núm. 26 (2007)

 This text presents – from a historical, juristic and political perspective – the juristic strategies implemented by different Colombian governments in order to make feasible, within the framework of Colombia’s armed conflict, the negotiation and reinsertion processes with the non state armed groups.

 The text describes, from a historical perspective, the evolution of the armed conflict in Colombia. The analysis starts with the civil wars of the first half of the 19th century and ends with the phenomenon of violence emerged in the decade of 1960. There’s a description of how the Colombian internal war passed through different scenarios and has been characterised by different actors and interests.

Treasury responsibility in Colombia: A broken tool that impedes damaged public funds of being indemnified or compensated. Treasury control is, in Colombia, a civil service that consists of watching the way that public office holders manage or handle national or public funds. Public office holders, in fulfilling their official duties and responsibilities, shall make decisions consulting the public interests in a manner that will bear the closest public scrutiny, an obligation that goes by acting within the law. They have to proceed protecting the public funds, watching in all the technological, legal, and economic activities an adequate and correct acquisition, planning, conservation, administration, custody, exploitation, alienation, consumption, awarding, expense, investment and disposition of the public goods, according to the essential purposes of the State, and to the constitutional principles as legality, efficiency, economy, efficacy, equity, impartiality, morality, transparency, publicity and appraisal of the environmental costs. In Colombia the authorities that control the way others administrate public or national funds, are the Contraloría General de la República, the Contralorías Territoriales and Auditoría General de la República. Their comptrollership function gives public infringers away, so if they have caused damage or any detriment or commit a fail to do, they can be punished thru a fair administrative trial1 , and the public funds compensated. Neverthless exists in Colombia a strong legal action to recover damaged public patrimony, denominated “treasury responsibility”, the Corte Constitucional, top national authority in constitutional matters in Colombia has converted it, in a broken tool that somehow impedes damaged public funds compensated. With the judgment C-619 (august 8th of 2002) the Corte Constitucional imposed to administrative judge to proof gross negligence instead of culpa levis or negligence, to judge against responsibles for cause any proved fiscal damage to public funds. This decision brought as a result a legal obstacle that impedes damaged public funds of being compensated, and also instead of attacking the corruption, is sheltered the guilty deterioration of the public funds and also the tolerance of impunity.

Despite critics about government size, the decentralization was a important tool for a huge number of public societies, corporations and more, which lost their objectives and were reduced as a rat hole public funds. However, since Law 489 of 1998, this phenomenon (decentralization) ground up as a indirect public enterprises, means merger or public corporations association. Their most important goal was to continue the operation of dissolved public corporation, but ruling by private (civil and commerce) law now, and allowing private person to be a part of the “business”, by which critics says the state is “outsourcing”.

The serious violations to the international humanitarian law that happened during World War II motivated an important part of the international society to create the Human Rights Committee as an ancillary organ of the Ecosoc inside the United Nations. Although this committee obtained important achievements in the exercise of the functions of promoting and protecting the human rights, its strong management by politics, the new challenges in the subject and the need to fortify in an institutional way the matter, made this committee to be replaced through the resolution 60/251 of 2006 of the ONU’s General Assembly by a Human Rights Council , a more representative, permanent, impartial organ, with more responsibilities in the process of attention, evaluation and fulfillment of the obligations in the theme of Human Rights by the states members . In the Colombian case, the extinct Human Rights committee did a permanent following of the armed conflict, work that now will be assumed by the new Human Rights council, that now will follow the recommendations done by the old committee. An innovative element in the mentioned resolution is a mechanism of universal periodic exam which all the countries that are members will be evaluated without exception in the accomplishment of their compromises with the Human Rights. This organ will require the compromise and the good will of the States that are members of the Council, the governments and all the other participants.

The constitutional formula that integrates the concepts of state, social state, democratic State and State of right, supposes the harmonization of a group of assumptions and concepts, that in some cases are excluding among them and up to apparently contradicting the fundamental task of justice is integrate them in a way that State organization can guarantee the practice of the rights in a frame of equitableness, as a support of them, of the justice and mainly of the state. In this order we will verify, at the beginning, the existence of each one of the elements of the formula: State, democratic state, state of right and social State, concluding that whereas not happened the empiric presumption of peace, meaning only the definitive ceasing of war, our country will not be able to think in develop the other attributes of the State, that is, the democratic, the rights and the social. In this task, justice, specifically justice administration has a transcendental mission to fulfill.

 This research begins from the study of the state-of-the-art, which is considered like a documentary investigation that has an own development. Its essential purpose is to give account of sense constructions about data bases that support a diagnosis and a foretell regarding the analised documentary material. Diverse authors have studied the Alternative Mechanisms of Resolution of Conflicts from the following perspectives: The Alternative Mechanisms of Conflict resolution as: an Instrument for the coexistence; its reaches and limits have been analyzed from the procedural point of view, similarly they have been studied as a mechanism of access to justice; and there are some positions about MASC as public policies to finally review the analyses from a cultural perspective.

Court decisions concerning the crime of lack of food assistance characterize themselves by transcending the limits intended by the legislator. On account of this, they involve more situations and people than the law’s authentic application would permit. The consequence of this practice brings an evasion of social responsibility that is derived from of a state in which the individuals lack of the satisfaction of their basic needs.

 The text analyses the legal effects that decrees, an administrative norm, cause in Spain. Decrees do not only prevail in uncountable cases over laws and international treaties, they also regulate important social and public spaces. Consequently, they lead to an enormous legal insecurity.

Following a model created by Fred Riggs, Colombia is depicted as a prismatic society in which law and reality frequently do not run together. Over this back-ground, trafficking in persons in Colombia is critically analyzed, both from a legal stand point and as a reality. Colombia’s written statutes, regarding trafficking in persons, fully meet the international standards, but real policies are far from being adequate

During the past decades, important legal transformations, which some jurists and academics have called “the new law”, have taken place. The present text analyses the implications which the implementation of this “new law” is having on the legal system, the administration of justice and the juridical players.