Règle correspondante
Colombia
Practice Relating to Rule 100. Fair Trial Guarantees
Colombia’s Circular on Fundamental Rules of IHL (1992) provides: “Each person shall benefit from the fundamental judicial guarantees.” 
Colombia, Transcripción Normas Fundamentales del Derecho Humanitario Aplicables en los Conflictos Armados, Circular No. 033/DIPL-SERPO-526, Policía Nacional, Dirección General, Santafé de Bogotá, 14 May 1992, § 5.
Colombia’s Basic Military Manual (1995) states: “To protect [non-combatants] means … to offer the necessary conditions for a fair trial before a competent tribunal, so that the requirement of due process is guaranteed.” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 21.
Colombia’s Instructors’ Manual (1999) provides: “Whoever is deprived of his liberty has the right to a legal trial.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 9.
The manual adds: “Nobody can be tried except in conformity with laws in force before the imputed act and by a judge or a competent tribunal, and in full compliance with all rules for each trial.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 10.
Colombia’s Soldiers’ Manual (1999) provides: “Whoever is deprived of liberty has the right to a legal trial.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Colombia’s Operational Law Manual (2009) states:
[Article 3 common to the four 1949 Geneva Conventions] establishes the conduct that is not permitted in relation to protected persons (although it should be noted that most of this conduct is also prohibited in relation to persons participating in hostilities):
(iii) The passing and carrying out of sentences without prior judgment pronounced by a regularly constituted court, affording all the judicial guarantees recognized as indispensable by civilized peoples. 
Colombia, Manual de Derecho Operacional Manual FF.MM. 3-41 Público, Primera Edición 2009, Comando General de las Fuerzas Militares, aprobado por el Comandante General de las Fuerzas Armadas por Disposición Número 056, 7 December 2009, pp. 41–42.
Colombia’s Penal Code (2000) provides for the punishment of anyone who during an armed conflict “orders or deprives protected persons of their right to a fair and regular trial”. 
Colombia, Penal Code, 2000, Article 149.
Colombia’s Justice and Peace Law (2005), states:
ARTICLE 2. SCOPE, INTERPRETATION AND APPLICATION OF THE LAW. This law regulates the investigation, prosecution, punishment and judicial guarantees of individuals connected to organized armed groups outside the law who have been perpetrators of or participants in criminal offences committed during and on the occasion of their membership in these groups, and who have decided to demobilize and make a decisive contribution to national reconciliation.
ARTICLE 4. RIGHT TO TRUTH, JUSTICE AND REPARATION, AND TO DUE PROCESS. The process of national reconciliation addressed by this law shall in any case … respect the right to due process and the judicial guarantees of the defendant. 
Colombia, Justice and Peace Law, 2005, Articles 2 and 4.
The Law also states:
This law aims at facilitating the peace process and the individual or collective reintegration into civilian life of members of armed groups outside the law, while guaranteeing the victims’ rights to truth, justice and reparation.
Organized armed groups outside the law are understood to mean guerilla or self-defence groups, or a significant and integral part of these groups, such as blocs, fronts or other modalities of these organizations, as addressed in Law 728 of 2002 [which amends, inter alia, Article 8 of the 1997 Law on Judicial Cooperation, to read, in its paragraph 1: “In accordance with international humanitarian law, and for the purposes of this law, armed groups outside the law are understood to mean those which, under responsible command, exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations.”]. 
Colombia, Justice and Peace Law, 2005, Article 1.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to the presence of a parent or guardian … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.1.12.
The Court further held:
Rule 14 [of the “Beijing Rules”] sets forth in general terms the obligation to respect the right to due process and the principle of best interests of the child in any criminal prosecution of minors by stating:
Any minor who is prosecuted for violating criminal law must be granted all basic procedural guarantees that are afforded to any person in light of the right to due process. The fact that he or she is a minor does not justify limiting such rights but rather is the reason for placing stricter requirement on the authorities so that they ensure the effective exercise of such rights. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Colombia stated:
218. … [A]dolescents between the ages of 14 and 18 years who committed crimes when they were members of armed groups could be subject to criminal charges. However, there have been no such proceedings to date, in application of the principle of prosecutorial discretion, as explained below.
219. In general, the procedures followed in the cases of adolescents between the ages of 14 and 18 who may have committed punishable acts in Colombia are designed to educate, rehabilitate and protect them, to take into account the difference between adolescents and adults, and to draw upon the specific services offered by the various bodies, competent authorities and programmes.
220. To safeguard their rights, a number of basic procedural principles and guarantees are laid down, including due process, the right to a defence and to contest the charges brought against them, the presumption of innocence, the right to appeal and other rights guaranteed by the Constitution, the law and international treaties.
221. The question of the liability of children and adolescents who may have committed criminal offences during their participation in illegal armed groups is addressed in conformity with article 17559 of the Code on Children and Adolescents. This article deals with the principle of prosecutorial discretion, which allows the prosecution to waive criminal proceedings against adolescents who were in any way involved in illegal armed groups or participated directly or indirectly in hostilities, armed action, or crimes committed by illegal armed groups, provided that [certain conditions are met]. 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, §§ 218–221.
Colombia’s Operational Law Manual (2009) states:
[Article 3 common to the four 1949 Geneva Conventions] establishes the conduct that is not permitted in relation to protected persons (although it should be noted that most of this conduct is also prohibited in relation to persons participating in hostilities):
(iii) The passing and and carrying out of sentences without prior judgment pronounced by a regularly constituted court affording all the judicial guarantees recognized as indispensable by civilized peoples. 
Colombia, Manual de Derecho Operacional Manual FF.MM. 3-41 Público, Primera Edición 2009, Comando General de las Fuerzas Militares, aprobado por el Comandante General de las Fuerzas Armadas por Disposición Número 056, 7 December 2009, pp. 41–42.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
As members of the civilian population affected by internal armed conflicts, children and adolescents have the right to respect for the fundamental guarantees granted to all persons not actively participating in hostilities, as established by Article 3 common to the [1949] Geneva Conventions … In accordance with this Article, in cases of non-international armed conflicts in the territory of one of the Parties, each party to the conflict shall be bound to apply certain minimum guarantees without affecting their legal status as parties to the conflict, including: (1) Persons taking no active part in the hostilities shall be treated humanely in all circumstances without adverse distinction based on discriminatory criteria; (2) To this end, the following acts are prohibited at any time and in any place whatsoever with respect to the above-mentioned persons (including children): ... (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the essential judicial guarantees. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 5.4.2.2.
