A. CHRONOLOGY OF THE LEGAL AND JURISPRUDENTIAL FRAMEWORK
The normative background is comprised of the issuance of legal norms that sought to lay the groundwork for the demobilization of armed groups outside the law, with the aim of providing normative tools for peace talks. Among these norms stand out:
- Law 104 of 1993, subsequently modified and added by Law 241 of 1995. hese norms aimed to generate a normative context for the search for peace through the regulation of individual and general aspects.
- Law 104 of December 30, 1993 (Instruments aimed at achieving coexistence and peace processes)
- Law 104 of 1993 and 241 of 1995 were repealed by Law 418 of 1997, a true normative milestone on the matter, which was modified by Law 548 of 1999 and Law 782 of 2002 and regulated by Decree 128 of 2003. Law 418 of 1997 incorporated elements of the application of International Humanitarian Law, Human Rights, the cessation of hostilities, and the generation of conditions for a just political and social order, in addition to demobilization and reintegration into civilian life.
- Political Constitution of Colombia: Articles 29, 30, 31, 33, 86, 87, 89, 228, and 229.
- American Convention on Human Rights: – Article 7º. Right to Personal Liberty. – Article 8º. Judicial Guarantees. Article 9º Principle of Legality and Non-Retroactivity. Article 10º. Right to Compensation.; and, Article 25. Judicial Protection.
- Law 975 of 2005. (Justice and Peace)
- Law 1424 of 2010. (Transitional Justice)
- Law 1448 of 2011. (Comprehensive Care, Assistance, and Reparation for Victims)
- Law 1592 of 2012. (Amends Law 975 of 2005)
- Law 1922 of 2018. (Procedure for the JEP)
- Law 1957 of 2019. (Statutory Law on the Administration of Justice in the Special Jurisdiction for Peace)
- Sentence T – 025 de 2004
- Sentence C – 936 de 2010
- Sentence C – 771 de 2011
- Sentence T – 799 de 2011
- Sentence C – 052 de 2012
- Sentence SU – 254 de 2013
- Sentence T – 283 de 2013
- Sentence C – 007 de 2018
- Sentence C – 080 de 2018
- Sentence C – 539 de 2019.
- Sentence SU – 048 de 2021
As can be observed with meridian clarity, the normative framework that regulates and governs Transitional Justice is quite considerable, even more so if we establish and understand that to this legal framework must be added the regulations established in the current Codes such as the General Code of Procedure, the Criminal Code, the Code of Criminal Procedure, etc., depending on the specific case in question.
In relation to the case law of the Constitutional Court, in relation to the areas of state action and the principles of transitional justice: truth, justice, reparation and guarantees of non-repetition, it should be noted that there are more than twenty (20) judgments distributed between the years 2010 and 2021 that directly relate to the topic.
Among the case law, we find that there are more constitutional rulings (C), tutela rulings (T) and unification rulings (SU). It should be noted that some of these decisions were submitted for consideration by the Full Court of the Constitutional Court, due to the nature of the action brought (C) and the nature of the ruling (SU), while the others were reviewed in the First, Second, Fifth, Seventh and Ninth Chambers (T).
B. ON THE CONCEPT OF JUSTICE
Article 228 of the Colombian Political Constitution establishes that the Administration of Justice is a public function and that:
“(…) Its decisions are independent. The proceedings shall be public and permanent, with the exceptions established by law, and substantive law shall prevail therein. (…)”.
Likewise, it is essential to highlight that, since 1993, before the Inter-American Commission on Human Rights, in relation to the concept of “Justice”, in Chapter IV, Colombia ratified that:
“(…) The right to justice is active when it seeks to obtain and achieve effective punishment and certain reparation. The right to have a person investigated when he or she is the victim of a violation by another person, that is, the fact of claiming and demanding justice, seeks to have the perpetrator of the violation punished and to pay civil compensation to the person who suffered the violation or damage. This right is fundamentally civil in nature and implies the application of the principle that everyone who causes damage is obliged to compensate for it and the one who suffers it to demand the fulfillment of his right.
Likewise, the right to justice implies the right to be treated fairly, when an investigation or accusation of being a presumed perpetrator of a criminal act falls passively on a person, whose first guarantee of justice is the right to the presumption of innocence and then to a fair trial, with all the guarantees that allow the accused to maintain his status of innocence as long as his criminal responsibility is not proven in the proceedings (…)”
Now, the Constitutional Court has stated that:
Colombia 1993 -Chapter IV – OEA :: Inter-American … https://www.cidh.oas.org › colombia93sp › cap.4.htm
“(…) The right to the administration of justice has been defined by constitutional jurisprudence as the possibility recognized to all persons residing in Colombia of being able to go before judges and courts in conditions of equality, to advocate for the integrity of the legal order and for the due protection or restoration of their rights and legitimate interests, with strict adherence to the procedures previously established and with full observance of the substantive and procedural guarantees provided for in the laws. This prerogative enjoyed by natural or legal persons to demand justice, imposes on public authorities, as holders of the coercive power of the State and guarantors of all citizens’ rights, different obligations so that this public service and right is real and effective. In general, the obligations that States have towards their inhabitants can be divided into three categories: the obligations to respect, protect and fulfill human rights. Based on this classification, the content of the fundamental right to the administration of justice will be determined below. Firstly, the obligation to respect the right to the administration of justice implies the State’s commitment to refrain from adopting measures that result in impeding or hindering access to justice or its realization. Likewise, it entails the duty to refrain from taking discriminatory measures based on criteria such as gender, nationality and caste. Secondly, the obligation to protect requires the State to adopt measures to prevent third parties from interfering with or obstructing the right holder’s access to the administration of justice. Thirdly, the obligation to perform implies the State’s duty to (i) Facilitate the conditions for the enjoyment of the right, and (ii) Make the enjoyment of the right effective. Facilitating the right to the administration of justice entails the adoption of norms and measures that guarantee that all persons, without distinction, have the possibility of being a party to a process and of using the instruments that the regulations provide to formulate their claims. (…)”
As has been established nationally and internationally, transitional justice refers to the way in which countries that leave behind periods of conflict and repression use to address massive or systematic human rights violations of such magnitude and gravity that the conventional judicial system cannot provide an adequate response.
Sentence T-283 of 16-05-2013.
The objectives of transitional justice will vary in each situation, although its features – the recognition of the dignity of individuals, reparation and admission of human rights violations, and the objective of preventing them from recurring – are constant.
Among its complementary objectives are the following:
However, it is essential to remember that the main purposes of Transitional Justice are: truth, justice, reparation and non-repetition, but justice as an end must be translated into a right to justice as public policy from a restorative approach.
