“Parapolitics” revealed?

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 BOGOTÁ

Bulletin 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 of
paramilitarism in Colombia. Proof of this are two recent decisions announced by its Penal Chamber
with regard to the investigations that the tribunal is carrying out against members of Congress for
their alleged links with paramilitary groups, in what is known as “parapolitics”- that is, the links
between paramilitary and politicians.

The first of the two, in which the Court assumed control again of the investigations being carried
out against several members of Congress for their links with paramilitary groups, was adopted on
September 1, 2009. In the second one, dated September 16, 2009, the Court revealed - in a vote
subscribed by four magistrates - a new thesis that is taking shape within the Court and which seeks
to show that the Congress members not only are accountable for the crime of conspiracy to commit
a crime, which is the legal figure through which the act of creating paramilitary groups is
investigated and sanctioned in Colombia; they were also members of the paramilitary leadership
and, hence, could be held legally responsible for the crimes against humanity perpetrated by such
groups 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 criminal
investigation was undertaken for their presumed links with paramilitary groups was to give up the
constitutionally guaranteed immunity as members of Congress in order to take away from the
Supreme Court of Justice the competence to investigate them and to transfer it to the General
Prosecutor‟s Office. The reason is that they expected the Prosecutor‟s Office to be more lenient in
the investigation, and that this, in turn, would favor their absolution or reduced sentence if they
were tried and found guilty. Among other reasons, this calculation was based on the fact that
Congress members hold the kind of political power at the local level – and even nationally – that
can sway the impartiality of judicial officials.

Enshrined in the Constitution is a special immunity for Congress members that holds that they are
to be investigated and judged by the Supreme Court Justice for any crimes they might commit.1
This competence subsists even if the Congress members leave office, provided that they are charged
with crimes related to their functions as members of Congress. The SCJ had maintained the
following as part of its jurisprudence for several years: “the Constitution distinguishes two
hypotheses: 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 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
As has been pointed out by the Constitutional Court, this must not be understood as a personal privilege enjoyed by
Congress members but as a legal figure constituted “because of their investiture and with the aim of protecting the
integrity and the autonomy of the Congress of the Republic.” See in this regard, Sentence T-1320 de 2001, M.P.: Alfredo
Beltrán Sierra.

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

Court for any crime; however, if the person has left office, then he or she will be judged by that high
tribunal only if the crime bears relation to his or her functions.” 2

This was the position defended by the SCJ until 2007 when, through a judicial decree dated April
18 of that year, it changed its jurisprudence and added an additional prerequisite in the event that
Congress members should be investigated for crimes related to their function. In this change of
jurisprudence, the Court stated that: “when the capacity as Congress member is lost – it does not
suffice for just any relation between the act attributed and the condition of Congress member to be
established; 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 public
servant only in relation to the functions that have been delegated to him or her through the mandate
of the Constitution or the Law or those related.” 3

The Court understood then, as it itself states, that the fact that the Congress members made deals
with paramilitary groups could not be construed as an act carried out on the grounds of their
function as members of Congress; and thus, in such cases, if the Congressmen relinquished their
position, they would lose their special immunity and could be investigated by the Prosecutor‟s
Office. This, in effect, gave cause for many of them to give up their special immunity so the Court
would 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 their
special immunity. In fact, 47.5% of these public servants gave up their position (38 members of
Congress), while 52.2% stayed in their posts (42 members of Congress). 4

As was pointed out at the beginning of this bulletin, in the new ruling dated September 1, 2009, the
Court reviewed its opinion of 2007 when it ascertained that the Constitution does not envisage that
the crimes for which Congress members can be investigated and are related to their functions could
be 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 the
Court, this implies that the link between the crime with the public function is present when the
former “is carried out as a cause of the public service performed, on the occasion of same, or in the
exercise of functions inherent to their office; that is, that the act originates in the Congressional
activity or is a necessary consequence thereof, or that the exercise of the functions characteristic of
a Congress member constitute a means or a suitable opportunity for the execution of the crime, or it
represents an irregular or abusive exercise of those functions.” 5 Immediately thereafter, the Court
states 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 a

