CONVICTION RATES AND THE CRIMINAL JUSTICE SYSTEM

UNCLAS SECTION 01 OF 04 BOGOTA 004640

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PHUM KJUS CO
SUBJECT: CONVICTION RATES AND THE CRIMINAL JUSTICE SYSTEM

REF: BOGOTA 2853

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Summary
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1. Impunity is generally considered one of Colombia's most
serious human rights problems. Defining and quantifying
"impunity," however, is challenging. Several GOC entities
have attempted to characterize impunity in ways that dismiss
its severity. However, a careful analysis of the path a case
takes through the justice system reveals that a perpetrator
is punished in less than 1 percent of crimes. Colombia's
impunity crisis emerged slowly under the pressure of various
complicating factors, including an inefficient and
overburdened judicial system, a penchant for focusing on easy
cases, intimidation and violence against judicial officials
and witnesses, and corruption. The situation is beginning to
improve, however, as the justice system institutes important
reforms and improvements designed to address the problem.
Consolidating and institutionalizing this progress will
depend on both the GOC's political will and the continued
support of allies like the USG. End Summary.

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What is Colombia's Real Rate of Impunity?
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2. A high rate of "impunity" -- what we will define as low
conviction rates -- is generally considered one of Colombia's
most intractable ills. The Department's Country Report on
Human Rights Practices in Colombia for 2004 emphasized that
impunity "remains at the core of the country's human rights
problems." Most books and general interest articles on
Colombia refer to "impunity," often citing levels of 95
percent or higher. What these publications rarely do,
however, is identify their sources or define their
methodologies. Greater precision on this fundamental issue
is vital to assessing the true extent of the problem and
deciding how to most effectively address it.


3. Over the past decade, various GOC entities have released
studies claiming to measure the country's real rate of
impunity. In mid-2004, the Supreme Council of the Judiciary
(CSJ),the Prosecutor General's Office ("Fiscalia"),and the
Comptroller General's Office issued separate reports claiming
that the rate of impunity was three, 28, and 40 percent,
respectively. Such estimates -- particularly the CSJ's --
were major departures from popular perceptions and contrasted
with the results of a National Statistical Agency (DANE)
survey conducted in the mid-1990s that placed the rate of
impunity at over 99 percent. These disparate findings
resulted from very different definitions of "impunity."


4. According to the CSJ, "impunity" exists only when a case
concludes without a definitive legal determination. However,
the CSJ values all decisions equally, and sees no qualitative
difference between a conviction and the expiration of the
statute of limitations, a dismissal with prejudice, or an
acquittal. In all four cases, the legal system has done its
job. The Contraloria and Fiscalia -- using slightly
different methodologies -- are somewhat more sensible,
defining as examples of "impunity" cases in which the justice
system fails to reach a definitive legal determination before
the statue of limitations expires. However, such
determinations need not be convictions, nor even decisions on
the merits.


5. A better approach to describing the real state of justice
in Colombia is to examine the proportion of cases that move
successfully through the justice system. In Colombia, crimes
are initially investigated during a preliminary stage known
as "investigacion previa," during which prosecutors decide
whether an incident merits formal investigation. According
to the CSJ's own numbers, in 2003 only 15 percent of
preliminary investigations led to a formal investigation,
known as "instruccion." The results of formal investigations
were no more encouraging, with only 17 percent leading to
formal charges ("resolucion de acusacion"). Only 25 percent
of formal charges resulted in guilty pleas or convictions.
In the end, less than 1/2 of one percent of criminal cases
led to a perpetrator's punishment, a figure similar to the
DANE's mid-1990s survey. Although difficult to imagine,
these numbers undoubtedly overstate the extent to which
crimes are punished in Colombia, because their calculations
take into account only crimes that come to the attention of
the Fiscalia. Various studies over the past decade have
estimated Colombia's rate of unreported crimes -- or "shadow"
impunity -- to be between 80 and 95 percent. It is based on
such statistics that critics of Colombian justice talk about
a "culture of impunity."


6. It would be unfair to be overly critical of the Government
for unreported crimes. Shadow impunity -- except for the
most egregious crimes -- is significant even in nations with
well-developed criminal justice systems. Nevertheless, the
less-than-1-percent conviction rate calculated in paragraph 5
takes into account only those crimes that the Fiscalia
actually investigated.


