Article by Dr. iur. John Zuluaga LL.M.*
The Special Jurisdiction for Peace (SJP or JEP–Jurisdicción Especial para la Paz) has been introduced as the judicial component of a transitional justice system –so called comprehensive System for Truth, Justice, Reparation and Non-Repetition or Sistema Integral de Verdad, Justicia, Reparación y No Repetición– aimed at satisfying the rights of victims of the Colombian armed conflict. The SJP has priority competence for the prosecution of serious violations against human rights and against international humanitarian law in the context of the armed conflict. It is conceived as a complement to the extrajudicial mechanisms that integrate the Colombian comprehensive system of transitional justice. The new system is the result of the constitutional reform that implements the Final Peace Agreement between the Colombian government and the FARC-EP (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo/ Revolutionary Armed Forces of Colombia – People’s Army) by means of a special legislative act (LA–Acto Legislativo 01 of 4 April 2017).
It was established in transitory article 12 of the LA that the judges constituting the SJP shall be in charge of preparing the set of procedural rules meant to be sent to the congress for approval as an ordinary law and to be included in the Colombian normative system. On July 18, 2018 the Rules of Procedure of the SJP (RP-SJP/Law 1922 of 2018) were enacted, but not as an independent set of rules but rather as an addition to the constitutional and legal norms that implement the SJP, inter alia LA 01 of 2017, Statutory Law of the Administration of Justice in the SJP (SLAJ-SJP) and the Amnesty Law (law 1820 of 2016). The lack of rational and strict limits for the implementation of the process before the SJP, seems to open the way to an authoritarian judicial power in the prosecution of crimes related to the Colombian armed conflict.
The SJP’s procedural law
The 76 articles that constitute the RP-SJP are divided into three parts: The first introduces general provisions. The second deals with special processes before the SJP. The third part incorporates special provisions about different aspects of the work carried out by the SJP.
The first part is divided into six titles. The first title directs the centrality of the rights of victims (art. 2 and 3). The second title controls the procedural subjects (art. 4 to 8). The RP-SJP differentiate between procedural subjects (Unit of Investigation and Accusation–UIA–, the person appearing before the SJP and the defense) and special interveners (victim, ethnic authorities and public ministry). The third title incorporates the general rules of procedural acts. It regulates aspects related to the investigation process before the SJP and the recourse of appeal before the SJP’s different instances (art. 9 to 13). The fourth title governs the rules of evidence (art. 17 to 19). The fifth and sixth title manage the SJP's powers to access documents (art. 20) and preventive detention in proceedings before the SJP (art. 21 to 26).
The second part is divided into three titles. First, standards are set for processes in case of recognition of responsibility. In this instance, the rules for the procedures before the chamber of Acknowledgment of Truth and Responsibility (art. 27) and the first section of the Tribunal for Peace for cases involving recognition of responsibility (art. 28 to 33) are established. Second, the rules of processes in case of absence of recognition of truth and responsibility are set (art. 34 to 44). Third, the rules for special processes are set before the Chamber for Amnesty or Pardon (art. 45 to 47), the Chamber for the Definition of legal situations (art. 48 to 51) and the review section of the Tribunal for Peace (art. 52 to 60).
In the third part complementary rules are introduced regarding the granting of freedom (art. 61 to 63), the measurement of criminal sanctions (art. 64 to 65), the interruption of the limitation period of the criminal action (art. 66), the procedure in case of non-compliance with the conditions imposed for the delivery of criminal benefits (art. 67 to 69), and special provisions regarding the interaction with ethnic communities (art. 70 and 71).
Some critical aspects of the RP-SJP
The RP-SJP is complemented by a broad normative framework. The peace agreement of 24 November 2016 (I. Basic principles, num. 2), as well as the LA 01 of 2017, the amnesty law and many regulatory decrees give an ultimate form to the RP-SJP. Understanding the SJP as a device that will integrate other (judicial and extrajudicial) components of the transitional justice system, it is possible to comprehend the limited scope of the RP-SJP. In order to find the procedural basis of some actions within the SJP, it is necessary to refer to other legal sources. These normative sources are not only in the constitution, but also in the criminal procedural code and, even, in a series of procedural protocols issued by the members of the SJP. Thanks to these protocols some processes of the Chamber for the definition of legal situations and the Review section of the Tribunal for Peace have been regulated. In this way, the normative references that determine how the SJP operates have been expanded.
A first and important example how the normative remits determine the meaning of the procedural rules that govern the SJP is to be found in the rules regarding the procedural subjects. The difference between parties and interveners derives from the Colombian criminal procedure code (art. 113 to 142). The “procedural party” can only be the prosecutor or the defense, while the “intervening parties” are all others with power to carry out procedural acts different from those of the procedural party, including victims, witnesses, and juries. This difference is considered in the RP-SJP and places the victim as a special intervener (art. 2 RP-SJP). Although the victims currently have an independent procedural legitimation and a variety of participatory rights (this is a new trend, confirmed by the Kosovo Specialist Chambers), the position of victims as special interveners in the process of the SJP does not necessarily imply an active role. This means that the rights of the victims must be based on and defended in a permanent process of normative referral to the victims' law and the jurisprudence of the Colombian Constitutional Court.
The same happens with the rules of evidence of the SJP. The RP-SJP only introduce a few guidelines in this regard. It is omitted herein to regulate evidentiary aspects such as the rules for the admissibility and evaluation of the evidence, general provisions on testimonies, statements and other evidence. The issue that is most problematic is the fact that it does not incorporate rules of evidence for the procedures of recognition of truth and responsibility, nor evidence rules for the contradictory process before the SJP’s Tribunal for Peace. In other words, it introduces some general rules without differentiating between process types before the SJP. This is extremely problematic if one takes into account that trans. Art. 12 AL 01 of 2017 demands a strict corroboration of the information on which the SJP´s decisions are based. Therefore, the evidentiary debate will be governed by the criminal procedural code, which is not an articulating axis of the transitional justice system (judicial and extrajudicial components) that meets the rights of victims of the armed conflict.
The SJP’s authoritarian face
The Rules of Procedure should be the legal-procedural foundation of the SJP. This should be the case if these rules are conceived as categories with a limiting vocation for the exercise of persecuting and punishing. However, this proposed set of rules fails to project an idea of a process that is compatible with what a rational project of criminal prosecution should look like.
First of all, due to the markedly inquisitive tone of the multiple clauses that compose it, it can be said that the RP-SJP embrace a vocation of authoritarian power in different sections. This can be seen, for example, with the plausibility of the restriction of freedom before trial and without conviction (Article 63 RP-SJP), the acceptance of written procedures during the processes (Article 9, section 1, RP-SJP), the secret nature of some procedures (Article 9, paragraph 2, RP-SJP) and, in this way, the restrictions on orality, immediacy and publicity (Articles 9, paragraph 22, paragraph 39 and 56 RP-SJP). That is, the limitation on the possibility to verify judicial proceedings in a critical manner.
As the procedural regulation of the SJP is being developed, paradoxically, a redefinition of the transitional nature of this criminal justice project is taking place. In other words, the legal implementation of the SJP seems to direct the judicial process in a way that the ordinary criminal law follows: It tends to expand regulation and instrumentalizes the procedural rules to leave wide space for judicial discretion.
* John Zuluaga Dr. iur. and LL.M. Georg-August-Universität Göttingen (GAU, Germany). Associate Professor at the Department of Criminal Law, Sergio Arboleda University (Bogotá, Colombia). Research fellow at the Study Center for Latin American Criminal and Criminal Procedural Law (CEDPAL) at the GAU. Website: www.john-zuluaga.de