Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
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
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’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.
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 counsel … shall be guaranteed at all stages of the proceedings”.
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  Rome Statute of the International Criminal Court that contain different treatment to that provided for in the  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”.
18.104.22.168. … 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 …
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.
22.214.171.124. … 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.
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.
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.
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.
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.
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].