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Bogotá, Colombia

Bulletin No 41: Series on the rights of the victims and the application of Law 975

“Parapolitics” revealed?

The Supreme Court of Justice (SCJ) is taking important steps to shed light on the phenomenon of

paramilitarism in Colombia. Proof of this are two recent decisions announced by its Penal Chamber

with regard to the investigations that the tribunal is carrying out against members of Congress for

their alleged links with paramilitary groups, in what is known as “parapolitics”- that is, the links

between paramilitary and politicians.

The first of the two, in which the Court assumed control again of the investigations being carried

out against several members of Congress for their links with paramilitary groups, was adopted on

September 1, 2009. In the second one, dated September 16, 2009, the Court revealed - in a vote

subscribed by four magistrates - a new thesis that is taking shape within the Court and which seeks

to show that the Congress members not only are accountable for the crime of conspiracy to commit

a crime, which is the legal figure through which the act of creating paramilitary groups is

investigated and sanctioned in Colombia; they were also members of the paramilitary leadership

and, hence, could be held legally responsible for the crimes against humanity perpetrated by such

groups without having committed them directly. Let us examine succinctly each of these decisions.

The Court regained its competence to judge the “parapoliticians”

As is well known, the strategy of several of the Congress members against whom a criminal

investigation was undertaken for their presumed links with paramilitary groups was to give up the

constitutionally guaranteed immunity as members of Congress in order to take away from the

Supreme Court of Justice the competence to investigate them and to transfer it to the General

Prosecutor‟s Office. The reason is that they expected the Prosecutor‟s Office to be more lenient in

the investigation, and that this, in turn, would favor their absolution or reduced sentence if they

were tried and found guilty. Among other reasons, this calculation was based on the fact that

Congress members hold the kind of political power at the local level – and even nationally – that

can sway the impartiality of judicial officials.

Enshrined in the Constitution is a special immunity for Congress members that holds that they are

to be investigated and judged by the Supreme Court Justice for any crimes they might commit.1

This competence subsists even if the Congress members leave office, provided that they are charged

with crimes related to their functions as members of Congress. The SCJ had maintained the

following as part of its jurisprudence for several years: “the Constitution distinguishes two

hypotheses: while a person is a member of Congress, he or she will be investigated by the Supreme

The present publication has been prepared with the support of the European Union and its content is the sole

responsibility of the Colombian Commission of Jurists. In no way should it be thought to reflect the point of view of the

European Union. 1 As has been pointed out by the Constitutional Court, this must not be understood as a personal privilege enjoyed by

Congress members but as a legal figure constituted “because of their investiture and with the aim of protecting the

integrity and the autonomy of the Congress of the Republic.” See in this regard, Sentence T-1320 de 2001, M.P.: Alfredo

Beltrán Sierra.

Con el apoyo de:

UNIÓN EUROPEA

2

Court for any crime; however, if the person has left office, then he or she will be judged by that high

tribunal only if the crime bears relation to his or her functions.” 2

This was the position defended by the SCJ until 2007 when, through a judicial decree dated April

18 of that year, it changed its jurisprudence and added an additional prerequisite in the event that

Congress members should be investigated for crimes related to their function. In this change of

jurisprudence, the Court stated that: “when the capacity as Congress member is lost – it does not

suffice for just any relation between the act attributed and the condition of Congress member to be

established; it is necessary that the link be direct and immediate in terms of what the doctrine calls

“distinguishing crimes,” („delitos propios‟), understood as those that can be committed by a public

servant only in relation to the functions that have been delegated to him or her through the mandate

of the Constitution or the Law or those related.” 3

The Court understood then, as it itself states, that the fact that the Congress members made deals

with paramilitary groups could not be construed as an act carried out on the grounds of their

function as members of Congress; and thus, in such cases, if the Congressmen relinquished their

position, they would lose their special immunity and could be investigated by the Prosecutor‟s

Office. This, in effect, gave cause for many of them to give up their special immunity so the Court

would no longer be competent to investigate and judge their alleged links with paramilitary groups.

