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UN Working Group on Arbitrary Detention concludes visit to Colombia

10 october 2008

The United Nations Working Group on Arbitrary Detention concludes today its visit to Colombia, which took place from 1 to 10 October 2008, at the invitation of the Government. During its visit, the Group visited Arauca, Bogota and Cali.

The delegation was headed by Mrs. Manuela Carmena (Spain), Chairperson-Rapporteur and included Mr. Roberto Garretón (Chile), member of the Group. Officers from the Secretariat of the Working Group at the United Nations Office of the High Commissioner for Human Rights accompanied the members.

The Working Group met with several authorities of the Executive Power, including the Vice-Minister of Foreign Affairs, the Vice-Minister of Justice, the Vice-Minister of Defense and other high level officials from these Ministries and from the Presidential Programme for Human Rights and International Humanitarian Law; magistrates of the Constitutional Court, the Supreme Court of Justice and the Supreme Judicial Council (CSJ) as well as other judges and magistrates; the Prosecutor General; the Inspector General, authorities of the Armed Forces, the National Police and the Department of Administrative Security (DAS); the National Prison Institute (INPEC), and the Office of the Ombudsman. Meetings were also held with local authorities, magistrates and judges of the Departments of Arauca and Valle del Cauca, as well as with the Governor of Arauca, the Head of the Eighteenth Brigade of the National Army in Arauca and the Director of the National Police in Cali.

The delegation also met with representatives of United Nations Agencies in Colombia, practicing lawyers in the three cities visited and various national and local non-governmental organizations; academics and family members of persons in detention. The Working Group would like to express its gratitude to the Government of Colombia for its collaboration during the mission as well as during its preparation stages. The Group would also like to thank the Office of the United Nations High Commissioner for Human Rights in Colombia and the United Nations Development Programme for its cooperation.

In Arauca, the Working Group visited the prison and the Temporary Home for Juvenile Offenders. In Bogota, the Working Group visited “La Picota” prison, the Transitory Detention Ward of the Prosecutor’s Office, the Detention Ward of the DAS, the Centre for Psychiatric Internment “Virgen de la Paz” and the Facility for Adolescent Offenders “El Redentor”. In Cali, the Working Group visited the “Villa Hermosa” and “Palmira” prisons and a police station. Private interviews without witnesses were held with approximately 150 persons deprived of their liberty and collective interviews were held with close to 400 persons deprived of their liberty.

The mandate given to the Working Group by the United Nations Human Rights Council is to promote the observance of the norms stated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights related to the deprivation of liberty of all persons throughout the world.

The considerations the Working Group makes at this time include some of the provisions which will be further developed in the report and which refer specifically to the most determining aspects concerning the deprivation of liberty. These observations do not ignore the dramatic situation of violence which has been felt and is felt in the country, dating back several decades, as a consequence of the criminal activities of armed groups acting outside the law, as well as of certain illicit actions carried out primarily in the past by the armed forces and the police. Although we rejoice in the decrease in the level of violence, thanks to the recuperation of territorial control by the State in the most vulnerable areas, there is still an unacceptable number of homicides, kidnappings and massacres inflicted upon the civilian population.

Bearing in mind this situation, the Working Group considers of utmost importance that state polices should rigorously protect all human rights. We are aware that the legal ordinances of the Colombian State since the adoption of the 1991 constitution encompass a system of guarantees that has allowed for the development of important policies towards the consolidation of a human rights culture. However, there are still important accusations of human rights violations which require the constant effort to achieve its definite eradication. Precisely for these reasons, we consider that it is of the utmost importance that the Government, with regards to those policies which fall within the Working Group’s mandate, comply with the regulations established in international human rights instruments relating to the manner by which a person may be deprived of his or her liberty and the norms regarding due process that should be taken into account when establishing responsibilities resulting from criminal acts.

During the visits to prisons and police stations, as well as during the conversations held with different authorities and other actors mentioned above, the Working Group observed that several legal and administrative measures put in place in Colombia guarantee that police agents, after detaining a person “in fraganti” or as a consequence of a judicial order, place them before a judge during the 36 hours following the detention, which is an important achievement.

The Working Group also values the initiative to create judicial services which bring together in one place the judicial police, the prosecutor, the courts for the control of guarantees and the ombudsman’s office. This obviously facilitates the compliance with the term of 36 hours established through Law 906.

However, the power to carry out administrative detentions given to agents of the National Police has not been determined with the precision and rigor required by individual freedom. Although the Code on Criminal Procedures states that police agents may only detain a person with a warrant issued by a competent judge, or in situations of flagrant crimes, some police agents interpret this as a power to detain persons for other reasons which are broad and imprecise and are not subject to any judicial control. This has been seen in detentions based on high degrees of excitement, inebriation or on the apparent risk the detainees pose upon themselves or to those around them. This has resulted in frequent cases where police agents detain individuals in police stations, particularly those who are socially vulnerable, without a legal justification, and even more serious, without maintaining a registry of these detentions or of the duration of the detention.

It would be important to have a new, precise legal norm which clarifies the power of police officers to detain in these cases, specifying that police agents are not authorized to detain persons with the goal of verifying their identity or for the detainee’s own protection.

These irregular actions by the police have facilitated unjustified detentions in rural areas where guerrilla activities still subsist, and which can be used by unidentified persons as a justification or cover-up as a death in combat of alleged subversives.

International human rights law considers that a detention is arbitrary when it is impossible to invoke any legal basis justifying the deprivation of liberty, when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by the International Covenant on Civil and Political Rights and when the total or partial non-observance of the international norms relating to the right to a fair trial is of such gravity as to give the deprivation of liberty an arbitrary character. In this respect, we observed that although the introduction of the accusatory and oral procedures represent extraordinary progress for the protection against arbitrary detentions, we are worried that important delays are taking place not only in those processes initiated in accordance with the new Law 906, but rather those which are initiated in accordance with Law 600.

