REPORT ON THE IMPLEMENTATION OF THE JUSTICE AND PEACE LAW: INITIAL
STAGES IN THE DEMOBILIZATION OF THE AUC AND FIRST JUDICIAL PROCEEDINGS
A. Uncertainty over the interpretation of the legal
framework: retroactive effect of the ruling of the Constitutional Court
and Decree 3391
IACHR maintained in its statement of August 1, 2006, the decision of the
Constitutional Court substantially improved the legal framework for the
demobilization process, but there is still uncertainty as to the rules
that will govern the judicial process. There is in fact debate over the
possible retroactive application of various points of the Constitutional
Court's ruling, recognizing that such application might eventually
violate the principle of favorability or most lenient criminal law.
This uncertainty will be gradually overcome during the first judicial
decisions that will interpret and apply the Justice and Peace Law in
light of the ruling of the Constitutional Court in each particular case.
context, the adoption of Decree 3391
of September 2006, confirming some of the conditions established in the
ruling of the Constitutional Court and regulating other aspects in
contradiction to what the court said in that ruling, has generated
further confusion over the interpretation of the Justice and Peace Law.
In the first
place, Decree 3391 provides that any time spent at a detention center
before the supervising judge decides on the imposition of preventive
detention will be discounted from the corresponding alternative penalty.
This provision has been interpreted in the sense of reestablishing the
meaning of Article 31 of the Justice and Peace Law, which had been
invalidated by the Constitutional Court. Therefore the time that
demobilized persons might have spent in the concentration zone could be
discounted from the prison sentence imposed as penalty.
point, the Constitutional Court, in its ruling, declared Article 31 of
the Justice and Peace Law to be unconstitutional,
Even in the
framework of an instrument that invokes as its fundamental purpose the
establishment of peace in the country, the penalty cannot be stripped of
its attribute of just and adequate reaction to crime, nor can it take
place outside the State interventions that the exercise of jus
puniendi demands in a constitutional State. The first would produce
impunity that is undesirable even in the context of a pacification
process, and the second would destroy the legitimacy of the sanctioning
power of the State. A punitive regime that strays in either of these
directions would be contrary to the Constitution.
assumptions, the Court notes that the challenged Article 31 equates the
serving of a penalty with the circumstance of being located in a
concentration zone, although there was no State measure that required
persons to be there. In this respect, it does not constitute a penalty
because it does not entail the coercive imposition of a restriction on
fundamental rights. Generally speaking, the fact that members of outlaw
armed groups remained in a concentration zone as part of the
demobilization process reflects a voluntary decision of those persons,
which eliminates any possibility of equating the serving of a sentence
with such a situation, which precludes and replaces State interventions
that characterize the State monopoly of the sanctioning power.
For the IACHR it
is clear that, beyond any discussion over the temporal scope of the
court's decision, it has established that time spent in a concentration
zone cannot be equated with time served in prison. This constitutional
interpretation on what must be understood as penalty in the Colombian
legal system should be decisive for the judges when it comes to
determining the alternative penalties for persons eligible for this
benefit. Otherwise, the result would be to introduce new reforms to the
legal framework, via the regulatory route, that run contrary to the
decision of the Court, in an aspect that is essential for examining the
international and constitutional legality of the Justice and Peace
system, i.e. the possibility of further reductions in calculating
second place, with respect to the establishments designated for
beneficiaries under the Justice and Peace Law to serve their sentences,
the Constitutional Court held that the terms of article 30(2) of that
Law would diminish the control of the penitentiary authorities over the
conditions under which the penalties would be served. It therefore
decided that those establishments must remain fully subject to the rules
On this point, Decree 3391 provides that demobilized persons "may" be
held in Justice and Peace confinement sites administered and defined by
the INPEC, but it did not clearly establish the characteristics of those
sites. The IACHR notes that the uncertainty over the characteristics of
the so-called "Justice and Peace confinement establishments" demands
clarification to bring them clearly within the jurisdiction of the INPEC,
consistent with the decision of the Constitutional Court.
In the third
place, the Decree provides that if demobilized persons surrender assets
for use in economic projects in areas of the country afflicted by
violence, for the benefit of displaced persons, peasants and reinserted
persons who lack the economic means of subsistence, granting them
participation in the ownership and means of production, this will be
understood as a collective measure of reparation.
