Law 975 of 2005 does not contain effective mechanisms to achieve a genuine demobilization and dismantlement of armed groups. At the same time, the Law does not satisfy international standards about truth, justice, and reparation for victims.
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It is possible that some of these proposals are not appropriate subjects for a regulatory decree, but should instead be implemented through instructions by the Office of the Attorney General or the National Government, or through some other measure. In any case, if for legal reasons one of these proposals cannot be included in the regulations, we hope that the government adopts them through the appropriate channel.
I. Ensure real and full satisfaction of the eligibility requirements
The regulations should establish, clearly and in detail, rigorous procedures to ensure compliance with each eligibility requirement before the demobilized individual can receive an alternative sentence. This implies the following:
A. The requirements should not be considered mere formalities
Fulfillment of the eligibility requirements contained in Articles 10 and 11 of the Law should not be verified in a merely formal manner. Instead, the regulations should create efficient mechanisms to verify the complete fulfillment of each requirement.
In particular:
1. Surrender of assets: the requirement of surrender of assets resulting from illegal activity, contained in Articles 10.2 and 11.5, should not be considered satisfied simply upon the surrender of some assets. On the contrary, the regulations should clearly establish that the Law requires the identification of the totality of assets of the demobilized person and the effective turnover of all assets resulting from illegal activity. Assets should be understood to include any and all assets that could be the subject of economic valuation, movable or immovable, tangible or intangible, and all assets over which a proprietary interest may be asserted, as well as all their fruits and products.
2. Surrender of information or collaboration with the dismantling of the group: this requirement, listed in Article 11.1, should not be considered fulfilled unless the demobilized individual has actively and truthfully collaborated through the surrender of all of the information he may have that is requested of him concerning the operations of the group, its sources of support and financing, its structure, assets and crimes.
3. Release of Kidnapping Victims and Surrender of Minors: the regulations should clearly establish that the release of kidnapping victims required by Article 10.6 must be complete. The requirement should not be considered satisfied unless the group releases or accounts for the whereabouts of all its kidnapping victims, and surrenders all minors in its ranks. The regulations should also clarify that the release shall involve no payment or consideration by the hostages or their families.1
4. Cessation of illegal activities and interference with the free exercise of political rights and public freedoms: this requirement, in Articles 10.4 and 11.4, should be fully satisfied. It should not be considered fulfilled while the group (Article 10.4) or the individual (Article 11.4) continues engaging in criminal activities or interfering with political rights and public freedoms.
5. Demobilization and dismantling: this requirement, set out in Article 10.1, should not be considered satisfied unless all members of the group demobilize, turn over their weapons, and the group ceases all its operations – whether they are military, criminal, or political. The requirement should not be considered fulfilled if part of the group remains active or is recruiting new members.
6. Demobilization and abandoning arms: the regulations should establish that the requirement of “abandoning arms” in Article 11.3 means that the individual must not only have surrendered the weapons in his possession at the time of demobilization, but also:
- a. have disclosed any information he may have about other weapons that are not in his possession but could eventually be confiscated; and
b. have made a commitment not to carry or use arms of any type in future.
B. Establish a rigorous procedure to verify the completion of each eligibility requirement
The regulations should establish a rigorous procedure to verify the completion of each requirement. This procedure should not merely consist of the demobilized individual’s formal commitment to comply with the requirement, or of a certification that the individual has taken steps to fulfill a requirement. Instead, it should be based on a serious analysis, with cross-checking of information and participation of the various branches of government that may have relevant information.
1. Surrender of Assets
To effectively verify the surrender of assets, the regulations should establish that:
- a. Identification of Assets: Each individual should identify all his assets in a sworn statement, regardless of whether or not they were illegally acquired. Assets should be understood to include any assets that could be the subject of economic valuation, movable or immovable, tangible or intangible, and all assets over which a proprietary interest may be asserted, as well as all their fruits and products. This includes, among others, checking and savings accounts, shares in corporations, investments and funds deposited in the financial system. In the same statement he should:
- State which of those assets, in his judgment, are the product of illegal activity or were acquired using income from illegal activity;
- Account for the supposedly legal origin of the assets the individual claims are not the product of illegal activity;
- Disclose his knowledge of other immobile assets that are or may have been in his possession or in the possession of other members of his armed group, as well as the dates in which such possession began.
