Case Summary and Outcome

The Inter-American Court of Human Rights (IACtHR) declared Colombia internationally responsible for human rights violations, including the right to freedom of expression and the right to privacy, committed against members of the Corporación Colectivo de Abogados “José Alvear Restrepo” (hereinafter “CAJAR”), a non-governmental organization dedicated to the defense of human rights in Colombia. Over several decades, CAJAR members faced arbitrary intelligence operations, harassment, defamation, and threats, including some acts involving direct state participation. These actions formed part of a broader pattern of persecution against human rights defenders in Colombia, which severely disrupted CAJAR’s work.  The Inter-American Commission on Human Rights and the representatives of the alleged victims claimed that various entities of the Colombian State were responsible for arbitrary intelligence activities, as well as for acts of harassment, intimidation, stigmatizing disqualifications, threats, and attacks directed against CAJAR members and some of their family members. The IACtHR held that Colombia carried out arbitrary intelligence activities against different members of CAJAR since the 1990s, at least until 2005. The Court established that the victims had been subjected to violence, intimidation, harassment, and threats—some of which involved the direct participation of State agents. It also noted that CAJAR members were subjected to disparaging and stigmatizing statements by high-ranking public officials and government offices, linking them to illegal guerrilla groups.

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Facts

The Corporación Colectivo de Abogados “José Alvear Restrepo” (CAJAR) was founded in 1978 and acquired legal status as a non-profit organization in 1980 in Colombia. Since its creation, its mission has been the defense and promotion of human, environmental, and peoples’ rights.

During the 1990s, CAJAR members were subjected to various surveillance practices by State agencies. The Armed Forces, the National Police, and the Administrative Department of Security (hereinafter “DAS”) carried out arbitrary intelligence activities that included monitoring, interception of communications, and the collection of information on CAJAR members and their families. State agencies used the information gathered to prepare files about CAJAR members with data on their personal, family, and professional lives. These actions were framed in a context marked by a serious pattern of abuses, persecution, threats, and homicides against human rights defenders in Colombia.

As a result of a press publication, in 2009 the Attorney General’s Office initiated an investigation that revealed the existence, between March 2003 and October 2005, of the so-called “Intelligence Group 3” or “G3,” a unit that operated within the DAS with the objective of obtaining private information on persons considered to be opponents of the government. Among the so-called “targets” of the G3 were several members of CAJAR—among them its directors—who were subjected to monitoring, surveillance, interceptions of communications and photographic records, within the framework of the so-called “Operation Transmilenio.” Based on this information, the “analysts” of the G3 prepared “resumes” of each member, in order to facilitate decision making to “counteract” them. The investigation also revealed the infiltration of people in the security schemes of CAJAR members, as part of the practices used by the G3. During this period, the DAS kept detailed records of the movements and activities of several CAJAR members, as well as their individual and family routines.

Even after this case was brought before the Inter-American Court of Human Rights (the Court or IACtHR), members of CAJAR and their families were again subjected to surveillance practices and suffered acts of intimidation, harassment, and threats. Between January and May 2020, while Law 1621 of 2013—which established the regulatory framework for intelligence and counterintelligence activities in Colombia—was in force, the media reported on new illegal interceptions carried out by certain units of the National Army. The reports also indicated that computer files containing the personal information of at least two CAJAR lawyers had allegedly been created and were being held by military intelligence units under the Army’s authority.

In addition, several CAJAR members and their families were subjected to violence, intimidation, threats, and harassment. Between 2001 and 2003, the web page of the National Narcotics Directorate, attached to the Ministry of the Interior and Justice, published a text referring to CAJAR and its members as “traditional defenders of the FARC,” a left-leaning guerrilla group from Colombia. Various high-ranking government officials issued defamatory statements calling CAJAR and its members “terrorists” or linking them to guerrilla groups such as the FARC or the ELN. Even the then-president of Colombia, in a speech on September 8, 2003, alluded to CAJAR members as “writers and politicians who in the end serve terrorism and who cowardly hide behind the banner of human rights.” [para. 368]

Moreover, threats were issued against CAJAR members through e-mails and communiqués from armed groups—including “paramilitary” groups, supported in some cases by State agents—declaring them a “military objective” and announcing actions against them. In 2010, demonstrations were organized in front of CAJAR’s headquarters in Bogotá, where banners were displayed calling its members “terrorists” and “traitors to the homeland.” Apocryphal documents falsely linking CAJAR members to the FARC were also circulated. In this context, many CAJAR members and their families left the country in light of the risk the situation posed.

