US embassy cable - 05BOGOTA2853

UNCLAS SECTION 01 OF 04 BOGOTA 002853 
 
SIPDIS 
 
STATE FOR WHA/AND - DHENIFIN, SBELL 
STATE FOR L/LEI - HCOLLUMS AND GHARRIS 
JUSTICE FOR DAAG MARY LEE WARREN 
JUSTICE FOR CRM/OIA - MDRODRIGUEZ, TBLACK, AND PJOSEPH 
JUSTICE FOR OPDAT 
 
E.O. 12958: N/A 
TAGS: KJUS, KCRM, PGOV, CO 
SUBJECT: INITIAL IMPLEMENTATION OF THE NEW ACCUSATORY 
JUSTICE SYSTEM 
 
 
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SUMMARY 
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1. ON JANUARY 1, COLOMBIA INTRODUCED ITS NEW CRIMINAL 
PROCEDURE CODE IN THE JUDICIAL DISTRICTS OF BOGOTA, ARMENIA, 
MANIZALES, AND PEREIRA.  OTHER JUDICIAL DISTRICTS WILL MAKE 
THE TRANSITION TO THE NEW SYSTEM OVER THE NEXT THREE YEARS. 
THE NEW CODE IMPLEMENTS AN ACCUSATORIAL JUSTICE SYSTEM 
SIMILAR TO THAT IN THE U.S.  THE INITIAL RESULTS OF THE NEW 
SYSTEM HAVE BEEN POSITIVE, WITH GREAT IMPROVEMENTS IN 
RESOLVING CASES.  HOWEVER, MAKING THE SHIFT FROM THE FORMER 
INQUISITORIAL JUSTICE SYSTEM REQUIRES A SIGNIFICANT 
"PARADIGM" SHIFT IN COLOMBIA REGARDING THE ROLES OF 
INVESTIGATORS, PROSECUTORS, DEFENSE ATTORNEYS, AND JUDGES. 
THE USG HAS PROVIDED AND CONTINUES TO PROVIDE SIGNIFICANT 
ASSISTANCE IN THIS TRANSITION, INCLUDING EXTENSIVE TRAINING 
OF INVESTIGATORS, PROSECUTORS, PUBLIC DEFENDERS, AND JUDGES. 
THERE ARE STILL CHALLENGES TO THE EFFECTIVE IMPLEMENTATION 
OF THE NEW SYSTEM, INCLUDING FINANCIAL PROBLEMS AND RESIDUAL 
ELEMENTS OF THE FORMER SYSTEM, SUCH AS THE ROLE OF THE 
INSPECTOR GENERAL'S OFFICE.  THE DEPARTURE OF CURRENT 
PROSECUTOR GENERAL OSORIO, ONE OF THE NEW SYSTEM'S GREATEST 
CHAMPIONS, MAY ALSO COMPLICATE MATTERS.  THE NEXT FOUR YEARS 
WILL BE CRITICAL TO THE SYSTEM'S EFFECTIVE ADOPTION. 
 
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EARLY RESULTS 
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2. The initial results of the Government's implementation of 
a new criminal procedure code in four judicial districts -- 
Armenia, Bogota, Manizales, and Pereira -- have been 
overwhelmingly positive, as has press coverage and the 
overall reaction of the general public.  Most of the initial 
cases dealt with the type of street crimes that have 
traditionally clogged Colombia's court dockets.  Cases that 
took months -- if not years -- to resolve under the old 
system are being dispatched in days or even hours.  Of 3,154 
persons arrested between January 1 and February 18, 1,834 
had already been arraigned -- presented before a judge -- 
and 1,469 had been charged.  Nearly 950 of these individuals 
had accepted pleas, and 307 had already been sentenced. 
(Comment: The new system has exceeded our expectations in 
the transition.  Trials have worked well, with well-trained 
lawyers and judges generally implementing the new rules 
effectively.  End comment.) 
 
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BACKGROUND 
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3. Colombia's 1991 Constitution precipitated significant 
changes to the country's criminal justice system, including 
the creation of the Prosecutor General's Office 
("Fiscalia"), responsible for investigating and prosecuting 
crimes, and the Supreme Council of the Judiciary ("Consejo 
Superior de la Judicatura" or CSJ), which administers the 
entire justice system.  A new criminal procedure code 
introduced in 1991 created a justice system that, in theory, 
included elements from the traditional inquisitorial system, 
based on Continental European procedural law, and an 
accusatory system, based on the Anglo-Saxon oral procedural 
tradition.  In practice, however, the Colombian system 
remained almost entirely inquisitorial.  Debate over whether 
to transition to an authentically accusatory system 
continued for the next 12 years. 
 