2
Penal Cassation Chamber of the Supreme Court of Justice, June 2, 2004, File n. ° 9.121. Quoted in: Penal Cassation
Chamber 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 Cassation
Chamber 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.” 6

For the Court this becomes relevant in the case of the Colombian Congress members presumably
linked to paramilitary groups since, in those groups, “each one contributes what he has.” In this
sense, what the Congress members did was to put their power as Senators or Representatives at the
service of such groups. For that reason, the Court‟s decision in the specific case that generated the
sentence was to continue the investigation against Representative Édgar Eulises Torres, in spite of
the fact that this Congressman had waived his immunity, since even though he is no longer carrying
out that responsibility, the fact that the crimes for which he is being investigated bear a relation with
his 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 paramilitaries

In a decision in which the Court passed sentence against Congressman Ricardo Elcure Chacón for
his proven links with paramilitary groups in Norte de Santander, the Court sketched out a new
thesis which, if consolidated, could allow that Congress members be held responsible for the crimes
against humanity perpetrated by paramilitary groups. In that sentence the Court found the
Congressman guilty of aggravated conspiracy to commit a crime. However, in the motivation of
the sentence the Court made clear that the role of the Congressman within the paramilitary groups
was not simply to receive funds from them to finance his campaign for the Governorship of Norte
de Santander. On the contrary, after analyzing several pieces of evidence, the Court was able to
ascertain that the paramilitary groups not only supported him financially but that, additionally, they
put at his disposal their entire structure so he would achieve his goal so that, once achieved, the
Congressman 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 magistrates
to sketch out in their vote a new thesis that holds that the Congressmen not only were members of
the paramilitary but they were also part of the paramilitary leadership. For these magistrates, the
fact that one of the purposes of the paramilitary groups was to co-opt local, regional, and national
institutions 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 the
groups they belonged to. According to the magistrates, “this explains the unconditional support of
some Congress members for the alternative sentences bill that sought a very high degree of
impunity for the crimes committed by the groups to which they owed loyalty.” 7

One of the “essential purposes” of the paramilitary groups, as the magistrates who conditioned their
vote point out, is that of attacking the civilian population, to that end committing all types of human
rights violations. That being the case, all of those who belonged to the paramilitary structure must
have been aware of the serious crimes perpetrated by those groups. However, criminal
accountability 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, must
answer for all the crimes committed by the structure they led, even if they did not commit them
directly, 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 “supreme
command” of the organization, “which designed, planned, structured, generated, and promoted the
actions that were to be developed by that criminal enterprise in order to consolidate its progress
and to obtain more returns within the plan designed,” 8 given the power and influence and the
position they enjoyed within the established political parties, even if they were not recognized as
paramilitaries.

Thus, according to these magistrates, the members of Congress were part of a paramilitary structure
made up of a plural number of persons “articulated in a hierarchical and subordinate way to a
criminal organization, who, through a division of responsibilities and a concurrence of
contributions (which can take the form of sequential and descending orders) carry out punishable
acts.” 9 In this observation, it appears that the magistrates are proposing the acceptance of the
criminal theory of “indirect perpetration through command of will in an organized state
apparatus,” by means of which was judged and condemned, among others, the former president of
Peru, Alberto Fujimori.10

What this theory sets out, basically, is that in organized crime structures or organized power
systems, those who commit the crimes in a material sense do so following orders given to them
from the highest level of hierarchy of the organization to which they belong, or they are following
clear policies that exist within the organization and which allow them to infer when, and against
whom, they must commit a certain type or crime. Thus, those who control the execution of the
crimes are the leaders of the organization; making use of the power they hold and of the
organization under their command, they can commit crimes without carrying them out directly. By
means of this theory, then, the purpose is to hold accountable, with a high level of recrimination, all
those who are in charge of “organized power systems” and whose responsibility is often made
invisible, when not concealed, because they are not the direct perpetrators of the crimes even though
they are responsible for them.

