CHAPTER VIII
Rights of victims with respect to the Administration of Justice
Article 37. Rights of the victims. The State shall guarantee victims’ access to the administration of justice. In developing the foregoing, the victims shall have the right: 37.1 To receive dignified human treatment throughout the procedure.
37.2 To the protection of their privacy and guarantee of their security and that of their family members and witnesses, whenever they are threatened.
37.3 To prompt and comprehensive reparation for the harm suffered; the perpetrator or participant in the crime shall be responsible for making such reparation.
37.4 To be heard and to receive facilitation for contributing evidence.
37.5 To receive information relevant to protecting their interests from the first contact with the authorities and in the terms established in the Code of Criminal Procedure; and to know the truth of the facts that constitute the circumstances of the crime of which they have been the victims.
37.6 To be informed of the final decision in the criminal prosecution and to pursue remedies when they are available.
37.7 To be assisted during the trial by an attorney of one’s trust, or by the Procurator General’s Judicial Office addressed in this law.
37.8 To receive comprehensive assistance for their recovery.
37.9 To be assisted at no cost by a translator or interpreter, in the event of not knowing the language, or not being able to perceive language through the sensory organs.
Article 38. Protection of victims and witnesses. The government officers to which this law refers shall adopt the appropriate measures and all relevant actions for protecting the security, physical and psychological well-being, dignity, and private life of the victims and witnesses, and of all other parties in the proceeding.
To this end, all relevant factors will be borne in mind, including age, gender, and health, as well as the nature of the crime, in particular when it entails sexual violence, disrespect for gender equality, or violence against children.
Special training will be given to the government officers who work with such victims. These measures may not redound to the detriment of the rights of the accused or the right to a fair and impartial trial, nor shall they be incompatible with such rights.
Article 39. Exception to public trials. As an exception to the principle that the hearings that constitute the trial should be public, the Superior Judicial District Court, in order to protect the victims, witnesses, or an accused, may order that part of the trial be held in camera. It may order that testimony be taken through an audio/video system to allow it to be controverted and confronted by the parties.
In particular, these measures shall be applied to victims of sexual assault or assault of children and adolescents who may be victims or witnesses.
Article 40. Other measures of protection during the trial. When public disclosure of evidentiary material elements, physical evidence, or information lawfully obtained would entail grave danger to the security of the witness or his or her family, the Prosecutor shall refrain from presenting them in any procedure prior to the trial. Instead, he or she shall prepare a summary of that information. In no case may these measures redound to the detriment of the rights of the accused or of a fair and impartial trial, nor shall they be incompatible with such rights.
Article 41. Attention to special needs. The judicial organs as well as the technical support agencies and the Procurator General’s Judicial Office for Justice and Peace shall be mindful of the special needs of women, children, the elderly, and the disabled to ensure their participation in the proceeding.
CHAPTER IX
Right to reparation for the victims
Article 42. General duty to make reparation. The members of the armed groups who benefit from the provisions of this law are under a duty to make reparation to the victims of said criminal conduct for which they were convicted by judicial verdict.
In addition, when the perpetrator is not identified, but the harm and causal nexus with the activities of the Illegal Armed Group Beneficiary of the provisions of this law are proven, the Court, directly or by referral to the Prosecutorial Unit, shall order reparations, to be paid from the Fund for Reparations.
Article 43. Reparation. The Superior Judicial District Court, on proffering its verdict, shall order reparation for the victims and shall set the pertinent measures.
Article 44. Acts of reparation. The reparation for the victims addressed in this law entails
the duties of restitution, compensation, rehabilitation, and satisfaction.
To have a right to enjoy the benefit of release on probation, the convicted person must provide to the Fund for the Reparation of Victims the assets, if he or she has any, earmarked for that purpose; satisfactorily undertake the actions of reparation that have been imposed on him or her; collaborate with the National Committee for Reparation and Reconciliation, or sign an agreement with the Superior Judicial District Court that ensures the performance of his or her duties of reparation.
The following are acts of comprehensive reparation:
44.1 Surrendering to the State illegally obtained assets for making reparation to the victims.
44.2 A public statement that reestablishes the dignity of the victim and of the persons closest to him or her.
44.3 Public recognition of having caused harm to the victims, the public statement of repentance, the request for forgiveness directed to the victims, and the promise not to repeat such criminal conduct.
44.4 Effective collaboration in locating persons kidnapped or disappeared and in locating the victims’ remains.
44.5 The search for the disappeared and for the remains of dead persons, and help in identifying them and burying them again, in keeping with family and community traditions.
Article 45. Request for reparation. The victims of the illegal armed groups may obtain reparation by petitioning the Superior Judicial District Court in relation to the facts of which they have knowledge.
No one may receive reparation twice for the same harm.
