AMICUS CURIAE, Javier Giraldo Moreno, S.J.
(translated by Eunice Gibson, CSN Volunteer translator)
Sent by cdpsanjose on Saturday, 4/13/2019 at 7:12 p.m.
Bogotá, D.C. March 29, 2019
Review Division, Constitutional Court
Ref. File # T-7092205, assigned January 28, 2019
File # T-14014660 Monitoring progress under Decision T-1025/07
With all due respect:
As the representative of the Peace Community of San José de Apartadó, and having appeared before this Honorable Court in the review proceedings based on Decisions T-249/03, T-327/04, T-1025/07, as well as in the monitoring of progress of the most recent case and of its consecutive Orders 164/12 and 693/17, and the Order of September 7, 2018, and being familiar with the Civil Rights Action filed by the 17th Brigade of the Colombian Army against the Peace Community of San José de Apartadó, decided by Decision 327 on October 5, 2018 by the Second Municipal Judge of Common Pleas in Apartadó and the petition for review (File # T-7092205) assigned to the Review Division on January 28, 2019 at the insistence of the Public Defender of Colombia, permit me to contribute the following writing as an AMICUS CURIAE. Its contents may be considered as part of the monitoring of progress under Decision T-1025 (File # T-1401460).
The Colombian Army’s 17th Brigade, based in Carepa, Antioquia Province, asked the trial judge in Apartadó to protect its rights to the honor, good name, and privacy of the soldiers attached there, as well as of its units, claimed to be injured by the Peace Community’s references to the behavior of the soldiers in their communications, or as reported in its Historical Records as displayed on the Community’s web page. The Brigade demands that the Community correct the reports and that it inform the Attorney General’s Office and the Brigade itself of any proof of bad behavior by the soldiers. The judge granted this demand in her decision.
As this Honorable Court is well aware, given the various decisions it has handed down in relation to the Peace Community of San José de Apartadó, and the Orders that have tried in vain to make the Brigade comply with the orders in the Court’s decisions and with other consecutive Orders, this Peace Community, ever since 2005 has given up using the legal system in its defense, or collaborating with it in any way. This after eight years of experience where, instead of obtaining any justice or legal protections, using it placed our members at risk, since many witnesses and those who made statements in those first years were stigmatized, stalked, displaced, or murdered. If you examine a good number of files, you see numerous schemes of corruption and impunity, and the Community shared that with all of the high courts in a petition filed on January 19, 2009. The Community based that rupture with the legal system on Article 18 of our nation’s Constitution, which reads, “no one shall be forced to act against his/her conscience.” That explains why the Community did not respond to the judge’s requirements.
But besides the procedural problem, which must be viewed in the light of the imperative language of Article 18 of the Constitution, which is considered to be a high constitutional principle, there are other legal elements that make the soldiers’ claim illegal, illegitimate, and unconstitutional. I will lay those before the Honorable Court.
This litigation puts at risk the right of free expression, guaranteed by Article 20 of Colombia’s Constitution. This right was analyzed in depth in Decision T-1025/07 (as it relates to the Peace Community of San José de Apartadó) and the analysis is part of the doctrinal nucleus of the right of free expression. In Part IV of that decision, beginning with “Review by the Court—Grounds and Conclusions (No. 12, page 79) it states: “Freedom of expression occupies a preferred place in Colombia’s constitutional order, not only because of the essential role it plays in the development of an individual’s autonomy and liberty (CP Article 16) and in the development of knowledge and culture (CP Article 71), but also because it constitutes a basic structural element for the existence of a true participatory democracy (CP Articles 1, 3, and 40). That is why this Corporation, in numerous decisions has emphasized the importance and transcendence of this right. It protects not only the ability to express and transmit opinions and ideas, or freedom of expression in the strict sense, but is also protects the possibility of searching for, receiving, and communicating information of every kind, the right and liberty to inform and be informed.”
Furthermore, if you keep in mind international jurisprudence in this area, it is important to refer to the Declaration of the principles of freedom of expression, adopted by the Inter-American Commission on Human Rights on October 20, 2000, where these principles were established:
- “Freedom of expression in all of its forms and manifestations is a fundamental and inalienable right of all individuals. Additionally, it is an indispensable requirement for the very existence of a democratic society”.
