The Supreme Court of Justice of Colombia warned of several legal inconsistencies in the Anti-Terrorism Statute promoted by the administration of President Abelardo de la Espriella and called for amendments to prevent potential violations of fundamental rights.
The high court took particular issue with provisions that would allow criminal and financial consequences to be imposed on the basis of administrative decisions without sufficient judicial oversight, as well as the broad scope of certain offenses and the extraordinary powers requested by the executive branch.
Although the court’s observations raise questions about the constitutionality of several mechanisms, it did not call for the bill to be shelved or prevent it from moving forward in Congress. Its opinion establishes that combating terrorism is a legitimate state objective but emphasizes that the measures adopted to achieve it must respect due process, the separation of powers, and the proportionality of penalties.
The debate comes as the government seeks to strengthen the legal tools available to combat armed organizations and their funding networks, as the current president announced during his campaign.
Supreme Court flags inconsistencies in De la Espriella’s anti-terrorism Statute
One of the main points of contention is the creation of the National Registry of Terrorist Organizations and Actors, a list that would identify individuals and entities allegedly linked to the financing of or support for terrorist groups.
The mechanism draws on U.S. financial sanctions systems, such as those administered by the Office of Foreign Assets Control (OFAC), which is associated with the well-known Clinton List in the United States.
The bill stipulates that provisional inclusion in the registry could last up to 90 days and that certain asset-freezing measures could be imposed within the first 24 hours. Registration could also bar individuals or entities from entering into contracts with the state, restrict their access to public funds, or affect the legal activities of companies and organizations.
The court warned that an administrative decision cannot automatically serve as proof of criminal liability. It therefore called for objective, verifiable criteria for including individuals or entities on the list, notification guarantees for those affected, and prior judicial oversight whenever property rights or freedom of association are at stake.
The central concern is to prevent an administrative authority from imposing consequences equivalent to a judicial penalty without individual responsibility having been established.
Another objection concerns the procedure for seizing assets, which would allow the Attorney General’s Office to intervene in property allegedly linked to terrorist activities and require its owners to demonstrate the lawful origin of their assets.
The court called for greater clarity on the evidence investigators must present beforehand, how the involvement of potential nominees or front men would be established, and what protections would be afforded to bona fide third parties.
These safeguards are important because the procedure could result either in the return of assets or their permanent transfer to the state. Without clear rules governing evidentiary requirements and precautionary measures, the court warned, property, businesses, and bank accounts could be affected without sufficient protections for their legitimate owners.
The bill also seeks extraordinary powers allowing the president to regulate certain aspects of preventive asset seizures, the operation of the Office of the High Commissioner, and licensing for virtual asset service providers for six months.
Although the proposed time limit would not, in itself, violate the Constitution, the court called for an examination of whether the powers granted would allow the executive branch to issue or amend codes and statutory laws, areas subject to specific constitutional restrictions.
New offenses and restrictions on individual rights
The court’s observations also address the definition of conduct that would be considered terrorist and the penalties associated with it. In the court’s view, some criminal offenses are defined too broadly or incompletely, potentially making it difficult to distinguish criminal behavior from other actions that do not meet the requirements for criminal punishment.
The principle of proportionality requires penalties to reflect the seriousness of the conduct and the individual’s degree of responsibility. Other relevant principles include the use of criminal law as a last resort and the requirement of legally relevant harm to justify punishment. The concern is that imprecise wording could excessively broaden the law’s scope and create uncertainty about which behaviors may be prosecuted.
The bill also provides for individual judicially supervised measures that could restrict the movement, residence, and freedom of association of people suspected of belonging to or collaborating with terrorist organizations, even when no formal charges have been filed.
The court called for sufficient evidence of the risk that would justify such restrictions and questioned the involvement of an official such as the High Commissioner, who is appointed by the president, in overseeing decisions that fall under the authority of the judiciary. Violations of some of these measures could carry prison sentences of between two and six years.
The proposed prison regime also drew objections. The bill provides for suspending outside communications, limiting family visits, and blocking signals for periods of up to 12 months, subject to subsequent judicial review.
The justices called for a distinction between convicted individuals and those held in pretrial detention, an individualized assessment of each case, and priority for monitoring communications rather than suspending them entirely.
Government can continue legislative process
The court also called for a review of the benefits offered to those who cooperate with the justice system. Although the bill provides for sentence reductions of up to 60%, the court said it was necessary to distinguish between top-level perpetrators and lower-ranking members, as well as to tailor benefits to the timeliness, accuracy, and relevance of the information provided.
The observations do not amount to a declaration of unconstitutionality or constitute a definitive rejection of the statute. The bill can continue through the legislative process, but the government will have to address the debate over the amendments needed to bring its mechanisms into line with constitutional guarantees.
In light of these concerns, the De la Espriella administration will have to reconcile its security strategy with the limits imposed by the rule of law. The debate is not solely about the state’s ability to prosecute terrorism, but also about who can impose such measures, what evidence must support them, and what legal remedies will be available to those affected.
Meanwhile, this controversial bill, which in broad terms emulates U.S. legislation on combating terrorism, continues through the parliamentary process.