The document summarizes concerns about draft regulatory decrees related to Laws 975 and 782, which deal with demobilization of paramilitaries. Specifically: 1) One draft decree threatens victims with up to 18 years imprisonment for "failing to denounce" crimes committed by paramilitaries, while paramilitaries face only 3.5 years under Law 975. This punishes victims more harshly than perpetrators. 2) The decrees address matters that should be determined by law, not decree, and ignore a prior Constitutional Court decision. The process of issuing them by decree is arbitrary and violates principles of separation of powers. 3) The decrees fail to guarantee victims' rights

1. Con el apoyo de:
COMISIÓN COLOMBIANA DE JURISTAS
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) UNIÓN EUROPEA
PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁ
Press release
Bulletin No. 2: Series on the Application of Law 975 and the Struggle Against Impunity
GOVERNMENT THREATENS IMPRISONMENT FOR UP TO 18 YEARS FOR
VICTIMS WHO DO NOT SUPPORT THE IMPUNITY OF PARAMILITARIES.
GOVERNMENT THREATENS IMPRISONMENT FOR UP TO 18 YEARS FOR
VICTIMS WHO DO NOT SUPPORT THE IMPUNITY OF PARAMILITARIES.
Draft regulatory decrees for Law 975/2005 and Law 782/2002, published by the
Government recently, attempt to sidestep a decision of the Constitutional Court, reform
Law 975, and regulate matters which are the exclusive province of the law. The definition
of these matters will be achieved by an arbitrary, antidemocratic and somewhat opaque
procedure.
1. One of the draft decrees threatens victims with imprisonment for crimes of
"favouring" and "failing to denounce", along with anyone who, in the course of the
special procedure ordered by Law 975 , fails to denounce crimes which the
paramilitaries should confess in order to have access to the benefits of alternative
sanction. While the criminal is subject to Law 975 and may face sentences of only 3-1/2
years in prison1, the victims may be liable for up to 18 years, supposedly for having
favoured the crimes of their aggressors by their silence. So everything is upside down. The
government now not only tries to leave those guilty of serious violations of human rights
unpunished, but also to pursue and imprison the victims who oppose this, with drastically
long sentences.
Paragraph 2 Article 21 of the draft decree, apparently regulating the rights of the victims in
criminal cases -a matter which is the exclusive province of the law, and not of a decree- sets
out the duty of the victims involved in such cases to denounce any crimes of which they
may have knowledge, on pain of being considered to be committing an offense themselves
by failing to make a denunciation, and favouring the criminal.
Article 441 of the Colombian Criminal Code, cited in the draft decree, introduces
imprisonment of 2-1/2 to 7-1/2 years imprisonment for failure to denounce serious crimes,
of which the victims have been the object, such as genocide, forced displacement, torture,
forced disappearance, homicide, kidnap, and others. The other crime mentioned in Article
1
Law 975 sets a minimum of 5 years, but this is then reduced by 18 months since the draft decree will count
the time spent in the “concentration zones” as an effective part of the sentence. This point is openly counter to
Decision C-370 of May 18, 2006m, and is discussed in greater detail later
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2. 21.2 is that of "favouring", which sanctions anyone who, having knowledge of the
commission of a punishable act, and although he has not contributed to its planning, or
assists in eluding the actions of the authorities or hampering the related investigation. This
conduct, in the case of serious crimes, carries a sentence of a minimum of five years and
four months, and up to 18 years.
Further, this rule would impose an additional requirement for the loss of the benefits of
failure to make a full and truthful confession of crime, and this consists of the fact that the
victims must denounce those crimes during the proceedings ordered by Law 975. So, the
duty to contribute to the clarification of the truth is inverted - which should be for account
of those who wish to have access to such generous benefits under the criminal law for such
serious crimes. Also, the decree ignores the fact that the duty to investigate and judge those
responsible for such serious crimes is an obligation of the State which cannot be
conditioned by a duty of a victim to denounce them2. Instead of dragging in the
criminalisation of a failure to denounce, appropriate measures should be adopted to protect
the victims and witnesses, as was recommended by the Inter American Commission on
Human Rights in its recent pronouncement on the subject 3. All of this also ignores the
observations of the Commission, which had placed emphasis on the fact that the
Commission had established the loss of the benefits in cases in which a confession was not
full or truthful, and that in addition, it had underscored the fact that "the confession by the
accused does not relieve the authorities of their duty to make a diligent investigation of the
facts". It also ignores the fact that the Commission had recognised the parameters of the
decision "designed to protect the participation of the victims in the proceedings".
