III. Changes to the Justice and Peace Law
Fortunately, the Justice and Peace Law improved tremendously in June 2006 thanks to a ruling by Colombias Constitutional Court, which made a number of important clarifications and corrections to the law. The Uribe administration later sought to water down some aspects of the Court ruling via executive decrees. But the ruling transformed the law into an instrument that could, if implemented effectively, further victims rights to truth and reparations, if not justice. It could also help to identify and hold paramilitaries accomplices accountable.
Constitutional Court Ruling
Numerous civil society groups in Colombia filed constitutional challenges to the Justice and Peace Law.11 In 2006 Colombias Constitutional Court issued a ruling that struck down some of the worst provisions of the law and made essential clarifications as to how other provisions should be interpreted.12
The Court left the sentencing benefits for demobilizing paramilitaries largely intact: paramilitaries who comply with the laws requirements are eligible for drastically reduced sentences of five to eight years for all their crimes.13 However, the ruling, if implemented effectively, gives prosecutors many important tools that they would have otherwise lacked to dismantle paramilitary groups and to safeguard victims rights. The following are key aspects of the ruling:
After the Court ruling, the Uribe administration issued several executive decrees that purported to implement the Court ruling and regulate the Justice and Peace Law.34 However, some of these decrees provisions watered down important aspects of the decision and created new problems. For example, one of the decrees provides that the already reduced sentences could be served on agricultural colonies or under house arrest.35 It also establishes that paramilitaries who had entered the demobilization program before the Courts ruling (i.e., the overwhelming majority) can count the time they spent negotiating in Santa Fe de Ralito as time served.36 Both provisions are flatly inconsistent with the Courts clear ruling stating that no further sentencing benefits could be provided, beyond the already significant sentencing reductions.37
Various other provisions of the decrees weakened paramilitaries obligations to pay reparations.38Also, even though the Justice and Peace Law provides that paramilitaries must turn over illegal assets at the time of their demobilization as a requirement of eligibility for the laws benefits, in one of the decrees the government established soft deadlines for the asset turnovers, stating only that at the start of the process paramilitaries must commit to eventually fulfill obligations to turn over assets.39 Thus, the decrees seemed to allow paramilitaries to wait until the very last minute before sentencing to turn over assetswhich in practice has substantially weakened paramilitaries incentives to turn over illegal assets in a timely manner.40
Several of the provisions are now the subject of a legal challenge before the Colombian Council of State. Human Rights Watch has filed an amicus curiae brief in support of the legal challenge; the brief describes several of the problems with the decrees in further detail.41
11See, e.g., Gustavo Gallón et al, Colombian Comission of Jurists, Demanda Contra la Ley 975 de 2005, undated,
http://www.coljuristas.org/justicia/Demanda%20contra%20la%20ley%20975%20de%202005.pdf (accessed August 11, 2008). National Movement of Victims of State Crimes, "Demanda de Inconstitucionalidad Contra Ley 975 de 2005," September 9, 2005, http://www.colectivodeabogados.org/article.php3?id_article=483 (accessed August 11, 2008).
12 Colombian Constitutional Court, Sentence C-370/2006, May 18, 2006.
13 Justice and Peace Law, Law 975 of 2005, art. 29. Decision C-370/2006, Colombian Constitutional Court, para. 220.127.116.11.8.
14 Law 975 of 2005, art. 17.
15 Decision C-370/2006, Colombian Constitutional Court, para. 18.104.22.168.7.26.
16 Law 975 of 2005, arts. 17, 25.
17 Ibid., art. 25.
19Decision C-370/2006, Colombian Constitutional Court, para. 22.214.171.124.7.27-126.96.36.199.7.28.
21 Decree 4760 of 2005, December 30, 2005, art. 4, http://www.presidencia.gov.co/prensa_new/decretoslinea/2005/diciembre/30/dec4760301205.pdf (accessed August 11, 2008).
22 Decision C-370/2006, Colombian Constitutional Court, para. 188.8.131.52.6.4. The Court specifically ordered that prosecutors conduct the methodological program of investigation described in Colombias Code of Criminal Procedure, which provides that prosecutors must design a methodological program of investigation, which must include the determination of the goals in connection with the nature of the hypothesis about the crime; the criteria to be used to evaluate information; the functional delineation of the tasks that must be carried out to achieve the established objectives; the procedures to control the development of work and the ways to improve the results being obtained. In implementing the methodological program of investigation, the prosecutor will order the realization of all activities that do not involve restrictions on fundamental rights and that are conducive to the clarification of the facts, to the discovery of material probatory elements and physical evidence, to the identification of individual perpetrators and participants in the crime, to the evaluation and quantification of the harm caused, and to the assistance and protection of the victims. Colombian Code of Criminal Procedure, Law 906 of 2004, article 207. English translation by Human Rights Watch.
23 Law 975 of 2005, art. 31.
24 Decision C-370/2006, Colombian Constitutional Court, para. 184.108.40.206.4.6. The Court noted that the presence in a concentration zone of members of illegal armed groups in a demobilization process is the result of a voluntary decision by these persons and therefore it does not constitute a penalty, in that it does not involve the coercive imposition of restrictions on fundamental rights. [la permanencia en una zona de concentración por parte de miembros de los grupos armados organizados al margen de la ley, en proceso de desmovilización, obedece a una decisión voluntaria de esas personas, and that no constituye pena en cuanto no comporta la imposición coercitiva de la restricción de derechos fundamentales.] English translation by Human Rights Watch.
