REPORT ON THE IMPLEMENTATION OF THE JUSTICE AND PEACE LAW: INITIAL STAGES IN THE DEMOBILIZATION OF THE AUC AND FIRST JUDICIAL PROCEEDINGS

A.        Uncertainty over the interpretation of the legal framework: retroactive effect of the ruling of the Constitutional Court and Decree 3391

49.              As the IACHR maintained in its statement of August 1, 2006, the decision of the Constitutional Court substantially improved the legal framework for the demobilization process, but there is still uncertainty as to the rules that will govern the judicial process.  There is in fact debate over the possible retroactive application of various points of the Constitutional Court's ruling, recognizing that such application might eventually violate the principle of favorability or most lenient criminal law.  This uncertainty will be gradually overcome during the first judicial decisions that will interpret and apply the Justice and Peace Law in light of the ruling of the Constitutional Court in each particular case.

50.              In this context, the adoption of Decree 3391[48] of September 2006, confirming some of the conditions established in the ruling of the Constitutional Court and regulating other aspects in contradiction to what the court said in that ruling, has generated further confusion over the interpretation of the Justice and Peace Law.

51.              In the first place, Decree 3391 provides that any time spent at a detention center before the supervising judge decides on the imposition of preventive detention will be discounted from the corresponding alternative penalty.[49]  This provision has been interpreted in the sense of reestablishing the meaning of Article 31 of the Justice and Peace Law, which had been invalidated by the Constitutional Court.  Therefore the time that demobilized persons might have spent in the concentration zone could be discounted from the prison sentence imposed as penalty.

52.              On this point, the Constitutional Court, in its ruling, declared Article 31 of the Justice and Peace Law to be unconstitutional,[50] and held:

Even in the framework of an instrument that invokes as its fundamental purpose the establishment of peace in the country, the penalty cannot be stripped of its attribute of just and adequate reaction to crime, nor can it take place outside the State interventions that the exercise of jus puniendi demands in a constitutional State. The first would produce impunity that is undesirable even in the context of a pacification process, and the second would destroy the legitimacy of the sanctioning power of the State.  A punitive regime that strays in either of these directions would be contrary to the Constitution.

Under these assumptions, the Court notes that the challenged Article 31 equates the serving of a penalty with the circumstance of being located in a concentration zone, although there was no State measure that required persons to be there.  In this respect, it does not constitute a penalty because it does not entail the coercive imposition of a restriction on fundamental rights.  Generally speaking, the fact that members of outlaw armed groups remained in a concentration zone as part of the demobilization process reflects a voluntary decision of those persons, which eliminates any possibility of equating the serving of a sentence with such a situation, which precludes and replaces State interventions that characterize the State monopoly of the sanctioning power.[51]

For the IACHR it is clear that, beyond any discussion over the temporal scope of the court's decision, it has established that time spent in a concentration zone cannot be equated with time served in prison.  This constitutional interpretation on what must be understood as penalty in the Colombian legal system should be decisive for the judges when it comes to determining the alternative penalties for persons eligible for this benefit.  Otherwise, the result would be to introduce new reforms to the legal framework, via the regulatory route, that run contrary to the decision of the Court, in an aspect that is essential for examining the international and constitutional legality of the Justice and Peace system, i.e. the possibility of further reductions in calculating alternative penalties.

53.              In the second place, with respect to the establishments designated for beneficiaries under the Justice and Peace Law to serve their sentences, the Constitutional Court held that the terms of article 30(2) of that Law would diminish the control of the penitentiary authorities over the conditions under which the penalties would be served.  It therefore decided that those establishments must remain fully subject to the rules governing penitentiaries.[52]  On this point, Decree 3391 provides that demobilized persons "may" be held in Justice and Peace confinement sites administered and defined by the INPEC, but it did not clearly establish the characteristics of those sites.  The IACHR notes that the uncertainty over the characteristics of the so-called "Justice and Peace confinement establishments" demands clarification to bring them clearly within the jurisdiction of the INPEC, consistent with the decision of the Constitutional Court.

54.              In the third place, the Decree provides that if demobilized persons surrender assets for use in economic projects in areas of the country afflicted by violence, for the benefit of displaced persons, peasants and reinserted persons who lack the economic means of subsistence, granting them participation in the ownership and means of production, this will be understood as a collective measure of reparation.[53]  In March, 2006 only a small number of demobilized persons were involved in projects of this kind, and there was no evidence of broad acceptance by the communities hosting them.[54]

55.              The IACHR notes that projects of this kind, apart from their general intent, may generate or aggravate tensions between the civilian population and demobilized members of illegal armed groups, in light of the fear of reprisals that persists in vast parts of the country.  In fact, it may work as a tool to repopulate certain parts of the country instead of helping the return of the victims displaced by violence, who require reparations.

