Colombia: Dagoberto Bohórquez Forero c/ EAAB Empresa de Acueducto y Alcantarillado de Bogotá y Otros (2012)

Comment
AuthorWaterLex and WASH United
Source Urlhttp://www.waterlex.org/new/wp-content/uploads/2015/01/Case-Law-Compilation.pdf
DescriptionDagoberto Bohórquez Forero c/ EAAB Empresa de Acueducto y Alcantarillado de Bogotá y Otros [2012] Tribunal Administrativo (Cundinamarca) 11001-33-31-003-2007-00186-01. 3 May 2012. Case summary in WaterLex and WASH United, The Human Rights to Water and Sanitation in Courts Worldwide: A selection of national, regional and international case law, 2014, at 104.
Criteria FamiliesAccessibility ; Affordability


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Keywords
Comment

[Availability – Water – Sanitation – informal settlements – Right to access to public services (violation) – Right to access services infrastructure to guarantee public hygiene (violation) – Collective Rights – Public service – Obligation to fulfil]
Criteria Families:
Accessibility
Abstract
Comment

Public authorities and public water companies have the obligation to, in settlements that have already been legalised, provide water and sanitation services efficiently and in a timely manner.
Criteria Families:
Facts
Comment

According to a judicial inspection carried out on 15 October 2009, the water and sanitation service is deficient in several informal settlements in Ciudad Bolivar and Soacha, on the outskirts of Bogotá, which has led the inhabitants to install hosepipes’ networks and connect them to tanks for their water provision. The sanitation system is precarious and in bad condition, it is not connected, nor piped as it was built by the community. The provision of public services in these barrios is inadequate, as there is no sanitation infrastructure and their inhabitants have built it themselves, with their own means. For the provision of drinking water the users have two options: either to make a connection through hosepipes to the tanks, although one is damaged and the other one is not sufficient to provide the service effectively and continuously to the whole community; or through tanker trucks. Some of these settlements had been legalised, while others remained illegal. (p.43)
Criteria Families:
Procedure
Comment

A group of residents (the claimants) living in informal settlements in Ciudad Bolivar and Soacha, on the outskirts of Bogotá brought a popular action (acción popular) before the Third Administrative Court of the Circuit of Bogotá against the public water and sanitation service provider (Empresa de Acueducto y Alcantarillado de Bogotá ESP), the Mayor of Bogotá, the Department of Cundinamarca and other public authorities (the respondents). The Court dismissed their claims. The claimants then appealed to the Administrative Court of Cundinamarca.
Criteria Families:
Claims
Comment

The claimants sought, through a popular action (acción popular), the protection of collective rights and interests related to the enjoyment of a healthy environment, access to water and sanitation services’ infrastructure that guarantee public health and access to public services provided efficiently and adequately.
Criteria Families:
Applicable law and reference to regional or international instruments
Comment

• Political Constitution of Colombia, 1991 – Arts. 88, 365 – 370
Criteria Families:
Court Rationale
Comment

The Court in first instance dismissed the claims . Regarding non-legalised settlements, it held that the respondents had no obligation to expand public services to these areas. Regarding legalised settlements, the Court concluded that their recognition by the district did not imply a guarantee of satisfactory provision of residential public services and that the respondents had devised plans and technical studies for future water service provision and therefore, had not neglected the rights of residents. On appeal, the Administrative Court of Cundinamarca, based its ruling on Article 365 of the Constitution, whereby public services are an inherent social purpose of the State and the State is obliged to ensure the efficient delivery of public services to every inhabitant. In this respect the Court referred that the provision of public services is conditioned by the assumptions of efficiency and opportunity, which were not complied with by the public company. The Court found that ‘irrespective of the action taken to study the area and develop technical designs, the fact remains that the water services do not meet the needs of the community and sanitation services are non-existent; therefore, the collective rights invoked by the community are currently being violated’. The Court concluded that, based on consistent adjudication, the municipalities are constitutionally obliged to guarantee and secure the delivery of public services, as part of the social purposes of the State. (pp. 44-46) Regarding the settlements that had already been legalised (mostly by the Capital District), the Court found that the Capital District has the responsibility to mitigate the violation of the collective rights of the inhabitants and therefore must, in collaboration with the public service provider and the inhabitants, take the necessary steps to deliver services efficiently and in a timely manner. The Court ruled that the Department of Cundinamarca (CAR) in turn was obliged to issue the necessary permits and licenses, based on environmental legislation concerned with the use of natural resources. (pp. 47-48) Regarding the non-legalised settlements, the Court found that while citizens had rights to public services, these services must be provided on the basis of legality, including principles of planning, programming and budgeting that are indispensible to ensure that the State can deliver its functions. The Court reasoned that the administration has discretion to arrive at those planning decisions. On the basis of a popular action, the judiciary could not intervene in such executive decisions unless there was evidence of arbitrariness, unreasonableness, disproportionality or neglect of principles that guide public expenditure. The Court found no evidence to that effect. The Court therefore ruled that the non-legalised settlements could not invoke collective rights to public services. (pp. 48-49)
Criteria Families:
Decision
Comment

The Administrative Court of Cundinamarca overruled the judgement of the Court in first instance in relation to the legalised settlements, protecting, as a consequence, the rights to a healthy environment, to access services’ infrastructure that guarantees public health, to access public services and to an efficient and timely provision in the legalised settlements. The Court ordered the Municipality of Bogotá and the public water company to, within one year, and in coordination and collaboration with the Department of Cundinamarca and CAR, execute the works already planned for the water and sanitation service provision in the settlements; and to advance the relevant studies and technical designs to complement those projects. It gave authorities a further year to then execute those complementary works. (pp. 59-60)
Criteria Families:
Affordability

Status

enacted
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