25 Law 975 of 2005, art. 30.
26 Decision C-370/2006, Colombian Constitutional Court, para. 220.127.116.11.4.8- 18.104.22.168.4.9.
27 Law 975 of 2005, arts. 10.2, 11.5, 17.
29 Decision C-370/2006, Colombian Constitutional Court, para. 22.214.171.124.16-18.
30 Ibid., paras. 126.96.36.199.1.10, 188.8.131.52.2.8.
31 Ibid., para. 184.108.40.206.4.3.
32 Ibid., paras. 220.127.116.11.3, 18.104.22.168.6
34 These are: Decree 2898 of 2006; Decree 3391 of 2006; Decree 4417 of 2006; Decree 315 of 2008; Decree 423 of 2007; Decree 551 of 2007. In addition, before the Court decision the government had issued Decree 4760 of 2005, which also regulates the Justice and Peace Law.
35 One of the decrees states the government will select the type of establishment [where paramilitaries will serve their sentences] from among those listed in the Penitentiary Code. Decree 3391 of 2006, September 29, 2006, art. 13, http://www.presidencia.gov.co/prensa_new/decretoslinea/2006/septiembre/29/dec3391290906.pdf (accessed August 11, 2008). In turn, the Penitentiary Code provides for a variety of possibilities, including agricultural colonies and house arrest. Penitentiary Code of Colombia, Law 65 of 1993, arts. 20-29, http://www.secretariasenado.gov.co/leyes/L0065_93.HTM. President Uribe in fact stated at one point that, once they receive reduced sentences under the Justice and Peace Law, the Government is prepared to consider alternative prisons, such as agricultural colonies. Presidency of Colombia, Remarks by President Uribe Commemorating the Second Anniversary of the Justice and Peace Law, July 25, 2007, http://web.presidencia.gov.co/sne/2007/julio/25/09252007.htm (accessed April 2, 2008). English translation by Human Rights Watch).
36 Decree 3391 of 2006, September 29, 2006, art. 20, http://www.presidencia.gov.co/prensa_new/decretoslinea/2006/septiembre/29/dec3391290906.pdf (accessed August 11, 2008). The decree also allows paramilitaries to voluntarily go to establishments designated by the government even before they are sentenced. These individuals will then be allowed to count all the time they spend in such establishments as time served on their sentences. Decree 3391 of 2006, art. 11. Thus, the time commanders spent voluntarily in a retreat house in La Ceja, Antioquia, in 2006 would count as time served on their sentences.
37 The government has argued that the decree is consistent with the ruling because the ruling is not retroactive, and the unconstitutional provisions had already been applied. Decree 3391 of 2006, art. 20; Gobierno Expedió Decreto 3391, Reglamentario de la Ley de Justicia y Paz, September 29, 2006, http://www.presidencia.gov.co/prensa_new/sne/2006/septiembre/29/11292006.htm (accessed August 11, 2008). However, this argument is baseless, given that at the time of the Court ruling the law had not yet been applied and at the time of the negotiations the law did not even exist. Paramilitaries who participated in negotiations were not doing so in order to obtain sentencing benefits.
38 The decrees establish that paramilitaries may satisfy their obligations to provide reparation by giving up lands to be used for productive projects for victims and reinserted combatants. Decree 3391 of 2006, art. 17, para. 1. The decree also states that the government will select establishments where there are restorative programs directed at reestablishing links among the victims ... and the offenders, including productive projects. Decree 3391 of 2006, art. 13. To the extent this provision would force victims to participate in productive projects with perpetrators in order to receive reparation, this provision infringes on victims rights to reparation. Moreover, it is likely that land turned over by paramilitaries in fact was taken from victims who are now displaced and are entitled to restitution of their land. Another problem is that the decrees allow judges to take into account various factors beyond the gravity of the violation and the harm to the victims in deciding on the reparation award to victims. Decree 3391 of 2006, art. 17 (To establish the obligations that reparation will consist of, in addition to considering the damage caused that has been proven and the form of reparation that is requested, the judicial authority with jurisdiction shall take into account the criteria formulated by the National Commission on Reparation and Reconciliation, the circumstances of the concrete case related to the number of victims, the eventual financial obligation, the economic capacity of the [paramilitary] block or front and of the criminally responsible demobilized individuals and other aspects that turn out to be relevant for the context.) English translation by Human Rights Watch. In particular, the decrees provide that judges must take into account, inter alia, the economic capacity of the [paramilitary] block or front and of the criminally responsible demobilized individuals . Ibid. This provision is contrary to international law because it allows perpetrators ability to pay to play a role in the determination of the reparations award. Inter-American Commission on Human Rights, Report on the Implementation of the Justice and Peace Law: Initial Stages in the Demobilization of the AUC and First Judicial Proceedings, OEA/Ser. L/V/II 129 doc. 6, October 2, 2007, para. 98. The right to reparations is held by the victim and should be determined on the basis of the gravity of the violation and the extent of the harm suffered by the victim. If a perpetrator proves unable to pay, this should not affect the reparations award, as the state is required to assume the obligation to provide reparations to the victim.
39 Decree 3391 of 2006, art. 5. Law 975 of 2005, arts. 10, 11.
40 A similar problem is that one of the decrees establishes that the attorney general may apply the principle of opportunitywhich allows prosecutors to refrain from pressing chargesto persons who serve as front men, holding assets for paramilitaries in their own name. Decree 3391 of 2006, art. 14. In theory, this provision should establish an incentive for the front men to come forward and turn over paramilitaries illegal assets. However, the decree does not set a deadline by which front men must come forward to receive this benefit, so most front men may have an incentive to wait and see if theres any chance they will ever be caught. In fact, none have come forward.
41 Colombian Commission of Jurists, Complaint before the Colombian Council of State, First Section, Case No. 2007-164. Human Rights Watch, Brief Submitted as Amicus Curiae in Support of Complaint before the Colombian Council of State, First Section, Case No. 2007-164, submitted on April 25, 2008.