Bring Them Home Campaign, Delegation to Colombia, February and March 2003, 2nd INTERIM REPORT

national | miscellaneous | news report Friday April 04, 2003 22:21 by bring them home campaign

March 24 2003

This is the second interim report prepared by a delegation of political and legal observers that attended the trial of Niall Connolly, Martin McCauley and Jim Monaghan in Colombia in February and March 2003. The delegation from Ireland comprised of Fianna Fail Senator Mary White, Sinn Fein TD, Sean Crowe, solicitor Pat Daly and Rory Munro BL. US lawyers Steve McCabe and Natalie Kabasakalian and Australian lawyers Shaun Kerrigan and Ian Latham also attended the trial in Bogota between 5th and 7th February 2003.

Introduction
This is the second interim report prepared by a delegation of political and legal observers that attended the trial of Niall Connolly, Martin McCauley and Jim Monaghan in Colombia in February and March 2003.
The delegation from Ireland comprised of Fianna Fail Senator Mary White, Sinn Fein TD, Sean Crowe, solicitor Pat Daly and Rory Munro BL. US lawyers Steve McCabe and Natalie Kabasakalian and Australian lawyers Shaun Kerrigan and Ian Latham also attended the trial in Bogota between 5th and 7th February 2003.
They were accompanied by the spokesperson for the Bring them Home campaign, Caitriona Ruane and Therese Ruane, both of whom are fluent Spanish speakers.
Pat Daly and Caitriona Ruane also attended a hearing of the trial in Medellin on 4 March 2003 where evidence from another witness was heard on Commission.
As detailed in the various reports the trial of the three Irishmen is deeply flawed and concerns are raised about the legal process, the safety of the men, their lawyers and, indeed, the international observers themselves.
Prejudicial statements by key members of the Colombian political establishment which were highlighted in the 1st interim report published in December 2002, and which have contaminated the legal process are once again reported.
The delegation also recounts meetings held with senior Colombian politicians and officials and visits to the men in La Modelo jail.
The men were returned to La Modelo in Bogota following their sudden move to Combita high security prison 87 miles from Bogota in late December despite assurances from the Colombian authorities that they would not be moved outside the capital.
Paul Hill, who attended the previous hearing of the trial in November was prevented from travelling with the delegation in February as the Colombian authorities failed to process his visa application in time for the trip.
As outlined in the first interim report of December 2002, Paul Hill's passport was torn from its cover by members of the Colombian intelligence service DAS as he departed from the international airport in Bogota on that occasion.
Complaints about his mistreatment and the harassment of other members of the delegation, including serious threats made by anti-FARC protestors outside the court in Bogota, have been made to the Colombian and Irish governments.
A recommendation has been made to the Irish government that it should urgently intervene with the Colombian authorities to have this trial terminated on the grounds that the men cannot receive a fair trial.
A further report will be compiled following the hearing on April 8, 2003 when the defence case will be presented for the first time.
A delegation of political and legal observers as well as a number of witnesses from Ireland and Britain will attend the April hearings.
These individual reports involve a degree of repetition. Both interim reports have been presented to the Minister for Foreign Affairs, Brian Cowen TD.

Table of Contents
Reports:
1. Parliamentary Observers
(a) Seán Crowe T.D page 7
(b) Senator Mary White page 11

2. Legal Opinions
(a) Ronan Munro (Barrister) page 16
(b) Pat Daly (Solicitor) page 18
(c) Shaun Kerrigan (Lawyer) page 21
(d) Steven M. McCabe (Attorney At Law) page 24
(e) Natalie Kabasakalian (Attorney At Law) page 27
Reports of Meetings attended:
(a) Colombian Vice-President Santos page 34
(b) Dr Clemencia Forrero, Colombian Vice-Minister for Foreign Affairs page 37

Selected Conclusions page 39

Seán Crowe T.D.
The resumption of the Trial
The resumption of this phase of the trial on February 5th was once again surrounded by controversy. The decision of the Colombian authorities not to allow a visa application for human rights activist and trial observer Paul Hill, seemed, at face value, an attack on the right of the International delegation to observe the trial. The delegation were extremely concerned about his failure to obtain a visa, particularly following the previous visit and the incident in which his Irish Passport had been deliberately torn and damaged during his passage through Bogota Airport by a member of the Colombian security service, DAS.
Protests outside the Court
On the first day of the trial the delegation were met by the usual heckles and catcalls of about 10 protesters who gathered in the street outside the court. These verbal taunts consisted of remarks like “murderers you have blood on your hands”, to “take your bombs home” etc. The more personalised and threatening language like “you will be got” and “we will have our revenge” was as usual saved for when the delegation was entering the court.
On the second day of the trial the crowd of protesters grew to about twenty with a large group of media in tow. These proceeded to run at the delegation when they were walking up to the court and again hurled abuse at the group. These protesters claimed they were the victims of FARC violence. This intimidation caused alarm to the delegation as some members were isolated from the main group and felt very vulnerable.
The abject failure of the heavy security presence around the court, which included police and army, many in riot gear, to act or intervene, is on reflection, a more serious and potentially dangerous development. This new threat can only be seen as a crude and rather blunt method of pressurising the delegation, primarily to discourage and prevent them from carrying out their important role of observing the trial. The fact that the state in the form of the security presence failed to respond to this clear and open threat is a worrying trend and does not augur well for future hearings,
Meeting with the Vice Foreign Affairs Minister, Dr. Clemencia Forrero
The meeting with the Minister was held 7/2/03. The delegation raised our concerns about the prisoners’ move to Combita Prison outside Bogota and the safety concerns, not only for the men, but also for their lawyers and families
We returned to an issue raised with the Minister at our meeting in December regarding 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. The Minister stated that her Government was committed to promoting a fair trial but didn't believe these statements would impact on the trial.