Colombia’s Basic Military Manual (1995) provides that in both international and non-international armed conflicts, civilians benefit from the right to be presumed innocent. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 24.
Colombia’s Instructors’ Manual (1999) provides: “Any person is presumed innocent until he is judicially declared guilty.” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 10.
Colombia’s Law on the Disciplinary Regime of the Armed Forces (2003) states: “The addressees of the present rules who are accused of a disciplinary offence must be presumed innocent until their responsibility is legally determined by a final judgment.” 
Colombia, Law on the Disciplinary Regime of the Armed Forces, 2003, Article 2.
Colombia’s Criminal Procedure Code (2004) states:
Presumption of innocence and in dubio pro reo. Any person must be presumed innocent and must be treated as such while there is no definite judicial decision on his or her criminal responsibility.
… Any doubt which arises must be dealt with in favour of the accused. 
Colombia, Criminal Procedure Code, 2004, Article 7.
[emphasis in original]
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as the presumption of innocence … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.2.5.1.7
In 2009, in the Palacios Copete and others case, Colombia’s First Criminal Court of Rionegro Circuit stated:
The principle of presumption of innocence will be taken into account [in this judgment]. As provided by the [1991] Constitution, it applies to every inhabitant of the national territory. The presumption of innocence can only be affected … by evidence that has been legally introduced by the parties to the proceedings or the judiciary and clearly demonstrates … the culpability [of the suspects]. 
Colombia, First Criminal Court of Rionegro Circuit, Palacios Copete and others case, Judgment, 5 February 2009, pp. 32–33.
Regarding the context of the case, the Court also stated:
It is well known that there is an armed conflict in the Colombian territory – although sometimes the conflict exceeds the Colombian borders – between the State, which tries to preserve the constitutional principles and purposes, and a number of insurgent groups outside the law, which have tried to destabilize the basic institutions of our State and society by means of violent acts and with the support of drug trafficking and weapons. …
It was proved that no combat took place between the National Army and a group of insurgent persons and that, instead, soldiers … forcibly took [the victim] from the village of Argelia at 10.30 p.m. on 4 October … and murdered him at 4.30 a.m. on 5 October … Thus, the elements of the crime of murder of a protected person … are fulfilled. 
Colombia, First Criminal Court of Rionegro Circuit, Palacios Copete and others case, Judgment, 5 February 2009, pp. 84 and 88.
[emphasis in original]
In 2010, in the Plazas Vega case, Colombia’s Third Criminal Court of the Specialized Circuit of Bogotá stated:
Article 232 of Law No. 600 of 2000 provides for one of the fundamental principles with regard to evidence … as follows: “[A] guilty verdict cannot be passed without evidence that shows the certainty of the punishable conduct and the responsibility of the accused.”
The certainty to convict entails the absence of any doubt that can influence the judge’s view on whether the facts occurred … and on the responsibility of the accused … , so the judge can be completely sure about the application of the criminal penalty.
… [I]f the evidentiary material is not enough to refute the principle of presumption of innocence, the only consequence possible is for the accused to be acquitted. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 72 and 73.
The Court further stated:
The present investigation originated on 6 and 7 November 1985, when the … self-styled “Iván Marino Ospina” branch of the guerrilla movement calling itself “M-19 – 19 April Movement” violently occupied the Palace of Justice in the centre of Bogotá, in an “operation” paradoxically named “Antonio Nariño for human rights” with the aim of subjecting the then President of the Republic … to a political trial in light of the government’s alleged non-compliance with the peace agreements signed with the rebel group.
Moments after the start of the seizure [of the building], the Chief of Staff of the Thirteenth Brigade … activated the National Defence Plan “Tricolor 83” and the Brigade Operations Centre.
A tactical and intelligence operation was then carried out, directed and coordinated by the National Army and aimed at retaking the Palace of Justice and freeing the hostages …
… [T]he freed hostages were identified, questioned, listed and classified as follows: personnel not involved in the subversive operation; participants in the assault; and possible M-19 collaborators from inside the Palace of Justice …
In this way, members of the armed forces rescued from the Palace of Justice more than 200 people who, … in accordance with the recovery and rescue plan, were almost all moved to the Casa Museo del Florero and, after being identified, were released. However, 11 of the rescued persons have never been traced.
[I]t must be said that … at the time the events took place, the “secret” “special intelligence operations plan No. 002/80” was in full force. This plan was designed to “simultaneously identify, locate, capture and question M-19 members operating in the area under the jurisdiction of the BIM [Brigade XIII, of which the accused was a Colonel]” and assigned military targets belonging to this illegal armed group to the Cavalry School.
In view of the reprehensible actions of the members of the M-19 subversive group, who placed in danger the lives of the civilians who were inside the Palace, the Court cannot ignore the fact that the intervention of the public forces was imperative to re-establish the constitutional order that had been shattered. Likewise, it was legitimate for the military to work towards identifying and sorting the people who were evacuated from the conflict zone, and it was appropriate to use the Casa del Museo del 20 Julio as a command post for this work, in accordance with the operational manuals in force at the time. What, however, is inconceivable in a Social and Democratic State governed by the rule of law is that the authorities responsible for the security of their fellow citizens, for the maintenance of peaceful coexistence and fairness, act surreptitiously with total disregard for domestic and international norms related to the protection of human rights. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 1, 3, 5, 128 and 286.
[footnotes in original omitted]
In 2010, in the Constitutional Case No. C-936/10, Colombia’s Constitutional Court stated:
53. … [T]he Court observes that item 17 of article 324 of the [2004] Criminal Procedure Code, as amended, establishes two requirements for the application of the principle of discretionary prosecution to a demobilized [member of an illegal armed group] who intends to avail himself of the benefit: (i) that he or she clearly demonstrates his or her intent to reintegrate into society; and (ii) that he or she signs a declaration under oath stating that he or she has not committed a crime other than those established in the grounds [for prosecution], namely those crimes resulting from “membership of a criminal organization”, such as the illegal use of uniforms and insignias and the illicit carrying of arms and ammunition.
