The author alleges that by enacting LegiSlative Decree NO. 1923 ot b l:)epternber ~97ij (Statute ot l:)ecurity)· the Government ot ColombIa has vlo~ated See the text of Legislative Decree No. 1923 in the. appendiX be~ow. * -~9j- • i. Concerning the cases ot Justo German Bermudez and Martha Isabel Valderrama Becerra, the author describes the reievant tacts as follows: On 3 April i979, the President of the summary Court Martial (First Battalion of Military Police, Brigade of Military InstitutlonS) tound Justo German Bermudez Gross gUilty ot the ottence ot rebeiiio.. (articie 7 ot the jUdgement) and sentenced him to a principai penaity of six years and eight months' r1gorous 1mprisonment and interdiction of public rights and tunctions, as weil as the accessory penalty of loss of patria potestas for the same period. In the same jUdgement it sentenced Martha Isabel Valoerrama Becerra to S1X years' rigorous imprisonment and interdiction of pUblic rights and tunctions tor the otten~e ot rebeii10n. Tbe juogement states: "In conciusion, the sentences to be passed on the accused who have been declared gUiity of the oftence of 'rebeliion' shaii be those contalneO in art1cie 2 ot Decree No. ~923 ot b. september 1978, known as the statute of Security".
The author alleges that by application of Decree No. i923 Dr. Fals Borda and h1S wite were arbitrariiy Oeta1neo, that Mr. HermuOez and Miss Vaiderrama are sUbjected to arbitrary imprisonment, that Mr. Bermudez and Miss Vaiderrama's sentences were illegaliy increased, that is their sentences are more severe than the maximum penalty stipulated by the Colombian Penai Code, and that they aii have been victims ot violations ot article 14 (i), (2), (3) and (5) ot 'the Internat10nal Covenant on Civil and Political Rights because they have been brought before military tribunais which were not competent, inoependent anO impartiai, and because they have allegedly been deprived of the procedurai guarantees iaid oown 1n the Coiomb1an Constitut10n anO 1n the Coven~nt. He states that all domest1c remed1es have been exhausted with the decision ot the Supreme Court of "Justice uphold1ng the constitutionality ot the Decree and that the cases ot the alleged vict1ms have not been submitted to any other procedure of international investlgation or settlement.
On !:I August l!:l/!:I, the Human Hights (,;ommlttee decldeo to transmlt the communication to the State party, und€r rule !:Il of the provisional rules ot proceOure, requesting 1ntormation and observations relevant ~o the questlon ot admiss:l-bility.
By i~tters dated 3U April and 30 september 198U the state party refuted the allegations ,Jade by the author.
The state party, in particular, reJected the allegatl0n made by the author ot the communlcatlon that the enactment ot Legls1ative Decree NO. l!:l23 ot b September 1978 and consequently the arrest and detention of the tour persons represented by the author were contrary to the (,;olombian (,;onstitutl0n and 1n -194-
The State party also rejected the allegations made by the complainant that articles 9, 11 and 12 of Decree No. 1923 'contravene article 14, paragraph 1, of the Covenant. It quoted the ruling of the Supreme Court of Justice, in particular the following, ". •• Decree No. 1923 has done nothing other than apply the exception provided for in article 61 [of the Constitution] which authorizes in exceptional times the c~mulative performance, and hence provisional transfer, of powers, and specifically jurisdictional powers, by and to bodies other than those normally exercising them, and which legitimates the introduction of military penal justice, and empowers the military and police authorities specified in the Decree, to deal Witil and to order penalties for certain offences. "The Decree does not establish ad hoc bodies nor does it change the origin or composition of existing bodies. It simply empowers certain authorities to perform simultaneously their own ordinary functions and those vested in them provisionally by virtue of the enabling provisions of article 61 of the Constitution. • •• " , The State party added that the ruling of the Supreme Court was quoted precisely in order to show that military tribunals are not ad hoc bodies but an integral part of the branch of the pUblic power responsible for the administration of justice in conformity with the National Constitution and cannot be dismissed as unqualified, as was done by the complainant, Dr. camargo, who sought to deny their legality in order to establish an alleged violation of the Covenant on that basis.