I said that I realised the importance of this case internationally for the Colombian people but these statements raised many questions about the Colombian justice system. I reminded the Vice Minister that she had given us assurances that the delegation would receive the utmost co-operation from the authorities yet only a few hours later a serious incident with Paul Hill occurred. I explained that I had raised this matter within the Irish parliament and went on to say that Mr Hill was very upset by this incident. I also said that during the time he was here in Colombia the media had described him as a terrorist, even though it was recognised throughout the world that he had been a victim of a miscarriage of Justice. I told her I had been present at the airport when the complaint was made and the supervisor would not give his name. Caitriona Ruane made the complaint to the supervisor when the individual who carried out the deed had disappeared and as she did so, two other officials were giggling and laughing on a mobile phone. We also said it was unfortunate that Mr Hill had not received the necessary visa to observe the trial particularly after the airport incident
The Minister said she was aware of the case of Paul Hill and sympathised with him. She still maintained that the necessary documentation was not available on time and suggested that we should communicate our concerns to Vice-President Santos of Colombia, who is in charge of Human Rights at our planned meeting.
I raised the concerns we had over the hearing of evidence of one particular witness, John Rodriguez Caviedes by Commission.
I said that the delegation had had a meeting with the trial Judge and that he had said that the Commission in Medellin was happening, not for security reasons but for lack of resources, and that he could not compel a witness from another jurisdiction in the country to come to Bogotá. This Commission we contended would be looked at internationally with some alarm. There was also the added difficulty of travel and the safety of observers attending this Commission and the fact that the trial Judge would not have an opportunity to question the witness himself.
We said that we had been told that the cost to bring a witness to Bogotá was approximately $200 whereas to move the Fiscalia, the lawyers, etc to Medellin would cost a lot more. We said that the delegation would make the offer of this money but it would be seen as an insult to the Colombian people.
The Vice-Minister said that Medellin was in the heart of Colombia and was very safe and if necessary she said that the Government would offer protection for the delegation. She said that she was unaware of the difficulties surrounding the Commission but that it must involve other difficulties besides the $200.
Meeting with Vice President Santos
We began by outlining our concerns surrounding 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 Delegation then raised the very real concerns that existed around the treatment and safety of the men and of their lawyers, who have received a number of death threats. We asked him to use his influence to make sure that every step needed is taken to ensure the safety of the men and those associated with this high profile case.
The delegation said that they fully realised that the country was in the midst of a conflict but were extremely concerned about prejudicial statements being made in relation to the case.
I said that a central tenet of international law is the presumption of innocence and that it still has not been clarified if it is legal under Colombian law to make such statements. The Vice-President said he didn't know if it was legal but a 'tutela' or a judicial review could be taken if it is felt that there has been an infringement.
We raised a number of doubts we had about the men's ability to receive a fair trial given this negative pre-trial publicity. We told him that we had asked the Vice Minister for Foreign Affairs 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. We said we were still awaiting that reply.
The Vice President explained that under the Colombian system there was a clear separation of the political and judicial process now that the trial was underway. We also expressed our concerns at the abject failure of the Prosecutor's office to have their witnesses turn up for the trial, despite agreeing 65 days before to have them ready.
I raised the delegation's concerns about the intimidation and harassment suffered by the delegation on their way to court and stated that as observers, the delegation should be offered some protection from the protesters.
We explained to the Vice President that we intended to visit the men in La Modelo Prison and that they had only been transferred back to La Modelo from Combita Prison. We also stressed to him how important it was that the three men be kept together in Bogota and accessible to their lawyers.
We said that on our last visit the vice-minister for Justice had 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.)
The vice President then went on to say that the three Irishmen had found themselves in a conflict situation and that no other trial defendants in the state had access to the higher echelons of Government like the vice President, the vice Minister for Justice, the vice Minister for Foreign Affairs etc.
One of the observers then asked him in view of the public statements made by prominent officials of the state would he consider making a statement publicly saying that men were innocent until proven guilty and the case would be decided by the courts. The Minister appeared to say he would. He also said that because of previous incidents in the airport that protocol would meet us there and usher the delegation through. This protocol failed to materialise and I was left standing at the counter for about twenty minutes with Caitriona Ruane awaiting clearance by a member of DAS.
The Trial
Edwin Giovanny Rodriguez
The demeanour of the witness changed considerably over the course of the trial interview. He seemed to go from someone absolutely terrified to someone extremely arrogant and angry. He said his life was in danger and that he feared for his family who he claimed had gone missing. He seemed to drift from talking about his child to children which was confusing. His descriptions of the three accused didn't seem to match with the men we met in La Modelo. I felt that the defence lawyers were not permitted to question this witness fully. It appeared as if the Judge was trying to 'protect' him.
Evert Becerra Marin – GIAT Interinstitutional Anti Terrorism Group
The witness gave us plenty of technical information on explosives but his information from what I could follow was of little use to the trial as there did not appear to be any linkage to the three accused. Again he didn't seem to know anything about groups in the region or on the Continent that have used explosives, facts which, one would imagine, would have been known as part of his basic training.
Conclusion
Vice President Santos’ assurances regarding prejudicial statements were not much help as we read on the plane on our way home in Newsweek Magazine that the Colombian President Uribe had in the course of an interview with the magazine claimed that the Irishmen who were in custody were guilty and involved in training FARC in explosives.
The bombing of El Nogal a Health Club in Bogota in which 33 people were killed and over 100 injured was used in the media to link the conflict and the three Irishmen. Prejudicial statements were once again made by the most senior political and military figures in the state after this bomb including by vice President Santos. The movement of the three Irishmen to a jail outside of Bogota makes it extremely difficult for the men and their lawyers to put together a defence.
The heightened conflict in Colombia is making it extremely dangerous for anyone associated with this high profile case.
The very basic assurances regarding protocol at the airport for the delegation by vice President Santos didn't materialise.
The mob at the court running at the delegation while the police and army looked on is a worrying development as everyone associated with this trial now seems to be under threat. The removal of the translation system makes it very difficult to follow the trial.
It is obvious that after the latest prejudicial statements that the basic tenet of International Law the right to a fair trial has been totally undermined.
The Irish Government should, even at this late stage, send an official legal observer to this trial. An official complaint needs to be made to the Colombian Government regarding these latest prejudicial statements if one hasn't been made already.
Seán Crowe T.D.