Thus, of a total of 80 Congress members who were investigated, almost half of them waived their

special immunity. In fact, 47.5% of these public servants gave up their position (38 members of

Congress), while 52.2% stayed in their posts (42 members of Congress). 4

As was pointed out at the beginning of this bulletin, in the new ruling dated September 1, 2009, the

Court reviewed its opinion of 2007 when it ascertained that the Constitution does not envisage that

the crimes for which Congress members can be investigated and are related to their functions could

be the so-called “distinguishing crimes.” On the contrary, the Constitution refers only to crimes

“related to the functions carried out by Congress members” without specifying further. For the

Court, this implies that the link between the crime with the public function is present when the

former “is carried out as a cause of the public service performed, on the occasion of same, or in the

exercise of functions inherent to their office; that is, that the act originates in the Congressional

activity or is a necessary consequence thereof, or that the exercise of the functions characteristic of

a Congress member constitute a means or a suitable opportunity for the execution of the crime, or it

represents an irregular or abusive exercise of those functions.” 5 Immediately thereafter, the Court

states the following:

“Such is the case of the Congress members accused of aggravated conspiracy to

commit a crime because of their possible links with members of the self-defense groups

when they already occupied a seat in Congress, an act that, although it is not part of

their functions, - meeting with delinquents to orchestrate crimes is not and cannot be

inherent to the realm of functions of Congress -, it does show, on the one hand, that it is

possible that he was a member of that criminal organization and, on the other, that

according to the way in which that organization operated, he was presumably a

2 Penal Cassation Chamber of the Supreme Court of Justice, June 2, 2004, File n. ° 9.121. Quoted in: Penal Cassation

Chamber of the Supreme Court of Justice. September 1, 2009, File n. ° 31653, p. 11. 3 Penal Cassation Chamber of the Supreme Court of Justice, April 18 2007, File n. ° 26.942. Quoted in: Penal Cassation

Chamber of the Supreme Court of Justice, September 1 2009, File n.° 31653, p. 38. 4 Information from the press database of the Colombian Commission of Jurists, updated up to October 6, 2009. 5 Penal Cassation Chamber of the Supreme Court of Justice, September 1 2009, File n. ° 31653, p. 52.

3

qualified member of the organization whose responsibility it was to contribute in the

realm of his functions as Congress member.” 6

For the Court this becomes relevant in the case of the Colombian Congress members presumably

linked to paramilitary groups since, in those groups, “each one contributes what he has.” In this

sense, what the Congress members did was to put their power as Senators or Representatives at the

service of such groups. For that reason, the Court‟s decision in the specific case that generated the

sentence was to continue the investigation against Representative Édgar Eulises Torres, in spite of

the fact that this Congressman had waived his immunity, since even though he is no longer carrying

out that responsibility, the fact that the crimes for which he is being investigated bear a relation with

his functions make the Supreme Court of Justice competent according to this last sentence.

Members of Congress must answer for the crimes against humanity perpetrated by paramilitaries

In a decision in which the Court passed sentence against Congressman Ricardo Elcure Chacón for

his proven links with paramilitary groups in Norte de Santander, the Court sketched out a new

thesis which, if consolidated, could allow that Congress members be held responsible for the crimes

against humanity perpetrated by paramilitary groups. In that sentence the Court found the

Congressman guilty of aggravated conspiracy to commit a crime. However, in the motivation of

the sentence the Court made clear that the role of the Congressman within the paramilitary groups

was not simply to receive funds from them to finance his campaign for the Governorship of Norte

de Santander. On the contrary, after analyzing several pieces of evidence, the Court was able to

ascertain that the paramilitary groups not only supported him financially but that, additionally, they

put at his disposal their entire structure so he would achieve his goal so that, once achieved, the

Congressman could make use of his functions for the benefit of the paramilitary project.

The way in which the Court argued this opinion in the text of the sentence helped four magistrates

to sketch out in their vote a new thesis that holds that the Congressmen not only were members of

the paramilitary but they were also part of the paramilitary leadership. For these magistrates, the

fact that one of the purposes of the paramilitary groups was to co-opt local, regional, and national

institutions shows that those who, from those positions, were involved in the paramilitary project,

necessarily must have carried out their official functions with the aim of favoring the interests of the

groups they belonged to. According to the magistrates, “this explains the unconditional support of

some Congress members for the alternative sentences bill that sought a very high degree of

impunity for the crimes committed by the groups to which they owed loyalty.” 7

One of the “essential purposes” of the paramilitary groups, as the magistrates who conditioned their

vote point out, is that of attacking the civilian population, to that end committing all types of human

rights violations. That being the case, all of those who belonged to the paramilitary structure must

have been aware of the serious crimes perpetrated by those groups. However, criminal

accountability varies according to the role of those accused in the commission of the crimes. Thus,

the commanders of the paramilitary groups, who gave the orders to commit all sorts of crimes, must

answer for all the crimes committed by the structure they led, even if they did not commit them

directly, since it was on the basis of their instructions that the material authors carried them out.