In March, 2006 only a small number of demobilized persons were involved
in projects of this kind, and there was no evidence of broad acceptance
by the communities hosting them.
notes that projects of this kind, apart from their general intent, may
generate or aggravate tensions between the civilian population and
demobilized members of illegal armed groups, in light of the fear of
reprisals that persists in vast parts of the country. In fact, it may
work as a tool to repopulate certain parts of the country instead of
helping the return of the victims displaced by violence, who require
B. Notification of victims of the conflict to participate in
November, 2006, the Prosecutor General's Office issued the first notices
to attend the initial depositions from candidates for benefits under the
Justice and Peace Law, aimed at persons claiming a right to participate
in the different processes as victims of crimes committed by the AUC
(hereinafter "the victims").
notices set a time limit of 20 days, from the date of publication, for
the victims to appear in the respective processes. In the case of
unnamed or absent victims, the Attorney General's Office shall designate
a representative on their behalf until their appearance.
The Prosecutor General's Office published notices in newspapers of broad
circulation, in the offices of the Prosecutor General and those of the
CTI, and at its website, consistent with its role as legal intermediary
for informing victims about the processes. In its observations, the
State indicates that thanks to the publication of 1,728 notices in
newspapers of national circulation, broadcasted by local radios and
disseminated by national, regional and local public entities, 12,354
victims had been contacted as of August, 2007.
notes, however, that the only newspaper of national circulation is El
Tiempo, which is not distributed in many of the small towns and
villages of various departmental areas. Some of these regions do not
even have television or Internet service. It is in those regions where
the greatest numbers of victims are to be found who require access to
information on their rights and how to enforce them. Consequently, the
notices should have been given via local radio stations, regional
newspapers, public defenders or representatives and in general through
instruments that serve as links between this uninformed population and
the State. As well, the IACHR draws attention to the institutions
responsible for steering this process, and the need to ensure that they
coordinate their work and avoid duplication of functions and actions.
initiation of the depositions generated a major debate about attendance
by victims, given the difficulties of traveling to the cities where the
hearings were to take place. The legitimacy of the process remains
dependent on the way those problems are resolved, and on the guarantee
of transparency in all judicial stages of the process.
C. Meaning or nature of the depositions
notes with concern that there is no agreement in the judiciary and
especially among the prosecutors, on the meaning and nature of the
depositions taken under the Justice and Peace Law. Indeed, this
procedural requirement of the Justice and Peace Law has been confused
with the suspect's statement in ordinary criminal proceedings. This has
had consequences with respect to the role of the prosecutors, the rights
of those who seek to benefit from the Law of Justice and Peace, and the
participation of victims and their legal representatives.
Colombian criminal proceedings, and specifically in Article 324 of the
Code of Criminal Procedure,
there are provisions governing the hearing of statements by the suspect
in the initial stage of a criminal investigation. That statement may be
given, although it is not indispensable, before the investigation is
formally initiated. The suspect may give his statement of his own free
will, or upon summons by the prosecutor. The suspect, who has not yet
has the opportunity at that time to give his version of the facts,
demonstrating guilt or innocence. If the facts narrated point to guilt,
this will be taken as a confession. At this stage the prosecutor does
not necessarily have an active role, although he may pose questions,
especially in cases where a possible confession is involved. However,
generally speaking, the initiative lies with the suspect. In many cases
this proceedings gives rise to a formal process, or to a resolution
reprieving the suspect from prosecution, which closes the investigation
voluntary deposition and confession hearing established in the special
Justice and Peace procedure,
the demobilized person voluntarily applies for the benefits of the Law
and presents his own version of the facts. It is presumed that, because
the suspect has applied for the benefits of this Law, he has committed
punishable conduct the narration of which will be the purpose of this
hearing. The assigned prosecutor, then, must begin his procedural role
by interrogating the candidate about all the facts of which he may have
knowledge, in order to establish the truth about what has happened.
Hence this stage is known as "deposition and confession".
procedures –that of ordinary proceedings and that of the voluntary
deposition under the special Justice and Peace procedure— differ as to
their method, the procedural timing, the type of procedure, and above
all the activity of the prosecutor. Given this dichotomy, in December,
2006 the Prosecutor General's Office established guidelines for taking
voluntary deposition in matters within the purview of the National
Prosecution Unit for Justice and Peace in order to proceed with taking
the first statements.
Those guidelines have to do with: (1) the procedure prior to receipt of
the voluntary deposition and confession; (2) the allocation of chambers
for taking the voluntary deposition; (3) the summons to give a voluntary
deposition; (4) the procedure itself; (5) access for victims to the
chambers; (6) and the number of victims' representatives, which is
limited in case of dispute to two representatives.
respect to the voluntary deposition, this consists of two stages that
include a first session, where the candidate present his version of the
facts, and a second session in which the prosecutor interrogates the
candidate to extract information on each of the facts for which the
alternative penalty is requested. The minimum information required from
the candidate consists of the date, place, the motive, other
perpetrators or participants, victims and other circumstances that will
clarify the truth. In the second session the victim or his
representative and the public attorney may seek clarifications or
verifications, present evidence, and report what they deem pertinent in
relation to the respective conduct.
