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 -------------- Summary -------------- ¶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. -------------- What is Colombia's Real Rate of Impunity? -------------- ¶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. -------------- Why is the Rate So High? -------------- ¶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. -------------- The Challenge of Violence -------------- ¶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. -------------- The Challenge of Corruption -------------- ¶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. -------------- Reforming the System -------------- ¶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