Extradition leaves the victims a long way from truth, justice, and reparation


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Series on the rights of the victims and the application of Law 975. Bulletin No 31

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Extradition leaves the victims a long way from truth, justice, and reparation

  1. 1. COMISIÓN COLOMBIANA DE JURISTAS Con el apoyo de: Organización no gubernamental con status 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 EUROPEA Bulletin No 31: Series on the rights of the victims and the application of Law 975 Extradition leaves the victims a long way from truth, justice, and reparationThis past August 2008, the Magistrate for Guarantee Control, Álvaro Cerón Coral,designated for the trials carried out in the framework of the special proceedings created byLaw 975 of 2005, summoned the paramilitary leader Salvatore Mancuso Gomez to apreliminary hearing in which he sought to charge him with massacres such as the one in ElSalado (Bolívar), for which the ordinary justice system had already charged him as thepresumed perpetrator. Seeking the presence of the extradited paramilitary at the hearing, theMagistrate made contact with the Ministry of Foreign Relations and the Ministry of theInterior and Justice. The representatives of the victims of the cases for which that theMagistrate sought to charge the extradited paramilitaries were also summoned.On September 1 took place the preliminary hearing for attribution of charges againstSalvatore Mancuso Gomez. Present at the hearing were the State prosecutor for the case,an agent of the public ministry, Mancuso‟s lawyer, and representatives of the victims. Atthat moment, the parties to the action found out that the Colombian government had notsummoned the paramilitary leader to appear in court. The national government‟s contemptof court led the Magistrate for Guarantee Control to announce a possible criminal ordisciplinary action by the court, as the government‟s omission constituted disregard of acourt order and undue interference in the administration of justice.The Colombian government had announced that the extraditions would not interfere withthe processes carried out under Law 975 and had committed itself to enter judicialcooperation agreements with United States authorities in order to guarantee it.1 To that end,commitments were announced by both the Colombian and the U.S. governments. Throughan exchange of notes, they agreed that the Colombian authorities charged with processingrequests for legal assistance by judicial authorities are the Prosecutor General‟s Office andthe Ministry of the Interior and Justice, and that the U.S. authority assigned for that samepurpose is the office of the judicial attaché of the Embassy of the United States inColombia, who will convey the Colombian state‟s requests for judicial cooperationregarding the extradited paramilitaries to the Office of International Affairs of theDepartment of Justice in Washington, D.C.As can be observed, the Magistrate for Guarantee Control set in motion the proceedingsordered by the Colombian state in order to carry out the preliminary hearing for theattribution of charges, and the Colombian government ignored the judge‟s request. Some 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 “Gobierno asegura que los „paras‟ extraditados continuarán en Justicia y Paz” (Government assures that theextradited „paras‟ will continue in Justice and Peace), www.elespectador.com, May 13, 2008. 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. days later, at a meeting held by the Colombian Commission of Jurists with members of theEmbassy of the United States in Colombia, the U. S. officials pointed out that the Embassyof the United States in Colombia had no knowledge of the order to appear in court,confirming that the Colombian government never carried out the judge‟s request.The one just described is not the only case of noncompliance by the Colombian state withits obligations in the context of the processes against extradited paramilitaries for crimesagainst humanity. On May 14, 2008, the national government sent a message to the Inter-American Commission for Human Rights stating “that any legal benefit granted in theUnited States would be contingent on cooperation with victims’ rights to truth, justice, andreparation.” There has been no compliance on this commitment either. In the agreementssigned between U.S. authorities and some of the extradited paramilitaries – such as RamiroVanoy, alias “Cuco Vanoy” and Javier Zuluaga Lindo, alias “Gordolindo,” in whose casesthe agreement has been abided by through their guilty sentences; Diego Alberto RuizArroyave, alias “el Primo” and Diego Fernando Murillo Bejarano, alias “Don Berna,” whoare being tried in U.S. courts – the condition was not stipulated regarding the obligation tocontribute effectively to Colombian justice in exchange for sentence reduction.In addition to illustrating the noncompliance mentioned, the case of Ramiro Vanoy helps todemonstrate the consequences of not having investigated and sanctioned the crimes againsthumanity before extraditing the 16 paramilitaries to the United States. On Thursday,October 9, 2008, the on-line version of the daily El Nuevo Herald reported that RamiroVanoy would