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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) UNIÓN EUROPEA PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁBulletin No 41: Series on the rights of the victims and the application of Law 975 “Parapolitics” revealed?The Supreme Court of Justice (SCJ) is taking important steps to shed light on the phenomenon ofparamilitarism in Colombia. Proof of this are two recent decisions announced by its Penal Chamberwith regard to the investigations that the tribunal is carrying out against members of Congress fortheir alleged links with paramilitary groups, in what is known as “parapolitics”- that is, the linksbetween paramilitary and politicians.The first of the two, in which the Court assumed control again of the investigations being carriedout against several members of Congress for their links with paramilitary groups, was adopted onSeptember 1, 2009. In the second one, dated September 16, 2009, the Court revealed - in a votesubscribed by four magistrates - a new thesis that is taking shape within the Court and which seeksto show that the Congress members not only are accountable for the crime of conspiracy to commita crime, which is the legal figure through which the act of creating paramilitary groups isinvestigated and sanctioned in Colombia; they were also members of the paramilitary leadershipand, hence, could be held legally responsible for the crimes against humanity perpetrated by suchgroups without having committed them directly. Let us examine succinctly each of these decisions.The Court regained its competence to judge the “parapoliticians”As is well known, the strategy of several of the Congress members against whom a criminalinvestigation was undertaken for their presumed links with paramilitary groups was to give up theconstitutionally guaranteed immunity as members of Congress in order to take away from theSupreme Court of Justice the competence to investigate them and to transfer it to the GeneralProsecutor‟s Office. The reason is that they expected the Prosecutor‟s Office to be more lenient inthe investigation, and that this, in turn, would favor their absolution or reduced sentence if theywere tried and found guilty. Among other reasons, this calculation was based on the fact thatCongress members hold the kind of political power at the local level – and even nationally – thatcan sway the impartiality of judicial officials.Enshrined in the Constitution is a special immunity for Congress members that holds that they areto be investigated and judged by the Supreme Court Justice for any crimes they might commit.1This competence subsists even if the Congress members leave office, provided that they are chargedwith crimes related to their functions as members of Congress. The SCJ had maintained thefollowing as part of its jurisprudence for several years: “the Constitution distinguishes twohypotheses: while a person is a member of Congress, he or she will be investigated by the Supreme 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 of view of theEuropean Union.1 As has been pointed out by the Constitutional Court, this must not be understood as a personal privilege enjoyed byCongress members but as a legal figure constituted “because of their investiture and with the aim of protecting theintegrity and the autonomy of the Congress of the Republic.” See in this regard, Sentence T-1320 de 2001, M.P.: AlfredoBeltrán Sierra. Calle 72 Nº 12-65 piso 7 PBX: (571) 3768200 – (571) 3434710 Fax: (571) 3768230 Email: firstname.lastname@example.org Website: www.coljuristas.org Bogotá, Colombia
Court for any crime; however, if the person has left office, then he or she will be judged by that hightribunal only if the crime bears relation to his or her functions.” 2This was the position defended by the SCJ until 2007 when, through a judicial decree dated April18 of that year, it changed its jurisprudence and added an additional prerequisite in the event thatCongress members should be investigated for crimes related to their function. In this change ofjurisprudence, the Court stated that: “when the capacity as Congress member is lost – it does notsuffice for just any relation between the act attributed and the condition of Congress member to beestablished; it is necessary that the link be direct and immediate in terms of what the doctrine calls“distinguishing crimes,” („delitos propios‟), understood as those that can be committed by a publicservant only in relation to the functions that have been delegated to him or her through the mandateof the Constitution or the Law or those related.” 3The Court understood then, as it itself states, that the fact that the Congress members made dealswith paramilitary groups could not be construed as an act carried out on the grounds of theirfunction as members of Congress; and thus, in such cases, if the Congressmen relinquished theirposition, they would lose their special immunity and could be investigated by the Prosecutor‟sOffice. This, in effect, gave cause for many of them to give up their special immunity so the Courtwould no longer be competent to investigate and judge their alleged links with paramilitary groups.Thus, of a total of 80 Congress members who were investigated, almost half of them waived theirspecial immunity. In fact, 47.5% of these public servants gave up their position (38 members ofCongress), while 52.2% stayed in their posts (42 members of Congress). 