57. The legislative decision to substitute an adequate investigative strategy … with the sworn declaration that the future beneficiary of the waiver of criminal prosecution has to give presents multiple constitutional and criminal policy problems …
Thirdly, while the rule falls within the regulation of the principle of discretionary prosecution, it departs from the principles that guide it, such as the presumption of innocence and the need for a “minimum threshold of evidence allowing to infer the commission or participation in the commission of an act and its legal qualification”. 
Colombia, Constitutional Court, Constitutional Case No. C-936/10, Judgment, 23 November 2010, pp. 86 and 88–89.
Regarding the context in which the amendment was made, the Court stated:
In recent years, the Colombian State has adopted various laws aimed at overcoming the situation of internal armed conflict in the country. Hence, while it is clear that the conflict has not fully ceased, it is also clear that all those measures have been aimed at disarming and reintegrating into society members of illegal armed groups. In other words, they have been aimed at achieving peace, without, however, admitting that the victims’ rights to truth, justice and full reparation can be disregarded. 
Colombia, Constitutional Court, Constitutional Case No. C-936/10, Judgment, 23 November 2010, p. 167.
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Colombia stated:
218. … [A]dolescents between the ages of 14 and 18 years who committed crimes when they were members of armed groups could be subject to criminal charges. However, there have been no such proceedings to date, in application of the principle of prosecutorial discretion, as explained below.
219. In general, the procedures followed in the cases of adolescents between the ages of 14 and 18 who may have committed punishable acts in Colombia are designed to educate, rehabilitate and protect them, to take into account the difference between adolescents and adults, and to draw upon the specific services offered by the various bodies, competent authorities and programmes.
220. To safeguard their rights, a number of basic procedural principles and guarantees are laid down, including due process, the right to a defence and to contest the charges brought against them, the presumption of innocence, the right to appeal and other rights guaranteed by the Constitution, the law and international treaties.
221. The question of the liability of children and adolescents who may have committed criminal offences during their participation in illegal armed groups is addressed in conformity with article 17559 of the Code on Children and Adolescents. This article deals with the principle of prosecutorial discretion, which allows the prosecution to waive criminal proceedings against adolescents who were in any way involved in illegal armed groups or participated directly or indirectly in hostilities, armed action, or crimes committed by illegal armed groups, provided that [certain conditions are met]. 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, §§ 218–221.
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right … :
h) to be informed about the charges against him or her in an understandable way and expressly indicating the way the acts underlying the charge were carried out as well as the time and place of the acts underlying the charge. 
Colombia, Criminal Procedure Code, 2004, Article 8(h).
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to be notified of the charges … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, March 2005, § 4.2.5.1.7
In 2010, in the Plazas Vega case, Colombia’s Third Criminal Court of the Specialized Circuit of Bogotá stated:
Regarding the modification of the charge by the Prosecutor from co-perpetrator … to perpetrator-by-means, one could conceive the idea that this situation could entail a violation of the principle of consistency. However, this guarantee is not affected as long as this variation does not prejudice the situation of the defendant.
In that regard, the Supreme Court of Justice stated:
Within the framework of Law No. 600 of 2000, … consistency as a procedural guarantee … entails that the judgment must be in harmony with the indictment or document containing the charges with regard to personal, factual and legal aspects. … The personal and factual consistency is absolute, while the legal one is relative because the judge may convict the defendant of a punishable conduct different from the one for which he or she had been accused as long as this does not lead to a higher penalty for the defendant. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, p. 253.
[footnotes in original omitted]
The Court further stated:
The present investigation originated on 6 and 7 November 1985, when the … self-styled “Iván Marino Ospina” branch of the guerrilla movement calling itself “M-19 – 19 April Movement” violently occupied the Palace of Justice in the centre of Bogotá, in an “operation” paradoxically named “Antonio Nariño for human rights” with the aim of subjecting the then President of the Republic … to a political trial in light of the government’s alleged non-compliance with the peace agreements signed with the rebel group.
Moments after the start of the seizure [of the building], the Chief of Staff of the Thirteenth Brigade … activated the National Defence Plan “Tricolor 83” and the Brigade Operations Centre.
A tactical and intelligence operation was then carried out, directed and coordinated by the National Army and aimed at retaking the Palace of Justice and freeing the hostages …
… [T]he freed hostages were identified, questioned, listed and classified as follows: personnel not involved in the subversive operation; participants in the assault; and possible M-19 collaborators from inside the Palace of Justice …
In this way, members of the armed forces rescued from the Palace of Justice more than 200 people who, … in accordance with the recovery and rescue plan, were almost all moved to the Casa Museo del Florero and, after being identified, were released. However, 11 of the rescued persons have never been traced.
[I]t must be said that … at the time the events took place, the “secret” “special intelligence operations plan No. 002/80” was in full force. This plan was designed to “simultaneously identify, locate, capture and question M-19 members operating in the area under the jurisdiction of the BIM [Brigade XIII, of which the accused was a Colonel]” and assigned military targets belonging to this illegal armed group to the Cavalry School.
In view of the reprehensible actions of the members of the M-19 subversive group, who placed in danger the lives of the civilians who were inside the Palace, the Court cannot ignore the fact that the intervention of the public forces was imperative to re-establish the constitutional order that had been shattered. Likewise, it was legitimate for the military to work towards identifying and sorting the people who were evacuated from the conflict zone, and it was appropriate to use the Casa del Museo del 20 Julio as a command post for this work, in accordance with the operational manuals in force at the time. What, however, is inconceivable in a Social and Democratic State governed by the rule of law is that the authorities responsible for the security of their fellow citizens, for the maintenance of peaceful coexistence and fairness, act surreptitiously with total disregard for domestic and international norms related to the protection of human rights. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 1, 3, 5, 128 and 285–286.
