04.4 (English) Judgement T-291-09 of the Constitutional Court of Colombia

8/9/2019 04.4 (English) Judgement T-291-09 of the Constitutional Court of Colombia

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CiViSOL would like to acknowledge WIEGOs efforts in translating to English this Colombian ruling on the waste pickers rights to entrepreneur in the formaleconomy of urban waste management and the recycling indystry. It is an important contribution to international academic analysis on development and law, andmoreover for the international migration of constitutional argumentation and jurisprudence for the legal empowerment of the poor.

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REPUBLIC OF COLOMBIA

CONSTITUTIONAL COURTSecond Revision Courtroom

SENTENCE N T-291 from 2009

Reference: Proceedings T-2043683 and

accumulated1

Appeals for legal protection filed by CecilioCesar Caicedo Izquierdo; Neisy GmezVargas; Mariela Tenorio Carabal; Conrado deJess Cardona; Julio Csar Gmez Ramos;Grecia Valencia Vifara; Jos Armando Arias;lvaro Castillo Quinez; Fabio AndrsVelasco Martnez; Mara Victoria Carlosama;

Jos Hernando Miranda Rodrguez; FreddyOrlando Tenorio Quiones; AlexanderMayorga; Raquel Tamayo Cceres; SegundoCamilo Quionez; Fernando Ramrez; LuzMery Rodrguez Valentierra; Safra RuthMndez Muoz; Ana Beiva Bejarano; NinfaRosalba Ramrez; Lucena Vargas; Ayda Lpez

Jojoa; ngela Mara Alzate; Diego RuizAngulo; Leidy Johana Torres, against theMunicipal Contractor of Public CleanlinessServices EMSIRVA ESP of Cali, theRegional Autonomous Corporation CVC ofValle, the Environmental Administrative


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Proceedings T-2043683 and accumulated 2

Lus Ernesto Vargas Silva in the exercise of their legal and constitutional

competences, have pronounced the following

SENTENCE

In the proceedings of revision of the sentences pronounced by the SeventeenthAdministrative Court of the Calis Circuit and the Court for Contentious

Administrative Proceedings from Valle del Cauca (T-2094526); NineteenthPenal Court of the Calis Circuit and Superior Court of the Calis JudicialDistrict (T-2094503); Seventh Administrative Court of the Calis Circuit (T-2043683); Second Civil Court of the Calis Circuit and Superior Court of theCalis Judicial District (T-2088107); Tenth Civil Court of the Calis Circuitand Superior Court of the Calis Judicial District (T-2100533); First Family

Court of Cali and Court for Contentious Administrative Proceedings fromValle del Cauca (T-2094109); Seventh Civil Court of the Calis Circuit andSuperior Court of the Calis Judicial District (T-2100590); Second Civil Courtof the Calis Circuit and Superior Court of the Calis Judicial District (T-2100537); Fourth Civil Court of the Calis Circuit and Superior Court of theCalis Judicial District (T-2100536); Eleventh Civil Court of the Calis Circuitand Superior Court of the Calis Judicial District (T-2100659); Superior Court

of the Calis Judicial District, Family Court (T-2088003); Calis Sixth FamilyCourt and Court for Contentious Administrative Proceedings from Valle delCauca (T-2085999); Seventh Civil Court of the Calis Circuit and SuperiorCourt of the Calis Judicial District (T-2100591); Twelfth Labor Court of theCalis Circuit and Superior Court of the Calis Judicial District (T-2092631);Seventh Civil Court of the Calis Circuit and Superior Court of the CalisJudicial District (T-2092630); Ninth Labor Court of the Calis Circuit and

Superior Court of the Calis Judicial District (T-2092148); Seventh PenalCourt of the Calis Circuit and Superior Court of the Calis Judicial District(T-2092004); Second Civil Court of the Calis Circuit and Superior Court ofthe Calis Judicial District (T-2090545); Tenth Civil Court of the CalisCircuit and Superior Court of the Calis Judicial District (T-2088111); Fourth


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By means of the court order from October the ninth (9), two thousand and

eight (2008) pronounced by the Tenth Selection Court of the ConstitutionalCourt, proceeding T-2043683 was selected.

By means of the court order from November the fifth (5), two thousand andeight (2008) pronounced by the Eleventh Selection Courtof the ConstitutionalCourt, proceedings T-2070143, T-2079744, T-2079694 and T-2084644wereselected and accumulated as they presented the same subject.

By means of the court order from November the eighteenth (18), two thousandand eight (2008) pronounced by the Eleventh Selection Court of theConstitutional Court, proceedings T-2085999, T-2088003, T-2088111, T-2088107, T-2092004, T-2092148, T-2094503, T-2094526, T-2090545, T-2094109, T-2092630, T-2092631, T-2100533, T-2100536, T-2100537, T-

2100590, T-2100591 and T-2100659 were selected and accumulated as theypresented the same subject.

By means of the court order from January the twenty-ninth (29), two thousandand nine (2009) pronounced by the First Selection Courtof the ConstitutionalCourt, proceedings T-2140927 and T-2146448were selected and accumulatedas they presented the same subject.

I. BACKGROUND:A group of waste pickers from Navarro waste dump, in the city of Cali, havefiled appeals of legal protection of their right to a decent life in connectionwith the right to work. The appeals of legal protectionwere filed individuallyand the Constitutional Court has selected several from the hundreds of casessent for their eventual revision. The appeals of legal protectionwere presentedin identical formats and, in general, are accompanied by the same evidences.For that reason the facts that led to those appeals of legal protectionshall benarrated in a general manner and the names of the petitioners shall be included


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Several years ago discussions concerning the closure of the waste dump began:() because the leached products reach the subsoil beneath the dumpsitecontaminating the Cauca River, which gets to the treatment facilities of Puerto Mallarino as untreatable water, not because of the waste pickers fault,neither due to the recycling process, since the appropriate techniques forseparation of solid waste, such as plastic, glass and cardboard, were not used,as well as those for the inoculation of thermogenic bacteria, which converts 6tons of organic material into one ton of fertilizer for soil recovery withhomogenous characteristics. Such techniques were not used although: Thattechnology was presented to EMSIRVA in several occasions but it was notheard. It has been successfully used in other parts of the world and with suchtechnology thousands of work positions would be created and landoverwhelmedby single-crop farming would be recovered.

In June the thirteenth (13), 2008, a meeting between the waste pickers fromNavarro and some municipal authorities was carried out in order to findsolutions for the problem that would be generated for the families whichwould be left without options of work after the permanent closure of the wastedump. Representing the authorities, the following participated in suchmeeting: doctor Eliana Salamanca, Govern Secretary; doctor Hctor

Guillermo Banguero, Director of DAGMA; doctor Jos William Garzn, Director of CVC and doctor David Milln Orozco, Sub director of POT.The commitments established between the waste pickers and the municipalauthorities were:

Mayors office: work relocation of 200 waste pickers from Navarro wastedump

DAGMA: employment offer, depending on resources transferred by CVC, of 50positions for meadow pruning andembellishment of green areas.

Education Secretariat: free education for the children of this population.


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In June 25th, 2008, the Navarro waste dump was permanently closed. That

date was the one previously set as the deadline for the employment of theworkers, however the waste pickers affirm: Today, July 18th, 2008, after 23days without the opportunity of getting the minimum income from the workthat has been taken away from us, we see the lives of our children, as well asour own, threatened by the lack of food, since it is very little what we can get.In the same way, the whole family life is at risk due to the lack of access tohealth services.

The waste pickers regard to that situation as () a violation of the right towork (art.25 of the Political Constitution), and therefore of the rights to life(art.11 of the Political Constitution), health (art.49 of the PoliticalConstitution), social security (art.48 of the Political Constitution) and theright to a livelihood ().

Based on the above mentioned facts, the following pretensions arise:()in order to protect the fundamental rights invoked in the present appeal oflegal protection, in virtue of the principle of legitimate trust which allowed us todevelop the work of recycling for several years, being that our only source ofincome and therefore of livelihood, the defendantentities or its representativesshall be ordered the following:

1. It shall be immediately set in motion by the defendant entities or itsrepresentatives, in coordination with the pertinent municipal authorities, animmediate plan of decent work relocation in order to prevent thedeterioration of our life quality and to assure our access to ourconstitutional rights.

