Archives / Litigation

Intervention in lawsuit that seeks to ensure the participation of minority parties and movements in the directive tables of the Congress
Defendant : Parágrafo del artículo 40 de la Ley 5 de 1992.

Dejusticia supports the request for the declaration of unconstitutionality of the
paragraph of Article 40 of Law No. 5 of 1992 (Congress Regulation) which provides that the directive tables of Congress commissions will be chosen by applying the majority rule. As the lawsuit establishes, we hold that this provision contradicts Article
112 of the Constitution which provides that the minority parties and movements shall be entitled to participate in the boards of collegial bodies, and also indicates that this issue should be regulated by a special statute which has not yet been issued.
Additionally, we make some considerations about the scope of Article 112 of the Constitution, stating that the guarantee of active participation embodied therein applies for those parties and movements which, in addition to being outnumbered, are part of the opposition to the majority parliamentary bloc since the purpose of the rule is to ensure pluralism in the directive organs of the collegiate bodies.

 

Intervention in motion for legal protection for the conformation of community action groups in San Lorenzo
Defendant : Alcaldía Municipal de Riosucio (Caldas)

The Governor of the Reserve of San Lorenzo initiated a motion for legal protection brought against the City Hall of Riosucio in order to stop it from promoting the formation of community action groups (Juntas de Acción Comunal JAC) within the reservation. In our statement we support the motion indicating that the promoting acts of these groups (JAC), as well as the accompaniment and support given to these initiatives, undertaken without the consent of the authorities in the cabildo, is a violation of ethnic autonomy and a threat to the right to ethnic and cultural diversity of the Embera community of San Lorenzo who decided, through its legitimate authority, to not constitute or support the formation of JAC within the reservation.

 

Intervention in motion for legal protection of the right to equality and free development of personality of a transgenderist
Defendant : Olga María Chacón, Carlos Dávila y la Sociedad Hotelera Tequendama

Colombia Diversa, Women's Link and Dejusticia present this intervention before the Court in a process in which the plaintiff alleges a violation of his rights to equality and free development of personality, having been denied entry to two night events in the city of Bogota in response to his transgenderist status. We hold that even though it is constitutionally prohibited to discriminate on grounds of sexual orientation and gender identity, transgenderists are usually discriminated against in multiple areas of social life. However, in many cases these are subtle and covert discrimination reason why it is necessary to apply specific evidentiary standards in order to prevent and punish such discrimination. Under this standard, the person alleging discrimination should not have to demonstrate direct discriminatory intent since it is almost impossible to test. Instead, it should be sufficient to prove i) that he belongs to the group traditionally discriminated against, ii) that in a similar situation he/she was treated differently than people from other social groups, and iii) that the discriminatory treatment caused him harm . Having proven this, discrimination should be presumed and the burden of proof shifted, so that the party who carried out the discriminatory conduct would have to prove that it was justified and had no discriminatory purpose. According to the evidence standard, we conclude that in this case the decisions of trial courts should be reversed and the plaintiff should be granted protection of his rights.

 

Intervention in motion for legal protection on the issue of reparation to victims of forced displacement.
Defendant : : La Agencia Presidencial para la Acción Social y la Cooperación Internacional – Acción Social

Dejusticia intervenes at the request of the Court to present a concept in relation to the notion of the right to reparation, it's scope, the access roads to this right, the remedy sought by writ of protection, the scope of Colombian legislation on forced displacement and integral reparation, among others. Our general approach supports the idea that in contexts such as the one of forced displacement in Colombia, it is a binding obligation of the State to adopt measures that guarantee the fundamental right to reparation for the victims of forced displacement. The fulfillment of this obligation must take into account that a significant number of victims were excluded and discriminated before the occurrence of these violations. Therefore, reparation measures should be designed to satisfy rights so as not to return victims to their previous conditions of exclusion, but instead allow them access to full citizenship. This is in turn a necessary condition for building a democratic state and society that will lay the groundwork for a national reconciliation process. At the same time, to the extent that the violations have been committed systematically and therefore have produced millions of victims entitled to the right to reparation, the measures taken by the State must involve different routes of claiming (legal and administrative) and different complementary measures (restitution, satisfaction, rehabilitation). These pathways and steps must be articulated in a national policy to ensure consistency both between measures of reparation and other measures of rights satisfaction of victims.

