SUPREME COURT CRIMINAL APPEAL BOARD OF
Magistrate: Yesica Ramirez BASTIDAS
Approved Minutes No.
Bogotá, DC, four (04) of May two thousand and ten (2010).
VIEW:
the Board resolves the appeal lodged by the defender GIRALDO PATRICIA BROWN RELIEF against the sentence pronounced by the Criminal Chamber of the Superior Court of Ibague, through which the condemned, along with others such as co-author of the crime of rebellion.
FACTS AND PROCEDURAL ACTION:
1. By a complaint filed by Omair HERNANDEZ AGUILAR and reports of judicial police learned the Attorney General's Office to GIRALDO RELIEF PATRICIA BROWN and others collaborated with a faction of the guerrilla group Revolutionary Armed Forces of Colombia (FARC), being a part of militias whose headquarters the Department of Tolima.
From Processed said building as a Community Health Worker township of San Juan de la China, located in the municipality of Ibague, collaborating with the Front Tulio Varon supplying drugs, give first aid to wounded guerrillas, registering members of the group in Sisbén, transporting weapons and ammunition and guarding such materials in the health center.
2. After running the procedure in "mass arrests" GIRALDO RELIEF PATRICIA BROWN was investigated on September 7, 2004 and resolvérsele when the legal situation of the Attorney Ibagué Section Sixteen, 23 the same month and year was imposed security measure custody possible preventive and co-author of the crime of rebellion, supporting the decision statements OTONIEL JOSE GONZALEZ PINZON, OLGA LUCIA QUINTÍN QUINTERO, MAXIMINO LOAIZA and EDWIN RIVERA HERNANDEZ GUILLERMO ZAMORA. The injunction was suspended by the advanced state of pregnancy of the processed and a request for reconsideration filed against the same was denied.
3. Completed the instructional cycle and closed the investigation, on 8 March 2005, the Prosecution Section of Ibague Sixteen uttered against the defendant of an indictment as co-author of the crime of rebellion, a decision which had the internal appeals and appeal.
4. On April 11, 2005 broke the internal appeal provided, several defendants for the preclusion of the investigation and confirming the statement of objections in respect of others.
5. The appeal corresponded to solve the Fourth Fiscal Officer to the High Court of Ibague, who in order of May 31, 2005 confirmed the indictment against GIRALDO RELIEF PATRICIA BROWN and other defendants, apart from declaring a partial nullity for ERNESTO NIETO and ordering the preclusion of the investigation on behalf of JOSEPH ROMAN NIETO OSPITIA.
6. The RELIEF trial GIRALDO PATRICIA BROWN, RAMIRO LOZANO RUBIO, GILDARDO MEDINA SANCHEZ, JOSE LOZANO HOVER RUBIO, RUBIO MYRIAM LOZANO, CESAR FLOREZ ANTONIO SUAREZ GUILLERMO OROZCO and Villalba, process it corresponded to the second criminal circuit court of Ibague and on December 19, 2005, upon satisfaction preparatory hearings and trial, sentenced RUBIO RAMIRO LOZANO, JOSEPH and WILLIAM HOVER RUBIO SUAREZ LOZANO VILLALBA as perpetrators of the crime of rebellion and acquitted GIRALDO RELIEF PATRICIA BROWN, CESAR FLOREZ ANTONIO OROZCO, and MYRIAM GILDARDO LOZANO SANCHEZ MEDINA RUBIO.
7. Regarding the processed GIRALDO RELIEF PATRICIA BROWN said the lower court that the statements JOSÉ GONZÁLEZ OTONIEL GIRALDO PINZÓN, OLGA LUCIA QUINTÍN COWBOY and EDWIN GUILLERMO ZAMORA HERNANDEZ, not allowed to obtain certainty about the responsibility of the accused, resulting in similar situation to what happened to MAGDA Mayerly OSPITIA MONTOYA, Magistrate of San Juan de la China, so that the cooperation of the guerrilla group was not voluntary, appearing himself in the process demonstrated the causal exclusion of liability under Article 32-8 of the Criminal Code.
8. The decision of the judge of first instance was appealed by the defense of those convicted in search of his acquittal by the prosecution in order to get a conviction PATRICIA BROWN RELIEF and GILDARDO GIRALDO MEDINA SANCHEZ.
9. The Superior Court of Ibague, through the appeal ruling on appeal, issued on September 8, 2009, overturned the acquittal of GIRALDO RELIEF PATRICIA BROWN and condemned to sentences of 72 months' imprisonment and a fine of 100 minimum monthly wages , considering co-author of the crime of rebellion. In other confirmed the ruling of the court. The ad quem
dismissed the arguments of the trial judge and found that the evidence was sufficient process to establish the responsibility of the accused and dismiss the defense of liability asserted causal .
10. The defender of the accused filed an appeal against the decision of second instance, that faith granted by the Court and presented the corresponding term demand, which is why the matter was submitted to the Corporation.
DEMAND:
First post: Based on the causal third sentence of the accused have been handed a trial tainted by violation of the right of defense.
claimed the defender had no chance to cross-examine prosecution witnesses because they never appeared to extend their versions, which occurred because deliberately avoided the cross. Therefore
considered that the deficiency affects the action from the instructional stage, asked why the annulment of the closure process from research.
