We bring together information on the legal frameworks for the right to information from more than 100 countries.
You are here: Home Cases In re Articles 27 and 42 of Decree 1799 of 2000

In re Articles 27 and 42 of Decree 1799 of 2000

last modified Nov 21, 2012 10:55 AM

Case number:
C-872/03
Country:
Colombia
Date of decision:
30 December 2003
Court / Arbiter:
Constitutional Court of Colombia ( Constitutional )

Relevant law :
American Convention on Human Rights, Article 13 (freedom of thought and expression);
Constitution, Article 74 (right to information), Articles 93, 152-153, 217.3;
Decree 1799 of 2000 on the Promulgation of Rules for Evaluation and Ranking of Staff of Officers and Deputies in the Armed Forces and other provisions;
Inter-American Declaration of Principles on Freedom of Expression;
Law Ordering the Publicity of Official Acts and Documents, Articles 13 and 19. ( ATI Law, Constitution )

Decision:

Information unrelated to maintaining national security and with no material link to protecting territorial integrity and defending democratic institutions or to the enjoyment of fundamental individual rights, including the right to privacy, may not be restricted.


Keywords:
Constitution
Minutes (including transcripts and other records of meetings)
National security (including defense, intelligence, state security, state secrets, secrecy laws)
Open government principles (including accountability, anti-corruption, democracy, participation in government, transparency)
Personal information (including personnel files, other records concerning or held by public servants)
Privacy (harm to private interests, including life, health, safety)
RTI law
Security sector (including intelligence bodies, military, police)

Case details:

Facts

Alirio Uribe Munoz, a Colombian citizen, challenged the constitutionality of Articles 27 and 42 of Decree 1799 of 2000, which provides rules concerning evaluation and qualification of officers in the Armed Forces. The rules restrict public access to internal discussions and final decisions of military evaluation and promotions boards and the Classification Board. Article 27 states that the evaluation documents prepared by the evaluating and reviewing authorities that contain information and value judgments about personal and professional details of officers is confidential except between parties involved in the process. Article 42 states that the Classification Board’s meetings and decisions made in them are restricted, as are documents that contain them.

Mr. Munoz claimed that the rules restrict his fundamental right of access to public documents, violating statutory disclosure requirements, and constitutional principles of participatory democracy, advertising, and access to public documents. He asserted that the rules facilitate impunity because they allow the same officers and military personal that perpetuated human rights violations to evaluate and promote officers and classify incriminating documents.

Decision

The Court held that Article 27 and part of Article 42 of Decree 1799 of 2000 are constitutionally permissible exceptions to the right of public access to information elaborated in Article 74. The Court, however, determined that the statutory provision in Article 42 withholding decisions of the Classification Board is unconstitutional.

The Court emphasized the importance of the guarantee of public access to government-held information, with limited exceptions established by law.  The Court recognized the State’s positive and negative obligations vis-à-vis the right to information: the State cannot censor information, and must also actively provide information. The Court elaborated that participatory democracy is a fundamental component of the Colombian Constitution, and historically linked to the constitutional right to information. Aside from the Constitution, the Court cited to Article 13.1 of the American Convention on Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Principle 4 of the Declaration of Principles on Freedom of Expression, soft law and the Inter-American Commission’s Special Rapporteur for guidance. Part VII(3).

The Court acknowledged the close linkage in international human rights and humanitarian law between the right to access public documents and the rights of victims of crimes against humanity, and the rights of justice, reparations and “especially, to know the truth.” The Court emphasized that the right to truth is a “collective right” and, as such, requires certain guarantees for its exercise including, especially, “the conservation and public consultation of relevant official archives.” Thus, measures should be taken to prevent the destruction, adulteration, or falsification of archives where violations are committed and the State “cannot invoke confidentiality or reasons of national defense to avoid” access to records for judicial processes or victims. Part VII(3).

Nonetheless, the Court concluded that the President’s exercise of legislative power through Decree 1799 establishing such exceptions was constitutional, provided that restrictions protect a constitutionally legitimate aim like national security or the enjoyment of fundamental rights, and measures are proportionate and necessary.

Resources:

Judgment of the Court.