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’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’s Instructors’ Manual (1999) provides: “Whoever is deprived of his liberty has the right to a legal trial.”
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’s Soldiers’ Manual (1999) provides: “Whoever is deprived of liberty has the right to a legal trial.”
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’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’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.
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.”].
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.
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”.
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.
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].