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ANNUAL REPORT 2009
CHAPTER IV
HUMAN RIGHTS
DEVELOPMENTS IN THE REGION
INTRODUCTION
1.
The Inter-American Commission on Human Rights continues its
practice of including in its Annual Report to the General Assembly of the
Organization of American States a chapter on the situation of human rights
in member countries of the Organization, based on the competence assigned
to it by the OAS Charter, the American Convention on Human Rights, and the
Commission's Statute and Rules of Procedure. This practice has served the
purpose of providing the OAS updated information on the human rights
situation in those countries that had been the subject of the Commission's
special attention; and in some cases, to report on a particular event that
had taken place or was emerging or developing at the close of its
reporting cycle.
CRITERIA
2.
The Annual Report of the IACHR for 1997 set forth five criteria
pre-established by the Commission to identify the member states of the OAS
whose human rights practices merited special attention and which
consequently should be included in its Chapter IV.
3.
The first criterion encompasses those states ruled by governments
that have not come to power through popular elections, by secret, genuine,
periodic, and free suffrage, according to internationally accepted
standards and principles. The Commission has repeatedly pointed out that
representative democracy and its mechanisms are essential for achieving
the rule of law and respect for human rights. As for those states that do
not observe the political rights enshrined in the American Declaration and
the American Convention, the Commission fulfills its duty to inform the
other OAS members states as to the human rights situation of the
population.
4.
The second criterion concerns states where the free exercise of the
rights set forth in the American Convention or American Declaration have
been, in effect, suspended totally or in part, by virtue of the imposition
of exceptional measures, such as state of emergency, state of siege,
suspension of guarantees, or exceptional security measures, and the like.
5.
The third criterion to justify the inclusion in this chapter of a
particular state is when there is clear and convincing evidence that a
state commits massive and grave violations of the human rights guaranteed
in the American Convention, the American Declaration, and all other
applicable human rights instruments. In so doing, the Commission
highlights the fundamental rights that cannot be suspended; thus it is
especially concerned about violations such as extrajudicial executions,
torture, and forced disappearances. Thus, when the Commission receives
credible communications denouncing such violations by a particular state
which are attested to or corroborated by the reports or findings of other
governmental or intergovernmental bodies and/or of respected national and
international human rights organizations, the Commission believes that it
has a duty to bring such situations to the attention of the Organization
and its member states.
6.
The fourth criterion concerns those states that are in a process of
transition from any of the above three situations.
7.
The fifth criterion regards temporary or structural situations that
may appear in member states confronted, for various reasons, with
situations that seriously affect the enjoyment of fundamental rights
enshrined in the American Convention or the American Declaration. This
criterion includes, for example: grave situations of violations that
prevent the proper application of the rule of law; serious institutional
crises; processes of institutional change which have negative consequences
for human rights; or grave omissions in the adoption of the provisions
necessary for the effective exercise of fundamental rights.
8.
On the basis of the criteria set forth above, the Commission has
decided to include five member states: Colombia, Cuba, Haiti, Honduras,
and Venezuela.
COLOMBIA
9.
As in previous years, the situation in the Republic of Colombia in
2009 falls within the framework of the criteria set forth in the
introduction to Chapter IV of the Annual Report of the Inter-American
Commission on Human Rights (IACHR). In the case of Colombia, these
criteria are particularly relevant with regard to the continued existence
of circumstantial or structural situations that, for various reasons,
seriously and gravely affect the enjoyment and exercise of the basic
rights enshrined in the American Convention on Human Rights.
Consequently, the Commission has adopted the following conclusions on the
matter, in accordance with the procedure set out in Article 57(1)(h) of
its Rules of Procedure,
for their inclusion in its Annual Report. The preliminary version of this
report was transmitted to the Republic of Colombia on November 13, 2009,
for its observations. On December 13, 2009, the State submitted its
observations, which have been incorporated in this report.
10.
The IACHR is keenly aware of the complex situation in Colombia
after five decades of violence and its impact on the civilian population.
It is also aware of the effect of drug trafficking on the use of violence
and of the State's endeavors to combat that problem. In spite of these
challenges, the Colombian State has made commendable efforts to move
forward with the peace process through the demobilization of armed actors
and protection of its citizens.
11.
Among other things, attention should be drawn to the continued
efforts under the “Program for Protection of Human Rights Defenders, Trade
Unionists, Journalists, and Social Leaders,”
which encompassed 8,796 persons from January to June 2009, including 1,402
union members, 950 social, community, campesino, indigenous, and
Afro-descendant leaders, 550 members of human rights defenders’
organizations, and 150 journalists,
whose importance the IACHR has underscored in previous reports. The IACHR
reiterates the need to continue strengthening the protection mechanisms
created by such programs.
12.
The Commission notes, however, that that alongside initiatives to
promote and protect human rights, such as the one cited above, violence
persists and continues to afflict the most vulnerable sectors of the
civilian population. There are also new challenges to administering
justice and ensuring comprehensive reparations for the damage caused to
the victims of the conflict.
13.
Consequently, based on information received from the State and
civil society, the IACHR has drawn up a list of comments on the human
rights situation in Colombia in the course of 2009. Specific reference is
made to progress achieved and obstacles encountered in investigating the
crimes perpetrated during the conflict, including the participation of
paramilitary leaders extradited to the United States in trials that took
place in Colombia under the Justice and Peace Law, persisting patterns of
violation of rights to life and humane treatment, the situation of ethnic
groups, and intelligence activities against human rights defenders, social
leaders, and justice sector operators.
I. THE
DEMOBILIZATION OF ARMED GROUPS AND JUDICIAL INVESTIGATION AND REPARATION
OF CRIMES PERPETRATED IN THE CONTEXT OF THE CONFLICT
14.
The agreements reached by the government of President Álvaro Uribe
Vélez and the leaders of the United Self-Defense Forces of Colombia
(hereinafter “the AUC”) led to the collective demobilization of over
thirty thousand
individuals identified as members of 34 units of the AUC, with
international verification by the OAS Mission to Support the Peace Process
in Colombia (hereinafter the “MAPP/OAS”). The government has also engaged
in dialogue with other armed guerrilla groups, some of which have joined
the collective demobilization process.
The legal framework of the process, established, inter alia, by Law 975 of
2005 (“Justice and Peace Law”),
provides a series of procedural benefits and reduced penalties for those
who, having been involved in the commission of crimes, participate in the
demobilization process.
15.
Since
2004, the IACHR has followed the dismantling of illegal armed structures
and, in particular, the enforcement of the legal framework designed to
establish the truth and ensure justice and reparations for victims of the
conflict, as a fundamental part of its advisory role for OAS member
states, the General Secretariat of the Organization, and the MAPP/OAS.
In the following sections, the IACHR describes the challenges pending with
respect to dismantling armed structures, administration of justice, and
reparation of damages caused to victims of the conflict.
A.
Dismantling of armed structures and reintegration
16.
The
Presidential High Council for Reintegration has indicated that as of June
2009, the program for the reintegration of demobilized persons had 31,199
active participants: 22,269 from AUC; 7,259 from FARC; 1,398 from ELN;
and, 273 from other groups.
In its observations, the State reported that as of November 2009, the
national government, the U.S. Agency for International Development (USAID),
and the International Organization for Migration (OIM) supported
productive initiatives of 73 persons in the process of reintegration.
17.
Among
efforts to reintegrate demobilized persons from armed groups, attention
should be drawn to the CONPES 3554 document dated December 1, 2008,
regulating the national social and economic reintegration policy for
illegal armed groups and persons,
and Resolution No. 008 of 2009 regulating access to social and economic benefits
for the demobilized population participating in the reintegration process,
and the Reintegration Information System. MAPP/OAS has highlighted the
following advances: improvement in statistics in data bases on demobilized
persons; publication of the national register of deaths, captures, and
arrests in May 2009, and its system for periodic updating; and, the record
on mobility of demobilized persons or groups.
18.
MAPP/OAS also points out in its report that participants in the
reintegration program have been the target of acts of harassment and
violence.
The IACHR notes that the National Police Office of Liaison with the High
Council for Reintegration reported the death, mostly by homicide, of 2,036
demobilized persons from 2001 to July 2009.
The High Council for Reintegration attributes the homicides to “settling
of accounts” or disputes over drug trafficking routes.
In its
observations, the State reported on the establishment of the Program for
Humanitarian Care of Demobilized Persons (PAHD) under the Ministry of
Defense, which after verification decides whether to grant program
benefits including inter alia a security plan consistent with the
citizen’s risk level.
19.
