By Alejandra Bonilla Mora, CAMBIOColombia, November 30, 2023


(Translated by Eunice Gibson, CSN Volunteer Translator)

The Constitutional Court ruled on several complaints that had been filed by opposition Members of Congress, and held that the terms for submission to the legal system in the case of the gangs have to be determined by Congress. It also made some adjustments in the authority to suspend arrest warrants. Details follow.

The full Constitutional Court has ruled on one of the pillars of Gustavo Petro’s administration: the “total peace” statute, which permits approaches to groups like the Dissidents to hasten the peace process, and to another kind of criminal organization such as the gangs dedicated to drug trafficking in the countryside, like the “Clan del Golfo” or “Los Pachenka”.

In general terms, the Constitutional Court preserved the statute, with the understanding that the President does have the authority to approach any possibility that might exist to seek the end of the armed conflict by means of negotiation, even to approach criminal organizations to obtain their dismantling, specifying that that cannot permit the government’s renunciation of the pursuit of criminals to guarantee the control of the countryside, the security, and the full extent of the rights of the citizens.

Regarding the doubt generated about the approaches to criminal gangs called Armed Structures Organized for High Impact Crime (EAOCAI), the Court held that while this is another kind of violence, the Constitution does not restrain the President from creating approaches and conversations with such organizations, especially if the procedures permit the confrontation of the serious violence that these organizations cause. And for that reason, it maintained its support for approaching these organizations.

Sources explained that it’s implicit in this decision that organizations like Segunda Marquetalia may only be approached in order to achieve their submission to the legal system, not for other political purposes such as are permitted with the ELN guerrillas for example. On that point, the High Court is expected to make a detailed statement next week.

However, the Court said that the terms of submission to the legal system by anyone from such an organization cannot be those that the national government may consider necessary, as provided in the statute, because that would imply very broad discretion. On that issue, the High Court held that such submissions to the legal system must be subject to terms to be determined by the Congress.

“If it were otherwise, the national government would be invading the legislative authority, which is responsible for making the laws, as provided In the Constitution,” said the Court. In addition, the decision explained that “it’s necessary that there be a legal framework to govern submissions by the EAOCAI, and that this framework must be defined and developed by the legislature, based on the wide margin of configuration that is available to them. That, of course, may not prejudice the fact that all special measures of a penal character, regardless of whom they may affect, are subject to strict statutory reserve, and conceding them is the responsibility of the judges, applying applicable regulations.”

 Lifting Arrest Warrants

The Constitutional Court’s decision also dealt with the authority given by the “Total Peace” statute to suspend arrest warrants affecting representatives of the structures organized during the conversations, as well as the possibility of suspending arrest warrants for the rest of the group’s members when they are in a temporary location in a specific area, “including arrest warrants for the purpose of extradition”.

The Court held that this authority, as drafted in the statute, was very broad, and because of that, it held that the suspension of arrest warrants can only take place when the members of the EAOCAI who would benefit from the measure have “shown objective signs of their commitment to the dismantling of said organizations and to accepting the Rule of Law”.

Therefore, the government must at least justify its request and show its motivation, “in a manner that connects the objectives of submission and identifies its necessity within its temporary and territorial setting.”

In the same way, the Court made clear that the arrest warrants may only be suspended by a judge, to evaluate, among other things, “the quality of the individual who benefits from that measure, that’s to say, establishes that he is a spokesperson or a member of an EAOCAI, that it’s a measure that’s necessary to carry out the legal objectives of submission and dismantling of the structure, and that the temporary territorial delimitation is necessary to the functioning of those objectives.”

The High Court also endorsed a paragraph in the “Total Peace” statute that establishes a duty to guarantee the security and integrity of all of those that are participating in the approaches, but it specified that this can only be applied to those who are actually participating in the approach and conversation procedures. That means that it only covers the spokespersons for the gangs, but not all of the members of the organizations.

While the organization is continuing to carry out criminal activities, the government has the duty to use the tools at hand to comply with the 13 court decisions that make the government’s duty clear, such as using the tools of pursuit and using proportionate and necessary force, according to the Rule of Law.

Limiting the areas where the groups can be located

Since the statute permits the government to agree with the representatives of these organized groups to locate temporarily “in precise and identified areas of the national territory,” the Court said that that concept cannot be the same one used in the peace process with the guerrillas, since those proceedings have logics and finalities that are different. It’s not clear how there could be temporary location areas for the purpose of facilitating the submission of those who are part of organized crime if they are gangs that have been operating in urban areas.

Therefore, the Court explained that this concept was not developed for use in proceedings with gangs, and that, “it’s necessary to have a legal framework to define standards, alignments, opportunities, and limits for the creation of such an area when there are conversations with representatives of organized crime.

