Bogotá, February, 2022

The human rights organizations such as the Lawyers Collective José Alvear Restrepo, Liberty Law Corporation, Political Prisoner Solidarity Committee, Defending Freedom is Everyone’s Business Campaign, Coordination Colombia Europe United States, Marcha Patriotica Social and Political Coordination, Red de Derechos Humanos del Sur Occidente Colombiano (Human Rights Network of Southwestern Colombia) “Francisco Isaías Cifuentes”, Popular Unity Process of the Southwest of Colombia – PUPSOC, the Association of Peasant Workers of Cajibio ATCC, the organizations of the Mesa Territorial de Garantías-Cauca, congressmen Iván Cepeda Castro, Wilson Arias, Pablo Torres Víctoria, and human rights lawyer Alirio Uribe, filed an action of unconstitutionality against 13 articles of Law 2197 of 2022, by which “rules are issued to strengthen citizen security and other provisions are issued”, for the following reasons:

The “citizen security” law of the national government goes against the rights of citizens; instead of offering frank solutions to the problems of insecurity that may arise from criminal acts, it takes up the old formula of punitivism, adding a new risk to the security of the people: that of an authoritarian state that can legally act against fundamental rights such as freedom, equality, social protest, freedom of expression or due process.

The government and the Congress of the Republic gave shape to a law that instead of fulfilling its role of limiting the actions of the State, becomes a permissive means, through the configuration of crimes such as obstruction to the public function and trespassing of real estate, both containing very broad verbs and written in such an ambiguous manner that they open the possibility for prosecutors, judges and police to act arbitrarily, the latter recently denounced in the National Strike 2021 by at least 1,636 complaints of abuse of power and police violence, according to the Campaign Defending Freedom, an Issue for All. 636 complaints of abuse of power and police violence, according to the Campaign Defending Freedom, a matter of all.

Among the most relevant aspects of the action is our questioning of the use of lethal force (art. 3); the increase of the prison sentence to 60 years (art.5 ); the creation of new crimes, such as those contained in articles 13 and 20, which criminalize protest and hinder the defense of human rights, as well as oversight and control over the public function; the incorporation of multiple measures of punitive aggravation; the promotion of paramilitarism; the use of “less lethal” weapons (articles 25, 28, 30 and 31); the transfer for protection (article 40); and the handling of surveillance data (article 48).

In the analysis of each position:

We challenge Article 3, for introducing the expression “Lethal force may be exercised exceptionally to repel aggression against one’s own or another’s right”, as it violates the principle of constitutional proportionality.
Article 5 of the Security Law increases the maximum sentence to 60 years (except in cases of competition), which is contrary to human dignity and opens the possibility of imposing veiled life sentences, which are cruel, inhuman or degrading punishments. In addition, it is a criminal policy measure that ignores the declaration of an unconstitutional state of affairs in the prison system. This Law has no scientific or empirical grounds to justify the suitability of the increase in the maximum sentences to prevent crime. On the contrary, it would aggravate the rate of incarceration and overcrowding of persons deprived of liberty in prisons, which have structural problems.

Likewise, we call attention to article 12 of the aforementioned law, as we observe that the criminal treatment given to “land invasion” is disproportionate, in view of the fact that the Colombian legal system has tools in agrarian, civil and police law to solve issues related to private and public property. At the same time, we question the stigmatization of landless rural communities, who have historically opted for the occupation of vacant properties to satisfy their basic needs, which would be treated as criminals, and the criminal action would limit their vocation as adjudicators.

Article 20, on the other hand, creates a new crime: the obstruction of a public function, which imposes a prison sentence of 3 to 5 years for those who apparently impede the performance of any public function. The penalty increases to one half or two thirds when obstructing military or police procedures. We identified that the text of this norm is worded in such a confusing manner that it can be used arbitrarily by National Police agents, to the detriment of human rights defenders. This article seriously affects the rights to freedom of expression and social protest, as it hinders, discriminates and criminalizes the legitimate exercise of the defense of human rights, scrutiny, oversight, denunciation and control of public officials, particularly when intervening in the face of possible arbitrary, massive and generalized detentions.

Likewise, Articles 21 and 24, which include new criteria for the imposition of security measures, were also challenged. The content of these articles violates the presumption of innocence and does not correspond to the limits of legislative configuration, violating in turn the principle of proportionality. We call on the Court to declare unconstitutional the carrying of arms for natural and legal persons as a guarantee of non-repetition of paramilitarism.

We also consider that article 48 is unconstitutional insofar as it opens a disproportionate possibility for the National Police to access closed circuit television without distinction between private or public spaces and the type of information contained therein, which may be personal, reserved or public. This disregards article 237 of the same law, when it speaks of integration of surveillance systems, and imposes rules related to the possibility of linking them with the police networks in cases where they record certain areas considered public.

Article 25 determines the rules on the regulation of less lethal weapons to private individuals, except for the Armed Forces, and indicates that natural persons may acquire, import, export and commercialize less lethal weapons as well as their accessories, parts and ammunition. The above is in violation of the exclusivity of the State in the trade and manufacture of arms in the country, and the strict exceptionality of the permission to private individuals on their use and possession, but not on ownership, which is the right that makes it possible to buy and sell goods.

On the other hand, Article 28 of the Security Law, which defines the term ‘less lethal weapon’ and classifies them, contravenes the Political Constitution with respect to the exceptionality of permitting private individuals. The definition and classification is open given that it contemplates unregulated devices that may have a great capacity to affect groups of people, such as those used by the Police in the exercise of their functions of public order and citizen coexistence.

Unexceptional legislation regarding the permit for the use of less lethal weapons by private individuals, which extends it to commercialization and authorizes it disproportionately to weapons with a scope similar to that of the private use of the National Police; It ignores the constitutional obligation of not promoting or favoring the proliferation of illegal civilian armed groups of all kinds, as well as their practices, established as a guarantee of non-repetition of the serious violations of human rights of all kinds that were generated throughout the armed conflict with the proliferation of paramilitary and parastatal groups, which arose as a result of government measures and military practices complacent with the indiscriminate use of arms by private individuals to combat crime.

Something similar occurs with the transfer for protection, a figure that has been used by agents of the National Police to deprive socially marginalized persons of their liberty, as well as those who participate in social protest. With the reform made by Article 40 of the law being challenged, although some calls made by the Constitutional Court are accepted, other reforms are implemented that reduce the guarantees of citizenship: Alluding to the “appearance” of being under the influence of alcohol and drugs; deleting the prohibition of using the transfer for those who are simply consuming; limiting the possibility of not being transferred to the existence, presence or communication with a family member, among others, are measures with which the legal reform continued making the transfer a measure that lends itself to the authoritarianism of police officers.

The above 13 articles of the Security Law violate multiple constitutional principles and disregard the observations and recommendations of international organizations such as the Inter-American Commission on Human Rights – IACHR, among them, that the States should suppress or reform those norms that directly criminalize the activities of promotion and protection of human rights recognized in international law, ensuring that legitimate activities in defense of human rights are not considered crimes (1).

1 IACHR. Criminalization of human rights defenders. December 2015. P. 135

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