these guidelines, the IACHR has observed some confusion over the concept
of voluntary deposition, in terms of the distinction between the two
modalities described, namely that established in ordinary legislation
and that provided in the Justice and Peace Law. The statement given
under ordinary procedures, as explained, takes place in the preliminary
investigation stage where the prosecutors play a passive role. It is of
concern that the prosecutors participating in the voluntary depositions
in the context of the Justice and Peace Law assume that their role is
similar to that under ordinary procedures. The IACHR stresses the need
to take effective measures to ensure that the taking of depositions and
confessions is conducted by the prosecutors in a manner consistent with
the object and purpose of the special procedure, which seeks to
establish the truth of what happened in the armed conflict. The IACHR
also considers that the prosecutor should take an active role in
interrogation in order to comply with the mandate to verify the
requirements of the special law.
D. Publicity of the voluntary deposition
2006 the list of 2,695 candidates for benefits under the Justice and
Peace Law was divided into 761 candidates with arrest warrants, custody
measures or prison orders against them, and 1,934 free candidates with
no criminal background, as well as 23 representatives.
In that same month the first candidates for benefits under the Justice
and Peace Law, including the leader Salvatore Mancuso, gave their
voluntary statements before the prosecutors appointed from the Justice
and Peace Unit.
2007 the Prosecutor General's office declared that it had no objections
to radio and television broadcasting of the voluntary depositions by
candidates for benefits under the Justice and Peace Law.
On the basis of Government’s and the Prosecutor General's Office’s
initiative to broadcast the statements taken from the demobilized
persons, the National Television Company (CnTV) arranged for the
transmission of the hearings of members of the demobilized paramilitary
groups via the channel known as Señal Colombia Institucional.
point, in February, 2007 the Prosecutor General's Office issued
authorizing each delegated prosecutor to order preparation of a
technical recording of the voluntary depositions to be made public, once
this procedure was over and the work of verification and investigation
That resolution also provided that, in order to assure victims of their
right to justice, the taking of the statement would be transmitted
direct to the chamber arranged for them.
Moreover, the resolution opened the possibility for the responsible
prosecutor to impose restrictions on transmitting the deposition
whenever the candidate’s statements might pose a threat to the victims
or other persons, to the interest of justice or of the investigation, or
to the collection of proof, evidence or information legally obtained,
the privacy, honor and good name of individuals; and national defense
and sovereignty; and also when the victims were juveniles or had
suffered sexual violence.
The resolution ordered as well that the communications media accredited
before the prosecutor five days in advance of the date set for the
hearing could place no more than two reporters in the victims' chamber.
notes the need to strengthen the presence of the regional and national
media in this new stage of the demobilization process in order to
guarantee transparency. It is essential, then, to remember that during
the demobilization circuits and the surrender of weapons by the illegal
armed groups there was little information published about what happened
in each of the concentration zones where the units assembled and
surrendered their weapons. The present stage of the AUC demobilization
process demands transparency, and this can only be guaranteed by
allowing victims access to both of the voluntary deposition sessions,
and ensuring that in the second session there is a real possibility to
question the candidates and learn the truth.
E. Eligibility of demobilized members of illegal armed
groups and formal accusation
and Peace Law sets the requirements of eligibility for collective and
individual demobilization so that, by complying with those requirements,
candidates can receive the benefits established in that Law. In the
case of collective demobilizations, the Law conditions the granting of
benefits upon compliance with the following requirements: (1) the
organized armed group in question must have demobilized and have been
dismantled as provided in the agreement with the National Government;
(2) surrender of the assets gained from the illegal activity; (3)
delivery of all recruited juveniles to the Colombian Institute of Family
Welfare (ICBF); (4) the cessation of any interference by the group in
the free exercise of political rights and public freedoms, and of any
other unlawful activity; (5) the group itself must not have been
organized for the purpose of drug trafficking or illicit enrichment; (6)
release of persons kidnapped and held by the group, under the
understanding that information about the fate of missing persons must be
given in each case.
The Constitutional Court added to the final requirement the need to
report on missing persons, inasmuch as “it would be unconstitutional for
the State to grant a reduced penalty to those responsible for forced
disappearances without requiring them not only to demobilize under the
law but to reveal, from the very moment their eligibility is being
determined, the whereabouts of the missing persons.”
to individual demobilization, the law imposes the following conditions
on benefits: the applicant must (1) provide information on or cooperate
in dismantling the group to which he belonged; (2) have signed a
commitment with the National Government; (3) have demobilized or laid
down his arms according to the terms established by the national
government; (4) cease all unlawful activity; (5) turn over all assets
gained from illegal activities, to benefit the victims; and (6) have not
been involved in drug trafficking or illicit enrichment.