Second charge: the causal claimed first by presenting an indirect violation of the substantive law mistake of fact arising from false reasoning.
noted that the statements that supported the decision of conviction was discharged or demobilized and reintegrated, who appeared to process driven by bribes, coercion and legal and economic benefits. He added that such statements were read after preparation of the deponent by the servers assigned to security agencies State.
questioned whether the Court has given credence to Omair HERNANDEZ AGUILAR, when it admitted working as an informant for the National Police, which breaks the grounds of naturalness and spontaneity of their exposure.
ad quem noted that it did not assess the retractions of the witnesses who were part of subversion and now work in government intelligence agencies.
disputed terms OTONIEL JOSÉ GONZÁLEZ PINZÓN because even though claimed as ex-guerrilla, in fact it never was, as recognized by the Prosecutor.
highlighted the inconsistency of the witness because prosecutors did not even put under the name of the guerrilla who allegedly was the lover of the accused. He stressed that despite the significant role that gives the action in favor of the FARC GIRALDO RELIEF PATRICIA BROWN, not even mentioned by prosecutors in their opening statements but was referred to in subsequent exposures.
stressed that the witnesses who praised the good family and social behavior of the defendant, the existence of a relationship with a permanent and stable partner, and alarmed by the association that was done, as happened with the pastor of San Juan of China and an official of the Colombian Family Welfare Institute, were removed from interested and low credibility baseless.
concluded that the disregard of the rules of sound criticism led the Court unnoticed the existence of a conspiracy between authorities and rebels from the FARC, which prevented the application of Article 238 of the Criminal Procedure Code and the subsequent acquittal favor of the accused. Third
fee: Based on the grounds of appeal first claimed an indirect violation of the substantive law for lack of application of the rule imposing absolve the doubt in favor of the accused.
that the evidence pointed to the process do not have the strength to support the conviction enacted, because of them all uncertainty arises about the responsibility of GIRALDO RELIEF PATRICIA BROWN.
argued that in cases such as this, which include testimony suspect, must recognize the existence of the principle referred to in dubio pro reo.
claiming that case concluded the sentence and acquit the accused.
CONCEPT OF PUBLIC PROSECUTOR:
After the Chamber declared the application set on the formal aspects of First Deputy Attorney General for Criminal Appeals rendered concept as well: Cargo
first: He said no reason to pamphleteer assists because while the principle of contradiction is an integral element right of defense, is not limited to the possibility of cross-examine witnesses as they can be refuted by other evidence.
recalled that in 2000 the systematic assessment procedure probation is governed by the principle of permanence, which is that if a party to the proceedings was not involved in collecting it and then you may not be received back or expanded, establishing the possibility of new evidence and rebut their criticism in the space prior to the adoption of substantive decisions. Cargo
second, said that the charge could not succeed because the censor merely stated their particular point of view without showing the postulates sound criticism violated.
noted that no evidence showed that the cargo had been handled, and the possible romantic relationship between a detective who coordinated the research activities and the prosecutor, not tied to any opinion element aimed at linking so procedurally RELIEF unfair GIRALDO PATRICIA BROWN.
stressed that the alleged poor relations between the witness OLGA LUCIA QUINTÍN QUINTERO and processed will not be shown because it only alluded to the latter.
reference to the accused had several lovers stresses that only OLGA LUCIA QUINTÍN QUINTERO made reference to "Miller" no other versions appear in the process as indicated by the applicant.
said that the Court rightly held proven criminal involvement GIRALDO RELIEF PATRICIA BROWN in the crime of rebellion because the witnesses were consistent when he attributed the execution of some specific activities on behalf of the guerrillas, as the Sisbén arrange or provide health care to its members, buy medicines and deliver relevant information for subversive activities.
Third charge: He felt that the criticism built on the lack of application of the rule ordering rule in favor of the accused should not doubt succeed because it lacks support not being specified and discussed the evidence subject to assessment of proof wrong.
CONSIDERATIONS FOR THE COURT:
1. First post: The censor noted that he had violated the right of defense prevented during the process to be questioned by the defense to prosecution witnesses.
1.1. The Board notes that the main prosecution witnesses were given on the preliminary inquiry stage in the proceedings that is well known, is to establish the existence of crime and the possible perpetrators, ontological reason that prevents the presence of defense pending been determined who the possible perpetrators of the offense under investigation.
1.2. It is true that the principle of the full purchase on witnesses and ideally, for the sake of the finest material and technical protection of the rights of defense, is that in any case be taken to cross-examine certain personally and directly, by the accused and his counsel, but that desire often collides with reality, which teaches many exceptions, as when the witness dies, ill, vanish, change of place of residence is abroad or for any reason you are unable to attend the direct and personal debate.
1.3. Moreover, as recalled by the Public Ministry Agent, has been held that the right of contradiction is not based solely on the possibility of cross, the spectrum is much broader because it includes other media present in opposition to those put forth against, challenge decisions they value the evidence, among other options, which also involve the full exercise of contradictory possibilities were explored by the defense in this case.
1.4. In this case it is clear that a diligent defense required evidence, interviewed witnesses, prepared arguments at each stage of the proceedings and generally spoke in favor of the defendant, leading to the conclusion that fully exercised the right of defense and made clear the principle of contradiction of its own.
The charge fails.
