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Colombia | 2020 Developments in Constitutional Law


Carlos Bernal, Professor, University of Dayton School of Law; Diego González, Deputy Justice, Constitutional Court; Maria Fernanda Barraza, LL.M. Candidate, Cornell University; Sebastián Rubiano-Groot, Law Clerk, Constitutional Court


I. Introduction

2020 was one of the most eventful years in the recent history of Colombia. During the first trimester, civil society, public authorities, and private actors, faced critical challenges related to the unprecedented social demonstrations that spread out across the country. Though the first mobilizations took place on November 2019, the so-called “National Strike” lasted unexpectedly until March 2020 and shaped a national movement, which since then has asked for a “national dialogue”. In March, the Covid-19 virus reached Colombia and generated catastrophic social and economic disruptions. It posed unparalleled challenges to national and local public authorities and gave rise to the President´s declaration of a State of Exception. What started as a health emergency rapidly grew into an economic and social crisis, which brought about decisive legal decisions that raised important constitutional questions. In this context, all branches of government took part in the decisions about the appointments of high officials and defined the current composition of some of the most important public institutions.

In this report, we discuss how these challenges shaped 2020 in Colombia. First, this report focuses on how social protests, the Covid-19 emergency, and the appointments of high officials led to important constitutional debates and political concerns regarding the separation of power in Colombia. In particular, the report portrays the President´s exercise of extraordinary powers twice during 2020 to control and to prevent the spread of the virus as well as to mitigate its impacts. Secondly, this report analyses the Court´s main rulings on the most emblematic Covid-19 Legislative Decrees. Finally, this report addresses the Court´s cases relating to women´s reproductive rights and gender equality, animal rights, freedom of the press and information in contexts of closed criminal proceedings, and the public surveillance implications on the right to privacy.

II. Major constitutional developments

Three major constitutional debates and political concerns were on the agenda of 2020: (i) social protests, (ii) the covid-19 emergency, and finally, (iii) high officials’ appointments.

Social protests. On November 2019, hundreds of thousands of Colombians took part in demonstrations across the main cities of the country. Corruption, inequality, setbacks to the implementation of the peace agreement, increasing numbers of murders of social leaders, as well as rumors of a series of reforms to taxes and pensions, ignited the unprecedented popular mobilization of about 200.000 people, according to official data. What began as a peaceful demonstration quickly evolved into days of violent clashes between demonstrators and police officials. Groups of demonstrators attempted to violently enter the Congress and severely damaged public infrastructure such as official buildings, police stations, and public transport facilities. According to official reports, the Government closed all of the territorial borders and deployed 170.000 troops. In addition, local authorities ordered curfews to regain control of public order. In just the first days of the protests, 3 people were killed, 98 arrested, and 273 demonstrators and officials were injured.

Demonstrations continued until March 2020. While demonstrators denounced police abuse, the Government claimed that vandalism was part of an “orchestrated terror campaign”. This polarization brought about the first major crisis of the Government, which had taken office 15 months earlier. Union leaders, opposition political parties, human rights organizations, students, indigenous groups and local artists expressed their support for the demonstrations, rejected the Government’s responses to the crises, and backed the so-called “National Strike”. International organizations such as the United Nations, Human Rights Watch and the International Trade Union Confederation asked for official investigations to be launched into abuses against demonstrators, and urged the Government to prevent violence. After several failed dialogue attempts, demonstrators called for a “National Strike” day on 25 March 2020. Though this demonstration never took place because of the onset of the Covid-19 pandemic in Colombia, members of the national movement continued calling for a “national dialogue”, a call that they have maintained to the present day.

Covid-19 emergency. Through Resolution 385/2020 issued on 12 March 2020, the MHSP[1] declared the Covid-19 Health Emergency throughout the national territory until 30 May 2020. Under this Resolution, the MHSP adopted a series of measures in order to prevent and control the spread of the virus and mitigate its impacts. [2] Given the rapid spread of the virus and its immediate consequences, on 17 March 2020, the President enacted Legislative Decree 417/2020,[3] by which he declared the State of Exception (an economic, social, and ecological emergency). After the expiration of that declaration, on 6 May 2020, the President declared a second State of Exception through the Legislative Decree 637/2020.[4] This declaration had the purpose of promoting policies to avoid the negative consequences of the economic crisis. The State of Exception lasted until 5 June 2020, while the Health Emergency has been extended until 31 August 2021.[5] In spite of these declarations, the Covid-19 emergency has posed complex challenges to public policies, and has had catastrophic social and economic consequences for the most vulnerable communities. 

