Source : Peace Community of San José de Apartadó
Colombia’s Constitutional Court grants Father Javier’s claim that rights of members of the Peace Community of San José de Apartadó to justice, truth and reparations had been violated.
( Translated by Eunice Gibson, a CSN Volunteer Translator)
“ . . . The opinion expressed in this last letter from the Ministry, according to which every operation by the Armed Forces has intelligence components, is unacceptable. It is indefensible. Furthermore, nobody has asked that the results of any supposed intelligence efforts be revealed. Only the names of those present at certain locations, on dates and at times when crimes or serious violations of fundamental rights were perpetrated.”
“ . . . It is my understanding that if there are intelligence tasks being carried out in conformity with the law, those could never be carried out concomitantly with crimes against humanity or with serious violations of the Constitution and the laws. In those cases, to claim that they were committed as part of ‘intelligence undertakings’ that no record can verify, constitutes covering up the crime and a perverted “hooding” in the worst paramilitary style, by government agents who may be responsible for horrendous crimes . . .”
Bogotá, February 2, 2013
Dr. JUAN MANUEL SANTOS CALDERÓN
President of Colombia
File: EXT10-000996660 – November 3, 2010
File: EXT11-000006335 – January 24, 2011
File: EXT11-00014231 – February 13, 2011
OFI11 – 00007596 / JMSC 33020 – January 21, 2011
OFI11 – 00014392 / JMSC 33020 – February 15, 2011
OFI11 – 00019116 / JMSC 33020 – February 25, 2011
File: EXT11 – 00034960 – April 11, 2011
OFI11 – 00036328 / JMSC 33020 – April 11, 2011
File: EXT11 – 00061811 – June 28, 2011
File: EXT11 – 00109596 – November 15, 2011
File: EXT12 – 00064927 – August 2, 2012
File: EXT12 – 00089778 – October 17, 2012
With all due respect:
Mr. President, several times now I have invoked the constitutional right of petition, established by Article 23 of the Colombian Constitution, to ask that you immediately order the Defense Ministry to comply with Decision T-1025/07 of the Constitutional Court. They have refused to comply with it, providing reasons that cannot survive the most minimal legal analysis and constitute one more affront by officials of this government. Now I have received a letter from the Ministry of Defense, identified as Letter No 103 MDVPAI – DH-25.11, dated January 16, 2013. In that letter they roundly refuse to comply with that Decision by the Constitutional Court.
As you have certainly read and re-read numerous times, the Court expresses the crux of the civil rights action that gave rise to this Decision when it identifies the issue to be decided as follows: “Do citizens have the right to know the names, ranks, serial numbers, and units of the members of the Armed Forces who take part in specific military actions or who are present in certain places on certain days and at certain times? And, along with that, did the Defense Ministry violate the plaintiff’s right to receive the information in the government’s possession when it refused to furnish the requested data on the members of the Armed Forces who were present in certain situations unrelated to intelligence functions?”
Answering the main question, the Court spoke definitely on the second point. It decided to “REVERSE the decision of the Criminal Panel of the Bogotá Superior Court issued June 23, 2006 that had rejected the civil rights action filed by Javier Giraldo Moreno against the Defense Ministry. In place of that decision, the Court granted his claim that his right of access to information in the government’s possession had been violated. It also granted his claim that rights of members of the Peace Community of San José de Apartadó to justice, truth and reparations had been violated.”
Based on that finding, the Court reached the following conclusion on the third point: “IT IS ORDERED THAT THE MINISTER OF DEFENSE furnish the requested information, namely, indicate the names of the members of the Armed Forces who were in the places at the times indicated by the petitioner, as well as their serial numbers, units to which they were attached, and their rank. If the Minister considers it necessary, he could make an express petition for clarification in the same document that contains the names and the other information requested, stating that the revelation of that information does not imply any suspicion, indication, or admission of anything about the participation of those public servants in criminal activities.”
To make explicit its reasoning and the doctrine that underlies its decision, the Court states: “The Ministry’s decision entails an extreme assumption about the right to information, using it to impede the rights of the victims to have truth, justice and reparation and a guarantee that the actions that affected them will not be repeated. That means that, independently of whether the agents of the Armed Forces whose names are requested are innocent, the victims have the right to investigate the circumstances and the alleged actors in the crimes. That means that they can have access to the names of the agents that they think may be implicated.”
