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Justice draws closer to the victims: The Supreme Court of Justice revoked the first ruling in the framework of Law 975 in the case of the paramilitary alias “el Loro” (“the Parrot”)

Justice draws closer to the victims: The Supreme Court of Justice revoked the first ruling in the framework of Law 975 in the case of the paramilitary alias “el Loro” (“the Parrot”)



Series on the rights of the victims and the application of Law 975. Bulletin No 38

Series on the rights of the victims and the application of Law 975. Bulletin No 38



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    Justice draws closer to the victims: The Supreme Court of Justice revoked the first ruling in the framework of Law 975 in the case of the paramilitary alias “el Loro” (“the Parrot”) Justice draws closer to the victims: The Supreme Court of Justice revoked the first ruling in the framework of Law 975 in the case of the paramilitary alias “el Loro” (“the Parrot”) Document Transcript

    • COMISIÓN COLOMBIANA DE JURISTAS Con el apoyo de: Organización no gubernamental con estatus consultivo ante la ONU Filial de la Comisión Internacional de Juristas (Ginebra) y de la Comisión Andina de Juristas (Lima) PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁ UNIÓN EUROPEABulletin No 38: Series on the rights of the victims and the application of Law 975  Justice draws closer to the victims: The Supreme Court of Justice revoked the first ruling in the framework of Law 975 in the case of the paramilitary alias “el Loro” (“the Parrot”)This past July 31, the Criminal Cassation Chamber of the Supreme Court of Justice issued a rulingthat is fundamental for the guarantee of the rights of the victims in the proceedings under the Lawof “Justice and Peace.” The decision originated in the appeal that the representative of the PublicMinistry and the representatives of the victims filed against the first sentence produced in theframework of Law 975 of 2005 in the case of the member of the paramilitary Wilson SalazarCarrascal, alias “el Loro” (“the Parrot”), on May 19, 2009.In the above-mentioned ruling, the Justice and Peace Chamber granted the benefit of alternativesentence to the paramilitary alias “el Loro,” condemning him to five years and ten months in prison,in spite of the fact that the evidence in the trial showed the minimal contribution made by thisparamilitary in terms of truth and reparation, as well as the fact that the paramilitary did not fulfillthe prerequisites stipulated in the law in order to qualify as beneficiary of an alternative sentence.1Thus, far from guaranteeing the rights of the victims, the Justice and Peace Chamber of the HighTribunal of Bogotá openly violated those rights, setting a disastrous precedent for the trials to comeunder law 975 of 2005. 2In this new sentence, and after reviewing the ruling of the Justice and Peace Chamber, the SupremeCourt of Justice modified the process in the case of the paramilitary alias “el Loro.” On the onehand, it revoked the sentence of the Justice and Peace Chamber. On the other, it corrected errorsthat the Chamber itself generated through previous decisions such as the one that permitted thedivision of the process under Law 975. This occurred when the Supreme Court allowed theinvestigation and judgment of the crimes confessed by the paramilitaries to take place separately,and not in a integrated manner as stipulated by the law, as it happened with the endorsement ofwhat it called “partial charges,” which was leading judges and prosecutors down the wrong path inexecuting the special process under Law 975. To that end, the Supreme Court of Justice, in additionto revoking the first sentence of “justice and peace,” used a good part of the sentence to set out theparameters for the application of Law 975; these, although they had been set by the ConstitutionalCourt in its Sentence C-370 of 2006 or could be inferred from the spirit of that decision, in practicethey were being openly disregarded by judicial officials (judges and prosecutors).As things stand, this sentence becomes a required reference for the trials under Law 975 of 2005and a significant step forward toward the rights of the victims. Given the importance of thedecision, an analysis follows of (1) some of the most valuable features of the Supreme Court’sruling which led to the declaration of nullity of the first sentence under Law 975, and (2) the most The present publication has been prepared with the support of the European Union and its content is the soleresponsibility of the Colombian Commission of Jurists. In no way should it be thought to reflect the point ofview of the European Union.1 Artícles 10 and 11, Law 975 of 2005.2 See in this respect, Colombian Commission of Jurists, Bulletin No 35: Series on the rights of the victims andthe application of Law 975, “First member of the paramilitary sentenced under Law 975: A case of apparentjustice,” May 6, 2009, Bogotá, Colombia. 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
