Transitional Justice in Colombia and Assurance Measures for the Indemnity of Victims: Between Memory, Truth and Effective Jurisdictional Enforcement Luiz Guilherme Marinoni

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Transitional Justice in Colombia and Assurance Measures for the Indemnity of Victims: Between Memory, Truth and Effective Jurisdictional Enforcement
Luiz Guilherme Marinoni1

Sumário: 1. Introduction; 2. Transitional Justice, Truth, Memory and the Role of the Inter-American Court of Human Rights; 3. In Search of Victims Reparation: 3.1. The Victims and Land Restitution Act (Act 1.448/2011): Problems and Possibilities; 3.2. The Peace Process and the Agreement on Victims of December 2015: The First Step to Effective Reparations; 4. Reconciliation, Procedural Law and Unnamed Measures of Guarantee: 4.1. Reconciliation, Indemnization of the Victims and Right to Effective Jurisdictional Enforcement; 4.2. Restitution of Land and Immediate Immission in Possession; 4.3. Permanent Indemnity Fund and Reparation Enforcement Measures; 4.4. Guarantee Measures, Confidence and Social Peace; 5. Final Considerations

1. Introduction
This paper aims to establish a relationship between the transitional justice that is being built in Colombia and procedural law, especially with the assurance measures of indemnity for the protection of victims. The approach obviously cannot do without consideration of the transitional moment lived in Colombia.

The speech is organized and structured in two parts. The first part covers the fundamental concepts that make transitional justice, the rights to memory and truth and the need to compensate the victims as a presupposition for the reconciliation, in addition to brief consideration of cases in which Colombia was convicted of violation of human rights by the Court. In the second part is established a relationship between the process of reconciliation, the fundamental right to effective judicial protection and the measures to assure indemnity, demonstrating that these have great importance for the implementation and development of the peace process.

2. Transitional Justice, Truth, Memory and the Role of the Inter-American Court of Human Rights
If transitional justice is characterized by the nominal element that defines it - transition - it is certain that it refers to a past time that needs to be (re)known, faced, associated with and overcame2. It is important at the outset to clarify that it is the transitional justice from the transitional element (temporary) that defines it, it is not intended to say that the transitional justice adds, even in the distant future, any element of
forgetfulness. It is the opposite. To establish a transitional justice to (re)know, to face, to associate and to overcome the conflictive state of a community does not mean to ever forget. This is not oblivion, but memory. Only the truth about the conflict can bring to light the proper and required memory and build it on a broad public basis, plural and collective. And it is from them (truth and memory), with and upon them that (transitional) justice is carried out, is accomplished, knows and recognizes the past, remembers the conflict and provides a leading role to the victims, thus creating the possibility of conditions to build a new future. Therefore, transitional justice is, at the same time, process and substance, form and content, consisting of truth, memory and reparation3.

Transitions experienced by different countries in always distinct and peculiar situations, since its first phase with the defeat of Germany and Japan in 1945, through the second phase between 1970 and 1989 with the countries of southern Europe, the resurgence of democracies in Latin America post military dictatorships, the decline of the Soviet Union and the consequent resurgence of countries (not without external and internal conflicts), and more recently, the third phase with the called "Arab spring" countries keep a common element: a set of violations - from state actions or groups - the minimum and basic rules of protection of human rights4. If the transition processes in these countries have peculiarities given the specificities of the conflict, all seek to equate the human rights violations and build a new foundation for the future. One future to come on such violations; not to hide them, but to remind them and repair them.

Thus, transitional justice is defined by a set of institutional (political and legal, especially)5 and social responses to the human rights violations perpetrated by the State or groups within the country. Thus, the transitional justice knows and recognizes not only historical facts, but in this equates to project the future. This current construction and future projection involves the accountability of violator agents, for reparation to victims and the guarantees of non-repetition.

It is true that there is no single model or standard for the transitional justice process. This process is always a peculiar way in which the society of each country seeks to find his way to widely understand and deal with the violence of the past, equating them by implementing mechanisms to guarantee the rights to memory and truth. In any case, the community and the international doctrine always lists four duties to be fulfilled: (i) reasonable steps to prevent human rights violations; (Ii) mechanisms and instruments for the elucidation of situations of violence; (Iii) legal apparatus that enables the accountability of agents who committed violations and (iv) material and symbolic reparation for victims6. The structural measures for clarification of human rights violations allow the accountability of perpetrator agents, reparations for victims and the adoption of preventive measures to avoid future situations of violence. These are the core terms of transitional justice7.

