Order 009 of 2015 to follow up on Ruling T-025 of 2004
Colombia, Constitutional Court

Order 009 of 2015 to follow up on Ruling T-025 of 2004

DATE 05-08-2015DOWNLOAD LEGAL DECISION

Judges:

Luis Guillermo Guerrero Pérez

Luis Guillermo Guerrero Pérez

Gloria Stella Ortiz Delgado

Gloria Stella Ortiz Delgado

Luis Ernesto Vargas Silva

Luis Ernesto Vargas Silva

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Topics:

Forced and Non-Consensual Practices Rape, Sexual Abuse and Harassment Intersectional Discrimination

Related standards:

Convention on th Elimination of all forms of Discrimination Against Women (CEDAW) Article 2

RELATED STANDARDS

Convention on th Elimination of all forms of Discrimination Against Women (CEDAW) Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 3

RELATED STANDARDS

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 3

States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 7

RELATED STANDARDS

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 7

States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.
Inter-American Convention to Prevent, Punish and Erradicate Violence Against Women, "Convention of Belém do Pará" Article 8

RELATED STANDARDS

Inter-American Convention to Prevent, Punish and Erradicate Violence Against Women, "Convention of Belém do Pará" Article 8

The States Parties agree to undertake progressively specific measures, including programs: a. to promote awareness and observance of the right of women to be free from violence, and the right of women to have their human rights respected and protected; b. to modify social and cultural patterns of conduct of men and women, including the development of formal and informal educational programs appropriate to every level of the educational process, to counteract prejudices, customs and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on the stereotyped roles for men and women which legitimize or exacerbate violence against women; c. to promote the education and training of all those involved in the administration of justice, police and other law enforcement officers as well as other personnel responsible for implementing policies for the prevention, punishment and eradication of violence against women; d. to provide appropriate specialized services for women who have been subjected to violence, through public and private sector agencies, including shelters, counseling services for all family members where appropriate, and care and custody of the affected children; e. to promote and support governmental and private sector education designed to raise the awareness of the public with respect to the problems of and remedies for violence against women; f. to provide women who are subjected to violence access to effective readjustment and training programs to enable them to fully participate in public, private and social life; g. to encourage the communications media to develop appropriate media guidelines in order to contribute to the eradication of violence against women in all its forms, and to enhance respect for the dignity of women; h. to ensure research and the gathering of statistics and other relevant information relating to the causes, consequences and frequency of violence against women, in order to assess the effectiveness of measures to prevent, punish and eradicate violence against women and to formulate and implement the necessary changes; and i. to foster international cooperation for the exchange of ideas and experiences and the execution of programs aimed at protecting women who are subjected to violence.

WHY IT MATTERS:

Enforcement orders (autos de seguimiento) for tutela rulings are a tool developed by the Constitutional Court of Columbia in accordance with Articles 3, 23, and 27 of Decree 2591 of 1991. Enforcement orders are legally binding (Order 080 of 2012). In general, it is considered the responsibility of the judge of first instance to enforce rulings, and only under exceptional circumstances may the Constitutional Court assume this responsibility. Case law has established that this enforcement mechanism is appropriate only under the following circumstances (Order 279/09): in the event of failure to comply with a ruling issued by the Constitutional Court in which it grants the relief requested; when the judge competent to enforce the ruling fails to take appropriate measures, or when, despite having exercised his competence, the failure to comply persists; when it becomes indispensable for the Court to take action for the effective protection of fundamental rights which are violated or threatened; and when it becomes urgent to defend the supremacy and integrity of constitutional law.

With this ruling, the Court strengthened the constitutional framework for addressing the gender impact of the armed conflict on women in situations of forced displacement, while at the same time bolstering measures to remedy human rights violations committed against displaced women and girls in the internal armed conflict in Colombia.

In light of the persistence of widespread sexual violence against displaced women in the context of the armed conflict and an inadequate state response, the Court condemned the situation and established a set of requirements. It ordered the competent authorities to act in a coordinated manner to develop a set of plans, guidelines, and programs for the protection of the rights of women victims of sexual violence in the context of the armed conflict, and to apply due diligence to prevention, protection, investigation, and reparation, in accordance with constitutional and international standards. This ruling will go a long way toward restoring constitutional rights and protections in a way that is sensitive to gender-specific needs.

This decision is particularly important for the protection of women and girls in Colombia, because the Court emphasized the obligation of the State to actively promote the rights of women affected by the armed conflict. It encouraged the involvement of women’s rights groups in the design and implementation of assistance programs, as well as verification and monitoring of implementation of the general and individual measures ordered by the Court.


