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Constitutional Protection Mechanisms

01210382021: Anderson Fabián Contreras Bareño

01210382012: Giseth Juliana Atuesta Gómez

01210382010: María José Mojica Méndez

01210281039: Rosy Isabella Solano Rumbo

01200062013: Ruby Alexandra Silva García

University Of Santander- UDES

Grupo 29322-B: Political constitution

Mg. Oscar Granados

October 02, 2021

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INTRODUCTION

The protection mechanisms enshrined in the Colombian Constitution seek to protect

an eventual or real loss, a violation or a threat to the fundamental rights of persons, either

individually, as a group or collectively. These protection mechanisms are very effective

since they safeguard the interests of people when they believe they are violated.

According to a report by the Ombudsman's Office, more than 620,000 tutelas were

filed in 2019 to protect fundamental rights, being this the most used mechanism by citizens

to protect their rights. (DEFENSORIA DEL PUEBLO COLOMBIA, 2020), in spite of the

fact that after the pandemic it was considerably reduced to 256,000, which means that there

was a 58% reduction in the filing of these appeals in the different courts, it continues to be

the protection mechanism most used by citizens. Despite this, the figures found in the study

show that systematic and repeated violations continue, such as barriers to access to services

and delayed or denied authorizations, even for services and technologies that are included

in the Health Benefits Plan, PBS.

Therefore, it is important to know and identify those mechanisms that the

Colombian state has adopted with the purpose of guaranteeing citizens the defense of their

rights. The purpose of this essay is to summarize each of these mechanisms, highlight their

importance and show an analysis from a personal perspective.

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ESSAY

The 1991 Constitution was created, as explained by Daniel Salamanca, jurist at the

Universidad del Rosario "With tools that empower the community in general to release

relevant battles for a fair coexistence within a social rule of law, bringing together different

social sectors, along with actions not only constitutional, but economic, social and cultural.

(Semana Magazine, 2012).

The primary purpose of the Right of Petition is to achieve a fluid and effective

communication between administration and individuals; with this what is intended is that

this relationship is not flat or limited, that there can be interaction through the instruments

that brings with the Constitution that ultimately allow the state tasks set forth in the second

article of the Constitution to be fulfilled; precisely with the right of petition, the authorities

have the duty to respond promptly and effectively to requests made by citizens, regardless

of whether they are claims, inquiries, complaints or simple petitions.

It is important to highlight the petition as a tool available to the people, that is, it is a

mechanism present in the Political Constitution of Colombia that seeks to materialize

several principles of public service such as access to the administration, transparency and

efficiency; however, like all fundamental rights, it is a right that has limits because it cannot

be abused, as is indicated in Article 95 of the Constitution which in its numeral 1 expresses

the respect for the rights of others and the duty not to abuse their own. Dr. Altamiranda,

who in his work Curso de Derecho Administrativo. (Altamiranda)

On the other hand, it is important to emphasize the importance of the right of

petition in our country on issues such as health and pensions, but also the congestion that
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cause the administration to protect these rights and the inability of the regulatory entities to

answer the requests of citizens in a truthful and substantive way in order to fulfill the

purposes of the state, being a social state of law but the inability of these does not show the

ineffectiveness of this mechanism to protect fundamental rights, On the contrary, the

inability of the state in these matters has not been able to solve the same shortcomings of

the state, as is done with the lawsuits against the state, which are entered into a national

database and thus the nation can avoid an error or malpractice in its operation that causes

damage to the community and that only find solution in the administrative jurisdiction.

Last but not least we can see the lack of legal certainty caused by the high courts in

the country, since by trying to legislate they do not make a weighing of the damage to the

legal image in our country, can generate the judgments of the same and the state entities

that generate concepts that create these insecurities, such as those issued by several state

entities, informing their employees to be taken as a reference for answering rights of

petition the decree law 01 of 1984, which is a mistake that only causes discomfort in the

legal community.

The tutela action is the mechanism for the protection and fulfillment of fundamental

rights, incorporated with this mechanism in the political constitution of Colombia. It is

granted to provide an efficient solution to all factual situations generated by the action or

omission of public authorities and by exception of individuals, which entail the threat or

violation of a fundamental right.

It also proceeds against actions or omissions of individuals: when they provide a

public service; when their activity seriously and unjustifiably affects a collective interest;

when there is a relationship of helplessness or subordination between two individuals. The

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constitution clearly states that: "The protection will consist of an order for the one with

respect to whom the guardianship is requested, act or refrain from doing so." The ruling,

which will be immediately enforced, may be challenged before the competent judge and, in

any case, the latter will forward it to the Constitutional Court for eventual review. This

action will only proceed when the affected party does not have another means of judicial

defense, unless it is used as a temporary mechanism to avoid damage.