On April 19, 2001, CAJAR and the Center for Justice and International Law (CEJIL) filed an initial petition with the Inter-American Commission on Human Rights (the Commission or IACHR) against Colombia, arguing that, since the 1990s, several members of CAJAR had been victims of continuous threats, surveillance, harassment, attacks, defamation and public accusations. The petitioners argued that such actions were part of a systematic plan of intimidation, orchestrated by agents of the security forces, members of State security agencies, and private individuals acting with the support, acquiescence, tolerance, and protection of public officials. They also held that the Colombian State failed to fulfill its duty to prevent the persistent threats and acts of harassment against the members of CAJAR, in reprisal for their work in defense of human rights, and did not carry out a diligent and impartial investigation of the events.

On May 4, 2019, the Commission approved Merits Report No. 57/19, in which it held that Colombia was responsible for the violation of the rights to life, personal integrity, judicial guarantees, honor and dignity, freedom of expression, freedom of association, children’s rights, movement and residence, and judicial protection, established in Articles 4.1, 5.1, 8.1, 11, 13.1, 16.1, 19, 22.1 and 25.1 of the American Convention on Human Rights (ACHR).

On July 8, 2020, the Commission submitted the case to the Inter-American Court of Human Rights, since Colombia did not make substantive progress in complying with the recommendations issued in the aforementioned merits report. According to the Commission, the Colombian State was responsible for the acts of violence, intimidation, harassment, and threats against members of CAJAR, which had occurred since the 1990s. It added that the State actively contributed to their materialization by carrying out arbitrary intelligence activities, providing information to paramilitary groups, and circulating stigmatizing statements pronounced by high-ranking officials who falsely linked CAJAR to guerrilla groups. These actions, according to the IACHR, affected CAJAR’s regular activities, had a chilling effect on its members’ freedom of expression, and led to their exile.

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Decision Overview

Due to the complexity and gravity of the facts, the Inter-American Court of Human Rights examined multiple violations of the American Convention on Human Rights, including the rights to privacy, freedom of expression, freedom of association, and the right to defend human rights. This case analysis will focus on issues concerning freedom of expression and privacy. The main question the IACtHR addressed in this regard was whether the intelligence operations, surveillance, threats, stigmatization, and attacks carried out by Colombian State agents against members of CAJAR—many of which lacked any legal basis—constituted a violation of their right to freely express themselves, engage in human rights advocacy, and participate in public debate without fear of retaliation. The Court also evaluated whether these actions generated a chilling effect that restricted not only the victims’ speech but also the broader functioning of a democratic society.

The petitioners argued that various Colombian State entities, including intelligence and security agencies, orchestrated a systematic and prolonged campaign of surveillance, harassment, intimidation, stigmatization, and violence against members of CAJAR as retaliation for their work defending human rights. They maintained that these actions lacked any legal basis, were politically motivated, and sought to silence and delegitimize CAJAR’s public voice. According to the petitioners, the illegal intelligence activities and defamatory public statements violated their rights to privacy, freedom of expression, freedom of association, and the right to defend human rights, and created a chilling effect on CAJAR’s ability to carry out its mission.

Colombia argued that it had already investigated and sanctioned the unlawful intelligence activities, and therefore, under the principle of subsidiarity, the Court should not intervene. It claimed that the victims never formally requested access to the intelligence files from the competent authorities and that some information had already been disclosed.

The Court addressed first the alleged violations of the right to privacy. On this point, it explained that the intelligence activities carried out by State agencies, in light of the means employed and their impact on the collection and use of information, interfered with the sphere of the private life of individuals. According to the Court, for such activities to be compatible with the ACHR, it is necessary that: (i) they must be lawful, which means that “the legal framework must clearly define the nature of intelligence activities, the objectives they pursue, and the powers of the competent bodies and authorities;” [para. 528] (ii) they must pursue legitimate aims, meaning that “intelligence activities must be strictly directed toward achieving a lawful and legitimate objective;” [para. 531] and (iii) intelligence activities must comply with the principles of necessity and proportionality.

Considering this, the Court held that the intelligence activities carried out by the Armed Forces, the National Police, and the DAS, from the 1990s until 2005, were deployed without a regulatory basis or judicial authorization, and were not subjected to control mechanisms. As a result, the Court opined, State authorities collected, kept, and recorded different information related to CAJAR members—including personal data—without any legitimate purpose to justify such actions. On the contrary, these actions were aimed at undermining and neutralizing the work of that organization. The IACtHR held that such actions exceeded any type of legitimate restriction on the right to privacy, which made them incompatible with Article 11(2) of the ACHR.

