Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2930/2017 * , **

Communication submitted by:Sabas Eduardo Pretelt de la Vega (represented by counsel, Víctor Javier Mosquera Marín)

Alleged victim:The author

State party:Colombia

Date of communication:1 August 2016

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 11 January 2017 (not issued in document form)

Date of adoption of Views:21 July 2020

Subject matter:Conviction of a former minister in sole instance by the highest judicial body

Procedural issues:Examination of the matter under another procedure of international investigation or settlement; exhaustion of domestic remedies

Substantive issues:Right to due process; right to a hearing by a competent, independent and impartial tribunal; right to be presumed innocent; right to have a conviction and sentence reviewed by a higher tribunal; equality before the law; right to liberty and security of person; right to freedom from discrimination

Articles of the Covenant:2; 3; 9 (1); 14 (1), (2), (3) (a)–(c) and (e), (5) and (7); and 26

Articles of the Optional Protocol:2, 3 and 5 (2) (b)

1.1The author of the communication is Sabas Eduardo Pretelt de la Vega, a national of Colombia born in 1946. He claims that the State party has violated his rights under articles 2, 3, 9 (1), 14 (1), (2), (3) (a)–(c) and (e), (5) and (7), and 26 of the Covenant. The author is represented by counsel. The Optional Protocol entered into force for the State party on 29 October 1969.

1.2On 1 August 2016, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided not to request interim measures in respect of the author under rule 94 of its rules of procedure.

Factual background

2.1Between 2002 and 2006, the author served as Minister of the Interior and Justice during the first term of President Álvaro Uribe.

2.2On 2 to 4 June 2004, the First Committee of the House of Representatives of the Congress approved bill No. 267, which allowed for the re-election of the then President, Álvaro Uribe. On 7 June 2004, Congressman Germán Navas Talero filed a complaint of bribery with the Supreme Court against Congresswoman Yidis Medina Padilla. On 23 February 2005, the Supreme Court issued a refusal order and the investigation was closed.

2.3In March and April 2008, the press published two articles in which Ms. Medina Padilla admitted that she had been bribed by the author and other senior officials to vote in favour of bill No. 267 of 2004 in exchange for official privileges. As a result of these articles, on 10 April 2008 the Supreme Court decided to rescind the refusal order of 23 February 2005 and initiated criminal proceedings against former Congresswoman Medina Padilla, who was eventually convicted of taking bribes, in an advanced ruling handed down on 26 June 2008, after she confessed to having accepted a promise of payment from the author and other senior officials in exchange for voting in favour of bill No. 267, which provided for presidential re-election.

2.4On 23 June 2004, in response to an application for disciplinary action, the Counsel General’s Office opened an investigation into the author and then exonerated him in an administrative decision of 16 March 2009. Subsequently, in a decision of 20 October 2010, the Counsel General’s Office imposed on the author the administrative penalties of dismissal and 12 years’ general disqualification from the exercise of public functions for having offered former Congressman Teodolino Avendaño official privileges in exchange for his voting in favour of bill No. 267. On 30 June 2016, this decision was declared null and void by the Council of State on the grounds that it was illegal and time-barred.

2.5On 8 May 2008, the Supreme Court sent Ms. Medina Padilla’s case file to the Attorney General’s Office in order that a criminal investigation might be initiated with respect to the author, if the Office considered it appropriate. On 9 May 2008, the Attorney General recused himself from the case. On 28 May 2008, the Supreme Court accepted the Attorney General’s recusal and assigned the case to the Deputy Attorney General. On 23 June 2008, the then Deputy Attorney General took over as head of the criminal investigation concerning the author and other senior officials.

2.6On 19 January 2011, the Deputy Attorney General in turn recused himself from the case. On 6 April 2011, the Supreme Court accepted his recusal and ordered the new Attorney General to continue with the proceedings. On 29 July 2011, the Supreme Court declared null and void the indictment that had been issued with respect to the author by the Deputy Attorney General. Then, on 23 August 2011, the Attorney General declared null and void all measures taken since the end of the investigation, including the indictment, on the grounds that the Deputy Attorney General did not have the authority to make such a decision.

2.7On 7 February 2012, the then Attorney General delegated the investigation, prosecution and participation in the trial to Prosecutor No. 6 assigned to the Supreme Court, in accordance with Legislative Act No. 06 of 24 November 2011.

