The Supreme Court ruled that victims have no right to fully participate in legal proceedings against paramilitaries under Law 975 of 2005. The ruling means that after a paramilitary accepts charges, victims can only demand reparation for acknowledged crimes and other unacknowledged crimes will have no reparation or established responsibility. This goes against Constitutional Court rulings that said for benefits under Law 975, paramilitaries must make a full confession. The Supreme Court decision will likely lead to widespread impunity for paramilitary crimes against humanity by limiting victim participation and truth.

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
Gobierno de
Canadá
Bulletin No 19: Series on the rights of the victims and the application of Law 975
The Supreme Court turns the victims into silent witnesses at the legal proceedings against
the paramilitaries
This past October 2, the Supreme Court of Justice ruled that the victims have no right to
participate fully in the legal proceedings which, in conformity with Law 975 of 2005, are being
carried out against members of the paramilitaries. According to the Court, the victims can
intervene only after the conclusion of the investigative phase and once the paramilitary has
accepted the charges formulated against him/her by the Prosecutor’s Office.
This ruling is extremely serious because, once the paramilitary has accepted the charges against
him/her, there is no possibility for the victims, in the framework of the process, to demonstrate or
inquire about the participation of the paramilitary in acts that affected them and that have not
been confessed by, or attributed to, the accused. The only thing the victims can do at that point is
to demand reparation for damages caused by the crimes he/she has acknowledged and that the
Prosecutor’s Office has charged him/her with. Unacknowledged crimes are beyond reparation,
and the victims don’t even have the possibility for the facts to be established or that the criminal
responsibility of the criminal is recognized.
The Court’s main argument for arriving at that decision is that, according to the Court, there is no
trial before the formulation of charges by the Prosecutor’s Office, only pre-trial proceedings, and
that the actual trial begins when the paramilitary accepts the charges. The problem is that after
that moment there is no trial either, because the only thing left to discuss then is reparation, and
afterwards the sentence is pronounced without any legal debate on acts not acknowledged by the
paramilitary or not included among the charges formulated against him/her by the Prosecutor. If
the possibility exists for the victims to demand their rights, it is precisely before the charges are
formulated; that is, during the “free version” or confession (which is the phase at which the
majority of the small number of cases being processed under Law 975 are now) and during the
investigation that the Prosecutor’s Office must carry out after that “free version” hearing.
The Supreme Court’s decision is even more serious to the extent that the Court further
established that the “free-version” hearing does not imply an obligation to tell the truth, as
follows:
“The free-version proceedings under Law 975 lack the connotation of testimony by the accused,
after giving up his right to not incriminate himself, in the procedural system under Law 906,
since this last is proceeded by an oath and can be used against him.”
*The European Union supported the first phase of this project, between July and December of 2006, during which this series of
information bulletins was begun and the first twelve numbers published, available on the web page. The present publication has
been prepared under the auspices of the Canadian government, and its content is the sole responsibility of the Colombian
Commission of Jurists. In no way should it be thought to reflect the point of view of the European Union or of the government of
Canada.
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. Through the above statement, the Supreme Court dismisses what was established by the
Constitutional Court in its constitutionality review sentence on Law 975 (Sentence C-370 of
2006), which determined that in order for the free-version hearing to be consistent with the
Constitution, the paramilitary has to make a full and truthful confession, otherwise he/she cannot
benefit from the sentence reduction scheme foreseen in that law.
The Supreme Court resolved also that no questioning or counter-questioning shall be allowed
during the free version hearings, as this would be tantamount to disputing the evidence, which, in
the Court’s opinion, would be possible only during the trial phase. However, as has already been
mentioned, there is no trial phase as such in the proceedings in the framework of Law 975.
Furthermore, the victim is reduced to being “informed” by the Prosecutor’s Office about how the
process is going. But also, the universe of victims that can receive information from the
authorities is restricted. The Court decided to make a distinction between victims who can
demonstrate their condition as direct victims and those who cannot. Only the first group of
victims would receive information on the state of the process being carried out against their direct
aggressor. The only way to demonstrate the status of victim is through the attribution to the
paramilitary by the Prosecutor’s Office of the responsibility for the violation over which a
particular victim demands truth, justice, and reparation – thereby falling into a vicious circle: If
the Prosecutor’s Office does not attribute responsibility for that violation, the victim has no
legitimacy to demonstrate before the Prosecutor or the magistrates that the violation took place,
and therefore there is no way for that violation to be included among the charges formulated by
the Prosecutor’s Office.
