Claim of the violation of the right to appeal in a case earmarked for Parliamentary corruption, the Committee finds a violation

Facts

The author held the post of Director of the Administrative Department of the Office of the President of the Republic of Colombia between August 2002 and July 2004. During this time, the First Committee of the House of Representatives approved bill No. 267 which made it possible for the then president, Álvaro Uribe to be re-elected. In 2004, a compliant was made with the Supreme Court that stated that Ms. Medina Padilla had accepted a bribe to vote in favor of this bill in exchange for official privileges. This complaint was dismissed by the Supreme Court and the investigation was closed.

 

In 2008, two press articles were released confirming the above. The Supreme Court revoked the refusal order and initiated criminal proceedings against Ms. Padilla. Ms. Padilla confirmed the above and then provided the media with further information. This information was used to launch an ex officio disciplinary investigation into the author. He was then exonerated in an administrative decision issued in March 2009.

 

In May 2008, the Supreme Court transferred the contents of the file concerning Ms. Padilla to the Attorney General in order for them to launch an investigation into the author. In June 2008, the Attorney General recused himself from the case. In June 2008, the Deputy Attorney General took over the criminal investigation concerning the author and other senior officials and ordered the closure of the investigation in November 2010.

 

In January 2011, the new Deputy Attorney General recused himself from the case, and the Supreme Court accepted this recusal and instructed a new Attorney General to continue the relevant proceedings. In August 2011, the newly appointed Attorney General stated that the previous closure of investigation was null and void and that the previous Deputy Attorney General had acted ultra vires in closing said investigation.

 

In February 2012, the Attorney General delegated the investigation, prosecution and participation in the trial to the Prosecutor No.6. This Prosecutor No.6 reassessed the evidence and indicted the author for the alleged offence of giving or offering a bribe. This was referred to the Supreme Court for trial.

 

In March 2012, the author asked for an extension on the legal deadline, to which the Prosecutor No.6 declined said request. In May 2012, Prosecutor No.6 upheld the criminal charges listed in the indictment and asked for the Supreme Court to join this case with the other senior officials. The author asked for this request to be revoked, which was later denied by the Supreme Court in April 2013.

 

The author and other senior officials then filed a petition stating that his rights to due process and to have the investigation and prosecution conducted by the natural judge in accordance with the laws that were in force at the time of the events. This was rejected by the Constitutional Court.

In April 2015, the Criminal Cassation Chamber of the Supreme Court found the author guilty of the offence of giving or offering bribes and sentenced him to 60 months’ imprisonment, a fine of 83.5 times the statutory minimum monthly wage and 84 months’ disqualification from the exercise of public rights and duties.

 

The author claims that he has exhausted his domestic remedies available to him, as he was unable to lade an appeal. In October 2014, the Constitutional Court ruled in favor of legislation to be established which would allow people to challenge their convictions within one year of the judgement. This legislation would only be allowed for convictions that were tried on or after 24 April 2016 – therefore, not applicable to the author.

 

In light of the facts above, the author claims that the State Party violated his rights under articles 2, 3, 9, 14 and 26 of the Covenant. The author claims that his status as a senior official has hindered him the opportunity to realize his rights under article 2 and 3 read in light of 14(5) of the Covenant.

 

In terms of violating article 9 of the Covenant, the author argues that his freedom was restricted on the basis of the criminal conviction that did not meet the minimum requirements set forth by article 14 of the Covenant. The author states that he was denied effective access to house arrest, even though his case met the requirements as set forth in the domestic legislation.

 

Additionally, the author claims that in the context of the criminal proceedings against him, he was no treated equally before the law – as due to the facts of the case, the investigation was handed to someone who lacked jurisdiction. These factors added to the author’s claims that the State Party had violated his rights to be heard by an independent and impartial tribunal as the judges were influenced by their personal bias and were influenced by the prosecutor in the initial investigation phase.

 

Furtherly, the author claims that the guarantees set in the covenant of presumption of innocence were ignored as opinions and decisions were made when Ms Padilla came forward with her story. Article 14(3) was claimed to be violated as:

1. The author and other senior officials were not given the opportunity to testify or contest the evidence at Ms. Padilla’s trial.
2. His counsel was not given the necessary time to study the case
3. The court case had lasted 7 years with an undue delay between the formal indictment and the beginning of the trial.

 

Lastly, the author claims that the State Party had violated his right to have his conviction reviewed by a higher tribunal as provided for in Art 14(5) of the Covenant. With this regard, article 26 was also violated.

 

Merits

The Committee takes notes of the author’s claims that the criminal proceedings against him constituted a violation of article 14(5) of the Covenant as there was no effective mechanism for the author to appeal or review his conviction.

The Committee notes that the State party argued that the constitutional case law in force at the time of the trial had given authorization to the Supreme Court to act as the highest guarantee of due process in trying senior officials and was a legitimate restriction for such persons. To this, the Committee recalls that under article 14(5) of the Covenant that everyone has the right to have their sentence reviewed by a higher tribunal according to the law.

 

As there was no mechanism for the author to review his sentence, the Committee finds this as a violation of article 14(5) of the Covenant.

Recommendations

Under article 2(3)(a) of the Covenant, the State party is under the obligation to provide the author with an effective remedy. This requires full reparations to be made for the violations occurred.