On the basis of these ideas, what is set out in the vote is that the Congress members, because they
were part of the paramilitary structure at its highest levels, must be held accountable – just like the
paramilitary commanders – for the crimes against humanity perpetrated by such groups.

The importance of these decisions

There are in Colombian society at least two myths regarding paramilitarism. One is that the creation
of these groups originated in the association of small farmers acting in self defense against the
harassment of the guerrillas and in the context of the absence of the State. The other, which follows
from the first myth, is that the paramilitaries or “self-defense groups” are nothing more than an
army; as a result, society easily identifies this phenomenon with recognized paramilitaries who have
no problem acknowledging that they are part of such groups. This is the case of the three Castaño
brothers, 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 reveal
paramilitarism in its essence. The first myth has already been debunked, at least judicially, before

8
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, Part
III, Chapter II.

4

international tribunals for the protection of human rights, which have proved that the paramilitary
groups were created legally by the Colombian State, which decided, against the basic principles of
humanitarian law, that the best strategy to combat subversion was to arm civilians and turn them
into its allies to attack, not the guerrilla combatants but those considered the social base of the
guerilla: the civilian population. There is sufficient material to demonstrate the legal underpinnings
of 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 their
links to paramilitary groups. All this disproves the assertion that the paramilitaries arose
spontaneously because of State neglect. What occurred is precisely the opposite. 11

Regarding the second myth, the Penal Chamber of the Supreme Court of Justice has made valuable
contributions, such as the two decisions analyzed in this bulletin, which aim to demystify the belief
that 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 complex
structure that includes among its members not only recognized paramilitaries but also other persons
who, from their positions of power in the military, entrepreneurial or political sectors, have been
part of these groups, contributing in various ways to strengthening their structure and to the
achievement of these groups‟ goals.

This assertion might seem rather “commonplace” since, for many years, victims and social
organizations have not ceased repeating it. However, the value of the two sentences mentioned in
this bulletin is precisely that they aim, from a judicial setting, to fill those assertions with content in
order to reveal the truth about what paramilitarism really is, thus erasing from the social imaginary
the belief that the Congress members who are being investigated for their links to paramilitary
groups are simply corrupt politicians like so many others in Colombia, who only received financial
or 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 the
members of Congress being investigated by the Court were not simple beneficiaries of a concrete
type of support, but that they became involved with these paramilitary groups fully aware of their
modus operandi, believing that, once they were in public office, they would be more functional to
the 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 just
because they belong to that structure (aggravated conspiracy to commit a crime); additionally, they
belonged 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 other
paramilitary bosses are the only ones who are part of the highest echelons of the paramilitary
hierarchy. What the latest pronouncements by the SCJ reveal is that there are other responsibilities
that must be unraveled in order to get to the truth. Although there is still a long way to go before
society becomes aware of the fact that the image that has been forced upon us during so many years
about paramilitarism is a lie, these sentences go in the right direction, aiming at reconstructing a
kind of truth that reflects reality and brings about the rejection of paramilitarism by understanding it

11
See in this regard Inter-American Human Rights Court. Caso de la masacre de 19 comerciantes vs. Colombia, (Case of
the massacre of 19 tradesmen vs. Colombia) Sentence of July 5 2004, serie C N° 109; Caso de la masacre de Mapiripán
vs. Colombia (Case of the massacre of Mapiripán vs. Colombia), Sentence of September 15 2005, serie C N°134; Caso de
la masacre de Pueblo Bello vs. Colombia (Case of the massacre of Pueblo Bello vs. Colombia) sentence of January 31
2006, 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 La
Rochela 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 will
never 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 paramilitary
groups, all of them members of the coalition now in government. Additionally, the General
Prosecutor‟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 a
paramilitary group in the city of Bogotá.12 The challenge is determining what degree of
responsibility 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 to
Colombian 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 it
seems to be crumbling.

Bogotá, October 22, 2009

For 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

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