2.8On 6 March 2012, Prosecutor No. 6 reconfirmed that there was enough evidence to prosecute and charged the author with the single offence of having given or offered a bribe, noting as aggravating circumstances the fact that he had been the Minister of the Interior and Justice and that he had been a joint participant in the offence, and as a mitigating circumstance the fact that he had no criminal record. The case was then referred to the Supreme Court for trial.

2.9A hearing was held on 7 December 2012, during which Prosecutor No. 6 expressed concern about a possible conflict of interest involving the author’s defence lawyer, as she was being investigated in connection with the same facts in separate proceedings and was being put forward as a witness in the author’s trial. On 9 December 2012, the author’s defence lawyer resigned.

2.10On 5 July 2013, the author filed a petition for amparo with the Criminal Cassation Chamber of the Supreme Court and the Attorney General’s Office, invoking his right to due process and his right to be investigated and prosecuted by the competent authority in accordance with the laws in force at the time of the events. On 21 May 2015, the Constitutional Court rejected his petition, arguing that it had not been shown that the alleged irregularity had been brought to the attention of the authority concerned within the appropriate procedural time frame.

2.11On 15 April 2015, the Criminal Cassation Chamber of the Supreme Court, ruling in sole instance, declared the author criminally responsible as “co-perpetrator of a series of offences of a single type, consisting of giving or offering a bribe” and sentenced him to 80 months’ imprisonment, a fine of 167 times the statutory minimum monthly wage and 112 months’ disqualification from the exercise of public rights and duties.

2.12The author claims that domestic remedies have been exhausted because his conviction in sole instance by the Criminal Chamber of the Supreme Court cannot be appealed, as the judgment itself states. He also reports that, on 4 September 2015, he filed a petition for amparo on the grounds that the conviction constituted a violation of his right to due process and his right to be presumed innocent. On 17 September, the Civil Cassation Chamber of the Supreme Court rejected his petition. He challenged this decision on 23 September 2015 and his petition was rejected again on 9 November 2015 by the Labour Chamber of the Supreme Court.

2.13In addition, the author notes that in a judgment of 29 October 2014, the Constitutional Court urged the Congress to introduce comprehensive legislation establishing the right to challenge all convictions, within one year of notification of the judgment. If the Congress did not do so, it would be understood that all convictions could be challenged before the authority that was functionally or hierarchically superior to the one that had handed down the sentence. On 25 April 2016, this potential legal consequence became a reality, as the stipulated time period elapsed and the Congress had not complied with the Constitutional Court’s order. On 28 April 2016, in press release No. 08/16, the Supreme Court emphasized that the consequence arising from the Constitutional Court’s ruling was “unfeasible”, since, as the highest ordinary court and a “unifying court” (órgano de cierre), it was unable to establish a hierarchically superior authority that would review the judgments of its specialized chambers. On the same day, the Constitutional Court handed down Unifying Judgment SU215/16, which established that the right to challenge convictions handed down in sole instance would apply only to cases that had been tried on or after 24 April 2016. On 18 May 2016, the Criminal Cassation Chamber of the Supreme Court declared the author’s appeal against his conviction of 15 April 2015 to be inadmissible, based on the argument set out in the press release.

The complaint

3.1The author claims to be a victim of violations of his rights under articles 2, 3, 9, 14 and 26 of the Covenant.

3.2The author claims that the State party has failed to meet its obligations under articles 2 and 3 of the Covenant, since, on account of his status as a senior official, it has not ensured but rather obstructed and prevented effective access to the rights enshrined in the Covenant, especially the right established in article 14 (5).

3.3Regarding the violation of article 9, the author claims that his freedom was restricted on the basis of a criminal conviction that does not meet the minimum requirements established in article 14 of the Covenant. The author notes, in particular, that this right was violated because he was not granted effective access to house arrest, even though he was entitled to this privilege under domestic law.

3.4The author claims that during the proceedings against him, he was at a legal disadvantage because the investigation and prosecution of his case was delegated to an official without jurisdiction, as a result of the application of a law that had been passed after the commission of the alleged acts. He also maintains that his right to be heard by a competent court, under article 14 (1) of the Covenant, was violated because the only person who had the authority under domestic law to conduct the criminal investigation and prosecution was the Attorney General. Yet, the Attorney General delegated this authority to a subordinate. The author claims, in addition, that he was not allowed to be tried individually and that his right to a fair trial was therefore restricted, in violation of article 14 (1).

