I am writing to express Human Rights Watch’s concern over several aspects of the decree that your government has drafted in connection with the ruling of the Constitutional Court of Colombia on Law 975 of 2005 (the “Justice and Peace Law”), and to make some constructive recommendations for ways in which the decree can be corrected and improved.
A number of aspects of the draft decree would undermine the rule of law by directly contradicting key rulings of the Constitutional Court. Others would create new problems in the implementation of the demobilization process, affecting victims’ rights and placing judges in difficult and potentially dangerous situations.
In particular, we urge you to address the following serious problems in the decree:
- 1. The decree could allow paramilitary commanders to avoid spending any time in prison
While it upheld the benefits of reduced sentences offered by Law 975, the Constitutional Court held that those reduced sentences must be “effective sanctions… that do not cover up phenomena of impunity, in the sense that they constitute just and adequate state reactions to the crimes perpetrated.” See Court Decision No. C-370/2006, section 6.2.3.3.4.3.
Accordingly, the Court found that Article 31 of Law 975 was unconstitutional, as it allowed individuals to count time that they voluntarily spent in concentration zones as time served on their reduced sentences. In particular, the Court noted that time spent voluntarily in such a zone could not be considered an “effective sanction” by the state.
The Court also found that Article 30 of Law 975, which allowed the government to determine the establishments where these individuals would serve their sentences, was constitutional only if such establishments were fully subjected to existing legal norms about “control of penitentiary institutions.”
The draft decree, however, unconstitutionally revives Article 31 of Law 975, providing that it may still be applied with respect to time that paramilitaries spent in concentration zones before the Court decision. See Draft Decree, Article 17, special paragraph 2.
Moreover, the draft decree goes even further in softening the sanctions against paramilitaries, by providing that after serving half of their reduced sentences, they can move to agricultural colonies. See Draft Decree, Article 18.
And worse yet, the decree states that paramilitaries may voluntarily go to agricultural colonies or similar establishments designated by the government even before they are sentenced. The decree provides that these individuals would then be allowed to count all the time they spent in such establishments as time served on their sentences. See Draft Decree, Article 15. This means that, depending on how much time the paramilitaries spend in these establishments, they could avoid ever spending any time in prison.
Indeed, much of the paramilitary leadership is already voluntarily “confined” in such an establishment in La Ceja. Even though they have not confessed, turned over their illegal assets, provided information to prosecutors, or been interrogated, they are apparently already fulfilling their yet to be granted reduced sentences. If their legal proceedings are delayed for a few years (which would not be unusual in Colombia), they could easily avoid ever serving time in prison.
We strongly urge you to remove these unconstitutional provisions from the draft decree.
- 2. Restrictions on prosecutors’ ability and time to investigate many of the worst abuses and crimes
The Constitutional Court held that for Colombia to fulfill its constitutional and international obligation to investigate serious crimes, it was essential that before filing charges under the Justice and Peace Law, prosecutors carry out and complete the “methodological program of investigation” (a thorough and detailed investigation process described in Article 207 of the Code of Criminal Procedure) for each crime.
However, the decree eliminates this investigative requirement for a large category of crimes and human rights abuses, including aggravated homicide, forced disappearance, aggravated kidnapping, torture, forced displacement, extortion, money laundering, terrorism, and use of landmines.
The draft decree states that “when a demobilized individual who does not have an arrest warrant confesses [one of these crimes]” he will immediately be detained and his interrogation will be suspended. See Draft Decree, Article 12, special paragraph. Within the next 36 hours, the prosecutor must file charges against him. By giving prosecutors only 36 hours to file charges after the defendant confesses a crime, the decree makes it impossible for prosecutors to carry out the “methodological program of investigation” required by the Constitutional Court.
We understand that you may want to put individuals who confess to these horrific crimes in detention, and that once they are in detention, Colombian law may require that you set a limit on how much time prosecutors have to file charges. However, this does not justify Colombia’s abdicating its international and constitutional responsibility to fully investigate the facts of these crimes.
- 3. The decree increases judges’ vulnerability to threats and corruption
Corruption and intimidation by armed groups are constant threats to democratic institutions, and particularly the institutions of justice, in Colombia. Colombia has a long and tragic history of threats and attacks on judges, prosecutors and investigators. Therefore, in drafting legislation and decrees, the government has a responsibility to shield judges, prosecutors, and investigators from unnecessary risks.
The draft decree puts judges in an extremely vulnerable situation, by requiring them to make determinations about two very delicate issues, without giving them meaningful guidelines by which to make those decisions. Such broad discretion could expose judges to extreme pressures, including threats and intimidation, from the armed groups in the demobilization process, to make sure that the judges rule in a manner that favors their interests.
