INITIAL IMPLEMENTATION OF THE NEW ACCUSATORY

UNCLAS SECTION 01 OF 04 BOGOTA 002853

SIPDIS

STATE FOR WHA/AND - DHENIFIN, SBELL
STATE FOR L/LEI - HCOLLUMS AND GHARRIS
JUSTICE FOR DAAG MARY LEE WARREN
JUSTICE FOR CRM/OIA - MDRODRIGUEZ, TBLACK, AND PJOSEPH
JUSTICE FOR OPDAT

E.O. 12958: N/A
TAGS: KJUS KCRM PGOV CO
SUBJECT: INITIAL IMPLEMENTATION OF THE NEW ACCUSATORY
JUSTICE SYSTEM


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SUMMARY
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1. ON JANUARY 1, COLOMBIA INTRODUCED ITS NEW CRIMINAL
PROCEDURE CODE IN THE JUDICIAL DISTRICTS OF BOGOTA, ARMENIA,
MANIZALES, AND PEREIRA. OTHER JUDICIAL DISTRICTS WILL MAKE
THE TRANSITION TO THE NEW SYSTEM OVER THE NEXT THREE YEARS.
THE NEW CODE IMPLEMENTS AN ACCUSATORIAL JUSTICE SYSTEM
SIMILAR TO THAT IN THE U.S. THE INITIAL RESULTS OF THE NEW
SYSTEM HAVE BEEN POSITIVE, WITH GREAT IMPROVEMENTS IN
RESOLVING CASES. HOWEVER, MAKING THE SHIFT FROM THE FORMER
INQUISITORIAL JUSTICE SYSTEM REQUIRES A SIGNIFICANT
"PARADIGM" SHIFT IN COLOMBIA REGARDING THE ROLES OF
INVESTIGATORS, PROSECUTORS, DEFENSE ATTORNEYS, AND JUDGES.
THE USG HAS PROVIDED AND CONTINUES TO PROVIDE SIGNIFICANT
ASSISTANCE IN THIS TRANSITION, INCLUDING EXTENSIVE TRAINING
OF INVESTIGATORS, PROSECUTORS, PUBLIC DEFENDERS, AND JUDGES.
THERE ARE STILL CHALLENGES TO THE EFFECTIVE IMPLEMENTATION
OF THE NEW SYSTEM, INCLUDING FINANCIAL PROBLEMS AND RESIDUAL
ELEMENTS OF THE FORMER SYSTEM, SUCH AS THE ROLE OF THE
INSPECTOR GENERAL'S OFFICE. THE DEPARTURE OF CURRENT
PROSECUTOR GENERAL OSORIO, ONE OF THE NEW SYSTEM'S GREATEST
CHAMPIONS, MAY ALSO COMPLICATE MATTERS. THE NEXT FOUR YEARS
WILL BE CRITICAL TO THE SYSTEM'S EFFECTIVE ADOPTION.

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EARLY RESULTS
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2. The initial results of the Government's implementation of
a new criminal procedure code in four judicial districts --
Armenia, Bogota, Manizales, and Pereira -- have been
overwhelmingly positive, as has press coverage and the
overall reaction of the general public. Most of the initial
cases dealt with the type of street crimes that have
traditionally clogged Colombia's court dockets. Cases that
took months -- if not years -- to resolve under the old
system are being dispatched in days or even hours. Of 3,154
persons arrested between January 1 and February 18, 1,834
had already been arraigned -- presented before a judge --
and 1,469 had been charged. Nearly 950 of these individuals
had accepted pleas, and 307 had already been sentenced.
(Comment: The new system has exceeded our expectations in
the transition. Trials have worked well, with well-trained
lawyers and judges generally implementing the new rules
effectively. End comment.)

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BACKGROUND
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3. Colombia's 1991 Constitution precipitated significant
changes to the country's criminal justice system, including
the creation of the Prosecutor General's Office
("Fiscalia"),responsible for investigating and prosecuting
crimes, and the Supreme Council of the Judiciary ("Consejo
Superior de la Judicatura" or CSJ),which administers the
entire justice system. A new criminal procedure code
introduced in 1991 created a justice system that, in theory,
included elements from the traditional inquisitorial system,
based on Continental European procedural law, and an
accusatory system, based on the Anglo-Saxon oral procedural
tradition. In practice, however, the Colombian system
remained almost entirely inquisitorial. Debate over whether
to transition to an authentically accusatory system
continued for the next 12 years.