B.         Notification of victims of the conflict to participate in the process

56.              In November, 2006, the Prosecutor General's Office issued the first notices to attend the initial depositions from candidates for benefits under the Justice and Peace Law, aimed at persons claiming a right to participate in the different processes as victims of crimes committed by the AUC (hereinafter "the victims").

57.              Those notices set a time limit of 20 days, from the date of publication, for the victims to appear in the respective processes.  In the case of unnamed or absent victims, the Attorney General's Office shall designate a representative on their behalf until their appearance.[55] The Prosecutor General's Office published notices in newspapers of broad circulation, in the offices of the Prosecutor General and those of the CTI, and at its website, consistent with its role as legal intermediary for informing victims about the processes.  In its observations, the State indicates that thanks to the publication of 1,728 notices in newspapers of national circulation, broadcasted by local radios and disseminated by national, regional and local public entities, 12,354 victims had been contacted as of August, 2007.[56]

58.              The IACHR notes, however, that the only newspaper of national circulation is El Tiempo, which is not distributed in many of the small towns and villages of various departmental areas.  Some of these regions do not even have television or Internet service.  It is in those regions where the greatest numbers of victims are to be found who require access to information on their rights and how to enforce them. Consequently, the notices should have been given via local radio stations, regional newspapers, public defenders or representatives and in general through instruments that serve as links between this uninformed population and the State.  As well, the IACHR draws attention to the institutions responsible for steering this process, and the need to ensure that they coordinate their work and avoid duplication of functions and actions.

59.              The initiation of the depositions generated a major debate about attendance by victims, given the difficulties of traveling to the cities where the hearings were to take place.  The legitimacy of the process remains dependent on the way those problems are resolved, and on the guarantee of transparency in all judicial stages of the process.

C.         Meaning or nature of the depositions

60.              The IACHR notes with concern that there is no agreement in the judiciary and especially among the prosecutors, on the meaning and nature of the depositions taken under the Justice and Peace Law.  Indeed, this procedural requirement of the Justice and Peace Law has been confused with the suspect's statement in ordinary criminal proceedings.  This has had consequences with respect to the role of the prosecutors, the rights of those who seek to benefit from the Law of Justice and Peace, and the participation of victims and their legal representatives.

61.              In the Colombian criminal proceedings, and specifically in Article 324 of the Code of Criminal Procedure,[57] there are provisions governing the hearing of statements by the suspect in the initial stage of a criminal investigation.  That statement may be given, although it is not indispensable, before the investigation is formally initiated.  The suspect may give his statement of his own free will, or upon summons by the prosecutor.  The suspect, who has not yet been charged,[58] has the opportunity at that time to give his version of the facts, demonstrating guilt or innocence.  If the facts narrated point to guilt, this will be taken as a confession.  At this stage the prosecutor does not necessarily have an active role, although he may pose questions, especially in cases where a possible confession is involved.  However, generally speaking, the initiative lies with the suspect.  In many cases this proceedings gives rise to a formal process, or to a resolution reprieving the suspect from prosecution, which closes the investigation temporarily.

62.              In the voluntary deposition and confession hearing established in the special Justice and Peace procedure,[59] the demobilized person voluntarily applies for the benefits of the Law and presents his own version of the facts.  It is presumed that, because the suspect has applied for the benefits of this Law, he has committed punishable conduct the narration of which will be the purpose of this hearing.  The assigned prosecutor, then, must begin his procedural role by interrogating the candidate about all the facts of which he may have knowledge, in order to establish the truth about what has happened.  Hence this stage is known as "deposition and confession".

63.              The two procedures –that of ordinary proceedings and that of the voluntary deposition under the special Justice and Peace procedure— differ as to their method, the procedural timing, the type of procedure, and above all the activity of the prosecutor.  Given this dichotomy, in December, 2006 the Prosecutor General's Office established guidelines for taking voluntary deposition in matters within the purview of the National Prosecution Unit for Justice and Peace in order to proceed with taking the first statements.[60] Those guidelines have to do with: (1) the procedure prior to receipt of the voluntary deposition and confession; (2) the allocation of chambers for taking the voluntary deposition; (3) the summons to give a voluntary deposition; (4) the procedure itself; (5) access for victims to the chambers; (6) and the number of victims' representatives, which is limited in case of dispute to two representatives.