So, the full Court has said that the determination of special temporary location areas to be used by the EAOCAI also have to be circumscribed by a “more mature phase of the process”.

The Spokesmen for Peace

In the same manner, the Court revised a paragraph in the statute that allows members of social and humanitarian organizations who are under arrest to be approved to be “Spokesmen for Peace”. The Court found that to be unconstitutional because it violates the victims’ rights.

“In effect, on the one hand, the President and the Executive Branch, in general, may not release a person who has been arrested and taken into custody by the order of a court, especially if a precise objective has not been stated, one that has a clear constitutional foundation and defines a scope of concrete application focused on that objective,” states the decision.

On the other hand, the Court said, “this eventual release weakens the objectives that, at the time, justified the issuance of the arrest warrants or a prison sentence by the judicial authorities. This limits the effectiveness of acts taken by the courts on behalf of the victims, and affects their right to the effective administration of justice.”

The Dissents

This decision was made by a majority of the Court, but with a forceful dissent by Justice Jorge Enrique Ibañez, and partial dissents by Justices Paola Meneses, Juan Carlos Cortés, and Antonio José Lizarazo. Lizarazo, who was in favor of the Court’s conclusion, dissented partially on one of the issues, but he was the author, together with Justice Natalia Ángel, of the decision issued by the Court.

Justice Lizarazo and Justice Paola Meneses focused their dissent more on procedural issues, while Justice Cortés believed that they ought to leave intact the authority to suspend arrest warrants, not only for representatives of gangs, but also for workers for peace. He wrote that in no circumstances did that imply the massive release or the unjustified release of anyone. Justice Jorge Enrique Ibáñez made a forceful objection to the majority decision. He questioned why they had allowed approaches to criminal groups without paying attention to their activities, which might be drug trafficking, extortion, and kidnapping, among other things.

For Ibáñez, “unless a constitutional amendment is adopted, under the constitutional rules now in effect, it’s not possible to accept a peace process with a procedure for submission to the legal system; each of those has its own constitutional, legal, framework, derived from the jurisdiction and competence attributed to each authority. The definition and reach of “total peace” is certainly novel in our legal tradition, in which up to now there has not been a proposal to put forward peace processes with the drug cartels, or with organizations that affect the security of the citizens or the security of humanity living together in peace. And they’re trying to do this with a statute, without amending the Constitution, which does not support this proposal.”

The Justice said that this “total peace” concept of negotiating with gangs is beyond what is now permitted by the Constitution.

“The Constitutional rules related to peace and to peace processes were not designed or established to advance proceedings for submission to the legal system by common criminals, however they may be organized ( . . . ) For this proposal, which doesn’t fit into the Constitution’s provisions for peace, or within the constitutional legal framework for peace, there are other instruments that should be used separately (which implies, in this case, a different statute) and with different constitutional parameters, to the extent that, we repeat, procedures for submission to the legal system by these criminal organizations (EAOCAI) cannot be framed, under the Constitution, as peace procedures,” the Justice emphasized.

Ibáñez stressed that allowing the same procedures for negotiations and peace agreements and the tasks of submission to the legal system and the dismantling of the organized crime structures is incompatible with the Constitution. “That’s because it furnishes to these groups the same prerogatives as the primary groups, however they may have got there, and available empirical experience appears to confirm it. Criminal groups like the Clan del Golfo, Los Panchecas, Los Rastrojos, Los Urabeños, Erpac, the Envigado Office, and other dozens of groups will talk, with the expectation that they will receive benefits, without considering either the Congress or the Judicial Branch.”

What Was the Court Looking At?

The High Court ruled on accumulated complaints that had been filed by opposition Members of Congress, challenging various paragraphs in the statute, including one that provides that there can be approaches and conversations with organized armed groups or armed structures organized to commit crimes of high impact. These include individuals who have demobilized in previous peace processes; for some this implies the inclusion of deserters.

In the framework of the Court’s procedures, the Office of the High Commissioner for Peace differentiated the conversations they are having with the different kinds of illegal groups, in order to argue that it’s one thing to have political dialogs and another thing to talk about submission to the legal system. In the first, the exploratory phases have sought to establish specifically, “what motivations led the group to take up arms, for political, social, or economic reasons, recognizing the relationship between violence and the structural conditions of inequality, inequity, and poverty, while emphasizing the necessity for the government as a whole, to agree to eliminate them.”

“The peace dialogs with political actors can lead to reforms agreed to by the government, as happened, for example, with the Final Agreement for Peace in 2016. On the other hand, if it’s with armed structures lacking that character, there is no place for reforms of that kind. Rather, there has to be a conversation about how to achieve their submission to the legal system, which we have not been able to obtain with the use of ordinary steps,” is the government’s argument.

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