2. But the content of these draft decrees is not the only act of barbarity. Another one
is the way in which it is intended that these decisions should be adopted. It is not possible
to regulate matters within that competency of the legislature by decree: they are matters
which should be the object of laws, issued by Congress. This gave rise to a long debate,
which began with the discussion of a number of drafts in 2003, and ended with the approval
of Law 975 in July, 2005. Subsequently, the law was subjected to Constitutional review in
a process which took a further 10 months - until May this year. Now, the government
wishes to ignore that discussion, reform the law, and neutralise the decision of the
Constitutional Court by the issue of two new decrees, with a virtual debate which has taken
five days.
Since the decrees cannot repeal a decision of the Court, or indeed a law, the government is
not competent to issue them. Therefore, the procedure proposed by the government is
2
There is abundant jurisperudence from the Interamerican Court of Human Rights. To cite cases from
Colombia alone, there is the decision of substance on the Palmeras Case and the decisions on the 19
Merchants, Pueblo Bello and Ituango.
3
Pronouncement of the Inter American Commission on Human Rights on the application and scope of the
Law of Justice and Peace in Colombia. Doc OEA/Ser/L/V/II.125, August 1, 2006 paragraph 54
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3. arbitrary, because it uses powers which the Constitution has assigned to the legislature and
the judiciary. Therefore the procedure should be rejected outright, since it is
unconstitutional, and counter to the principles of the separation of powers, the State of law,
and democracy, these being principles which are also recognised in the Interamerican
Democratic Charter.
In addition, the draft decree revives provisions which had been declared unconstitutional,
by regulating matters proper to the powers of the legislature - by virtue of their procedural
and substantive criminal content - and by regulating at the same time matters related to the
rights of the victims within related criminal cases involving those demobilised. So, it is not
only invading the territory of the legislature, and ignoring the principles of the Rule of Law
- which reserves all criminal matters for laws rather than decrees - but it is also nullifying
the guarantees of protection which Constitution and international human-rights law
recognise for the victims of armed conflict.
Article 8 of the American Convention on Human Rights ("the Convention") says, with
regard to judicial guarantees, that "any person has the right to be heard, with due
guarantees and within a reasonable time by a competent, independent and impartial judge
or tribunal, previously established by law, in the imputation of any criminal accusation
made against him, or for the determination of his rights and obligations of a civil,
employment, fiscal or other nature". (Our emphasis). Therefore, the decrees contain
matters that correspond to the substantiation of criminal charges made against those
demobilized, and for the determination of their rights, and, particularly, their obligations to
the victims in the context of the protection of the rights to peace, justice and reparations,
which cannot be adopted by simple presidential decree. Some examples of these matters
are, amongst many others, the following: (i) the reception of a free statement and
confession, (ii) the establishment of conditions of access to benefits, (iii) the terms for
indictment, (iv) regulations regarding the surrender of unlawful goods (Article 7.1 and
Article 22); (v) accumulation of sentences (Article 14), (vi) the absence of validity of a
confession made during a criminal process for other legal actions (Article 16), (vii) the
restoration of the benefit of deduction of the time elapsed in concentration zone from the
sentence of imprisonment, contained in Article 31 of the law, declared unconstitutional
(Article 17), (viii) the establishment of mandatory terms for the victims to denounce crimes
committed by organized outlawed armed groups (Article 21, paragraph), and (ix) the
specifications of activities which the prosecutor and the procurator should undertake.
3. Further, the decree evades the obligations of the State to guarantee integral
reparations to the victims. Based on the right to reparations recognised by the
Constitution, and in concordance with international human-rights norms, which also
recognise this, the Court declared provisions which made that right inoperative to be
unconstitutional: but under the decree proposed by the government, these norms would now
be revived. The Constitutional Court said in its sentence about Law 975:
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4. “6.2.4.1.12. First, at least in principle, there does not seem to be a sufficient Constitutional
reason why, in the face of processes of mass violence, the general principle should cease to
apply, that is, that the person who causes the damage should repair it. On the contrary, as
the Court has already explained, the law, doctrine and national and international
jurisprudence have considered that economic reparations for account of the assets of the
perpetrator is one of the necessary conditions to guarantee the rights of victims and to
promote the struggle against impunity. Only where the State itself is responsible (by action
or omission) or where the assets of those responsible are not sufficient to pay the cost of
massive reparations, will the State come to assume a subsidiary responsibility which this
implies. And this distribution of responsibilities should not seem to vary in processes of
transitional justice along the road to peace".
."6.2.4.1.15. Finally, we should not forget that at all events reparations cannot be
absolutely subject to the political will of those who define the rules for assumptions, since it
is a right of the victims which should be satisfied, especially in processes which pursue
peace and reconciliation. Therefore, it is reasonable that the reduction of penalties which
the law establishes should be accompanied by the adoption of other measures which, such
as the payment of damage is and the restoration of assets, may be a just and appropriate
framework to achieve the purpose pursued, sustainably.”4
With these considerations, the Court established that precautionary measures should be
taken against lawful assets in the course of a criminal case; that when the assets of the
person responsible for the crimes were not sufficient, recourse would be taken to pursue the
assets of the members of the armed group; and, in the final instance, to the State.