Article 46. Restitution. Restitution implies undertaking acts that aim to return the victim to the situation prior to the violation of his or her rights. It includes releasing the person if deprived of liberty, return to one’s place of residence, and the return of his or her property, if possible.
Article 47. Rehabilitation. Rehabilitation should include medical and psychological care for the victims or their relatives within the first degree of consanguinity in keeping with the Budget of the Fund for the Reparation of Victims.
The social services provided by the government to the victims, in keeping with the provisions and laws in force, are part of reparation and rehabilitation.
Article 48. Measures of satisfaction and guarantees of non-repetition. The measures of satisfaction and guarantees of non-repetition adopted by the various authorities directly involved in the process of national reconciliation should include:
48.1 Verification of the facts and the public and complete dissemination of the judicial truth, to the extent that it will not provoke more unnecessary harm to the victim, witnesses, or other persons, or create a danger to security.
48.2 The search for persons who were disappeared or killed, and assistance in identifying them and burying them anew in keeping with family and community traditions. This task is mainly entrusted to the National Prosecutorial Unit for Justice and Peace.
48.3 The judicial decision that reestablishes the dignity, reputation, and rights of the victim, and those of the victim’s relatives within the first degree of consanguinity.
48.4 The apology, which includes public recognition of the facts and acceptance of responsibilities.
48.5 The application of sanctions to those responsible for the violations, all of which will be entrusted to the judicial organs that are involved in the proceedings addressed in this law.
48.6 The competent chamber of the Superior Judicial District Court may order commemorations, tributes, and acts of recognition of the victims of the illegal armed groups. In addition, the National Commission on Reconciliation and Reparations may recommend to the political or government bodies at the various levels that they adopt such measures.
48.7 Preventing human rights violations.
48.8 Attendance by the persons responsible for violations at training courses on human rights. This measure may be imposed on the convicted persons by the competent chamber of the Superior Judicial District Court.
Article 49. Programs for Collective Reparations. The Government, following the recommendations of the National Commission on Reconciliation and Reparations, should implement an institutional program of collective reparations that includes actions directly aimed at recovering the institutional framework intrinsic to the Social State under the Rule of Law, particularly in the areas hardest hit by the violence; to recover and promote the rights of the citizens negatively affected by the acts of violence, and to recognize and dignify the victims of the violence.
Article 50. National Commission on Reparation and Reconciliation. The National Commission on Reparation and Reconciliation is hereby established, made up of the Vice-President of the Republic or his delegate, who shall chair its sessions; the Procurator General or his delegate; the Minister of Interior and Justice or his delegate; the Minister of Finance or his delegate; the Human Rights Ombudsperson, two Representatives of Victims’ Organizations, and the Director of the Social Solidarity Network, which shall serve as the Technical Secretariat.
The President of the Republic shall designate five notables to serve as members of this Commission; of least two of them must be women.
This Commission shall have a duration of eight years.
Article 51. Functions of the National Commission on Reparation and Reconciliation. The National Commission on Reparation and Reconciliation shall perform the following functions:
51.1 Guaranteeing the victims their participation in proceedings for judicial clarification and the realization of their rights.
51.2 Submitting a public report on the reasons for the rise and development of the illegal armed groups.
51.3 Monitoring and verifying the processes of reincorporation, and the work of the local authorities to ensure the full demobilization of the members of illegal armed groups, and the proper functioning of the institutions in those territories. For those purposes, the National Commission on Reparation and Reconciliation may invite the participation of foreign entities and notables.
51.4 Monitoring and periodically evaluating the reparations provided for in this law, and making recommendations to ensure they are made properly.
51.5 Submitting, within two years of the date of the entry into force of this law, to the National Government and the Committees on Peace of the Senate and the House of Representatives, a report on the process of making reparation to the victims of the illegal armed groups.
51.6 Recommending the criteria for reparations addressed by this law, charged to the
Fund for the Reparation of Victims.
51.7 Coordinating the activity of the Regional Commissions for the Restitution of
Assets.
51.8 Carrying out national actions of reconciliation that seek to impede the recurrence of new acts of violence that disturb the national peace.
51.9 Adopting its own rules.
Article 52. Regional commissions for the restitution of assets. The regional commissions shall be responsible for giving impetus to the procedures related to claims over property and possession of goods in the framework of the process established in this law.
Article 53. Composition. The Regional Commissions shall be made up of one (1) representative of the National Commission on Reparation and Reconciliation, who shall chair it; one delegate of the Procurator General’s Judicial Office for Justice and Peace; one (1) delegate of the Office of the Municipal or District Ombudsperson (personería); one (1) delegate of the Human Rights Ombudsperson (Defensoría del Pueblo); and one delegate of the Ministry of Interior and Justice.
The National Government shall have the authority to designate a representative of the religious communities and shall determine the functioning and territorial distribution of the commissions based on the needs of the process.