The sanitary emergency and the declaration of the State of Exception affected all branches of government. The President promulgated 115 legislative decrees by exercising extraordinary powers and 74 ordinary decrees regarding the following areas[6]: public services, public finances, taxes, private markets, social assistance for vulnerable communities, the court system, and employment protection. Some of these regulations established quarantines, lockdowns and mobility restrictions, generating crucial constitutional debates. This level of activity of the Executive in terms of normative production contrasted with the passivity of the Congress regarding activities of legislative and political accountability.

2020 was the first time in history that the Congress performed its activities by video conferences, conducting its meetings and hearings virtually. This fact gave rise to a great deal of public concern. While some considered that performing congressional activities by video conferences was incompatible with the Constitution, others argued that this was the only way for the Congress to fulfil its constitutional mandates, and particularly, apply political accountability to the President´s extraordinary powers. Throughout the year, the Congress only approved one law regarding the Covid-19 crisis[7] and held one political accountability session against the Ministry of Defense regarding human rights violations and massacres[8].

Because of the pandemic, the judicial system was suspended for most of 2020 due to lack of institutional capacities for performing its activities virtually. The Constitutional Court and the Council of the State were exceptions to this. The Constitutional Court reviewed the constitutionality of all legislative decrees: it declared constitutional 57 of them; unconstitutional 7, and partially or conditionally constitutional 51.[9] The Council of the State exercised immediate legal judicial review on 197 cases regarding ordinary decrees and other administrative regulations issued to address the pandemic.[10]

High officials’ appointments and separation of powers. All branches of government took part in the appointments of high officials during 2020. In January, after the President´s nomination, the Supreme Court appointed Francisco Barbosa as the new General Prosecutor. On August, the Senate appointed Margarita Cabello as the new General Procurator, and Carlos Camargo as the new Ombudsman. In August and December respectively, following nominations by the Council of State and the President, the Senate also appointed two justices to the Constitutional Court: Jorge Ibáñez and Paola Meneses. Finally, the Board of Directors of the Bank of the Republic elected Leonardo Villar as its new General Director. The President´s involvement in some of these elections raised significant public concerns regarding institutional independence, the separation of powers, and checks and balances. On the one hand, some viewed the President´s participation in some of those elections as a natural consequence of the presidentialism established by the Constitution, while on the other hand, members of opposition parties and some civil society groups considered that the President´s appointing of former members of his cabinet and stuff to high office eroded the division of power. In this context, some voices advocated amending the Constitution to avoid Presidential influence over the appointment of high public officials and to safeguard the separation of power.

III. Constitutional cases  

1. State of exception legislative decrees

Declarations of the Statutory States of Emergency and the State of Exception

Six days after the first COVID-19 case in Colombia was reported, the Minister of Health and Social Protection issued Resolution 385/2020 on 12 March 2020[11]. This Resolution declared the Statutory State of Health Emergency throughout the national territory until 30 May 2020, and adopted a series of measures in order to prevent and control the spread of the virus and mitigate its impacts. Given the rapid spread of the virus and its immediate consequences, on 17 March 2020, the President enacted Legislative Decree 417/2020[12], by which he declared the State of Exception (economic, social, and ecological emergency). After the expiration of that declaration, on 6 May 2020, the President declared a second State of Exception through the Legislative Decree 637/2020[13]. This declaration aimed to promote policies to avoid the negative consequences of the economic crisis. The State of Exception lasted until 5 June 2020, while the Statutory State of Health Emergency has been extended during 2021.[14]

Normative production, legislative, and executive powers

Executive rule-making powers played the preponderant role in the policy-making activity for addressing COVID-19. Though the Congress began to exercise its competences on 13 April 2020, it only approved one act regarding the crisis: Act 2064/2020, by which the Congress declared of general interest the strategy for immunization of the Colombian population against the COVID-19.[15]

In contrast, the President enacted almost every policy concerning the crisis by exercising either ordinary competences (art. 189 of the Constitution) or extraordinary powers (art. 215 of the Constitution). Overall, the President promulgated the unprecedented amount of 189 ordinary and legislative decrees. Apart from the presidential decrees, every ministry, national and local authority, enacted resolutions and directives to adopt specific regulations regarding their respective (health, education, tourism, etc.). For instance, the Minister of Health and Social Protection alone has issued 76 resolutions to address health policy under the crisis.[16]

