US embassy cable - 05BOGOTA4640

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