Análisis de las modalidades de reparación integral de las víctimas del conflicto armado en Colombia con relación a los principios de Joinet.

Abstract

We have suffered a lot, we have cried a lot; we have felt the blow of the murderous hand, the pain of widows and orphans, the helplessness of the dispossessed and we have the challenge, the obligation, the longing, to shake off the ashes and continue the journey. Juan Manuel Santos (Instituto de Estudios para el Desarrollo y La Paz [INDEPAZ], 2011, para. 9). The previous sentence was pronounced in the act of sanction of the Law of Victims and Land Restitution Law 1448 in 2011, which is taken at the beginning of this work, since it describes the process of violence that the country has suffered for decades, but also challenges the State to comply with the obligations it has towards the victims and the community to look forward and to continue making country. This is how the theme of this work to be developed is related, which aims to analyze what has been the progress of the Integral Reparation of Victims since the signing of the Peace Agreement, reviewing the different modalities of reparation established in the country based on what was developed by Luis Joinet and its principles, in order to determine the progress and shortcomings of the same and analyze the bets that can be improved so that the victims of the armed conflict have better guarantees and the State can guarantee the fulfillment of their rights. That said, it is stated that any State that considers itself to be of law, in compliance with international and national regulations, is obliged to take the necessary measures so that they make full reparation for the victims. In order to link this obligation to the Colombian State, as a Social and Democratic State based on the law, it has as its international basis what was stated by the United Nations Organization in the General Assembly through Resolution 60/147 of March 21, 2006, which "adopted the Basic Principles and Guidelines on the Right of Victims of Gross Violations of International Human Rights Standards and Violations serious international humanitarian law to file remedies and obtain reparations" (Trilleras and Rojas, 2014, p.15),, which allows victims of the armed conflict to access justice and comprehensive reparation through different mechanisms such as restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition (Trilleras and Rojas, 2014, p.15). This has been accepted in its jurisprudence by the International and National Courts, such as the Inter-American Court of Human Rights, the Colombian Constitutional Court and the Council of State, Administrative Litigation Chamber, Third Section, a circumstance that makes it binding in the domestic legal system . In the Colombian case, the right to reparation is the backbone of the Final Agreement signed by the National Government and the FARC-EP, creating the Integral System of Truth, Justice, Reparation and Non-Repetition -SIVJRNR-, where the victims of violence become an important plane of the internal armed conflict, being the main axis within the negotiations, to guarantee them a comprehensive approach to justice, truth and reparation, through the parameters of transitional justice, so that there is no setback within the Colombian legal system. The different investigations that have been developed on the subject have indicated that complementarity between truth, justice and reparation is indispensable, the latter being really important so that victims feel integrally repaired and not revictimized. It would be wrong to obtain reparation and leave aside these two rights, truth and justice, however, in Colombia these have not been guaranteed in their fullness since they have presented failures in their development, in their structure, in the institutional and political procedure, carrying impunity to the victims of these great violations of human rights, and that in the end they feel unrepaired (Villa et al, 2015, p. 2). Likewise, it has been pointed out that integral reparation must be global in order to give full recognition of the damage caused to the victim, accessing different restorative, retributive and compensatory measures, in order to guarantee the full effective enjoyment of the transgressed rights of the victims, and if their reparation is not possible. Compensation through pecuniary measures for the damage caused is appropriate. Apart from restitution and compensation measures, reparation should also include "rehabilitation, satisfaction and guarantees of non-repetition" (Villa et al, 2015). Taking into account the above, and after the unsuccessful processes that each of the modalities of integral reparation to the victims has generated, this investigation aims to resolve the following legal problem: After the signing of the Peace Agreement between the National Government and the FARC guerrillas, are the normative and jurisprudential advances developed in Colombian domestic law sufficient, regarding the different processes of integral reparation to the victims of the armed conflict in Colombia, based on the principles of Joinet?. To resolve this question, the general objective is to analyze the different modalities of integral reparation existing in the country, to determine what has been its progress since the signing of the Peace Agreement. The following specific objectives are: (i) To analyze the current context of the victims in the processes of the different modalities of integral reparation and their progress after 5 years of the signing of the Peace Agreement; (ii) Analyze the current regulations regarding Integral Reparation to the victims of the armed conflict in Colombia versus the principles of Joinet; (iii) Establish the shortcomings in the processes of the different modalities of integral reparation of the victims of the armed conflict to propose a possible improvement plan. It is hypothesized in this paper that the progress achieved in the last five years after the signing of the Peace Agreement is not sufficient in terms of restoring the rights of victims, specifically in comprehensive reparation, being necessary to propose an improvement plan so that the victims of the armed conflict are facilitated and guarantee the integral restoration of all their rights. This document is structured from a descriptive method, carrying out a bibliographic and hermeneutic review to analyze the background that has been developed by several investigations, serving as a basis for determining the problematic factual and legal situations that are constituted as a starting point. As a result of the development of this argumentation that supports the central purpose of the study, all the other components are deployed, including the conceptualization of definitions such as: Victim, Transitional Justice, Restorative Justice and Integral Reparation that lead jointly to the analysis of the different modalities of integral reparation such as: Reparation by Administrative Means, Reparation by Criminal Means, Reparation before the Special Jurisdiction for Peace and Reparation through the Jurisdiction of the Contentious Administrative, which are currently being applied and developed in the country in order to determine progress and shortcomings of the same. It should be noted that the modalities that will be analyzed in this study are those that were developed from the normative and jurisprudential point of view in domestic law and within a period from 2016 (Signing of the Peace Agreement) to date, however, it cannot be ignored that the victims of the armed conflict have the possibility of going to international instances such as the Inter-American Commission on Rights. Humans and the International Court of Human Rights, entities that have the power to order the Colombian State to make reparations to victims of the Colombian armed conflict, when their protectable legal assets are injured, a modality that will not be addressed in this investigation. In the second part is contained the normative framework where there is an outline of the legal scaffolding that has currently been legislated in favor of the protection and vindication of the victims of the armed conflict in the country around the integral reparation that is the object of this investigation and in turn a jurisprudential analysis is carried out in the light of the pronouncements of the high courts also supported by international jurisprudence of the Inter-American Court of Human Rights and the International Criminal Court that consolidates the constitutional bloc who have issued outstanding rulings for the protection of the rights of victims in the country. Subsequently, a theoretical perspective on Transitional Justice is related from the concept of Professor Kai Ambos, who makes an interesting analysis on the implementation of this framework in the country and highlights the differentiating points that have framed this process in order to comply with the essential purposes of it. Finally, the last chapter will contain the results of the analysis carried out throughout the development of the work, taking in the first instance the responses of the rights of petition requested from the entities linked to the processes of integral reparation in order to establish their competences in front of the process with the victims, review of the budgetary allocation and execution of this against the compensations made from 2016 to the first semester of the year 2021, to later specify the shortcomings of the different modalities used for the integral reparation of the victims of the armed conflict, propose a proposal for improvement and establish the conclusions of the work.