By Laura Dulce Romero, El Espectador, February 4, 2020

(Translated by Eunice Gibson, CSN Volunteer Translator)

The Special Jurisdiction for Peace (JEP) created a technical committee of justices to figure out a road map for the penalties to be imposed on those who tell the truth about their crimes in the war.  Even though it will not be a sentence of incarceration, the defendant will have to work on projects of reparation for the victims and they will have restrictions on their mobility. We explain it here.

Last year, while Camilo Suárez, a Justice in the Special Jurisdiction for Peace (JEP), was explaining in an educational talk in La Guajira how this Court’s penalties would work, a young man interrupted him. He explained briefly that he was a former combatant, but, more precisely, that he had been recruited by the guerrillas when he was a child, so that he was also a victim.

“If the people who did that to me don’t go to prison, then, what’s going to happen? How will I receive reparation?’ said the ex-guerrilla. The Justice took a little while to answer him: “What kind of reparation would you like to receive?”  The young man said he guessed he would like to have opportunities, because he had always wanted to study, but the war had been his only option. At that moment, Justice Suárez understood that the first goal for the new jurisdiction is to change the mentality of those Colombians from thinking that taking away liberty for 20-50 years is not the right punishment when we are trying to learn the truth and, above all, provide reparation to the victims.

Those who submit to the JEP have to face three kinds of penalty: the penalty in the ordinary justice system of 15 or 20 years in prison that is imposed on those who don’t admit responsibility and are convicted by the peace tribunal; the alternative penalties of five to eight years in prison, for those who begin the process by claiming they are innocent and only after the trial admit their guilt; and the JEP’s own penalty that does not include prison, but is in exchange for the complete truth, and they will have some restrictions.

In recent months, this legal system has created a technical branch of justices to begin creating the JEP’s own penalties. This model, according to Justice Suárez, has not yet been implemented anywhere in the world. Because of that, and because some findings are expected to be made this year—that is to say, the first decisions in the cases of kidnapping and of false positives—the justices are under pressure. Today the international community and the International Criminal Court, the agency that works to prevent impunity in the cases of the most atrocious crimes in the conflict—both are watching the proceedings of the Colombian justices closely.

“Criminal justice systems function under the concept of ‘retribution’, or that people have to pay for their crimes with prison sentences. It seeks to see that the punishment is equal to the damage caused. The more serious the crime, the more restriction of liberty. But it has been demonstrated in several studies that that punishment is not effective, because it does not accomplish a fundamental goal: resocialization. Neither does it furnish any reparation for the victims, who are not even considered in the proceedings,” explains the Justice in the Trial Level Section for cases where the crime is admitted.

And we have to add to that, according to Alejandro Peláez, Undersecretary for Access to Justice in Bogotá, and an expert in retributive justice, the bad prison conditions and high rate of recidivism. According to the National Penitentiary and Prison Institute (Inpec), in the last seven years, the number of prison inmates that commit additional crimes has increased by more than 110%.

The priority for the justices, for Peláez, is determining the complete truth about the crimes and the guarantee of no repetition. Colombia has signed international agreements to combat impunity, which is now around 90%. The important thing is to guarantee the right of the victims to learn what really happened and have reparation for the damage they have suffered. In the case of the JEP, it will try to learn the truth of what happened, in exchange for penalty benefits.

The fiercest opponents of this system have referred to these benefits as impunity, but Suárez explains that, even though the defendants won’t be in prison, they will have restrictions on their mobility, their residence, and their rights: “A space will be provided where such persons can be. What the Statutory Law provides is that those spaces may not be preferable to other community spaces or to the old spaces reserved for ex-combatants. They will be required to remain there, according to their penalty, from five to eight years, and carrying out activities that provide reparation for the victims. They can’t just do whatever they want.”

What kinds of activities will be required of those with the most responsibility? That, in the first place, has to be discussed with the victims. What the law says is that it has to be related to the damage that was cone. Suárez gives an example: “If the defendant planted land mines in a territory, he will be responsible for cleaning those out. If he damaged a river, he will have to do an environmental project. If he destroyed a village, he will have to reconstruct it, with infrastructure, such as schools and roads.”

Sebastián Arismendi, the son of Héctor Fabio Arismendi, the legislator from Valle who was murdered by the FARC, recounts that, in spite of the fact that there still has not been an agreement on the penalties, these victims were the first to furnish the justices with a proposal: the construction of a school between Florida and Pradera (Valle Province). “For us, this would be the best kind of reparation. Even though a lot of people think that imprisonment means justice, for me that is no solution. The things were done; my father is not coming back, and I believe it would be more useful if they built this school that could function as his legacy. Education is very important to my family. He believed that it was the means of moving forward. We would like the school to be built to change the lives of the children who live in the midst of the conflict. We would like something to be left in that place. The idea is that that school would have a center for memory, that every classroom would bear the names of the victims.”

For that point, it will be necessary for the justices to coordinate with the Executive and the provincial and municipal judicial authorities, because it’s their job to issue sentences and not to create public policy. Because of that, for some months now the meetings with Emilio Archila, the President’s counselor for stabilization, have been intensifying. Archila proposed to the JEP that the persons to be penalized in this way might work for the Development Programs with Territorial Focus (PDET in Spanish). They are working to improve living conditions in 170 municipalities affected by the violence and poverty.

“The government absolutely respects the autonomy of the Special Jurisdiction for Peace. Our reading of the law is that it’s up to the JEP to establish the proper penalties. We expect that the restriction of liberties it imposes will be accepted by the country. And we believe that the PDET contains a fundamental pillar: reconciliation. There are a number of important collective reparations that are working in the municipalities. If we really want to have a repairing effect, we need to do our jobs. That could be very fruitful because it answers that necessity,” insists the counselor.

The people who apply these special penalties will be watched constantly. Because of that, the Peace Agreement created a mechanism for monitoring and verification, in charge of the United Nations. In case of third parties and the Armed Forces, the government will play that role. In the meetings they have also discussed how that vigilance should be carried out and even whether those who are sentenced ought to wear electronic bracelets.  If they don’t carry out their commitments they could lose their benefits and the justices would have the power to modify their punishment and order the deprivation of their liberty. It’s expected that the roadmap of JEP special penalties be completed this year at the latest.

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