Republic of Colombia
Colombia possesses a number of laws and strong constitutional protections that should create a comprehensive form of protective pretrial rights. Articles 28, 29, and 30 of the Colombian Constitution guarantee an individual’s personal liberty, right to due process, and habeas corpus rights respectively. Furthermore, the Criminal Code deters arbitrary detentions, while the Prison and Jail Code provide for establishments for pre-trial detainees separate from individuals convicted of crimes.
However, despite the many protections, almost a third of Colombia’s prison population are awaiting trial according to the International Centre for Prison Studies.
General Status of Rights in Colombia
Colombia possesses the second largest population in South America with more than 46 million citizens and is ranked 28th largest in the world. Colombia is also Latin America’s oldest and most stable democracy with the citizens participating in free and unfettered elections, which has led to peaceful changes of government every four years for more than a century.
According to the Department of State’s country report on Colombia:
“Authorities must bring detained persons before a judge within 36 hours to determine the validity of the detention, bring formal charges within 30 days, and start a trial within 90 days of the initial detention. Bail is generally available except for serious crimes such as murder, rebellion, or narcotics trafficking. Public defenders contracted by the Office of the Ombudsman assisted indigent defendants. Detainees received prompt access to legal counsel and family members as provided for by law. In general authorities respected these rights.”
However, a significant backlog of cases in the civilian judicial system has caused a large number of pretrial detainees. The change in judicial systems, from an inquisitorial to an oral accusatory system, has alleviated some of the backlog, but much of it remains. The Department of State reports that “[a]s of August 31, 35 percent of detainees in prisons and jails were in pretrial detention” and “[i]n some cases detainees were released without a trial because they had already served more than one-third of the maximum sentence that corresponded to their charges.”
The Department of State also reports that sometimes pretrial detainees are held with convicted prisoners, despite being against Colombian law.
The Inter-American Commission on Human Rights (“IACHR”) paints a grimmer picture in its most recent report on human rights violations in Colombia, noting that
“a shortcoming observed by the Commission, and largely a consequence of the serious overcrowding, is the failure to separate persons facing trial from convicted prisoners. For example, at the time of the visit, 2,257 of the 7,788 prisoners at La Picota were defendants; and of the 7,381 prisoners at the Modelo prison, 4,194 were also defendants. At both penitentiaries the Rapporteurship verified that as a general rule the defendants and the convicts are mixed together. This situation is also found in many other prisons in Colombia, even though the Prison and Jail Code (Código Penitenciario y Carcelario, also known as “Prison Code” or “National Prison Code”) provides, in theory, that the establishments called cárceles will be for the pre-trial detention of persons accused; and the penitenciarías, by way of contrast, will be for convicts (Articles 21 and 22). So for example at the cárcel of Villahermosa in Cali there were 2,729 defendants and 2,845 convicts; at the EPMSC-ERE in Valledupar 542 accused, 359 convicts; at the Rodrigo Bastidas cárcel in Santa Marta 468 accused, 527 convicts; at the Bellavista cárcel of Medellín 1,957 defendants, 5,487 convicts; and the Riohacha cárcel 423 accused and 71 convicts.”
The IACHR further notes how many reforms to the Code of Criminal Procedure has led to the encouraged the use of pretrial detention, including the Law 1142 of 2007 and the Law 1453 of 2011, which provide that individuals who have been arrested for a crime or misdemeanor within the last three years may be detained as long as the former arrest did not result in a preclusion or acquittal. These measures, among others, have expanded the population of pretrial detainees.
Therefore, while the rights of individuals in Colombia are very much identified and guaranteed through Colombia’s laws and Constitution, the actual impact of these rights and laws appears to be encumbered by the administrative burden originating from reforms to the Code of Criminal Procedure and the overpopulation of prisons.
Domestic Laws Governing Pretrial Detention
The Republic of Colombia is a representative democracy possessing a “central government and separation of powers. The country has three branches of government:: the Executive, the Legislative and the Judiciary.” The Constitution (Spanish version here), which entered into force in 1991 and was amended in 2005, contains a number of Articles that provide protections for those accused of crimes.