3.5The author considers that the State party violated his right to be heard by an independent and impartial tribunal, firstly, because the judges who tried him influenced the decision as to which prosecutor would be in charge of the criminal investigation and secondly, because the judges allowed themselves to be swayed by personal biases and had preconceived ideas about the case. The author claims that the independence of the court was compromised by the fact that the judges referred to the political implications of their decisions in the judgment. He also notes that the reporting judge had served as an adviser to one of the judges who had convicted Ms. Medina Padilla and that Prosecutor No. 6 ended up serving as an assistant judge under one of the judges who tried him. The author claims that the judges who took part as trial judges had already expressed their opinion on the case.

3.6The author considers that his right to be presumed innocent, under article 14 (2), was violated because he was presumed guilty throughout the judicial proceedings, since the conviction of Ms. Medina Padilla implied that he too would be convicted, as demonstrated by the fact that most of the evidence was transferred from other judicial proceedings.

3.7The author claims that the guarantees set out in article 14 (3) were not observed, on the grounds that: (a) he and the other senior officials accused by Ms. Medina Padilla were not given the opportunity to testify at her trial and to counter the allegations made against them, nor were they allowed to contest the evidence that had been transferred from other trials; (b) his new lawyer was not given enough time to look into the case; and (c) he had to deal with the fact that the criminal investigation and the proceedings lasted for almost seven years, as there was an undue delay between the formal charging and the start of the trial.

3.8The author maintains that the State party violated his right to have his conviction reviewed by a higher tribunal, which is enshrined in article 14 (5), because the State party’s domestic legislation stipulates that the Supreme Court is responsible for hearing and ruling on such cases in sole instance, and its rulings cannot be appealed.

3.9Lastly, the author alleges that the double jeopardy rule established in article 14 (7) was violated because the decision handed down in the disciplinary proceedings conducted by the Counsel General’s Office was not taken into account.

3.10With regard to article 26, the author notes that the State party discriminated against him throughout the proceedings, especially by restricting his right to challenge his conviction before a higher court.

State party’s observations on admissibility

4.1In its comments of 20 February 2017, the State party notes that the communication is inadmissible under article 5 (2) of the Optional Protocol because the matter has already been examined under another procedure of international investigation or settlement.

4.2The State party reports that it received two notes verbales – G/SO 215/1 COL 222 of 22 September 2015 and G/SO 215/1 COL 222 of 22 May 2016 – from the Human Rights Council relating to communications submitted by the Centro Democrático (Democratic Centre) party in respect of Colombia, alleging persecution of the party and its members; some of the allegations specifically concerned the author of the present communication. In note verbale G/SO 215/1 COL 222 of 22 August 2016, the Human Rights Council accepted the State party’s comments on the allegations made by the Centro Democrático party and its members, and declared that the allegations seemed to be politically motivated.

4.3The State party also notes that the author has not exhausted the available domestic remedies. On 15 April 2015, the nine judges of the Criminal Cassation Chamber of the Supreme Court declared the author criminally responsible as co-perpetrator of a series of offences of a single type, consisting of giving or offering a bribe. As a civil servant subject to special jurisdictional arrangements under the Constitution, the author was sentenced in sole instance; however, he has not exhausted all the available remedies because, although in his case there can be no appeal to a court of second instance, he can nevertheless apply for the judgment to be reviewed, as stipulated in the Code of Criminal Procedure.

4.4The State party also argues that the Constitutional Court itself has emphasized that: “In the criminal law tradition, review proceedings were designed as a means of protecting the fundamental rights of convicted persons, in view of the nature of the interests that are at stake in this area, particularly the right to personal liberty.”

Author’s comments on the State party’s observations on admissibility

5.1In his submissions of 27 March and 12 June 2017, the author states that his communication meets the admissibility criteria set out in the Optional Protocol and reiterates the allegations made in his initial submission.

5.2In response to the State party’s arguments concerning inadmissibility, the author notes that the Human Rights Council does not hear disputes and its actions are not binding; the procedure in question therefore cannot be considered an international remedy that has been exhausted. The Human Rights Council, the Special Rapporteurs and the United Nations working groups are not considered quasi-judicial international bodies; their procedures therefore cannot be invoked as grounds for inadmissibility.

5.3The author reiterates his allegations that the criminal proceedings against him constituted a violation of article 14 (5) of the Covenant. The remedies mentioned by the State party do not provide for a substantive review of the conviction and sentence. The author notes that the law on criminal procedure invoked by the State party is not the law that was applied in his case. Judicial reviews are an extraordinary remedy and, as such, do not provide for decisions to be challenged during the trial but rather only once the trial is over and new evidence is identified, there is a change in case law, or some other new point comes to light that justifies a review of the deliberations but does not constitute a challenge to definitive judgments already handed down. Moreover, reviews of this kind are conducted by the same court that handed down the ruling in sole instance; they therefore cannot be considered an appropriate remedy.

