For melancholy hearts ... Mexican Institute of Sound
I know, I know ... do not need anyone to tell me I have no forgiveness, and disappear without saying where or why ... I only ask that you remember the parable of the prodigal son before saying anything, lest you repent then
:-) Well, to the point. Many things have happened since the last time I wrote some words for this space. Many musical discoveries that are worth sharing. I start with a couple of them.
now I'm listening to "The well-beloved ", called by his first name Ana Fernández-Villaverde. Although it seems that disk has not yet published, your model sounds great. Rockdelux defined by something like a cross between "The Good Life", "The Planets" and "Mr Chinarro", I believe. So I jumped head, and the truth is that I was not disappointed at all. Indeed, in the concerts he has given is joined by Antonio Luque himself, Mr Chinarro engine.
Here is a home video of his song "So far in April"
" This morning I heard in the garden of your house
a song that went something like what she came
thinking while you were reading a book
and
I was speechless because I did not nor do I have
the courage to say that I would have married you for letting me
order and then I went
and I have been hit
the things you have said
things you never say
because I always feel the same "
Anyway, beautiful. Another group dropped from the sky this year has been Fanfarlo , who gave a wonderful concert at the Primavera Sound this year. A great live: violin, trumpet, melancholic melodies and sweet songs about that in a few seconds you play in the depths.
What now ... Well, I hope you do enjoy it too.
Thursday, July 17, 2008
Saturday, April 12, 2008
Wear Can I Get A Hair Weave In Birmingham?
PARAMILITARY BE CONDITIONED BY THE SUPREME COURT
Process
No. 29472 SUPREME COURT
Criminal Cassation
Magistrate
Yesid RAMÍREZ BASTIDAS
Approved Minutes No.
Bogotá, DC, Thursday, ten (10) April two thousand eight (2008).
SEEN:
the Board decides on the appeal filed by the Attorney Judicial II against the decision of the Superior Court of Barranquilla, Hall of Justice and Peace, March 12, 2008, through which it abstained to order the removal from the list of applicants for benefits under Act 975 of 2005, the demobilized TORREGROSA ENRIQUE MANUEL CASTRO.
BACKGROUND:
1. Fiscal reports the company that belonged CASTRO MANUEL ENRIQUE TORREGROSA to an illegal armed organization which collectively demobilized March 3, 2006 in the township of La Mesa, Municipality of Valledupar.
2. Such event led to the November 6, 2007 the National Government to run for TORREGROSA CASTRO access to the benefits of the Justice and Peace.
3. That the authorities of the United States have information on the participation of TORREGROSA CASTRO in a criminal organization that since 2002 until April 2007 imported cocaine into the Union, which is why the May 7, 2007 was given for her arrest order against, and the September 24, 2007 was filed by the Embassy of the United States Note Verbale No. 2967, in requesting the extradition of the person cited.
4. Such circumstances, under the terms of Article 10-10.4 of the Act 975 of 2005 creates the exclusion of the peace process of versioning, for bringing this petition to the Hall of Justice and Peace in the Superior Court of Barranquilla.
5. The Hall of Justice and Peace declined to order the exclusion of MANUEL ENRIQUE CASTRO TORREGROSA regulated process in Law 975 of 2005, a decision to be appealed by the prosecutor and the delegate public prosecutor brought the matter be referred to the Court.
6. Open the procedural act of support of the appeal of the company Prosecutors dropped the same being the request immediately accepted by the Board and as an assistant to the defense of one of the victims, accepted him and allowed his intervention in a non-recurring.
the contested order:
The lower court held that all persons are presumed innocent until there is a final court decision to declare his criminal liability, why only when MANUEL ENRIQUE CASTRO TORREGROSA is convicted will be able to order their exclusion the process and benefits covered by Act 975 of 2005.
noted that as such no final decision has occurred while yes there is a request only extradition and criminal proceedings being conducted by the National Human Rights and International Humanitarian Law, there is no criminal liability against the postulated declared to have him as responsible for a crime and thereby excluded.
addition, he stressed that the evidence and evidence supplied by the request of the Prosecutor, supported by the public prosecutor, no reliable evidence emerges about the assumption that new criminal conduct have been executed after their demobilization.
argued that an extradition request has the potential to produce the exclusion of a postulate. Only when the conviction occurs on the outside produce the result: exclusion of profits or revocation of the same if the process is over.
He concluded that the exclusion of TORREGROSA CASTRO damages to victims because it reduces the possibility of obtaining full truth about the circumstances and reasons leading to the execution of the serious crimes that are attributed to the paramilitaries.
INTERVENTIONS AT THE HEARING:
I. Appellant: Attorney General.
gave an overview of the procedural steps and proceeded to criticize the ruling of the Court because it is not possible to assume that the law established a legal fee to allow the exclusion of the postulates.
asserted that it is a mistake to rely on transitional justice that is resolved in the ordinary courts by the same specialty, especially when the spirit of the Justice and Peace Law is to achieve peace, a fact which allows granting of benefits to demobilized in exchange for obligations.
requests that the lower court decision be overturned because the resolution is unknown object of Act 975 of 2005, because that leads to the interpretation of the statute is made according to the postulate of peace and restoration victims' rights. Considers
and after demobilization the postulate has continued its activity, the result should be the exclusion of the special procedure.
I. NONRECURRING:
(i). Prosecutor: He did not protest on the grounds of appeal.
(ii). Representative of the victims, asked to confirm the contested ruling by agreeing with the decision of the Board of Justice and Peace.
noted that it is very important that for the sake of historical memory, the postulate is given the opportunity to tell the truth about their crimes, because that is the purpose of special legislation.
added that the request for exclusion made by the prosecution does not have any evidentiary basis.
(iii). Postulate: He said his crime was developed in activity prior to their demobilization and that the new facts that can be attributed not have occurred.
(iv). Advocate: He reiterated that in the first instance decision and held that the exclusion of a premise goes against the truth and due process. Claimed that the Board confirm the decision appealed.
CONSIDERATIONS OF THE COURT:
1. The Court is competent to decide appeals against decisions made in the first instance the High Courts (Law 600 of 2000, Article 75-3 and Act 906 of 2004, Article 32-3) and in the case of the Boards Justice and Peace because such attribution is expressly conferred by Article 26 of Act 975 of 2005.
2. The Justice and Peace Law is a special transitional status that also prevail the provisions of Legislative Act 03 of 2002, as noted by the Board on previous occasions.
3. The law "by enacting provisions for the reinstatement of members of armed groups operating outside the law", as with all special statutes contains a provision of "complementarity" or reference standard according to which "to unwilling everything (on it) ... apply the Act 782 of 2002 and the Code Criminal Procedure (Article 62).
4. The above reference to "Code of Criminal Procedure" is confusing as to the date of issuance of Law 975 of 2005 in the country were in effect two different procedural statutes, the oldest with mixed trend (Act 600 of 2004) and according to the latest systematic accusatory (Act 906 of 2004), a situation that imposes the task of ascertaining which of these codes is referred to in that Article.
5. The Board has said that to fulfill this task must first be noted that the majority of crimes attributed to demobilized paramilitaries belonging to the occurred in the enforcement of Law 600 of 2000, and the precise terms of Article 533 of Act 906 of 2004, the new regulations will apply only to crimes committed by members of the organization is illegal under the rules of gradualism, From this it follows that the initial referral should be made to the procedural status of 2000, but by and abide by the philosophy that should be taken in respect of Legislative Act 03 of 2002, coupled with the similarity of some institutions of the new procedural code 2004 with those enshrined in the transitional law, it is also imperative to examine the new institutions.
6. Besides the above we should not forget that in situations of succession or coexistence of laws must be taken into account the principle of lenity, without forgetting that limit assumptions that postulate must be weighed against other ends, values \u200b\u200band rights that make you give in and produce their derogation.
7. Under these conditions, if it is a case occurred in a time before 1 January 2005, the general rule for purposes of referral rules will be to go to Law 600 of 2000, except in the case of institutions that only may have identity with those set forth in Act 906 of 2004, in which case policy integration should be done with the procedural status of race accusatory.