7. An additional caveat relates to the severity of crimes.
According to Mauricio Rubio, a prominent economist who has
studied the Colombian criminal justice system in depth,
Colombian law enforcement authorities actively investigate
just 38 percent of homicides, less than a third of which lead
to trial. A perpetrator is convicted and sentenced in only 7
percent of all homicides in Colombia.

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Why is the Rate So High?
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8. The country's inquisitorial justice system -- now in
transition to an accusatorial system -- is inefficient and
overburdened. According to the CSJ, which oversees the
entire judicial system, in 2002 -- the most recent year for
which complete data is available -- the Fiscalia was actively
investigating over 3.2 million criminal cases. Although the
speed with which the institution clears cases has increased,
the backlog continues to grow. In 2003, a record year of
case processing for the Fiscalia, the institution's case
backlog increased by over 17,000. In 2002, the average
prosecutor was handling 960 cases, less than 220 of which
were resolved. The criminal courts had nearly 4.5 million
cases on their dockets in 2002, and concluded fewer than 1
million. Over 1.2 million new cases entered the system. The
average criminal court judge is responsible for nearly 1,000
cases, on which he or she must rule based on the study of an
extensive written record. Not surprisingly, the average
judge concluded only 200 cases. The overwhelming caseload
and slow inquisitorial procedures have caused long delays in
criminal cases. According to Colombian law, the Fiscalia
must conclude an investigation within 27 months; however, the
average criminal case remained in the Fiscalia twice that
time. Criminal court cases that should conclude in 8 months
last an average of 26 months.


9. Managerial emphasis on case turnaround has led to working
level focus on easy cases. In fact, between 1987 and 1993,
this tacit policy was made explicit by a presidential decree
that ordered cases closed if prosecutors had not identified a
suspect within 60 days. Although the law was later changed,
the mentality remained entrenched. For example, in analyzing
60 homicide sentences handed down in Bogota, Rubio discovered
that the perpetrator had been identified from the outset in
56 of these; in 45, the perpetrator was actually a family
member or friend of the victim. Although 23 percent of all
preliminary investigations in 2002 were for crimes against
"life and personal integrity," including murder, less than
six percent of trials were for such crimes. On the other
hand, 37 percent of all trials involved "other crimes," a
broad category of misdemeanors and other relatively minor
offenses that represented only 11 percent of all preliminary
investigations.

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The Challenge of Violence
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10. Major cases are actively investigated for years, giving
illegal armed groups and other criminal organizations ample
time to suborn, intimidate, or kill witnesses and justice
system officials. According to the Solidarity Fund for
Justice Sector Victims ("Fondo de Solidaridad con las
Victimas del Poder Judicial"),at least 233 justice sector
employees have been murdered in the last 15 years. In 2004,
three prosecutors were murdered and seven survived attempts
on their lives. Ninety-two judges and hundreds of
prosecutors reported threats. To reduce their level of risk,
many judicial officials assigned to rural areas work
exclusively out of provincial capitals, which significantly
reduces their effectiveness by limiting their access to
witnesses and other evidence. Human rights cases implicating
terrorist organizations are particularly fertile ground for
threats and violence. The Fiscalia's investigation of the
2001 paramilitary massacre at Chengue cost the lives of the
local lead prosecutor -- who was murdered in her driveway --
and several investigators who disappeared while working
undercover. In September 2003, assassins contracted by the
Revolutionary Armed Forces of Colombia (FARC) murdered the
former lead prosecutor in the El Nogal bombing case, who had
resigned just weeks earlier because of threats. The Fiscalia
provides some security to threatened prosecutors in
high-profile cases, but legitimate demands for protection far
outstrip the Fiscalia's capacity to provide it. There are no
firm statistics on the number of witnesses who are threatened
or killed. An ineffectual witnesses protection program,
however, intensifies witnesses' aversion to testifying in
prominent cases, particularly when powerful criminal
organizations are involved.

