which one person had been found guilty.
There was one court-martial in Villavicencio with five accused persons,
one court-martial in La Dorada, that was still to be called, for some 17 accused
persons and another court-martial to be held soon in Armenia, with approximately
14 persons on trial.
In January 1981, a Commission attorney had a long interview with the
presiding officer and the prosecutor of the oral court-martial being held in
Bogotá. The following points were
made during this meeting:
The accused are being held at the Model Prison close to the Baraya
Batallion where the trial is being conducted;
Both the press and the family members of those detained
had access to the public stage of this court martial;
In total, 50 indictments were prepared against the accused persons, of
whom 40 were present and ten absent. Of the 40 present, ten were set free
because they had already served their sentences and one was released for reasons
of ill health. The defense
attorneys numbered 20, all of them civilians;
Among the incidents in the trial were two challenges made to the
presiding officer of the military court which came from the defense attorneys.
The first of these was rejected while the second was accepted;
It was explained that there are two types of appeals, one of which is
suspensive and the other returnable;
The statements of the defense attorneys lasted eight months and eight
At one point, in late July and early August 1980, an incident occurred
which led to the suspension of the public stage of the court-martial and the
start of private hearings, which lasted a month.
The presiding officer of the court explained that that decision was taken
for reasons of public order since there was news of subversive activities in
several parts of the country and talk of greeting the persons on trial by
bringing pressure to bear against those trials.
He added that the suspension was done under terms of Article 552 of the
meetings of the court-martial shall be public unless the presiding officer, for
reasons of morality or public order, shall decide otherwise.”
The prosecutor of this oral court-martial stated that in late April 1980,
several press organs released information to the effect that he had recognized
the existence of tortures. He
maintained that he never said such a thing but had merely repeated what an
accused person had said and had stated that there had been talk of torture,
which should be investigated and that the investigations had been conducted. He also stated that the charges made by the prosecution are
based on legal evidence, “man carrying out his duty before the judge,” and
that as prosecutor, he did his best before the judge so that the charges would
have full validity. He also stated
that in his position as agent of the Public Ministry, he requested a verdict of
guilty for forty of the persons on trial and acquittal for ten.
The presiding officer of the oral court-martial stated that the FARC has
been in existence with that name since 1959 but has been acting as an armed
movement in rural areas since 1949. Over
the past twenty years there have been both common justice and military justice
trials involved the FARC. He also stated that since 1978, only two oral
courts-martial have been held one in Medellín and the other in Bogotá, of
which he is the presiding officer. /
As a result of this conversation, the Commission received a document
dealing with the proceedings of the oral court-martial of the FARC, containing
the following information:
The oral court-martial was convoked under the terms of resolution No. 196
of November 2, 1979, by the commanding officer of the Military Institutes
The court was installed on November 5, 1979 at the facilities of ANTONIO
BARAYA Engineers Batallion No. 1, and was presided over by Colonel RUDDY
CASTELLANOS PERILLA. The senior
officers were LUIS LEONEL BERNAL JARAMILLO, LUIS EDUARDO RAMIRES GALLEGO and
JOSE ORLANDO SALAZAR GIL. The
prosecutor was Colonel FAROUK YANINE DIAZ, the legal advisor, Dr. ALEJANDRO H.
GUTIERREZ PRIETO and the secretary, Sargent JAIR TRUJILLO.
After all the evidence had been presented, the prosecutor was allowed to
take the floor for a single opportunity to speak.
This started on April 15, 1980 and ended on April 30, 1980.
In other words, his statement was long enough to deal with the entire
case, as can be seen in the minutes that were kept.
On April 30, once the prosecutor had concluded his remarks, Dr. HUMBERTO
CRIALES DE LA ROSA had the opportunity to speak but as soon as he was given the
floor by the presetting officer, Dr. ALVARO ECHEVERRY URUBURU asked whether
several aspects relating to the statements of the defense attorneys could be
clarified. After this, the defense
attorney Dr. Criales de la Rosa was allowed to speak.
He requested that on May 5, of that same year, his clients MANUEL
CASTILLO RUISECO, MAXIMO EDUARDO CRUZ PUENTES and JOAQUIN SANCHEZ LINARES be
allowed to speak, and was done in that order.