With regard to the specific case of Mrc and Mrs. Pals Borda, the State party confirmed their release, which was ordered when it was found during an investigation that their continued detention was not justified. The ~t~te party added that there is no ground for deducing directly from the fact that these orders were issued that artibtrary detention took place in either or bcth of these cases. It was further stated by the State party that, should Mr. and Mrs. Fals Borda consider that their detention was arbitrary (in the sense 'that the requi3ite legal formalities and rules had not been complied with), they may file a complaint with th~ competent authorities and institute the appropriate proceedings for the recovery of damages. TO challenge their detention on the ground that the requisite legal formalities and rules had not been complied with, a criminal investigation could be initiated by the alleged victims, through the judicial police, the Attorney General or ~he Judge Advocate General of the Armed Forces. TO obtain compensation for damages and injuries resulting from an alleged arbitrary detention civil proceedings may then be instituted, if the violation of rights is the result of action by a public official the complainants may also appeal to the administrative courts. As none of the aforementioned procedures have been resorted -195- benefited trom all procedural guarantees accorded "by the ~aw and that the alledged~y 1mproper length ot their pr1son terms, based on charges ot rebe~~10n, was justified by the provisions of Decree NO. 1923, applicable under the present "state of siege" in Colombia. The State party stated that the appeal was Stl~~ being heard in the Higher Military Tribunal and explained that "the time that has elapsed 1n this connexion ••• is due bOth to the nature ot the case and to the large number of appeals and inquiries with which the Higher Mi11tary Tribunal has to deal". The State party concluded lhat domest1c remedies had not been exhausted in this case either.
On 29 JUly 1980 the Human Rights Committee decided to request the state party to turnish detailed intormat~on as to: (a) How, if at all, the state of siege proclaimed in Colombia affects the present case; (b) Which are the competent authorities, before which Mr. and Mrs. FalS Borda may ti~e a complaint and inst1tute proceed1ngs tor the recovery ot damages 1n the particular circumstances of their case, as well as the nature of such proceed1ngs, based on the law in torce; (e) The status of the appeal of German Bermudez Gross and Martha Isabel Valderrama before the Higher M1litary Tribunal, and, 1t not yet concluded, the reasons for the apparent delay and the anticipated time tor the completion ot those proceedings. ~.l By a note dated 1 October 1980, the State party submitted turther 1ntormat10n.
The State party mainta1ned that the state ot s1ege attected the present case, so tar as concerns the situation of Justo German Bermudez and Martha Isabel Valderrama, by reason ot the tact that Leg1slat1ve Decree NO. ~~lj ot l~78 increased the penalty tor the crime of rebellion and also because bOth the atoresa1d Decree and Legislative Decree NO. 22bO of 19/b aScribed respons1b1~1ty tor the hearing of cases involving offences against the constitutional reg1me and aga1nst the secur1ty ot the State to the m1~1tary crlm1na~ courts. It adoed that w1th regard to the proceedings which Dr. Orlando Fals Borda and Mrs. Mar1a Cr1st1na ~lazar de Fa~s Heroa cou~d institute, the provis10ns enacted ~ virtue of the state of siege had. no eftect. ~.j The State party re1terated the 1ntormat10n submitted (see para. J.4) concerning the competent authorities before which Dr. Fals Borda and his wite COU~d t1~e camp~a1nts W1th respect to an a~~eged arb1trary detent1on, and the proceed1ngs they could institute tor the .recovery of damages. It added that a civil act.1on to obta1n compensation can be brought in the context Of the military crimi~al proceedings for common-law offences. It the injured parties did not take part in the cr1minal proceedings and dO not agree with the jUdgement so tar as concerns compensation, they can bring an appropriate action before a civil court. They can .also appeal to the administrative cQurts, on the ground Of State liability, 1f in tact it is. confirmed that arbitrary detention took place. 