Series on the rights of the victims and the application of Law 975. Bulletin No 1

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. 1: Series on the Application of Law 975 and the Struggle Against Impunity
The Colombian Government Wants to Circumvent the
Constitutional Court’s Ruling on the “Peace and Justice” Law
The Colombian Commission of Jurists (CCJ) alerts that the national government is
attempting to evade compliance with the Constitutional Court’s ruling (C-370 of
2006) through the eventual adoption of regulatory draft decrees related to Law 975
of 2005 and Law 782 of 2000.
The government presented two draft decrees and established an online consultation
mechanism during a five-day period. Through this mechanism, it pretends to validate a
decision that has already been made.
These draft executive decrees improperly modify several of the articles of Law 975;
introduce changes to the criminal procedure; give orders to prosecutors and
judges; and regulate the content of fundamental rights. The draft decrees reveal
an infringement by the Executive power into other branches of power, thus
violating the basic principle of the Separation of Powers. The content of the draft
decrees is manifestly contrary to the principles of the Rule of Law.
Lack of Compliance with the Constitutional Court’s Ruling (C-370)
Through a flawed interpretation of the criminal law principle regarding the application of the
most favorable law to a defendant in a criminal action (related to the doctrine of ex post
facto prohibition), the government wants to avoid compliance with the Constitutional Court
ruling.
The application of the most favorable law cannot be applied in this situation given that Law
975 is placed into effect only after the governmental issuance of a list of persons that can
benefit from its application. This list was presented August 15, 2006 by the government
after the Constitutional Court ruling on May 18, 2006. The judicial decision was already in
place and offered proper notice.
Nonetheless, the Executive branch, through the draft decrees, pretends, for example, that
the time spent by the paramilitaries in the concentration zone in Santa Fe de Ralito, during
the negotiation process, be recognized as part of a criminal sentence, to date, inexistent,
ignoring that the high court deemed that the relevant legal norm (article 31 of Law 975)
was unconstitutional. The proposed draft decree blatantly disregards the Constitutional
Court ruling. The government mistakenly argues that the persons that spent time in the
concentration zone were already beneficiaries of the law, ignoring that the application of
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. Law 975 is explicitly conditioned by the prior presentation of the Executive’s list to the
prosecutors.
New Obstacles for the Victims; More Benefits for the Perpetrators
The Court’s ruling (C-370) determined that the demobilized paramilitaries that did not fully
confess their crimes would lose the benefit of the alternative sentence. According to the
Court, the loss of the benefit would result exclusively as a result of another criminal
sentence demonstrating criminal responsibility for a non-confessed crime.
One of the draft decrees attempts to limit the losses of the demobilized members by
unduly burdening the victims with the obligation of coming forward and denouncing all
criminal conducts that should be confessed by the perpetrator during the criminal process
pursuant to Law 975. The draft decree, presumably regulating the rights of victims (a
subject matter that should be determined by law and not an executive decree), pretends to
establish the duty on victims to denounce all violations by announcing that the person that
opts to remain silent could incur in criminal conduct established in the Colombian criminal
code, namely: omission to denounce criminal activity and concealment of criminal activity.
This fabricated duty not only shifts the responsibility of truth-seeking to the victims, but
also threatens victims with a maximum 18 year sentence, while the perpetrators could get
away with as little as 5 years.
Additionally, according to the draft decree, the victims that do not participate in the criminal
processes would be obliged to assume the implications of the rulings made in their
absence, even if their rights are not properly respected or they lacked security guarantees
to participate in a particular process.
Regarding the right to receive compensation, the draft decree, in addition, protects the
perpetrator’s resources, limiting the possibility to seize their legally-obtained assets to an
exceptional recourse. The draft decree treats the perpetrators of atrocities as “good ole-
gents” that lack material resources and limits their losses to illicitly-acquired goods.
One of the draft decrees restates an article from a previous decree (Decree 4760 issued
last December) that represents a de facto amnesty for all property “frontmen” (testaferros)
of the demobilized paramilitaries. Invoking prosecutorial discretion, the criminal
investigation against laundering and racketeering networks would not be conducted.
Prosecutorial discretion was introduced into the Colombian criminal justice system through
a 2002 constitutional reform and was conceived as a mechanism to reduce institutional
pressure in relation to petty crime; this is clearly not the case of laundering and
racketeering practices. In any case, the extent and limits of prosecutorial discretion need
to be established by law and not by executive decrees.
The draft decree also pretends to formalize the detention of paramilitary members in
detention facilities that do not comply with existing standards for criminal punishment, such
as the use of agricultural colonies or penal farms. The draft regulations on this subject are
contrary to Law 975 and the Constitutional Court’s ruling, which establish that detention
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3. conditions need to be in accordance with regularly applied standards and not afford
special privileges to the beneficiaries of the law.
In summary, the draft decrees are extremely lax with the perpetrators and impose
excessive obstacles for the exercise of victims’ rights.
Paramilitarism is Reinstituted as a Political Crime
The draft decree that regulates Law 782 reinstitutes the article that was declared
unconstitutional by the Court (C-370), which was designed to consider paramilitarism as a
political crime. The draft decree is manifestly non-compliant with the judicial decision.
The government has reached the extreme of pretending to redefine a criminal offense via
an executive decree, ignoring that this power is strictly limited to Congress.
Executive Assaults Congressional Power
The draft decrees contain subject matter that should be defined by Congress through the
adoption of laws, and not by Executive decrees. If the draft decrees were to be adopted,
we would be facing a new “Peace and Justice Law” that would be different than the one
adopted by Congress and would ignore the ruling of the Constitutional Court. The
government is constitutionally forbidden to issue such a regulatory framework.
Notwithstanding the request made by the Inter-American Commission on Human Rights to
conduct a transparent discussion regarding the search for truth, justice and reparation, the
Colombian government – through the online consultation of the draft decrees – is
pretending to endorse a decision that has already been made. The mechanism lacks
transparency and is undemocratic; it only seeks to favor impunity.
Bogotá, August 30, 2006
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