Subsequently, the IACtHR analyzed the alleged violations of the right to freedom of expression

The Court examined whether the intelligence activities carried out by various Colombian State agencies—in particular, by the DAS between 2003 and 2005—violated the right to freedom of expression of CAJAR members. The IACtHR argued that any measure of surveillance of communications can have a negative impact on the right to freedom of expression, especially when such surveillance occurs without adequate safeguards. It also noted that the right to privacy is an essential pillar for free personal expression, so that any undue interference with privacy has a potentially inhibiting effect on the free exchange and development of ideas. Thus, the IACtHR emphasized that, due to the extreme risk of arbitrariness that comes along with the use of surveillance techniques—selective or on a large scale, especially in advanced technological contexts—, the interception, surveillance or monitoring of all types of communications must be authorized by a judicial authority, including their scope, mode and duration.

Upon analyzing the specific case, the Court determined that the intelligence operations carried out by the G3 against members of CAJAR, between March 2003 and October 2005, did not represent legitimate purposes, but rather “particular interests based on purely political motivations,” whose objective was to “undermine the credibility of CAJAR […] and neutralize its actions” given its critical position of the government. [para. 520] In the opinion of the IACtHR, the aforementioned purposes sought “the denial of one of the foundations of the Rule of Law,” since the voices of political opposition are essential in a democratic State. [para. 621] In line with its jurisprudence in Cepeda Vargas v. Colombia and Members and Militants of Unión Patriótica v. Colombia, the Court held that public authorities should not carry out acts aimed at neutralizing, persecuting or attacking dissident groups; on the contrary, they must adopt the necessary measures to guarantee their effective participation in a democratic society.

In addition, the IACtHR warned that the illegitimate and invasive surveillance and interception of communications, in addition to being an arbitrary interference to privacy, can generate, by its effects, a direct or indirect restriction on freedom of thought and expression, due to the “intimidating and disincentivizing effect that the suspicion or knowledge that communications are not confidential” produces in interlocutors. [para. 626]

Based on the above arguments, the Court determined that the intelligence activities deployed against CAJAR members generated a chilling effect after the G3’s actions became known. This effect was reflected in “the self-censorship attitude assumed by the alleged victims or their ‘greater caution’ in the use of the media,” in order to avoid “being located,” and as a mechanism to prevent further reprisals. [para. 627] According to the IACtHR, the intimidating effect was aggravated by the context of permanent harassment against CAJAR and its members, framed in “a dynamic [at the time of the events] of intimidation and weakening of human rights organizations and defenders” in Colombia. [para. 627]

Consequently, the IACtHR concluded that the intelligence activities carried out by the DAS, due to their “intimidating and inhibiting effect,” violated the right to freedom of thought and expression, recognized in Article 13(1) of the ACHR. Furthermore, the Court considered that this intimidating effect had collectively reached all persons who had been subjected to the aforementioned intelligence activities,  due to the well-founded fear that their communications had been unlawfully intercepted.

Next, the Court analyzed whether the acts of violence, threats, intimidation, and harassment, that involved the intervention of State agents, violated the rights to freedom of thought and expression and freedom of association of CAJAR members. The IACtHR held that there was a pattern of attacks and delegitimization in Colombia against human rights defenders between 2003 and 2009. It also recalled that arbitrary intelligence actions were carried out against members of CAJAR, as a result of their work in the protection of human rights and their critical stance against the government. Similarly, the Court held that the Colombian State violated the rights to life and personal integrity of the applicant due to the threats, intimidation, and harassment committed against members of CAJAR, and generated a context of impunity by not investigating these facts.

Considering this, the IACtHR concluded that these actions interfered with the normal functioning of CAJAR’s activities since they were specifically intended to counteract, neutralize, and undermine the organization’s work. Additionally, through acts of stigmatization, as well as threats and intimidation, the State’s actions sought to restrict the individual right to freedom of association of CAJAR’s members, the IACtHR argued. In this sense, the Court found that there had been a violation of the right to freedom of association, considering its scope seeks to protect the right to form and participate in an organization, without pressure or interference of any nature.

Likewise, the IACtHR argued that the State’s actions violated the right to freedom of expression. To it, the acts perpetrated against the members of CAJAR “were aimed at intimidating them in their work as human rights defenders, in the sense of limiting their intervention in the public debate and restricting their work of denouncing in the framework of the defense and protection of human rights.” [para. 965] This intimidating effect provoked the “self-censorship” of those who had been members of CAJAR at that time.

Therefore, the Court concluded that Colombia was responsible for the violation of the rights to freedom of expression and freedom of association, as enshrined in articles 13 and 16 of the ACHR, respectively.