On December 3, 1979, the presiding officer of the court-martial Colonel
RUDDY CASTELLANOS PERILLA and the legal advisor, Dr. ALEJANDRO H. GUTIERREZ
PRIETO, were challenged. Initially,
this challenge was resolved against the petitioners on that same day.
The challenge had been referred to the immediate superior officer, the
commanding office of the Military Institutes Brigade, for decision.
The challenge was taken up in a meeting on December 6, 1979 and the
grounds on which the challenge was made were refuted.
As a result, Colonel CASTELLON PERILLA continued as presiding officer and
Dr. GUTIERREZ PRIETO as legal advisor.
On May 8, 1980, while
defense attorney HUMBERTO CRIALES DE LA ROSA was speaking, he made a new
challenge to the presiding officer of the court-martial, Colonel RUDDY
CASTELLANOS PERILLA, and this was also referred to the commanding officer of the
Brigade. In a ruling of May 30,
1980 the commanding officer stated that Colonel RUDDY CASTELLANOS PERILLA would
be removed as presiding officer and replaced by Colonel OTONIEL ESCOBAR
CIFUENTES, under terms of resolution 061 of that date.
The new presiding officer assumed his office in due order.
On August 25, 1980 (minutes, folio 913), Dr. HUMBERTO CRIALES DE LA ROSA,
while making an inquiry, used it to challenge the presiding officer of the
court-martial, Colonel OTONIEL ESCOBAR CIFUENTES, because a new schedule had
been set for the sessions. The
presiding officer decided that there were no grounds for impediment and
therefore, according to legal procedure, the incident was referred to the
commanding officer. On September 9,
the commanding officer of the Military Institutes Brigade declared that the
objections were unfounded and that Colonel ESCOBAR CIFUENTES would continue as
In the session of July 11, 1980, Drs. HUMBERTO CRIALES DE LA ROSA, DIDIER
MARTINEZ MOLINA, ARNULIO CRUZ, HERNAN SUAREZ SANZ, CARLOS J. DUICA, HERMELINDA
CASTELLANOS JUTINICO, JOSE MIGUEL ARIAS LONDONO, HERNANDO REYES SANTOS,
HERIBERTO CARDOSO PALMA, JOSE DEL CARMEN GUTIERREZ and CARLOS MORENO NOVOA asked
for nullities of a constitutional, legal and supranational nature by invoking a
number of provisions. In the
exercise of his powers, the presiding officer of the court-martial rejected all
of them, advancing special considerations of a juridical type for each of them
on July 15.
As for the appeals that were made of many decisions by the presiding
officer, it was maintained that these were not in order during the public stage
of the oral court-martial, which began with the installation of the court, in
this case November t, 1979. In the
end the de facto remedies that were granted were referred to the
Honorable superior Military Tribunal. A
member of this court handed down a judicial ruling backing the opinion of the
presiding officer, that is, that during court-martial hearing remedies against
decisions are not in order since this juridical act is a single, indivisible but
complex act, in the words of the Honorable Supreme Court of Justice.
On August 5, 1980, when Dr. HERNANDO REYES SANTOS was speaking for the
defense, he proposed that Article 417 of the Military Code relating to the
cessation of the entire process are applied.
According to him, the legal measure that benefited FABIO AUGUSTO
ARANGUREN, JOSE ALVARO RODRIGUEZ LINARES AND EDUARDO DELGADILLO BRAVO, handed
down by Superior Judge 30 of the common justice system, also had a favorable
effect on his clients and all the others who appeared before the court-martial.
This petition was supported by attorneys VICENTE CALVO CASTILLO,
HERMELINDA CASTELLANOS JUTINICO and HECTOR AGUIRRE CASTILLO.
Dr. CARALOS DUICA also referred to this petition and requested that it be
transferred to the agent of the Public Ministry so that the presiding officer
could decide on termination of the trial. On
August 11, the presiding office stated that the request to halt the judicial
action was out of order and ruled that the court-martial should proceed.
The American Convention on Human Rights, specifically Article 8 on
the right to a fair trial, reads as follows:
“1. Every person has the right to a hearing, with due guarantees
and within a reasonable time, by a competent, independent and impartial
tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of
his rights and obligations of a civil, labor, fiscal, or any other nature.
2. Every person accused of a criminal offense has the right to be
presumed innocent so long as his guilt has not been proven according to law.