6•.L COmmenting on the State party's sU~R1ssion, the author claimed that as tar as the specltlc cases ot the arbitrary detention ot Mr. and-Mrs. Fa.Ls Horda were concerned, all domestic legal remedies had been eXhausted, and no valid remedy eXlsted tor claiming damages on account of thiS arbitrary detentlon. The arguments were aa tollows: "(a) Without Legislative Decree NO. 1923 of 1978 (Statute Of security), neither the arbitrary detention ot Mr. and Mr~. Fals Borda, nor that ot thousands of other victims, would ever have occurred. Mr. and Mrs. Fa.Ls Barda were deprived not only ot the guarantee .Lald down ln artic~e 9, paragraph J, ot the Covenant, but also the remedy of habeas cOrpUS guaranteed by artic.Le 9, paragraph 4 ot the COVenant and by artlc.Le 417 ot the COde ot ~rlmina.L procedure of Colombia, which states: 'Any person deprived of his treedom tor more than 48 hours may, it he considers that a breach ot the .Law has taken place, apply to a municipal, criminal or combined criminal/civi.L court JUdge tor habeas cOrpus •••• , "(b) With the decision of the Higher Military Tribuna.L, which lS not open to appeal, domestic legal remedies have been eXhausted. However, that decision states, not that a case of aribtrary detention had taken place, but that there was no justitication tor the continued entorcement ot the detent10n order issued by the military authorities without due prooess of .Law, "(C) It is not posslble to bring 'an action tor arbltrary arrest betore an ordinary court against the military investigators who ~rdered the arrest ot Mr. and Mrs. Fa.Ls Barda. The hand.Ling ot such a charge wOU.Ld fa.Ll to the m11itary authorities, as is made clear in article J09 of the COde of Military Criminal Justice: 'As a general rule, accused persons sha.Ll be tr1ed by members of the branch of the armed torces to which they belong.' In other wordS, any comp.Laint .LOdged against mi.L1tary personnel tor abuse ot author1ty or,arbitrary detention taIls within the direct juriSdiction of the mil1tary author1ties or the military prosecutor, both of whom are under the orders ot the Government of Colombia, "(d) In the unlikely event of military criminal proceedings being 1nstituted against the otticers responsib.Le tor the arb1trary detent10n ot Mr. and Mrs. Fals Borda, it would not be possible to- bring a ciVil suit tor damages on behalf ot the v1ctims, since the otfence 1n quest10n lS SUPPOSed.Ly of an essentially military nature ••• , "(e) Article 9, paragraph 5 ot the COVenant states: "Anyone whO has been the victim of unlawful arrest or detention sha.L.L have an entorceab.Le right to compensatio~.· No provis~on is made for such actlon 1n OOlomb1an .Law, "(f) The Government of Colombia cites article 67 of the Aaministratlve COde, which states: 'In the event of violation of a rlght establiShed or recognized by a civil or administrative regUlation, the injured party may -197-
In his submission of 20 O\~tober 1~80 the author informed the Committee that in the case of Justo German BermUdez and Martha Isabel Valderrama, sentenced to imprisonment on 3 April 1979 by the Sununary Military Court, the sentences had been upheld by the Higher Military Court.
The Committee found, on the basis of the information before it, that it was not precluded by article 5 (2) (a) of the Optional Protocol from considering the communication since there was no indication that the same matter had been submitted under another procedure of international investigation or settlement.
As to the question of exhaustion of domestic remedies, in the case of Mr. and Mrs. Fals Borda, the Committee considered whethe~ the communication should be declared inadmissible because of non-exhaustion of domestic remedies. However, the essence of this complaint was that Decree No. 1~23 deprived them of safeguards guaranteed by articles 9 and 14 of the Covenant and that in these circumstances the domestic remedies for arbitrary arrest would have been of no avail. The Committee considered that this was a question which it could effectively examine only in the context of the application of the Decree generally to the case of Mr. and Mrs. Pals Borda.
In the case of Justo German Bermooez and Martha Isabel Valderrama, the Committee, having been informed by the author on 20 ~tober 1980 that the Higher Military Tribunal had upheld the sentences of the court of first instance and, considering that this information had not been refuted by the State party, understood that domestic remedies had now been exhausted and that consequently the communication might be declared admissible in their case•.
On 27 July 1981, the Human Rights Committee therefore decidedl (a) That the communication was admissible, (b) That the author of the corJrnunication be requested to submit to the Committee not later than 10 ~tober 1981 a statement, in respect of each relevant provision of the Covenant, of the grounds for claiming that 'the Covenant has been violated (a) in regard to Mr. and Mrs. Fals Borda and {b) in regard to Hr. Justo German Bermooez and Miss Martha Isabel Valderrama, That a copy of any submission received from the author pursuant to 2 of this decision be transmitted to the State party as soon as possible it to take it into account in the preparation of its submission under (2) of the Optional Protocol, (c) paragraph to enable article 4 -198-
In accordance with operative paragraph 2 of the dectsion adopted by the Human Rights Committee on 27 July'1981, the author submitted further information dated 30 September 1981.
