Colombia

Share |

Colombia
Angie Vega (2018)


 

Colombia is a country located in the southwestern part of South America. The country is ecologically diverse, with Pacific and Caribbean coastlines, Amazon rainforests, and tropical grasslands. It is considered a "megadiverse country" that ranks as the first country in the world for diversity of bird species.

As a Civil Law country, Colombia’s legal system is mainly based on codes and laws rather than jurisprudence. One of the main characteristics of civil law countries is that their legal system does not recognize the jurisprudence as part of their legal bodies, which means that court’s decisions are only binding for the parties involved rather than for everyone. Judicial decisions are applied case by case and serve as a reference for other judges. However, in Colombia, as well as in some other civil law countries, the high courts’ decisions have gained more power and their scope is not limited as it was previously. In certain occasions, especially in high profile cases where the matters are controversial, a court’s interpretation of the law is just as important as the written law itself.

The Colombian National Constitution of 1991 states in Article 1 that “Colombia is a social state of law, organized in the form of a unitary, decentralized republic, with autonomy of its territorial entities, democratic, participatory and pluralist." This means that the central government has the power to make the most important political decisions. Colombia only has a legislative authority, which is responsible for making the laws for the entire territory. The country is divided in territorial entities called departments (equivalent to states in the U.S.) that are separated into districts and local municipalities. These entities do not have legislative or judicial authority. However, as the executive branch of Colombia is administratively decentralized, there are representatives in the departmental, district, and municipal department levels. The representatives in these three levels have certain limited powers that are independent from the central authority.

The political power is distributed in three branches. These branches, according to Article 113 of the Constitution, are the executive branch, legislative branch, and judicial branch. They all have independent roles, but are “designed to work harmoniously for the realization of the nation’s goals.”

The executive branch is managed by the President. Governors, mayors, and ministries report to their respective leaders. For instance, mayors report to the respective governor and the president. Governors report to the president. (Constitución Política de Colombia, Art 115. (1991)).

The Legislative branch’s duty is to amend the constitution, make laws, and exercise political control over the government and the administration. Congress is the body in charge of the legislative function and it is made up of the Senate and the House of Representatives. (Constitución Política de Colombia. Art. 114. (1991)).

The Judicial branch administers justice. The judicial branch in Colombia has four higher courts, which are the last instance for the three most important jurisdictions: ordinary, administrative and constitutional. (Constitución Política de Colombia. Art. 116. (1991)).

The higher courts of the judicial branch are:

  1. The Supreme Court of Justice: the highest court of the ordinary jurisdiction that hears claims against the president and investigates the members of congress (Constitución Política de Colombia. arts. 234-235. 1991)
  2. The Constitutional Court: decides on constitutional claims and studies the constitutionality of the laws (Constitución Política de Colombia. Arts 239-241. 1991)
  3. The Superior Council of the Judiciary: investigates the conduct of the judicial officials (Constitución Política de Colombia. Art 257. 1991)
  4. The State Council: the highest body of the administrative jurisdiction. It advises the government on administrative matters. (Constitución Política de Colombia. Arts 236-238 1991)

The Constitutional Court must decide among others on claims that involve controversial matters such as abortion, same-sex marriage, adoption, and now bullfighting as part of its constitutional duty. Congress’ main duty is to “make the laws of the Nation," but it has shown itself reluctant to rule when it comes to legislating on the current most controversial topics. As a result of this passivity, the Constitutional Court has had to rule in the absence of Congress in these crucial matters through judicial decisions. This gives the Colombian court’s decisions a similar scope to the high court decisions in common law countries.

