T-025 of 2004
This seminal case concerns displaced persons in Colombia, whose rights were found to be violated in a systematic manner by the state and armed actors, thus leading the Constitutional Court to declare an unconstitutional state of affairs. In this decision, the Court addresses the humanitarian and human rights emergency caused by forced displacement and structural state policy failures, as well as the duty to progressively improve the material living conditions of the most disadvantaged sectors of society.
The Constitutional Court of Colombia (“the Court”) used its judicial review powers to assess the situation of displaced persons in Colombia. Around 1,150 family groups filed tutela or protection claims with their respective municipalities regarding the state’s duty to protect them due to their status as displaced persons. They requested aid, but the state denied aid or gave it for an incomplete amount of time, citing budgetary constraints.
The Court outlined its task in seven steps: (1) summarize the doctrine of the rights of displaced persons; (2) examine the state response to the phenomenon of internal displacement; (3) analyze the insufficiency of resources and its impact on the implementation of the public policy; (4) verify whether such state actions or omissions amount to an unconstitutional state of affairs; (5) indicate the authorities’ constitutional duties in regard to human rights obligations; (6) determine the minimum levels of protection that must be guaranteed to the displaced population; and (7) issue orders regarding the actions that must be adopted by the different authorities to protect the rights of the displaced population.
First, the Court discussed the rights of displaced persons, enshrined in Law 387 of 1997, which “established a level of comprehensive protection for internally displaced persons, and ordered to secure the resources required to fulfill such comprehensive assistance.” Citing this law, the Court rejected the State’s Decree 2569, which established a fixed maximum level of resources, arguing that the law states the resources must be “comprehensive” in their protection. Additionally, the Court rejected the argument that budget laws could modify the scope of Law 387, finding that:
From the constitutional point of view, it is imperative to appropriate the budget that is necessary for the full materialization of the fundamental rights of displaced persons. The State’s constitutional obligation to secure adequate protection for those who are experiencing undignified living conditions by virtue of forced displacement may not be indefinitely postponed. This court’s case-law has reiterated the priority that must be given to the appropriation of resources to assist this population and thus solve the social and humanitarian crisis generated by this phenomenon.
Second, the Court analyzed the status of internally displaced persons in the context of state action to ameliorate their situation. The Court found that in that year (2004), 92% of displaced persons had unsatisfied basic needs, 80% of the displaced population was living in poverty, 63.5% had insecure housing, and 49% lacked access to appropriate public utilities. In terms of education, 25% of displaced children between 6-9 years of age did not attend school and more than half (54%) of displaced youth between the ages of 10-25 did not attend school. In terms of health, persons experiencing displacement have six times higher mortality rates than the national average. The Court found the state lacking in its budgetary appropriations to mitigate this crisis. Additionally, the Court found the state had failed to properly inform displaced persons of the various legal avenues of relief they could pursue and, consequently, that persons experiencing displacement were not involved in the process of the tutela proceedings, did not know of them, lacked information about their rights, and did not know who the relevant authorities were.
Third, the Court found that the insufficiency of resources severely impacted the implementation of the public policy. For example, despite the recommendation to appropriate 45 thousand million pesos for 2001, and 161 thousand million pesos for 2002, the resources allocated to manage the situation of displaced persons, added up to 126.582 million, which the Court notes was “an amount that is quite inferior to the one required by the aforementioned documents.” The lack of appropriate funding worsened in 2003, where the money allocated was decreased by 32% when compared to the previous year.
Fourth, the Court clearly found that the state’s lack of appropriate funding to advance and protect the rights of displaced persons created an unconstitutional state of affairs. To make this determination, the Court relied on five factors: (1) the gravity of the situation of violation of constitutional rights; (2) the high volume of tutela actions filed by displaced persons; (3) the mounting evidence from the tutela proceedings, confirming that the violation of rights affects a large part of the displaced population as well as the failure from state authorities to adopt the required solutions; (4) the continuous violation is not attributable to one single state entity; and (5) the continued violations of the rights of displaced persons is due to structural factors. The Court highlighted that it had found an unconstitutional state of affairs only in seven other occasions, where violations were also structural, continuous, and affecting large swaths of the population. In similar reasoning, because the tutela actions had become a prerequisite for any type of government aid for displaced persons, the violations were continuous, and many entities were contributing to the ongoing violations, this case also merited the status of “unconstitutional state of affairs.”
Fifth, the court outlined the state authorities’ constitutional duties in regard to international human rights obligations. The Court emphasized that the International Covenant on Economic, Social and Cultural (ICESCR) requires that States design and implement public policies that are conducive to the progressive realization of Covenant rights, emphasizing that inaction is not permissible; that States must utilize “all appropriate means”, including not only legal, but also administrative, financial, educational and social means; and that measures must be targeted at advancing the enjoyment of rights, making “full use of the maximum available resources.”
