COLOMBIAN COMMISSION OF JURISTS                                                               Supported by:               ...
among other procedural aspects, are the sole competence of the Congress and of no one else. Theregulation of judicial proc...
the Constitution. This supremacy or prevalence was established explicitly in Article 4 of the Constitution,which reads: “T...
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Overstepping their faculties, the government and the General Prosecutor's Office are seriously disregarding the rights of the victims in the legal proceedings under Law 975

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Series on the rights of the victims and the application of Law 975. Bulletin No 15

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Overstepping their faculties, the government and the General Prosecutor's Office are seriously disregarding the rights of the victims in the legal proceedings under Law 975

  1. 1. COLOMBIAN COMMISSION OF JURISTS Supported by: Non-governmental Organization with UN Consultative Status International Commission of Jurists (Geneva) and Andean Commission of Jurists (Lima) Affiliate LEGAL CORPORATE ENTITY: RESOLUTION 1060, AUGUST 1988 BOGOTA MAYOR’S OFFICE The Canadian GovernmentBulletin No 15: Series on the rights of the victims and the application of Law 975 Overstepping their faculties, the government and the General Prosecutor’s Office are seriously disregarding the rights of the victims in the legal proceedings under Law 975The Colombian Commission of Jurists, in its role as legal representative of the victims, has requested thatthe General Prosecutor’s Office refrain from enforcing Decree 315 of 2007 and Resolution 3998 of 2006,both of which were issued overstepping the faculties granted by the Constitution.Decree 315 of 2007 regulates the participation of the victims in the “spontaneous declaration” hearings,exacting from them that they prove beforehand the harm suffered, forcing them to stay in a room differentfrom that of the hearing, where they can watch the proceedings with difficulty through closed-circuittelevision, and limiting their participation to providing the prosecutor information exclusively related tothe case in which they were direct victims. According to the decree, the victims can only suggest somequestions to the prosecutor, who will decide discretionally if he asks them or not. For its part, the GeneralProsecutor’s Office, through Resolution 3998 of 2006, also regulated the “spontaneous declaration”hearings, imposing new limitations absent from Law 975 of 2005.It is inadmissible that the government and the General Prosecutor’s Office should be regulating theprocess in the framework of Law 975, contradicting the law itself, ignoring the orders of theConstitutional Court in its Judgment C-370 of 2006, and disregarding, in any case, the most elementalnorms of international law that are embedded in the Constitution regarding the participation of the victimsin processes on human rights violations. It must not be forgotten that, by definition, these proceedingshave to do with crimes against humanity and hence that every person, by virtue of being part of humanity,has suffered damage thorough such crimes and is a victim of them. The Prosecutor’s Office and thegovernment cannot hinder anyone from demanding their rights to truth and to justice in such cases; that iswhy neither Law 975 nor the ruling of the Court established limitations to that effect but, on the contrary,determined that the victims should have full access to the process in order to exercise their rights from thebeginning of the judicial proceedings.Law 975 of 2005 – “by which measures are established for the reincorporation of members of organizedillegal armed groups so they may contribute in an effective manner to the goal of national peace, and othermeasures are declared regarding humanitarian accords” – establishes the rules of the criminal process thatthe paramilitaries must submit to if they want to get a reduced judgment in exchange for theirdemobilization. The government has the faculty to regulate the law with regard to what the authorities ofthe executive branch should undertake in order to cooperate with the judicial branch in such matters.Beyond this, according to the Constitution and to the Statutory Law on the Administration of Justice, theregulation of the proceedings themselves, the definition of the way in which the judicial authoritiesexercise their attributions, and the setting of prerequisites for the exercise of the rights of the victims,*The European Union supported the first phase of this project, between July and December of 2006, during which this series ofinformation bulletins was begun and the first twelve numbers published, available on the web page. The present publication hasbeen prepared under the auspices of the Canadian government, and its content is the sole responsibility of the ColombianCommission of Jurists. In no way should it be thought to reflect the point of view of the European Union or of the government ofCanada. Calle 72 Nº 12-65 piso 7 PBX: (571) 3768200 – (571) 3434710 Fax: (571) 3768230 Email: ccj@coljuristas.org Website: www.coljuristas.org Bogotá, Colombia
