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Full text of the Colombia Three Report.

category national | miscellaneous | news report author Monday February 03, 2003 12:23author by Justin Moran - Guessauthor email maigh_nuad at yahoo dot com Report this post to the editors

Full text of the Colombia Three Report. Enjoy.

Bring Them Home Campaign

Delegation to Colombia

December 2002

INTERIM REPORT January 27, 2003

On August 11, 2001 Niall Connolly, Martin McCauley and James Monaghan were arrested at Bogota airport, Colombia. Having visited an area ceded to the Revolutionary Armed Forces of Colombia (FARC) by the then Colombian President Andreas Pastrana, as part of the now stalled Colombian peace process, the men were initially detained on suspicion of carrying false documentation. Held without charge for six months in constant fear of their lives, the men were charged in February 2002 with the use of false documentation and training the FARC in rebellion. On conviction they face a possible twenty year sentence. Their trial began in October 2002.
In a statement read out to the court in Bogota on October16, 2002, the men stated that their presence in Colombia was in support of peace. ‘We visited Colombia to get to know the people, the natural beauty and the Peace Process. They re-iterated their support for the peace process in Ireland and their desire to see the Colombian peace process resurrected. They have stated further; “We want to hear and see the evidence against us and we want to exercise the right to challenge the reliability of the evidence through our lawyers.”
In a press conference on October 4, 2002, the men’s lawyers stated that they did not believe the men could obtain a fair trial in Colombia given the political nature of the case.
The Bring Them Home campaign believes that the presence of international observers at the trial is essential. It also believes that the men cannot obtain a fair trial and are in danger every day they remain in Colombia.
On November 28, 2002 a delegation of Irish parliamentarians, human rights activists and international legal observers went to Colombia where they visited the men in La Modelo jail and attended the first stage of the trial. The delegation also met with a number of political and legal figures while in Bogota.
The trial of the three Irishmen resumes before a single judge and in the absence of a jury in Bogota on February 5, 2003.
Despite a ruling in December 2002 by the trial judge that the prosecution witnesses attend the February hearing he has given permission for one witness to be interviewed in Medellin, a city in the north of Colombia.
Despite objections of defence lawyers the Colombian authorities have claimed that they cannot afford the airfare to transfer the witness to Bogota. The airfare from Medellin to Bogota costs $200.
Since the visit of the observers, recounted in this document, the three men have been moved to Combita jail some three hours drive from the capital.
This move took place despite assurances given to the team of observers and the Irish government by senior Colombian government officials that the men would not be transferred outside of Bogota during the trial.
The transfer also poses added difficulties for visits from the men's lawyers and their families.
The trial is expected to continue for several months and political and legal observers from Ireland, the US, Australia and England will attend further hearings.
Further reports will be published as the trial progresses and a final report will be issued when the legal process is completed.
This report provides an outline of the trip and the delegates' interim findings.
· The men cannot obtain a fair trial.
· The men have not obtained a fair legal process to date.
· The men have been transferred from jail to jail on several occasions which has prejudiced the preparations for their trial.
· Threats have been made against their defence lawyers which has made it more difficult to prepare for trial hearings.
· The men have been held in dangerous and unsuitable conditions, and in breach of internationally accepted human rights conventions, since their arrest in August 2001.
· Pre-trial publicity in Colombia and internationally has undermined the principle of presumption of innocence.
· Statements by the former and current presidents of Colombia and senior Colombian and US officials and elected representatives have further damaged the men's ability to obtain a fair trial.
· The observers believe that the Irish government as a matter of priority should send an official legal observer to attend the trial at all stages.
· The men should be held in Bogota in a safe location for the duration of their trial.

Table of Contents
1. Interim Legal Opinions
(a) Pat Daly (Solicitor) page 7
(b) Shaun Kerrigan (Solicitor) page 9
(c) Frank Durkan & Cody McCone page 14
(c) Ronan Munro (Barrister) page 15
2. Parliamentary Observers
(a) Seán Crowe T.D page 19
(b) Finian McGrath T.D page 22
(c) Senator Mary White page 24
3. Human Rights Observer
(a) Paul Hill page 29
4. Incident at Bogota International airport
(a) Memo from Ronan Monro page 31
(b) Letter to Brian Cowen from Ronan Monro page 35
(c) Letter to Brian Cowen from Caitriona Ruane page 37
(d) Parliamentary Questions and Answer page 38
Reports of Meetings attended:
(a) Margarita Zuleta, Colombian Vice Minister for Justice page 39
(b) Dr Clemencia Forrero, Colombian Vice-Minister for Foreign Affairs page 39
(b) International Committee of the Red Cross page 41
(c) Defensoria Del Pueblo / Office of the Public Defender page 41
(d) Trade Union Leaders, Nestle and Coca Cola page 42
Summary of Principal Concerns page 43

Interim Legal Opinions
Pat Daly (Solicitor - Ireland)
Mr Johnny Connolly, a brother of Niall Connolly, asked me to observe the trial on behalf of his family, the families of Jim Monaghan and Martin McCauley and the Bring Them Home campaign in order to consider whether the men are receiving a fair trial. As an observer I compared the procedures of this trial with internationally recognised standards of human rights.
I personally encountered no difficulties in attending the trial. Nor did I have any difficulty in gaining access to the men in La Modelo prison apart from the security checks. The men have however since been transferred to Combita prison, which I understand is a three-hour journey from Bogotá. This will cause extra difficulties for the lawyers for the three men. As it is, lawyers for both defendants and prosecution receive death threats. On the 20th September 2002, Amnesty International issued an Urgent Action Appeal as a result of one specific threat to Agustín Jiménez, who is involved in defending the Irishmen.
In relation to the trial, I was surprised that only one of the proposed prosecution witnesses was available to give evidence. Both sides had agreed that they would put forward their witnesses on the 2nd of December. As the trial is therefore incomplete I am not in a position to produce a full report.