64.              With respect to the voluntary deposition, this consists of two stages that include a first session, where the candidate present his version of the facts, and a second session in which the prosecutor interrogates the candidate to extract information on each of the facts for which the alternative penalty is requested.  The minimum information required from the candidate consists of the date, place, the motive, other perpetrators or participants, victims and other circumstances that will clarify the truth.  In the second session the victim or his representative and the public attorney may seek clarifications or verifications, present evidence, and report what they deem pertinent in relation to the respective conduct.

65.              Despite these guidelines, the IACHR has observed some confusion over the concept of voluntary deposition, in terms of the distinction between the two modalities described, namely that established in ordinary legislation and that provided in the Justice and Peace Law.  The statement given under ordinary procedures, as explained, takes place in the preliminary investigation stage where the prosecutors play a passive role.  It is of concern that the prosecutors participating in the voluntary depositions in the context of the Justice and Peace Law assume that their role is similar to that under ordinary procedures.  The IACHR stresses the need to take effective measures to ensure that the taking of depositions and confessions is conducted by the prosecutors in a manner consistent with the object and purpose of the special procedure, which seeks to establish the truth of what happened in the armed conflict.  The IACHR also considers that the prosecutor should take an active role in interrogation in order to comply with the mandate to verify the requirements of the special law.

D.         Publicity of the voluntary deposition

66.              In December, 2006 the list of 2,695 candidates for benefits under the Justice and Peace Law was divided into 761 candidates with arrest warrants, custody measures or prison orders against them, and 1,934 free candidates with no criminal background, as well as 23 representatives.[61]  In that same month the first candidates for benefits under the Justice and Peace Law, including the leader Salvatore Mancuso, gave their voluntary statements before the prosecutors appointed from the Justice and Peace Unit.

67.              In January 2007 the Prosecutor General's office declared that it had no objections to radio and television broadcasting of the voluntary depositions by candidates for benefits under the Justice and Peace Law.[62]  On the basis of Government’s and the Prosecutor General's Office’s initiative to broadcast the statements taken from the demobilized persons, the National Television Company (CnTV) arranged for the transmission of the hearings of members of the demobilized paramilitary groups via the channel known as Señal Colombia Institucional.[63]

68.              On this point, in February, 2007 the Prosecutor General's Office issued resolution 0387[64] authorizing each delegated prosecutor to order preparation of a technical recording of the voluntary depositions to be made public, once this procedure was over and the work of verification and investigation was completed.[65]  That resolution also provided that, in order to assure victims of their right to justice, the taking of the statement would be transmitted direct to the chamber arranged for them.[66] Moreover, the resolution opened the possibility for the responsible prosecutor to impose restrictions on transmitting the deposition whenever the candidate’s statements might pose a threat to the victims or other persons, to the interest of justice or of the investigation, or to the collection of proof, evidence or information legally obtained, the privacy, honor and good name of individuals; and national defense and sovereignty; and also when the victims were juveniles or had suffered sexual violence.[67]  The resolution ordered as well that the communications media accredited before the prosecutor five days in advance of the date set for the hearing could place no more than two reporters in the victims' chamber.[68]

69.              The IACHR notes the need to strengthen the presence of the regional and national media in this new stage of the demobilization process in order to guarantee transparency. It is essential, then, to remember that during the demobilization circuits and the surrender of weapons by the illegal armed groups there was little information published about what happened in each of the concentration zones where the units assembled and surrendered their weapons.  The present stage of the AUC demobilization process demands transparency, and this can only be guaranteed by allowing victims access to both of the voluntary deposition sessions, and ensuring that in the second session there is a real possibility to question the candidates and learn the truth.

E.         Eligibility of demobilized members of illegal armed groups and formal accusation

70.              The Justice and Peace Law sets the requirements of eligibility for collective and individual demobilization so that, by complying with those requirements, candidates can receive the benefits established in that Law.  In the case of collective demobilizations, the Law conditions the granting of benefits upon compliance with the following requirements: (1) the organized armed group in question must have demobilized and have been dismantled as provided in the agreement with the National Government; (2) surrender of the assets gained from the illegal activity; (3) delivery of all recruited juveniles to the Colombian Institute of Family Welfare (ICBF); (4) the cessation of any interference by the group in the free exercise of political rights and public freedoms, and of any other unlawful activity; (5) the group itself must not have been organized for the purpose of drug trafficking or illicit enrichment; (6) release of persons kidnapped and held by the group, under the understanding that information about the fate of missing persons must be given in each case.[69] The Constitutional Court added to the final requirement the need to report on missing persons, inasmuch as “it would be unconstitutional for the State to grant a reduced penalty to those responsible for forced disappearances without requiring them not only to demobilize under the law but to reveal, from the very moment their eligibility is being determined, the whereabouts of the missing persons.”[70]