4. In December 2002, the Colombian Congress amended the 
Constitution to introduce a more fully accusatory system. 
The Prosecutor General ("Fiscal General") was named as the 
head of a drafting commission charged with changing relevant 
law, including the criminal procedure code.  The USG 
provided technical assistance during the drafting phase. The 
original draft of the new Code was broadly based on the 
Puerto Rican procedural code and the U.S. model.  This was a 
Colombian initiative, not one promoted by the USG.  The 
commission, which included representatives of the Prosecutor 
General's Office, the Human Rights Ombudsman's Office 
("Defensoria del Pueblo"), the Inspector General's Office 
("Procuraduria"), the Supreme Court, the CSJ, the National 
Police, Congress, and academia, presented its draft criminal 
procedural code in July 2003.  Congress made numerous 
changes to the proposed code and approved it in July 2004. 
The President signed it into law the following month. 
Although the Colombian code is more strongly accusatorial 
than many comparable Latin American equivalents, it 
continues to include complicating vestiges of the former 
inquisitorial system and other problematic language 
sprinkled throughout the code's more than 500 articles. 
Even so, the code is a marked improvement over the former 
version and represents a dramatic change in the Colombian 
criminal justice system. 
 
5. The code will be implemented gradually in judicial 
districts throughout the country according to the following 
schedule: 
 
January 1, 2005:  Armenia, Bogota, Manizales, and Pereira; 
 
January 1, 2006:  Bucaramanga, Buga, Cali, Medellin, San 
Gil, Santa Rosa de Viterbo, Tunja, and Yopal; 
 
January 1, 2007:  Antioquia, Cundinamarca, Florencia, 
Ibague, 
Neiva, Pasto, Popayan, and Villavicencio; 
 
January 1, 2008:  Barranquilla, Cartagena, Cucuta, Monteria, 
Quibdo, Pamplona, Riohacha, Santa Marta, Sincelejo, and 
Valledupar. 
 
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BASIC ELEMENTS OF THE NEW CRIMINAL PROCEDURE CODE 
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6. Under the new code, prosecutors, working with police 
investigators, initiate the criminal process with formal 
accusations based on evidence developed during confidential 
investigations.  Judges approve arrest and search warrants, 
interception of telephone communications, detentions, the 
taking of corporal evidence, etc.  Prosecutors present 
evidence in open, oral proceedings.  Defense attorneys, 
representing the accused, confront the evidence and present 
their own, if desired.  The accused have the presumption of 
innocence and the right to remain silent.  A judge rules on 
the admissibility and weight of evidence and makes a 
determination of guilt or innocence.  Trials are similar to 
the U.S. model, with opening and closing statements and 
direct and cross-examination.  For security reasons, there 
are no juries.  Under the old system, prosecutors themselves 
acted as investigating magistrates, with the power to issue 
search warrants, authorize prolonged periods of detention, 
and weigh and give probative value to evidence at the time 
of its collection.  Consequently, and unlike in the new 
system, suspects were officially notified of ongoing 
investigations against them in order to have access to 
evidence at the time it was made part of the case record. 
"Trials" were essentially paper exercises governed by the 
written record. 
 
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USG SUPPORT FOR THE NEW SYSTEM 
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7. The Embassy has a multi-faceted program to help the GOC 
implement the new code.  Department of Justice (DOJ) 
representatives provide training and technical assistance to 
Colombian prosecutors and police investigators, focusing on 
two-week training programs that develop practical 
understanding of the code and their unique roles in the new 
system through hypothetical cases and simulated trials and 
crime scenes.  USAID provides similar training and technical 
assistance to Colombian public defenders.  Both DOJ and 
USAID provide training and technical assistance to Colombian 
judges.  The USG has already trained over 10,000 officials. 
Through the U.S. Marshals Service (USMS), DOJ provides 
technical assistance and training on security for 
courthouses and courtrooms and protection for justice sector 
officials.  The USMS will also provide training and 
technical assistance on witness protection.  In addition, 
DOJ has enhanced Colombia's forensic laboratories' capacity 
in the areas of fingerprints, DNA, ballistic, and 
documentary evidence, which are key to prosecuting cases in 
an adversarial system.  USAID has constructed and furnished 
35 oral trial courtrooms. 
 
