Ensayo: El Derecho a la Verdad
“ ¿Dónde estás?”, preguntó en silencio. “¿Dónde estás, alma de las cosas, escencia de lo visible, eternidad de las estrellas? ¿Dónde puedo buscarte para encontrarte, si estás prohibida, si te han desaparecido, si te han arrancado de nuestra fe, si han intentado borrarte de nuestra memoria?” 1
Estas preguntas Malinalli, seem today to the questions that millions of Colombians we have been doing for over five decades as a product of the strange fabric of our legal system that has allowed impunity, as Hernan Cortez horses, run over the right victims have the truth. This essay is a first thought, built from the legislative and constitutional framework on which iergue our legal system, referred to the rights they have, or rather that they are institutionally recognizing the victims in our country. In particular, the right to truth.
"Right to the Truth?, I asked one of my companions, Diak, a young displaced from their territories with whom we decided to decant a few years ago by the murky waters of this society entangled. I said yes, that since the Constitution and by law, the Colombian State considers that the victims have the right to Justice, truth and reparation. The issue becomes quite complex because the concept of truth, from his own thought, is not regarded as a right, nor is contemplated that there are some human rights. The task then was to share some aspects that I extracted from my interpretation to understand what we mean in Colombia when it comes to Right to Truth. A brief introduction, three doors and a final thought, make this brief text.
The Right to Truth
Chapter VI, Article 249, paragraph 7, the Constitution states that are functions of the Office among others (...) ensuring the protection of victims (...) and (...) The law shall specify the terms under which victims may participate in the criminal and restorative justice mechanisms (...). Limited to, the right to truth is not seen as a fundamental right but we can say that recognition is from 1991 as a result of the changes that are filled at constitutional change. Thereafter, the criminal law has been transformed to meet the new constitutional requirements, reviewing legal and jurisprudential tempered by the economic, social and political our country has experienced over the past nineteen years.
Although the memory of the right - or not right - Truth in Colombia is larger and is quietly living in testimony as Orlando Fals Borda, Eduardo Umaña Luna and Estanislao Zuleta among others, we occupies now review the current conditions in which victims can access to demand justice.
First door ...
Until 2002, the right of victims in criminal proceedings - Law 600/00 - was limited to a civil action to have a claim for compensation. It is clear that, despite the positive changes stemming from the 1991 Constitution, so far not considered that the victim had more rights than the compensation of its assets violated. A complex design when viewed from the perspective of a criminal policy which, by the public nature of criminal law, the state is the entity that becomes parte procesal en representación de la sociedad. Un asunto que por demás, me es difícil explicarle a Diákara y que me trae a la memoria mis clases de Filosofía del Derecho cuando se hablaba de la razón pública 2 . es decir: lo que es bueno para todos.
Con la sentencia C-228/02 la Corte Constitucional declara que la parte civil – la víctima – tiene no sólo derecho a la indemnización, sino también a la justicia y a la verdad, abriendo además la posiblidiad para su participación en las etapas preliminares del procesos en process equal to the accused. From this moment, the right to truth is recognized, at least formally by case law, but hardly be realized taking into account that in practice, little or nothing was done to understand what refierían the judges of the High Court when it argued the right to the truth.
Second door ...
The phenomenon of violence by armed groups and illegal armed groups in the name of the law, sparked in some organized sectors of society, be it workers, unionists, students, indigenous communities, or rural communities, religious institutions, human rights organizations and even political parties, which the American philosopher described as ""(...) human solidarity within each one of us something - our humanity essential - that resonates in the presence of that same in other human beings 3 . This exercise joint control and enforce the rights of victims and in particular the right to truth, got through the Case Review, the Court Const. T-249/03, it was clear that crimes against humanity not only injure heritage, but also destroy collective and individual legal rights as life, security, tranquility, dignity, peace and confidence. This compensation is not paid and requires a knowledge and uncover the causes of crime as a right of mankind to moral restoration, cultural and social development of its people through the Truth, overcoming the reductionist view of the state to pay its bills with a simple means of compensation.
with Diak think that people need their memory to survive and that the causes of their invisiblización, disappearance and displacement, can not be buried as the bodies of millions of people since the violent death whisper the truth of his destiny.
Third door ...
Access to justice for victims has progressed slowly over recent years. Blocks almost three decades, the victims have managed to increase their involvement in criminal proceedings. Today we face an adversarial criminal justice system of jurisprudence bathing guarantor but, despite the achievements of judicial precedent, remains on the periphery of the core of the process.
results of my readings of both the Judgement C-209/07 and Efraín Cerón book "The Victim in Criminal Colombiano 4 I make clear that the rights of victims in Colombia have been adjusted as a result of at least two conflicting forces and no confluent. On the one hand the state guidelines for impementación of a criminal policy that addresses minority interests and, secondly, the continued commitment of social actors struggle for recognition of Human Rights. The right to truth is a good example of this reciprocating jurisdiction in which it is clear that he has jealously guarded the victim approaching the different stages of criminal proceedings, but ended the possibility of becoming part of the same material.
Reza the Prinicipio of Truth Procedure that Judge rules under which the parties have proved in the process. And it also provides that the court is bound to the Truth Procedure even though it is counter to the material truth. Then a definition essay for my friend: The Truth is the result of a conflict of legal arguments and factual evidence, discussed between the strict boundaries of prior procedures established by law, and where each person known by it, its specific role and acts on opportunities to be down for it. The test is the vehicle that provides certainty and leads the judge to order his conviction for failure.
How then the victim can demand the right to the truth when the hearing of the trial is not allowed to independently present the theory of the case nor contovertir the test? If at that point in the proceedings in which the Truth is set, it is very likely that initial strength of the minority interests have a privileged place to set up a convenient truth. Not because the system has given the category of "special intervener" to victims and has expanded its participation in the research and investigation and hearings in Transition, means it has the same terms as the defendant. Consequently, even today, after the decree in Case C-209/07, the victim is not party to the proceedings.
When I decided to take the chair of Victim Rights, a feeling of helplessness and sadness approached me in the first session. Maybe, I thought, because in my job I have had contact with people from different regions of the country than in their everyday lives, around a campfire and sharing a red sugar cane, have told me their stories of violence and displacement traversed. Perhaps also because some of my colleagues who are now roads and dreams, have racked, each from its shore, bloody trails where fear and forgetfulness have been planted to stay and bury the memory. Or maybe because I have not managed to resolve questions such as Eduardo Galeano leaving planted in this new century:
The mirrors are full of people. / The invisble we see / The Forgotten remind us. / When we meet, we see them. / When we go, do you go? 5
2 von Ihering, Rudolph. The Struggle for the Right. Bogotá, Judiciary and Democracy Series, 2007. 25 p.
3 Rorty, Richard. Contingency, Irony and Solidarity. Barcelona, \u200b\u200bEditorial Polity Press, 1991. 207 p.
4 CERON, Ephraim. Victims in Criminal Proceedings Colombiano. Bogotá, Ediciones Doctrine and Law, 2008.
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