Senator Mary White
Tuesday, 11 February 2003
This is the report of my second visit to Colombia to attend the resumed trial of the three Irishmen Niall Connolly, Martin McCauley, and James Monaghan who have been charged with training anti-Government FARC guerrillas in bomb making and in travelling on false passports.
The resumed trial took place in the court in Bogota from Wednesday February 5 to Friday February 7.
I participated in meetings with the Vice-President Francisco Santos of Colombia on Friday February 7 in the Presidential Palace and had individual one on one meetings with the three Irish accused in La Modelo prison, Bogota on Saturday February 8.
1. I travelled to Colombia again in my own right as a Senator. I left Dublin on Monday evening February 3 and returned on Monday February 11 2003.
2. As on the previous occasion 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.
3. My purpose in making my second visit to Colombia was in my continued interest in the human rights of the three men - their human rights entitlement to safe custody while in prison and to a fair trial. The men were arrested at an airport in Bogota on August 11, 2001.
4. Colombia has been in civil conflict for over 40 years. It is a most violent and dangerous country where those who stand for human rights and due process are at grave risk. As I stated in my report of the trial in December, Mary Robinson, the previous United Nations High Commissioner for Human Rights, in Geneva on April 18, 2002 introduced her report on the human rights situation in Colombia.
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 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”
The Trial - Day One, Wednesday February 5, 2003
I attended the trial along with the other international observers. The Irish Ambassador to Mexico, Arthur Agnew also attended the proceedings.
We were deeply disappointed that we were not provided with a translator as we had during the previous trial. (I took this matter up later at our private meeting with Judge Acosta). I received a simultaneous translation for this part of the trial from Ambassador Agnew.
The first witness was Edwin Giovanny Rodriguez, a FARC deserter who is currently in prison. This man was one of the witnesses who had failed to turn up at the trial in December as he was too afraid to travel from prison by road. The judge had ordered on that occasion that he should be brought (by air) in safety to the trial in February. The witness was wearing a bullet proof vest and looked terrified. When the Judge, Jairo Acosta, requested the witness to take the oath the witness declined and said that he did not wish to proceed until he was fully assured of the safety of his family and himself. He said that he wanted himself and his family to be put into a witness protection programme. After efforts by Judge Acosta failed to convince the witness to testify, the judge postponed this witness’s evidence until Friday February 7 to give time to ensure that the physical safety of the witness and his family would be put in place.
The second witness was Captain Orlando Pulido Parada of the military police of the Colombian army. The witness told the court that he had been told that three foreigners were arriving at Bogota airport. He stated that he had instructions to check them and their documents. The men were subsequently arrested at the airport by the captain and brought without resistance to a military barracks. The defence lawyers claim that Captain Pulido carried out an illegal arrest of the men and that he perjured himself on the stand to justify the arrest. He also confirmed that he rang the British Embassy and the US Embassy.
The third witness was a military ordnance officer in the Colombian Army – Evert Becerra Marin. He gave an extremely technical explanation of FARC explosives and devices from 1998-2002. Those who could follow this extremely technical evidence said that they could not see any direct link to the arrival of the three accused to Colombia in 2001.
The defence questioning of this witness concentrated on asking if many of the shell cases could not have been made in Colombian foundries and they gave examples of several workshops found even on the outskirts of Bogota and asked if it was necessary for foreigners to give help to the FARC.
Thursday Morning, February 6
1. Judge Jairo Acosta at a private meeting with the Irish and international observers said that President Pastrana and General Tapias were overstepping the mark in the comments they had made about the accused. He said that these remarks could be seen as pressure but that the Judiciary have no power over the executive in what they say.
2. The judge stated that where the prisoners were imprisoned was under his jurisdiction and that they were moved without his permission while he was on holidays before Christmas. I requested that they should not be moved from Bogota again for reasons of security (moving through the countryside would be most dangerous for the three accused), for easy access for family visits from Ireland and for easy access for their Colombian Lawyers.
3. Judge Acosta has authorised that a key witness John Alexander Rodriguez Caviedes who is in a witness protection programme be heard “on commission”, whereby another judge in Medellin will take a statement from the witness.
It looks as if the defence lawyers will not be able to cross examine this witness. The reason stated by Judge Acosta for this course of action is that the witness programme refused to pay the costs to bring the witness to the court in Bogota. The cost of an airfare from Medellin to Bogota is $200. The observers expressed disappointment with the decision to hold this next stage of the trial in Medellin. At this moment in time there was no date fixed for this next stage. (The hearing on Commission took place in Medellin on 4 March.)
4. I also expressed disappointment that there was no translation as on the previous occasion. I expressed my concern about the way in which the allegations against the three men, as yet unproven, were being used to undermine the peace process in the north of Ireland.
Day Three of the Trial, Friday, February 7
Edwin Giovanny Rodriguez returned to the witness stand and took the oath - this is the witness who had failed to turn up for the trial in December and who had refused to testify on Wednesday, February 5. The look of terror that the witness had on the Monday was no longer on his face. Under questioning by the judge, the witness said that he was 26 years of age and that he had a wife and child. He told the court that his wife and child have disappeared since Sunday, February 2 and no one knows where they are. He said that he could not read or write. He said that he had been scraping cocoa leaves since he was 12 years of age. He had joined the FARC three years ago when he was drunk and had been with them for three years. His job was to drive a commander of the FARC. He said that when he saw on TV the three “gringos” arrested in August 2001, he recognised them as three men who had been in Colombia in the FARC territory between the dates February 5 and February 25, 2001.
He said that he recognised them as “gringos” who were training FARC between these dates.
The importance of Edwin Giovanny Rodriguez’s evidence is that he confirmed repeatedly in his evidence that he saw the three Irish accused training the FARC between the dates of February 5 and February 25, 2001.
Meeting with the Vice President of Colombia, Francisco Santos, on Friday, February 7 at the Presidential Palace in Bogota
Ambassador Agnew accompanied the Irish and international observers to the meeting with Vice-President Santos. The vice-president speaks fluent English.
Human Rights concerns and issues are the among the responsibilities of Vice-President Santos.