Colombian state actions have, step by step and over time, tried to realize these requirements. They are gradual constructions, with advances and setbacks, achievements and losses. Anyway, these structural predictions of a transitional justice process have as an origin and confirmation in international precedents on the subject8. Therefore, one must stress the repeated trials of the Inter-American Court of Human Rights that have condemned the Colombian State for murders, massacres and internal displacement. These trials demonstrate the need for measures to be taken, as part, thus, of the construction that is required and expected of a transitional justice.

From the leading case Velásques Rodrigues Vs. Honduras on Forced Disappearance, the Inter-American Court of Human Rights has created and consolidated firm understanding of the need for limitation of institutionalized violence and rejection of acts of terrorism and barbarism committed by the state apparatus in the name of security.

Of the several convictions of Colombia for human rights violations, six resulted in massacres (Las Palmeras, Diecinueve Comerciantes, Masacre de Mapiripán, Masacre de Pueblo Bello, Masacres de Ituango and Masacre de la Rochela) and were demanding of greater economic and financial expenditures by the state. It is important to remember that in the case Caballero Delgado y Santana vs. Colombia and Las Palmeras vs. Colombia indemnities were limited to pecuniary compensation to the victims. Just from the case Diecinueve Merchants vs. Colombia - the third sentence of the Colombian state - is that the reparations have required acts and symbolic measures, such as the construction of monuments in memory of the disappeared, public apologies and the dissemination of standards on human rights, in addition to knowledge and application of these standards by the state bodies, especially those involved in acts of violations9.

The convictions of the Colombian state show that transitional justice and the peace process are marked by advances and setbacks10. The Court played an important role in initiating the responsibility of the State and demand state recognition for human rights violations, but the Colombian State had important initiatives such as the issue of the Victims and Land Restitution Act (Act 1.448/2011) and now the peace process that is being built with the FARC over several rounds of negotiations in Havana11.

3. In Search of Victims Reparation
3.1. The Victims and Land Restitution Act (Act 1.448/2011): Problems and Possibilities
The Colombian Constitutional Court, in 200412, recognized the restitution of land as a form of reparation enforcement for victims. The Victims and Land Restitution Act (Act 1.448/2011) has procedural and substantial devices that enable the reparation. This act is an important instrument for the consolidation of the Colombian peace process. It is true that it represents a timely initiative, which should be combined with other many other state measures, but should certainly be seen as one of the elements of the peace building process.

It is assumed that the refund demands have created difficulties. In regulating Act 1.448 / 2011 (Decrees 4.829/2011 and 599/2012), the National Government has set as a requirement for restitution that the immovable property be in an area that has been "macro-focused" and "micro-focused" by the Ministry Defense as a region where there is minimum security conditions for the return of the victims. These safety conditions are seen primarily as a guarantee that the restitution of land will not put the victims in a susceptible position to further violence. From 2012 to April 2015 there were submitted more than 80,000 land restitution requests. Around 31,000 were continued because they were present in micro-focused areas. Of that number, only 11,129 were enrolled in the Registro Administrativo13. It means that the persistence of the conflict and violence prevents the implementation of the Act. In addition, approximately 80% of the refund claims are not admitted by the lack of previous records on the property or the lack of evidence of ownership. The slowness of the process is another factor that contributes to the low efficacy of land restitution measures14.

In 2015, the Colombian Constitutional Court ruled15 that the national government should draw up within six months a strategic plan for land restitution, covering the entire national territory for the return of all dispossessed buildings (despojados) within 10 years - provided on the Victims and Land Restitution Act - indicating how and how much the refund would occur.

The peace negotiations currently underway should mitigate the first difficulty (permanence of conflict and violence). In any case, the requirement of a national plan that takes into account the demarcation of conflict zones, expropriated or abandoned land is an important start. The regularization of land and buildings whose ownership cannot be identified will certainly be benefited by public policies for rural settlement and urban housing. Expropriation and collective actions can also help, as well as the creation of administrative bodies specifically focused on the subject.

The Victims and Land Restitution Act is very important and may have been the first initiative seeking effective response to victims. At the same time, it has a reactive and fragmented response. Therefore, it should be recognized as limited and lacking in continuous improvement.
3.2. The Peace Process and the Agreement on Victims of December 2015: The First Step to Effective Reparations
On August 26, 2012, began the talks that led to the General Agreement for the Termination of the Conflict and the Construction of a Stable and Lasting Peace. It has established an agenda based on six points: (i) comprehensive development policy; (ii) political participation; (iii) end of the conflict; (iv) solution to the problem of illicit drugs; (v) victims; (vi) implementation, verification and referendum16.