Regarding multiple or numerous detentions in rural areas of the country, the Working Group considers that these may allow for the violation of the norms established in international human rights instruments concerning fair trials. These detentions have primarily taken place and still take place, although in smaller proportions, according to the procedures established in Law 600, given that, even those that have taken place in 2007 and 2008 refer to acts which took place in preceding dates.

These detentions are primarily based on the testimonies provided by demobilized members of the guerrillas and self-defense groups, a name attributed sometimes to paramilitary groups. They refer to acts which took place in the past and are normally expressed in generic and imprecise testimonies. This has produced a situation where most of the persons deprived of their liberty are released during the first moments of the investigations or within the procedural limits for detention, their cases are stayed, or they are acquitted when presented before a competent judge.

All the proceedings mentioned above are processed in the context of Law 600, which does not present the same guarantees contained in the new accusatorial system. In the process concerning Law 600, there is not a clear division between the accusation and the decision to deprive a person of his or her liberty, because although a plea on the irregularity of a detention can be presented exceptionally, whether through a habeas corpus, a writ of amparo or control of legality, its exceptionality makes the contrast by an independent body, necessary in a deprivation of liberty, very difficult. In addition, the Working Group received reports that petitions for habeas corpus are still being interpreted in a restrictive manner.

In addition, in some departments, such as in Arauca, until the entry into force of the new procedure on 1 January 2008, the competent federal judges had been transferred to Bogota. Currently, because most of the proceedings include, aside from the crime of rebellion, that of terrorism, which lie within the competency of the specialized prosecutor, and are therefore transferred to Bogota. The location of these institutions presents objective difficulties for the exercise of the defense of the accused, which affects the right to equality of arms. Likewise, the right to defense is also questioned as the unit of the Prosecutor’s Office responsible for these investigations, or Support Structure, is located inside the facilities of the Eighteenth Brigade of the National Army. Without prejudice to the organic independence of both units, this presence makes access difficult for the witnesses of the accused.

The Working Group has been able to assess with great satisfaction the importance of the jurisprudence issued by the Constitutional Court concerning human rights developments, and the work of the judges responsible for the initial control of guarantees and the judges for the execution of sentences. However, the Working Group considers that the workload of the latter seems excessive, as the number of files for which they are responsible is very high. This prevents them from visiting prisons often and having direct contact with those deprived of their liberty.

The weaknesses that we have assessed in the observance of procedures for the deprivation of liberty require the vigilant activity by judges and courts, who should guarantee compliance with all guarantees established in the legal ordinances. It is precisely for this reason that we are concerned about the judicial strike, which impedes it from developing its work in the precise manner required by its institutional duties.

The Working Group would also like to add that the use of preventive imprisonment may be considered as an exceptional recourse in all processes and that the deprivation of liberty of persons whose guilt has not been proven in trial can be prevented.

Finally, in the framework of the Dignity and Justice for Detainees Week, celebrated this week upon the request of the United Nations High Commissioner for Human Rights, the Working Group would like to highlight some considerations relating to the centres visited. The Working Group considers certain elements of the penitentiary policies as very positive. In this sense, we would like to highlight the human rights committees comprised of detainees elected among themselves, and the post of the human rights consul. The Working Group would also like to highlight the maintenance and interconnected network of the registry in penitentiaries, which allow for the determination of the criminal situation of each person deprived of their liberty at all times. In general, the Working Group did not receive complaints of ill-treatment by the penitentiary authorities. However, the Group is concerned over the high rate of overcrowding observed in La Picota, Villa Hermosa, Palmira and Arauca prisons. In addition, some of those persons interviewed stated that they have no access to the light of day in their respective wards and that they are not allowed to go to the courtyard. In other cases, people who suffer from health problems indicated that they do not receive the required specialized medical attention, in contravention to the provisions found in the Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

A report on the visit will be considered by the Working Group at its 53rd session to be held in November 2008 in Geneva, and will be presented to the Human Rights Council in March 2009.

The former Commission on Human Rights established the Working Group in 1991 to investigate allegations of arbitrary deprivation of liberty. Its mandate was extended in 1997 to cover the issue of administrative custody of immigrants and asylum-seekers. The Human Rights Council assumed the Working Group’s mandate and extended it for a further three-year period by resolution 6/4 adopted on 28 September 2007.

The Working Group has carried out fact-finding missions to Angola, Argentina, Bahrain, Belarus, Bhutan, Canada, China, Ecuador, Equatorial Guinea, Honduras, Indonesia, Iran, Latvia, Mauritania, Mexico, Nepal, Nicaragua, Norway, Peru, South Africa, Turkey and Viet Nam. Concerning the issue of immigrants and asylum seekers, it has visited Australia, Romania and the United Kingdom of Great Britain and Northern Ireland.

The Working Group is composed of five independent experts appointed according to criteria governing equitable geographical distribution at the United Nations. In addition to Ms. Carmena (Spain) and Mr. Garretón (Chile), it is also composed of the following members: Ms. Shaheen Sardar Ali (Pakistan); Mr. Aslan Abashidze (Russian Federation) and Mr. Malick Sow (Senegal), the Working Group's Vice-Chairman.

For further information on the Working Group's mandate, please consult Fact Sheet N° 26: The Working Group on Arbitrary Detention, published by the Office of United Nations High Commissioner for Human Rights:
( http://www.ohchr.org/Documents/Publications/FactSheet26en.pdf)

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