The author of the communication describes the relevapt facts as follows: On 13 April 1978, the judge ot the 77th Military Criminal COurt' of Investigation, himself a member of the police, ordered a raid to be carried out at the house at No. 136-67 Transversal 31 in the "COntador" distl'ict of Bogota. The order tor the raid was issued to Major Carlos Julio Castafto Rozo, the SIPEC Chief of the F-2 Police, Bcgota Police Department. The raid was ordered in the belief that Miguel de German RibOn, former Ambassador of Colombia to France, who bad been kidnapped som~ days earlier by a guerriYla organization, was being held pr1soner in the house in question. Those taking part in the raid were -Ln-
The author adds that, according to witnesses, the victims were not given the opportunity to surrender. He mentions that the police stated that they were dealing with persons with criminal records but that subsequent 1nvest1gation by the police did not prove that the victims were kidnappers.
The author alleg~s that seven persons - including Maria Fanny Suarez de Guerrero - were arbitrarily killed by the police, that the police action was unjustified and that it has been inadequately investigated by the OOlombian authorities. He claims that, at the beginning, the case was shelved under Legislative Decree No. 0070 of 20 January 1978 because the Colombian authorities considered that the police had acted w1th1n the powers granted by that Decree. He further alleges that there have been other cases of arbitrary killings by the army and the police on the pretext that they were dealing with suspicious people and that it has later been proved that the victims were either innocent or persecuted tor political reasons.
Legislative Decree No. 0070w "introducing measures for the restoration of pUblir'! order" amended article :l~ ot the Colombian Penal Code by add1ng a new pa=agraph 4. The sUbstantive part of the Decree reads as tollows: "Article 1. For so long as public order remains d1sturbed and the national territory is in a state of siege, article :l5 ot the Penal Code Shall read as follows: "M"tic:le 25. The LpenalJ act is justified if committed: (4) By th~ members ot the police torce 1n the course of operations planned with the object of preventing and curbing the oftences ot extortion and kidnapping, and the production and processing ot and tratt1ck1ng 1n narcotic drugs". See the text of Legislative Decree No. 0070 in the appendix below. -138-
The author states that domestic remedies to declare Decree No. 0070 unconstitutional have been exhausted, since there is a decision of the Supreme Court of Colombia of 9 March 1980 upholding the Decree's constitutionality.
The author states that the case has not been submitted to a~y other procedure of international investigation or settlement.
On 9 August 1979, the Human Rights Committee decided to transmit the communications to the State party, under rule 91 of the provisional rules of procedure, requesting information and observations relevant to the question of admissibility.
By letter dated 5 May 1980, the State party refuted the aJlegations made by the author of the communication that the enactment of Legislative Decree No. 0070 of 20 January 1978 constitutes a breach of 8rticles 6,
9, 14 ana 17 of the Covenant.
The State party submitted that it cannot reasonably be claimed that this Decree establishes the death penalty or empowers the police to practise torture or cruel, inhuman or degrading treatment or that it infringes the rights or guarantees established by articles 9, 14 and 17 of the Covenant. It cited the ruling on the scope of the Decree given by the Supreme Court of Justice in its judgement of 9 March 1978, by which it held the Decree constitutional. The Court said in particular: " as can be seen, the Decree, in article 1, paragraph 2 (4), introduces a temporary addition to the current text of article 25 of the Penal Code, for the purpose of creating a new defence to a, criminal charge; the Decree provides that it is a good defence in answer to such a charge to show that the punishable act was 'committed ••• by the members of the police force in the course of operations planned with the object of preventing and curbing the 9ffences of extortion and kidnapping and the production and processing of and trafficking in narcotic drugs'. This amendment contemplates a legal situation different from those referred to in the first three subparagraphs of 'article 25, which formerly constituted the entire article and hence has special characteristics. -139- "The provision introduced' by Decree No. 70 concerns another class of circumstances to justify action taken by the police with the object of preventing or curbing the oftences of extortion, kidnapping and the production and processing ot and trafticking in narcotic drugs. "on the one hand, the provision ls broad in scope in that 1t does not limit the means of action, tor under the provision both armed torce and other means of coercion, persuasion or di6suasion may be used. "On the other hand, however, the prov1s1on llmits the t1eld ot act10n to the objectives referred to therein, namely, preventing and curbing the oftences of kidnapping, extortion and the product1on and process1ng of and trafficking in narcotic drugs .. The COurt observed that the Decree was obY iouSly related to the tact that the national territory was in a state of siege and It turther stated: ..... this is a special measure that involves a r1ght of soclal detence, for, on the one hand, it is legitimate that the me~bers of the armed torces who are obliged to take part in operations like those described and whose purpose it is to prevent or curb offences which, by their nature, are Violent and are committed by means ot violence against persons or property, should be protected by a justification of the punishable acts that they are constrained to commit, and, on the other hand, both the Government, acting on behalf of society, and society itself, have an interest in the defence of society and in ensuring that it is adequately defended by the agencies to which the law has entrusted the weapons tor its detence".
