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jurisdiction. To the contrary, the administrative proceeding determines whether “a
damage has been caused that can be attributed to the State and, in accordance with
the Constitution, whether this damage is illegal. However, the concept of illegal
damage does not signify damage derived from an illegal action by the State, but
damage that the victim should not have to endure, whether this damage stems from
a legal or illegal action of the State.” This is different from when the violation of a
human rights obligation is declared. Even when a ruling of the Council of State
declares that the Nation is responsible for the death of a specific individual, it cannot
be understood as a declaration of the State’s responsibility for violating the right to
life because, for example, it may relate to an unfortunate traffic accident where the
State must provide reparation, but there is no real violation of the right to life. The
State is declared responsible for the death, but not for the “violation of a specific
article of the Constitution or a specific article of a human rights treaty.”
The second limitation refers to the symbolic significance and the specific legal
function of the declaration of responsibility in the administrative jurisdiction.
Regarding the symbolic significance of this declaration, one of the reparations that
the victims seek in an international human rights court is precisely that the State’s
responsibility is acknowledged. This does not happen in the administrative
jurisdiction, and the declaration of responsibility is devalued because it is not
obligatorily a human rights-related reprimand or a rehabilitation of the victims, but a
finding that an illegal damage has occurred that must be repaired. Thus, a
declaration due to an accident that can be attributed to an act of the Administration
and a declaration of the State’s responsibility for forced disappearance have the
same effect. In relation to the specific legal function of the said declaration of
responsibility, contrary to an international human rights court, the Council of State
does not establish the scope of the State’s obligations “in order to guide its future
actions.”
A third limitation refers to the type of judicial remedy that the administrative
jurisdiction establishes when it declares State’s responsibility for an illegal act:
financial compensation. This type of reparation is limited in comparison with the
concept of reparation established in international law, which involves not only
compensation, but also restitution, reparation, rehabilitation and guarantee of nonrepetition.
A fourth limitation is specifically related to the guarantees of non-repetition, because
the administrative jurisdiction does not establish measures to this end;
consequently, it cannot be considered an instance for adequately achieving this type
of guarantee. Also, it is not possible to order the re-opening of a disciplinary
investigation in this jurisdiction.
Lastly, some “actual functional limitations” relating to problems of “access” and
“congestion and delays” must be added to the preceding limitations relating to the
legal nature and regulation of the administrative proceeding. Regarding access, the
action for reparation is never de oficio, it must be filed by a lawyer and in a specific
district, which only operates in the departmental capitals, “often very far away from
the place where the most severe human rights violations in Colombia occur.”
Moreover, the State does not have administrative judges; they “have been
established by law, but this has never been implemented.” Although the
Ombudsman’s Office exists and provides lawyers to the impecunious who are
defendants in criminal proceedings, the State does not provide legal assistance to
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