Corrupted Justice and the Schizophrenic State in Colombia.

• Author: S.J., Javier Giraldo

1. Introduction

   ON MARCH 12, 1999, THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS OF the Organization of the American States published its Third Report on the Situation of Human Rights in Colombia. In the fifth chapter, it states:

   Impunity and denial of justice continue to be prominent in Colombia. Impunity in relation to all types of crimes is widespread. In June of 1996, the Superior Council of the Judiciary reported that between 97 and 98% of all crimes go unpunished, and that 74% of crimes go unreported. Other state authorities provide similar statistics. According to information issued by the National Police, 90% of all crimes go unpunished. According to the 1996 report of the Commission for the Rationalization of Public Spending and Finances, the level of impunity in all cases has reached 99.5%. That organization asserts that only one of every 100 crimes reached the trial stage of criminal proceedings....

   It appears that the rate of impunity is even greater in relation to crimes involving human rights violations, resulting in a failure by the state to comply with its responsibilities and a denial of justice to the victims of violations and/or their family members. Human Rights monitors assert that virtually 100% of all crimes involving human rights violations go unpunished. The experience of the Commission in the cases that are brought before it substantially supports this assertion....

   Impunity in Colombia is structural and systemic. It is not simply a question of leaving numerous individual crimes unpunished. Rather, the issue is one of the creation of an entire system of impunity which affects the culture and life of the nation even for those individuals who are not directly affected by human rights violations or other crimes. Most international observers agree that this high level of impunity is itself one of the most serious human rights violations occurring in Colombia (InterAmerican Commission, 1999: Chapter V, Nos. 12, 14, and 16).

   Nevertheless, successive Colombian governments have boasted of "improvements" in the performance of justice. In reality, constitutional, legal, and administrative changes have taken place in the last decade without improving either human rights standards or the application of justice.

   Following the normal procedure, human rights violations are denounced before the judiciary and/or before the disciplinary authorities. It is useful to recall, however, that since the 1991 Constitution, there is a new criminal procedure. Under the previous system the investigatory stage was performed by an examining judge and the trial stage by a trial judge, but no one single authority took responsibility for the criminal investigation as a whole. Under the new procedure it is not the judge, but rather the prosecutor who must investigate and indict suspected criminals, after which judges will determine whether they are guilty. The Prosecutor General of the Nation is elected by the Supreme Court of Justice from a list of candidates submitted by the president. He or she and his/her delegates have competence throughout the national territory. To carry out its functions as an investigative and prosecutorial body, the Office of the Procurator General may adopt measures to ensure that criminal suspects will appear before the courts, including the issuance of preventive detention orders. The Office of the Prosecutor General also directs and coordinates the work of investigative entities that depend upon the national police and other similar agencies.

   From the 1980s onward, a parallel system of justice has been developed, which was first called Public Order Jurisdiction and later Regional Justice. This jurisdiction includes drug-related crimes, crimes against the state and constitutional order, arms manufacturing and trafficking, terrorism, and membership in illegal armed groups. In these processes, those involved in the proceedings such as judges, prosecutors, and witnesses are allowed to keep theiridentities secret. The National Tribunal acts as its appeal court. Many international organizations have rejected this jurisdiction because of its structural violation of due process.

   The Military Criminal Justice system is applied to members of the military forces and national police in active service and "in connection with that service." This latter principle has been extended, in fact, to all their crimes, encompassing criminal and civil crimes as well as disciplinary violations. The commander of the respective division, brigade, battalion, or other entity initiates the proceedings and serves as the court of first instance in conjunction with the martial courts that he names. The Superior Military Tribunal, whose president is the Commander of the Military Forces, acts as the appeals tribunal.

   Since the early 1980s, the army has developed, with the explicit or implicit consent of the other powers of the state, a strong and widespread illegal paramiuitary structure. This structure is composed of armed civilians acting under hidden direction from military officials to carry out the "dirty" operations that could affect the state's legitimacy. Paramilitary agents enjoy the utmost impunity, as this article demonstrates.

   Among the institutions of control, the Constitution establishes the Public Ministry, headed by the Procurator General of the Nation, with assigned relevant functions in protecting human rights. The Procurator General is elected by the Senate from a list presented by the president, the Supreme Court, and the Council of State. His office is responsible for carrying out disciplinary investigations and sanctions against state agents, including civilians and members of the state's security forces; thus, it has the right, for example, to investigate human rights violations and eventually to order the removal from service of members of the military forces, the national police, or any other state agent for responsibility in those violations.

   The Office of the Procurator is divided into the offices of delegate procurators (for human rights, the military forces, the national police, the judicial police, and so on) to carry out its work. As the Inter-American Commission on Human Rights has remarked, the disciplinary sanctions that may be assessed by the Procurator General are not adequate in cases of grave human rights violations; a criminal proceeding is required.

   From an administrative viewpoint, the State of Colombia is divided into departments. Each departmental unit is ruled by a governor elected by popular vote, but whose power is very limited. The public order is absolutely controlled by national agencies.

   In spite of the above-mentioned mechanisms for the administration of justice and their supposed "improvement," impunity has become one of the most characteristic features of the Colombian state. If from a quantitative point of view the administration of justice is inefficient, from a qualitative analysis, it appears corrupt and counterfeit. Below we conduct a thorough analysis of some cases in which the state's version of "justice" was applied.

   The Inter-American Commission on Human Rights has stated that impunity in Colombia is "structural and systemic" and that "the issue is one of the creation of an entire system of impunity which affects the culture and life of the nation." It is not easy, however, to discover how that "structural and systemic impunity" works in the "daily cultural life" of Colombians, mainly in the daily lives of poor people. Neither governmental nor academic studies regarding the functioning of justice have captured that reality.

   This article examines concrete cases from the point of view of a human rights nongovernmental organization linked to the poor in Colombia. During the last 10 years, as Executive Secretary of the Justice and Peace Commission, I visited the judiciary's buildings in Colombia numerous times to petition that the oppressive acts perpetrated by state agents and paramilitary groups against thousands of powerless people be investigated and punished. After 10 years, the time has arrived to evaluate the results. What level of justice has been achieved? It is necessary, however, to change the names of victims who are still alive, given the risk that witnesses to human rights violations face in Colombia, especially those who have suffered the cruelty of state crimes.

2. Mechanisms of Impunity

   1. The Disappearance of Facts During the Investigation

      On April 17, 1995, the Justice and Peace Commission received a letter from the President's Advisor on Human Rights that relayed to us the response of the Procurator General's office concerning the closure of a case. The file, No. 008- 142621, had been closed based on a highly suspect conclusion: "the alleged deeds investigated did not occur" (Resolution of closure, January 12, 1994).

      "Elias" was a young, illiterate peasant. In July 1993, when he was arrested by a military patrol, he was trying to load two bulls onto a small boat in a distant village belonging to Pinillos, a town from the department of Bolivar. The people of that village were distressed when they saw that a military unit had brought Elias back that evening, almost naked, with bleeding arms and legs, barely able to move. It seemed to the villagers that the soldiers had tried to crucify him. Elias was transported in a military ship, and from that evening, his whereabouts were unknown for 15 days, when, thanks to a chain of reports, we discovered what had occurred.

      Our first estimation of the facts, received from various churches, was sent immediately to the Working Group on Enforced Disappearances of the United Nations. Some days later, the office of the Presidential Advisor of Human Rights energetically denied this report, stating that Elias had been arrested according to proper legal procedures, that he had confessed beforehand that he belonged to subversive guerrilla groups, and that injuries on his body had been produced by...