Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
- Poor People
Outcome of the decision
The Council of State granted a tutela action to a citizen who seeks to access the so-called solidarity income, a monetary relief that the Government provided as a mechanism to meet the needs of the people most affected by the social crisis generated by COVID-19. Given that the subsidy was in the name of the first cousin of the Plaintiff, who had lived in Chile for several years. The Plaintiff had not been able to access the benefit. For this reason, the High Court ordered the Administrative Department for Social Prosperity (DPS) to accompany the Plaintiff in the administrative procedure that is required to recognize him as the holder of the solidarity income and that he can enjoy it.
This decision is due to a lawsuit that, in the exercise of the tutela action, was filed by the benefit holder’s cousin. He indicated that he is the father of two children, one of them sick, and that he lives in Valle, a neighborhood of invasion (a shanty town) in Cali. He alleged that the situation of extreme poverty and vulnerability in which he finds himself and without being able to access the subsidy. For these reasons, he requested the protection of his fundamental rights, with the intention that the Defendant authority be ordered to recognize him as the holder of the subsidy and thus be able to collect it.
The Council of State granted the requested protection. Even though the DPS assured that the Plaintiff had not advanced any action before the entity, so that the change of holder of the subsidy be approved, the High Court verified the contrary.
Facts of the case
The Plaintiff’s household was identified as a beneficiary of the Government incentive called Solidarity Income. This subsidy was established to meet the pressing economic needs of a sector of the population, which was disproportionately affected by the pandemic, due to extreme poverty.
The economic aid was granted in favor of the household but the subsidy was issued to his first cousin, who had lived in Chile for some years. The Plaintiff wrote at least twice to the entity in charge of delivering the subsidy, but it refused.
The Plaintiff filed a tutela action. He requested that the Defendant processes the change of ownership of the solidarity program, so that he can collect it directly. He considered tutela as the right means because he is in a state of extreme poverty He lives in an impoverished area of the city of Cali and is the provider for his two children. One of them is sick and the other is of school age.
The Defendant confirmed that, in effect, i) the Plaintiff's household is covered by the Solidarity Income program; ii) that the Plaintiff’s first cousin appears there as the owner of the benefit and iii) that to date the wire transfers have been rejected for no collection. According to the Defendant, there was not any petition by the holder of the subsidy or by the Plaintiff. In this regard, it explained that the owner of the household must take steps and duly demonstrate the occurrence of the situation that generates the novelty, so that the Solidarity Income program validates and approves the change of owner and reactivates the liquidation of the incentives that were suspended due to non-payment.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
Firstly, the Council of State analyzed the requirements of the tutela action. It concluded that the request meets the requirements of subsidiarity, immediacy, and the imminence of irreparable harm.
The Council of State considered the admissibility of the tutela based on the need for protection of people in extreme poverty and children. It pointed out that these vulnerable people, for specific conditions physical, psychological, or social, need a reinforced protection to meet real and effective equality. According to the Court, the fundamental rights of a family that is in extreme poverty, and that has two children, one of whom has a special health situation and the other who is of school age, are involved in this proceeding. For this, the constitutional Judge must address the background study of the process to verify if in this matter the fundamental rights to the vital minimum and the due administrative process of the Plaintiff were violated. This obligation must be reinforced in a pandemic situation.
According to the Court, the Plaintiff requested several times the change of the subsidy holder. He pointed out the impossibility to collect the subsidy because the holder is his cousin, who lives abroad. The Court verified that he did not present the evidence of the novelty, but according to it, the Defendant should have requested the documentation that accredited what the Plaintiff affirmed.
The Council considered that the Defendant did not comply with the operative manual of the solidarity income. According to it, the beneficiaries of the subsidy are the households in situations of poverty, extreme poverty, and vulnerability. For the Council, the Defendant ignored the fact that the Plaintiff was a subject of special protection, so it must support him to receive the economic help to face the economic drama worsened by the pandemic.
The Council criticized the way in which the Defendant valued the evidence presented by the Plaintiff, especially considering the pressing economic needs for the disproportionately affectation that the pandemic caused. It highlighted that the copy of the passport of the subsidy holder and the copy of his residence permit in Chile were elements that allow the inference of the residence of the cousin. According to the Council, the Defendant had the elements to initiate the procedure that allows the Plaintiff to collect the subsidy.
Conclusions of the deciding body
The Council of State decided to protect the Claimant's fundamental rights to due process, and the minimum vital. It ordered the defendant to initiate the procedure and to accompany the Plaintiff during the process to allow him to obtain the change of holder of the subsidy recognized by the government for his extreme conditions of poverty and vulnerability.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to equality, Art. 13, Colombian Constitution
- Right to human dignity, Art. 1, Colombian Constitution
- Fundamental rights of children, Art. 44, Colombian Constitution; Arts. 23 and 24, ICCPR
- Fundamental rights of children, art. 10, International Covenant on Economic, Social and Cultural Rights
- Right to due process, Art. 29, Colombian Constitution
General principle applied
- Due process
- Solidarity; Best interest of the Child
Balancing techniques and principles (proportionality, reasonableness, others)
The Council considered that the Defendant violated the due process for not guaranteeing the fundamental right to petition of the Plaintiff. According to it, the behavior of the Defendant determined the impossibility for the Plaintiff to obtain the economic subsidy that the government had established to support the most vulnerable people during the pandemic. This also implied a violation of the principle of solidarity (art. 93, Colombian Constitution).
The Council also considered the violation of the equality principle, according to which, the situations of manifest weakness place the people who suffer them in a position of material inequality with respect to the rest of the population. For this reason, it is considered that belonging to these population groups has a direct impact on the intensity of the damage assessment. The conditions of manifest weakness require preferential treatment in terms of access to judicial mechanisms for the protection of rights, to guarantee material equality through affirmative discrimination in favor of the aforementioned groups. For the Council the Defendant did not respect this principle with its negligence.
The Court decided to uphold the claim since the Colombian State had ratified various human rights treaties with the purpose of guaranteeing the rights of children. In the specific case, it was about two children in a defenseless situation, for which they require that the State take all the appropriate measures, to ensure the full development of an independent life in society and be educated under the assumptions of the Charter of the United Nations, particularly in a spirit of peace, dignity, tolerance, freedom, equality, and solidarity.
On "type of measure challenged": the lack of response to the Plaintiff’s petitions and the omission consisting of not processing the change of holder of the subsidy. Consequently, the omission of not paying the subsidy.