The court adds that “the determination by the Ministry of Defense in this case makes the citizen’s right of access to information in the possession of government agencies inoperative” and explains that “the confidentiality of the investigations does not apply to the names of those investigated but rather to the proceedings that are carried out” and that in the case of the members of the Armed Forces “from the very design of the uniforms worn by the Armed Forces, we start from the foundation that the names of the agents have to be visible and recognizable by the citizens. That means that the daily activities of the members of the Armed Forces include that their identities will be known, just as the plaintiff in this civil rights action is requesting.”
The Court states that this right of the citizens is implied and is part of the broader right to freedom of thought and expression, protected in several international treaties and declared as a FUNDAMENTAL RIGHT by the Court itself. (Decision T-464/92). The right is also based on decisions of the Inter-American Court for Human Rights where the court says, “Actions by the government must be ruled by the principles of openness and transparency in public actions. That makes it possible for people under their jurisdiction to exercise democratic control of governmental actions. In that way citizens can question, investigate and judge whether or not the government is carrying out its public functions appropriately.” (CIDH Decision dated September 19, 2006).
I believe, Mr. President, that the decision and the doctrine of the Court is absolutely clear, transparent, and definite, so as to leave no room for doubt.
The opinion expressed in the latest letter from the Ministry, arguing that every operation of the armed forces has intelligence components, is unacceptable because it is impossible to defend. Besides, nobody has asked that results of supposed intelligence operations be revealed, but only the names of those who were present at the times, dates, and places where crimes or serious violations of fundamental rights were committed. Revealing their names has no effect on the content of any intelligence that they are supposedly working on. It is my understanding that if there were to be intelligence tasks being carried out in conformity with the law, those could never be carried out concomitantly with crimes against humanity or with serious violations of the Constitution and the laws. In those cases, to claim that they were committed as part of ‘intelligence undertakings’ that no record can verify, constitutes covering up the crime and a perverted ‘hooding’ in the worst paramilitary style, by government agents who may be responsible for horrendous crimes.
It is my understanding, Mr. President, that the decisions of the Constitutional Court are imperatives for the government. Within the current constitutional and legal system, the chief of state, swearing to comply with the obligations that are inherent in his office, swears to support the Constitution and, as part of that, to comply with the decisions of the highest Court in the land. The logical consequence of that is, if his immediate subordinates refuse to comply with the decisions of the Court, and refuse as contumaciously as in this case, they would be discharged and replaced by others who would comply with the Constitution and the laws. If not, we have to conclude that the chief of state explicitly sponsors and supports disrespect for the highest Court and, consequently, the violation of the Constitution and the laws. The Constitutional Court, in its Decision SU-1184/01 defining the duty of guarantee that is incumbent on the chief of state, held that if the superior fails to prevent a crime against humanity, “because he is the guarantor, the resulting injury by the inferior is imputed to him and not just the simple failure to carry out one of the duties of his office.”
Therefore, invoking the constitutional right of petition, I request you earnestly, Mr. President, to order the Defense Ministry to comply with the cited Decision of the Constitutional Court, and, if they refuse, to discharge the officials responsible and to replace them with officials who will obey the Constitution.
Simultaneously, and, for the ninth time in your administration, I invoke the constitutional right of petition. I request urgent administrative measures to end the government’s barbarous treatment of the Peace Community of San José de Apartadó and the campesinos who make up their geographic and social environment.
The most recent actions perpetrated subsequent to my Petition No 8 (October 17, 2012) have been the following:
On Saturday, December 1, 2012, a group of paramilitaries went up to the town of El Porvenir. They approached some campesinos, asking about several people who live in the town but were not there at the time. It was the weekend and they had gone out of town. The paramilitaries threatened them, leaving a message that it would be better for them not to come back unless they wanted to die.
On Sunday, December 2, 2012, around 6:00 a.m., another group of paramilitaries camped on a farm belonging to the Peace Community. It is located in the town of La Esperanza. They stayed there all day. They are threatening the Community again, claiming that that sonofabitching community is a nuisance and an obstacle to the military and paramilitary projects that they have planned for this area.
On Wednesday, December 5, 2012, two families from the town of La Esperanza were displaced and left. Even though they are not part of our Peace Community, they are part of the campesino population. We are aware that for several weeks the paramilitaries have been around constantly and threatening the civilian population in the town.
On Sunday, December 9, 2012, the campesinos once again saw a group of paramilitaries patrolling in La Esperanza. They were telling the campesinos that they had a list of people to be killed and that sooner or later, “We’ll get you”. They said they were going to stick around and that they were going to take pictures of every person that came by.