    • relevant directives issued by the Supreme Court to judges and prosecutors on how to carry out theprocess under the Law of “Justice and Peace.” 1. The Supreme Court of Justice decreed nullity of the judicial process against the paramilitary Wilson Salazar, alias “el Loro” As was mentioned above, the first sentence produced in the framework of Law 975 of 2005 did not in any way guarantee the right to truth, justice, and reparation of the victims or of society. The recent Supreme Court sentence reexamined this decision, giving judges and prosecutors the opportunity to amend the errors that led them to violate the rights of the victims and to rectify the remaining processes being carried out under the so-called law of “justice and peace.” To that end, judicial officials must heed the calls of the Court which led to its declaration of nullity of the process. The Court expressed one reason for decreeing the nullity of the process in the case of the paramilitary Wilson Salazar Carrascal, alias “el Loro,” which was, basically, that it found a “substantial irregularity” in the process, which was of such magnitude that it made necessary the declaration of nullity of previous actions. In order to understand the “substantial irregularity” that the Court refers to, it is necessary to recall the May 28, 2008 sentence, also issued by the Supreme Court of Justice, likewise in the case of alias “el Loro.” In that sentence, the Court allowed the trial against this paramilitary to be divided up into several processes after having become aware of a request for legal challenge, filed by the Public Ministry and by the paramilitary’s defense lawyer, in which they argued that the judges of the Justice and Peace Chamber of the Barranquilla High Tribunal had made a mistake in endorsing the hearing in which the prosecutor pressed charges against alias “el Loro,” since, in their view, the prosecutor had forgotten to press charges for a fundamental crime in the process: aggravated conspiracy to commit a crime, which is the crime by means of which the act of belonging to paramilitary groups is investigated, judged, and sentenced in Colombia. What the Court decided in solving the legal challenge was to accept that the judges were right, letting the charges that had already been formulated and accepted follow their course. Also, it ordered that, in a parallel, simultaneous but independent process, new charges be brought to bear for the paramilitary to confess in addition to aggravated conspiracy to commit a crime. With this decision, the Supreme Court of Justice opened the door for the prosecutor to press “partial charges” regarding acts that the accused were confessing, dividing the proceedings and generating a series of drawbacks that, in the long run, would affect the rights of the victims. 3 The Supreme Court of Justice even reiterated this position in several sentences and subsequent judicial decrees, making it possible for partial charges to become generalized under Law 975. This decision led to a series of errors being committed, not only in the case of the paramilitary alias “el Loro” but also in all other cases in which partial indictments were being made, which in the end led to the violation of fundamental rights.4 Several arguments were put forward which, at3 See in that regard, Colombian Commission of Jurists, Bulletin No 32: Series on the rights of the victims andthe application of Law 975, Partial charges - or partial rights? February 16, 2009, Bogotá, Colombia.4 See in that regard, Colombian Commission of Jurists, Bulletin No 35: Series on the rights of the victims andthe application of Law 975, “First member of the paramilitary sentenced under Law 975: A case of apparentjustice”, May 6, 2009, Bogotá, Colombia. 2
    • that time, led the CCJ to reach that conclusion. One of them was that the first sentence under the law of “justice and peace,” being the product of the legal precept of partial charges, made it possible for the judges to grant the benefit of an alternative sentence to alias “el Loro” (five years, eight months in prison) without having sufficient elements to decide whether said member of the paramilitary met all the requirements stipulated in the law of “justice and peace” in order to obtain access to that benefit, since he was being judged for just a few of his crimes and the judges did not have the full picture of all the crimes for which he should have been judged. In its new jurisprudence, the Court reconsidered this position and acknowledged the serious disadvantages that were being caused by dividing the proceedings through partial charges, which led the Court to declare the nullity of the previous decision. To that end, the Court came up with three reasons that can be deduced from the “substantial irregularity” it referred to and which are summarized as follows: a. The sentences pronounced in the framework of Law 975 must take into account that the crimes being judged under this law were committed by “organized crime” as well as their systematic and generalized nature.The first reason put forward by the Court to decree the nullity of the sentence in the case of alias “elLoro” refers to the importance for the processes under Law 975 of the fact that the crimes that fallunder its jurisdiction correspond to “organized criminality,” which, as such, has a structure andpatterns of action it is necessary to disclose in order to fulfill the right to the truth.One of the arguments that the CCJ set out when the Court allowed partial charges in theproceedings under Law 975, in order to warn about the dangers involved, was precisely the fact thatpartial charges, “by dividing the process and permitting some acts to be confessed while others arethe object of charges, are being given the treatment of common crimes committed in an isolatedmanner, and not of crimes committed in a particular context characterized by their systematic andmassive nature which, if it is to be disclosed, must be investigated and judged taking intoconsideration those specificities. Therefore, partial charges lead judicial