URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

Udenrigsudvalget 2018-19 (1. samling)
URU Alm.del Bilag 145
Offentligt

ABC OF THE OBJECTIONS

TO THE SJP STATUTORY

BILL

Bogota, 11 March 2019

URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

In summary

After a careful analysis, the President of the Republic has decided to object some

provisions of the statutory bill of the Special Jurisdiction for Peace (SJP, or JEP in

Spanish).

These objections are partial, that is, they do not refer to the bill as a whole, but only

to six of its 159 articles.

The objections raised refer only to the lack of convenience.

The government

considers that several articles of the statutory bill are inconvenient for the country,

insofar as they can either lead to situations of impunity or to abuses or distortions

of the benefits provided for in the Final Agreement, hindering its implementation.

The objections do not refer to articles already declared unconstitutional by the

Constitutional Court. They refer to articles that are still in the bill and that would

become legislation if the President signs it off without modifications.

In compliance with the Constitution, the draft will now return to Congress, which

must consider the objections and make a final decision in this regard, acting with

total autonomy. The government trusts that the Senate and the House of

Representatives will seriously appraise the objections and come to the decisions

that best contribute to the country’s high interests.

While the Congress undertakes this task, the SJP will continue functioning as it

has done so far.

It is not true that the SJP will be paralyzed or that it will stop

working because of the objections.

It is also not true that objecting a limited number of articles of the bill entails a clash

with the Judiciary. The President has the greatest respect for the decisions of the

Constitutional Court, which is the guardian of the Constitution and a body that has

the final say on all constitutional matters.

The objections raised on inconvenience grounds do not seek to paralyze the

SJP nor hinder its operation. They seek to ensure that the governing norm

of the SJP is compatible with human rights treaties, which prevail in the

national legal system.

URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

In particular, several objections seek to avoid situations of impunity, which, as the

Attorney General has warned, could open the door for an action by the International

Criminal Court for crimes committed in Colombia.

Each of the objections seeks to improve and correct the transitional justice system

agreed upon in the Final Agreement. The country should not fear an open debate

on the proposed changes, in a constructive way and without any intention of

polarizing.

Ultimately, what motivates the Government is to prevent the consolidation of norms

and procedures that affect the right of victims to truth, justice, reparation and

non-repetition, which is the axis of the SJP, of any transitional justice mechanism

and of the Final Agreement itself.

Scope of the Presidential Powers to Object Draft Legislation

There can be no doubt that the President has the power to object a statutory bill. In

this regard, the jurisprudence of the Constitutional Court is very clear (Judgment

C-011 of 1994).

This is because a fundamental principle of the rule of law in Colombia is the

separation and harmonious collaboration of the branches of power. By partially

objecting to this bill, the President is exercising a power provided for in the

Constitution and is contributing to a process of normative construction in which all

three branches have participated: the Executive, when drafting the original text; the

Congress, when approving it and introducing the adjustments it considered

necessary; and the Constitutional Court, when reviewing it to verify its compatibility

with the Constitution and modulating some of its provisions.

In the case of statutory bills, the Constitution provides that the analysis of

constitutionality must be done before the draft is sent to the President for signing it

off. Evidently, the drafters of the Constitution considered that a statutory bill already

approved by Congress and declared constitutional by the Court, could still be

inconvenient for the country and that the President would be the only competent

authority to undertake such an assessment. This is precisely the current situation

with respect to the statutory bill of the SJP.

URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

Rationale of the Objections

The President carefully considered, among others, the concerns raised by the Attorney

General with regard to the bill, as well as the analyses made by various political parties

and groups of interested citizens who submitted documents to the government.

After a detailed examination of these observations and contributions, the President of

the Republic concluded that if he signed off the bill as was submitted for his

consideration, he would be acting irresponsibly towards the country as a whole,

Colombian society and, in particular, the victims.

Specifically, the President concluded that under that version of the bill, several possible

scenarios of impunity would arise, which in turn would entail the breach of international

obligations of the Colombian State derived from human rights treaties and, in particular,

the Rome Statute of the International Criminal Court (ICC).

