The representatives of victims from different Social Organizations observe with concern the recent decisions of the Council of State – Third Section -, regarding the recognition of the responsibility of the State and the integral reparation to the victims of serious human rights violations and crimes against humanity. 

The Third Section, which among its functions, hears claims for reparations for damages caused by the action or omission of the State, headed by its agents, such as personal injuries, extrajudicial executions, forced disappearances, forced displacement, kidnappings, sexual violations, among others. 

In the early years, starting in 1964, important theoretical and jurisprudential foundations were developed that opened a path of light for the victims and established the guideline for overcoming impunity, through the recognition of the direct public liability of the Colombian State for failure of service, exceptional risk, and special damage. With the 1991 Constitution, progress was made in the protection of victims based on the vindication of the fundamental rights. However, by that time, the development of phenomena such as the armed conflict, drug trafficking, and paramilitary groups increased the seriousness of human rights violations, and international humanitarian law, especially in rural areas, such as massacres, persecution of social leaders, and dispossession of peasants. 

Therefore, and with the integration of the standards of the International Human Rights Law, the International Humanitarian Law, the Inter-American Court of Human Rights and International Criminal Court, since 2008, the Council of State developed material justice to ensure restitution, compensation, rehabilitation, and guarantees of non-repetition of the rights of victims of State crimes, in order to heal and prevent the recurrence of the painful events.  

In this philosophy, the pronouncements of the Honorable Magistrates Ramiro Pazos, Stella Conto Diaz, Danilo Rojas, Jaime Orlando Santofimio and, later, Alberto Montaña Plata, who unified the criteria for the treatment of victims of serious violations of human rights, crimes against humanity, and war crimes, stand out. Thus, the Third Section of the Council of State built a jurisprudential line in accordance with the international rulings subscribed by Colombia, under the following reasoning:  

“The Chamber highlights the importance of Resolution 60/147 of March 21, 2006, adopted by the United Nations General Assembly, concerning the “Basic principles and guidelines on the right of victims of evident violations of international human rights law and serious violations of international humanitarian law to seek redress”, which has been accepted by the Inter-American Court of Human Rights, the jurisprudence of the Constitutional Court and the Council of State, a circumstance that makes it legally binding in the domestic legal system. (…) To that extent, any abuse or arbitrary overflow of public power that violates the rights of associates, and materializes in unlawful damages generates a duty for the State to (i) make restitution, (ii) compensate, (iii) rehabilitate, (iv) satisfy, and (v) adopt guarantees of non-repetition. (…) These forms of reparation that are unified in this judgment are consistent with the obligations stipulated in Article 63(1) of the American Convention. (…)”.[1] 

However, in recent years, there has been evidence of the unfortunate decline of the Third Section of the High Court, with rulings of minimal legal basis and contradictory to its own jurisprudence, and the constitutional and conventional obligations and standards of the Colombian State in the field of International Human Rights Law, and International Humanitarian Law. This line has been seen particularly in the decisions of some Honorable Magistrates, regarding unjust deprivations of liberty, protection of union and social leaders, and with respect to the declaration of expiration in crimes against humanity, such as extrajudicial executions, torture and forced disappearances. 

Before unjust deprivations of liberty, the Third Section tended to deny the claims of the victims, arguing that: “the deprivations were not disproportionate” or “there was evidence to assume guilt”. In these rulings, not only was there weak argumentation regarding the nature of the deprivation as arbitrary, disproportionate or in violation of all human rights, but there was also disregard for the presumption of innocence to which all persons are entitled, as the Constitutional Court has reiterated on several occasions. In an emblematic case, the Honorable Magistrate assumed that a person could be deprived of his liberty and removed from his family, even for five years, and even though he was acquitted, the State should not be held responsible for his negligence. The above disregards the rulings of 2014 by Magistrate Hernán Andrade Rincón and 2018 by Magistrate María Adriana Marín, Article 7 of the American Convention on Human Rights, and the Unification of Jurisprudence Ruling of the Constitutional Court: 

“It is irrelevant whether the actions of the Administration of Justice were in Accordance with or contrary to the law, because if the victims are not under a legal duty to bear the harm that was inflicted on them, it will be irrelevant – in every sense – whether the criminal proceeding functioned correctly, because (…) given such a breach of the principle of equality before public charges, those victims will be entitled to the restoration that protects, foresees, and provides the current legislation, in the terms established in the aforementioned article 90 of the Constitution (…)”. 