8. The power to exclude a person the list of nominees, as well as with the prosecution or filing of preclusion of a process that is handled in accordance with Act 975, must be understood within the spirit of Legislative Act 03 of 2002, which is why it is imperative examine the powers of prosecutors and judges in light of Act 906 of 2004.
9. Keep in mind that the special nature of the procedure set out in the Justice and Peace and the motivations that led to the issuance of such an exceptional status, the Government runs an act of political nature when given to a subject's condition eligible or nominated for benefits under the said regulations.
10. From the moment a person is part of the list of nominees to the benefits of the transitional law and the same has been left to the prosecution, falls within the jurisdiction, exclusive and exclusionary, provide benefits to the principles that meet the requirements set forth in rules or exclude them. In other words, the inclusion of a person on the list of applicants to receive benefits under the terms of the very special legislation or the exclusion of them you have to do with judicial decisions that relate Exclusively to the judges of the Chambers Peace and Justice of the Superior Courts and the Criminal Cassation Chamber of the Supreme Court of Justice first and second instances, respectively.
11. From the above it is that if you have begun the judicial process in terms of Act 975 of 2005, any application that seeks to exclude from the benefits of the law on an assumption, at the request of the Prosecutor or the National Government, or straighten the file of proceedings or the preclusion of the investigation, being decisions for a process as it should have to be processed in accordance with the provisions of the articles of the Act in accordance with the new criminal procedure code 2004, because the longer political process, gubernatorial to become strictly judicial.
12. Also The Board noted that when the waiver eligible volunteer to be investigated by the procedure of Act 975 of 2005, no decision is required of the Hall of Justice and Peace to order the end of the procedure and refer the proceedings to the ordinary courts:
(i) For the instrumental budget essential for this very special kind of process appears to be given the full and true confession of crimes or whose occurrence is known to the assumption, revealing that in any case must be obtained voluntarily, without oath or coercion of any kind. And
(ii) Because the alternative penalty is a right available to the recipient without undermining the decision rights of society and the victims, since the crimes committed and the perpetrators will be investigated by the ordinary courts.
13. The Justice and Peace Law establishes a series of requirements that must be met by those who claim to be entitled to the benefits that regulation provides unique demobilized from illegal armed groups, from which it follows that in case of dissatisfaction with the same or breach of the obligations imposed upon the assumption, there is the exclusion of the process, when the matter is pending, or the repeal of the alternative penalty, when the process is complete.
14. In the original petition that started this process there is a confusion delegated by the prosecutor because it says based on Article 10-10.4 of Act 975 of 2005, with the normative assumption quoted refers to eligibility for demobilization. Of the request follows that the claimed exclusion of TORREGROSA CASTRO is normatively based and appears supported by Article 11 ibid, which provides that
members of armed groups operating outside the law who have demobilized individually and contribute to the attainment of national peace, may access the benefits provided by this law
provided, among other commitments, cease all unlawful activity (11.4).
15. First we must emphasize that peace to be achieved with the law cited is that disturbed by the actions of illegal armed groups, so that the scope of the term "illegal" should be understood in the context of actions past criminal acts committed by demobilized as members of an organization dedicated to the implementation of offenses punishable by a different nature.
If the demobilized-postulate violates the rules governing automobile traffic, do not pay their obligations to the Treasury, breach contracts or disturb the living because from his residence produce odors or noise disturbing the neighbors, no doubt being made illicit activities but the same as they are not directly linked to the spirit of the law does not alone constitute a sufficient condition for a causal structure for exclusion from the Justice and Peace Law.
16. To establish whether a person performs illegal actions "criminal means, or continuing criminal activity is necessary to resort to the Constitution because it provides in Article 29 that
All persons are presumed innocent until the court declared guilty
axiom complete with a set of provisions from the so-called International Law of Human Rights, which mandated by the Charter are integrated into the national legal system via the block of constitutionality.
17. The Court has said from the past that the presumption of innocence means that corresponds to the State to prove that the defendant is guilty of the crime attributed to him, why
only the culmination of a process may deduct the full extent from criminal responsibility or if applicable, its irrelevant to the charge as in the case of termination of proceedings or resolution of preclusion of the investigation.
Upon a final judicial decision, any possible breach of statutory declaration as to liability, the presumption of innocence .
And later said
The presumption of innocence relating to criminal proceedings is a guarantee of any person not to be considered guilty until the court declared as such by final decision.
At this point it is emphasized that the decisions of the Board has clarified the specific effects of the theory of crime, which
The presumption of innocence operates on all elements of the crime.
And the Constitutional Court has stated that
The presumption of innocence in our legal system acquires the status of fundamental rights ... The accused came right from the start of the criminal action (for report, complaint or automatically) to failure or final and executory verdict of guilt, and demands to be called into question the conviction or certainty beyond a reasonable doubt, based on material evidence to establish the elements of the crime and connecting the same with the defendant. This is because when in doubt in the implementation of the act and the culpability of the agent, you must apply the principle in dubio pro reo, whereby any doubt should be resolved in favor of the accused.
That is why there is agreement in doctrine and jurisprudence to understand
in Colombia only have the character of a criminal record of convictions handed down by judgments,
that being firm, ie enforceable, because there is no appeal or because those who came were resolved, "marred any doubts and enabled us to confirm with certainty or truth and concrete particular that the accused is responsible for the fact crime for which he was investigated, so that in the future will appear as background the sentence imposed by the court.
18. According to the review previously exposed only to draw to a person responsible for a crime as against the same has been handed down a ruling that execution reaches formal and material, from which it follows that any expression used by the legislature from effects which are generated by a subject's participation in the implementation of delinquent behavior, or tempted, it is understood that the effect only occurs once it has been verified the existence of judicial truth declared in a ruling that is in firm.
19. Unable to generate consequences against a person assuming criminal liability, as it would be to have her as a perpetrator or barely made inquiries or investigations, no matter who the person is deprived of liberty or benefit from some figure release from custody or that the process is at the investigation or trial because such a procedure would ignore the above postulate and cited and the constitutional law that accompanies it.
20. A person whose extradition is required to appear for trial before the courts of the requesting country, just shows, from the perspective of criminal responsibility for the criminal offense charged, that should be extradited will be tried before that will seek to rebut the presumption of innocence that operates in their favor.
21. The above means that the request to exclude from the benefits of the Justice and Peace TORREGROSA MANUEL ENRIQUE CASTRO, and founded on a mistaken interpretation of the principles of the law on appointment and blatantly contradict explicit content rights and guarantees that apply in the Colombian legal system, will ship with rejection of the claim made.
22. Regarding the arguments presented by the lower court, an issue addressed by the non-recurring, on issues arising from the extradition of a very special regime postulated within the Justice and Peace Law, as the truth to eligible victims diluted or becomes impossible to attain with the institute of international cooperation, the Board reiterates that the concept gives legal mandate is done taking into account the requirements and fundamentals that warrant, normative assumptions in determining that the extradition will proceed in following assumptions:
(i) the offenses were committed after December 17, 1997 (Constitution, Article 35 and Act 906 of 2004, Article 490);
(ii) not concerned with political offenses ( Constitution, Article 35 and Act 906 of 2004, Article 490);
(iii) the fact that motivation is also intended as a crime in Colombia and liable to a penalty of imprisonment of not less than its minimum to four ( 4) years (Act 906 of 2004, Article 493-1);
(iv) That at least has been issued outside indictment or its equivalent (Act 906 of 2004 Article 493-2).
And the Supreme Court issues a favorable or negative concept of extradition
be based on the formal validity of the evidence, on full proof of identity requested, on the principle of double criminality the equivalence of the ruling issued abroad and, where appropriate, in compliance with the provisions of international treaties (Act 906 of 2004, Article 502).
23. The above regulatory provisions he brought to the Court what it should be considered for issue of a favorable or negative to the extradition request alleged that in any case must be complemented with the provisions of other rules that govern the Colombian legal system, and thus, for example, may not be extradited abroad subject to the penalties of death or life imprisonment.
Similarly, in fulfilling the role of conceptualizing the Court must establish that a favorable decision is not contrary to other constitutional rules, including the block of constitutionality, or laws, because they radiate legality and legitimacy of judicial decisions.
