State Liability: Imputation Criteria for Compensation of Conscripted Soldiers.

In Colombia, Article 10 of Law 48 of 1993 establishes that "every Colombian male is obliged to define his military status from the date he reaches the age of majority, except for high school students, who will define it when they obtain their high school diploma"; this public burden imposed on Colombian males is served as conscripts; that is, those soldiers who are recruited compulsorily and enter as regular, high school graduate, or peasant soldiers. It is therefore of vital importance to differentiate between the soldier who performs compulsory military service and the one who does so voluntarily or as a career, because the legal regime applicable to damages that may be caused during military service is different.

The jurisprudence of the Constitutional Court has established as a duty of the entity in charge of recruitment to take into account these categories so that the citizen fulfills his constitutional and legal obligation, that is, when incorporating a person to perform compulsory military service, the authorities carrying out the recruitment are obliged to respect these categories "since they do not have the power to alter them; this means that, when the stage of selection or entry into the ranks of conscripts arrives, they are forbidden to incorporate a peasant citizen as a high school graduate or regular soldier, or vice versa, given that the law in none of its provisions allows it"[1]

These categories are particularly relevant to the matter at hand, since from them derive greater or lesser responsibilities. The Constitutional Court has indicated that those who are performing military service as conscripts, although they are obliged to take up arms and receive minimal training for this purpose, this training does not reach a level of proportionality to the danger they face, due to the short time of service or the physical condition of the underage conscript; it is not admissible to assign to them the most serious responsibility[2]. In the same sense, the Council of State has stated that dangerous activities, intelligence activities, and the responsibility for armed attack and response in areas and situations classified as high risk must be attended primarily by volunteer and professional soldiers[3].

According to the above, and depending on the specific case, the Council of State has established imputation criteria when it comes to compensation for conscripts. It has stated that when dealing with those of an objective nature, the special damage or exceptional risk may be imputed, and on the other hand, the failure of service, provided that it is accredited from the facts and evidence submitted to the process[4]. In this regard, it has indicated the conditions for this to proceed: "special damage when the damage occurred as a consequence of the breach of equality before public burdens; proven fault when the administrative irregularity caused the damage; and risk when it arises from the performance of dangerous activities or the use of artifacts that are dangerous in their structure"[5].

In the same sense, the Council of State has stated that the will of the conscript is subdued by the imperium of the State, insofar as it is a public duty to which they are subject, and therefore "it is clear that the state organization must respond either because the damage suffered by them arises from i) a breach of public burdens that the soldier is not legally obliged to bear; ii) an exceptional risk that exceeds that to which he would normally be subject, and which may originate in the risk of the activity or the risk of the thing; or iii) a failure of service, from which the harmful result is produced"[6]

In that order of ideas, it is proceeded to point out that to impute liability to the State, it is necessary that the three elements be configured, namely: a) Administrative action, which may be through acts, facts, operations, de facto actions, and omissions; b) Damage or injury, which must be real, certain, special, abnormal, and unlawful; c) Causal link, understood as the relationship between the imputable action and the damage or injury.

Once the elements and characteristics of the damage indicated by the Council of State are met, a legal basis must be found that allows the attribution of imputability of the damage to the State, according to the conditions under which it occurred, whether contractual or extracontractual. Likewise, it has been established that damages will not be imputable to the State when they are due to force majeure, fortuitous event, act of a third party, or exclusive fault of the victim.