E/CN.4/1995/111
page 27
85.
Ordinary criminal justice also includes the regional courts, which
were formerly called the public order courts and have jurisdiction in
proceedings for offences such as terrorism, rebellion and drug trafficking.
Non-governmental sources levelled harsh criticism against these courts and
their operational procedures, which they considered to undermine due process.
In the first place, these categories of offences have been broadly
interpreted, resulting in the use of these courts to prosecute not only major
criminals, but also activists from peasant, community, labour and similar
organizations whose protests, political demonstrations and labour disputes are
often characterized as terroristic or supportive of the guerrillas. As far as
procedural aspects are concerned, the anonymity of the judges, prosecutors,
criminal investigation police officers and even witnesses for the prosecution
are still serious obstacles to the exercise of the rights of the defence,
despite the reforms introduced in 1993. In this connection, the Fiscal
General de la Nación expressed to the Special Rapporteurs his view that there
should be supervision of these courts in order to avoid abuses.
86.
In the framework of the Regional Justice system, special offices of the
Fiscalía assigned to military units were established under emergency
legislation which gave judicial police powers to the armed forces. The main
function of these fiscalías in practice has been perceived as legitimizing
acts, arrests in particular, carried out by the military in the exercise of
functions which normally should not be in their competence. The Special
Rapporteurs were informed that the decree establishing those powers was
declared by the Constitutional Court to be unconstitutional, but that, despite
this fact, the military continue to exercise those functions and the fiscalías
still exist.
Military criminal justice
87.
According to the information received, the military criminal courts hand
down harsh sentences for all violations of internal police or armed forces
regulations; it was even stated that they were often excessively harsh when
members of the rank-and-file were involved. The situation is quite different,
however, in cases in which the offences in question are against civilians
(robbery, injury, murder, etc.) and a high percentage of them end in the
suspension of the proceedings. While, in the first instance, the military
itself has an interest in seeing the culprits punished and it is therefore
easier to collect evidence, in the second, cover-ups, partiality and
pressuring of witnesses appear to be standard practice.
88.
According to a study conducted by the Procuraduría General de la Nación,
of 7,903 judgements handed down from early 1992 to mid-1994 by the Higher
Military Court, 4,304 were convictions and 4,103 of those were for violations
of internal regulations. However, there was a significant number of
acquittals and suspensions of proceedings for non-military offences,
i.e. offences against the civilian population.
89.
Another disturbing aspect of these courts is the fact that they are
composed of officers who can also be responsible for ordering military
operations in connection with which human rights violations have occurred something that is contrary to the principle of the independence and
impartiality of military judges and is a cause of impunity.
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