Case Summary and Outcome

On September 22, 2020, the Supreme Court of Justice of Colombia revoked the decision by the Civil Chamber of the Superior Court of the Judicial District of Bogotá, and ordered the various government agencies involved in the management of public demonstrations to adopt a series of actions to guarantee the exercise of the right to peaceful protest in the country. The Civil Cassation Chamber of the Supreme Court of Justice granted the tutela –a constitutional claim for the protection of human rights– filed by a number of individuals and organizations from different sectors, who stated that their fundamental rights have been infringed –in particular, their right to peaceful protest, to life, to personal integrity, to civic participation, to due process of law, to “not being forcibly disappeared”, to freedom of expression, to freedom of assembly, and to freedom of movement.

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

Facts

At the end of 2019, in the midst of the marches and mobilizations on the occasion of the national strike of November 21, a group of 48 people, including civil society organizations, human rights defenders, students, journalists, professors, relatives of victims and victims of police violence, filed a “tutela” action requesting the protection of their right to protest, freedom of expression and of the press.

According to the applicants, various government agencies had (i) intervened in a systemic, violent, and arbitrary way in peaceful protests and demonstrations; (ii) stigmatized those who decided, without violence, to protest, and criticize and question the government; (iii) disproportionally used their force, lethal guns, and chemicals; (iv) illegally and abusively detained protesters, involving inhumane, cruel, and degrading treatments; and (v) infringed the rights to freedom of expression and to freedom of the press.

On April 23, 2020, the Civil Chamber of the Superior Court of the Judicial District of Bogotá considered that many of the alleged infringements since 2005 were not effectively supported with evidence and the applicants had other effective defense mechanisms that were suitable to expose the infringements of fundamental rights. Moreover, this Chamber specified that the applicants were not the direct victims of the violence by the government agencies.

The applicants appealed the decision stating that the Civil Chamber had not analyzed the substantive aspects of the case. According to the application, the government agencies implemented violence in a systematic way with the aim of intimidating the protesters and dissuading them from exercising their right to express their ideas, on the streets and in academic spaces. The plaintiffs demanded the court to require the Presidency of Colombia to organize a working roundtable to restructure the guidelines on the use of force during peaceful demonstrations; to require the authorities involved in these violent behaviors to refrain from doing them in the future; to require the Ministry of the Public and the Office of the Ombudsman to attend demonstrations to protect protesters and provide them with relevant legal advice; to require the Attorney General’s Office and the National Police to allow human rights defenders and related organizations to verify the conditions in which protesters are arrested and transferred; and, regarding the Escuadrones Móviles Antidisturbios de la Policía Nacional (ESMAD) –an agency within the National Police in charge of preventing disturbances in public and private spaces–, to suspend their activities until structural and substantive changes are made.

The defendants, mainly on the basis of procedural arguments, rejected the claims. In particular, the Ministry of Defense argued that the National Police and ESMAD are allowed to use incapacitating non-lethal guns, emphasized the importance of maintaining the public order, and stated that the authorities are allowed to “exercise force and lawful mechanisms to help to prevent violent situations.”

The Media Legal Defence Initiative and the Robert F. Kennedy Human Rights organization submitted amici curiae to support the applicants’ claims. The briefs stated that there has been a systematic breach of the international instruments regarding the right to freedom of assembly, the right to association, the right to peaceful protest, and the right to freedom of expression and to the press. Human Rights Watch stated that it had documented various attacks by government authorities during protests in 2019 in different parts of Colombia.

Decision Overview

On September 22, 2020, Judge Luis Armando Tolosa Villabona delivered the opinion of the Civil Cassation Chamber of the Supreme Court of Justice. The main issue before the Court was whether the governmental entities threaten the fundamental right to peacefully protest, given their alleged practices of use of force, stigmatization, detentions, and attacks against freedom of expression and of the press.

The Supreme Court highlighted the fact that the applicants focused their claim on the “threat” that the systematic violence by the government authorities implies for their right to protest. According to the applicants, this violence infringes their rights as a result of the fear it produces. Moreover, a few of the applicants also had their fundamental rights directly infringed. Thus, the Court affirmed that it was not necessary that each of the applicants participated in the various protests –unlike what the Civil Chamber of the Superior Court of the Judicial District of Bogotá had stated– and that the tutela was a legitimate instrument to protect the applicants’ fundamental rights when they are being threatened by public entities. According to the Supreme Court, this case was mainly about the right to freedom of expression and the right to peaceful protest.

The Colombian Constitution states that only a law could limit and establish exemptions for the exercise of the right to protest publicly and peacefully. Thus, the Court affirmed that only the Congress is allowed to limit this right. The rights to protest and to freedom of assembly are related to the right to freedom of expression, since the latter is necessary for the others to exist [p. 44].

Regarding the systemic violence, the Supreme Court mentioned that international rulings have developed a series of requirements to identify the existence of a severe context of violence: it involves systematicity –if a plurality of victims is involved– and generality –the organization involved results in various similar situations that coincide and are not isolated. The Court, on the basis of previous decisions by the Inter-American Court of Human Rights, stated that systematicity could be addressed and implemented not only by Criminal Law and International Law but also in a context of serious infringements of fundamental human rights enshrined by the American Convention on Human Rights. Although the concept was developed in the International Criminal Law and International Law Contexts, specifically applied to crimes against humanity, the Court considered that it could also be useful for internal cases. The case under analysis is not about crimes against humanity but about a case of generalized and repeated infringements of the rights to protest, to civic participation, to life, to personal integrity, to due process of law, to freedom of expression, and to freedom of assembly and movement. According to the Court, the test considers common features between the victims in the various cases; a common behavioral pattern; singular factors regarding the attackers; staggered actions of violations and plurality of victims; a coordinated strategy; the specific context; a unique objective that is the main aim of the behavior; and seriousness of the behavior, regarding its scale, nature, and impact on the society.

The Court affirmed that the military, who were present during the protests, did not comply with any of the requirements to minimize the violence towards protesters, such as resorting to violence only when specifically needed [p. 68]. The Court noted that there was an impulsive tendency from ESMAD against protesters and a condemnable use of the police power during protests, which were not either violent or threatening [pp. 69-70].

The Court concluded that the claim by the applicants was supported by the evidence offered. Government authorities applied repeated, constant, and disproportionate violence against peaceful protesters [p. 100]. There was a serious and concrete threat from the public forces, specifically ESMAD, who unfulfilled not only its own protocols but also constitutional principles and values [p. 100]. Their behavior constituted a serious and concrete threat for anyone who intended to express their opinions. There was strategic and coordinated conduct by ESMAD and the police that took place in the three main cities in Colombia, on similar dates, and shared similar features. The government must protect the rights to freedom of expression and opinion, and the right to criticize, unless they are related to war propaganda, hate speech, child pornography, incitement to commit a crime, or any use of violence as a solution to any problems [p. 107]. According to the Court, the government failed to maintain the internal public order and to use weapons in a rational and moderated way, which resulted in a substantiated fear for those who intended to peacefully protest.

Moreover, the government did not have a neutral position regarding the protests and demonstrations against it, and stigmatized protesters through its expressions. The Court dismissed the previous decision by the Civil Chamber of the Superior Court of the Judicial District of Bogotá and ordered the various government agencies involved in the management of social demonstrations to adopt specific actions in order to guarantee the exercise of the right to peaceful protest.