In the course of negotiations in Havana, a Declaration of Principles to the point of discussion 5 - on the victims - was established in order to satisfy the rights of victims to truth, justice, reparation and non-repetition of violence guarantees. Ten principles were established by the parties17:

1.      El reconocimiento de las víctimas: Es necesario reconocer a todas las víctimas del conflicto, no solo en su condición de víctimas, sino también y principalmente, en su condición de ciudadanos con derechos.

2.      El reconocimiento de responsabilidad: Cualquier discusión de este punto debe partir del reconocimiento de  responsabilidad frente a las víctimas del conflicto. No vamos a intercambiar impunidades.

3.      Satisfacción de los derechos de las víctimas: Los derechos de las víctimas del conflicto no son negociables; se trata de ponernos de acuerdo acerca de cómo deberán ser satisfechos de la mejor manera en el marco del fin del conflicto. 

4.      La participación de las víctimas: La discusión sobre la satisfacción de los derechos de las víctimas de graves violaciones de derechos humanos e infracciones al Derecho Internacional Humanitario con ocasión del conflicto, requiere necesariamente de la participación de las víctimas, por diferentes medios y en diferentes momentos.

5.      El esclarecimiento de la verdad: Esclarecer lo sucedido a lo largo del conflicto, incluyendo sus múltiples causas, orígenes y sus efectos, es parte fundamental de la satisfacción de los derechos de las víctimas, y de la sociedad en general. La reconstrucción de la confianza depende del esclarecimiento pleno y del reconocimiento de la verdad.

6.      La reparación de las víctimas: Las víctimas tienen derecho a ser resarcidas por los daños que sufrieron a causa del conflicto. Restablecer los derechos de las víctimas y transformar sus condiciones de vida en el marco del fin del conflicto es parte fundamental de la construcción de la paz estable y duradera.

7.      Las garantías de protección y seguridad: Proteger la vida y la integridad personal de las víctimas es el primer paso para la satisfacción de sus demás derechos.

8.      La garantía de no repetición: El fin del conflicto y la implementación de las reformas que surjan del Acuerdo Final, constituyen la principal garantía de no repetición y la forma de asegurar que no surjan nuevas generaciones de víctimas. Las medidas que se adopten tanto en el punto 5 como en los demás puntos de la Agenda deben apuntar a garantizar la no repetición de manera que ningún colombiano vuelva a ser puesto en condición de víctima o en riesgo de serlo.

9.      Principio de reconciliación: Uno de los objetivos de la satisfacción de los derechos de las víctimas es la reconciliación de toda la ciudadanía colombiana para transitar caminos de civilidad y convivencia.

10.   Enfoque de derechos: Todos los acuerdos a los que lleguemos sobre los puntos de la Agenda y en particular sobre el punto 5 “Víctimas” deben contribuir a la protección y la garantía del goce efectivo de los derechos de todos y todas. Los derechos humanos son inherentes a todos los seres humanos por igual, lo que significa que les pertenecen por el hecho de serlo, y en consecuencia su reconocimiento no es una concesión, son universales, indivisibles e interdependientes y deben ser considerados en forma global y de manera justa y equitativa. En consecuencia, el Estado tiene el deber de promover y proteger todos los derechos y las libertades fundamentales, y todos los ciudadanos el deber de no violar los derechos humanos de sus conciudadanos. Atendiendo los principios de universalidad, igualdad y progresividad y para efectos de resarcimiento, se tendrán en cuentan las vulneraciones que en razón del conflicto hubieran tenido los derechos económicos, sociales y culturales.
In Havana, the victims met with the government and the FARC to present their versions of the conflict. This was arranged so that the feelings of more than seven million victims of the conflict in the country could be expressed.18 Item six in the Declaration of Principles clearly establishes the duty of reparation to victims. In addition to unilateral measures that had been taken by the Colombian State (Victims and Land Restitution Act and recognition by the Colombian Constitutional Court of the unconstitutional state of affairs regarding internal displacement) from this Statement of Principles both parties acknowledge the duty to repair the victims19. So that repair is no longer solely the responsibility of the State and shall be shared by the other parties to the conflict.

Given the agreement on the reparation of victims, in December 2015 the Joint Statement 64 was held in which was signed the Acuerdo sobre las Víctimas del Conflicto “Sistema Integral de Verdad, Justicia, Reparación y no Repetición”20. This agreement establishes the combination of judicial and extrajudicial measures of reparation through “medidas que buscan asegurar la reparación integral de las víctimas, incluyendo los derechos a la restitución, la indemnización, la rehabilitación, la satisfacción y la no repetición; y la reparación colectiva de los territorios, las poblaciones y los colectivos más afectados por el conflicto y más vulnerables, en el marco de la implementación de los demás acuerdos. Con este fin, se fortalecerán los mecanismos existentes, se adoptarán nuevas medidas, y se promoverá el compromiso de todos con la reparación del daño causado”.

