On August 29, 2006, the Colombian government issued Decree 2898 of 2006, which regulates the affirmation that must be undertaken by the members of paramilitary groups in order to benefit from Law 975 of 2005, also known as the Justice and Peace Law. The Colombian government did the same through two proposed decrees (one which would regulate Law 975 and the other which would regulate Law 782 of 2002 -or public policy), which were presented to the general public through a consultation mechanism that consisted in sending commentaries by way of email before September 3, 2006.
The Legal Regulations announced by the Colombian Government
for Laws 782 of 2002 and 975 of 2005
Openly Ignore the National Constitution and International Human Rights Standards
José Alvear Restrepo Lawyer’s Collective (CCAJAR)
International Federation for Human Rights (FIDH)
Bogotá, Colombia – Paris, France
September 6, 2006
On August 29, 2006, the Colombian government issued Decree 2898 of 2006, which regulates the affirmation that must be undertaken by the members of paramilitary groups in order to benefit from Law 975 of 2005, also known as the Justice and Peace Law. The Colombian government did the same through two proposed decrees (one which would regulate Law 975 and the other which would regulate Law 782 of 2002 -or public policy), which were presented to the general public through a consultation mechanism that consisted in sending commentaries by way of email before September 3, 2006.
The International Federation for Human Rights (FIDH) and the José Alvear Restrepo Lawyer’s Collective (Corporación Colectivo de Abogados José Alvear Restrepo – CCAJAR) consider that this consultation mechanism openly ignores the constitutional principles concerning participatory democracy and equality, as well as the civil participation mechanisms clearly established in the national constitution, for its object was not to have society participate in an issue of such high relevance (as is the granting of legal benefits to persons accused of crimes against humanity and war crimes), rather, through an exclusive and extra-legal procedure, to legitimize a regulatory scheme that mocks the rule of law.
As a part of the proposed regulatory decree for Law 782 of 2002, the Colombian government revives the condition of political delinquents for paramilitary groups, which was declared unconstitutional due to procedural defect by the Constitutional Court. This violated the constitutional principle of legal reserve, according to which only the national congress may legislate criminal code (not the executive branch). This proposed decree explicitly reforms Articles 467 and 468 from Colombian criminal code, for it creates a new de facto situation object of penalization under the penal classifications of rebellion or sedition.
The proposed regulatory decree for Law 975 of 2005 includes multiple provisions that ignore Constitutional Court rulings C-370 and C-575 of 2006, in which several articles from this law were declared unconstitutional and other articles conditionally constitutional. The Constitutional Court also declared unconstitutional the legal provision that allows members of paramilitary groups tried under Law 975 to reduce the duration -no greater than 18 months- of their alternative sentencing with the time they spent in the “areas of location.” Nevertheless, paragraph 2 of Article 17 from the proposed decree revives this benefit for the demobilized persons.
Additionally, Article 6 of this proposed decree relativizes the eligibility requirement included in Article 10.6 from Law 975, which, after being declared conditionally constitutional, establishes that the demobilized person responsible for the crimes of kidnapping and the forced disappearance of persons must liberate those persons or confess to their whereabouts. The proposed decree allows this requirement to be fulfilled with only collaborating with the whereabouts and not turning over the victim.
In terms of the requirement according to which armed groups must not have been created to traffic drugs, Article 3 of the proposed decree creates a general presumption according to which all the crimes committed by the demobilized persons with links to the creation of the group, including drug-trafficking, would be treated as a political crime in accordance with the proposed decrees for Law 782. This means that paramilitaries requested for extradition for these acts cannot be the object of this mechanism of international cooperation, for the constitution indicates that no one shall be extradited for political crimes.
The Constitutional Court has also determined that the legal benefits of Law 975 shall be lost if the demobilized person lies in his spontaneous declaration or if his participation was proven in other criminally punishable acts. However, the proposed decree establishes that the commission of new crimes must be judicially proven before finalization of the alternative sentencing and the evidentiary period of the implicated demobilized person. If we bear in mind the duration of the criminal process in general jurisdiction, the possibility of having a conviction before the term expires is highly unlikely, which means in the practice that these benefits will not be lost.
Additionally, the proposed decree determines that the crimes committed must have the condition of gravely affecting the peace process; if it is considered the crimes are not of great importance within this process, they cannot be cause for the loss of the benefits of Law 975. The previously stated ignores that the Constitutional Court specifically stated that the commission of new crimes is direct cause for the loss of these privileges -without dwelling on a hierarchy of these crimes, and much less dividing them into relevant and irrelevant crimes.
Another aspect that has been declared unconstitutional in several pronouncements by the Court was the restriction to assets of illicit origin that Law 975 included for the reparation of the victims, for the victimizers must respond for their actions with the totality of their capital. Against the judicial rulings, over the course of several articles from the proposed decree, the Colombian government determines that the assets that must be relinquished for the indemnities shall be those of illegal origin, which means that the legal assets continue to be part of the capital of the demobilized persons accused or convicted of crimes against humanity and/or war crimes.
Article 8 of the proposed decree also allows members of the paramilitary groups -deprived of their liberty due to the commission of crimes not comprising violations to human rights and international humanitarian law- to receive the judicial benefits of Law 782 of 2002 and Decree 128 of 2003, even when these norms were created to grant privileges to persons that demobilize voluntarily and not for those that have been captured.
In keeping with the minority opinion by Constitutional Court Magistrates Jaime Araujo and Humberto Sierra, the FIDH and CCAJAR insist that Law 975 of 2005 was processed improperly (inasmuch as it should not have been passed as civil law, rather as statutory law) for it reforms the essential content of the victims’ fundamental rights. We also consider that the previously described proposed decrees gravely break the rule of law established in the Colombian constitution, for these decrees ignore the rulings concerning this law issued by the highest constitutional body, which have adjusted some aspects of this law to the national constitution and international standards.
With the imminent passage of these proposed decrees, we consider that the Colombian government increases the likelihood that international bodies of justice -such as the Inter-American Court of Human Rights, the International Criminal Court, and universal jurisdiction in general- claim jurisdiction over cases of human rights violations committed by paramilitary groups, for the application of these decrees will have as a consequence the consolidation of an impunity process created out of the victims’ lack of real access and participation, the impossibility of satisfying the rights of the victims, as well as the legalization of criminal actions by these groups through carrying out apparent trials and convictions that do not keep any proportion to the gravity of the committed acts.
The FIDH and CCAJAR urge for the adoption of regulations that comprehensively respect the decision of the Constitutional Court and that fully guarantee the rights of the victims to truth, justice and comprehensive reparation.