On Sunday, December 16, 2012, a group of paramilitaries who had been camped at Caraballo near the town of Arenas Altas for several days had been in combat with the guerrillas on Wednesday, November 14, 2012. The paramilitaries camped there were shooting and machine-gunning, creating fear and intimidation in the civilian population around there. Up to now, the Armed Forces have not done anything.
On Saturday, December 29, 2012, between 6:00 and 9:00 p.m., on two occasions military helicopters landed on the Community’s farm in the town of La Esperanza. Military troops disembarked and camped on the property used as a community humanitarian zone. They damaged the fences and the lighting system.
On Sunday, January 6, 2013, around 7:50 p.m. for about an hour, shots were heard, as well as machine gun fire and explosions, from the military base located within the city limits of San José. At this time we don’t know what happened. Once again the people feel fear and anxiety because of these action against the defenseless people of the town. They are afraid that events like what happened last October 4, 2012, when military shrapnel killed a civilian, Alberto Ariza Huaca, will happen again. According to the campesinos, the soldiers themselves start the combat to confuse and terrorize the civilian population.
On Friday, January 11, 2013, around 9:25 a.m., Blanca Torres, a member of our Peace Community and the wife of Germán Graciano, a member of our Internal Council, received a call from cell phone number 3113422998. The caller identified himself as Santiago Giraldo, coordinator of Demobilized Persons in an Office in Bogotá. He called for Blanca by name and he told her that she should cooperate with them. He said they knew she could be helpful by furnishing information about the leaders of the Community. He said there was money in it for her, that she should help them, and they would cooperate by giving her money. We have complained in the past about the activities of a certain officer in the 17th Brigade who has offered money to people in the area for information about the movements of Peace Community leaders.
On Friday and Saturday, January 11 and 12, 2013, a small airplane was fumigating in the town of La Resbalosa and later in the town of Mulatos, where there is also a settlement of our Community. Because of the fumigation, the subsistence crops that the families had planted, such as beans, rice, and yucca, are starting to die.
On Thursday, January 17, 2013, in the afternoon, a small plane was flying over the settlement of our Peace Community in the town of La Resbalosa and started to fumigate the crops that the Community plants for its survival, such as beans, corn, rice and the organic cacao that we have sold and that we grow in that area. It has been certified as an organic crop for the small business that sustains us.
On that same Thursday, January 17, 2013, a group of heavily armed paramilitaries entered the town of El Manso in the municipality of Tierralta, Córdoba Province, a place right next to some of our settlements. There, with a list in their hands, they proceeded to detain a number of civilians. According to reports from the campesinos in that area, six people were detained and have disappeared. Up to now, nobody has heard what happened to them. On the same day, a campesino from the area by the name of CLIMACO PITALÚA was beaten up by the paramilitaries.
On Monday, January 21, 2013, around 3:00 p.m., in the town of Rodoxali, in San José de Apartadó, a campesino named ISMAEL ANGEL MOLINA CORREA, approximately 69 years old, stepped on a land mine while he was doing some work on his farm and it cost him his life. According to reports from campesinos in the area, a group of paramilitaries has been carrying out patrols and operations in the area.
On Tuesday, January 22, 2013, around 2:00 a.m., shots could be heard at the military base established in the urban part of San José de Apartadó. Later on the news media talked about a combat between the guerrillas and the Armed Forces. In the last few weeks and months the soldiers fire shots for other reasons, even when there are no insurgents around. The presence of Army and Police stations in the midst of the civilian population contradicts a number of rulings by the Constitutional Court, especially in conflict zones like the urban part of San José. Ever since its extreme militarization beginning in April 2005, it has attracted belligerent forces and become an incentive for armed confrontations, harming numerous victims in the civilian population.
On Friday, January 25, 2013, around 9:00 p.m., a contingent of paramilitaries entered the town of La Cristalina, where they harassed and threatened several families, including a number of children. The brothers ALBEIRO and LUBÍN Cardona Borja were among the paramilitaries that came. They are from the area and surrendered to the Army in 2005. They took part in a massacre of six young people in December 2005 and the Army paid them four million pesos (about $2,000) for each killing. Ever since then they have been mobilized with Army troops and on this occasion they reminded the people that exactly one year ago, in January of 2012, they had been right there with the Army troops. The presence of these and other civilians among the armed troops reveals the persistence of paramilitarism in the region because it involves civilians illegally recruited and domiciled in military establishments in order to carry out absolutely illegal armed operations. These illegal government agents detained and assaulted WILLIAM CARDONA and ALFREDYZ RIVAS BORJA there that day in La Cristalina. Government agents have subjected Rivas Borja to a criminal frame-up and serious attacks. Government agents have murdered the majority of the members of his family. Around 11 p.m. the paramilitaries barged into JOHN CARDONA’s house, forced him to give them food and later took him away to another house 25 minutes away from there. They went around taking the cell phones from all the families and took them away. A day later, they returned them.