The observers stated that they had serious concerns about the possibility of the three Irish accused getting a fair trial in Colombia when the previous President of Colombia, Andres Pastrana and the Military Commander, General Tapias had made prejudicial comments about the men before they even had a trial.
Irish barristers Ronan Munro requested that the vice-president make a public statement asserting that the men are innocent until proven guilty. Concern was expressed for the safety of the observers in the light of the aggressive and intimidatory protest the previous day at the court where the police and army present stood by.
Vice president Santos said that like many judicial systems in South America, the Colombian one does not function perfectly. I said that the three accused were being used constantly in a provocative manner to disrupt the peace process in the north.
I said that the men had been languishing in prison for 18 months and have been moved from prison to prison without their lawyers and family being informed. I requested that he ensures that the three accused are not moved again from prison in Bogota.
Meeting with the three Irish accused in La Modelo Prison on Saturday, February 8
I met with Jim Monaghan, Niall Connolly and Martin McCauley in La Modelo Prison and spoke with them individually.
The accused Jim Monaghan and Martin McCauley have told me honestly that they have records and documents which prove that they were not in Colombia between February 5 and 25, 2001 and only arrived there in June. I did not have time to ask Niall Connolly personally when he was actually in Colombia but I am assured that he was in Cuba in February 2001.
I told the men that I had requested the judge and the vice-president that they should not be moved from the prison in Bogota again. They had been moved to Combita before Christmas without the judge’s permission.
Case for intervention by Minister Brian Cowen with the Colombian Authorities
In a normal judicial process, governments do not involve themselves in the judicial process of another jurisdiction.
However this case is not a normal situation for the reasons set out below.
1. The UN Report of Mary Robinson which indicated grave concerns about the rule of law in Colombia.
2. The prejudicial comments by former President Pastrana (Aug 15, 2002), and the head of the armed forces General Tapias. (April 2002) which presumes the guilt of the three accused.
3. In the current issue of Newsweek magazine, President Uribe of Colombia when asked if he believed that the FARC guerrillas were part of an international terrorist network stated “We have in Jail some IRA members who came to help the FARC”. This is highly prejudicial from the current President in its contention that they were helping the FARC – the very issue which the current trial is considering.
4. The US channel, ABC News On Line, in commenting on the bombing in Bogota on Friday night stated that “The IRA are known to have helped the FARC in the past. Last year three of their members were arrested in Colombia and are still being held there. They are accused of holding mortar, bomb and other sessions”.
It is difficult for these three Irish men to get a fair trial against the background of prejudicial comments by the international media and national media in Colombia.
5. Colombia is a Presidential system of government where the powers and influence of the President are pervasive in the legal, military, prosecution and media of the country. So his Newsweek comment is likely to be taken seriously and influence many persons in Colombia.
6. The Colombian government has politicised the case internationally, chiefly in Washington, London and Belfast. Apparently, Ulster Unionist Party leader David Trimble has met with senior Colombian government figures.
7. The conduct of the government side in the case has not been consistent with an open and impartial administration of justice e.g. failure to produce witnesses as promised; producing witnesses with no evidence of a link between the accused and FARC training.
8. The state have detained the men in prison for 18 months while the prosecution case proceeds slowly from trial to trial with key witnesses not appearing as promised.
9. The accused have moved between jails without the permission of the judge. For example, after the trial in December the men were moved while the judge was on holidays to the prison in Combita. When the trial was resumed last week, he ordered that they be returned to La Modelo prison in Bogota.
10. The prosecution has failed to produce any evidence or witnesses of substance - this is in marked contrast to the stories of the accused training FARC guerrillas in bomb making and to explosive substances being found on their clothing which gained worldwide circulation in August 2001 and which had a most negative impact on the peace process in Northern Ireland. I am accordingly suspicious of the source of these original accusations and the motivation for them at a crucial stage in the Irish peace process.
11. The principal witness, the FARC defector and currently a prisoner, Edwin Giovanny Rodriguez’s who had refused to come to the court in December, was clearly terrified on his first appearance on Wednesday of this week (February 5) because the state had not provided satisfactory safety for him. His wife and child have now disappeared. What pressures are on him? The accused Jim Monaghan and Martin McCauley have told me honestly that they have records and documents which prove that they were not in Colombia between February 5 and 25, 2001 and only arrived there in June 2001. I did not have time to ask Niall Connolly personally when he was actually in Colombia but I am assured that he was in Cuba in February 2001.
12. It is worrying that Judge Acosta authorised that a key witness John Alexander Rodriguez Caviedes who is in a witness protection programme, to be heard “on commission”. The reason stated by Judge Acosta is that the programme refused to pay the costs to bring the witness to the court in Bogota. The cost of an airfare from Medellin to Bogota is $200. To date the defence or observers have not been told when this will happen.
13. There has been very clear and negative fallout for Irish citizens in their dealings with the Colombian government. The situation on the ground is growing more hostile all the time although individual Colombians continue to be very friendly.
14. Business people wishing to visit Colombia on trade business now need visas to enter Colombia. (Until the arrest of the three Irish men, Irish people did not need visas to enter Colombia). The granting of visas is via the Colombian Embassy in London and there are troublesome delays in the granting of visas for business people.
I recommend that in the light of the above:
Minister Brian Cowen should:
- Express publicly his growing concern over the possibility of a fair trial given prejudicial comments by the leading political and military figures and the handling of the trial by the prosecution. There is little recognition that a person is innocent until proven guilty.
- Express these concerns face to face with his counterpart in Colombia and seek to have the trial expedited and witnesses produced as promised. If the trial continues to stumble from hearing to hearing with farcical episodes at each hearing, there is a strong case for its termination in fairness to the accused .
The Irish delegation has sought a meeting with Minister Brian Cowen.
Concluding Remarks
The situation in Bogota is one of increasing tension, volatility and danger as evidenced by the car bomb in the capital which killed 33 people. The political and media references to the IRA as assisting FARC are creating an increasing atmosphere of hostility and intimidation towards Irish people including those resident in Bogota. The protests outside the Courthouse are most intimidatory towards the Irish observers. There is increasing risk that this hostility and intimidation will result in a loss of life of Irish people, including the three accused, at the hands of the many para-military groups in Colombia.
