Liability of the State for damages caused in social protests.
Guarantee of Human Rights in social protests
Introduction This year, the Administrative Court of Cundinamarca resolved a case in which the victims were judicially represented by Conde Abogados Asociados. In the sentence, the National Ministry of Defense, Army and National Police were found administratively and patrimonially liable for causing the loss of Juan's right leg in the context of a social protest. The analysis of the imputation made and the compensation measures adopted are highlighted as important.
Summary of the case
Juan in 2017, underage, participated in a farmer's protest in a rural area of Nariño, Colombia. In this protest there were disturbances which the Army and the National Police tried to controlled. During this work, firearms were used, which unfortunately hit Juan's right leg, causing him to lose this limb entirely. As a result of these events, a lawsuit for direct reparation was filed against the State.
In the procedural process, the first instance, the claims of the lawsuit were denied because it was considered, among other things, that it was not proven that the Army or the Police were the owners of the projectile that affected Juan. This decision was appealed and it fell to the Administrative Court of Cundinamarca in order to resolve the matter.
This Corporation accepted our defense arguments and revoked the first sentence, under three main postulates: (i)the flexibility in the evaluation of evidence in a serious human rights violations (ii) it was demonstrated that in said protest, the Public Forces indiscriminately attacked the farmers and (iii) that in these disturbances Juan lost his right leg as a result of a bullet impact, a situation that also generated a loss of working capacity of 51.50%.
Compensation
Regarding the compensatory measures, the Army and the Police were ordered to compensate Juan, his son, mother, siblings, grandparents and stepfather for non-pecuniary damages. For material damages, it recognized loss of profits in the form of consolidated and future. For damage to health, pecuniary compensation was ordered to the direct victim and medical treatment measures were also ordered, such as:
- Rehabilitation, consisting of the delivery of a suitable prosthesis for the victim, which includes replacement from time to time as prescribed by the treating physician.
- Assessment and treatment by physiotherapy.
- Psychiatric care.
Additionally, other non-pecuniary measures were ordered, such as:
- The sending of the sentence to the National Center of Historical Memory and to the General Archive of the Nation for its registration, and
- The Army and the National Police were ordered to carry out pedagogy within their institutions on the protection of the minor population in case of demonstrations and disturbances, for which they must provide evidence to the Office.
Opinion
The measures recognized in this case and in favor of our clients are welcomed and satisfactory. Our defense position was accepted, consisting in the fact that the damages caused in social protests where the Army and/or the Police participated in the control of public order, are considered unlawful in principle for those who suffer it and that the State is responsible for such damages -unless a cause for exoneration of liability is proven-. The non-pecuniary measures recognized in favor of the victims, such as medical treatment, the registration in the historical memory of the armed conflict in Colombia and the realization of pedagogy within the convicted institutions, thus promoting awareness and non-repetition of this type of acts, are relevant. The rehabilitation and and satisfaction measures guarantee a higher level of compensation for the victims.