24. From the above it follows, as explicitly provided that the concept of extradition takes into account international treaties, not only referred to the Institute of International Collaboration aimed at fighting against impunity but also those relating to the rights and interests of both partners as extraditable.
25. Given that the Colombian State is committed to prosecuting the crime, both internally and against the international community, that obligation has its counterpart in the effective protection of the rights of victims, which can not be unprotected under any circumstance and therefore there is consensus in reaching for the same truth, justice and reparation.
This imperative has a higher connotation when it comes to crimes against humanity, a situation in which they are demobilized have been nominated for benefits of the Justice and Peace, while their duty is to give a statement in which they must confess and complete manner the crimes committed.
Given that the crimes; it executed by the principles relating to enforced disappearances, forced displacement, torture, killings for political reasons, etc., And punishable as such are understood to fall within the classification of crimes against humanity, such valuation should extend the so-called conspiracy to commit aggravated criminal while the agreement was improved for such purposes.
Stresses the Board that the Rome Statute that created the International Criminal Court took into account not only the conduct of the perpetrator or the participants but also has considered in particular the existence of purposes aimed at committing crimes against humanity, which means it should also be punished in equal measure those behaviors in preparation for the commission of crimes that include both the agreement as taking part in an activity directed to that end, as with aggravated conspiracy.
considered to reach those responsible for criminal conspiracy as perpetrators of crimes against humanity must be present the following:
(i) That the public activities of the organization comprise of crimes against humanity;
(ii) Que sus integrantes sean voluntarios; y
(iii) Que la mayoría de los miembros de la organización debieron haber tenido conocimiento o ser concientes de la naturaleza criminal de la actividad de la organización,
bases a partir de las cuales varios tribunales internacionales y nacionales consideran que el concierto para cometer delitos de lesa humanidad también debe ser calificado como punible de la misma naturaleza , como lo determina la Corte en este momento para el caso colombiano y con todas las consecuencias que ello implica .
Ha de agregarse que al ordenamiento jurídico nacional han sido incorporados diferentes tratados y convenciones, bien por anexión expresa o por vía del block of constitutionality (Article 93 of the Constitution), which permit the finding that the conspiracy itself is part of crimes against humanity. This assertion can be confirmed once we review the content of the following statutes:
(I). Convention on the Prevention and Punishment of the Crime of Genocide (Colombia signed the convention on August 12, 1949 and ratified on October 27, 1959. Law 28 of May 27, 1959).
Article III. Following acts shall be punishable:
a) Genocide.
b) Conspiracy to commit genocide.
c) Direct and public incitement to commit genocide.
d) Attempt genocide.
e) Complicity in genocide.
(II). Convention against Torture and Other Cruel
or cruel, inhuman or degrading treatment at the United Nations adopted December 10, 1984 (Approved by Act 70 of 1986).
Article 4.
1. Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same applies to attempts to commit torture and acts of any person which constitutes complicity or participation in torture.
(III). Inter-American Convention to Prevent and Punish Torture (Adopted by the OAS General Assembly in Cartagena de Indias in 1985, approved by Act 406 of 1997).
Article 3 shall be guilty of the crime of torture:
a. Employees or public officials acting in that capacity orders, instigates or induces the commission, commit it directly or that can prevent it, do not. B.
people who at the instigation of public officials or employees referred to in subsection a. orders, instigates or induces the commission, commit it directly or complicit.
(IV). Inter-American Convention on Forced Disappearance of Persons (adopted by Act 707 of 2001). ARTICLE II
For purposes of this Convention, forced disappearance is considered the deprivation of liberty to one or more persons, whatever way, perpetrated by state agents or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by lack of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of the person, thereby impeding the exercise of legal remedies and procedural guarantees.
(IV) Finally, in the Rome Statute of the International Criminal Court, adopted on July 17, 1998 (Approved by Legislative Act 2 of 2001 which added Section 93 of the Constitution Policy and Law 742 of 2002), provides in article 25 that while criminal responsibility is individual will also answer for the crimes within its jurisdiction, who
a) commits such a crime in itself, with another or through of another, whether or not criminally responsible;
b) Orders, solicits or induces the commission of that crime, either consummated or attempted;
c) For the purpose of facilitating the commission of that crime, whether aiding or abetting or assisting in any way in the commission or attempted commission of a crime, including providing the means for its commission;
d) Contribute to a otherwise the commission or attempted commission of a crime by a group of people with a common purpose. The contribution shall be intentional and shall:
i) For the purpose of carrying out the activity or criminal purpose of the group, when one or the other involves the commission of a crime within the jurisdiction of the Court, or
ii) Knowing that the group intended to commit the crime;
e) For the crime of genocide, direct and public incitement to commit genocide;
f) Attempts to commit such crime through acts which constitute an important step for execution, but the crime does not occur because of circumstances beyond their control. However, a person who abandons the commission of the crime or otherwise prevents consumed shall not be liable for punishment under this Statute for the attempt if completely and voluntarily gave up the criminal purpose.
26. On the other hand, it should be noted that victims have rights in order to ensure (i) an effective redress for the injury suffered, there is a (ii) State's obligation to seek to know the truth about what happened, and one (iii) ready access to justice, as so provided by the Constitution itself, the existing criminal law and international treaties that are part of block constitutionality.
Such a perspective of the victim can only be understood when one accepts, as it should be, she has been covered by
a guarantee system based on the principle of effective judicial protection of broad international recognition, and with evident constitutional host by Articles 229, 29 and 93 of the Charter. This principle is characterized by a system of guarantees of a bilateral nature. This means that guarantees such as access to justice (Art.229), equality before the courts (Article 13), the defense in the process (Art.29), the impartiality and independence of the courts, the effectiveness of rights (Articles 2 and 228); be predicated of both the accused and the victim. This bilaterality has been accepted by the Corporation by indicating that the complex of due process, which involves the principle of legality, due process in the strict sense, right to defense and security, and the judge, will preach in the same manner for victims and injured.
The Constitutional Court in Case C-454/06 summarized the scope of the rights of victims of crime as follows: a.
The right to truth.
31. The set of principles for the protection and promotion of human rights through action to combat impunity (principles 1 ° to 4) incorporated in this law the following guarantees: (i) the inalienable right to truth, (ii) the duty to remember, (iii) the right of victims to know.
The first involves the right of every people to know the truth about the events and circumstances that led to the perpetration of crimes. The second consists of knowledge by people in the history of their oppression as part of their heritage, and therefore must take appropriate measures in order to recall the duty incumbent on the State. And third, it determines that, regardless of the actions that the victims and their family or friends to bring to justice, has the right imprescriptible to know the truth about the circumstances in which violations took place, and in case of death or disappearance about the fate of the victim.
The right to truth and presents a collective whose aim is "to preserve from oblivion the collective memory" and an individual dimension whose effectiveness is mainly done in the judiciary, through the right of victims to judicial effective, as has been recognized by the jurisprudence of this Court.
32. Projecting these principles at the national level, constitutional jurisprudence has determined that the right of access to truth, means that people are entitled to know what had really happened in your case. The human dignity of a person affected if he is deprived of information that is vital for her. Access to the truth appears so closely linked to respect for human dignity, memory and image of the victim. B.
The right to justice in the case, ie the right not to have impunity.
33. This law incorporates a number of safeguards for victims of crimes stemming from a correlative duty to the authorities, which can be systematized as follows: (i) the State's duty to investigate and properly punish the perpetrators and accomplices of crimes; (Ii) the right of victims to an effective judicial remedy, (iii) the duty to respect in all trials the rules of due process.
constitutional jurisprudence has established that the right of access to justice is a natural component of the right to justice. This right involves a genuine constitutional right to criminal trial and the right to participate in criminal proceedings, because the right to due process in the democratic state as an essentially participatory. This involvement takes the form 'that the relatives of the deceased and their legal representatives shall be informed of the hearings to be held, to have access to, and to all information relevant to the investigation and are entitled to present other evidence. C.
The right to compensation for damage has been caused to the victim or the injured to the crime.