It should also be recalled that according to Article 93 of the Political Constitution human

rights treaties prevail in the national legal order. The issue is, therefore, of the utmost

importance in a system that, like the Colombian, is governed by the Rule of Law.

Scope of the Objections

The objections are grounded on lack of convenience and refer to specific provisions in

the bill which may produce effects such as:

* Create situations of impunity;

* Allow abuses of the benefits provided for in the Final Agreement;

* Hinder judicial cooperation with other States;

* Hinder future peace negotiations;

* Hinder the payment of reparations to the victims.

In simple terms, the six objections for inconvenience cover the following aspects:

URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

Comprehensive Reparation to Victims (Article 7)

Article 7 of the bill regulates matters relating to “comprehensive reparation to

victims”. It is an inconvenient provision because it does not establish clearly the

main obligation of the perpetrators to fully compensate the victims. We Colombians

must be absolutely clear about the importance of specifying that perpetrators must

advance a material reparation with their assets in order to satisfy the victims’ rights.

Indeed, the constitutional jurisprudence (Judgment C-071 of 2018) expressly states

that “…even in the context of transitional justice, the first one called to contribute to

the reparation of the victims is the perpetrator itself, both the illegal group –

collectively – and the individual victimizer, with its own assets, for being the one

who caused the damage.”

Individuals Most Responsible for International Crimes (Article 19, paragraph

Under the Final Agreement, war crimes and crimes against humanity are not

susceptible of amnesty under any circumstance, as required by international law.

This implies that those suspects of having committed such crimes must be judged

by the SJP, regardless of their position in the structure of the guerrilla organization.

To this end, the statutory bill should have stated expressly that there could be no

waiver of criminal action for these crimes.

However, in the bill prevails an interpretation according to which it can be

understood that those who, despite having committed these crimes, are not

considered “the most responsible individuals” would be exempt from criminal

responsibility. In this context, if the facts are not established with due diligence and

if criminal responsibility is not attributed within a reasonable time, this waiver of

criminal action could lead to impunity for these individuals, which would create the

conditions for the International Criminal Court to act in relation to these crimes,

under the principle of complementarity.

In simple terms, the Government considers it unacceptable that a person guilty of a

heinous crime of international significance cannot be prosecuted by the SJP, only

on the grounds that he or she cannot be considered a “most responsible individual”.

URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

Safeguard of the Executive Powers on Future Peace Negotiations (Article 63,

paragraph 8)

Article 63, paragraph 8 is inconvenient because it does not determine the scope of the

power attributed to the High Commissioner for Peace to verify the list of those who are

recognized as members of an organized armed group which enters into a peace

process.

The task of verifying who can participate in a peace process must remain within the

exclusive power of the High Commissioner for Peace, as a direct representative of the

President of the Republic. It is not convenient to weaken an attribution that the High

Commissioner has had for over two decades and that has been the legal framework for

various peace processes with armed organizations,¹ to prevent criminals from hiding

and obtaining benefits and impunity.

Paralysis of the Ordinary Justice (Article 79, literal J, paragraph 3)

Another objection that seeks to remedy a possible path towards a situation of impunity

refers to the lack of continuity in investigations of heinous crimes.

One of the essential components of the transitional justice system contained in the Final

Agreement is the idea that, until the SJP is fully seized of the cases under its jurisdiction,

there should be no interruption in the investigation and prosecution of serious crimes

which may have been committed in Colombia. To that end, it is essential to ensure that

the process undertaken by the ordinary justice system (investigation, prosecution, trial

and conviction) continues functioning effectively in relation to these crimes, until the

orderly and definitive transfer of powers and proceedings to the SJP.

However, the final version of the statutory bill removes the possibility that during such

transition ordinary judicial authorities collect evidence and conduct judicial proceedings,

which are essential for criminal processes to succeed. The Government considers that

this leads in practice to the fact that during the transition period in which a case moves

from the ordinary justice to the SJP, the action of justice is paralyzed, negatively affecting

the rights of the victims.