 

Intervention in motion for legal protection in order to carry out the process of consented adoption by a homosexual companion.
Defendant : Instituto Colombiano de Bienestar Familiar

Last year, a lesbian couple who have lived together for over four years and who declared their union before a notary in 2007, went to the ICBF to begin the adoption process so that one of them could adopt the biological child of the other. The child was conceived through artificial insemination after the couple's decision to have a child and since then has been under the care of the two women. However, although the Code for Children and Adolescents allows a person to adopt the biological child of his spouse or permanent partner, the ICBF rejected the request because of the homosexual nature of the couple. Dejusticia, in association with Colombia Diversa, addressed the Constitutional Court in order to protect the rights to equality, due process, and the right to have a family and not be separated from it of this pair of women and the child.

 

Objection to the application of nullity of the decree that regulates the provision of services for voluntary interruption of pregnancy
Defendant : Decreto 4444 de 2006

Dejusticia requests the Council of State to refuse the application of nullity of the decree that regulates the provision of services for voluntary interruption of pregnancy. To this end, we argue that the Sentence C-355 of 2006, which decriminalized abortion in three cases, namely, when the continuation of pregnancy endangers life or health, when there is a serious malformation of the fetus that makes its life unviable, and when the pregnancy is the result of rape or artificial insemination, hit the health system when it recognized that pregnant women who are in any of the situations described above are entitled to access the service for voluntary interruption of pregnancy in healthy conditions. Under this impact on the health system, the National Government could exercise its regulatory powers in this case since Act 100 of 1993 establishes it is the competent authority to regulate the provision of health services.

 

Intervention in the lawsuit against Articles 14 to 17 of Act 1335 of 2009.
Defendant : Artículos 14 a 17 de la Ley 1335 de 2009.

Dejusticia intervenes to contest the claim and defend the constitutionality of Articles 14-17 of Act 1335 of 2009. These articles ban the advertisement of tobacco derivatives. The intervention argues that given the proven harmful effects of tobacco, the State may set a "purely passive market" for these products, meaning that the state will tolerate them-which includes allowing the sale and consumption- but discourages its use and therefore prohibits advertising and promotion.

 

Motion for legal protection due to a decree that restricts freedom of expression and access to information during presidential elections
Defendant : Ministerio del Interior y de Justicia

The Center for the Study in Law, Justice and Society - Dejusticia, the Electoral Observation Mission - MOE, Media for Peace, the Association of Colombian Newspapers - Andiarios, and the Foundation for Press Freedom - FLIP interposed a motion for legal protection against the Interior and Justice Ministry for the issuance of the decree regulating public order during the first and second rounds of presidential elections, considering that some articles violated the freedom of expression and access to information.

On May 24, 2010 the decree 1800 which "sets out regulations for the preservation of public order during the presidential elections" was issued. The decree, which is the same that has been used since the elections of 1994, restricts journalists freedom of expression and information on the day of presidential elections.

These restrictions require the media to convey information relating to public order only when it has been confirmed by official sources. It also forbids the media to publish any information on the election results that is different to the one released by electoral authorities. Additionally, it orders the media to give priority to the messages issued by these authorities in the electoral process.

After doing a legal review of these standards, the organizations find that the Ministry is violating the fundamental rights of journalists since it ignores the principle of non-censorship, makes unreasonable restrictions, and, moreover, is dealt with by a decree when the Constitution is clear in giving regulatory power to statutory laws.

 

Constitutional claim for victims of forced disappearance to be recognized as victims of political violence in order for them to have access to humanitarian aid.
Defendant : Artículo 15 de la Ley 418 de 1997, tal como fue modificado por el artículo 6 de la Ley 782 de 2002, y artículo 49 de la Ley 418 de 1997.

