August 2020 brought a ruling without precedent; the Supreme Court of Justice ordered an arrest warrant against Álvaro Uribe Vélez for alleged procedural fraud and witness tampering. PBI spoke with Reynaldo Villalba of the José Alvear Restrepo Lawyers’ Collective about the background on this case, the pressure and threats against the Court, Uribism’s proposal to unify the courts in Colombia, and other open cases against ex-President Uribe.
Why did the Supreme Court order Uribe’s house arrest?
As human rights defender and Senator Iván Cepeda Castro’s lawyer, Reynaldo Villalba has accompanied this case against the ex-president since it began. In 2012, ex-President Uribe filed a complaint against Cepeda for prison visits that allegedly sought out false witnesses. In 2018, the Supreme Court archived the case against Cepeda and, instead, ordered Uribe’s investigation for alleged procedural fraud and witness tampering. On 3 August 2020, the high court’s Arraignment Chamber ordered Uribe’s house arrest, which implies an arrest warrant against him. According to the high court, this decision was made after “a rigorous legal review” of the case’s procedural elements. The file showed “possible risks for the obstruction of justice regarding the future collection of evidence on alleged criminal incidents that involve Senator Álvaro Uribe.”
PBI Colombia: “Our Political Commitment Keeps Us Alive,” Reynaldo Villalba (12 August 2020)
“When the house arrest ruling was announced there was a strong reaction from Uribe supporters, attacking the Supreme Court of Justice, seeking to discredit the Court and paint Uribe as a victim of political persecution,” states the lawyer. Once under house arrest, “Uribe continued his attacks against the Supreme Court saying that he had been kidnapped by the Court, that he had been imprisoned through a “gangster procedure.” What we see is a permanent attack on the administration of justice,” concluded Villalba.
“It is common for Senator Uribe Vélez to attack the public prosecutors and judges who investigate him or those close to his political circle.” For example, when Mario Uribe, the ex-president’s cousin, was charged and convicted for ties with paramilitaries “there was a wave of attacks against the Supreme Court of Justice,” says Villalba and he adds that this happened while Uribe was president. “He used the Department of Administrative Security (DAS) to carry out illegal intelligence against the Supreme Court of Justice, with the aim of prosecuting justices and discrediting the case.”
“It is common for Senator Uribe Vélez to attack the public prosecutors and judges who investigate him or those close to his political circle.”
In relation to this process, Senator Uribe has attacked the justices who are investigating him. The attacks and the attempt to discredit the court continued while he was under house arrest at his Ubérrimo ranch. According to the lawyer’s analysis, “provoking disrepute and a loss of prestige for the Supreme Court of Justice is a way of generating a negative concept of the administration of justice within society, which constitutes impeding justice.” He states that what is happening now is not new; “it is the ongoing application of this practice, discrediting and using smears to attack the administration of justice, through defamatory, smear, and lie campaigns.”
Uribism’s proposal to unify the high courts in Colombia
The Uribe political movement or “Uribism” made statements against the Supreme Court’s Criminal Chamber. According to Villalba, Uribism accuses the justice system of “being useless, biased, and of persecuting the ex-president.” Hence, an old proposal of Uribism resurfaced that “seeks to ensure impunity,” maintains the lawyer. The proposal is to unite the high courts into one, that is to say, “eliminate the Supreme Court of Justice, the Constitutional Court, the Council of State, and the Special Jurisdiction for Peace,” explains Villalba. The lawyer assures that behind this proposal from Uribism is “the aim of guaranteeing impunity for many responsible for serious human rights violations and crimes against humanity. The aim is to achieve a total manipulation of the administration of justice.” For the lawyer, the courts that currently exist in Colombia provide hope for impartiality and respect for rule of law . Although it is true that Colombia requires deep-seated reforms to the judiciary, they must be reforms that guarantee increased independence in the judicial branch, states the lawyer.
Behind the proposal from Uribism is “the aim of guaranteeing impunity for many responsible for serious human rights violations and crimes against humanity.”
The case is transferred to the National Prosecutor General’s Office
On 1 September 2020, the Supreme Court of Justice confirmed that Uribe’s case will be transferred to the jurisdiction of the National Prosecutor General’s Office. Until then, the Special Arraignment Chamber of the Supreme Court had the jurisdiction to investigate Álvaro Uribe, given that the court is responsible for investigating members of Congress.
With Uribe’s resignation from his Senate seat, the Prosecutor General’s Office took on the case. “Uribe surely made calculations with his lawyers and decided to avoid a situation where the Supreme Court would try him,” suspects Villalba.