2. The right of my children and my whole family to a decent life shall beguaranteed. That right is at imminent risk and is being violated by the fact

that our only source of work developed for so many years is being takenaway from us.

3. The salary correspondent to each day out of work from Navarro waste dump,shall be recognized, considering that it generated an average daily incomeof $50 000 working from Monday to Saturday according to what is


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2. Interventions of the defendantauthorities:2.1. Intervention of the Contractor of Public Cleanliness Services,EMSIRVA ESP:

The Contractor of Public Cleanliness Services from Cali EMSIRVA ESP

intervened before the first instance judge opposing to the pretensions,justifying that there is no legal or contractual relation between the petitionerand our company; therefore no responsibility can be placed upon usconcerning the facts reported.

It was reported that EMSIRVA is an industrial and commercial companywhich, according to Law 142 from 1994 and Law 689 from 2001, has the

purpose of: collecting waste, mainly of the solid type, with the components,modalities, classes and its complementary activities of transport, treatment,use, recovery and final disposal of such waste. That activity is carried out inthe city of Santiago de Cali, as part of a market in which there is freecompetition with approximately ten companies developing the same activity.

The company affirms that before Law 142 from 1994 the waste disposal wascarried out mainly in open air dumpswith very ineffective results during thewhole process. During the nineties several regulations were adoptedconcerning themes of environmental protection, such as: () according toResolution 336 from September 15th , 1999, CVC imposed an environmentalmanagement, recovery and restoration plan for the closure of Navarro wastedump and the recovery of a transitory landfillin the City of Santiago de Cali.

The administrative act cited exposed that the construction of the transitorylandfill in Navarro constituted a measure of strictly transitory character,considering the current inexistence of another appropriate site for the finaldisposal of the Citys solid waste, and therefore in a maximum period of three(03) years, the municipal administration, EMSIRVA ESP and the company ofE i l S i d T h i SERVIAMBIENTALES l


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about which it expressed that: () when the final disposal was carried out in

Navarro, the legal dispositions that rule the operation of sites where theactivity of landfill is developed under the set of norms previously mentioned,especially concerning the environmental laws, could not be complied with.

In the contract signedby EMSIRVA, measures to protect the waste pickersactivities, recognized by its economic nature, were stipulated. The companyhighlighted: () it was agreed that a system should be implemented, throughwhich the people dedicated to recycling could carry out that economic activityunder terms which would not allow them to be in charge of the operations inthe site of the final disposal, as a transitory measure and with the objective ofattenuating the situation of compliance with the set of norms cited, underwhich the responsibility for the presence of the waste pickers had always fallen upon the operator of the site of final disposal in Navarro; even

considering that it was not the operators responsibility given that it is of the public authoritys competence and of a social nature, and although theintervention of the municipal authority had been requested, it was not possibleto find a solution to that social problematic.

The creation of systems for the use of solid waste was delegated to the citycouncils, according to Decree 1713 from 2002 (Title I, chapter VII, articles 67

to 87), which should, in conformity with the Solid Waste IntegralManagement Plan, PGIRS, define:()an arranged set of objectives, programs, projects and activities defined by the territorial entity ()oriented towards the recovery anduse of solid waste.Such Plans, according tothe Solid Waste Integral Management Policy, should comply with thefollowing principles:

Integrated management of solid waste, GIRS, (reduction at the source, useand appreciation, controled treatment and transformation and final disposal.) Integral analysis of the products cycle.Differential management of usable waste and garbage.Identification of the different degrees of responsibility. Planning


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complied with the norms of environmental protection in that matter. The waste

pickers can continue developing the activities they used to do before theclosure of Navarro waste dump within the terms established by the current setof norms: () the matter claimed by the petitioner in this constitutionalaction is a problem of social nature and of reinsertion in the work market,based on an alleged lack of work source, a situation which, according to theprevious paragraph, does not correspond to the reality since the activity ofuse or recovery under technical conditions has not been prohibited; thosepeople may carry out their work as anyone in Colombia, seeking their ownclients and not in an authoritarian manner as they used to do in Navarro,using the force().

In relation to the facts presented in the petition, the company affirms that: Itis certain that the activity of final disposal in Navarro was carried out for

more than thirty years and, as expressed in the legal background formulatedin the beginning of the present document, the norms and technical procedureswhich regulate the operation of sites of final disposal did not exist, norms thatnowadays prohibit the activity of recycling in the waste dumps; if it used to bedeveloped, it was done in opposition to the current set of environmental normsand has contributed to the generation of the public sanitation problematicinNavarro.

The company highlights that it is not correct that the closure of Navarro wastedump is attributed to bad management in the technical aspect but to the factthat since 1996 it was considered a transitory landfill: ()since 1996 incompliance with the current legal dispositions for environmental matters, thecompetent environment authority has imposed a management plan throughwhich, in a clear manner and considering the referred set of norms, it

authorized the final disposal in Navarro using the technology of transitorylandfill ().

In relation to the commitments established between the administration and thewaste pickers, it expressed: () it is certain that in relation to the closure of


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the availability of resources enable the development of the companys current

scheme of intervention from the Domiciliary Public ServicesSuperintendence.

According to EMSIRVA, it is necessary to make a distinction between theeconomic activities of collection and transport of solid waste, which are theones executed by companies such as EMSIRVA, and the activities of use andrecovery of solid waste, which may or not be carried out by such companiesand in which anyone who complies with the environmental regulations mayparticipate. It considers that there are no constitutional or legal reasons whichdemand the protection of the development of that economic activityexclusively by the waste pickers. The explanation: () the activity ofrecycling and the claims of the petitioners do not constitute an imperativematter for the operator of the activity of final disposal, neither for any of the

companies responsible for rendering the cleanliness service through theactivities of collection and transport because, although the waste pickerssustain that the waste should be delivered to specific people such asthemselves, as a free economic activity it could be carried out by the samecompanies rendering the public service or by any other natural person orlegal entity who chooses to develop such economic activity; besides the abovementioned, there is no constitutional or legal obligation to protect that

economic activity in order to make it exclusive for the use of a few people()

The company concludes that no fundamental right is being violatedconsidering that there is no contractual relation with the waste pickers and ithas complied with the legal norms concerning the protection of theenvironment. The appeal of legal protection, in its understanding, should bedeclared inapplicable, as the constitutional resource suitable for this kind ofcase is the popular action.

Finally, the company requests: () to be disconnected from the presentconstitutional action and, due to the number of appeals of legal protection


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() the decision to permanently close Navarro waste dump was based on

the fact that it is not the most appropriate site from the technical point of view,as well as when it comes to the use of the soil for the activity of final disposalof solid waste. Such decision was made in compliance with the order fromDecember 20th, 2006, issued by the Southwestern Environmental ManagementDirectors Officein conformity with the order from June 4 th , 2008, issued bythe General Director, through which the immediate termination of the solidwaste disposal was ordered; as well as the permanent closure of the formerdumpsite, the transitory landfill and the transitory cell number 7 and it was

also prohibited the final disposal of solid waste from Cali and other cities inthe lot belonging to EMSIRVA ESP, located in the town of Navarro, city ofSantiago de Cali, due to the facts that its useful life was over, it had seriousenvironmental and technical limitations and it was considered an area for the future urban expansion of the city of Cali, according to the territorial planning of that city. Besides the above mentioned facts, the dumpsite wasbuilt, from the environmental point of view, on the aquiferous system of theCauca River; considering the hydrological aspect, it is located in a humid

zone over a bed from the Cauca River, a body of water that, according to thereports from the Corporation, is contaminated by the activities of badoperation and disposal of solid waste; geologically, the area is part of thequaternary alluvial deposit of the Cauca River, formed by the intercalation ofsand, gravel, mud and clay, being the terrain located over thin layers of clay,insufficient for fulfilling the necessity of cover material; hydro geologically,the ground water level of the area during the winter varies between 1.00 and2.00 meters deep, and in the summer between 2.00 and 4.00 meters, depthsconsidered inappropriate for the presence of a landfill, as well as of adumpsite; contamination of the aquifer by the presence of high concentrationsof chlorides, iron, hardness, phenols and fecal coliforms way above theadmissible levels established by the Social Protection and Health Department for potable water, with the additional presence of nitrites, nitrates and heavymetals are characteristics that indicate a large scale process ofcontamination; the Puerto Mallarino aqueduct, which supplies 75 % of the