- a. Judges are required to determine what assets paramilitaries need to “live adequately”
The decree limits the extent to which paramilitaries’ supposedly “legal” assets can be touched for payment of reparations, by providing that each paramilitary should be allowed to “keep a part of his assets such that he can live adequately and fully reinsert himself into civilian society, a situation that must be evaluated and determined taking into account the particular circumstances of each individual case.” See Draft Decree, Article 29.
This broad provision gives judges virtually no guidance in making the determination of how much each paramilitary commander will need to “live adequately.” As a result, judges could face pressure to render decisions that not only undermine victims’ rights to reparation, but also leave paramilitaries’ economic power intact.
We recommend that you remove this provision from the decree. If the government wishes to ensure that these individuals can “live adequately and fully reinsert” themselves into society, it could simply provide that these paramilitaries will be eligible for the same economic and educational benefits that are provided to individuals demobilized under Law 782, which are supposed to be adequate for their reinsertion.
- b. Judges are required to determine whether a failure to fulfill demobilization conditions warrants revocation of reduced sentences
The decree provides that judges must determine whether, during the period in which he is fulfilling his reduced sentence or is on probation, a paramilitary’s reduced sentence should be revoked for his failure to confess a crime for which he was later convicted, for committing new crimes, or for failing to fulfill other requirements of the law.
However, the decree gives the judges virtually no guidelines or criteria by which they should make these determinations. The decree simply states that judges must determine: (1) whether the new crime committed by the paramilitary, or his failure to fulfill a requirement, “lacks justification and is of such a nature that it substantively compromises the realization of the goals of Law 975 of 2005;” or (2) whether the crime that he failed to confess and for which he was later convicted is so serious that “it has relevance within the peace process because of its nature and transcendence for the clarification of the truth about the activities of the respective block or front.” Draft Decree, Article 17.
We recommend that you establish clearly in the decree that paramilitaries’ reduced sentences must be revoked in at least the following two situations, which clearly impinge on victims’ rights to non-repetition and to truth:
- If a demobilized paramilitary commits a new crime that constitutes a violation of international humanitarian or human rights law;
- If a demobilized paramilitary fails to confess his participation in a past crime that constitutes a violation of international humanitarian or human rights law.
- 4. The decree distorts the Justice and Peace Law so as to avoid application of the Constitutional Court ruling
The decree states that the proceedings under the Justice and Peace Law began as of the moment the paramilitary leadership decided to demobilize. See Draft Decree, Article 4. On that basis, the decree provides that at least part of the court ruling is inapplicable to paramilitaries who decided to demobilize before the ruling. See Draft Decree, Article 18.
Presumably, the decree is applying the legal principle of favorability, which states that a defendant should receive the benefit of the most favorable criminal law in existence at or after the time he committed a crime. But this principle ordinarily applies when the judge may choose between two distinct, legally valid laws. This principle is not applicable in a situation like the present one, where only one law is in effect, but parts of it have been deemed unconstitutional.
In any case, the decree’s provision that the Justice and Peace Law started applying as of the time the paramilitaries decided to demobilize has no basis in the Justice and Peace Law itself. Indeed, the Justice and Peace Law provides that legal proceedings under that Law are first triggered by the government’s delivery to the Attorney General’s office of a list of persons who wish to receive the law’s benefits. The government did not deliver any such a list to the Attorney General’s office until long after the Court decision.
We urge you to clarify that the Court ruling on the Justice and Peace Law is fully applicable to anyone who wishes to receive benefits under that law.
We appreciate your attention to these important matters.
Sincerely,
/s/
José Miguel Vivanco
Executive Director
Human Rights Watch
Cc: Jaime Córdoba Triviño, President, Constitutional Court of Colombia
Rodrigo Escobar Gil, Vice President, Constitutional Court of Colombia
Nilson Elías Pinilla Pinilla, Justice, Constitutional Court of Colombia
Álvaro Tafur Galvis, Justice, Constitutional Court of Colombia
Clara Inés Vargas Hernández, Justice, Constitutional Court of Colombia
Humberto Sierra Porto, Justice, Constitutional Court of Colombia
Jaime Araujo Rentería, Justice, Constitutional Court of Colombia
Manuel José Cepeda Espinosa, Justice, Constitutional Court of Colombia
Marco Gerardo Monroy Cabra, Justice, Constitutional Court of Colombia
William Wood, U.S. Ambassador to Colombia
