The José Alvear Restrepo Lawyer’s Collective (Corporación Colectivo de Abogados José Alvear Restrepo – CCAJAR) considers that several provisions contained in Decrees 4760 of 2005 and 3391 of 2006, which regulate Law 975 of 2005 (also known as the Justice and Peace Law), contravene the Colombian constitution and international law as regards the rights of victims, as well as ignore the Constitutional Court’s order with respect to the application of Law 975 of 2005.

 

 

The José Alvear Restrepo Lawyer’s Collective (Corporación Colectivo de Abogados José Alvear Restrepo – CCAJAR) considers that several provisions contained in Decrees 4760 of 2005 and 3391 of 2006, which regulate Law 975 of 2005 (also known as the Justice and Peace Law), contravene the Colombian constitution and international law as regards the rights of victims, as well as ignore the Constitutional Court’s order with respect to the application of Law 975 of 2005.

Right to the Truth

Decree 3391 of 2005 ignores the Constitutional Court’s order concerning the obligation of the demobilised person to completely and truthfully confess to all of the crimes he participated in or has knowledge thereof. Although Article 9 of this decree indicates this obligation, Article 12 determines that the loss of the legal benefits of Law 975 of 2005 may only occur if there is a judicial sentencing for new acts, or for others suppressed, before the end of the alternative sentencing (from five to eight years) and the evidentiary period (half of the imposed sentence).

Bearing in mind that ordinary investigations concerning violations to human rights and international humanitarian law have an extremely long duration in Colombia, a new conviction will surely come about after the alternative sentencing and evidentiary period have taken place, which in the practice means the demobilised person shall not lose any benefit.

Equally grave is the content of Article 5 from this decree that indicates that the new or suppressed crime, which is seen to involve the demobilised person, should have a direct relationship with the group this person belonged to. If the crime is presented as an isolated act, the commanders -or other members of this group- shall not lose the legal benefits granted by Law 975 of 2005.

Additionally, Decree 3391 determines that the crimes committed must have the condition of gravely affecting the peace process; if it is considered that the crimes are not of great importance within this process, they cannot be cause for the loss of the benefits of Law 975. The previously stated ignores that the Constitutional Court specifically stated that the commission of new crimes is direct cause for the loss of these privileges -without dwelling on a hierarchy of these crimes, and much less dividing them into relevant and irrelevant crimes.

Right to Justice

Article 1 from Decree 3391 of 2006 (paragraph 3) relativises the responsibility of the national commanders of the paramilitary groups, by saying that their blocs or fronts are an illegal armed group in and of themselves.

The previously stated means that paramilitaries claiming a national command, and not a command of a front or bloc, are not responsible for the atrocities committed by the group, since, by understanding each one of these fronts or blocs as autonomous, these persons distance themselves from what was perpetuated insofar as they may argue that these acts are outside of their command.

For its part, Article 2 of Decree 3391, also ignoring Law 975 of 2005, indicates that restorative justice is the guideline regulating the demobilisation process of paramilitary groups; as a result, the peace reached through this process should come about by virtue of the agreements between the victims and victimisers.

The previously stated ignores that Law 975 -which this decree aims to regulate- stipulates that its purpose, above all and even though this is only in theory, is to guarantee the rights of the victims to truth, justice and reparation. With the excuse of restoration, Decree 3391 forces victims and victimisers to reach agreements, even when the former have not seen their rights satisfied, which is an essential presupposition for any kind of reconciliation.

Article 5 of Decree 3391 relativises the obligation of the members of paramilitary groups to fulfil the eligibility requirements contained in Law 975 of 2005, since it deems that these persons have met the requirement with only the implicated person’s oath, ignoring that it is a duty of the judicial authorities themselves to prove this fulfilment and refuse any legal benefit if this is not taking place.

Article 6 of Decree 3391 allows members of paramilitary groups -deprived of their liberty due to the commission of crimes not constituting violations to human rights and international humanitarian law- to receive the judicial benefits of Law 782 of 2002 and Decree 128 of 2003, even when these norms were created to grant privileges to persons that demobilise voluntarily and not for those that have been captured.

As regards alternative sentencing, the Constitutional Court declared unconstitutional the legal provision that allows members of paramilitary groups tried under Law 975 to reduce the duration -no greater than 18 months- of their alternative sentencing with the time they spent in the “areas of location.” Nevertheless, Article 8 of Decree 4760 and Article 20 of 3391 continue to contemplate this benefit for demobilised persons.

The previously stated gravely violates the Social State under the rule of law in Colombia, by ignoring the Constitutional Court’s opinion, which stated that this benefit was incompatible with the national constitution because the possibility of serving a sentence in a place where the punitive power of the State is not being exercised is a violation of the victims’ right to justice.

