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conflict regarding competence between the military criminal and regular criminal
venues in this case, it pointed out that:
[…] if a person’s sphere of competence includes security duties regarding movement of
persons or protection of certain legal rights, it is not significant for the decision on
attribution of liability to establish whether that person breached those duties by means
of an active conduct […] or due to an omission […]. In a grave violation of fundamental
rights, the conduct of the guarantor who actively intervenes in taking over a town is
similar to that of one who does not provide security, thus leaving the inhabitants
absolutely defenseless. […]
[…] the Military Forces, as well as the National Police, are in a position of guarantors
derived from their obligation to fulfill non-renounceable duties in a constitutional State.
Article 217 of the Constitution establishes that it is a function of the Military Forces to
ensure constitutional order. Said order is not restricted to protection of the democratic
structure of the country, but also encompasses the duty to actively and effectively
participate (P.C. Art. 209) in the defense of the constitutional rights of the associated
members. The State has the non-renounceable duty to protect those legal rights.
With regard to said duty, the Armed Forces play a crucial role. An essential part of
respect for constitutional rights is based on the obligation of the State to protect those
entitled to said rights against violation of those rights by private individuals. Defense of
these rights is not restricted to the State abstaining from abridging them. As stated
above, it entails confronting those who breach said rights. […]
The facts known as the Mapiripán Massacre are one of the saddest moments of
Colombian history. The situation of terror suffered by the population of Mapiripán, the
atrocious acts of general and individual torture, degradation of the human condition and
murders, are well-known by public opinion. The background to this judgment […]
synthetically explains –and also adequately describes- the conducts carried out in said
part of the country, classified as acts totally foreign to any minimum feeling of
humanity.
The accounts show the extreme gravity of the facts, absolutely degrading the principle
of human dignity and openly contrary to the Constitution, in addition to the extremely
clear violation of the basic constitutional rights of the associated members. These
conducts, in accordance with the jurisprudence discussed above, can only be
investigated by regular courts, as they are in no way related to the mission of the
members of the Military Forces. If the two members of the Security Forces were in the
position of guarantors, which obligated them to protect the population, when they are
charged with grave human rights violations by omission (committed by omission) clearly
it is a behavior that is unrelated to their service role.
The above considerations should have sufficed to decide that the Attorney General’s
Office should retain competence to investigate the liability of Brigadier General
Uscátegui and of Lieutenant Colonel Orozco. However, these two officers did not
participate directly in said barbarous acts, but rather were linked to the criminal
proceeding due to alleged remiss conduct. […]
Holding a position as guarantor does not ensure a direct relation to the service, as the
injurious result (the crime against humanity) is charged directly, and not as a mere
omission while exercising that position.
As highlighted above, in Mapiripán the duty to respect human dignity was flagrantly
breached by a group that challenges the monopoly of the use of force by the State. In
other words, the basic principles of the constitutional order –which those under
investigation were entrusted with protecting- were abridged. Their role as guarantors
required that they intervene to avoid the facts that degraded humanity, and that they
combat those who seek to usurp State power. Due to the extremely grave consequences
derived from their omission, no relationship can be found with their service functions.
The precedent of the Constitutional Court regarding competence of military criminal
justice rigorously points out that it is only possible to assign competence to military
criminal justice if there is no doubt about the link between the service and the act under
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