Presumption of Innocence
Article 8(2) of the American Convention on Human Rights (ACHR).
Article 6(2) of the European Convention of Human Rights and Fundamental Freedoms (ECHR).
Article 7(1) b African Charter on Human and Peoples’ Rights (ACHPR):
It is a fundamental Human Right that an accused person should be presumed innocent until proven guilty. According to the International Commission of Jurists (ICJ) this requires “that all public authorities shall refrain from prejudging the outcome of a trial and must not treat the accused as if he/she is considered guilty”. The fear is that any statement could prejudice the hearing and adversely affect the chances of a defendant receiving a fair trial.
In this case there is a serious risk of contamination arising from reported comments by public officials. In an article headlined “High Stakes In Colombia”, published in The Washington Post on the 15th April 2002, former President Pastrana wrote “some months ago IRA members were captured in Colombia after training FARC guerrillas in urban terrorism”.
Furthermore, when the commander of the Colombian Armed Forces, General Tapias, attended the US Congressional (Delahunt) Hearings, he also referred to the three as being guilty “they are leaders within IRA structures in their field and they have been in Colombia for a long period and they are involved in training the FARC in terrorist activities”.
We were also informed that the Colombian Attorney General appeared on television and assured the nation that the three were guilty.
Amnesty International has raised concerns regarding this trial because of these statements from Colombian Officials and has called on the Colombian government to ensure that the trial conforms to international standards for fair trials.
Other internationally recognised rights flow from the presumption of innocence. The onus should be on the prosecution to prove it’s case prior to any evidence having to be produced by the defendants. At the outset of the trial on the 2nd of December, Judge Jairo Acosta initially indicated that he would hear the evidence of the defence witnesses in the absence of the prosecution witnesses. However, after hearing submissions from the lawyers for the men he heard the evidence from Major Carlos Eduardo Matiz, the only prosecution witness produced, and then put the trial back to February when he said that he will hear from the other prosecution witnesses. It therefore appears that the burden of proof is lying with the prosecution.

Right to a public hearing
Article 3(b) UN Human Rights Defenders Declaration
Article 3(b) states that everyone has the right, individually and in association with others, inter alia: To attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments.
A secret trial is considered by the ICJ to be a violation of the right to a public hearing. In Ireland, for example, the maxim states that justice must be done but also must be seen to be done and reporting restrictions are imposed only in certain limited circumstances in order to protect minors and injured parties.
As I have stated above, I personally did not encounter any difficulty attending the trial. On the first day of the trial the media also appeared to have easy access to the court. One local reporter felt free to ask Judge Acosta a question in open court and the question was answered. However, the judge warned the local media not to report any testimony of the witnesses. The judge informed us that media organisations could face a fine if they did print reports. While he said that this was to protect the rights of the accused, my understanding is that the men favour full reporting of the court proceedings. It is puzzling that in a case where the media has published so many pre-trial pejorative reports that the actual evidence in the case cannot be reported in Colombia.

Right to be informed of the charge/ to be tried without delay:
Article 6(3) a of the ECHR. Article 8(2) b of the ACHR/Article 6(1) ECHR
Article 8(1) of the ACHR. Article 7(1) of the ACHPR
These two rights are inter-linked. Central to the guarantee of a fair trial is the right of a defendant to be informed of the nature of the charges, and to be so informed within a reasonable time. This means that an accused person should be given the information grounding the charge in a language they understand.
According to the ICJ “excessive delay constitutes a danger to the rule of Law and to the credibility and effectiveness of the whole system” and it recommends that delay should be minimised when an accused is detained. The three men in this case were served with a copy of their indictment in English but not until they had been held in custody for over a year. By way of comparison, a defendant in Ireland would expect to have a Book of Evidence within six months even in the most serious of cases.
In October of 2002 both defence and prosecution lawyers agreed that they would have their witnesses in court on the 2nd December. Defence witnesses were present but despite the fact that two of the three prosecution witnesses were either in prison or protective custody they were not produced. By international standards it cannot yet be concluded that delay in this case is so excessive as to prevent the defendants obtaining a fair trial but it is important in the interests of fairness that the prosecution evidence should conclude in February.
The third key prosecution witness has not been made available for counter-examination, which is similar to pre-trial depositions. The lawyers for the defendants have not objected to this “due to [their] conviction in [their] clients’ innocence”. However, it is very unsatisfactory that the evidence of this witness has not been made available to the accused and it would seem to be a breach of Article 6(3) of the EHCR and Article 8(2) b of the ACHR.
The trial of the three men has not yet concluded. It is therefore impossible to write a full report. Certain aspects of the trial are worrying but not, it has to be said, fatal to the chances of the defendants receiving a fair trial. Among these concerns are:
1. The initial intention of Judge Acosta to allow the defence witnesses to give their evidence before the prosecution case has concluded.
2. The non-appearance of any prosecution witnesses on the first day of the trial, despite the fact that the 2nd of December had been agreed by both sides as the date when both sides would have their witnesses in court.
3. During the pre-trial investigation the Fiscalia is supposed to look for evidence for and against the defendants. We were informed that lawyers for the accused submitted the names of a number of defence witnesses but none of these were interviewed.
It is impossible to undo the pre-trial statements made by Colombian public officials. However, the judge has not yet given a ruling and it is only correct to wait until he does.
Patrick Daly
January 16, 2003
Pat Daly: Ireland. Pat is a Criminal Law Defence solicitor, in Dublin and a Tutor in criminal law. He has worked as a legal researcher in Death Row cases, in Atlanta, USA.
Interim Opinion
Shaun Kerrigan (Solicitor – Australia)
I attended the trial of James Monaghan, Niall Connolly and Martin McCauley at the District Court in Bogota, Colombia for two (2) days, Monday, 2 December and Tuesday, 3 December 2002.
The presence of an International Delegation within the Court room to view the trial was acknowledged by the Prosecutional Defence Attorneys and the Presiding Judge.
The Court room had been arranged in such a way that ten (10) of the official observers could sit in front of the Bar of Justice and within plain view of the entire Court room. The Court room was full to capacity with the International media and the media were in fact able to ask questions of the Judge during lulls in proceedings and the proceedings were able to be filmed or recorded in their entirety on the first day.
Simultaneous translation was attempted on a sporadic basis by the court authorities. There was a strong military presence within the Court room and immediately outside the Court. The Military presence was enhanced by the National Prison Guards of Colombia, civilian and riot police, all of whom were armed.
In obtaining a fair trial the following International Conventions and Protocols should be applied where they are applicable:
Ü The International Convention on Civil and Political Rights of 1966 (ICCPR);
Ü The Convention Against Torture of 1975 (CAT);
Ü The American Convention on Human Rights of 1969 (ACHR);
Ü The Convention for the Protection of Human Rights and Fundamental Freedoms of 1953 (ECHR);
Ü The European Protocol Number 7 of 1984;
Ü The Universal Declaration of Human Rights 1948 (UDHR);
Ü The United Nations Basic Principles on the Independency of the Judiciary 1985;
Ü The United Nations Basic Principles on the Role of Lawyers 1990;
Ü Guidelines on the Role of Prosecutions produced by the United Nations;
Ü United Nations Safeguards guaranteeing the protection of those facing the death penalty of 1984.
It is essential in observing an International trial and determining whether the trial is fair to firstly answer the question:
What is a fair trial?
The question of whether a trial is fair or not is reliant upon a series of questions rather than one single answer. These questions have been defined by the International Committee for jurists and may be reduced to the following:-
Ü Is the charge brought against the accused a charge that is usually brought against others accused in similar positions?
Ü Have the circumstances of the trial led to disparate treatment of the accused?
Ü Have the defence and prosecution had access to the same Court documents?
Ü Were the defence and prosecuted treated similarly by the Presiding Judge?
Ü Was the defence given the same opportunities as the prosecution to bring an objection, request adjournment, Discover documents etc?
Ü Is the trial a public hearing?
Each of these questions must be answered in turn to then determine whether or not a fair trial in the first instance has been received by the accused. It is to be noted that these are only indicative of a fair trial.
The proceedings as they are currently on foot would ordinarily be charges brought against others in similar positions. If the evidence available was considered to be reliable the trial would ordinarily proceed.
It is not unusual for foreign nationals travelling on false passports to be immediately deported.
Difficulty arises in this matter when considering the evidence and whether people similarly accused would be in a similar situation as the three (3) Irish men. The evidence which is before the Court is in two (2) parts. The first is eye-witness evidence and the second is forensic evidence.
As neither the forensic or eye witness evidence has been brought to Court at this time it is impossible to say whether or not persons in a similar position would have been given similar treatment as to the three (3) accused. What evidence has been led is evidence of nothing.
The accused have been held in life threatening and anti convention conditions. They have been held with prisoners who have been convicted, they have been held in inhumane or undignifying circumstances.
The men have been subject to regular prison movements. The most recent prison move occurred on 16 December 2002, and they remained incommunicado to their families, the Campaign, the lawyers and the Irish Embassy in Mexico for a number of days. As it transpired they had been moved to Combita, 3 hours drive from Bogota, an American style high security prison. This move, and the uncertainty it caused, led to the abandonment of a family visit after Christmas.
More importantly their case and the circumstances surrounding their case have been subject to publication and expressions of guilt in many and varied international publications both by political and military figures within Colombia and in the press.
It is also worth noting at this point that the appointment of the Judge who is the seeker of material truths is appointed on contract for four (4) years by the Congress of the Government of Colombia. The Congress of the Colombian Government is currently controlled in its entirety by the President. The Party of power in the Congress is the Party whose main representative is the President of Colombia. While no specific allegation is made or raised there is undoubtedly pressure on judicial officers from members of the ruling Congress who also appoint them to make decisions in Court hearings.
The answer to this question is vexed in as much as the prosecution has had access to documentation. However, that documentation may in certain circumstances This is evidenced by the production of two (2) manuals, one (1) in Spanish and one (1) in English) by the witness Major Matiz. (The English manual was in fact a freely available book which was published in the USA 23 years ago.) Other documents are not considered by the Presiding Judge to form relevant evidence until the body of the hearing and as such neither party may have access to those documents.
While the claim is that the process is a transparent process on behalf of all parties, it is clear that with varying levels of access to documents the proceedings are never transparent nor, is the documentary evidence limited in these proceedings to what is known during the Discovery phase. That is additional documents may be produced or found during the hearing itself. The Presiding Judge describes this process as the Search for Material Truths, which may require evidence to be sourced from obscure or unusual sources.
Access to documents is not equal as it is reasonable to conclude that a prosecution witness will have provided to the prosecution any documents they will use in examination in chief. This is not unheard of in common law jurisdictions and therefore its fairness will depend on how the evidence is ultimately admitted.
The unfairness in the current matter stems from the Judge’s comment that any document can be admitted if it helps to find a material truth. The document may not need to be obviously relevant to the proceedings - as is the case with the two (2) manuals admitted in the trial of the Colombia 3.
There is no direct evidence of what the documents are or where they came from.
The answer to this question is a subjective determination of the observer. During the proceedings the Judge made rulings in favour of both the prosecution and the defence. The prosecution were not overly hindered in their cross examination of witnesses called although the proceedings were relevantly technical in their nature with the exception of the evidence drawn by one (1) witness on the afternoon of Monday, 2 December 2002. The observations of the trial can only lead to the subjective determination that the Judge treated both the Prosecution and the Defendant’s lawyers equally. However it is worth noting that the Submissions of the Defence lawyers which were long and treated varying aspects of International law on the second day concerning the logical proceedings or the logical sequence of proceedings were not ruled upon by the Judge but the Prosecution were allowed to make their own determination as to when their witnesses would be called.
The answer to this question is no. The defence made an Application to enter the demilitarised zone of Colombia for the purposes of gathering evidence. The Prosecutors office had been given access to the demilitarised zone to collect witness statements and was able to collect direct eye witness evidence from this area. This will be the only direct evidence from persons in the DMZ. It is also obvious that the persons who will give this evidence are ex-FARC who have left that organisation. The request of the Defendants to each have their legal representatives enter the demilitarised zone to conduct research or collect evidence on behalf of their defence case was denied. This had led to the defence not being able to have any direct rebuttal evidence of the prosecutions case against them.
Further, and as previously stated, the proceedings were to be out of the ordinary logical sequence that a criminal prosecution should take. (That is, ordinarily you would expect criminal prosecutions to take the logical sequence of the accuser making the case against the accused and the accused then replying to the case as made out by the accuser or prosecutor). In the current case the Prosecution and the Judge combined tried to interrupt the usual logical sequence of a prosecution.
There are many additional factors, which must be considered if the trial is going to be considered to be fair which are outside of these initial questions and observations. These may be summarised as:
Ü Has the trial proceeded on the basis that the accused are innocent until proven guilty?
Ü Is the defence unhindered in the preparation of the defence?
Ü Is the evidence relevant?
Ü Is the Court procedure fair?
These questions cannot be fully answered until the proceedings are concluded. However, an interim view on all these questions would be negative. The media world wide has published Colombian politicians and military saying the men are guilty (no presumption of innocence). The defence lawyers are under death threats and one lawyer has a human shield. The evidence in the proceedings so far is completely irrelevant and the Judge has moved to try and give the evidence by directing that the prosecution call a new witness for exactly that purpose.
Finally, the attempt to disrupt the logical sequence of evidence was and is highly prejudicial.
The men are at grave risk of an unfair trial. The evidence against them is developing to meet the required standard that is the accusations are not set in concrete. The standards in which the men are being kept are in breach of International law. Many have reported that this trial has deteriorated to farce. This in my opinion is extremely dangerous. Without the International observers this trial would have run out of sequence and led to a very unfair conclusion. A cynical view point would be that this was a try on, the Colombians had no intention of going to hearing between 2-4 December 2002. This being done in the hope that no International observer would attend in February 2003 because of the cost factor involved in organising such a big International delegation and witnesses.
Shaun Kerrigan

Shaun Kerrigan: Australia. Shaun is a Lawyer with a background in trade unionism. He has practised in the areas of Human Rights Law, Industrial Law, Immigration and Refugee Law and Criminal Law. He has worked in South Africa, Botswana, Zimbabwe, Sri Lanka, India, China and the former Yugoslavia on various legal projects.

Interim opinion
Frank Durkan and Cody McCone (Lawyers – New York, USA)
On December 1, 2002, we went as observers on behalf of The Brehon Law Society of New York to the trial involving James Monaghan, Martin McCauley and Niall Connolly at the First Penal Court in Bogotá, Colombia presided over by Judge Yairo Ignacio Acosta. These men, all Irish citizens, had been arrested in July 2001 and charged with having aided and abetted the revolt against the Colombian government by the FARC guerrillas. The gist of the complaint against them is that they met with members of FARC, supplied them with military manuals, and trained them in the manufacture of bombs and other military hardware.
The men are being held without bail and have been moved from place to place during their confinement without any adequate explanation being offered for these transfers. The various jails contain prisoners from both sides of the civil conflict in Bogotá, the FARC on one side and the pro-government right wing militia on the other side.
Our purpose in visiting Bogotá was in response to multiple allegations by various civil rights groups that the idea of a fair trial in Colombian courts was a fallacy; that in fact from the start these men had no chance of being acquitted. Almost from the beginning we began to have doubts abut the fairness of the proceedings. On the day that we attended the Court, the Government announced that it did not have any witnesses to produce and the Judge ruled that the defense had to present its witnesses before any testimony was taken from Government witnesses. This flies in the face of the basic legal precept that a man is entitled to hear the basis and the nature of the case against him before he is required to respond.
Defense counsel took a firm stand against presenting any testimony and ultimately forced the Government to produce one Major Carlos Eduardo Matiz who identified himself as a senior officer with the Colombian Military Intelligence.
His testimony was nothing short of astounding. He identified two manuals – one in Spanish and one in English which were sent to him from “somebody” in his superiors’ office and which were allegedly found among some of the FARC guerrillas. He did not know what the circumstances were but he stated that they described military mechanisms for bombs similar to those used by the Irish Republican Army.
He never saw these (the defendants) until they were arrested at Bogota airport. He had been informed they had been in the Demilitarized Zone (DMZ) which was controlled by FARC rebels and assumed that they had been in contact with the FARC hierarchy. On the following day the prosecution, under pressure from the Judge, was directed to continue and bring whatever witnesses they had available. There were two witnesses allegedly available to the prosecution but they failed to turn up as directed.
All in all, it appears as if the prosecution has no case and is relying on primarily adverse press releases, e.g., statements by the President of the country that these men are guilty even before the trial. There is no jury and the case was postponed again from December 2002 to February 2003 because of the Judge’s holiday schedule.
Our considered opinion is that regardless of what testimony is offered, these men will not receive a fair trial.
Frank Durkan and Cody McCone January 21, 2003
New York City, New York

Interim opinion
Ronan Munro (Barrister)
Re: Trial of James Monaghan, Niall Connolly, Martin McAuley in Bogota, Colombia.
Agent requests counsel’s opinion on whether the trial process of the three querists [hereinafter referred to as the three accused] breaches internationally recognised minimum standards of human rights protection.
In particular, at the interim stage, agent has requested whether certain statements made by public agencies in Colombia in relation to the trial of the three accused (hereinafter referred to as “the statements”) have violated any rights relating to the presumption of innocence. The text of the statements has been furnished by agent.

Interim analysis
As the trial process is not complete, it is not possible at this stage to advise on the trial process as a whole, nor would it be appropriate to attempt to assess the conduct of the judiciary at this stage.
This interim opinion as a result, will advise whether the right to be presumed innocent as guaranteed under the
(i) European Convention on Human Rights and
(ii) the American Convention on Human Rights 1969 (otherwise the “Pact of San Jose, Costa Rica)
is being observed by the Colombian State.
This is because the statements made are to a certain extent separate from the trial process and in my view, may be appropriately separately analysed.

The charges
The three accused are charged with:
1. Travelling on false passports
2. Unlawfully providing training to armed guerilla groups within Colombia, in particular the group known as the “FARC.”

Conduct of the case so far
The trial process of the three accused is underway and has passed through the ‘investigative phase’ and is now in the ‘judicial’ phase. This means that the final determination (subject to any lawful appeals) of the three accused is now underway via public oral hearings. A phase of the trial scheduled for the 2nd, 3rd and 4th of December, 2002 has already taken place, when one prosecution witness gave evidence- Major Matiz of the Colombian army’s anti-terrorism unit.
The next phase of the trial is now scheduled for the 5th, 6th and 7th February, 2003.

The Statements
There have been a number of statements by various Colombian public agencies in relation to the case; including but not limited to, the following-
1. The former president of Colombia Mr Andres Pastrana wrote in an article published on the 15th April, 2002 in the Washington Post newspaper, in Washington, in the United States of America:
“…Colombia has become the theatre of operations in which the global campaign against terrorism is being waged in Latin America…. We are fighting a multi-national terrorist network. Some months ago, IRA members were captured in Colombia after training FARC guerillas in urban terrorism”
2. General Tapias, (who I am instructed is Head of the Armed Forces in Colombia), in the course of giving evidence at public congressional hearings early in the year of 2002, in the United States of America made similar statements declaring the three accused guilty.
3. Attorney-General Osorio, the Attorney-General of Colombia gave interviews to a journalist subsequent to the arrest of the three accused which had prejudicial implications in that he said among other things that ‘they [the three accused] have the right to admit to their crimes” which involves some reasoning that he regarded the three prisoners as guilty.

The Presumption of Innocence
I note that the State of Colombia has signed (22nd November 1969) and subsequently ratified (28th May 1973) and recognised the American Convention on Human Rights of 1969.
Article 8(2) of the American Convention provides:
“Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law..”
The Presumption of Innocence is set out in Article 6 (2) of the European Convention of Human Rights (which is ratified by Ireland) which states, (in text nearly identical to the American version):
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law “

At this stage, I do not have to hand any judgments of the Inter-American Court of Human Rights (which is the Court charged with ensuring adherence to the American Convention) which comment on this precise point.
It is worth noting that the case cited below is in the context of the French legal system, which inquisitorial nature is similar to that of the Colombian legal system.
This point was explicitly considered in 1995 by the European Court of Human Rights in the case of Allenet de Ribemont v. France 20 EHRR 557. The court in this case found in a majority judgement (by a vote of 8 votes to one) that the said Article 6(2) of the European Convention on Human Rights was violated by statements made by high-ranking French police officers at a press conference that Mr de Ribemont who was an arrested person, was an accomplice to murder. Mr de Ribemont was later charged with aiding and abetting intentional homicide.
However, though charged and taken into custody on the 14th January, 1977 Mr de Ribemont was released on the 1st March, 1977 and a discharge order was issued on the 21st March, 1980.
The Court found that the presumption of innocence enshrined in Article 6 (2) is one of the elements of the fair criminal trial that is required. It will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proven guilty according to law.
It suffices, even in the absence of any formal finding that there is some reasoning that the Court regards the accused as guilty.
The Court considered that the presumption of innocence may be infringed not only by a court but also by other public authorities, such as the police.
It did remark that Article 6(2) could not prevent the police or other proper authorities from informing the public in general terms about criminal investigations. It stated:
“Freedom of expression, guaranteed by Article 10 of the Convention, includes the freedom to receive and impart information. Article 6 (2) cannot therefore prevent the authorities from informing the public about criminal investigations in progress, but it requires that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected”
The Court found however that the police had not used due circumspection in the instant case. They stated:
“..in the instant case some of the highest-ranking officers in the French police referred to Mr Allenet de Ribemont, without any qualifiaction or reservation, as one of the instigators of a murder and thus an accomplice in that murder. This was clearly a declaration of the applicant’s guilt which, firstly, encouraged the public to believe him guilty and, secondly, prejudged the assessment of the facts by the competent judicial authority. There has therefore been a breach of Article 6(2).”

This opinion specifically does not advise upon what remedy, if any, for any breach of the guarantee of the presumption of innocence which may be open to the three accused.
I note generally however that the American Convention requires that domestic remedies be exhausted before any complaint is made pursuant to the Convention, save in exceptional circumstances such as unwarranted delay etc.
I do note that in the de Ribemont case, the judge who dissented on the question of whether there had been a breach of Article 6(2) suggested there was no practical and effective remedy offered by the court in that the only remedial order made was one awarding compensation.
Also, it is worth noting that though Mr de Ribemont was never found guilty, the judicial process therefore apparently adequately protecting his right to a fair trial, the court still found that Article 6 (2) had been violated.
However, the Court in that case did not make any statement whether or to what extent the fairness of the trial process was affected by the violation of the said Article 6(2).

Therefore, it seems reasonable, primarily on the basis of the stated judgment and analysis by the European Court of Human Rights of the requirements of the presumption of innocence, that the State of Colombia (via firstly its former President of the Executive and also its military arm ) is in violation of its duty to protect the presumption of innocence of the three accused at this stage, though bearing in mind that the trial process is unfinished.
It follows that it is probable in my view, that the Colombian State is in breach of its obligation to vindicate the right of the three accused to be presumed innocent as demanded by Article 8 (2) of the American Convention of 1969.
It is worth noting also, (though somewhat academically) that the action of the Colombian State would appear (with an even higher degree of probability) to violate Article 6(2) of the European Convention on Human Rights as well.
Subject to below, therefore, it seems that the Colombian State is in violation of internationally recognised minimum standards of protection for the presumption of innocence.
It is important to emphasise that this opinion does not explore or advise upon the extent to which any violation of the presumption of innocence impacts upon the fairness of the (as yet unfinished) trial process.
This advice must be regarded as interim only, in that the domestic remedies of Colombia are not yet exhausted and the situation may change.
Nothing further occurs.

Ronan Munro, BL
January 17, 2003

Ronan Munro: Ireland. Ronan is a Criminal Lawyer with extensive experience in defence, in Habeaus Corpus and judicial review proceedings. Also acts on behalf of the Director of Public Prosecutions in High Court bail proceedings.

Submissions of Parliamentarians
Trial of the Colombia Three
Report of Seán Crowe, T.D.
November 28 – December 5, 2002
The Trial
The trial started over an hour late with the Prosecution having no witnesses or evidence available to put to the Judge. It was then suggested that the Defence put their evidence first. The Defence Lawyers refused, citing that it was the International norm or logical order in any justice system that the Prosecution had to prove their case. The Judge eventually accepted this argument. He then ordered that the Prosecution arrange for their first witness to attend.
During the recess the Judge cleared the Court and agreed to a meeting with the Delegation.
Meeting with Judge Jairo Ignacio Acosta Aristizabal
The Judge and the Prosecutor, Carlos Sanchez Peinado met the Delegation during a recess in the trial while awaiting the arrival of a counter intelligence officer, a Major Carlos Eduardo Matiz. The Delegates expressed the widespread concern about prejudicial statements made by former President Pastrana, and the head of the Armed Forces, The Attorney General and other statements from senior political/army personnel about the case and the overall effect this would have on the ability of the three Irishmen to get a fair trial. This was a private meeting with the Judge and at this stage I would prefer not to comment on anything that he said in the meeting except for one aspect. We were told during the meeting with the Judge that, to facilitate our Delegation and presumably the International media a simultaneous translation system would operate throughout the trial. This worked for a period but then inexplicably stopped. I felt this was extremely significant, as it appeared to outsiders that the trial was about to collapse due to the lack of any credible evidence. The translation system broke down at this stage and observers were unable to understand the key point of that day’s evidence; the exchange between the Defence Lawyers, Prosecutor Gomez and Judge Acosta who were crucially discussing the admissibility of future witnesses and possible evidence. I understand from a later meeting with the Defence lawyers that they were very concerned that the Judge permitted a new prosecution witness at the trial. According to the defence lawyers this is a violation of Colombian Law – the time to introduce witnesses was at the Preparatory Hearing in October.
I believe that the silence of the translator at that important juncture is an extremely worrying development and may well signal the way the Trial will be conducted in the future. The attempt at withholding and the managing of information by the Trial Judge by suspending the translation system was in my opinion an extremely clever and yet crude way of creating confusion and at the same time keeping the Trial from imploding. The Judge, in his discussions, agreed to prop up the weak evidence of Major Matiz.
The Prosecution was requested to bring two witnesses to the Court the following day. We went to the Court and we were informed that one of the witnesses could not be found, John Alexander Rodriquez Caviedes, (we were informed he was in a Colombian State witness protection programme). The second witness did not want to travel by road from a jail in Villavicencio and requested that the State bring him by air. The Colombian State refused to do this on the grounds that it was too expensive. It was very strange and looked like a tactic of the prosecution to delay the process and avoid having their witnesses cross examined in front of the International observers and Press. It remains to be seen whether they will be brought to the court in February.
Meeting with Margarita Zuleta, Vice-Minister for Justice
We began by outlining our concerns surround the failure of the investigator’s offices to interview any of the Defence witnesses prior to the decision to bring the men to trial which we believed to be against Colombian law. The failure of Prosecution to have any witness ready for the trial despite months of notice was also commented on by a number of the Delegates and we asked for a commitment from her office that this would not happen again. The Delegation then raised the very real concerns around the treatment and safety of the men and of their lawyers, who have received a number of death threats.
We asked a number of questions about the men’s ability to receive a fair trial, particularly given the pre trial publicity surrounding the case. We asked her to take legal advice on whether pre trial statements by senior political and military figures within and outside the administration were prejudicial to the men’s right to a fair trial.
She said she was unaware of any statements, she declined to take a copy of an article penned by former President Pastrana in the Washington Post but agreed at the meeting to investigate our concerns. We asked her to investigate, if under the Colombian Justice system these statements were pre judicial. We also expressed our concerns at the abject failure of the Prosecutor¹s office to have their witnesses turn up for the trial, despite agreeing 65 days previously to have them ready.
We explained to the Minister that we intended to visit the men in La Modelo Prison where they were being held and asked her to give us assurances that they would be kept together in Bogotá and accessible to their lawyers. The Vice Minister for Justice assured us that they would be kept in Bogota (this commitment was subsequently broken with their removal to Combita Prison, 87 miles from the capital, on 22nd December 2002).
I find it difficult to believe that the Vice Minister for Justice was unaware of the pre trial publicity surrounding this case and her assurances regarding the men being kept in Bogotá have clearly not lasted the test of time.
Meeting with the Foreign Affairs Vice-Minister, Dr. Clemencia Forrero
The meeting with the Minister was held prior to our return to Ireland. She said that the State had been working on the case for the last 7 months and that she had had a long discussion with the State Prosecutor prior to the meeting. She said it was their duty to ensure that the process was a fair one and that the detainees have safe conditions of detention. The Delegation raised our concerns about the prison conditions and the fact that the men had informed us on our visit to the jail that they had no access to natural light and alluded to their complete lack of any safety in a prison where over 50 people have been killed.
We informed her of the meeting we had with the Vice Minister for Justice and the fact that she seemed unaware of the pre judicial statements made by senior military and political figures in the run up to the trial and her commitment to us to investigate if the statements were prejudicial under Colombian law. Minister Forrero gave us a commitment to follow up on this query. The Minister also stated that her Government was committed to promoting a fair trial as far as possible and that she would communicate our legitimate concerns to the Vice President of Colombia, who is in charge of Human Rights.
Whilst the Foreign Affairs Minister gave assurances that the Delegation would be given every co-operation for future attendance at the trial, these assurances seem hollow considering the incidences that occurred only an hour after our meeting with the Minister. Two members of the Delegation were assaulted at the airport by members of the DAS authorities, one member had his passport torn up and the other, a female member, was physically assaulted.


1. Given what I have seen during my trip in December I do not believe the men have got a fair legal process to date or will get a fair trial.

2. The Prosecution are playing games. They had 65 days to prepare and present their witnesses, yet they failed to bring forward any eyewitnesses. The declarations of these eyewitnesses were published in newspapers in Ireland, England, the US and other countries in the world, even though they failed to attend the court.

3. I am very concerned about the threats to the defence lawyers. They are working in very difficult conditions and the Colombian Authorities, by moving the men from jail to jail, under the pretext of security, are making it very difficult and dangerous for lawyers to consult with their clients and prepare for a trial.

4. I am very concerned about the pre-trial publicity, and the publicity during our visit to Colombia. On the day the trial began media reports put out bulletins saying that ’80 IRA men were coming from Venezuela to the Court, and that ‘Paul Hill is a terrorist that has spent many years in jail’. These comments serve to endanger the lives of observers and lawyers.

5. I visited the men on two different occasions. I am very concerned about their conditions and for their safety. They were being held in overcrowded conditions. They were pale, probably because they were not getting any exercise or natural light.

6. I am concerned that despite assurances from two senior members of the Colombian Government, that the men would not be moved outside Bogota, the week after we left the men were moved and are currently being held illegally in a high security jail for sentenced prisoners, in violation of Colombian Law, 3 hours drive from the capital.

7. It is obvious that these men are not receiving a fair trial. It is essential that the Irish Government send an official legal observer to the trial and I call on them to do so.

8. I will be going back to Colombia for the resumption of the trial in February.

Seán Crowe, T.D.

Sean Crowe: is a Sinn Féin T.D., i.e. a member of the Irish Parliament, representing the citizens of Dublin South West. He represented Sinn Féin at the ‘Forum for Peace and Reconciliation’ and in the negotiations that led to the Belfast Agreement (and the international treaty between Ireland and Britain).

Report of Councillor Finian McGrath T.D. (Dublin North Central)
November 28 – December 5, 2002

My Aims:
A. To ensure a fair trial
B. Safety of the three Irish Citizens
C. Report back to our Parliament, the European Union, the Irish Congress of Trade Unions and the Dublin Council of Trade Unions.

Thursday November 28: Arrived in Bogota, Colombia at 16.10 p.m. Met the media briefly at the airport. Gave our reasons for the visit.
7.30 p.m. We then met the lawyers for the defence. They briefed us on the background on the case and the procedures. Many lawyers in Colombia have been assassinated. They urgently need our support both in Colombia and internationally.

Friday November 29: 8.00 a.m. We went on our visit to the prison
We sat in a small café, opposite the prison, waiting for clearance from the authorities for our visit. La Modelo is situated in an extremely poor quarter of Bogota and the people around us represented the marginalised in this divided and dangerous country. Thousands have been displaced from the countryside. The city, with eight million people, is overcrowded and unemployment is high, despite this being an oil-rich country. The dispossessed make their living through hawking goods on street corners or begging. Yet, once we were allowed into the prison, just metres from the poverty and deprivation, we were met by guards armed with weapons, which must have cost a small fortune.
After being searched and finger printed we passed through the security checks to the inner prison, a dull, grey, gloomy place, where we could feel the tension. Prisoners convicted of or on remand for criminal offences stared out at us with blank faces from behind bars. When we reached the compound, or cage, where the Irish men were detained we were met by three faces, familiar from the posters of the Bring Them Home campaign. They were absolutely elated that we had come. We joked with Martin McAuley who had put on a shirt and tie to greet us.
It was at that moment that I knew I had made the right decision to travel. I thought about those in the media and in the Dáil, who had tried to discourage me from going to Colombia to act as an observer, using all sort of spurious arguments and attempting to score political points. The succour we offered these three men was the support to which they were entitled, the concern of fellow human beings, fellow Irish citizens, anxious for their safety and that they would get a fair trial.
Conditions in the jail were appalling. In a wing designed for 14 they lived along with 40 other prisoners, most of whom belong to the FARC guerrilla movement. Above them is a landing occupied by right-wing paramilitary prisoners who just last year launched an armed attack on the FARC prisoners. I was standing on the spot where prisoners were shot and killed.
We sat in white plastic chairs and chatted for about half an hour. A radio played in the background. The other prisoners nodded to the strangers from Ireland and gave us warm smiles. We were handed a cup of coffee. Some men sat reading or chatting in groups. The prisoners have nothing to do but wait. I met one man who had been on remand for ten years never having faced trial. I thought of what former Beirut hostage Brian Keenan had said: “Concentration on human rights ensures that victims are no longer faceless. And that, I hope, is all of you”.
As we stood talking one of the prisoners pointed to a manhole cover on which we were standing and it was explained that this was were the paramilitaries had dumped the bodies of some of their victims, having cut them up first. In that incident 32 prisoners were killed. In a later incident another ten were to die, most of them at the hands of the 3,000-strong right-wing paramilitary prisoners.
Colombian lawyers, trade union and students spokesperson, agricultural workers, Amnesty International, amongst many other human rights organisations, have all tried to tell the world about the truth of the conflict in Colombia whilst most governments have looked the other way. Besides the deaths in the prisons there were worse horror stories about the outside.
The time passed quickly and we soon had to leave. We said our goodbyes and it was sad to leave them behind, amidst such danger. We were leaving. They were staying. We walked nervously through the corridors of the right-wing paramilitaries and to tell the truth it was nerve-wracking and I could not wait to get to the main prison gate
It was a relief to get away from the hell of La Modelo.

Monday December 2: 9.00 a.m. Spent the whole day at the trial. We met the judge and the prosecution. It was fairly obvious that both were under extreme pressure. Difficult to see how the judge could make a balanced objective decision.

7.00 p.m. We then had a meeting with the Ombudsman’s office. A very open and positive meeting during which they gave us a detailed briefing on the whole prison system. They could make recommendations but did not have statutory powers. They confirmed the many deaths in the prisons. They would come back to us with detailed information. I now have major concerns about safety.

Tuesday December 3: 9.00 a.m. Court all day again. Military Intelligence officer gave evidence. Not impressed with his quality and he made a lot of silly statements.

5.00 p.m: Met the United Nations Commission for Human Rights. This was a confidential meeting.

Meeting with Trade Unions: We met Hector, Effrian and Havier. Very sad and difficult meeting, particularly in relation to the slaughter of trade unionists. 3,800 killed since 1986. 178 in the last year alone. They told us about the deaths in Coca Cola factories. They urged us to contact the American government, the Colombian government, the Irish Government and the Irish Congress of Trade Unions. I gave a commitment to do this when I returned home. They thanked us for coming and expressed their deepest appreciation for our efforts. They presented us with T-shirts.

Thursday December 5: 8.00 a.m. Visit to Jail again. Following major publicity I felt under major threat. Tension in prison. Right wing paramilitaries know who we were. The 3 men were in reasonable form despite being disappointed. There was a bad air around the prison. I spotted men following us. I was very concerned about our safety. I could not wait to get away.

3.00 p.m. Went to the airport. The incident with Paul Hill and the tearing up of his passport was a disgrace. I lodged a formal complaint with the airport authorities. I also made a complaint to our own Minister for Foreign Affairs when I returned home.

