Violence continues to affect trade union leaders and members in Colombia, in particular in the rural areas formerly occupied by the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP or FARC). As stated in the report of the Committee of Experts on the Application of Conventions and Recommendations (ILO, 2021[11]), this phenomenon particularly affects trade unions in agriculture, education, energy and mining. In 2021, the National Trade Union School (Escuela Nacional Sindical, ENS) reported 14 cases of homicides of members of trade unions, three more than the number reported by the Prosecutor General’s Office (Figure 5.1).1 According to ITUC (2021[3]), Colombia remains the deadliest country for trade union members. The number of homicides was particularly high in 2018, when ENS recorded 34 homicides and the authorities 30 homicides. Even so, the cases for both 2019 and 2021 were below the homicides observed between 2010 and 2017 (with an average of 27/29 homicides according to the authorities/ENS respectively), and only a fraction of the cases in previous decades.
OECD Reviews of Labour Market and Social Policies: Colombia 2022
5. Crimes against trade unionists
Recent statistics on violence against trade unionists
Figure 5.1. Violence continues to affect trade unionists in Colombia
Number of homicides and other types of violence against trade unionists, 2017‑21
Note: The ENS data for 2021 refer to the period January-November 2021. **Other types of violence include forced displacement, disappearance, torture, harassment, arbitrary detentions, illegal searches, threats, and other attempts against life.
Source: Information system on human rights (SINDERH) of the National Trade Union School (ENS) and the Prosecutor General’s Office.
Based on ENS data, other types of violence (such as threats, forced displacement, disappearance, torture, etc.) significantly dropped in recent years, from 202 cases in 2018 to 116 in 2020. Especially threats saw a considerable decrease, from 175 in 2018 to 86 in 2020. In 2021, the number of other types of violence cases increased again slightly.
The role of the Colombian Mobile Anti-Disturbances Squadron (ESMAD)
During Colombia’s accession process to the OECD, concerns were expressed about the excessive use of force of the Colombian Mobile Anti-Disturbances Squadron (Escuadrón Móvil Antidisturbios, ESMAD), which is the Unit of the National Police that carries out specific procedures in attention, management and control of crowds (including strikes and demonstrations). Meanwhile, the government has been taking measures to improve their function, including educating ESMAD members on the respect of human rights and adherence to operational procedures; incorporating more female agents (3% of the total agents by 2021); and reducing their participation in labour demonstrations (13.1% of the ESMAD’s interventions were in demonstrations for labour issues in 2019 compared to 26.9% in 2018).
However, ESMAD’s role remains problematic. On 22 September 2020, in judgment STC 7641‑2020, studying a particular case under the mechanism of tutela (a constitutional action for immediate legal protection of human rights), the Civil Cassation Chamber of the Supreme Court of Justice stated that the security forces, especially the ESMAD, are a serious and present threat to the participants on peaceful demonstrations, and that their agents harboured deep-seated stereotypes about the protest.
According to the information provided by the government to the Inter-American Commission of Human Rights (IACHR) within the framework of the national strike of 2021 (28 April to 4 June), the ESMAD intervened in 1 418 of 12 478 protests, in order to counter acts of violence (IACHR, 2021[23]). However, civil society and international actors reported unnecessary or disproportionate use of force during the protests by ESMAD members. According to the Office of the UN High Commissioner for Human Rights (OHCHR, 2021[24]), there are reasonable grounds to believe that ESMAD members were responsible for at least 10 of the deaths reported during the protests.2 Furthermore, the IACHR received accounts from civil society, describing ESMAD officers using physical, sexual, and verbal aggression to break up demonstrations, points of resistance, and other peaceful gatherings.
In compliance with the decision of the Supreme Court of Justice (2020[25]), the government issued the “Statute of reaction, use and verification of legitimate force of the State and protection of the right to peaceful citizen protest” by the Decree 003 of 1 March 2021. Additionally, the National Police presented the Directive 05 of 2021 with institutional parameters to provide guarantees for those who exercise the right of assembly and public and peaceful demonstration; as well as guarantee the rights of other citizens who do not participate in these activities. The Resolutions 1682 and 1716 of 2021 issued by the National Police also strengthened the guarantees for the protection of the right to protest. Nevertheless, a statutory law is still required to regulate the exercise of the right of protest as is stated by the Political Constitution. Furthermore, there is a general call from different stakeholders for a broad national debate on police reform, including the possibility of transferring the police from the Ministry of Defence to civilian control, and improving internal oversight and accountability mechanisms (OHCHR, 2021[24]). Colombia also committed to examine, critically and independently, the role of the ESMAD and their use of excessive force under the Canada-Colombia Action Plan (Employment and Social Development Canada, 2018[10]).