He claimed that the detention of Mr. and Mrs. Fals Borda was arbitrary and violated articles 9 and 14 of the International Covenant on Civil and Political Rights for the following reasons: "1. Article 9 of the Covenant "Mr. and Mrs. Fals Borda were definitely subject to violation of their right to liberty and security of person, since they were detained arbitrarily. They were not detained for any of the reasons laid down in criminal law (the Penal Code), nor in accordance with the appropriate legal procedure, provided for in the Code of Penal Procedure (articles 426 to 471), but under a substantive and adjectival rule of emergency law, namely, Legislative Decree No. 1923 of 1978 (the 'Statute of security'), which violates the Colombian Constitution and the International Covenant on Civil and Political Rights. "Secondly, the right of Mr. and Mrs. Fals Borda to be tried 'within a reasonable time' or be released, as proyided for in article 9.(3) of the Covenant, was violated. "In its submission dated 30 September 1980, the Colombian Government recognized that, besides arbitrary detention, the requirement of reasonable time had not been observed, since it stated: 'The orders under which Mr. and Mrs. Fals Borda were released were an outcome of the decision that there was no justification for their continued detention.' It has been shown that Mrs. Fals Borda had been detained for over a year. "Thirdly, Mr. and Mrs. Fals Borda were victims of the violation of the habeas corpus safeguard, recognized bo~ in article 417 of the Code of Penal Procedure and in article 9 (4) of the International Covenant on Civil and Political Rights. "By means of the emergency procedure laid down in the 'Statute of Security', the military authorities prevented and denied the exercise of this right, thus permitting the arbitrary detention of Mr. and Mrs. Fals Borda. "2. Article 14 of the Covenant "The subjection of Mr. and Mrs. Fals Borda to military or emergency penal procedure, in implementation of the 'Statute of Security' violated their rights under article 14 (1) of the Covenant. -199- lc..:.~-{s in force prior to the commission of the act with ..which he is charged, by a court having competent jurisdiction, and in accordance with all formalities proper to each case.' "Accordingly, the only competent, independent and impartial tribunals are the courts of common jurisdiction or jUdiciary set up under title XV, 'the Administration o~ Justice', of the Colombian Constitution and in accordance with Title 11, 'Jurisdiction and Competence', of the Code of Penal Procedure (Decree No. 409 of 1971). This is on the basis not only of the constitutional principle of separation of powers, but also of article 58 of the Colombian Constitution: 'Justice is administered by the Supreme Court, by superior district courts and by such other courts and tribunals as may be established by law.' "The Colombian Constitution does not allow military or emergency penal justice for citizens or civilians. Article 170 of the Colombian Constitution provides for courts martial but only for 'offences committed by military personnel on active service and in relation to that service.' -"Military courts or courts martial nevertheless operate in Colombia in breach of the country's constitution and laws and of the International Covenant on Civil and Political Rights, in particular to try political opponents, under Decree No. 1923 of 1978 (the 'Statute of Security')J this is in violation of article 14 of the United Nations International Covenant on Civil -and Political Rights. ·Secondly, the military or emergency courts provided for in articles 9, 11 and 12 of Decree No. 1923 the 'Statute of Security' are not only not competent, independent and impartial (article 14 (1) of the Covenant), but they were not up under a proper law passed by Congress validly amending or repealing the Code of Penal Procedure (Decree No. 409 of 1971). The 'Statute of Security' is a state-of-seige decree which violates the safeguard of legality provided in the Covenant, particularly since it is indefinite, as may be seen in article 1 of the Statute, which provides for sentences of 30 years which do not exist in the Penal Code. ·In addition, Mr. and Mrs. Fals Borda were obviously deprived of the rights mentioned in paragraphs 2, 3 and 4 of article 14 of the Covenant."
Concerning Justo German Bermudez and Martha Isabel Valderrama, the author claimed that they were victims of arbitrary arrest and imprisonment, •••• because they were deprived of their liberty on grounds not established by criminal law (the Penal Code) but under an emergency provision such as the 'Statute of Security', in violation of the Colombian Constitution and the International Covenant on Civil and Political Rights. Likewise, they suffered -200- "Furthermore, the military sentence pronounced against German Bermooez Gross and Martha Isabel. Valderrama deprived them of the rights provided for in paragraphs 2 and 3 of article 9 of the Covenant, as well as the habeas corpus safeguard contained in article 417 of the Code of Penal Procedure and article 9 (4) of the International Co~enant on Civil and Political Rights."
In addition, the author claimed that Justo German Bermooez and Martha Isabel Valderrama had been deprived of the procedural rights mentioned in paragraphs 1, 2, 3, and 5 of article 14 of the Covenant for the same reasons as those mentioned above in paragraph 9.2 concerning Mr. Fals Borda and his wife.
At this stage in the proceedings the author raised the claim that Justo German BermUdez and Martha Isabel Valderrama are also victims of violations of article 15 of the Covenant. He argues as follows: "Article 15 of the Covenant lays down the following: 'Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed.' However, German BermUdez Gross and Martha Isabel Valderrama received a heavier penalty under article 2 of Legislative Decree No. 1923 of 6 September 1978, which increased the penalty of ordinary imprisonment for the offence of rebellion to between 8 and 14 years, whereas in the Colombian Penal Code (Decree No. 2300 of 14 September 1936), in force at the time of the military judgement, the penalty was only six months to four years (art. 139). , . "In addition, article 125 of the new Colombian Penal Code, promulgated on 25 January 1980 and in force since 25 January 1981 (Decree-Law No. 100 of 1980) provides that 'persons who use arms in attempting to overthrow the national government or to abolish or modify the existing constitutional or legal regime shall be liable to ordinary imprisonment for three to six years'. However, neither the Colombian Government nor the Brigade of Military Institutions applied the principle of benefit of penal law, laid down filot only in the Colombian Constitution, but also in article is (1) of the Covenant: 'If, SUbsequent to the collDltission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby'."