The Special Review Chamber created by the Constitutional Court to monitor compliance with Tutela Ruling T-025/2004, in which the Court declared an unconstitutional state of affairs with respect to the state response to the situation of persons displaced by violence, issued Order 092/08, acknowledging that forced displacement has a disproportionate impact on women due to multiple gender-related risk factors identified as causes of forced displacement, including the risk of sexual violence. In its first enforcement order for Ruling T-025/04 that includes a gender perspective, the Chamber ordered the Colombian Government to create and implement thirteen programs to respond effectively to the differential risks faced by women in the context of the armed conflict, taking into account gender aspects of the forced displacement, including patterns of violence, structural gender discrimination, and increased risk of sexual violence. It also ordered the Office of the Attorney General to investigate 183 cases of sexual violence.

In order to follow up on the State’s compliance with these provisions, the Review Chamber issued Enforcement Order 009 of 2015, in which it pointed out continuing failures to provide assistance, protection, and access to justice for victims of sexual violence in contexts of armed conflict and forced displacement.

The Chamber observed that sexual violence continued to be a gender-related risk factor for displaced women, and the State’s failures in this area exacerbated the hardships faced by women victims of sexual violence, placing them in a situation of total defenselessness. With respect to compliance with the requirement to create programs and investigate the 183 cases of sexual violence, the Chamber found the measures taken by the responsible agencies to be inadequate, because there were still obstacles preventing victims from reporting and the authorities from protecting victims’ rights. Responses by competent state agencies were sporadic, lacking in coordination, and generally ineffective.

The Chamber therefore urged the competent authorities to eliminate obstacles to prevention and assistance faced by women victims of sexual violence and to carry out their constitutional duties to the letter, particularly the duty of due diligence in the areas of prevention, protection, and the rights to truth, justice, reparation, and guarantees of non-repetition for victims of sexual violence in contexts of armed conflict and forced displacement.

The Constitutional Court issued Ruling T-025 of 2004, declaring the existence of an unconstitutional state of affairs with respect to internal forced displacement, in light of the systematic violation of the fundamental rights of displaced populations in Colombia. The Special Review Chamber was created to monitor implementation of this ruling. Its duties also include assessing compliance with its own enforcement orders. In issuing Enforcement Order 009, the Chamber sought to assess compliance with Order 092/2008, in which the Court had acknowledged that forced displacement has a disproportionate impact on women due to multiple gender-related risk factors identified as causes of forced displacement.

In Enforcement Order 092/2008, the Court observed shortcomings in the state response to cases of sexual violence against women in contexts of forced displacement and ordered the Colombian Government to create and implement thirteen programs to respond effectively to the differential risks faced by women in the context of the armed conflict, taking into account gender aspects of the forced displacement. It also forwarded a sealed document to the Office of the Attorney General containing information on 183 cases of sexual violence with instructions to open criminal investigations at once. The same document was forwarded to the Office of the Inspector General with instructions to oversee the processes of restoration of victims’ fundamental rights.

Several years after the issuance of the enforcement order, the Special Review Chamber followed up with Order 009/15 to assess the current status of the fundamental rights of women and girls of all ages who were victims of sexual violence in contexts of armed conflict and forced displacement. In this order, the Chamber assessed the effectiveness of the programs for prevention of sexual violence that the Director of the Presidential Agency for Social Action and International Cooperation was ordered to create, as well as the implementation of the orders issued to the Office of the Attorney General.

1. The Court pointed out that displaced women are at increased risk of sexual violence, sexual assault, exploitation, forced prostitution, sexual slavery, forced use of contraception, forced pregnancies and abortions, trafficking in human beings for purposes of sexual exploitation, and sexually transmitted diseases.

2. The Court reiterated its findings in Order 092 of 2008 regarding the day-to-day situation of women and girls of all ages displaced by the armed conflict, noting “(i) the gender-related risks displaced women and girls of all ages face, including the risk of sexual violence; (ii) the systematic, widespread, and massive nature of violations of the totality of their rights throughout national territory; (iii) a manifestly inadequate response by the State to the situation and insufficient fulfillment of its constitutional duties; and (iv) the existence of elements of public policy regarding assistance for the displaced that leave critical gaps with respect to the situation of total defenselessness of displaced women with regard to the authorities who are bound to protect them.”

3. The Special Chamber noted that the risk of gender-based sexual violence remains acute for women and girls of all ages in the parts of the country still affected by the internal armed conflict and related forced displacement. It identified risk factors that had not been identified previously, including risks associated with illegal mining operations and increased risk of sexual assault based on women’s sexual orientation. The Chamber applied an intersectional approach to its analysis of risk factors for sexual violence, taking into account, for example, the unique circumstances of indigenous women, women of African descent, and women with disabilities, who face multiple forms of discrimination. The Chamber noted that since the issuance of Order 092 of 2008, it has received nearly 450 complaints of sexual violence in the context of the internal armed conflict and forced displacement. It forwarded these cases under seal to the Office of the Attorney General and the Office of the Inspector General.

