[The authors allege various violations of article 14, paragraph 1, of the Covenant in relation to the impartiality of the tribunals that convicted them, in particular the fact that they were ad hoc tribunals. The draft recommendation proposes that the communication should be declared inadmissible for lack of substantiation.]

Subject matter:	Violations of due process in the proceeding that led to the authors’ conviction
Procedural issues:	Lack of substantiation of the allegations
Substantive issue:	Right to a hearing before an impartial tribunal
Article of the Covenant:	14, paragraph 1
Article of the Optional Protocol:	2

The Working Group of the Human Rights Committee recommends that the Committee should adopt the text annexed hereto as a decision of the Committee on admissibility.

[Annex]

Annex

Decision of the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights (ninety-eighth session)

concerning

** The following members of the Working Group of the Committee participated in the examination of the present communication: Mr. Abdelfattah Amor, Mr. Yuji Iwasawa, Ms. Iulia Antoanella Motoc, Mr. Michael O’Flaherty, Mr. Rafael Rivas Posada, Mr. Fabian Omar Salvioli and Mr. Krister Thelin.

Communication No. 1616/2007 **

Submitted by:	Hernando Manzano, Maria Cristina Ocampo de Manzano and Belisario Deyongh Manzano (represented by counsel, Carlos Julio Manzano)
Alleged victims:	The authors
State party:	Colombia
Date of communication:	3 August 2007 (initial submission)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on … March 2010,

Adopts the following:

Decision on admissibility

[Note: Explanatory footnotes in square brackets will be removed from the text of the final decision.]

1.The authors of the communication, dated 18 July 2007, are Hernando Manzano, Maria Cristina Ocampo de Manzano and Belisario Deyongh Manzano, Colombian citizens, who allege that their rights under article 14, paragraph 1, of the Covenant have been violated by Colombia. The Optional Protocol entered into force for the State party on 23 March 1976. The authors are represented by counsel, Carlos Julio Manzano.

The facts as submitted by the authors

2.1Mr. Manzano and Mr. Deyongh had had a law office in Barranquilla since 1984. Their clientele included employees of Puertos de Colombia (Colpuertos), a Government enterprise responsible for all port activities in the country and owner of all assets used for those activities. By Act No. 01 (1991) the State decided to sell the enterprise’s assets to private-sector buyers, reserving payment of outstanding debts chargeable to the national budget. Under Decree No. 36 (1992) the Government established the Social Liability Fund for the Liquidation of Puertos de Colombia (Foncolpuertos) which would service all Colpuertos’ outstanding debts. Act No. 01 of 1991 envisaged the possibility that the private port corporations created to buy the port assets would help pay those debts, but that never occurred.

2.2Foncolpuertos began operations on 1 January 1993, at which time the authors’ law office had approximately 100 clients receiving a pension from Colpuertos who had approached the office because there had begun to be delays in the payment of their pensions. After Foncolpuertos assumed responsibility for the full servicing of debts left by Colpuertos, payments became increasingly late, forcing thousands of pensioners to hire lawyers. By 1998 Mr. Manzano’s law office had some 5,000 clients who freely and spontaneously granted it authority to represent them before the labour tribunals to seek payment of the months of pension to which they were legally entitled. By that time payment of Foncolpuertos’ debt was being charged entirely to the national budget, with the port corporations contributing nothing; that created a major fiscal problem. Claims were heard by the relevant labour courts and tribunals, with amicable settlements being reached, as appropriate, through the Labour Inspectorates under the Ministry of Social Security.