In addition, only persons whose names and identities are reported by the
national government to the Prosecutor General's office may apply for
benefits under this law.
understands that benefits will not be granted to demobilized persons who
fail to meet the eligibility requirements established by the Justice and
Peace Law. During the taking of voluntary depositions, candidates must
declare under oath their commitment to comply with the eligibility
However, the validity of the statements must be considered in light of
the obligation of the judicial authorities, and other State agencies, to
collaborate in verifying fulfillment of the eligibility requirements.
prosecutors are responsible for taking the voluntary depositions, for
investigations in the areas of influence of each of the demobilized
units, and for interviewing victims in those places. On this point, the
IACHR is concerned about two specific aspects. First, there are 35
groups being investigated by the Justice and Peace Unit. Consequently,
each prosecutor must investigate, on average, the activities of two or
three AUC groups. The number of prosecutors assigned to the Justice and
Peace Unit is 22, distributed as follows: eight in Bogotá, five in
Barranquilla, and nine in Medellin. Each prosecutor must conduct all
his assigned investigations with the support of only three or four CTI
investigators and two or three judicial assistants.
Secondly, the lack of security surrounding the prosecutors in
performance of their functions is of concern. They have to venture into
remote areas in order to corroborate information, collect evidence,
attend judicial proceedings, and compile archives, without the means of
transport to perform these tasks efficiently. Moreover, according to
information received by the IACHR, there are criminal gangs of every
description operating in these areas.
point, the IACHR highlights the need to strengthen the support provided
to the Justice and Peace Unit of the Prosecutor General's Office. The
varied nature of the demands placed by the Law require not only great
working capacity but also strong logistical support that will allow the
prosecutors to perform their work safely.
understands that, during the voluntary statements, demobilized persons
must declare under oath their commitment to fulfill the eligibility
requirements established in the Justice and Peace Law.
In any case, this declaration must be considered in light of the
obligation of the judicial authorities and other State agencies to
verify compliance with those requirements in a reliable manner.
In this respect, as the IACHR understands it, the demobilization oath in
no way relieves the authorities of their duty to verify the requirements
for access to the benefits of reduced penalties.
reiterates the need for the Prosecutor General's Office and the Tribunal
of Justice and Peace to enforce strictly the eligibility requirements of
the Justice and Peace Law for access to the benefits of reduced penalty,
and to rule out any suspicion of a candidate’s involvement in drug
trafficking or illegal businesses before deciding whether he qualifies
for benefits under the Law.
This would contribute to a diligent and exhaustive investigation of the
As well, State institutions must exhaust the means of investigation in
order to determine the historic process by which the illegal armed
groups were formed.
enforcement of the legal framework demands an adequate definition of the
nature and meaning of some of the key procedural formalities, such as
the voluntary deposition in the Justice and Peace Law. It also demands
effective measures to strengthen the role of the prosecutors and
reinforce mechanisms for participation and oversight by victims and
public opinion as a safeguard of transparency and regularity in
proceedings. Clearer and uniform criteria are also needed on the role
of the prosecutors and on the publicity of proceedings, in order to
ensure consistent behavior of the prosecutors in the various processes
and avoid discrepancies in the information received by victims and by
society, as the result of divergent individual decisions of the assigned
of first notices constituted the first notification to victims relating
to the processing of AUC members pursuant to the Justice and Peace Law.
As indicated earlier, the way in which those notices were issued merely
allowed victims still living in the areas of influence of the illegal
armed groups to be aware of the taking of voluntary depositions and to
attend the hearing.
appreciates the efforts made by the prosecutors to cover the greatest
number of regions and to inform possible victims scattered throughout
the national territory. According to information received by the IACHR,
from November, 2006 to April, 2007 the Prosecutor General's Office
received some 50,000 submissions from victims. However, it stresses the
need to continue efforts to make these notices public nationwide through
media that are accessible to the regional community, other than
newspapers of national circulation.
legislation, and in particular Articles 4 and following of the Justice
and Peace Law, Articles 11 and following of the Code of Criminal
and rulings of the Constitutional Court,
confirm the right of victims to participate actively in judicial
proceedings. The active participation of victims involves a series of
rights, among others, to be recognized as parties to the proceedings; to
present, request and dispute evidence; to have access to procedural
information; and to obtain full compensation with a view to achieving
truth, justice and reparations.
regulated the intervention of victims, and provided that they have the
right of personal and direct access, or through their attorney, to the
taking of statements, formulation of indictments and charges and other
procedural steps in the context of Law 975, relating to the events that
caused the damage.
