the communication being declared admissible, and
proceeds to examine the merits of the case.
individuals’ rights. Consequently, it is understood
that when an ordinary judicial remedy has been
applicable, no claim can be made to supplement the
proceedings with an application for protection, given
that under article 86 of the Constitution, such a
mechanism is inadmissible as long as there is
another legal option for protection”.
Examination of the merits
7.1 The Human Rights Committee has considered
the present communication in the light of all the
information made available to it by the parties, as
provided for in article 5, paragraph 1, of the Optional
Protocol.
5.4 As regards the merits, the author argues that
the State party’s explanations concerning “faceless”
justice, established “to ensure the proper
administration of justice despite the devastating
effects of organized crime”, and also the conversion
of the transitional emergency criminal legislation
into permanent legislation, simply confirm the fact
that the Colombian State has violated article 14,
paragraph 1, of the Covenant relating to trial by a
competent, independent and impartial tribunal, due
criminal guarantees and the guarantee of equality for
all persons before the courts.
7.2 The author claims a violation of article 14,
paragraph 1, of the Covenant because he was
deprived of his right to be tried by the court that
would have been competent at the time that the
alleged offence was committed, and was charged in,
and tried at first and second instance by, courts
whose jurisdiction was established subsequent to the
events in question. In this respect, the Committee
notes the State party’s explanations to the effect that
the law in question was established in order to
ensure the proper administration of justice, which
was under threat at the time. The Committee
considers that the author has not demonstrated how
the entry into force of new procedural rules and the
fact that these are applicable from the time of their
entry into force constitute in themselves a violation
of the principle of a competent court and the
principle of the equality of all persons before the
courts, as established in article 14, paragraph 1.
Issues and proceedings before the Committee
Admissibility considerations
6.1 Before considering any claims contained in a
communication, the Human Rights Committee must,
in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is
admissible under the Optional Protocol to the
Covenant.
7.3 The author maintains that the proceedings
against him were conducted only in writing,
excluding any hearing, either oral or public. The
Committee notes that the State party has not refuted
these allegations but has merely indicated that the
decisions were made public. The Committee
observes that in order to guarantee the rights of the
defence enshrined in article 14, paragraph 3, of the
Covenant, in particular those contained in
subparagraphs (d) and (e), all criminal proceedings
must provide the person charged with the criminal
offence the right to an oral hearing, at which he or
she may appear in person or be represented by
counsel and may bring evidence and examine the
witnesses. Taking into account the fact that the
author did not have such a hearing during the
proceedings that culminated in his conviction and
sentencing, the Committee finds that there was a
violation of the right of the author to a fair trial in
accordance with article 14 of the Covenant.
6.2 The Committee has ascertained, as required
under article 5, paragraph 2 (a), of the Optional
Protocol, that the same matter is not being examined
under
another
procedure
of
international
investigation or settlement.
6.3 As regards the requirement of the exhaustion
of domestic remedies, the Committee notes that the
State party is contesting the communication on the
ground of failure to exhaust those remedies, further
stating that, in addition to the remedy of judicial
review (casación), there are other available remedies
such as the application for review (revisión) and
protection. The Committee further notes the State
party’s explanations that the application for
protection is a subsidiary procedure that has been
allowed only in exceptional circumstances and that
its protection is only temporary until the judge hands
down his decision. In this connection, bearing in
mind that in the present case there has been a
decision of the Supreme Court of Justice against
which there is no remedy, the Committee considers
that the State party has not demonstrated that other
effective domestic remedies exist in the case of
Mr. Rodríguez Orejuela.
7.4 In view of its conclusion that the right of the
author to a fair trial in accordance with article 14 of
the Covenant was violated for the reasons set out in
paragraph 7.3, the Committee is of the opinion that it
is not necessary to consider other arguments relating
to violations of his right to a fair trial.
6.4 Consequently, the Committee has determined,
in accordance with article 5, paragraph 2 (b), of the
Optional Protocol, that there is nothing to prevent
8.
The Human Rights Committee, acting under
article 5, paragraph 2 of the Optional Protocol to the
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