Series on the rights of the victims and the application of Law 975. Bulletin No 15

1. COLOMBIAN COMMISSION OF JURISTS Supported by:
Non-governmental Organization with UN Consultative Status
International Commission of Jurists (Geneva) and Andean Commission of Jurists (Lima) Affiliate
LEGAL CORPORATE ENTITY: RESOLUTION 1060, AUGUST 1988 BOGOTA MAYOR’S OFFICE The Canadian
Government
Bulletin No 15: Series on the rights of the victims and the application of Law 975
Overstepping their faculties, the government and the General Prosecutor’s Office are seriously
disregarding the rights of the victims in the legal proceedings under Law 975
The Colombian Commission of Jurists, in its role as legal representative of the victims, has requested that
the General Prosecutor’s Office refrain from enforcing Decree 315 of 2007 and Resolution 3998 of 2006,
both of which were issued overstepping the faculties granted by the Constitution.
Decree 315 of 2007 regulates the participation of the victims in the “spontaneous declaration” hearings,
exacting from them that they prove beforehand the harm suffered, forcing them to stay in a room different
from that of the hearing, where they can watch the proceedings with difficulty through closed-circuit
television, and limiting their participation to providing the prosecutor information exclusively related to
the case in which they were direct victims. According to the decree, the victims can only suggest some
questions to the prosecutor, who will decide discretionally if he asks them or not. For its part, the General
Prosecutor’s Office, through Resolution 3998 of 2006, also regulated the “spontaneous declaration”
hearings, imposing new limitations absent from Law 975 of 2005.
It is inadmissible that the government and the General Prosecutor’s Office should be regulating the
process in the framework of Law 975, contradicting the law itself, ignoring the orders of the
Constitutional Court in its Judgment C-370 of 2006, and disregarding, in any case, the most elemental
norms of international law that are embedded in the Constitution regarding the participation of the victims
in processes on human rights violations. It must not be forgotten that, by definition, these proceedings
have to do with crimes against humanity and hence that every person, by virtue of being part of humanity,
has suffered damage thorough such crimes and is a victim of them. The Prosecutor’s Office and the
government cannot hinder anyone from demanding their rights to truth and to justice in such cases; that is
why neither Law 975 nor the ruling of the Court established limitations to that effect but, on the contrary,
determined that the victims should have full access to the process in order to exercise their rights from the
beginning of the judicial proceedings.
Law 975 of 2005 – “by which measures are established for the reincorporation of members of organized
illegal armed groups so they may contribute in an effective manner to the goal of national peace, and other
measures are declared regarding humanitarian accords” – establishes the rules of the criminal process that
the paramilitaries must submit to if they want to get a reduced judgment in exchange for their
demobilization. The government has the faculty to regulate the law with regard to what the authorities of
the executive branch should undertake in order to cooperate with the judicial branch in such matters.
Beyond this, according to the Constitution and to the Statutory Law on the Administration of Justice, the
regulation of the proceedings themselves, the definition of the way in which the judicial authorities
exercise their attributions, and the setting of prerequisites for the exercise of the rights of the victims,
*The European Union supported the first phase of this project, between July and December of 2006, during which this series of
information bulletins was begun and the first twelve numbers published, available on the web page. The present publication has
been prepared under the auspices of the Canadian government, 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 or of the government of
Canada.
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. among other procedural aspects, are the sole competence of the Congress and of no one else. The
regulation of judicial processes by authorities other than Congress is clearly unconstitutional.
The delimitation of functions involves assigning clear responsibilities to the different State institutions. A
good example of such delimitation is statutory power with regard to the regulation of the exercise of
judicial action and the stages of legal proceedings. The regulation in this matter is the exclusive
responsibility of the legislative power, according to Article 93 of Law 270 of 1996 or to the Statutory Law
on the Administration of Justice, in accordance with the constitutionally recognized principles of legality
and due process.