  2. 2. among other procedural aspects, are the sole competence of the Congress and of no one else. Theregulation of judicial processes by authorities other than Congress is clearly unconstitutional.The delimitation of functions involves assigning clear responsibilities to the different State institutions. Agood example of such delimitation is statutory power with regard to the regulation of the exercise ofjudicial action and the stages of legal proceedings. The regulation in this matter is the exclusiveresponsibility of the legislative power, according to Article 93 of Law 270 of 1996 or to the Statutory Lawon the Administration of Justice, in accordance with the constitutionally recognized principles of legalityand due process.Thus, the government and the General Prosecutor’s Office are overstepping their constitutional facultiesand, through their acts, failing to recognize the prevalence of the Constitution. There are judicialmechanisms in the legal system to guarantee effectively that the Constitution remains the norm of normsand to correct this type of behavior. The first one is the public unconstitutionality action. However, untilthe competent constitutional tribunal has ruled on the constitutionality of a norm, that norm remains inforce and continues to have legal effects that are contrary to the Constitution. For this reason, and basedon Article 4 of the Constitution, the authorities can be requested to refrain from enforcing a norm, in thisconcrete case one that is constitutionally objectionable but which has not yet been repealed on the groundsof unconstitutionality. This legal action is known as objection of inconstitutionality and is legallyeffective only in relation to the specific case for which it is invoked.With regard to the two requests of objection of inconstitutionality lodged by the CCJ in the framework ofthe “spontaneous declaration” hearings of the paramilitaries Wilson Salazar Carrascal, alias “El Loro,”Juan Francisco Prada Márquez, alias “Juancho Prada,” and Salvatore Mancuso, alias “Santander Lozada,”among others, the General Prosecutor’s Office has responded negatively. Regarding the first, the GeneralProsecutor’s Office responded that it is not authorized to carry it out – in spite of the fact that theConstitution not only authorizes that Office to carry it out but it compels it to do so.In the second case, the Prosecutor’s Office denied the request for direct revocation of Resolution 3998 of2006, considering that it is more harmonious – and even more generous – than the regulation issued by thegovernment. According to the arguments of the Prosecutor’s Office, the resolution allows the victims toenter the hall where the “spontaneous declaration” hearings take place, so that, through the prosecutor,they may question the paramilitary, a possibility not foreseen in Decree 315 or in any other regulatorydecrees issued by the government.The prosecutor is right in asserting that the resolution is in harmony with the decrees issued by thegovernment. There is harmony because both the government and the General Prosecutor’s Officeoverstepped their statutory faculties, and because both in the decrees and in the resolution requirementsare established not foreseen in Law 975, thereby contradicting the ruling of the Constitutional Court in itsJudgment C-370 of 2006. The problem is that the government’s regulations are not in harmony with theConstitution, and thus the Prosecutor General’s resolution isn’t either. The General Prosecutor’s Officecannot justify the content of its resolution based on some unconstitutional decree issued by thegovernment. When requested to revoke a resolution because it runs counter to the Constitution, that Officemust review its decision in the light of constitutional norms.A state with constitutional rule of law is characterized by the fact that at the apex of the judicial systemthere is a norm that directs the entire state function – as does the Colombian Constitution of 1991. Thatlegal norm must be considered to be of overriding application. That is, when a norm infringes upon thecontents or the hierarchy of the Constitution, all public servants can and must enforce what is contained in 2
  3. 3. the Constitution. This supremacy or prevalence was established explicitly in Article 4 of the Constitution,which reads: “The Constitution is the norm of norms. In all cases of incompatibility between theConstitution and a law or any other legal norm, the constitutional provisions shall apply.”In the light of the Constitution, in Colombia the government is not allowed to issue a decree that violatesthe rights of the victims of war crimes and crimes against humanity to truth, justice and reparation; nor isit permissible for the General Prosecutor’s Office to issue a resolution that follows the lead of such adecree – an unjust and clearly unconstitutional norm. The Prosecutor’s Office should have declared theobjection of inconstitutionality of Decree 315 rather than issuing regulations in accordance with it.Through these measures, the government and the General Prosecutor’s Office are failing to comply withthe Constitution and fully disregarding its supremacy. In practice, the consequence of all this is that, theway in which Law 975 of 2005 (known as “law of justice and peace”) is being applied, the victims ofcrimes against humanity committed by paramilitary groups are being denied the possibility of demandingtheir rights to truth, justice, and reparation. Perhaps a tutela action (a kind of writ of injuction) lodgedbefore a judicial authority different from the General Prosecutor’s Office would prevent the perpetrationof this imminent violation of fundamental rights.Bogotá, March 26, 2007For more information, please contact Gustavo Gallón, Director of the CCJ, at Tel. (571) 376 8200, Ext. 115 3

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