- he Superintendency of Notarization and Registration, asking for information about the individuals’ ownership of real property assets;
- the Banking Superintendency to find out if the individual has accounts, investments, etc.,
- the authorities in charge of handling funds transfers and movements overseas to find out if the individual has made significant asset transfers or movements.
This procedure will make it easier for the government to determine which of those assets resulted from illegal activity, and which assets should be returned to their original owners or could eventually be used for reparation.
b. Cross-checking information: The identification and surrender of assets must be verified by the various branches of government (including the National Police, Comptroller General’s Office, Attorney General’s Office, Inspector General’s Office, Public Advocate’s Office, and Armed Forces) through cross-checking and corroboration of information about the group’s activities, assets, and financing sources. The verification should also include cross-checking of information against the data and records that the entities charged with assisting the displaced population may have or be able to generate about the real property assets that the groups took illegally.
c. Collection of information by Attorney General’s Office: The regulations should establish that as soon as the Attorney General’s Office receives from the government the list of persons who may participate in the process, the Office must submit formal requests to:
In addition, the regulations should establish that the authorities who receive these requests must give them expedited treatment, and respond in a term no longer than three days, lest they be subject to sanction.
2. Other requirements
With respect to the other eligibility requirements, a similar procedure to that described above should be followed. For example, the supposedly demobilized individual should be required to sign a sworn statement identifying all the hostages and minors in his power or under his command. The release of these hostages and surrender of minors, as well as the cessation of illegal activities, should be verified on the ground, with the support of the government agencies that normally monitor or receive information about the illegal activities of these groups. Such agencies include, for example, the Public Advocate’s Office and the Police.
C. The fulfillment of the requirements must be verified at the beginning of the process and be proven in court before the alternative sentence or other benefits are granted.
The regulations should clearly establish that the requirements must be fulfilled before the National Government submits its list of persons who can receive benefits to the Attorney General’s office.
The regulations should also make clear that the National Government is responsible, as an initial matter, for verifying the fulfillment of the eligibility requirements. Thus, the National Government can and should exclude from the list individuals or groups who have not fulfilled the eligibility requirements. 2
The regulations should establish that information obtained through this verification process must be submitted to the Attorney General’s office, which must in turn present it to the court in charge of ruling on the fulfillment of the eligibility requirements and granting the alternative sentence. The Attorney General’s Office must also present any other relevant information it may have or receive through requests for information and cross-checking of information against its records and databases.
Finally, the regulations should clearly establish that the full satisfaction of the requirements must be the subject of a specific finding by the appropriate court, before it grants the alternative sentence. Any person who wishes to receive benefits must prove to the court, through adequate evidence and the information obtained by the government during the verification process, that he has fulfilled all of the requirements. In the event that the court finds that some requirement has not been fulfilled, the alternative sentence may not be granted.
D. Establish effective sanctions for failure to fulfill the eligibility requirements.
The regulations should establish a procedure for cases in which, subsequent to the granting of alternative sentences, a failure to fulfill the eligibility requirements is proven. In such circumstances, there should be an effective sanction. The prior proceedings should be declared null and void, the alternative sentence should be revoked, and the individual should be tried under ordinary criminal law.
In the event the demobilized individual hides or fails to disclose assets –whether or not they result from illegal activity –in his sworn statement at the time of demobilization, the regulations should establish that legal action will immediately be taken to confiscate those assets.
II. Establish effective procedures to obtain necessary information to dismantle the groups
The regulations should establish effective procedures to obtain the necessary information to dismantle the groups and uncover the truth about their operations.
Specifically, the regulations should establish that the National Government – whether through the Defense Ministry or security forces – must carry out a detailed interrogation of each person who wishes to receive benefits through individual demobilization (these individuals are obligated to cooperate according to Article 11.1 of the Law). The interrogations should focus on obtaining concrete and useful information about the group’s assets, financing sources, support networks, and operations that could be used to dismantle the group’s military, criminal, and political structures or verify their dismantlement.
Moreover, in order to uncover all the truth about the criminal acts committed by these groups, the regulations should establish that the Attorney General’s office will interrogate each demobilized person during the spontaneous declaration (version libre), about “all the facts of which they have knowledge.”3 The interrogation should include specific questions about the assets, the financing sources, the support networks, the operations, and the structure of their group, as well as information about the individual’s date of entry in the group, pseudonyms, illegal activities, assets, and supporters.
III. Establish rigorous procedures for investigating atrocities and others serious crimes before granting the alternative sentence
The regulations should establish procedures that allow a serious and in-depth investigation before the arraignment.
A. Analysis of ongoing investigations before the interrogation
The regulations should establish that, before interrogating the individual in the spontaneous declaration, the Attorney General’s office should analyze and systematically organize the information it has in connection with ongoing investigations. In particular, it should include in this analysis all the crimes that are presumably attributable to each block or front and to each individual who hopes to receive the benefits of the Law. The Attorney General’s office should use this analysis to prepare for the interrogations in the spontaneous declaration
B. The Attorney General’s Office should control the spontaneous declaration and conduct an exhaustive interrogation of the demobilizing individual
The regulations should establish that, in the spontaneous declaration, the prosecutor will interrogate the demobilized individual in a detailed and exhaustive manner, not only about all the crimes that the demobilized individual admits, but also about pending cases of crimes committed in the individual’s area of operations that could have been committed, ordered, or authorized by the demobilized individual or his group. The Attorney General’s Office will control the process and may end the spontaneous declaration when it determines that it has completed its interrogation.
C. The Attorney General’s Office should have time to investigate before arraignment
Furthermore, according to Article 18 of Law 975, the Attorney General’s office shall conduct an arraignment when it can “reasonably infer that the demobilized person is the author or participant in one or several crimes under investigation.” The regulations should clearly establish that, according to Article 18, even if an individual confesses to a crime in his spontaneous declaration, the Attorney General’s office will have the discretion to delay the arraignment for the crime in order to more thoroughly investigate or gather more evidence.4 In this manner, in complex cases, the Attorney General’s office will be able to take the time it needs to do an adequate job of investigation and clarification of the truth, in accordance with its obligations under Article 15 of the Law.
IV. Establish incentives for truthful confession of all the crimes committed
The regulations should establish procedures that ensure that, in a spontaneous declaration, each demobilized individual truthfully confesses all the crimes he committed during his membership in the group.5 Specifically, these procedures should include the following:
A. Warning by the Attorney General Concerning Benefits
The regulations should establish that the Attorney General must clarify at the beginning of the spontaneous declaration that, while confession is voluntary and the individual has a right against self-incrimination, a full and truthful confession is a pre-requisite to receiving benefits under Law 975.
As noted in point III.B, the Attorney General’s Office must conduct an exhaustive interrogation of the demobilized individual. In this way, the likelihood that the demobilized individual will unintentionally omit his participation in a crime will be reduced.
B. Procedures in the event of omission
The requirements should establish that, if after the alternative sentence has been granted it is discovered that the demobilized individual omitted a crime, then that omission shall be considered intentional and the crime shall be tried under ordinary law, in accordance with Article 25 of Law 975. To avoid prosecution under ordinary law and to be eligible for an alternative sentence for the omitted crime, the regulations should establish that the demobilized individual will have the burden of proving before the corresponding Tribunal that the omission was not intentional.
C. Alternative sentence for unintentionally omitted crimes
The regulations should clarify that, in cases in which the omission was unintentional, the twenty percent increase of the alternative sentence (mentioned in Article 25) can result in an alternative sentence that exceeds 8 years. The regulations should also clarify that the alternative sentence can be increased by an additional twenty percent for each crime that was unintentionally omitted.
V. Integral reparation
The regulations should clarify that each of the acts of reparation established in Article 44 of Law 975 must be fulfilled before the demobilized can be set free on probation. In other words, the requirements should establish that when ordering reparation for the victims under Article 43, the Tribunal shall include each of the acts of integral reparation listed in Article 44.
The regulations should also establish that, for purposes of the surrender of illegally acquired assets that is required as part of integral reparation, article 44.1 requires, among other things, the demobilized individual’s renunciation of the illegal possession he has exerted over real property assets and their restitution to persons who were displaced from those assets.
VI. Ensure victims’ access to reparation
To ensure that victims have access to reparation, the regulations should clearly establish that the victims may apply for integral reparation under articles 23 and 45 of the Law at any time after the arraignment, and are not obligated to do so before sentencing. In the event that, after the alternative sentence has been granted, a victim applies for integral reparation, the court must rule on that request and modify the sentence to include the required reparation.
In addition, the regulations should establish that the Attorney General’s office, in fulfillment of its obligations according to Article 15 of Law 975, must investigate the criminal acts on the basis of which victims have made requests for reparation. Depending on the results of the investigation, the Attorney General’s office should bring any new charges that may be appropriate. The office should also present any relevant evidence to the court, so that the latter may take such evidence into account when it rules on the reparation request. Otherwise, it will not be possible to ensure victims’ right to reparation in accordance with Article 8 of the Law, given that victims do not have the capacity to investigate and collect evidence on their own.
VII. Preserve the possibility of extradition
The regulations should include provisions designed to preserve the possibility of extradition:
- The regulations should provide that the list the National Government gives to the Attorney General’s Office should, in addition to identifying the individuals who are entering the process, also state which individuals have criminal charges pending against them in other countries, and describe the charges. The National Government should include, along with the list, a request to the Attorney General’s office that –to ensure international law enforcement cooperation –the office not charge those individuals with the same underlying acts for which they have been charged in other countries.
- The regulations should establish that, even if the demobilized individual confesses to acts for which he has been indicted in another country, the Attorney General’s office need not and should not charge him with those acts.
VIII. Establish that an individual who has already been arrested, convicted, and is serving a sentence cannot receive the alternative sentence for the crimes for which he is already serving a sentence
The regulations should establish that persons who have already been arrested, convicted, and are serving a sentence, can only receive the benefit referenced in Article 70 of the Law (i.e., a ten per cent reduction in their sentences).6 The regulations should establish that a person who is already serving a sentence cannot receive the benefit of the alternative sentence for the crime for which he is already in prison. In any case, he can only receive the alternative sentence with respect to other crimes for which he has not yet been convicted.
IX. Sanctions for officials
When, after receiving benefits for demobilization, a demobilized individual is found to have committed other crimes he did not confess, or is found to have other assets he did not identify, the regulations should establish that a disciplinary investigation will be initiated to determine whether the officials in charge of the case should be sanctioned for any action or omission. This should also apply to the officials of the National Government, or their delegates, who are responsible for putting together the list of persons eligible to receive benefits.
[1] If such payment or consideration was provided, the regulations should make clear that its reimbursement is required.
[2] At the same time, the regulatory decree should establish that for purposes of the application of the Law, the National Government shall be understood to mean specific representatives of the government such as, for example, the President or his delegate, the Minister of the Interior or his delegate, the Minister of Defense or his delegate, etc. The regulations should establish that delegation does not exempt the principal from responsibility.
[3] Article 17 of Law 975 provides that the individuals who seek benefits under the law “shall make a spontaneous declaration before the prosecutor delegate… who will question them about all the facts of which they have knowledge. In the presence of their defense counsel they shall describe the circumstances of time, manner, and place in which they have participated in the criminal acts committed on occasion of their membership in these groups, prior to their demobilizing, and in respect of which they avail themselves of this law.”
[4] In such a situation, it may be necessary to set the individual free after the passage of the 36 hours established in Article 17 of Law 975, in which the demobilized individual is available to the magistrate. It is also possible that some charges could be brought in the 36 hour period, while others are brought later on, after a more thorough investigation.
[5] Article 17 of Law 975 establishes that the members of an armed group who wish to receive benefits “shall make a spontaneous declaration… [and] describe the circumstances of time, manner, and place in which they have participated in the criminal acts committed on occasion of their membership in these groups, prior to their demobilizing, and in respect of which they avail themselves of this law.”
[6] This reduction is not applicable to crimes against humanity, among others.