It is estimated that in Colombia there have been nearly 50,000 forced disappearances. Despite this shocking number and despite the gravity and atrocity of the crime, relatives of missing persons are not recognized in the Act 418 of 1997 as victims of political violence and therefore are not beneficiaries of humanitarian aid. The granting of such aid to the families of missing people has been subject in practice to the discretion of Social Action functionaries who, in the best cases, have attempted to apply the requirements that are demanded to relatives of murdered people. Families of missing people have been requested to overtake civil proceedings to obtain the declaration of presumed death in order to replace the death certificate that must be provided by families of murdered ones. Putting forward this process involves not only a disproportionate expenditure for disappearance victims but also a painful experience that leads them to resign to their hope of finding their missing. This claim, submitted jointly by the Nydia Erika Bautista Foundation and Dejusticia, aims to correct this legislative omission so that victims of forced disappearance are recognized as victims of political violence and so that they have access to humanitarian aid without having to advance processes of presumed death declaration.

 

Intervention in the writ against the Ministry of Transport and others for the violation of the fundamental right to prior consultation and territorial rights of the Embera Katío and Embera Dobida indegenous communities of Chidima Toló and Pescadito.
Defendant : Ministerio de Transporte y otros

There are currently three projects that pose a serious threat to the fundamental rights to prior consultation, participation, and land and and cultural integrity of the Embera - Katío and Embera -Dobida living Chidima Toló and Pescadito in Chocó. The road construction between Acandí and Unguía, the electrical interconnection project of Eléctrica S.A. firm, and the mining prospecting activities of the Gold Plata company are three projects which, despite its incipient state, have already begun to affect the community which so far have not been taken into account. In this amicus, Dejusticia provides support for the rights of these communities and supports the writ of protection promoted by the Colombian Commission of Jurists in order to suspend such projects until completion of the respective consultations aimed to obtain the free, prior and informed consent of the indigenous peoples concerned.

 

Intervention on the constitutionality of the declaration of the state of social emergency.
Defendant : Decreto 4975 de 2009

Dejusticia requests the Court to declare unconstitutional all those reasons and considerations contained in Decree 4975 of 2009 that provided non-viable support to the emergency. If the Court does indeed find that there is a financial crisis in the health system that affects its stability, these reasons mistakenly intended to sustain a structural reform to the general health system which can only be done by the Congress and which is not the necessary solution to address the immediate financial difficulties of the system.

 

Amicus curiae in writ for the protection of fundamental rights that seeks to ensure the right to mental health of victims of forced displacement
Defendant : Ministerio de Protección Social

Dejusticia supports the claims of the writ for the protection of fundamental rights directed to ensuring the right to health of four women who have not received comprehensive care for the serious mental and emotional disorders following their forced displacement by violence of the armed conflict. In support of the writ, Dejusticia argues that the violation of rights in this case is due to structural failure of public policy on forced displacement because there are no mechanisms to ensure that victims receive comprehensive, relevant, and permanent psychosocial care.

 

Intervention on the constitutionality of Art. 113 of the Civil Code-Marriage
Defendant : Artículo 113 del Código Civil que consagra el matrimonio civil únicamente para las parejas heterosexuales y que define la procreación como uno de los fines del matrimonio.

Article 113 of the Civil Code establishes marriage only for heterosexual couples and defines procreation as one of its purposes.

The intervention supports the claims of the plaintiffs intended to enable same-sex couple marriage and to declare unconstitutional the definition of procreation as one of the purposes of the contract. This aims to strengthen and expand to other cases the constitutional precedent consolidated since 2007 regarding the protection of the rights of same-sex couples.

 

Intervention on the constitutionality of the re-election referendum
Defendant : Ley 1354 de 2009 "por medio de la cual se convoca a un referendo constitucional y se somete a consideración del pueblo un proyecto de reforma constitucional".

Intervention in the process taken before the Constitutional Court concerning the constitutionality of the re-election referendum. The intervention requests the Court to declare unconstitutional the law that calls for the referendum mentioned above.

 

Intervention on the law of freedom of slaves
Defendant : Ley del 21 de mayo de 1851 Sobre la libertad de esclavos”

Dejusticia, member of the Observatory against Racism, pronounced itself in regards to the lawsuit against Law 21 of 1851 (Freedom of slaves). This public intervention presents the reasons why the Constitutional Court should not declare itself inhibited when deciding the present case. Instead, it suggests the Court to order the issuing of a public policy that guarantees integral and collective reparation for the African descendant population in Colombia who suffered the crime of slavery.

 

Intervention relating to free primary education
Defendant : Norma demandada: artículo 183 de la Ley 115 de 1994

The Center for the Studies of Law, Justice and Society- DeJusticia- supports the lawsuit that seeks to declare the charges of academic rights in primary school unconstitutional.