Article 28 guarantees personal liberty and requires that “[a] person in preventive detention will be placed at the disposition of a competent judge within the subsequent thirty-six (36) hours so that the latter may make an appropriate determination within the limits established by law.” Moreover, Article 28 declares that “[i]n no case may there be detention, a prison term, or arrest for debts, nor sanctions or security measures that are not prescribed.”
Article 29 provides individuals with the guarantee of due process under the law including the presumption of innocence, right to counsel, right to a fair trial, right to a speedy trial, right to a public trial, right to examine evidence and witnesses, and prohibition of double jeopardy.
Article 30 provides that “[w]hoever is deprived of his/her freedom and believes to be so illegally is entitled to invoke habeas corpus before any legal authority, at any time, on his/her own or through a third party. Habeas corpus must be complied with within thirty-six (36) hours.”
Beyond the Constitution, the Criminal Code offers some pretrial protections by criminalizing arbitrary detention. Article 174 makes unlawful deprivation of liberty committed by a public servant punishable by three to five years of imprisonment, while Article 175 dictates that a public servant, who unlawfully prolongs the deprivation of liberty of a person, is liable to lose their position in public office and receive three to five years of imprisonment. And Article 177 threatens judges that improperly decide meritorious petitions of habeas corpus with imprisonment of two to five years and loss of public office.
Prison and Jail Code (“Código Penitenciario y Carcelario”)
“Confining persons facing criminal charges with convicts was another issue that the Inter- American Commission emphasized after its 1997 visit; it appears, based on what was found 15 years later, that one can conclude that this situation continues to be essentially the same. The failure to separate persons facing trial from convicts is contrary to the regime established by Article 5(4) of the American Convention and the duty of the State to give the defendants different treatment in keeping with respect for the rights to personal liberty and to the presumption of innocence (Article 8(2) of the American Convention).”
International or Multilateral Treaties Concerning Arbitrary Detention
Article 93 of the Colombian Constitution requires that “[i]nternational treaties and agreements ratified by Congress that recognize human rights and prohibit their limitation in states of emergency have domestic priority.”
The Republic of Colombia is a state party to several international and multilateral treaties concerning arbitrary detention and human rights including:
- American Convention on Human Rights
- Inter-American Convention to Prevent and Punish Torture
- International Covenant on Civil and Political Rights
- Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment
- Convention on the Rights of the Child
American Convention on Human Rights
Colombia signed the American Convention on Human Rights on November 22, 1969 and ratified the treaty on May 28, 1973. On June 21, 1985, Colombia “presented an Instrument of acceptance by which [it] recognizes the competence of the Inter-American Commission on Human Rights for an indefinite time, on the condition of strict reciprocity and nonretroactivity, for the cases involving the interpretation or application of the Convention, and reserves the right to withdraw its recognition of competence should it deem this advisable. The same Instrument recognizes the jurisdiction of the Inter-American Court of Human Rights, for an indefinite time, on the condition of reciprocity and nonretroactivity, for cases involving the interpretation or application of the Convention, and reserves the right to withdraw its recognition of competence should it deem this advisable.”
Article 7 of the American Convention on Human Rights provides protections similar to those guaranteed by the Colombian Constitution, including:
- Every person has the right to personal liberty and security.
- No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
- No one shall be subject to arbitrary arrest or imprisonment.
- Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
- Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
- Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.
- No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.
“Pursuant to the first of these provisions, no person may be deprived of his or her personal freedom except for reasons, cases or circumstances expressly defined by law (material aspect) and, furthermore, subject to strict adherence to the procedures objectively set forth in that law (formal aspect). The second provision addresses the issue that no one may be subjected to arrest or imprisonment for reasons and by methods which, although classified as legal, could be deemed to be incompatible with the respect for the fundamental rights of the individual because, among other things, they are unreasonable, unforeseeable or lacking in proportionality.”
