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Partial charges - or partial rights?

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Series on the rights of the victims and the application of Law 975. Bulletin No 32

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Partial charges - or partial rights?

  1. 1. Con el apoyo de: COMISIÓN COLOMBIANA DE JURISTAS UNIÓN EUROPEA 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) PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁ Bulletin No 32: Series on the rights of the victims and the application of Law 975* Partial charges - or partial rights?After more than three and a half years since the law of justice and peace, or Law 975 of 2005,took effect, the majority of the judicial processes of the paramilitaries who had recourse to it havenot yet gone beyond the initial phase, the free version testimony or confession. In the followingphase, that of pressing charges (in which the prosecutor informs the paramilitary that investigationsare being carried out against him for specific acts), only one of the 3,666 paramilitaries proposed bythe government that is, those paramilitaries that would supposedly submit to the procedure hasin fact been through the process. The crimes to be confessed are so many that any timeframe isinsufficient. Under such conditions, the stages of reparation and sentencing, which should follow,are still a long way off.Furthermore, of the 3,666 paramilitaries proposed by the government, only 145 have appeared incourt to render free version testimony. This means that 96 percent of them have not even begunthe law of justice and peace process and most probably will never do so. As a way out of thisdismal failure, the government announced that it would propose bringing partial charges that is,that it would not be necessary to bring to an end the confessions or free version testimonies inorder to go on to the following stages. 1 However, the government never made good on its proposal.Paradoxically, it ended up being authorized through a decision by the Supreme Court of Justice.On July 23, 2008, the Criminal Cassation Chamber of the Supreme Court of Justice considered thatpartial charges do not violate the rights of the victims and that, on the contrary, they are a good wayto protect them since, it its judgment, the victims would see results much sooner in terms ofreparation and an end to the legal processes. 2 Likewise, the Court considered that, even if the freeversion hearings have come to a close, if the candidate states that he/she has more acts to confess(as it happened in the case that gave rise to this jurisprudence), he/she should be given theopportunity to return to free version hearings to confess the facts that he/she left out during thefirst stage of the process and, simultaneously, to continue being charged for the acts alreadyconfessed. According to the Court, such a procedure would ensure, on the one hand, that the victimsof the crimes already confessed would not have to wait until the entire free version phase is over.And, on the other, it would also guarantee that the victims of the acts not initially confessed aregiven the opportunity for crimes against them to come to light, thus giving priority to the victimsright to the truth. 3However, with this theory the Court acting in very good faith could be violating the rights of thevictims. Furthermore, the Court seems to be disregarding the nature of the special process* The present publication has been prepared with the support of the European Union and its content is the soleresponsibility of the Colombian Commission of Jurists. In no way should it be thought to reflect the point of view of theEuropean Union.1 See in this regard, El Tiempo daily newspaper, Gobierno propondrá juicios colectivos a paras desmovilizadosprocesados en Justicia y Paz [ Government will propose collective trials of demobilized paras tried under Justice andPeace Law], January 31, 2008, on-line version; El Tiempo, Que se disuelvan los partidos uribistas [Uribista partiesshould disband], May 4, 2008, p. 1-3.2 Supreme Court of Justice, Criminal Cassation Chamber, second instance 30120, M.P. Alfredo Gómez Quintero, July 23,2008.3 Ibíd., p. 32. 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. 2. contemplated in Law 975, whose purpose is to judge those who have committed crimes againsthumanity. There are at least three reasons for stating this: i. Partial charges do not speed up legal processesOne of the Court s arguments for authorizing partial charges is that these make it possible to speedup the process for those victims whose crimes have already been confessed. However, thisargument does not seem convincing, or at least feasible. Even if partial charges are brought, at somepoint they are going to have to be unified within the process which will in any case generate abacklog of cases before sentencing. Thus, the victims will have wait for all the stages to becompleted in order to have access to reparation and to see results on their cases.In order to solve this problem, the Court stated that since partial charges will surely lead to partialsentences, what in the end would be appropriate would be an accumulation of independent trials or,lacking that, the accumulation of sentences dictated separately.4 As stated, this will generate chaosat the end of the process; instead of speeding it up, it will produce a climate of confusion among lawenforcement agencies, legal practitioners, and victims.In this sense, partial charges can lead to two scenarios: One would be an interpretation that nopartial sentences can be produced; as stated before, this will lead to a backlog of trials at any one ofthe stages of the process. Hence, and since there can be only one alternative sentence, at some pointthe trials will accumulate and the victims will have to wait until the last processes that began,parallel to the first, run their course. On the other hand, in order to guarantee an equitable treatmentfor all the victims, the backlog should occur at the reparation stage. Otherwise, if the backlog comesafter the reparation stage, the risk exists that there might be no resources left to repair the victims ofthe crimes that are confessed last.The other scenario, which is even worse than the first, is that the charges will generate partialalternative sentences; thus a paramilitary proposed for the justice and peace law could in the endhave several alternative