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ISSUES OF CONCERN 
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8. The transition to the new accusatorial justice system 
will require patience and persistence.  The GOC's political 
will is critical, particularly in providing the additional 
financial resources necessary to ensure proper 
implementation of the system.  Some of these resources can 
come from adjusting or refocusing existing budgets.  In 
addition, the Government could designate assets forfeited by 
narcotics traffickers and other criminals to subsidize the 
transition to the accusatory system.  There continue to be 
numerous areas of need in this transition, including 
additional courtroom space and security, enhanced case 
management systems, improved evidence room facilities and 
security, and adequate office space and office equipment for 
the various officers of the court.  Prosecutors, police, 
judges, and public defenders must continue to receive 
training and technical assistance through at least 2008, 
when the system will be fully implemented throughout the 
country.  Training on subjects such as witness protection 
and security for courtrooms and judicial personnel must also 
be enhanced. 
 
9. A serious concern at this time deals with the training of 
judges.  The CSJ's judicial training school has contracted 
the National University and consultants from the private 
"Universidad Externado" to develop a judge's manual and 
provide training for judges.  However, both these 
universities' law school faculties generally opposed the 
adoption of an accusatory system and the new criminal 
procedure code. Their preference is to maintain a more 
Continental European model, rather than the American model 
introduced by the new Code.  As a result, the manual and 
training programs they have developed emphasize the role of 
the judge as an active participant in decisions on charges, 
the presentation of evidence, and the questioning of 
witnesses.  This is in direct contradiction to the new Code 
under which judges are impartial fact finders, not parties, 
whose legal rulings depend on evidence provided by 
prosecutors and defense attorneys, not on their intimate 
involvement in developing the case.  The CSJ's training 
program therefore has the potential to undermine the new 
accusatory system and the effective implementation of the 
new criminal procedure code.  Paradoxically, the CSJ 
continues to encourage technical training provided by the 
Embassy.  We are working to overcome these contradictions. 
 
10. The continuing role of the Inspector General's Office in 
the new justice system will complicate its implementation. 
The Inspector General (IG), or "Procurador," is a powerful 
political figure with a prominent "watchdog" role over the 
entire Colombian State, including the justice system. 
Moreover, the IG has traditionally played an active role in 
all stages of a criminal investigation.  The version of the 
new code originally presented to Congress significantly 
limited the IG's role, but intense lobbying by the Office 
increased its prominence in the final version.  Although the 
code does not characterize the IG as a formal "party" to 
criminal proceedings, the IG is authorized to participate in 
all hearings and stages of a trial.  All indications are 
that it intends to do so.  Such participation could include 
presenting or objecting to evidence, interjecting on 
decisions to detain individuals, objecting to questions 
posed to witnesses, or making separate opening or closing 
statements at trial.  Such active IG participation would 
essentially introduce a third party to any proceeding, 
affecting the balance of the adversarial nature of an 
accusatory trial and frustrating the efficient development 
of the system. 
 
11. Some articles of the code are still not entirely 
consistent with an accusatory system.  For example, the code 
places too many limits on prosecutorial discretion, 
complicating plea-bargaining and witness cooperation, which 
are key elements of the efficiency of an accusatory system, 
particularly in complex crimes.  In addition, the current 
rules of evidence are not adequately developed. 
Consequently, some articles of the code should be revised. 
Actual implementation of the code will reveal other 
deficiencies, many of which will be the result of having 
drafted provisions based on theory rather than practice. 
 
12. Prosecutor General Luis Camilo Osorio will finish his 
term in July 2005.  He has been a critical figure in 
developing and championing the new system, but his tenure 
will end well before the system is fully in place.  If the 
new accusatory system is to be effective, Osorio's successor 
will have to understand it, support it, and actively lead 
its full implementation.  The President's selection of three 
candidates to succeed Osorio, one of whom will be selected 
by the Supreme Court, will have a tremendous impact on the 
future of the Colombian criminal justice system. 
 
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COMMENT 
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13. The criminal justice system is burdened by inefficiency 
and corruption, which adversely affects Colombia's law 
enforcement capabilities, public confidence in its justice 
system, human rights environment, and international 
reputation.  The new criminal procedure code is an important 
step toward a more efficient system that will dispense 
justice with speed and transparency.  The success of this 
new system will depend to a great extend on continued USG 
assistance and support over the next four critical years. 
WOOD