International Covenant on Civil and Political Rights (“ICCPR”)
Colombia signed the ICCPR on December 21, 1966 and ratified the treaty on October 29, 1969. Colombia is also a signed and ratified the Optional Protocol to the ICCPR.
Click here to see Pretrial Rights International’s summary of pretrial detention rights under the ICCPR.
Convention on the Rights of the Child
Colombia signed the Convention on the Rights of the Child on January 26, 1990 and ratified the treaty on January 28, 1991.
Article 37 of the Convention on the Rights of the Child extends many of the protections already discussed explicitly to children, requiring that:
- No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
- No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
- Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
- Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
Case Examples / Practical Observations
Russell Martin Stendal
Stendal was a United States missionary arrested for alleged collaboration with a Colombian Marxist rebel group. He was charged with supporting terrorism and collaborating with the Revolutionary Armed Forces of Colombia. Later on the same day of the arrest, a Colombian judge ordered Stendal’s release due to the lack of proof and underdevelopment of the prosecutor’s case, holding there was no reason to keep Stendal in jail.
According to the Department of State:
“On May 7, the Foundation for the Freedom of the Press (FLIP) indicated that during marches and protests to commemorate Labor Day on May 1, members of the Anti-Riot Squad of the national police (ESMAD) arbitrarily detained and mistreated Esteban Vanegas, a cameraman for El Colombiano, in Medellin after he filmed police reaction to the protest. Vanegas was released 12 hours later with no charges filed against him. The Inspector General’s Office reported a disciplinary investigation was in an initial stage at the end of August.”
The US Embassy in Bogota provides a list of attorneys in Colombia willing to provide legal support to American citizens. The Embassy also provides insight into the process required by the Constitution, which should occur subsequent to an arrest in Colombia, including that
“[t]he law requires law enforcement authorities to inform suspects promptly of the reasons for an arrest and bring suspects before a senior prosecutor for a preliminary hearing within 36 hours of detention. Prosecutors must rule on the legality of detentions within 72 hours. In the case of most felonies committed after January 1, 2008, formal charges must be brought within 30 days or a suspect must be released. A trial must generally start within 90 days of the initial detention. Habeas corpus is available to address cases of alleged arbitrary detention. Persons detained for a crime have the right to prompt access to counsel and indigent defendants charged with a crime are entitled to a court appointed attorney.”
Bail is normally only available to individuals accused of lesser offenses and, therefore, generally unavailable to individuals accused of murder, rebellion, or narcotics.
Colombia’s Office of the Ombudsman possesses numerous regional offices that can provide assistance to individuals being detained. Although it is unclear the effectiveness of the assistance, there is a helpful list of contact information for the regional offices. The Office of the Ombudsman can help assist individuals unable to cover the cost of judicial or extrajudicial representation as well as assist individuals who require advice or want to file a petition or complaint concerning the imprisonment and detention conditions.
The International Committee of the Red Cross (“ICRC”) has a very strong presence in Colombia. It began visiting Colombian prisons in 1969, and today visits 330 detainees across the country daily. According to the ICRC’s most recent humanitarian report found here, nineteen people held by armed groups operating in Colombia were freed due to ICRC’s assistance. ICRC also monitored seventy-two percent of the detainees, helped seventeen detainees communicate with their families, and made seventy-six verbal and written representations to the authorities on the behalf of detainees in hopes of securing improvements in detention facilities.
The ICRC possesses several offices across the Republic of Colombia including:
Headquarters in Colombia – Bogotá D.C.