“(i) a detention may comply with the legal requirements and still be arbitrary; (ii) judicial guarantees and the dignity of the conditions of imprisonment weigh on the right to personal liberty; and (iii) in order to define whether a detention is arbitrary, assessments must be made of the appropriateness, necessity and proportionality of the measure, requirements linked, moreover, to a sufficient motivation“.[2] 

In relation to the attacks and persecution against social and union leaders, such as executions, personal injuries, torture and forced disappearances, the Third Section tended to argue that the victims “did not request protection from the State” or “even if they did request it, it was not proven that the protection could have prevented an attempt on their lives”. Furthermore, it was insinuated that “the authorities are not obliged to make protection against these murders available to all citizens”. This position shows that some Magistrates are unaware, on the one hand, of the context of persecution and murder of human rights defenders, and on the other hand, of the responsibility of the State for the participation in these events, duly corroborated in criminal proceedings. This goes against the jurisprudence of the Council of State, as follows: 

“The jurisprudence of this Corporation has indicated in many decisions[3] that there is a reinforced duty of state protection against persons who, by reason of their functions, affiliation to a political group or the social context in which they operate, must be protected from any threat or violation of their rights by violent actors, even if they have not formally requested the protection of the authorities.” [4] 

On the other hand, in 2020 the Council of State created a new barrier to access to justice and guarantees of reparation for victims, by eliminating the exceptions to the application of the statute of limitations for serious human rights violations, crimes against humanity and war crimes. This decision, widely criticized by the Council of State itself -as evidenced in the dissenting opinions-, ignored the basic principles of law such as legal certainty by changing the rules untimely, and generated serious consequences in practice: the expiration of cases such as the Palace of Justice and extrajudicial executions that had its peak from 1985 to 2010. That ruling also ignores the imprescriptibility enshrined in Resolution 60/147 of 2006 of the United Nations General Assembly and Article 29 of the Rome Statute, as well as the jurisprudence of the Constitutional Court, the Inter-American Court of Human Rights and the Council of State itself, as highlighted below: 

“The Contentious Administrative Judge is called (…) to consider the legal norms for the protection of Human Rights, International Humanitarian Law, the principles of International Public Law, jus cogens and humanity, as well as the criterion of universality that is derived from such norms, in order to find a rule for calculating the differentiated statute of limitations, giving priority to the materiality of these rights and effective judicial protection (…). As for the Council of State (…) it was held that the internal rule of expiration of the action could not be invoked to hear the case, as the majority position resolved on that occasion, since this would disregard international commitments in the field of Human Rights. On the other hand, it was emphasized that the imprescriptibility of the action for direct reparation derived from a crime against humanity does not violate public order or legal certainty, since, above all, the postulates of the Constitutional Charter would be fulfilled”. [5] 

Thus, it remains in the hands of the Constitutional Court to resolve the guardianship action that is ongoing, on the protection of the rights of the victims against this unfortunate ruling. However, the Court will only be able to decide the application of the jurisprudential rule in time to determine whether it applies from January 2020 or retrospectively, so the damage to the victims is already materializing. 

Consequently, the victims’ representatives note with concern this line that aims to deny the international commitments of the Colombian State in the area of human rights or to disregard precedents without applying the rules of law. Finally, we invite the Honorable Council of State to respect its constitutional and conventional obligations in the framework of the protection of human rights. 

Suscribe: 

Minga Association 

Lawyer Collective José Alvear Restrepo – Cajar 

Yira Castro Legal Corporation 

Opción Legal Corporation 

Humanidad Vigente Legal Corporation 

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Notes:   

[1] Council of State. Plenary Chamber – Third Section. Judgment of August 28, 2014. File No. 05001-23-25-000-1999-01063-1 (32088).  Advisor rapporteur: Ramiro de Jesús Pazos Guerrero. 

[2] Constitutional Court. Ruling SU 072 de 2018. Reference: T-6.304.188 y T-6.390.556 (AC). Presiding Judge: José Fernando Reyes Cuartas. 

[3] See judgment of April 29, 2015, rad. 30374, Third Section, Subsection B with report by Ramiro de Jesús Pazos. In a similar sense, the judgment of December 6, 2013, rad. 30814, Third Section, Subsection B, M.P. Danilo Rojas Betancourth. Another similar, is the judgment of November 13, 2014, rad. 33269, Third Section, Subsection B, with report by Ramiro de Jesús Pazos. Finally, among many others, the judgment of August 29, 2012, rad. 24336, Third Section, Subsection B, M.P. Stella Conto Díaz del Castillo. 

[4] Council of State. Judgment of August 31, 2017. File No. 13001-23-31-000-2001-01492-01 (41187). Presiding Judge: Ramiro de Jesús Pazos. 

[5] Council of State. Third Section – Subsection B. Judgment of September 17, 2013. File No. 25000-23-26-000-2012-00537-01 (45092). Presiding Judge: Jaime Orlando Santofimio Gamboa.