2. Second position: This assessment is contracted to consider that the ad quem committed an indirect violation of the law by mistake of fact by false reasoning, a form of nonsense that is structured as a legally and regularly test the performance-related facility despite being appreciated by fallador in their proper context, factual, persuasive merit in the assignment violates the tenets of logic, laws of science or the rules of experience.
2.1. The error due to ignorance of the rules of sound criticism proposed by the pamphleteer, as aptly described by the Assistant Attorney General, was limited to a presentation on the particular point of view of the applicant's position and his confrontation with the views of second-degree collegiate court.
2.2. The plaintiff failed to establish the rules of experience, logic or science that might violate or ignore each of the criticisms that developed on issues discussed or referred to only accidentally in the process, the possible romantic relationship an investigator with the prosecutor, the disputes between witnesses and the defendant, or the claims of those who love it.
2.3. To prove the existence of false reasoning, has said repeatedly in the jurisprudence of the Board, it was necessary the pamphleteer evidence show that the reasoning on the basis of which the decision was built deviate significantly from reason and its findings are due only to the whim or liberality of fallador, where it is impossible to speak of false reasoning when simply presents an appreciation evidence that is not shared.
The charge is dismissed.
3. Third position: It is supported in derogation of the principle requiring judicial absolution when there is doubt about the responsibility of the accused.
3.1. Contrary to the claims and concluded by the Delegate of the Attorney General, the complainant reported the accusation on the basis of the first grounds of appeal second body, though not observed orthodox language to identify the defects, refined his argument of some inaccuracies, enough to articulate the proposition that path errors of rape.
3.2. The following discussion will focus on (i) establish the facts established, (ii) highlight the views expressed by the ad quem, then proceed to (iii) analyze and evaluate the evidence challenged to fix what is derived from them, taken whole and in particular way, and immediately (iv) determine the existence of the alleged evidentiary questions.
3.3. To determine the origin of the charge is taken into account the evidence provided to the process which in the opinion of the Board to suggest that in the sub are shown without question consider the following facts:
(i). In the village of San Juan de la China, in the municipality of Ibague, Tolima, since the mid-nineties began to present armed men who identified themselves as members of the FARC-EP.
(ii). The armed men stated to the community of San Juan of China and was known by the authorities that were part of the guerrilla columns Tulio Varon, Jacobo Prías Alape and Front st.
(iii). All members of the illegal group called rebels, but rebels who themselves are se encuentran conviviendo en campamentos y exhiben uniformes policiales o militares y armas, los que les permiten ser reconocidos por las comunidades en donde ejercen influencia; y otros miembros del grupo armado ilegal que actúan en la clandestinidad son los milicianos y los afiliados del PC3, encargados de prestar una colaboración esencial en cuestiones de logística e inteligencia al grupo rebelde y del desarrollo político del aparato de poder; y un tercer grupo es el de los auxiliadores, responsables de labores más accesorias y menos esenciales en los propósitos del grupo irregular .
(iv). La Estación de Policía instalada en San Juan de la China fue atacada y con motivo de ello retirada la presencia permanente que la National Police had in the area.
(v). The stay of the irregular and the continued implementation of activities by themselves, their "clearance" permanent and monitoring and enforcement of its rules of conduct, led the residents of San Juan of China to accept with resignation that living in a area described as "red zone."
(vi). The present investigation was initiated based on the complaint by Omair HERNANDEZ AGUILAR and reports prepared by various authorities, which were the product of intelligence and investigative work that included interviews with defectors and demobilized, and some irregular group of their victims. The declaration of the said Omair was received on 7 November 2002 and in the course of it made no mention GIRALDO PATRICIA BROWN RELIEF.
(vii). The first notice procedure that exists on a person named Patricia Giraldo as militia and health promoter gives OTONIEL JOSÉ GONZÁLEZ PINZÓN the April 23, 2004. Later speaking of Patricia N. as a nurse linked to the outlawed group to the role of caring for wounded comrades. The ELLES JOSÉ JHONYS demobilized Imitola said
PATRICIA
is distinguished fighter base, Tulio is the MALE nurse, she is acuerpadita, blanquita, Indian hair, and height of 1.64, was 19 years old, and MAXIMINO
Rivera Loaiza, who described similar features to those who narrated and OLGA LUCIA GONZALEZ PINZON, says she is the magistrate.
(viii). The GAULA reported that there was such a Magnory who worked as a nurse with the guerrillas. And the CTI said MAGNORY OVIEDO LOZANO was in charge of caring for wounded fighters.
(ix). The police report 176 of 26 March 2004, based on studies of intelligence makes a long list of alleged collaborators of the guerrillas of the FARC.
(x). OTONIEL statements JOSÉ GONZÁLEZ PINZÓN, Omair GIRALDO PINZÓN and OLGA LUCIA QUINTÍN VAQUERO, are only made to realize process collaboration GIRALDO PATRICIA BROWN RELIEF with the illegal armed group FARC and were taken as support of the decision of conviction.
(x). A-. It argues that the respondents OTONIEL JOSÉ GONZÁLEZ ZAMORA GUILLERMO PINZON and EDWIN HERNANDEZ, have been at one time guerrillas. Their quality of deserters or demobilized FARC is displaced or threatened by the same authorities to certify that such persons are not included in their lists of guerrillas demobilized, defectors or informants.