71.              With respect to individual demobilization, the law imposes the following conditions on benefits: the applicant must (1) provide information on or cooperate in dismantling the group to which he belonged; (2) have signed a commitment with the National Government; (3) have demobilized or laid down his arms according to the terms established by the national government; (4) cease all unlawful activity; (5) turn over all assets gained from illegal activities, to benefit the victims; and (6) have not been involved in drug trafficking or illicit enrichment.[71] In addition, only persons whose names and identities are reported by the national government to the Prosecutor General's office may apply for benefits under this law.[72]

72.              The IACHR understands that benefits will not be granted to demobilized persons who fail to meet the eligibility requirements established by the Justice and Peace Law.  During the taking of voluntary depositions, candidates must declare under oath their commitment to comply with the eligibility requirements.[73]  However, the validity of the statements must be considered in light of the obligation of the judicial authorities, and other State agencies, to collaborate in verifying fulfillment of the eligibility requirements.[74]

73.              The assigned prosecutors are responsible for taking the voluntary depositions, for investigations in the areas of influence of each of the demobilized units, and for interviewing victims in those places.  On this point, the IACHR is concerned about two specific aspects. First, there are 35 groups being investigated by the Justice and Peace Unit.  Consequently, each prosecutor must investigate, on average, the activities of two or three AUC groups.  The number of prosecutors assigned to the Justice and Peace Unit is 22, distributed as follows: eight in Bogotá, five in Barranquilla, and nine in Medellin.  Each prosecutor must conduct all his assigned investigations with the support of only three or four CTI investigators and two or three judicial assistants.[75]  Secondly, the lack of security surrounding the prosecutors in performance of their functions is of concern.  They have to venture into remote areas in order to corroborate information, collect evidence, attend judicial proceedings, and compile archives, without the means of transport to perform these tasks efficiently.  Moreover, according to information received by the IACHR, there are criminal gangs of every description operating in these areas.

74.              On this point, the IACHR highlights the need to strengthen the support provided to the Justice and Peace Unit of the Prosecutor General's Office.  The varied nature of the demands placed by the Law require not only great working capacity but also strong logistical support that will allow the prosecutors to perform their work safely.

75.              The IACHR understands that, during the voluntary statements, demobilized persons must declare under oath their commitment to fulfill the eligibility requirements established in the Justice and Peace Law.[76]  In any case, this declaration must be considered in light of the obligation of the judicial authorities and other State agencies to verify compliance with those requirements in a reliable manner.[77]  In this respect, as the IACHR understands it, the demobilization oath in no way relieves the authorities of their duty to verify the requirements for access to the benefits of reduced penalties.

76.              The IACHR reiterates the need for the Prosecutor General's Office and the Tribunal of Justice and Peace to enforce strictly the eligibility requirements of the Justice and Peace Law for access to the benefits of reduced penalty, and to rule out any suspicion of a candidate’s involvement in drug trafficking or illegal businesses before deciding whether he qualifies for benefits under the Law.[78]  This would contribute to a diligent and exhaustive investigation of the crimes committed.[79]  As well, State institutions must exhaust the means of investigation in order to determine the historic process by which the illegal armed groups were formed.

77.              Proper enforcement of the legal framework demands an adequate definition of the nature and meaning of some of the key procedural formalities, such as the voluntary deposition in the Justice and Peace Law.  It also demands effective measures to strengthen the role of the prosecutors and reinforce mechanisms for participation and oversight by victims and public opinion as a safeguard of transparency and regularity in proceedings.  Clearer and uniform criteria are also needed on the role of the prosecutors and on the publicity of proceedings, in order to ensure consistent behavior of the prosecutors in the various processes and avoid discrepancies in the information received by victims and by society, as the result of divergent individual decisions of the assigned prosecutors.

IV.        PARTICIPATION BY VICTIMS AND REPARATIONS

78.              Publicity of first notices constituted the first notification to victims relating to the processing of AUC members pursuant to the Justice and Peace Law.  As indicated earlier, the way in which those notices were issued merely allowed victims still living in the areas of influence of the illegal armed groups to be aware of the taking of voluntary depositions and to attend the hearing.

79.              The IACHR appreciates the efforts made by the prosecutors to cover the greatest number of regions and to inform possible victims scattered throughout the national territory. According to information received by the IACHR, from November, 2006 to April, 2007 the Prosecutor General's Office received some 50,000 submissions from victims.  However, it stresses the need to continue efforts to make these notices public nationwide through media that are accessible to the regional community, other than newspapers of national circulation.