[footnotes in original omitted]
Colombia’s Instructors’ Manual (1999) provides that during the investigation and the trial, “any accused has the right … to be assisted by a qualified lawyer of his own choosing or by an ex-officio lawyer”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right …:
e) to be heard, assisted and represented by his or her own lawyer or a lawyer nominated by the State,
g) to communicate in private with his or her lawyer before appearing before the authorities,
i) to have reasonable time and adequate means to prepare his or her defence. In exceptional cases, he or she may request an extension which must be duly justified and necessary for the hearings which he or she must attend,
j) to request, know and to dispute evidence. 
Colombia, Criminal Procedure Code, 2004, Article 8(e), (g) and (i)–(j).
Colombia’s Justice and Peace Law (2005), states:
ARTICLE 2. SCOPE, INTERPRETATION AND APPLICATION OF THE LAW. This law regulates the investigation, prosecution, punishment and judicial guarantees of individuals connected to organized armed groups outside the law who have been perpetrators of or participants in criminal offences committed during and on the occasion of their membership in these groups and who have decided to demobilize and make a decisive contribution to national reconciliation.
ARTICLE 15. CLARIFICATION OF THE TRUTH. Public servants shall take the necessary measures to ensure … that the defendants have a defence during the proceedings established by this law. 
Colombia, Justice and Peace Law, 2005, Articles 2 and 15.
The Law also states:
This law aims at facilitating the peace process and the individual or collective reintegration into civilian life of members of armed groups outside the law, while guaranteeing the victims’ rights to truth, justice and reparation.
Organized armed groups outside the law are understood to mean guerilla or self-defence groups or a significant and integral part of these groups, such as blocs, fronts or other modalities of these organizations, as addressed in Law 728 of 2002 [which amends, inter alia, Article 8 of the 1997 Law on Judicial Cooperation to read, in its paragraph 1: “In accordance with international humanitarian law, and for the purposes of this law, armed groups outside the law are understood to mean those which, under responsible command, exercise such control over a part of the territory as to enable them to carry out sustained and concerted military operations.”]. 
Colombia, Justice and Peace Law, 2005, Article 1.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to counsel … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.1.7
In 2009, in the Constitutional Case No. C-801/09, the Plenary Chamber of Colombia’s Constitutional Court was called upon to decide on the constitutionality of the 2002 ICC Elements of Crimes, the 2002 ICC Rules of Procedure and Evidence and the corresponding domestic law approving them. With regard to the rights and means of defence provided for in these instruments, the Court stated:
2.2.13. …[I]n the … Case No. C-578 of 2002, the [Constitutional] Court identified the provisions of the [1998] Rome Statute of the International Criminal Court that contain different treatment to that provided for in the [1991] Political Constitution, recognizing that, in any case, these were expressly authorized by Legislative Act No. 2 of 2001, as long as it is understood that their effects are limited exclusively within the scope of the said Statute.
The Court thus found the existence of different treatment in the following articles [of the Rome Statute]:
5. Articles 61(2)(b) and 67(1)(d), which allow the International Criminal Court to determine whether it is in the “interests of justice” for a person under investigation or prosecution to be represented by a defence counsel. … The [Constitutional] Court recalled that … the right to a legal defence is expressly provided for in article 29 of the Constitution for anyone accused of a crime, during the investigation and judicial proceedings, without any limitation and without the enjoyment of this right being dependent on the decision of the judicial body.
2.2.14. [I]n the section corresponding to the conclusions of Case C-578 of 2002, the Court reiterated that “the different treatment in substantive matters was authorized by Legislative Act No. 2 of 2001 exclusively within the scope of the exercise of the International Criminal Court’s jurisdiction” and, therefore, it “does not diminish the scope of the guarantees provided for under the Constitution with regard to the exercise of the jurisdiction of the national authorities”.
5.3.1.3. … The [same] differences in treatment are also present in some of the [2002 ICC] Rules of Procedure and Evidence, which regulate specific aspects of the right to a legal defence … , which in turn are a development of the norms of the Rome Statute …
5.3.1.3.1. …
Given that the aforementioned rules regulate some aspects of the enjoyment of the right to a legal defence at different stages of the proceedings, based on the understanding that legal assistance does not constitute an inalienable right of the detainee or accused and depends on the authorization of the judicial body, they treat the matter differently from article 29 of the Constitution. As explained, the Constitution provides for the right to a legal defence for anyone accused of a crime, during the investigation and judicial proceedings, without any limitation and without the need for the judicial body in charge of the proceedings to authorize the enjoyment of that right.
5.3.1.4. … However, while this different treatment was expressly authorized by Legislative Act No. 2 of 2001 for cases under prosecution before the International Criminal Court, it does not authorize the national authorities to apply this kind of measure when prosecuting a crime provided for under the [Rome] Statute. 
Colombia, Constitutional Court, Constitutional Case No. C-801/09, Judgment, 10 November 2009, §§ 2.2.13.–2.2.14. and 5.3.1.3.–5.3.1.4.
In 2008, in its Comprehensive Human Rights and IHL Policy, the Ministry of National Defence of Colombia stated:
42. … [I]t is essential for [a soldier] to be provided with [a] proper legal defence if he has to account for himself before the law. The risks to which he is exposed are immeasurably greater than those of an ordinary citizen and his right to due process is no different from that of the rest of society.
II. OBJECTIVES
54. The Comprehensive Policy has five strategic objectives:
- To provide adequate legal defence for members of the National Security Forces.
III. LINES OF ACTION
55. The objectives described above will be pursued via a vast range of strategies, which have been grouped together under the following lines of action:
- Defence: Provide mechanisms to guarantee the right of defence of members of the National Security Forces and the effective defence of the State, by improving the quality and increasing the numbers of legal defence counsel[l]ors and encouraging the use of the conciliation mechanism.
DEFENCE
112. The reinforcement of institutional controls in order to dissuade people from committing human rights abuses and breaches of IHL and to ensure that such abuses and breaches are punished, needs to go hand in hand with effective legal defence for members of the National Security Forces: the fulfilment of their responsibilities necessarily involves greater risks, exposed as they are to the most difficult situations. Any member of the National Security Forces must be provided with an adequate defence within the framework of respect for due process.