2.3 The authors contend that in the light of the resulting budget deficit, and with a view to stopping the payment of pensions, the State launched a campaign of indiscriminate persecution against any persons who in one way or another were defending the pensioners. At the beginning of 1999 Senator Jaime Vargas, a political opponent of the Manzano family, sent his assistant to the Barranquilla labour courts to study the cases filed by Mr. Manzano. Following that visit the prosecutor’s office undertook an unjustified preliminary investigation of the authors’ business dealings. In August 1999, during an official session of Parliament, Senator Vargas read out a list of individuals seeking payment of overdue monthly pension amounts from Foncolpuertos, a list that included judges, court clerks, inspectors of the Labour Office, directors of the Fund and lawyers, and asked the Attorney-General to investigate. Hernando Manzano’s name was on that list. On 13 October 1999 the prosecutor’s office summoned him to explain alleged irregularities found in the context of the proceeding that had been launched against him on 14 April 1999. Despite his explanations, the prosecutor’s office brought criminal charges against him. At the same time a group of his clients lodged complaints against him with the regular criminal court demanding payment of amounts greater than those agreed to when contracting his services. Those complaints were settled in the author’s favour.

2.4The individuals on the “Vargas list” were not tried in the regular courts; the High Council of the Judiciary, under judgment No. 1799 of 14 May 2003, established a special judicial body solely for criminal proceedings concerning acts related to the liquidation of Colpuertos and Foncolpuertos. That body was made up of two criminal circuit courts and one district high court, all located in Bogotá. Judgment No. 1799 states that it is issued pursuant to article 63 of Act No. 270 (1996) on Organization of the Administration of Justice, which deals with measures to reduce backlogs in the court system. The authors’ case should have been assigned to the criminal court in Barranquilla, given that the alleged events occurred and the accused lived in that city. Nevertheless, the case was heard by the first of the courts mentioned above, which on 24 September 2004 found the authors guilty of being accessories in the offence of aggravated fraud and principals in the offences of peculation by appropriation for the benefit of third parties, of perversion of the course of justice, and providing false information in and forging of a public document on the part of an official. They were sentenced to 150 months’ imprisonment, deprivation of their rights and public duties for 10 years, and a fine. The authors lodged an appeal, which was heard by the High Court of the Judicial District of Bogotá, Criminal Chamber, for the backlog in Foncolpuertos cases, on 31 May 2005. The Court overturned the guilty verdict for the offence of aggravated fraud. For perpetrating and being criminally responsible for the offences of peculation by appropriation for the benefit of third parties, perversion of the course of justice, and providing false information in and forging of a public document on the part of an official, the Court reduced the sentence to eight years and one month’s imprisonment, deprivation of rights and public duties for a period equivalent to that of the main penalty, and a fine.

2.5The authors lodged an appeal in cassation with the Supreme Court which, by decision dated 27 March 2007, declared the criminal proceedings relating to fraud, perversion of the course of justice and providing false information in and forging of a public document on the part of an official to be time-barred. The Court did not however declare the proceeding for peculation to be time-barred. The Court reviewed the authors’ arguments for cassation, including the contention that the judicial body’s decision was invalid because it did not have jurisdiction owing to alleged violation of the principle of the natural judge (“juez natural”), and denied the appeal by decision dated 9 April 2007. With regard to the judicial body’s alleged lack of jurisdiction, the Supreme Court stated inter alia that the appellants had not demonstrated how their guarantees of due process had been effectively restricted or how the rules for their trial had been altered to the detriment of their rights, and confirmed that the establishment of the judicial bodies in question by the Administrative Chamber of the High Council of the Judiciary had its legal basis in articles 25 and 63 of Act No. 270 (1996).

2.6The authors also filed an application for reconsideration of that decision, asking that the criminal proceeding for peculation be declared time-barred. The Supreme Court denied that application by decision dated 20 April 2007.

2.7The authors claim that as a result of the trial they received threats from guerrilla groups and were forced to flee the country. In execution of their sentence, all their assets were seized.

The complaint

3.The authors allege that they are the victims of a violation of the right to due process under article 14, paragraph 1, of the Covenant, for the following reasons:

(1)Their case was dealt with by a court created especially in 2003 to try the acts of which they had been accused and showing partiality, since the judges appointed accepted the unfounded charges laid by the prosecution. That is a violation of article 6 of the Code of Criminal Procedure according to which no one may be tried except by the competent judge or tribunal already existing at the time when the alleged act was committed. Those bodies were established on a temporary basis, for four months, yet they are still functioning. The authors state that they filed a criminal complaint in that regard but that their complaint was never taken up.