Senator Mary White
Tuesday, 11 February 2003

Ronan Munro, B.L., Dublin
I have also appended a note of a delegation meeting which is relevant to this supplemental opinion – see Appendix A.
Agent: Madden and Finucane and Co., 88 Castle St, Belfast.
Querists: James Monaghan, Martin McCauley and Niall Connolly
Query
This opinion is a supplement to and should be read in conjunction with my interim opinion on the above matter of January 17, 2003.
Agent requests update or revision of 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 statement made by the President of Colombia in relation to the trial of the three accused (hereinafter referred to as “the statement”) has violated any rights relating to the presumption of innocence as guaranteed by the relevant international conventions on human rights. The text of the statement has been furnished by agent.
The Statement
There have been a number of statements by various Colombian public agencies in relation to the case set out in the earlier opinion. Another one in particular was published since the original interim opinion.
1. The current president of Colombia, President Uribe was interviewed by Lally Weymouth in an article published on the 10th February, 2003 in the periodical Newsweek. In reply to a question “Do you believe the FARC and other terrorist groups are part of a larger network” he answered
“We have in jail some IRA members who came to help the FARC”.
As far as agent is aware, there are no other persons in a Colombian jail suspected of being IRA help for FARC. Therefore, I am operating on the assumption that the above reply refers to the querists and will be understood to be so in Colombia.
Effects of declarations of guilt by public agencies
One of the negative effects of declarations of guilt identified by the European Court of Human Rights was that they “encouraged the public to believe [the accused] guilty” (Allenet de Ribemont v. France 20 EHRR 557).
I note that on the 7th February, 2003, outside the court in which the men are being tried, certain members of the public attended in protest.
The crowd consisted of 15-20 persons approximately and they were chanting slogans and protests. As the observer delegation approached, they mingled with and separated the delegation. Ms Caitriona Ruane instructs me that the chants referred to the members of the delegation. Ms Ruane translated them as, for example “Judge, do not let the terrorists inside” “You will pay”. I am instructed also that a certain Mr Obregon, who appears to be a protest organiser said to Ms Ruane in English “You are cool now, you have your strategies, but you will pay”.
I am instructed that the thrust of the protests was to identify the delegation as terrorists or supporting terrorism.

Conclusion
It follows, on the assumption stated, that the current executive administration as well as the former appears to be 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.
Secondly, the effects of the declarations of guilt, appear to be manifesting themselves in the public consciousness as evidenced by the protests. This type of effect was specifically envisaged by the European Court of Human Rights in the de Ribemont case referred to above.
As a result, it appears that the unlawful erosion of the presumption of innocence has been continued by the current President of Colombia and further that its negative effects are manifesting themselves, since the date of the last opinion of the 17th January, 2003.
Again, however this advice must be regarded as interim only, in that the domestic remedies of Colombia are not yet exhausted and the situation may change and it is subject to the reservations in the interim opinion dated 17 January, 2003.
Nothing further occurs.
Ronan Munro, BL
19th March, 2003
APPENDIX A – Note of delegation meeting relevant to the above.
There was a meeting between the observer delegation and Vice-President of Colombia on the 7th February, 2003 in Bogota, Colombia.
Present from the observer delegation were myself, Senator Mary White, Sean Crowe T.D. and lawyers Pat Daly, Shaun Kerrigan, Steve McCabe. Also present were Caitriona Ruane and Therese Ruane
At this various topics were discussed including the presumption of innocence. The Vice-Minister emphasised the separation of powers, judicial and executive. His understanding of this principle was well developed and in accordance with internationally recognised human rights standards. He said it was not appropriate for the Executive or his government to interfere in the judicial process.
I indicated to him that his understanding of the law mirrored the view expressed in my written opinion of the 17th January, 2003, a copy of which had been furnished to his government. I also added that it appeared to me that the former administration appeared to have breached the presumption of innocence as guaranteed by the American Convention of the three Irishmen by various declarations of guilt (outlined in earlier opinion).
In those circumstances, I suggested that an appropriate remedial action might involve the Vice President issuing a public statement supporting the presumption of innocence of the three men.
The Vice President stated that he thought this would be appropriate and indicated that he would consider doing so.
I am instructed that no such statement has issued to date.

Pat Daly, Solicitor, Dublin
Bogotá, 5 and 7 February 2003;
Medellín, 4 March 2003.
Itinerary:
This report is further to my report dated the 16th January 2003. I travelled to Colombia at the request of the families of the three men and the Bring Them Home campaign as part of a delegation which included lawyers from Ireland, Australia and the United States, and politicians, Senator Mary White and Seán Crowe T.D. We were asked to observe the court proceedings, which took place in Bogotá on the 5th and 7th February 2003. In addition to attending at court, the delegation which travelled in February met with the trial Judge, Jairo Acosta, the Prosecutor, lawyers for the defendants, Colombia's Vice-President Santos, representatives of the Ombudsman's Office and a representative of the United Nations.
I returned to Colombia in March of 2003 in order to attend court in Medellín, where the evidence of one prosecution witness, Mr John Alexander Rodriguez Caviedes, was taken on commission because the prosecution said that it could not afford to bring him to court in Bogotá.
Colombia's Criminal Trial System
Colombia is currently in the process of reforming it's legal system and commissions are examining various codes. Up to 1998, Colombia operated a system whereby serious trials were held in courts where Judges, witnesses and court officials were hooded. These courts were held in secret and cases were disposed of, and sentences imposed, in a peremptory fashion.
There are two stages to the trial process in Colombia. The first is the investigative stage under the control of the Attorney-General. During this stage the fiscal is obliged to seek out evidence both in favour of and against defendants. There is, however, a tendency only to look for evidence against. The defendants in this case supplied the names of thirteen potential defence witnesses so that statements could be taken from them. However, before anyone of them could be interviewed, the investigative stage was closed and the Attorney General decided to press ahead with the second stage of the process and charge the defendants.
The judge can call new witnesses at any stage of the process "in order to ascertain the truth".