(x). B-. OLGA LUCIA PATRICIA QUINTÍN COWBOY said GIRALDO RELIEF BROWN was the woman known as "Miller, chief financial officer of the guerrilla column Tulio Varon, while teammate JOSÉ GONZÁLEZ OTONIEL processed PINZÓN reported that he walked with alias" Gerald. "
(x). C. - De JOSÉ GONZÁLEZ OTONIEL PINZÓN and OLGA LUCIA QUINTÍN Cowboys said that they were freeloaders, professional thieves, poor pay, working in the region as partijeros that the guerrillas used to coerce citizens region and never met them a link to the illegal armed group. Also reported were in the region until the middle of 2003, which said they had OLGA LUCIA JOSEPH OTONIEL killed, after which they disappeared.
(x). D-. In an official letter of 10 December 2004 the National Police headquarters in Ibague certified COWBOY QUINTÍN OLGA LUCIA ALEJANDRA ORTIZ LETICIA HERNANDEZ and did not appear registered in the database as partners against subversive groups, which was corroborated by law enforcement authorities Manizales and Armenia.
(xi). The once up in arms and now demobilized NARANJO LUIS ALFONSO CASTELLANOS, JOSE JHONYS ELLES Imitola, Lombard WILLIAM CASTLE, Leyer GARCÍA MURILLO, ARLEY GARCÍA MURILLO, JOSE GOMEZ FERNEY VILLAMIL and the alleged victims LETICIA ALEJANDRA ORTIZ HERNANDEZ, JORGE SAUL SANTOS SALAMANCA and MARGIE NATALY AMPUDIA SUAREZ, did not mention in his statements or linked to illegal groups GIRALDO RELIEF PATRICIA BROWN, despite having said that illegal and legal activities deployed in the San Juan de la China.
(xii). The statements of prosecution witnesses were general and vague in the first chance they got. Subsequently expanded and went into detail about the full names of people who collaborated with the illegal armed group and even gave data memory plates of vehicles used for this purpose.
(xiii). LETICIA HERNANDEZ ALEJANDRA ORTIZ told Omair HERNANDEZ AGUILAR, her mother keeps an affair with a police investigator named NORMAZA. He added in his statement that the law enforcement officer told him
had to testify against them all (referring to defendants in San Juan de la China) and said if I did not know the names and told me that Get in the statement.
(xiv). Said demobilized NARANJO LUIS ALFONSO CASTELLANOS, alias "Edwin" and nicknamed Chiquitin, that "one of the guerrilla fighter will not let him" have contact with the militants, despite several people mention to be collaborating with the guerrillas did not quote any of CHESTNUT PATRICIA GIRALDO RELIEF. Regarding access to drugs was that they bought at pharmacies LUIS MORENO.
(xv). MARTHA CECILIA ROZO, JANETH BLANCA GONZALEZ, DIANA CARDONA DEW, MYRIAM MORENO AMINTA Giovanny Garzon, said that the process was a person dedicated to serving the community, who did not know him any links with illegal groups and had a home he shared with his constant companion ALBEIRO OSORIO JORGE CASTILLO, data that are broadly corroborated by farmers, ranchers, merchants, drivers, teachers and residents of San Juan de la China.
(xvi). The processed narrated in his investigation OLGA LUCIA COWBOY QUINTÍN that abused one of their minor children and therefore made him a warning to improve his behavior because otherwise accrue to the Family Welfare, which was corroborated with statements by MARTHA CECILIA ROZO ALBA YANETH WHITE OSCAR GONZALEZ and JOSE SILVA MILLÁN.
(xvii). Informants or demobilized EDWIN GUILLERMO ZAMORA HERNANDEZ, ARLEY Leyer and GARCÍA GARCÍA MURILLO MURILLO, retracted their initial statements and claimed on their original charges do not really consisted anything, and clarified that the individuals identified as guerrilla collaborators in Actually they were also victims the conflict, when the accused had been identified as guerrilla collaborators by the simple fact of living in its area of \u200b\u200binfluence.
3.4. The Court found that GIRALDO PATRICIA BROWN RELIEF paid a voluntary partnership with the guerrillas and therefore there was not an insuperable constraint called alien. He noted:
Note that OTONIEL JOSÉ GONZÁLEZ PINZÓN-fl. Cdno 91. 2, Omair HERNANDEZ AGUILAR-fl. 110 cdno. 2 - and OLGA LUCIA QUINTÍN BAQUERO-fl. Cdno 116. 2 -, incriminating GIRALDO RELIEF PATRICIA BROWN, who was known as the health worker in San Juan of China and as collaborators of the guerrillas, noting that dealt to handle the guerrillas SISBEN of Health to assist those who need it, as also to attend to their wounded in combat. JOSÉ GONZÁLEZ highlights OTONIEL PINZÓN "in matters of medicine she buys here in Ibague because he makes, the same with the kidnapping, she uses the visits to the homes and makes the information it receives passes to the camps, it is Walter, Jhon Jairo, with RICARDO MOROCHA and when they were living here in Ibague them into weapons and ammunition .... "
also emphasizes QUINTÍN BAQUERO OLGA LUCIA, recalls "... she walks with guerrillas up and down, she was the wife of El Financiero MILLER Tulio Varon. This old intelligence ago here in Ibague, how it works in the SISBEN is provided to you at the health center is the guerrilla movement, since there are no troops .... " Becomes
blunt the signaling that these witnesses make GIRALDO RELIEF PATRICIA frequent contributor to the group as subversive referring categorically and circumstantial role within the organization, realizing that their performances were protagonists in the scenes described, so argued that contrary to what the lower court, the responsibility for the crime has no doubt.