Related articles

Legal Framework of Bullfighting and Societal Context in Colombia

Related cases

Colombia Cases (Complete List)

Significant Cases:

Decision AHC4806, 2017: The Supreme Court of Justice rules in favor of the spectacled bear, ‘Chucho’, granting him the habeas corpus after the bear’s attorney challenged the lower court decision that denied it. Attorney Luis Domingo Maldonado filed an habeas corpus in representation of the bear that was denied on first instance by the civil chamber of the Superior Tribunal of Manizales. Attorney Luis Domingo Maldonado argued that the current legal system did not have a specific proper mechanism that allowed the taking of immediate and urgent measures to protect the rights of animals as sentient beings to retire them for centers of captivity when they have spent their lives in natural reserves. The Civil Chamber reversed the decision on first instance, and ordered the relocation of Chucho from the zoo in Barranquilla to a more appropriate location of semi-captivity conditions. In its reasoning, the magistrate judge stated that animals are entitled to rights as sentient beings, not as humans, and that the idea is to insert a morality of respect to counter a global ecological public order where the tendency of men is to destroy the habitat. After long considerations, the chamber stated that it is necessary to modify the concept of ‘subject of rights’ in relation with nature, understanding that who is subject of rights is not necessarily correlatively-bound to have duties.

Sentencia de Tutela Juzgado 3 de Bucaramanga de 25 de julio de 2017: This is the first time an animal, more specifically a dog, filed a lawsuit seeking that the government grant protection for the dog’s rights to life and health. The judge denied the action of "tutela" filed by the dog ("Negro") based on the definition of person given by the civil code. As a result, the judge concluded that "Negro" was not a person and therefore was not entitled to have rights. However, there is a possibility that the Constitutional Court on appeal will grant the plaintiff the rights he is seeking based on Decision T-622 de 2016, where the court declared that a river was subject to rights that guarantee its protection, conservation, maintenance, and restoration, and that the government was the main guarantor of these rights.

Sentencia C-041, 2017: The court held unconstitutional Article 5 of Ley 1774 of 2016 that referred to the Article 7 of the Statute of Animal Protection. Article 7 contains the seven activities that involve animals for entertainment that are exempted from the duty of animal protection. The practices permitted correspond to rejoneo, coleo, bullfighting, novilladas, corralejas, becerradas and tientas (all variations of bullfighting), cockfighting and all the related practices. Even though the court held that the legislature had fallen into a lack of constitutional protection towards animals, and stated that bullfighting was cruel and inhumane, it deferred the effects of its sentence and gave Congress a two-year period to decide whether bullfighting and the other exception established in Article 7 of the Statute of Animal Protection will continue to be legally allowed. If after this period, the Congress has not legislated on the matter, decision C-041, 2017 will take full effect and bullfighting along with all the practices established in Article 7 will be considered illegal.

Sentencia T-095, 2016: In this decision, the court drew a line between the concept of animal welfare and the concept of animal rights. The Plaintiff brought an action of ‘tutela’ (Constitutional mechanism that is preferential and summary, created for the sole purpose of protection of fundamental rights) against ‘la Personería Local of Fontibón’, the local Mayor’s office of Fontibon, the District Secretary of Health, the Zoonosis Center and the Distril Secretary of the environment of Bogota. The Plaintiff argued that these governmental entities had violated his fundamental right to petition and the right to animal welfare of twenty five dogs, when the authorities ordered the confiscation the canines that were located in the District Ecological Park of the Wetland of Capellanía and who were cared for by volunteers. The Plaintiff argued that the Defendants did not respond to his request to provide funds to build a shelter and provide food and veterinary assistance of the dogs or funds to relocate them. The court held that there was a constitutional duty of animal protection that derives from the duty to protect the environment. However, this duty to guarantee the well-being of animals as sentient beings is not absolute and may be subject to exceptions. The court determines that the mandate to protect the environment, which includes sentient beings, does not translate into a right to animal welfare, and for that reason such duty is not enforceable through an action of tutela.

Sentencia C-283, 2014: This is an unconstitutionality claim against Articles 1º, 2º and 3º of Ley 1638, 2013 that prohibit the use of native and exotic wild animals in circuses. Plaintiffs argued that these Articles violated numerous provisions of the Constitution, including the right to work, right to choose a profession, rights to culture and recreation, and a violation to the freedom private initiative of the owners of the circuses. In decision C-283, the court held that Congress has the power to prohibit certain cultural manifestations that involve animal cruelty. The Court stated that “culture needs to be permanently reevaluated so it can adapt to human evolution, to guarantee of rights and the fulfillment of duties. Especially when the purpose is to eliminate the traces of a marginalized society that has excluded certain individuals and collectives.” The court also stated that the duty to protect animals is not absolute, as its application can be limited by values, principles and constitutional norms in specific cases that are contradictory to the principles. The Court held Article 1 of Ley 1638, 2013 constitutional, and refrains from deciding on the constitutionality of Articles 2 and 3, for lack of evidence to render a decision.