Nevertheless, as stated in previous reports, the demobilized are
being used in military and intelligence operations characterized as
activities of cooperation with the security forces, in exchange for
payment. In this regard, the Procurator General of the Nation (Procuraduría
General de la Nación) has indicated that cooperation with the security
forces has increased the personal insecurity of demobilized persons and
their families and contradicts the purposes of reinsertion in civilian
life. Consequently, the Procurator General of the Nation (Procuraduría
General de la Nación) has urged the Defense Ministry to ensure that
all proceedings related to economic benefits in return for cooperation
with the security forces exclude payments for the direct, active
participation of demobilized persons in military and intelligence
operations.
In 2009, the Procurator General of the Nation (Procuraduría General de
la Nación) reiterated that this practice violates the rules of
international humanitarian law, and specifically the principle of
distinction that protects persons who do not participate directly in
hostilities and of course persons who have laid down their arms. The
Procurator General of the Nation (Procuraduría General de la Nación)
has pointed out that demobilized persons who participate in military
operations become de facto military targets of illegal armed groups.
Thus, such participation creates criminal, administrative, or
international liability, as applicable.
20.
Despite efforts to dismantle the armed structure of the AUC,
illegal armed groups continue their involvement in acts of harassment and
violence against vulnerable groups, social leaders, and human rights
defenders. In reports by the Secretary General of the Organization of
American States to the OAS Permanent Council, he has identified problems
of violence subsequent to demobilization, according to information
obtained in the field by MAPP/OAS. According to these reports, the
situation involves a variety of processes: regrouping of demobilized
combatants into criminal gangs that exert control over specific
communities and illegal economic activities; (2) hold-outs 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.[20]
MAPP/OAS has reported that “in some parts of the country, massacres and
threats have reappeared, in conjunction with so-called ‘social cleansing’
of some vulnerable population groups.” These acts have generally been
attributed to so-called emerging gangs. It has been further observed that
“in some capitals and municipalities, high-impact crimes such as
homicides, generally executed by hired guns, have reappeared.”
21.
In the early months of 2009, MAPP/OAS reported recruitment
operations by illegal armed groups in over 17 departments, and the effects
of armed groups on the demobilized population and other vulnerable groups,
such as youth and minors. MAPP/OAS pointed out that in “most urban areas,
so-called emerging gangs are acknowledged to be the principal recruiters,
whose targets are demobilized combatants, youth, and minors. In outlying
rural areas, however, it is the guerrillas who recruit peasants,
indigenous people, youth, and minors.”
In its observations, the State reported on investigations
by the National Human Rights Unit of the Office of the Prosecutor General
of the Nation (Fiscalía General de la Nación) for the
offense of recruitment of children by irregular armed groups. It said
that 125 persons have been implicated in this offense and five have been
convicted. The State also reported that the National Justice and Peace
Prosecution Unit has been filing charges for the offence of illicit
recruitment against various individuals in the framework of the Justice
and Peace Law.
22.
In 2009, the IACHR received, as it had in previous years, reports
of the following groups: so-called “New Generation”
groups, with influence in the northern zone; “Gaitanista Self Defense
Units” and “Renacer,” with influence in the Banana Belt; and “Aguilas
Negras” with influence in different parts of the country. The press also
reported that these groups could number around 4,000 persons.
The State informed in its observations that according to statistics of the
National Police, 2,419 members of criminal bands were captured between
January and October of 2009, and 420 were killed in combat between 2008
and 2009.
It added that of the 33 structures identified in 2006 with an armed
strength of over 4,000, all that is left now is six active groups: “Banda
Criminal de Urabá”, “Los Paisas”, “Rastrojos”, “ERPAC”, “Los Machos,” and
“Renacer,” which together have 3,749 members (2,579 armed and 1,170 in
support networks).
23.
There are questions as to how many of the members of these group
may have belonged to demobilized AUC units, and whether in fact they
demobilized before joining or creating other illegal groups. Statistics
of the National Police Office of Liaison with the High Council for
Reintegration indicate that between July 2006 and July 2009, 977 of the
6,537 captured members of “criminal gangs” were demobilized combatants.
In its observations the State asserted that the National Human Rights and
International Humanitarian Law Unit of the Public Prosecutors Office
DIH of the Office of the Prosecutor General of
the Nation (has been able to confirm the existence of criminal
gangs made up of demobilized members of the AUC, which has made it
possible to start investigations that have implicated 272 individuals on
charges of homicide and aggravated criminal conspiracy.
The High Council for Reintegration is of the opinion that the percentage
of acts of violence on the part of demobilized combatants linked to the
reintegration process is no more than 7.2%, a figure that shows “that the
reintegration process is solid and those participating in it are keeping
their pledge to stay away from arms and violence.”
24.
The
State for its part implemented a national strategy against the so-called
criminal gangs (ENBAC),
aimed primarily at capturing the main leaders and dismantling the armed
structure of these groups.
To this end, security forces have given priority to the presence of
specialized units in five zones.
Although they have managed to capture leaders such as Daniel Rendón
Herrera, alias “Don Mario,” and middle-level commanders, MAPP/OAS has
pointed out that the capacity of these illegal structures to reorganize
poses a challenge to the authorities.
B.
Enforcement of the legal framework: Situation of demobilized combatants
under
the Justice and Peace Law
25.
Of the more than 30,000 persons who demobilized between November 2003 and
mid-2006, 3,734 expressed an interest in receiving the benefits of the
Justice and Peace Law.
However, as already indicated in last year’s report,
1,189 candidates decided not to go through with the process, because the
Prosecutor’s Office had no record of complaints against them.
The Commission has no concrete information of any lawsuits instituted in
connection with these demobilized individuals, who in their first
application for the benefits offered by the Justice and Peace Law
reputedly acknowledged the commission of crimes of “atrocious acts of
ferocity or barbarism, terrorism, kidnapping, genocide, and murder
committed outside combat or placing the victim in a condition of
defenselessness,"
despite the fact that they subsequently chose not to continue to
participate in the Justice and Peace Law process.
With regard to the more than 2,500 applicants who are still part of the
process, a total of
1,932
voluntary statements have been initiated, of which 1,215 have been
formally completed, but only five ended in a full confession of the facts.
26.
The information gathered in voluntary statements up to September 30, 2009
led to the exhumation of
2,778
corpses, 804 of which were fully identified and 693 have already been returned
to their families.
The State said in its observations that as of October 2009, 16,125
crimes were confessed in voluntary statements, including 4,969 homicides,
and 18,043 victims were involved. At the same time, collective voluntary
statements are being taken
in an attempt to reconstruct events such as massive disappearances,
collective armed raids, and massacres, and to allow Justice and Peace
prosecutors to triangulate information or identify points of coincidence
or contradiction between one or more applicants.
27.
The
Commission observes that five years have elapsed since the promulgation of
the Justice and Peace Law and yet still no convictions have been handed
down.
The Commission notes that only one applicant, Wilson Salazar Carrascal,
alias “El Loro”, has advanced to the trial stage, based on partial
charges, and without it being possible to issue a final judgment.
Specifically, on March 19, 2009, the Justice and Peace Chamber of the
Superior Court of the District of Bogota issued a judgment of first
instance declaring that Wilson Salazar Carrascal alias “El Loro” was
eligible to accede to benefits under the Justice and Peace Law. In the
judgment, he was convicted of aggravated homicide involving repeated
instances of the same crime [en concurso homogéneo y sucesivo], extortion,
and falsification of public documents, and he was given the principal
sentence of 460 months in prison and the additional sanction of
prohibition of public functions and rights for 20 years. The Court also
granted him the benefit of the alternative sentence of 70 months’
imprisonment and, as a result, suspended the regular sentence.
28.
The lower court’s judgment was appealed by a representative of the
Ministerio Público [Public Ministry] and by representatives of the
victims, and on July 31, 2009, the Criminal Cassation Chamber of the
Supreme Court of Justice declared null and void the proceedings beginning
with issuance of the charges, and ordered the case to be referred to the
Barranquilla Justice and Peace Prosecutor’s Office, to proceed with the
issuance of charges against “El Loro” for conspiracy to commit crimes and
other relevant charges. In its judgment, the Supreme Court considered
that the partial charges “could not be converted into generalized
practice, and that the proceedings conducted in respect of them in a
parallel and separate manner should be merged in the act of the issuance
of charges.”
It further pointed out that the judgments issued within the framework of
Justice and Peace processes should “identify the action of the demobilized
combatants within the armed group and the front to which they belonged,
their activities, the internal power structure, the criminal pattern of
the group, the orders given, and the criminal plans made, in order to
place the crimes for which they are convicted in the context of the
widespread, systematic attack on the civilian population […].”
Finally, the Court stated that the crimes committed by the applicants are
the consequence of the conspiracy to commit a crime, and that the bringing
of charges for that crime is a prerequisite for issuance of judgment.
Following the nullity decreed by the Supreme Court, there has been a
persistent absence of convictions under the Justice and Peace Law.