Involvement of Irish and British Governments in the process:
All evidence gathered at any stage becomes part of the process and can be considered by the judge in considering his verdict. I understand that An Garda Siochána have provided the Colombian authorities with a letter outlining the previous convictions of one of the defendants in the case. It would obviously be inappropriate for evidence in relation to previous convictions to be introduced into a criminal trial in Ireland. The principle of reciprocity should determine that evidence, which would halt a trial in Ireland on the grounds of prejudice, should not have been handed over in any form into the Colombian process. No Irish State witness should travel to Colombia to give evidence, which could not be considered in an Irish court.
Observations:
Having compared trial procedures in this case with internationally recognised standards of fair trial, I have grave concerns about the chances of these three men receiving a fair trial. The first of these is the right to be informed of the charges being faced by the defendants. The prosecution case depends on the credibility of two defectors from the FARC. The first of these to take the stand, Edwin Giovanni Rodriguez, gave evidence on the 7th February last. When this witness was taking the oath, the defence lawyers did not know the nature of the evidence he was about to give, of any places where, or dates or times on which, any alleged crimes took place.
In order to guarantee a fair trial, the right of a defendant to be made aware of the claims against him or her is recognised inter alia in Article 8(2) of the American Convention of Human Rights and Article 6(3)(a) of the European Convention. Similarly, in Ireland it is well established in law that, where defendants are facing serious charges, constitutional justice and fair procedures require that the accused be furnished with the evidence upon which the prosecution case is based prior to trial.
Given this obvious disadvantage, it was more important than ever that the right to examine witnesses should have been upheld. The right to challenge witnesses brought by the prosecution is "a corollary of the right to defence and the principle of equality of arms" according to the International Commission of Jurists and is enshrined in Article 6(3)(d) of the ECHR and Article 8(2)(f) of the ACHR. Under Colombian jurisprudence the burden of proof is "full absolute certainty" and a witness can provide certainty if he/she is clear, coherent, unambiguous and does not contradict himself.
I feel that Judge Acosta could have allowed a more rigorous cross-examination of Edwin Giovanny Rodriguez. For instance, witness was not obliged to answer when asked "what exactly did you see or hear during training?", on the grounds that he is only obliged to answer if he has had anything to add to the testimony previously given in reply to the questions asked by the judge.
By way of contrast, the judge who heard the evidence on commission in Medellín allowed more scope to the defence lawyers to ask the witness John Alexander Caviedes questions for the purposes of seeking clarification of his testimony.
Prejudicial Statements from Public Officials:
Even if procedures in this case were fair, the ongoing comments from public officials in Colombia are now bordering on contempt of the process. Observers of this trial have previously raised concerns about these prejudicial statements. Amnesty International stated on 3rd October 2002 that " the political nature of the charges against the three men, coupled with repeated statements by Colombian Officials implying their guilt before the case is even heard, raise concerns as to the fairness of the trial they will receive". The comments of ex-president Pastrana in the Washington Post that "IRA members were captured in Colombia after training FARC guerrillas in urban terrorism" have been previously reported and were, we were told in one meeting, "inappropriate and violate the presumption of innocence".
The comments however continue unabated. In an interview with the Vice-President Santos referred to an attack by FARC, which killed 32 people, and said, "so somehow they [FARC] got hold it's a coincidence maybe but I don't think so they got hold of that technology which probably we think those three men sold to or trained the FARC on that technology while they were down there". Mr Santos' ministerial brief is Human Rights.
And during the very week of the trial in February, the presumption of innocence was further breached in the February 10th issue of Newsweek. President Uribe, in appealing to the United States for aid equivalent to that being granted to countries in the Middle East to combat terrorism, argued that Colombia is also involved in the war against International Terrorism because "we have three IRA men in jail for helping the FARC".
In our meeting with Vice-President Santos on the 7th February, he stressed the importance of the Separation of Powers. Others have also insisted that the judicial process is sacrosanct and should not be interfered with. This argument, however, presumes that there is no precedent for outside influence. In November 2002, a provincial judge in Colombia, on foot of a Habeas Corpus request, ordered the release of two well-known drug traffickers, the Orejuela Rodriguez brothers. President Uribe and the Minister for Justice accused the judge of "delinquency" and the President said that he would ensure that they would not be freed. The New York based Human Rights Watch has also documented how Attorney-General Osorio "derailed key human rights investigations" into links between the Colombian Military and paramilitaries.
Even among Public Officials in Colombia there seems to be little confidence in the legal system. When the delegation raised concerns about delay with the judge, he told us that "we cannot do speedier trials with our resources. We have to work within the reality of our legal system".
Similarly, the vice-president admitted that the system is imperfect and that it can be improved. The former UN High Commissioner for human rights, Mary Robinson, said that the rule of law in Colombia is in grave jeopardy from, inter alia, the lack of a proper administration of justice. After the decision in the Orejuela case, the Minister for Justice Fernando Londono said that the Colombian legal system is "incapable of dealing with drug-traffickers".
While there has been some progress in the case in that the existing witnesses have given their evidence, it is very unsatisfactory that the prosecution case is not closed as the defence prepare to call their witnesses on the 8th April next. The judge can call more witnesses, if he so wishes, after the defence witnesses give evidence, further prolonging this most protracted of cases.
Given the decision of the Attorney-General to close the investigative stage before the defence witnesses were interviewed this case has been procedurally unfair from the beginning, but the longer it goes on the less chance the defendants have of receiving a fair trial. The statements of the public officials have placed huge pressure on the judge to secure a conviction because this case is being used for political reasons by the Colombian government although the judge himself did stress the separation of powers.
However, the evidence of the prosecution witnesses is as yet uncontradicted. Defence witnesses will be giving evidence on 8th April next.
Pat Daly (Solicitor)

Shaun Kerrigan, Lawyer, Australia
Introduction
The purpose of this report is to provide an overview and discussion of the events and the evidence given at the trial of James Monaghan, Martin McCauley and Niall Connolly on 5, 6 and 7 February 2003 in Bogotá, Colombia. It is an interim report and should be read in conjunction with a previous interim report dated December 2002.
Fair Trial
It is important to again address the structure of the Colombian legal system so that the interim conclusions reached may be better understood.