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The Challenge of Corruption
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11. Following the time-tested strategy of "plata o plomo"
(silver or lead),Colombian criminal organizations often
attempt to bribe government officials or witnesses before
resorting to violence. The Fiscalia has not been immune to
these temptations, which are exacerbated when cases drag on
for years. In early 2004, for example, evidence surfaced
that numerous senior Fiscalia officials, including the
National Director of Prosecutors -- the institution's third
ranking official -- the directors of several regional
Fiscalia offices, and the head of the Fiscalia's
Anti-Narcotics and Maritime Interdiction Unit (UNAIM),were
guilty of serious paramilitary-related corruption. Although
all these officials -- and many others -- were fired or
resigned, the Fiscalia's reputation suffered. According to a
survey of public perceptions of the integrity of public
institutions conducted by the Colombia chapter of
Transparency International, the Fiscalia ranked among those
Government institutions perceived to have a particularly high
risk of corruption.

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Reforming the System
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12. There are some ground for optimism. Over the next three
years a more agile, flexible accusatorial justice system will
supplant the inquisitorial one that has contributed to the
sluggish dispensation of justice. The new system should
focus on what is essential to resolve criminal cases quickly
and accurately. Under the inquisitorial system, suspects had
to be notified of investigations against them, because
prosecutors decided for themselves what evidence was
admissible and what was not. However, because the accusatory
system requires neutral judges to rule on the ultimate
admissibility of evidence, investigations can remain
confidential until an arrest is made, allowing police and

SIPDIS
detectives to gather comprehensive evidence faster. Oral
trials and hearings reduce procrastination on tough
decisions, since the facts of a case will no longer be based
primarily on extensive written records that can be perused at
the judge's leisure. Initial case disposition results from
Bogota and three other judicial districts where the new code
is already in force supports these predictions (reftel).


13. To take full advantage of the procedural agility of the
new system, Government investigators -- particularly
detectives and uniformed police -- must be well trained in
solid criminal investigative techniques and valid grounds for
arrest. To help instill the knowledge and methods needed to
develop successful cases in the accusatory system, the USG
has already trained over 8,000 Colombian police and will
continue to provide such training through at least 2008, when
the accusatory system will be in force throughout the country.


14. In the summer of 2004, Prosecutor General Osorio
undertook a major house cleaning campaign to identify and
fire corrupt officers. Numerous senior officials, including
the National Director of Fiscales and Director of the Witness
Protection Program, were dismissed or forced to resign.
Several hundred officials in sensitive positions were
polygraphed and Osorio pledged to remove all officials who
failed or refused to the polygraph exam from units that
receive U.S. assistance.


15. To improve security for judicial officials, the U.S.
Marshals Service has spent two years training Colombian
security officers in the protection of judges, prosecutors,
and other officials involved in high-profile cases. To date,
no official protected by officers who have graduated from the
Marshals' program has been killed or injured. Building on
that success, the Marshals program is being revised on a
priority basis to focus on the protection of witnesses and
the new courthouses that will be used for oral trials. In
addition, to help Colombian prosecutors build cases that do
not depend entirely on the fallible -- and highly vulnerable
-- testimony of eyewitnesses, DOJ has helped the GOC to
greatly enhance its forensic capabilities, particularly in
the areas of fingerprints, ballistics, DNA, and document
analysis. DOJ also encouraged the GOC to create a special
Profiling Unit that brought together select officials from a
variety of specialized Colombian law enforcement agencies.
DOJ has sponsored training visits to the Unit by U.S. experts
in criminal psychology and sociology, crime scene analysis,
and blood spatter, all designed to help Colombian officials
gather more powerful evidence for trials.


16. Effectively addressing corruption may be the justice
system's most formidable challenge. The reforms already
noted should have a positive impact on corruption insofar as
they reduce the time criminals have to corrupt a process, and
the oral trial system is far more transparent. However,
given that criminal organizations fed by drug profits will be
influential actors in Colombia for the foreseeable future,
corruption must be confronted directly as well. Some of this
infrastructure is already in place, in the form of the
Inspector General's Office ("Procuraduria") and the
Vice-President's Anti-Corruption Program, both of which have
the authority to investigate corruption throughout the
Government, including within the judicial system. Yet the
independent nature of the courts and the Fiscalia -- which is
formally part of the judicial branch -- makes such
investigations awkward and often ineffectual. In response to
the corruption revelations of 2004, the Fiscalia established
its own internal anti-corruption unit, with a mandate to root
out and punish corruption within the institution itself.
This new office has the potential to deal a significant blow
to criminal influence within the Fiscalia, but only if the
USG and other international actors remain focused on its
independence, resources, and results.

WOOD