Legal Defence
115. For the purpose of providing mechanisms to guarantee the right of defence of members of the National Security Forces, a permanent special fund will be set up within the Ministry of Defence, with resources provided under the Budget Law, and which will be permitted to receive contributions from international cooperation bodies, donations from natural or legal persons and other contributions provided for by law. This account will be used to fund the cost of providing legal defence for members of the National Security Forces in criminal proceedings involving offences allegedly committed during active service, throughout the investigation stage. During the trial stage, funding will be provided in cases where the punishable offence can be linked to official duties. The legal defence service should have the following characteristics:
- It should be provided whenever the events involved in the case occurred during the conduct of military or police operations. This will be the criterion for determining whether or not legal defence should be provided, having regard to the right to due process enjoyed by all members of the National Security Forces.
- Defence counsel will provide legal advice free of charge to members of the National Security Forces.
- Defence counsel will be lawyers with experience and training in military law, human rights and IHL.
The Ministry of Defence will provide all the support necessary to ensure bill No. 69 of 2006 on Legal Defence, which is currently going through Congress, is successfully passed and brought into effect. 
Colombia, Ministry of National Defence, Comprehensive Human Rights and IHL Policy, January 2008, §§ 42, 54–55, 112 and 115.
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Colombia stated:
218. … [A]dolescents between the ages of 14 and 18 years who committed crimes when they were members of armed groups could be subject to criminal charges. However, there have been no such proceedings to date, in application of the principle of prosecutorial discretion, as explained below.
219. In general, the procedures followed in the cases of adolescents between the ages of 14 and 18 who may have committed punishable acts in Colombia are designed to educate, rehabilitate and protect them, to take into account the difference between adolescents and adults, and to draw upon the specific services offered by the various bodies, competent authorities and programmes.
220. To safeguard their rights, a number of basic procedural principles and guarantees are laid down, including due process, the right to a defence and to contest the charges brought against them, the presumption of innocence, the right to appeal and other rights guaranteed by the Constitution, the law and international treaties.
221. The question of the liability of children and adolescents who may have committed criminal offences during their participation in illegal armed groups is addressed in conformity with article 17559 of the Code on Children and Adolescents. This article deals with the principle of prosecutorial discretion, which allows the prosecution to waive criminal proceedings against adolescents who were in any way involved in illegal armed groups or participated directly or indirectly in hostilities, armed action, or crimes committed by illegal armed groups, provided that [certain conditions are met]. 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, §§ 218–221.
Colombia’s Instructors’ Manual (1999) provides: “Anybody who is accused has the right to … a due … trial without unjustified delay”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right … :
k) to have a public, oral, adversarial and impartial trial … without unjustified delays. 
Colombia, Criminal Procedure Code, 2004, Article 8(k).
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right … :
k) to have a public, oral, adversarial, and impartial trial … in which the accused himself or herself or his or her lawyer may, if he or she wishes, question witnesses of the prosecution during a hearing and obtain orders that witnesses or experts who may shed light on disputed facts appear in court. If necessary, such orders may entail coercive measures. 
Colombia, Criminal Procedure Code, 2004, Article 8(k).
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to confront and cross-examine witnesses … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.1.7
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right … :
f) to be assisted free of charge by a translator who is accredited or accepted by the judge if he or she cannot understand or speak the official language; or to an interpreter if he or she cannot understand the language or make him- or herself understood because of disability. 
Colombia, Criminal Procedure Code, 2004, Article 8(f).
Colombia’s Basic Military Manual (1995) provides that it is prohibited to “compel someone to confess or to incriminate himself”. 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 29.
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right … :
c) that the fact that he or she remains silent not be used against him or her. 
Colombia, Criminal Procedure Code, 2004, Article 8(c).
In 2010, in the Constitutional Case No. C-936/10, Colombia’s Constitutional Court stated:
53. … [T]he Court observes that item 17 of article 324 of the [2004] Criminal Procedure Code, as amended, establishes two requirements for the application of the principle of discretionary prosecution to a demobilized [member of an illegal armed group] who intends to avail himself of the benefit: (i) that he or she clearly demonstrates his or her intent to reintegrate into society; and (ii) that he or she signs a declaration under oath stating that he or she has not committed a crime other than those established in the grounds [for prosecution], namely those crimes resulting from “membership of a criminal organization”, such as the illegal use of uniforms and insignias and the illicit carrying of arms and ammunition.
57. The legislative decision to substitute an adequate investigative strategy … with the sworn declaration that the future beneficiary of the waiver of criminal prosecution has to give presents multiple constitutional and criminal policy problems …
Secondly, the specific investigative strategy implies the self-incrimination of the person under investigation in relation to his or her membership of an armed group outside the law, the illegal use of uniforms and insignia and the illicit carrying of arms and ammunition. Indeed, the rule induces the suspect or accused to admit to his or her participation in the offences there mentioned, under the threat that, otherwise, he or she will remain under judgment for other possible offences. 
Colombia, Constitutional Court, Constitutional Case No. C-936/10, Judgment, 23 November 2010, pp. 86 and 88–89.
Regarding the context in which the amendment was made, the Court stated:
In recent years, the Colombian State has adopted various laws aimed at overcoming the situation of internal armed conflict in the country. Hence, while it is clear that the conflict has not fully ceased, it is also clear that all those measures have been aimed at disarming and reintegrating into society members of illegal armed groups. In other words, they have been aimed at achieving peace, without, however, admitting that the victims’ rights to truth, justice and full reparation can be disregarded. 
Colombia, Constitutional Court, Constitutional Case No. C-936/10, Judgment, 23 November 2010, p. 167.
Colombia’s Instructors’ Manual (1999) provides: “Anybody who is accused has the right to …a due public trial”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right …:
k) to have a public … trial. 
Colombia, Criminal Procedure Code, 2004, Article 8(k).
The Code also states:
The proceedings are public. In addition to the parties, access must be given to the media and the general community. Exceptions must be made in cases in which the judge considers that the public nature of the proceedings poses a danger to the victims, jurors, witnesses, experts, and other interveners if national security is affected, if minors who have to intervene would be exposed to psychological harm or if the success of the investigation is seriously compromised. 
Colombia, Criminal Procedure Code, 2004, Article 18.
Colombia’s Constitution (1991) provides: “Any judicial sentence may be appealed or adjudicated, but for exceptions provided by law.” 
