94
investigation. In the instant case, it is not possible to argue that there is no doubt.
Instead, the role of guarantor impedes classification of the omission as a service-related
act.202
118. This ruling by the Constitutional Court of Colombia was the basis for the
Council of the Judiciary to order that the proceeding be remitted to regular criminal
venue and for the Attorney General’s Office to annul the proceedings under military
criminal venue and to file charges against members of the Armed Forces and against
members of the paramilitary involved in the facts, classifying their degree of
participation as perpetrators of and as accomplices in the facts, as appropriate
(supra paras. 96.109 to 96.115 and infra para. 203). In other words, the decisions of
judicial authorities also show that the actions of said State agents constitute true
acts of collaboration, and not mere omissions, as the State argued before this Court.
In the February 15, 2005 judgment by the Criminal Chamber of the High Court of the
Judicial District of Bogotá (supra para. 122), which upheld the conviction of the three
military as co-perpetrators of and accomplices in the crimes of aggravated homicide,
aggravated kidnapping, terrorism and conspiracy to commit a crime, as well as
against three paramilitary, as perpetrators of said crimes, defining the conduct of the
“former members of the Armed Forces” in its preliminary considerations, said
Criminal Chamber stated:
Independently of the criminal liability found during the investigation regarding each of
the members of the security forces involved in this proceeding, this Chamber must
highlight the tangible fact that throughout the proceeding was found to determine the
events under investigation: the link that must definitely be asserted between the
members of the AUC who operated in the region of San José del Guaviare and certain
members of the National Army stationed there. An unfortunate alliance that from the
start is the only explanation and is the cause-effect of the very uncommon movement by
plane of the members of the AUC from the Urabá region of Antioquia to San José del
Guaviare and their free movement to Mapiripán.
First of all, elementary logic shows that no organization outside the Law, without
guarantees regarding safe and free movement, is going to send dozens of its men in two
planes carrying guns and ammunition in boxes that, under different conditions, must
necessarily be inspected by the authorities at the airport of destination, and those
bearing them apprehended.
They were two commercial planes […] that stood out because of their size in contrast
with the small planes that arrived at an equally small airport such as that of San José del
Guaviare. In addition to the fact that they were not inspected by any authority at the
airport, nor was their arrival documented in any way, it is also unheard of that at that
same landing strip its occupants boarded trucks, loading their boxes with weapons and
military material, left the airport and passed the inspections at a military roadblock and
other control posts located a few minutes from the airport, passed in front of the Joaquín
París Battalion and close to Mobile Brigade No. 2, with no difficulty. All the above means
that their arrival by airplane and their unchallenged movement to Mapiripán were
ensured by the same authority in charge of surveillance and control in all that territorial
iter, and in this regard rational appraisal and good judgment cannot close their eyes to
the evidence, all will be seen in the course of the respective analysis.203
119. The Court also bears in mind that the United Nations High Commissioner for
Human Rights has documented numerous cases in Colombia in which the links
between public employees and the paramilitary groups have been proven in
connection with facts similar to those of the instant case, as well as remiss attitudes
202
See judgment SU-1184 of November 13, 2001, issued by the Full Court of the Constitutional
Court (file with appendixes to the application, appendix 60, pages 979, 983, 884, 995 and 1002).
203
See Judgment of February 15, 2005 issued by the Criminal Chamber of the High Court of the
Court District of Bogotá (file with evidence tendered by the State, page 4737).
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