Article by PBI-Colombia
At the end of last year, in the context of Christmas celebrations, PBI-Colombia met with Father Javier Giraldo, a recognized human rights defender and political and spiritual advisor to the Peace Community of San José de Apartadó.[1] During a coffee break in La Holandita, brigadistas from the PBI team in Urabá took advantage of Father Javier’s visit to talk about Constitutional Court ruling T-342/[2]020 that directly pertains to the Peace Community and, indirectly, to the defense of human rights throughout the country.
What is the context of this ruling?
In September 2018, the Colombian Army’s 17th Brigade filed a tutela (writ of protection of constitutional rights) against the Peace Community of San José de Apartadó, where it demanded that the Community remove eight denouncements it had published that year. The 17th Brigade argued that its right to a good name had been violated and that the Community must remove its publications. For the Community, however, these publications[3] are an important tool to report what is happening in the rural area given that, many years ago, since 2005, they stopped working with the State justice system.
In what context did the Peace Community break relations with the judicial system?
After the horrible February 2005 massacre,[4] the Community decided to end all relations with the Colombian judicial apparatus, unless it recognized its errors, corrected them, and asked for forgiveness. The judicial apparatus had frequently violated Community members’ rights, had initiated criminal proceedings with false witnesses, and, more than anything, ensured absolute impunity for hundreds of crimes committed by the State against the Community. There was no justice.
Where was the tutela filed?
The Brigade filed the tutela with the first mixed (promiscua) court of Apartadó, which immediately decided to open a case and the Community was informed. That is when the Community got to work. There were many internal meetings, and with allies and lawyers. In line with the community’s rupture with the justice system, they decided not to respond. So, some deadlines passed, and the Brigade requested that contempt procedures be initiated. The judge initiates these proceedings, and since contempt is a crime in itself, she orders the arrest of Germán Graciano, the Community’s legal representative. The Police of San José de Apartadó are responsible for carrying out the order.
What happened then?
Since the tutela was studied by a mixed jurisdiction court, the decision was then reviewed by a civil judge. When looking for information about Germán Graciano, the judge found that he was a threatened person, with provisional measures from the Inter-American Commission on Human Rights (IACHR), and that many international organizations had called for his protection. The judge had a simple reflection: “Ok, whose rights are more important? The military’s right to a good name or Germán Graciano’s right to life.” And without pause, the prior judge’s decision was annulled, and the arrest warrant was halted. Nevertheless, the tutela ruling was still effective and for that reason, the Community, lawyers, and other allies requested that the tutela be reviewed by the Constitutional Court.[5] This was the second instance, after the national human rights ombudsman and a Constitutional Court magistrate called for its review, the Court decided to study the case. That was in November 2018. According to Constitutional Court rules, reviewing a tutela shouldn’t take more than 3 months, this time it took over two years.
What does the Constitutional Court ruling say?
In the end, the ruling backed the military, opting to accept its request and rule against the Community. The ruling is quite long and goes over a lot of case law regarding both rights, good name and freedom of expression. It cites a lot of other Constitutional Court rulings and those of other courts like the IACHR but, as I see it, it does not mention the most important element.
What was missing from the Constitutional Court ruling?
The most important element is that case law on the right to freedom of expression, from the Constitutional Court, IACHR, and other courts, gives priority to the right to freedom of expression as the most essential right in a democracy; for there to be democracy, this right must exist and be protected, which is what the Community defends. However, the ruling does not mention Constitutional Court case law showing that the right to a good name is inherently tied to any position, nor is it obtained by a judicial decision, instead it depends on the good behavior of the individual who is demanding this right. And that this good behavior is recognized by society.
“the right to freedom of expression as the most essential right in a democracy; for there to be democracy, this right must exist and be protected, which is what the Community defends.”
How will this affect the Community’s freedom to publish public complaints?
Well, the truth is that the final and most decisive section of the ruling does not order the Community to remove its public complaints nor does it say they cannot publish future complaints. The ruling states that the fact that the Court is affirming a violation of the Brigade’s right to a good name is sufficient punishment for the Community and to redress the military. For many, this ruling is very strange and debatable as it ruled in favor of the military and against a community that has been victim to so many paramilitary and military crimes. So, many allies have expressed the need to do something and they have been put their heads together to think about it.