The Colombian legal system is theoretically similar to the Westminster system in that it has at its core the doctrine of the separation of powers. The Executive and the Judiciary are separate bodies and there is no interference by either of them in the others functions. The doctrine of the separation of powers is the basis of good government and an assurance that individuals will not be tried on a political basis, but according to law.
This trial has, however, been compromised on a number of occasions by the Executive making public statements about the trial and the guilt of the three accused. These statements have been made by the former President in an article published in the Washington Post, by the current President in an article published in Newsweek magazine and by the current Vice President in a BBC radio interview. The comments by all three of these members of the executive have damaged the ability of the three accused to receive a fair trial.
The comments of the Executive members of the Colombian Government in my view have reduced the ability of the three accused to be able to obtain a fair trial. The Colombian people as a result of these comments expect a guilty verdict. The judge who is contracted to his position with review every four years is in a difficult position and it is difficult to see how the expectation that has been derived by these comments cannot result in any verdict other than guilt.
One final procedural point in obtaining a fair trial is that the evidence that convicts the accused should be unambiguous and direct evidence. The legal standard in Colombia is beyond certainty, there has been no evidence that would or could convict the three accused as it currently stands by accepted international standards. That is there is no evidence which would be admitted or relied upon by a judicial officer for the purpose of a criminal conviction in any jurisdiction in which I am admitted or have previously practiced. Further in my understanding of Colombian law there has been no evidence that has been provided which can not be rebutted.
Evidence of Prosecution Witnesses
During the 3 days of the trial, three witnesses for the prosecution gave evidence. The evidence of two of the witnesses, an expert in terrorism and an army officer were taken entirely in Spanish. The evidence of these two can only be dealt with briefly as the translated transcript has not been made available prior to the writing of this report. The evidence of the third man, a FARC deserter was translated during the trial by an interpreter who was engaged by the international delegation and who was given permission by the judge to publicly translate the proceedings as the evidence was being given.
The army officer Captain Pulido was questioned at length about the arrest of the three accused at El Dorado International Airport in Bogotá on 11 August 2001. The evidence of the officer was that prior to the arrival of the three he had received anonymous telephone calls advising that three foreign nationals who had been in the zone were training the FARC in the use of explosives.
The three accused, according to the witness, looked foreign and they were approached. In evidence the witness says that Martin McCauley advised him under questioning that he was travelling on a false passport. It was this that resulted in the arrest of all three men.
The documents concerning the arrest and medical reports of Martin McCauley’s hospitalization shortly after his arrest do not match the evidence of the army officer. Martin McCauley denies making such a statement. That is there is an inconsistency in the evidence given at trial and the contemporaneous documents. This raises concerns as to the accuracy of the evidence and to its truthfulness. This should be of great concern, as without this testimony and admission the arrest of the three men in Bogotá’s international airport by an army officer was an illegal arrest and the detention of the three for more than 19 months has been illegal and the men should be released.
The evidence of the anti-terrorism expert from a Colombian Government organization “GIAT” was at best unconventional. The expert gave evidence about only the FARC and IRA. The witness was unable to answer questions about other organizations operating either in Colombia or South America generally. The evidence provided was not from memory but from a computer database and other memory aids that the witness had with him. In respect of the evidence that could be used to convict the three accused the witness conceded that the technology used by the FARC could have been obtained in Asia. This is a major concession and no reasonable person should be able to make any certain conclusions on the basis of this evidence.
The final witness to give evidence was Edwin Giovanny Rodriguez. His evidence was translated. The evidence itself is contradictory and the thrust of the evidence was that the three men trained members of the FARC in February 2001. Firstly, the dates have been rebutted and the usefulness of the evidence must be questioned. All three of the accused have alibis for February which place them outside of Colombia. The evidence was also marked by the witness consistently repeating that he was illiterate. Yet he was able to give precise details as to the height of one of the accused in centimeters. The witness was also asked questions and answered the same with words in them which he later admitted he did not know the meaning of.
The most significant evidence to be given by the witness Rodriguez is the identification evidence that he gives. It should be noted that unlike the army officer who was shown photographs of the accused this witness was not. This witness says that he knew that his evidence was in respect of the accused because he had seen them on television. He was unable to directly identify the accused. Perhaps of equal importance is the witnesses confusion as to dates. If his evidence was accurate the date on which he says that he knew the three were arrested and that he identifies them from the television conflicts with his earlier evidence as to where he was and what he saw and heard either directly or on television.
The evidence of the three witnesses for the prosecution has considerable flaws and inconsistencies. The evidence is such that it would not be accepted by any reasonable court as evidence of the truth. It is worth noting here that the Colombian system does allow for evidence that is not direct or relevant in seeking the truth. However the evidence that was presented in the trial in February 2003 was inconsistent with the facts that have been presented in the case or individual witnesses own testimony.
Edwin Giovanny Rodriguez
There are three reasons to separate out the evidence circumstances of this witness, which are so significant as to require additional attention. The first is that prior to the cross examination of this witness occurring there was a conversation between the prosecutor and the witness, which was observed by two of the lawyers on the international delegation. The conversation was of short duration, no more than three minutes, it occurred in the court room with the heavily guarded witness leaving the box and approaching the prosecutor and speaking in very close proximity to him in whispers. This action is indeed extraordinary and of concern especially when the witness had earlier in the week demanded protection to give evidence, and during his evidence made claims that he should be allowed to be freed from prison.
The second reason is that prior to giving evidence the witness who was extremely heavily guarded refused on the first occasion he entered the court to take the oath, and he demanded protection. When he did finally give evidence it was given without incident two days later.
The third and final reason is that during cross examination the judge made a ruling that asking questions that had already been asked but putting them in another way was not to be allowed as it might confuse the witness and confusing a witness was not an acceptable way of testing the veracity of his evidence. This again is an extraordinary decision which one can only conclude was made to protect a witness whose evidence was flawed and inconsistent.
Delegation Harassment
The delegation was subjected to more interference in completing their task than on previous visits to Colombia and were the subject of actual harassment by INPEC prison guards outside the court room. This harassment included being video taped and being subjected to excessive searches and intimate body frisking.