Despite this, it has been found that victims must go to great effort to
attend these sessions, and they may lack the money to cover the expenses
obstacle to victims' participation is the impossibility of questioning
candidates, directly or through their representatives, about matters of
interest to them in the different phases of the voluntary statement
hearing. Questioning by victims is confined to the second phase of the
hearing, but it takes place through an indirect mechanism, where the
questions are incorporated into a form that is delivered to members of
the CTI, who in turn deliver it to the prosecutor. It must be noted
that the prosecutor is in a different room from that where the victims
are. The prosecutor transmits to the candidate only those questions
from the victims that he deems pertinent. The victims and their
representatives have no possibility to raise new questions, to seek
clarifications for further details, or to cross-examine. This indirect
mechanism severely restricts the possibility of the victim to use
questioning as a suitable means of obtaining the truth of the facts.
Moreover, the prosecution thereby loses a valuable strategy for
comparing the voluntary depositions and verifying compliance with the
legal requirements for access to benefits.
also notes with concern the restrictions on victims' access to legal
counsel and representation in judicial proceedings. A great number of
victims have encountered various difficulties in being represented at
the voluntary deposition hearings, and in finding adequate legal
welcomes the fact that the Procurator's Office has clarified the role of
the Ombudsman’s Office in representing victims, but it regrets the time
lost in the disputes regarding their respective competence in this
area. The situation not only hindered many victims from access to the
first voluntary depositions sessions, but has also meant that the
Ombudsman’s Office could not immediately design a work plan for
providing victims with adequate representation and protection.
also notes that Decree 315 provides that, if the victim does not enjoy
the professional services of a particular lawyer, the Prosecutor General
will request that Ombudsman’s Office appoint a public defender to
represent him or her, upon request and demonstration of need.
The IACHR views this regulation as a measure to guarantee victims'
participation, and hopes that it will be implemented in this light. In
its observations, the State indicates that Ombudsman’s Office has
provided legal advice to 9,765 victims of violence and legal
representation to 2,307 victims in the criminal proceedings of the
Justice and Peace Law.
understands that the Ombudsman's Office has assigned an official to
monitor enforcement of the Justice and Peace Law. However, that action
plan was available months after the voluntary deposition hearings began.
reiterates that the participation of victims with security guarantees is
a crucial aspect of the judicial process and of protecting the right to
truth, justice and reparations.
There are still many areas of the country where victims are terrorized
by violence committed by criminal gangs, non-demobilized members of the
AUC, new armed groups, and existing ones that have been strengthened,
and this deters them from appearing and asserting their rights.
has expressed its repudiation of the murder of Mrs. Yolanda Izquierdo,
who had appeared as a victim of the armed conflict in Colombia at the
hearings in the case of the paramilitary leader Salvatore Mancuso, in
accordance with the procedure established in the Justice and Peace Law.
Mrs. Izquierdo was shot and killed on January 31, 2007 at the entrance
to her home, in a district of the city of Monteria. She was a leader in
the complaints lodged by hundreds of small farmers over the seizure of
their land by members of the AUC in the Department of Córdoba and,
having received death threats since December, 2006, she had repeatedly
requested the judicial authorities to protection for her, without
receiving any response. The IACHR called upon the Colombian State to
conduct a judicial investigation into this crime and urgently to adopt
the measures required to afford due protection to the victims of the
conflict and their representatives in the exercise of their fundamental
also condemned the killing of Judith Vergara Correa on April 23, 2007
when she was traveling on a public bus, on the Circular Coonatra route,
on her way home from work.
Mrs. Vergara Correa was serving as president of the community action
board in the neighborhood of El Pesebre, Comuna 13 of Medellin, was a
member of various peace and social development organizations, and had
been following up on the hearings conducted in Medellin under the
Justice and Peace Law. Mrs. Vergara Correa was a leader and adviser for
the NGO Corporación para la Paz y el Desarrollo Social (CORPADES), the
Asociación de Madres de la Candelaria, and REDEPAZ, and
worked in particular with juveniles and children.
To the cases
of Mrs. Izquierdo and Mrs. Vergara must be added the death on February
7, 2007 of Mrs. Carmen Cecilia Santana Romaña in the
Municipio de Apartado, Department of
Antioquia, when she was leading and promoting participation by victims
of the conflict in efforts to recover lands lost by displaced peasants,
and in helping victims to take advantage of the mechanisms of the
Justice and Peace Law.
in loco visits, the IACHR has received information regarding
numerous victims of the conflict who are living in areas of influence of
the demobilized units, and who claim that they are still receiving
threats and are subject to violence, intimidation and local control.
Prosecutor General's Office has considered that the potential
beneficiaries of the victim and witness protection program should be
persons with formal links to a judicial proceeding.
