(Translated by Eunice Gibson, CSN Volunteer Translator)
Republic of Colombia
Constitutional Court
PUBLICATION 17
May 13, 2021
Order No. 225/21
Justice Alejandro Linares Cantillo
File # T-7,092,205
REJECTION OF MOTION BY GERMÁN GRACIANO POSSO IN HIS CAPACITY AS MEMBER AND LEGAL REPRESENTATIVE OF THE PEACE COMMUNITY OF SAN JOSÉ DE APARTADÓ TO DECLARE NULL AND VOID DECISION T-342 OF 2020
- Synthesis of the Decision
Reference the statement by the Court en banc with respect to the motion by Sr. Germán Graciano Posso, in person and on behalf of the Peace Community of San José de Apartadó, of which he is a member, to declare the decision null and void. The first basis for the motion consists in a violation of the principle of publicity and of due process of law, in that the Decision was communicated without the dissenting opinion of Justice Antonio José Lizarazo Ocampo. The second basis argues that Decision T-342 of 2020 failed to recognize controlling precedent on the right to good name, i.e., freedom of expression, and the three-part test and the applicability of a civil rights action against a private individual.
For the full Court, the motion to declare the decision null and void, although it complies with the requisites of the plaintiff’s standing and timely filing, fails to satisfy the minimum requirements of supporting arguments required by constitutional jurisprudence to declare Decision T-342 of 2020, issued by Branch Three for Review of Civil Rights Actions to be null and void and without effect. The movant did not present clear, express, precise, pertinent, and sufficient bases to demonstrate a violation of due process.
_________
Once again our Peace Community of San José de Apartadó uses its fundamental right of self-expression to communicate to the people and the communities in solidarity in this country and in the world and, in general, with all of the society that surrounds us, to let them know what we are experiencing and suffering every day. We have always been surrounded by threats, risks, and sufferings, ever since we began. This country’s institutions, instead of protecting us, have preferred to attack and confront us, or they have made use of other criminal groups that enjoy their protection, to attack us and to make us feel that our government considers us to be aliens or, worse still, “internal enemies” that don’t deserve either respect or protection, or the protection of our human rights, or even of our rights as citizens.
And in some periods we have at least counted on the protection of the Constitutional Court, which in several decisions and orders has vindicated our fundamental rights and demanded that they be respected. It has even ordered the President of the Republic, his Ministers and agencies of control to respect our rights, which orders were eventually ignored and mocked even by the Chief of State himself, and by his Ministers and his other agencies. However, now the high Court itself has capitulated, and ignored its essential obligation to safeguard the fundamental principles of the Constitution, undoubtedly because of political pressures, as was shown by its decision in the recent motion to declare null and void the decision by a Review Branch that accepted the claims by a military establishment that were obviously opposite, not just to the National Constitution and its jurisprudence, but also to well-established international law.
In effect, when the Colombian Army’s 17th Brigade tried to muzzle us, in August of 2018, using a civil rights action submitted to a Common Pleas judge in Apartadó, hoping to stop us from reporting on the pains that civil society here is suffering. The courts for many years have not cared to act when we frequently have gone to court to beg and demand justice without being heard, but rather we have been offended and threatened. Not even the Presidents have wanted to carry out their constitutional obligation to act as guarantors of fundamental rights, because we have begged them urgently with no fewer than 90 petitions, without ever being heard. The decision embracing the military’s civil rights action ended up in the Constitutional Court’s Revision Branch, where a Justice well known for his reactionary ideology decided to submit to military pressure, and issued Decision T-342 in which he decided to “protect the right to a good name of the 17th Brigade of the Colombian Army and its members” ( … ) reasoning that in the complaints by our Community that the Peace Community “ignores the presumption of innocence in that it attributes to the military unit the acquiescence and actual complicity with paramilitary groups, without the existence of any judicial finding that has recognized such a situation.”
Such a decision scandalized and infuriated people that are familiar with constitutional and international law, because, for one thing, it seems to ignore a right as sacred as the right to free speech, which for treaties and international agencies is the most fundamental pillar of a government that wants to call itself “democratic”. For another thing, it ignores the fundamental criterion that the Constitution has recognized in order to know whether a person can claim a right to a “good name”, and that is when his/her social behavior shows that he/she merits a “good name”.
In spite of everything, the Justice who authored the decision did not ignore the fact that the 17th Brigade was implicated in horrendous massacres and in alliances with the paramilitaries, because he refers to it in the decision itself, and only in one paragraph does he express the fear that they might keep on doing those things. But he flagrantly contradicts his conscience by not even asking whether all of the things that our Community has recorded in its complaints are true or false, and does not even order that our complaints be investigated. Such an anomalous decision aroused the solidarity of attorney friends who prepared a Motion to Declare it Null and Void, a motion that received the support of eminent jurists in different countries and of international human rights organizations.
All of this demonstrates that the draft opinion was already established to declare the decision to be Null and Void, but in the en banc session last May 13, 2021, the decision favored by only one vote those who were afraid to nullify a decision by such a high court, because that could discredit the Court. Transparency has never been a prominent virtue of the court system which prides itself on its power. According to the publication issued by the Court on that date, four Justices dissented and the other four explained their vote. Reading the summary of the arguments, it’s clear that nearly all of the Justices disagreed with Decision T-342 and only some of them were unwilling to nullify it, not because of the central argument—they made clear they disagreed with that—but because the technical arguments for nullifying it were not well crafted. But, how can you require a victim, or her attorney, to master the technicalities of constitutional jurisprudence? Were not those same Justices the ones who needed to perfect their technical arguments?