29.
The Criminal Cassation Chamber of the Supreme Court of Justice
upheld its position on the charge of conspiracy to commit a crime in its
decision of September 21, 2009, in which it decided to annul the
legalization determined by the Justice and Peace Chamber of the Superior
Court of Bogota in respect of the charges brought against Gian Carlo
Gutiérrez Suárez by Prosecutor’s Office 18 of the Justice and Peace Unit.
The Court questioned the fact that the Justice and Peace court decision
had not exercised material control over the charges accepted by the
applicant, limiting its action to indicating that the alleged conduct had
occurred during and on the occasion of his operation as a combatant in the
Calima Unit of the AUC, and that the charges had been accepted in a
voluntary, free, conscious, and informed manner. It further pointed to
the fact that the Justice and Peace decision legalized the criminal
charges in the context of the armed conflict, such as homicide involving
protected persons, but excluded others that occurred in the same context,
such as forced displacement, despite the fact that the same conduct is
established as a serious violation of international humanitarian law in
the Criminal Code.
30.
On this point, the Court stated that at the time that of
establishing the crimes represented by the acts in question, certain
conduct could not be placed within the specific context of international
humanitarian law while placing other conduct that occurred in the same
context outside of it, without valid arguments to so justify.
On this point, it determined that recognition should be given to the fact
that paramilitaries organized initially on the basis of two specific
objectives: to act as an anti-subversive structure; and, to act as an
organized criminal gang. In this context, it held that they
simultaneously committed war crimes, crimes against humanity, and common
crimes, and that based on that finding, it is possible to issue charges
for conspiracy to commit an aggravated crime when it is a matter of
central criminal behavior, since the criminal activities referred to in
Law 975 of 2005 respond to phenomena belonging to “organized crime”
and ”systematic and widespread human rights violations.”
31.
In the substantive part of the Court’s judgment, it appealed to the
national government to convene the principal social forces
(representatives of the three branches of government, victims’
organizations, human rights organizations, and other civilian groups) to
consider the viability of forming a truth commission that would have duly
defined functions and would help in building the historical memory of the
“paramilitary barbarity.”
32.
The Commission also deems it pertinent to recall that under Law 782
of 2002, implementing regulations for which are contained in Decree 128 of
2003, a number of demobilized individuals would appear to have been
favored by the application of legal benefits, such as pardons or
equivalent measures
for the crime of conspiracy as a result of having being members of armed
groups operating outside the law.
In its observations, the State reported that as of October 2009 pardons
had been granted to
278 applicants under
Law 975 and 267 requests for pardon had been denied.
33.
The Commission reiterates that the demobilization circuits
presented a suitable opportunity for the judicial authorities to gather
elements for establishing whether demobilized members of illegal armed
groups were involved in crimes that might be punishable under the Justice
and Peace Law. However, in the course of these voluntary statements the
prosecutors received no instructions for delving into the crimes
perpetrated and the possible applicability of the Justice and Peace Law.
In this context, the Commission observed that the voluntary statements
gathered during demobilization circuits constituted a lost opportunity for
compiling information on the units, their members, and the socioeconomic
dynamics that kept them in existence and operating.
34.
A decision of the Supreme Court of Justice of July 11, 2007,
precluded any further pardons to members of paramilitary groups. As a
result, the legal status remains unclear of approximately 19,000
demobilized combatants who failed to obtain pardons or equivalent
measures,
or who did not apply for the benefits available under the Justice and
Peace Law. In this context, on July 9, 2009, the Colombian government
promulgated law 1312 of 2009, which ordered application of the principle
of opportunity, inter alia, to
[…] anyone
demobilized from an armed group operating outside the law, who under the
terms of the standards in force has demonstrated through unequivocal
acts their purpose to be reintegrated in society, provided that they
have not been proposed by the national government for the procedure and
benefits contained in Law 975 of 2005 and are not under investigation
for offences committed before or after their demobilization other than
that of belonging to the criminal organization, which for the purposes
of this law include unlawful use of uniforms and insignia and illegal
possession of firearms and ammunition.
[…]
For these
conditions to apply, the demobilized individual shall be required to
sign a sworn statement in which they declare on pain of loss of the
benefit set forth in this article in accordance with the Criminal Code
that they have not committed any offence other than those set forth in
these conditions.
The Commission is
troubled by the promulgation of this law inasmuch as the ambiguity of its
provisions creates doubts regarding the investigation and punishment of
crimes committed by immobilized individuals and, therefore, it could
constitute a mechanism of impunity.
35.
In its observations, the State said that the principle of opportunity is
not a mechanism of impunity, that the law is clear and not at all
ambiguous, and that benefits granted under this law can be withdrawn at
any time if the demobilized individual is found guilty of involvement in a
grave felony. It also said the principle of opportunity is in the hands of
the Guarantees Control Judges and reparation to the victims is a
requirement for eligibility.
36.
Another considerable obstacle to efforts to try the applicants to
benefits under the Justice and Peace Law is the extradition of various
paramilitary leaders to the United States and the virtual paralysis of the
process of clarification of the serious crimes perpetrated by the AUC, in
many cases with the acquiescence or collaboration of state agents. The
Commission has consistently expressed its concern at the fact that failure
to elucidate these crimes undermines the rights of the victims to the
truth, justice, and reparation.
37.
In 2008, the IACHR expressed its concern over the potential impact
that extradition of 26 paramilitary leaders to the U.S.
will have on efforts to clarify
thousands of crimes.
More specifically, it noted that extradition affects the Colombian
government’s obligation to guarantee the rights of victims to the truth,
justice, and reparation for crimes committed by paramilitary groups.
Further, it prevents the investigation and prosecution of serious crimes
by the avenues established in the Justice and Peace Law in Colombia and by
ordinary criminal proceedings in Colombian courts. And, it eliminates the
possibility that victims participate directly in the search for the truth
with regard to the crimes committed during the conflict, in addition to
limiting access to reparations for the damage caused. Finally, the
Commission underlined that extradition interferes with efforts to
determine the links between government agents and paramilitary leaders in
committing human rights violations. The Colombian government explicitly
rejected the IACHR’s press release, with the argument that it was “not
consistent with the truth ... in that it was issued without hearing the
arguments of the Colombian government and without taking into account
repeated statements by the Colombian and U.S. governments” on the
cooperation agreement in the area of judicial proceedings, access to
benefits, and seizure of goods.
38.
During its 133rd Period of Sessions of the IACHR, a note
from the United States Department of State was made public, in which it
expressed its interest in facilitating continued participation in the
Justice and Peace process of the extradited persons, and invited the
Colombian judicial authorities to submit the corresponding requests for
cooperation through their domestic legal system and the procedures
provided for in international treaties on mutual assistance in criminal
matters.
39.
In a hearing held in March 2009, during the 134th Period
of Sessions of the IACHR, representatives of the Office of the Prosecutor
General of the Nation (Fiscalía General de la Nación) referred to a
timetable of voluntary statements for 2009. The timetable provided for
the holding of three voluntary statement proceedings each month. Thus:
Guillermo Pérez Alzate from Tampa, Florida on March 24, 25, and 26; April
28, 29, and 30; May 27, 28, and 29; June 24, 25, and 26; July 28, 29, and
30; August 25, 26, and 27; Salvatore Mancuso Gómez from Washington D.C. on
April 28, 29, and 30; May 26, 27, and 28; June 23, 24, and 25; July 28,
29, and 30, and August 25, 26, and 27; Ramiro Vanoy Murillo from Miami,
Florida on of April 28, and 29; May 27, 28, and 29; June 24, 25, and 26;
July 29, 30, and 31, and August 26, 27, and 28.
40.
However, various months later the Commission learned of various
obstacles to cooperation of extradited paramilitary leaders in the
proceedings under the Justice and Peace Law. They included the following
restrictions imposed by the United States prison authorities on the
extradited prisoners: their ability to receive their legal representatives
in the Justice and Peace proceedings; access to the necessary information
to ensure that their voluntary statements were based on concrete,
complete, and reliable information; suspension of voluntary statement
proceedings and/or issuance of charges, due to logistical or other
impediments; obstacles to the travel of prosecutors to the U.S. and
substitutes for them; and, the scanty number of victims in the rooms where
the voluntary statements were transmitted, due to difficulties in access
or in receiving notice of the proceedings.
41.
Specifically, the State reported
in its observations to the Commission that with respect to the
timetable for voluntary statements published by the State in March 2009,
the only ones held were those scheduled for March and May in the case of
Guillermo Pérez Alzate, those of Salvatore Mancuso Gómez scheduled for
April. It informed also that those of Ramiro Vanoy Murillo have not taken
place.