34. The right to compensation, under contemporary international law also has an individual dimension and a collective. From the individual dimension comprises all damages suffered by the victim, and includes individual measures concerning the right of (i) restitution, (ii) compensation, (iii) rehabilitation, (iv) satisfaction and (v) ensuring not be repeated. In dimension colectiva, involucra medidas de satisfacción de alcance general como la adopción de medidas encaminadas a restaurar, indemnizar o readaptar los derechos de las colectividades o comunidades directamente afectadas por las violaciones ocurridas .
La integralidad de la reparación comporta la adopción de todas las medidas necesarias tendientes a hacer desaparecer los efectos de las violaciones cometidas, y a devolver a la víctima al estado en que se encontraba antes de la violación.
En forma concreta sobre los derechos de las víctimas en procesos inscritos en contextos y modalidades de justicia transicional de reconciliación, el Tribunal Constitucional mediante la sentencia C-370/06, no solamente señaló also guarantee the protection of human rights through the exercise of a remedy under the terms of Articles 8 and 25 of the American Convention on Human Rights
[4.5.3.] ... is for the corresponding state duty to prosecute and punish violations of such rights. This duty obligation may be called judicial prosecution and punishment of those responsible for attacks against internationally protected human rights.
(...)
4.5.5. The state's duty to investigate, prosecute and punish the perpetrators in court of serious crimes against international law of human rights is not fulfilled by the mere fact of advancing the trial, but requires that this be filled at a "reasonable time." Otherwise not satisfied the right of the victim or their families to know the truth of what happened and punish any individuals responsible.
(...)
4.5.7. The State's obligation to initiate ex officio investigations in the event of serious violations against human rights indicates that the effective pursuit of truth for the State, and not dependent on the initiative of the victim or his family or his provision of evidence.
(...)
4.5.9. Repair obligations entail: (i) first, if it is possible, full restitution (re-establishment), "which consists in restoring the situation before the violation," (ii) if not possible, it may involve a number of other measures also to ensure respect for the rights violated, taken together redress the consequences of the infringement, among them include the compensation.
04/05/1910. The right to the truth means that heads of the victims there is a right to know what happened, to know who were the agents of harm, to facts being seriously investigated and punished by the state, as it prevents impunity.
4.5.11. The right to really means for the victim's family the chance to know what happened to her, and in case of violations of the right to life, right to know where his remains, in these cases, this knowledge is a means repair and, therefore, an expectation that the State must satisfy the relatives of the victim and society as a whole.
4.5.12. The company also has a right to know the truth, which involves the public disclosure of the results of investigations into human rights violations.
(...)
4.7. The Body of Principles for the protection and promotion of rights humans through the fight against impunity ", proclaimed by the UN in 1998.
(...)
(...), the Court finds that, within the main conclusions drawn from the "Body of Principles for the protection and promotion of human rights through action to combat impunity" in its latest update , include the following, of particular relevance to the constitutionality study being conducted: (i) during the transition process towards peace, as advanced by Colombia, the victims were assisted by three categories of rights: a) the right to namely, b) the right to justice and c) the right to compensation; (Ii) the indefeasible right to know is implying the possibility of knowing the truth about the circumstances in which violations were committed and in case of death or disappearance, the fate of the victim, (iii) the right namely also refers to the collective right to know what happened, a right that has its rationale in the need to prevent violations from recurring, which involves the obligation to "memory" public on research findings, (iv) the right to justice implies that all victims have the opportunity to assert their rights and receive a fair and effective remedy, namely to achieve that the offender is judged by obtaining a repair, (v) the right to justice is the state's duty to investigate violations, to prosecute the perpetrators and, if their guilt is established, to ensure its passage, (vi) in criminal proceedings Victims have the right to become party to claim their right to reparation. (Vii) In any case, the rules of procedure should meet the criteria of due process, (viii) the requirement for criminal proceedings or penalties can not be opposed to serious crimes under international law are considered crimes against humanity or run during the period where there was no effective remedy, (ix) With regard to reduction of sentences, the "laws of repentance" are admissible in processes of transition to peace, "but should not completely exonerate the perpetrators" (x) repair has a double dimension (individual and collective) and includes individual level measures of restitution, compensation and rehabilitation, (xi) on the collective level, the repair is achieved through symbolic measures or other that project to the community, (xii) in guarantees of non- repetition, include the dissolution of armed groups be accompanied by reintegration measures.
rights are referred to the judges, including who should be conceptualized in the extradition proceedings, can not pass as a mere spectator as his mission
goes beyond being a mere regulator arbitrator process forms ...
where it is imperative
obligation to seek the application of substantive justice, and above all, to be a guardian of respect for fundamental rights of the suspect or accused, as well as those of the victim, especially the latter's rights to know truth about what happened, access to justice and obtain full compensation in accordance with the Constitution and international treaties that are part of the block of constitutionality.
face of human rights violations the State must guarantee victims an effective remedy that delivers results and appropriate responses, which is to say, neither more nor less than a travesty of justice is not to do justice. In other words: only do justice and effective resource efficiency obtained when those who have suffered the violation of human rights, who have been victims of crimes committed by paramilitary groups or their relatives, obtain truth, justice and reparation .
The State, in this case the judges, they fail in their duties when serious violations of rights Humans do not investigate, prosecute and punish those responsible for committing. In particular on the so-called effective remedy, is in serious breach of international standards when (i) will not advance the prosecution of a serious, rigorous and thorough, (ii) if not handled with care, speed and conviction, (iii) measures are taken to protect victims (iv) or not allowed to intervene in these processes, (v) or expands over time the definition of the subject.
have to highlight the need for the judiciary to understand the role that decisions in the context of the criminal justice system and the state model which is part because constitutional democracies are Justice basically states, ie states in the context of a participatory and pluralistic democracy, lead to a new dimension to the contents of the Liberal State political freedom and equality of social state. Therefore, every act of the constituted powers, including the judiciary, is bound by the Court as a superior value of the legal system as a constitutional principle, as a right and duty even as the state, where it is imperative that judges, when issuing their pronouncements are not worried about the legal correctness of their decisions but also by the need to harmonize the material contained correction of Justice because otherwise, the judiciary Colombia have not taken a single step since the times of the most rigid legal formalism.
If you proceed that way, that is, harmonizing the legal correctness and material justice, it is easy to see that there are overriding reasons to examine the legitimacy of an extradition that ultimately may be contravening the rights of victims, and prevented her the realization of the constitutional purposes of the criminal process by affecting the legitimate expectations that encourage victims of conduct punishable as the realization of their right to truth, justice and reparation, and, unlike the extradition of a demobilized to respond within the abroad for less serious crimes than those who are confessing to the Colombian courts, it is still a form of impunity.
27. And if we repair that Act 975 of 2005 was sponsored by the National Government with reference to peace as a great national purpose should be no obstacles and that for the sake of it
must find an appropriate balance, a balance between justice and peace, allowing us to serve the interests of the first, while moving boldly and effectively overcoming the problems of violence that have caused so much suffering to the country,
was structured so that a bill which should be as central
Truth, Justice and Reparation, with emphasis on the rights of victims,
glowing with clearness that both the Government as national and international communities are interested in the serious crimes committed by the paramilitary groups are fully clarified, and impose punitive consequences that the laws authorizing them, because otherwise it would violate
the right of society to clarify macrocriminality processes that affect the massive and systematic human rights of the population, (also) are constitutional rights.
As stated by the Constitutional Court to review the constitutionality of Act 975 of 2005, that crosses the state through difficult circumstances that hinder the achievement of peace, not released from their obligations in justice, truth, reparation and not repeat, emanating from the American Convention on Human Rights .
28. All the above requires the Court to consider, for the sake of the rule of national justice, respect for international commitments of the State in human rights and the effectiveness of fundamental rights, that if in a particular case occurs extradition as a result of the violation of the rights of victims, the concept should be issued in the negative or if the character is favorable will be conditioned to avoid the distress of those who have suffered the consequences of the crimes confessed by the demobilized-postulate, of course inevitable that not addressed the concept becomes negative, with the respective consequences.
In conclusion, according to the statement, confirming the resolution imposed by the Court because it has not been proven any causal exclusion applies for the benefits of the Justice and Peace.
A merit of the above, the Criminal Cassation Chamber of the Supreme Court,
RESOLVED:
1 °. Upheld the order of 12 March 2008 handed down by the Hall of Justice and Peace Court Superior de Barranquilla in the trial against TORREGROSA ENRIQUE MANUEL CASTRO.
