Total Support For The Supreme Court Of Justice

8.08.07

José Alvear Restrepo Lawyers’ Collective Corporación Colectivo de Abogados “José Alvear Restrepo” Editorial Bogotá, Colombia July 27, 2007

In essence, the recent ruling issued by the Supreme Court of Justice may be summarized in that it establishes a clear difference between political crime and aggravated conspiracy to commit a crime (which has been the classification for paramilitarism since the criminal code was reformed in 2000 and penal classifications making express reference to the term “paramilitarism” were eliminated). In this respect, the current criminal code recognizes that conspiracy to commit a crime may not be equated with sedition (which is a political crime). Moreover, the ruling sustains this difference on merit arguments concerning the legal nature of these crimes as well as on forceful grounds relating to the constitution, legal jurisprudence, doctrine, and the theory of the crime itself.

Insofar as Law 782 of 2002, which has allowed more than 30,000 paramilitaries to demobilize as well as has regulated the pardons and the closing of proceedings, the Criminal Court of the Supreme Court of Justice stated that this law may only be applied to political crimes and, as a result, may not applied to persons who have incurred in the conspiracy to commit a crime. With respect to Law 975 of 2005, known as the Law of Justice and Peace, the Court determined that this law may not be applied to political crimes, precisely because these crimes may be covered by the benefits envisaged in Law 782. In other words, it should be understood that paramilitaries involved in aggravated conspiracy to commit a crime may not pursue the application of Law 782 (since conspiracy to commit a crime is not one of the political crimes conceived in Law 782).

In this regard, only persons who have committed political crimes may receive such benefits as amnesties, pardons, or asylums as well as be favored with the prohibition of extradition and the chance to aspire to public positions. Nonetheless, the Court also makes exceptions for crimes exceeding the concept and content of political crime in terms of both atrocity and barbarity.

As is well known, the Constitutional Court stated that Article 71 of the Law of Justice and Peace was unconstitutional due to procedural defects. (This article established that paramilitaries incurred in the political crime of sedition.) In turn, this ruling made the paramilitaries demand to be treated as seditious, in application of the principle of criminal favorability, provided that the law was legally in force. The current Supreme Court ruling clearly establishes that this application is not possible due to the reasons already presented. It also sustains that judiciary officials should make use of the concept of exception of unconstitutionality on grounds of merit, which consists in not applying a law openly contrary to the Constitution.

It should also be stressed the ruling lays out a long and extensive series of arguments demonstrating the need to guarantee the rights of the victims to truth, justice, and comprehensive reparation, in addition to effective access to justice and the investigation, trial, and punishment by the State of the responsible parties of the crimes so as to bring about the right to no impunity.

This ruling by the Supreme Court of Justice reaffirms that such arguments as prescription (the finalization of the penal action or sentence due to time limits), non bis ibidem (no one may be tried two times for the same act), and legally settled matter, may not be put forward when concerning judicial decisions that have not complied with the rights of the victims or when apparent processes have been undertaken that have really only attempted to ensure impunity.

The Court’s ruling also emphasizes the role that should be played by the judges insofar as their obligation to seriously investigate the crimes, prevent impunity, and try and punish the responsible parties. In other words, the ruling restores the role of guarantor that should fundamentally characterize judicial activity.

In short, these are the central points contained in the ruling issued by the Criminal Court of the Supreme Court of Justice.

Immensely rich both academically and legally, this ruling brings together historical, doctrinaire, legal, constitutional and jurisprudence-related aspects, which comprise the basis for its decision as well as conclusively demonstrate its solid support in all areas of argument. It should also be stressed it is correctly based on international human rights instruments, rulings issued by Inter-American Court, and provisions from the International Criminal Statute. In a timely fashion, the national courts assume the historical challenge of basing their decisions on international human rights law and international humanitarian law so as to strengthen and legitimize justice, a fundamental pillar for any democratic rule of law.

With the president of Colombia leading the way, as always, the national government disqualified not only the ruling itself, but also the very Supreme Court of Justice, claiming the ruling did not contribute to peace. In addition to not being true and showing an unattractive side of the president, this disqualification meant the executive branch unduly interfered in the affairs of the judicial branch with the purpose affecting or attempting to affect the independence and impartiality presumably characterized in the latter.

For their part, the paramilitary chiefs also reacted against the ruling and decided to suspend their sessions to provide testimony before the Justice and Peace Prosecutorial Units of the Attorney General’s Office until the government offers them a solution to their satisfaction.

Without a doubt, this process with paramilitary organizations began poorly, continues poorly, and will not likely have a good ending. For instance, the testimony provided has not contributed to establishing the historical truth, even though the Constitutional Court established that testimony should provide the complete and veritable truth. Since this has evidently not occurred, it has meant that Colombian society and the victims feel they have been deceived. Truth provided in milimetric doses is not the truth as well as undermines the seriousness of said process. Moreover, the victims and their family members have been subjected to persecution and intimidation, for merely being present in the room where there is closed-circuit television access to these hearings (which far from constituting settings of regret and truth have turned into incredible justifications of the crimes and have degraded the memory of the victims). As if by magic, the victimizers turn themselves into victims and heroes, and turn the victims into the victimizers and delinquents.

Returning to the government’s reaction to the ruling and contrary to the president’s opinion, the Court’s decision does indeed contribute to peace, inasmuch as it guarantees respect for and observance of the constitution as well as international instruments that protect human rights (without which it would be impossible to construct a real and lasting peace). Conversely, what does affect the path to peace is carrying out processes not abiding to the requirements of truth, justice, and comprehensive reparation, and instead paying homage to the criminals and treating the victims as if they were delinquents. What affects peace are processes based on fragile legal frameworks approved by a heavily paramilitarized congress that disregards the principles meant to sustain a constitutional rule of law (which should be oriented to the unrestrictive respect for human rights). What really affects society is impunity, and not the action against it. And, lastly, what provokes insecurity is disregard for the constitutional legal code by those who principally are obligated to comply with it, as opposed to the court rulings that attempt to bring the legal system into line with the constitutional legal code and international requirements regarding truth, justice, and comprehensive reparation.

We want to express our support for the Supreme Court of Justice and we reject any accusation attempting to affect the highest tribunal of justice in Colombia. We call upon the Attorney General as well as all judges from Colombia to proceed to apply the parameters indicated in the Supreme Court ruling. We also call upon the government to proceed to revoke the pardons granted to those involved in the conspiracy to commit a crime. We also ask the government to pay heed to the ruling’s arguments and desist in its effort to classify paramilitaries as political delinquents. Conversely, we ask the government to search for solutions that effectively respond to the need to find a real and definitive peace based on the respect for the fundamental rights of all of society and where crime is not rewarded and deceit and impunity do not reign.

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