3.5. The above arguments produced by the collegiate court did not consider series of questions and uncertainties generated by the statements and subsequent enlargement of the testimony given by JOSÉ GONZÁLEZ OTONIEL PINZÓN, Omair and OLGA LUCIA HERNANDEZ AGUILAR QUINTÍN BAQUERO, confronted each other and against other evidence collected in the investigation by the prosecution and trial before the lower court.
(i). Not explained, and probably why no mention is made that the complainant did not mention Omair HERNANDEZ AGUILAR in its complaint, the November 7, 2002, Giraldo RELIEF PATRICIA BROWN, and was in subsequent steps with amazing ability evocation-at-the unbelievable linked to the illegal armed group.
And you can not say that in this first opportunity no motive or reason to refer to the processed because when referring to the affiliations of guerrillas Sisbén reported that it took care Luis N. and ALFONSO SUAREZ. It was much later in a statement stating that the defendant performed such procedures for the guerrillas.
These subsequent exposure must register as suspicious that the complainant need names of people who did not remember the first time, extended the list of collaborators and guerrilla fighters of detailing each of their illegal activities, justified its collaboration with justice as mere performance of a civic duty and denied receiving any kind of collaboration or presentation by any governmental entity. Facing
told by this witness plays a crucial role militates against the credibility of the love affair that kept time with a public servant named NORMAZA, linked to the National Police, in charge of advance intelligence activities against the subversive group, and according to the statement by ALEJANDRA ORTIZ LETICIA HERNANDEZ, Omair daughter, met with reporters and offered them all the information he had to engage in the crime of rebellion to many residents of San Juan China. Nor was
Omair true that with their cooperation with the law only because they seek the common good to be part of the persons protected by the authority were receiving some benefits authorized by law, those who denied having received certainly believe that this lost value they claimed, situation that produces the effect of the collapse of its credibility precisely because so blatant lie in little can accept the rest of its manifestations.
And if the above is attached to LETICIA ALEJANDRA said that along with her mother intended to be a source of income its partnership with the Army, the CTI and the prosecution, spontaneity, autonomy and lack of interest their testimony loses all support, becoming suspect and worthless grounds by Omair HERNANDEZ AGUILAR.
(ii). Regarding the assessment of testimony given by QUENTIN BAQUERO OLGA LUCIA, there are circumstances similar to those set out previously that lead to give little credence to the accusation made against GIRALDO RELIEF PATRICIA BROWN. On the one hand
seriously affects the credibility of the deponent that he asserted that the lover was processed alias Miller, because in the process it was determined that PATRICIA RELIEF has a stable relationship with OSORIO JORGE ALBERTO CASTILLO, who at the time of expecting a child charges. This indicates that in his testimony OLGA LUCIA adhered strictly to a script that was presented by someone interested in the outcome of the proceedings, or simply lying about what they say they know of the accused or, ultimately, referring to another person and both the defendant is not responsible for the criminal acts attributed to him.
The last of the hypotheses is strengthened when it is found that as reported by the CTI MAGNORY OVIEDO LOZANO was in charge of caring for the wounded fighters, and as declared by JOSÉ ELLES JHONYS Imitola, for whom "Patricia" was a fighter base.
And the problem that existed before between and PATRICIA OLGA LUCIA RELIEF, arising from the abuse that the witness gives him one of their minor children, became a source of animosity from the first to the second, being elevated in this fact pattern that diminishes the veracity of the statements of witnesses who turned out to be of merit for the Tribunal. And
(iii). On the veracity of his narrative by JOSÉ GONZÁLEZ OTONIEL PINZÓN doubts are older.
On the one hand, is the only witness during the process Processed indicates that the guerrilla uniform, boots and pistol, a claim that results in a whole to be against someone who supposedly has the function of the militia, because meet this activity must proceed in a manner underground, hiding the identity and keeping a low profile.
Also, it appears that this character never became part of the guerrilla organization that has among its areas of influence the village of San Juan de la China, because those who knew him realize his condition partijero and farmer, his bad reputation not paying debts, bad neighbor status, his rowdy mood by raising false charges to get revenues to the guerrillas, and, most importantly, the consensus around that never were carrying weapons or uniforms that identify as a participant direct the activities of an illegal organization, a scenario that is reinforced the conflicting certifications issued by different authorities. From the above, what became clear is the presence of a person who takes advantage of the conditions of public policy that still affect many rural areas of the country, and who, seeking to solve their dire situation, go to the authorities to obtain benefits account of false testimony.
3.6. The Board states that in cases such as this, to get an approximation to the truth using as a means of statements of those who proclaim themselves as guerrilla defectors, informants or demobilized, it is necessary to consider the underground, and vertical partitioning as essential rules prevailing for the survival of the guerrilla groups.
is well known that throughout history the guerrilla organizations have had the secret as the main weapon that prevents or hinders the action of the State for destruction, subjugation or dislocation, so that confidentiality is to be the most successful strategies combat that allows them to preserve their organization, among others. And that purpose is not only mask the structure of the same opponents but civilians
Secrecy plays a protective role out, preventing the physical location of the organization is known by the State. And the partitioning, which operates as measure of internal organization, seeks to preserve the secrecy, the truth always appears divided, is known only to the extent of individual participation-militia fighter in the development of tasks. In case of successful action by the state ensures that the damage is not total but partial, which means that, for example, the arrest of one of its members does not affect other instances or cells, remain intact to continue developing all clandestine criminal activity.