In the Colombian Legal system, there are four main differences between ordinary and legislative decrees. Ordinary decrees (1) are enacted solely by the President without the signature of ministers, (2) have no temporal limitations, (3) have regulatory nature, and (4) are subjected to judicial review before the Council of the State.[17] Instead, legislative decrees (1) should be promulgated by the President and all the ministers after the declaration of the State of Exception, (2) are in effect only for the emergency, (3) have equivalent normative status to laws enacted by the Parliament, and (4) are subjected to judicial review before the Constitutional Court.[18]

Whereas the President promulgated 115 legislative decrees by exercising extraordinary powers, he issued 74 ordinary decrees through ordinary regulatory competences.[19] Almost every ordinary and legislative decree enacted by the President to deal with the COVID-19 quoted standards developed by the World Health Organization (WHO), and some of them referred to declarations or resolutions of other international bodies such as the International Labour Organization (ILO). Legislative decrees regulated the following areas: (i) public services (31 legislative decrees), (ii) public finances (22), (iii) taxes (13), (iv) private companies (12), (v) social assistance for vulnerable communities (10), (vi) court system (10), (vii) employment protection (10), and (viii) public contracts (5). No legislative decree suspended any constitutional provision or fundamental right nor any international convention.

The Constitutional Court reviewed the constitutionality all such legislative decrees. It declared constitutional 57 of them; unconstitutional 7, and partially or conditionally constitutional 51.[20] Most of the ordinary decrees included detailed regulations regarding specific policies. However, some of them stipulated relevant sanitary and public order measures such as quarantines, lockdowns and mobility restrictions, as will be discussed in section IV. By the end of 2020, the Council of the State -which is the Supreme Administrative Court- has exercised immediate legal judicial review on 197 cases regarding ordinary decrees and other administrative regulations issued to address the pandemic.[21] The Council of State has annulled 3% of those ordinary decrees and regulations.[22]

2. Women’s Reproductive rights and Gender Equality

At the end of 2019 and before the COVID-19 outbreak, the Constitutional Court held crucial discussions concerning women’s reproductive rights and gender equality. In fact, this period will probably be remembered as one of the most important in matters of reproductive autonomy. Among the issues the Court analyzed were the execution of forced abortions among members of the former FARC-EP, the state-funding of IVF treatments for low-income women, and the right to reparation of victims of domestic violence in divorce proceedings.

Reproductive rights of members of armed groups. Decision SU-599/2019 has been acknowledged as a landmark case on the reproductive rights of women during armed conflicts. In this case, the Court reviewed a tutela action filed by “Helena,” a former member of the FARC-EP who was forced to take contraceptive pills and undergo an abortion, who wanted to be included in the RUV (National Registry of Victims of the Armed Conflict). The Victims’ Reparation Agency (UARIV) refused to recognize Helena as a victim because article 2(3) of Law 1448/2011 denied victim status to members of illegal armed groups unless they had left the group as minors. The Court held that the application of the aforementioned statutory provision to Helena’s case was unconstitutional. The Court established that Helena was indeed a victim taking into account that she was forcibly recruited as minor, was coerced to take contraceptive since the age of fourteen, and was later ordered to have an abortion, which caused her severe injuries.

The Court determined that the state has an obligation to protect victims of sexual violence, including members of armed groups. Following the ruling of the ICC in the Ntaganda case, the Court stated that intraparty sexual crimes are war crimes. Yet, the Court broadened the scope of protection by acknowledging that intraparty sexual crimes include all victims -not only minors-, as long as a nexus with the armed conflict can be established. This decision also set a precedent against the Special Jurisdiction of Peace’s 2019 judgment, which considered that war crimes, including sexual crimes, could only be committed against members of opposite forces.

State-funding of IVF treatments. In Decision SU-074/2020, the Constitutional Court recognized low-income women’s right to access public-funded IVF treatments. The Court review five tutela actions filed by women diagnosed with infertility whose health providers denied them access to IVF treatments. The Court noted that Law 1953/2019 (Infertility and Reproductive Health Law) vested upon the Ministry of Health rulemaking power to regulate women’s access to public-funded infertility treatments, but it never issued the required regulation. For the Court, the absence of such regulation could not translate into a scenario of no-protection for infertile women. As a consequence, the Court established seven criteria to determine whether the State has the obligation to fund IVF treatments for low-income women: (i) age of the beneficiary; (ii) prescription by the primary care physician; (iii) exhaustion of other procedures and alternatives to treat infertility; (iv) maximum of IVF cycles; (v) economic disadvantage and unavailability to sustain the cost of the IVF treatment; (vi) beneficiary must be without child; and (vii) risks of the IVF procedure to the beneficiary’s life and health.