During the proceedings, every person is entitled, with full equality,
to the following minimum guarantees: a) the right of the accused to be
assisted without charge by a translator or interpreter, if he does not
understand or does not speak the language of the tribunal or court; b) prior
notification in detail to the accused of the charges against him; c)
adequate time and means for the preparation of his defense; d) the right of
the accused to defend himself personally or to be assisted by legal counsel
of his own choosing, and to communicate freely and privately with his
counsel; e) the inalienable right to be assisted by counsel provided by the
state, paid or not as the domestic law provides, if the accused does not
defend himself personally or engage his own counsel within the time period
established by law; f) the right of the defense to examine witnesses present
in the court and to obtain the appearance, as witnesses of experts or other
persons who may throw light on the facts; g) the right not to be compelled
to be a witness against himself or to plead guilty; and h) the right to
appeal the judgment to a higher court.
W. A confession of guilt y the accused shall be valid only if it is
made without coercion of any kind. 4.
An accused person acquitted by a non-appealable judgment shall not be
subjected to a new trial for the same cause. 5. Criminal proceedings shall
be public, except insofar as necessary to protect the interests of
justice.” Also, Article 9 of
the Convention on freedom from ex post facto laws reads as follows:
“No one shall be convicted of any act or omission that did not
constitute a criminal offense, under the applicable law, at the time it was
committed. A heavier penalty
shall not be imposed than the one that was applicable at the time the
criminal offense was imposed than the one that was applicable at the time
the criminal offense was committed. If
subsequent to the commission of the offense the law provides for the
imposition of a lighter punishment, the guilty person shall benefit
Article 27 of the constitution sets forth the following:
“The preceding provision shall not prevent the infliction of
punishment, without previous trial, in those cases and within the limits
established by the law, by: 1) Officials exercising authority or
jurisdiction, who shall have the power to punish by fine or imprisonment any
person in contempt of their authority while discharging their official
duties; 2) Military chiefs, who may inflict instant punishment in order to
subdue insubordination or military mutiny, or to maintain discipline in the
presence of the enemy; 3) Masters of vessels, who have the same power, when
not in port, to repress crimes committed on board their ships.”
Articles 1 to 5, inclusive, of the Proposed Organic Law of the Office
of the Attorney General of the Nation.
On September 17, 1980, law No. 22 was passed, “By which provisions
are issued to normalize the prompt and effective administration of
The newspaper El Tiempo of Bogotá, in its edition of January
10, 1981, published statements made the previous day in Medellín by the
Chairman of the Council of the State, Dr. Jaime Betancur Cuartas.
In these statements of the judicial branch of Government, Betancur
Cuartas said, “A State of law does not exist in Colombia; in fact, to the
contrary, a constitutional dictatorship has been consolidated.” “A
dictatorship exists because the powers are concentrated in the executive and
the legislate branches.” This
high state official, according to press information, also stated, “That it
is essential that 10% of the national budget be given to the judicial
branch.” He added, “Without
money, it will not be possible to put the reforms of the justice system into
practice.” According to the
same newspaper, “He insisted
that the state must serve the needs of justice and provide to this area of
Government power all the material elements is needs to carry out fully the
functions entrusted to it in the National Constitution.”
Several of the conclusions adopted by the convention are the
following: A) RELATING TO REFORMS OF THE CONSTITUTION AND THE CODES: 1) We
request greater publicity and information about the draft code of criminal
procedure and the office of the Attorney General of the nation.
2) We demand an opportunity to participate in the drafting of these
proposals. 3) We request that public forums on these topics be held
throughout the entire country. 4)
We demand that decisions on detention and liberty of persons, which are
eminently judicial, be kept in the judicial branch.
5) We demand a single statute for the judicial career service for he
judicial branch, the Office of the Procurator general for the nation and the
Office of the Attorney General, as quickly as possible.
6) We request elimination of the veto powers included in the scheme
for the Office of the Attorney general of the nation against officials who
have been sanctioned. We accept
the veto only for cases of unethical behavior and mismanagement.
7) We demand automatic incorporation of criminal instruction judges
into the Office of the Attorney General of the nation, and of their
employees. 8) We suggest that
it would be most advisable to schedule the date of entry into force of the
code of criminal procedure with that of the Office of the Attorney General.