4As was pointed out at the beginning of this bulletin, in the new ruling dated September 1, 2009, theCourt reviewed its opinion of 2007 when it ascertained that the Constitution does not envisage thatthe crimes for which Congress members can be investigated and are related to their functions couldbe the so-called “distinguishing crimes.” On the contrary, the Constitution refers only to crimes“related to the functions carried out by Congress members” without specifying further. For theCourt, this implies that the link between the crime with the public function is present when theformer “is carried out as a cause of the public service performed, on the occasion of same, or in theexercise of functions inherent to their office; that is, that the act originates in the Congressionalactivity or is a necessary consequence thereof, or that the exercise of the functions characteristic ofa Congress member constitute a means or a suitable opportunity for the execution of the crime, or itrepresents an irregular or abusive exercise of those functions.” 5 Immediately thereafter, the Courtstates the following: “Such is the case of the Congress members accused of aggravated conspiracy to commit a crime because of their possible links with members of the self-defense groups when they already occupied a seat in Congress, an act that, although it is not part of their functions, - meeting with delinquents to orchestrate crimes is not and cannot be inherent to the realm of functions of Congress -, it does show, on the one hand, that it is possible that he was a member of that criminal organization and, on the other, that according to the way in which that organization operated, he was presumably a2 Penal Cassation Chamber of the Supreme Court of Justice, June 2, 2004, File n. ° 9.121. Quoted in: Penal CassationChamber of the Supreme Court of Justice. September 1, 2009, File n. ° 31653, p. 11.3 Penal Cassation Chamber of the Supreme Court of Justice, April 18 2007, File n. ° 26.942. Quoted in: Penal CassationChamber of the Supreme Court of Justice, September 1 2009, File n.° 31653, p. 38.4 Information from the press database of the Colombian Commission of Jurists, updated up to October 6, 2009.5 Penal Cassation Chamber of the Supreme Court of Justice, September 1 2009, File n. ° 31653, p. 52. 2
qualified member of the organization whose responsibility it was to contribute in the realm of his functions as Congress member.” 6For the Court this becomes relevant in the case of the Colombian Congress members presumablylinked to paramilitary groups since, in those groups, “each one contributes what he has.” In thissense, what the Congress members did was to put their power as Senators or Representatives at theservice of such groups. For that reason, the Court‟s decision in the specific case that generated thesentence was to continue the investigation against Representative Édgar Eulises Torres, in spite ofthe fact that this Congressman had waived his immunity, since even though he is no longer carryingout that responsibility, the fact that the crimes for which he is being investigated bear a relation withhis functions make the Supreme Court of Justice competent according to this last sentence.Members of Congress must answer for the crimes against humanity perpetrated by paramilitariesIn a decision in which the Court passed sentence against Congressman Ricardo Elcure Chacón forhis proven links with paramilitary groups in Norte de Santander, the Court sketched out a newthesis which, if consolidated, could allow that Congress members be held responsible for the crimesagainst humanity perpetrated by paramilitary groups. In that sentence the Court found theCongressman guilty of aggravated conspiracy to commit a crime. However, in the motivation ofthe sentence the Court made clear that the role of the Congressman within the paramilitary groupswas not simply to receive funds from them to finance his campaign for the Governorship of Nortede Santander. On the contrary, after analyzing several pieces of evidence, the Court was able toascertain that the paramilitary groups not only supported him financially but that, additionally, theyput at his disposal their entire structure so he would achieve his goal so that, once achieved, theCongressman could make use of his functions for the benefit of the paramilitary project.The way in which the Court argued this opinion in the text of the sentence helped four magistratesto sketch out in their vote a new thesis that holds that the Congressmen not only were members ofthe paramilitary but they were also part of the paramilitary leadership. For these magistrates, thefact that one of the purposes of the paramilitary groups was to co-opt local, regional, and nationalinstitutions shows that those who, from those positions, were involved in the paramilitary project,necessarily must have carried out their official functions with the aim of favoring the interests of thegroups they belonged to. According to the magistrates, “this explains the unconditional support ofsome Congress members for the alternative sentences bill that sought a very high degree ofimpunity for the crimes committed by the groups to which they owed loyalty.” 