2 °. To inform that against this decision no appeal.
Cópiese, report and enforcement.
Sigifredo ESPINOSA PÉREZ
LEONIDAS BUSTOS JOSE ALFREDO MARTINEZ QUINTERO GÓMEZ
GONZALEZ MARIA DEL ROSARIO DE LEMOS J. AUGUSTO GUZMÁN IBÁÑEZ
Yesid JORGE LUIS QUINTERO RAMIREZ MILANÉS BASTIDAS
Julio Enrique Socha Salamanca ZAPATA JAVIER ORTIZ
TERESA NUNEZ RUIZ
Secretary. 
Process
No. 29472 SUPREME COURT
Criminal Cassation
Magistrate
Yesid RAMÍREZ BASTIDAS
Approved Minutes No.
Bogotá, DC, Thursday, ten (10) April two thousand eight (2008).
SEEN:
the Board decides on the appeal filed by the Attorney Judicial II against the decision of the Superior Court of Barranquilla, Hall of Justice and Peace, March 12, 2008, through which it abstained to order the removal from the list of applicants for benefits under Act 975 of 2005, the demobilized TORREGROSA ENRIQUE MANUEL CASTRO.
BACKGROUND:
1. Fiscal reports the company that belonged CASTRO MANUEL ENRIQUE TORREGROSA to an illegal armed organization which collectively demobilized March 3, 2006 in the township of La Mesa, Municipality of Valledupar.
2. Such event led to the November 6, 2007 the National Government to run for TORREGROSA CASTRO access to the benefits of the Justice and Peace.
3. That the authorities of the United States have information on the participation of TORREGROSA CASTRO in a criminal organization that since 2002 until April 2007 imported cocaine into the Union, which is why the May 7, 2007 was given for her arrest order against, and the September 24, 2007 was filed by the Embassy of the United States Note Verbale No. 2967, in requesting the extradition of the person cited.
4. Such circumstances, under the terms of Article 10-10.4 of the Act 975 of 2005 creates the exclusion of the peace process of versioning, for bringing this petition to the Hall of Justice and Peace in the Superior Court of Barranquilla.
5. The Hall of Justice and Peace declined to order the exclusion of MANUEL ENRIQUE CASTRO TORREGROSA regulated process in Law 975 of 2005, a decision to be appealed by the prosecutor and the delegate public prosecutor brought the matter be referred to the Court.
6. Open the procedural act of support of the appeal of the company Prosecutors dropped the same being the request immediately accepted by the Board and as an assistant to the defense of one of the victims, accepted him and allowed his intervention in a non-recurring.
the contested order:
The lower court held that all persons are presumed innocent until there is a final court decision to declare his criminal liability, why only when MANUEL ENRIQUE CASTRO TORREGROSA is convicted will be able to order their exclusion the process and benefits covered by Act 975 of 2005.
noted that as such no final decision has occurred while yes there is a request only extradition and criminal proceedings being conducted by the National Human Rights and International Humanitarian Law, there is no criminal liability against the postulated declared to have him as responsible for a crime and thereby excluded.
addition, he stressed that the evidence and evidence supplied by the request of the Prosecutor, supported by the public prosecutor, no reliable evidence emerges about the assumption that new criminal conduct have been executed after their demobilization.
argued that an extradition request has the potential to produce the exclusion of a postulate. Only when the conviction occurs on the outside produce the result: exclusion of profits or revocation of the same if the process is over.
He concluded that the exclusion of TORREGROSA CASTRO damages to victims because it reduces the possibility of obtaining full truth about the circumstances and reasons leading to the execution of the serious crimes that are attributed to the paramilitaries.
INTERVENTIONS AT THE HEARING:
I. Appellant: Attorney General.
gave an overview of the procedural steps and proceeded to criticize the ruling of the Court because it is not possible to assume that the law established a legal fee to allow the exclusion of the postulates.
asserted that it is a mistake to rely on transitional justice that is resolved in the ordinary courts by the same specialty, especially when the spirit of the Justice and Peace Law is to achieve peace, a fact which allows granting of benefits to demobilized in exchange for obligations.
requests that the lower court decision be overturned because the resolution is unknown object of Act 975 of 2005, because that leads to the interpretation of the statute is made according to the postulate of peace and restoration victims' rights. Considers
and after demobilization the postulate has continued its activity, the result should be the exclusion of the special procedure.
I. NONRECURRING:
(i). Prosecutor: He did not protest on the grounds of appeal.
(ii). Representative of the victims, asked to confirm the contested ruling by agreeing with the decision of the Board of Justice and Peace.
noted that it is very important that for the sake of historical memory, the postulate is given the opportunity to tell the truth about their crimes, because that is the purpose of special legislation.
added that the request for exclusion made by the prosecution does not have any evidentiary basis.
(iii). Postulate: He said his crime was developed in activity prior to their demobilization and that the new facts that can be attributed not have occurred.
(iv). Advocate: He reiterated that in the first instance decision and held that the exclusion of a premise goes against the truth and due process. Claimed that the Board confirm the decision appealed.
CONSIDERATIONS OF THE COURT:
1. The Court is competent to decide appeals against decisions made in the first instance the High Courts (Law 600 of 2000, Article 75-3 and Act 906 of 2004, Article 32-3) and in the case of the Boards Justice and Peace because such attribution is expressly conferred by Article 26 of Act 975 of 2005.
2. The Justice and Peace Law is a special transitional status that also prevail the provisions of Legislative Act 03 of 2002, as noted by the Board on previous occasions.
3. The law "by enacting provisions for the reinstatement of members of armed groups operating outside the law", as with all special statutes contains a provision of "complementarity" or reference standard according to which "to unwilling everything (on it) ... apply the Act 782 of 2002 and the Code Criminal Procedure (Article 62).
4. The above reference to "Code of Criminal Procedure" is confusing as to the date of issuance of Law 975 of 2005 in the country were in effect two different procedural statutes, the oldest with mixed trend (Act 600 of 2004) and according to the latest systematic accusatory (Act 906 of 2004), a situation that imposes the task of ascertaining which of these codes is referred to in that Article.
5. The Board has said that to fulfill this task must first be noted that the majority of crimes attributed to demobilized paramilitaries belonging to the occurred in the enforcement of Law 600 of 2000, and the precise terms of Article 533 of Act 906 of 2004, the new regulations will apply only to crimes committed by members of the organization is illegal under the rules of gradualism, From this it follows that the initial referral should be made to the procedural status of 2000, but by and abide by the philosophy that should be taken in respect of Legislative Act 03 of 2002, coupled with the similarity of some institutions of the new procedural code 2004 with those enshrined in the transitional law, it is also imperative to examine the new institutions.
6. Besides the above we should not forget that in situations of succession or coexistence of laws must be taken into account the principle of lenity, without forgetting that limit assumptions that postulate must be weighed against other ends, values \u200b\u200band rights that make you give in and produce their derogation.
7. Under these conditions, if it is a case occurred in a time before 1 January 2005, the general rule for purposes of referral rules will be to go to Law 600 of 2000, except in the case of institutions that only may have identity with those set forth in Act 906 of 2004, in which case policy integration should be done with the procedural status of race accusatory.
8. The power to exclude a person the list of nominees, as well as with the prosecution or filing of preclusion of a process that is handled in accordance with Act 975, must be understood within the spirit of Legislative Act 03 of 2002, which is why it is imperative examine the powers of prosecutors and judges in light of Act 906 of 2004.
9. Keep in mind that the special nature of the procedure set out in the Justice and Peace and the motivations that led to the issuance of such an exceptional status, the Government runs an act of political nature when given to a subject's condition eligible or nominated for benefits under the said regulations.
10. From the moment a person is part of the list of nominees to the benefits of the transitional law and the same has been left to the prosecution, falls within the jurisdiction, exclusive and exclusionary, provide benefits to the principles that meet the requirements set forth in rules or exclude them. In other words, the inclusion of a person on the list of applicants to receive benefits under the terms of the very special legislation or the exclusion of them you have to do with judicial decisions that relate Exclusively to the judges of the Chambers Peace and Justice of the Superior Courts and the Criminal Cassation Chamber of the Supreme Court of Justice first and second instances, respectively.
