ANNUAL REPORT 2009

CHAPTER V

FOLLOW-UP OF THE RECOMMENDATIONS FORMULATED BY THE IACHR IN ITS 
REPORTS ON THE SITUATION OF HUMAN RIGHTS IN MEMBER STATES

INTRODUCTION  

The IACHR’s practice of following up on its reports on the human rights situation in member states is aimed at evaluating the measures adopted by the states to comply with the recommendations made by the IACHR in its reports. This practice is based on the functions of the IACHR, the principal organ of the OAS responsible for the protection and promotion of human rights, contemplated in Articles 41(c) and d of the American Convention, in concordance with Articles 18.c and d of the Statute and Article 57(h) of the Rules of Procedure of the Commission.[1]

The initiative of evaluating compliance with the recommendations contained in such reports in a separate chapter of the IACHR’s Annual Report dates back to 1998 and the Report on the Situation of Human Rights in Ecuador (1997).  Subsequently, in its 1999 Annual Report, the IACHR included follow-up reports on compliance with its recommendations contained in the reports on Brazil (1997), Mexico (1998), and Colombia (1999).  In its 2001 Annual Report, the IACHR included the follow-up report on compliance with the recommendations contained in the reports on Paraguay (2001), Peru (2000) and the Dominican Republic (1999). In 2002 the Commission included a follow-up on compliance with the recommendations contained in its report on Guatemala (2001). Finally, in 2004 the IACHR included its follow-up reports on compliance with the recommendations contained in its reports on Guatemala and Venezuela.

The reports included in this Chapter have the objective of evaluating the measures taken to comply with the recommendations put forward by the IACHR both in its report Access to Justice and Social Inclusion: the Road towards Strengthening Democracy in Bolivia (2007) and in its report Violence and Discrimination against Women in the Armed Conflict in Colombia (2006). To that end, the States of Bolivia and Colombia were asked to provide all the information they considered pertinent, in accordance with the above-mentioned provisions. Apart from the official information received or obtained from sources accessible to the public, the Commission also used documents and reports from global organs for the protection of human rights, as well as information from civil society organizations and the media.

FOLLOW-UP REPORT - ACCESS TO JUSTICE AND SOCIAL INCLUSION: THE ROAD TOWARDS STRENGTHENING DEMOCRACY IN BOLIVIA

            I.          INTRODUCTION

1.       The purpose of this report is to follow up on the recommendations made by the Commission in the report Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia (hereinafter also “Access to Justice and Social Inclusion” or “the Report of the IACHR”) of June 28, 2007.  Since that report was published the Commission has continued closely to monitor the matters identified as priorities with respect to the situation of human rights in that country. 

2.         In a communication dated September 25, 2008, the IACHR requested the State for information and its observations regarding implementation of the recommendations contained in the aforementioned report. In a note of February 19, 2009, the Bolivian State requested an extension of the time for presenting information. On February 26, 2009, the IACHR notified the State that it could have one additional month. On March 20, 2009, the Commission reiterated to the State its communication of February 26, 2009, granting the one-month extension. On March 26, 2009, the State submitted a supplementary report on compliance with the recommendations. The State transmitted an additional supplementary report with its note of May 1, 2009.   

3.      Furthermore, in keeping with the powers recognized in the Charter of the Organization of American States and the American Convention, a delegation of the Commission conducted a visit to Bolivia from June 9 to 13, 2008, in order to gather information on indigenous families and peasant farmers living in a state of bondage analogous to slavery.  The Commission also issued press releases on various acts of violence recorded in different parts of the country.  During the 133rd and 134th periods of sessions there were public hearings on the human rights situation in Bolivia. The first was held at the Commission’s initiative, and the second was requested by the Women’s Legal Office [Oficina Jurídica de la Mujer] and the La Paz Bar Association. In addition, the Bolivian State was asked to provide information on several facts that could constitute a threat to the full exercise of human rights.

4.        This report has been prepared based on the information collected through the endeavors mentioned in the preceding paragraph and bearing in mind incidents that have had public repercussions, are closely connected with the political climate in Bolivia, and, in specific contexts, have had an impact on the observance of the human rights of the Bolivian people.