Given the context in which the Justice and Peace Law is being applied,
this concept should include not only victims formally linked to the
process but also those persons who want to participate in order to
contribute information for clarifying the truth.
issue of special concern in the relationship with victims is the
reparation procedure (incidente de reparación). On this point,
the IACHR notes that that procedure, including the need to attend a
conciliation hearing with the perpetrator, could pose an additional risk
for victims. This question leads us to link the problem of victim
protection with the difficulties of the exclusively judicial mechanism
for access to reparations established in the Justice and Peace Law.
has repeatedly welcomed the Colombian Government's intention that those
responsible for crimes must bear the cost of economic reparations from
their own assets, licit or illicit. Yet the IACHR believes that this
important objective must not depend on the initiative of the victim, nor
can it serve as an excuse for delaying or, in the worst case scenario,
directly impeding effective access to reparations. In short, beyond the
information that the victims may contribute, the State has greater
resources and capacities than the victims to secure the recovery of
assets from demobilized persons in order to pay reparations.
notes with concern that the Justice and Peace Law and its regulatory
decrees placed upon the perpetrators and, in the end, the units to which
they belonged the responsibility for paying reparations, relegating the
State to a secondary and essentially marginal role. Furthermore, the
criminal justice system has been established as the only route for
claiming economic reparations, and this will undoubtedly mean that many
victims will be denied access to reparations, because of their own
problems in accessing the justice system, difficulties in providing
evidence, and the strict criteria for criminal liability employed in
criminal proceedings. This situation could also produce serious
inequalities in effective access to reparations, to the prejudice of
victims who are members of the most vulnerable groups of Colombian
society, and could undermine the credibility and effectiveness of the
process as a real mechanism for reconciliation and for restoring social
peace in the areas affected by violence.
In this respect,
it is important to indicate that the National Commission for Reparations
and Reconciliation (CNRR) has recommended the judicial authorities the
following criteria at the moment of evaluating whether the effective
participation of victims in the proceedings has been guaranteed: i)
access of the victim or their families to the proceedings; ii) access of
victims to the judicial files of the case; iii) access to the
information relating to the facts investigated; iv) effective
opportunity to be heard by the judicial authorities; and v) effective
opportunity to produce evidence on the facts and the consequences
In any case,
the issue is particularly delicate, because in terms of the balances
that the Justice and Peace Law seeks to strike as an instrument of
transitional justice, the victims are obliged to renounce a considerable
portion of their expectations for justice, through the substantial
reduction in penalties for atrocious crimes, in exchange for achieving
peace, obtaining the truth, and effective access to reparations. It is
not reasonable, then for the State, having established a legal framework
for the process and guaranteed its fate, to refuse to assume, in the
case of reparations to victims, the same key role that it has assumed
for other elements of the equation: the enforcement of criminal justice,
the truth, preservation of collective memory and the effective
dismantling of illegal groups. The Inter-American Court of Human Rights
has held that in cases of human rights violations the duty to provide
reparations lies with the State, and consequently while victims and
their relatives must also have ample opportunities to seek fair
compensation under domestic law, this duty cannot rest exclusively on
their initiative and their private ability to provide evidence.
considers that, beyond the established legal system, the State has a key
role and a primary responsibility to guarantee that victims of crimes
against international law will have effective access under conditions of
equality to measures of reparation, consistent with the standards of
international law governing human rights. Access to reparations for
victims of crimes against humanity must never be subject exclusively to
determination of the criminal liability of the perpetrators, or the
prior disposal of their personal goods, licit or illicit.
considers that, beyond the available criminal justice route, the State
must define a policy on reparations designed to resolve injury caused by
paramilitary violence, consistent with its budgetary possibilities, and
based on the standards of international human rights law, by providing
streamlined and low-cost administrative routes for accessing economic
reparations programs. This should be without prejudice to other forms
of intangible reparations, collective reparations, and social programs
and services that might be established for the population affected
during the conflict. In its observations, the State indicates that the
National Commission for Reparations and Reconciliation “has been working
on a proposal for a National Reparations Program that will be
characterized by comprehensive nature, meaning that it will include
individual and collective as well as symbolic and material reparation
Participation by victims in all stages of proceedings under the Justice
and Peace Law is essential in seeking the truth. The IACHR reiterates
the need for a special protection program, both for victims of the
conflict and for witnesses seeking to appear at proceedings in order to
provide information for clarifying the truth. It urges the State to
adopt measures to guarantee the adequate representation of victims in
court proceedings, and to strengthen the mechanisms so that they can
effectively enforce their right to reparations.
RETURN TO CIVILIAN LIFE AND DISMANTLING OF THE AUC
notes that an important element in the demobilization process, both
collective and individual, is the process of reintegration into civilian
life. The weakness of policies for reintegrating the roughly 30,000
collectively demobilized persons and the roughly 10,000 individually
demobilized persons remains a source of concern, and stands in contrast
to reports of the re-arming of members of armed groups who had
demobilized and the possible emergence of new groups in zones of
influence of those who had surrendered their weapons. The IACHR has
repeatedly held that reintegration of demobilized personnel into
civilian life is a guarantee against repetition of the grave crimes
committed during the activities of the illegal armed groups.
