PRELIMINARY ANALYSIS OF CONSTITUTIONAL COURT'S

C O N F I D E N T I A L BOGOTA 006549

SIPDIS

SIPDIS

E.O. 12958: DECL: 07/19/2016
TAGS: KJUS PGOV PINR PREL PTER CO
SUBJECT: PRELIMINARY ANALYSIS OF CONSTITUTIONAL COURT'S
FULL OPINION ON JUSTICE AND PEACE LAW

REF: BOGOTA 4645

Classified By: CDA Milton K. Drucker.
Reasons: 1.4 (b) and (d)

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Summary
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1. (C) On July 13, the Constitutional Court published its
written opinion upholding the Justice and Peace Law. The
opinion strengthens the Law in some respects, appearing to
place more onerous requirements on demobilized paramilitaries
who seek its benefits. AUC lawyers have been scrutinizing
the opinion; former paramilitary leaders are expected to
comment as early as July 19. It remains to be seen whether
longstanding Colombian legal principles will enable
paramilitaries to insist the GOC apply the terms of the Law
the Congress approved, or the more stringent version
announced in the Court's opinion. The 160 page decision of
the Court is very intricate, and may leave room for legal
argumentation and interpretation that could benefit the
paramilitaries. There is discussion within the government
about a possible further implementing regulation to resolve
ambiguities. End summary.

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Justice Strengthened...
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2. (C) The Court's formal written opinion on July 13 reduced
the number of benefits that the Justice and Peace Law (Law
975) had guaranteed the demobilized paramilitaries,
strengthening the "justice" side of the Law. Under the
Court's ruling:

- A demobilized person is ineligible for benefits if he omits
"intentionally or not" a crime from his debriefing or version
libre (the Law stated the demobilized could argue his
omission was unintentional). If an omission occurs, the
Court said the person must be investigated and judged for
thatcime under ordinary criminal law (Art. 25).

- Those seeking benefits must not only free those that they
have kidnapped (what is stated in Art. 10.6),but also
disclose the location of the bodies of those whom he either
kidnapped or killed.

- The Prosecutor General's Office (Fiscalia) no longer has to
"immediately" notify the Law 975 judge of its intent to
formulate preliminary charges until after the Fiscalia has
had the opportunity to "thoroughly" complete its
investigation (Art. 17). This expands the time the
Prosecutor General's Office has to investigate.

- The 18-month credit towards the Law 975 alternative
sentence, which the law allowed in Art. 31 for the time spent
by the demobilized in a government-selected "concentration
zone," is revoked.

- Prisons where the demobilized will eventually serve their
sentences must be subject to the same prison rules and
conditions applicable to all Colombian prisoners (Art. 30).

- Those subject to the Law will be required to use all
illicit and licit assets to repair the damages caused to
their victims, as opposed to only illicit assets signaled in
the Law (Art. 10.2, 11.5, 13.4, 17, 18, 44, 46).

- Victims have the right to know, to become involved in the
investigations, to have access to the Fiscalia's formal case
file, and to be present during all procedural stages. The
Court also expanded the definition of "victim" under Law 975
to include any family member who can demonstrate a real,
concrete claim of injury.

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...But Inconsistencies Apparent
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5. (C) Some discrepancies are evident between the Court's
mid-May press releases and its full opinion. Moreover, the
Court's legal analysis used to justify this apparent switch
in positions does not appear to be compelling. For example:

- Alternative Sentence - A Court press release on May 18
stated it was striking Art. 20 as unconstitutional because
setting an eight-year upper limit on sentences would deny
justice to victims of crimes for which the demobilized had
already been sentenced, in some cases to extensive terms.
The Court issued another press statement the following day in
which it "clarified" that previous sentences would be
"accumulated" and in essence served consecutively, with an
eight year maximum term as long as the demobilized abided by
Law 975 obligations. In its full opinion, the Court
re-stated the eight year upper limit, without explaining the
apparent discrepancy between the two press releases.

- Court Appears to Soften Conditions for Revoking Alternative
Sentence - The Court said that a Law 975 beneficiary could
have his parole revoked if he committed a crime similar to
that for which he was convicted. This decision upheld Art.

29. However, it was "softer" than the Court's mid-May press
releases, which suggested parole could be revoked if the
demobilized committed any/any crime.

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Seditious Status Pending
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6. (C) The Court ruled that Article 71 - which sought to
make "sedition" a political crime - had failed to go through
all of the required debates in the legislature prior to its
enactment; therefore, the Court declared it unconstitutional
because of procedural errors. In an interview after the
Court's May press releases, President Uribe announced that he
intended to revive the article.

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Para Response Pending
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7. (C) Press reports indicated AUC lawyers have been
scrutinizing the final text of the Constitutional Court
ruling to agree on a unified response. AUC leader Ernesto
Baez said there would be no official response to the
Constitutional Court ruling until July 19. It remains to be
seen whether the longstanding Colombian legal principle of
"favorability" will enable the demobilized to insist the GOC
apply the (more favorable) terms of Law 975 as approved by
the Congress, as opposed to the more rigorous version the
Court announced on July 13.

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Comment
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8. (C) The 160 page decision of the Court is very intricate,
and may leave room for legal argumentation and interpretation
that could benefit the paramilitaries. There is discussion
within the government about a possible further implementing
regulation to resolve ambiguities.
DRUCKER