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CHAPTER IV

HUMAN RIGHTS DEVELOPMENT IN THE REGION

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CHAPTER IV

HUMAN RIGHTS DEVELOPMENTS IN THE REGION

INTRODUCTION

  1. The Inter-American Commission on Human Rights continues its practice of including in its Annual Report to the General Assembly of the Organization of American States a chapter on the situation of human rights in member countries of the Organization, based on the competence assigned to it by the OAS Charter, the American Convention on Human Rights, and the Commission's Statute and Rules of Procedure. This practice has served the purpose of providing the OAS updated information on the human rights situation in those countries that had been the subject of the Commission's special attention; and in some cases, to report on a particular event that had taken place or was emerging or developing at the close of its reporting cycle.

CRITERIA

  1. The Annual Report of the IACHR for 1997 set forth five criteria pre-established by the Commission to identify the member states of the OAS whose human rights practices merited special attention and which consequently should be included in its Chapter IV.
  1. The first criterion encompasses those states ruled by governments that have not come to power through popular elections, by secret, genuine, periodic, and free suffrage, according to internationally accepted standards and principles. The Commission has repeatedly pointed out that representative democracy and its mechanisms are essential for achieving the rule of law and respect for human rights. As for those states that do not observe the political rights enshrined in the American Declaration and the American Convention, the Commission fulfills its duty to inform the other OAS members states as to the human rights situation of the population.
  1. The second criterion concerns states where the free exercise of the rights set forth in the American Convention or American Declaration have been, in effect, suspended totally or in part, by virtue of the imposition of exceptional measures, such as state of emergency, state of siege, suspension of guarantees, or exceptional security measures, and the like.
  1. The third criterion to justify the inclusion in this chapter of a particular state is when there is clear and convincing evidence that a state commits massive and grave violations of the human rights guaranteed in the American Convention, the American Declaration, and all other applicable human rights instruments. In so doing, the Commission highlights the fundamental rights that cannot be suspended; thus it is especially concerned about violations such as extrajudicial executions, torture, and forced disappearances. Thus, when the Commission receives credible communications denouncing such violations by a particular state which are attested to or corroborated by the reports or findings of other governmental or intergovernmental bodies and/or of respected national and international human rights organizations, the Commission believes that it has a duty to bring such situations to the attention of the Organization and its member states.
  1. The fourth criterion concerns those states that are in a process of transition from any of the above three situations.
  1. The fifth criterion regards temporary or structural situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration. This criterion includes, for example: grave situations of violations that prevent the proper application of the rule of law; serious institutional crises; processes of institutional change which have negative consequences for human rights; or grave omissions in the adoption of the provisions necessary for the effective exercise of fundamental rights.
  1. On the basis of the criteria set forth above, the Commission has decided to include four member states: Colombia, Cuba, Haiti, and Venezuela.

COLOMBIA

  1. As in previous years, the situation in the Republic of Colombia in 2007 fits the criteria established in the introduction to Chapter IV of the Annual Report of the Inter-American Commission on Human Rights (IACHR). In the case of Colombia, these criteria that are particularly relevant is the one that concerns the persistence of temporary or structural situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention. The Commission has therefore adopted the following observations on the matter, following the procedure established in Article 57(1)(h) of its Rules of Procedure,[1] for inclusion in its Annual Report.
  1. The IACHR is keenly aware of the complex situation that Colombia is facing, the influence exerted by elements involved in drug trafficking, the toll that the violence practiced by those involved in the conflict takes on the civilian population, and the efforts the State has made to pacify the situation.
  1. First, the ColombianState is to be recognized for its efforts initiated to pacify the situation. The Commission wants to encourage measures to ensure that the judicial proceedings conducted under the Justice and Peace Law are as transparent and open as possible.
  1. The Commission has learned of the adoption of Decree 3570 (2007), which establishes the so-called “Victim and Witness Protection Program of Law 975 (2005),” the purpose of which is to “safeguard the lives, safety, liberty and security of those being threatened or at risk as a direct consequence of being a victim or witness in a Justice and Peace case.”[2] The adoption of this law is an important step toward the State’s compliance with its obligation to protect the physical integrity of victims of the armed conflict and safeguard their involvement in the quest for the truth, justice and reparations.
  1. It is also ti highlight the continuation of the “Protection Program for Human Rights Defenders, Trade Unionists, Journalists, and Social Leaders”[3] which, as the Commission has observed on previous occasions, protects many beneficiaries of precautionary and provisional measures ordered by the Commission and the Inter-American Court of Human Rights, respectively. Once again, the Commission points out the need to continue to strengthen the protection mechanisms established under these programs.
  1. The Commission notes, however, that notwithstanding the programs such as those cited above, undertaken to promote human rights, the effects of the armed conflict continue to exact their harshest toll on the most vulnerable sectors of the civilian population. Violence continues to persist, amid efforts to demobilize armed outlaw groups and to administer justice. These efforts have to produce results in terms of effectiveness, comprehensive redress, and eliminating the causes and elements of violence.
  1. Therefore, based on the in loco observations conducted in various regions of Colombia[4] and on information received both from the State and civil society, during the Commission’s hearings and in written observations sent to the Commission, the IACHR has prepared a number of observations on the situation of human rights in the Republic of Colombia in 2007. The observations will particularly address the progress made and obstacles faced in the process of demobilizing armed elements and in developing and enforcing its laws, the persistence of violations of the rights to life and to personal integrity, the situation of ethnic groups, and the situation of human rights defenders and social leaders.

