Supreme Court orders the Government to guarantee peaceful protest – Courts – Justice

In a landmark ruling in which he gives a series of orders to protect peaceful protests, the Civil Cassation Chamber of the Supreme Court of Justice accepted a tutela presented by several citizens They consider that on the part of the Government and Esmad there have been “systematic attacks” that threaten their right to demonstrate and that restrict their ability to protest and question the Government, without violence.

In this 171-page decision, the high court orders the Government of Iván Duque to deploy various measures such as restructuring the use of force, suspending the 12-gauge shotguns used by the Esmad, and to the Ministry of Defense offer public apologies for excesses in last year’s National Strike.

Thus, the Court protected the rights to freedom of expression and to peaceful and non-violent protest, and censured “all violent and irrational ways of formulating claims for the protection of rights”, calling for coexistence, tolerance and non-violence.

(Also read: ‘The political conditions for a Police reform are not in place’).

In this ruling the Court could not take into account the events of the past 9 and 10 Septembere – days in which alleged indiscriminate shooting by the Police at protesters was reported – as these situations were not part of the initial protection that was raised before the high court.

The Civil Cassation Chamber issued these orders when resolving a challenge against a guardianship ruling in which several citizens affirmed that the Government and the Public Force were limiting their right to demonstrate and protest. In its protection, the citizens demanded the protection of their rights to peaceful protest, citizen participation, life, personal integrity, due process, freedoms of expression, assembly, movement and movement allegedly threatened by the Presidency of the Republic, the Ministry of the Interior, the National Police, the Ministry of Defense, among others.

According to his tutelage, since 2005, in the face of peaceful protests and demonstrations, the State has displayed constant, repetitive and persistent behaviors to “undermine, discourage and weaken his right to express himself without fear.”

By reviewing the arguments, evidence, and elements provided by the citizens who raised the guardianship -among which are students, teachers, opinion leaders, among others- The Court found that the Government and the Police have violated the rights to free and peaceful protest, given the arbitrary and violent actions to prevent demonstrations. Also, by stigmatizing those who “in a moderate way” come out to question, refute and criticize the government’s work.

(Also: they send to jail policemen linked to the murder of Javier Ordóñez).

In addition, the high court gave them the reason that the Government has proceeded disproportionately with the use of lethal and chemical weapons, and it has arbitrarily, illegally or abusively detained those who exercise their right to demonstrate. It has also carried out attacks against freedom of expression and of the press in these demonstrations.

To reach this conclusion, the high court assessed that there have been a plurality of victims of aggression in the midst of protests, as well as a list of attacks on demonstrations that are not isolated. Thus, based on international Human Rights Law, and International Criminal Law, He said that in Colombia there is evidence of a systematic repression of peaceful protests.

The evidence of the systematic repression of the protest

To assess this systematicity, the high court took into account, for example, a video recorded in Barranquilla in October 2019 in which people from the Army fired shots in the air with firearms heading towards a sector in which a tank fired jets of water at protesters. In that event, says the Court, it was not found why the presence of the military was essential to “control an eminently civil act.”

Also valued videos of protests in Bogotá, Cali and Medellín during and after November 21, 2019, when the so-called ‘National Strike’ was experienced in the country. In these videos, the Court says, one can see an “impulsive tendency of Esmad towards the protesters and, even, in some cases against people outside the protests”, going against the administrative act of June 23, 2017 that regulated the use of force, the use of less lethal weapons, ammunition and devices.

(Read also: Covering protests around the world, 125 journalists have been attacked).

In Cali, for example, a member of the Public Force is seen riding his horse and beating a passerby in the head. In Bogotá, says the Court, another video shows a woman with a slim build struggling with a member of the Esmad, since previously the uniformed man had knocked down a person she tried to defend. For this reason, the Court says, she received a kick in the face that grave, “which, clearly, is evident disproportion of the attack on a subject of special protection, traditionally and historically, subjected to mistreatment.”

Another video shows some citizens near the Universidad de los Andes who are attacked, even when they are already on the ground, by a significant number of policemen on motorcycles, “for no apparent reason”, the Court affirms. One of these young people was arrested and taken to the Candelaria Police Station, despite the fact that for the high court there were no legitimate reasons to drive the student.

(Read also: There are 77 investigations against 101 police officers for shooting in protests).

This, affirms the Court, can generate fear for those who wish to make use of their right to express themselves and meet in public, since “hitting a person and then putting them in a police vehicle for no reason, causes prevention of going out to the street to demonstrate “.

The importance of protest and its limits

According to the Court’s ruling, the renunciation of constructive criticism, the right to rationally dissent, to question, “is the propitious scenario for dictatorships to flourish and, with it, the massive violation of human rights.”

The high court also affirmed that the Constitution allows public and peaceful demonstrations, and only the law, therefore Congress, is the one that can regulate -through Statutory Law- what are the limits of this fundamental right. This means, says the Court, that the Government cannot claim the right to protest.

Regarding the possibility of the peaceful protest of blocking means of transport to attract the attention of the State or make its message visible, the Court said that according to the jurisprudence of the Constitutional Court, in these cases what is prohibited is not to stop a vehicle or the service transportation during protests, rather, what is not allowed is to “eliminate any possible condition for circulation” of the public transport service.

The Court also assured that Esmad’s intervention “is the last ratio” To reestablish the conditions of coexistence, since in order to use it, dialogue or other alternatives other than force must first be exhausted. That means, says the Court, that Esmad cannot be used to intervene in street demonstrations that are not violent or threatening.

Court orders

The Court ordered the President of the Republic, the Ministry of Defense, the Police, among other authorities involved in the management of demonstrations, “to adopt actions to guarantee the exercise of the right to peaceful and non-destructive protest.”

Thus, the Government will have to implement a protocol of preventive actions that will be called “Statute of reaction, use and verification of the legitimate force of the State and protection of the right to peaceful citizen protest.”

The court also ordered to suspend the 12-gauge shotguns used by Esmad. This weapon was the one used in the demonstrations in which the young Dilan Cruz died, last year, when he received a projectile fired by an Esmad agent.

Furthermore, he told the government that it must apply neutrality and not stigmatize those who protest, setting up a working group to restructure the guidelines on the use of force.

The high court gave 48 hours to the Presidency, Ministry of Defense, Ministry of the Interior, Police, among others, to publish this ruling on their web pages and social networks, until the Congress of the Republic issues a statutory law that regulates mayors and limitations on the right to peaceful protest.

He also gave 48 hours to the Ministry of Defense to offer an apology for the excesses of the Public Force, especially for those “committed by the Mobile Anti-riot Squads of the National Police (Esmad) during the protests that took place in the country from 21 November 2019, “the date on which a national protest mobilization began against the government of Iván Duque. Those apologies should also be broadcast on radio, television and social media.

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