80.              Colombian legislation, and in particular Articles 4 and following of the Justice and Peace Law, Articles 11 and following of the Code of Criminal Procedure,[80] and rulings of the Constitutional Court,[81] confirm the right of victims to participate actively in judicial proceedings.  The active participation of victims involves a series of rights, among others, to be recognized as parties to the proceedings; to present, request and dispute evidence; to have access to procedural information; and to obtain full compensation with a view to achieving truth, justice and reparations.

81.              Decree 315 of 2007[82] regulated the intervention of victims, and provided that they have the right of personal and direct access, or through their attorney, to the taking of statements, formulation of indictments and charges and other procedural steps in the context of Law 975, relating to the events that caused the damage.[83]  Despite this, it has been found that victims must go to great effort to attend these sessions, and they may lack the money to cover the expenses involved.

82.              Another obstacle to victims' participation is the impossibility of questioning candidates, directly or through their representatives, about matters of interest to them in the different phases of the voluntary statement hearing.  Questioning by victims is confined to the second phase of the hearing, but it takes place through an indirect mechanism, where the questions are incorporated into a form that is delivered to members of the CTI, who in turn deliver it to the prosecutor.  It must be noted that the prosecutor is in a different room from that where the victims are.  The prosecutor transmits to the candidate only those questions from the victims that he deems pertinent.  The victims and their representatives have no possibility to raise new questions, to seek clarifications for further details, or to cross-examine.  This indirect mechanism severely restricts the possibility of the victim to use questioning as a suitable means of obtaining the truth of the facts. Moreover, the prosecution thereby loses a valuable strategy for comparing the voluntary depositions and verifying compliance with the legal requirements for access to benefits.

83.              The IACHR also notes with concern the restrictions on victims' access to legal counsel and representation in judicial proceedings.  A great number of victims have encountered various difficulties in being represented at the voluntary deposition hearings, and in finding adequate legal counsel.

84.              The IACHR welcomes the fact that the Procurator's Office has clarified the role of the Ombudsman’s Office in representing victims, but it regrets the time lost in the disputes regarding their respective competence in this area.  The situation not only hindered many victims from access to the first voluntary depositions sessions, but has also meant that the Ombudsman’s Office could not immediately design a work plan for providing victims with adequate representation and protection.

85.              The IACHR also notes that Decree 315 provides that, if the victim does not enjoy the professional services of a particular lawyer, the Prosecutor General will request that Ombudsman’s Office appoint a public defender to represent him or her, upon request and demonstration of need.[84]  The IACHR views this regulation as a measure to guarantee victims' participation, and hopes that it will be implemented in this light.  In its observations, the State indicates that Ombudsman’s Office has provided legal advice to 9,765 victims of violence and legal representation to 2,307 victims in the criminal proceedings of the Justice and Peace Law.[85]

86.              The IACHR understands that the Ombudsman's Office has assigned an official to monitor enforcement of the Justice and Peace Law.  However, that action plan was available months after the voluntary deposition hearings began.

87.              The IACHR reiterates that the participation of victims with security guarantees is a crucial aspect of the judicial process and of protecting the right to truth, justice and reparations.[86] There are still many areas of the country where victims are terrorized by violence committed by criminal gangs, non-demobilized members of the AUC, new armed groups, and existing ones that have been strengthened, and this deters them from appearing and asserting their rights.

88.              The IACHR has expressed its repudiation of the murder of Mrs. Yolanda Izquierdo, who had appeared as a victim of the armed conflict in Colombia at the hearings in the case of the paramilitary leader Salvatore Mancuso, in accordance with the procedure established in the Justice and Peace Law.[87]  Mrs. Izquierdo was shot and killed on January 31, 2007 at the entrance to her home, in a district of the city of Monteria.  She was a leader in the complaints lodged by hundreds of small farmers over the seizure of their land by members of the AUC in the Department of Córdoba and, having received death threats since December, 2006, she had repeatedly requested the judicial authorities to protection for her, without receiving any response.  The IACHR called upon the Colombian State to conduct a judicial investigation into this crime and urgently to adopt the measures required to afford due protection to the victims of the conflict and their representatives in the exercise of their fundamental rights.[88]

89.              The IACHR also condemned the killing of Judith Vergara Correa on April 23, 2007 when she was traveling on a public bus, on the Circular Coonatra route, on her way home from work.[89]  Mrs. Vergara Correa was serving as president of the community action board in the neighborhood of El Pesebre, Comuna 13 of Medellin, was a member of various peace and social development organizations, and had been following up on the hearings conducted in Medellin under the Justice and Peace Law. Mrs. Vergara Correa was a leader and adviser for the NGO Corporación para la Paz y el Desarrollo Social (CORPADES), the Asociación de Madres de la Candelaria, and REDEPAZ, and worked in particular with juveniles and children.