I.THE DEMOBILIZATION PROCESS AND THE DEVELOPMENT AND ENFORCEMENT OF COLOMBIAN LAW

  1. Around mid 2006, Colombia completed the first phase of the process of demobilizing the United Self Defense Forces of Colombia (hereinafter “the AUC”),[5] an armed outlaw group involved in the commission of crime during the armed conflict.[6] In this first phase, weapons were surrendered by 31,671 persons identified as members of the 34 units of the AUC and other armed outlaw groups[7] concentrated in temporary location areas, with international verification by the OAS Mission to Support the Peace Process in Colombia (hereinafter the “MAPP/OAS Mission”). With this phase completed, in 2007 the process began of establishing the responsibilities of demobilized persons involved in the commission of crimes and of securing reparations for victims, in application of Law 975 (2005) or the “Justice and Peace Law”.”[8] This law establishes a number of procedural benefits and sentence reductionfor those who –having been involved in the commission of crimes- participate in the demobilization.[9]
  1. The Commission has monitored the process since 2004, a function that it regards as a vital part of its advisory role vis-à-vis the OASmemberStates, the General Secretariat of the Organization and the MAPP/OAS Mission.[10] As part of this monitoring, in October 2007 the Commission made public its “Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings.”[11]
  1. Concerning the administration of justice in the case of the demobilized, the Commission notes that those cases that went through the demobilization judicial circuits set up as part of the collective demobilization process benefited by the issuance of resolutions waiving prosecution when they admitted to the crime of "criminal conspiracy"[12], which term was later changed to "sedition" based merely on their participation in the activities of illegal armed groups.[13] In addition to the issuance of decisions waiving prosecution for sedition, the demobilization judicial circuits were a good way to gather information to establish whether demobilized members of outlaw armed groups were involved in crimes that might be punishable offenses under the Justice and Peace Law, and also to gather information about crimes of against humanity and corpses’ location.
  1. However, 90% of those who went through the demobilization circuit (some 28,000 people) provided no significant information on illegal acts or crimes committed by the paramilitary units to which they belonged. As a result, the voluntary depositions taken in the demobilization circuits constituted a lost opportunity for gathering information on the units, their members, and the socioeconomic dynamics that kept them in existence and in operation.
  1. That information is crucial today for the work of prosecutors in the Justice and Peace Unit and for representatives of the victims when it comes to enforcing that Law and verifying that the armed structures have been dismantled. It is the Commission’s understanding that during the taking of voluntary depositions, candidates must declare under oath their commitment to comply with the prescribed eligibility requirements.[14] In any event, the validity of the statements must be considered in light of the obligation of the judicial authorities and other State agencies to collaborate in verifying that the requirements to make the applicant eligible for the reduced sentences allowed under Article 975 have been met. As the IACHR understands it, the demobilization oath in no way relieves the authorities of their duty to verify the requirements for claiming the benefits of reduced penalties.
  1. Of the 31,651 persons who demobilized between November 2003 and mid 2006, only 2,695 expressed an interest in applying for the benefits of the Justice and Peace Law.[15] However, the Attorney General’s Office verified that only a much smaller number could be duly located and summoned to give a statement. The remainder, although on the list, could not be located because their address, telephone number or true identity was unknown. In this regard, the High Council for Social Reintegration (ACR) had developed strategies to fill information gaps.[16] The State also indicated that the Prosecutors for the Justice and Peace Unit had taken important steps to locate those demobilized persons.[17]
  1. By the end of 2006, the Attorney General’s Office issued the first notices[18] to attend initial depositions from candidates for the benefits under the Justice and Peace Law, aimed at persons claiming a right to participate in the different processes as victims of crimes committed by the AUC (hereinafter “the victims”). Thanks to the publication of 1,728 notices in newspapers with nationwide circulation, broadcasts by local radios and dissemination by national, regional and local public entities, 12,354 victims had been contacted as of August 2007.[19] The State had also devoted 84 days to attending to victims in territories in which demobilized illegal groups had acted.[20] The Commission observes, however, that the only newspaper with nationwide circulation is El Tiempo, which is not distributed in many of the small towns and villages of various departmental areas. Some of these regions do not even have television or Internet service. It is precisely in those regions where the greatest numbers of victims are to be found, who require access to information on their rights and how to claim them. Therefore, the notices should have been given via local radio stations, regional newspapers, public defenders or representatives and, in general, through instruments that serve as links between this uninformed population and the State.