Otherwise, an indemnity that implies reparations to the victims would be conditioned to
circumstances which would, in the last resort, make it innocuous.
However, the draft decree states that precautionary measures would be taken against
unlawful assets only (Article 24 of the draft); and on the contrary, it establishes that their
lawful assets would only be pursued when the unlawful assets were insufficient to satisfy
the reparations ordered by a court, that is, in judgment at the end of judicial proceedings
(Article 29 of the draft). This provision would give the criminal time to make his own
assets disappear, and to be insolvent at the moment at which the tribunal might try to attach
his assets to respond for the economic damage he has caused. Finally, the decree gives
pride of place to symbolic reparations, in order to evade the economic impact, instead of
providing the resources needed to make it effective (Article 26 of the draft).
4. Further, and ignoring the decision of the Constitutional Court, one of the draft
allows the time spent in concentration zones to be validated as part of the sentence.
The Constitutional Court declared that the benefit of the alternative sentence (5-8 years)
4
Constitutional Court, Decision C-370/2006, reviewing the constitutionality of Law 975/2005
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5. was not disproportionate, despite the gravity of the crimes, always provided that the rights
of the victims to truth, justice and reparations were satisfied. Necessarily, the benefit is
proportional to the desire for peace, only if it does not even more the rights of victims.
Otherwise, it would be tantamount to accepting that peace is a sufficient reason to justify
any measure, including the impairment of fundamental rights. The Court rejected this
hypothesis, and said that it would be inadmissible in the light of the State's international
human-rights obligations, incorporated into the "block of Constitutional law"5.
In this context, and because it considered this point to be a violation of the right to justice,
the Court declared Article 31 of the law unconstitutional, because it allowed the time spent
in the "concentration zones" to be validated as equivalent to imprisonment. The Court said:
"Generally, the fact that members of the outlawed organised armed groups staying in a
concentration zone during the process of demobilisation is the result of a voluntary
decision of theirs, which argues for the exclusion of any possibility of equating such a
situation with the serving of a sentence of imprisonment, since it dispenses with and
displaces the interventions of the State which characterise the State monopoly on power to
sanction".
However, the draft decree, in Article 17.2., says that "The consequence provided for in
Article 31 of Law 975 /2005 [declared unconstitutional] will operate in events in which
these suppositions of fact provided for in that article had occurred prior to decision C-370
of May 18, 2006, in which it is ordered that retroactive effect is not to be given to decision
is contained in it".
With this provision, the effective punishment would be even further reduced, to 3-1/2 to 6-
1/2 years (deducting 18 months of stay in the "location zones"). So, not only does the draft
in all the decision of the court, but it also goes beyond the reduction authorised by the
Court, and disproportionately affects the duty of the state to establish a sanction which
matches the gravity of the crimes. In effect, the Court indicated the following points, as
grounds for a declaration of unconstitutionality of Article 31:
“6.2.2.3.4.5. Even in the context of an instrument which invokes the materialisation of
peace in this country as its fundamental purpose, the penalty may not be stripped of its
attribute of being a fair and appropriate reaction to criminal conduct, and it may not be
produced to the exclusion of state intervention which the exercise of ius puniendi in a
Constitutional Rule of law. The former would lead to undesirable cases of impunity, even
in the context of any peace-making process, and the latter would lead to a loss of
legitimacy of the State's power to sanction. A resume of sanction which falls into one or
other case would be contrary to the Constitution".
5. The other decree would restore paramilitarism as a political crime. The
5
Consideration 5.9 of Court decision C-370
5

6. pronouncement of the Inter American Commission of Human Rights had emphasised the
declaration of unconstitutionality of the provision which modified the crime of sedition in
order to allow paramilitarism to be considered a political crime. In the draft decree, the
government, on the pretext of interpreting the crime of sedition, tries to revive a provision
which has been declared unconstitutional. This is tantamount to establishing the
specifications of a crime by decree, and this impairs the principle of criminal law
recognised by Article 9 of the Convention. The stealthy manner in which the government
does this, that is, through a series of directives regarding interpretation, is also a violation of
the norms which state that criminal responsibility and the interpretation of the scope of
criminal action is a matter only for the courts (Article 8 of the Convention). In conclusion,
the government not only ignores the decision of the Constitutional Court in this decree, but
also abrogates the competencies of other branches of public power; and further, ignores the
basic principle of the Rule of law, which is the separation of powers.