Article 54. Fund for the Reparation of Victims. The Fund for the Reparation of Victims is hereby created as a special account without juridical personality whose controller of expenditure shall be the Director of the Social Solidarity Network. The resources of the Fund shall be executed in keeping with the rules of private law.
The Fund shall be made up of all the assets or resources that under any guise may be surrendered by the persons or illegal armed groups to which this law refers, resources from the national budget, and donations in cash and in kind, both national and foreign.
The resources administered by this Fund shall be under the oversight of the Office of the Comptroller-General of the Republic.
Paragraph. The assets to which reference is made in Articles 10 and 11 shall be surrendered directly to the Fund for the Reparation of Victims created by this law. The same procedure shall be observed with respect to the assets linked to criminal investigations and forfeiture proceedings in course at the time of the demobilization, as long as the conduct was carried out on occasion of their membership in the illegal armed group and before the entry into force of this law.
The Government shall regulate the functioning of this Fund and, in particular, everything concerning the claims for and surrender of assets with respect to good-faith third party holders.
Article 55. Functions of the Social Solidarity Network. The Social Solidarity Network, through the Fund addressed in this law, shall be in charge, in keeping with the budget allocated to the Fund, of the following functions:
55.1 Liquidating and paying the judicial compensation addressed in this law within the limits authorized in the national budget.
55.2 Administering the Fund for the Reparation of Victims.
55.3 Undertaking other actions for reparation, when appropriate.
55.4 All others indicated in the regulations.
1. The Court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses. In so doing, the Court shall have regard to all relevant factors, including age, gender as defined in article 7, paragraph 3, and health, and the nature of the crime, in particular, but not limited to, where the crime involves sexual or gender violence or violence against children. The Prosecutor shall take such measures particularly during the investigation and prosecution of such crimes. These measures shall not be prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
2. As an exception to the principle of public hearings provided for in article 67, the Chambers of the Court may, to protect victims and witnesses or an accused, conduct any part of the proceedings in camera or allow the presentation of evidence by electronic or other special means. In particular, such measures shall be implemented in the case of a victim of sexual violence or a child who is a victim or a witness, unless otherwise ordered by the Court, having regard to all the circumstances, particularly the views of the victim or witness.
3. Where the personal interests of the victims are affected, the Court shall permit their views and concerns to be presented and considered at stages of the proceedings determined to be appropriate by the Court and in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial. Such views and concerns may be presented by the legal representatives of the victims where the Court considers it appropriate, in accordance with the Rules of Procedure and Evidence.
4. The Victims and Witnesses Unit may advise the Prosecutor and the Court on appropriate protective measures, security arrangements, counselling and assistance as referred to in article 43, paragraph 6.
5. Where the disclosure of evidence or information pursuant to this Statute may lead to the grave endangerment of the security of a witness or his or her family, the Prosecutor may, for the purposes of any proceedings conducted prior to the commencement of the trial, withhold such evidence or information and instead submit a summary thereof. Such measures shall be exercised in a manner which is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.
6. A State may make an application for necessary measures to be taken in respect of the protection of its servants or agents and the protection of confidential or sensitive information.
1. The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.
2. The Court may make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. Where appropriate, the Court may order that the award for reparations be made through the Trust Fund provided for in article 79.
3. Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States.
4. In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this article, it is necessary to seek measures under article 93, paragraph 1.
5. A State Party shall give effect to a decision under this article as if the provisions of article 109 were applicable to this article.
6. Nothing in this article shall be interpreted as prejudicing the rights of victims under national or international law.
4. A legal representative of the victims, the convicted person or a bona fide owner of property adversely affected by an order under article 75 may appeal against the order for reparations, as provided in the Rules of Procedure and Evidence.
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
(a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
(a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
(i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
(a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b)
(i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for assistance under this paragraph from a State which is not a Party to this Statute.
1. Victims participating in the proceedings in accordance with rules 89 to 91 of the Rules of Procedure and Evidence shall enjoy the following privileges, immunities and facilities to the extent necessary for their appearance before the Court, including the time spent on journeys in connection with their appearance before the Court, subject to the production of the document referred to in paragraph 2 of this article:
(a) Immunity from personal arrest or detention;
(b) Immunity from seizure of their personal baggage unless there are serious grounds for believing that the baggage contains articles the import or export of which is prohibited by law or controlled by the quarantine regulations of the State Party concerned;
(c) Immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in the course of their appearance before the Court, which immunity shall continue to be accorded even after their appearance before the Court;
(d) Exemption from immigration restrictions or alien registration when they travel to and from the Court for purposes of their appearance.
2. Victims participating in the proceedings in accordance with rules 89 to 91 of the Rules of Procedure and Evidence who enjoy the privileges, immunities and facilities referred to in paragraph 1 of this article shall be provided by the Court with a document certifying their participation in the proceedings of the Court and specifying a time period for that participation.