How should the Congressmen-paramilitaries answer?

6 Penal Cassation Chamber of the Supreme Court of Justice. September 1, 2009, File n. ° 31653, p. 52. 7 Penal Cassation Chamber of the Supreme Court of Justice, September 16 2009, File n. ° 29.640, p. 34.

4

According to the vote, Congress members such as Ricardo Elcure were part of the “supreme

command” of the organization, “which designed, planned, structured, generated, and promoted the

actions that were to be developed by that criminal enterprise in order to consolidate its progress

and to obtain more returns within the plan designed,” 8

given the power and influence and the

position they enjoyed within the established political parties, even if they were not recognized as

paramilitaries.

Thus, according to these magistrates, the members of Congress were part of a paramilitary structure

made up of a plural number of persons “articulated in a hierarchical and subordinate way to a

criminal organization, who, through a division of responsibilities and a concurrence of

contributions (which can take the form of sequential and descending orders) carry out punishable

acts.” 9

In this observation, it appears that the magistrates are proposing the acceptance of the

criminal theory of “indirect perpetration through command of will in an organized state

apparatus,” by means of which was judged and condemned, among others, the former president of

Peru, Alberto Fujimori.10

What this theory sets out, basically, is that in organized crime structures or organized power

systems, those who commit the crimes in a material sense do so following orders given to them

from the highest level of hierarchy of the organization to which they belong, or they are following

clear policies that exist within the organization and which allow them to infer when, and against

whom, they must commit a certain type or crime. Thus, those who control the execution of the

crimes are the leaders of the organization; making use of the power they hold and of the

organization under their command, they can commit crimes without carrying them out directly. By

means of this theory, then, the purpose is to hold accountable, with a high level of recrimination, all

those who are in charge of “organized power systems” and whose responsibility is often made

invisible, when not concealed, because they are not the direct perpetrators of the crimes even though

they are responsible for them.

On the basis of these ideas, what is set out in the vote is that the Congress members, because they

were part of the paramilitary structure at its highest levels, must be held accountable – just like the

paramilitary commanders – for the crimes against humanity perpetrated by such groups.

The importance of these decisions

There are in Colombian society at least two myths regarding paramilitarism. One is that the creation

of these groups originated in the association of small farmers acting in self defense against the

harassment of the guerrillas and in the context of the absence of the State. The other, which follows

from the first myth, is that the paramilitaries or “self-defense groups” are nothing more than an

army; as a result, society easily identifies this phenomenon with recognized paramilitaries who have

no problem acknowledging that they are part of such groups. This is the case of the three Castaño

brothers, of Salvatore Mancuso, and of Rodrigo Tovar Pupo, alias “Jorge 40,” among many others.

Valuable efforts have been made in recent times to demystify such beliefs and to reveal

paramilitarism in its essence. The first myth has already been debunked, at least judicially, before

8 Penal Cassation Chamber of the Supreme Court of Justice. September 16 2009, File n. ° 29.640, p. 35. 9 Penal Cassation Chamber of the Supreme Court of Justice. September 16 2009 File n. ° 29.640, p. 36. 10 See in this respect, Supreme Court of Justice of the Republic of Peru, Special Penal Chamber, EXP.AV.19-2001, Part

III, Chapter II.

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international tribunals for the protection of human rights, which have proved that the paramilitary

groups were created legally by the Colombian State, which decided, against the basic principles of

humanitarian law, that the best strategy to combat subversion was to arm civilians and turn them

into its allies to attack, not the guerrilla combatants but those considered the social base of the

guerilla: the civilian population. There is sufficient material to demonstrate the legal underpinnings

of these groups under different names: “autodefensas”, “convivir”, “red de informantes”, etc.

