The Supreme Court of Justice Protects the Right to Protest in the Face of Police Violence

Bogotá, September 22, 2020. At the end of 2019, in the midst of the marches and mass mobilizations on the occasion of the National Strike of November 21, a group of people, social organizations, human rights defenders, students, journalists, professors from  Andes and El Rosario universities, next of kin of victims and victims of police violence, submitted a writ request for the protection of fundamental rights, calling for the protection of our fundamental right to protest, and freedom of expression and of the press.

In that legal action, we showed that the way the Government and the National Police acted in the context of last November's protests, violated the constitutional rights of those who protested, incurring in the following conducts: The arbitrary dissolution of peaceful protests, the anti-regulatory use of potentially lethal weapons, the disproportionate use of irritating chemical agents in the dissolution of protests, the arbitrary detention of people in the context of protests by the National Police, and attacks on journalists covering the demonstrations. 

Today, the Civil Cassation Chamber of the Supreme Court of Justice, protected the right of all people to demonstrate, and the duty of the authorities to “stop, prevent and punish the systematic, violent and arbitrary intervention of Law Enforcement Personnel in demonstrations and protests.” The decision is based on the constitutional and international protection of the right to protest, and that limitations on its exercise can only be legally defined; therefore, no other authorities can attribute themselves on the definition of how people can exercise their right, which, in the words of the Court, is to “dissent and make their thoughts public”

The Court found that there “existed – and can continue to exist – a repeated and constant disproportionate aggression by Law Enforcement Personnel against those who, peacefully, demonstrated” and those who were carrying out the journalistic coverage. Which shows “a serious and current threat, given the impulsive behavior of Law Enforcement Personnel, and especially of ESMAD (riot police), who has openly disregarded, not only its own manuals, but also principles and values of a constitutional level.”

Thus, the actions of Law Enforcement Personnel, without adequate control or accountability, “represent a risk, a serious and current threat to those who intend to march out and peacefully express their views, because their action, far from being isolated, is constant, and reflects a permanent aggression, identifiable in the context of the protests,” the judgment notes. In addition, the Court also found violations of rights related to mass raids by the Prosecutor's Office of the Nation in the homes and residences of those who have a legitimate interest in participating in the protests.

The orders issued by the Court to guarantee the fundamental right to protest were:

(i) That the Minister of Defense apologizes for the excesses of Law Enforcement Personnel, especially ESMAD, in the protests that began on November 21, 2019; 

(ii) To order members of the Government to maintain neutrality when non-violent demonstrations occur, even if they are aimed at questioning their own policies;

(iii) To establish a working group to restructure the guidelines on the use of force in demonstrations involving citizens, and to issue regulations in this field in accordance with international and constitutional standards;

(iv) To design a protocol of preventive, support  and follow-up actions to the reaction, use and verification of the legitimate force of the State and the protection of the right to peaceful citizen protest, including public and sustained reports when attacks on life and personal integrity occur;

(v) To issue a protocol allowing citizens and human rights organizations to carry out checks on cases of detention and transfer of persons during protests and,

(vi) To suspend the use of twelve-gauge shotguns for intervention in protests.

Orders were also issued to the Attorney General's Office of the Nation, The Prosecutor's Office of the Nation and the Office of the Ombudsman, to design plans for easy access to persons who require support for having been affected in the framework of protests, and to be able to make checks on persons detained, by citizens and human rights defenders organizations. And the Office of the Ombudsman was specifically ordered to carry out a strict, strong and intense control to all ESMAD actions until it is established that “it is able to make a moderate use of force and to guarantee and respect the rights and freedoms of people who intervene or not intervene in protests”. These entities shall produce periodic follow-up reports.

This ruling is more than timely, given the need to restore the rule of law and the safeguard life and social protest following the events of September 9 and 10 of 2020, where young people were murdered in different districts of Bogotá and Soacha in the context of demonstrations for the same police violence that the Supreme Court rejects in its decision. This ruling recognizes the urgency of imposing concrete limits on the action of the National Police and its Mobile Anti-riot Squad - ESMAD - by making a clear call for attention given the denial of these events by the National Government.

We welcome the decision of the Civil Cassation Chamber of the Supreme Court of Justice, that recognizes the importance of free expression in a democracy, and protects the rights of citizens to protest free from the threat of violence and police abuse in response to their complaints. We also urge the National Government, the Prosecutor's Office, the Office of the Attorney General, the National Police and the Mayor’s Office of Bogotá to promptly comply with the issued orders.