officials to analyze casesoutside of their context as if there were no connection whatsoever among them.” 5The Court seems to have admitted these arguments fully, since it stated that one of the objectives ofthe law of “justice and peace” is to respond to “massive and systematic human rights violations;” itis important, therefore, that the judgment take into consideration the link between the accused andthe armed group. In this sense, the Court highlighted the gravity of the crime of conspiracy tocommit a crime, which it subsequently identified as “basic crime,” since it is this crime that permitsthat these acts are investigated in a specific context and not as “punishable acts causedindividually;” that is, not as acts that are unconnected and were committed in an isolated manner.For the Court, the consequence of this is the need for a more decisive intervention on the part ofjudicial officials, who must examine the concrete crimes but must also analyze them within thecontext of the existence of an armed group that commits massive and systematic human rightsviolations, which makes it necessary to identify patterns of action as well as the responsibility ofthose the Court named “other actors, surely high-ranking ones, who are also liable.”5 See in that regard, Colombian Commission of Jurists, Bulletin No 32: Series on the rights of the victims andthe application of Law 975, “Partial charges - or partial rights?” February 16, 2009, Bogotá, Colombia. 3
    • b. Every sentence under Law 975 must have as starting point the “basic crime” of conspiracy to commit a crimeFollowing this line of reasoning, the Court warned that no sentence can be passed in the frameworkof the proceedings under Law 975 of 205 without having pressed charges for conspiracy to commita crime, since this is the reason for being of the other crimes for which the accused is investigatedand judged. This means that the criminal acts that are the object of the investigation and judgmentare such by virtue of the fact that the members of the paramilitary postulated to be granted thebenefits of the law of “justice and peace” belong to a block or front of some paramilitary group andin that context committed the crimes that are within the jurisdiction of Law 975.In this sense, the Court argued that conspiracy to commit a crime is the “basic crime” of Law 975 of2005 and becomes a crime that is “vital and essential within the process of justice and peace” sinceit highlights the causality link between the fact that the paramilitary who aspires to obtain thebenefits of the law belongs to a group whose aim it is to commit crimes in a systematic andgeneralized way and the crimes themselves. It is not beside the point to mention that in a subsequentdecision, equally worthy, the Supreme Court of Justice once again described the importance of theact of conspiracy to commit a crime in trials against persons belonging to organizations such asparamilitary groups; but it also pointed out that conspiracy to commit a crime in itself, when it iscommitted with the aim of perpetrating serious human rights violations, as in the case ofparamilitarism, is a crime against humanity. 6This declaration is of great importance for judgment of the crime of paramilitarism, which, as such,had been treated in our country as a common crime – to the point of considering that a person whocommitted only that crime could be the subject of legal benefits. This will have to changesubstantially as a result of these two decisions of the Court, as they highlight the importance ofcondemning the crime of coordinating to create paramilitary groups, as well as the fact that thecrimes that stem from that “basic crime” should be investigated and judged always keeping in mindthe context of the violations. Additionally, it is an important declaration for the victims and forsociety, since raising the establishment of paramilitary groups to the category of crime againsthumanity is a clear and evident rejection of such groups and their activities, which dignifies thevictims of these groups that for so many years have had to endure theories that seek to justify theexistence of paramilitarism and its crimes. c. Partial charges are “extraordinary” and cannot be turned into a generalized practiceThis is perhaps the central argument of this decision, since it is the one that gives sustenance to theabove-mentioned statements. Indeed, as a result of partial charges, crimes had been investigatedand judged as isolated cases and not within the context of their systematic and generalized nature;likewise, they made it possible to arrive at the first sentence under the law of “justice and peace”without having attributed the “basic crime” of aggravated conspiracy to commit a crime. Therefore,by having recognized that it made a mistake in endorsing partial charges in a generalized manner,the Court was able to rectify that decision, thus protecting the rights of the victims.Thus it was that, on this point of the arguments, the Court specified the extent of partial chargeswhen it declared that they should be of an extraordinary nature; and, although it did not explicitly6 See in that respect, Supreme Court of Justice, Penal Cassation Chamber, M.P. Yesid Ramírez Bastidas,Bogotá, August 19 2009. 4