  1. In January 2007, thanks to the initiative taken by the Government’s and the Attorney General’s Office to broadcast the statements taken from the demobilized persons, the National Television Company (CNTV) arranged for the transmission of the hearings of members of the demobilized paramilitary groups via the channel known as Señal Colombia Institucional.[21] In February 2007, the Attorney General’s Office issued resolution 0387[22] authorizing each delegate prosecutor to order preparation of a technical recording of the voluntary depositions to be made public, once this proceeding is over and the work of verification and investigation is completed.[23]
  1. The Commission notes the need to strengthen the presence of the regional and national media in this new stage of the demobilization process in order to guarantee transparency. The present stage of the AUC demobilization process demands transparency and this can only be guaranteed by allowing victims access to both of the voluntary deposition sessions, and by ensuring that in the second session there is a real possibility to question the candidates and get at the truth.
  1. As for the role of the Attorney General’s Office, the assigned prosecutors are responsible for taking the voluntary depositions, for investigations in the areas of influence of each demobilized unit, and for interviewing victims in those areas. On this point, the Commission is concerned about two specific aspects: first, the Justice and Peace Unit is investigating a total of 34 units. Consequently, each prosecutor must investigate, on average, the activities of two or three AUC units.[24] The second concern is the lack of security for prosecutors as they discharge their functions. They have to venture into remote areas in order to corroborate information, collect evidence, attend judicial proceedings, and compile records without the means of transportation or security systems to enable them to perform these functions efficiently. On this point, the Commission would like to underscore the need to strengthen the support provided to the Justice and Peace Unit of the Attorney General’s Office. The varied nature of the demands that the Law places upon it requires an enormous capacity for work as well as strong logistical support that will enable the prosecutors to perform their work in safety.
  1. As for the participation of victims in the process, Decree 315 (2007)[25] regulates the participation of victims and provides that they have the right to be present, either personally or through their attorney, for the taking of the depositions, indictment and other proceedings conducted under Law 975 and that pertain to the events that caused the damage.[26] It has been observed that victims spare no effect to attend the depositions, even though they may not have the funds to pay the expenses involved.
  1. Victims have nonetheless encountered a number of obstacles in the way of their participation. First, in the various phases of the deposition, victims are unable to question, either personally or through their representatives, those who are trying to claim the benefits granted under Law 975 with regard to matters that are of interest to those victims. Questioning by victims is reserved for the second phase of the deposition, but is done indirectly, since the suggested questions are entered on a form that is handed to members of the CTI, who in turn hand it over to the Prosecutor. This indirect mechanism seriously limits any chance the victim has of interrogation for the purpose of getting at the truth. What is more, the Prosecutor’s Office loses an invaluable means of comparing the depositions and verifying compliance with the legal requirements to qualify for the benefits. Victims also have difficulty securing legal counsel and representation in judicial proceedings.
  1. Third, the activities of criminal gangs, non-demobilized members of the AUC, new armed groups and existing ones that have become stronger, deter victims from appearing in court and asserting their rights. During its in loco visits the Inter-American Commission has received information regarding numerous victims of the conflict who are living in areas where the demobilized units are active. These victims are still being threatened and are subjected to acts of violence, intimidation and territorial control. The IACHR has made public statements about a number of acts of violence committed during 2007 against persons who had taken the initiative to participate, as victims, in the enforcement of the Justice and Peace Law.
  1. The Inter-American Commission on Human Rights has expressed its condemnation of the murder of Mrs.