Colombia, Constitution, 1991, Article 31.
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to appeal to a higher authority shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment of 8 March 2005, § 4.2.5.1.7
In 2008, in its initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, Colombia stated:
218. … [A]dolescents between the ages of 14 and 18 years who committed crimes when they were members of armed groups could be subject to criminal charges. However, there have been no such proceedings to date, in application of the principle of prosecutorial discretion, as explained below.
219. In general, the procedures followed in the cases of adolescents between the ages of 14 and 18 who may have committed punishable acts in Colombia are designed to educate, rehabilitate and protect them, to take into account the difference between adolescents and adults, and to draw upon the specific services offered by the various bodies, competent authorities and programmes.
220. To safeguard their rights, a number of basic procedural principles and guarantees are laid down, including due process, the right to a defence and to contest the charges brought against them, the presumption of innocence, the right to appeal and other rights guaranteed by the Constitution, the law and international treaties.
221. The question of the liability of children and adolescents who may have committed criminal offences during their participation in illegal armed groups is addressed in conformity with article 17559 of the Code on Children and Adolescents. This article deals with the principle of prosecutorial discretion, which allows the prosecution to waive criminal proceedings against adolescents who were in any way involved in illegal armed groups or participated directly or indirectly in hostilities, armed action, or crimes committed by illegal armed groups, provided that [certain conditions are met]. 
Colombia, Initial report to the Committee on the Rights of the Child under the Optional Protocol on the Involvement of Children in Armed Conflict, 21 October 2009, UN Doc. CRC/C/OPAC/COL/1, submitted 24 September 2008, §§ 218–221.
Colombia’s Instructors’ Manual (1999) provides: “Anybody who is accused has the right … not to be tried twice for the same act”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Colombia’s Law on the Disciplinary Regime of the Armed Forces (2003) states: “Nobody may be investigated more than once for the same act or omission constituting an administrative offence”. 
Colombia, Law on the Disciplinary Regime of the Armed Forces, 2003, Article 9.
In 2003, in the Constitutional Case No. C-004/03, the Plenary Chamber of Colombia’s Constitutional Court stated:
11. … It would seem reasonable to argue that allowing the revision of a final sentence whenever new evidence or facts arise to the detriment of a person already acquitted or convicted would mean to allow a person to be tried twice for the same act, in contravention of the non bis in idem principle.
13. It is … possible to limit the right to non bis in idem in order to protect other constitutional rights and values that are of greater relevance. The rights of the victims of criminal acts and the corresponding State duty to investigate and punish crime and thus achieve justice and maintain a just social order (Preamble and Articles 2 and 229 of the Constitution) are obviously constitutional values that can clearly clash with the non bis in idem principle and that may authorize or even require that this constitutional guarantee be limited. In cases where a person is acquitted of a crime, but new facts or evidence arise and suggest the person might be guilty, a clear legal tension arises between, on one hand, the guarantee that the person should not be tried again and on the other the rights of victims and the State duty to investigate crime and punish those responsible and thus maintain a just social order. Thus, the normative value of the non bis in idem principle indicates the acquitted person should not be tried again, in spite of the new facts and evidence. However, the State duty to investigate crimes and protect the rights of victims as a means to obtain a fair social order would seem to imply that the person must be tried again, in particular if the crimes in question constitute violations of human rights. The question that arises is, then, whether the rights of the victims of punishable acts are sufficiently important to not only allow but demand that the principle of non bis in idem be limited when regulating the possibility of judicial review.
24. … The rights of victims acquire an importance that is directly proportional to the seriousness of the criminal act. The greater the social harm caused by a crime, the greater consideration must be given to the rights of the victims of such crime. Moreover, the State duty to investigate punishable acts is also directly proportional to the way in which the crime may have affected fundamental legally protected values. As the seriousness of a punishable act increases, the level of State commitment to investigate it and punish those responsible must also increase as a means to maintain a just social order (Constitution, preamble and article 2). Violations of human rights and grave breaches of international humanitarian law constitute the types of behaviour that most intensely disregard people’s dignity and cause pain for the victims and those directly affected. For these reasons, the rights of victims and those affected by such abuses deserve the highest level of protection and the State duty to investigate and punish these conducts acquires greater relevance.
27. In accordance with what was previously stated and to achieve and maintain a just social order (Preamble and Article 2 of the Constitution), the State duty to investigate and punish violations of human rights and grave breaches of international humanitarian law carries more weight than the duty to investigate and punish a crime in general, without minimising the latter. In the same sense, the rights of victims and those affected by violations of human rights or grave breaches of international humanitarian law have a greater significance than the rights of victims of crime in general, though this is not to say that the latter are unimportant. For this reason the distinction between, on one hand, crimes in general and, on the other, violations of human rights and international humanitarian law becomes more important when examining the proportionality of the provisions under review. This means that favouring impunity for such violations is much more serious and unacceptable, not only due to the intensity with which human dignity is negatively affected by such conduct, but also because of the fact that the international community, based on the principle of complementarity, is committed to punish such conduct.
30. The Court thus concludes that the rights of victims are indeed affected in a particularly intense way (Article 229 of the Constitution), creating a serious obstacle to the maintenance of a just social order (Article 2 of the Constitution), if impunity for violations of human rights or serious violations of international humanitarian law prevails. Such impunity is even more serious if it is the result of the State of Colombia not complying with its duty to investigate in a serious and impartial manner such violations of human rights or international humanitarian law with a view to punishing those responsible.
The legal strength of the constitutional rights of the victims and the obligation imposed by the Constitution on authorities to achieve and maintain a just social order (Article 2 of the Constitution) mean that in cases of violations of human rights or grave breaches of international humanitarian law, should new facts or evidence arise that allow the identification of those responsible for such heinous acts, then investigations may be reopened, even against the existence of final decisions of acquittal with the authority of res judicata. The reason for this is that an absolute prohibition against reopening such investigations impedes the achievement of a just social order and entails an extreme sacrifice of the rights of victims. Consequently, in all cases involving impunity for violations of human rights or international humanitarian law, the construction of a just social order and the rights of victims replace the protection of the principle of legal certainty and the principle of non bis in idem. Thus a final decision of acquittal with the strength of res judicata must not impede the reopening of an investigation into such conduct, should new facts or evidence arise that were unknown at the time of trial. Legal certainty in a democratic society founded on human dignity cannot be built on the basis of silencing the pain and cries for justice of the victims of the most heinous conduct such as violations of human rights and grave breaches of international humanitarian law.