The IACtHR analyzed, for the first time, the right to informational self-determination, as protected by articles 11 and 13 of the ACHR. It recognized that this is an autonomous human right, included in various legal systems in the region, that “serves, in turn, to guarantee other rights, such as those concerning privacy, the protection of honor, safeguarding reputation, and, in general, the dignity of the individual.” [para. 588]

For the Court, the right to informational self-determination includes the possibility of accessing, rectifying, and controlling personal data held by any public body or in databases held by private parties. It also requires States to establish effective mechanisms to process access to information requests—and in the event of refusal, prompt recourse to the courts. Moreover, the IACtHR held that, although this right admits exceptional restrictions, these must be provided by law, pursue a legitimate aim, and comply with the principles of appropriateness, necessity, and proportionality.

Referring to the specific case, the IACtHR concluded that the members of CAJAR never had an effective opportunity to demand the updating, rectification, or modification of the information about them contained in the intelligence files of various state agencies, nor the purging and declassification of those files. Thus, the Court considered that Colombia violated the right to informational self-determination.

Regarding the right to know the truth, the IACtHR noted that the victims did not have access to all the documents and information contained in the State’s intelligence archives, which prevented them from fully knowing the scope of the unlawful interference in their private lives and limited their right to informational self-determination. In addition, the Court reiterated its previous jurisprudence in the case of Members and Militants of Unión Patriótica v. Colombia, emphasizing that the right to the truth belongs not only to the victims, but also to society as a whole, which “has the right to know and also the duty to remember.” [para. 657] Therefore, the IACtHR held that the arbitrary intelligence activities and the lack of access to documents and information violated the right to know the truth, as contemplated in Article 13 of the ACHR.

Furthermore, the Court examined whether the public authorities’ statements against CAJAR and its members violated the victims’ right to honor. To this end, the Court took into account various public statements made between 2001 and 2003: i) the speech from September 8, 2003, by the then-president of the Republic; ii) a communication dated September 29, 2003, signed by “commanders of paramilitary groups” expressing their support for the president’s words and directly and openly discrediting the work of CAJAR; and iii) a publication from 2001 on the web page of the National Narcotics Directorate.

These pronouncements, according to the Court’s analysis, evidenced “an attempt to silence or weaken the actions of those who were dedicated to the defense of human rights, given their critical position towards the Government.” [para. 716] In particular, the IACtHR indicated that the members of CAJAR had been victims of acts of stigmatization, defined as “conducts tending to disqualify and generate a negative social reaction against certain persons or social groups.”[para. 714] Consequently, the Court concluded that the Colombian State violated the right to honor, as laid out in Article 11 of the ACHR.

Likewise, the IACtHR, through an evolutionary interpretation of the ACHR, recognized for the first time the right to defend human rights as an autonomous right. For the Court, this right includes the “effective possibility of exercising freely, without limitations and without risk of any kind, different activities and tasks aimed at promoting, monitoring, promoting, disseminating, teaching, defending, claiming or protecting universally recognized human rights and fundamental freedoms.” [para. 978] The Court recalled that in the case of Bedoya Lima et al. v. Colombia, it expressly referred to the “right to defend human rights,” and that in the cases of Nogueira de Carvalho et al. v. Brazil and Baraona Bray v. Chile, it considered that the duty to respect and guarantee this right translates into “a special duty of protection” concerning human rights defenders.

The IACtHR held that the right to defend human rights is not protected by a single specific clause of the ACHR. Therefore, the identification of the provisions applicable must be made on a case-by-case basis, according to the specific circumstances. In the specific case under examination, in light of the events described, the IACtHR concluded that Colombia violated the right to defend human rights because it violated articles 4.1 (Right to Life), 5.1 (Right to Humane Treatment), 8.1 (Right to a Fair Trial), 13.1 (Freedom of Thought and Expression), 16.1 (Freedom of Association) and 25.1 (Right to Judicial Protection) of the ACHR.

Considering the aforementioned violations to the ACHR, the IACtHR ordered Colombia to initiate investigations to clarify the events in order to punish those responsible and identify the victims, and to carry out a public act of recognition of international responsibility. It also ordered the State to produce an audiovisual documentary on the human rights violations suffered by the members of CAJAR, and to show it in training courses for public officials who carry out intelligence activities.

The State was also instructed to establish a national day to commemorate the victims of CAJAR; to carry out a national awareness campaign on violence, persecution and stigmatization against human rights defenders; to train officials who carry out intelligence work; and to create an economic fund to finance programs to protect and assist human rights defenders at risk. Moreover, the IACtHR ordered Colombia to purge the intelligence files of the former DAS, the National Police, the Artillery School of the National Army, and the Army’s Military Intelligence Center so that persons who request information may have access to the data and information contained in such files.

Finally, the IACtHR decided to award monetary compensation to the applicants, considering the human rights violations they suffered and the physical, moral, and psychological damages they endured.  It also ordered Colombia to provide psychological, psychiatric, or psychosocial treatment if the victims required it.

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