Cases of domestic violence in indigenous communities can be tried in ordinary courts

Hemil Ruperto Cuaron v. Superior Council of the Judiciary

Date:  09/03/2020

Judge-Rapporteur:  Diana Constanza Fajardo Rivera

Dissent: Alejandro Linares Cantillo

Facts.  The complainant, in his capacity of Governor of the indigenous reservation of Males (Córdoba, Nariño), questioned the ruling that decided the conflict in favor of the Ordinary Criminal Court, in a case related to domestic violence.  The judicial authority deciding the conflict argued that the case went beyond the scope of the Indigenous Jurisdiction, since the offenses supposedly committed were of the utmost relevance for the national Rule of Law, and also, the indigenous traditional authorities did not offer actual protection and guarantees to the victim.  In the petitioner's view, this ruling constitutes a de facto violation of the scope conferred on the Special Indigenous Jurisdiction by Article 246 of the Constitution and the jurisprudence of the Constitutional Court.

Issue: Can a case of domestic violence within the indigenous communities be assigned to ordinary courts?

Ruling and reasoning.  Yes, subject to certain conditions.  To reach this decision, the forum emphasized that assigning a case of domestic violence to the Ordinary Courts does not ignore, per se, the right to self-government of the indigenous community, provided that the aboriginal traditional authorities had not offered assurance to reach a fair determination.  The protection of the indigenous female victim prevails, and goes beyond the jurisdiction restrictions set, as a general rule, by the Constitution.

As a result, the amparo was DENIED.