6. Many of these matters are based on an improper invocation of the principle of
favourability in criminal cases. The application of Law 975 should be made with total
respect for the principle of favourability in criminal cases, recognizing the benefits which
have been introduced for certain persons, for example those benefiting from Article 70,
with reduction of sentences of imprisonment. In such cases, those who have applied for the
benefit have satisfied the definition which the late law gives to those of citizens to whom
the benefits were applicable. The same is not true in the case of those who aspire to the
benefit of alternative sentencing, and do not match the definition which the law gave for
this provision to be applicable to them: the law demands that their names must have been
included in the list which the government should deliver to the Prosecutor General Office.
Therefore, since the list had not been delivered, the requirements for the principle of
favourability in criminal cases had not been met.
With the principle of favourability, nobody may receive a sentence which is heavier than
that applicable at the time the crime was committed. Following the declaration of
unconstitutionality of several of the provisions of Law 975, invoking the principle of
favourability, the intention of the draft decrees is to apply the law in accordance with its
terms prior to the pronouncement of the Court. In this regard, it must be said that in this
case there is no event of favourability, and that to assume the contrary would have serious
repercussions with regard to the commitment of the State to the protection of human rights,
and specifically, in regard to the effective guarantee of the rights of the victims as an
essential condition for the legitimacy of the peace process. The reasons for saying this can
be summarised as follows.
a. If indeed the law in force at July, 25, 2005 was not applicable to the demobilised
paramilitaries, who only became subject to its application, and therefore able to aspire to
receive the benefits, after the inclusion of their names on the list sent by the government to
the Prosecutor General Office. Following the definition of Article 10 of Law 975 with
regard to those who may become eligible for access to the benefits of the law, there is the
6

7. requirement that they be included in the list which the government should send to the
Prosecutor General Office. Therefore, they cannot invoke a law which is not yet applicable
as "the more favourable law".
b. The invocation of favourability with regard to the terms of Law 975 prior to the
pronouncement of the Court is out of order, since the application of the special procedure
provided for in that law requires that the government send the Prosecutor General Office
the list of names of those demobilised who wanted to receive the benefits of the law, in
order for the process to start.
c. Therefore, the benefit of commutation of a sentence of imprisonment - contained in
Article 31, and declared unconstitutional - would be applicable only to those who met the
definition of persons who might qualify for access to the benefits of the law indicated in
Article 10; and one of its constituent elements is the inclusion of their names in the
government's lists.
d. Inclusion in the lists is discretionary, and therefore no one has the right to be on the list.
In effect, the inclusion in the lists is an act of the Executive, by virtue of its political
discretion, in order to implement the peace process.
e. Access to the benefits, in terms of the Constitution and international commitments of the
State for the protection of human rights, must always be conditioned to a priority: the
satisfaction of the rights of the victims. 6
7. The list of concerns discussed here is not exhaustive; there are other provisions in the
draft decree which are matters of great concern, but in particular, the problem is that they
are not to be solved by a change of content, for the reasons already given in this document.
Amongst these other negative aspects for it, for example, there are provisions which allow
all crimes committed by members of armed groups since they joined those groups, to
benefit from alternative sentencing, presuming that they those actions are related to the
actions of a combatant group (Subsection 3.3). This assumption stands in contrast to the
rule which prohibits the presumption of the existence of damage to all members of the
family of the direct victim of a crime, but such that it might be understood that all members
of the family had exactly the same rights - for example presuming that the grandmother has
equal rights to reparations as a brother or sister (Article 26, paragraph). The comparison of
the two norms shows the presumption that the benefits cover all crimes committed by the
criminals, but it is presumed that the victims had not suffered damage.
6
In this, the State should strictly observe the International Covenant on civil and political rights, the
American Convention on Human Rights, the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishments, the Inter American Convention on the Forced Disappearance of
Persons, the Convention for the Prevention and Punishment of the Crime of Genocide, and the Statute of the
International Criminal Court.
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8. The draft decree also reproduces a provision that allows the application of the principle of
opportunity for front-men, that is to say, the discretionary faculty for the Prosecutor
General Service to drop investigations of those crimes, with a blanket de facto amnesty
(Article 22, Paragraph 1).
In conclusion, the damage which would-be produced by the issue of these decrees will be
irreparable and very serious for the materialisation of the victim's rights. Further, there will
also be serious damage to the validity of the Rule of Law, and to democracy. Now it seems
that the fundamental rights of the victims will be regulated by decision of the government
and not by law, and that the government could ignore the supremacy of the Constitution
and the provisions of international human rights laws incorporated into it (Article 93 of the
Constitution), issuing decrees to remove the effects of the decision of the Constitutional
Court which was so important for the right to justice. Further, and following the policy of
creating de facto situations, when the content of such norms could be controlled judicially,
the effects will already have been produced, and the empowerment of the rights of the
victims will have been consummated, giving irrevocable benefits to their aggressors.
Bogota, September 2, 2006.
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