5.The Commission’s analysis follows the same sequence as that of Access to Justice and Social Inclusion.  First there is a description of positive developments, a brief overview of the political context, the main conflicts that have arisen and how they relate to the duty of the State to observe and ensure the human rights of all persons under its jurisdiction. Next, the report reviews the issues of administration of justice, rights of persons deprived of liberty, rights of indigenous peoples and peasant communities, women’s rights, children’s rights, and rights of refugees or asylum seekers.  Each section indicates the implementation status of the recommendations, whether are not measures had been adopted in that regard and, if so, the results of those measures and present challenges. 

            II.         POSITIVE ASPECTS AND OVERALL PROGRESS

6.       The Commission notes that, generally speaking, the current government has continued to give priority to public policies and programs that reflect a political will to move forward with a human rights agenda in Bolivia.

7.        The Commission regards as positive a number of legislative and administrative initiatives that, combined with adequate and effective steps for their implementation, could become important instruments for improving the human rights situation in Bolivia.

8.        For example, the Commission was informed that the government designed the National Plan of Action on Human Rights (2009-2013) enacted by Supreme Decree No. 29851 of December 10, 2008. It is a government policy instrument whereby the State undertakes to observe, ensure, and advance the exercise of human rights at the national, departmental, regional, and municipal level, as well as for indigenous communities.[1] The Commission hails the extensive societal participation in the Plan’s design.  In March and April 2008, the Office of the Vice Minister of Justice and Human Rights presented for the consideration of civil society, civic, and youth organizations in all nine departments in the country, a draft of the document in order to gather inputs. Subsequently a second phase of the process was held in which six panels were set up on specific issues: children and adolescents; gender and equity; economic, social and cultural rights; indigenous peoples; migration; and education and protection of human rights.[2]

9.         According to information supplied by the State, the Plan includes the pertinent national and international standards; recommendations made to the Bolivian State by international human rights organizations; the objectives and results desired; problems in exercising rights subject to protection in the domestic jurisdiction; the government organs responsible for implementation; and the budget assigned.[3]

10.              The Commission also notes that, in keeping with the recommendations contained in the Report of the IACHR, human rights training programs were carried out in 2007 and 2008.[4]  The Commission was informed that the government provided training to various state authorities in this area.  According to the Ombudsman, “in the country as a whole training was given to 1,145 members of the Armed Forces and 2,803 police operatives.  As regards (…) civil servants, 1,871 officials received training. Groups were set up in different state institutions to replicate the training in human rights.”[5]

11.     The State reported that in 2008 the following human rights training courses were offered: i) training course for citizen and family conciliation units, March 13-April 30, 2008; ii) human rights and gender awareness course for trainers of police cadets and students of the professional training institutes, March 3-7, 2008; iii) human rights and gender course for police in the operational units in La Paz and El Alto; iv) lectures for the command and senior staff course, July 9-12, 2008, called “The Bolivian Police as a Guarantor of Human Rights and Conflict Resolution”; v) human rights and women cycle, September 22-October 11, 2008; and vi) crosscutting human rights program with gender focus to consider the governing regulations of the Bolivian police, through workshops to review domestic and comparative legislation, and to draft regulatory proposals[6].

12.     The State added that the Bolivian police, together with civil society and the ombudsman, developed an annual operations plan for 2009 that includes human rights activities. In this regard, the Commission considers it a positive step that curricula on human rights and international humanitarian law are now required in the armed forces training institutes.[7] The Commission is also pleased to note the police initiatives in connection with the awareness campaigns on violence against women, human rights in performance of official duties, and the rights of children.[8]

13.       The Commission draws attention to the progress in terms of the creation of Integrated Justice Centers, the results of which are detailed below in the section on Administration of Justice and Judicial Coverage.

14.       The Commission also welcomes the efforts of the Ministry of Justice and the Prosecutor’s Office [Ministerio Público] with regard to protection programs for victims and witnesses in cases involving human rights violations.  These aspects are analyzed in greater depth in the section on impunity in cases of human rights violations.

15.       The executive branch presented to the Congress a bill entitled “Law on Respect for Differences: against all forms of discrimination.”[9]  The Commission hopes that the relevant authorities will initiate the process of discussion and approval of this bill, which could be a fundamental instrument for preventing discrimination in the exercise and enjoyment of rights.

