all times represented by his counsel, was shown all
the evidence, and was given the opportunity to
challenge the evidence and the judgements rendered.
autonomous remedy that is exercised outside the
criminal process or, in extreme cases, the application
for protection (amparo), which has been granted by
the Constitutional Court exceptionally in the face of
irremediable injury when there is no other means of
judicial defence.
4.6 Concerning the author’s argument that the
most favourable criminal law in Colombia’s
procedural law was not applied, the State party
considers that this argument falls outside the scope
of the Covenant and is therefore inadmissible.
4.2 As regards the question of the exhaustion of
domestic remedies, the State party considers that the
procedural time limits set in Colombian legislation
for a criminal proceeding are not, prima facie,
unreasonable or arbitrary and do not nullify the right
to be heard within a reasonable period.
5.1 In his comments of 13 December 1999,
21 August 2001, and 23 April 2002, the author
responds to the State party on the question of
admissibility and the merits, and states that with the
decision on the application for judicial review of 18
January 2001, the problem of the exhaustion of
domestic remedies has been resolved, but presses the
point that the Supreme Court took 39 months to
reach a decision on the application and that there had
thus been unwarranted delay in the remedies
available domestically. On the application for
review, the author maintains that this is not
admissible since it is an autonomous action and not a
remedy that is in conformity with article 5,
paragraph 2 (b) of the Optional Protocol. He argues
that in criminal law, “Action is not the same as
remedy: the actio is an abstract right to take
procedural action of a public nature in order to
trigger jurisdictional activity, while the remedy is the
means of challenging a decision in an ongoing trial.
In this case, the ordinary remedies and the special
remedy of appeal, provided for during the trial and
the criminal proceedings under Colombian criminal
law, have been exhausted, so that no other remedy
remains to be exhausted.”
4.3 As to the merits, the State party argues that
Law No. 2 was enacted in 1984 in view of the urgent
need to incorporate into the justice system
appropriate provisions for addressing new forms of
crime, including offences related to drug trafficking.
The Law conferred on the specialized judges
jurisdiction over cases of this kind. Subsequently,
Decree No. 2790 of 1990, issued under the
Constitution of 1886, assigned jurisdiction to the
courts of public order. However, pursuant to the
constitutional reform and to the new Constitution of
1991, a special commission was established to
review existing legislation. On finding that the
legislation was in conformity with the new
constitutional order, the commission decided to
incorporate it permanently into the criminal
legislation through Decree No. 2266 of 1991. This
Decree assigned to the regional courts, known as
“faceless” courts, jurisdiction for drug-trafficking
offences, which included the offence committed by
the author.
5.2 The author likewise maintains that the
application for protection or amparo laid down in
article 86 of the Constitution was also inadmissible
since the Constitutional Court had declared
unconstitutional, in a decision of 1 October 1992, the
articles that allowed this action against judgements
and other judicial decisions in criminal matters.
Moreover, the application for protection would only
be admissible if the person concerned had no other
means of judicial defence, such as the remedy of
judicial review.
4.4 The State party notes that article 250 of the
Constitution established the Office of the Public
Prosecutor and invested it with power to investigate
punishable acts committed in Colombia. The
purpose of these provisions, insofar as criminal
activities such as drug trafficking were concerned,
was to ensure the proper administration of justice,
which at that time was seriously threatened by
practices such as corruption and intimidation of
officials. The State party likewise maintains that
these provisions have been adapted to the Colombian
constitutional order from the legislation of other
countries, which have used it in extreme situations
such as those they have experienced in recent times.
This does not imply a limitation of the principles and
procedural rights mentioned below.
5.3 The author refers to the decision of 26 April
2001 of the Supreme Council of the Judiciary, which
found that the application for protection “is
inadmissible when the applicant has other means of
judicial defence. The application for protection is
not, therefore, an alternative, additional or
complementary means to achieve the proposed end.
Neither can it be claimed that it is the last resort
available to the actor, because by its very nature,
according to the Constitution, it is the only means of
protection specifically incorporated into the
Constitution to fill the lacunae that could arise in the
legal system so as to provide full protection of
4.5 The State party argues that, consequently,
claims concerning a violation of principles such as
due process or legality are not valid, since
throughout the proceedings against the author
judicial officials have observed all applicable
substantive and procedural norms, in particular those
relating to defence rights and the adversarial and
public nature of the proceedings. The author was at
108
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