sentences imposed and be serving some of them while the judge decides onothers resulting from parallel trials. This would not only run counter to the content of Law 975 of2005 but would also constitute a flagrant violation of the right to justice. ii. Partial charges denature the principle of a complete and truthful confessionIn its sentence C-370 of 2006, the Constitutional Court decided that the free version testimonyforeseen in Law 975 was in accordance with the Constitution, provided that it was complete andtruthful. This implies that in their free version declarations the accused must confess all thecrimes they have committed, or those they have knowledge of; otherwise they will lose the benefitsof the Law. However, the Supreme Court s decision, by allowing the accused who is at the phaseof formulation of charges to request to be heard once again at a free version hearing, opened thedoor to the possibility of his claiming fraudulently once the free version phase is over, that he forgot to confess some crimes and wishes to add them to his confession.In its above-mentioned ruling of July 23, 2008, the Court expressed that the truth is not affected byallowing the investigation of acts forgotten by the demobilized, left out for reasons different4Ibíd., p. 38. 2
  3. 3. from the purpose of willfully omitting them or of hiding the truth. 5 However, there is reason toquestion how it will be proved (in order that the accused can go back to the free version phase andadd to his testimony) that the acts forgotten by the accused were not omitted purposefully in orderto hide the truth when the reality and the application of the Law 975 process have demonstrated theopposite. iii. Partial charges run counter to the spirit of Law 975 and have no legal groundsLaw 975 of 2005 has as mandate to judge those who have committed crimes against humanity. Thisrequires, from judicial authorities as well as from those who intend to seek the benefits of this law,that they understand that it is a process that seeks to address crimes committed systematically andmassively, since their systematic and massive nature is one of the essential features of crimesagainst humanity. To fraction the process and to allow some acts to be confessed while others arebeing the subject of charges, gives these last the character of common crimes, committed in randomfashion, and not of crimes committed in a specific context of systematicity and massivenesswhich, in order to be brought to light, must be investigated and judged with these characteristics inmind. Hence, partial charges lead judicial authorities to analyze such cases outside of their context,as if they bore no connection at all.Finally, it must be mentioned that Law 975 provides no legal support for partial charges. On thecontrary, the special process the law contemplates, as it stands after the modifications introduced bySentence C-370, must be understood as one whole, due to the nature of the crimes it judges and tothe purpose of the process.A few conclusionsWhat seems most likely, then, is that this jurisprudence of the Supreme Court of Justice is notnecessarily going to be of benefit to the victims. Perhaps it might give the sensation that the processis progressing and that, in this sense, Law 975 is already showing some results. However, the delayin carrying out the free version hearings is due to the structural flaws of the process and to themistakes of some of those who are applying it, as well as to the lack of commitment of those whoseek to benefit from it.Indeed, structural flaws exist that cannot be corrected by applying partial charges. If the idea isreally to speed up the trials, more financial and human resources should be applied in order toincrease substantially the number of investigators and prosecutors to handle the confessions,investigations, and charges and promote reparations. Additionally, the 16 paramilitary leadersextradited since May 2008, whose trials are virtually at a stand still since then, should be returned tothe country. The confessions these paramilitaries could make at this juncture are decisive forbringing the truth to light as the foundation for the satisfaction of the victims other rights.Neither are partial charges going to solve the problem of the lackluster performance of some of theprosecutors of the Unit for Justice and Peace, who are not being rigorous in their questioning or inholding the hearings in order to complete efficiently the first phase of the process without givingrise to the paramilitaries arguing later that they forgot something. Even less can partial chargescorrect the omissions of many of the crimes committed by the accused, many of whom are5 Ibíd. p. 32. 3
  4. 4. spending their time justifying their crimes and denying the commission of hundreds of grievousoffenses.In spite of the fact that the Court has already set its position in the above mentioned jurisprudence,shortly it should revisit the implications of partial charges, since it will review two rulings by theMagistrate for control of guarantees, Álvaro Cerón, in which he refused to press partial charges inthe trials of two paramilitaries under Law 975.6 Perhaps the moment has come for the Court tomodify its jurisprudence once it ascertains that, although partial charges can yield results in certainconcrete cases, this does not mean that the victims and society will be able to learn a truth thataccounts for the crimes committed by paramilitaries, understood within their context. This is whypartial charges will not correct the flaws that affect, since its inception, the law of justice andpeace, but rather they will increase the chances that the rights of the victims, too, will be partialwithin the Law 975 procedures. It is now up to the Court to decide.Bogotá, February 16, 2009For further information, please contact: Gustavo Gallón Giraldo, Director CCJ (Tel. 571-376 8200, ext.115).6 The decisions not to press partial charges in the procedure within the Framework of Law 975 of 2005 were taken byMagistrate Álvaro Cerón during the hearing for pressing charges requested by Prosecutor 20 of the Justice and Peace Unitof the General Prosecutor s Office against the accused Parmenio de Jesús García on October 10, 2008; and the hearing forpressing charges requested by Prosecutor 48 of the Justice and Peace Unit of the General Prosecutor s Office against theaccused Freddy Rendón Herrera, alias el Alemán, on January 14, 2009. 4