4. Reconciliation, Procedural Law and Unnamed Measures of Guarantee
4.1. Reconciliation, Indemnization of the Victims and Right to Effective Jurisdictional Enforcement
The full compensation of victims is presupposed by any transitional justice. In the Colombian case, it was let explicit in the Declaration of Principles that the victims' rights of redress is a fundamental part of building a stable and lasting peace. In other words, the Colombian reconciliation project depends on the full and effective reparations for victims.

There is no doubt, therefore, that the procedural law can contribute to reconciliation. But if reconciliation depends on the full compensation of victims, we must relate it to the fundamental right to effective judicial enforcement.

Suitable forms of indemnity are guaranteed by substantive rights, while reputable procedural techniques derive from the fundamental right to effective judicial enforcement. This perception is important to highlight that the forms of judicial protection of rights and the use of reputable procedural techniques, although they should be regulated by law, cannot be hindered by any Act or by its absence.

The victims of violence in Colombia not only have the right to redress. They are entitled to forms of indemnity of reputable protection of their rights. There is no use to assign rights without ensuring the availability of appropriate forms of enforcement for the protection of such rights21. Obviously, there is a great difference between having rights and being entitled to a specific enforcement of reparation and the reparation by the equivalent.

Either way, the forms of protection - such as specific indemnity - do not depend on the procedural law22. Forms of enforcement are corollaries of the substantive right. The existence of human rights has, as a consequence, the predisposition of the forms of indemnity protection reputable for those who suffered damage or violence, such as those committed during the Colombian conflict.

It is true that the victims have, when factually possible, the right to a specific form of reparation. In this situation, there is no way to give them indemnity protection by the monetary equivalent under the assumption that the reparation is being provided. When obtaining compensation in specific or in natural form is concretely feasible, there is no way to turn it into money to repair the victim. The priority of compensation in the specific form need not to be prescribed by law, as it derives from the very nature of the rights and the fundamental right to effective protection23. This means that when there is the right to restitution of land or of a despoiled building, one cannot pretend to compensate for the equivalent in cash in the event that the return to good ownership is factually possible.

It must be stressed that compensation in the specific form does not mean mere restoration of the situation prior to the offense, but the establishment of the situation that would exist if the damage had not occurred. When it is impossible to establish a similar situation to that which would exist if the damage had not occurred, but the establishment of the situation prior to the damage is feasible, or a situation that fulfills in part the need to its reparation, the compensation in the specific form must be coupled with compensation for the equivalent in cash24. That is, when the indemnity in the specific form is not sufficient to fully repair the damage, this requires the combination of the two forms of compensation. It does not seem that the restitution of land is sufficient to compensate victims; there will always be the need to add to the restitution an amount capable of fully repairing them.

However, the effective reparation of the victims also depends on forms of compensation that do not allow the establishment of the situation that would have existed if the damage had not occurred or indemnify in cash. As previously said, the Inter-American Court itself has called for measures such as the construction of monuments in memory of the disappeared, public apologies and dissemination of standards on human rights. These assumptions are also specific compensations, similar to the cases in which it determines the publication of the judgment or the news rectification to repair the damage25. Such forms of specific broad sense reparation are, especially when the damage cannot be subject to specific finding26, essential for the effective compensation of victims.

On the other hand, the procedural law has a duty to establish the procedural techniques to facilitate obtaining the protection promised by the substantive law27. That is, the procedural law should be concerned with the procedures and suitable techniques to reach the enforcement of rights. It is a State regulatory duty (of the legislature), whose fulfilment is essential for the protection of human rights28.

The establishment of procedures and procedural techniques are not given to the freedom of the legislator. He cannot establish any procedure or procedural technique; he has a duty to draw the procedural instrument suitable to allow the effective protection of the substantial right29. The legislature is not free to establish the procedural technique that, while allowing the protection of the right, does not allow the effective judicial protection of the right. There is no legitimate choice between greater or lesser effectiveness of procedural technique; there must always be elected the procedural technique that allows for the effective provision and protection of the right30.

Well so, the judge - who also has a duty to protect fundamental rights, including the fundamental right to effective judicial protection - cannot fail to provide effective jurisdictional enforcement for the absence of reputable procedural techniques under the law. Now, if fundamental rights have vertical effectiveness of the state and therefore also affect the judge31, the omission of the legislator obviously does not justify the judge32. If the fundamental right to effective protection requires that the court is provided with sufficient power for the effective protection of rights, the absence of a reputable procedural technique is a sign of insufficiency on the enforcement of effective judicial protection, which opens the opportunity for judicial review in the case33.

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