Cablegate: Ambassador Comments On Draft of Goc,S Justice And

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P 101359Z AUG 06
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INFO RUEHBR/AMEMBASSY BRASILIA 7038
RUEHCV/AMEMBASSY CARACAS 8047
RUEHLP/AMEMBASSY LA PAZ AUG LIMA 4117
RUEHZP/AMEMBASSY PANAMA 9414
RUEHQT/AMEMBASSY QUITO 4772
RUEHGL/AMCONSUL GUAYAQUIL 3629
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RUEAWJA/DEPT OF JUSTICE WASHDC
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RHEHOND/DIRONDCP WASHDC
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RHEHNSC/NSC WASHDC
RUEKJCS/SECDEF WASHDC

C O N F I D E N T I A L BOGOTA 007262

SIPDIS

SIPDIS

E.O. 12958: DECL: 08/10/2016
TAGS: KJUS PGOV PINR PREL PTER CO
SUBJECT: AMBASSADOR COMMENTS ON DRAFT OF GOC,S JUSTICE AND
PEACE LAW IMPLEMENTING DECREE

REF: BOGOTA 6549

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

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SUMMARY
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1. (C) The Ambassador reviewed U.S. concerns regarding the
GOC's draft implementing regulations clarifying key elements
of the Constitutional Court's July 13 ruling on the Justice
and Peace Law with Presidency's Judicial Secretary Mauricio
Gonzalez on August 3. The Ambassador stressed the importance
of full disclosure, the need for paramilitary leaders to
serve real time in jail and that the Law must not impede
extradition. Gonzalez, who is charged with reviewing the
implementing decree, took careful note of the Ambassador's
suggestions. End summary.

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GOC NEEDS TO RESOLVE LAW 975 AMBIGUITIES
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2. (C) The Ambassador met on August 3 with Mauricio Gonzalez
to review U.S. concerns regarding the implementing
regulations that the GOC is preparing to clarify the
Constitutional Court's recent decision on the Justice and
Peace Law (Law 975) (see reftel). The Ambassador noted that
the Constitutional Court decision was ambiguous on key
issues, and urged the GOC not to resolve these issues in a
way that seemed to go beyond what the Court intended. Such
an approach could spark another round of national and
international criticism, such as that received during its
approval in Congress last year.

3. (C) The Ambassador said the U.S. wanted to continue to
support the GOC's peace process with paramilitaries as long
the GOC held the paramilitaries to Law 975's requirements on
truth, justice, and reparation. With respect to truth, he
told Gonzalez that the U.S. strongly supported the provision
that calls for loss of Law 975 benefits if an individual
failed to fully disclose any of the crimes that he had
committed.

4. (C) Gonzalez said the GOC needed to specify which type of
crimes had to be disclosed to protect demobilized individuals
from malicious accusations that could lead to their loss of
Law 975 benefits. The Ambassador argued that only requiring
the demobilized to disclose specific types of crimes could
prompt some demobilized to conceal their involvement in
other, serious offenses. He suggested that a demobilized
individual should lose his benefits if he intentionally or
unintentionally did not disclose any crime that carried a
minimum sentence of a year and in which that individual was a
participant or an intellectual author. He said that since no
demobilized would lose his or her benefits unless later
convicted of a crime subject to disclosure, the demobilized
were already protected from spurious accusations.

5. (C) On justice, the Ambassador told Gonzalez that the Law
called for incarceration under conditions of "security and
austerity" that corresponded to normal confinement. The
draft decree suggests, however, that after a person serves
one third of his sentence, he could be transferred from a
jail cell to a farm or "agricultural colony." The Ambassador
argued that the 18-month credit for the time in Santa Fe de
Ralito or other concentration zones should not be counted as
part of that third because that would allow many to serve
little or no time in a regular jail and to instead go
straight to a farm. (Note: The Court struck down Article 32
that allowed credit for time in Santa Fe the Ralito, but,
because the decision is not retroactive, those that
demobilized on the basis of the 18-month credit would still
receive it.) He said given the Law's conditions of "security
and austerity," additional regulations on "agricultural
colonies" were not needed at this time.

6. (C) On reparation, the Ambassador said beneficiaries must
relinquish their illicit assets before they qualified for
benefits. He added that once a judge assessed a demobilized
individual's reparations bill, if the value of the
reparations was greater than the value of the illicit assets
already turned over, the individual should be required to
turn over his licit assets to cover the shortfall. The draft
decree suggests that providing legal assets was not a
requisite for complying with Law 975. (Note: The Court
declared that those subject to the Law would be required to
use all illicit and licit assets to compensate their victims,
rather than only illicit assets as stated in the Law approved
by Congress.)

7. (C) The Ambassador said the U.S. will continue to insist
that the Law must not impede extradition. He asked how the
GOC planned to interpret the Court ruling that Article 71,
which sought to make "sedition" a political crime, was
unconstitutional because of procedural errors. The
Ambassador voiced concern that if the GOC revived this
Article, former paramilitary leaders could argue that they
could not be extradited because their crime of
narcotrafficking was "political" in nature. Gonzalez
responded that others who have committed political crimes,
such as FARC commander Simon Trinidad, have been extradited
for non-political crimes such a narcotrafficking. Gonzalez
said the GOC understands that the Law must not preclude
extradition.

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WHY THE NEED FOR AN IMPLEMENTING DECREE?
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8. (C) The GOC is working on a new implementing decree to
clarify how it plans to apply the Court's July 13 decision.
It appears that Interior and Justice Minister SabasPretelt
will remain in office until the implementing regulations are
finalized. A debate continues on whether the Constitutional
Court's ruling applies retroactively. The Court's decision
stated that it did not apply retroactively and the GOC takes
the position that those who demobilized on the basis of the
Justice and Peace Law approved by Congress in July 2005 are
not subject to the Court's ruling announced on July 13.
Moreover, the Colombian legal principle of favorability,
which is found in Article 29 of the Constitution, says that
an individual has the fundamental right to request the more
favorable law to be applied to them; therefore, those
demobilized who submit themselves to the Justice and Peace
Law may insist the GOC apply the terms of Law 975 as approved
by the Congress and not the Court.
WOOD

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