water used by Calis population, is located 4 Km away from the Sur de Aguablanca interceptor canal, known as the Navarro Canal, which presentscontamination by leached materials from the disposal area, combined with theinefficient operation, the lack of daily coverage of the waste, the presence ofbirds of prey, rodents, vectors and the illegal presence of waste pickers in theworking front, who prevented the daily cover. Also, there is no system for the

f l h d l h h h l d l h


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In relation to the commitments established with the waste pickers prior to

the closure of the dumpsite, it highlights that: () in the presentdocument there is no evidence that indicates the commitment of theCorporation to solve the waste pickers problematic, given that there hasnever been a contractual relation with them. Furthermore, it is not of ourcompetence to provide solutions to social problems generated by therendering of public services (), as its function is, specifically: () toadministrate the area in its jurisdiction, the environment and the

renewable natural resources and facilitate its sustainable development,with the objectives of assuring the harmonic and respectful relationbetween men and nature and defining, as the environmental authority,the policies and regulations related to the recovery, conservation, protection, territorial planning, management and use of the renewablenatural resources and the environment, as well as the imposition and

execution of the appropriate measures of vigilance, fining, preventionand sanction that are necessary ().

About the new Yotoc waste dump, the Corporation affirms that it isenvironmentally viable but it does not include the participation of thewaste pickers from the former waste dump in Navarro. The interventionindicates: () the solid waste disposed in the Yocot site, an area duly

licensed according to Decree 1220 from 2005 in conformity with Decree838 from March 23rd, 2005, appropriate to be technically operated usingthe technology of landfill, among whose operation conditions is notincluded the possibility of presence of any waste pickers carrying out thewaste separation at the source, considering that their presence preventsthe activities of coverage and compacting of the waste, conformation ofslopesand confining of residues, causing delays in the operation front,

besides the risks to the health and life of those developing such activity.

Finally, it affirms that it has no responsibility concerning the situation ofthe people who used to develop the activity of recycling in Navarro wastedump and indicates the ones who, in its understanding, should seek


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that each and every pretension expressed by the petitioner should be

denied ().

The Corporation annexes the following to its intervention:

- The Resolution 336 SGA (Sub direction of Environmental Management) from1999 from the Valle del Cauca Regional Autonomous Corporation throughwhich a management, recovery and restoration plan for the permanent closure

of Navarro waste dump is imposed, as well as the construction of a transitorylandfill in the city of Santiago de Cali.

- The Resolution 394 SGA (Sub direction of Environmental Management) from1999 from the Valle del Cauca Regional Autonomous Corporation throughwhich the motion to set aside filed against the 336 SGA Resolution fromSeptember 15th, 1999, is resolved.

- The 412 DG (General Director) Resolution from 1999 from the RegionalAutonomous Corporation from which the appeals filed against the Resolution336 SGA from September 15th, 1999, result.

- Concept signed by Cecilia Rodrguez Gonzlez Rubio, Ministry of theEnvironment, by invitation from the municipality of Santiago de Cali.

- Order from December 20th, 2006, from the Southwestern RegionalEnvironmental Directors Office of the Valle del Cauca Regional AutonomousCorporation through which the compliance with the conditions established bythe Resolution 000183 Southwestern from 2005 is declared and the immediatetermination of the disposal of solid waste in Navarro transitory landfill isordered.

- Resolution 052 DG (General Director) from November 2nd, 2007 throughwhich a delegated faculty is reassumed and sanctions and obligations areimposed upon Calis Contractor of Public Cleanliness Services EMSIRVAESP.


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the lot belonging to EMSIRVA ESP located in the town of Navarro, city of

Santiago de Cali, is prohibited.

2.3. Intervention of the Environment Administrative Department,DAGMA:

The Environment Administrative Department DAGMA- begins itsintervention describing the history of the development of the waste pickers

economic activity in Navarro waste dump: Since its beginning in 1967,Navarro has functioned as a dumpsite for household waste. Therefore, yearafter year, its extension was expanded as well as the population contributingwith the management of all materials that could be recovered, such as plastic, paper, glass and metals, among others. The Environment Administrative Department DAGMA- since its creation after the Agreement number 18

from December 30

th

, 1994, and in the exercise of its functions among whichare the reformulation and implementation of public policies in conformity withthe superior environmental norms and the follow up and control of suchdispositions in relation to the companies and individuals likely to producecontamination of soil, water, air, flora, fauna and the community, concerningthe area of Navarro has watched over the environmental management adoptedin relation to the disposal of waste and the environmental impact caused by

the area. However, it has not intervened in the work infrastructure created inthe beginning of Navarro by the collection of recyclable materials.

In relation to the commitments established with the waste pickers in Navarro,it indicates that: () considering that DAGMA does not have economicresources of its own, it could not be regarded to as an entity that generatesdirect employment. Therefore, counting on the approval of transference of

resources by CVC to our entity, we could create solutions to the social problematic by employing the waste pickers for the activity of meadowpruning and embellishment of green areas (50 workers), having the presentoffer been denied by the CVC Director. For that reason, DAGMA cannotfulfill its commitments with the waste pickers until an agreement with CVCs


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2.4. Intervention of the Territorial Directors Office of theEnvironmental Southwestern Regional Directors Office of the Valle delCauca Regional Autonomous Corporation.

The entity begins its intervention highlighting that it is () the one whosefunctional competence includes all matters related to Navarro final disposalsite (), however () once revised all proceedings correspondent to the

follow up and environmental control of Navarro solid waste final disposalsite, the minute from June 13th , 2008, signed by the General Director of theCorporation was not found.

This intervention represents in its totality a copy of the one presented by theValle del Cauca Regional Autonomous Corporation transcribed above, and forpurposes of this entitys intervention, it shall refer to item 2.2.

II. EVIDENCES:1. Evidences requested by the Court.By means of the Order from February 13th, 2009, the Court requested thefollowing evidences:

First.- Through this Corporations General Secretary, we request Calis Mayors Office, Calis Environmental Management AdministrativeDepartment, Calis Contractor of Public Cleanliness Services, the MunicipalPlanning Administrative Department and the Valle Del Cauca RegionalAutonomous Corporation to inform the Court, within Five (05) days from thenotification of the present order, about:

1. The progresses achieved concerning the compliance with the commitmentsestablished with the representatives of the waste pickers from Navarro wastedump, in June 13th and August 8th, 2008, specifying actions for each one of thecommitments, dates of compliance and the beneficiary. In the same way, theymust indicate what commitments have not been complied with yet, as well as


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2. Reply from EMSIRVA SA.In compliance with the order, Calis Contractor of Public CleanlinessServices, EMSIRVA ESP, indicates the following activities:

- The company has studied the possibility of celebrating a commodatumcontract with the waste pickers for the use of some recycling conveyors inNavarro. However, the procedural and legality studies showed that ()EMSIRVA ESP cannot exercise acts of property or domain in relation to thoserecycling conveyors, neither activities of disposal (), considering that theyare property of SERVIAMBIENTALES SA ESP.

- We have initiated a pilot program ofseparation at the source in the area ofBrisa de los lamos commune Number 2, with approximately 3500

subscribers in 35 groups, which consists of: () creating a chain of supply ofusable, generator, recovery and commercial waste. EMSIRVA ESP hascarried out the citizen sensibilization oriented towards all sectors of the area;with the companies of the sector we have managed resources to financeconsumables such as the blue container for each dwelling, defined by thecommunity and presented to a PGIRS employee; the recoverers and waste pickers of the sector, with their cart and identified with a T-shirt of the

program, in an organized manner and in more decent conditions are incharge of selectively collecting the solid waste provided separately by thehouses in a blue container for recyclable elements like paper, carton, plastic,glass and metal duly washed and drained ()

- We intend to implement a selective route program in 6 communes from thenorth zone, in which: () the vehicle defined for the collection is the R105,with capacity for 7 tons, model 1998, which is currently in reparation forenlistment beginning in the first week of December. We have a proposal of alogo to be placed on the vehicle. The micro and macro routes are in process ofdefinition.