be the first extradited paramilitary to render his “free-version” testimonyfrom the United States. According to El Nuevo Herald, the proceedings had already beenplanned, but the defense team of the extradited paramilitary expressed its oppositionbecause the paramilitary‟s defense lawyer was denied a visa to attend the hearing. As aresult, the defense team announced that “Cuco Vanoy” would not render testimony as longas his right to defense was not guaranteed.A few hours later that same day, the opposite was announced. Sixty year-old Ramiro Vanoywould no longer participate in the proceedings under Law 975 of 2005. The reason: theU.S. judge had sentenced him to 24 years in jail, far more than what the paramilitary hadexpected. His lawyer argued before the media that Ramiro Vanoy would finish serving hissentence in the United States at the age of 84 and, therefore, he had no incentive to tell thetruth in the process under Law 975 of 2005.That same day the Colombian government reacted. The High Commissioner for Peace, inan interview on the television program “Pregunta Yamid” (“Yamid Asks”) on the CanalUno channel, put forward that the sentence imposed in the framework of criminalproceedings under Law 975 of 2005 (a maximum of eight years) should be deducted fromthe jail sentence in the United States (24 years in the case of Ramiro Vanoy) – that is, if hedecides to continue under Law 975, Ramiro Vanoy, upon leaving United States prison,would not have to serve a single day for the crimes against humanity he committed in 2
  3. 3. Colombia. In the opinion of the High Commissioner this would be the best guarantee andthe greatest incentive for such persons to reveal the truth.The argument used by Commissioner Luis Carlos Restrepo may sound convincing, since itpresents a “solution” to the refusal by alias “Cuco Vanoy” to continue with the process –that is, to his refusal to tell the “truth” about the crimes he committed. However, theCommissioner‟s proposal diverts attention from the true reasons why truth, justice, andreparation, at least in what concerns the crimes committed by that particular paramilitary,risk remaining in indefinite impunity. The true reason is that before being extradited and ifthey continued to commit crimes, the paramilitaries should have lost the benefits of Law975 and should have been judged and condemned by ordinary justice in Colombia withsentences much more severe than those imposed in the United States for drug-relatedcrimes, given the seriousness of their crimes in the country.All of the above was to be expected since, as Prosecutor General Mario Iguaránacknowledged, no concrete cooperation agreements exist between the United States andColombia regarding extradited paramilitaries. This means that there are no guarantees forthe victims in the sense that there no effective mechanisms are available to demand theirrights. That is why, several months after the extradition, none of the extraditedparamilitaries is still being tried by the Colombian authorities in the processes undertakenfor crimes against humanity.But the Commissioner‟s proposal includes other worrisome elements. The cases of RamiroVanoy and Javier Zuluaga Lindo, who were sentenced to more than 20 years, cannot betaken as a parameter of what will happen to all the paramilitaries. It cannot be ruled out thatthe other 16 extradited paramilitaries will be granted shorter sentences or even that thesetwo paramilitaries who have already been sentenced will be granted, with time, additionalbenefits. This is why the Colombian government‟s proposal to deduct the sentence imposedby the Colombian judges from the time to be served in U.S. prisons is very dangerous. Thefact cannot be overlooked that the press reported that it is probable that alias “Don Berna,”in spite of the fact that the pre-agreements stipulate that his sentence will range between 27and 33 years in prison, will be free of all charges of drug trafficking after, at most, eightyears in a U.S. prison.2As an example of this, Carlos Mario Aguilar, alias “Rogelio,” negotiated his surrender tothe United States authorities this past January and is now walking free in U. S. streets.3 Hewas the leader of a group of paid killers at the service of the paramilitaries known as the“Envigado office” and was the right-hand man of the notorious paramilitary boss DiegoFernando Murillo Bejarano, alias “Don Berna.”2 “¿Sólo ocho años de cárcel?” (Only eight years in jail?), Semana Magazine, June 21, 2008.3 “¿Visa a la impunidad?” (A visa to impunity?), Semana Magazine, July 26, 2008. 3