A number of
"economic projects" have been launched to provide employment for
demobilized persons as part of the Government program for reintegrating
demobilized from illegal armed groups into civilian life. According to
information provided by the Government, demobilized persons can
participate in these projects after 12 to 18 months have elapsed since
In 2006 a series of economic projects were launched in the sub-regions
of Cordoba, Antioquia and Casanare.
In Córdoba, those projects consisted of livestock raising and the
growing of acacia, rubber and cocoa, with the participation of
demobilized personnel, displaced persons, and small farmers.
In Casanare, the projects were devoted to wood and agricultural products
and involved only demobilized members of illegal armed groups.
Finally, in Antioquia there are projects in intensive livestock raising,
the growing and processing of yucca, cocoa, bananas and timber, fish
farming and banana wastes, where only the planting and processing of
yucca, cocoa, bananas and timber involve demobilized persons, displaced
persons and small farmers, with the others reserved exclusively for the
Economic projects require a Government assessment of their potential
before they are implemented.
the reintegration program includes comprehensive education activities to
provide academic and occupational training for demobilized persons.
However, in 2006 no more than 6,000 demobilized persons were enrolled in
education and training.
The problems associated with reintegrating thousands of demobilized
persons into civilian life have been reflected in the low coverage of
education, the high dropout rate in formal education, and the
abandonment of programs that offer immediate remuneration, such as those
for civic auxiliaries or manual eradicators.
The proportion of demobilized persons with links to jobs is low: only
4,402 of the approximately 40,000 persons who have been demobilized
collectively or individually.
In the face
of this situation, the Special Adviser for the Social and Economic
Reintegration of Armed Individuals and Groups was created as a means to
speed the process of reintegration.
The IACHR welcomes this initiative and hopes that it will produce
concrete results that will translate into the return of demobilized
personnel to civilian life.
notes that little information has been published on the process of
reintegrating demobilized persons. There is a persistent discrepancy
between the figures published by the Special Adviser for Social and
Economic Reintegration and the ministers responsible for the issue. The
IACHR stresses the need to improve mechanisms for informing the public
about the results of the reintegration programs now being pursued by the
Special Adviser, as well as information on the beneficiaries of those
B. Dismantling of the AUC, rearmament and appearance of new
notes that little information has been made public on those demobilized
persons not participating in the reintegration process who have re-armed
or have formed new gangs and remain engaged in violence. Information
published in the sixth, seventh and eighth reports of the Secretary
General to the OAS Permanent Council has revealed the existence of
violence subsequent to the demobilizations that concerned the MAPP,
in various forms: (1) the regrouping of demobilized persons into
criminal gangs that exert control over specific communities and illegal
(2) holdouts who have not demobilized;
and (3) the emergence of new armed players and/or the strengthening of
those that already existed in areas abandoned by demobilized groups.
Colombian Government has recognized this situation and has warned that
if demobilized persons return to arms they will forfeit the benefits of
Law 975 of 2005.
The IACHR has also received information from the Government about the
creation of a search squad against the Aguilas Negras gang, for
purposes of dismantling the criminal gangs that have emerged in parts of
The Government's warning about the loss of benefits as a result of
reverting to illegality is significant. However, these consequences will
affect only those who applied for benefits under the Justice and Peace
Law, and they account for only 8.7% of the 31,000 demobilized AUC
members. In addition, there is uncertainty as to whether all members of
the AUC have actually joined the demobilization process, and so there is
no information on a significant portion of the membership of these
observations, the State emphasizes its position that they do not belong
to a “group of self-defense but they are rather a band of common
criminals.” It adds that “the self-defense groups as an expression of a
complex phenomenon in Colombian history are not echoed in the current
notes that steps have been taken to improve the outcomes of the programs
for reintegrating demobilized persons into civilian life, and it hopes
that efforts will continue to strengthen those programs so that they can
produce concrete outcomes that will result in the return of demobilized
personnel to civilian life. The IACHR remains concerned over the
phenomenon of rearmament and the formation of new gangs, and reiterates
the need for the Colombian Government to implement effective measures to
disrupt the AUC structures and to pursue its efforts to dismantle
respect to implementation of the Justice and Peace Law, the initial
stages of the AUC demobilization process, and the first judicial
proceedings, the IACHR concludes that:
Colombian State deserves recognition for the efforts taken to achieve
pacification and to ensure that judicial proceedings are as transparent
demobilization circuits of members of the AUC suffered from a lack of
systematic mechanisms to identify and determine criminal responsibility
during collective demobilizations. The gaps and inaccuracies generated
in this first stage are having negative repercussions on investigations
under the Justice and Peace Law, and are contributing to impunity for
non-confessed crimes or those that are not judicially investigated.
