Actualizado: may 2
The article will review the state of the Bolivian judicial system and present recommendations to reform it. The inevitable reality is that the Bolivian judiciary is extremely dysfunctional due to extensive corruption, lack of resources, frequent misconducts and unlawful government interventions. These have caused the public to lose their trust in the judiciary. The evident conclusion is that the rule of law is not currently fulfilled in Bolivia. The Bolivian state should urgently take action based on ITEI’s recommendations.
Bolivian judicial system is well-known for systematic operational fallacies and misconducts as well as the ineffectiveness to handle court trials on time. There are constant problems in the judiciary with the lack of integrity and disrespect for the due process. Moreover, corruption, discrimination and negligence of certain cases – such as domestic violence, torture and state violence – are prevalent. Besides, the judiciary is acutely underfunded and lacks competent personnel. The dysfunctionality has triggered the Bolivian judiciary to lose credibility in the eyes of the public and caused severe legal mistakes leading to erroneous convictions regularly. Hence, the rule of law is currently in an obvious decay, correspondingly meaning that also the economic and social development, as well as democracy and human rights, are endangered.
First, the background, including the concepts of due process and rule of law along with Bolivia’s historical legacies, will be discussed. Next, the state of the Bolivian judicial system will be evaluated. Here the focus will be on analysing the realisation of the due process rights, the use of preventive detention and the effectiveness of the judiciary as well as exposing corruption, wrongdoings and discrimination in the Bolivian judicial system. Finally, ITEI’s recommendations for the Plurinational State of Bolivia to reform the judiciary will be presented.
Conceptual and historical context
Due process is a requirement assuring that an individual is entitled to fair legal proceedings based on laws, rules and principles of the judicial system without a violation of these. Thus, it guarantees the defendant a realisation of all the rights written in the constitution. The due process essentially protects the individual from the government intrusions. A violation of the due process is simply an act that infringes the country’s constitution, laws or general principles of legal proceedings. Respecting the due process is crucial because it retains transparency and predictability, and safeguards that things are done according to the laws. Disregard for the due process is a direct violation of the rule of law, which is a principle ensuring that everyone, including institutions, organisations and the state itself, is equally held accountable before the law. The effective operation of the rule of law is crucial for sustainable economic and social development as well as for the realisation of human rights worldwide. Furthermore, the lack of rule of law hinders the public’s trust that the judicial system is just and impartial.
The legacy of military rule from 1964 to 1982 is still strong and impacts especially on Bolivia’s legal culture and the rule of law. This is because, during the military governments, legal education stagnated, misconducts became a common practice, dissidents were silenced and ousted from the country, and the narcotics gained influence over the judiciary. Thus, the subsequent democratic governments inherited an outdated legal system burdened with rampant corruption, lack of judicial monitoring, informal veto powers and regular irregularities. The time after the military rule has been an endless struggle to modernise and reform the structures of the judicial system. However, this has been hampered by deeply rooted organisational challenges.
Bolivia has the laws in place to guarantee effective and fair legal proceedings but their implementation in practice is a different story. This is partly due to the public attitudes which favour strict punitive actions against the accused. The governments have aimed to please the public by utilising more preventive detention and by simultaneously violating the due process. Most importantly, the basic presumption of innocence is regularly not respected. For example, in court trials, it is most often the responsibility of the defence to prove their innocence rather than the prosecuting side’s duty to provide evidence against the defendant. This results in many being convicted in uncertain cases without much evidence. Denying the presumption of innocence is an egregious – yet sadly very common – human rights violation in Bolivia.
Corruption and misconduct are ubiquitous problems in the Bolivian judicial system. For example, in 2015, the Attorney General found over 20% of the country’s prosecutors guilty of corruption or other wrongdoings – leading to 67 prosecutors being dismissed and 41 being sanctioned. Likewise, in 2016, 60 prosecutors were dismissed for corruption and further 200 were investigated for other misconducts. Furthermore, the Bolivian judiciary is highly politicised by Evo Morales and his idea to introduce elections for the selection of judges. While Morales claimed to revitalise people’s trust in the judicial system, the reality has been a takeover of the judiciary by Evo-loyalists. The candidates for judges were handpicked by the Plurinational Assembly – where MAS has the majority of 2/3rds. Thus, the new 'elected' judiciary is clearly not independent but instead under Evo’s direct control. This means that the judiciary is essentially a political weapon for the government to utilise against the opposition. In fact, Morales has exploited this multiple times – by witch-hunting his political opponents – to solidify his rule.