At a hearing held in November 2009 in the framework of the 137th
Regular Session of the IACHR, the State mentioned that of 11 voluntary
statement proceedings programmed for two extradited individuals, three
were cancelled and another three were postponed.
42.
In that context, the IACHR reiterates its concern at the absence of
cooperation agreements to ensure the holding and effective participation
of extradited individuals in the proceedings that must be carried out in
the framework of the Justice and Peace processes. The Commission has been
informed that as of May 2009 the Unit for Human Rights and International
Humanitarian Law of the Office of the Attorney General had submitted more
than 40 requests for judicial proceedings to the United States authorities
and had only received one reply.
The State reports in its observations that a follow-up matrix has been
made for requests from the National Human Rights and International
Humanitarian Law Unit to judicial authorities in the United States and to
date 148 requests have been made, of which nine have been answered.
43.
On October 9, 2009, the Commission requested the government,
pursuant to the powers and obligations established in Articles 41 and 43
of the American Convention on Human Rights, to provide information on the
impact of the extradition of various paramilitary leaders to the United
States on efforts to clarify the crimes under the Justice and Peace Law in
the Republic of Colombia. Specifically the Commission requested the
government to provide information on the following: the access of the
legal representatives of the persons extradited under the Justice and
Peace process to their clients, and on their ability to prepare the
voluntary statements based on concrete, complete, and reliable
information; the number of voluntary statements and other effective steps
taken with respect to each of the paramilitary leaders extradited under
the Justice and Peace Law; the number of suspended proceedings and the
reasons for their suspension; the number of voluntary statements and other
proceedings in which the victims had fully participated; and, information
on the specific agreements on judicial cooperation between the governments
of Colombia and the United States regarding steps to be taken in the
framework of the Justice and Peace processes.
44.
In its response to the request for information, the State said that
the U.S. Government, through the State Department and the Department of
Justice, “has clearly and repeatedly indicated its willingness to
cooperate in specific cases and there has been a high level of dialogue
between the authorities” of the two countries.
The State added that the high level of discussion has been reflected in
various mechanisms
to provide continuity to the voluntary statements and other phases of the
Justice and Peace proceedings. The State also said in its observations
that when Justice and Peace prosecutors schedule a voluntary statement
proceeding in the United States, they contact the victims, their legal
representatives, and other interveners to tell them the date of the
proceeding, city and place where the transmission will go. Additionally,
the above mention information is posted on the unit’s website.
45.
Along these same lines, on October 22, 2009, the Commission
requested the government of the United States, pursuant to Article 28 of
the IACHR Statute, for information on judicial cooperation and
clarification of the serious human rights violations committed during the
armed conflict in the Republic of Colombia. Specifically, the Commission
expressed its concern over the obstacles faced by the legal
representatives of the extradited in the Justice and Peace processes in
their efforts to gain access to their clients due to restrictions imposed
by the Federal Bureau of Prisons, as well as the denial of at least one
visa for a Justice and Peace prosecutor scheduled to preside over the
voluntary statements in the United States. The Commission has yet to
receive a response to its requests for information.
46.
It is important to note that in 2009, the Executive Branch took steps to
extradite other paramilitary leaders or persons involved in the justice
and peace processes. In March 2009, Miguel Ángel Mejía Múnera, alias “El
Mellizo”
and Hebert Veloza, alias “H.H” were extradited to the United States.
In the approval of the extradition of El Mellizo, on December 2, 2008, the
Supreme Court stated that “disregard for the rights of the victims by
virtue of granting extradition engages the political responsibility of the
person who ultimately grants it, namely, the President of the Republic,
since, from a functional standpoint, he is the one who directly adopts
said decision.”
47.
In August 2009, the Supreme Court of Justice denied the request to
extradite the applicant Luis Edgar Medina Flórez, on the grounds that the
extradition violated the spirit of Law 975, disregarded the rights of the
victims to the truth, and to justice and reparations, and “traumatized”
operation of the Colombian administration of justice. It held more
specifically that “extradition of paramilitaries subject to the justice
and peace process has dealt a death knell to the objective that inspired a
law intended to engender peace amongst Colombians, and the most reliable
proof of the defeat of this government strategy against violence and
illegal armed groups.”
48.
According to information on public record, in October 2009, a
commission of members of the Supreme Court of Justice met with State
Department officials and federal judges in the United States to discuss
the issue of progress in the judicial proceedings of the accused persons
extradited under the Justice and Peace Law. The IACHR has been informed
that the meeting was simply “a first step toward consolidating
objectives.”
49.
It is important to note that the extradition of these paramilitary
leaders also interferes with the government obligation to try civilians
and government agents involved in cases in which both the Inter-American
Commission and Court have established their responsibility for serious
violations of the rights protected by the Inter-American Convention on
Human Rights. In this regard, the Inter-American Court of Human Rights
has found that:
in decisions on the
application of certain criminal procedures to a person, the consideration
of charges of serious human rights violations must prevail. The
application of procedures such as extradition should not serve as a
mechanism for favoring, procuring, or ensuring impunity. Thus, due to the
lack of a judicial cooperation agreement between states that have decided
on said extradition, it is the responsibility of Colombia to clarify the
legal mechanisms, instruments, and elements or definitions that will be
applied to ensure that the extradited person cooperates with
investigations into the facts of the case in point, and, if appropriate,
to ensure his due prosecution.
50.
The IACHR reiterates its concern over the impact of the extraditions on
the rights of the victims to truth, justice, and reparations, on their
direct participation in the search for truth in the crimes committed
during the conflict, and access to compensation for the damage caused, and
on obstacles to determining the links between government agents and
leaders of the AUC and human rights violations in respect of which the
international responsibility of the State has already been established in
some cases.
C.
Participation of witnesses and victims in court proceedings under the
Justice and Peace Law
51.
By May 2009, over 219,000 victims
had registered under the Justice and Peace process, and almost 27,000 had
participated in voluntary statements
after issuance of over 3,000 notices to attend hearings.
52.
The IACHR understands that the Prosecutor’s Office (Fiscalía)
and the National Reparation and Reconciliation Commission have organized
briefing sessions at municipalities in the Departments of
Caldas, Meta, Bolívar, and
Vichada. The MAPP/OAS has referred to the creation of two Comprehensive
Victim Assistance Centers,
in the cities of Medellín (Antioquia) and Valledupar (Cesar). It has also
reported on implementation of a series of events organized to collect
biological samples to strengthen the DNA Bank of victims of forced
disappearance in Valle del Cauca
and Nariño.
However, a large number of victims have still not received adequate
guidance.
The MAPP/OAS has indicated that guidance to victims needs to be improved
in legal procedures related to the trial stage of the process. It also
highlighted the need to provide them psychosocial support during the
taking of testimony, and to prevent revictimization.
The State reported in its observations
that the CNRR intends to work through its regional offices,
advising victims before, during, and after their participation in the
voluntary statements, accompanying them to arraignment, and throughout the
trial. It added that from the victim rooms the CNRR cooperates with the
drafting of questions to the applicants and provides them with
“psychological and legal” assistance.”
53.
Moreover, it bears repeating that obstacles to victim participation
in proceedings persist.
In the first place, it has been impossible for them, either directly or
through their representatives, to question the persons who are hoping to
benefit from Law 975 regarding issues of interest to them during the
various phases of the oral hearings. The questioning of the victims is
limited to the second phase of the oral hearings, but it takes place
through an indirect mechanism, since the proposed questions are included
in a questionnaire that is given to members of the CTI, who in turn
transmit it to the Prosecutor. This indirect mechanism seriously limits
the possibility of using questioning of the victim as an appropriate way
of getting to the truth of the events. The Prosecutor’s Office is also
wasting a valuable opportunity to compare the different accounts, and
obtain information helpful for verifying compliance with the legal
requirements for access to benefits. The State said that this limitation
is due to the great number of victims who come to the voluntary statement
proceedings, which makes it impossible for each of them to speak; the
State adds that it is better for an expert to pose the question, because
that facilitates greater accuracy in the search for the truth.
Secondly, the Commission notes that the victims have experienced
difficulties in gaining access to legal advice and representation during
court proceedings.
54.
Another concern is the institutional capacity of public defenders
to provide suitable advice to the thousands of victims already
registered. Many victims still have no legal representation, which makes
it impossible for them to effectively exercise their rights. MAPP/OAS has
indicated that public defenders handle on average 400 victims each, and
that the number of defenders has not increased in proportion to the number
of victims registered. It has been reported that in municipalities in the
Departments of Cundinamarca and Vichada, victims cannot register due to
the lack or loss of identification papers.
55.
Of the over 219,000 victims registered, only 27,147—equivalent to
12%--have participated in 1,867 oral hearings. This trend is said to have
persisted throughout the three years of the justice and peace proceedings,
and remains a challenge to be confronted.
