COLOMBIA: JUDICIAL INDEPENDENCE ON THE TABLE
By Diego García-Sayán
It is not an everyday occurrence for a former constitutional president to have his freedom restricted by a court order. In Latin America or anywhere else in the world. And when it has happened in recent times, it has usually been in high-profile corruption cases – for acts of big business in connection with public works – or for serious human rights violations.
This is not the case. former President Alvaro Uribe’s house arrest order is for alleged witness tampering (“procedural fraud and bribery”). I am writing these preliminary comments in my capacity as the United Nations Special Rapporteur on Independence of Judges without piercing the surface of what only the Colombian justice system can resolve.
I will comment on three salient aspects under my competence that have been put to my consideration. The explanations or political analysis and derivations of the process, and related facts, are not of my competence.
First, the measure was not ordered by just any judge. It was a ruling of the Supreme Court, in a unanimous decision of the Special Chamber of Investigation and derives from an investigation initiated in the Court more than two years ago. Having recently resigned from the Senate, it will now be up to the Supreme Court to decide whether to pass the case to an ordinary court or to retain jurisdiction given that some of the events attributed to the investigated party occurred when he was already a legislator.
Second, the alleged effects on judicial guarantees and due process. These are fundamental rights that must be guaranteed to every defendant. Without an examination and knowledge of the file itself, it is not possible to make an assessment in this regard. There are controversial positions and they refer to a file of more than 1,000 pages, as has been made public.
However, there is a salient procedural fact that has to do with the organization in the Supreme Court. When the Criminal Cassation Chamber began its investigation in July 2018, acting as the sole instance, the constitutional modification -January 2018- that established the double instance for those who have been granted a hearing, was not yet being applied (Article 186 of the Constitution). When the investigation began in July 2018 the new Chambers were not yet in operation.
This contradiction was transmitted to me at that time and led to a communication I addressed to the Colombian authorities regarding the possible violations of due process that this might entail. In connection with this – or whatever the explanation was – the fact is that this contradiction was corrected. The double instance was put into operation and the case passed to the newly created Pre-Trial Chamber.
Any disputes that may arise from the handling of the proceedings by one or other chamber must be resolved within the process itself, using the resources available under national law. This Rapporteur has been informed – and it is common knowledge – that, in view of the preventive arrest warrant issued at the beginning of the month, no appeal was raised by the defendant.
Thirdly, the presumption of innocence and pretrial detention. In criminal proceedings, in accordance with international human rights standards the rule must be the freedom while his or her criminal responsibility is being determined. Deprivation of liberty is exceptional and the principle of the presumption of innocence and the principles of legality, necessity and proportionality, indispensable in a democratic society, must be respected. If these conditions are not met, it follows from these standards that the judicial authority is to consider other measures of assurance.
This ongoing process has been having wide political repercussions and profuse media coverage. Taking note of the concern expressed by several sources of the intention of political actors to influence on this process, it is hoped that it will be taken into account in all the proceedings and in the public assessments that will be made. It is exclusively up to those in the judiciary – and no one else – to decide the course and fate of the process.
Both respect for the principle of judicial independence and for due process are fundamental to the further consolidation of the rule of law in Colombia. Both are fundamental pillars of the democratic institutionality that must be reaffirmed.
Published in Spanish in El País.