Further, the delegation were subjected to an aggressive protest during which local authorities did nothing to stop verbal assaults and jostling of the delegation.
Conclusion
The international delegation were hindered in freely being able to observe the trial between 5-7 February 2003. An incident which occurred outside the court where riot police allowed protesters to mix freely with the delegation, and verbally assault them is of grave concern.
Incidents immediately outside of the courtroom where members of the delegation were hand frisked excessively after they had already been through metal detectors and frisking at the building entrance. Where prison guards with no legal authority denied the delegation access to the court room unless they frisked the delegation (note that this was resolved by the judge ruling that the prison guards had no authority to conduct such searches) and where members of the delegation against their will were video taped entering the court, are not only offensive but intimidating. Such action against international lawyers and politicians can only lead to one conclusion that the observation of the trial is unwanted.
The evidence given during these three days of hearing was inconsistent and would not have been admitted in any jurisdiction in which I have practised. The evidence of these witnesses was either inconsistent with what has already been entered into the case as evidence, or has been subsequently rebutted. One expert witness admitted that the technology the three are accused of introducing could have come from somewhere else. The case against the three accused has not been made out and while Colombian law does not allow for a no case submission such a submission would be appropriate in this case.
Shaun Kerrigan, Lawyer

Stephen M. McCabe (Attorney at Law - Mineola, New York - U.S.A.)
On February 5 and 7, I appeared as an observer on behalf of the Brehon Law Society of Nassau County, New York, the Brehon Law Society of New York and the Irish Parades Emergency Committee, at the trial of James Monaghan, Martin McCauley and Niall Connolly at the First Penal Court in Bogota, Colombia presided over by Judge Jairo Ignacio Acosta.
The three men involved stand accused of aiding in rebellion and of travelling on false passports.
In particular, the three men are accused of aiding an alleged guerilla organization, to wit: the FARC. They are also accused of travelling on false documents.
On January 27, 2003, an Interim Report was issued by the Bring Them Home Campaign which is self-explanatory and which, furthermore, sets forth in great detail the various International Accords which would apply to this case. These Accords include the American Convention on Human Rights, the European Convention on Human Rights and Fundamental Freedoms and the African Charter on Human and Peoples’ Rights.
In addition, the standards of the International Commission of Jurists and the U.N. Human Rights Defenders Declaration are also cited.
In fact, in the Interim Opinion of Shaun Kerrigan, a solicitor from Australia, all of the International Conventions and Protocols that are applicable are listed.
In summary, these Conventions require a fair trial and set forth in great detail the perceived breaches of these Conventions as observed by the First Delegation in December 2002, when that Delegation observed the first segment of the trial.
There is no need to present and repeat the observations made by the First Delegation and accordingly this report will restrict itself to the events of February 5 and 7, 2003.
Lack of a Translator:
Despite the fact that the court was well aware in advance of the attendance of the Delegation, very few of whom spoke Spanish, no translation services were provided during the first day of the trial. An explanation was proffered to the effect that the court itself did not have the power to obtain the services of translators but rather that this was the responsibility of a separate administrative agency. To this observer, this seemed to be a case of passing the buck and perhaps an effort to preclude the Delegation from understanding the nature of the testimony and the proceedings. Certainly a sovereign state such as Colombia was capable of providing translation to the delegation, which included the Irish Ambassador to Mexico, a member of the Irish Senate and the Irish Dáil (Parliament) as well as lawyers from three different countries.
In fact, on the second day of testimony, the Delegation itself had to retain the services of a translator to understand what was transpiring in the courtroom.
Right to Cross Examination:
It is the fundamental right under internationally accepted trial procedures to grant to the accused the right to vigorous cross-examination of witnesses. While it was explained to us that the Colombian legal system is a "search for material truth" as opposed to the Common Law system of an adversary proceeding nevertheless this observer was concerned that objections were sustained to questions put to extremely important witnesses for the prosecution on the basis that the question had been already asked and that the question was confusing the witness.
In the Common Law system, the search for the truth is made easier by adhering to the theory that a truthful witness will not become confused whereas a mendacious one will become more and more confused as he attempts to sort out his lies.
Furthermore, a question may be asked in varying forms and more than once as long as the witness is not being badgered. Once again, the purpose is to root out the truth by vigorous and thorough cross examination.
Prejudicial Statements:
While there may be differences between the Colombian legal tradition and that of the Common Law, nevertheless, both of these systems are superceded by the various Accords referred to above and mentioned in the December, 2002 Interim Report and by internationally recognized standards of fair play guaranteeing a fair trial and outcome.
This observer has serious reservations as to whether or not the three accused are capable of receiving a fair trial under ANY standards of jurisprudence due to the aforesaid as well as for all of the reasons set forth in the Interim Report dated December, 2002.
Non-Jury Trial:
This observer is particularly concerned by the fact that this trial is by the court and not by a jury.
Jury trials have been discontinued in cases of this kind in Colombia since approximately 1989 due to threats to jurors.
It must be kept in mind that other methods have been devised in other jurisdictions to cope with this problem including granting jurors quasi-anonymity such as their being screened from the spectators in the courtroom and other such safeguards to protect them and their identity.
While various authorities in Colombia, including the Vice President with whom the Delegation met on February 5, 2003, have stressed that there is a strict separation of the branches of government, nevertheless, statements concerning the guilt of the three accused have been made by former President Pastrana, the commander of the Colombian Armed Forces, General Tapias and the Colombian Attorney General. All three of these individuals, members of the executive branch of government, commented on the fact that the three accused were members of the Irish Republican Army and were guilty of training the FARC. These statements were made prior to the trial and can only have a chilling effect on the finder of fact and the decider of law, herein the presiding judge. It is understood that two out of the three members of the legal defence team are under threat of death and certainly the court itself must be under pressure despite denials of same, since whatever the outcome there will be those with motivation to exact revenge for the verdict.
Clearly, an anonymous jury would not be under identical pressure.
Missing Witness:
One allegedly crucial witness is currently in Medellin and unable to attend the trial in person due to monetary constraints. Apparently, the government cannot afford to fly this witness to Bogota despite reports