16.        The Commission takes a favorable view of the fact that, in keeping with one of the recommendations contained in Access to Justice and Social Inclusion, the new Constitution provides for the elevation to constitutional rank of all international human rights treaties, which, as that report mentions, could increase the effectiveness of judicial mechanisms for the protection of human rights.[10]

17.     In general terms, the Commission takes a positive view of the fact that the new Constitution approved by referendum and promulgated on February 7, 2009, contains a broad catalogue of civil, political, economic, social, and cultural rights, including collective ones. Recognition of these rights comes with constitutional protection mechanisms such as habeas corpus, suit for constitutional protection, suit for protection of privacy, suit for unconstitutionality, suit for compliance, and peoples’ suit. The Commission also notes with satisfaction that Article 14 of the new Constitution expressly prohibits discrimination based on sexual orientation and gender identity.

18.     The Commission acknowledges the efforts of the government to achieve a high percentage of literacy in the country which culminated in its declaration as an “illiteracy-free territory” by UNESCO on December 20, 2008.  The Commission has also taken note of other important measures in this regard, such as the Juancito Pinto Bonus and Dignity Plan [Renta Dignidad], designed to advance economic, social and cultural rights, and to improve quality of life for the Bolivian people.[11] The Commission also welcomes the development of the Equal Opportunity Plan by the current Vice Minister for Equal Opportunity, enacted in Supreme Decree No. 29850 of 2008.[12]  

19.              The Commission encourages the Bolivian State, in keeping with its constitutional and legal powers, to continue efforts to ensure the highest possible standard in the exercise of economic, social and cultural rights, which are indivisible from civil and political rights. 

            III.        POLITICAL CONTEXT AND SOCIAL UNREST

20.       During its visit to Bolivia in June 2008, the Commission increased its store of information on the ongoing situation of conflict between different power groups that dispute decision-making authority on political, economic, and social matters.  This confrontation continued to give rise to serious violence and acts of discrimination that endanger the lives and safety of Bolivians, as well as constituting a threat to the stability of democratic institutions.

21.     In this context, the Commission has noted the establishment of “shock groups” that have contributed to the polarization of society and exacerbated the climate of violence. According to observations by the Bolivian Office of the United Nations High Commissioner for Human Rights (hereinafter the “Office of the UN High Commissioner”), although most of these groups support opposition sectors that advocate departmental autonomy, there are also some defending the national government.[13] The Commission is concerned about information received that these groups enjoy the protection of important political or economic power groups that influence judicial authorities in their communities.[14]

22.              A great many acts of violence occurred in the second half of 2007 and throughout 2008 and were connected with issues such as the draft Constitution, full “capitalhood”,[15] the regional autonomy statutes,[16] implementation of the agrarian reform,[17] and the recall referendum[18].

A.         Major conflicts since the second half of 2007

23.      From July to December 2007, the Constituent Assembly continued to be the scene of political tension and debate.  On November 24, 2007, the general guidelines were approved that would govern the discussions on the details of the provisions in the draft constitution that would subsequently be put to a referendum. The text approved initially –in broad terms– made no reference to the issue of political and administrative “capitalhood” of the Bolivian state.  This omission led to conflicts between government and opposition supporters, which resulted in three deaths, a high number of injuries in police ranks, and the withdrawal of the police from Sucre because it was believed that it was not possible to keep the peace and maintain law and order.[19]

24.              On December 9, 2007, in Oruro, the text was approved “in detail”.  Subsequently, and as a result of the opposition’s disagreement with the way the Constitution treated regional autonomy, the indigenous question, “capitalhood”, and distribution of the hydrocarbons tax, among other matters, a number of regional authorities submitted autonomy statutes for the regions of Santa Cruz, Tarija, Beni and Pando to a referendum.  Government authorities and the Ombudsman have indicated that the statutes lack any constitutional or legal footing.  In the words of the Ombudsman, “the aforesaid statutes were drawn up by ‘ad hoc committees’ composed of members of those elites, with virtually no involvement of civil society or indigenous-peasant organizations, the chief purpose of which is to keep a series of powers exclusively at the departmental government level in order to consolidate control of forums that ensure the perpetuation of the economic and political power of the elites.”[20]

