The author of the communication (initial letter dated 18 December 1979 and further letters dated IH June 19HO and 7 April 19H~) 1S COnsue~o ~algar de MonteJo, a COlombian national. She submitted the communication on her own behalt through her legal representative.
The author alleges that by enacting Legislative Decree No. 19~3 ot 6 september 197H (Statute ot securit¥) the Government ot CO~ombia has breached articles 9 and 14 of the Covenant.
She claims to be a victim ot these vio~ations and, through her lega~ representative, describes the re~evant tacts as follows:
Oonsuelo Salgar de Montejo, Director of the Colombia newspaper E~ Bogotano, was sentenced to one year ot imprisonment by a military jUdge on 7 November 1~19 on grounds of the alleged violation of article ~u of the Statute ot Security tor the alleged offence of having Sold a gun. Through the on~y recourse procedure available, the ~ecurso de reposicion, her sentence W3S contirmed by the same JUdge on 14 November 1979. -lbH-
The author maintains that there are no turther domestic remedies to exhaust ~nd the present case has not been submltted ~or examlnatlon under any other procedure ot international invetigatlon or settlement.
On 18 March 1980, the Working Group of the Human Rights commlttee deCIded to transmit the communication to the State party, under rule ~l ot the prOViSlonal rules of procedure, requesting inforJlu..tlon and observ~t~ons relevant to ,",,, question ot admissibility.
By letter dated 29 May 1~80 the State party retuted the allegations made by the alleged victim.
The State party contested, in partiCUlar, the al.1egatlon that ~~.10mbla wae ln breach of artic.1e 14 (5) ot the COVenant. It argued that in that provislon, the phrase "according to the lawn leaves it to nationa.1 law to determine in which cases and circumstances application may be made to a court ot hlgher instance and that it the meaning of this provision should be difterently interpreted, lt must be bOrne' ln mind that COlombia is experienc 'ng a situatl0n ot dlsturbed pUb.11C order, wlthin the meaning of article 4 (1) of the Covenant, and that consequently the Government may take the measures therein reterred to. The State party turth~r maintained that Mr. Sa19ar de Montejo wae released after having served a term of aeeention tor three • months and l~ days and that she now enJoys tUll .liberty wlthout any restriction. With regard to the exhaustion of domestic remedies, the State party recognized that in the case in question there are no further remed,ies.
COmmenting on the State party's submiSSion, the author argues, ln her .letter dated 18 June 1980, that the State party cannot inVOke artic.1e 4 (1) of the ~enant because it has not so far fulfilled the reqUirements of the prOViSions ot article 4 (3), and that she should be compensated tor the violations of articles ~ and 14 of the COvenant which she has alleged.1y suttered. She agaln argues, wlthout turther exp.1anatl0n, that the principles of non bis in idem and res judicata have been violated.
The COmmittee tound, on the basis of the information betore It, that it was not precluded trom conSidering the communication by artic.1e ~ (2) (a} of the Optlonal Protocol. As to the exhaustion ot domestic remedies, the parties agreed that there were no turther domestic remedies Which the alleged victim could pursue. Accordingly, the COmmittee found that the communication was not lnadmisslble under article 5 (2) (b) of the Optional protocol.
On 29 July 1980, the.Human Rights Gommittee therefore decided: (a) That the communicBtion was admissible,
In its submission under article 4 (2) of the Optional Protocol, dated 17 February 1981, the State party reiterated that article 14 (5) of the Covenant establishes the general principle of review by a higher tribunal without making such a review mandatory in all possible cases involving a criminal offence since the phrase "according to the law" leaves it to national law to determine in which cases and circumstances application may be made to a higher court. It explained that under th~ legal regime in force in Colombia, criminal offences are divided into two categories, namely delitos and'contravenciones and that convictions for all delitos and for almost all contravenciones are subject to review by a higher court. It added that Consuelo Salgar de Montejo committed a contravenci6n which the applicable legal instrument, namely Decree No. 1923 of 1978, did not make subject to review by a higher court.