(2)The alleged acts do not constitute the offence of peculation for which they were convicted. Peculation is defined in the Criminal Code of Colombia as an offence committed by a “public official who appropriates for his own profit or that of a third party assets belonging to the State or to enterprises or institutions in which the State has a stake, or parafiscal assets or funds, or assets belonging to individuals the administration or custody of which have been entrusted to the official concerned by virtue of his functions”. According to the authors, two fundamental elements in that offence did not exist in their case: the status of public official and profiting. The authors were not public officials but merely practising lawyers who had in fact filed suit against the State. Their judicial function was simply to demand payment on behalf of a group of retirees of work-related debts owed but not paid by the State. As for “profiting”, throughout the trial both the prosecution and the judges acknowledged that the fees charged by the author to his clients were completely legal, which means that there is no basis for the allegation of profiting.

(3)There were unjustified delays attributable to the legal officials responsible for the case and, as a result, the time limit for criminal proceedings expired on 22 April 2006. Nevertheless the Supreme Court, in rejecting the appeal in cassation by decision dated 20 April 2007, stated only that the time limit had expired for part of the appeal, without addressing the prescription period for the offence of peculation.

(4)There were numerous errors in the weighing of evidence. In particular, the prosecution accused the authors of having received sums of money owed by the State on behalf of clients who allegedly had not granted them authority to do so. The authors maintain that they had copies of some but not all of those powers of attorney because they were removed by the prosecution following the search of the authors’ law office. In order to prove that they did have proxies from their clients the authors requested a judicial audit of the clients’ records in Foncolpuertos. However, due to negligence on the part of the investigating judges, that piece of evidence was replaced by a request that Foncolpuertos certify that they existed. The requested certification was never provided by the latter and the judge did not execute the authors’ request. Given that lack of evidence, the judgement was based on the false claim that the powers of attorney did not exist, which led to a denial of justice. The few clients whom the judges agreed to question, at the insistence of the authors, confirmed that they had indeed given proxies to the authors.

State party’s observations on admissibility and merits

4.1On 16 January 2008 the State party submitted a note verbale containing observations on the admissibility of the communication, and arguing that it should be declared inadmissible.

4.2The State party points out that the communication was submitted by Carlos Julio Manzano on behalf of his brother, pursuant to the authority granted to him in the latter’s full power of attorney, as well as on behalf of his mother, Maria Cristina Ocampo de Manzano, and his cousin Belisario Deyongh Manzano. He does not, however, provide any power of attorney from the latter two, supposedly because their whereabouts are unknown. The State party argues that the communication should be declared inadmissible under article 1 of the Optional Protocol because Carlos Julio Manzano is not authorized to act on behalf of those two persons and does not submit any proof as to why the alleged victims are unable to file a complaint on their own behalf.

4.3The State party argues that bodies to relieve backlogs in the courts are established with a view to ensuring prompt, effective and efficient justice. They are temporary because they are created to resolve the problem of backlogs in judicial proceedings and thereby to guarantee the efficient administration of justice. Backlog courts (“juzgados de descongestión”) have a legal basis under article 63 of the Act on Organization of the Administration of Justice (1996), which grants the Administrative Chamber of the High Council of the Judiciary the power to appoint on a temporary basis special substantiating or trial judges or magistrates. Furthermore, article 257, subparagraph 2, of the Constitution provides that the role of the High Council of the Judiciary is to create, abolish, merge or transfer responsibilities within the justice system.

4.4In the current case backlog courts (“juzgados de descongestión”) were set up to address the paralysis in proceedings before the circuit criminal courts across the country arising out of offences committed by Foncolpuertos and bearing in mind the great significance of the case, involving millions in committed State resources, which led to the investigations, and the importance of ensuring justice was served properly and promptly. The First Chamber of the Council of State, by decision dated 20 May 2004 on the petition for annulment of judgements of the Administrative Chamber establishing the backlog courts (“juzgados de descongestión”), found that the establishment of those courts was based on the need to relieve the backlog in the labour tribunals of the Barranquilla, Cartagena, Santa Marta, Buenaventura, Tumaco and Bogotá Judicial Circuits, as well as the Labour Chamber of the Barranquilla Judicial District. According to the First Chamber it was the higher law, article 63 of the 1966 Act, and not the judgements being challenged, that provided the legal basis for modifying the rules of jurisdiction for the purpose of reducing the backlog in the court system. The constitutionality of that provision was reviewed and it was declared to be valid by decision C-037 of 1996.