The Supreme Court of Justice has emphasized the collective nature of the
right to truth and the State’s obligation to conduct a “serious, clear,
transparent, and thorough investigation that involves the right of victims
to be heard during the process, and efforts to facilitate their active
participation in constructing the truth.”
56.
In the
case of victims actively involved in the process, their security has been
seriously compromised or directly affected by the actions of illegal armed
groups. MAPP/OAS has identified certain regions—such as southern Córdoba,
the Antioquian Urabá, Nariño, Meta, Guaviare, eastern Caldas, eastern
Risaralda, and southern Bolívar— where the presence of illegal armed
groups and the lack of control on the part of security forces has
especially endangered victims of the conflict and their ability to
participate in the justice and peace process.
MAPP/OAS has also identified acts of violence and intimidation against
Justice and Peace judicial agents in Magdalena Medio[95].
D.
Establishment of reparation mechanisms for damages to victims of the armed
conflict
57.
In its
document on Principal Guidelines for a Comprehensive Reparations
Policy, published in February 2008.
the IACHR states, inter alia, that a reparation policy should ensure the
right of victims to comprehensive reparation for damages caused both by
illegal armed groups and by the acts or omissions of state agents, based
on measures that offer restitution, indemnification, rehabilitation, and
satisfaction. The IACHR further maintains that such policies should be
guided by the principle of comprehensiveness and conform to the parameters
established by the inter-American system in reparations awarded in similar
situations, which have been partially adopted in the recent case law of
Colombian administrative review courts [jurisdicción contencioso
administrativa].
58.
At present, victims may pursue their right to reparations either
through the reparations process stipulated in the Justice and Peace Law,
instituted in 2005, or by availing themselves of Decree 1290/08, adopted
on April 22, 2008, which provides for an administrative reparations
program to be established for the purpose of granting individual
reparations to persons who suffered violations of their basic rights due
to the action of armed groups operating outside the law that were
demobilized in accordance with the terms of the Justice and Peace Law.
The process stipulated under the Justice and Peace Law has not yet been
activated due to procedural delays in the cases brought in this context.
The administrative reparations program under Decree 1290/08 only covers
victims of demobilized armed groups, and is primarily based on a plan for
compensation with established parameters, measured in minimum wages. The
State stated in its observations that in March 2010 it will present a
CONPES document including non-monetary care and reparation measures for
the victims, and the Program for Land Return and the Collective
Reparations Institutional Program.
59.
As of December 2009, the Administrative Reparations Committee, the
implementing agency for Decree 1290, had received more than 275,000
applications for accreditation of victim status.
On July 5, 2009, 2,000 victims of illegal armed groups were the first
beneficiaries of the administrative reparations program for individuals;
of these, 1,300 were under the Social Action order, and the remaining 700
were a group given priority by the Administrative Reparations Committee
“because of their vulnerability and the seriousness of the violations,
including victims of sexual crimes, minors who separated from illegal
armed groups and are under ICBF protection, and civilian victims of
anti-personnel land mines.”
The reparations were in the form of a lump-sum payment, one of the
comprehensive reparation measures provided in Decree 1290 on
Administrative Reparations. They also include restitution,
rehabilitation, measures of satisfaction and guarantees of non-repetition,
which, according to official information, will be granted to the victims
by execution of a CONPES document that the government will issue in March
2010.
60.
In 2007, a bill was sent to Congress that was intended to address
comprehensively the right to reparations of victims of armed conflict.
The bill, “that included measures for protection of victims of violence,”
was approved by the National Senate after lengthy discussions that covered
issues such as the universe of victims, the responsibility of the State,
and fiscal restrictions.[102]
Days later, following debate, the bill was approved in the First Committee
of the Chamber of Representatives, along with a series of substantive
amendments, highly criticized by Colombian civil society organizations and
by the international community.[103]
61.
The IACHR expressed its concern, since the bill excluded victims of
human rights violations committed by state agents from the administrative
program for reparations, by requiring them first to exhaust judicial
remedies, and it established a ceiling on compensation under this
reparation mechanism. The Rapporteur for Colombia spoke to the
authorities regarding his concern over the difference in treatment between
victims of illegal conduct by groups operating outside the law and victims
of illegal conduct by state agents, and over how this affected the
principle of comprehensive reparations. The Minister of the Interior and
Justice
responded that the government intended to pressure Congress to amend the
bill to eliminate the ceilings on compensation and to institute
abbreviated judicial procedures for cases of this type.
62.
In June 2009, after discussions in the Senate and Chamber of
Representatives, a new version of the bill offering victims of crimes by
state agents access to reparations was defeated in the Congressional
Conciliation Committee by 48 votes against and 24 in favor. The Office of
the President of the Republic issued a press release rejecting any
compromises affecting the bill that would generate high costs or would
make the crimes committed by illegal groups comparable to those committed
by state agents. It stated specifically that a cost in excess of 80
billion pesos “would create an irreparable setback to government finance
and would make it impossible to offer monetary reparations to victims, and
that the final text would turn out to be nothing more than a dead letter
that served to quell a temporary public stir.” The government further
contended that the compromise text “poses a serious threat to democratic
security, since it puts government agents on the same footing as
terrorists, without these agents having the benefit of judicial
proceedings and a final court decision awarding damages to the victims for
whom they are allegedly responsible.” Finally, the government pledged to
continue with the reparations program under Decree 1290.
63.
In view of the lack of progress in the parliamentary debate on the
bill for victims’ reparations, the Commission reiterates the importance of
guaranteeing the right of victims to reparations for damages caused both
by illegal armed groups and by the action or omission of state agents,
based on measures for restitution, compensation, rehabilitation, and
satisfaction, in light of the principle of comprehensiveness. Moreover,
implementation of a reparations program established by law should be
accompanied by a commitment of social solidarity with the victims of the
conflict on the part of Colombian society, a commitment that would be
facilitated by mechanisms for consultation, follow-up, and evaluation, to
give it stability and enable it to be sustained over time. At a hearing
held in October 2009 in the framework of the 137th Regular
Session of the IACHR, the State said that it had submitted a new victims’
law to Congress.
The Commission will continue to monitor progress in adoption of effective
measures to ensure comprehensive reparation of injuries to victims of the
armed conflict.
II. CONTINUED VIOLENCE AS PART OF THE ARMED CONFLICT
64.
The IACHR is still receiving reports of crimes committed by armed
groups operating outside the law. In addition to the emerging armed
groups referred to in the previous section, FARC and ELN continue to
perpetrate acts of violence to terrorize and punish civilians and
communities,
and to use anti-personnel land mines in violation of the rules of
international humanitarian law.
These violations of human rights and international humanitarian law
against the civilian population exacerbate the ongoing problem of internal
displacement.
A.
Extrajudicial executions
65.
With regard to available statistics on deaths in the context of the
conflict, the “Observatory of Human Rights and International Humanitarian
Law” under the Office of the Vice-President of the Republic—based on its
methodology—
indicates that between January and August 2009, there were 10,737
homicides.
It further reports that during that same period, there were 20 cases of
massacres with 102 victims. CINEP—following its own methodology for
compilation
and presentation of statistics—reports as follows: from January to June
2009, there were 362 extrajudicial executions,
245 voluntary homicides of protected persons, and 18 forced
disappearances.
It indicates that in September 2009, there were two episodes of “false
positives” that led to four victims of extrajudicial execution.
The IACHR believes that both sources should be cited in its report,
despite the considerable methodological discrepancies between them, in
order to give an idea of the panorama presented by both official and civil
society sources,
as this is consistent with its practices.
66.
The reports of extrajudicial executions perpetrated by members of
the security forces have been a concern of the IACHR expressed in its
2006, 2007, and 2008 annual reports.
The IACHR and the international community continue to be keenly interested
in clarifying these reports and in following up on the measures adopted by
the State to prosecute the responsible parties and to prevent future
incidents.
67.
As the IACHR has observed in 2008, the high number of extrajudicial
executions reported led to the identification of a number of patterns
followed when extrajudicial executions are committed, in particular the
following: extrajudicial executions committed in the course of
anti-insurgent military operations, although witnesses state that no
combat was involved; in many instances, the victim is unlawfully taken
into custody at his home or workplace and taken to the place of execution;
persons executed or disappeared are generally campesinos,
indigenous persons, laborers, youth, disadvantaged persons or community
leaders; the military or police report the victims as being insurgents who
died in combat; often the victims turn up wearing uniforms and with arms
and military equipment of various kinds, even though, according to the
testimony, at the time of their disappearance they were wearing their
customary attire and unarmed; occasionally the victims are fingered
beforehand by anonymous informants wearing hoods, or re-assimilated
persons; at other times, the victims are selected at random; the
inspection of the body is done by the same military or police force that
had previously listed the victims as “fallen in combat”; the crime scene
is not preserved nor is any evidence or proof; frequently the body shows
signs of torture; they are stripped of personal objects and their
identification papers are disposed of; the bodies are taken to places far
from where the abduction occurred and there are serious difficulties
locating family members to identify the body; bodies are buried as
unidentified persons, even when they have been identified by family
members or third persons; members of the military and police are given
financial and professional incentives and rewards for producing
“positives”; from the outset, military criminal courts have jurisdiction
over such cases and often the Prosecutor’s Office does not challenge the
military court’s jurisdiction; relatives of the victims, witnesses and
human rights defenders trying to solve such cases are threatened and
intimidated; the percentage of those convicted for such crimes is
infinitesimal.[118]
68.
