because they have ahegedly been deprived of the pro
cedural guarantees laid down in the Colombian Con
stitution and in the Covenant. He states that ah
domestic remedies have been exhausted whh the deci
sion of the Supreme Court of Justice upholding the con
stitutionality of the Decree and that the cases of the
alleged victims have not been submitted to any other
procedure of international investigation or settlement.
2. On 9 August 1979, the Human Rights Committee
decided to transmit the communication to the State
party, under rule 91 of the provisional rules of pro
cedure, requesting information and observations rele
vant to the question of admissibility.
3.1 By letters dated 30 April and 30 September 1980
the State party refuted the allegations made by the
author.
3.2 The State party, in particular, rejected the
allegation made by the author of the communication
that the enactment of Legislative Decree No. 1923 of
6 September 1978 and consequently the arrest and
detention of the four persons represented by the author
were contrary to the Colombian Constitution and in
violation of the International Covenant on Civil and
Political Rights. The State party pointed out that the
Decree was issued by the President of the Republic of
Colombia in the exercise of the constitutional powers
vested in him by article 121 of the Colombian Constitu
tion after the declaration of a "state of siege" due to the
disturbance of public order and that the Supreme Court
of Justice in a judgement of 30 October 1978 had held
the Decree to be constitutional. In this connection the
State party recahed that Colombia is experiencing a
situation of disturbed public order within the meaning
of article 4, paragraph 1, of the Covenant.
to establish an alleged violation of the Covenant on that
basis.
3.4 With regard to the specific case of Mr. and Mrs.
Fais Borda, the State party confirmed their release,
which was ordered when it was found during an in
vestigation that their continued detention was not
justified. The State party added that there is no ground
for deducing directly from the fact that these orders
were issued that arbitrary detention took place in either
or both of these cases. It was further stated by the State
party that, should Mr. and Mrs. Fais Borda consider
that their detention was arbitrary (in the sense that the
requisite legal formalities and rules had not been com
plied with), they may file a complaint with the compe
tent authorities and institute the appropriate pro
ceedings for the recovery of damages. To challenge their
detention on the ground that the requisite legal for
malities and rules had not been complied with, a
criminal investigation could be initiated by the alleged
victims, through the judicial police, the AttorneyGeneral or the Judge Advocate General of the Armed
Forces. To obtain compensation for damages and in
juries resulting from an aheged arbitrary detention civil
proceedings may then be instituted; if the violation of
rights is the result of action by a public official the com
plainants may also appeal to the administrative courts.
As none of the aforementioned procedures have been
resorted to by Mr. and Mrs. Fais Borda the State party
concluded that domestic remedies had not been ex
hausted in their case.
3.5 With regard to the case of Mr. Justo Germán
Bermudez and Miss Martha Isabel Valderrama, the
State party claimed that the accused have benefited
from all procedural guarantees accorded by the law and
that the ahegedly improper length of their prison terms,
based on charges of rebelhon, was justified by the provi
sions of Decree No. 1923, appjicable under the present
"state of siege" in Colombia. The State party stated
that the appeal was still being heard in the Higher
Military Tribunal and explained that "the time that has
elapsed in this connection ... is due both to the nature of
the case and to the large number of appeals and in
quiries whh which the Higher Military Tribunal has to
deal". The State party concluded that domestic
remedies had not been exhausted in this case either.
3.3 The State party also rejected the allegations
made by the complainant that articles 9, 11 and 12 of
Decree No. 1923 contravene article 14, paragraph 1, of
the Covenant. It quoted the ruhng of the Supreme
Court of Justice, in particular the following:
... Decree N o . 1923 has done nothing other than apply the exception
provided for in article 61 [of the Constitution] which authorizes in ex
ceptional times the cumulative performance, and hence provisional
transfer, of powers, and specifically jurisdictional powers, by and to
bodies other than those normally exercising them, and which
legitimates the introduction of military penal justice, and empowers
the military and pohce authorities specified in the Decree, to deal with
and to order penaUies for certain offences.
4. On 29 July 1980 the Human Rights Committee
decided to request the State party to furnish detailed in
formation as to:
(a) How, if at all, the state of siege proclaimed in
Colombia affects the present case;
Ф) Which are the competent authorities, before
which Mr. and Mrs. Fais Borda may file a complaint
and institute proceedings for the recovery of damages in
the particular circumstances of their case, as well as the
nature of such proceedings, based on the law in force;
(c) The status of the appeal of Germán Bermudez
Gross and Martha Isabel Valderrama before the Higher
Military Tribunal, and, if not yet concluded, the reasons
for the apparent delay and the anticipated time for the
completion of those proceedings.
The Decree does' not establish ad hoc bodies nor does it change the
origin or composition of existing bodies. It simply empowers certain
authorities to perform simultaneously their own ordinary functions
and those vested in them provisionally by virtue of the enabling provi
sions of article 61 of the Constitution. ...
The State party added that the ruling of the Supreme
Court was quoted precisely in order to show that
military tribunals are not ad hoc bodies but an integral
part of the branch of the public power responsible for
the administration of Justice in conformity with the
National Constitution and cannot be dismissed as
unqualified, as was done by the complainant.
Dr. Camargo, who sought to deny their legality in order
140
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