The men in the Colombia case were convicted because appeal judges ruled that the circumstantial evidence was against them, reports Deaglán de Bréadún, Foreign Affairs Correspondent
Differences of legal interpretation and greater tolerance for acknowledged defects in prosecution testimony lay behind the reversal of the original court decision in the case of the so-called Colombia Three.
The process by which a verdict of not-guilty on a charge of training FARC guerrillas became a guilty one on appeal becomes clear in the text of the appeal tribunal verdict, which has been seen by The Irish Times.
Whereas Judge Jairo Acosta, who oversaw the original trial, ordered two key prosecution witnesses, both of them alleged FARC deserters, to be investigated for perjury, the appeal tribunal accepted their evidence as true, while admitting there were contradictions in their testimony.
In reaching his verdict, Judge Acosta placed considerable importance on discrepancies and inconsistencies in the prosecution evidence as regards the dates on which particular events allegedly took place. But in its written judgment the appeal tribunal considered such discrepancies an understandable consequence of a witness's isolation.
The three Irishmen, James Monaghan (59), from Co Donegal, Martin McCauley (42), Lurgan, Co Armagh, and Niall Connolly (39), Dublin could not be traced after the appeal verdict was issued in Bogota last month.
The original verdict in the case was issued by Judge Acosta in the Colombian capital last April 26th. The three men were acquitted on the main charge of training the FARC, but were given sentences of between 26 and 44 months for possession of false passports.
The Public Prosecutor, Dr Carlos Sanchez Peinado, appealed the verdict and the men were given conditional liberty with orders to remain in Colombia pending the result of the appeal. In an appeal ruling issued last December 16th, the not-guilty verdict on the charge of training the FARC was reversed. McCauley was sentenced to 17 years' imprisonment and a fine of approximately $210,000, and Monaghan and Connolly were each sentenced to 17 years and six months and fines of approximately $240,000.
Both Judge Acosta and the appeal tribunal agree that there was insufficient direct evidence to convict the three men. But the tribunal accepted the prosecutor's contention that the sum of the circumstantial evidence interpreted as a whole was sufficient to prove their guilt.
The appeal judges - or at least a majority of them, since one of the three is said to have dissented from the ruling - were not convinced of the three men's claim that they were tourists, because they did not appear to have the income to fund their travels.
According to the transcript of the appeal verdict: "None of these three people could satisfactorily show what they do in their countries of origin that would be able to fund the costs of a trip around the world, stopping off in several cities in various countries, if as they say they are merely travelling"(Irish Times translation from Spanish).
In the original trial, Judge Acosta had been so unimpressed by the evidence of prosecution witnesses John Alexander Rodriguez Caviedes and Edwin Giovanny Rodriguez that he ordered a perjury investigation.
But in its judgment the tribunal states "it is not about discarding or taking on board the testimonies in their entirety, but to pick out the elements that can be proved and are related to what is being judged".
In the case of Mr Caviedes, the tribunal admits "there are discrepancies in some of the dates" and "there are some inconsistencies regarding the presence of the Irishmen in the FARC-controlled area" (the so-called demilitarised zone temporarily ceded to FARC during the now-defunct Colombian peace process). The witness contradicts himself, saying he had not been present at training courses given by the Irishmen, which he previously claimed to have attended. But the appeal judges were tolerant of the discrepancy. The evidence of this witness could not be discounted despite "many inconsistencies".
In reaching their verdict, the appeal judges said: "This is a man who has been without permanent contact with civilisation for a long time and this has caused him to be confused about months and year, as he has not had any need to follow the calendar nor write reports requiring him to know the date. This is not important information for him and it makes no difference to him whether it is one year or another."
In this appeal ruling, the tribunal makes much, on circumstantial grounds, of the fact that the three accused were reported to be in such a remote location because "not even the most meticulous thought process could explain any other motive for being in such an area which was unknown to them, in such an isolated hamlet in a solitary woodland, other than that to commit the crime".
The tribunal accepts the evidence of RUC witnesses that the accused, or some of them, had "key knowledge" and "expertise in home-made explosives".
The use of false documents to enter Colombia carried great weight with the tribunal: "This is clear evidence that the accused were trying to hide their true identity, not because of possible persecutions that they may have been subject to but precisely because they were planning to carry out illegal activities and the last thing they wanted was to be recognised either as terrorists in the case of the first two, which is information that police agencies around the world possess, or in the case of the third for being a representative of Sinn Féin, a party which opposes the British government and which has given support to terrorist groups."
Summing up, the tribunal states: "Although the individual pieces of evidence do not stand up completely on their own, the analysis should be carried out of all of the pieces of evidence together. The role of the accused in the crime or crimes can be certified from such an analysis."
The use of non-conventional explosives was a "speciality" of the Provisional IRA. "The Irishmen did not come to learn about the peace process when the peace process in their own country was far more advanced."