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6th, 2009, the waste pickers hired by the companies EJERSER and ACERTAR

worked until February 5th

, 2009. However, () the same will try employapproximately 30 waste pickers as long as they are required.

Finally, concerning the same point the following balance is made:

In the northern area, still operated by EMSIRVA ESP, 10 waste pickers remainemployed.

In Navarro, and through the Cooperative UFPRAME, the 25 waste pickers remainemployed

With Consorcio Sellado Navarro 2008, company executing contract number 105 from 2008 () we have also reached the agreement of employment for 30 to 35more workers.

In relation to the census and the processes of card issue, EMSIRVA has takena census of the population of waste pickers from Navarro waste dump.However, it was not followed by any process of card issue. The city of Cali,through the Municipal Planning Administrative Department (as coordinatorof the PGIRS) in compliance with the established in its strategic line number 4 (quality in the rendering of the cleanliness services) which is contemplated

in the subprogram of Empowerment and Organization of waste pickers andwheel barrowers, has formulated the project census and characterization ofthe waste pickers and the recycling activity in the city of Santiago de Cali.,with the objective of establishing the cultural, social and economic aspectsand other components which influence that activity in order to promote the formal organization of the waste pickers and shopkeepers enabling theirparticipation in the recovery, use and commercialization of solid waste, with

no relation to the municipality and the people rendering the service..However,as previously mentioned, such census was not followed by a processof card issue.

The company annexes to its reply a list of the 112 waste pickers contained inh


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such conveyors been replaced with a weighbridge, which will be used in the

operation of the pilot stocking centre in an association between Calismunicipality and the waste pickers.

Commitment number two (2) established by the city of Santiago de Cali and EMSIRVA ESP, registered in the Minute from August 8th , 2008, to permanently deliver an identified volume of waste for the functioning of theconveyors HAS NOT BEEN FULFILLED due to the facts presented in relationto commitment number one, HOWEVER WE HAVE FULFILLED with the

conformation of the Entrepreneurial Management Committee to support theassociation of Navarro waste pickers, with the participation of EMSIRVA ESP, the city of Santiago de Cali, Calis Municipal Attorneys Office, theWaste Pickers Association and Calis Archdiocese.

Commitment number three (3) registered in the Minute from August 8th, 2008concerning the delivery of the functioning waste separation plant within 90days HAS NOT BEEN FULFILLED. However the construction of the

Inorganic Solid Waste Recovery Center in commune four (4) is in progress,through which between 25 and 30 waste pickers have been employed for theprocess of selection, classification and process of the recyclable material.

Commitment number four (4) registered in the Minute from August 8th , 2008,through which Calis Mayors Office was supposed to provide 375employments for three (3) months all the contracts for the beneficiary waste pickers HAVE BEEN FULFILLED completely, and were fully remunerated.

The work was developed through DAGMA, with support from the Archdiocesein the educational see of Santa Isabel de Hungra. It adds that will extend foranother two months () the emergency employment of the same 375 wastepickers ()

In relation to the health aspects, the entity indicates that () hasidentified through SISBEN 1247 people in the head of Navarro in the

waste pickers program. About the other entities, it affirms that:

EMSIRVA ESP has complied with the generation of one hundred and ten(110) employments from the two hundred and twenty offered, in other words50%; CVC has complied with the 30 emergency employments for the period ofthree months in other words 100%


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The city of Santiago de Cali Social Housing Secretariat has carried out

before the Department of Environment, Housing and Development amobilization in order to obtain 375 benefits for waste pickers in theframework of the National Housing Plan.

The municipal administration of Navarro Health Center has carried out ahealth attention day for the population.

Calis Mayors Office Planning Administrative Department, in the facilities

of the Municipal Counsel, in December 30th

, 2008, offered a meeting with Navarro waste pickers connected to the support programs offered by the Mayors Office in coordination with EMSIRVA and CVC. It consisted of aspace for integration and presentation of the results achieved with the wastepickers community in the end of 2008 fiscal year, of which we have annexed acopy.

4. Reply from the Territorial Directors Office of the SouthwesternRegional Environmental Directors Office of the Valle del Cauca

Regional Autonomous Corporation.

Before referring to the commitments established with the waste pickers, theentity exposes all the reasons why it considers itself free of any responsibilityin the matter and, on the other side, the reasons why the waste pickers should

not have any rights in relation to the development of the productive activity ofrecycling.

In relation to the commitments contained in the Minute, it affirms:Concerning the fulfillment of the commitment to provide employments,contained in point 4 of the commitment Minute from August 8th , 2008, thesame was not signed by this Corporation, considering that it does not have

any work or contractual relations with such people. However, in conformitywith the Operational Plan of Project 1500 () we have employed 30 peoplefrom the Mayors Officesofficial lists, who presumably used to develop theactivity of recycling in Navarro waste dump, for a period of three (3) monthsbeginning in January 5th of the current year ( )


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activities, as well as from the provision of assistance, credit or other

incentives available at this moment or in the future ().

6. Reply from the Cooperative of Associated Work United Towards theFuture Protecting the Environment, UFPRAME CTA.

The Cooperative of Associated Work United Towards the Future Protectingthe Environment, UFPRAME CTA, has intervened in order to briefly explainthe cooperatives creation process, the process of card issue and the benefitsderived from it:

1- In the year 2003, driven by the will to be heard, the waste pickers saw thenecessity of creating a juridical entity that would represent them. In thatcontext UFPRAME CTA was created and in the following negotiationmeetings carried out with the several municipal entities, with the objective to

be recognized before them, it has conducted an organizational census whoseresult was the identification of 29 waste pickers groups, or EAT, each oneconsisting of 20 people, in the total of 625 waste pickers municipallyrecognized.2- The card issue carried out with the waste pickers in the year 2006, due tothe order of exclusive participation of waste pickers belonging to NavarroLandfill Social Plan which EMSIRVA wanted to impose aiming to prevent theinfiltration of other waste pickers, was not 100% complied, considering that

such people are reluctant to following rules, and in the present moment 313cards have not been delivered, due to the non cancelation of the card, theadmission contribution and the monthly contributions which the peopleassociated to the cooperative must comply with, according to the statutes thatrule us as a cooperative.

3- The people associated to our cooperative who carry out their respectivecontributions, besides being part of the Social Plan recognized by theMunicipal Attorneys Office, are entitled to:

-Participate in the several benefits granted by the Mayors Office and itsentities to the waste pickers association, such as:

-Decent work (direct contracts with the cooperative)


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commitment minutes with the waste pickers, one from June 13th and the other

from August 8th

, both in the year of 2008.

Concerning the first one it affirms that several activities oriented towardsaccompanying Calis waste pickers association have been carried out:

1.2 In the commitment minute signed last June 13th by the Municipal Administration and the waste pickers , it is mentioned that the MunicipalPlanning Administrative Department from Santiago de Cali, whose Director isDoctor: JOHANNIO MARULANDA ARBELAEZ isaccompanying Calis waste pickers association project included in the Solid Waste Management Plan.Also, contracts with Mr. Ernesto Jos Piedrahita, a Social Communicator andMaster in Business Administration, and Mr. Espolito Murillo are being executedby the Municipal Planning, which have the objective of supporting the gremialempowerment of Calis waste pickers. They have been developing a plan of

support to that sector, which for the Navarro waste pickers consists of:1.2.1 Support and coordination of the process of food supply to the wastepickers (delivery of three basic food parcels in a total of 2050 with an agreedtotal of four deliveries (one per week).

1.2.2 Support to the processes of agreement between the Mayors Office and the Navarro waste pickers, carried out until the present date in three Meetingsinside CAM, two in CAMs small square and one in a Council session.

1.2.3 Management of the punctual requests presented by Navarro waste pickers.

1.2.4 Analysis and consolidation of the planning data base, SISBEN, and theorganizations of Navarro waste pickers, with the objective of offering therespective supports within the support social plan contemplated by themunicipality.

1.2.5 Coordination of a health care day, in association with the HealthSecretariat, in favor of Navarros population and the waste pickers at the health

office from the city of Crdoba.