Because of this vicious circle and the restrictions established by the Court, thousands of victims
will not be recognized as victims in judicial processes – or, if they are, they will be unable to
participate for fear of retaliation, or because they do not know that a process is taking place, or
simply because impunity favors the paramilitary, who cannot be forced to tell more than he wants
to tell.
Law 975 of 2005 was issued acknowledging that the paramilitaries are responsible for crimes
against humanity and that therefore many of their acts cannot be the object of judicial benefits
such as amnesty or pardon, as their atrocity and barbarity offend the conscience of the whole of
humanity. Thus, the victims of these crimes are all of the members of humanity. Some of them –
the family and direct relatives of those affected by the violations – have the right to a financial
compensation. But all of the victims – that is, all of humanity – have the right to truth and justice
regarding these crimes and also to some elements of reparation (different from financial
compensation), especially those related to the guarantee of non repetition.
In practice, these offenses will be treated as simple crimes because the decision of he Court
disregards the legitimate interest of all of humanity that there should be truth, justice, and
reparation. Public diffusion of the processes regarding the paramilitaries should be guaranteed, in
order that all of humanity, particularly Colombian society, knows what happened and why. On
the contrary, this ruling reduces to a minimum the possibility of access to historical memory
through Law 975 because it implies that only the direct victims and those judicially identified as
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3. such have the right to the truth – and then only to the judicial truth in the face of the time, place,
and circumstance of the crime of which they are victims.
In this way, the possibility is undermined for society in general to reject and overcome
paramilitarism, a condition necessary in order to guarantee that such atrocities will no be repeated
in the future.
The generous benefits and the peculiar procedures foreseen in Law 975 make sense only if the
members of the paramilitary confess all their crimes, including how they committed them, what
were their motives, who were the intellectual authors, who provided financial and other support
and, additionally, if the victims are effectively repaired. This was established clearly by the
Constitutional Court in its fore-mentioned Sentence C-370 of 2006.
If the decision just taken by the Supreme Court is implemented in full, only in very few cases will
a member of he paramilitary be condemned for acts different from those for which he/she was
already being investigated by the Prosecutor’s Office before the process under Law 975 began, or
for the convictions also already imposed before the beginning of the trials regulated by Law 975.
The active, broad-based participation of the victims is required in order to reduce the levels of
impunity in cases of human rights violations, so that the process is of benefit, and not in
detriment, to Colombian society.
Unfortunately, this decision was adopted when it seemed that the Supreme Court of Justice was
determined to guarantee the rights of the victims. During the last two years, the Court had taken
a historical role in the defense of such rights, and there was hope that judicial decisions could
correct the grave irregularities being committed by the General Prosecutor’s Office and the
government (through decrees that run counter to the previously mentioned Supreme Court
sentence) in the legal proceedings under Law 975 of 2005. For example, an order was given for
the participation of the magistrate with function of controlling the fulfillment of rights beginning
with the free-version stage of the process so a legal authority could be present that would help
correct the irregularities that come up at such hearings. That decision implied hat the legal steps
prior to the acknowledgment by the paramilitary of the charges against him/her were not simply a
“pre-trial” action and that the rights of the victims had to be fully guaranteed.
With the decision made on October 2, 2007, the Supreme Court has taken a fatal turn which, if
not corrected by the Constitutional Court or by international human rights protection
mechanisms, will represent a failure to recognize the rights of thousands of victims (the
Prosecutor’s Office mentions more than a hundred thousand victims who have requested that they
be recognized as such); will signify rampant impunity in crimes against humanity committed by
members of he paramilitary with the support or tolerance of the Colombian State; and will
increase the uncertainty about the possibility of peace and civilized coexistence in the country.1
For more information, please contact Gustavo Gallón-Giraldo, Director of the CCJ, at Tel. (571) 376 8200, Ext. 115.
1
The ruling of the Supreme Court of Justice took place on October 2 2007 as a response to an appeal requesting
nullity of acts in the process of the paramilitary Wilson Salazar Carrascal, alias “El Loro” (“The Parrot”). Supreme
Court of Justice, Chamber of Criminal Cassation, Dossier 27.484.
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4. Bogotá, October 9, 2007
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