When a guardianship action is presented, it is when a right is improvisedly violated,

a clear example would be when someone is fired from their job for no reason, in which case

the injured person files a guardianship action to demand clear answers to know which one.

reason was his dismissal.

The protection action embodies the principle of effectiveness that, in the field of

fundamental rights, assumes that these are not reduced to their formal proclamation, but

that they demand real effectiveness. Fundamental rights, devoid of effective judicial

protection, lose their character as such and no longer have the subjective value that they

represent for the person and the objective that they have as the legal-axiological basis of the

entire order. It lacks constitutional reasonableness to institute a procedural condition for the

protection action that denatures its essence.

A clear and recurring example is the case of the right to health. In effect, the 1991

Political Constitution did not establish this right as a fundamental right. It is enshrined in

article 49 within the chapter corresponding to social, economic and cultural rights that are

considered second generation rights.

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Habeas data is a right enshrined in Article 15 of the Political Constitution of

Colombia where it is specified that every citizen can demand updating or correction of their

personal data processed at any time by any entity, public or private, which have the

obligation to inform how their data will be treated so that the user can decide to accept or

reject the provisions. The Constitution states that personal data, except for public

information, cannot be on the Internet or in mass media, unless the owner has authorized it.

In case the right to data protection is violated, a tutela may be filed demanding a solution to

what happened.

As explained by (Funcion Pública, 2006) on November 2, 2006, statutory law 1095

was passed, regulating article 30 of the Political Constitution of Colombia, which provides

for habeas corpus as a fundamental right and a constitutional action that protects personal

liberty when deprived of liberty with a violation of constitutional and legal guarantees. The

habeas corpus is the fundamental guarantee that protects the fundamental collateral rights

of the detainees and has the nature of an amparo recourse, this action can only be invoked

once and for its decision the pro homine principle is applied.

The habeas corpus is also part of the international human rights treaties as a defense

mechanism when deprived of liberty in an "illegal" manner, this mechanism in addition to

defend also protects citizens who are taken to this situation, unfortunately much of the

Colombian citizenship does not know this defense mechanism by which verbally or in

writing can make use of it, It can also be executed by a lawyer or family member who

relates the situation of things, many times society is not fully aware of everything that is

contemplated in the constitution which makes them enter into a state of ignorance on these

issues and can not make use of their constitutional rights.

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The habeas corpus includes any citizen who has been detained incorrectly or

illegally, which in recent years has happened a lot but as there is no knowledge of this can

not be exercised in the right way, this brings into play the lawyers who must comply with

the obligation to always communicate the truthfulness so that the habeas corpus is not only

a postulate but a guarantee for these citizens.

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CONCLUSIONS

It is important to recognize and identify these protection mechanisms because

through them we can give immediate protection to our rights when they are being violated.

This can be evidenced and applied in the case of the IPS, when they refuse to

provide the fundamental right of health to people, in cases of surgeries, high cost drugs or

expensive procedures. People often have to resort to the tutela action to safeguard their

rights and interests.

It is of great importance that every citizen is aware of the right that protects their

personal data and the freedom to claim or request the correction of data and the disclosure

of these, i.e. restricting any action to share data to other entities or persons without the

approval of the citizen.

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Bibliography

Altamiranda, D. (s.f.). Curso de Derecho Administrativo. .

DEFENSORIA DEL PUEBLO COLOMBIA. (24 de 07 de 2020). Más de 620.000 tutelas se instauraron
en 2019 para proteger derechos fundamentales. Obtenido de Defensoria del Pueblo
Colombia: https://www.defensoria.gov.co/es/nube/comunicados/9441/M%C3%A1s-de-
620000-tutelas-se-instauraron-en-2019-para-proteger-derechos-fundamentales-derechos-
salud-Defensor%C3%ADa-tutelas.htm

EL TIEMPO. (21 de 04 de 2021). eltiempo.com/justicia/servicios/que-es-el-habeas-data-en-

colombia-582731. Obtenido de Habeas data, el derecho a conocer, y actualizar
informacion: https://www.eltiempo.com/justicia/servicios/que-es-el-habeas-data-en-
colombia-582731

Funcion Pública. (2 de Noviembre de 2006). funcionpublica.gov.co. Obtenido de Ley 1905 de 2006:

https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=22087

Tafur, R. (1998 ). Derecho de Peticion .

Daza, M. N,Granadillo, A. A, Rios, M.(2015). El derecho de petición y los principios

constitucionales de la funsion publica [Articulo de investigación, Universidad Santo Tomas].

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Caceres, C. A.(2016). Derecho de petición un drecho fundamental en Colombia [Proyecto

de investigación, Universidad Santo Tomas]. Repositorio Universidad Santo Tomas.

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