Domestic violence victims’ right to reparation in divorce proceedings. The Constitutional Court studied whether a domestic violence victim had a right to recover damages during divorce proceedings despite domestic laws only recognizing a right to alimony when there is “economic need.” In this case, family courts granted the divorce to the petitioner, yet refused to order any reparation measure in her favor because she was a Justice in the State Council (the highest court of the administrative jurisdiction) who had “enough income to survive and provide for her children.” The petitioner filed a tutela action against those judicial decisions considering that her position as a Justice was not a constitutionally valid criterion to deny her right to reparation in connection with her right to a life free from gender-based violence and discrimination.

After studying the specific obligations of State Parties of the Belem do Pará Convention, the Constitutional Court determined that the state has a duty to ensure domestic violence victims’ right to reparation. This obligation requires the Legislative and Judicial Branch to design, enact, regulate and interpret the necessary legal provision to allow women to recover damages from domestic abuse. Therefore, the Court; (i) vacated the judicial decision from the family courts who denied the petitioner’s right to reparation and remanded so lower courts could initiate reparation proceedings; (ii) exhorted the Congress to enact a statute on the right to reparation of domestic violence victims; and (iii) exhorted the Superior Council of the Judiciary to educate family judges on interpreting family law in light of international human rights obligations.

Abortion and res judicata.In Decisions C-088/2020 and C-089/2020, the Constitutional Court held key discussions on abortion rights but refrained from issuing rulings on the merits of the claims. The petitioner of these cases asked the Court to revisit Decision C-355/2006, which upheld the constitutionality of article 122 of the Criminal Code and authorized abortion in three circumstances.[23] For the petitioner, abortion infringes on human dignity, affects women’s physical and psychological integrity, and violates the right to life of the fetus. Therefore, the petitioner asked the court to rule against Decision C-355/2006 in order to restrict all events of legitimate abortion previously authorized by the Court. In a 5-4 decision, the Court determined that the petitioner did not give sufficient arguments to disprove the existence of constitutional res judicata. Thus, Decision C-355/2006 was not reexamined.

Linares, J., Reyes, J., and Rojas, C.J., filed a joint dissenting opinion. These Justices considered that the Court should have revisited the 2006 decision for two reasons. First, criminalizing abortion is unconstitutional because it imposes a disproportionate burden on women by preventing them from adopting a decision that pertain to their rights to privacy and freedom of religion. Second, it was necessary to broaden the scope of protection of women’s reproductive rights. In light of recent developments on Human Rights, the State has the obligation to protect a woman’s decision on whether or not to terminate her pregnancy. Furthermore, the State could use different public policies to address abortion in a way that strengthens freedom, autonomy, dignity, and security of all women (e.g., sexual health programs, access to contraception, and better medical attention to women who decide to continue with their pregnancy).

Bernal, J., dissented in part and concurred in part. He highlighted four points. First, the balancing test performed by the Court in Decision C-355/2006 should be adjusted to strengthen the protection of unborn children. Considering scientific evidence that reveals that unborn children develop the ability to feel pain between weeks 7-18, the new balancing test should limit the timeframe in which abortion is allowed in the three events mentioned in Decision C-355/2206. Second, there is a protection deficit of women who plan to have an abortion because they do not have enough information about the physical and psychological effects of such procedures. Third, there is also a protection deficit concerning the rights of the fathers of unborn children whose mothers want to have an abortion. Therefore, the State should determine ways in which fathers can participate in or consent to abortion procedures. Finally, Justice Bernal considered that the Colombian constitutional caselaw has not recognized a constitutional right to abort, and therefore there is no duty to promote such practice.

Pardo, J., submitted a concurring opinion. She clarified that she does not agreed with the standard set by judgment C-355 of 2006, or the following decisions that followed this ruling. Justice Pardo stated that nasciturus are not just relevant values, as those decisions consider, but human lives, different from their mothers, with fundamental rights of their own.

