PRELIMINARY ANALYSIS OF THE DRAFT JUSTICE AND

C O N F I D E N T I A L BOGOTA 007986

SIPDIS

SIPDIS

E.O. 12958: DECL: 08/30/2016
TAGS: KJUS PGOV PINR PREL PTER CO
SUBJECT: PRELIMINARY ANALYSIS OF THE DRAFT JUSTICE AND
PEACE LAW REGULATIONS


Classified By: Ambassador William B. Wood.
Reasons: 1.4 (b) and (d)

--------------
SUMMARY
--------------


1. (C) A preliminary analysis of the the GOC draft Justice
and Peace Law (JPL) regulations published on August 29 for
public comment indicates that it is a mixed bag. The draft
follows the Constitutional Court standard for para disclosure
of their crimes, requires paras to use their licit assets to
satisfy reparations, and does not preclude or hinder
extradition. Still, paras would not lose their JPL benefits
if their licit assets are insufficient to pay reparations,
and any time spent in custody at Le Ceja will be credited as
time served. Coupled with the up to 18 months credit for
time spent in Ralito, this could mean some paras serve little
real jail time. The decree could change since the GOC has
posted it on the Presidency website for public comment until
September 3. End summary.

--------------
JPL REGULATIONS OUT FOR PUBLIC COMMENT
--------------


2. (C) The GOC published three decrees on August 29 relating
to the application of the JPL. The first decree authorizes
theFiscalia to call demobilized members of the AUC in to
ratify their commitment and eligibility for JPL. Minister of
Interior and Justice Carlos Holguin said the decree allows
the prosecutors to begin the application of the JPL and
advance to the investigative and judicial phases. The other
two decrees, which are posted for public comment until
September 3, address the regulatory procedures for the Public
Order Law (782) and the JPL. Our analysis focuses on the JPL
decree.

--------------
TRUTH
--------------


3. (C) The demobilized paramilitary will have to provide a
full confession regarding all crimes in which he participated
(Art. 12, paragraph 3.). The decree states that a
demobilized paramilitary loses benefits if he omits a crime
from his version libre, intentionally or not. However, the
paramilitary involved would first have to be convicted of
such a crime. Moreover, the crime must be significant and
relevant to the peace process. This is the standard set by
the Constitutional Court ruling on the JPL. With regard to
the post-alternative sentence "probationary period," the
decree provides for the loss of benefits for any "delito
doloso" that was omitted (Art. 17, paragraph 2.)

--------------
REPARATIONS WITH ILLICIT AND LICIT ASSETS
--------------


4. (C) The demobilized paramilitary may be required to use
licit assets for reparations. Following sentencing, the
decree provides that legal assets must be used to pay
reparations when illegal assets are insufficient, provided
that the demobilized has enough assets to lead a "dignified
existence" (Art. 29, paragraph 1.) Still, the decree states
that the failure to pay reparations with legal assets can
never be a reason for disqualifying someone from the
alternative sentencing benefits of the Law. In addition, if
responsibility for the crimes for which the individual is
sentenced can be assigned to a group, then first recourse on
reparations will be to the group and only subsequently to the
individual (Art. 29, paragraph 3.)

--------------
DISCOUNTS ON SENTENCING
--------------


5. (C) The demobilized paramilitary will receive discount on
sentencing. They will receive a discount for the time spent
in Santa Fe de Ralito, a maximum of 18 months, and might also
receive credit for the time spent at La Ceja. Article 17 of
the decree states the decision of the Constitutional Court,
which found that the time spent in Ralito could not count
towards the alternative sentence (Art. 31 of Law 975,) could
not be applied retroactively. In addition, the last
paragraph on Article 15 suggests that if the paras
voluntarily turn themselves in and are placed in the centers
selected and administered by INPEC, such as La Ceja; they
will also receive credit for this time served.

--------------
PRISON CONDITIONS
--------------


6. (C) The demobilized paramilitary will have to serve time
in regular prisons. The decree provides that the persons
serve at least half of their sentence in regular prisons.
Once half of the alternative sentence is served, a person
sentenced under 975 can serve the rest of his sentence as
permitted by Article 28 of Law 65 of 1993, which allows the
remaining time to be served in an institution other than a
regular penitentiary, such as an agricultural colony.

--------------
EXTRADITION
--------------


7. (C) The decree does not address extradition. Presidential
legal advisor Mauricio Gonzalez told us that the separate
sedition decree would give the paras an additional argument
to use against extradition, but the paras understood this
would not be a winning argument. He said the paras' real
purpose in seeking a sedition decree is to allow them to
escape Art 179 of the Constitution which bans individuals
convicted of a "delitodoloso," unless such a crime is
political, from running for Congress.

--------------
ADDITIONAL CONCERNS
--------------


8. (C) The decree creates a rebuttable presumption that all
crimes committed by the demobilized, including drug
trafficking and illegal enrichment offenses, from the moment
they joined an illegal armed group, were committed as part of
their membership in the group (Art 3, paragraph 3.) The only
way to rebut this presumption is for the Fiscalia to prove
that the crimes were neither "collateral," "concomitant," nor
"subsidiary" to the activities of the group, but were rather
the sole purpose of this group. Gonzalez told us he opposes
the article, but it is unclear if the GOC will remove it
after the public comment period closes on September 3. He
said such a presumption would unacceptably protect AUC
members who killed someone while drunk or who had engaged in
illicit activities solely for personal gain.
WOOD