9) We charge that the decree and the Judicial Emergency law were not
the correct remedy since the congestion of cases occurs in the indictment
stage and not in the proceedings; in addition, the regulations decree is
shortcomings that appear cannot, the, be attributed to the judicial branch.
10) We demand that present officials be kept in their positions after
the term of office has expired and until the entry into force of the
judicial career service in which these officials should be automatically
examinations should be carried out for future vacancies.
11) The list that the Superior Council of Judicature prepares should
be circulated to fill vacant positions in all courts; there should not be a
single list for each court. 129
The present prosecutors should be automatically included under the Office of
the Procurator General of the Nation. B)
RELATED TO THE SECURITY OF JUDGES: 13) The executive should first of all
deal with the characteristics of a society that has a distinct class
structure whose members have little formal schooling and labor skills, who
are deprived of sound means of recreation, who fear the public law
enforcement agencies and who, in a desire to secure a comfortable life, have
been educated under an individualistic and competitive system in which the
survival of the strongest and the most aggressive is an expression of the
prevailing entrepreneurial philosophy that seeks enrichment at any price.
14) The Government must also understand that the word “security”
does not mean undertaking an arms race or increasing repression; rather, it
is an essential component to recognize and protect that which has been taken
away from Colombians with ever increasing boldness and which can be
summarized in a warm but unknown term, human rights; 15) Immediate
causes for the security of judges are; a) personal insecurity in the
community due to failures in enforcing Article 16 of the Constitution; b)
uncontrolled growth of the underground economy; c) systematic violation of
human rights; d) economic insecurity; e) indifference by the executive and
the legislative branches vis a vis the judicial branch; f)
irresponsible campaign of certain communications media to discredit the
judicial branch, without foundation; 16) We reject the discriminatory
treatment of the executive and legislative branches toward the judicial
branch, despite all the denunciations; 17) We reject the shifting of drug
traffic investigations to the military criminal justice system and we call
for the return of constitutional competence to the regular justice system;
18) We demand objectivity and moderation in the communications media
concerning the events relating to acts that can deprecate the judicial
branch, without foundation; 19) We do not accept the arming or the
establishment of a special group to protect judges; 20) We demand
concentration of judicial offices to facilitate their supervision and to
provide special protection for procedural formalities, and for officials who
request it; 21) We request the suspension of jail visits until the future
code of criminal procedure goes into effect; 22) We request life insurance
equivalent to three years of salary for relatives of a judge killed in the
performance of his duties and by virtue of them.
We also request disability insurance in the form of a lifetime
pension equivalent to 100% (one hundred percent) of the highest salary
earned in the last year; 23) We demand a purging of the security forces and
inviolability of judicial offices; 24) We demand absolute respect for human
rights; C) RELATAED TO ORDINARY JUSTICE AND MILITARY CRIMINAL JUSTICE: 25)
We demand a reinstatement of the extremely high mission of ordinary justice
of administering and guaranteeing individual liberty and security; 26) We
reject as unadvisable and unconstitutional the assignment of competence to
the military criminal justice system for judgment of civilians; D) RELATED
TO AMNESTY: 27) We declare that the judicial branch is the only Government
power which, because it still has clean hands, can decide on what type of
conduct constitutes political crimes and other crimes relating to rebellion,
sedition and riot, on the basis of our knowledge, our honesty and out
impartiality. We reaffirm that
the judicial branch is a honesty and out impartiality. We reaffirm that the judicial branch is a guarantee of peace
in the country; 28) We demand respect for human dignity for due process, for
the right of defense and we reject any procedure that threatens these
principles; E) RELATED TO INDEPENDENCE; 29) We reaffirm the full autonomy of
the judicial branch vis a is the executive and legislative branches, with a
rejection of any procedure that would undermine or weaken that autonomy.”
Some of the legal precedents under which the military criminal
justice system has been given competence to carry certain crimes, including
crimes against the existence and the security of the state and against the
constitutional system, are the following: a) Decree No. 1290 of May 21,
1965, during the government of President Guillermo Leon Valencia; Decree No.