Likewise, there have been numerous sentences against members of the State security forces for their

links to paramilitary groups. All this disproves the assertion that the paramilitaries arose

spontaneously because of State neglect. What occurred is precisely the opposite. 11

Regarding the second myth, the Penal Chamber of the Supreme Court of Justice has made valuable

contributions, such as the two decisions analyzed in this bulletin, which aim to demystify the belief

that the paramilitary groups are just a handful of armed persons. Investigations surrounding the so-

called “parapolitics” have taken decisive steps to demonstrate that paramilitarism is a complex

structure that includes among its members not only recognized paramilitaries but also other persons

who, from their positions of power in the military, entrepreneurial or political sectors, have been

part of these groups, contributing in various ways to strengthening their structure and to the

achievement of these groups‟ goals.

This assertion might seem rather “commonplace” since, for many years, victims and social

organizations have not ceased repeating it. However, the value of the two sentences mentioned in

this bulletin is precisely that they aim, from a judicial setting, to fill those assertions with content in

order to reveal the truth about what paramilitarism really is, thus erasing from the social imaginary

the belief that the Congress members who are being investigated for their links to paramilitary

groups are simply corrupt politicians like so many others in Colombia, who only received financial

or other support in order to be elected. The two sentences, one in its text and the other in its vote,

characterize that support and show how serious it is; and they are emphatic in highlighting that the

members of Congress being investigated by the Court were not simple beneficiaries of a concrete

type of support, but that they became involved with these paramilitary groups fully aware of their

modus operandi, believing that, once they were in public office, they would be more functional to

the paramilitary project to which they belong and which they helped build.

But justice has gone even further and now seeks to show that the paramilitaries are not guilty just

because they belong to that structure (aggravated conspiracy to commit a crime); additionally, they

belonged to the paramilitary leadership and, therefore, they should be accountable for other crimes

(crimes against humanity). It is naïve, to say the least, to think that Carlos Castaño and a few other

paramilitary bosses are the only ones who are part of the highest echelons of the paramilitary

hierarchy. What the latest pronouncements by the SCJ reveal is that there are other responsibilities

that must be unraveled in order to get to the truth. Although there is still a long way to go before

society becomes aware of the fact that the image that has been forced upon us during so many years

about paramilitarism is a lie, these sentences go in the right direction, aiming at reconstructing a

kind of truth that reflects reality and brings about the rejection of paramilitarism by understanding it

11 See in this regard Inter-American Human Rights Court. Caso de la masacre de 19 comerciantes vs. Colombia, (Case of

the massacre of 19 tradesmen vs. Colombia) Sentence of July 5 2004, serie C N° 109; Caso de la masacre de Mapiripán

vs. Colombia (Case of the massacre of Mapiripán vs. Colombia), Sentence of September 15 2005, serie C N°134; Caso de

la masacre de Pueblo Bello vs. Colombia (Case of the massacre of Pueblo Bello vs. Colombia) sentence of January 31

2006, serie C N° 140; Caso de las masacres de Ituango vs. Colombia (Case of the massacres of Ituango vs. Colombia)

Sentence of July 1 2006, serie C N° 149; Caso de la masacre de La Rochela vs. Colombia (Case of the massacre of La

Rochela vs. Colombia) serie C N° 163.

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in all its dimensions, so that these deeds will not be repeated and the existence of these groups will

never be justified again, with any excuse, under any circumstances.

All these important pronouncements become even more important at the present political moment,

in which 80 members of Congress are being investigated for their presumed links with paramilitary

groups, all of them members of the coalition now in government. Additionally, the General

Prosecutor‟s Office has just reopened the investigation against the Vice-President of the Republic,

Francisco Santos, for his presumed links with paramilitary groups with the purpose of creating a

paramilitary group in the city of Bogotá.12

The challenge is determining what degree of

responsibility so many public officials, and of such high rank, as well as the government itself, bear.

Considering the evidence of facts and proof, the government will have to give answers to

Colombian society on these matters. It is vital then that the essence of paramilitarism be revealed –

not only for the sake of justice and truth but also for the sake of democracy at a moment when it

seems to be crumbling.

Bogotá, October 22, 2009

For further information please contact Gustavo Gallón Giraldo, Director CCJ (Tel. 57-1 376 8200, ext. 115).

12 El Tiempo daily newspaper on-line, “Reabren investigación preliminar contra el vicepresidente Francisco Santos por

„parapolítica” (Preliminary investigation against Vice-President Francisco Santos for parapolitics reopened), October 19,

2009.