This leads to look at it subject to the witnesses who declared in his statement on all matters of the clandestine organization, such as roads used for supplying and obtaining food, human sources that meet the logistical needs, vehicles used for the mobilization of members of the organization, the identity of the militants being part of the civilian population contribute to the cause, civilians who sympathize or collaborate with the actions of irregulars, trained personnel to meet the first aid of injured and illegal supply of arms and ammunition.
In considering what is told by witnesses that he served the Court for trial of liability against the defendant of the context is ignored, it disregarded the principles which govern the development of clandestine activities that run guerrilla organizations y se aceptó como cierto lo que resulta imposible a la luz de la experiencia: ninguno de los proclamados desmovilizados que declararon ante la justicia estaba en capacidad de tener toda la información que suministraron, lo que refuerza la hipótesis que derrumba sus exposiciones: fueron entrenados o aconsejados para que testificaran lo que narraron en el presente proceso.
La única condición para llegar a tener por ciertas o verídicas unas declaraciones testimoniales rendidas por desmovilizados, reinsertados o exguerrilleros sin mando o carentes de responsabilidades superiores , cuando sus exposiciones empece de ser tan extensas y coincidentes en tanto detalle, nombres y datos en general, la daría el hecho de que los individuos have been assigned to the same cell or subversive squad, which did not appear set to the process and that is conspicuous by its absence, which together with the questioning of the former guerrilla condition or has not been admitted group membership illegal armed makes witnesses is simply unbelievable or at least highly suspect.
3.7. The facts the Court stated as proven possible to establish that the Court erred in its evidentiary value because they favored a lack of consistency statements by witnesses and suspects expressed interested in the success of the task undertaken by the authorities aimed to show results against crime organized dismissing the copious testimony provided to prevent procurement of certainty about the responsibility of the accused in the crime area of \u200b\u200bprosecution.
3.8. From the above it follows that the analysis made by the ad quem for the legal issue was not raised to be a contrived argument that neglected to examine it from the context and because the entire collection, because no doubt to see the proven facts that the evidence charge does not serve to overcome minimal levels of uncertainty about the relationship of the accused concerning the crime charged.
3.9. The evidence provided the process does not catapult the existence of certainty on the participation and responsibility of the accused in activities contrary to existing constitutional and legal order, on the contrary, it appears that activities had to make PATRICIA RELIEF for the illegal armed group operating in San Juan de la China, have occurred due to power of intimidation by gunmen and fear that they produce on the members of the community who look vulnerable to an effective state action and in order to preserve their lives, personal safety and property, are compelled to meet orders are given from the overwhelming power of the illegal weapons exhibit.
3.10. In summary, and as evidenced in the paragraphs above, the ad quem by estimate flawed evidence failed to provide evidence that pointed to the processed uniquely responsible for the crime of rebellion against the military in the ranks of an organization set up against the current constitutional and legal system, because reliable and comprehensive assessment of those not allowed arrive at that conclusion, resulting imperative, then, as indicated by the first-degree fallador, favor GIRALDO PATRICIA BROWN RELIEF with the result imposed by the principle of in dubio pro reo, since the constitutional presumption of innocence that blanket can not be removed with the elements of conviction procedure in the process, why that the conviction of second instance is married, leaving in force the acquittal of first grade.
3.11. The result of the decision under review is to marry the defendant and left as the replacement ruling handed down by the second criminal circuit court of Ibague, of December 19, 2005. According to the above is acquitted GIRALDO PATRICIA BROWN RELIEF rebellion by the terms of the charge raised against the Attorney General's Office, a decision that imposes cancel the arrest warrant against him there.
A merit of the above, the Criminal Cassation Chamber of the Supreme Court, to administer justice on behalf of the Republic and by authority of law, and partially agree with the approach of the Agency,
RESOLVED:
1 °. Failure CASAR defendant, to abrogate the sentence handed down against GIRALDO RELIEF PATRICIA BROWN.
2 °. Therefore confirmed the acquittal of first instance handed down to them by the second criminal circuit court of Ibague.
3 °. By the secretariat of the Corporation, cancélese the arrest warrant outstanding against GIRALDO RELIEF PATRICIA BROWN.
4 °. DECLARE against the above remedies are not.
Cópiese, notifíquese be fulfilled, and returns to the Court of origin.
GONZALEZ MARIA DEL ROSARIO DE LEMOS JOSE LEONIDAS
Sigifredo ESPINOSA MARTINEZ BUSTOS ALFREDO GÓMEZ PÉREZ QUINTERO
J. AUGUSTO JORGE LUIS GUZMÁN IBÁÑEZ
MILANÉS Yesid QUINTERO RAMIREZ JULIO ENRIQUE BASTIDAS
Socha Salamanca ZAPATA JAVIER RUIZ ORTIZ TERESA NUNEZ
Secretary. ____________________
footer Notes:
strategic activity against illegal armed groups promoted and defended by the national government, but criticized by different international organizations described as violating the guarantees and fundamental rights.