5.4The author points out that the Supreme Court’s judgment itself states that “no appeal is possible”. Consequently, there is no appropriate and effective remedy that provides for a review of the conviction and sentence that were handed down by the Court in sole instance. The remedy mentioned by the State party is neither appropriate nor effective. The author reiterates that the rules governing the trial of senior officials subject to special jurisdictional arrangements by the Supreme Court in sole instance, which exclude the possibility of the conviction and sentence being reviewed by a higher court, violate article 26 of the Covenant by denying this right to certain public officials.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

6.2The Committee notes the State party’s argument that the Human Rights Council accepted the State party’s comments on the allegations made by the Centro Democrático party and its members, and declared that the allegations seemed to be politically motivated. The Committee also notes the author’s argument that, since the Human Rights Council does not hear disputes and its actions are not binding, the procedure in question cannot be considered an international remedy that has been exhausted. The Committee notes that the Human Rights Council is not a body that adjudicates cases or settles disputes within the meaning of article 5 (2) (a) of the Optional Protocol and that, in any case, the procedure in question has reportedly been concluded. The Committee therefore concludes that there is no obstacle to the admissibility of the communication under article 5 (2) (a).

6.3The Committee notes the State party’s argument that the author has not exhausted all the available domestic remedies because he could have challenged the Supreme Court’s conviction of 15 April 2015 by requesting a judicial review. The Committee also notes the author’s claims that this remedy was neither appropriate nor effective and that the Supreme Court’s judgment itself stated that “no appeal” was possible. The Committee notes that the State party has not explained how the remedies mentioned in its observations would be effective in the author’s case, in other words, how they would allow for a review of his conviction and sentence. Consequently, the Committee considers that the requirements set out in article 5 (2) (b) of the Optional Protocol have been met.

6.4The Committee notes that the author alleges violations of articles 2, 3 and 26 of the Covenant but fails to put forward any arguments that would demonstrate how he was treated differently from other persons in similar situations; it therefore declares these claims inadmissible under article 2 of the Optional Protocol for lack of substantiation.

6.5The Committee notes the author’s claims under article 9 of the Covenant that his freedom was restricted; that he was forced to serve a sentence that was arbitrary because both the classification of the offence and the penalty imposed were inappropriate; and that he was not granted effective access to house arrest despite being entitled to this privilege as a former senior official. However, the Committee notes that these claims were presented in general terms, without sufficient justification. The Committee therefore concludes that the author has not sufficiently substantiated these claims for the purposes of admissibility and declares them inadmissible under article 2 of the Optional Protocol.

6.6The Committee notes the author’s allegations that the State party violated his right to equality before the courts and before the law and his right to a fair trial, under article 14 (1) of the Covenant, since there was no equality of arms; that a law passed after the fact was applied, which led to a violation of his right to the natural judge as he was charged by a prosecutor without jurisdiction; that the judges who tried him had already formed an opinion on his case; and that the prosecutor who charged him ended up being his judge. The Committee also notes the State party’s arguments that the proceedings against the author were the type of criminal proceedings that are brought against senior officials subject to special jurisdictional arrangements; that there are no grounds on which the authority or impartiality of the Supreme Court may be questioned; and that the charges were brought by the competent prosecutor. The Committee notes that the author has not explained how his right to equality before the courts was violated or how the appointment of the prosecutor in question resulted in a violation of his right to be heard by a competent, independent and impartial tribunal, bearing in mind that he could have brought those facts to the attention of the courts. In view of the foregoing, the Committee concludes that the author has not sufficiently substantiated these claims for the purposes of admissibility and declares them inadmissible under article 2 of the Optional Protocol.

6.7The Committee notes the author’s claims that his right to be presumed innocent and his right to contest the evidence were violated; that he did not have adequate time and facilities for the preparation of his defence, because the authorities denied him access to evidence; that the Supreme Court did not admit evidence that was essential for his defence; and that he was not tried within a reasonable time. With regard to the author’s claims relating to the examination of evidence by the Supreme Court, the Committee recalls its jurisprudence to the effect that it is for the organs of States parties to evaluate the facts and the evidence in each case, or the application of domestic legislation, unless it can be shown that this evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice. In the present case, the Committee notes that the author has not specified the nature of the evidence that was essential for his defence but was not admitted, or the nature of the evidence to which he was denied access, and it is not possible to deduce this information from the Supreme Court judgment, which is available to the Committee. Accordingly, the Committee concludes that the author has not sufficiently substantiated his claim that his rights under article 14 (2) and (3) (a)–(c) and (e) of the Covenant were violated and declares this part of the communication inadmissible under article 2 of the Optional Protocol.

