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found to be jointly responsible, victims are faced with a fragmented collection of entities
which provide reparations. This situation obliges them to seek redress through several
channels simultaneously,” which “places the victims in a situation of total uncertainty and
inequality in the proceedings […].” Consequently, the representatives asked the Court to
order the State to, inter alia: require “full confessions” from the beneficiaries of Decree 128
and Law 975; allow the victims “ample and direct participation at all stages of the judicial
proceedings brought under Decree 128”; and guarantee “the participation of the victims at
all stages of the proceedings filed under Law 975, including the ability to question the
beneficiary directly.” The representatives concluded that “Decree 128 […] is a de jure and
de facto obstacle to the effective investigation of the violations and the clarification of the
events surrounding them”; “therefore it constitutes a violation of the obligation to adopt
provisions of domestic law to make rights effective” and that this violation of Article 2 of the
American Convention “will be exacerbated if a version of Law 975 is applied that does not
incorporate the modifications introduced by the judgment” of the Constitutional Court.
186. The State indicated, inter alia, that “[t]he benefits [established in Decree 128] apply
only to offenses that are considered [...] political” and “[u]nder no circumstances [...] are
they applied to offenses that constitute grave violations of human rights or international
humanitarian law.” Moreover, the State clarified that “Article 21 of the Decree revokes the
benefits when those who are prosecuted or convicted [have] committed ‘offenses for which
[...] this type of benefit cannot be applied,’”. Regarding the Justice and Peace Law, it stated
that “at first […], the law may have represented a significant restriction to the right to truth,
justice and reparation[, b]ut […] the Constitutional Court’s judgment rectified these possible
flaws.” Regarding the debate concerning the non-retroactivity of the Constitutional Court’s
judgment C-370 of 2006, the State maintained that “the principle of lenity should be
understood not as a rule, but as a constitutional principle that must be weighed together
with other constitutional principles.” Consequently, “the court’s ruling can be applied
retroactively in those cases in which this it is essential to safeguard the rights of the
victims,” without completely eliminating the principle of lenity. For example, the principle of
lenity prevails in the stipulation that “the time those who are demobilized spend in the
demobilization assembly area should be counted as part of the alternative penalty.”
Colombia also indicated that the right to the truth of the victims “is fully guaranteed,”
because “currently, it is understood that they can participate at any stage of the criminal
proceedings” and that, “for the demobilized individual to be able to acquire the juridical
benefits [established in Law 975...], he must have made a complete confession of all the
crimes committed as a result of his membership in the illegal armed group.” Likewise, the
State indicated that “alternative punishment is a tool of proportionality in keeping with the
right to justice” and that the granting of “amnesties or pardons [is prohibited ...] in cases of
grave human rights violations.” The State emphasized that the penalties are proportionate,
bearing in mind the requirements that demobilized individuals must meet: they must “make
a full confession of all their crimes and those of their group;” “make integral reparation to
the victims;” and “guarantee that atrocious acts such as these are not repeated.” In
addition, it clarified that the benefit of the alternative punishment may be revoked if these
requirements are not met and, moreover, that the “action for review is admissible even
when the alternative sentence has been served.” Finally, Colombia stated that the Justice
and Peace Law guarantees reparation for the victims “as individuals and collectively,” by
seizing the legal and illegal assets of those who are demobilized and by implementing
institutional programs to provide collective reparation.
187. The Commission stated that “in principle, Law 782 and Decree 128 would not
constitute per se a legal obstacle to the investigation of crimes against humanity or grave
human rights violations [since they would only be applicable to offenses defined as
conspiracy to commit a crime], and that the writ of prohibition arising from these norms
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