25.     While the discussions on the autonomy statutes were going ahead, on the eve of a visit by the President of the Republic to the city of Sucre on May 24, 2008, a group of indigenous peasants was prevented from entering the stadium where the President was due to be received, owing to the fact that it was surrounded by university students belonging to the Unión Juvenil Cruceñista, an opposition organization.  During their visit to Bolivia in June 2008, the Rapporteur for the country, Commissioner Luz Patricia Mejía, and the IACHR Rapporteur on the Rights of Indigenous Peoples, Commissioner Víctor Abramovich, received testimony that the youths were carrying firearms, stones, dynamite, and gasoline as they hurled racist insults.  The information received suggests that on this occasion indigenous persons and peasants were victims of acts of violence and humiliation, forced to kneel, remove their shirts, and shout slogans in support of full “capitalhood” and against President Morales.[21] As a result of these acts, more than 30 indigenous persons and peasants were wounded.[22] 

26.     Following approval of the autonomy statutes in Santa Cruz, Beni, Pando, and Tarija, a dialogue was opened between the parties to make the contents of the statutes compatible with the draft constitution.  The President of the Republic proposed three subjects for the dialogue: i) an autonomous constitutional pact; ii) a fiscal pact to redistribute the direct tax on hydrocarbons; and iii) an institutional pact to simplify appointment of officials of the judicial branch and the National Electoral Court.[23]

27.              This dialogue did not bear fruit, so the executive branch proposed a recall referendum for the posts of President and Vice President of the Republic, and eight departmental governorships.  At that stage, political tensions and discussions centered on the legality of the autonomy statutes and on the call for a referendum.  The referendum was held on August 10, 2008, and drew a turnout of 84% of the electorate.  The result was a massive show of popular support for the president’s administration, with 67.4% of the vote.  As regards the governors, six were ratified (four belonging to the opposition and two to the ruling party), while the mandates of the Governors of La Paz and Cochabamba were revoked.[24]

28.              In mid-August 2008, the dialogue broke down and tensions increased.  In this context, civic committees in the regions called for the implementation of the autonomy statutes to be speeded up, called a strike, and prohibited government authorities from visiting their departments.  The measures adopted included, inter alia, a blockade of roads, the suspension of food shipments to the west of the country, and blockades in Villamontes and Yacuiba, the border regions with Argentina and Paraguay where the gas supply valves are located.[25]

29.              These measures were maintained as a means of pressure to prevent the referendum on the Constitution from being held.  In response, the National Electoral Court suspended the referendum. In spite of that, in the first fortnight of September 2008 the Santa Cruz offices of several state institutions were violently seized and looted, including the National Institute of Agrarian Reform, National Tax Service, Empresa Nacional de Telecomunicaciones, Canal 7, Department of Immigration, and others.[26]

30.              Around that time similar acts were carried out against the Center for Legal Studies and Social Research (CEJIS), the offices of the Indigenous Peoples Confederation of Bolivia (CIDOB), the Coordinator of Ethnic Communities of Santa Cruz, and the Center of the Investigation and Promotion of the Rural Farmer (CIPCA).  These acts were accompanied by threats to the physical integrity of the leaders of these organizations and resulted in injuries to tens of civilians.[27]

31.     In response to what was called a “civil-mayoral coup d’etat,” the government ordered State security authorities to protect public installations and repeatedly urged the people to defend democracy, the national institutions, and the socio-political process.[28]

            B.         The events that occurred in Pando Department on September 11,
                            2008[29]

32.         As a result of these blockades and the aforementioned occupations of buildings, the Peasant Farmers Federation invited all of its member organizations to a “Department-wide emergency meeting to analyze the political climate, defense of the land, and protection of natural resources.” This meeting was scheduled for September 11, 2008.[30]

33.         According to available information, on the night of September 10, 2008, officials from the Departmental Roads Service, which takes its orders from the Governor’s Office, and members of the Civic Committee, using heavy machinery, mobilized to head off the peasants marching to the meeting scheduled for the following day. To that end, they dug two deep ditches in the Puerto Rico to Porvenir road in Pando, in the area known as Tres Barracas, to block the peasants’ advance.[31]

34.         On September 11, 2008, the events occurred that left at least 11 persons dead, among them two officials from the Office of the Governor of the Department of Pando;[32] 50 injured, and tens of people displaced to the countryside and the city of La Paz.[33]  The Commission also received information about discriminatory treatment of injured indigenous persons and peasants when they sought assistance at health centers.[34]  Some media organizations in the area portrayed the events as a “confrontation” [35], but the testimonies received by agencies such as the Ombudsman and the Office of the UN High Commissioner led these institutions to conclude that the incident was a massacre with participation of persons linked to the Office of the Governor.[36]