What do you think about the ruling?
When I read the ruling, I thought “nothing can be done.” It is from the highest court in the state apparatus; nobody is above it and nobody can control it. Then, I decided to write a letter to three of the magistrates who signed the ruling.[6] A letter from an ethical perspective saying, “you are the highest Court, but you were mistaken,” and I cited many IACHR texts and a Constitutional Court ruling in favor of the Peace Community itself. And I shared other reflections, focused on everything the Community has undergone, in large extent because of the military.
Read more from Padre Javier: Sobre preferencias, asfixias y vergüenzas – Desde los márgenes
What did the lawyers do?
These allied lawyers started thinking, to see if there was some legal action, and then they remembered that even though it is the highest court, they had heard of a Constitutional Court ruling that had been appealed and the appeal was successful. So, they started looking for a path forward, and that is to request the full Court to annul the ruling.
What are the arguments to request an annulment?
First, there is a very evident and legal reason. The ruling cites one of the Constitutional Court’s internal regulation that prohibits a change in jurisprudence unless the full Court rules to make this change. But in this case, it was just a chamber and so they did not have the right to change the jurisprudence. The lawyers also cited concrete case law on the right to a good name, showing that in the case of the 17th Brigade this right does not exist, as they have not earned it. On the contrary, the annulment request mentions all the times the IACHR, the Constitutional Court itself, the Supreme Court of Justice, the Prosecutor General’s Office, etc. have accused the 17th Brigade of crimes against humanity. For that reason, they state that this good name does not exist, and, if it does not exist it cannot be defended. On the other hand, the right to free expression does exists and has been backed by the Constitutional Court.
Do you believe that the annulment request will be accepted?
Honestly, I am not very optimistic. The Court has changed a lot, it isn’t the same as it was two or three years ago, now there are right-wing magistrates, several named by Uribe or Duque, and for that reason I do not believe they will accept the demand and annul the ruling. On the other hand, I believe that the lawsuit has a very strong legal foundation and is important that this be made known.
What are the consequences of the ruling for the Peace Community, and in general?
Even though the ruling does not demand a retraction, looking at the 17th Brigade’s past actions (see 2005 massacre[7]) against the Community, I fear that the military will use the ruling and use it as a foundation for other actions against the Community. And, on more general terms, I believe that the military can use the ruling to accuse many social organizations, anyone who files complaints against the military could be accused of violating its good name.
I fear that the military will use the ruling and use it as a foundation for other actions against the Community.
What can the international community do?
In December, we had a virtual conference with allied organizations in Europe and they asked that same question. Currently, while there is still no word from Court on the annulment, it is very important that international organizations make statements, both before the Constitutional Court itself and before the Colombian Government, embassies, and before entities such as the United Nations, the OAS, the IACHR. etc. Why? Because the Court ruling mentions the large amount of communications and statements received from international entities, which show the Community’s broad international support. Even if the ruling is not favorable, those statement have weight in the Court and favor the Community.
Father Javier, any words of hope to conclude?
The atmosphere in which the Community lives clearly shows that we are facing a very challenging context but the heart of the community is ready to face it, as always.
[1] PBI Colombia: Raising Awareness and Reporting Human Rights Violations: Father Javier Giraldo. 8 November 2018
[2]Corte Constitucional: Sentencia T-342/20. 21 August 2020
[3]Comunidad de Paz de San José de Apartadó: Los alcances no imaginables ni sustentables de la mordaza. 13 December 2020
[4]PBI Colombia: The Massacre that Changed the Peace Community Forever. 13 December 2019
[5]PBI Colombia: Letter Signed by 71 International Organisations to Support the Peace Community of San José de Apartadó, 7 November 2018
[6] Javier Giraldo: Sobre preferencias, asfixias y verdades. 9 December 2020
[7]El Espectador: Victimas piden que la masacre de San José de Apartadó salga de la JEP. 5 March 2020
