By Alejandra Bonilla Mora, EL TIEMPO, November 9, 2021

(Translated by Eunice Gibson, CSN Volunteer Translator)

The high court dismissed the civil rights action brought by General Marcos Pinto.

The Constitutional Court rejected the argument presented about the mural “Quien dió la orden?” promoted by a number of social organizations, and including several members of the Colombian Army. The question is, who ordered the cases of “false positives”, or extrajudicial executions, to be carried out.

In the decision that was seen by EL TIEMPO, the high court held that the publication “is a part of protected speech” and free expression, that it is a matter of public interest, and is not defamatory.

The high court studied a civil rights action filed by General Marcos Evangelista Pinto Lizarazo, who appears in the mural wearing the number 45 above his head, accompanied by high officials of the Colombian Army. In the civil rights action, they asked that the Movement of Victims of the State (Movice) be ordered to rectify the publication of the mural, which was posted first on Twitter on October 19, 2019.

The trial court rejected the civil rights action, but in their first appeal, the court ordered that the mural be removed, not just from the streets, but also from the social networks.

In a decision authored by Justice Antonio José Lizarazo, the court held that “this type of expression constitutes the exercise of the right to participate in the control of political power, as established in Article 40 of the constitution.”

“As a consequence, given that the publication involves a public interest and refers to government officials, this is part of the framework of speech recognized by the legal system as protected,” states the decision. It emphasizes that the mural investigates the killing of civilians presented as “kills” in combat, killings that are attributed to members of the Armed Forces who allegedly were under the command of their respective superiors in the Colombian Army.

“To that extent, we should note that, due to the seriousness of the events, to the immense impact the phenomenon of the so-called ‘false positives’ has had on our society, given also their complexity and all it implies when members of the Army are being investigated for their alleged participation in events that the complainants have alleged to be a systematic activity, the claims and the data that relate to the image in question are very evidently of public interest,” stated the court.

“At the same time, it constitutes a criticism of the government, which is clearly part of the public debate. In the same manner, we see that in the image that is part of the challenged publication, there appears a photograph of the plaintiff as a member of the Army, in command of one of the units being investigated for the above-mentioned events,” continued the court.

The high court insisted that “given that the publication involves a public interest, and makes reference to government officials, that frames it as speech recognized by the legal system as being protected.”

The mural divulges information about the investigations.

The 42-page decision also maintains that General Marcos Pinto “is now part of the Colombian Army’s high command, and during the period between 2002 and 2010 (the time period related to the challenged image) he was in charge of different Army units.”

“In this connection, as previously indicated, given his status as a public official, his performance in exercising the public functions that the constitution and laws assign to him is the subject of scrutiny by citizens. In addition, the publication does not refer to the plaintiff’s private life; on the contrary, it’s related to his public functions and is relevant for evaluating the confidence placed in him by society because of his position. For that reason it deals with speech that must be protected forcefully,” reads the decision.

The high court emphasized that the information contained in the mural “is based on information related to events that are the subject of criminal investigation and, in this respect, are not without justification; nor do they constitute abusive statements or statements intended to cause harm.”

Thus, since the information disseminated in the image, states the court, “is not simple opinions that lack any support, but rather, according to the evidence in the documentation in the file, they are investigations that are even now being advanced by authorities such as the Special Jurisdiction for Peace, and the Attorney General’s Office.”

On General Pinto’s specific case, with the number 45 shown over his head, the high court said that the message intended to be sent is that the officer would be the one responsible for that number of “false positives” and that, in this case, does not show “any reference or direct accusation that tries to impute some type of responsibility.”

“What can be perceived from the message is that the authors are divulging a series of reports about the so-called ‘false positives’ that allegedly occurred under the command of each one of the members of the Army that are identified in the time period; data that, as was stated, is not the product of imagination, but rather part of the investigations that the Special Jurisdiction for Peace is carrying out right now,” stated the court.

The importance of the extrajudicial findings

The court added that the truth about what happened outside any legal system turns out to be extremely relevant, because it relates to the elements that are necessary to satisfy the rights of the victims and establish the basis for peacemaking.

Because of that, “this path not only permits the public to file complaints about the occurrence of crimes, but it also has as its purpose the construction of a true story of the transgressions that must be recognized, and also incorporates it into the collective memory as a premise in putting together ways of finding reconciliation in the society.

“The truth that is reconstructed through extrajudicial mechanisms reinforces the collective dimension, because it contributes to the building of historical memory, and in the same way, it restores its autonomous value for the victims. The public narratives that these create, besides being a method of inclusion, also restore the rights to honor, and permit the materialization of the guarantee of their ability to tell the truth that belongs to them. Because of that, it can be said that an attempt at censorship could result in the revictimization of those who were affected by the respective crimes,” states the decision

For that reason, the high court said that in this case, it’s of great importance to protect the right to free expression, because “the nuclear character of free expression could be threatened if that decision of the court of first appeal were to be affirmed. That would impede the carrying out of its constitutional purpose which, in this case, is to publicize a matter of evident public interest and which is part of the democratic control that the citizens are able to exercise.

“The expression attacked here by the plaintiffs has no identified guarantee. On the other hand, if indeed the expression has had a high impact, that shows that it is dealing with events of public knowledge. The impact is also owed to the fact that it’s a matter of great national importance,” states the decision.

“ It’s clear to this Branch that this case is not an abusive exercise of freedom of expression. Thus, after making an objective analysis of the foregoing, we reiterate that the message is of interest to the public; it’s related to the responsibilities of an individual who exercises command in the Colombian Army. It absolutely is not lacking support in the judicial investigations being carried out right now, and it does not contain allegations that are degrading or disproportionate,” insists the court.

Finally, the high court stated that “the citizens have the right to complain publicly about the events and activities that they consider irregular and that are attributable to public servants. Consequently, the citizens are not obligated to wait until a judicial authority issues a decision on it to be allowed to confront or question the events that they believe have prejudiced their rights.”

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