In considering the provisions of Decree No. 0070, the state party argued that it should be borne in mind that the new grounds do not establish a statutory presumption of justification of the act, for such a presumption must be expressed, as is required by article 232 of the Code of Criminal Procedure, which provides: "There is a statutory presumption it the law prescribes that an act shall constitute conclusive proof of another act". Accordingly, before the tourth ground in article 25 can be applied to a specitic case, it is always necessary to weigh the circumstances of the act, in order to determine whether 1t is justitiable on that ground.
With regard to the specific incident involving the death of Maria Fanny Suarez de Guerrero, the State party stated that: Ca) in the course ot a police operation on 13 April 1978 in the "Contador" district of Bogota the following persons died in the house at 13b-67 Thirty-first Street: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, omar FIOrez and Jorge Enrique SalcedoJ Cb) the Office of the State Counsel tor the. national police instituted an administrative inqUiry into the case and the JUdge of the 77th Criminal Military COurt was ordered to hold a criminal 1nvestigation; Cc) as a result of the criminal investigation, police captains Alvaro Mendoza Contreras and Jorge Noel Barreto ROdr1guez, police lieutenant Manuel Bravo Sarmiento and ofticers Jesus Alarcon, Gustavo osplna, JOaqu1n DOm1nguez, Arturo Moreno, Etrain Morales and -140-
In his comments dated 2 June 1980, the author stated that lithe new ground included in Decree No. 0070 of 1978 does indeed establish la statutory presumption of justification of the act l , because it :s left to the police authorities themselves to determine what is justified, through the so-called 'military criminal jUdges ' and the Higher Military Court, even if the victim or victims are civilians. Up to now all extrajudicial deaths caused by the police fo~ce have been justified by the police force itself, without any intervention of the ordinary courts". .
As regards the events which took place in the "Contador" district of Bogota on 13 April 1978, the author maintained that it was the police themselves who entrusted the criminal investigation to the judge of the 77th Military Criminal COurt and he, after. more than two years, had not summoned those involved to appear in court: "There is no question of genuine criminal proceedings for, contrary to the principle that no one may be judge in his own cause, it is the police who have carried out the investigation with respect to themselves, and the military criminal procedure does not permit the civilian victims to be reprssented. Ordinary criminal procedure provides both for a criminal action and for a civil action for damages." The author further maintained that the Government of COlombia had not permitted the institution of civil proceedings on behalf of the victims in the military criminal case against the accused and he claimed that the application of domestic remedies was unreasonably prolonged.
On 25 July 1980 the Human Rights COmmittee decided to request the State party to furnish detailed information as to: I (a) How, if at all, the state of siege proclaimed in Colombia affected the present case; (b) Whether the institution of civil proceedings for damages had been permitted on behalf of the victims of the police operation on 13 April 1978 in the "Contador" district of Bogota, and, if not, the reasons for any refusal to permit such proceedings; (c) The reasons for the delay, for more than two years, in the abjudication of the Higher Military Court in the matter.
By letters dated 9 September and 1 October 1980 the State party submitted further information.
The State party maintained that the state of siege might affect this case if the following conditions were met: 11 (a) If those responsible for the violent death of various persons in the 'Contador ' district police operation invoke in justification of the act the new ground provided in Decree 0070 pf 1978 promulgated in exercise of the powers conferred by article 121 of the National Constitution; and The State party added: nAs regards the questions of trial formalities, jurisdiction and competence, tile state of siege has no effect on either the criminal or the civil proceedings or the action unde~ administrative law that could be brought if the injured parties claimed compensation for the damage suffered."