¹It

is Law 418 of 1997, which has been extended seven times, and which grants the exclusive mandate to the

President of the Republic to advance dialogues, negotiations and sign peace agreements.

URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

Obstacles to Extradition (Article 150 and Article 153)

Two of the objections relate to extradition, a mechanism of international judicial

cooperation that has been very useful in the fight against organized crime. One

refers to extradition for crimes committed after the signature of the Final

Agreement, and the other refers to the extradition of those who are offering truth to

the transitional justice system.

Specifically, Article 150 of the statutory bill is inconvenient because it does not

specify what is established in the SJP Procedural Law (Law 1922 of 2018), when it

states that

the Review Section of the Peace Tribunal cannot collect evidence.

Omitting this precision would seriously affect Colombia’s judicial cooperation with

other countries.

As for Article 153, it is similarly inconvenient because the extradition of certain

offenders is subjected to them offering to tell the truth, but no term or timing for

doing so is provided for. This produces a perverse incentive for third parties to seek

to enter the SJP under the guise of alleged offers of truth, with the real objective of

eluding responsibilities before the courts in other countries.

Draft Reform to the SJP

From the detailed examination of the statutory bill and the observations made by

the Attorney General, political parties and interested citizen groups, other concerns

arise which cannot be adequately addressed through the mechanism of objections

of inconvenience to the bill.

The foregoing has led the government to conclude that there are several structural

aspects of the SJP that must be modified.

To this end, and completely apart from the process of the statutory bill in question,

a draft constitutional reform is being prepared and will be submitted to Congress,

referring to three aspects:

* Exclusion from the transitional justice of sexual crimes committed against children

and adolescents. Nothing, no ideology, justifies aberrant aggression against the

most vulnerable in society.

URU, Alm.del - 2018-19 (1. samling) - Bilag 145: Henvendelse af 15. marts 2019 fra Colombias ambassade om protest mod det lovgivningsmæssige grundlag for nedsættelse af særlig fredsdomstol

* Absolute clarity in that those who relapse in criminal activities will lose all the benefits.

* Absolute clarity in that all criminal conduct that began before December 1, 2016 (the date

the Final Agreement was signed) and continued to be carried out after that date will fall

under the jurisdiction of ordinary courts, to ensure the principles of justice and

non-repetition.

Corollary

The government of President Iván Duque in unquestionably committed with the

implementation of the Final Agreement for the Termination of the Conflict, signed in

December 2016 with the FARC, within the framework of a broader policy of territorial

stabilization and the consolidation of peaceful coexistence. This has been reaffirmed in

different scenarios and is reflected in public policy measures and specific actions aimed at

that purpose, adopted since August 2018.

The objections raised to the statutory bill of the SJP are aimed at strengthening that

commitment within the framework of the strictest respect for constitutional procedures, the

rule of law, and the democratic order; and seek to strengthen transitional justice, by

definitely resolving some issues and gaps that could affect both its effectiveness and its

legitimacy, as well as compliance with Colombian obligations under international law. By

doing so, the SJP will be provided with a more solid legal framework, which will generate

greater legal security for all involved, and especially for those who have acquired a genuine

commitment to reincorporation into society.

As already indicated, the raising of objections on a small number of articles of the statutory

bill does not constitute a clash with the Judiciary. This has been clearly stated by the

Constitutional Court: “The objections are conceived as an expression of the principle of

harmonious collaboration between the different branches of public power (Article 113 of the

Constitution) and not as veto power (...)

In this sense, it is important to highlight that the

Congress of the Republic, as a forum for democratic deliberation, has the final say

regarding objections on grounds of inconvenience (...)”.

(Judgment C-633 of 2016).

While the corresponding process is in place, the SJP will not stop functioning. To the

contrary, it will continue to operate in accordance with its constitutional mandate and will

have the full support of the National Government for such purposes.