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The Criminal Chamber of the Supreme Court of Justice assured that it is still competent to hear the processes against the ex-governor Salvador Arana, sentenced to 40 years in prison for paramilitarism, and who was accepted in the Special Jurisdiction for Peace (JEP) .
The high court recalled that in December 2009 he sentenced Arana, who was governor of Sucre, to 40 years in prison for his ties to paramilitaries and the murder of the mayor of El Roble, Eudaldo Díaz Salgado. That sentence was given in concert to commit an aggravated crime, as a determiner of enforced disappearance and aggravated homicide.
He also pays another 8-year sentence in his capacity as “member of the AUC infiltrated in the public administration”, from which, the Court says, he ordered crimes against humanity.
So, for the Supreme Court, Arana was “a pure paramilitary” who did not act as a simple third-party collaborator of the Self-Defense Forces, rather, he was “camouflaged in the public service” in order to contribute to the co-optation of the State by the self-defense groups. “He participated in crimes typical of the illegal armed organization, in which he maintained influence for having been a founder,” says the high court.
(Also read: Musa Besaile will continue at the JEP for the case of the ‘Toga poster’).
That is why the Criminal Chamber raised a conflict of jurisdiction, which must be resolved by the Constitutional Court, affirming that it is the Supreme Court of Justice and not the JEP that is responsible for continuing to have knowledge of the actions against Arana.
Through various writings to the JEP, Arana expressed to this jurisdiction his interest in submitting to it in order to access temporary, conditioned and anticipated freedom, as an agent of the State not a member of the Public Force.
In February of this year, the Dual First Sub-room of the Legal Definitions Room ruled on Arana’s request for foster care, and decided to accept it and provisionally deny him transitory freedom.
By questioning the JEP’s competence to admit Arana, the Supreme Court of Justice rejected that this justice had accepted the case and, therefore, objected to Arana’s entry to that jurisdiction. According to the high court, “pure paramilitaries” and people convicted or prosecuted for conduct unrelated to the armed conflict cannot be admitted to that justice.
“The defrauding of the transitional justice system by these subjects, under the pretext of contributing to the satisfaction of the victims’ rights, not only affects the delegitimization of the Truth, Justice, Reparation and Non-Repetition System, but also implies a weakening of ordinary justice, “said the Cassation Chamber Criminal Court.
The Court also said that, when accepting Arana’s case, the JEP did not know that it is forbidden to examine the factual and legal contents established in the judgments issued against it, because this corresponds only to the Supreme Court of Justice, as it is the authority that dictated Arana’s sentences. This is how, says the Court, being the highest court of ordinary criminal jurisdiction, it is up to the Criminal Chamber of the Court to review its own judgments.
And those powers, the Court says, are not limited to the special review, but the high court considers that it also has the power to examine what the JEP might have to admit a process.
The Court’s questions to the JEP
The Supreme Court of Justice questions two things: on the one hand, that the JEP had admitted Arana despite the fact that the competent authority to decide whether or not his case could be referred to that justice was the Supreme Court itself. And on the other, he questions that the JEP admitted it without making a due assessment of the personal factor to prove whether he could access that transitional justice.
In the first question, the Court says that the JEP has precedence to know the facts of the armed conflict that occurred before 2016, but that this jurisdiction is not unlimited, exclusive or absolute. That is why, according to point 58 of the Final Agreement, article 10 of the legislative act of 2017, and law 1957 of 2019, the Supreme Court of Justice is competent to review the judgments that it itself issued before those who want to appear voluntarily at the JEP.
For that reason, if a person convicted by the Court wants to enter the JEP, the high court maintains, it is the same Court that is responsible for reviewing whether that person can be admitted by that justice.
“It is that the admissibility judgment of the third party appearing voluntary falls on the facts, as well as on their legal considerations, set forth in the judgment. Hence, this post-revision of the Court must be applied from the moment in which access is sought to the system, “says the high court, reiterating that it is up to him to review whether a person convicted by that corporation complies with the personal, material and temporal factors so that his case may go to the JEP.
In this way, the Court says, “the respect preached to the sentences handed down by the highest court of ordinary jurisdiction is preserved.”
The Court maintains that, if that high court meets the criteria of jurisdiction, after verifying the factual and legal facts of its judgments, it must declare that the third party may be admitted by the JEP and will refer the cases so that the appearing party presents its contribution plan and receive benefits.
When the person wants a special review, this case must also return to the Court so that it can be processed before this high court, says the corporation, which must determine whether or not to render the sentence null and void, or modify the legal classification. .
The second objection of the Court is that Arana did not accredit personal factors to be admitted by the JEP as a non-member state agent of the Public Force. And the reason is that, for the Court, Although Arana committed conduct related to the armed conflict, upon deep analysis of his convictions, it is found that he did not carry out these acts as a state agent but as a “pure paramilitary” who was part of the Self-Defense Forces.
Thus, the Court recalls, the final agreement did not allow paramilitaries to be held accountable to the JEP, not only because they did not participate in that agreement, but also because they already had a different transitional justice regime.
In front of third parties, the Court says that it is clear that the JEP can know the facts of those who carried out behaviors such as financing or collaborating with paramilitary groups, “as long as they had not formed part of the organizations or armed groups.”
This is why, says the Court, a “pure paramilitary cannot be admitted to the JEP, who did not act as a simple third party collaborator or financier of the self-defense groups, but rather before joining the public service, was a member of the Auc , and, subsequently prevalidated as a state agent, infiltrating the public administration, he continued to be a member of the illegal organization, from which he ordered the execution of crimes by the organization, to which he provided support from his concomitant status as an official. ”
With this description, the Court ensures that defrauding the transitional justice system of people who do not have the right to it cannot be accepted. Thus, he recalled that justice and peace were expelled at the time pure drug traffickers who bought membership and even command in blocks. For this reason, the Court considers that accepting Arana as a civilian third party would be a fraud, since he was “founder, financier and leader of the paramilitary structures.”
JUSTICE
