On December 9, 2013, Mr. Gustavo Petro Urrego, Mayor of Bogota, the capital city of the Republic of Colombia, was dismissed from his position by the Office of the Attorney General of the Nation following an administrative (not judicial) decision. This decision also prohibits him from working for the next 15 years in public service, and is based on alleged irregularities which occurred following the changes to the management of garbage collection in the city in December 2012.
Depriving Mr. Petro of the exercise of his political rights does not comply with the minimum legal requirement for the legitimate restriction of rights, as provided in Article 23 of the American Convention on Human Rights, and by the jurisprudence of the protection organs of the Inter-American System. Said decision also impacts, in a direct manner, the political rights of thousands of citizens who elected Petro as Mayor.
The Inter-American Commission and Court of Human Rights have interpreted the scope of political rights recognized in the American Convention. State actors charged with the protection of fundamental rights – among them administrative and judicial personnel – are bound to the jurisprudence of the Court by the Control of Conventionality doctrine. In the pioneering judgment issued on the case Yatama v. Nicaragua, the Court upheld the importance of the right to vote and to be elected, to access to judicial review to guarantee political rights, as well as the relevance of simple, rapid and timely action on the part of the judiciary to resolve electoral matters. Additionally, the Tribunal reiterated the importance of public and plural debate in the judgment issued on the case Cepeda v. Colombia.
Furthermore, in the case López Mendoza v. Venezuela, the Court interpreted the right to political participation established in article 23 of the American Convention, which guarantees all citizens the right “to take part in the conduct of public affairs, directly or through freely chosen representatives”. In the decision on the case, the Court upheld that “article 23.2 of the Convention determines the motives which can permit the restriction of the rights recognized in article 23.1 [which consecrates political rights]”. The Tribunal concluded that “a restriction imposed as a result of criminal charge” should be the result of “sentencing by a competent court in criminal proceedings”. This judgment narrows the possibility of limiting the exercise of political rights of an elected official to the sentencing by a judge in a criminal proceeding.
In light of these Inter-American Court decisions the dismissal of the Mayor Petro by the Office of the Attorney General is arbitrary as it restricts his rights without the existence of a criminal charge against him. Furthermore, it infringes on the rights of important sectors of the electorate whose political rights are curtailed with the removal of the Mayor chosen by them in popular election.
As such, the Center for Justice and International Law (CEJIL) urges the Colombian State, and in particular its judicial and administrative authorities, to take all necessary measures to rectify in an effective and timely manner the adopted decision in order to fully guarantee political rights in Colombia.
In article 23 of the American Convention on Human Rights, political rights are recognized in the following terms:
1. Every citizen shall enjoy the following rights and opportunities:
a. to take part in the conduct of public affairs, directly or through freely chosen representatives;
b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and
c. to have access, under general conditions of equality, to the public service of his country.
Similarly, article 23 upholds that: “the law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.”