US embassy cable - 05BOGOTA1705

UNCLAS SECTION 01 OF 02 BOGOTA 001705 
 
SIPDIS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: KJUS, PHUM, MOPS, CO, Military Justice, Human Rts 
SUBJECT: MILITARY JUSTICE TAKES FIRST STEPS TOWARDS REFORM 
 
REF: BOGOTA 0839 
 
1. Summary: Director of Military Justice Brigadier General 
Puentes has proposed a two-phase reform strategy to present 
to Congress in March and July of this year.  While the plan 
does not establish an independent body outside of the 
Ministry of Defense, it does attempt to overcome recurring 
complaints of military impunity and prevent a collapse of the 
system from service misbehavior hearings.  Specifically, the 
plan calls for: (a) the establishment of an administrative 
process for service-related misdemeanors; (b) the conversion 
of military justice procedures to a purely accusatorial 
system; and (c) the creation of a military criminal 
investigative corps.  Puentes has chosen to shelve a 
constitutional change that would give the military justice 
system jurisdiction over all cases involving the Armed Forces 
acting in operations.  The change could spark controversy 
when and if it is presented.  End summary. 
 
2. Over the last month, Director of Military Penal Justice 
Brigadier General Jairo Puentes and his team have developed a 
detailed plan to reform the military justice system. 
Puentes' document outlines 30 day, 60 day, and 90 day goals 
to reduce case backlog and present a legislative reform 
proposal to Congress.  Unlike previous plans, it assigns 
deadlines and specific responsibilities to offices.  Emboffs 
told Puentes that his plan was an important first step in 
improving the military justice system, but cautioned that 
critics would be quick to find fault if reform did not 
produce noticeable improvements soon. 
 
3. At the recommendation of independent Colombian legal 
advisors, Puentes said he planned to present a few reforms in 
March, but would postpone the introduction of "phase two" 
reforms until the July congressional session.  His plan 
would: (a) establish an administrative procedure for 
addressing routine military misdemeanors; (b) reform the laws 
governing the military justice system to return it to a 
purely accusatorial system; and (c) create a military 
criminal investigative body.  Puentes commented that reforms 
presented in March would "test the waters" with Congress and 
prompt opponents to present their arguments before the more 
important, phase two reforms were made public.  He added that 
the more involved changes would probably take a full session 
of Congress to debate, therefore he wanted to present his 
plans in July, when Congress begins the new session. 
 
4. The major reform proposed for March would establish an 
administrative procedure to handle cases of routine service 
crimes.  The current military penal justice code requires all 
crimes go through a fact-finding hearing and a trial in an 
appellate body.  Puentes hopes that a "fast track" for 
victimless service misdemeanors will allow the system to 
focus its resources on more important criminal cases. 
 
5. "Phase two" reforms proposed for July would return the 
military justice system to a purely accusatorial one and 
create an investigative body.  If approved by Congress, the 
changes would allow the military justice system to process 
cases more quickly than is possible with current written 
procedures.  The creation of an independent military 
investigative body would likewise help judges process 
evidence more effectively.  Military Justice does not have an 
independent lab or investigative branch, so individual judges 
have to collect evidence or request assistance from the 
Fiscalia's criminal lab, which has routinely been refused for 
crime scenes in conflict areas.  A criminal lab with mobile 
kits would eliminate the uncertainty of evidence processing 
and reduce the frequency of crime scene tampering. 
 
6. Puentes said the phase two reforms were more critical than 
the March changes, so he planned to give them a greater 
chance of success by allowing more time for discussion and 
debate.  He told Emboffs that he believed NGO activists and 
leftist politicians would be reluctant to accept any of the 
changes as proposed.  He alleged that the military had been 
the victim of NGO hostility in 2000, when the military 
justice system was switched to an inquisitorial procedure 
without administrative hearings, and pledged that the 
military would have a better plan this time to counter their 
efforts. 
 
7. A plan that Puentes shelved indefinitely earlier this 
month proposed an amendment to Article 221 of the 
Constitution.  He told Emboffs that the amendment was 
controversial and could endanger the other reform draft 
legislation.  As drafted, the constitutional amendment would 
specify that the Military Penal Justice System would review 
all members of the military and police charged with 
wrongdoing while participating in an official operation. 
Puentes stressed the importance of legal clarity for members 
of the Colombian military and police, given the increased 
tempo of military operations against the Revolutionary Armed 
Forces of Colombia (FARC).  He argued that every operation 
carried with it the risk of accusations of mistakes or 
criminal behavior, and stressed that the law had to offer 
some protection to members of the Armed Forces.  Puentes 
remarked that the change would also limit the frequency of 
jurisdictional disputes with the Prosecutor General's Office 
(Fiscalia).  An unofficial translation of the proposed 
amendment follows: 
PROPOSED REFORM TEXT: "Courts martial or military tribunals 
will hear cases of crimes committed by active duty members of 
the public forces that are related to, occur because of, or 
under the circumstances of military or police operations, 
consistent with the prescriptions of the military penal code. 
 Such courts or tribunals will be made up of active duty or 
retired members of the public forces." 
 
ORIGINAL TEXT: "Courts martial or military tribunals will 
hear cases of service-related crimes committed by active duty 
members of the public forces, consistent with the 
prescriptions of the military penal code.  Such courts or 
tribunals will be made up of active duty or retired members 
of the public forces." 
 
Note: "Public forces" in Colombia include police forces as 
well as all military branches. End note. 
 
8. Comment: Most of Puentes' proposals are positive and would 
move the military justice system in the right direction. 
However, his proposal for a constitutional amendment, which 
he is putting on hold, could potentially expand the 
military's legal jurisdiction over human rights cases by 
mandating that it cover all crimes "caused by or under the 
circumstances of" military operations.  As the law now 
stands, military courts can only hear cases of 
"service-related" crimes, and the Constitutional Court has 
ruled that human rights crimes cannot be considered 
service-related.  We will continue to press the Ministry of 
Defense and Puentes to create a system that delivers credible 
findings to ensure expeditious justice for both the innocent 
and the guilty.  End comment. 
DRUCKER