11. From the above it is that if you have begun the judicial process in terms of Act 975 of 2005, any application that seeks to exclude from the benefits of the law on an assumption, at the request of the Prosecutor or the National Government, or straighten the file of proceedings or the preclusion of the investigation, being decisions for a process as it should have to be processed in accordance with the provisions of the articles of the Act in accordance with the new criminal procedure code 2004, because the longer political process, gubernatorial to become strictly judicial.
12. Also The Board noted that when the waiver eligible volunteer to be investigated by the procedure of Act 975 of 2005, no decision is required of the Hall of Justice and Peace to order the end of the procedure and refer the proceedings to the ordinary courts:
(i) For the instrumental budget essential for this very special kind of process appears to be given the full and true confession of crimes or whose occurrence is known to the assumption, revealing that in any case must be obtained voluntarily, without oath or coercion of any kind. And
(ii) Because the alternative penalty is a right available to the recipient without undermining the decision rights of society and the victims, since the crimes committed and the perpetrators will be investigated by the ordinary courts.
13. The Justice and Peace Law establishes a series of requirements that must be met by those who claim to be entitled to the benefits that regulation provides unique demobilized from illegal armed groups, from which it follows that in case of dissatisfaction with the same or breach of the obligations imposed upon the assumption, there is the exclusion of the process, when the matter is pending, or the repeal of the alternative penalty, when the process is complete.
14. In the original petition that started this process there is a confusion delegated by the prosecutor because it says based on Article 10-10.4 of Act 975 of 2005, with the normative assumption quoted refers to eligibility for demobilization. Of the request follows that the claimed exclusion of TORREGROSA CASTRO is normatively based and appears supported by Article 11 ibid, which provides that
members of armed groups operating outside the law who have demobilized individually and contribute to the attainment of national peace, may access the benefits provided by this law
provided, among other commitments, cease all unlawful activity (11.4).
15. First we must emphasize that peace to be achieved with the law cited is that disturbed by the actions of illegal armed groups, so that the scope of the term "illegal" should be understood in the context of actions past criminal acts committed by demobilized as members of an organization dedicated to the implementation of offenses punishable by a different nature.
If the demobilized-postulate violates the rules governing automobile traffic, do not pay their obligations to the Treasury, breach contracts or disturb the living because from his residence produce odors or noise disturbing the neighbors, no doubt being made illicit activities but the same as they are not directly linked to the spirit of the law does not alone constitute a sufficient condition for a causal structure for exclusion from the Justice and Peace Law.
16. To establish whether a person performs illegal actions "criminal means, or continuing criminal activity is necessary to resort to the Constitution because it provides in Article 29 that
All persons are presumed innocent until the court declared guilty
axiom complete with a set of provisions from the so-called International Law of Human Rights, which mandated by the Charter are integrated into the national legal system via the block of constitutionality.
17. The Court has said from the past that the presumption of innocence means that corresponds to the State to prove that the defendant is guilty of the crime attributed to him, why
only the culmination of a process may deduct the full extent from criminal responsibility or if applicable, its irrelevant to the charge as in the case of termination of proceedings or resolution of preclusion of the investigation.
Upon a final judicial decision, any possible breach of statutory declaration as to liability, the presumption of innocence .
And later said
The presumption of innocence relating to criminal proceedings is a guarantee of any person not to be considered guilty until the court declared as such by final decision.
At this point it is emphasized that the decisions of the Board has clarified the specific effects of the theory of crime, which
The presumption of innocence operates on all elements of the crime.
And the Constitutional Court has stated that
The presumption of innocence in our legal system acquires the status of fundamental rights ... The accused came right from the start of the criminal action (for report, complaint or automatically) to failure or final and executory verdict of guilt, and demands to be called into question the conviction or certainty beyond a reasonable doubt, based on material evidence to establish the elements of the crime and connecting the same with the defendant. This is because when in doubt in the implementation of the act and the culpability of the agent, you must apply the principle in dubio pro reo, whereby any doubt should be resolved in favor of the accused.
That is why there is agreement in doctrine and jurisprudence to understand
in Colombia only have the character of a criminal record of convictions handed down by judgments,
that being firm, ie enforceable, because there is no appeal or because those who came were resolved, "marred any doubts and enabled us to confirm with certainty or truth and concrete particular that the accused is responsible for the fact crime for which he was investigated, so that in the future will appear as background the sentence imposed by the court.
18. According to the review previously exposed only to draw to a person responsible for a crime as against the same has been handed down a ruling that execution reaches formal and material, from which it follows that any expression used by the legislature from effects which are generated by a subject's participation in the implementation of delinquent behavior, or tempted, it is understood that the effect only occurs once it has been verified the existence of judicial truth declared in a ruling that is in firm.
19. Unable to generate consequences against a person assuming criminal liability, as it would be to have her as a perpetrator or barely made inquiries or investigations, no matter who the person is deprived of liberty or benefit from some figure release from custody or that the process is at the investigation or trial because such a procedure would ignore the above postulate and cited and the constitutional law that accompanies it.
20. A person whose extradition is required to appear for trial before the courts of the requesting country, just shows, from the perspective of criminal responsibility for the criminal offense charged, that should be extradited will be tried before that will seek to rebut the presumption of innocence that operates in their favor.
21. The above means that the request to exclude from the benefits of the Justice and Peace TORREGROSA MANUEL ENRIQUE CASTRO, and founded on a mistaken interpretation of the principles of the law on appointment and blatantly contradict explicit content rights and guarantees that apply in the Colombian legal system, will ship with rejection of the claim made.
22. Regarding the arguments presented by the lower court, an issue addressed by the non-recurring, on issues arising from the extradition of a very special regime postulated within the Justice and Peace Law, as the truth to eligible victims diluted or becomes impossible to attain with the institute of international cooperation, the Board reiterates that the concept gives legal mandate is done taking into account the requirements and fundamentals that warrant, normative assumptions in determining that the extradition will proceed in following assumptions:
(i) the offenses were committed after December 17, 1997 (Constitution, Article 35 and Act 906 of 2004, Article 490);
(ii) not concerned with political offenses ( Constitution, Article 35 and Act 906 of 2004, Article 490);
(iii) the fact that motivation is also intended as a crime in Colombia and liable to a penalty of imprisonment of not less than its minimum to four ( 4) years (Act 906 of 2004, Article 493-1);
(iv) That at least has been issued outside indictment or its equivalent (Act 906 of 2004 Article 493-2).
And the Supreme Court issues a favorable or negative concept of extradition
be based on the formal validity of the evidence, on full proof of identity requested, on the principle of double criminality the equivalence of the ruling issued abroad and, where appropriate, in compliance with the provisions of international treaties (Act 906 of 2004, Article 502).
23. The above regulatory provisions he brought to the Court what it should be considered for issue of a favorable or negative to the extradition request alleged that in any case must be complemented with the provisions of other rules that govern the Colombian legal system, and thus, for example, may not be extradited abroad subject to the penalties of death or life imprisonment.
Similarly, in fulfilling the role of conceptualizing the Court must establish that a favorable decision is not contrary to other constitutional rules, including the block of constitutionality, or laws, because they radiate legality and legitimacy of judicial decisions.
24. From the above it follows, as explicitly provided that the concept of extradition takes into account international treaties, not only referred to the Institute of International Collaboration aimed at fighting against impunity but also those relating to the rights and interests of both partners as extraditable.
25. Given that the Colombian State is committed to prosecuting the crime, both internally and against the international community, that obligation has its counterpart in the effective protection of the rights of victims, which can not be unprotected under any circumstance and therefore there is consensus in reaching for the same truth, justice and reparation.
This imperative has a higher connotation when it comes to crimes against humanity, a situation in which they are demobilized have been nominated for benefits of the Justice and Peace, while their duty is to give a statement in which they must confess and complete manner the crimes committed.
Given that the crimes; it executed by the principles relating to enforced disappearances, forced displacement, torture, killings for political reasons, etc., And punishable as such are understood to fall within the classification of crimes against humanity, such valuation should extend the so-called conspiracy to commit aggravated criminal while the agreement was improved for such purposes.