In its submission under article 4 (2) of the Optional Protocol, dated· 24 March 1982, the State party reiterated that: "The charges made by Mrs. Maria Cristina Salazar de Fals Borda, Orlando Fals Borda, Justo German Bermudez and Martha Isabel Valderrama Becerra through their attorney, Dr. Pedro Pablo Camargo, that they were arbitrarily detained lack all legal basis since it is within the power of the Government to carry out investigations through the judiciary in respect of persons who are presumed to have committed an otfence and, to ensure that they apPear in court, they may be placed under preventive detention. However, if citizens consider that there has been a departure from the law, they may, in accordance with articles 272-275 of the Penal Code, make a complaint on the grounds of arbitrary detention. b~ought as part of such proceedings in accordance with article 108 of the Criminal Code. Where the sentence may be one of deprivation of liberty, the prescriptive period for criminal proceedings is equal to the maximum sentence provided for by law, but in no case may it be less than five years or more than 20 years. In the case with which we are concerned (arbitrary detention), the period will be five years, that being the maximum sentence which may be imposed. -Concerning Justo German BelmUdez and Martha Isabel Valderrama, the law authorizes them, providing the period of prescription is still running, to submit an appeal. for review or to vacate if they believe that the jUdgement of the Higher Military Court was not in accordance with the legal" principles in force in our country. There is no period established by law within which an action for review must be submitted, although, according to the interpretation of articles 584-585 of the Code of Criminal Procedure, doctrine holds that this should be done while the person is serving the sentence. -The parties would have a period of 15 days from the date of notification of the sentence of the Higher MUitary Court to submit an appeal to vacate. After this period, the right tr.J seek to vacate a ju~gement by the Supreme Court of Justice, which is the highest body for the verification of trials, is lost, as stipulated in article 573 of the Code of Criminal Procedure, which also states that such appeals must be made on the specific grounds set forth in article 580 of the Code of Criminal Procedure."
In his additional information and observations dated 19 June 1982, the author reiterated that Mr. and Mrs. Fals Borda could not start civil or administrative proceedings or try to obtain compensation for reasons already mentioned (see para. 6.1 above) and because there has not been a judgement declaring that they had been arbitrarily arrested. He further argued that Justo German Bermudez and Martha Isabel Valderrama cannot submit an appeal to vacate a judgement because of lapse of time or for review because there are no grounds to request such review.
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.
The Supreme Court of Justice of Colombia in a judgement of 30 OCtober 1978 held Decree No. 1923 of 6 september 1978 to be constitutional. In this Decree it is recalled that -by Decree No. 2131 of 1976, pUblic order was declared to be disturbed and the entire national territory in a state of siege-. Article 9 of Decree No. 1923 reads as follows. -The military criminal courts, in addition to exercising the competence given them by the laws and regulations in force, shall try by court martial proceedings the offences [in particular of rebellion] referred to in articles 1, 2, 3, 4, 5 and 6, as well as those committed against the life and person of members of the Armed Forces, etc. - In this Decree No. 1923 judicia: powers are also granted to a~, navy and air force commanders (art. 11) and police chiefs (art. 12).
On 3 April 1979, the President of ~e Summary Court Martial (First Battalion of Military Police, Brigade of Military Institutions) found Justo German BermUdez Gross guilty of the offence of rebellion (art. 7 of the judgement) and sentenced him to a principal penalty of six years and eight months' rigorous imprisonment and interdiction of public rights and functions, as well as the accessory penalty of loss of patria potestas for the same period. In the same jUdgement it'sentenced Martha Isabel Valderrarna Becerra to six years' rigorous imprisonment and interdiction of public rights and functions for the offence of rebellion. The judgement states: "In conclusion, the sentences to be passed on the accused who have been declared guilty of the offence of 'rebellion' shall be those containe4 in article 2 of Decree No. 1923 of 6 September 1978, known as the Statute of Security". In OCtober 1980, the Higher Military Tribunal upheld the sentences of the court of first instance.
In formulating its views, the Human Rights Conunittee also takes into account the following considerations:
The Conunittee notes that the Government of Colombia in its submission of 30 April 1980 made reference to a situation of disturbed publiO order in Colombia within the meaning of article 4, paragraph 1. of the Covenant. In .its note of 18 July 1980 to the secretary-General of the united Nations (reproduced in document CCPR/C/2/Add.4), which was designed to comply with the formal requirements laid down in article 4 (3) of the Covenant, the Government of Colombia has made reference to the existence of a state of siege in all the national territory since 1976 and to the necessity to adopt extraordinary measures wib~in the framework of the legal regime provided for in the National Constitution for such ,situations. With regard to the rights guaranteed by the Covenant, the Government of Colombia declared that "temporary measures have been adopted that have the effect of limiting the application of article 19, paragraph 2, and article 21 of that Covenant". The present case, however, is not concerned with article 19 and article 21 of the Covenant.