3. Other major constitutional decisions

Animal’s rights. In decision SU-016/2020, the Constitutional Court overruled a Supreme Court’s judgment that granted the right of habeas corpus to an spectacled bear (oso chucho). Oso chucho had lived in captivity in a natural reserve for more than 18 year. In 2017, the local environmental authorities of Caldas (Corpocaldas) decided to transfer him to a zoo in Barranquilla. Few days after, a petitioner filed an habeas corpus action in favor of oso chucho arguing that the zoo in Barranquilla was not an appropriate environment for the bear’s living and, therefore, the transfer violated its right to liberty under Section 30 of the Constitution. The Supreme Court concluded that animals were subject of rights and the habeas corpus action could be filed to guarantee their protection. Therefore, it ordered that oso chucho had to be transferred back to the natural reserve where it had lived or to any other place that guaranteed an appropriate living environment. The director of the zoo in Barranquilla filed a tutela against the Supreme Court arguing that its decision violated the right to due process given that under the Colombian Constitution (i) animals are not entitled to the right to habeas corpus, and (ii) the habeas corpus action could only be filed in order to protect individuals right to liberty from illegal or arbitrary detentions by public authorities.  

The Constitutional Court rejected the submission that “oso chucho” was entitled to habeas corpus. It recognized that the Constitution grants legal protection to animals and prohibits their abuse based on their recognition as “sentient beings”. It also found that their protection was independent from the protection granted to the environment, given that animals have a “value of their own”. However, the Court was not convinced with the Supremes’ Court holding that such protection meant that an habeas corpusaction could be filed in order to protect animals’ liberty. On the contrary, it argued that such action was only meant to protect individuals from illegal or arbitrary detentions and, therefore, the protection of the well being of animals had to be sought by other means. In this sense, the Constitutional Court concluded that the Supreme Court violated the Barranquilla zoo right to due process because it processed the debate between oso chucho and the zoo by an action not fitted to such purposes. Justices Fajardo and Rojas dissented arguing that the Court’s decision only addressed the procedural debate of the matter but did not referred neither it gave any relevance to oso chucho’s rights and their protection.

Special jurisdiction priviliges. In decision SU/146 of 2020, the Constitutional Court ruled on the existence of the right to appeal of ministers entitled to special jurisdiction privilege (fuero). Section 235.5 of the Colombian Constitution provides that ministers are entitled to a special jurisdiction privilege by virtue of which they can only be judged and convicted by the Supreme Court of Justice in first and final instance when they are accused of a criminal offense. Given that the Supreme Court is the highest judicial instance of the country in criminal matters, its decisions cannot not be appealed or reviewed. In this case, the Supreme Court rendered a guilty verdict against Andres Felipe Arias, former Minister of Agriculture. Andres Felipe Arias filed an appeal against such decision that was rejected by the Supreme Court on the basis that under Colombian law, its decisions were not subject to appeal nor revision. 

Andres Felipe Arias filed an acción de tutela before the Constitutional Court arguing that the Supreme Court decision that denied the right to appeal violated (i) the due process clause provided in article 29 of the Constitution, (ii) article 8.2(h) of the American Convention of Human Rights (ACHR) which establishes that every person has the right “to appeal the judgment to a higher court” and (iii) article 14.5 of the International Covenant on Civil and Political Rights (ICCPR) that grants everyone convicted of a crime“the right to his conviction and sentence being reviewed by a higher tribunal according to law”. Thus, the question before the Constitutional Court was whether international human rights law granted ministers the right to appeal criminal convictions despite of the fact that (i) the Constitutional design of the minister’s special jurisdiction privilege implicitly ruled out that right and (ii) under Colombian law there is no “higher court” entitled to revise guilty verdicts rendered by the Supreme Court.

The majority of the Constitutional Court found that that the Supreme Court violated the petitioner’s right to due process. At the outset, the majority of the Court hold that articles 8.2(h) of the ACHR and 14.5 of the ICCPR were part of the Constitution. Furthermore, the Court noted that both the Interamerican Court of Human Rights in Liakat Ali Alibux vs. Suriname and the Human Rights Committee in General Observation 32 of 2007, had ruled that in a national criminal system in which the highest court of a country acts as first and only instance, the absence of any right to review or appeal a conviction by a higher tribunal, was incompatible with international human rights law standards. Accordingly, the Court concluded that despite of the fact that the Constitution did not entitled Andres Felipe Arias with a right to appeal its conviction, such right derived from international human rights law. Therefore, the Court overruled the decision that denied the appeal and ordered the Supreme Court to review the conviction.

