Series on the rights of the victims and the application of Law 975. Bulletin No 32

1. Con el apoyo de:
COMISIÓN COLOMBIANA DE JURISTAS UNIÓN EUROPEA
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
Bulletin No 32: Series on the rights of the victims and the application of Law 975*
Partial charges - or partial rights?
After more than three and a half years since the law of justice and peace, or Law 975 of 2005,
took effect, the majority of the judicial processes of the paramilitaries who had recourse to it have
not yet gone beyond the initial phase, the free version testimony or confession. In the following
phase, that of pressing charges (in which the prosecutor informs the paramilitary that investigations
are being carried out against him for specific acts), only one of the 3,666 paramilitaries proposed by
the government that is, those paramilitaries that would supposedly submit to the procedure has
in fact been through the process. The crimes to be confessed are so many that any timeframe is
insufficient. Under such conditions, the stages of reparation and sentencing, which should follow,
are still a long way off.
Furthermore, of the 3,666 paramilitaries proposed by the government, only 145 have appeared in
court to render free version testimony. This means that 96 percent of them have not even begun
the law of justice and peace process and most probably will never do so. As a way out of this
dismal failure, the government announced that it would propose bringing partial charges that is,
that it would not be necessary to bring to an end the confessions or free version testimonies in
order to go on to the following stages. 1 However, the government never made good on its proposal.
Paradoxically, it ended up being authorized through a decision by the Supreme Court of Justice.
On July 23, 2008, the Criminal Cassation Chamber of the Supreme Court of Justice considered that
partial charges do not violate the rights of the victims and that, on the contrary, they are a good way
to protect them since, it its judgment, the victims would see results much sooner in terms of
reparation and an end to the legal processes. 2 Likewise, the Court considered that, even if the free
version hearings have come to a close, if the candidate states that he/she has more acts to confess
(as it happened in the case that gave rise to this jurisprudence), he/she should be given the
opportunity to return to free version hearings to confess the facts that he/she left out during the
first stage of the process and, simultaneously, to continue being charged for the acts already
confessed. According to the Court, such a procedure would ensure, on the one hand, that the victims
of the crimes already confessed would not have to wait until the entire free version phase is over.
And, on the other, it would also guarantee that the victims of the acts not initially confessed are
given the opportunity for crimes against them to come to light, thus giving priority to the victims
right to the truth. 3
However, with this theory the Court acting in very good faith could be violating the rights of the
victims. Furthermore, the Court seems to be disregarding the nature of the special process
*
The present publication has been prepared with the support of the European Union 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.
1
See in this regard, El Tiempo daily newspaper, Gobierno propondrá juicios colectivos a paras desmovilizados
procesados en Justicia y Paz [ Government will propose collective trials of demobilized paras tried under Justice and
Peace Law], January 31, 2008, on-line version; El Tiempo, Que se disuelvan los partidos uribistas [Uribista parties
should disband], May 4, 2008, p. 1-3.
2
Supreme Court of Justice, Criminal Cassation Chamber, second instance 30120, M.P. Alfredo Gómez Quintero, July 23,
2008.
3
Ibíd., p. 32.
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. contemplated in Law 975, whose purpose is to judge those who have committed crimes against
humanity. There are at least three reasons for stating this:
i. Partial charges do not speed up legal processes
One of the Court s arguments for authorizing partial charges is that these make it possible to speed
up the process for those victims whose crimes have already been confessed. However, this
argument does not seem convincing, or at least feasible. Even if partial charges are brought, at some
point they are going to have to be unified within the process which will in any case generate a
backlog of cases before sentencing. Thus, the victims will have wait for all the stages to be
completed in order to have access to reparation and to see results on their cases.
In order to solve this problem, the Court stated that since partial charges will surely lead to partial
sentences, what in the end would be appropriate would be an accumulation of independent trials or,
lacking that, the accumulation of sentences dictated separately.4 As stated, this will generate chaos
at the end of the process; instead of speeding it up, it will produce a climate of confusion among law
enforcement agencies, legal practitioners, and victims.
In this sense, partial charges can lead to two scenarios: One would be an interpretation that no
partial sentences can be produced; as stated before, this will lead to a backlog of trials at any one of
the stages of the process. Hence, and since there can be only one alternative sentence, at some point
the trials will accumulate and the victims will have to wait until the last processes that began,
parallel to the first, run their course. On the other hand, in order to guarantee an equitable treatment
for all the victims, the backlog should occur at the reparation stage. Otherwise, if the backlog comes
after the reparation stage, the risk exists that there might be no resources left to repair the victims of
the crimes that are confessed last.
The other scenario, which is even worse than the first, is that the charges will generate partial
alternative sentences; thus a paramilitary proposed for the justice and peace law could in the end
have several alternative sentences imposed and be serving some of them while the judge decides on
others resulting from parallel trials. This would not only run counter to the content of Law 975 of
2005 but would also constitute a flagrant violation of the right to justice.
ii. Partial charges denature the principle of a complete and truthful confession
In its sentence C-370 of 2006, the Constitutional Court decided that the free version testimony
foreseen in Law 975 was in accordance with the Constitution, provided that it was complete and
truthful. This implies that in their free version declarations the accused must confess all the
crimes they have committed, or those they have knowledge of; otherwise they will lose the benefits
of the Law. However, the Supreme Court s decision, by allowing the accused who is at the phase
of formulation of charges to request to be heard once again at a free version hearing, opened the
door to the possibility of his claiming fraudulently once the free version phase is over, that he
forgot to confess some crimes and wishes to add them to his confession.
In its above-mentioned ruling of July 23, 2008, the Court expressed that the truth is not affected by
allowing the investigation of acts forgotten by the demobilized, left out for reasons different
4
Ibíd., p. 38.
2