32. As previously explained, impunity for violations of human rights and international humanitarian law is more serious when the State has blatantly breached its duty to investigate and punish such crimes. In such cases, prioritising the rights of victims and a just social order over legal certainty and the principle of non bis in idem is even more necessary for the following reasons: On one hand, for victims and those affected by violations of human rights the situation is unbearable in two respects. Not only has their human dignity been violated by the commission of heinous acts, but they must also endure the State’s indifference towards their situation, thus breaching its obligation to clarify the facts, punish those responsible and compensate those affected.
On the other hand, a possible judicial review of those cases where the State blatantly breached its duty to seriously investigate these violations of human rights does not have a strong impact on the principle of legal certainty. This is because the authorities did not carry out a serious and impartial investigation of the punishable acts. Since the State did not fulfil its obligation to investigate, the person acquitted was never seriously investigated nor tried, and therefore a reopening of the investigation does not seriously affect the principle of non bis in idem. This can occur, for example, if the investigation is carried out so negligently that it clearly does not intend to clarify the facts but to acquit the accused. This would also be the case whenever the judicial officers lack the independence and impartiality that would be required to actually speak of due process.
It is thus clear that in cases of impunity for violations of human rights or grave breaches of international humanitarian law resulting from the State’s blatant inability to fulfil its duty to punish such conduct, in reality there is no res judicata. In such cases, the rights of victims overrule the non bis in idem guarantee. Thus, the existence of a decision to acquit formally considered res judicata must not impede the reopening of an investigation, even when no new facts or evidence arise, because the res judicata is a mere illusion.
35. … In such a context, this Court considers that in cases where the State has been blatantly negligent in bringing justice to the victims of violations of human rights and international humanitarian law, for a judicial revision of the case to proceed without any new fact or piece of evidence unknown during the previous judicial process, a declaration from a competent body confirming that the State blatantly breached its obligation to seriously investigate such a violation shall be necessary. In order to provide the necessary protection to the acquitted person, such confirmation must be granted by an impartial and independent body. Within the domestic legal order, such a declaration can only be provided by a judicial authority. 
Colombia, Constitutional Court, Constitutional Case No. C-004/03, Judgment of 20 January 2003, §§ 11, 13, 24, 27, 30, 32 and 35.
In 2004, in the Constitutional Case No. T-114/04, the Fourth Appeals Chamber of Colombia’s Constitutional Court stated:
Developing a new constitutional approach to the rights of the victim or of the affected person during a criminal process, the Constitutional Court, in Case C-004-03, M. P. Eduardo Montealegre Lynnet, declared constitutional Article 220, subsection 3, of Law 600 of 2000 (the Code of Criminal Procedure). This provision limits the applicability of grounds for constitutional review of convictions. [The Court understood that] a judicial review based on such grounds would also be allowed in cases of closed investigations, terminated proceedings or acquittals if the case involved violations of human rights or grave breaches of international humanitarian law. For such a judicial review, the case had to be the subject of a domestic judicial decision or a decision by an international body that is mandated to supervise and control respect for human rights and officially accepted by our country. This decision must certify the existence of a new fact or piece of evidence not known at the time of the trial. The judicial review of the closure of the investigation, the termination of the proceedings and the acquittal must also be allowed. In cases involving violations of human rights or grave breaches of international humanitarian law, judicial review must be allowed even if there is no new fact or piece of evidence unknown at the time of the trial if a domestic judicial decision or a decision by an international body mandated to supervise and control respect for human rights officially accepted by our country certifies the blatant non-compliance of the State of Colombia with its obligation to seriously and impartially investigate the aforementioned violations. 
Colombia, Constitutional Court, Constitutional Case No. T-114/04, Judgment of 12 February 2004, § 2.
In 2005, in the Constitutional Case No. C-979/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
[T]he legal force of the principle of non bis in idem, which stipulates that it is impossible to alter or otherwise modify a judgment of acquittal that is in favour of the accused, must cede to the duty of the State to investigate the crimes and punish those responsible in order to maintain a just social order, particularly when referring to crimes constituting violations of human rights and grave breaches of international humanitarian law. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 10.
The Court further held:
[T]he review of a case shall proceed if the following conditions are fulfilled:
(i) The petition for review is filed against a final judgment of acquittal regarding violations of human rights or grave breaches of international humanitarian law;
(ii) A decision by an overriding international body whose function is to supervise and control human rights and whose jurisdiction has been accepted by the State of Colombia establishes a blatant failure by the State to comply with its obligation to investigate such violations in a serious and impartial way. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 11; see also § 17.
The Court explained the reasons for the above findings as follows:
Conduct for which review of a case proceeds – violations of human rights and grave breaches of international humanitarian law – constitutes the most serious behaviour entailing greater potential for violating the victims’ fundamental rights and a greater capacity to inflict pain on victims and negatively affected persons. It also has a huge destabilizing effect on a community. These characteristics underscore the need to fulfil the duty of public authorities to investigate and demand an enhanced protection of the rights of victims. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 13.
The Court further justified the limitation of the non bis in idem principle as follows:
[I]mpunity for violations of human rights and international humanitarian law is much more serious and unacceptable than the grievances resulting from other forms of criminality not only due to the intensity by which human dignity is negatively affected, but also because the international community, as a result of the principle of complementarity, is committed to punish such conduct. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, § 16.
The Court also held:
20. Whenever we are dealing with serious violations of human rights and grave breaches of international humanitarian law … , a wide and protective view of the rights of victims becomes especially relevant, not only because the Court’s case law is based on international developments regarding these issues, but also because in these cases it is the victims themselves and their personal characteristics who embody the legal value that is protected through the penalization of this conduct whose unlawfulness transcends national borders.
