(Translated by Stacey Schlau, a CSN Volunteer Translator, edited by David Van Den Brandt)
March 20, 2014
Source: Colectivo de Abogados José Alvear Restrepo
All national and international juridical systems recognize precautionary measures. Colombia is not an exception. Likewise, precautionary measures for the protection of human rights are provided in the United Nations, as well as in the European, Interamerican, and African systems; and with a different focus the International Criminal Court and the International Court of Justice accept this legal concept. The reason for the existence of these precautionary measures worldwide is that they are binding, and this is a universal law.
The precautionary measures that the Interamerican Commission on Human Rights announced in favor of the Mayor of Bogotá, Gustavo Petro, ordered the President not to carry out the decision to discharge him made by the Attorney General on January 13, 2014, until the Commission had thoroughly investigated.
By ignoring the decision of Cautionary Methods, President Santos committed a juridical error when he went against the clear jurisprudence of the Constitutional Court, which recognizes the binding nature of the Commission’s decisions. Contrary to what the Chancellor Ángela Holguín affirms, in at least twelve decisions, the Court reaffirmed this principle regarding the rights to life, personal integrity, and due process.
On the other hand, it is serious that the presidential candidate, on his own, intends to extend the reach of precautionary measures, since this task belongs to the Constitutional Court. The political rights recognized in Article 23 of the American Convention cannot be ignored; these rights cannot be revoked even as an exception, for they are at the heart of the history of human rights and modern constitutionalism.
The rule of depleting the internal resources of the Interamerican System only applies in the system of petitions or cases, and not for precautionary measures. This rule allows the State to resolve the problem internally, before confronting an international process, which is especially important in international jurisprudence related to human rights, because this is “contributing or complementary” to internal law, according to the Preamble of the American Convention, the groundbreaking case of Velásquez Rodríguez from 1987, and continuous jurisprudence to this day.
President Santos’s insubordination when he ignored the precautionary measures of the Commission, goes against the National Constitution, the American Convention on Human Rights, and other international treaties signed by Colombia. It also represents a break with Colombian juridical tradition, to respect, uphold, and implement measures of protection. Colombians use precautionary measures the most.
The disrespect also violates the constitutional framework, that is to say, those principles that, although they do not appear in the actual text of the Constitution, are used as parameters of marking the constitutionality of laws, because of which they have been normatively integrated into the Constitution by diverse means and by mandate of the Constitution itself, 9, 93, 94, 214, 53, and 103.
By ignoring the precautionary measures, both the Attorney General and the President are implicated in a possible failure to act properly.
The arbitrary abuse of power by the presidential candidate creates a dangerous precedent for Colombia and the rest of the continent. What will happen from now on regarding the protection of persons and communities at risk in Colombia?
March 20, 2014 – Collective of Attorneys José Alvear Restrepo
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