3. from the purpose of willfully omitting them or of hiding the truth. 5 However, there is reason to
question how it will be proved (in order that the accused can go back to the free version phase and
add to his testimony) that the acts forgotten by the accused were not omitted purposefully in order
to hide the truth when the reality and the application of the Law 975 process have demonstrated the
opposite.
iii. Partial charges run counter to the spirit of Law 975 and have no legal grounds
Law 975 of 2005 has as mandate to judge those who have committed crimes against humanity. This
requires, from judicial authorities as well as from those who intend to seek the benefits of this law,
that they understand that it is a process that seeks to address crimes committed systematically and
massively, since their systematic and massive nature is one of the essential features of crimes
against humanity. To fraction the process and to allow some acts to be confessed while others are
being the subject of charges, gives these last the character of common crimes, committed in random
fashion, and not of crimes committed in a specific context of systematicity and massiveness
which, in order to be brought to light, must be investigated and judged with these characteristics in
mind. Hence, partial charges lead judicial authorities to analyze such cases outside of their context,
as if they bore no connection at all.
Finally, it must be mentioned that Law 975 provides no legal support for partial charges. On the
contrary, the special process the law contemplates, as it stands after the modifications introduced by
Sentence C-370, must be understood as one whole, due to the nature of the crimes it judges and to
the purpose of the process.
A few conclusions
What seems most likely, then, is that this jurisprudence of the Supreme Court of Justice is not
necessarily going to be of benefit to the victims. Perhaps it might give the sensation that the process
is progressing and that, in this sense, Law 975 is already showing some results. However, the delay
in carrying out the free version hearings is due to the structural flaws of the process and to the
mistakes of some of those who are applying it, as well as to the lack of commitment of those who
seek to benefit from it.
Indeed, structural flaws exist that cannot be corrected by applying partial charges. If the idea is
really to speed up the trials, more financial and human resources should be applied in order to
increase substantially the number of investigators and prosecutors to handle the confessions,
investigations, and charges and promote reparations. Additionally, the 16 paramilitary leaders
extradited since May 2008, whose trials are virtually at a stand still since then, should be returned to
the country. The confessions these paramilitaries could make at this juncture are decisive for
bringing the truth to light as the foundation for the satisfaction of the victims other rights.
Neither are partial charges going to solve the problem of the lackluster performance of some of the
prosecutors of the Unit for Justice and Peace, who are not being rigorous in their questioning or in
holding the hearings in order to complete efficiently the first phase of the process without giving
rise to the paramilitaries arguing later that they forgot something. Even less can partial charges
correct the omissions of many of the crimes committed by the accused, many of whom are
5
Ibíd. p. 32.
3

4. spending their time justifying their crimes and denying the commission of hundreds of grievous
offenses.
In spite of the fact that the Court has already set its position in the above mentioned jurisprudence,
shortly it should revisit the implications of partial charges, since it will review two rulings by the
Magistrate for control of guarantees, Álvaro Cerón, in which he refused to press partial charges in
the trials of two paramilitaries under Law 975.6 Perhaps the moment has come for the Court to
modify its jurisprudence once it ascertains that, although partial charges can yield results in certain
concrete cases, this does not mean that the victims and society will be able to learn a truth that
accounts for the crimes committed by paramilitaries, understood within their context. This is why
partial charges will not correct the flaws that affect, since its inception, the law of justice and
peace, but rather they will increase the chances that the rights of the victims, too, will be partial
within the Law 975 procedures. It is now up to the Court to decide.
Bogotá, February 16, 2009
For further information, please contact: Gustavo Gallón Giraldo, Director CCJ (Tel. 571-376 8200, ext.
115).
6
The decisions not to press partial charges in the procedure within the Framework of Law 975 of 2005 were taken by
Magistrate Álvaro Cerón during the hearing for pressing charges requested by Prosecutor 20 of the Justice and Peace Unit
of the General Prosecutor s Office against the accused Parmenio de Jesús García on October 10, 2008; and the hearing for
pressing charges requested by Prosecutor 48 of the Justice and Peace Unit of the General Prosecutor s Office against the
accused Freddy Rendón Herrera, alias el Alemán, on January 14, 2009.
4