has still not been decided how to implement the ruling of the
Constitutional Court relating to Law 975, and the regulatory decrees
issued before and after that ruling. Of particular concern is the matter
of fulfilling the eligibility requirements for the benefits under Law
is unclear whether the armed paramilitary structures have been
effectively dismantled and whether the members of the AUC are genuinely
participating in the demobilization process. While the number of
demobilized members of illegal armed groups who have received legal and
economic benefits increasingly exceeds the estimated number of AUC
members, the phenomenon of illegal armed groups persists in the same
areas of the country.
still has some concerns over the situation and participation of victims,
and implementation of the Justice and Peace Law, and it offers the
following recommendations to the State:
the work of the institutions that are supposed to implement the Justice
and Peace Law, particularly the units of the Prosecutor General's Office
that play an essential role in investigation. These agencies require
logistical support and adequate human resources to complete the tasks
assigned to them. The State must also ensure the protection of its
officials so that they can carry their investigations seriously. The
judicial clarification of crimes perpetrated against the victims of then
armed conflict by the demobilized who seek to benefit from this
legislation must not be put in jeopardy.
an active role to the prosecutors during the taking of voluntary
depositions, both to help produce the information essential for
determining the truth of the events and to verify effective compliance
with the requirements for reduced penalties.
transparent mechanisms for taking decisions relating to eligibility
requirements for benefits under Law 975. Prior to the formal indictment
stage under the Justice and Peace Law, there needs to be broad publicity
for the decisions taken on compliance with each of the eligibility
requirements for each of the demobilized groups, and for their members
in the case of individual demobilization, and on those disqualified as
not meeting the requirements.
that victims of the conflict, witnesses and human rights defenders will
have the opportunity to participate in the process. Victim
participation requires adequate legal assistance, as well as support
from the Ombudsman’s Office as from the initial hearings stage.
mechanisms to protect and guarantee the safety of victims of the
conflict, witnesses, and human rights defenders who join the process so
that they can participate in the investigation and trial of those
seeking benefits under the Justice and Peace Law.
revising the currently established reparations system, where the
criminal procedures route is the only access. The State must play a
primary, rather than a secondary, role in guaranteeing victims' access
to reparations in accordance with the standards of international law.
The IACHR recommends that a reparations program be adopted that offers
an alternative to the criminal court route and is supplementary to other
reparations of a collective nature and to the social programs and
services targeted at people who have suffered violence in Colombia.
OF CONTENTS |
Additional Observations of the Republic of Colombia to the “Report
of the Inter-American Commission on Human Rights on the
Implementation of the Justice and Peace Law: Initial Stages in the
Demobilization of the AUC and First Judicial Proceedings.” Note DDH
No. 45497/2475/07 from the Human Rights and International
Humanitarian Law Unit of the Ministry of Foreign Affairs, September
5, 2007, page 5.
The available information indicates that 536 demobilized combatants
have been captured; 236 have been killed or died accidentally, 39
have been wounded and there is no information on 141.
Plataforma de Organizaciones de Desarrollo Europeas en Colombia.
Proceso de desmovilización de los grupos paramilitares en Colombia.
Apoyo de la cooperación europea. Cuadernos de Cooperación y
Year 3, November 2006, No.2. See also, Primer Informe de control
y monitoreo a los desmovilizados, Policía Nacional, July, 2006.
Information available at the web site:
www.altocomisionadoparalapaz.gov.co. In its observations, the
State indicates that up until August, 2007 there were 11.448
demobilized studying, 971 involved in technical or technological
education, 243 enrolled on higher education, and 279 scholarship
were available to pursue higher education. Regarding preparation
for employment, a necessary requirement to get a job or to initiate
their own business, until August 22, 2007 there were 7.370
demobilized that had access to the programs and 4.389 were
studying. Observations of the Republic of Colombia to the “Report
of the Inter-American Commission on Human Rights on Implementation
of the Justice and Peace Law: Initial Stages in Demobilization of
the AUC and First Judicial Proceedings”. Note DDH No. 45284/2465/07
from the Human Rights and International Humanitarian Law Direction
of the Foreign Affairs Ministry, September 4, 2007, page 38.
Additional Observations of the Republic of Colombia to the “Report
of the Inter-American Commission on Human Rights on the
Implementation of the Justice and Peace Law: Initial Stages in
Demobilization of the AUC and First Judicial Proceedings.” Note
DDH No. 45497/2475/07 from the Human Rights and International
Humanitarian Law Unit of the Ministry of Foreign Affairs, September
5, 2007, page 9.