Stresses the Board that the Rome Statute that created the International Criminal Court took into account not only the conduct of the perpetrator or the participants but also has considered in particular the existence of purposes aimed at committing crimes against humanity, which means it should also be punished in equal measure those behaviors in preparation for the commission of crimes that include both the agreement as taking part in an activity directed to that end, as with aggravated conspiracy.
considered to reach those responsible for criminal conspiracy as perpetrators of crimes against humanity must be present the following:
(i) That the public activities of the organization comprise of crimes against humanity;
(ii) Que sus integrantes sean voluntarios; y
(iii) Que la mayoría de los miembros de la organización debieron haber tenido conocimiento o ser concientes de la naturaleza criminal de la actividad de la organización,
bases a partir de las cuales varios tribunales internacionales y nacionales consideran que el concierto para cometer delitos de lesa humanidad también debe ser calificado como punible de la misma naturaleza , como lo determina la Corte en este momento para el caso colombiano y con todas las consecuencias que ello implica .
Ha de agregarse que al ordenamiento jurídico nacional han sido incorporados diferentes tratados y convenciones, bien por anexión expresa o por vía del block of constitutionality (Article 93 of the Constitution), which permit the finding that the conspiracy itself is part of crimes against humanity. This assertion can be confirmed once we review the content of the following statutes:
(I). Convention on the Prevention and Punishment of the Crime of Genocide (Colombia signed the convention on August 12, 1949 and ratified on October 27, 1959. Law 28 of May 27, 1959).
Article III. Following acts shall be punishable:
a) Genocide.
b) Conspiracy to commit genocide.
c) Direct and public incitement to commit genocide.
d) Attempt genocide.
e) Complicity in genocide.
(II). Convention against Torture and Other Cruel
or cruel, inhuman or degrading treatment at the United Nations adopted December 10, 1984 (Approved by Act 70 of 1986).
Article 4.
1. Each State Party shall ensure that all acts of torture are offenses under its criminal law. The same applies to attempts to commit torture and acts of any person which constitutes complicity or participation in torture.
(III). Inter-American Convention to Prevent and Punish Torture (Adopted by the OAS General Assembly in Cartagena de Indias in 1985, approved by Act 406 of 1997).
Article 3 shall be guilty of the crime of torture:
a. Employees or public officials acting in that capacity orders, instigates or induces the commission, commit it directly or that can prevent it, do not. B.
people who at the instigation of public officials or employees referred to in subsection a. orders, instigates or induces the commission, commit it directly or complicit.
(IV). Inter-American Convention on Forced Disappearance of Persons (adopted by Act 707 of 2001). ARTICLE II
For purposes of this Convention, forced disappearance is considered the deprivation of liberty to one or more persons, whatever way, perpetrated by state agents or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by lack of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of the person, thereby impeding the exercise of legal remedies and procedural guarantees.
(IV) Finally, in the Rome Statute of the International Criminal Court, adopted on July 17, 1998 (Approved by Legislative Act 2 of 2001 which added Section 93 of the Constitution Policy and Law 742 of 2002), provides in article 25 that while criminal responsibility is individual will also answer for the crimes within its jurisdiction, who
a) commits such a crime in itself, with another or through of another, whether or not criminally responsible;
b) Orders, solicits or induces the commission of that crime, either consummated or attempted;
c) For the purpose of facilitating the commission of that crime, whether aiding or abetting or assisting in any way in the commission or attempted commission of a crime, including providing the means for its commission;
d) Contribute to a otherwise the commission or attempted commission of a crime by a group of people with a common purpose. The contribution shall be intentional and shall:
i) For the purpose of carrying out the activity or criminal purpose of the group, when one or the other involves the commission of a crime within the jurisdiction of the Court, or
ii) Knowing that the group intended to commit the crime;
e) For the crime of genocide, direct and public incitement to commit genocide;
f) Attempts to commit such crime through acts which constitute an important step for execution, but the crime does not occur because of circumstances beyond their control. However, a person who abandons the commission of the crime or otherwise prevents consumed shall not be liable for punishment under this Statute for the attempt if completely and voluntarily gave up the criminal purpose.
26. On the other hand, it should be noted that victims have rights in order to ensure (i) an effective redress for the injury suffered, there is a (ii) State's obligation to seek to know the truth about what happened, and one (iii) ready access to justice, as so provided by the Constitution itself, the existing criminal law and international treaties that are part of block constitutionality.
Such a perspective of the victim can only be understood when one accepts, as it should be, she has been covered by
a guarantee system based on the principle of effective judicial protection of broad international recognition, and with evident constitutional host by Articles 229, 29 and 93 of the Charter. This principle is characterized by a system of guarantees of a bilateral nature. This means that guarantees such as access to justice (Art.229), equality before the courts (Article 13), the defense in the process (Art.29), the impartiality and independence of the courts, the effectiveness of rights (Articles 2 and 228); be predicated of both the accused and the victim. This bilaterality has been accepted by the Corporation by indicating that the complex of due process, which involves the principle of legality, due process in the strict sense, right to defense and security, and the judge, will preach in the same manner for victims and injured.
The Constitutional Court in Case C-454/06 summarized the scope of the rights of victims of crime as follows: a.
The right to truth.
31. The set of principles for the protection and promotion of human rights through action to combat impunity (principles 1 ° to 4) incorporated in this law the following guarantees: (i) the inalienable right to truth, (ii) the duty to remember, (iii) the right of victims to know.
The first involves the right of every people to know the truth about the events and circumstances that led to the perpetration of crimes. The second consists of knowledge by people in the history of their oppression as part of their heritage, and therefore must take appropriate measures in order to recall the duty incumbent on the State. And third, it determines that, regardless of the actions that the victims and their family or friends to bring to justice, has the right imprescriptible to know the truth about the circumstances in which violations took place, and in case of death or disappearance about the fate of the victim.
The right to truth and presents a collective whose aim is "to preserve from oblivion the collective memory" and an individual dimension whose effectiveness is mainly done in the judiciary, through the right of victims to judicial effective, as has been recognized by the jurisprudence of this Court.
32. Projecting these principles at the national level, constitutional jurisprudence has determined that the right of access to truth, means that people are entitled to know what had really happened in your case. The human dignity of a person affected if he is deprived of information that is vital for her. Access to the truth appears so closely linked to respect for human dignity, memory and image of the victim. B.
The right to justice in the case, ie the right not to have impunity.
33. This law incorporates a number of safeguards for victims of crimes stemming from a correlative duty to the authorities, which can be systematized as follows: (i) the State's duty to investigate and properly punish the perpetrators and accomplices of crimes; (Ii) the right of victims to an effective judicial remedy, (iii) the duty to respect in all trials the rules of due process.
constitutional jurisprudence has established that the right of access to justice is a natural component of the right to justice. This right involves a genuine constitutional right to criminal trial and the right to participate in criminal proceedings, because the right to due process in the democratic state as an essentially participatory. This involvement takes the form 'that the relatives of the deceased and their legal representatives shall be informed of the hearings to be held, to have access to, and to all information relevant to the investigation and are entitled to present other evidence. C.
The right to compensation for damage has been caused to the victim or the injured to the crime.
34. The right to compensation, under contemporary international law also has an individual dimension and a collective. From the individual dimension comprises all damages suffered by the victim, and includes individual measures concerning the right of (i) restitution, (ii) compensation, (iii) rehabilitation, (iv) satisfaction and (v) ensuring not be repeated. In dimension colectiva, involucra medidas de satisfacción de alcance general como la adopción de medidas encaminadas a restaurar, indemnizar o readaptar los derechos de las colectividades o comunidades directamente afectadas por las violaciones ocurridas .
La integralidad de la reparación comporta la adopción de todas las medidas necesarias tendientes a hacer desaparecer los efectos de las violaciones cometidas, y a devolver a la víctima al estado en que se encontraba antes de la violación.