1.2.6 Meetings for the organization of the waste pickers and supply ofinformation with the support from the Catholic Church (Archdiocese).

1.2.7 Mobilization before the National and Sectional SENA (national learningservice) representing the Mayors Office for designing and setting in motion


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MY HOME number 4.4.4 MACRO PROJECT NEW ECO-CITY OF NAVARRO. Policy orientation. According to the natural vocation and thesocio cultural dynamics of the territory, a new model of eco-city is created bymeans of the macro projects of national interest, with not less than thirtythousand (30.000) HOUSING UNITS, around the territory known as Cauca River Park, with possibilities of development of productive, recreational,administrative and housing activities; in the framework of the responses to theglobal warming, the water supply crisis, food security, the disappearance ofthe formal employment and the recovery of the agricultural sector, with the

collaboration of Raizal communities, and structuring the development of the Eco-Citys sector for the community organization as support for an integralvision of the dwelling and the habitat.

Objectives:

To promote an integral intervention in the rearrangement of Navarro To promote the economic, social and environmental sustainability. To destiny the agriculturalvocation areas to projects of security and food

sovereignty.

3. At 12:00 from Wednesday, August 6th, 2008, the Mayor had a meeting withthe waste pickers at the Ermita Church and offered to pay them six hundredthousand pesos ($600.000) every month for them to clean the green areasand to collect waste in Cali, until the citys first recycling plant has startedfunctioning. It would represent three hundred employments added to the two

hundred promised by EMSIRVA to Navarro waste pickers and to the thirty(30) offered by CVC. The offer was not accepted by the waste pickers.

In relation to the commitments established by means of the Minute fromAugust 8th, 2008, it transcribes the commitments established without makingany reference to their compliance, in order to conclude: According to thepreviously exposed and despite the fact that the institutional commitments are

clear and correspond to the waste pickers demands, in the first meetingsexternal factors to the waste pickers community that were present at themeeting table as advisers of its representatives did not allow the participantsto reach a prudent term of agreement. It was only in August 8 th that the abovementioned COMMITMENT MINUTE was signed


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3. Execution of a health day in Navarro by the HealthSecretariat.4. Enrolment of 25 children and teenagers from the community of wastepickers in free primary and secondary educational programs by the EducationSecretariat.5. Delivery of 2.400 basic food parcels with an average unitary value of$30.000 to the waste pickers families.

In relation to the commitments signed in August 8th , 2008, the waste pickersfrom the former Navarro waste dump have received benefits from:

1. Emergency Employments Plan during four months through the employmentof 375 people from the 625 belonging to Waste Pickers Census taken by thesame community. Such program costed $ 2.400 million.

2. Therefore we have complied with 100% of the commitments established bythe municipality through DAGMA with the waste pickers in terms ofemployment. However, DAGMA with Mayor Jorge Ivn Ospinas directive

has set in motion the process of employment of the same number of wastepickers for another two months. Such investment will cost $800 million.

3. In order to comply with the citys commitment in relation to the creation ofa solid waste recovery plant, we have reserved 1.300 million pesos fromDAGMAs budget for 2009, which is in process of hiringto start operating astocking centre on the citys north area and, after that, an inorganic solidwaste use plant. In that space a weighbridge, property of EMSIRVA, will

function in replacement of the transport conveyorthat was firstly supposed tooperate in the site.

4. The stocking center will start its operation on the second semester of 2009using labor force form the Navarro waste pickers sector- between 50 and 60people. The routes of selective collection in the northern and central areas ofthe city, areas which shall supply the stocking center, are currently in processof design by EMSIRVA and Ciudad Limpia (Municipal Contractors of Public

Cleanliness Services).

5. We are also currently working in the organizational designof the companythat will be in charge of managing the stocking center. The waste pickers will participate in the company not only as workers, but also as partners, and

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Lpez Castao, ID Card number 53.905.239 and Claudia Benavides Hurtado,

ID Card number 67.019.163 and Shailly Barnes, citizen from the UnitedStates, social security number ending in 469.

The intervention begins explaining the conditions of poverty and marginalityin which Calis waste pickers have been living for decades, since thebeginning of such productive activity as a means of livelihood for severalfamilies:

In the context of urban poverty, the waste pickers are the poorest among the poor. For many generations, Colombian elderly, men, women and children,many great-grandchildren of the population displaced by the violence fromthe mid-twentieth century, have arrived at the cities as refugees from theviolence that has sent them away from the countryside. For them, as for theirgreat-grandchildren, only the waste dumps have represented an opportunityof livelihood in the cities. Among the piles of waste from the rest of the

society, these marginalized people have learned over the past decades how todig and select the materials that could be recovered for their own use or to besold. Pharmacies or drugstores that, for instance, were interested in buying flasks to bottle herbal mixtures and compounded medications, among otherbusinesses that bought cardboard, metal cans and newspaper several yearsbefore the invasion of the plastic bags, served to pack the merchandise inretail sale.

With the growth of the cities and their population, came the growth in the production of waste and the cities had to create large central dumps wherethe waste from the whole society could be disposed. The city of Cali startedoperating Navarro waste dump in 1967. Naturally, the people without otheropportunities to obtain their livelihood besides looking for life among thewaste of the rest of the population, followed the waste to its new destination,Navarro waste dump, a giant extension of waste with mountains and ground

formed by solid waste compacted by the passage of time. Also a landscapeguarded by vultures, the paradise for rats and cockroaches and the onlyoption of life for several families from Cali who, as other Colombians andLatin Americans, face the disgrace of living in one of the richest, in terms ofnatural resources, but most humanly unequal parts of the world.


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extreme poverty and abandonment of those adults, the children of parents withno opportunities, invisible in their poverty, are born and grow up in suchdifficult circumstances that, paradoxically shock and touch the whole societythat eventually finds out about the innutrition and sexual victimization of itsmost helpless children. The abandonment represented by poverty and theurgency of survival are the reasons why waste pickers children start workingin the business of digging waste since such young age. After all it is theirparents and grandparents business, the occupation that since the beginningof last century, the poorest and most excluded families in our country have

been developing. For obvious reasons, when the law does not persecute them,the society does not discriminate them, the dogs do not bite them, the policedoes not harass them, the public opinion does not insult them, the media doesnot make them invisible, the administration takes away their access to thewaste without giving them another option of livelihood.

In the opinion of the intervenient party, those historic poverty conditions

typical from waste pickers have become accentuated for the ones fromNavarro due to the closure of the waste dump, which was not followed by anymeasures to reduce the impact of the decision:

It should not be difficult for the administration to imagine that if peopledepend on the waste and it is taken away from them, their life is at risk. In thesame way, it should also not be difficult to imagine that if someone only finds

opportunities among the waste of others, it is because that person does nothave other options of work and livelihood at her disposal.

It is precisely the great vulnerability of the waste pickers population whatexplains why the decision to close the waste dump has aggravated the povertysituation of several people, and therefore put their minimum vital at morerisk.()

The closure of Navarro waste dump without being offered appropriatealternatives that could assure the minimum vital to the people who lost theirsource of work and livelihood is equivalent to closing even more the povertyentrapment in which they have been living without offering them a way out.The closure of a source of informal economy in a developing country facing a

fli t it ti i th d i th iti hi f th C l bi


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guarantee their food and shelter. (See testimonies in CIVISOLs video for theConstitutional Court annexed)

In its visit, CIVISOL could observe that many of the people visited aremothers heads of households, some disabled, a high percentage of adults andan important afro descendent sector. Also, and with great preoccupation, wecould observe that an important sector of the waste pickers consists of youngadults between 20 and 35 years old seeking the opportunity to make theirdreams come true. However, given that the work they had carried out for

years has disappeared, some of them confessed that were being forced topractice crimes in order to survive.

At a later stage of the intervention we present a chronology of the wastepickers situation since the beginning of their activity in the sixties untilthe last meeting between them and the municipal authorities after theclosure of the waste dump, in August 8th, 2008. In relation to the

commitments established with the waste pickers in that meeting, we havegrouped them in three categories: (1) temporary work solutions to assurethe livelihood, (2) businesses solutions to assure the livelihood and (3)solutions other than to livelihood.