- “Every person has the right to seek, receive, and impart information and opinions freely under terms set forth in Article 13 of the American Convention on Human Rights. All persons should be afforded equal opportunities to receive, seek and impart information by any means of communication without any discrimination for reasons of race, color, sex, language, religion, political or other opinions, national or social origin, economic status, birth or any other social condition.”
(5) “Prior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression.
(11) “Public officials are subject to greater scrutiny by society. Laws that penalize offensive expressions directed at public officials, generally known as ‘desacato laws,” restrict freedom of expression and the right to information.
Moreover, there are very clear rights established by the United Nations General Assembly on March 8, 1999 (A/RES/53/144) in its Declaration known as the compendium of the rights of Human Rights Defenders: In Article 6 it establishes the right of every person, individually and collectively: “freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms, as well as to study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.
This declaration by the General Assembly leaves no doubt with respect to the right that supports the Peace Community of San José de Apartadó TO PUBLISH AND DISSEMINATE INFORMATION THAT PERMITS DEBATE ON WHETHER THESE RIGHTS ARE OBSERVED OR NOT, NOT JUST IN THE LAW, BUT ALSO IN PRACTICE AND ALSO TO CALL PUBLIC ATTENTION TO THESE QUESTIONS THROUGH APPROPRIATE MEANS.
The exercise of such a right, based so obviously on international jurisprudence and doctrine, is also based on contextual circumstances that must be considered:
The Peace Community of San José de Apartadó, ever since it made clear that its moral conscience forbade it to collaborate with a “justice system” that did not fulfill even the most minimal requirements of that name, as was amply documented in the petition filed with the highest courts on January 19, 2009, has sought alternative ways to deal with the crimes that were and still are victimizing us, so that they would not remain in total impunity. The first means that we chose was to take our cases to international tribunals, and we did that, to the Inter-American Court as well as to the Inter-American Commission for Human Rights, the International Criminal Court, and Spain’s National Court. And we explored other areas of universal jurisdiction, but all of these processes are very prolonged and their requirements are very expensive.
Another path, that was thought to be more expeditious, was to turn to the constitutional right to petition the Head of State, hoping that the administration would make the decisions that are demanded by its status as guarantor of our rights, based on various articles in Colombia’s constitution. However, numerous petitions were filed with the offices of the last four presidents and they provided no results whatsoever. The presidents always just referred them to the Ministers of Defense, in solidarity with the high-ranking military officials. They systematically played the role of cover-up and complicity; their responses were saturated with evasion, denial and falsehoods that always permitted them to maintain the criminal structures in the region untouched, without any investigation or any sanction against the officials responsible for the crimes. The presidents and the ministers denied everything and besides, they refused to furnish the names of the soldiers who were present on the days and at the times and places where the crimes were committed. They were in inflexible and contumacious contempt of the decisions and orders of the Constitutional Court, which had repeatedly ordered them to furnish those names.
A third path that has been nearly concomitant with the long existence of the Peace Community has been to resort to civil society without waiting for judicial decisions, but hoping only for moral and political decisions. Because the basis of law in the human species is to recognize the respect or disrespect with which government agencies treat human dignity and the right to declare yourself, to protest and to defend your life and fundamental human rights by means of universal public opinion. This path has been nourished by the Historical Records that are disseminated through social networks and that are, in this case, the target of the attack by the 17th Brigade and the Second Municipal Common Pleas judge in Apartadó.
Another element of context that is worth keeping in mind is the effort that the Peace Community has made to regenerate the administration of justice. For many years the Community has cried out for the creation of a Commission for the Evaluation of the Legal System because our tragic experience showed us that the judicial apparatus refused to recognize the separation of powers and resorted to terribly wicked methods, inventing testimony and using false evidence to condemn the innocent and absolve the guilty. They violated every governing principle in the applicable codes and international treaties, and they bought the complicity of the prosecutors, judges, inspector general’s officials, magistrates and public defenders.