On Saturday, January 26, 2013, around 1:00 a.m. the paramilitary group that had entered the town of La Cristalina the day before, entered the home of a member of the Internal Council of the Peace Community. They asked him if the Peace Community still had its settlement in San Josecito and they demanded the names of the leaders of the Humanitarian Zone in La Cristalina. The paramilitaries camped and stayed over night in the school in La Cristalina. At 6:30 a.m. they left the school and headed for the place where an Army patrol was camped, near the town of Miramar, very close to La Cristalina. That reveals the way they coordinate their activities.
I now reiterate, Mr. President, the previous petitions that have received no response, in open contempt of the Constitutional Court, and the new ones that result from the most recent events:
* Furnish me with the names of the members of the general staff and the directors of operations and intelligence of the 11th and 17th Brigades in the last year.
* Furnish me with the names of the officers who have commanded the bases or military and police units camped in the Nuevo Antioquia District, Turbo Municipality, during the last five years, along with their serial numbers.
* Furnish me with the complete name, rank, serial number and unit for Superintendent García, allegedly attached to the military base at Nuevo Antioquia.
* Furnish me with the names, ranks, serial numbers and units for the Army and Police personnel present in the urban area of San José de Apartadó on the following days: December 11, 2011; March 13, 2012, and the days between May 27 and May 30, 2012. More specifically, identify the member of the military who, inhumanly, shot John Freddy Úsuga on that day.
* Furnish me with the names, ranks, serial numbers and units for military personnel present at the checkpoint at Caracolí between December 15, 2011 and January 11, 2012.
* Furnish me with the names, ranks, serial numbers and units of the military personnel who were present in the town of Mulatos in San José de Apartadó on the days of January 28, 2012, February 2, 2012, February 10, 2012 and February 20, 2012.
* Furnish me with the names, ranks, serial numbers and units of the military and police personnel who were present in the town of La Cristalina in San José de Apartadó on the days of January 31, 2012 and February 7, 2012.
* Furnish me with the names, ranks, serial numbers and units of the military personnel who took part in combat with the guerrillas in the town of Arenas Bajas on February 20, 2012, in which a civilian with a disability, Marlobe David Sánchez, was killed.
* Furnish me with the names, ranks, serial numbers and units of the military personnel who arrived in helicopters at the town of Las Nieves in San José de Apartadó on July 24, 2012.
* Order Colonel Javier Eduardo Vallejos, Commander of the 17th Brigade, to make reparation for his defamation of the Peace Community, or else to demonstrate that the small donations that the Community receives from sympathetic organizations are conditioned on complaints that the Community must file against government institutions, and also to prove that the criminal complaints filed by the Community are false.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present August 7, 2012 in the town of La Resbalosa and who allegedly took part in combat with insurgents in which a guerrilla was killed.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present in the town of La Unión in San José de Apartadó on August 14, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present on Cerro Chontalito in San José de Apartadó (between the towns of Buenos Aires and Mulatos) on August 15, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present between the towns of La Unión and Las Nieves, in San José de Apartadó, on August 18, 2012, between 8:00 a.m. and 4:00 p.m.
* Furnish me with the names, ranks, serial numbers and units of the City of Apartadó motorized police who conveyed Germán Graciano to the police station on August 28, 2012 in coordination with people in civilian clothes who were trying to identify him in front of the police, after following him all over the city.
* Furnish me with the names, ranks, serial numbers and units of the Police personnel who were manning checkpoint in the place known as “La Cabaña” in Apartadó on August 29, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present in the town of La Unión, in San José de Apartadó on August 30, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present in the district of Piedras Blancas, Carepa municipality on August 31, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Police personnel who were present at the checkpoint in the Mangolo neighborhood of Apartadó on September 5, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present in the district of Piedras Blancas, Carepa municipality, on September 5, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Police personnel who were present at a checkpoint located between the city of Santa Fe de Antioquia and the municipality of Cañasgordas, on the night of September 6, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present at the military base in San José de Apartadó (next to the urban center of the district) on September 13, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present on patrol in the town of Miramar, in San José de Apartadó, on September 19, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army and Police personnel who were present in the urban center of San José de Apartadó on September 27, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present at the entrance to the privately owned farm La Holandita in San José de Apartadó on October 3, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were present at the military base in San José de Apartadó, next to the urban center, on October 4, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army personnel who were in charge of the Army radio station in Apartadó on October 4, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army and Police personnel who were present in the urban center of San José de Apartadó on October 6, 2012.