 

Nullity action against the administrative act through which the House of Representatives chose Dr. Volmar Perez as Ombudsman on August 19, 2008.
Defendant : Acto administrativo a través del cual, el 19 de agosto de 2008, la Cámara de Representantes eligió al doctor Volmar Pérez como Defensor del Pueblo

On August 16, 2008, the Center for the Study of Law, Justice and Society-Dejusticia-, the Human Corporation Regional Center for Human Rights and Gender Justice, the Women National Network, and the Antigone Corporation for Social Development, Human Rights and International Humanitarian Law, filed a nullity action against the administrative act through which the House of Representatives chose Dr. Volmar Perez as Ombudsman on August 19, 2008. The main reason argued is: the triad formed by the national government did not respect the law of equal participation of women (Law 581 of 2000) which requires that the lists of candidates for positions such as the Ombudsman include at least one woman. On October 22, 2009, the Fifth Section of the Administrative Litigation Division of the State Council decided the case by declaring the nullity of the act for the reasons stated, thereby constituting an important precedent for the respect of the rules of equal access to State offices

 

Intervention relating to conscientious objection to military service
Defendant : Normas demandadas: artículo 27 de la Ley 48 de 1993

The intervention was presented in relation to conscientious objection as grounds for permanent exclusion for military service. The Center for the Studies of Law, Justice, and Society -Dejusticia-presents this written in order to contribute to the lawsuit that seeks the unconstitutionality of Article 27 included in the Law 48 of 1993.

 

Intervention same-sex couples
Defendant : Normas demandadas: artículo 68 numeral 3 de la Ley 1098 y el artículo 2 de la Ley 54 de 1990

 

Amicus Curiae for the case of sexual violence against women in Peru
Defendant : Miembros de las Fuerzas Armadas del Perú que resulten responsables.

The present Amicus Curiae, developed from five cases of sexual violence carried out against women in the Peruvian armed conflict (names will no be mentioned due to security reasons) offers a contribution to overcome the several obstacles that faces the achievement of justice in cases of Human Rights violations. In the document, it is maintained that according to the Peruvian law and the international standards related to the topic, acts of Sexual Violence that give rise to the Amicus, must and can be judged by the State. To support this thesis, several legal arguments are developed.

 

Supreme Court of Justice sanctions nightclubs of Bogotá due to racial discrimination
Defendant : Presidencia de República, Alcaldía de Bogotá y Discotecas

The legal action was presented before the Court by the Observatory on Racial Discrimination from Los Andes University, from which the Program on Global Justice is part, The Process of Black Communities (PCN) and Dejusticia against the Presidency of the Republic, Bogotá´s Mayors Office and the Discotheques.

 

Lawsuit that seeks the protection of the right to housing
Defendant : Normas demandadas: parágrafo 1 del artículo 15 de la ley 388 de 1997 y contra el artículo 40 de la ley 3 de 1991

Lawsuit against the paragraph 1 of the article 15 of the Law 388 from 1997, and against the article 40 of the law 3 from 1991, for violating the Constitution.

 

Intervention against the Modificatory Protocol of the Free Trade Agreement between Colombia and the United States
Defendant : Tratado de Libre Comercio

Civic intervention within the process of No. LAT319 of automatic, integral and previous review of the additional protocol modification to the Free Trade Agreement between Colombia and the United States and its enclosed letter, approved by means of the Law 1166 of 2007.

 

Intervention against the Free Trade Agreement between Colombia and the United States
Defendant : Tratado de Libre Comercio

Intervention in the process LAT311 against the Law 1143 from 2007 "by which is approved the Free Trade Agreement between Colombia and the United States of America", plus the annexed letters and agreements, signed at Washington, DC on November 22, 2006.

 

Health Care: Afro Descendents
Defendant : Normas demandadas: artículos 1 al 30 de la Ley 691 de 2001

Public action of the unconstitutionality against articles 1 through 30 of the Law 691 of 2001, by which the participation of the ethnic groups in the General System of Social Security in Colombia is regulated, by violation of the introduction and of articles 1, 2, 7, 11, 12, 13, 48, 49, 70, 85, 93, 330 (paragraph), 55 transitory of the Political Constitution.

 

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