For the same offense were also charged GABRIEL PEÑA MONCADA, JOSEPH PEÑA VIDAL MONCADA, RAMIRO LOZANO RUBIO, GILDARDO MEDINA SANCHEZ, ANGEL MORENO MARIA MELO, LUIS PRIETO EDISON MORENO, JOSÉ LOZANO HOVER RUBIO, Jose Roman, OSPITIA NIETO, MYRIAM LOZANO RUBIO, CESAR FLOREZ ANTONIO OROZCO, GUILLERMO ERNESTO SUAREZ NIETO and Villalba. And, the investigation of accused JESUS \u200b\u200bPEDRO MARTINEZ NIETO ALEXANDER TRIANA, DARNELLY CASTRO BONILLA, DAVID HEREDIA GUERRERO, MAGNORY OVIEDO LOZANO, RAMIRO DE JESUS \u200b\u200bHURTADO OSPINA, MAGDA Mayerly OSPITIA MONTOYA, EDGAR CUELLAR IBANEZ, CUÉLLAR MIGUEL IBANEZ, HEREDIA MARTINEZ and JOSE SEBASTIAN SILVA MILLÁN.
resolution of December 21, 2004 (Folios 105-108 notebook 8th).
were blessed with such a pronouncement Edinson MORENO LUIS PRIETO, MARÍA MORENO ANGEL MELO, GABRIEL PEÑA PEÑA VIDAL AND JOSE MONCADA MONCADA (Folios 26 to 60 of notebook 11).
Folios 22 and following the ruling handed down by the court.
made reference only to the testimony of OTONIEL JOSE GONZALEZ PINZON, OLGA LUCIA QUINTÍN COWBOY and EDWIN GUILLERMO ZAMORA HERNANDEZ (pages 49 to 51 of defendant fault.)
Folios 44 to 51 of the Court. Auto
February 5 2010. Received
the secretariat of the Board on March 25, 2010.
See Supreme Court, Penal Cassation, Judgement of October 2, 2001, filing 15 286.
Supreme Court, Penal Cassation, Judgement of August 3, 2005, filing 22 290.
Supreme Court, Penal Cassation, court of appeal June 26, 2002, filing 11 451 and 10 November 2005, filing 23 451, among others.
Resumption of expressions used by the Supreme Court, Penal Cassation, ruling on appeal of December 2, 2008, filing 29 091.
This is indicated by different reports submitted by the military authorities, police and judicial police, who are part of this process. CTI
Report August 4, 2004, pages 48 and following, co 4. See statements
Leyer GARCÍA MURILLO (pages 214-224 co 1), who pointed out that the militia and members of the Clandestine Colombian Communist Party are secret or working under cover, do not know each other and their identities are known only by commanders , and LUIS ALFONSO NARANJO (folio 46 CO 3), who notes that the guerillas fighters are not allowed to have contact with the militants. And as reported by ALEJANDRA ORTIZ LETICIA HERNANDEZ (folio 216 co 6) and Omair HERNANDEZ AGUILAR (Page 207 co 6), who explains the differences and activities that develop each other members of subversive groups.
events of March 30, 1998 (See the newspaper report of the sheets 95 and 96 co 3). MELO MARIA MORENO ANGEL
said San Juan of China is red zone (folio 120 co 8) and VIDAL JORGE PEÑA MONCADA (folio 81 co 8) said that since taking the guerrillas police station became the authority of the place. LUIS ENRIQUE RODRIGUEZ MOLANO noted that there is normally sells goods to members of the guerrilla (folio 24 co 7) and Pastor Sandoval said the guerrillas gathered to warn them that they sent in the region (Page 77, co 7). The CTI stated that "the inhabitants of the region should live and abide by the orders that dictate these criminals" (page 8 co 3).
This is an indictment expressly stated (page 188 and SSNIOC 9). And at pages 2 to 12 co 3 is said to have provided information on the following persons: Omair HERNANDEZ AGUILAR (offset program certified by the Victim and Witness Protection), LETICIA ALEJANDRA ORTIZ HERNANDEZ (daughter of the aforementioned), OLGA LUCIA QUENTIN BAQUERO (displaced by subversion), JOSÉ OTONIEL (companion of the aforementioned, demobilized guerrillas), Maximo Rivera Loaiza (moved) LEYER GARCÍA MURILLO (desmovilizado, instructor político de la subversión), ARLEY GARCÍA MURILLO (desmovilizado), JOSÉ FERNEY GÓMEZ VILLAMIL (desmovilizado), JORGE RAÚL SANTOS SALAMANCA (desplazado), MARGIE NATALY AMPUDIA SUÁREZ (desplazada), LUIS ALFONSO NARANJO (desmovilizado) y JHONYS JOSÉ ELLES IMITOLA (desmovilizado).
Folios 1-8 c.o. 1.
Folios 89-92 c.o. 1.
Ampliación de declaración de rendida por JHONYS JOSÉ ELLES IMITOLA el 31 de agosto de 2004, folio 145 c.o. 3. En el informe policial 176, de 26 de marzo de 2004, se habla de Patricia N., Promotora de Salud (folios 29 y 43 c.o. 1). El policial PEDRO NEL ORJUELA CASAS dijo que la referencia de "Patricia" gave OTONIEL JOSÉ GONZÁLEZ PINZÓN (f. 62 co 1)
Folio 119 co 1, and adds that his father's name is PEDRO NEL. (Page 120 co 1). Folio 81 co
6. Folio 245
co 8.
