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Published online by Cambridge University Press: 07 September 2017
On August 18, 2016, the Constitutional Court of the Republic of Colombia (Constitutional Court or Court) rendered a significant decision in the Garcia de Borissow and Others case on issues of immunity from execution, diplomatic protection, and objections to customary international law in its review of two combined cases brought by former local employees against the embassies of the Lebanese Republic and the United States of America in Bogotá. While upholding the diplomatic missions’ immunity from execution of lower court judgments awarding monetary sums, the Constitutional Court instructed the Colombian Ministry of Foreign Affairs (Foreign Ministry) to pursue recovery of such amounts either by diplomatic means or through enforcement of those judgments in Lebanese and American courts. The decision is both unique and problematic as a matter of international and domestic law.
1 Corte Constitutional [C.C.] [Constitutional Court], agosto 18, 2014, Sentencia SU-443/16, available (in Spanish) at http://www.corteconstitucional.gov.co/relatoria/2016/SU443-16.htm. No official translation is available; references to the Court's decision are based on the author's own translation.
2 Ms. Garcia de Borissow worked as a “Secretary” from April 1981 through November 2004; Mr. Castaño worked as a “Real Estate Assistant” from July 1986 until November 2006. See Labor Chamber Judgment of September 2, 2008, para. 5; Labor Chamber Judgment of March 10, 2010, paras. 10, 13 (respectively). No further details as to their functions were given.
3 Claim of Adelaida Garcia de Borissow, No. 32096, Judgment of September 2, 2008, para. 3.
4 Claim of Omar Castaño, No. 41916, Judgment of March 10, 2010, paras. 4, 13. Among other damages, he sought living stipends, services bonuses, default interest, and sanctions for non-payment.
5 When a “true labor relationship” is established (as defined by Article 23 of Colombia's Labor Code), employers are, ipso jure, obliged to pay salaries and all of the other compulsory monetary benefits to the employee.
6 Labor Chamber Judgment of September 2, 2008, para. 7.
7 Article 86 of the Colombian Constitution permits any Colombian citizen to file a “tutelage action” for the protection of his or her fundamental human rights or constitutional rights. Such an action may be filed against any person alleged to have violated the relevant individual's rights, as well as against any lower court (including the Court of Cassation, Colombia's “Supreme Court of Justice”), if an alleged breach of rights has occurred on the basis of a judicial decision that, although formally a judgment, may materially breach a fundamental constitutional right.
8 Because all courts in Colombia have jurisdiction over this specific kind of constitutional claims, tutelage actions were randomly assigned to those high courts.
9 Ms. Garcia de Borissow's constitutional challenge was rejected because the judicial decision was not found to be frivolous, arbitrary, or the product of capriciousness. As tutelage actions against judgments are subsidiary and exceptional, they cannot be used to challenge judicial decisions that are duly founded on the applicable law. Mr. Castaño's challenge was rejected because the so-called immediacy requirement had not been fulfilled: the tutelage action was not filed until March 15, 2011, almost six months after the challenged judicial decision was rendered.
10 Because both the Criminal Chamber of the Supreme Court of Justice and the Disciplinary Chamber of the Superior Council of the Judiciary are high courts (but the right to appeal must still be observed), the cases were assigned to different chambers of each court.
11 Mr. Castaño's appeal was refused, inter alia, on the grounds that tutelage actions are proceedings for the immediate protection of fundamental constitutional rights, but not for the attainment of economic or pecuniary payments. The Civil Chamber of the Supreme Court of Justice rejected Ms. Garcia de Borissow's proceeding as unreviewable for similarly technical reasons.
12 In Colombian procedure, “judgments on jurisprudential unification” aim at reducing uncertainty through the issuance of a definitive statement on the interpretation of a norm when lower courts have adopted, on constitutional matters, conflicting constructions of the law or legal norms. Since the Constitutional Court is the highest Colombian court, its judgments on jurisprudential unification are binding, final, and not subject to further appeal.
13 The Constitutional Court referred to: (1) the U.S. Supreme Court's decision in The Schooner Exchange v. M'Faddon, 11 U.S. 116 (1812); (2) unidentified decisions of Belgian and Italian courts (paras. 6–7 under “IV. Consideraciones”); (3) the European Convention on State Immunity (1972); and (4) domestic statutes adopted in the United States of America, the United Kingdom of Great Britain and Northern Ireland, the Republic of Singapore, the Islamic Republic of Pakistan, the Republic of South Africa, the Commonwealth of Australia, Canada, and the Argentine Republic.
14 Fisheries (U.K. v. Nor.), 1951 ICJ Rep. 116 (Dec. 18), at http://www.icj-cij.org.
15 Jurisdictional Immunities of the State (Ger. v. It.; Greece Intervening), 2012 ICJ Rep. 99 (Feb. 3).
16 Hilton v. Guyot, 159 U.S. 113 (1895); Erie Railroad Company v. Tompkins, 304 U.S. 6 (1938).
17 This duty of review empowers the Constitutional Court to condition a treaty's ratification or accession on, inter alia, the renegotiation of certain provisions or the formulation of specific reservations, interpretative declarations, or conditional interpretative declarations, in order to ensure observance of and conformity with the Colombian Constitution.
18 Formally, it is the Treaty Approval Act that may be subject to challenge, but the grounds are restricted to the substance of the conventional obligations enshrined in the relevant treaty. Treaties that have not been reviewed include, inter alia, those that were ratified before the establishment of the Constitutional Court. Naturally, the decision arising out of the constitutional examination only has domestic effects, although the Executive Branch is obliged to take actions to assure that the international obligation is adapted to the relevant constitutional provision, or terminated.
19 The term “special constitutional status” means, inter alia, that these treaties complete the content of Article 101 (Title IV, on the “Territory”), even though they are not formally part of the Colombian Constitution.
20 By way of hypothetical example, if an ordinary law were to conflict with a Decision of the Commission of the Andean Community, the latter would govern the specific circumstances of the case (“displace” the local law) but the ordinary law would, nonetheless, remain in full force.
21 Corte Constitutional [C.C.] [Constitutional Court], mayo 2, 2014, Sentencia C-269/14.
22 See, e.g., Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §1610(g).
23 See supra note 21.
24 The Court appears to have confused the two concepts in a prior decision, Judgment T-462/15.
25 Vienna Convention on Diplomatic Relations, Art. 22, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95 (1961).
26 See, e.g., Case C-154/11 Mahamdia v. Algeria, 2012 E.C.R., ECLI:EU:C:2012:491; Cudak v. Lithuania, 51 Eur. Ct. H.R. 15 (2010); Sabeh El Leil v. France, 54 Eur. Ct. H.R. 14 (2012).
27 Int'l Law Comm'n Rep. on the Work of Its Fifty-Eighth Session, UN Doc. A/61/10, Y.B. ILC Vol. II, Pt. Two, Commentary 2, at 29 (2006).