Impunity of human rights violations, torture and state violence is a rule rather than an exception. Virtually none of the culprits for the crimes committed during the military governments have been brought to justice. This is despite the government’s formation of a truth commission to investigate the crimes of 1964-82. However, the commission has not been granted sufficient financial resources and it is unable to work independently. Even recently, ITEI is not aware of a single case of torture that has been successfully investigated and prosecuted. For example, even in the case of Juan Bascopé – in which torture was credibly proved by forensic evidence collected by international and national experts – no further action was taken by the state. The process of prosecuting human rights violations committed by the state authorities is complicated by the state officials’ racketeering ring – which protects the members of the military, police, prison staff and others in the manner of one for all, all for one. Impunity is a severe violation because it puts the Bolivian state above the law, giving the state unregulated powers similar to Hobbes’ infamous Leviathan.
One form of abusive power is the excessive and rife use of preventive detention by the judiciary. It is used as the standard of practice because of the state’s punitive approach and the lack of satisfactory assistance for the defendants due to the low number of defence lawyers. Besides, the bails are often set so high that the accused have no other choice than preventive detention. The use of preventive detention by itself can already be counted as a form of psychological torture. Moreover, torture and other forms of maltreatment are common tactics utilised by the authorities during the preventive detention – over half of the torture cases attended by ITEI have been committed in prisons. By the harsh detention conditions and the utilisation of torture, the authorities attempt to force the detainees to confess or strike deals with the prosecutors. This severely violates the principles of due process: the presumption of innocence and the right to remain silent. The use of preventive detention is abundant, as Bolivia has one of the world’s highest amounts of preventive detention prisoners (70%).
Another severe problem is the recurrent delay of court trials which leads many to spend more time in prisons than they would if they were convicted from their accused crimes. Indeed, a large percentage of ITEI’s clients have experienced long delays in trials. The maximum time of pre-trial detention is 18 months – if there are no formal charges – and 36 months for all cases. However, these times are regularly exceeded. ITEI has reported many cases where pre-trial detention has been prolonged for more than three years. The long delays derive from the inefficiency of the judicial system: a huge quantity of cases, lack of defence lawyers, government interventions, corruption and administrative problems. On average, trials take 2-3 years in Bolivia. The long delays severely violate the defendants’ rights to prompt court trials.
Misconducts by the lawyers in court trials are very common. These regularly cause convictions for many innocent people – due to accused being inadequately informed about their rights and how the legal processes progress. Furthermore, many do not have money to pay the court trials. Hence, many accept dodgy settlements offered by the lawyers and/or confess crimes they never did. Research estimates that half of the accused juveniles could have avoided imprisonment by choosing an alternative form of penalty if they had been represented better. However, due to the poor representation along with outright misconducts and misleadings by the lawyers and judicial officials, numerous defendants end up unnecessarily to prisons. The numbers are very similar for the other groups of accused as well. This means that there are loads of people serving prison sentences who should have avoided imprisonment if the lawyers carried out their job properly and respected the due process.
As we have already seen, due process rights are repetitively violated despite the laws guaranteeing free and fair trials on time. Indeed, the Bolivian constitution includes various assurances related to the due process, such as the presumption of innocence, being informed of the charges accurately and promptly, having a defence lawyer for free and receiving appropriate circumstances to prepare a defence. However, these are habitually violated due to corruption, discrimination, dysfunctionality and executive interventions. Indeed, during our work to help victims of torture and state violence, ITEI has documented widespread denial of due process rights in Bolivia. These violations have grave consequences on the victim, including depression, post-traumatic stress disorders (PTSD), grievances and emotional fatigue. The due process is breached by long delays, extensions to pre-trial detentions, forced entries into private properties without search warrants and threats against defence lawyers. Furthermore, in terms of the indigenous population and their rights, the Bolivian state guarantees adequate translation and interpretation services. However, these are also frequently disregarded. All in all, structural violence in the form of neglecting the defendants’ due process rights is a pervasive problem in the Bolivian judiciary.