90.              To the cases of Mrs. Izquierdo and Mrs. Vergara must be added the death on February 7, 2007 of Mrs. Carmen Cecilia Santana Romaña in the Municipio de Apartado, Department of Antioquia, when she was leading and promoting participation by victims of the conflict in efforts to recover lands lost by displaced peasants, and in helping victims to take advantage of the mechanisms of the Justice and Peace Law.[90]

91.              During in loco visits, the IACHR has received information regarding numerous victims of the conflict who are living in areas of influence of the demobilized units, and who claim that they are still receiving threats and are subject to violence, intimidation and local control.

92.              The Prosecutor General's Office has considered that the potential beneficiaries of the victim and witness protection program should be persons with formal links to a judicial proceeding.[91] Given the context in which the Justice and Peace Law is being applied, this concept should include not only victims formally linked to the process but also those persons who want to participate in order to contribute information for clarifying the truth.[92]

93.              Another issue of special concern in the relationship with victims is the reparation procedure (incidente de reparación).  On this point, the IACHR notes that that procedure, including the need to attend a conciliation hearing with the perpetrator, could pose an additional risk for victims.  This question leads us to link the problem of victim protection with the difficulties of the exclusively judicial mechanism for access to reparations established in the Justice and Peace Law.

94.              The IACHR has repeatedly welcomed the Colombian Government's intention that those responsible for crimes must bear the cost of economic reparations from their own assets, licit or illicit.  Yet the IACHR believes that this important objective must not depend on the initiative of the victim, nor can it serve as an excuse for delaying or, in the worst case scenario, directly impeding effective access to reparations.  In short, beyond the information that the victims may contribute, the State has greater resources and capacities than the victims to secure the recovery of assets from demobilized persons in order to pay reparations.

95.              The IACHR notes with concern that the Justice and Peace Law and its regulatory decrees placed upon the perpetrators and, in the end, the units to which they belonged the responsibility for paying reparations, relegating the State to a secondary and essentially marginal role.  Furthermore, the criminal justice system has been established as the only route for claiming economic reparations, and this will undoubtedly mean that many victims will be denied access to reparations, because of their own problems in accessing the justice system, difficulties in providing evidence, and the strict criteria for criminal liability employed in criminal proceedings.  This situation could also produce serious inequalities in effective access to reparations, to the prejudice of victims who are members of the most vulnerable groups of Colombian society, and could undermine the credibility and effectiveness of the process as a real mechanism for reconciliation and for restoring social peace in the areas affected by violence.

96.              In this respect, it is important to indicate that the National Commission for Reparations and Reconciliation (CNRR) has recommended the judicial authorities the following criteria at the moment of evaluating whether the effective participation of victims in the proceedings has been guaranteed: i) access of the victim or their families to the proceedings; ii) access of victims to the judicial files of the case; iii) access to the information relating to the facts investigated; iv) effective opportunity to be heard by the judicial authorities; and v) effective opportunity to produce evidence on the facts and the consequences suffered.[93]

97.              In any case, the issue is particularly delicate, because in terms of the balances that the Justice and Peace Law seeks to strike as an instrument of transitional justice, the victims are obliged to renounce a considerable portion of their expectations for justice, through the substantial reduction in penalties for atrocious crimes, in exchange for achieving peace, obtaining the truth, and effective access to reparations.  It is not reasonable, then for the State, having established a legal framework for the process and guaranteed its fate, to refuse to assume, in the case of reparations to victims, the same key role that it has assumed for other elements of the equation: the enforcement of criminal justice, the truth, preservation of collective memory and the effective dismantling of illegal groups.  The Inter-American Court of Human Rights has held that in cases of human rights violations the duty to provide reparations lies with the State, and consequently while victims and their relatives must also have ample opportunities to seek fair compensation under domestic law, this duty cannot rest exclusively on their initiative and their private ability to provide evidence.[94]

98.              The IACHR considers that, beyond the established legal system, the State has a key role and a primary responsibility to guarantee that victims of crimes against international law will have effective access under conditions of equality to measures of reparation, consistent with the standards of international law governing human rights.  Access to reparations for victims of crimes against humanity must never be subject exclusively to determination of the criminal liability of the perpetrators, or the prior disposal of their personal goods, licit or illicit.