As regards the question whether the institution of civil proceedings for damages had been permitted on behalf of the victims of the police operation, the State party affirmed that the institution of a civil action in conjunction with military proceedings was restricted to proceedings dealing with ordinary offences and that, since the present case was a military offence, no civil action could be instituted in conjunction with the military proceedings. Military offences are "those covered by the Code of Military Criminal Justice, committed by soldiers on active service and in relation to their service". However, the State party submitted that persons who have suffered loss or injury may apply to an administrative tribunal to obtain the appropriate damages on the ground of the extracontractual responsioility of the State. Such a.claim may be made independently of the outcome of the criminal trial and even if it has not begun or been concludeq. This is because the State must bear responsibility for the abuses and negligence of its agents when they unjustifiably result in damage. Thus the institution of a civil action in conjunction with military criminal proceedings is completely unimportant for this purpose, since another remedy is available to those suffering loss or injury. In addition, the State party explained that the Code of Military Criminal Justice contains the following provisions on compansation: "Article 76. On any conviction for offences that result in loss or injury to any person, either natural or legal, those responsible shall be jointly sentenced to compensate ior all such damage as has been caused. " "
As regards the reasons for the delay, for more than two years, in the abjudication of the Higher Military Court in the matter, the State party submitted that this was due to the heavy workload of all the jUdges and prosecutors. The Office of the State Counsel for the National Police, which is responsible for exercising judicial supervision over the system of military criminal justice with regard to proceedings against national police personnel (Decree-Law 521 of 1971) through general and special inspections (Decree-Law 2500 of 1970), found that the delay in handling the case concerning the events in the "Contador" district was justified, since it was due to the heavy workload and not to negligence, it having been established that the jUdges produce a high monthly average of decisions.
As regards the administrative inquiry instituted by the Office of the State Counsel for the national police into the incident in the "Contador" district, the State party in its letter of 1 October 1980 informed the Committee that this had -142-
Nevertheless, the State party reiterated that domestic remedies had not been exhausted.
In further letters dated 3 and 21 October 1980 the author submitted the following additional information: "••• the investigation into the massacre on 13 April 1978 was conducted by the very police officer who had led the raid, namely captain carlos Julio castano Rozo, the SIPEC Chief of the Bogota Police Department". He further stated in July 1980, the Inspector General of Police, General Fabio Arturo Londono cardenas, acting as jUdge of first instance, issued an order for all criminal proceedings against those charged with the massacre to be discontinued, on the basis of article 417 of the Code of Military Criminal Justice, which states: "Article 417. If, at any stage of the proceedil~s, it becomes fully established that the act for which charges have been laid or which is under investigation did not take place, or that it was not committed by the accused, or that the law does not consider it a criminal offence, or that there were no g~ounds for instituting or continuing the criminal proceedings, the judge of first instance or the investigating official shall, with the approval of the Public Prosecutor1s department, issue an official ruling to that effect and shall order all proceedings against the accused to be discontinued." The author alleged that the Inspector General of Police i~oked the ground of justification of the criminal act provided for in article 1 of Decree No. 0070, -·f 20 January 1978. This ruling went to the Higher Military Cou,t for ex officio review. The Higher Military Court, through its Fourth Chamber, annulled the decision of the Inspector General of Police: The dossier then remained in the hands of the jUdge of first instance and the author stated that up to the date of his letter (3 OCtober 1980) no order had been issued convening a military court to try the accused (Consejo Verbal de Guerra).
However, in his letter of 2 January 1981, the author informed the Committee that on 30 December 1980 a military court acquitted the 11 members of the Police Department. He stated that Dr. Martinez Zapata, the lawyer for the "Contador" victims, was not allowed to attend the trial, submit appeals or make objections. He affirmed that the acquittal was based on Decree Law No. 0070 of 1978.