4. In December 2002, the Colombian Congress amended the
Constitution to introduce a more fully accusatory system.
The Prosecutor General ("Fiscal General") was named as the
head of a drafting commission charged with changing relevant
law, including the criminal procedure code. The USG
provided technical assistance during the drafting phase. The
original draft of the new Code was broadly based on the
Puerto Rican procedural code and the U.S. model. This was a
Colombian initiative, not one promoted by the USG. The
commission, which included representatives of the Prosecutor
General's Office, the Human Rights Ombudsman's Office
("Defensoria del Pueblo"),the Inspector General's Office
("Procuraduria"),the Supreme Court, the CSJ, the National
Police, Congress, and academia, presented its draft criminal
procedural code in July 2003. Congress made numerous
changes to the proposed code and approved it in July 2004.
The President signed it into law the following month.
Although the Colombian code is more strongly accusatorial
than many comparable Latin American equivalents, it
continues to include complicating vestiges of the former
inquisitorial system and other problematic language
sprinkled throughout the code's more than 500 articles.
Even so, the code is a marked improvement over the former
version and represents a dramatic change in the Colombian
criminal justice system.


5. The code will be implemented gradually in judicial
districts throughout the country according to the following
schedule:

January 1, 2005: Armenia, Bogota, Manizales, and Pereira;

January 1, 2006: Bucaramanga, Buga, Cali, Medellin, San
Gil, Santa Rosa de Viterbo, Tunja, and Yopal;

January 1, 2007: Antioquia, Cundinamarca, Florencia,
Ibague,
Neiva, Pasto, Popayan, and Villavicencio;

January 1, 2008: Barranquilla, Cartagena, Cucuta, Monteria,
Quibdo, Pamplona, Riohacha, Santa Marta, Sincelejo, and
Valledupar.

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BASIC ELEMENTS OF THE NEW CRIMINAL PROCEDURE CODE
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6. Under the new code, prosecutors, working with police
investigators, initiate the criminal process with formal
accusations based on evidence developed during confidential
investigations. Judges approve arrest and search warrants,
interception of telephone communications, detentions, the
taking of corporal evidence, etc. Prosecutors present
evidence in open, oral proceedings. Defense attorneys,
representing the accused, confront the evidence and present
their own, if desired. The accused have the presumption of
innocence and the right to remain silent. A judge rules on
the admissibility and weight of evidence and makes a
determination of guilt or innocence. Trials are similar to
the U.S. model, with opening and closing statements and
direct and cross-examination. For security reasons, there
are no juries. Under the old system, prosecutors themselves
acted as investigating magistrates, with the power to issue
search warrants, authorize prolonged periods of detention,
and weigh and give probative value to evidence at the time
of its collection. Consequently, and unlike in the new
system, suspects were officially notified of ongoing
investigations against them in order to have access to
evidence at the time it was made part of the case record.
"Trials" were essentially paper exercises governed by the
written record.

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USG SUPPORT FOR THE NEW SYSTEM
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7. The Embassy has a multi-faceted program to help the GOC
implement the new code. Department of Justice (DOJ)
representatives provide training and technical assistance to
Colombian prosecutors and police investigators, focusing on
two-week training programs that develop practical
understanding of the code and their unique roles in the new
system through hypothetical cases and simulated trials and
crime scenes. USAID provides similar training and technical
assistance to Colombian public defenders. Both DOJ and
USAID provide training and technical assistance to Colombian
judges. The USG has already trained over 10,000 officials.
Through the U.S. Marshals Service (USMS),DOJ provides
technical assistance and training on security for
courthouses and courtrooms and protection for justice sector
officials. The USMS will also provide training and
technical assistance on witness protection. In addition,
DOJ has enhanced Colombia's forensic laboratories' capacity
in the areas of fingerprints, DNA, ballistic, and
documentary evidence, which are key to prosecuting cases in
an adversarial system. USAID has constructed and furnished
35 oral trial courtrooms.