Judgement of the Court, pages 59-50. ANA GONZALEZ DOLORES MONTOYA
said he never heard that those were displaced (folio 174 co 8)
an official communication of December 9, 2004 an officer of the Battalion of Ibague Rooke reported that those persons not listed as informants or collaborators (f . 255 co 7), in the same vein, August 21, 2004 certified the CTI (first at pages 55-60 and then co 4 co 4 pages 84-89). It was not until January 18 2005 was reported by the Ministry of Defence JOSÉ GONZÁLEZ OTONIEL PINZÓN was demobilized from the August 22, 2003 (pages 182-185 co 8). Folio 116-117
co 1. Folio 134
co 1. OSCAR JOSE SILVA
MILLÁN told he was not paid some furniture that was supposed to attend and threatened to charge them with the guerrillas (pages 293-298 co 8). HUMBERTO RAFAEL Statements
RENGIFO DONATED (pages 49 and 262 of the co 7) and ANA MONTOYA DOLORES GONZÁLEZ (folio 174 co 8), among others. See statement
OSCAR MILLAN JOSE SILVA, pages 293-294 co 8.
Folio 52 co 8.
Folio 72 co 8.
Folio 92 co 8.
Omair HERNANDEZ AGUILAR in his detailed report of November 7, 2002, received by the Judicial Police Section Sijin, Ibague, made no mention PATRICIA RELIEF (Folios 291-298 co 8). AND EDWIN GUILLERMO ZAMORA HERNANDEZ in his testimony enlargement October 5, 2004 stated that it was not aware of any illegal activity by the processed (Folio 152 Chart 5).
This is, for example, Omair HERNANDEZ AGUILAR (Proceedings for October 27, 2004, pages 200-213 co 6), LETICIA ALEJANDRA ORTIZ HERNANDEZ (Proceedings for October 27, 2004, pages 214-218 co 6), JOSEPH OTONIEL GONZALEZ PINZON (statement of 23 April 2004, pages 89-92 co 1) OLGA LUCIA QUINTÍN COWBOY (statement of April 30, 2004, pages 112-117 co 1), JOSÉ GÓMEZ FERNEY VILLAMIL (statement of 3 August 2004, pages 255-257 co 1) and JORGE SAUL SANTOS SALAMANCA (statement of August 10, 2004, pages 263-266 co 1). Folio 289
co 8. Folio 46
co 3.
Folios 45 to 51 co 3.
Folios 276 to 277, co 4. Information
supported by the civilians in the processed data entered in the proceedings of capture (folio 258 co 3) and in the investigation (page 18 co 8). See statements
ANGELA GONZALEZ ROSA PEÑUELA (folio 28 co 7), NELLY PEÑUELA GONZALEZ (folio 30 co 7), MIGUEL ANGEL GUTIERREZ CORTEZ (folio 41 co 7) NUBIA S. HERRERA ROMERO (pages 42 and 45 co 7), LUIS EDUARDO DIAZ Aguillon (folio 52 co 7), GREGORIO CHÍA CHILD (folio 55 co 7 ) and BENJAMIN PÁEZ Polania (folio 274 co 6), among others. Folio 115
co 8. Folios 117-118
co 8. He told how a child
Olga Lucia was whipped with nettles and gave inn one night, leading the child the other day where PATRICIA relief, promoting health (pp. 293-294 co 8)
Declaration of 5 October 2004, pages 149 and SSNIOC 5.
Declaration of September 7, 2005, pages 10 et seq co 2 of the trial.
Declaration of September 15, 2005, pages 57 and SSNIOC 2 trial.
Folios 49 and 50 of the court of second instance. It is questionable
noted that the briefing of witnesses by public servants involved in the security agencies of the state is not an isolated or rare, as is clear from the ruling handed down on March 16, 2004 by the Circuit Criminal Court Guamo, Tolima (Folios 199 to 227 co 10). Folio 245
co 8. Folio 145
co 3.
Stresses the Board that, contrary to the claims of the Prosecutor, in the process if there is strong and true on the background described. See 3.2. (Xvi).
All original Marxist guerrilla organizations-Leninist-Maoist are governed by such organizational principles. To cite but one example, the researcher says CESAR AUGUSTO CHESTNUT the Clandestine Colombian Communist Party "in nature PC3 is closed, its members must undergo a rigorous selection process, with the obligation to maintain a low profile ... Just look at their statutes to understand the ... structure ... of a clandestine, compartmentalized FARC ... They define the Bolivarian Movement, a broad movement, without regulations, without discrimination ... The cores are based on the underground "(" Two structures functional "in http://www.semana.com/noticias-opinion-on-line/dos-estructuras-funcionales/105962.aspx (26/04/2010). The statement Leyer
GARCÍA MURILLO, guerrilla held in a jail, it's pretty descriptive on the subject.
full information of the activities undertaken by individuals belonging to illegal groups can not even supply their most important leaders. As evidence of this note that the leaders of paramilitary groups have requested to meet in prison with ratings as did some of their illegal structures to reconstruct the activities of illegal armed organization, and that such devices can be sponsored by , solidarity or acquiescence of state agents with full severity did not practice the rules of secrecy and compartmentalization, as it does with the guerrillas.
valuations are now essentially agree with the statement by the Supreme Court, Penal Cassation, in Case 2 December 2008, establishment 29091.
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