In 2009, the United Nations Rapporteur on Arbitrary Executions,
Professor Philip Alston, paid a visit to Colombia to take testimony on
extrajudicial executions in the Departments of Antioquia, Arauca, Valle
del Cauca, Casanare, Cesar, Córdoba, Huila, Meta, Norte de Santander,
Putumayo, Santander, Sucre, and Vichada, and he indicated that, despite
evidence to the contrary, based on ballistic and forensic reports and
declarations of eye-witnesses, some officials continue to assert that many
of the cases that are called executions are actually legitimate guerrilla
casualties.
In his final statements after the visit, the Rapporteur described the
following pattern: a “recruiter” tricks the victim and takes him to a
remote location, where members of the security forces murder him. The
place where the events occur is manipulated to make it look like the
person was killed in combat, and the victim is buried in a common grave.
The Commission received complaints of acts of intimidation from relatives
of victims in Soacha during its visit in November 2008.
The Rapporteur also reported acts of harassment against family members of
victims, and the murder of one of the family members of the victims in the
case that took place in Soacha in 2008.
69.
It should be noted that the number of convictions for extrajudicial
execution has been scanty. In this regard, as the Commission had already
mentioned in its analysis in 2008,
the United Nations Rapporteur identified as obstacles to the clarification
of these crimes the lack of resources and personnel trained in this area
in the Human Rights Unit of the Office of the Prosecutor General of the
Nation (Fiscalía General de la Nación), and the failure on the part
of the military criminal courts in some parts of the country to refer
investigations to the ordinary criminal courts.
70.
In its report for 2008, the IACHR expressed its concern over the
large number of reports received and the lack of clarification. However,
it pointed to the measures adopted by the State to train legal agents,
the incentives linked to operational results,
the participation of the Technical Investigative Corps (CTI) of the
Prosecutor’s Office in the initial procedures linked to the events,
the steps taken by the security forces to regulate themselves,
and the call to evaluate the service of a number of officials. MAPP/OAS,
for its part, reported that 750 members of the security forces were
removed at the discretion of the Executive Branch.
71.
As for clarification of judicial reports, the State had a record of
317 cases of homicides allegedly attributed to state agents, but not all
of these cases were homicides involving protected persons. Likewise, the
Human Rights Unit of the National Office of the Prosecutor General
counted 1,230 cases affecting 2,103 victims in the past six years.
In the State’s observations, it reported on five special expediting
committees used in 2009, which involved 71 officials of the unit. To
date, 1,081 members of the Army have been linked to these crimes, and 474
of them had detention orders [medidas de aseguramiento]. The
Procuraduría General de la Nación is moving forward with disciplinary
investigations.
72.
The Commission observed that in the first half of 2009, there was a
decline in cases of extrajudicial executions, as indicated above.
However, during that same period, nine cases of executions committed in
previous years came to light. Specifically, 48 cases involving 82 victims
were disclosed, primarily in the Departments of Antioquia, Valle del
Cauca, and Quindío.
The IACHR considers it necessary to reiterate the importance of conducting
speedy investigations, and of taking steps to prevent harassment of and
attacks on family members of victims who have reported these crimes.
73.
During 2009, an upsurge and exacerbation of acts of social
intolerance and collective threats were reported. According to CINEP, in
the first half of 2009, there were 95 cases and 180 victims of social
intolerance
in 21 departments, with the largest number of victims in Santander
Department. The majority of these acts are attributed to paramilitary
groups, state agents working in conjunction with paramilitary groups, or
“social cleansing”.
In the first half of 2009, there were 82 cases of collective threats,
mostly through pamphlets, in 24 departments, primarily attributed to
paramilitary groups (98%), and to a lesser extent joint operations of
paramilitaries and state agents (2%). In all cases, the main sectors
affected are street people, sex workers, drug pushers and users, young
people, homosexuals, laborers, and local people in the threatened
municipalities and neighborhoods.
74.
In view of information on a spike in other forms of violence, the
IACHR reiterates that the active protection of the right to life and other
rights enshrined in the American Convention falls within the context of
the state’s duty to guarantee the free and full exercise of the rights of
all persons under the jurisdiction of a state, and requires it to adopt
the measures required to prosecute and punish the parties responsible for
arbitrary deprivation of a person’s life, personal safety, and freedom.
It is especially required to prevent the violation of these rights by the
state’s’ own security forces.
[Table
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Observations of Colombia on the Draft Report of the Inter-American
Commission on Human Rights on the Country for 2009, December 13, 2009.
Created in 1997, the Protection Program was a partnership of
government and civil society to protect certain sectors of the
population at particular risk from the actions of armed outlaw groups,
as regards their rights to life, humane treatment, freedom, and
personal security. The objectives of the Program are: (1) to
strengthen government agencies at the national regional, and local
levels so as to enable them to undertake joint, coordinated,
integrated, and permanent measures to prevent human rights violations
and to protect the rights of inhabitants of targeted at-risk
communities; (2) to strengthen the traditional organizational
structures, traditional authorities, and social organizations of the
targeted at-risk communities, so that they can develop initiatives,
make proposals, coordinate with public authorities, and become
involved in the implementation, follow-up, and oversight of measures
aimed at preventing violations and protecting human rights and
international humanitarian law; and (3) to re-establish or improve the
relationship between the state and the community, for the purpose of
coordinating, developing, monitoring, and evaluating the preventive
and protective measures proposed in the action plans.
For more than a year and a half, the demobilization, surrender of
weapons and re-assimilation into civilian life proceeded under the
system for individual and collective demobilization instituted by
Decree 128 of 2003, which contained regulations for implementing Law
418 of 1997, extended and amended by Law 584 of 1999 and Law 782 of
2002 on reinsertion into civil society. On June 22, 2005, the
Congress of the Republic passed Law 975 (2005), which entered into
force once the president signed it on July 22, 2005. On December 30,
2005, Decree No. 4760 of the Ministry of the Interior and Justice was
issued, which regulates certain aspects of Law 975 related to the
deadlines for investigating those seeking to avail themselves of the
benefits of the law –Article 4- and introducing the principle of
timeliness for third parties involved with the possession, holding,
transfer, and, in general, ownership of illicit goods handed over to
make redress to victims –Article 13. On September 29, 2006, Decree
No. 3391 was published, which partially regulated Law 975 (2005),
Ministry of the Interior and Justice, Decree No. 3391 (2006),
September 29, 2006, “Partially regulating Law 975 (2005).”
Information broken down by principal reception sites: Antioquia
7,308, Bogotá 3,753, Córdoba 2,609, other sites 15,776. Information
broken down by gender: female 3,878 and male 27,321. See information
disseminated by the Presidential High Council for Reintegration at:
http://www.reintegracion.gov.co/
The CONPES document covers aspects such as inclusion of the
institutions available for the children and adolescents who have
severed ties under the action plan of the national reintegration
policy, and specifies a joint strategy with the Office of the National
Prosecutor General to resolve delays in judicial proceedings,
especially in rendering voluntary statements. In addition, the
document includes a gender perspective. Thirteenth Quarterly Report
of the Secretary General to the Permanent Council on the Mission to
Support the Peace Process in Colombia
(MAPP/OAS),
19 October 2009.
The ACR uses this data base to keep a monthly statistical record of
participants who transfer from one services center to another.
Thirteenth Quarterly Report of the Secretary General to the Permanent
Council on the Mission to Support the Peace Process in Colombia (MAPP/OAS),
October 19, 2009.
Thirteenth Quarterly Report of the Secretary General to the Permanent
Council on the Mission to Support the Peace Process in Colombia (MAPP/OAS),
October 19, 2009.
See Sixth Quarterly Report of the Secretary General to the Permanent
Council on the Mission to Support the Peace Process in Colombia (MAPP-OAS).
See OEA/Ser.G/CP/doc. 4148/06, 30 August 2006; Eighth Quarterly Report
of the Secretary General to the Permanent Council on the Mission to
Support the Peace Process in Colombia (MAPP-OAS), OEA/Ser.G. CP/doc.