Protection of trade unionists
Over the past years, the number of trade unionists covered by the protection programme for trade unionist decreased, from 677 in 2014 to 296 in 2020 and 255 in 2021. The decrease reflected the drop in the number of requests for protections presented by trade unionists, from 2010 in 2017 to 726 in 2021. The overall approval rates of protection requests vary over the years, ranging from about 12% in 2017 and 2020 to 18% in 2018 and 29% in 2021. The main reasons to reject protection requests include: (1) devolution of the file because the subject of protection is presenting new facts for a request that is already under study; (2) the request must be attended by other entity; and (3) incomplete paperwork to present the request.
In trade unions’ comments to the first post-accession report of the Colombian Government to the ELSAC (CUT, CTC and CGT, 2021[5]) and in the Report of the Committee of Experts on the Application of Conventions and Recommendations of the ILO (2021[11]), delays and ineffectiveness in implementing the protection measures by the National Protection Unit (Unidad Nacional de Protección, UNP) were reported. According to their information, only 38% of the requests presented in 2019 and 2020 were evaluated and around 50% of the measures implemented for trade unionists were discontinued.
Even though the total budget of the UNP, the entity in charge of the programme, has increased over the years, the resources assigned to the protection of trade unionists have been gradually declining since 2014 (in line with the reduced number of trade unionists in the programme). The protection budget nearly halved from EUR 13.6 million in 2014 to EUR 7.6 million in 2020 and EUR 7.5 million in 2021.
The government adopted two reforms to improve protection measures implementation by the UNP. First, Decree 2078 was issued in December 2017 to establish a procedure for collective protection mechanisms for groups and communities. Six trade union organisations requested such collective protection mechanisms; only one, the CUT (Central Unitaria de Trabajadores de Colombia) is now covered by a collective protection mechanism, two cases remain under evaluation by the UNP, two organisations withdrew their case, and one case is closed.
Second, on 23 September 2021, Decree 1139 modified several rules regarding the programmes to protect the rights to life, freedom, integrity and security of people, groups and communities. Decree 1139 aims to cut in half the time to evaluate the risk of the victims of threats, from 62 calendar days to 30 business days. To do so, (1) it removed the Group of Preliminary Evaluation, distributing its functions between the CTAR (Cuerpo Técnico de Análisis de Riesgo) and the CERREM (Comité de Evaluación de Riesgo y Recomendación de Medidas); and (2) it included high-level officials in the CERREM, to be able to take prompt decisions, keeping the participation of delegates from vulnerable populations. For the evaluation of cases where the victim is a trade unionist, Decree 1139 included specific activities for the CTAR, such as consulting on their status and risk information in the “Archivo Sindical”, labour inspections, trade union organisations, firms, control agencies, etc. However, according with researchers from Human Rights Watch, this decree could undermine the protection of social leaders because: (1) removing the Group of Preliminary Evaluation diminishes the participation of stakeholders from civil society in practice; (2) the protection measures will have a time limit of one year if there are no new facts that change the risk; and (3) the applicant has to present a motivation to establish the risk of their family members and adopt measures in their favour, whereas previously that risk was presumed.
Prosecution of violence against trade unionists
The Colombian national authorities reported progress in the prosecution of crimes against trade unionists based on strategies that were particularly designed to investigate such crimes. Nevertheless, the number of cases solved remains low and the intellectual authors responsible for these crimes are very rarely identified. Even so, at 43.2% the rate of advance in the investigations of homicides against trade unionists between 2017 and 2021 is higher than for other cases of intentional homicide (29.7% for 2020). Of the 98 cases with 100 unionised victims of homicides that occurred between 1 January 2017 and 31 December 2021, 41 cases showed progress: 13 cases have sentences, 16 cases are in trial, 3 cases have formulation of charges, 8 cases are under investigation with arrest warrants in force, and in 1 case the investigation ended as a result of the preclusion of the criminal proceeding.3 The other 54 cases that are investigated under the ordinary jurisdiction remained without progress under preliminary investigation, and 3 cases are investigated under the indigenous jurisdiction. In other words, only 13.3% for cases occurred between 2017 and 2021 had a sentence at the time of writing.
The Prosecutor General’s Office is using two strategies to investigate the crimes against unionised persons. First, the investigation and prosecution follows the parameters of a crime against human rights defenders, in case the victim was not only unionist but also worked in defence of human rights. Second, the investigation and prosecution is developed as an intentional homicide against any unionised person. Also, some measures have been taken to investigate cases of threats against human rights defenders, such as: (1) the creation of a National Working Group made up of 10 specialised regional offices attached to the National Specialised Directorate against Human Rights Violations to follow up these cases; (2) the availability of a hotline, contact centre and an email to receive complaints; and (3) the creation of the specific criminal type of threats against human rights defenders, including labour leaders.