Calle 76 N.0 10 – 02
Teléfono: (571) 313 86 30 Fax: (571) 312 82 82
Cali Sub-delegation (Valle del Cauca)
Carrera 29 N.0 5 B – 31 firstname.lastname@example.org
Tel: (0*2) 555 66 66 – Fax: (0*2) 682 49 69
Pasto Office (Nariño)
Carrera 35 A N.0 18 – 57 email@example.com
Tel: (0*2) 731 16 66 – Fax: (0*2) 731 76 24
Bucaramanga Sub-delegation (Santander)
Calle 52 A N.0 31 – 70 firstname.lastname@example.org
Tel: (0*7) 657 75 42 – Fax: (0*7) 643 53 83
Saravena Office (Arauca)
Calle 26 N.0 11 – 07 email@example.com
Tel: (0*7) 889 18 09 – Fax: (0*7) 889 18 12
Medellín Sub-delegation (Antioquia)
Circular 4 N.0 71 – 91 firstname.lastname@example.org
Tel: (0*4) 416 20 10 – Fax: (0*4) 414 44 84
Montería Office (Córdoba)
Carrera 6 N.0 60 – 38 P. 2° email@example.com
Tel: (0*4) 785 66 33 – Fax: (0*4) 785 27 90
Quibdó Office (Chocó)
Carrera 3 N.0 30 – 43 firstname.lastname@example.org
Tel: (0*4) 672 23 43 – Fax: (0*4) 672 23 80
Florencia Sub-delegation (Caquetá)
Calle 11 N.0 13 – 05 email@example.com
Tel: (0*8) 435 41 59 – Fax: (0*8) 435 26 85
Puerto Asís Office (Putumayo)
Calle 10 N.0 24 – 22 firstname.lastname@example.org
Tel: (0*8) 422 72 54 – Fax: (0*8) 422 70 96
San José del Guaviare Office (Guaviare)
Carrera 24 B N.0 10 – 50
Tel: (0*8) 584 19 74 – Fax: (0*8) 584 98 82
Villavicencio Office (Meta)
Carrera 30 N.0 39-30 Ofc. 401
Tel: (0*8) 662 38 01 – Fax: (0*8) 662 45 90
According to a report approved in December 2013 by the IACHR: “Of a total 113,884 people deprived of their liberty as of December 31, 2012, 105,387 (92.54%) were men and 8,497 (7.46%) were women. Of the total 34,571 people awaiting trial, 32,114 (92.9%) were men and 2,457 (7.1%) were women. The most common crimes among prison inmates awaiting trial were:
- Theft: men 8,397 (95%) / women 445 (5%), total 8,842.
- Trafficking or bearing firearms or ammunition: men 7,114 (96%) / women 271 (4%), total 7,385.
- Homicide: men 6,140 (96%) / women 253 (4%), total 6,393.
- Trafficking, manufacturing, or possession of narcotics: men 4,961 (82%) / women 1,046 (18%), total 6,027.
The IACHR also released a country report on the human rights violations occurring in Colombia. It acquired information from the National Penitentiary Institute (INPEC) on the populations of the 144 penitentiaries in Colombia and created the following graph:
Establishment s 1892
|Amazonas, Boyacá, Caquetá,
Cundinamarca, Huila, Meta, Tolima and Casanare
|West||25||Cauca, Nariño, Putumayo, and Valle||14,414||22,016|
|Northeast||22||Antioquia and Chocó||8,414||15,399|
|Atlántico, Bolívar, Cesar, Córdoba,
Guajira, Magdalena, San Andrés and
|Arauca, Cesar, Norte Santander and
|Viejo Caldas||23||Boyacá, Caldas, Quindío, Risaralda
Also provided in the report were the following statistics:
“Consequently, of all the prisoners who have been tried, 43% were sentenced to 0 to 5 years in prison; 25% to 6 to 10 years; 18% to 11 to 20 years; 8.3% to 21 to 30 years; and 4.2% to 31 or more years in prison. Of a total of 35,182 persons held in pre-trial detention, as of January 31, 2013, 38.33% had been detained for 0 to 5 months, 39.35% from 6 to 15 months, 13.12% from 16 to 25 months, 4.54% from 26 to 35 months, and 4.65% for more than 35 months.”
However, it should be noted that INPEC does not oversee a large number of departmental, district, and municipal jails, and, therefore, the statistics do not accurately reflect the larger number of people deprived of their liberty, which the State fails to monitor.
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