We wish to highlight the exclusion of responsibility before the matterclaimed by the intervenient authorities. Concerning the intervention from

Valle del Cauca Regional Autonomous Corporation, we have transcribedsome parts of its intervention and highlighted:

Contrarily to the indicated by CVC in the proceeding, the corporation wasobliged to participate in the prevention of the social crisis, both for itsfunction of preserving the harmony between men and nature and due to article3 of the Resolution 336 SGA from 1999. In such article CVC, in 1999,

imposed the obligation upon the municipality of implementation of a social plan. And as all policies, once formulated it is not only expected that it isimplemented by the entity responsible for it, but also that the entity that hasimposed it carries out its evaluation, in other words, verifies if the objectivehas been fulfilled. Therefore, CIVISOL does not understand why CVC has notmonitored the implementation and impact of the obligation imposed by the

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Colombian residents concerning their lives, assets and other rights, as well as facilitating the participation of all in the Nations economic life and thedecisions that affect them. The previously mentioned is particularly correct for EMSIRVA regarding to the elaboration of the reference terms of Calis public domiciliary cleanliness services, an activity intrinsically connected tothe citys waste pickers population. In other words, EMSIRVA is theauthority that determines the development of the waste collection, transportand final disposal, via transference station, at the Yocot Landfill, as well asthe regulation contracts. And, obviously, the entity that formulates the

development of the use or recycling of solid waste in the city.

It is also surprising that it was the Superintendences Special Agent Mrs.Susana Correa Borrero the one who, with absolute knowledge, control andcapacity of decision concerning EMSIRVA, had signed in August 8th the Minute in which it is promised to the waste pickers the delivery of therecycling transport conveyors by means of a ten-year commodatum, dulyinstalled and technically appropriate for the operation of a volume of

waste. We also do not understand how such entity could reply the Courtsrequirement concerning the compliance of the commitments expressing thatthe conveyors have not been delivered, that it cannot be complied because() such conveyors are part of an asset inventory delivered byServiambientales [former operator of Navarro waste dump] to EMSIRVA forits operation and custody, usable as long as Serviambientales SA ESP was theone developing the operation of Calis final disposal, which is not carried outnowadays because it is being developed by a third party [the third party is

Interaseo, the company who has adjudicated the concession of Yocot-Contract 010 from 2008]

From the above mentioned it can be concluded that, both the inspection agentand EMSIRVAs responsible Mrs. Susana Correa Borrero (a) forgot that ithad signed a contract with Interaseo two months before and therefore couldnot make the conveyors available, or (b) Mrs. Correa Borrero has committedan abuse of the waste pickers good faith and with the objective of plotting the

situation made promises that she could not keep. CIVISOL discredits thehypothesis that the Special Agent did not know what she was doing, given thatshe is a high rank national official representing the Services Superintendenceand, consequently, the President of the Republic of Colombia.

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via the right to develop their own enterprise that all Colombians have.CIVISOL highlights that a census of the Navarro waste pickers has beenconducted and the population consists of 1247 people.

We proceed with the intervention reminding the obligations derivedfrom the design and implementation of policies in the Rule of Law,implicating the orientation towards the reduction of the existinginequalities, rather than aggravating them. In relation to the concretecase we indicate that the unfulfilled obligations and the environmentalpolicy have led to the closure of Navarro waste dump causing theworsening of the waste pickers poverty and marginality:

In that sense, it is clear that in this concrete case the public policies in terms of public services and the environment led to the closure of Navarro waste dump as anenvironmental sanitation policy- and the authorities involved were obliged to act orientedby the Rule of Law. The whole set of decisions and public acts the State in action were

supposed to improve the material conditions of the Navarro waste pickers instead ofworsening them, making them legally weaker as in fact happened and was evidenced.

Considering the marginality and the vulnerability of the waste pickers from Navarro, facts of public knowledge, the State in local level, predicting theclosure of Navarro due to reasons of general interest, fact that would cut thewaste pickers access to their livelihood, should have created and offeredalternative measures to preserve their minimum vital. In other words,extending a hand when letting go of the other; offering measures that wouldallow the waste pickers to maintain their legitimate trust on the authoritieswhich had always known their way of life and with which they had interactedthrough their work and efforts of participation.

In fact, in the case studied we can observe how, for the petitioners as forseveral other people, the form through which the administration has

formulated the public policies of development of Navarro waste dump hasultimately violated the trust such people had on the administration. Althoughthe recycling work developed by the petitioner and the former Navarro wastedump inhabitants is qualified as irregular by the defendants in the presentproceeding, it is in fact an informal activity that was carried out for more thanforty years in Navarro and that was tacitly allowed or at least tolerated by the

Proceedings T 2043683 and accumulated 28


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the horizon of inclusion and articulation of their informal economy with the public services was close; (iii) that the Minutes from June 13th are not onlyhypothesis as qualified by EMSIRVA nor charity acts of personal generosity,but they constitute public commitments by the State in local level whichconsequently generate real expectations on the citizens. Besides having tobase its action on a principle of legality, which seemed to be wronglyinterpreted by the administration as martial, rigid and empty, the authoritiesin the Rule of Law must also act in good faith. Therefore, we wish to remindthat their power is only justifiable if oriented towards a general interest and

addressed to a social objective, in other words, a State in which and abovethe juridical form of the texts predominates the material justice of those itof.

Contrarily to the above mentioned arguments, the Navarro waste pickersbelieved in good faith that the tolerance and multiple solution proposalsparallel to the development of Navarro would lead to a life solution. Promiseswhich, until the present date, either have not been kept by the ones who made

them, are insufficient, have been kept for a short period of time or for thebenefit of only a share of the population.

The facts previously exposed indicate that the administration has abused thetrust deposited by the poorest and mostly in need of protection part of thesociety upon CVC, EMSIRVA and Calis Mayors Office.

We conclude that: () an alternative measure that represents anaffirmative action for the waste pickers should not be a difficult andcomplex matter, considering that (a) the waste recycling market so wellknown by the waste pickers can nowadays be formally economicallyexplored and is a profitable and growing one and (b) it is not a privatemarket. On the contrary, the extension, dynamism and profitability of thecleanliness market and all its components (transport, collection, final

disposal, treatment, and use) depend entirely on the regulations made bythe State through its domiciliary public services policy, in other words,on the game rules set by the State and the actors invited by the same toplay the game developed with the spaces, conditions and fees designed,imposed and offered by the State, or which the same leaves abandoned



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Proceedings T 2043683 and accumulated 29

a multimillionaire market that could be shared by the State and the societywith those who, before any other actors, have worked and taken advantageof such market since last century. For decades now, the waste pickers havecontributed with the prevention of a greater environmental deterioration ofthe country, in silence and facing serious privations.

Therefore, we request the Court to consider the reiteration of a prohibitionof the legal impoverishment of the poor and to give an order that providesthe juridical empowerment of the poor sectors which, as the waste pickers,

try to survive with honesty among a big mess of norms, policies and Stateindolence. A decision that also reiterates that the public policies are not thematerialization of all the ideas of the official on duty, but the chain ofactions and decisions that, as articulated links, connects the State to itsconstitutors including, and above all, the ones in marginality, vulnerabilityand defenselessness. Therefore, we also request to be reiterated that it is astructural duty in the Rule of Law to consult its constitutors before makingits decisions and formulating its solutions, particularly if they are trapped in

poverty so that the State decisions that affect them do not end upasphyxiating them even more and, on the contrary, create for them windowsof opportunities which gradually allow them to escape poverty.

It would be contrary to the sources of law in Colombia, considering thework and social identity forged by the waste pickers over the decades bymeans of an honest and legitimate work developed with the acquiescence ofthe State and the society, contrary to their effective participation and the

foment of the Solidary Economy, that the administration did not consider theeffective inclusion of the waste pickers in Calis cleanliness economy andthe Court did not uphold it through a court order.

In that point, CIVISOL insists that if a firm decision is not made by theCourt, with clear and precise orders, the power of the profit, the inversionand the greed will ultimately exclude from the recycling market honestColombian workers who, although in poverty and marginalization, have

been in the waste market for almost one century, obtaining their livelihoodand forging an identity.