* Furnish me with the names, ranks, serial numbers and units of the Army or Police personnel who were present in the urban part of San José de Apartadó and who entered the residence of Mr. Jorge Bedoya on October 12, 2012.
* Furnish me with the names, ranks, serial numbers and units of the officers of the 17th Brigade who were assigned responsibility for protecting the residents of the towns of El Porvenir, La Esperanza and Caraballo between December 1 and December 16, 2012.
* Furnish me with the names, ranks, serial numbers and units of those who commanded and were part of military units that arrived in two helicopters in the town of La Esperanza on December 29, 2012.
* Furnish me with the names, ranks, serial numbers and units of the military personnel who were present at the military base in the urban center of San José de Apartadó on January 6, 2013 during the night.
* Provide me with information about the relation between the Armed Forces and the allegedly demobilized individual “Santiago Giraldo”, as well as the identity of the user of cell phone311 3422998.
* Furnish me with the names, ranks, serial numbers and units of the military personnel who fumigated the subsistence crops in the town of La Resbalosa on January 17, 2013.
* Furnish me the with names, ranks, serial numbers and units of the military personnel of the 11th Brigade who were assigned responsibility for the protection of the residents of the town of El Manso in Tierralta municipality, Córdoba Province, on January 17, 2013.
* Furnish me with the names, ranks, serial numbers and units of the members of the military patrols and of the civilians who patrolled with them in the town of Rodoxalí during the second and third weeks of January 2013.
* Furnish me with the names, ranks, serial numbers and units of the military personnel whose responsibilities include and have included command of and coordination with the Cardona Borja brothers, paramilitaries who reside in the Army’s 17th Brigade headquarters.
* Furnish me with the names, ranks, serial numbers and units of the military personnel who were in the town of Miramar and were near the town of La Cristalina between January 25 and January 26, 2013.
On so many occasions, for 16 years now, we have urgently and insistently begged the Chief of State to take strong measures to eradicate paramilitarism in this area. Paramilitarism has been responsible for many hundreds of horrendous crimes. We are convinced, based on direct and prolonged observation, of the close relationship, coordination and mutual support between the armed forces and the paramilitary organizations. The government has always refused to listen to our complaints and, with complicity and subterfuge, it has provided very effective support for their criminal activities. In all of the reports made to national and international agencies, they deny the facts and avoid any responsibility, sometimes even carrying out fictitious examples of control, such as visiting the paramilitary bases accompanied by officials from the Inspector General’s Office. Meanwhile, by prior agreement the criminals are somewhere else and they return as soon as the visit is over, when the report finding that such bases “do not exist” has already been drafted.
If the government does not make a firm decision to put an end to these fictions of control, paramilitarism will continue to perpetrate horrible crimes with the secret help of the armed forces. The only way to eradicate this is to confront the decisive factor in its persistence, namely its many-sided linkage with the armed forces, carried out by support, training, furnishing weapons and uniforms, coordination of information, alternating presence in territories they control, cover-ups, promises of anonymity and impunity, disinformation, creating pretended controls, alteration or deliberate preparation of orders for fictitious operations and troop locations, hiding and protection of key paramilitaries in official installations, manipulation and control of judicial proceedings that could prove that they act together, etc.
This reality must be met with drastic administrative measures from the President’s Office, immediately discharging armed forces commanders in whose jurisdiction paramilitaries maintain a presence among the civilian population. Not with formal complaints to judicial or disciplinary authorities, because that has been proved useless for some decades. That provides only danger and fatal consequences for the complaining witnesses. Evidence from communities is required. A second complaint, after providing a short time for action, ought to lead to the discharge of the military and police personnel who protect the paramilitaries. Persisting in these useless formalities means continuing effective support for these criminal organizations.
I beg of you, Mr. President, once more and with urgency, change your attitude toward paramilitarism and take administrative measures to turn away from these familiar fictions.
I thank you in advance, Mr. President, for your particular attention to these petitions, and I beg you to respond within the legal time limit, to the following address: . . .
Javier Giraldo Moreno, S.J.
CC: Inter-American Court for Human Rights – Case No. 12325
Inter-American Commission for Human Rights
International Criminal Court – File No. OTP –CR. 266/07
Constitutional Court of Colombia (Compliance Branch for Decision T-1025/07
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