While the judicial misconducts and inefficiencies affect the whole Bolivian society – women, juveniles and indigenous peoples are impacted even more disproportionately due to additional levels of discrimination. For instance, women face widespread and highly apparent discrimination in the judicial system. This is particularly evident in the case of gender-based violence crimes: 2/3 of the cases are dismissed completely and only 1% of the remaining lead to convictions. The Bolivian judiciary is utterly patriarchal as it is biased against women and favours men. Secondly, juveniles are heavily affected by the judicial misconducts because 50% of imprisoned juveniles should have received alternative penalties if the trials were processed appropriately. This is detrimental for the juveniles’ future life chances and reintegration because the Bolivian prisons do not provide adequate juvenile-adjusted treatment nor rehabilitation programmes. Moreover, the indigenous people and their linguistic rights are regularly repressed in Bolivia, despite the Law 269 obliging the state to provide interpretation and translation services for free in legal proceedings. The neglect causes many innocent to end up in prison as a result of linguistic misunderstandings. Altogether, it seems that the Bolivian judiciary is most efficient in discriminating the most vulnerable.
The derisory judiciary has various detrimental effects on the Bolivian society. The most obvious ones are the total derelictions of the due process and human rights in Bolivia. Secondly, judicial misconducts destroy the lives of numerous people by sentencing innocents and petty criminals to prisons. This is detrimental because imprisonment strongly increases the risks of developing violent behaviour, thus raising the levels of violence in the whole society. Even more adversely, reoffending is much more likely for the ex-prisoners than for the persons who received alternative penalties. According to the Ministry of Justice, recidivism rates are 23% for ex-prisoners and only 1.5% for alternative forms. Furthermore, the deprived state of the rule of law means high costs for society in terms of reduced economic and social development. Besides, the public severely lacks trust in the judiciary and its impartiality as well as its capability to process cases appropriately and punctually. This causes people to utilise informal measures to attain ‘justice’. It can be summarised that an uncountable amount of lives are crushed and the whole society’s development hindered by the judiciary’s inefficiency and misconducts.
ITEI takes great concern in the current state of the Bolivian judicial system. We think that reforming the judiciary is crucial, not just for the realisation of human rights, but also for the whole development of Bolivia. ITEI identifies the following as the judicial system’s main problems: (i) the judiciary’s lack of independence and funding; (ii) procedural delays; (iii) the arbitrary and excessive use of preventive detentions; (iv) conviction of innocent individuals; (v) violations of the due process; (vi) corruption and misconducts by the judicial officials; (vii) discrimination against women, indigenous and juveniles; and (viii) impunity of the state actors in cases of torture and state violence. Overall, it is easy to conclude that the Bolivian judicial system is extremely dysfunctional.
To tackle the aforementioned defects and to gain integrity, credibility and confidence in the eyes of the public, ITEI proposes the following recommendations for the Plurinational State of Bolivia:
1. Ensure the judiciary’s independence and allocate sufficient resources for it to function effectively and expeditiously;
2. Provide sufficient resources and guarantee the independence of the bodies and organisations (such as the Truth Commission) investigating human rights violations;
3. Reduce the use of preventive detention and reconsider the whole justification and exceptionality of this precautionary method;
4. Adopt legislative, judicial and administrative measures urgently to replace preventive detentions with alternative measures, such as house arrests, electronic monitoring and assisted freedom;
5. Provide reparations and rehabilitation to individuals who are convicted despite being innocent;
6. Create an obligatory postgraduate qualification for all judges and public prosecutors concerning the right to due process;
7. Increase the effectiveness of prosecution and punishment for corruption offences;
8. Remove discrimination of vulnerable groups based on gender, sexual orientation, age, race, ethnicity, economic class or any other factor;
9. Establish a structurally and financially independent and technically competent mechanism to investigate allegations of torture and other human rights violations against state officials promptly, impartially and per the Istanbul Protocol.
15th of October 2019
Valtteri Nurminen, ITEI Volunteer