6.8The Committee notes the author’s claim under article 14 (7) of the Covenant that he was tried twice for the same acts. The Committee notes, however, that from the information provided, it is not possible to conclude that the exoneration of the author by the Counsel General’s Office and the administrative penalty subsequently imposed on him by the same authority, within the framework of disciplinary administrative proceedings, were equivalent to an acquittal and a criminal penalty, respectively. The Committee recalls that the guarantee set forth in this provision of the Covenant applies to criminal offences only and not to disciplinary measures that do not amount to a sentence for a criminal offence within the meaning of article 14 of the Covenant. Accordingly, the Committee considers that this claim has not been sufficiently substantiated for the purposes of admissibility and declares it inadmissible under article 2 of the Optional Protocol.

6.9The Committee considers, however, that the author has sufficiently substantiated his claims under article 14 (5) of the Covenant regarding the fact that he was tried in sole instance and was unable to have his conviction and sentence reviewed. The Committee therefore finds the author’s claims under article 14 (5) of the Covenant to be admissible and proceeds to examine them on the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the parties, as required under article 5 (1) of the Optional Protocol.

7.2The Committee notes the author’s claim that the criminal proceedings against him constituted a violation of article 14 (5) of the Covenant, since there was no effective mechanism whereby he could appeal the judgment and request that the conviction and sentence handed down by the Criminal Chamber of the Supreme Court on 15 April 2015 be reviewed by a higher tribunal.

7.3The Committee also notes the State party’s arguments that, firstly, the constitutional case law in force at the time of the trial had authorized the trial of senior officials by the Supreme Court as “the best way to ensure due process” and had justified restricting such persons to a hearing at second instance on the grounds that they were tried by the highest court, which was collegiate in nature and offered advantages such as procedural economy and the avoidance of any errors that might be committed by lower judges or courts; and, secondly, that the trial of such persons, as senior officials subject to special jurisdictional arrangements, by the highest criminal court was in itself a way of fully ensuring due process.

7.4The Committee recalls that article 14 (5) of the Covenant establishes that everyone convicted of a crime has the right to have his or her conviction and sentence reviewed by a higher tribunal according to law. The Committee recalls that the phrase “according to law” is not intended to mean that the very existence of a right to review should be left to the discretion of the States parties. Although a State party’s legislation may provide in certain circumstances for the trial of an individual, because of his or her position, by a higher court than would normally be the case, this circumstance alone cannot impair the defendant’s right to have his or her conviction and sentence reviewed by a court. The Committee also notes that, although the Constitutional Court urged the Congress to introduce comprehensive legislation establishing the right to challenge all convictions, at the time the Congress did not comply with the Constitutional Court’s order. In addition, on 28 April 2016, the Supreme Court emphasized in a press release that the consequence arising from the Constitutional Court’s ruling was “unfeasible”, since, as the highest ordinary court and a “unifying court” (órgano de cierre), it was unable to establish a hierarchically superior authority that would review the judgments of its specialized chambers. Later, on 18 May 2016, the Criminal Cassation Chamber of the Supreme Court declared the author’s appeal against his conviction of 15 April 2015 to be inadmissible, based on the arguments set out in the press release. The Committee also takes note of Unifying Judgment SU215/16 of 28 April 2016 of the Constitutional Court, which established that the right to challenge convictions handed down in sole instance would apply only to cases that had been tried on or after 24 April 2016 and resulted in the author’s appeal to the Criminal Cassation Chamber of the Supreme Court being found inadmissible, because his sentence had been handed down before that date, on 15 April 2015. In the present case, the Committee notes that there was no available effective remedy whereby the author could request that his conviction and sentence be reviewed by a higher court. Accordingly, the Committee finds that the State party violated the author’s rights under article 14 (5) of the Covenant.

8.The Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14 (5) of the Covenant.

9.In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires that full reparation be made to individuals whose rights have been violated. The State party is under an obligation to provide appropriate compensation to the author and to take all steps necessary to prevent the occurrence of similar violations in the future. In this regard, the Committee notes that on 18 January 2018, through Legislative Act No. 01 of 2018, the legislature amended the Constitution to guarantee the right to a second hearing in criminal cases for senior officials; the Committee considers this measure to be a guarantee of non-repetition.

10.Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory or subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when a violation has been established, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated.