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Derechos | Equipo Nizkor
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| Información | | |
Derechos | Equipo Nizkor
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13Mar13
Communiqué regarding the legal situation of the defendants in the case of
Claudia Julieta Duque
1. On March 1st 2013, Office No. 3 of the Human Rights Unit of the State Prosecutor issued a 120 page decision ordering the preventive arrest of 7 high-ranking officials of the recently dissolved Department of Administrative Security ("DAS"), for the crime of aggravated psychological torture carried out against Radio Nizkor correspondent and representative of Equipo Nizkor in Colombia, Claudia Julieta Duque Orrego.
2. This security measure was imposed against the following defendants: José Miguel Narváez Martínez, originally linked to the "Special Group for Strategic Intelligence Analysis" ( "Grupo especial de análisis de Inteligencia estratégica") known as G-3, formerly adviser and deputy director of the DAS; Giancarlo Auqué de Silvestri, formerly Intelligence Director and General Secretary; Carlos Alberto Arzayúz Guerrero, formerly Deputy Director of Operations, Intelligence Director and Head of Internal Control; Enrique Ariza Rivas, also formerly Intelligence Director of the DAS; Rodolfo Medina Alemán, who was a director in the area of Counter-Intelligence; Hugo Daney Ortiz García, formerly Regional Director in Risaralda and Deputy Director of Operations and Jorge Armando Rubiano, formerly Deputy Director of Technological Development.
3. These officials are also connected to the unfortunately named "DAS phone-tapping scandal" proceedings currently in the 6th Criminal Court of the Specialised Circuit: Hugo D. Ortiz, Jorge A. Rubiano, Rodolfo Medina and Enrique Ariza were convicted on November 30th 2012, although the latter two remain fugitives from justice. Giancarlo Auqué and Carlos A. Arzayúz are awaiting judgement and the case against José Miguel Narváez is still in the trial phase.
The Prosecutor has correctly concluded that the facts and the purpose of the investigation in the present case as well as the criminal characterization of the same are different from those investigated by the Prosecutor's Office No. 11 before the Supreme Court and from those now before the 6th Criminal Court. For this reason there is no violation of the principle of non bis in idem.
4. In addition, José Miguel Narváez, is also facing trial for the homicide of the journalist and comedian Jaime Garzón, who was assassinated in Bogota in 1999; due to her investigation into the death of Jaime Garzón, Claudia Julieta Duque was designated as a target and was the victim of serious DAS Counter-Intelligence operations, a subject we have been making public in our various communiqués since 2004.
5. It is noteworthy that the legal strategy in the present case is unique in its application of international criminal law and of parameters for determining individual criminal responsibility based on principles such as command or superior responsibility. Indeed the Prosecutor’s decision for the first time involves an analysis of the principle of the responsibility of the hierarchical superior applied to the DAS organic structure.
6. An evaluation of the legal situation of the accused subject to the current security measure of preventive detention requires an objective assessment of the evidence against them by the Prosecutor’s Office. In its decision, the Prosecutor’s Office systematizes, evaluates and validates the existing evidence, which demonstrates that at least since 2003, the DAS, an intelligence agency run directly by the Presidency of the Republic, carried out criminal acts designed to "neutralise" the human rights community in Colombia (as well as judges, reporters, trade unionists etc.). Furthermore the Prosecutor’s Office concluded that our correspondent was a "priority target". These facts, provisionally characterised by the Prosecutor’s Office as the crime of aggravated mental torture, were carried out in the context of a systematic persecution of Claudia Julieta.
7. In its decision, the Prosecutor's Office recognised that the indiscriminate acts against the journalist Duque involved "following, surveillance, interception of electronic mails, threats, harassment and other illegal acts" and characterised these as the crime of mental torture pursuant to international law, as part of the systematic persecution which took place. This is probably one of the few criminal proceedings in which psychological torture has been treated as a criminal offence.
