JUSTICE IN CRISIS: SUPREME COURT ORDER TO REPLACE

C O N F I D E N T I A L BOGOTA 000307 SIPDIS DOJ FOR DAAG KEN BLANCO AND DAAG BRUCE SWARTZ E.O. 12958: DECL: 2020/02/19 TAGS: PGOV PHUM KJUS CO SUBJECT: JUSTICE IN CRISIS: SUPREME COURT ORDER TO REPLACE PROSECUTORS SPARKS MELTDOWN REF: BOGOTA 25 CLASSIFIED BY: William R. Brownfield, Ambassador; REASON: 1.4(B),(D) SUMMARY -------------- ¶1. (C) A Supreme Court ruling on February 4 touched off mass firings at the Prosecutor General's Office (Fiscalia) when the Court gave Acting Prosecutor General Guillermo Mendoza 15 days to comply with the results of a November 2007 written exam, which was sponsored by the EU and intended to professionalize the prosecutor corps. Because the majority of current prosecutors and paralegals failed the exam, the Prosecutor General is scrambling to make room for those who passed the exam and weed out hundreds of experienced (and many USG-trained) employees who did not. More than 3,000 positions may be affected by the decision. Confronted with a paralyzed criminal justice system and severe disruptions with investigations and prosecutions, the Prosecutor General sought and was granted a two-month extension from the Supreme Court. The Ambassador expressed serious concerns to the Prosecutor General and Minister of Interior and Justice that the rushed implementation of the exam results would jeopardize hundreds of ongoing cases and ultimately prove cataclysmic to the Colombian justice system. End Summary. EU FUNDED EXAM TO MEET BROADLY INTERPRETED CONSTITUTIONAL REQUIREMENT -------------- ¶2. (C) In 2007, the Ministry of Interior and Justice received funding from the European Union (EU) to develop and hold a national career exam ("concurso") for the Prosecutor General's Office (an independent entity separate from the Executive Branch) to comply with Article 125 of Colombia's constitution requiring all public service positions to be subject to a merit-based exam process. The EU partnered with Colombia's National University to administer the exam. At that time, the Embassy raised concerns with the Prosecutor General's Office with respect to the National University being the sole designer, given the University's opposition to the accusatory system. (Note: With USG assistance, Colombia completed the transition to the criminal accusatory system in 2008, replacing the inquisitorial system that was marked by long delays and high rates of impunity. End note.) Despite our offer to fund an alternative exam that would have reflected a curriculum used to train prosecutors under the accusatory system, the Prosecutor General's Office proceeded with the EU/National University contract. As a result, a hastily implemented exam focused on the old legal system was administered. In their defense, our EU contacts told us the Colombians failed to follow much of their advice in administering the exam. The exam, as required by law, was open to the general public and prosecutorial experience was not weighed heavily in scoring. Prosecutors told us they were not given time to prepare for the exam given their crushing caseloads. One prosecutor told us that those taking the test understood that a smaller number of positions would be subject to the exam than the number later dictated by the Court, making some believe their job was not on the line (see para 5). ¶3. (SBU) Rather than challenge the exam's poor design or a subsequent order by the Constitutional Court to carry out the results, the Prosecutor General procrastinated in implementing the results of the exam. Meanwhile, several applicants who passed filed "tutelas" (a type of appeal) requesting the Supreme Court to force the Prosecutor General's Office to act. The Supreme Court randomly selected two appeals (one coincidentally filed by a current prosecutor seeking career protection and the other filed by an outsider waiting to be hired) and ruled in their favor, but went a step further in essentially treating the individual complaints as a class-action suit by ordering the Prosecutor General to fill positions immediately with everyone who passed. COURTS AT ODDS OVER IMPLEMENTING THE CONCURSO -------------- ¶4. (U) As the final arbiter on all "tutelas," the Constitutional Court must now review the Supreme Court's order. The Constitutional Court had previously ruled that the exam had been improperly administered, citing a lack of authorizing legislation. However, the Constitutional Court later ruled the Prosecutor General had to accept the exam results because persons who took it now had an expectation of career entry into the Prosecutor General's Office. In its impending review, the Constitutional Court could overrule the scope of the Supreme Court's February 4 decision by clarifying that the order can only