The allegations as to breaches of the prov1s10ns of article 14 of the Covenant concerning judicial guarantees and fair trial, seem to be'based on the premise that civilians may not be subject to mi~itary penal pfocedures and that when civilians are nevertheless subjected to s~ch procedures, they are in effect deprived of basic judicial guarantees aimed at ensuring fair trial, which guarantees would be afforded to them under the normal court system, because military courts are neither competent, independent and impartial. The argu~nts of the author in substantiation of these allegations are set out in general terms and principally linked with the questiou of constitutionality of Decree No. 1923. He does not, however, cite any specific incidents or facts in support of his allegations of disregard for the judicial guarantees provided for ~ article 14 in the application of Decree No. 1923 in the cases in question. Since the Conunittee -203-
Aa to thG dllegations of breaches of the provisions of article 9 of the Covenant, it has been established that the alleged victims did not have recourse to habeas corpus. Other issues are in dispute, in particular, whether the alleged victims were in fact SUbjected to arbitrary arrest and detention. The author argues on the one hand that in the present state of law in Colombia it would be of no avail to pursue domestic remedies for compensation or damages for arbitrary arrest or detention under Decree No. 1923, since the Decree has been declared constitutional. On the other hand he clrgues that, notwithstanding this being the state of domestic law, Decree No. 1923 is nevertheless contrary to the rights set out in article 9 of the Covenant to such an extent that its application to an individual makes him a victim of arbitrary arrest and detention. The Committee, however, must limit its findings to an assessment as to whether the measures in question have denied the alleged victims the rights guaranteed by article 9 of the Covenant. In the case before it the Committee cannot conclude that the arrest and detention of the alleged victims were unlawful. It has therefore not been established that the application of Decree No. 1923 has led to arbitrary arrest and detention of the alleged victims, within the meaning of the provisions of article 9 of the Covenant. -
The State party has not commented on the author's further allegations (introduced by him on 30 september 1981) that Justo· German Bernnidez and Martha Isabel Valderrama are also victims of violations of the provisions of article l5-of the Covenant. The Committee holds that it was n(,)~ the State party's duty to address these allegations, as they ware only introduced after the communication had been declared admissible, in regard to alleged breaches of articles 9 and 14 of the Covenant. The silence of the State party cannot, therefore, be held against it. The Committee has, hoWever, ex officio, considered these new alle]ations and finds them illfounded. Justo German BermUdez and Martha Isabel Valderrama were tried and convicted for offences which were found by the judgement of 3 April 1979 to constitute a course of action which continued after Decree No. 1923 had entered into forc~. On the other hand, the author has not shown that those offences, which includ\~d assaults on banks, would have come within the scope of the new article 125 of the Colombian 'Penal Code. The Committee observes, furthermore, that the new law entered into force after Justo German BermUdez and Martha Isabel Valderrama had been convicted and their appeal had been rejected.
The facts as reflected in the information before the Human Rights Committee do not reveal that Justo German BermUdez and Martha Isabel Valderrama are victims of violations of rights protected by the Covenant.
The Committee, acting under article 5 (4) of the Optiona;L protocol, is therefore of the view that the facts as set out in paragraphs 12.2, 12.3 and 12.4 above disclose violations of the International Covenant on Civil and Political Rights, particularlya of article 9 (3), becaus~ Maria Cristina Salazar de Pals Borda's right to be tried or released with~n reasonable time was not respected, -204- 15.. The COnnitt8e accordingly is of the view that the State party i& under an obligation to provide adequate remedies for the violations whic:h orlando 1'&1& Borda and! M..llria Cristina 8alazar de Fals Borda have suffered and that it should adjust its laws in order to give effect to the right set forth in article 9 (4) of the Covenant. -205- Decree No. 1923 of 6 september 1978 prOllulgating rules for the protection of the lives, honour and property of persoils and guaranteeing the security of lIeilll:ters of society The President of the Republic oi Colombia in the exercise of his constitutional Powers, and especially those conferred on him by article 121 of the National Constitution, and Considering. That, by Decree No. 213.1. of 197f, t:.e public order was declared to be disturbed and the entire national territory in a state of siegeJ That it is the responsibility of the President of the Republic to ensure the prOBPt and full administration of justice throughout the Republic, and that he is !'Q!quired to provide the ju'Jicial authorities, in accordl\DCe with law, with such assistance as is need~a id order to give effect to their decisionsJ That it is also the responsibility of the PresIdent of the Republic to presereve public order throughout the territory of the Nation, to restore it where it has been disturbed, and to defend woeK, which is a social obligation deserving the special protection of the state, That the causes of disturbar..,4e of public order have frOiil time to time reappeared "and have become more acute, creating a climate of general insecurity and degttnerating into murder, abduction, sedition, riot or insurrection, or i, I) ~errorist practices designed to produce political effects leading to the 01nderllining of the present republican regime, or into efforts to justify c~ime, acts which infringe the rights of citizens recognized by th.