    • acknowledge its mistake, it did so tacitly by mentioning that the fact of pressing partial charges asan every-day tool “reflects the negligence of that institution in carrying out its function ofinvestigation, verification, and proof and could possibly hinder the guarantee of truth, justice, andreparation for the victims.” 7 And although the Court assured once again that partial charges are“compatible with the process of justice and peace,” it also emphasized that “the ideal situation isthat the attribution of charges be complete” since this “allows the prosecutor’s office, themagistrate for guarantee control, and the Chamber to have a full, overall, and shared vision ofhis/her activities and of those of the group to which he/she belongs.” 8.In view of the failure to press charges of conspiracy to commit a crime in the trial against WilsonSalazar Carrascal, alias “el Loro,” that led to the first sentence in the framework of Law 975, thisposition allowed the Court to decide the need to declare null the previous acts in the trial, sincewithout that charge “it is unfeasible to recognize him as eligible to obtain benefits which areessentially granted because of his condition as demobilized member of an illegal armed group.”This means that the Court established that, as a prerequisite to decide whether a paramilitary canhave access to the legal benefits under Law 975, it is necessary to previously have pressed chargesof creating paramilitary groups, since this is the one crime that makes possible the commission ofall the other crimes that the paramilitaries might confess.This sentence corrected the consequences of partial charges, which became evident in the firstsentence under Law 975; but at the same time they have had consequences in other trials in whichprosecutors have pressed partial charges as a common and generalized practice. Through thissentence, the Court opened the door for the possibility that the prosecutors of the Justice and PeaceUnit of the Prosecutor’s Office correct the errors that they have been committing as a result of theCourt’s previous ruling and to rectify their investigations as well as their handling of the hearingsfor attribution and formulation of charges, according to the reasoning of this sentence, which is theone that best protects the rights of the victims. 2. The Court issued directives to judges and prosecutors that are of vital importance to guarantee the rights of the victimsIn a second section of this sentence, not less important, the Court proceeded to set out guidelines onthe procedures under Law 975 addressed to judges and prosecutors, so they will take them intoconsideration in the course of the trials and in carrying out their functions. The importance of theguidelines set out by the Court in this sentence lies in that it included several concerns that both thevictims and their representatives had been expressing regarding the way the judges and prosecutorswere handling the proceedings under the law of “justice and peace.”In this sense, it can be said that the Court, after unifying criteria on the various stages of the process,brought the debate to an end on several issues on procedures, which were hampering the process aswell as distancing it from the victims. Therefore, this sentence becomes the path to follow, both forthe prosecutors and the judges, who will have to adapt their actions to what the Court stipulates, aswell as for the victims and their representatives, who will have to uphold and defend the importantpronouncements enshrined in this sentence.7 Supreme Court of Justice, Penal Cassation Chamber, Justice and Peace, Process n.° 31539, M.P. AugustoIbáñez Guzmán, July 31, 2009, P. 11.8 Ibíd., P. 14. 5
    • Thus, for example, in general terms the Court urged judges and prosecutors always to have asreference the national legal framework but also to take into consideration the observance ofinternational norms, inspired in the higher mandates of International Human Rights Law andInternational Humanitarian Law. Although, in principle, such a declaration might seemsuperfluous, the truth is that, in practice, the majority of prosecutors and judges disregard the studyof international norms regarding human rights and humanitarian law, which are of transcendentalrelevance in trials such as those carried out in the framework of the law of “justice and peace.”Subsequently, while referring to each of the stages of the process under Law 975, the Courtestablished guidelines of enormous importance for the victims. For example, it claimed that theprocess under Law 975 is divided in two parts. One that corresponds to an “administrative phase,”which runs from the moment of postulation by the government of the paramilitaries it considerspotential beneficiaries of Law 975; and the other, the judicial phase, which begins exactly at themoment when the Prosecutor’s Office receives the list and ends with the actions of the Justice andPeace tribunals. Although this might seem like just another statement, it has great relevance for thevictims, since the fact of having distinguished the two stages of the process in this way allows us toconsider finished the theory that the Court itself had maintained up to now, that the administrativephase extended even until the formulation of charges, including in this phase the free-versionconfession; on the basis of this theory, the victims and their representatives were prevented fromintervening actively in this phase of the procedure with the argument that since this was not exactlythe judicial phase, the victims had no right to intervene, which abolished the rights of the victimsduring a phase as important as the free-version confession of the postulants.In addition, through this decision the Court highlighted the importance of the preliminaryinvestigation that the prosecutors must undertake before initiating the