593 of April 21, 1970, during the Government of President Carlos Lleras
Restrepo; c) Decree No. 254 of February 27, 1971, during the Government of
President Misael Pastrana Borrero; and d) Decree Nos. 1142 o June 23, 1975,
250 of June 26, 1975 and 2260 of October 24, 1976, during the Government of
President Alfonso Lopez Michelsen.
In its ruling of August 13, 1979, the court also said the following
about military tribunals: “The decree in question does not create ad hoc bodies nor
does it change the origin or composition of existing bodies. Simply put, in empowers certain authorities to exercise
simultaneously the powers that they ordinarily have along with those that
are assigned to them temporarily, under the terms of the constitutional
authorization given in Article 61.”
Articles 566, 567, 568, 591, 597 and 598 of the Military Criminal
Articles 1 to 6 of the Security Stature refer, in addition to others,
to the following crimes: deprivation of liberty, kidnapping of persons,
death of persons, rebellion to overthrow the government, invasion or attack
of settlements, fields, farms, highways or public through fares causing
alteration of social activities, provocation of fires in which loss of life
occurs, provocation of damages to property by the use of bombs, detonating
devices, explosives and under such circumstances, the loss of life, forcing
money or documents capable of producing juridical effects by means of
threats or violence or by simulating public authority or false order of
public authority and for the purpose of obtaining
for themselves or for a third person unlawful advantage.
The preamble of decree No. 536 of March 14, 1980, reads as follows:
“Whereas, Decree No. 2131 of 1976 declared the public order disturbed and
a state of siege in effect for the whole of national territory; Legislative
Decrees Nos. 2260 of October 24, 1976 and 1923 of September 6, 1978, assign
to the military criminal justice system, for the purpose of achieving more
expeditious administration of justice, the trial of several criminal
infractions regarding conduct highly disturbing of the public order; these
rules provided that the crimes that the military criminal justice system and
others assigned to it would try, for the duration of the state of siege,
will others assigned to it would try, for the duration of the state of
siege, will be investigated and ruled on under the procedure of the oral
courts-martial, except those crimes listed in Article 590 of the Military
Criminal Justice Code; new events of extreme gravity and of public knowledge
have occurred which have led to greater disturbance of the public order; in
the opinion of the government, it is necessary to make the procedure itself
of the oral court-martial more agile, thereby guaranteeing the right to a
fear trial prescribed in Article 26 of the Constitution, since rapid and
effective functioning of those
courts is closely linked to the elimination of the primary and overriding
causes of the disturbance of the public order; in proceedings in oral
courts-martial which have prior investigations,
the total charges result in voluminous briefs, as has been occurring, and
the requirement established in Article 574 of the Military Criminal Justice
Code, as it is currently recognized, prevents the prompt administration of
Justice due to the great amount of time that is necessary to comply with it;
in accordance with the nature of the procedure of the oral court-martial,
when a prior investigation exists, the accused person has the opportunity to
be present during the proceedings and o intervene in them from the point at
which he gives unsworn testimony and to participate in the taking of
evidence, either directly or through his attorney.”
See Chapter II.C.1.c) of this chapter.
Article 311 of the Military criminal Justice Code reads as follows:
“If the same person commits at the same time common crimes and
crimes subject to military criminal jurisdiction, with out there being any
relationship between them, the military authority shall try the latter and
the common case shall remit a copy of actions taken to the other authority
to continue the trial.” Article
577 of the same code rules as follows:
“If, at the conclusion of the investigation stage, facts that
constitute crimes within the competence of the oral courts-martial appear
demonstrated to the satisfaction of the presiding officer of the
court-martial but these crimes are not the same as those indicated in the
resolution of convocation but are connected with them, the individual
indictments shall be drafted. If
the new crimes do not appear to have been connected with them, orders shall
be issued to make official copies of the pertinent matters so that they bay
be provided to whoever it may concern:”
The presiding officer of the oral court-martial in question is
Colonel Rafael Martin Pietro, and the prosecutor, Colonel Augusto Pradilla
Giraldo, both attorneys.
These replies from the government are included in communications sent
to the Commission that is, Communication No. 01675 of August 22, 1980, and
Communication No. 00144 of January 19, 1981, in connection with case 7348.
The presiding officer of the oral court-martial in Bogotá dealing
with the FARC case is Colonel Otoniel Escobar Cifuentes and the prosecutor,
Colonel Farouk Yanine Díaz.