99.              The IACHR considers that, beyond the available criminal justice route, the State must define a policy on reparations designed to resolve injury caused by paramilitary violence, consistent with its budgetary possibilities, and based on the standards of international human rights law, by providing streamlined and low-cost administrative routes for accessing economic reparations programs.  This should be without prejudice to other forms of intangible reparations, collective reparations, and social programs and services that might be established for the population affected during the conflict.  In its observations, the State indicates that the National Commission for Reparations and Reconciliation “has been working on a proposal for a National Reparations Program that will be characterized by comprehensive nature, meaning that it will include individual and collective as well as symbolic and material reparation measures”.[95]

100.          Participation by victims in all stages of proceedings under the Justice and Peace Law is essential in seeking the truth. The IACHR reiterates the need for a special protection program, both for victims of the conflict and for witnesses seeking to appear at proceedings in order to provide information for clarifying the truth.  It urges the State to adopt measures to guarantee the adequate representation of victims in court proceedings, and to strengthen the mechanisms so that they can effectively enforce their right to reparations.

V.        RETURN TO CIVILIAN LIFE AND DISMANTLING OF THE AUC

101.          The IACHR notes that an important element in the demobilization process, both collective and individual, is the process of reintegration into civilian life.  The weakness of policies for reintegrating the roughly 30,000 collectively demobilized persons and the roughly 10,000 individually demobilized persons remains a source of concern, and stands in contrast to reports of the re-arming of members of armed groups who had demobilized and the possible emergence of new groups in zones of influence of those who had surrendered their weapons. The IACHR has repeatedly held that reintegration of demobilized personnel into civilian life is a guarantee against repetition of the grave crimes committed during the activities of the illegal armed groups.

A.         Return to civilian life

102.          A number of "economic projects" have been launched to provide employment for demobilized persons as part of the Government program for reintegrating demobilized from illegal armed groups into civilian life.  According to information provided by the Government, demobilized persons can participate in these projects after 12 to 18 months have elapsed since their demobilization.[96]  In 2006 a series of economic projects were launched in the sub-regions of Cordoba, Antioquia and Casanare.[97]  In Córdoba, those projects consisted of livestock raising and the growing of acacia, rubber and cocoa, with the participation of demobilized personnel, displaced persons, and small farmers.[98] In Casanare, the projects were devoted to wood and agricultural products and opal,[99] and involved only demobilized members of illegal armed groups.[100]  Finally, in Antioquia there are projects in intensive livestock raising, the growing and processing of yucca, cocoa, bananas and timber, fish farming and banana wastes, where only the planting and processing of yucca, cocoa, bananas and timber involve demobilized persons, displaced persons and small farmers, with the others reserved exclusively for the demobilized.[101]  Economic projects require a Government assessment of their potential before they are implemented.

103.          Moreover, the reintegration program includes comprehensive education activities to provide academic and occupational training for demobilized persons.  However, in 2006 no more than 6,000 demobilized persons were enrolled in education and training.[102]  The problems associated with reintegrating thousands of demobilized persons into civilian life have been reflected in the low coverage of education, the high dropout rate in formal education, and the abandonment of programs that offer immediate remuneration, such as those for civic auxiliaries or manual eradicators.[103] The proportion of demobilized persons with links to jobs is low: only 4,402 of the approximately 40,000 persons who have been demobilized collectively or individually.[104]

104.          In the face of this situation, the Special Adviser for the Social and Economic Reintegration of Armed Individuals and Groups was created as a means to speed the process of reintegration.[105]  The IACHR welcomes this initiative and hopes that it will produce concrete results that will translate into the return of demobilized personnel to civilian life.

105.          The IACHR notes that little information has been published on the process of reintegrating demobilized persons.  There is a persistent discrepancy between the figures published by the Special Adviser for Social and Economic Reintegration and the ministers responsible for the issue.  The IACHR stresses the need to improve mechanisms for informing the public about the results of the reintegration programs now being pursued by the Special Adviser, as well as information on the beneficiaries of those programs.

