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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) PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁBulletin No 30: Series on the rights of the victims and the application of Law 975 Jailed Congress members to go scot-free?On December 29, 2006, Álvaro Uribe Vélez, President of Colombia, signed Law 1121 of2006, through which “norms are stipulated for the prevention, detection, investigation, andpunishment of financial support to terrorism.” The law included a loop hole leading toimpunity for Congress members being investigated or tried for their links with theparamilitaries. To that end, the law removed from Article 340 of the Colombian CriminalCode the act of promoting illegal armed groups (such as the paramilitaries) as anaggravating circumstance when judging conspiracy to commit a crime – an offense thatcarries between 6 and 12 years in prison .Congressmen Luis Eduardo Vives and Dieb Maloof, investigated by the Supreme Court forthe crime of “aggravated” conspiracy to commit a crime, filed tutela actions in order thatthe investigations being carried out against them would be limited to the crime of “simple”conspiracy to commit a crime, which carries a sentence of 3 to 6 years of prison, arguingthat the aggravating circumstance for which they were being investigated no longer existed.Besides a reduction in the period of incarceration, the result sought by these congressmenwas to be set free automatically, since simple conspiracy to commit a crime not only carriesa relatively low sentence but also carries the benefit of release from prison.The Supreme Court’s interpretation has been that the issuance of Law 1121, althougheliminating that aggravating circumstance from Article 340, did not eliminate the crime assuch but rather included it within Article 345 of the Criminal Code, which punishesactivities related to administrating resources linked with terrorist activities with a sentenceof 13 to 22 years in prison, higher than that of aggravated conspiracy to commit a crime. Inview of the Supreme Court, the favorability principle claimed by the petitioningcongressmen seeks the application of the prison sentence for aggravated conspiracy (6 to 12years) instead of that for the crime of administration of resources related to terroristactivities (13 to 22 years).On August 1 and November 15, 2007, the High Council of the Judicature rejected the tutelaactions filed by the two above-mentioned Congressmen after considering the interpretationof the Supreme Court as adequate. But the congressmen insist that the crimes for whichthey are being investigated should remain unpunished. On September 16, 2008, the citizenNéstor Osuna filed a constitutionality suit before the Constitutional Court, seeking that thehighest organ of this jurisdiction declare the Supreme Court’s interpretation – under whichCongressmen Eric Morris Taboada, Mauricio Pimiento and Luis Eduardo Vives havealready been sentenced – unconstitutional 1
At this moment, 70 Congressmen representing 21 departments of the country are beinginvestigated for alleged links with paramilitarism. Many of them have relinquished theirimmunity privileges as Congress members, hoping to be judged in their regions, where,thanks to their relations with paramilitaries, they can exert pressure on, or co-opt, judicialinstitutions, seeking a more favorable treatment.If the Constitutional Court accepts the claimants’ thesis, the main beneficiaries will be theCongressmen being investigated by the Court or by the General Prosecutor’s Office fortheir links with paramilitary groups, many of whom voted in favor of, or participated indrafting, the law that they invoke today as a pretext to remove all judicial foundation fromthe trials against them or from those that could be initiated in the future. Such is the case offormer Congressmen Mario Uribe and Dixon Ferney Tapasco, both of them promoters ofthe bill that was passed as Law 1121. The former renounced his immunities as Senator onOctober 4, 2008, after the Supreme Court began an investigation against him. For his part,the latter gave up his privileges as member of the Chamber of Representatives on October2, 2008, after the Supreme Court took him to trial. In sum, the reform to the Criminal Codethrough Law 1121 was conceived with the purpose of favoring the congressmen involvedwith paramilitary groups.If the congressmen’s and the petitioner’s thesis were to prevail, we would be faced with thetotal consolidation of impunity in cases of the so-called “parapolitics.” Indeed, thecongressmen would not only benefit from an early release from prison and exceedinglybenign sentences but, additionally, they would be judged for a crime that typifies amisconduct that bears no proportion to the seriousness of their deeds.The shamelessness of the interpretation that the jailed congressmen seek to promote is suchthat, although they acknowledge having committed the crime, they argue that the legislator,making use of his “autonomy” and through the reform introduced in Law 1121, decided notto punish the promotion of paramilitary groups. To consider that a given act is irrelevant inthe realm of criminal law is a faculty of the State’s criminal policy; but in this case, itseems clear that this faculty is being used by Congress to favor many of its members and tosecure the transition toward impunity.It seems hard to believe that the criminal policy of the Colombian State can assess the sameway that public servants meet with paramilitary groups responsible for thousands of deathsand disappearances in this country to seek agreements on political support, and that a groupof persons meet to plan a supermarket robbery even if they do not carry it out.The sole act of conspiring to commit crimes was probably not the only one committed bythe congressmen accused of having links with paramilitary groups. Many of them conspiredwith these groups in order to organize them, promote them, arm them, or fund them –which should be reflected judicially in the sentence accorded to them, and politically in the 2
review and censure of the actions that, as congressmen, they may have undertaken in orderto favor the paramilitary groups in any way.The paramilitary groups are much more than armed structures. Since its inception,paramilitarism has enjoyed the help and collaboration of various sectors of society, amongthem the political sector. Hence, dismantling paramilitarism presupposes necessarilyinvestigating and judging those who, through their acts, have contributed in any way totheir strengthening and to the crimes against humanity that those groups have committedsince their founding. Consequently, the promotion, support and funding of paramilitarygroups by political sectors are acts that must be investigated or judged in order to fulfill therights of the victims to truth, justice, and reparation, since the paramilitary groups made useof the Colombian political class in many ways to promote their own interests, in the sameway that many politicians were favored by the support of the paramilitary groups in theirrespective regions.If these acts were not duly investigated and judged, impunity would be strengthened withrespect to the responsibility of many politicians in the creation and development ofparamilitarism in Colombia, opening the way for the intervention of international criminaljustice.For more information, please contact Gustavo Gallón-Giraldo, Director of the CCJ, at Tel. (571) 376 8200, Ext. 115.Bogotá, October 30, 2008 3