E/CN.4/1995/111
page 29
93.
In this connection, the Inter-American Commission on Human Rights, in its
second report on Colombia, indicated that the risks involved in the existence
of military jurisdiction "can be overcome with appropriate regulations for
controlling any potential excesses in its use". To that end, it recommends
that such regulations should explicitly exclude acts of torture, extrajudicial
executions and enforced disappearances and that military judgements should be
brought into line with those of the ordinary courts. In this connection, a
significant step was taken in June 1994 with the adoption by the Congress of
a bill on enforced disappearances, which stated that government officials
involved in acts of this kind would not be tried by military courts and that
due obedience could not be invoked to relieve them of responsibility.
However, President Gaviria’s Government objected to these two provisions,
stating that they were unconstitutional. The present Government supported the
first objection regarding military jurisdiction, arguing that this question
should be decided by the judges on a case by case basis. It opposed
President Gaviria’s objection regarding the defence of due obedience. The
Senate, however, did not follow the recommendation made by the current
Government and accepted the objections put forward by the former President.
At the time the present report was finalized, the bill was under consideration
by the House of Representatives.
94.
The Procurador General indicated the following aspects as being essential
in any review of the Military Penal Code: making the judiciary more
professional by separating military judges from the chain of command and from
any operational responsibility; adopting the accusatory system of prosecution,
through the use of military prosecutors; redefining the concepts of "act
committed while on duty" and "superior orders"; making the institution of the
parte civil part of military criminal proceedings; ensuring participation by
the Public Ministry in the military system of justice; and the use of
technical legal defence procedures for members of the armed forces being tried
by the military courts. As for the Fiscal General de la Nación, he told the
Special Rapporteurs that he was in favour, in particular, of an accusatory
system of prosecution, as well as of having a clear definition of "military
crimes". Members of the high military command, however, expressed their
opposition to a reform of the Military Penal Code along these lines and found
it particularly inappropriate to have judges who were independent of the chain
of command.
95.
Governmental and non-governmental sources said that the problems
surrounding the military courts were an issue that created strong tensions in
the country and that any suggestions whatsoever, even from official bodies,
that military jurisdiction should be limited were met with charges that the
military was being attacked and rebellion being encouraged.
Disciplinary authority of the Procuraduría General de la Nación
96.
In its third report on human rights, the Procuraduría General de la
Nación notes that, in 1993, it received a total of 363 complaints of murder,
234 of disappearances, 227 of torture, 416 of injury, 175 of threats, 87 of
ill-treatment, 12 of killings during confrontations and 2 of killings of
poor people. Complaints of murder and torture increased by 18.2 per cent
and 23.8 per cent, respectively, compared to 1992. With regard to decisions
taken in 1993 (mostly referring, naturally, to complaints filed in 1992), the
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