It was clear that eight of the nine Justices agreed that the soldiers could not assert a right to a good name, and least of all those of the 17th Brigade, and that the right to free expression by the Peace Community could not be restricted, least of all when the Community is filing complaints. But that is not consistent with the Court’s central decision in this case, which, by rejecting the motion to Declare the decision to be Null and Void, it maintains in effect the prior decision, which results in protecting a right that cannot be protected and restricting another right that cannot be restricted.
The most radical bloc of the Justices (the ones who dissented) states categorically that the soldiers cannot claim a right to a “good name”. On that point, they state: “for the protection of the constitutional guarantee to a good name, the jurisprudence in effect requires irreproachable conduct of the one who aspires to achieve that. So, one who has court decisions against him/her that disprove the existence of irreproachable conduct is not in a position to demand the protection of his/her right to a good name, because of crimes or omissions committed in the past. The Court has been emphatic in declaring that the right to a good name, besides being very personal, is directly related to ‘the value that members of society feel about the person, so that the reputation or fame of the person is the component that activates the protection of the right. Therefore, there must be attention to the fact that this guarantee requires a good image, social recognition, and irreproachable conduct by the person that claims its protection. In our opinion, in this case it was not possible to protect, using the jurisprudential rules that apply, the right to a good name by the 17th Brigade of the Colombian Army. In effect, the more than ten decisions by the Inter-American Court for Human Rights, the various orders for follow-up issued by the Constitutional Court and the different judicial decisions, not only national but also international, show that in the past there was complicity between the 17th Brigade of the Colombian Army with paramilitary groups that operate in the area of Urabá and commit violent acts that have victimized the members of the Peace Community ( . . . )In consequence it was proper to nullify Decision T-342 of 2020 based on the failure to consider the jurisprudence in effect, having been issued by the Review Branch and the full Court.”
Neither the Publication, nor the dissents and the explanations by the Justices of their votes, insist that the Decision, which we had asked to have declared null and void, requires us to retract our complaints, nor take them down from social networks, nor does it prohibit us from going on with our complaints. But the Decision, which remains in effect, contradicts all of that. It is entirely incoherent. The Court is fractured.
We have to give some credit to the four Justices that dissented, with this note of understanding for our Peace Community: “The decision to deny the nullification converts into an event of historic denial of the right to legal protection that these victims of the armed conflict in Colombia are suffering. These people are sick and tired of going to a system that has proved to be insufficient on numerous occasions. Today once again they find strict and inflexible barriers that nullify the protection of their rights to due process, to effective access to the legal system, and to the exercise of their fundamental liberties, in particular, their freedom of expression.” So they thoroughly understand then, our break with the legal system.
Supported in our incorruptible convictions, we continue here to REPORT on events that have taken place recently:
On Sunday, May 30, 2021, a paramilitary known as “El Flaco” (“Skinny”) threatened a resident of the urban part of San José with a gun (a pistol), and nobody in authority did anything. It appears that the victim had to leave the area for a few days to save his life.
On that same Sunday, May 30, 2021, during the day, we learned that the paramilitary, alias “Cristian”, along with other members of his group, were going to peoples’ houses to demand money from them to fix the trails again after they were wrecked by the machinery that penetrated the towns (veredas) illegally, using the roads promoted by Sr. César Jaramillo together with the 17th Brigade.
On Tuesday, June 1, 2021, during the day, a group of more than ten paramilitaries carrying long guns and communication radios was seen passing through the town (vereda) of El Porvenir. It is recorded that they are going around there all the time without any restriction, and they already have an operations center there to control the area.
On Saturday, June 5, 2021, we learned that the celebration of the campesino fiesta in the town of La Unión is being organized by the Community Action Board together with Sr. César Jaramillo and the 17th Brigade. This is worrisome because of the constant presence of the paramilitaries there, such as alias “Ramiro” and other young men that are also carrying guns and shooting them off, and it’s also worrisome that no attention is given to the reports the Peace Community has made of some very serious events.
On Sunday, June 6, 2021, during the day, our Peace Community was informed that the paramilitary Wilfer Higuita was in the urban part of the town of La Unión, trying to find out who is informing the Peace Community about everything that goes on up there.
On Friday, June 11, 2021, during the afternoon, two paramilitaries intercepted a small boy from ourPeace Community on the road that leads to the urban part of San José. They used him to send threats against our Representative, telling him: “hey brat: tell that legal representative of the Community he better watch out because we’re coming for him one of these days.”
On Saturday, June 12, 2021, during the day, two paramilitaries carrying communication radios and short guns were seen at three minutes distance from the urban part of the town of La Unión.
On Thursday, June 17, 2021, during the day, an unfamiliar armed group was seen walking around the town of La Unión in the District (corregimiento) of San José de Apartadó. We heard that they are paramilitaries and were using long guns, uniforms, and military helmets to patrol in the area, just as if they were the Colombian Armed Forces.
On Saturday, June 19, 2021, in daylight hours, a group of paramilitaries carrying long guns, and wearing uniforms and military helmets was seen in the town of Las Nieves in the District of San José de Apartadó. It was the same group that was seen in the town of La Unión on June 17, 2021.
Once more we thank the people and the communities that in different parts of the country and the world, because of their deepest convictions, have accompanied us in the more than 24 years of the Peace Community. In spite of the isolation imposed by the pandemic you have continued every day to pressure the Colombian government not to permit the destruction of our lives, nor of our property nor of our legacy. Our most sincere gratitude for continuing this process for the defense of our lives. You also encourage us spiritually to continue defending our principles.
Peace Community of San José de Apartadó
June 26, 2021