Decision SU/146 of 2020 is a landmark decision in regard to the relation between the Colombian Constitution and international human rights law for two main reasons: (i) it defined the weight that should be accorded to decisions of the Interamerican Court and other international bodies such as the Human Rights Committee under Colombian law when interpreting fundamental rights and (ii) it implicitly accepted the view that the scope of fundamental rights provided for in the Constitution must necessarily de construed in accordance with international human rights standards.

Public access to criminal proceedings. In decision SU-141/2020,the Constitutional Court rendered a seminal decision in regard to public access to criminal proceedings, proportionality of closing orders and their relationship with the freedoms of press and information. Section 18 of Law 906/2004 provides that judges may close criminal proceedings to public when necessary to (i) secure the safety of victims, juries, witnesses and other parties and (ii) guarantee the normal course of the investigation. The petitioners – a group of journalists- argued that a lower criminal Court violated their freedom of press and expression because it rendered a closing order that denied their access to information of a criminal proceeding against a public official for alleged acts of corruption. The low criminal Court argued that the exclusion of the press and public in the proceedings was legitimate under section 18 of Law 906/2004 because it was aimed at protecting the safety of victims and witnesses and ensuring the appropriate course of the trial.

The Constitutional Court found that closing order was contrary to the freedom of press and information of the petitioners, for two mains reasons. First, it hold that criminal judge’s power to close proceedings under section 18 of Law 906/2004 was discretionary but could not be exercised arbitrarily. The lower judged order was arbitrary because it was based on a narrow construction of section 18 of Law 906/2004 that did not took into the consideration the effects that such orders have in the exercise of the freedoms of press and information. Second, the Court considered that the media’s right to gain access to, observe and report on, the administration of justice was paramount in democratic societies.  Therefore, closing orders had to be exceptional and proportional vis-à-vis the freedoms of press and information. Accordingly, closing orders would only be proportional if they (i) pursue a legitimate aim, and (ii) are suitable, necessary and proportionate. In this case, the closing order was not proportionate because it was not necessary. The Constitutional Court observed that the criminal judge did not examined if there were alternative means to protect the safety of witnesses and ensure the normal course of proceedings without limiting public access to the proceedings. Such analysis was essential given that the exclusion of journalists severely limited the freedom of press and information in a proceeding that was of great significance to the society as it involved a public official accusation of corruption.

Surveillance camera systems. In decision C-094/2020, the Constitutional Court delivered its eagerly awaited judgment on Colombia’s legal framework on surveillance camera systems. In particular, the Court examined the constitutionality of Sections 32, 146 and 237 of Law 1801/2016 -Police Code-. Section, 32 defines privacy as the individual “space that is excluded from others”. On the other hand, section 146 orders public transportation companies to install video surveillance cameras inside the buses, trains, plains etc. Finally, section 237 institutes the obligation that all information, images and data collected by video camera systems placed in public spaces or places “open to public” must be connected and delivered to National Police databases. It also establishes that the information collected on those systems is considered public and has unrestricted access.

The Constitutional Court upheld the constitutionality of such norms. It found that the legal framework on camera surveillance pursued legitimate constitutional aims such as crime prevention. However, it fixed three important safeguards in order to protect the right to privacy of citizens. First, it found that the right to privacy protected a “personal ontological sphere” of individual, not a specific place or space. According to the Court, the right to privacy grants citizens a protection to their private life even in public spaces or places open to public. Therefore, the fact that camera systems were placed in public spaces or places open to public did not rule out the right to privacy of individuals. Second, the Court held that the nature of the information and the protection to which it was entitled did not depended on the place where the camera system are installed. Therefore, the fact that surveillance cameras were installed in public spaces did not entail that all the information collected was also public. Third, the Court also considered that the collection of data by this type of systems was subject to the principles of legality, necessity, finality, restricted access and confidentiality.

IV. Looking ahead

In 2021 the Constitutional Court will deal with cases related to the core 2020 matters. Some of them concern the limitations to freedoms resulting from the measures issuing for dealing with the contention of the Covid-19 pandemic. It is also foreseeable that the Court will select for review cases about constitutional rights relevant to the protests. Finally, the Court should finally decide pending cases concerning the redistribution of land and the supervision concerning the fulfilment of the government’s commitments arising from the 2016 peace agreement.