If in the moment the waste is finally valued in Colombia the nation cannotshare it with its compatriots who mostly need opportunities and protection,h f h b l l b h ll b



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g 30

Finally, we request the Constitutional Court to give the following orders

in the present action:1. Ordering, as a precautionary measure, the non implementation, executionand start of the selective route adjudicated by EMSIRVA-intervened orliquidated, as the adjudication of the public cleanliness service in its specialmodality was carried out in opposition to the Constitution, with no legalgrounds and against the municipal will and a vulnerable population alreadyincluded. The concessionaries shall be prohibited to start operating. In the

events of conflict, the waste pickers rights to be included in the selectiveroute are of higher rank, of legal nature and predominate over the rights ofthe concessionaries as the adjudication of the selective route lacks legalfundaments.

In case responsibility acts are suitable, the same shall be filed against thedecisions made by the official receiver and not against the intervened entitywhich has lost control of the situation.

2. Ordering that within two weeks a Municipal Committee is conformed in thecity of Cali for the inclusion of the waste pickers in the formal cleanlinesseconomy. Such Committee shall be co-presided by the Mayor, the Regional Human Rights Defender, the Director of DANSOCIAL or its delegate withvoice and vote, as well as by a DAGMA representative, a representative fromthe entity that coordinates PGIRS, the FERESURCOs legal representative,the UFPRAMEs legal representative, the Navarro Waste PickersAssociations legal representative, the National Waste Pickers Associationslegal representative, the Bogot Waste Pickers Associations legalrepresentative (organization invited to the Committee with voice and votedueto its experience in Bogots similar situation and for its recognizedinternational leadership (UNHABITAT Award)). In all cases, the wastepickers may attend accompanied by their advisors.

The following shall also be able to attend the meetings with voice but with novote and to appear as accompaniers in the proceeding and the investigation:one delegate from Calis Archdiocese, one from the University del Valle andone from Carvajal Foundation representing Calis organized civil society. Ifat the moment of such decision EMSIRVA has been liquidated, its liquidator,lacking further competences than the function of liquidating may participate



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31

cooperatives, EATs and other organizations that functioned in Navarro andwho were registered before March 1st, 2009. The above mentioned procedure

shall also be used in the process of identification of the street waste pickers inthe city of Cali.

Once Law 1259/08 has been declared unachievable, the former Navarrowaste pickers shall have priority in the inclusion.

Among several other alternatives the Committee shall evaluate and makedecisions concerning the feasibility of transferring the totality of the selectiveroute to the organized waste pickers form the city of Cali, or if such transfershall be done partially or if both ways shall be done in a staggered manner. Itshall also make decisions concerning the necessity and admissibility of abusiness scheme that attracts investments from the private sector into thewaste pickers solidary economy.

The Committee shall also make decisions about the stocking centers or Plants

of Separation of materials functioning in Cali.

As indicated by the State Council, the waste is property of the State and maybe handed over to whom, representing the same, collects it on the streets.Therefore the municipality shall hand over the waste to the organized wastepickers operating the selective routes and/or stocking centers according to theCommittees decision.

SENA, in the appropriate time, shall set in motion the capacity building andthe technical decisions.

4. Urging the Environment, Housing and Development Department, thePotable Water and Basic Sanitation Regulation Commission, the DomiciliaryPublic Services Superintendence and DANSOCIAL to call a national forum inwhich the civil society and the academics are invited to discuss the best way touse the solid waste. The waste pickers shall have a space to explain their

vision of the business as a strategy to reduce poverty. The entrepreneurs andinvestors in the cleanliness sector shall expose the business projection and theopportunity niches. As a result from such forum, the convener entities shallelaborate a plan for the use of solid waste with social inclusion which in anunequivocal way serves to guide the territorial entities in the development ofh f f h b f h l h ll b d b f h d h



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6. Ordering CVC to modify the entry that remained recorded in the Minute from August 8th for entrepreneurial projects of the Navarro former waste

pickers within the deadline of one month.

7. Urging the concessionaries, in the light of the constitutional duty ofsolidarity of the Colombians and the Entrepreneurial Social Responsibility, asthe current entrepreneurial management practice, to link the Navarro formerwaste pickers in their operation concessioned by the municipality.

8. Urging the Autonomous Corporations and other environmental authoritiesto execute their mandate to watch over the harmony in the relation betweenmen and nature, regarding to the Rule of Law. In other words, to ensure thattheir measures, programs and policies, both general or technical, do notresult as socially regressive for the society and are oriented, whenever possible, towards the reduction of poverty and the accomplishment of socialjustice in the country.

9. Ordering Calis Administration to suspend new evictions in the Navarroarea, as requested by the regional Defender, until the social crisis caused bythe indolence of the defendant authorities has been compensated

10. Ordering DAGMA to create and promote with the participation of theCivil Society Organizations interested in joining the effort civism andsolidarity campaigns oriented towards Calis citizens, with the objectives ofencouraging the users of the citys cleanliness service to (a) start separating

at the source and (b) to hand over to the organized waste pickers the propertyof their recyclable waste once initiated the operation of the selective routes inthe city. In order to accomplish so, the municipality shall facilitate automotivetransport and space for the task of separation, as well as the card issue of thewaste pickers associations in the city.

11. Ordering the defendant authorities to extend and/or renew their contractswith the petitioners until the Cali waste pickers business which shall give the

petitioners priority integration have started operating.

12.Ordering ICBF to articulate a campaign, in coordination with the Regional Defender, that will uphold, without the need to separate theunderage from their families, the minimum vital of all underage children ofh f k d h b f h d d h



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In the present case, a group of waste pickers from the city of Cali filed a

appeal of legal protection against several municipal entities considering thatthe same have violated their rights to work and a decent life through theclosure of Navarro waste dump, where they developed for 30 years theeconomic activity of recycling in order to provide a livelihood for themselvesand their families. They affirm that only two weeks before closing the wastedump the authorities agreed to talk to them and signed a minute through whichseveral commitments were established, among which opportunities of

employment, capacity building programs, health and education. Suchcommitments have not been honored. They insist that until the present daythey do not have employment opportunities or means of livelihood.

The CIVISOL Foundation, intervenient in this action, supports the demandsand aggregates that the violation of the fundamental rights of the petitioners isnot generated exclusively by the omission of the defendant authorities in terms

of adopting measures that could benefit the waste pickers after the closure ofthe waste dump, but also due to several actions oriented towards the exclusionof the waste pickers participation in a profitable economic activity such as thesolid waste recycling.

Regarding to such charges, the defendant entities express that they have not

violated the fundamental rights of the petitioners because, firstly, their acts arebased on general and abstract norms created with the objective of protectingthe environment and assuring the efficiency in the collection, treatment anduse of solid waste. Secondly, because they did not shut doors for thepetitioners participation in the recycling economic activity. Simply, generaland abstract rules have been determined and they must be followed by thosewishing to participate in the free market of collection and use of solid waste.

Thirdly, because in the understanding of the defendant entities they do nothave any obligation regarding to the development of positive actions in favorof the Navarro waste pickers, due to the fact that there are no contractualrelations between them and, considering their environmental competences,they are not obliged to solve the social problems generated by the closure of



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Additionally, given the incompliance with the established commitments by thedefendant entities, the present case brings a problem of legitimate trustregarding to the acts carried out by the administration, which shall be analyzedby the Court.

In that context, the juridical problems relevant in the present case are thefollowing:

Is the right to equality violated when a measure, program, or policyadopted by the administration causes severe impact on a marginalizedgroup and no mechanisms are adopted in order to mitigate such impact?

Is the right to equality violated i) when measures, at first impersonal,general and abstract, are adopted generating the exclusion from thedevelopment of a productive activity of a group which historically hadbeen developing such activity and ii) when such group is in specialconditions of vulnerability?

Is the waste pickers legitimate trust violated when, before the closureof the waste dump where they used to obtain their livelihood, the

authorities had established with them commitments regarding to thegeneration of new employment, capacity building programs, educationand health access, among others, and the same authorities do notcomply with those commitments using the argument that they are notformal contractors and that given their environmental competences theydo not have social obligations towards the waste pickers?

In order to find the answers to those questions, the Court shall reiterate its jurisprudence regarding to marginalized and discriminated groups beforeanalyzing the concrete case.