Villalba respects the Court’s decision even though he doesn’t agree. “I believe that the Supreme Court of Justice had the arguments to maintain its jurisdiction in the investigation of the former senator, even if he had already resigned, because the law allows the Court to maintain its jurisdiction as long as it can demonstrate that the crimes were committed while the individual was performing their duties. And, based on my criterion, effectively the crimes for which he is being investigated have been committed in the performance of his functions, using employees within his legislative staff team (UTL in Spanish) and even with the participation of another congressman, Representative Álvaro Prada. In my opinion the Court should maintain its jurisdiction in this case. In fact, while deciding which procedural system should be applied to the case after its tranfer to the Prosecutor General’s Office, a Supreme Court Justice presented a dissenting opinion that the case should be returned to the Supreme Court.”
“I believe that the Supreme Court of Justice had the arguments to maintain its jurisdiction in the investigation of the former senator, even if he had already resigned, because the law allows the Court to maintain its jurisdiction as long as it can demonstrate that the crimes were committed while the individual was performing their duties.”
Villalba is concerned that the case is in the hands of the Prosecutor General’s Office. “We all know that the Prosecutor General is an intimate friend of President Iván Duque. Also, the media made public that the prosecutor assigned to the case, Gabriel Jaimes Durán, has favored individuals involved in parapolitics and corruption cases, impeding some investigations. This news causes us great concern as it indicates that we will be facing a scenario that lacks the principles of impartiality and independence. We petitioned for the Prosecutor General and Prosecutor Jaimes to be removed from this investigation, but the petition was denied.”
In addition to changing the investigating body, there has also been a change in the procedure to be applied: it is no longer the law applied by the Supreme Court, Law 600 of 2000, but is now Law 906 of 2004. This change signifies serious impacts on victims’ rights, as it further limits participation in the case. In addition, the evidence collected by the Supreme Court loses its status as such and will be disregarded by the Prosecutor General’s Office.
The most serious element thus far is that the arraignment judge accepted the defense’s request to revoke the ex-president’s house arrest. The defense argued that the order lost its validity since the law now being applied to the case indicates that a measure of this kind must be based on a prior indictment.
According to Villalba, “as victims we consider that this decision invalidated the legitimacy of the deposition and the custodial sentence issued by the Court against the ex-president. As victims we argued before the Arraignment Judge that an appropriate decision would adapt the procedural system to maintain the validity of the Supreme Court’s decisions, according to the evidence which has sustained this process for over 12 years.”
Beyond the ex-president’s freedom, the decision could have deep-seated and adverse consequences on the criminal justice system and legal security. Villalba explains, “besides disregarding jurisprudence that establishes that a transfer from one procedural system to another must be resolved by adapting the procedural phases and conserving the validity of actions within the previous procedural system; it is also concerning because, in the future, those processed by the Supreme Court could avoid these investigations and rulings by simply resigning from their seat in Congress. In other words, Supreme Court investigations lose their effectiveness and solid foundation, since resigning is sufficient to undermine decisions, as happened in this case where the provisional arrest order was considered invalid because of Uribe’s resignation, as well as generating a change in the procedural system. In the future, it could be sufficient for the accused to resign from Congress to evade the Supreme Court of Justice as the corresponding judge.”
“I can say that the most important cause of impunity in Colombia, regarding the most serious crimes, is the lack of political will to investigate crimes in a serious and committed fashion.”
According to Villalba, in this scenario the victims face increased limitations on participation compared to the previous procedural system, and this is a process where, generally, the public prosecutor in charge of the investigation does not listen to the victims. Often the Prosecutor General’s Office becomes an obstacle instead of facilitating truth and justice; a situation that explains in large part the fact that impunity is close to 100% for serious human rights violations. He continues, “I can say that the most important cause of impunity in Colombia, regarding the most serious crimes, is the lack of political will to investigate crimes in a serious and committed fashion.” In relation to human rights violations there is a impunity policy that condemns the investigations to fail before they begin. When the facts or responsibilities are very evident, the impunity policy looks to protect the maximum responsible parties through the justice system. The case of extrajudicial executions, known as false positives, is a clear example of how there is not an attempt to investigate the maximum responsible parties, and this happens in general with all serious human rights violations.”
What could happen with other cases against Uribe?
Ex-President Álvaro Uribe Vélez has other investigations against him at the Supreme Court of Justice, some of them are related to crimes against humanity, such as the El Aro massacre, and the homicide of human rights defender Jesús María Valle. Several of these investigations are being sent to the Prosecutor General’s Office as a result of his resignation from Senate. The ex-president also has several dozens of investigations before the Accusations Commission for incidents committed while he was president of the Republic. For Villalba, “the Accusations Commission is conformed by some members of the House of Representatives whose investigations never conclude in accusations, that is to say, the Accusations Commission is a haven for impunity that must be eliminated in a judiciary reform. The ex-president has wanted the Prosecutor General’s Office of the Nation to take on the investigations of crimes that allegedly involve him. Society is left waiting to see what will happen.”