Suggested Citation: Carlos Bernal, Diego González, Maria Fernanda Barraza, and Sebastián Rubiano-Groot, Colombia | 2020 Developments in Constitutional Law, Int’l J. Const. L. Blog, November 26, 2021, at: http://www.iconnectblog.com/2021/11/colombia–2020-developments-in-constitutional-law


[1] Ministry of Health and Social Protection of Colombia.

[2] Ministry of Health and Social Protection of Colombia. Resolution 385/2020. https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=119957#:~:text=ART%C3%8DCULO%201%C2%BA.&text=Decl%C3%A1rase%20la%20emergencia%20sanitaria%20en,se%20incrementan%2C%20podr%C3%A1%20ser%20prorrogada.

[3] Administrative Department for the Presidency of the Republic of Colombia. Decree 417/2020. https://dapre.presidencia.gov.co/normativa/normativa/DECRETO%20417%20DEL%2017%20DE%20MARZO%20DE%202020.pdf

[4] Administrative Department for the Presidency of the Republic of Colombia. Decree 637/2020. https://dapre.presidencia.gov.co/normativa/normativa/DECRETO%20637%20DEL%206%20DE%20MAYO%20DE%202020.pdf.

[5] Resolutions 844/2020, 1462/2020, 2230/2020, 2221/2021.

[6] Government of Colombia. https://coronaviruscolombia.gov.co/Covid19/index.html

[7] Law 2064/2020, by which the Congress declared of general interest the strategy for immunization of the Colombian population against the COVID-19.

[8] Congress of the Republic. http://www.senado.gov.co/index.php/prensa/noticias/1932-ministro-de-defensa-responde-cuestionamientos-de-senadores-en-debate-de-control-politico

[9] Constitutional Court of Colombia. https://www.corteconstitucional.gov.co/micrositios/estado-de-emergencia/

[10] Article 136 of Law 1436/2011.

[11] Ministry of Health and Social Protection of Colombia. Resolution 385/2020. https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=119957#:~:text=ART%C3%8DCULO%201%C2%BA.&text=Decl%C3%A1rase%20la%20emergencia%20sanitaria%20en,se%20incrementan%2C%20podr%C3%A1%20ser%20prorrogada.

[12] Administrative Department for the Presidency of the Republic of Colombia. Decree 417/2020. https://dapre.presidencia.gov.co/normativa/normativa/DECRETO%20417%20DEL%2017%20DE%20MARZO%20DE%202020.pdf

[13] Administrative Department for the Presidency of the Republic of Colombia. Decree 637/2020. https://dapre.presidencia.gov.co/normativa/normativa/DECRETO%20637%20DEL%206%20DE%20MAYO%20DE%202020.pdf.

[14] The State of Health Emergency has been extended by the MHSP through Resolutions 844/2020, 1462/2020, 2230/2020, and 222/2021.

[15] Administrative Department for the Presidency of the Republic of Colombia. Law 2064/2020.  https://dapre.presidencia.gov.co/normativa/normativa/DECRETO%20637%20DEL%206%20DE%20MAYO%20DE%202020.pdf.

[16] Ministry of Health and Social Protection. https://www.minsalud.gov.co/salud/publica/PET/Paginas/Documentos-Administrativos-covid-19.aspx

[17] Administrative Supreme Court of Colombia. Article 189 of the Constitution. Law 1436/2011.

[18] Articles 212 to 215 of the Constitution.

[19] Government of Colombia. https://coronaviruscolombia.gov.co/Covid19/index.html

[20] Constitutional Court of Colombia. https://www.corteconstitucional.gov.co/micrositios/estado-de-emergencia/

[21] Article 136 of Law 1436/2011.

[22] Report of Immediate Judicial Review regarding COVID-19 regulations. Council of the State. 4 December 2020.

[23] In Decision C-355/2006, the Court determined that the crime of abortion is not committed when the interruption of pregnancy is caused with the consent of the woman in three cases: (i) when a physician certifies that the pregnancy constitutes a danger to the life or health of the woman; (ii) when a physician certifies that the fetus has a serious malformation which makes its life unviable; and (iii) when the pregnancy is the result of carnal access or sexual act without consent, abusive or non-consensual artificial insemination or transfer of a fertilized ovum, or incest  and the victims have filed a criminal action against that conduct.

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Published on November 27, 2021
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