  4. 4. Furthermore, the United States ambassador in Colombia has illustrated his government‟sposition regarding the possibility that the sentences imposed on extradited paramilitaries inhis country will be reduced with the following question: “Do we want maximum sentences,or do we want maximum cooperation in the future?” In the ambassador‟s view, severepunishment inhibits their collaboration in the war against drug trafficking. This thinking isvalid for this U. S. official, since his government is interested essentially in the drug-relatedcrimes affecting his country. But immediate measures must be taken so that this does nothappen in the case of the paramilitary commanders who were recently extradited.The way the Colombian state has handled extradition ignores the existing judicialcooperation agreements such as the Inter-American Convention on Mutual Legal Assistancein Criminal Matters, a treaty that took effect on April 14, 19964 and that allows - but, aboveall, requires - that the criminal trials against the 16 postulants under Law 975 of 2005extradited to the United States not be interrupted, nor the rights of the victims be affected.In the same way, the mandates of international human rights law are blatantly ignored thatseek to prevent that serious crimes against humanity remain unpunished, among them theSet of Principles for the protection and promotion of human rights through action to combatimpunity,5 in particular Principle 19, which stipulates that “States shall undertake prompt,thorough, independent and impartial investigations of violations of human rights andinternational humanitarian law and take appropriate measures in respect of the perpetrators,particularly in the area of criminal justice, by ensuring that those responsible for seriouscrimes under international law are prosecuted, tried and duly punished.”These instruments, which are there for the use of the Colombian government, are beingignored; thus the extradition of the 16 postulants under Law 975 of 2005 to the UnitedStates will prevent that the serious crimes for which they are accountable are properlyinvestigated.The Colombian government‟s noncompliance with the commitments it assumed when itdecided to extradite an important group of paramilitaries in order to “prevent” that theircrimes remain unpunished sets a negative precedent as to the possibilities of the victims todemand justice vis-à-vis the extradited paramilitaries. In order to solve this worryingsituation, the Colombian government must reconsider its decision to extradite moreparamilitaries and concern itself with fulfilling the State‟s obligations imposed byinternational human rights law.4 The Inter-American Convention on Mutual Legal Assistance in Criminal Matters was ratified by the UnitedStates on May 1 2001 and by Colombia on April 12, 2002.5 Approved by the United Nations (UN) Commission on Human Rights, Resolution on Impunity Number2005/81 (through which it makes note of the updated set of principles as guidelines to help the States todevelop effective measures to fight against impunity, recognizes the regional and national application of thePrinciples, and adopts other arrangements to that end). Doc. ONU E/CN.4/RES/2005/81. 4
  5. 5. It is difficult to know what the government‟s intentions are with the massive extraditions ofthe paramilitaries. On the one hand, it can be a way of preventing that the extraditedparamilitaries reveal other acts or alliances that could compromise other sectors of society.Remember that at a hearing of the Supreme Court broadcast from the United States,Salvatore Mancuso said that “if we do not tell the truth, the whole truth, those who aretruly guilty for the conflict are going to single out the guerrilla and the paramilitaries asguilty.” 6 Or, on the other hand, the government might be seeking to favor the paramilitariesso that they become free of sentences and processes in a relatively short time, both for drugtrafficking and for crimes against humanity.The extradited paramilitaries must tell the whole truth about their crimes; they must repairtheir victims, and serve sentences for these crimes in order to receive legal benefits inexchange. The Colombian government and the state in general are obligated to guaranteethe necessary means toward that end. This is what the Constitutional Court ordered in itsSentence C-370 of 2005, which reviewed the constitutionality of law 975 of 2005. Up tothe present, no victim has received reparation for the harm suffered through the crimes ofthe paramilitary groups, and the 16 paramilitaries were extradited precisely because theydid not comply with what Law 975 of 2005 stipulates – that is, they did not tell the truth,there is no justice, and there is no reparation for their crimes.The information obtained about what is happening with the extradited paramilitaries allowsus to interpret the decision to extradite these 16 postulants to Law 975 of 2005 as a formulato exculpate them from criminal responsibility – be it because they are being led away fromthe possibility of continuing to give declarations about their crimes, as it is happening nowwith the sentences imposed, or be it because they are granted generous benefits and in ashort time they are set free to roam the streets of the United States with no debt to justice.According the Article 17 of the Rome Statute, this constitutes cause for the InternationalCriminal Court to decide to file charges in order to rectify the serious consequences of thisextradition for society. Probably only a decision in this sense could point to a different path– one in which, on the basis of respect for the human rights of the victims, the imminentimpunity can be averted and non repetition can be guaranteed for Colombian society.For more information, please contact Gustavo Gallón-Giraldo, Director of the CCJ, at Tel.(571) 376 8200, Ext. 115.Bogotá, October 21, 20086 “Mancuso dice que Auc. influyeron en elección presidencial” (Mancuso says that Auc influencedpresidential election), Semana Magazine, September 25, 2008. 5