Originally published in Confidencial Colombia.
Today marks the 36th anniversary of the Palace of Justice Holocaust, which shook Colombia and the world. We all saw the images of the people who left the building alive, guarded by the military, bound for the Casa del Florero, of which more than a dozen disappeared.
On October 13, 2021, the Criminal Chamber of the Superior Court of Bogotá convicted five members of the B-2 of Brigade XIII – Colonel Edilberto Sánchez Rubiano, Major Oscar William Vásquez Rodríguez, and Sergeants Antonio Rubay Jiménez Gómez, Luis Fernando Nieto Velandia and Ferney Ulmardín Causayá Peña – for the crime of forced disappearance in homogeneous concurrence (when a single conduct constitutes several equal crimes, that is, when several criminal offenses are applicable to a single act).
The decision exemplifies the concept of the logic of complementarity that today guides the relationship between national and international systems, including the Inter-American Human Rights System. It is no longer only a matter of subsidiarity of the national procedural level to access the jurisdiction of international courts, but at the substantive or material level both systems coexist in harmony.
The Criminal Chamber said, as other national and international justice bodies have held, that enforced disappearance is a crime of permanent execution, since the criminal intent and the affectation of the legally protected assets endure over time as long as the concealment of the disappeared person is maintained. Consequently, its legal consequences are adapted to the variations in legislation. In arguing his decision, he relied on pronouncements and jurisprudence of the Inter-American Court of Human Rights, and some high Latin American courts, including the Colombian Constitutional Court.
The collegiate judges left the parties free to pursue the actions they deem appropriate to annul the decision of the military criminal jurisdiction that exonerated Colonel Edilberto Sánchez Rubiano of responsibility for the forced disappearance of Irma Franco Pineda. The Prosecutor’s Office should consider the possibility of reinitiating the investigation against Sanchez for that particular act, in order to guarantee the rights of the victims in the face of the serious human rights violation that this entails. In this regard, it took into account the key judgment of November 14, 2014 of the Inter-American Court, Rodriguez Vera and others (Disappeared from the Palace of Justice) v. Colombia case.
Regarding the versions of the persons who were transferred to military, police or other detachments, which are not entirely accurate or coincide with each other as to the temporal and spatial references surrounding the displacements and stay in those places, the Chamber concluded that it does not affect the core of their statements. It relied on the Inter-American Court which, when examining the testimonies of persons who have suffered this type of conduct, stated that “it is necessary to take into account the special situation of tension, stress or other particular circumstances that could affect the declarant”, since, following the Istanbul Protocol, “it has been observed that during torture the subject usually suffers a temporal and spatial disorientation”. For the Court, it is inadmissible to demand high levels of precision or coincidence in these versions, in order to corroborate the facts mentioned therein, since it is understood that they account for the events that their capacity of momentary appreciation allows, which gives them a load of spontaneity and naturalness that must be valued in order to strengthen their account.
The Chamber also gave validity to the assessments and conclusions of the 2010 Final Report of the Truth Commission on the Events at the Palace of Justice, by giving it the value of indirect evidence, based essentially on circumstantial evidence. The Commission was created on August 18, 2005 by the Supreme Court of Justice and did not have jurisdictional attributions or powers to derive individual responsibilities of any kind.
The body said that historical truths should not be understood as a substitute for the State’s duty to ensure the judicial determination of individual or State responsibilities through the corresponding jurisdictional means, nor with the determination of international responsibility that corresponds to the Inter-American Court. They are determinations of the truth that are complementary to each other, as they all have their own meaning and scope, as well as particular potentialities and limits, which depend on the context in which they arise and the specific cases and circumstances they analyze, according to the judgment Disappeared from the Palace of Justice v. Colombia.
The defense attorneys of Major Oscar William Vásquez Rodríguez and Colonel Edilberto Sánchez Rubiano filed for the total nullity of the proceedings since the closing of the investigation. They argued that due process was violated, since according to them the judge of first instance did not have the necessary knowledge to prove that eight people left the building alive. Therefore, there was no merit to convict, and the doubt should have been resolved in favor of the defendants with a judgment of acquittal, or annul all the proceedings since the closing of the investigation.
The representatives of the civil party considered that the partial nullity decreed did not affect the right of defense. They based their argument on the evidence that assures the intervention of Sánchez Rubiano and Vásquez Rodríguez in the disappearance of several of the persons reported missing, and that the international standards established by the Inter-American Court were complied with, regarding the protection of the rights of the victims. The aforementioned is specified in the retrospective action until the closing of the investigation, to gather the available evidence from the technological and investigative advances implemented after the commission of the facts, and thus, clarify what happened to the persons related as rescued.
The Superior Court of Bogota admitted that the representatives of the victims were right, by resolving the nullity in favor of them, recognizing that the judgment of November 14, 2014, Disappeared from the Palace of Justice determined the duty of the Colombian State to establish truth and justice regarding the facts indicating the disappearance of persons in the Palace of Justice as of November 6 and 7, 1985.
The Chamber was served by the principle of complementarity and harmonious coexistence between the national and regional legal systems, both substantively and materially, by relying on the findings and conclusions of the 2014 judgment of the Inter-American Court and other sources to resolve substantive issues in dispute. Now that the issue of complementarity is in the media, due to ICC Prosecutor Khan’s decision to conditionally close the preliminary investigation on Colombia, it is important to understand that this concept already operates, and has worked in favor of victims.