3 The authorities duties regarding to the marginalized groups right to



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In relation to the first one, the administration has the duty of abstaining from

establishing, promoting or executing policies, programs or measures that leadto the worsening or the perpetuation of the situation of exclusion, marginalityor discrimination of groups traditionally situated in a position of disadvantagein relation to the society. The above mentioned argument derives mainly fromthe formal equality clause and from the principle of non-discriminationestablished in section1 of article 13.

A point that must be highlighted, for being object of controversy in the presentcase, is that the abstention mandatederived from section 1 of constitutionalarticle 13 is not oriented exclusively towards avoiding that the administrationopenly adopts discriminatory measures, programs or policies. It also has theobjective of avoiding that measures, programs or policies, adopted in theframework of general and abstract assumptions, cause severe impact onmarginalized or discriminated groups or, in other words, put them in a

situation of greater adversity. The Constitution prohibits the so called directdiscrimination acts that use suspect or potentially prohibited criteria in orderto inhibit or exclude a person or group of people from the exercise of a right orthe access to a certain benefit, as well as the indirect discrimination the useof apparently neutral norms, but which in fact cause and adverse and severeimpact on a group traditionally marginalized or discriminated.

The above mentioned concepts do not mean that all measures that cause anadverse impact on a marginalized or discriminated group shall be banned bythe Constitution. However, it means that considering such impact, it is of theadministrations competence to show that despite the disproportional effect ona marginalized group, the measure, program or policy suits conditions ofreasonability and proportionality, and that the same was implemented

accompanied by other acts oriented towards the compensation of the adverseeffect that could be generated on a marginalized or discriminated group.Considering that the rights of specially protected groups are at risk, in casessuch as the present one a presumption of discrimination is qualified, theadministration is the one responsible for distorting such presumption5,



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Additionally, due to the intervention mandate, the administration shall

demonstrate to have adopted appropriate measures to mitigate the impact andpromote the conditions faced by the group affected by its determination.

In fact, the equality clause also imposes an intervention mandate consideringthat, as recognized by the constituent, it is not enough to demand negativeconducts in order to correct the enormous inequalities existing in our society.It is imperative that the State intervenes and use positive acts in order to assure

real and effective equality conditions. In that sense, the second and thirdsections of article 13 highlight:

The State shall promote the conditions for the equality to be real andeffective and shall adopt measures in favor of discriminated or marginalizedgroups, The State shall protect especially the people who, due to theireconomic, physical or mental condition, are in circumstances of debility and

shall manifest and sanction the abuse carried out against them. The abovementioned concept was expressed by the Court in Sentence C-952 from 20008:

The substantial equality includes, therefore, not only the States commitment9, butalso the commitment of individuals to remove the obstacles that, in the social andeconomic human spheres, configure effective inequalities which oppose to theeffective enjoyment of rights. The causes for situations of such nature are related,

among others, to the shortage10

, to the human beings unfulfilled needs11

,

tohistorical phenomena of segregation and marginalization or to injusticesfrom the past which one intends to rectify12. The substantial equality reveals a remedial,compensator, emancipator, corrector and defensive character for people and groupsplaced in conditions of inferiority through the impulse of positive acts from thepublic authorities and the community in general ()

The comprehension that certain individuals and groups are not equal in the reality,

although equal before the law, exerts notable influence on the same norm that, attimes, abandons the traditional characteristics of generality, abstraction,universality and permanence, becoming specific, in other words, oriented towardsconcrete sectors of the population, or temporal, as it exhausts its effects within acertain period of time; all with the objective of elevating the social or economic

di i f h l d h h i l l i d



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Therefore, the different authorities of the State are obliged, when in the presence ofgroups in conditions of marginality and discrimination, to adopt all necessarymeasures to achieve greater substantial equality, including in its decisionstreatments in accordance with such situations. Ignoring such mandate, notcontemplating affirmative measures in favor of groups that may be affected by themeasures adopted, is the same as violating the right to equality, which imposes,precisely, its adoption.

4. The public policies as an expression of the Rule of Law:4.1.The Constitutional Court, in sentence T-722 from 2003 made importantremarks concerning the achievement of the Rule of Law and the twodimensions of equality described, in a case that has similar constitutional

conflicts to the ones presented in this case; in other words, it analyzed thematter of the negative consequences for marginalized or discriminated groupsof the execution of public programs, measures or policies.16 Particularly insuch sentence, the Court studied the case of Bogots street vendors, who inthe framework of the policy of recovery of the public space were evicted from

8 FJ. Carlos Gaviria Daz.9Cfr. Sentence C-021 from 1993. FJ. Ciro Angarita Barn. This sentence highlights the activerole of the State of upholding the right to equality in the following terms: The philosophy of theRule of Law shall be applied in its entire splendor, referring to the measures that must be takenby the State in favor of the weak and needy in order to make equality real and effective.10 Cfr. Sentence SU-995 from1999. FJ. Carlos Gaviria Daz. In such event, when unifying theConstitutional Courts jurisprudence in terms of salaries, the Court highlighted that the shortage of resources in that case was not reason enough for the authorities not to comply with thecommitments established, as such argument violated only a group of workers right to salary,curiously the ones who received the lower income. In the Courts words: [L] the allegedinsolvency or economic crisis of the State is not a justification for not paying or delaying thepayment of its obligations, in the exact same way as it is unacceptable the attempt of any debtorto justify his incompliance with such arguments.

11 Ibdem.12Cfr. Sentence C-371 from 2000. FJ. Carlos Gaviria Daz. This sentence deals with great part ofthe jurisprudential line adopted by the Constitutional Court regarding the right to equality;although the analysis is centered in the study of the positive acts as constitutional mechanismsfor the protection of traditionally discriminated groups women - , it makes a clear reference tothe necessity of creating ways to achieve substantial equality among different social groups.13 Cfr. Sentence C-410 de 1994. FJ. Carlos Gaviria Daz.



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In fact, in the referred sentence the Court used the characterization of the Ruleof Law from the 1991Constitution and its substantial implications regarding tothe relation between citizens and State. Among its conclusions, it reiteratedthe Courts jurisprudence, in the sense that there are two differentiated dutiesfor the state, the first one comprising the adoption of measures in order toachieve real equality between the citizens, and the second consisting ofprohibiting the adoption of measures that represent backward steps for thesame groups:

From the above mentioned derive two classes of differentiable duties for theState: (i) firstly, it shall adopt and implement positive policies, programs ormeasures oriented towards achieving real equality of conditions andopportunities between the citizens, complying with its international andconstitutional obligations of struggling against poverty and in favor of theprogressive fulfillment of basic economic, social and cultural rights of thepopulation applying what the constitutional jurisprudence has called clause

of eradication of the present injustices and (ii) secondly, it shall abstain fromestablishing, promoting or executing policies, programs or measures that areostensibly regressive in terms of economic rights and which aggravate thesituation of exclusion or marginalization of certain sectors of the society,especially those in precarious economic conditions; and even more if, asconsequence of such policies, programs or measures, the material situation ofthose living in extreme circumstances of livelihood is made even worse.()

In case there are imperative constitutional objectives that force the adoption ofpolicies that may cause backward steps in the welfare of certain vulnerablegroups due to their poverty condition, it is expressly necessary to adoptcomplementary mechanisms in order to mitigate such negative effects:

In that context the Court highlights that the state policies, programs ormeasures whose execution is converted in a source of poverty for the mostaffected ones, and that do not predict complementary mechanisms toproportionally and effectively compensate such negative effects, resultunjustifiable regarding to the international obligations of the country in terms ofpromotion of economic, social and cultural rights, as well as in relation to theconstitutional principle of the Rule of Law and its several manifestations



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results related to such evaluation, not an ideal and outdated status quo, in orderto assure that the effective enjoyment of peoples fundamental rights shall not

be inappropriately affected. In other words, in the moment of their formulationor execution, if technically possible, all dimensions of the reality that shall beaffected by such policy, program or measure should have been studied,including the situation of the people who will have their rights severely limited,who shall be consequently placed in a position that will not force

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04.4 (English) Judgement T-291-09 of the Constitutional Court of Colombia