Identifier
Created
Classification
Origin
05BOGOTA3223
2005-04-07 18:06:00
CONFIDENTIAL
Embassy Bogota
Cable title:  

DEMOBILIZATION LAW: THREE CONTROVERSIAL ARTICLES

Tags:  PTER KJUS PINR PGOV PHUM CO 
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C O N F I D E N T I A L SECTION 01 OF 05 BOGOTA 003223 

SIPDIS

E.O. 12958: DECL: 04/07/2015
TAGS: PTER KJUS PINR PGOV PHUM CO
SUBJECT: DEMOBILIZATION LAW: THREE CONTROVERSIAL ARTICLES
REMAIN

REF: BOGOTA 2649

Classified By: Ambassador William B. Wood for reasons
1.5 (b) and (d)

C O N F I D E N T I A L SECTION 01 OF 05 BOGOTA 003223

SIPDIS

E.O. 12958: DECL: 04/07/2015
TAGS: PTER KJUS PINR PGOV PHUM CO
SUBJECT: DEMOBILIZATION LAW: THREE CONTROVERSIAL ARTICLES
REMAIN

REF: BOGOTA 2649

Classified By: Ambassador William B. Wood for reasons
1.5 (b) and (d)


1. (U) Summary: The Senate and House First Committees have
voted on 63 out 67 articles (reftel). Several contentious
articles -- to block drug traffickers from benefiting; to
call for, but not require, an open statement on crimes and
illicit assets by each beneficiary; to allow individual
deserters to benefit under certain conditions; and to permit
those who failed to confess all crimes but subsequently
accept guilt to receive an alternative sentence -- were
passed after heated debate. On April 6, the GOC and its
supporters in Congress ceded on several issues, including
adding tougher language on blocking drug traffickers from
benefiting, revising text on revocation of benefits, removing
blanket sentence reductions for all prisoners, and a new
article on applicability for humanitarian exchanges. Voting
on the law has been slow due to a lack of quorum at several
debates and to the sensitivity of the issue. The three most
contentious articles on the existence of an armed conflict,
connectivity of crimes, and sedition remain. End Summary.

--------------
Sixty-three Articles Passed in Committee
--------------


2. (U) As of April 6, the Senate and House First Committees
had voted on all but four of 67 articles of the Law for
Justice and Peace. At least four contentious articles were
approved after heated debate: article ten that lists
requirements for collective demobilizers to benefit,
including precluding those whose principle activity was drug
trafficking; article 11 that permits individual deserters to
benefit provided they meet certain conditions, including to
not have personally benefited from drug trafficking; article
17 that calls for, but does not require, each beneficiary to
give an open statement ("version libre") about his crimes and
illicit assets; and article 25 that allows beneficiaries who
initially failed to confess a crime to benefit if they later
accept guilt.


3. (U) Senator Rafael Pardo and his supporters proposed

removing articles 10 to 28 from the GOC draft and replacing
them with 24 articles from Pardo's rival draft. They argued
that the GOC draft does not require a full confession or
guarantee the full dismantlement of the demobilizing illegal
armed group. The Pardo proposal was rejected.

--------------
Heated Debate, GOC Shows Some Flexibility
--------------


4. (C) GOC supporters ceded on several key issues:

-- Tougher language to block drug traffickers: On April 4, 5,
and 6, requirements to benefit from the law were altered
after heated debate based on suggestions from Senator German
Vargas Lleras (traditionally an Uribe ally) and others.
Vargas proposed adding to both article 10 (requirements for
collective demobilizations) and article 11 (requirements for
individual deserters) that individuals who were drug
traffickers before joining the illegal armed group (IAG) and
individuals who personally benefited from drug trafficking
while a member in the IAG not be allowed to benefit. On
April 5, the first condition was approved for article 10. On
April 6, both conditions were approved for article 11. Also
added to article 11 by Uribista Roberto Camacho and official
Liberal Juan Jose Vives was a requirement to collaborate with
authorities. Uribista Representative Armando Benedetti then
proposed to re-open the debate on article 10 when the
Committees next meet given the changes made to article 11.
Vargas publicly thanked the GOC for its support for his
proposals and said he was satisfied the law would prevent
narcotraffickers from benefiting.

-- Revision of revocation of benefits: Article 31, that
describes when benefits will be revoked was rejected, and a
special sub-committee of Congress will be tasked to come up
with new language. This was done in reaction to complaints
from several skeptics of the GOC draft that the language did
not explicitly state that if a beneficiary commits a new
crime after serving his alternative sentence his benefits
will be revoked.
-- No blanket sentence reductions: Article 61, that would
have made all prisoners eligible for blanket sentence
reductions, was rejected in response to complaints from
numerous Congressmen that the clause did not belong in a
demobilization law.

-- Humanitarian exchange: The Committees voted to add a
section allowing the President to request that the law apply
to IAG members who participate in a humanitarian exchange.

--------------
Tough Road Ahead
--------------


5. (C) Although the Committees are now moving apace, lack of
quorum had forced Congress to close three sessions of debate
last week. A quorum was not expected for April 7 because
Thursdays are generally travel days for Congressmen. Vice
Minister of Justice Mario Iguaran had told us that
Representative Gina Parody (who supports Pardo's rival draft)
had been encouraging her allies not to attend the sessions to
block the law's passage. Her efforts appear to have been
unsuccessful.


6. (C) Iguaran and First Committee member Representative Luis
Fernando Velasco told poloff that they doubted Committee
voting on the remaining four articles would be finished by
the 7th. Senator Andres Gonzalez (a former Justice Minister)
estimated that the legislation would pass the Congress as
late as June or early in the following regular session, which
begins July 20. He noted that the Pardo group would continue
to fight hard for inclusion of some of their draft's articles
but that they expected to lose some battles.


7. (C) Three remaining articles are the most controversial:

-- Article 20, Connectivity: permits the Superior District
Court to combine all the charges against an individual into
one case. The article is entitled "connectivity and
accumulation of processes and punishments." Many
Congressmen, including Senator Rodrigo Rivera, complain that
the term "connectivity" would allow drug trafficking to be
considered connected to political crimes and therefore
blocked from extradition. The GOC plans to retain the word
connectivity but specify that (1) the combination of charges
is for procedural purposes only, (2) drug trafficking cannot
be considered a political crime or connected to a political
crime, and (3) the law only applies to crimes committed when
the beneficiary was a member of the illegal armed group.
This may help appease skeptics.

--Article 2, armed conflict: Senator Pardo and his supporters
disagree with article two because it does not make reference
to an armed conflict. Instead, they want to replace article
two with their article eight. The GOC has insisted that an
armed conflict does not exist.

--Article 64, sedition: specifies that belonging to a
paramilitary group is sedition, which is a political crime
and carries the same punishment as rebellion against the
state. Skeptics, including Rivera, have argued that this
clause will help allow paramilitaries claim that drug
trafficking was connected to sedition, which is a political
crime and blocked from extradition. The GOC claims that
article 64 is required simply to make paramilitaries equally
eligible as guerrillas for pardon for having belonged to an
illegal armed group. According to current legislation,
rebellion, but not sedition, is a political crime. Only
political crimes can be pardoned under Law 782. Iguaran has
told us the GOC will not cede on Senator Pardo,s demands to
remove the article.


8. (U) Article 67 on the time frame of when the law would be
in effect also remains but is not overly contentious.

--------------
Articles passed
--------------


9. (U) The following is a list of the articles passed on
March 30 and April 4, 5, and 6.

--Article 10: Requirements to benefit from the law for
collective demobilizations. Senator Vargas Lleras added a
clause that precludes individuals who were drug traffickers
before they joined the illegal armed group from benefiting.
His proposal to preclude individuals who personally benefited
from drug trafficking while members of the group was
rejected.

-- Article 11: Requirements to benefit from the law for
individual deserters. Senator Vargas Lleras added a clause
to preclude individuals who personally benefited from drug
trafficking while members of the group.

--Article 12: The proceedings will be oral (based on the new
accusatorial system).

--Article 13: The hearings will be conducted with celerity
(based on the new accusatorial system).

--Article 14: Beneficiaries have the right to name a defense
lawyer or receive one from the Public Defender's Office.

--Article 15: The state must do everything necessary to
clarify the truth of the crimes under investigation. The
Fiscalia unit will be assisted by the Investigative and
Judicial Police to clarify the truth of time, place, and
other circumstances of crimes committed. The beneficiaries
will collaborate, especially to identify disappeared or
kidnapped persons.

--Article 16: The special Fiscalia Unit will identify all
pending investigations against the potential beneficiaries.

--Article 17: Each potential beneficiary can give an open
statement ("version libre"),including the time, manner, and
place of all the crimes he committed, to the Fiscalia unit.
The statement qualifies as admission of guilt. (Many
Congressmen argued against this article, including Senator
Andres Gonzalez and Rafael Pardo, because it does not demand
a full confession.)

--Article 18: The beneficiary will also be charged for crimes
that he did not confess but for which sufficient evidence
exists. The beneficiary can accept or deny the charges.

--Article 19: The Superior District Court will have five days
to determine if the beneficiary freely and voluntarily
accepted guilt for his crimes.

--Article 21: The normal criminal code will apply for any
crimes that the beneficiary did not accept.

--Article 22: The beneficiary can accept guilt for crimes
that have not yet been fully investigated. Admission of
guilt will qualify as a formal accusation.

--Article 23: The process of determining reparations to
victims will begin immediately after the Superior District
Court determines the validity of the beneficiary's
acceptation of charges.

--Article 24: The sentence issued by the Superior District
Court will include the original sentence, the alternative
sentence, and auxiliary punishments, including behavioral
requirements and reparations. The Superior District Court
will be responsible for evaluating compliance with the
sentence.

--Article 25: If it is later revealed that the beneficiary
was guilty of crimes which he did not confess and accept
guilt, the normal criminal code will apply to those crimes.
However, if he subsequently accepts the charges, he may/may
receive an alternative sentence.

--Article 26: A chamber of the Supreme Court will resolve
appeals.
--Article 27: The Fiscalia unit can ask the Superior District
Court to drop charges if it determines that there is no
reason for charges, the crime did not occur, innocence is
impossible to disprove, or other conditions.

--Article 28: The Fiscalia unit can close an investigation if
there is not adequate evidence. If evidence subsequently
appears the case can be re-opened.

--Article 29: The Inspector General's Office (Procuraduria)
will intervene when necessary to defend public order, public
patrimony, and fundamental rights.

--Article 30: The Superior District Court will determine the
alternative sentence. Beneficiaries will spend between five
and ten years in confinement and be on parole for one half of
the time in confinement.

--Article 32: The government will determine where the
beneficiary serves his time in confinement. Reclusion
centers must meet the standards of the National Institute of
Prisons (INPEC). The term can be served overseas.

--Article 33: Time spent in a concentration zone can count
against the time in confinement for up to 18 months.

-- Article 34: The designated Superior District Court is
responsible for judging and sentencing the beneficiaries and
keeping a record of the process. (Note: our contacts tell us
that the vast majority of the cases will be assigned to the
Bogota Superior District Court because most beneficiaries
face charges in more than one Department. Each Department
has a District Court.)

--Article 35: Creation of a special unit of the Prosecutor
General's Office (Fiscalia) to investigate each beneficiary.
The unit will be assisted by the Judicial and Investigative
Police. (The clause specifying the number of members of the
unit was removed.)

--Article 36: The Public Defender's Office (Defensor del
Pueblo) will provide a lawyer to any beneficiaries who want
one.

--Article 37: The Inspector General's Office (Procuraduria)
will create a group to assist victims to exercise their
rights. This group can participate in legal proceedings. It
also will maintain a public record of the process. (Senator
Pardo's suggestion to make Procuraduria participation
mandatory in each case was rejected).

--Article 38: Social organizations can assist the
Procuraduria oversight group.

--Article 40: The public agencies involved in the law will
take all measures necessary to protect the safety,
well-being, dignity, and life of all victims and witnesses.

--Article 62: For anything not discussed in the law, Law 782
or the normal criminal code applies.

--Article 63: If in the future a law is passed that offers
more favorable benefits it will apply.

--Article 65: Turning over minors that were members in the
IAG will not be grounds for losing benefits.

--------------
Articles Removed
--------------


10. (U) Article 61 would have allowed all jailed prisoners to
be eligible to reduce their sentence by up to one fifth.

--------------
Comment
--------------


11. (C) Embassy understands that the reluctance to require
confession is based, in part, on a precedent in which the
Constitutional Court struck down a law merely for "urging"
confession, as a violation of the self-incrimination
principle. As a result, Embassy pushed for language
requiring that any subsequent revelations of concealment or
deception would revoke all benefits. Articles 21 and 25 give
us most of what we wanted, but not all. This means in cases
of interest to the U.S. in which subsequent information
reveals more than the confession, we will have to lobby the
prosecutors and the government. But the structure is in
place to allow revocation of benefits in such a situation.

-- Embassy also pushed to safeguard extradition. Articles 10
and 20 in the current government draft, at our request, make
clear that there is no protection for drug-trafficking before
a beneficiary joined an IAG. Article 10 has been approved,
but debate may be re-opened. We will continue to push this
until the articles are voted. The correction in Article 20
of the "narco-mico" (rather than in article 64),also at our
request, ensures that in the future neither the FARC nor the
ELN will be able to protect themselves from extradition by
using the connection to the political crime of "rebellion,"
just as in this case we are ensuring against the
paramilitaries' using the political crime of "sedition" to
protect from extradition. Finally, at Embassy's request, the
law provides that alternative sentences can be served outside
the country, which opens the door to extradition even for
acts committed as part of an IAG, but probably only for the
period of the alternative sentence, provided the beneficiary
fulfills all other requirements. We will have to see how
this plays out in practice.

-- Embassy has pushed for a tougher law. Both the sentences
and the probation periods reflect Embassy pushing, although,
again, we didn't get everything we asked for.

-- Embassy will continue to push for rapid approval of the
law, especially since NGOs and the EU seem to favor
withholding of assistance to the 12,000 demobilized until it
passes. As predicted, implementation problems in the absence
of assistance are cropping up already. The OAS tells us that
their assistance funding from both the Netherlands and USAID
is near to running out.

-- Finally, passage through committee does not mean that
there won't be further changes. We will be monitoring on the
closest possible basis and weigh in whenever our goals of
peace, justice, extradition, dismantlement, reparations,
control of demobilized, or transparency are at risk. End
comment.




WOOD