Conclusions of the visit
· The men could not receive a fair trail
· Major human rights violations in Colombia
· Breaches of international humanitarian law.
· Men seriously at risk in prison
· Major internal conflict
· Trade Unionists, lawyers and human rights groups in Colombia need our support
Councillor Finian McGrath, TD
Finian McGrath: Independent Irish parliamentarian and Councillor in Local Government representing the citizens of Dublin North Central.
Senator Mary White's Report to An Taoiseach Bertie Ahern TD and Minister for Foreign Affairs, Brian Cowen TD on Human Rights visit to Colombia
1. I travelled to Colombia in my own right as a Senator on the occasion of the resumed trial of the three Irishmen [Niall Connolly, Martin Mc Cauley, James Monaghan] who have been charged with training anti Government FARC guerrillas in bomb making and travelling on false passports . I left Dublin on Saturday 30th November and returned on Wednesday 4th December 2002. The other Irish Parliamentarians in Colombia were Sean Crowe TD and Finian Mc Grath TD. The arrangements for the visit were made by Caitriona Ruane a fluent Spanish speaker (the local language ) who has worked tirelessly on behalf of the three accused.
I funded my travel and accommodation costs from my own resources so as to counter any suggestion that my independence and objectivity would be compromised by the source of funding for such expenses. The other members remained in Colombia for 2 days after the trial and arrived back at Dublin airport on Friday 6 where I joined them.
2. My purpose in going to Colombia was in the interests of the human rights of the three men - their human rights entitlement to safe custody while in prison and to the right of a fair trial. The men were arrested at an airport in Bogota on August 11, 2001.
3. Colombia has been in civil conflict for over 40 years. It is a very violent and dangerous country where those who stand for human rights and due process are at grave risk.
In Geneva on April 18, 2002 Mary Robinson introduced her report on the human rights situation in Colombia. Relevant extracts from her statement on Colombia are as follows:
“I continue to be deeply concerned about the deteriorating human rights situation as well as the recurrent and grave breaches of international law”.
“My Office has observed at first hand the weakening capacity of the State and its institutions to address human rights concerns”
“The rule of law is in grave jeopardy as a result of the lack of a proper administration of justice and the burgeoning paramilitary threat”
Some 40% of the territory is controlled by the left wing FARC group. There are a variety of right wing paramilitary groups who are said to have close links with the Colombian Armed Forces. In 2001 alone, there were 3366 political killings and 775 cases of disappearance and over 300,000 forced displacements. The killings included 10 members of non governmental organisations and 150 trade unionists. The situation continued to deteriorate during 2002. These statistics come from Amnesty International who estimate that 90% of the crimes are committed by the rightwing paramilitary groups.
The courage needed for human rights defenders in Colombia has recently been recognised in the decision announced on 5th December on behalf of the ten leading non governmental human rights organisations in the world to give the Martin Ennals Award for Human Rights Defenders to a member of the Lawyers Collective in Colombia which takes on human rights cases and which is defending the three Irish accused.

4. The Prison
On Sunday, December 1, I visited the prisoners in La Modelo prison in Bogota where the Irish men are held. I was accompanied by Caitriona Ruane. This is the fourth prison that the men have been in since they were arrested in August 2001-
The three Irish men were in the High Security Wing of La Modelo prison.
There were 44 prisoners in the cell/patio with the Irish men. Most of these prisoners are in prison for offences against the state and are member of Revolutionary Armed Forces of Colombia (FARC), Army for National Liberation (ELN) and Trade Unions. The men felt safer in these surroundings because of possible attacks from right wing paramilitary prisoners who are on the floor above them and who would be hostile to them because of perceived links to FARC.
However, they lived in fear of their lives from possible attacks at any stage e.g. in July last a battle in the prison between right and left wing prisoners resulted in 10 deaths and 23 prisoners injured.
The prisoners took turns to hold hourly vigils during the night in order to be alert to an attack.
There is no fresh air getting into the cell/patio and I found it difficult to breath in the cell. The men informed me that they continuously request fresh air but never get it.
95% of the cell/patio has no natural light and no air.
The three prisoners had not been in the open air for over a month and have had no exercise opportunity.
They prepared their own food as they feared that they may be poisoned by the right wing paramilitaries.
Niall Connolly (who is the only Spanish speaker of the three) advised me that in a previous holding center (Dijin), the men were 4 months in small cages 1m x1.5m and could not stretch their legs.
The beds were makeshift mattresses on the floor or in makeshift bunk form
I learnt from The Red Cross that the government does not control or run the prison. In fact the prison is run by the guards and the prisoners.
The prisoners contacts with Ireland and messages of support are important to their continued well being and morale. Their belief that they will not get a fair trial in the particular circumstances of Colombia is an overriding source of concern and anxiety to them.

5. The Trial
I attended the trial on Monday 2nd Dec and Tuesday 3rd December along with the other Parliamentarians, Caitriona Ruane, Paul Hill one of the Guildford Four, Solicitor Patrick Daly ; lawyer Ronan Munro and Shaun Kerrigan an Australian Lawyer. In addition, Frank Durkan (lawyer) and Cody McCole based in New York attended the proceedings.
The Irish Ambassador Art Agnew attended throughout the proceedings. [See Para 7 below]
The prisoners did not attend the trial, on the basis of their belief that they would not receive a fair trial. They are legally represented by the Lawyers Jose Alvear Restrepo Lawyers Collective and the Federation For Solidarity with Political Prisoners, Colombia which have a prominent role in defending cases on a human rights basis. Both organisations have received death threats.
The judge had provided for a translation service from Spanish to English for the observers at the trial.
During a recess in the Court hearing on the first day, the judge, Jairo Acosta, invited the Parliamentarians, Catriona Ruane and the other observers to have a meeting with him in the court room. At this meeting, the judge listened to the concerns of the observers.
He indicated his intention of having another such session on the following morning but this did not materialise due to the dramatic adjournment of the trial because of the failure of two witnesses for the prosecution to appear at the trial.
Day 1 of the Trial. The prisoners did not attend the trial on the advice of their Colombian defence lawyers. The hearing began with the Judge seeking to call the witnesses who had travelled from Ireland before the prosecution witnesses. The defence refused this procedure. The judge then called for the attendance at 1:00pm of a witness for the prosecution - Major Carlos Eduardo Matiz of the military intelligence branch of the Colombian army.
The first afternoon was taken up with the evidence of Major Matiz. He produced two manuals of bomb making techniques which he said were seized from FARC by the army. He had no first hand knowledge of the circumstances in which they were found. He produced no evidence to link the manuals to the three accused. I was sitting just about 2 feet away from the witness.
[I understand that one of the manuals is in Spanish and the other in English which is a copy of a book published over 23 years ago which is currently out of print but available on the Internet].
On Day 2 of the Trial: Neither of two prosecution witnesses due to appear turned up in Court. The two are supposedly former FARC guerrillas who have defected.
One is in a prison some 80 kilometres from Bogota but according to the judge was too scared to travel by roa

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