4.5The State party also argues that the communication should be declared inadmissible under article 2 of the Optional Protocol because the authors want the Committee to act as a fourth instance and review facts and evidence already considered by the domestic courts with a view to preventing execution of the criminal judgement and payment of the fine through the sale of their property.

4.6As for the merits, the State party, in a letter dated 20 May 2008, also referred to the authors’ allegations concerning the partiality of the judges. According to the State party, they adduce no evidence in support of their contentions, nor did they ever raise that matter before the domestic courts. The proceedings were fully in conformity with judicial guarantees and even resulted in the criminal charges relating to aggravated fraud, perversion of the course of justice and providing false information in and forging of a public document on the part of an official being declared to be time-barred.

4.7According to the authors there was a violation of article 14 because unjustified delays in the proceedings led to prescription of the crimes but the Supreme Court only declared time-barred the charges of forgery and perversion of the course of justice, not that of peculation. The State party argues that the guarantee enshrined in article 14 is complemented by the guarantee in article 9 relating to a detainee’s right to be tried within a reasonable time or released. Mr. Manzano and Mr. Deyongh were never detained and are in fact fugitives from Colombian justice, and may not therefore claim to have been affected by undue delay in handing down the criminal judgement, especially in the light of the prescription of the criminal charges relating to aggravated fraud, prevention of the course of justice and providing false information in and forging of a public document on the part of an official, which enabled the accused to clarify their legal situation and absolved them of those charges. In conclusion, the State party affirms that the authors’ arguments are without merit and that there was no violation of the Covenant.

Authors’ comments on the observations of the State party

5.1In their comments dated 21 October 2008 the authors argue that the communication should be deemed admissible. With regard to the issue of counsel’s lack of authority to represent Maria Cristina Ocampo de Manzano and Belisario Deyongh Manzano, counsel submitted to the Committee documents signed by each one empowering him to represent them before the Committee and expressing approval of steps already undertaken.

5.2With regard to the legality of the judicial bodies created to deal with the Foncolpuertos-related cases, the authors argue that the Act on Organization of the Administration of Justice under which they were established violates the principle of the competent judge and is therefore contrary to article 14 of the Covenant. Furthermore, article 11 of the Code of Criminal Procedure, in establishing the principle of the natural judge (“juez natural”), states that “no one may be tried except by the competent judge or tribunal already existing at the time when the alleged act was committed”. They also note that the press, which did great damage to the interests of justice, was not excluded from all the proceedings. The media labelled the accused guilty in advance, and as a result judges were sought who would accept the charges filed by the prosecution. Since none were found, a special court was created that would heed the calls for guilty verdicts from some political circles and from the press.

5.3The authors resided in the city of Barranquilla and the facts under investigation occurred there. It would therefore have been natural for the case to be tried by the Barranquilla circuit courts in first instance and the High Court for any appeal. Despite that fact, the cases were heard by judicial bodies in Bogotá, some 1,000 km from Barranquilla. That was a violation of articles 85 to 88 of the Code of Criminal Procedure, which set out norms for a change of venue in criminal proceedings.

5.4According to the authors, article 63 of Act No. 270 does not allow the Administrative Chamber of the High Council of the Judiciary to transfer proceedings from one city to another, in disregard of the principle of territorial jurisdiction. Nor does it permit the Chamber to appoint judges and create tribunals after the facts under investigation occurred. The Council may only appoint judges, not create tribunals, and only on a temporary basis and within the territory of jurisdiction of the natural judge (“juez natural”). They argue that, under Chamber of Representatives Bill No. 286 (2007) and Senate Bill No. 23 (2006), amending Act No. 270 (1996) on Organization of the Administration of Justice, it was sought to modify the Code of Criminal Procedure and the Criminal Code so as to establish new rules of competence with regard to the venue for proceedings, which would henceforth be the responsibility of the High Council of the Judiciary and the Sectional Councils of the Judiciary, instead of the Supreme Court and the Judicial District High Courts. The authors see this as proof that, prior to those bills, the High Council of the Judiciary had no such competence. They point out that in a judgement dated 15 July 2008 the Constitutional Court declared the proposed amendment unconstitutional.