Thus, it is clear that the rights of victims to reparations, to know what happened and to see justice done in their case is the corollary to the obligation of the State to seriously investigate punishable conduct, an obligation proportional to the magnitude of the individual and social harm caused by such punishable conduct.
Consequently, when it comes to violations of human rights and grave breaches of international humanitarian law, the obligation to seriously investigate and punish those responsible and to restore, to the extent possible, the victims’ rights, becomes particularly important so that a State’s omission produces a situation of impunity that endangers not only the domestic legal order, but also affects its international equivalent, given the importance of the legal values at stake.
22. Taking into account its legislative powers in this area and in view of the State’s duty to protect the rights of victims of violations of human rights and grave breaches of international humanitarian law, Congress has allowed for the reopening, by means of a review, of cases dealing with such crimes which ended in acquittals. However, in order to make this compatible with the principle of res judicata and non bis in idem, which, as a general rule, protect the person acquitted, Congress required special precautions such as making the possibility of review conditional on a decision by an international body.
There is, thus, no reason to oppose extending the possibility of reopening, by means of a review, to cases that concluded with convictions if an international body determined they were the result of the State’s blatant non-compliance with its duty to seriously and impartially investigate, making these convictions only an appearance of justice, thereby tolerating or promoting impunity for actions despised both at the constitutional and international level.
These precautions, which aim to preserve the principle of non bis in idem for common crimes, are found in explicit terms in the rule containing the provision currently under constitutional review because the reopening of a case can occur only by means of an extraordinary procedure, applies only to crimes with the highest capacity for harm such as crimes against human rights and international humanitarian law, and is subject to a pronouncement by an international body regarding the State’s non-compliance with its obligation to investigate and punish those crimes. The logic behind the possibility of review, once the provision under scrutiny is excluded, leaves the principle of non bis in idem intact for common crimes …
23. On the other hand, it cannot be forgotten that extending the possibility of reviewing a case to convictions responds to the need to take into account the right of the accused to a due process of law and promotes a just social order, as it would not be legitimate to uphold the res judicata in cases where an international body, exercising a mandate recognised by the State of Colombia, declared that the investigation that led to the conviction was not serious or impartial. 
Colombia, Constitutional Court, Constitutional Case No. C-979/05, Judgment of 26 September 2005, §§ 20 and 22–23.
[emphasis in original]
In 2010, in the Plazas Vega case, Colombia’s Third Criminal Court of the Specialized Circuit of Bogotá stated:
[T]his Office departs from the understanding … according to which, … in the present case, “there should be an ideal concurrence of offences [regarding the crimes of enforced disappearance and kidnapping] because a same act violated the legally protected right in different ways” …
… [T]he Court finds that this approach violates the general principle of criminal law called material non bis in idem. Although, legally, only one action was committed which apparently violated several criminal rules, a more thorough analysis shows that only one complex crime of aggravated enforced disappearance was committed. This is because it (i) includes the punishable act of aggravated kidnapping … [and] protects, along with other protected legal rights, that of individual liberty. Case law and doctrine have consistently found that this issue is to be resolved based on the principle of absorption, according to which “ … the complex or absorbing crime … is the crime whose definition contains all the constitutive elements of a lesser crime. … ”. Consequently, [the crime of enforced disappearance] (ii) … is a special crime, which should be applied differently from the general crime of kidnapping, as supported by the rule of speciality …
To conclude, it is evident that in order to avoid a double penalty for the same criminal act, in accordance with the principle of speciality and the principle of absorption, the accused must be tried exclusively for the crime of aggravated enforced disappearance, which includes both the violation of the duty to provide information regarding the whereabouts of the victim or the victim’s body and the unlawful deprivation of liberty. Therefore, the offence of aggravated kidnapping is included in this more comprehensively described special crime. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 89–91.
[footnotes in original omitted; emphasis in original]
The Court further stated:
The present investigation originated on 6 and 7 November 1985, when the … self-styled “Iván Marino Ospina” branch of the guerrilla movement calling itself “M-19 – 19 April Movement” violently occupied the Palace of Justice in the centre of Bogotá, in an “operation” paradoxically named “Antonio Nariño for human rights” with the aim of subjecting the then President of the Republic … to a political trial in light of the government’s alleged non-compliance with the peace agreements signed with the rebel group.
Moments after the start of the seizure [of the building], the Chief of Staff of the Thirteenth Brigade … activated the National Defence Plan “Tricolor 83” and the Brigade Operations Centre.
A tactical and intelligence operation was then carried out, directed and coordinated by the National Army and aimed at retaking the Palace of Justice and freeing the hostages …
… [T]he freed hostages were identified, questioned, listed and classified as follows: personnel not involved in the subversive operation; participants in the assault; and possible M-19 collaborators from inside the Palace of Justice …
In this way, members of the armed forces rescued from the Palace of Justice more than 200 people who, … in accordance with the recovery and rescue plan, were almost all moved to the Casa Museo del Florero and, after being identified, were released. However, 11 of the rescued persons have never been traced.
[I]t must be said that … at the time the events took place, the “secret” “special intelligence operations plan No. 002/80” was in full force. This plan was designed to “simultaneously identify, locate, capture and question M-19 members operating in the area under the jurisdiction of the BIM [Brigade XIII, of which the accused was a Colonel]” and assigned military targets belonging to this illegal armed group to the Cavalry School.
In view of the reprehensible actions of the members of the M-19 subversive group, who placed in danger the lives of the civilians who were inside the Palace, the Court cannot ignore the fact that the intervention of the public forces was imperative to re-establish the constitutional order that had been shattered. Likewise, it was legitimate for the military to work towards identifying and sorting the people who were evacuated from the conflict zone, and it was appropriate to use the Casa del Museo del 20 Julio as a command post for this work, in accordance with the operational manuals in force at the time. What, however, is inconceivable in a Social and Democratic State governed by the rule of law is that the authorities responsible for the security of their fellow citizens, for the maintenance of peaceful coexistence and fairness, act surreptitiously with total disregard for domestic and international norms related to the protection of human rights. 
Colombia, Third Criminal Court of the Specialized Circuit of Bogotá, Plazas Vega case, Judgment, 9 June 2010, pp. 1, 3, 5, 128 and 285–286.
[footnotes in original omitted]