7One of the “essential purposes” of the paramilitary groups, as the magistrates who conditioned theirvote point out, is that of attacking the civilian population, to that end committing all types of humanrights violations. That being the case, all of those who belonged to the paramilitary structure musthave been aware of the serious crimes perpetrated by those groups. However, criminalaccountability varies according to the role of those accused in the commission of the crimes. Thus,the commanders of the paramilitary groups, who gave the orders to commit all sorts of crimes, mustanswer for all the crimes committed by the structure they led, even if they did not commit themdirectly, since it was on the basis of their instructions that the material authors carried them out.How should the Congressmen-paramilitaries answer?6 Penal Cassation Chamber of the Supreme Court of Justice. September 1, 2009, File n. ° 31653, p. 52.7 Penal Cassation Chamber of the Supreme Court of Justice, September 16 2009, File n. ° 29.640, p. 34. 3
According to the vote, Congress members such as Ricardo Elcure were part of the “supremecommand” of the organization, “which designed, planned, structured, generated, and promoted theactions that were to be developed by that criminal enterprise in order to consolidate its progressand to obtain more returns within the plan designed,” 8 given the power and influence and theposition they enjoyed within the established political parties, even if they were not recognized asparamilitaries.Thus, according to these magistrates, the members of Congress were part of a paramilitary structuremade up of a plural number of persons “articulated in a hierarchical and subordinate way to acriminal organization, who, through a division of responsibilities and a concurrence ofcontributions (which can take the form of sequential and descending orders) carry out punishableacts.” 9 In this observation, it appears that the magistrates are proposing the acceptance of thecriminal theory of “indirect perpetration through command of will in an organized stateapparatus,” by means of which was judged and condemned, among others, the former president ofPeru, Alberto Fujimori.10What this theory sets out, basically, is that in organized crime structures or organized powersystems, those who commit the crimes in a material sense do so following orders given to themfrom the highest level of hierarchy of the organization to which they belong, or they are followingclear policies that exist within the organization and which allow them to infer when, and againstwhom, they must commit a certain type or crime. Thus, those who control the execution of thecrimes are the leaders of the organization; making use of the power they hold and of theorganization under their command, they can commit crimes without carrying them out directly. Bymeans of this theory, then, the purpose is to hold accountable, with a high level of recrimination, allthose who are in charge of “organized power systems” and whose responsibility is often madeinvisible, when not concealed, because they are not the direct perpetrators of the crimes even thoughthey are responsible for them.On the basis of these ideas, what is set out in the vote is that the Congress members, because theywere part of the paramilitary structure at its highest levels, must be held accountable – just like theparamilitary commanders – for the crimes against humanity perpetrated by such groups.The importance of these decisionsThere are in Colombian society at least two myths regarding paramilitarism. One is that the creationof these groups originated in the association of small farmers acting in self defense against theharassment of the guerrillas and in the context of the absence of the State. The other, which followsfrom the first myth, is that the paramilitaries or “self-defense groups” are nothing more than anarmy; as a result, society easily identifies this phenomenon with recognized paramilitaries who haveno problem acknowledging that they are part of such groups. This is the case of the three Castañobrothers, of Salvatore Mancuso, and of Rodrigo Tovar Pupo, alias “Jorge 40,” among many others.Valuable efforts have been made in recent times to demystify such beliefs and to revealparamilitarism in its essence. The first myth has already been debunked, at least judicially, before8 Penal Cassation Chamber of the Supreme Court of Justice. September 16 2009, File n. ° 29.640, p. 35.9 Penal Cassation Chamber of the Supreme Court of Justice. September 16 2009 File n. ° 29.640, p. 36.10 See in this respect, Supreme Court of Justice of the Republic of Peru, Special Penal Chamber, EXP.AV.19-2001, PartIII, Chapter II. 4