B.         Dismantling of the AUC, rearmament and appearance of new gangs

106.          The IACHR notes that little information has been made public on those demobilized persons not participating in the reintegration process who have re-armed or have formed new gangs and remain engaged in violence.  Information published in the sixth, seventh and eighth reports of the Secretary General to the OAS Permanent Council has revealed the existence of violence subsequent to the demobilizations that concerned the MAPP,[106] in various forms: (1) the regrouping of demobilized persons into criminal gangs that exert control over specific communities and illegal economic activities;[107] (2) holdouts who have not demobilized;[108] and (3) the emergence of new armed players and/or the strengthening of those that already existed in areas abandoned by demobilized groups.[109]

107.          The Colombian Government has recognized this situation and has warned that if demobilized persons return to arms they will forfeit the benefits of Law 975 of 2005.[110] The IACHR has also received information from the Government about the creation of a search squad against the Aguilas Negras gang, for purposes of dismantling the criminal gangs that have emerged in parts of the country.[111]  The Government's warning about the loss of benefits as a result of reverting to illegality is significant. However, these consequences will affect only those who applied for benefits under the Justice and Peace Law, and they account for only 8.7% of the 31,000 demobilized AUC members.  In addition, there is uncertainty as to whether all members of the AUC have actually joined the demobilization process, and so there is no information on a significant portion of the membership of these gangs.  In its observations, the State emphasizes its position that they do not belong to a “group of self-defense but they are rather a band of common criminals.”  It adds that “the self-defense groups as an expression of a complex phenomenon in Colombian history are not echoed in the current Government”.[112]

108.          The IACHR notes that steps have been taken to improve the outcomes of the programs for reintegrating demobilized persons into civilian life, and it hopes that efforts will continue to strengthen those programs so that they can produce concrete outcomes that will result in the return of demobilized personnel to civilian life.  The IACHR remains concerned over the phenomenon of rearmament and the formation of new gangs, and reiterates the need for the Colombian Government to implement effective measures to disrupt the AUC structures and to pursue its efforts to dismantle criminal gangs.

VI.        CONCLUSIONS AND RECOMMENDATIONS

109.          With respect to implementation of the Justice and Peace Law, the initial stages of the AUC demobilization process, and the first judicial proceedings, the IACHR concludes that:

1.           The Colombian State deserves recognition for the efforts taken to achieve pacification and to ensure that judicial proceedings are as transparent as possible.

2.            The demobilization circuits of members of the AUC suffered from a lack of systematic mechanisms to identify and determine criminal responsibility during collective demobilizations. The gaps and inaccuracies generated in this first stage are having negative repercussions on investigations under the Justice and Peace Law, and are contributing to impunity for non-confessed crimes or those that are not judicially investigated.

3.            It has still not been decided how to implement the ruling of the Constitutional Court relating to Law 975, and the regulatory decrees issued before and after that ruling. Of particular concern is the matter of fulfilling the eligibility requirements for the benefits under Law 975.

4.            It is unclear whether the armed paramilitary structures have been effectively dismantled and whether the members of the AUC are genuinely participating in the demobilization process.  While the number of demobilized members of illegal armed groups who have received legal and economic benefits increasingly exceeds the estimated number of AUC members, the phenomenon of illegal armed groups persists in the same areas of the country.

110.          The IACHR still has some concerns over the situation and participation of victims, and implementation of the Justice and Peace Law, and it offers the following recommendations to the State:

1.            Strengthen the work of the institutions that are supposed to implement the Justice and Peace Law, particularly the units of the Prosecutor General's Office that play an essential role in investigation.  These agencies require logistical support and adequate human resources to complete the tasks assigned to them.  The State must also ensure the protection of its officials so that they can carry their investigations seriously.  The judicial clarification of crimes perpetrated against the victims of then armed conflict by the demobilized who seek to benefit from this legislation must not be put in jeopardy.

2.            Give an active role to the prosecutors during the taking of voluntary depositions, both to help produce the information essential for determining the truth of the events and to verify effective compliance with the requirements for reduced penalties.

3.            Provide transparent mechanisms for taking decisions relating to eligibility requirements for benefits under Law 975.  Prior to the formal indictment stage under the Justice and Peace Law, there needs to be broad publicity for the decisions taken on compliance with each of the eligibility requirements for each of the demobilized groups, and for their members in the case of individual demobilization, and on those disqualified as not meeting the requirements.

4.             Guarantee that victims of the conflict, witnesses and human rights defenders will have the opportunity to participate in the process.  Victim participation requires adequate legal assistance, as well as support from the Ombudsman’s Office as from the initial hearings stage.

5.            Provide mechanisms to protect and guarantee the safety of victims of the conflict, witnesses, and human rights defenders who join the process so that they can participate in the investigation and trial of those seeking benefits under the Justice and Peace Law.

6.           Consider revising the currently established reparations system, where the criminal procedures route is the only access.  The State must play a primary, rather than a secondary, role in guaranteeing victims' access to reparations in accordance with the standards of international law.  The IACHR recommends that a reparations program be adopted that offers an alternative to the criminal court route and is supplementary to other reparations of a collective nature and to the social programs and services targeted at people who have suffered violence in Colombia.