However, Article 3 of this decree grants the national police the power to follow up on the fulfilment of the agreements between paramilitary groups and the national government. Likewise, Article 11 establishes that demobilised persons may be deprived of their liberty in military installations.

In that regard, bearing in mind that paramilitaries (the only group that Law 975 of 2005 has been applied to) have systematically acted in collusion with the public force, allowing the public force be who verifies the demobilization process, as well as establishing the possibility of imprisoning paramilitary members in these places, ignores the State’s duty to combat these groups, in addition to being a mockery of the national reality in which the State’s responsibility for the actions of these groups has been proven repeatedly.

Decree 3391 of 2006 also violates the right to justice by establishing in Article 14 that the Prosecutor General’s Office (Fiscalía General de la Nación) will not investigate the persons to whom the demobilised persons have fraudulently transferred the assets seized from their victims with the purpose of concealing these assets from the authorities. This means in the practice that the accomplices of crimes where assets were expropriated will not receive any type of criminal sanction.

For its part, in regards to such ongoing crimes as forced displacement or the forced disappearance of persons, Article 26 of Decree 4760 of 2005 indicated that these crimes will be taken in account as the crime is carried out in the first act. In this way, the responsible party may access the benefits of Law 975 of 2005.

The previously stated ignores that ongoing crimes are not legally understood as finished by the first act (for example, in the case of forced disappearance, the taking of the person), rather the act does not stop being executed until the crime ends.

If we bear in mind that Law 975 of 2005 expressly says that it will only be applied for crimes committed before this law enters into force on July 25, 2005, those responsible for forced disappearances or displacement that have not stopped may not be beneficiaries of this law; however, this article allows them to be beneficiaries.

Right to Reparation

In regards to reparation, Article 15 of Decree 4760, and Articles 9, 14 and 17 of Decree 3391, ignore the Constitutional Court’s opinion in relation to the beneficiaries’ obligation to Law 975 of 2005 of responding with the all of their capital for the damages suffered by their victims.

These provisions limit the assets that should be designated to reparation to those of illicit origin, when it is evident that these assets, independent of their designation, should be the object of forfeiture by the State -specifically given their illegal character. The regulatory decrees create a spinning tray where reparations are eventually made to the victims with the very assets that were seized from them, which lets the members of paramilitary groups keep having assets of licit origin as a part of their capital.

Additionally, Article 14 continues to ignore the Constitutional Court’s opinion, by indicating that if judicial authorities learn of assets not surrendered by demobilized persons, processes for the forfeiture of properties should be initiated as regards these assets, but the legal benefits granted to the paramilitaries should not be revoked -even when it is obvious that this suppression violated the eligibility requirements.

The previously stated should be understood in accordance with another part of Article 17 of Decree 3391, which indicates that the assets surrendered by demobilised persons will be taken into account as measures of reparation when these assets are designated to productive projects for reinserted persons. Basically, this means that members of paramilitary groups shall fulfil their duty of making reparations by surrendering their assets to their own members that have been reinserted.

Article 19 determines that the programs concerning national reconciliation should not only be directed to the victims, but also to the victimisers, which ignores the State’s duty to preferentially and differentially assist the victims. Likewise, this article refers to members of paramilitary groups as offenders, a term that is too limited for persons that have committed the most grave crimes occurring in Colombia.

Although CCAJAR, in accordance with the dissenting opinions by Constitutional Court Magistrates Jaime Araujo and Humberto Sierra, insists that Law 975 of 2005 was unduly processed, and therefore should not have been passed as ordinary law, rather as statutory law -since it reforms essential content to the fundamental rights of the victims-, CCAJAR also considers that Decree 3391 of 2006 gravely breaks the rule of law established in the Colombian constitution, insofar as that it ignores the orders by the highest body of constitutional jurisdiction.

With the issuing of Decrees 4760 of 2005 and 3391 of 2006, the national government furthers the chance that such international bodies of justice as the Inter-American Court of Human Rights, the International Criminal Court, and universal jurisdiction in general, assume the jurisdiction of cases concerning human rights violations committed by paramilitary groups, since the application of the decrees will consolidate an impunity process resulting from the lack of real access and participation of the victims, the impossibility that these persons’ rights are satisfied, and the legalization of the criminal action of these groups through carrying out apparent trials and imposing sentences that keep no proportion to the gravity of the perpetrated acts.

CCAJAR urges the victims and their organizations to carry out strategies and activities to guarantee their rights to truth, justice and comprehensive reparation in the different spaces concerning political, legal and social justiciability.