~ Constitution and by the LaWB and which ate essential for the maintenance and preservation of public orderJ That it i~ essential to enact security measures for the maintenance of social order and peace in the territory of the Republic, and That, under a~ttcle 16 of the Constitution, the authorities of the Republic are instituted to protect the lives,· honour and property of all per:sons, -206- Any person or persons who abduct others and, in order to commit the offence, or in the course of its execution or commission, cause them injuries or subject them to torture, or compel them to act against their will and demand money or lay down other conditions for their release, shall in~ur a penalty of 10 to 20 years' imprisonment with compulsory labour. If, because or on the occasion of the abduction, the death of the abducted person or third parties occurs, the term of imprisonment wih compulsory labour shall be fro~ 20 to.30 years. Persons accused or found guilty of the crime of abduction shall in no case be eligible for suspended preventive detention or a suspended sentence. Article 2. Persons who foment, head or lead an armed rising to overthrow the legally constituted National Government, or wholly or partly to chan9~ or suspend the eXisting constitutional system, with respect to the formation, functioning or replacement of the public powers or organs of sovereignty, shall incur 8 to 14 years' imprisonment with compulsory labour and sha~l be debarred from exercising rights and holding public office for the same period. Those who merely take part in the rebellion, beinq in its 'employ and having a military, political or judicial authority or jurisdiction, shall ,be liable to , two b;i~ds of the penalty provided tor in the previous paragraph. other persons involved in the rebellion shall incur one third of this penalty. Article J. Those who form armed bands, gangs or groups of three or more persons and invade or attack villages, estates; farms, roads or pUblic highways, causing deaths, fires or damage to property, or who, using violence against persons or 'objects, commit other offenc~s against the security and integrity of the community, or who by means of threats appropriate livestock, valuables or other movable objects belonging to others or force their proprietors, owners or administrators to surrender them, or who insititute the payment of contributions on the pretext of guaranteeing, respecting or defending the lives or rights of persons, shall incur a term of imprisonment with compulsory labour of 10 to 15 years. Article 4. Those who cause or take part in disturbances of public order in towns or other urban areas, who disturb the peaceful conduct of social activities or who cause fires, and in so doing bring about the death of persons, shall incur a penalty of 20 to 24 years' imprisonment with compulsory labour. If they Jaerely cause bodily harm, the penalty shall be from 1 to 12 years. If the acts referred to in this artj.cle are not committed with the aim of causing death or bodily injury, the penalty shall be from 1 to 5 years' ordinary imprisonme~t (prision). -201- If the death of one or more persons occurs as.a consequence of acts as described in the first paragraph of this article, the penalty shall be from 20 to 24 years' imprisonment with compulsory labour. If the acts cause only bodily injury, the penalty shall be from 4 to 10 years. The penalties referred to in this article shall be increased by one third if those who commit the acts conceal their identity by the use of disguises, masks, stockings or other devices intended tq conceal their identity, or if they use firearms in these circumstances. Article 6. Any person or persons who, by means of threats or violence, by falsely representing themselves as public officials or as acting on the orders of such officials, and, for the purposes of obtaining an unlawful advantage, for themselves or for a third party, force another person to surrender, dispatch, deposit or place at their disposal articles or money or documents capable of producing legal effects, shall incur 4 to 10 years' imprisonment with compulsory labour. Any person who by the same means forces another to sign or to dest.roy instruments of obligation or credit shall incur the same penalty. Article 7. A term of up to one year's incommutable imprisonment (arresto) shall be incurred by any person or persons who: (a) -Temporarily occupy public places or places open to the public, or offices of public or private bodies, for the purpose of exerting pressure in order to secure a decision by lawful authorities, distributing subversive propaganda in such places, posting offensive or subversive writings or dra~ings in them, or exhorting the population to rebellion, (b) Incite others to break the law or to disobey the authorities, or who disregard a legitimate order by a competent authoritYJ (c) Make impr.oper use of disguises, stockings, masks or other devices for concealing identity or who alter, destroy or conceal the registration plates of vehiclesJ (d) Fail, without just cause, to provide public services which they are required to furnish or assistance requested of them by the authorities or assistance requested by any person whose life or property is threatenedJ (e) Are in improper possession of articles which may be used to commit offences against the life and integrity of persons, such as firearms, daggers, knives, machetes, sticks, blowpipea, stones, bottles filled with