In less than a month, the Government-initiated citizen security bill was approved. Filed in the Senate on November 22 and in the House the following day, it was debated jointly by the first commissions of the Senate and the House, thanks to the government’s message of emergency, which called for extraordinary sessions to discuss it. On December 20, the House approved it and the following day the Senate did the same. Finally, on December 22, it was conciliated without further discussion, despite the fact that it restricts fundamental rights and freedoms.

A total of 22 of the 68 articles of the bill were conciliated on modifications to the Penal Code, Security and Coexistence, the rules of extinction of ownership and regulation of the carrying of weapons, including those of lesser lethality. I will refer to some of them.

What are the questioned points that generate debate?

“Transfers for protection”, articles 40 and 41.  Although requirements and guarantees are demanded, the reality may be different, since instead of restricting the use of the figure, it grants more subjective capacities to the authorities to carry out the transfer without any type of conversation or negotiation with the person transferred. The “discretion of the police” is broad, for example, to determine if someone is wandering under the influence of a psychoactive substance or alcohol, in which case they can take him or her without exhausting previous resources. It is a “blank check” that lends itself even more to abuse, arbitrariness and violation of human rights, a problem that was already clearly evidenced during the protests between April and July of this year.

The “increase of penalties for attacks against the security forces”, articles 9, 11 and 19. In the first place, experience and studies show that there is no decrease in the crime rate, nor in violent or punishable actions, by establishing higher penalties and fewer benefits to counteract crime. Rather, what the offender fears is effectiveness, that is, the real possibility of going to jail. Second, the penalties are increased when the aggressions or homicide are against a member of the public force, thus “overprotecting the police” by aggravating the crimes against them, dismissing the denunciations for their abuses, and disproportionately increasing the penalties for excesses of the demonstrators.

He who publicly and directly incites, finances or promotes another or others to commit a specific crime or class of crimes, including the crimes of aggravated or aggravated theft, simple or aggravated damage to another’s property, and others, will be subject to a prison sentence of 4 to 6 years. The interpretation of this provision allows for subjectivity, with foreseeable negative consequences for the exercise of the right to freedom of expression.

The “use of masks” or similar elements, articles 16 and 7. The penalties for instigation to commit a crime are increased from one half to two thirds if the conduct is carried out when masks or similar items are used to hide the identity or make it difficult to do so. What about the COVID masks?

Intimidation with different types of weapons”, articles 1, 7, 10, 16, 17, 18, 21, 25 and 26. Those who intimidate or threaten, not only with firearms, which is already regulated, but with less lethal weapons, elements or devices; firearms; and “white weapons” will incur in prison from 4 to 6 years, as long as the conduct is not sanctioned with a higher penalty. One may agree that it is better not to throw stones without thinking that whoever does so deserves to be imprisoned for several years.

Land invasion”, articles 12, 22 and 23. Penalties are increased in several circumstances, among them when someone invades someone else’s land or building to obtain an illicit benefit for himself or for another. And if one seeks to escape violence by crossing private property, what happens?

Private property” and defense of citizens against violent attacks, articles 3, 23, 50 and 60. There is an absence of criminal liability in certain situations, such as when there is a need to “defend one’s own or another’s right against unjust aggression”. That is, defending one’s place of residence or car when another person violently invades it. This easily becomes a justification for dubious actions of those who claim to be in danger.

The “privileged self-defense”, articles 3 and 22. There will be no criminal liability when acting with the validly issued consent of the owner of the legal property, in the cases in which it can be disposed of. The criminal offense was broadened by presuming that there was legitimate defense when someone violently repels someone who invades his room or immediate dependencies and that now it will be applied in other cases, such as occupied vehicles. This encourages private violence against demonstrators. Together with the above provisions, it opens the door even more to “self-defense” type actions in which Colombia has a lot of very painful experience, with the private security cooperatives, CONVIVIR, the self-defense groups and the paramilitarism we saw in the marches.

The “indigenous communities”, article 4. In cases where there is recidivism in crimes that are protected by the indigenous justice system, the figure of unimputability is left aside because the new actions will not be understood as protected in accordance with the causes of absence of responsibility. He suggests that the aim is to undermine indigenous law.

In conclusion, the catalog of crimes was expanded and the penalties were increased without developing the contraventions. In particular, the criminalization of “carrying a knife” implies lifetime disqualifications for the person, such as the right to be elected to popularly elected positions.

This legislation was approved in spite of the reports of the United Nations Development Program, UNDP, prepared by the former Ombudsman Carlos Negret on the violence in Bogotá on September 9 and 10, 2020, and that of the Office of the United Nations High Commissioner for Human Rights on the national strike that began on April 28 of this year. Both coincide with the findings of the Inter-American Commission pon Human Rights in its report of July of this year on the national strike.

The three reports put forward proposals to guarantee protest, harmonize its exercise with the rights of third parties and avoid such police abuses, which are unacceptable in a state governed by the rule of law and delegitimize the police institution itself. Instead of taking advantage of these recommendations, the Duque Government presented and managed to push through, in less than a month and without democratic debate, a disastrous law on citizen security that broadens criminal conducts and increases penalties, disregarding contraventions. This was done after failing to act seriously and urgently to respond to the social conditions that provoked the protests. It is a purely repressive response camouflaged as a law. What a shame!

Rafael Barrios Mendivil
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