Sentencia C-889, 2012: Decision C-889 grants constitutional value to animal protection. On this opportunity, the court decided on the constitutionality of Arts. 14 and 15 of the statute of Bullfighting Statute. It establishes the criteria that must be met in order for bullfighting to be legal: (1) Bullfighting has to meet the legal conditions established for public shows in general; (2) Bullfighting must meet the legal conditions established in the statute that regulates the taurine activity, Ley 916 of 2014; and (3) Bullfighting must comply with the constitutional conditions, restrictions, and limitations established in decision C-666 of 2010 to satisfy the mandate of animal welfare, animal protection, and to avoid suffering and pain. It must also satisfy social ingrain, location, opportunity, the condition of no financial funds, and exceptionality.

Sentencia C-666, 2010: The Constitutional Court decided on an unconstitutionality claim against Article 7 of the Statute of Animal Protection Ley 84 of 1989 that corresponds to the exceptions to the duty of animal protection. Through Decision C-666, the court limits the scope of the legality of bullfighting, establishing certain requirements. In its holding, the Court stated that the seven practices in Article 7 would not violate the Constitution, so long as they were done within the following parameters: (1) As long as it is understood that these animals should, in all cases, obtain special protection against suffering and pain during the execution of these activities. This exception allows the continuation of cultural expressions and entertainment with animals, so long as exceptionally cruel acts against these animals are eliminated, or lessened in the future in a process of adaptation between cultural expressions and duties of protection to animals; (2) These practices can only take place in municipalities and districts in which the practices are themselves a manifestation of a regular, periodic and uninterrupted tradition, and therefore their execution responds to a certain regularity; (3) These practices can only take place during occasions in which they have commonly taken place and in the municipalities and districts where they are authorized; (4) These are the only practices that are authorized to be part of the exception in Article 7 to the constitutional duty to protect animals; and (5) Municipal authorities cannot economically support the construction of installations for the exclusive execution of the activities listed in Article 7 with public funds.

Sentencia T-622/16, 2010: This is not a judicial decision that touches on animal welfare issues. However, it is important to mention as the Constitutional Court granted for the first time the status of legal person to a river. The Plaintiff, ‘Centro de Estudios para la Justicia Social “Tierra Digna”’ brought an action of ‘tutela’ (Constitutional mechanism that is preferential and summary created for the purpose of protection of fundamental rights) in representation of various community councils of the Atrato region in the Colombian Pacific against the Presidency of the Republic and others. After holding that the action of ‘tutela’ was the appropriate mechanism for the protection of the fundamental rights of the ethnic communities, the court established in its ruling that the right to water was a fundamental right, as it is a necessary component to the right to a dignified life, and it is essential for many organisms that inhabit the planet to be able to survive. In a new approach, the court held that the Atrato River is subject to rights that imply its protection, conservation and maintenance and instructs the national government to be the guardian and to exercise the river’s legal representation through the president or whichever he appointed, along with the ethnic communities that inhabit the basin of the river. Thus, it guarantees the Atrato river is represented by a member of these communities and a delegate of the Colombian government.

Sentencia C-1192, 2005: Decision C-1192/05 decides on a claim of unconstitutionality against Articles 1, 2, 22 and 80 of the Taurine Regulatory Statute ley 916 of 2004. In this occasion, the court upheld the constitutionality of this law confirming bullfighting as an artistic expression allowed by the Constitution: “A manifestation of Colombia’s diversity, as intangible good that symbolizes one of the many historical-cultural traditions of the Nation.” The Court stated that since bullfighting is a cultural manifestation of the nation, children do not need to be protected from this practice. The Court believes “children should be provided the opportunity to attend these events so that they can learn and judge for themselves if bullfighting is an art form, or an outdated violent practice. For that reason, the statute does not violate the fundamental rights of children. The court also held that bullfighting is not part of the interpretation of Article 12 that corresponds to the prohibition of torture. With this decision, the Constitutional Court affirms that animals, in this case bulls, are not entitled to any rights. The court considered tradition and culture of a higher value than animal protection.

