Case Watch: Colombian Constitutional Court Sets Important Precedent on Victims of Grave Crimes’ Access to Court Evidence

In “Case Watch” reports, lawyers and advocates at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.

Under the command of Colombian General Mario Montoya Uribe between 2006 and 2008, the Colombian army accelerated the practice of inflating its body count by recording the murder of thousands of innocent civilians as deaths in combat. The victims were dressed in rebel fatigues, and their deaths were falsely categorized as combat killings. In a case that occurred while Montoya was the head of the military, which illustrates the army’ modus operandi in luring vulnerable, innocent civilians, a soldier from the Battalion Contraguerrillas 57 Mártires de Puerres offered two young men employment in a gas pipeline installation in Manizales. When Darbey Mosquera Castillo and Alex Hernando Ramírez Hurtado showed up to what they believed to be their worksite, they were executed. Ever since, their families have struggled to seek truth and hold perpetrators to account.

The extrajudicial killings that occurred during the country’s longstanding internal armed conflict are referred to as “false positives” cases. These deaths are now being examined in an ongoing trial against former General Montoya for grave crimes, through which the families of victims hope some truth will emerge about the murder of their loved ones. The case is emblematic of justice for a widespread pattern of planning, executing, and concealing extrajudicial killings by the military—murders that were rubber stamped by the country’s highest authorities.

The battle to access evidence crucial to the case has been no small task for the legal counsel representing the victims’ families, Germán Romero, who spent four days reviewing thousands of documents in the investigative file being stored on the premises of the Prosecutor’s Office. He has since lodged a detailed request to obtain copies of evidence necessary to properly represent the interests of his clients. Romero has rightly insisted that access to, and copies of, the full body of documentation in the investigation files is crucial to establishing the systemic nature of these killings, as well as the characteristics and full extent of General Montoya’s crimes. These documents include military manuals and plans, diaries, and books of brigade units—records that are more than a decade old and would have little bearing on present military strategy.

Even though the families’ role in the cases potentially involves providing important testimony and evidence against Montoya, the Office of the Prosecutor has barred them from accessing the bulk of evidence contained in the investigative file on grounds of national security. So far, the Prosecutor’s Office has only released a minute portion of these materials, listing the rest as secret or classified. In November 2017, the families of victims filed a writ of constitutional protection (acción de tutela) challenging the Prosecutor’s Office refusal to grant adequate access to the files.

In September 2020, after deciding that the victims’ families petition merited a constitutional opinion, the Colombian Constitutional Court issued a judgment setting standards significant not only for the particular case but for the body of jurisprudence addressing access to files in grave crimes trials more generally—standards on access to files especially relevant in Colombia’s ongoing transitional justice efforts.

The Constitutional Court ruled on the following two principles:

• Access to information as a procedural guarantee: The court established that, in order to guarantee their effective intervention in criminal proceedings, victims have the right to access files and obtain copies of evidence related to the case on an equal footing with defense and prosecution lawyers. Remarkably, it further specified that victims may demand access to evidence at the pretrial stage from the supervisory judge, i.e, from the start of criminal proceedings, so that they have adequate time to review it and act upon it.
• The need to favor disclosure of information on the grounds of public interest: While recognizing that the Prosecutor’s Office might have well-founded reasons to withhold information, such to protect witnesses and ensure third-party confidentiality, the Constitutional Court argues that the prosecutor’s office must also favor disclosure on the grounds of public interest. The right to access information and to the truth regarding human rights violations, granted to victims and society at large, must be carefully assessed on case-by-case basis and with regards to specific documents. If there are grounds to limit access, the Prosecutor’s Office must consider less restrictive options, such as redaction of documents when and as necessary, instead of denying access to the documents altogether. The Prosecutor’s Office must weigh these competing interests fairly and explain to the victims, in a clear and well-reasoned decision, the legal basis for any limitation. Generic justifications to limit access, such as national security, and their mere statement, can be neither used nor interpreted as blanket bans.

The Constitutional Court further ordered the Prosecutor’s Office to reconsider the victims’ families’ request to access the casefile according to the criteria established in its judgment. Nevertheless, loopholes in the Court’s order have allowed the Office of the Prosecutor to stall granting victims’ access to the documents and files.

Despite this, the Constitutional Court has set an important legal precedent at the national and regional level with respect to the way the legal systems conducts the investigation and trial of grave crimes, such as extrajudicial executions or enforced disappearances. Grave crimes investigations and trials usually involve and overwhelmingly large amount of documents. The ability of lawyers to properly represent victims’ and build a strong case relies on having adequate access to all the necessary documentation, and essential copies thereof. Access to documents in the investigative file, and their copies, is a paramount part of the rights of victims to due process, to an effective judicial remedy, to access information, and the right to truth and reparations, including guarantees of non-repetition. Legal counsel cannot properly represent victims’ interests, and victims cannot submit evidence and relevant information about the facts, without extensive access to, and copies of, evidence contained in the case file.

The way that legal systems conduct trials against individuals accused of grave crimes is of critical importance. It impacts the accused, the victims of their crimes and their families but also the rule of law and, in manifold significant ways, society’s truth and reconciliation in countries recovering from an armed conflict or in in the aftermath of serious human rights violations, such as Colombia. The Colombian Constitutional judgment, therefore, sets an important precedent that bodes well for victims and families, and their society overall, who face the difficult task of holding perpetrators of some of recent history’s worst crimes accountable in a court of law. The impact of this decision may very well reverberate beyond Colombia’s borders.

The Justice Initiative’s work on this case was led by Senior Legal Officer Mercedes Melon, Policy Officer Mariana Mas, Managing Legal Officer Juliana Vengoechea, and former Litigation Fellow Laura Lazaro Cabrera.