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ISSUES OF CONCERN
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8. The transition to the new accusatorial justice system
will require patience and persistence. The GOC's political
will is critical, particularly in providing the additional
financial resources necessary to ensure proper
implementation of the system. Some of these resources can
come from adjusting or refocusing existing budgets. In
addition, the Government could designate assets forfeited by
narcotics traffickers and other criminals to subsidize the
transition to the accusatory system. There continue to be
numerous areas of need in this transition, including
additional courtroom space and security, enhanced case
management systems, improved evidence room facilities and
security, and adequate office space and office equipment for
the various officers of the court. Prosecutors, police,
judges, and public defenders must continue to receive
training and technical assistance through at least 2008,
when the system will be fully implemented throughout the
country. Training on subjects such as witness protection
and security for courtrooms and judicial personnel must also
be enhanced.


9. A serious concern at this time deals with the training of
judges. The CSJ's judicial training school has contracted
the National University and consultants from the private
"Universidad Externado" to develop a judge's manual and
provide training for judges. However, both these
universities' law school faculties generally opposed the
adoption of an accusatory system and the new criminal
procedure code. Their preference is to maintain a more
Continental European model, rather than the American model
introduced by the new Code. As a result, the manual and
training programs they have developed emphasize the role of
the judge as an active participant in decisions on charges,
the presentation of evidence, and the questioning of
witnesses. This is in direct contradiction to the new Code
under which judges are impartial fact finders, not parties,
whose legal rulings depend on evidence provided by
prosecutors and defense attorneys, not on their intimate
involvement in developing the case. The CSJ's training
program therefore has the potential to undermine the new
accusatory system and the effective implementation of the
new criminal procedure code. Paradoxically, the CSJ
continues to encourage technical training provided by the
Embassy. We are working to overcome these contradictions.


10. The continuing role of the Inspector General's Office in
the new justice system will complicate its implementation.
The Inspector General (IG),or "Procurador," is a powerful
political figure with a prominent "watchdog" role over the
entire Colombian State, including the justice system.
Moreover, the IG has traditionally played an active role in
all stages of a criminal investigation. The version of the
new code originally presented to Congress significantly
limited the IG's role, but intense lobbying by the Office
increased its prominence in the final version. Although the
code does not characterize the IG as a formal "party" to
criminal proceedings, the IG is authorized to participate in
all hearings and stages of a trial. All indications are
that it intends to do so. Such participation could include
presenting or objecting to evidence, interjecting on
decisions to detain individuals, objecting to questions
posed to witnesses, or making separate opening or closing
statements at trial. Such active IG participation would
essentially introduce a third party to any proceeding,
affecting the balance of the adversarial nature of an
accusatory trial and frustrating the efficient development
of the system.


11. Some articles of the code are still not entirely
consistent with an accusatory system. For example, the code
places too many limits on prosecutorial discretion,
complicating plea-bargaining and witness cooperation, which
are key elements of the efficiency of an accusatory system,
particularly in complex crimes. In addition, the current
rules of evidence are not adequately developed.
Consequently, some articles of the code should be revised.
Actual implementation of the code will reveal other
deficiencies, many of which will be the result of having
drafted provisions based on theory rather than practice.


12. Prosecutor General Luis Camilo Osorio will finish his
term in July 2005. He has been a critical figure in
developing and championing the new system, but his tenure
will end well before the system is fully in place. If the
new accusatory system is to be effective, Osorio's successor
will have to understand it, support it, and actively lead
its full implementation. The President's selection of three
candidates to succeed Osorio, one of whom will be selected
by the Supreme Court, will have a tremendous impact on the
future of the Colombian criminal justice system.

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COMMENT
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13. The criminal justice system is burdened by inefficiency
and corruption, which adversely affects Colombia's law
enforcement capabilities, public confidence in its justice
system, human rights environment, and international
reputation. The new criminal procedure code is an important
step toward a more efficient system that will dispense
justice with speed and transparency. The success of this
new system will depend to a great extend on continued USG
assistance and support over the next four critical years.
WOOD