4176/07, 14 February 2007; Ninth Quarterly Report of the Secretary
General to the Permanent Council on the Mission to Support the Peace
Process in Colombia (MAPP-OAS). 3 July 2007; Tenth Quarterly Report
of the Secretary General to the Permanent Council on the Mission to
Support the Peace Process in Colombia (MAPP-OAS), 31 October 2007;
Eleventh
Quarterly
Report of the Secretary General to the Permanent Council on the
Mission to Support the Peace Process in Colombia (MAPP-OAS), 25 June
2008; Twelfth
Quarterly Report of
the Secretary General to the Permanent Council on the Mission to
Support the Peace Process in Colombia (MAPP-OAS), 9 February
2009.
MAPP/OEA points out that the term “social cleansing” also refers to
violent acts against specific persons for the purpose of seeding fear
and gaining social control in communities. Thirteenth Quarterly
Report of the Secretary General to the Permanent Council on the
Mission to Support the Peace Process in Colombia (MAPP-OAS), 19
October
2009.
Thirteenth Quarterly Report of the Secretary General to the Permanent
Council on the Mission to Support the Peace Process in Colombia (MAPP-OAS),
19 October
2009.
The State said that of the 272 persons, 48 accepted an early verdict,
and 96 have been formally indicted. Observations of Colombia on the
Draft Report of the Inter-American Commission on Human Rights on the
Country for 2009, December 13, 2009, p. 7.
Among measures taken in the framework of the national strategy against
the so-called criminal gangs, the State in its observations also
mentioned Order 208 of 2008, “which established an Advisory Group at
the highest legal and military level to evaluate and recommend to the
Commandant General the approval of military support for the National
Police when a criminal gang exceeds the National Police’s operational
capacity.” Observations of Colombia on the Draft Report of the
Inter-American Commission on Human Rights on the Country for 2009,
December 13, 2009, p. 7.
The State said in its observations that between January 1 and November
30, 2009, the National Police carried out 406 operations against these
organizations, in which 815 handguns were seized. It also said that
the National Police has confiscated 19.7 tons of drugs from criminal
gangs and has expropriated 112 properties. Defense Ministry. From
Internet December 7, 2009,
http://www.mindefensa.gov.co/index.php?page=181&id=9866&PHPSESSID=d956c975f2d569da4e5f9b303c480328
in Observations of Colombia on the Draft Report of the Inter-American
Commission on Human Rights on the Country for 2009, December 13, 2009,
pp. 5 and 6.
Law 782 of December 23, 2002, which amends a number of provisions and
extends the period in force of Law 418 of 1997, which had been
extended and modified by Law 548 of 1999. In its observations, the
State said that Article 50 of said law states: “[the] national
government may in each individual case grant a pardon to citizens who
have been convicted and sentenced for political crimes when in the
government’s opinion the irregular armed group in the peace process,
to which the applicant belongs, has demonstrated a willingness to
return to civilian life.
Pardon may also be
granted to citizens who request it and, individually and of their own
free will, abandon their activities in irregular armed groups and
demonstrate to the national government’s satisfaction their
willingness to return to civilian life.
The provisions of
this article shall not apply to persons whose conduct constitutes
ferocious or barbarous atrocities, terrorism, kidnapping, genocide,
homicide outside of combat, or rendering the victim defenseless.
Paragraph 1°. Pardon
shall not be granted for acts for which this benefit has previously
been denied, unless the interested party supplies new evidence that
alters the circumstances that were the basis of the decision.”
Observations of Colombia on the Draft Report of the Inter-American
Commission on Human Rights on the Country for 2009, December 13, 2009,
p. 7.
In most cases, the information had already been collected in the
demobilization circuits. IACHR. Follow-up on the Demobilization
Process of the AUC in Colombia, Digest of Published Documents
(2004-2007). III. The First Judicial Proceedings under the Justice and
Peace Law, pars. 20-24. Available at
www.cidh.oas.org/pdf%20files/Colombia-Demobilization-AUC%202008.pdf.
Observations of Colombia on the Draft Report of the Inter-American
Commission on Human Rights on the Country for 2009, December 13, 2009,
p. 15.
Order of July 31, 2009, Case No. 31.539, Supreme Court of Justice
Criminal Cassation Chamber, Judge Sigifredo Espinosa Pérez, Appeal,
September 21, 2009.
Specifically, the Court stated that “in view of the magnitude of the
crimes committed by demobilized paramilitaries and the difficulties
that have arisen so far in completing the few proceedings that have
managed to reach advanced stages, it is recommended that a truth
commission be set up in keeping with the particular needs of our
situation, to operate alongside judicial processes and fulfill
complementary roles related to clarification of the truth sought by
society.” Supreme Court of Justice, Criminal Cassation Chamber, Judge
Sigifredo Espinosa Pérez, Appeal, September 21, 2009.
Article 13 of Decree 128 of 2003. “Legal benefits. In keeping
with the law, the demobilized who had been part of illegal armed
organizations with respect to whom the Operational Committee on Laying
Down Arms (CODA) issues the certification that is the subject of
Article 12(4) of the present Decree, shall have the right to pardon,
conditional suspension of enforcement of the penalty, cessation of
proceedings, preclusion of the investigation, or the resolution of
dismissal, depending on the status of the proceedings.”
On July 11, 2007, the Supreme Court of Justice ruled that
participation in paramilitary groups does not constitute the political
crime of sedition. The decision removed any further possibility for
members of paramilitary groups to continue to receive pardons under
law 782 of 2002 and Decree 128 of 2003. The Supreme Court found, “6.
The offences committed by persons connected with paramilitary groups,
as is the case with the members of the autodefensa groups who
have demobilized based on agreements with the National Government, can
in no circumstances be considered sedition since such conduct cannot
be subsumed under the definition of a political offence. […] In
accordance with the imperative mandates that emanate from the
principle of nullum crimen nulla poena sine lege praevia
interpreted bearing in mind the rule of proportionality, it is an
error of democracy to permit illegitimate aims to gather strength
through erroneous jurisprudence, given that the conspiracy to commit
crimes is the appropriate standard for responding to the threats and
injuries to legal rights that originate from the power structures
constituted by the paramilitary or autodefensa groups.” Supreme
Court of Justice, Criminal Cassation Chamber, Case No. 26945, Opinion
of the Court delivered by Judges Yesid Ramírez Bastidas and Julio
Enrique Socha Salamanca, July 11, 2007.
110. The obligation that arises pursuant to international law to try,
and, if found guilty, to punish the perpetrators of certain
international crimes, among which are crimes against humanity, is
derived from the duty of protection embodied in Article 1(1) of the
American Convention. This obligation implies the duty of the States
Parties to organize the entire government system, and in general, all
agencies through which the public power is exercised, in such manner
as to legally protect the free and full exercise of human rights. As a
consequence of this obligation, the States must prevent, investigate,
and punish all violations of the rights recognized by the Convention
and, at the same time, guarantee the reinstatement, if possible, of
the violated rights, and as the case may be, the reparation of the
damage caused due to the violation of human rights. If the State
agencies act in a manner that such violation goes unpunished, and
prevents the reinstatement, as soon as possible, of such rights to the
victim of such violation, it can be concluded that such State has not
complied with its duty to guarantee the free and full exercise of
those rights to the individuals who are subject to its jurisdiction.
111. Crimes against humanity give rise to the violation of a series of
undeniable rights that are recognized by the American Convention,
which violation cannot remain unpunished. The Court has stated on
several occasions that the State has the duty to prevent and combat
impunity, which the Court has defined as “the lack of investigation,
prosecution, arrest, trial, and conviction of those responsible for
the violation of the rights protected by the American Convention.”
Likewise, the Court has determined that the investigation must be
conducted resorting to all legal means available and must be focused
on the determination of the truth and the investigation, prosecution,
arrest, trial, and conviction of those persons that are responsible
for the facts, both as perpetrators and instigators, especially when
State agents are or may be involved in such events. In that respect,
the Court has pointed out that those resources which, in view of the
general conditions of the country or due to the circumstances of the
case, turn to be deceptive, cannot be taken into account. I/A Court
H.R., Almonacid Arellano et al. Vs.
Chile Case.
Judgment of September 26, 2006. Series C No.
154.
Hearing on Guarantees for the Exercise of the Rights of Members of the
National Movement of Victims of State Crimes, Colombia, held on
November 5, 2009 in the framework of the 137th Regular Session of the
Inter-American Commission on Human Rights.
http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2.
For example, Memorandum No. 77 issued by the Supervising Judge of the
Superior Court in and for Barranquilla notes the suspension of the
indictment hearing of Salvatore Mancuso as “the budgetary constraints
have not yet been overcome and, therefore, the Superior Council of the
Judicature is unable to take the necessary steps for the indictment
within the videoconference requested at the indictment hearing and
imposition of pretrial detention on Mr. Salvatore Mancuso Gómez.”