The author further stated that as a result of th~ acquittal no administrative suit for compensation could be filed and ~he police officers and agents,. who were dismissed on the recommendation of the Deputy Procurator General for Police Affairs, would be reinstated in their functions. The author had earlier stated: n ••• in principle, an action for compensation may be brought before an administrative tribunal. However, if the accused are acquitted and the State turns out not to be responsible, how could such an action be brought before an administrative tribunal? It is quite clear, moreover, that the lawyers for the victims are not simply seeking"compensation; above all they want justice to be done and a declaration that Legislative Decree No. 0070 of 1978 is manisfestly a breach of articles 6, 7, 14 and 17 of the International Covenant on Civil and political Rights."
As to ttie question of exhaustion of domestic remedies, the Committee, having been informed by the author of the communication that on 30 December 1980 the military tribunal acquitted the 11 members of the Police Department who were on trial and this information not having been refuted by the State party, understc~ that the military tribunal found the measutes taken by the police which resulted in the death of Maria Fanny Suarez de Guerrero to have been justified. It appeared from the information before the Committee that there was no further possibility of an effective domestic remedy in regard to the matters complained of. The Committee was therefore unable to conclude on the basis of the information submitted by the State party and the author, that there were still effective remedies available which could be invoked on behalf of the alleged victim. Accordingly the Committee found that the communication was not inadmissable under article 5 (2) (b) of the Optional Protocol. The Committee stated, however, that this decision could be reviewed in the light of any further explanations which the State party might submit under article 4 (2) of the Optional Protocol.
On 9 April 1981, the Human Rights Committee therefore decided: (a) That the communication was admissible; (b) That, in accordance with article 4 (2) of the Optional Protocol, the State party be requested to submit to the Committee, within six months of the date of the transmittal to it of this decision, written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by it. These should include a copy of the jUdgement of the military tribunal acquitting the members of the Police Department who were on trial.
The time limit for the State party's submission under article 4 (2) of the Optional Protocol expired on 26 November 1981. To date, no submission has been received from the State party in addition to those received prior to the d~cisions on admissibility.
The Human Rights Committee has considered the present communication in the light of all information made available to it by the parties, as provided in article 5 (1) of the Optional Protocol. The Committee bases its views on the following facts, which are not in dispute or which are unrefuted by the State party.
Legislative Decree No. 0070 of 20 Janua~ 1978 amended article 25 of the Penal Code "for so long as the public order remains disturbed and the national territory is in a state of seige" (see text of Decree in appendix below). The Decree established a new ground of defence that may be pleaded by members of the police force to exonerate them if an otherwise punishable act was committed "in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs "• -144-
In spite of the fact fhat Miguel de German Rib6n was not found, the police patrol decided to hide in the house to await the arrival of the "suspected kidnappers". Seven persons who subsequently entered the house were shot by the police and died. These persons were: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, Ornar Florez and Jorge Enrique Salcedo.
Although the p~lice initially stated that the victims had died while resisting arrest, brandishing and even firing various weapons, the report of the Institute of Forensic Medicine (Report No. 8683, of 17 April 1978), together with the ballistics reports and the results of the paraffin test, showed that none of the victims had fired a shot and that they had all been killed at point-blank range, some of them shot in the back or in the head. It was also established that the victims were not all killed at the same time, but at intervals, as they arrived at the house, a~d that most of them had been shot while trying to save themselves from the unexpected attack. In the case of Mrs. Maria Fanny Suarez de Guerrero, the forensic report showed that she had been shot several times after she already died from a heart attack.
The Office of the State Counsel for the national police ~nstituted an administrative inquiry into the case. The administrative inquiry was completed and the Office of the State Counsel for the nat£onal police requested the dismissal of all the members of the patrol involved in the operation. This dismissal was ordered on 16 June 1980.
In addition, the judge of the 77th Military Criminal Court was ordered to hold a criminal investigation into the case. The preliminary investigation of the case was conducted by Major Carlos Julio Castafto Rozo. This investigation did not prove that the victims of the police action were kidnappers. In July 1980, the Inspector General of Police, acting as judge of first instance, issued an order for all criminal proceedings against those charged with the violent death of these seven persons during the police operation on 13 April 1978 in the "Contador" district of Bogota to be discontinued. This order was grounded o~ article 7 of Decree No. 0070. A Higher Military Court as a result of an ex officio review, annulled the decision of the Inspector General of Police. On 31 December 1980 a military tribunal (Consejo de Guerra Verbal), to which the case had been referred for retrial, again acquitted the 11 members of the Police Department who had been involved in the police operation. The acquittal was again based on Decree-Law No. 0070 of 1978.
At no moment could a civil action for damages be instituted in conjunction with the military criminai proceedings•. An action for compensation for the persons injured by the police operation in the "Contador" district depended first on determining the criminal liability of the accused. The accused having been acquitted, no civil or administrative suit could be filed to obtain compensation.
Article 6 (1) of the Covenant provides: "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The right enshrined in this article is the supreme right of the human being. It follows that the deprivation of life by the authorities of the State is a matter of the utmost gravity. This follows from the article as a whole and in particular is the reason why paragraph 2 of the article lays down that the death penalty may be imposed only for the most serious crimes. The requirements that the right shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State.
In the present case it is evident from the fact that seven persons lost their l~ves as a result of the deliberate action of the police that the deprivation of life was intentional. Moreover, the police action was apparently taken without warning to the victims and without giving them any oppo~tunity to surrender to the police patrol or to offer any explanation of their presence or intentions. There is no evidence that the action of the police was necessary in their own defence or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons concerned. Moreover, the victims were no more than suspects of the kidnapping which had occurred some d~ys earlier and their killing by the police deprived them of all the protections of due process of law laid down by the OoYenant. In the case of Mrs. Marta Fanny Suarez de Guerrero, the forensic report showed that she had been shot several times after she had already died from a heart attack o There can be no reasonable doubt that her death was caused by the police patrol.
For these reasons it is the Committee's view that the action Of the police resulting in the death of Mrs. Marta Fanny Suare~ d Guerrero was disproportionall to the requirements of law enforcement in the circumstances of the case and that she was arbitrarily deprived of her life contrary'to article 6 (1) of the International Covenant on Civil and Political Rights. Inasmuch as the police
It is not necessary to consider further alleged violations, arising from the same facts, of other articles of the Covenant. Any such violations are subsumed by the even more serious violations of article 6.
The Committee is accordingly of the view that the State party should take the necessary measures to compensate the husband of Mrs. Maria Fanny Suarez de Guerrero for the death of his wife and to ensure that the right to life is duly protected by amending the law. -147- introducing measures for the restoration of public order The President of the Republic of Colombia in the exercise of the authority vested in him by article 121 of the National Constitution, and Considering: That, by Decree No. ?131 of 1976, the public order was declared to be disturbed and a state of siege was proclaimed throughout the national territory; That the disturbance of the pUblic order has increased with the intensification of organized crime, particularly as a result of the commission of offences against individual freedom, against the life and integrity of the person and against the health and integrity of society; That it is the duty of the Government to take whatever measures are conducive to the restoration of a normal situation; Decrees: Article 1. For so long as the pUblic order remains disturbed and the national territory is in a state of siege, article 25 of the Penal Code shall read as follows: "Article 25. The act is justified if committed: "(I) Pursuant to a legislative provision or to a mandatory order given by a competent authority; "(2) By a person who is constrained to defend himself or another against a direct or wrongful act of violence against the person, his honour or his property, provided that the defence is proportionate to the attack; "The circumstances referred to in this subparagraph are presumed to exist in any case where a person during the night repels any person who climbs or forcibly enters the enclosure, walls, doors or windows of his dwelling or outbuildings, whatever the harm done to the attacker, or where a perso.l finds a stranger in his dwelling, provided that in the latter case there is no justification for the· stranger's presence in the premises and that the stranger offers resistance; "(3) By a person who has to save himself or another from a serious and imminent danger to the person which cannot be avoided in any other way, which is not the result of his own action and to which he is not exposed in the course of th~ exercise of his profession or occupation; -148- Article 2 This decree shall enter into force on the date of its enactment and shall suspend any provisions inconsistent therewith. For transmittal and enforcement Done in Bogota, D.E., on 20 January 1978. (Signed) Alfonso Lopez Michelsen Minister of the Interior (Signed) Alfredo Araujo-Grau Minister for FOreign Affairs (Signed) Indalecio Lievano Aguirre Minister of Justice (Signed) Cesar Gomez Estrada Minister of Finance (pigned) Alfonso Palacio Rudas -149-