Interesting ruling achieved by our Legal Organization.

In a recent judgment of the Third Section of the Administrative Court of Cundinamarca, within the means of control of direct reparation, a case of a young man who disappeared while performing his compulsory military service was resolved.

The events occurred in March 1985, but his relatives only filed suit until 2016. The young recruit was on guard duty, and apparently asked his superiors for permission to leave to run personal errands, but never returned.

Once the lawsuit was filed, the Administrative Court rejected it on the grounds that the statute of limitations had expired. The Administrative Court revoked this decision and ordered to continue with the procedural process. The first instance judgment denied the claims, basically on the grounds that the conscript left of his own free will, and that the private activities of its agents and the consequences thereof cannot be the responsibility of the National Army. This decision was appealed in term, so the second instance corresponded to the Administrative Court of Cundinamarca.

In the second instance, this competent Court revoked the first instance decision, for which it considered:

In the case under study, the soldier (...) was presumably linked to the defendant as a regular soldier attached to the Bogotá Battalion with headquarters in Larandia Municipality of Florencia Caquetá, since the entity did not object to it and the fact that he has been investigated for the crime of desertion makes it clear that he was part of the military forces. However, regarding his disappearance in particular, the Court finds that despite the insufficient evidentiary material related to the circumstances in which the disappearance of the soldier (...) occurred, it does not allow establishing the presence of a failure in the service, although it must be considered proven that the soldier disappeared, since his family had no knowledge of his whereabouts.

Now, the court must emphasize that the defendant did not provide the file with any disciplinary investigation or any document in which it could be concluded that the fact constituted a crime or disciplinary offense, since the investigation carried out by the Prosecutor's Office did not yield any result on the circumstances of the disappearance of (...).

In that order, the unfortunate event that generated the disappearance of the soldier (...) does not constitute a failure in service on the part of the Administration.

However, and in accordance with the reiterated jurisprudence of the Chamber in these cases, this anti-juridical damage is imputable to the Nation under the title of special damage, given that the evidentiary material shows that the events occurred during the military service and that the disappearance of the soldier (...) allegedly occurred when he was under the guard of said entity, because although it is indicated that he left the Battalion on March 24, 1985 to meet his brother, no evidence was brought to the process to prove it, that is to say, the entity did not prove that the soldier was engaged in personal activities when he disappeared. The fact that an investigation has been initiated against him for the crime of desertion does not prove with certainty that he disappeared while engaged in activities outside of the service, or that he was on leave and did not return to the battalion, therefore it is indisputable that the damage is based on the actions of the Administration, which subjected the private to a greater burden than he was obliged to bear, when he disappeared while he was a regular soldier in that institution.

In conclusion, the Respondent did not demonstrate in the plenary its lack of responsibility and in that sense to prove the existence of a cause that would release it from it, reason for which the court will have to revoke the appealed sentence given that the disappearance of (...) occurred when he was performing his compulsory military service.

The decision in this case is of legal interest in terms of human rights and State responsibility, basically for two reasons. The first is that given the particularities of the specific case, it made an exception to the limitation of the action. The second is that the ruling of the last instance was resolved in favor of the victims in application of the title of special damage, reaffirming the position of guarantor and protection of the Army against the soldiers who perform compulsory military service. Thanks to this, the victims will be morally compensated for what happened.