That document also mentions the prosecution’s brief of August 6, 2009,
which informed the Director of International Affairs of the Office of
the Attorney General “of the suspension of the hearing scheduled for
[August] 11, 12, and 13, bearing in mind the written statement from
Mr. Mancuso’s defense counsel that the transfer of the accused from
his place of confinement entailed the seizure of documents and
information collected from the cases confessed, as well as the
isolation of the defense team […] which makes it impossible to satisfy
the requirements provided in Law 975 of 2005 […]”. Supervising Judge
of the Superior Court in and for Barranquilla, Memorandum No. 77,
Preliminary Hearing, Case 11001-60-00253-2006-80008, August 11, 2009.
Among mechanisms cited by the State are “exchange of notes on the
subject, appointment of a Legal Attaché at the U.S. Embassy in Bogotá
to channel requests immediately to appropriate authorities in the
United States, meetings that have taken place between Colombian and
U.S. authorities, all in the framework of the Inter-American
Convention on Mutual Assistance in Criminal Matters […] and the terms
of the extradition resolutions, which call for, among other things,
the spontaneous delivery of evidence by the United States of America,
the continuation of proceedings for voluntary statements not yet
completed, and that assets surrendered by extradited persons under
negotiated agreements with U.S. legal authorities be used for
reparation for victims in Colombia.”. DDH Note No. 65464 of November
27, 2009, from the Office of Human Rights and International
Humanitarian Law of the Ministry of Foreign Affairs of the Republic of
Colombia.
The request for the arrest for purposes of extradition of “HH” was
contained in verbal note No. 1925 of the Embassy of the United States
in Colombia, and presented to the Legal Office of the Ministry of
Foreign Affairs of the Republic of Colombia on July 9, 2007. In
verbal note No. 2910 of September 20, 2007, the Embassy of the United
States sent a formal request for extradition. The Supreme Court of
Justice approved the extradition of
“HH” on July 31,
2008. Supreme Court of Justice, Criminal Cassation Chamber, July 31,
2008 (judgment approving the extradition of
Hebert Veloza García).
Supreme Court of Justice, Chamber of Criminal Cassation, judgment on
the extradition of Luis Édgar Medina Flórez, August 19, 2009.
I/A Court H.R., “Mapiripán Massacre” v. Colombia Case.
Supervision of compliance with judgment. Resolution of July 8, 2009,
para. 41.
See IACHR, 2009 Annual Report, Chapter V: Follow-Up Report: Women
facing Violence and Discrimination as a result of the Armed Conflict
in Colombia, IV. Prospects for Truth, Justice, and Reparations
MAPP/OAS pointed out that in this zone, serious acts were committed
against leaders of victims who were participating in land restitution,
including murder of leaders Benigno Gil, Jaime Gaviria, Juan Jiménez,
and Ana Gómez. MAPP/OAS
indicated that the alleged perpetrators were arrested and
investigations are ongoing. Thirteen Quarterly Report of the
Secretary General to the Permanent Council on the Mission to Support
the Peace Process in Colombia (MAPP/OAS), October 19, 2009.
In the State’s
observations, it reported that the registry of threatened victims in
the National Unit of Justice and Peace Prosecutors as
of December 3,
2009, showed the following statistics: demobilized persons threatened,
34 applicants
threatened, 37 family members of applicants threatened, 10 members of
associations, groups, communities, ethnic groups, black groups, etc.,
1,406 victims threatened, 20 victims killed, and 15 government
employees threatened. Observations of Colombia on the Draft Report of
the Inter-American Commission on Human Rights on the Country for 2009,
December 13, 2009, pp. 16-17.
MAPP/OAS reported the assassination of Larry Churrón, Chief
Investigator of Prosecutor’s Office 14 in Barranquilla; he was working
on investigations of the Córdoba Unit of the former AUC.
Thirteen Quarterly Report of the Secretary General to the
Permanent Council on the Mission to Support the Peace Process in
Colombia (MAPP/OAS), October 19, 2009.
National
Reparation and Reconciliation Commission, first delivery of
administrative reparations, July 5, 2009, available at:
http://www.cnrr.visiondirecta.com/09e/spip.php?article1697. The
State reported in its observations that by December 31, 2009, it will
have paid 200 billion pesos, representing more than 10,000 cases. It
added that for 2010, the national government has allocated 300 billion
pesos for administrative reparations. Observations of Colombia on the
Draft Report of the Inter-American Commission on Human Rights on the
Country for 2009, December 13, 2009, p. 18.
Hearing on the General Situation of Guarantees for the Exercise of the
Rights of Members of the National Movement of Victims of State Crimes,
Colombia, held November 5, 2009, at the 137th Regular
Period of Sessions of the IACHR.
http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=ES&Session=117&page=2.
In its observations the State said two bills are currently awaiting
first reading in the Congress:: PL 001/09: First Committee of the
House of Representatives, and PL 036/09: First Committee of the House
of Representatives. Observations of Colombia on the Draft Report of
the Inter-American Commission on Human Rights on the Country for 2009,
December 13, 2009, p. 18.
Although CINEP has based its statistics on press sources, it has
recently indicated in its report that it has had to “...abandon most
of the press sources and listen more to live, direct accounts of the
victims, their families, their organizations, attorneys, and social
environment […]. We are increasingly more convinced that it is
impossible to try to offer statistics of serious human rights
violations and IHL violations in Colombia [..]. There are many reasons
why a significant, and sometimes huge number of these violations
remain in silence or never reach the agencies that could report them.
The reasons frequently have to do with fear [..]. Reasons also have
to do with resources and limited communications, in a country covering
a large expanse of land with enormous poverty [..]. Reasons may have
to do with a lack of information and the absence of mediators to
process and collect reports. [..] Many acts come to light or are
reported months and years after they occur.” See CINEP Data Bank,
Noche y Niebla No. 34/35, page 15. For more details, see “Summary of
the conceptual framework adopted by the Data Bank” at
http://www.nocheyniebla.org. Note that this source published the
list of victims of the acts covered by its statistics.
See IACHR, Chapter IV – Colombia, in the 2006 Annual Report of the
IACHR; Chapter IV – Colombia in the 2007 IACHR Annual Report, and
Chapter IV-Colombia in the 2008 IACHR Annual Report.
[118]
Preliminary report of the “International Mission of Observers on
Extrajudicial Executions and Impunity in Colombia,” made public in
Bogotá on October 10, 2007. See also Human Rights and International
Humanitarian Law Observatory of the Colombia–Europe–USA Coordination,
“False Positives: Extrajudicial killings directly attributed to the
security forces in Colombia, July 2002 to June 2006.” Annual Report
2008, Chapter IV Colombia:
http://www.cidh.oas.org/annualrep/2008eng/Chap4.a.eng.htm.
Statement by Professor Philip Alston, United Nations Special
Rapporteur for Extrajudicial Executions, Mission to Colombia June
8-18, 2009, available at:
http://www.hchr.org.co/documentoseinformes/documentos/relatoresespeciales/2009/Colombia%20Press%20statement.pdf.
In the State’s observations it said that there had been 41
convictions, with 132 persons sentenced, and that in 2009 the Human
Rights United allocated 13.26% of its budget to deal with this
situation, which enabled it to provide a more effective response in
the investigations. Observations of Colombia on the Draft Report of
the Inter-American Commission on Human Rights on the Country for 2009,
December 13, 2009, p. 19.
[123]
The IACHR received a copy of the Protocol for recognition of human
rights and IHR violations, with an emphasis on homicide of protected
persons, which was published in July 2008. Note from the Ministry of
Foreign Affairs, DDH 50992/2420 of September 30, 2008.
In its report for 2008, the Commission referred to Directive No. 19 of
2007 that ordered the commanders of military units to “exhaust
available resources so that when acts occur that appear to be
homicides of allegedly protected persons, the inspection is performed
by permanent organs of the judicial police.”
In its report for 2008, the Commission stated that as regards
“self-regulatory” measures, on June 6, 2007, the Ministry of Defense
issued Directive No.. 10 of 2007 in which it reiterated the
obligations of law enforcement officials and created a “Committee to
Follow Up on Reports of Alleged Homicides of Protected Persons,”
composed of the Minister himself, the Commander of the Military
Forces, and other ministerial and military officials, for purposes
related to self diagnosis, self regulation, and prevention. 2008
Annual Report, Chapter IV – Colombia, at:
http://www.cidh.oas.org/annualrep/2008sp/cap4.Colombia.sp.htm.
CINEP,
Special Report, first half of 2009: From “False Positives” to Social
Intolerance and Collective Threats, October 2009, available at:
www.cinep.org.co.
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