petrol, fuses, or chemical or explosive substances, (f) Print, store, carry, distribute or transport subversive propagandaJ (g) Demand money or goods for the conduct of unlawful activities, so as to permit the movements of persons, goods or vehicles, or who impede the free movement of other persons. -208- The Mayors of Municipalities shall immediately advise the Governor, Intendent or Superintendent of such action. Article 9. The military criminal courts, in addition to exercising the competence given them by the laws and regulations in force, shall try by court martial proceedings t~he offences referred to in articles 1, 2, 3, 4, 5 and 6, as well as those committed against the life and person of members of the Armed Forces, against civilians working for the Armed Forces and against members of the Administrative Department of Security (DAB), whether or not engaged in the performance of their duties, and against public officials, because of ~e position they hold or because of the exercise of their functions. Article 10. Any person who, without the permission of the competent authority, manufactures, stores, distributes, sells, transports, supplies, acquires or carries firearms, ammunition or explosives shall incur a penalty of up to one year's imprisonment (arresto) and the confiscation of the articles concerned. Should the firearm or ammunition be an article for the exclusive use of the Armed Forces, the term of imprisonment shall be from 1 to 3 years, without prejudice to the nonfiscation of the article concerned. Article 11. The penalties referred to in article 7, paragraphs (a) and (b), and in article 10, shall be enforced by Army, Navy or Air Force Base Commanders, in accordance with the following procedure I The accused shall answer the charge within 24 hours following the hearing of the facts. He must be assisted by a legal ~epresentative in these proceedings. A period of four days, starting on the day following these proceedings, shall be allowed for the submission of any evidence which has been requested by the accused or his legal representative or called for by the official. If within the 24 hours following the hearing of the facts it has not been possible to hear the plea of the accused becauae he has failed to appear, he shall be summoned to appear by an order which shall be posted for two days in the adjutant's office of the appropriate Army, Navy or Air Force Base Command. If the person accused of the offence has not appeared by the end of this period, he shall be declared absent and a lawyer shall be appointed by the court as his defence counsel, to act for him until the close of the investigation. When the above periods have elapsed, the appropriate written decision, inclUding a statement of reasons, shall be issued. This decision shall indicate, if the accused is found guilty, his name., the offence, the charge against him, the sentence passed on him and the place where he is required to serve it. If, being in custody, he is cleared of the charge, he shall be released forthwith. . -209- Article 12. The penalties referred to in article 7, paragraphs (c), (d), (e), (f) and (g), shall be imposed by police station commanders having the rank of captain or above, who shall hear the case in accordance with the procedure laid down in the preceding article. In localities wher,e there is no such oommander, the Mayor or the Inspector of Police shall hear the case. Article 13. So long as public order continues to be disturbed, radio stations and television channels shall not broadcast information, statements, communiques or comments relating to public o~der, cessations of activities, work stoppages, illegal strikes or information which incites to crime or aims to justify it. The Ministry of Communications shall, by a decision which includes a statement of reasons and against which only an application for reversal may be lodged, impose penalties for any infraction of this article, in conformity with the relevant provisions of Act No. 74 of 1966 and Decree No. 2085 of ,1975. Article 14. The Ministry of Communications is em~ered, under article 5 of Decree No. 3418 of 1954 to take over, on behalf of the State, full control of some or all privately operated broadcasting frequencies or channels, where this is necessary in order to avert a disturbance of public order and to restore normal conditions. Licences for broadcasting services which are taken ove~ by the Colombian State shall be considered temporarily suspended. Article 15. The penalties r.eferred to in articles 209, 210, 211, 212 and 213 of Volume 2, Title V of the Penal Code relating to association for and instigation of infraction of the law shall consist of from 1 to 8 years' ordinary imprisonment. Article 16. This Decree shall enter into force as soon as it is issued and shall suspend legal provisions which are contrary ~o it. -210- SECRETARY OF THE INTERIOR (Signed) German Zea Hernandez Acting Minister for Foreign Affairs, (Si9!"!ed) carlos Borda Mendoza Minister of Justice, (Signed) Hugo Escobar Sierra Minister of Finance,' (Signed) Jaime Garcia Parra Minister of Defence, (Signed) Luis Carlos Camacho Leyva Minister of Agriculture, (Signed) German Bula Hoyos Minister of Labour and Social Security, (Signed) Rodrigo Marin Bernal Minister of Health, (Signed) Alfonso Jararnillo Salazar Minister for Economic Development, (Signed) Gilberto Echeverry Mejia Minister for Mines and Energy, (Signed} Alberto Vasquez Restrepo Minister of Education, (Signed) Rodrigo Lloreda Caycedo Minister of Communications, (Signed) Jose Manuel Arias Carrizosa Minister of Public Works and Transport, (Signed) Enrique Vargas Ramirez Chief of the Administrative Department of the Office of the President of the RepUblic, (Signed) Alvaro Perez Vives -211-