pertain to the positions that the Fiscalia said would be filled by the open competition. The Constitutional Court could also order an extension for the Prosecutor General's compliance with the Supreme Court's ruling. Given that the Constitutional Court is currently seized with addressing the constitutionality of a referendum to allow President Uribe to stand for a third term, there could be a delay in its ruling. FIRE IN ORDER TO HIRE -------------- ¶5. (SBU) The Prosecutor General had identified a specific number of positions which would be filled by those passing the exam (4,600 prosecutorial and paralegal positions). However, in its opinion, the Supreme Court stated that the Fiscalia had to provide positions to all passers. In order to provide jobs even for the identified competitive positions, Acting Prosecutor General Mendoza is now forced to fire up to 1,250 prosecutors and 2,000 paralegals. (Note: The Fiscalia has 5,300 prosecutors, approximately 6,500 paralegals and more than 22,000 employees total. End Note.) Between February 11 and 15 the Fiscalia fired 246 prosecutors, many with several years of experience. Firings have severely impacted the national specialized units: 20 prosecutors from the anti-kidnapping unit; 10 prosecutors from the counternarcotics unit; 13 prosecutors from the human rights unit; 8 prosecutors from the terrorism unit; and 25 prosecutors and 45 paralegals from the money laundering unit. Embassy contacts report that the entire Human Rights Subunit in Santa Marta has been fired. There is as of yet no systematic process for bringing on the replacements, particularly for carrying out background investigations or training. ¶6. (C) In addition to placing new prosecutors who passed, the Fiscalia has begun a dizzying process of shifting prosecutors around to positions for which they qualified based on their passing score. Human Rights Unit Director Hernando Castaneda did not pass the exam, although for now it appears he will not be let go. Five Justice and Peace Unit (JPU) prosecutors who handle some of the most sensitive investigations of paramilitary organizations passed the exam but are in danger of having to leave the Unit to ensure their career status. JPU Director Luis Gonzalez told us February 16 that he feared losing prosecutors who for the last three years have been preparing Justice and Peace Law cases against thousands of defendants accused of paramilitary atrocities. ¶7. (C) Human Rights Unit prosecutor Nelson Casas criticized the "concurso" process in a conversation with Poloffs February 16, noting that other GOC agencies, like the Inspector General's (Procuraduria) office, had not required employees to take similar exams. He questioned the integrity of exam scoring, alleging that those prosecutors -- including himself -- who had pursued cases against high-profile paramilitaries, narco-traffickers, and military personnel had universally scored below the passing score of 60. Casas relayed unsubstantiated rumors that illegal armed groups had paid for young lawyers to study full-time for the exam with the intention of infiltrating the Prosecutor General's Office. He said that firings had already delayed trial proceedings, and conjectured those delays would mean that defendants would be released from pre-trial detention on procedural grounds as had happened in the Soacha "false positive" murders case (Reftel). U.S. AND DIPLOMATIC COMMUNITY RESPONSE -------------- ¶8. (C) The Ambassador called Minister of Interior and Justice Fabio Valencia Cossio February 17 to register serious concern over the firings. Valencia reported that President Uribe was equally alarmed and had been strongly advised by Valencia to stay out of the fray given Uribe's volatile relationship with the Supreme Court. Acting Prosecutor General Mendoza told the Ambassador February 18 that the Court had offered an extension (later confirmed to be two months) to implement the order, which Mendoza conceded was just borrowed time and not a solution to the larger problem. The EU is working on a joint ambassadorial statement that will press upon the Supreme Court the gravity of its decision. COMMENT: IMPACT ON THE JUDICIARY SEVERE -------------- ¶9. (C) The ramifications of the Supreme Court's latest move could not have come at a worse time for the caretaker administration at the Prosecutor General's Office. The decision's protagonist, Supreme Court Magistrate Alfredo Gomez Quintero, has been cool to the accusatory system as well as a consistent foe of extradition. Hiring fresh faces to the Fiscalia could, in the long run, quiet critics who have long accused the Fiscalia of corruption. Losing experienced prosecutors, however, could significantly impede progress on a number of cases of interest to the USG. BROWNFIELD