5.5As for the merits, the authors refer, inter alia, to the 20 May 2004 decision of the First Chamber of the Council of State referred to by the State party, according to which the establishment of the courts in question was based on the need to relieve the backlog in the labour tribunals of the Barranquilla, Cartagena, Santa Marta, Buenaventura, Tumaco and Bogotá Judicial Circuits, as well as the Labour Chamber of the Barranquilla Judicial District. According to the authors, that decision applies only to the backlog in those labour tribunals and cannot legitimize the appointment of backlog judges (“juzgados de descongestión”) in Bogotá and its District High Court.

5.6The authors argue that in its observations the State party does not respond to the allegations in their submission to the Committee regarding violations of the right to due process in the form of irregularities in the gathering of evidence.

5.7The authors reject the State party’s claim that they were never detained. Hernando Manzano was detained from 13 October 1999 to 24 July 2001; Belisario Deyongh was detained from February 2000 to July 2001. Maria Cristina Ocampo was not detained because of her age (74 at the time).

Decision on admissibility

6.1Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

6.2As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

6.3The Committee takes note of the State party’s observation that the authors’ counsel did not provide any power of attorney from two of them and that the communication should therefore be considered inadmissible under article 1 of the Optional Protocol. The Committee observes that while the respective powers of attorney were not submitted initially, they were provided to the Committee subsequently. It therefore finds that the State party’s argument for inadmissibility is not relevant.

6.4The authors allege that they were victims of violations of their right to due process because the judicial bodies that tried them committed irregularities in the weighing of evidence; convicted them of the crime of peculation, when the definition given in the Criminal Code does not correspond to the acts of which they were accused; and erred in calculating the prescription period for that crime. The Committee observes that these claims relate to the evaluation of the facts and evidence by the courts of the State party. The Committee recalls its jurisprudence according to which it is incumbent on the courts of the State party to review facts and evidence in each case, or the application of domestic legislation in a particular case, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice. The Committee has studied the materials submitted by the parties, including the guilty verdict of the court of first instance and the decisions on the remedies of appeal and cassation exercised by the authors, which deal with the complaints lodged with the Committee by the authors. The Committee is of the opinion that those materials do not indicate that those proceedings were flawed as alleged. The Committee therefore finds that the authors have not sufficiently substantiated their complaints of a violation of article 14, paragraph 1, and that the communication is therefore inadmissible under article 2 of the Optional Protocol.

6.5The authors further allege that they were tried by a court and a tribunal that did not meet the requirement of impartiality, because they were established in an ad hoc manner and in violation of the natural judge (“juez natural”) principle. The Committee is of the opinion that article 14 does not necessarily prohibit the creation of criminal courts with special jurisdiction if that is permitted under domestic legislation and those courts operate in conformity with the guarantees laid down in article 14. With respect to the first of these requirements, the Committee observes that the Supreme Court, after hearing the authors’ appeal in cassation, concluded that the creation of those bodies had its legal basis in the Act on Organization of the Administration of Justice. The Committee is of the opinion that its role is not to evaluate the interpretation of domestic legislation by national courts. Regarding the second requirement, the Committee is of the opinion that the fact that the judicial bodies were created specifically for proceedings relating to Foncolpuertos does not mean that they operated with partiality. Other elements are necessary to prove partiality, the existence of which cannot be deduced from the materials available to the Committee. The Committee therefore finds that the authors have not sufficiently substantiated their allegation in that regard and that that part of the communication is also inadmissible under article 2 of the Optional Protocol.

7.The Human Rights Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That this decision should be transmitted to the State party, to the authors and to counsel.

[Adopted in English, French and Spanish, the Spanish text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]