The State party submits that Decree No. 1923 of 6 September 1~78 establishing rules for the protection of the life, honour and property of persons and guaranteeing the security of members of associations, known as the "Security Statute", has as its legal basis article 121 of the Colombian Constitution. The decree was issued because of the social situation created by the activities of subversive organizations which were disturbing public order with a view to undermining the democratic system in force in Colombia. - The State party added that this Decree does not affect people!s normal peaceful activities1 it does not restrict political rights, which in Colombia are exercised with total freedom1 its objective is to punish offences and it does not differ in nature from any ordinary penal code.
The State party further submitted that the extension of the jurisdiction of the military criminal courts to the trial of certain offences and of civilians who are not serving in the armed forces, in situations where public order is seriously disturbed, is not a novel feature of the Colombi~n legal order, an~ it cited several decrees to illustrate this point.
As to the allegation that article 7 of Decree No. 1923 of 1978, which establishes grounds for deprivation of liberty, violates the guarantee established in article 9 of the Covenant that "no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are establiehed by law", the State party argued that the grounds for deprivation of liberty and the procedure to be followed in such a case may be specified in Colombia not only by virtue of an ordinary law of the Congress but also by legislative decrees issued under powers granted by article 121 of the Constitution. These decrees are mandatory and prevail over any legislative provision inconsistent therewith for as long as the state of siege during which th~y were issued remains in effect. The State party further observed that Decree No. 1923 of 1978 was issued by the President of Colombia in exercise of the powers vested in him by article 121 of the Constitution, and that by its ruling of 30 OCtober 1978 the Supreme Court of Justice declared the Decree to be enforceable, i.e., in conformity with the Constitution, with the exception of certain pr.ovisions which are consequently no longer in force (these provisions are not relevant to the present case) • -170-
The State party concluded tha~ Consuelo Salgar de MonteJo was tried by the author1ty with exc~usive competence 1n the matter under the legal rUles in torce, and no other jUdge or court could legally have tried her tor the oftence of which she was accused, in view ot the time at Which the otfence was committed and she was brought to trial. She was tried in accordance with legal prOVisions existing prior to the criminal otfence she COmRl1tted, by the competent authority and with tUll Observance of the appropriate procedures tor the action brought against her. The State party rejects as totally baseless the allegation that Consuelo Salgar de Montejo was tried twice tor the same ottence. It maintains that she was tried only once for the otfence in question.
In her additional information and observations dated 7 April 1981 (subm1tted under rule 93 (3) of the OOmmittee's prOVisional rules ot procedure), the author ergued that article 14 (5) of the Covenant provides tor dual JuriSdiction tor jUdgements in criminal cases and, theretore, the Government ot colpmb1a cannot • restrict that guarantee, particularly not by means of emergency provisions such as the "SeCurity Statute". She emphasized that the Colombian Code of Criminal Procedure provides for the guarantee ot dual jurisd1ction tor Judgements 1n crim1nal cases and the GOvernment ot Oolombia cannot fail to take account of it Without violating the Covenant and the un1versaliy recognized right to appeal against custodial sentences.
She reiterated that the Government of Colombia cannot 1n the present case, invoke article 4 ot the Oovenant because it has not so tar tultilled the requirements of that provision in respect of states of emergency and derogations from its Obligations under the Oovenant. The author stated that under article 121 of the Colombian Constitution a state of Siege has, to~ all intents and purposes, been 1n etfect in OOlombia Since the disturbances ot 9 April 1948. She mentioned, in partiCUlar, that by Decree No. 21jlof 7 OCtOber 1976,-the previous Government ot COlomb1a declared "a disturbance of public order and a state of Siege throughout the national territory" to put an end to the "unconstitut10nal stoppage" which was in progress at the Oolombian Institute of social Security and was, according to the Decree, affecting "1ts medical, paramedical and auxi11ary serv ices". She added that although the strike was broken within a tew months, the state Of Siege has been extended sine die.
The author continued to mainta1n that the only competent, independent and impartial tribunals with criminal jurisdiction in Colomb1a are those of the jUdicial power, which were establiShed previOUSly under title XV ("Admin1strat10n -171- H. The author observed that although lt lS true that, ln ltS rUllng ot JO october 1978, the supreme court ot JUstlce declared that Decree No. 1~23 ot l~/H was compatible with the Constitution, it is equally true that the Court did not rule on the compatibility or incompatibility of such Decree With the COVenant. She claims that it is ultimately tor the CO~ittee to rule on this matter.
Finally, the author alleged that she has Lin effect] been tried tWice tor th$ same offence: in the first military trial tor alleged illegal possessl0n and purchase ot weapons she was acqUitted, but authorization was obtained to instltute turther criminal proceedings against her tor selllng a weapon, "ObVl0USlY 1n retailation tor the OPPOSition she had voiced in her newspaper, El HOg0tano". She considers this to be a Violation ot the principles of res Judlcata and non bis in idem.
The Human Rights Committee bases its Views on the tollowing tacts, which are not in dispute: COnsuelo salgar de Montejo, Director o~ the COlomblan newspaper El:. Bogotano, was sentenced to one year ot imprisonment by a military tribuna~ on 7 November 197~ tor the ottence ot having SOld a gu~ ln Vl01atl0n of artlcle lU ot Decree No. 1923 of 6 September 1978, also called Statute of Security. For thiS oftence she was tried only once. Through the on~y recourse procedure available, the recurso de reposiciOn, her sentance was confirmed by the same jUdge on 14 November 1979. She was convicted tor an otfence (contravencion) which the applicable legal instrument, namely Decree No. 19~5 ot 197H, did not make SUbJect to review by a higher court. She was released atter having spent three monthS and 15 days in prison.
As to the allegations made by the author with regard to breaches ot articles 9 (I) and 14 (1) ot the vovenant, they are ln such general terms that the COmmittee makes no tinding in regard to them. lU.l In tormulating its views the Human Hlghts committee a~so takes into account the following considerations:
The Committee notes that the Government of Colombia in its submiSSion ot 29 May 19HU made reterence to a situ~tion of disturbed pUbllC order ln COlombia Within the meaning of article 4, paragraph 1, of the Covenant. In ltS note Of IH July 19HU to the secretary-General ot the United Natlons (reprOdUced ln document CCPR/C/2/Add.4), which was designed to comply with the tormal reqUirements laid down ln artlcle 4 (3) ot the covenant, the. Government ot COlornbla has made reference to the existence ot a state ot siege 1n all the natlona~ territory Since 1976 and to the necessity to adopt extraordinary measures within the tramework ot the legal regime prOVided tor in the National Constltutl0n tor such Situations. With regard to the rights guaranteed by the COVenant, the Government ot Colombia declared that "temporary measures have been adopted that have the ettect ot limiting the application ot article 19, paragraph 2, and article 21 of that
The COmmittee considers that the express10n "aCCording to law" in article !4 (5) ot the oavenant is not intended to leave the very existence of the right of review to the discretion ot the States parties, since the rights are those recognized by the oavenant, and not merely those recognized by domestiC law. Rather, what is to be determined "according to law" 1S the moda~lties by Which the review by a higher tribuna! is to be carried out. It 1S true that the spanlsh text of article 14 (5), which provides tor the right to review, reters only to "un de!lto", while the Eng!iSh text reters to a "crime" and the French text reters to "une infraction". Nevertheless the Committee is of the view that the sentence of imprlsonment imposed on Mrs. OOnsue~o sa!gar de MonteJo, even though tor an oftence defined as "contravenciOn" in domestic law, is serious enough, in a!! the circuw.~tances, to reqUire a review by a higher tribuna~ as provided tor in article 14 (5) of the COvenant.
The COmmittee, acting under article 5 ~4) ot the opt1ona! pro~oco~, lS theretore ot the view that the tacts as set out In paragraph ~ abOVe, dlSc!OSe a violation of article 14 (5) of the COvenant because Mrs. COnsue!o Sa!gar de MontejO was denied the right to review ot her conviction by a h1gher tribuna!. !2. The Committee accordingly is of the view that the state p~rty lS under an ob~lgatlon to prOV1de adequate remed1es tor the violation which Mrs. Consue!o Salgar de Mo~tejo has suttered and that it should adjust its laws in order to glve ettect to the right set torth In article 14 (5) of the COvenant.