En forma concreta sobre los derechos de las víctimas en procesos inscritos en contextos y modalidades de justicia transicional de reconciliación, el Tribunal Constitucional mediante la sentencia C-370/06, no solamente señaló also guarantee the protection of human rights through the exercise of a remedy under the terms of Articles 8 and 25 of the American Convention on Human Rights
[4.5.3.] ... is for the corresponding state duty to prosecute and punish violations of such rights. This duty obligation may be called judicial prosecution and punishment of those responsible for attacks against internationally protected human rights.
(...)
4.5.5. The state's duty to investigate, prosecute and punish the perpetrators in court of serious crimes against international law of human rights is not fulfilled by the mere fact of advancing the trial, but requires that this be filled at a "reasonable time." Otherwise not satisfied the right of the victim or their families to know the truth of what happened and punish any individuals responsible.
(...)
4.5.7. The State's obligation to initiate ex officio investigations in the event of serious violations against human rights indicates that the effective pursuit of truth for the State, and not dependent on the initiative of the victim or his family or his provision of evidence.
(...)
4.5.9. Repair obligations entail: (i) first, if it is possible, full restitution (re-establishment), "which consists in restoring the situation before the violation," (ii) if not possible, it may involve a number of other measures also to ensure respect for the rights violated, taken together redress the consequences of the infringement, among them include the compensation.
04/05/1910. The right to the truth means that heads of the victims there is a right to know what happened, to know who were the agents of harm, to facts being seriously investigated and punished by the state, as it prevents impunity.
4.5.11. The right to really means for the victim's family the chance to know what happened to her, and in case of violations of the right to life, right to know where his remains, in these cases, this knowledge is a means repair and, therefore, an expectation that the State must satisfy the relatives of the victim and society as a whole.
4.5.12. The company also has a right to know the truth, which involves the public disclosure of the results of investigations into human rights violations.
(...)
4.7. The Body of Principles for the protection and promotion of rights humans through the fight against impunity ", proclaimed by the UN in 1998.
(...)
(...), the Court finds that, within the main conclusions drawn from the "Body of Principles for the protection and promotion of human rights through action to combat impunity" in its latest update , include the following, of particular relevance to the constitutionality study being conducted: (i) during the transition process towards peace, as advanced by Colombia, the victims were assisted by three categories of rights: a) the right to namely, b) the right to justice and c) the right to compensation; (Ii) the indefeasible right to know is implying the possibility of knowing the truth about the circumstances in which violations were committed and in case of death or disappearance, the fate of the victim, (iii) the right namely also refers to the collective right to know what happened, a right that has its rationale in the need to prevent violations from recurring, which involves the obligation to "memory" public on research findings, (iv) the right to justice implies that all victims have the opportunity to assert their rights and receive a fair and effective remedy, namely to achieve that the offender is judged by obtaining a repair, (v) the right to justice is the state's duty to investigate violations, to prosecute the perpetrators and, if their guilt is established, to ensure its passage, (vi) in criminal proceedings Victims have the right to become party to claim their right to reparation. (Vii) In any case, the rules of procedure should meet the criteria of due process, (viii) the requirement for criminal proceedings or penalties can not be opposed to serious crimes under international law are considered crimes against humanity or run during the period where there was no effective remedy, (ix) With regard to reduction of sentences, the "laws of repentance" are admissible in processes of transition to peace, "but should not completely exonerate the perpetrators" (x) repair has a double dimension (individual and collective) and includes individual level measures of restitution, compensation and rehabilitation, (xi) on the collective level, the repair is achieved through symbolic measures or other that project to the community, (xii) in guarantees of non- repetition, include the dissolution of armed groups be accompanied by reintegration measures.
rights are referred to the judges, including who should be conceptualized in the extradition proceedings, can not pass as a mere spectator as his mission
goes beyond being a mere regulator arbitrator process forms ...
where it is imperative
obligation to seek the application of substantive justice, and above all, to be a guardian of respect for fundamental rights of the suspect or accused, as well as those of the victim, especially the latter's rights to know truth about what happened, access to justice and obtain full compensation in accordance with the Constitution and international treaties that are part of the block of constitutionality.
face of human rights violations the State must guarantee victims an effective remedy that delivers results and appropriate responses, which is to say, neither more nor less than a travesty of justice is not to do justice. In other words: only do justice and effective resource efficiency obtained when those who have suffered the violation of human rights, who have been victims of crimes committed by paramilitary groups or their relatives, obtain truth, justice and reparation .
The State, in this case the judges, they fail in their duties when serious violations of rights Humans do not investigate, prosecute and punish those responsible for committing. In particular on the so-called effective remedy, is in serious breach of international standards when (i) will not advance the prosecution of a serious, rigorous and thorough, (ii) if not handled with care, speed and conviction, (iii) measures are taken to protect victims (iv) or not allowed to intervene in these processes, (v) or expands over time the definition of the subject.
have to highlight the need for the judiciary to understand the role that decisions in the context of the criminal justice system and the state model which is part because constitutional democracies are Justice basically states, ie states in the context of a participatory and pluralistic democracy, lead to a new dimension to the contents of the Liberal State political freedom and equality of social state. Therefore, every act of the constituted powers, including the judiciary, is bound by the Court as a superior value of the legal system as a constitutional principle, as a right and duty even as the state, where it is imperative that judges, when issuing their pronouncements are not worried about the legal correctness of their decisions but also by the need to harmonize the material contained correction of Justice because otherwise, the judiciary Colombia have not taken a single step since the times of the most rigid legal formalism.
If you proceed that way, that is, harmonizing the legal correctness and material justice, it is easy to see that there are overriding reasons to examine the legitimacy of an extradition that ultimately may be contravening the rights of victims, and prevented her the realization of the constitutional purposes of the criminal process by affecting the legitimate expectations that encourage victims of conduct punishable as the realization of their right to truth, justice and reparation, and, unlike the extradition of a demobilized to respond within the abroad for less serious crimes than those who are confessing to the Colombian courts, it is still a form of impunity.
27. And if we repair that Act 975 of 2005 was sponsored by the National Government with reference to peace as a great national purpose should be no obstacles and that for the sake of it
must find an appropriate balance, a balance between justice and peace, allowing us to serve the interests of the first, while moving boldly and effectively overcoming the problems of violence that have caused so much suffering to the country,
was structured so that a bill which should be as central
Truth, Justice and Reparation, with emphasis on the rights of victims,
glowing with clearness that both the Government as national and international communities are interested in the serious crimes committed by the paramilitary groups are fully clarified, and impose punitive consequences that the laws authorizing them, because otherwise it would violate
the right of society to clarify macrocriminality processes that affect the massive and systematic human rights of the population, (also) are constitutional rights.
As stated by the Constitutional Court to review the constitutionality of Act 975 of 2005, that crosses the state through difficult circumstances that hinder the achievement of peace, not released from their obligations in justice, truth, reparation and not repeat, emanating from the American Convention on Human Rights .
28. All the above requires the Court to consider, for the sake of the rule of national justice, respect for international commitments of the State in human rights and the effectiveness of fundamental rights, that if in a particular case occurs extradition as a result of the violation of the rights of victims, the concept should be issued in the negative or if the character is favorable will be conditioned to avoid the distress of those who have suffered the consequences of the crimes confessed by the demobilized-postulate, of course inevitable that not addressed the concept becomes negative, with the respective consequences.
In conclusion, according to the statement, confirming the resolution imposed by the Court because it has not been proven any causal exclusion applies for the benefits of the Justice and Peace.
A merit of the above, the Criminal Cassation Chamber of the Supreme Court,
RESOLVED:
1 °. Upheld the order of 12 March 2008 handed down by the Hall of Justice and Peace Court Superior de Barranquilla in the trial against TORREGROSA ENRIQUE MANUEL CASTRO.
2 °. To inform that against this decision no appeal.
Cópiese, report and enforcement.
Sigifredo ESPINOSA PÉREZ
LEONIDAS BUSTOS JOSE ALFREDO MARTINEZ QUINTERO GÓMEZ
GONZALEZ MARIA DEL ROSARIO DE LEMOS J. AUGUSTO GUZMÁN IBÁÑEZ
Yesid JORGE LUIS QUINTERO RAMIREZ MILANÉS BASTIDAS
Julio Enrique Socha Salamanca ZAPATA JAVIER ORTIZ
TERESA NUNEZ RUIZ
Secretary.
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