international tribunals for the protection of human rights, which have proved that the paramilitarygroups were created legally by the Colombian State, which decided, against the basic principles ofhumanitarian law, that the best strategy to combat subversion was to arm civilians and turn theminto its allies to attack, not the guerrilla combatants but those considered the social base of theguerilla: the civilian population. There is sufficient material to demonstrate the legal underpinningsof these groups under different names: “autodefensas”, “convivir”, “red de informantes”, etc.Likewise, there have been numerous sentences against members of the State security forces for theirlinks to paramilitary groups. All this disproves the assertion that the paramilitaries arosespontaneously because of State neglect. What occurred is precisely the opposite. 11Regarding the second myth, the Penal Chamber of the Supreme Court of Justice has made valuablecontributions, such as the two decisions analyzed in this bulletin, which aim to demystify the beliefthat the paramilitary groups are just a handful of armed persons. Investigations surrounding the so-called “parapolitics” have taken decisive steps to demonstrate that paramilitarism is a complexstructure that includes among its members not only recognized paramilitaries but also other personswho, from their positions of power in the military, entrepreneurial or political sectors, have beenpart of these groups, contributing in various ways to strengthening their structure and to theachievement of these groups‟ goals.This assertion might seem rather “commonplace” since, for many years, victims and socialorganizations have not ceased repeating it. However, the value of the two sentences mentioned inthis bulletin is precisely that they aim, from a judicial setting, to fill those assertions with content inorder to reveal the truth about what paramilitarism really is, thus erasing from the social imaginarythe belief that the Congress members who are being investigated for their links to paramilitarygroups are simply corrupt politicians like so many others in Colombia, who only received financialor other support in order to be elected. The two sentences, one in its text and the other in its vote,characterize that support and show how serious it is; and they are emphatic in highlighting that themembers of Congress being investigated by the Court were not simple beneficiaries of a concretetype of support, but that they became involved with these paramilitary groups fully aware of theirmodus operandi, believing that, once they were in public office, they would be more functional tothe paramilitary project to which they belong and which they helped build.But justice has gone even further and now seeks to show that the paramilitaries are not guilty justbecause they belong to that structure (aggravated conspiracy to commit a crime); additionally, theybelonged to the paramilitary leadership and, therefore, they should be accountable for other crimes(crimes against humanity). It is naïve, to say the least, to think that Carlos Castaño and a few otherparamilitary bosses are the only ones who are part of the highest echelons of the paramilitaryhierarchy. What the latest pronouncements by the SCJ reveal is that there are other responsibilitiesthat must be unraveled in order to get to the truth. Although there is still a long way to go beforesociety becomes aware of the fact that the image that has been forced upon us during so many yearsabout paramilitarism is a lie, these sentences go in the right direction, aiming at reconstructing akind of truth that reflects reality and brings about the rejection of paramilitarism by understanding it11 See in this regard Inter-American Human Rights Court. Caso de la masacre de 19 comerciantes vs. Colombia, (Case ofthe massacre of 19 tradesmen vs. Colombia) Sentence of July 5 2004, serie C N° 109; Caso de la masacre de Mapiripánvs. Colombia (Case of the massacre of Mapiripán vs. Colombia), Sentence of September 15 2005, serie C N°134; Caso dela masacre de Pueblo Bello vs. Colombia (Case of the massacre of Pueblo Bello vs. Colombia) sentence of January 312006, serie C N° 140; Caso de las masacres de Ituango vs. Colombia (Case of the massacres of Ituango vs. Colombia)Sentence of July 1 2006, serie C N° 149; Caso de la masacre de La Rochela vs. Colombia (Case of the massacre of LaRochela vs. Colombia) serie C N° 163. 5
in all its dimensions, so that these deeds will not be repeated and the existence of these groups willnever be justified again, with any excuse, under any circumstances.All these important pronouncements become even more important at the present political moment,in which 80 members of Congress are being investigated for their presumed links with paramilitarygroups, all of them members of the coalition now in government. Additionally, the GeneralProsecutor‟s Office has just reopened the investigation against the Vice-President of the Republic,Francisco Santos, for his presumed links with paramilitary groups with the purpose of creating aparamilitary group in the city of Bogotá.12 The challenge is determining what degree ofresponsibility so many public officials, and of such high rank, as well as the government itself, bear.Considering the evidence of facts and proof, the government will have to give answers toColombian society on these matters. It is vital then that the essence of paramilitarism be revealed –not only for the sake of justice and truth but also for the sake of democracy at a moment when itseems to be crumbling.Bogotá, October 22, 2009For further information please contact Gustavo Gallón Giraldo, Director CCJ (Tel. 57-1 376 8200, ext.115).12 El Tiempo daily newspaper on-line, “Reabren investigación preliminar contra el vicepresidente Francisco Santos por„parapolítica” (Preliminary investigation against Vice-President Francisco Santos for parapolitics reopened), October 19,2009. 6