When the historic leader of the Community, Luis Eduardo Guerra was massacred along with his family on February 21, 2005, he was on the way to obtaining the creation of such a Commission. Thanks to Order 164/12 of the Constitutional Court, that Commission could have been created, but it suffered an internal boycott by all the functionaries who should have participated, without having examined one single case file. The Community is convinced that the legal system cannot operate fairly if it does not confront that past, a past full of corruption, not only to discover it and set up corrections so as to clean out corrupt personnel, but also to discharge and punish those who have turned it into a disgusting world of crime, in addition to compensating the victims, at least morally.
In its Order 693/17, the Court did not insist on reconstructing the Commission for Evaluation of the Legal System, but it did propose that the cases involving the Peace Community be sent to the Special Jurisdiction for Peace (JEP in Spanish). The Community has carefully examined the possibilities that the JEP offers for justice. We submitted a query, with attached documents, to the President of the JEP. She responded extensively in a document that confirms our doubts and fears.
In the first place, the JEP’s vague interpretation of the requisite for being a victimizer (and consequently for victims as well) supports our concern: it requires that the challenged activities be related “directly or indirectly to the armed conflict” or have been “occasioned by the conflict”. This distorts radically the characteristics of the crimes suffered by the Peace Community. Its essential identity consists exactly in not participating in the armed conflict or collaborating or living alongside any armed actor. If the Community’s victimizers claim any relation to the conflict in order to be admitted to the JEP, That can only be done by relying on the infamous defamation that claims that the Community was part of the guerrillas. That outrage radically distorts any attempt to do justice.
Besides that, the different political manipulations of the JEP Statute have made it unable to do justice in accord with the parameters and regulations of the Statute of Rome. They have removed the possibility of adjudicating the responsibility of the Heads of State, and if anything could be absolute evidence of that, anyone who reads and analyzes the 87 petitions, with the horrors that are described in them and the urgent clamors to the presidents to save the lives, the bodies and the rights of the members of the Community and of their campesino neighbors, it is that the presidents were most responsible for the horror. They did not pay attention to the justified and urgent cries of the victims and thus did not carry out the essential duties of their position.
The International Criminal Court has itself been questioning the twisted drafting of the articles on the responsibilities of the military commanders, in order to accommodate a shameless impunity. Other articles perversely modified by the politicians in power have created obstacles to the identification of crimes against humanity and genocidal practices; to finding the causes of their systematic approach; to the incrimination of the businessmen; to the identification of politicians and civilian officials whose role not infrequently determined the crimes and the impunity.
All of this is wrapped in an even more gigantic mantle of doubt and obscurity when we perceive the complete absence of strategies for No Repetition in the SIVJRNR (Integrated System for Truth, Justice, Reparation and No Repetition). The belief that leaving intact the institutions and structures that permitted and favored the horrors would “guarantee no repetition” is absolutely unacceptable. It is obvious that the JEP is not a setting that could do even minimal justice to the Peace Community.
Logically, the review of the decision in this civil rights proceeding ought to deal with the factors that have overwhelmed a campesino community with the most horrendous systematic crimes and limited it to the most primitive reaction of a victim: a cry for help to his fellow human beings. And that is the final and fundamentally human result that the Brigade and the judge are trying to close off by this civil rights decision.
I attach to this Amicus Curiae the book “En las entrañas del Genocidio”. (“Inside the Bowels of the Genocide”) This book thoroughly organizes the report requested by the Inter-American Commission on Human Rights in Case 12325. I also annex the CD: Anexos al Informe 21 Años de Ignominia (Annexes to the Report Entitled “21 Years of Disgrace”), with copies of the cases about the Peace Community of San José de Apartadó carried out for 21 years.
With all due respect,
Javier Giraldo Moreno, S.J.
C.C.3.515.984 Dirección: Carrera 5 No. 33-B-02, Bogotá, D.C. Tel: 2456181
Book: “Inside the Bowels of the Genocide”, Caso Tipo No. 13, Series Night and Fog, Human Rights and Political Violence Data Bank, CINEP, 140 pages
CD: ANNEXES TO THE REPORT ENTITLED “21 YEARS OF DISGRACE”
(1) See in particular, and among many others, Decisions T-609 in 1992, T-066 in 1998, and C-087 in 1998.