- 75 -
(d)
Remove all the obstacles that prevent the adequate investigation of the
facts in the respective proceedings so as to avoid a repetition of acts and
circumstances such as those of the instant case.314 In this regard, the State
may not apply amnesty laws or argue prescription, non-retroactivity of the
criminal law, res judicata, the principle of ne bis in idem, or any other similar
mechanism that excludes responsibility, in order to exempt itself from this
obligation;315
(e)
Ensure that those who take part in the investigation, including victims,
witnesses and administrators of justice, are provided with the necessary
guarantees for their safety.
(f)
When investigating the interaction between the illegal group and State
agents and civilian authorities, conduct with special diligence the exhaustive
investigation of all individuals with connections to State institutions and the
members of paramilitary groups who could be involved. Hence, the application
of the principle of the most favorable law316 or the granting of any other
administrative or penal benefit should not create any kind of obstacle to due
diligence in the investigation of crimes associated with the perpetration of
serious human rights violations, and
(g)
Ensure that the paramilitaries who have been extradited are accessible
to the competent authorities and continue cooperating with the proceedings
being conducted in Colombia. The State should also ensure that the
proceedings abroad do not obstruct or interfere with the investigations into the
serious violations that occurred in the instant case, or reduce the rights
recognized to the victims in this judgment,317 using mechanisms that enable
those extradited to collaborate with the investigations conducted in Colombia
and, if appropriate, the participation of the victims in the measures taken
abroad.
314
Cf. Case of La Cantuta v. Peru, supra note 180, para. 226; Case of the Dos Erres Massacre v. Guatemala,
supra note 57, para. 240, and Case of Anzualdo Castro v. Peru, supra note 36, para. 182.
315
Cf. Barrios Altos v. Peru. Merits. Judgment of March 14, 2001. Series C No. 75, paras. 41 to 44; Case of
the Dos Erres Massacre v. Guatemala, supra note 57, para. 233, and Case of Anzualdo Castro v. Peru, supra note
36, para. 182.
316
Regarding the possible application of Law 1312 of 2009, amending Law 906 of 2004, in the future, in
relation to the principle of the most favorable law, the Court notes that it includes the possibility of applying this
principle to those demobilized from a paramilitary group and empowers the office of the Prosecutor General of the
Nation to suspend, interrupt or waive criminal prosecution in these cases. In particular, the Law indicates that, in
order to accede to this benefit, the person demobilized must have demonstrated unequivocally his willingness to
reincorporate society; he must not have applied to be included under the Justice and Peace Law procedure, and
there must be no investigations against him for crimes committed before or after his demobilization, with the
exception of belonging to the criminal organization, illegal use of uniforms and insignias, and illegally bearing arms
and ammunition. Although this law establishes that “for the application of this provision, the person demobilized
must sign a sworn statement affirming that he has not committed any crime other than those established in this
provision,” the Court has already verified that this type of legal provision may be insufficient if, at the same time,
the authorities in charge of the investigations or the office of the Prosecutor General fail to verify these affirmations
rigorously (supra para. 166). Cf. Law 1312 of July 9, 2009 (evidence file, tome XXII, attachment 3 to the final
arguments brief of the representatives, folios 9061 to 9063).
317
Case of the Mapiripán Massacre v. Colombia. Monitoring compliance with judgment, supra note 242,
considering paragraphs 40 and 41.
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