Series on the rights of the victims and the application of Law 975. Bulletin No 30

1. COMISIÓN COLOMBIANA DE JURISTAS
Organización no gubernamental con status consultivo ante la ONU
Filial de la Comisión Internacional de Juristas (Ginebra) y de la Comisión Andina de Juristas (Lima)
PERSONERÍA JURÍDICA: RESOLUCIÓN 1060, AGOSTO DE 1988 DE LA ALCALDÍA MAYOR DE BOGOTÁ
Bulletin No 30: Series on the rights of the victims and the application of Law 975
Jailed Congress members to go scot-free?
On December 29, 2006, Álvaro Uribe Vélez, President of Colombia, signed Law 1121 of
2006, through which “norms are stipulated for the prevention, detection, investigation, and
punishment of financial support to terrorism.” The law included a loop hole leading to
impunity for Congress members being investigated or tried for their links with the
paramilitaries. To that end, the law removed from Article 340 of the Colombian Criminal
Code the act of promoting illegal armed groups (such as the paramilitaries) as an
aggravating circumstance when judging conspiracy to commit a crime – an offense that
carries between 6 and 12 years in prison .
Congressmen Luis Eduardo Vives and Dieb Maloof, investigated by the Supreme Court for
the crime of “aggravated” conspiracy to commit a crime, filed tutela actions in order that
the investigations being carried out against them would be limited to the crime of “simple”
conspiracy to commit a crime, which carries a sentence of 3 to 6 years of prison, arguing
that the aggravating circumstance for which they were being investigated no longer existed.
Besides a reduction in the period of incarceration, the result sought by these congressmen
was to be set free automatically, since simple conspiracy to commit a crime not only carries
a relatively low sentence but also carries the benefit of release from prison.
The Supreme Court’s interpretation has been that the issuance of Law 1121, although
eliminating that aggravating circumstance from Article 340, did not eliminate the crime as
such but rather included it within Article 345 of the Criminal Code, which punishes
activities related to administrating resources linked with terrorist activities with a sentence
of 13 to 22 years in prison, higher than that of aggravated conspiracy to commit a crime. In
view of the Supreme Court, the favorability principle claimed by the petitioning
congressmen seeks the application of the prison sentence for aggravated conspiracy (6 to 12
years) instead of that for the crime of administration of resources related to terrorist
activities (13 to 22 years).
On August 1 and November 15, 2007, the High Council of the Judicature rejected the tutela
actions filed by the two above-mentioned Congressmen after considering the interpretation
of the Supreme Court as adequate. But the congressmen insist that the crimes for which
they are being investigated should remain unpunished. On September 16, 2008, the citizen
Néstor Osuna filed a constitutionality suit before the Constitutional Court, seeking that the
highest organ of this jurisdiction declare the Supreme Court’s interpretation – under which
Congressmen Eric Morris Taboada, Mauricio Pimiento and Luis Eduardo Vives have
already been sentenced – unconstitutional
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2. At this moment, 70 Congressmen representing 21 departments of the country are being
investigated for alleged links with paramilitarism. Many of them have relinquished their
immunity privileges as Congress members, hoping to be judged in their regions, where,
thanks to their relations with paramilitaries, they can exert pressure on, or co-opt, judicial
institutions, seeking a more favorable treatment.
If the Constitutional Court accepts the claimants’ thesis, the main beneficiaries will be the
Congressmen being investigated by the Court or by the General Prosecutor’s Office for
their links with paramilitary groups, many of whom voted in favor of, or participated in
drafting, the law that they invoke today as a pretext to remove all judicial foundation from
the trials against them or from those that could be initiated in the future. Such is the case of
former Congressmen Mario Uribe and Dixon Ferney Tapasco, both of them promoters of
the bill that was passed as Law 1121. The former renounced his immunities as Senator on
October 4, 2008, after the Supreme Court began an investigation against him. For his part,
the latter gave up his privileges as member of the Chamber of Representatives on October
2, 2008, after the Supreme Court took him to trial. In sum, the reform to the Criminal Code
through Law 1121 was conceived with the purpose of favoring the congressmen involved
with paramilitary groups.
If the congressmen’s and the petitioner’s thesis were to prevail, we would be faced with the
total consolidation of impunity in cases of the so-called “parapolitics.” Indeed, the
congressmen would not only benefit from an early release from prison and exceedingly
benign sentences but, additionally, they would be judged for a crime that typifies a
misconduct that bears no proportion to the seriousness of their deeds.
The shamelessness of the interpretation that the jailed congressmen seek to promote is such
that, although they acknowledge having committed the crime, they argue that the legislator,
making use of his “autonomy” and through the reform introduced in Law 1121, decided not
to punish the promotion of paramilitary groups. To consider that a given act is irrelevant in
the realm of criminal law is a faculty of the State’s criminal policy; but in this case, it
seems clear that this faculty is being used by Congress to favor many of its members and to
secure the transition toward impunity.
It seems hard to believe that the criminal policy of the Colombian State can assess the same
way that public servants meet with paramilitary groups responsible for thousands of deaths
and disappearances in this country to seek agreements on political support, and that a group
of persons meet to plan a supermarket robbery even if they do not carry it out.
The sole act of conspiring to commit crimes was probably not the only one committed by
the congressmen accused of having links with paramilitary groups. Many of them conspired
with these groups in order to organize them, promote them, arm them, or fund them –
which should be reflected judicially in the sentence accorded to them, and politically in the
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3. review and censure of the actions that, as congressmen, they may have undertaken in order
to favor the paramilitary groups in any way.
The paramilitary groups are much more than armed structures. Since its inception,
paramilitarism has enjoyed the help and collaboration of various sectors of society, among
them the political sector. Hence, dismantling paramilitarism presupposes necessarily
investigating and judging those who, through their acts, have contributed in any way to
their strengthening and to the crimes against humanity that those groups have committed
since their founding. Consequently, the promotion, support and funding of paramilitary
groups by political sectors are acts that must be investigated or judged in order to fulfill the
rights of the victims to truth, justice, and reparation, since the paramilitary groups made use
of the Colombian political class in many ways to promote their own interests, in the same
way that many politicians were favored by the support of the paramilitary groups in their
respective regions.
If these acts were not duly investigated and judged, impunity would be strengthened with
respect to the responsibility of many politicians in the creation and development of
paramilitarism in Colombia, opening the way for the intervention of international criminal
justice.
For more information, please contact Gustavo Gallón-Giraldo, Director of the CCJ, at Tel. (571) 376 8200, Ext. 115.
Bogotá, October 30, 2008
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