Sixth, the Court found that state authorities had to conduct a balancing test and establish priority areas in which timely and effective assistance was provided to displaced persons. While the Court recognized the challenges in coordinating emergency aid amongst different affected territories and the restraints caused by limited state resources, it identified positive obligations that must always be satisfied by the State in relation to displaced people. The State has an obligation to guarantee a displaced person’s minimum rights to (1) life; (2) dignity and physical, psychological and moral integrity; (3) family and family unity; (4) basic subsistence and the right to a minimum subsistence income, which guarantees safe access to essential food and water, basic shelter and housing, appropriate clothing, and essential medical services and sanitation – this includes emergency humanitarian aid and special assistance to persons not in a condition to assume their own self-sufficiency, such as children, older adults, and women caretakers; (5) the right to health; (6) protection from discriminatory practices based on the condition of displacement; and (7) the right to education until the age of fifteen. The Court also found that the State had an affirmative duty to provide support in a person’s re-establishment and socio-economic stabilization, identifying and addressing specific conditions of each displaced person or family and incorporating responses to their circumstances into national or territorial development plans. These obligations may not be unduly delayed. Finally, the State must abstain from implementing or developing retrogressive policies.
Finding that the actions adopted by State authorities to guarantee the rights of the displaced population and the current resources allocated to guarantee those rights were not in accordance with the constitution, the Court tasked the National Council for Comprehensive Assistance to the Population Displaced by Violence (the Council)--the body charged with formulating policy and securing the budget regarding the displaced population--with designing and implementing a plan of action to overcome insufficiency of resources and flaws in institutional capacity. The Council was given two months to define the dimension of the budgetary effort needed, as well as to establish how the State, territorial entities and international cooperation will contribute to this effort. In the event that the Council, in evaluating the required budgetary effort and mechanisms to procure such resources, finds it not possible to comply with the commitments set forth in the State Policy, it may re-define the state’s commitment. Such re-definition must be conducted publicly, offer sufficient opportunity for the participation of displaced persons or their representatives and be justified by specific reasons. If the re-definition leads to a reduction of the scope of displaced persons’ rights, the decisions may not be discriminatory and must be temporary and conditioned on a future return to the path of progressive advance in the rights of displaced persons
As for the individual tutela actions filed by plaintiffs due to a lack of institutional response to the requests for provision of various aid afforded to displaced people, the Court ordered the relevant administrative agencies to comply with the aid requests, without delay, so long as plaintiffs meet the definition of a displaced person under Article I, Law 387 of 1997.
After the Court determined that a state of unconstitutional affairs did exist with regards to the displaced population, it set up additional procedures to ensure the gradual overcoming of the unconstitutionality. One of the structures that the Court created were those of autos de seguimiento. These autos were intended to give the Court, with the help of civil society and affected displaced persons, the space to address how vulnerable groups experienced differentiated and disproportionate impacts from the internal conflict and displacement. From 2004 until 2020, the Court issued autos addressing women, sexual violence, women human right defenders (HRDs), HRDs more broadly, children and adolescents, Indigenous Peoples, afro-colombians, persons with disabilities, and displaced persons during the COVID-19 pandemic. Additionally, these autos had their own follow-up procedures, by which the Court evaluated the government’s progress on the measures ordered by the Court during the initial autos. The evaluative mechanism for these autos consisted of four dimensions of compliance: high, medium, low, or non-compliance. The majority of the follow-up orders reported low compliance characterized by lack of information on the results derived from the various actions ordered by the court, or planning and design of programs without any actual implementation.
Nonetheless, a ten-year general review by the Court found that there have been some improvements in reducing institutional roadblocks towards accessing aid, as well as an increased allocation of resources. Where there have been shortcomings in the implementation of necessary policies, the Court has entertained subsequent claims that provide additional protections to especially vulnerable groups within the displaced community.
This decision represented a significant advance within Colombia and internationally in judicial oversight of States’ positive obligations to progressively realize the economic, social and cultural rights, particularly of groups at greater vulnerability. It demonstrates the Court’s commitment to reviewing compliance of multiple state agencies, to addressing structural factors leading to systemic violations of socio-economic rights and to ensuring effective, progressively implemented remedies, relying on ongoing court supervision and participation by affected individuals and communities. In addition, it establishes concrete requirements and timelines for the implementation of coordinated policies that fulfill the constitutional and statutory rights afforded to displaced people.