 

Related laws

Colombia Laws (Complete List)

Signiciant animal protection laws:

Colombia, LEY 1774, 2016: This law modifies the Animal Protection Statute Ley 84, 1989 by modifying the Civil Code and the Criminal Code. Ley 1774 changes the status of the animals in the legal system, by declaring that all animals are ‘sentient beings’, subject to special protection against pain and suffering. The duty of animal protection, is established as a collective responsibility where the government and the citizens are required to assist and protect animals. Citizens have the duty to report when an animal is being subject to cruelty. 

Colombia, LEY 1753 DE 2015: This law adopts the National Development Plan for 2014-2018, denominated “All for a new country." Article 248 states: “Public policy in defense of animal rights and/or animal protection. The national government will promote public policies and governmental actions in which the rights of animals and/or animal protection are promoted and promulgated. To accomplish this goal, the national government will work in coordination with social organizations of animal defense to design policies where concepts, institutional powers, conditions, aspects, limitations and specifications on animal care regarding the reproduction, possession, adoption, production, distribution, and commercialization of domestic animals not suitable for reproduction will be established. The territorial and decentralized entities will be responsible for monitoring, controlling, and promoting respect for animals and their physical and mental integrity.”

Colombia, Ley 1638, 2013: Ley 1638, prohibits the use of wild animals, native or exotic as part of shows in circuses in the entire country. To accomplish this goal, Ley 1638 gave circuses a two-year deadline to make the transition and re-purpose their shows without the use of wild animals. After the two year-period, national and local authorities would not be able to issue any licenses allowing the use of wild animals for this kind of shows. This law does not include the use of domestic animals. 

Colombia, LEY 916, 2004 National bullfighting Statute: Ley 916, or National Bullfighting Statute, declares bullfighting as “a form of artistic expression”. This statute has national scope, and regulates everything concerning the preparation, organization and development of bullfighting, giving a status of legality in the legal system. The Taurine Statute discusses topics such as the characteristics of the bullring, the name of different areas in the ring, and their purpose. It has an extensive glossary explaining the different methods utilized during the different phases of the bullfight, procedures to weaken and kill the bull, the moves of the animal and the bullfighters. This statute defines the name of the weapons and how and when to use them. It notes requirements such as that every bullring stadium must provide medical assistance for the participants, with all least four specialized doctors in every bullfight. While on-site medical care is outlined for the human participants, no veterinarian is required to be present during the execution of the bullfight. 

Colombia, LEY 84, 1989 Statue of Animal Protection: Ley 84 is the National Statute of Animal Protection in Colombia. Ley 84 establishes the general duties of humans towards animals. Among these duties includes the duty to provide animals with enough food, water and medicine to guarantee their well-being; the duty to provide animals with appropriate space so they can move adequately; and the duty to provide appropriate shelter. Article 7 contains the exceptions to the duty to protect animals, meaning that the practices listed in this section are legal under the current legal system even though they might be inherently cruel. This exceptions correspond to the different variations and forms of bullfighting rejoneo, coleo, las corridas de toros, novilladas, corralejas, becerradas y tientas, and cockfighting. Ley 84 also regulates the slaughter of animals for non-consumption, animals in experiments and research, animal transportation, as well as hunting and fishing, resources, penalties, legal competency, and procedures to follow in regards to this law.

 

Related Links

ADA asociación defensora de animales y del ambiente http://www.adacolombia.org/:

ADA asociación defensora de animales y del ambiente está conformada actualmente por ciudadanos quienes conscientes de su responsabilidad social aportan su tiempo y sus recursos para motivar en la comunidad la conciencia del cuidado y preservación del ambiente y el respeto y protección a los derechos de los animales. Somos una entidad de carácter totalmente privado, estamos reconocidos con personería jurídica No. 5310 del Ministerio de justicia y registro de cámara de comercio vigente como ESAL (entidad sin ánimo de lucro).

 

Share |