However, the Committee of Experts on the Application of Conventions and Recommendations of the ILO (2021[11]) and the U.S. Department of Labor (USDOL, 2021[20]) recommended to continue strengthen efforts to reduce impunity for these crimes, and investigate and prosecute the intellectual authors. In addition, the ENS (2021) stated some problems, including: (1) the omission of a context analysis in the investigation to identify criminal patterns; (2) the lack of compensation measures to ensure the violations are not repeated; and (3) the reduction of the capacity of the judicial power to deal with cases against trade unionists.
Investigations of violations of rights of assembly and association
The investigations of violations of rights of assembly and association, under Article 200 of the Colombian Criminal Code are not resulting in sanctions. In the period between 2017 and 2021 (until 13 December), the Prosecutor General’s Office received 1 094 complaints. Of these, 209 cases (19.1%) are active and 885 (80.9%) have been terminated, as follows: 512 cases have been archived, because the criminal conduct did not exist (55.9%) or the plaintiff was illegitimate (28.9%); 107 cases have been withdrawn by the complainant; 75 have been subsumed under other criminal cases; 73 cases have been conciliated; and 115 cases have been closed due to termination of the criminal action, preclusion, extinction of the complaint, among others. Overall, despite the high number of complaints for the violation of the right of assembly and association, not even one of the complaints received between 2017 and 2021 finished with a sentence. Of the 209 active cases, only 5 cases are in trial stage.
However, Colombian national authorities reported to the U.S. Government additional progress in processing a backlog of Article 200 cases received between 2011 and 2016 (USDOL, 2021[20]). Of the 1 840 cases under review in 2016, 98.5% were concluded by December 2020. However, only 9 out of the 2 705 complaints filed since 2011 have reached the trial phase. By the end of 2021, of these 5 cases remain in trial; 2 cases resulted in the absolution of the defendant; 1 case was dismissed; and only 1 case resulted in a conviction against the employer in August 2020, the first since the implementation of criminal penalties under Article 200 in 2011 (USDOL, 2021[20]). However, this conviction was appealed before the Colombian Supreme Court, and as a result of the expiration of the case, the Court decided to confirm the judgement of the first instance that exonerated the employer’s responsibility.
As it has been noted, conciliation remains a common way to close the investigations under Article 200. For the government, “it is an effective mechanism to guarantee the right of access to justice and to solve legal disputes in an expeditious manner, guaranteeing a timely restoration of the rights of the affected persons” (Mintrabajo, 2021[22]). According to the information provided by the Colombian national authorities to the Government of Canada, as a part of their strategy to manage these cases, the Prosecutor General’s Office has: (1) designated specialised prosecutors in seven regional directorates where the largest number of cases are located; (2) held conciliatory sessions to facilitate dialogue between the parties and, if no agreement was reached, ensured that the investigation moved to the next procedural phase; (3) fostered professional linkages between labour inspectors and local prosecutors in charge of processes under Article 200; and (4) trained 18 prosecutors on the right of freedom of association with the support of the Colombian Ministry of Labour and the ILO (Employment and Social Development Canada, 2018[10]).
Nevertheless, the ILO and the U.S. Government expressed concerns regarding the extent to which the access to justice for victims of violations under Article 200 is effective as there are no convictions (ILO, 2021[11]; USDOL, 2021[20]). There is also no follow-up mechanism to ensure the compliance of the conciliation agreement that usually ends the legal procedure under the criminal law. The regulation does not establish a term to follow up on the compliance of such cases nor does it allow for additional legal recourses under the same criminal procedure to argue the breach of the agreement. As a result, the only option for employees is to present a new lawsuit before a Civil Court to force the execution of the conciliation agreement, thus potentially making the legal procedure even more difficult.
In sum, the prioritising of investigations of crimes against trade unionists and the introduction of a dedicated investigation strategy and specialised teams have resulted in tangible progress in the fight against impunity over the past couple of years. Nevertheless, the number of sentences for both violence and violations of rights of assembly and association remain low and homicide rates remain high. Further efforts will be needed to bring down violence against trade unionists and investigate crimes.
Notes
← 1. The divergence in cases is related to differences in the methodology of recording and counting of events, selection of variables, inclusion criteria and sources (OECD, 2016[1]).
← 2. This number has also been mentioned by the Prosecutor General in an interview for the newspaper El Tiempo: https://www.eltiempo.com/amp/justicia/delitos/entrevista-fiscal-francisco-barbosa-hace‑balance‑de‑2021‑y-habla-de‑casos‑639973.
← 3. Preclusion is a procedural mechanism to finish a criminal process when the prosecutor deems there is no basis to continue the investigation under one of the circumstances expressly indicated in the Criminal Procedure Code (Article 332). These circumstances include the inexistence of the investigated fact, the impossibility to undermine the presumption of innocence, and the expiration of the maximum term for the judgment, among others.