Practice Relating to Rule 100. Fair Trial Guarantees
Section N. Non bis in idem
Colombia’s Instructors’ Manual (1999) provides: “Anybody who is accused has the right … not to be tried twice for the same act”.
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”.
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.
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.
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.
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.
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.
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.
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.
[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.
[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.
[footnotes in original omitted]