Thus, the government and the General Prosecutor’s Office are overstepping their constitutional faculties
and, through their acts, failing to recognize the prevalence of the Constitution. There are judicial
mechanisms in the legal system to guarantee effectively that the Constitution remains the norm of norms
and to correct this type of behavior. The first one is the public unconstitutionality action. However, until
the competent constitutional tribunal has ruled on the constitutionality of a norm, that norm remains in
force and continues to have legal effects that are contrary to the Constitution. For this reason, and based
on Article 4 of the Constitution, the authorities can be requested to refrain from enforcing a norm, in this
concrete case one that is constitutionally objectionable but which has not yet been repealed on the grounds
of unconstitutionality. This legal action is known as objection of inconstitutionality and is legally
effective only in relation to the specific case for which it is invoked.
With regard to the two requests of objection of inconstitutionality lodged by the CCJ in the framework of
the “spontaneous declaration” hearings of the paramilitaries Wilson Salazar Carrascal, alias “El Loro,”
Juan Francisco Prada Márquez, alias “Juancho Prada,” and Salvatore Mancuso, alias “Santander Lozada,”
among others, the General Prosecutor’s Office has responded negatively. Regarding the first, the General
Prosecutor’s Office responded that it is not authorized to carry it out – in spite of the fact that the
Constitution not only authorizes that Office to carry it out but it compels it to do so.
In the second case, the Prosecutor’s Office denied the request for direct revocation of Resolution 3998 of
2006, considering that it is more harmonious – and even more generous – than the regulation issued by the
government. According to the arguments of the Prosecutor’s Office, the resolution allows the victims to
enter the hall where the “spontaneous declaration” hearings take place, so that, through the prosecutor,
they may question the paramilitary, a possibility not foreseen in Decree 315 or in any other regulatory
decrees issued by the government.
The prosecutor is right in asserting that the resolution is in harmony with the decrees issued by the
government. There is harmony because both the government and the General Prosecutor’s Office
overstepped their statutory faculties, and because both in the decrees and in the resolution requirements
are established not foreseen in Law 975, thereby contradicting the ruling of the Constitutional Court in its
Judgment C-370 of 2006. The problem is that the government’s regulations are not in harmony with the
Constitution, and thus the Prosecutor General’s resolution isn’t either. The General Prosecutor’s Office
cannot justify the content of its resolution based on some unconstitutional decree issued by the
government. When requested to revoke a resolution because it runs counter to the Constitution, that Office
must review its decision in the light of constitutional norms.
A state with constitutional rule of law is characterized by the fact that at the apex of the judicial system
there is a norm that directs the entire state function – as does the Colombian Constitution of 1991. That
legal norm must be considered to be of overriding application. That is, when a norm infringes upon the
contents or the hierarchy of the Constitution, all public servants can and must enforce what is contained in
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3. the Constitution. This supremacy or prevalence was established explicitly in Article 4 of the Constitution,
which reads: “The Constitution is the norm of norms. In all cases of incompatibility between the
Constitution and a law or any other legal norm, the constitutional provisions shall apply.”
In the light of the Constitution, in Colombia the government is not allowed to issue a decree that violates
the rights of the victims of war crimes and crimes against humanity to truth, justice and reparation; nor is
it permissible for the General Prosecutor’s Office to issue a resolution that follows the lead of such a
decree – an unjust and clearly unconstitutional norm. The Prosecutor’s Office should have declared the
objection of inconstitutionality of Decree 315 rather than issuing regulations in accordance with it.
Through these measures, the government and the General Prosecutor’s Office are failing to comply with
the Constitution and fully disregarding its supremacy. In practice, the consequence of all this is that, the
way in which Law 975 of 2005 (known as “law of justice and peace”) is being applied, the victims of
crimes against humanity committed by paramilitary groups are being denied the possibility of demanding
their rights to truth, justice, and reparation. Perhaps a tutela action (a kind of writ of injuction) lodged
before a judicial authority different from the General Prosecutor’s Office would prevent the perpetration
of this imminent violation of fundamental rights.
Bogotá, March 26, 2007
For more information, please contact Gustavo Gallón, Director of the CCJ, at Tel. (571) 376 8200, Ext. 115
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