During the last 20 years in Colombia, two major peace processes have been advanced: one with the paramilitaries that started in 2005, and a second with the FARC guerrillas that started in 2012. These processes have included judicial scenarios where the testimonies of ex-combatants have been heard, which has seen some of them convicted for their crimes, with sentences that have included lengthy prison terms.
In fact, the peace processes have been so important for Colombia that the current President-Elect of the country, Gustavo Petro Urrego, has spent just over 30 years operating with democratic legality, which has led to him ultimately reaching the maximum echelons of political power, where he will be able to implement the same proposals that 30 years ago he sought to achieve from the armed framework of the now extinct M19 guerrilla group.
Given this eventuality, we could be forgiven for thinking that the country had now reached a certain level of maturity in its implementation of peace processes, and that now is the time for a transitory and exemplar exercise in justice against impunity and corruption.
There have been important precedents and experiences in this area around the world, such as the International Commission Against Impunity in Guatemala – CICIG – which was led by the United Nations under the leadership of a Colombian, Iván Velásquez.
At the Anti-Corruption Institute, we have designed a proposal for the implementation of justice, headed by the Supreme Court of Justice through the creation of a temporary Special Chamber made up of new Magistrates and working groups comprised of ‘career’ judicial officials, who would be carefully selected to investigate and prosecute any person responsible for crimes against public ethics and democracy. The Special Chamber would have a mandate of two years, starting from the date of its creation, and it would hold a national Public Ethics Trial.
How does the National Public Ethics Trial work?
Creating a transitory Chamber in the Supreme Court of Justice that is made up of ‘career’ judicial officials requires a legislative act that permits its creation, and a Statutory Law that regulates its operation.
This transitory Chamber would lead investigations into and trials against criminal structures that have been able to seize control of public contracting and wider State power via criminal networks that participate in electoral processes in order to capture State institutions.
The procedures to appoint magistrates would take place via a public call whereby all ‘career’ judicial officials would be invited to participate, with the selected ones entering into a commission that would last for the duration of the transitory Chamber’s mandate.
Administrative teams from the Judicial Branch would be in charge of coordinating the public trials at a national level, where oral testimonies would be heard. Each magistrate responsible for presenting a case would have the support of a working group made up of judicial investigators who would lead on the instruction and implementation of the various processes.
Each trial would have a second instance where the full court for the transitory Chamber would sit and lead on determining the resources from the process. Likewise, the suits that are filed within the framework of this justice process would be made known to the Administrative Court of Cundinamarca.
What would the procedures look like?
The General Secretariat of the Temporary Chamber of the Supreme Court of Justice would receive cases presented by civil society organizations, fiscal and disciplinary control bodies and the National Government. Informally, the Chamber could also initiate investigations into any person believed to be responsible for crimes against public administration and democracy.
The types of crime and the established sentences would be the same as is currently the case, that is to say there would be no modifications to the Penal Code, and the trials would include full procedural guarantees such as due process, the right to defense, the principle of Equality of Arms and the presumption of innocence.
Once the reporting judge determines that there is sufficient justification to determine that a crime has been committed and assign it, they would then proceed to summon the person and impose requisite measures, including the deprivation of liberty if there is a serious risk of escape, or for other causes as defined by the Penal Code.
To facilitate the documentation of these cases, the Transitory Chamber may use information collected during all types of administrative, fiscal, disciplinary and criminal processes, and would be able request that all of these files be shared. Similarly, the Chamber would have preferential power to take over cases listed with the Accusations Commission or in other Courts and tribunals and which are pending the start of oral proceedings.
The maximum period to process a case relating to an individual would be a year and a half, with the resolution of appeals required to take place in a maximum period of six more months. The maximum addition time would be for one more year if required due to the volume of work.
Once the Transitory Chamber completes its mandate, it would be dissolved and the officials that work there would go back to resume their previous positions. Prison sentences would be served in the common courtyards at established penitentiary establishments.
The financing of the Temporary Chamber would be assumed by the operational budget of the Judicial Branch, which currently has a value of 4 billion Colombian pesos, and it would need to have required security and mobility guarantees in order for the investigators to carry out their work.