free-version hearings, since itis on the basis of a serious and careful investigation that the prosecutor is going to have sufficientcriteria to be able to listen to the confessions of the postulants. Likewise, it emphasized that “therole of the prosecutor’s office in the context of the free-version confessions is not a passive one”and that the confession rendered by the paramilitaries must be “complete and truthful,” since this isa commitment by the postulant ratified by the law. Likewise, it pointed out the importance ofhaving the assessment of the confession be carried out taking into consideration “argumentscharacterized by pertinence, efficacy, and depth.” Although outlined by the Constitutional Court,these guidelines are not superfluous; all the more so if it is taken into consideration that in practiceexactly the opposite is taking place. The majority of prosecutors have given course to the free-version confessions without even knowing who the postulant is that they are going to listen to; theyhave not guided appropriately the confessions but have, on the contrary, allowed the paramilitariesto set the agenda, and these, for their part, have done everything other than to render complete andtruthful confessions.That is why this call from the Court to judges and prosecutors must be heeded so that, from now on,the prosecutors take on the role that is theirs as guide of the free version sessions and so that thejudges are less lenient when assessing the confessions, as it happened in the case of alias “el Loro,”in which, far from taking into consideration the arguments of pertinence, efficacy, and effectivenessthat the Court mentions, it was assumed, without further consideration, that what the paramilitarywas saying was sufficient to judge that alias “el Loro” had made good on his commitment to revealthe truth.Another important declaration by the Court in this section has to do with measures tending toguarantee reparation through the imposition of restrictions on the possessions of the postulated 6
    • paramilitaries. On this point, the Court reviewed its previous considerations on “cautionarymeasures,” which had led it to conclude that these were justified after the culmination of the freeversion and the preparation of the methodological plan for the investigation that the Prosecutor’sOffice must carry out. In this new sentence, the Court corrected this position and acknowledged thatit was a “major error,” since through it “the possibility would open up so that goods that could beaffected could be disposed of or transferred in such a way as to make reparation morecomplicated.” This decision is an important step forward to guarantee reparation for the victimsand, more concretely, restitution, since the fact that it is now possible to impose measures whoseobjective is to restrict the commercial circulation of these goods from the beginning of the processmakes it easier to take out these possessions from the sphere of availability of the paramilitary.However, it is somewhat overdue if one takes into account that the free-version hearings of theparamilitaries that accumulated most goods began three years ago, and many of them had sufficienttime to undertake all actions to keep their possessions from being destined for the reparation of thevictims.In addition, the Court made a very exhaustive enumeration of the prerequisites that theparamilitaries who aim at benefiting from alternative sentences must fulfill, not limiting itself torepeating the prerequisites that are foreseen in the law (prerequisites regarding eligibility) butenunciated additional ones that must be verified in order to grant the benefit. In this sense, the Courtwas emphatic in pointing out that “in what concerns the victims, the Chamber has taken position onthe prevalent character of the whole of the rights to truth, justice, and reparation enshrined in thenorms contained in Law 975, as the concession of benefits to the members of illegal armed groupswho decide to demobilize under given parameters depends on their comprehensive reparation oftheir victims, as can be inferred from what the Constitutional Court declared through its SentenceC-370 of 2006.” 9In synthesis, the Court not only revoked a sentence that was unfortunate for the victims, but it alsoset out parameters for the judges to correct that which, fundamentally, was decided by the Justiceand Peace Chamber in detriment of the victims. Thus, the judge and prosecutor in the case will notbe able to limit their actions to simply complying with the prerequisite of attributing the charge ofconspiracy to commit a crime, but in the future they will have to review all their procedures to adaptthem to the parameters set out by the Court and to the general guidelines it established for each ofthe phases of the proceedings under Law 975 of 2005. Furthermore, this must also apply to theactions of all the prosecutors and judges in the cases being judged in the framework of Law 975, inorder to correct errors that have been committed and that go against the rights of the victims. Fortheir part, for the victims and their representatives, this decision means not only a step forward butis also an additional tool to demand their right to a full and transparent truth, comprehensivereparation, and a kind of justice that, like this decision, is increasingly aimed at guaranteeing andprotecting the victims.Bogotá, 16 de septiembre de 2008Bogotá, September 16, 2008For further information, please contact Gustavo Gallón Giraldo, Director CCJ (Tel. 571-376 8200, ext.115).9 Ibíd., P. 49. 7