8. As we set out in our communiqué of 22nd October 2009:
For a clearer understanding of what we are saying, the following is the definition provided in the US manual designed specifically for these types of operations the "U.S. Army Counterinsurgency Handbook" 2007 edition, by the US Department of Defense. Lt. General David Howell Petraeus, currently head of US Central Command and formerly in command of the Multinational Task Force deployed in Iraq was responsible for revision of the Handbook:
"counterintelligence
(joint) Information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities. (JP 1-02) (Army) Counterintelligence counters or neutralizes intelligences collection efforts through collection, counterintelligence investigations, operations, analysis and production, and functional and technical services. Counterintelligence includes all actions taken to detect, identify, exploit, and neutralize the multidisciple intelligence activities of friends, competitors, opponents, adversaries, and enemies... (FM 2-0)""information operations
(joint) The integrated employment of the core capabilities of electronic warfare, computer network operations, psycological operations, military deception, and operations security, in concert with specified supporting and relted capabilities, to influence, disrupt, corrupt, or usurp adversarial human and automated decision making while protecting our own. (JP 1-02) (Army) The employment of the core capabilities of electronic warfare, computer network operations, psychological operations, military deception, and operations security, in concert with specified supporting and related capabilities, to affect and defend information and information systems and to influence decisionmaking. (FM 3-13)"As an organization specialised in the application of international criminal law, we intend to use all our efforts to ensure that those responsible for these acts in Colombia are brought to trial and their liability for these acts is ascertained in accordance with the standards existing under international humanitarian law and international criminal law which are of obligatory application by the Colombian justice system.
These methods are incompatible with the development of civil liberties in any society and, due to technical advances and to the development of systems of sociological simulation, they allow for the socio-political control of a society, Colombian society in this case, leaving its citizens in a situation of defencelessness against the widespread use of such techniques.
9. Similarly, in our analysis of 18th June 2009 entitled "The use of counter-intelligence as a method of persecution to achieve social and political control", we stated that:
"The counter-intelligence operations form part of what is considered "offensive intelligence" and their aim is to eliminate "objectives" using all kinds of human, technical and military support. As these cases have established, they entail the reconstruction of the entire social and family network of the victims of the persecution.
There is no doubt that the consequence of this type of clandestine and illegal operation is the manipulation of the facts, the alteration of social systems and the destruction of those organizations which are considered "targets". Given the period of time they have persisted - more than ten years - they affect the families and the children of the victims and compel the organisations involved to take courses of action which they would not otherwise do if they were free from DAS counter-intelligence harassment.
Neither is there any doubt that this persecution included interception of all communications (fixed telephone lines, mobiles, faxes, microphones in offices, electronic mails, computer access, robbery of digital documents and the installation of microphones in the private homes of those persecuted) as well as permanent surveillance of the victims of such operations and their families and friends."
10. As an international human rights organization, we consider this development in the case of Claudia Julieta as an important advance towards justice in the DAS case after years of impunity. However, above all, it is a boundary imposed from the judiciary to the criminal aspects and to those actions committed in breach of civil liberties typical of the design and execution of these kinds of counter-intelligence operations, in respect of which it is so difficult to gather evidence. The DAS case is an exception in Latin America. Nevertheless, the decision of the Prosecutor’s Office does not refer to other members of the joint criminal enterprise functioning in the DAS led by the former President Álvaro Uribe, and we therefore hope that the investigation and identification of those responsible –either at the interior of DAS or within other state bodies– will continue and that they will be carried out using criminal classifications which are in accordance with international criminal law.
11. We are conscious of the gravity of this case and we therefore hold the State of Colombia responsible in the event of any threat to or deterioration in the security of Claudia Julieta, her family or her lawyer, Víctor Javier Velásquez Gil. It is only a year ago that our correspondent and her daughter received further threats and in September 2011 she was informed of a plan to kill her. For this reason, we demand guarantees that Claudia Julieta will be allowed to continue her work as a journalist in Colombia and her struggle against impunity.
Equipo Nizkor
Charleroi, Madrid and Bogotá, 13th March 2013
 | This document has been published on 06May13 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. |