4. The Special Chamber then turned to the matter of ongoing problems related to assistance and protection for women victims of sexual violence in the context of the internal armed conflict and forced displacement identified in Order 092/08, including (i) the persistence of obstacles that prevent victims from reporting or denouncing acts of sexual violence; (ii) problems related to the sub-registry and underreporting of acts of sexual violence; and (iii) persistent shortcomings in care for victims of sexual violence.

5. The Court evaluated the constitutional obligations that flow from the duty of due diligence in the areas of prevention, assistance, protection, and access to justice for women survivors of sexual violence perpetrated by armed actors, including acts committed by post-demobilization armed groups, whether or not they occurred during displacements. It recalled that the State also has due diligence obligations related to the investigation, prosecution, and punishment of these crimes in accordance with international instruments, including the recommendations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará).

6. The Chamber then turned to the specific requirements of Order 092/08. It first reviewed the requirement for the Office of the Attorney General to investigate the 183 cases of sexual violence. The Chamber considered that the new cases of sexual assault against women victims who reported acts of sexual violence or testified in criminal or administrative proceedings constitute the modus operandi of the perpetrators, intended to perpetuate impunity for these acts. The assaults have also led to new displacements, and in some cases, assaults were committed against human rights defenders.

7. In addition, the Chamber noted that certain government officials have failed to treat victims with dignity in court proceedings, acting on stereotypes and gender-based prejudices. Some officials have suggested that the incidents were brought on by the victims, or that they reported attacks as an act of revenge against the alleged perpetrator. The Chamber again emphasized the importance of applying an intersectional approach to cases, since many victims come from indigenous or Afro-Colombian communities. The Chamber concluded its observations by noting that coordination mechanisms must be set in place between the judicial and administrative bodies charged with ensuring effective access to justice for victims of sexual violence in the context of the internal armed conflict and forced displacement.

8. Turning to the requirement regarding the design and creation of a Program for Prevention of Sexual Violence against Displaced Women and Comprehensive Assistance for Victims, the Chamber noted that progress had been made, including protocols for healthcare for victims developed by the Ministry of Social Protection. It identified challenges as well, including a lack of specific policy documents indicating the components of the humanitarian aid for victims of sexual violence and the persons responsible for providing it. The program for comprehensive healthcare and mental health services for victims did not include care adapted specifically for victims of sexual violence in the context of the internal armed conflict, and no quantitative data was available on care for victims. The Chamber concluded that the state response had been sporadic, lacking in coordination, and generally ineffective. The updated public policy guidelines have had little effect on the effective enjoyment of rights of women victims of sexual violence. There was therefore a continuing failure to comply with the third requirement of Order 092 of 2008 with respect to prevention of sexual violence and assistance for victims of sexual violence in the context of the armed conflict and forced displacement.

9. Having identified the above shortcomings, the Court issued a set of orders to several Colombian government agencies designed to improve prevention of sexual violence against women in the context of the armed conflict and forced displacement, improve assistance and protection for women victims, and defend their fundamental rights to truth, justice, reparations, non-repetition, and non-discrimination.


The Constitutional Court found as follows:

1. The facts and risk factors for sexual violence against women in the context of the armed conflict and forced displacement persist. Furthermore, they constitute a real and alarming situation and a direct, serious assault on human rights and fundamental principles of international humanitarian law. Therefore, the competent Colombian authorities must act urgently and diligently to “(i) effectively prevent the factors leading to persistence of sexual violence in the context of the internal armed conflict and forced displacement; (ii) assist and protect victims of sexual violence; and (iii) guarantee their rights to truth, justice, reparations, and non-repetition.”

2. The Court reiterated its findings in Order 092 of 2008 regarding the obligation for the Office of the Attorney General to take whatever measures it deems necessary to investigate incidents occurring within the context of the armed conflict and forced displacement as soon as possible. It also urged the Office of the Attorney General to adopt an action plan to ensure that the witness protection programs and the victim protection plan created under Law 975 of 2005 adequately and effectively protected the lives, safety, and personal integrity of women victims of sexual violence in the context of the armed conflict and forced displacement, as well as their families.

3. The Court designated the Ombudsman's Office of Colombia as the agency responsible for ensuring the promotion, enjoyment, awareness, and protection of fundamental rights of women victims of sexual violence in the context of the armed conflict and forced displacement. It requested the development of a comprehensive action plan for providing information to women survivors.

4. It urged the High Council on Criminal and Penitentiary Policy to adopt comprehensive guidelines for ensuring the rights to truth, justice, reparations, and non-repetition for women victims of sexual violence in the context of the armed conflict and forced displacement.

5. It urged the Inspector General to adopt a comprehensive action plan to follow up on cases of sexual violence.

6. It asked the President of the Administrative Chamber of the Superior Council of the Judiciary to design and implement a training program for judicial officers hearing matters related to sexual violence.

7. It asked the Minister of National Education to develop trainings on women’s right to live free of violence and report to the Court on the content and methodology selected for the trainings.

Constitucional Court of Colombia
Constitucional Court of Colombia
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