35.          The Report of the Ombudsman on these events says that the circumstances surrounding the deaths indicate the direct involvement of human and material resources belonging to the Office of the Governor of Pando.  In particular, the report found that “the fact that the ditches at Cachuelita and Tres Barracas were dug with SEDCAM machinery,[37] that vehicles belonging to the Office of the Governor were used to transport personnel, civic committee members, and other persons in order to block the advance of the peasants; that unconventional firearms were used in the area; and that steps were taken that exceeded its authority, meant that this institution was involved directly, and in some cases indirectly, in the deaths (…) people.”[38]

36.     According to the report of the Office of the UN High Commissioner, that agency received testimony that there were indiscriminate gunshots against the peasants’ meeting in El Porvenir. It is said that some of the victims, well-known indigenous leaders, were intentionally targeted and killed.[39]

37.     Furthermore, according to witnesses,15 persons were abducted in the attack and taken to the offices of the Pando Civic Committee, where they were allegedly tortured and threatened with being killed unless admitted to being the perpetrators of the acts of violence and to accepting payment in return for attending the peasant meeting.  These persons were taken to the Prosecutor’s Office, which contradictorily is said to have opened a criminal investigation against them, despite the fact that they were victims in the massacre.[40] Information has also been received that six supporters of the Office of the Governor were captured, beaten, and then released by the peasants after police intervention.[41] 

38.     The Commission notes that in response to these events, on September 24, 2008, the government approved and implemented a decree to provide medical and social assistance to those injured in Pando, financial assistance to the next-of-kin of the victims killed, and humanitarian aid to communities affected by the violence.[42] However, the Commission is perturbed by complaints about the inability of the security forces to carry out their duty to prevent human rights violations.[43]

39.              For its part, the General Secretariat of the OAS has played a fundamental role in support of democratic institutions by dispatching electoral observation missions to monitor the country’s elections and democratic consultation processes, including the recall referendum.  The OAS also attended and mediated in the dialogue processes in the city of Cochabamba and the National Congress, which resulted in the calling of the constitutional referendum to be held on January 25, 2009.  For its part, the Permanent Council adopted on May 3, 2008, a resolution entitled “Support for the Process of Dialogue, Peace, and for Democratic Institutions in Bolivia”, and on November 19 of that year, held a protocolary meeting to receive the President of the Republic, Evo Morales Ayma.

40.              As it stated in the press release issued in the wake of these events[44], the Commission vigorously deplores and repudiates these acts, which reflect a total disregard for human life. The Commission considers particularly serious the allegations that local authorities were involved in planning some of these acts. The Commission urges the Bolivian State to take steps to prevent the repetition of acts of this nature through the creation and implementation of a system with sufficient capacity to ensure that control measures are compatible with the international obligations adopted by Bolivia. Such measures of non repetition also include the National Police, which, in strict observance of human rights, have a constitutional obligation to use reasonable and proportionate means to prevent situations of violence of the kind described.

41.              The State must also do its duty to ensure that the events are investigated and those responsible punished.  The Commission urges the State to carry out the necessary investigations in an effective manner, in strict compliance with the guarantees of due process.

            C.         The State of Siege in the Department of Pando

42.       As a result of the events of September 11, 2008, in Pando, on September 12, 2008, Decree 29.705 was passed declaring a state of siege throughout the territorial jurisdiction of that department, in accordance with Article 111 of the Constitution then in force.

43.              The Decree introduced a prohibition that made it illegal: to carry firearms; to organize any political meetings, demonstrations, strikes, or blockades that might disrupt the normal development of activities; for more than three people to travel together between the hours of midnight and 6 a.m.; to hold any social gathering without the permission of the national police; for government- and privately owned vehicles to circulate between the hours of midnight and 6 a.m. without permission from the Traffic Authority; to travel in the country without a safe-conduct, and for any premises that engaged in night-time activities to operate between the hours of midnight and 6 a.m.[45]

44.        The Decree also provided that any persons or departmental, municipal, and provincial authorities involved in acts that violate public order, life, security, the peace, and the rule of law would be liable to application of the provisions contained in paragraphs 3 and 4 of Article 112 of the Constitution.[46]

45.        Under these provisions,

The declaration of a state of siege produces the following effects:

(…)

3. The rights and guarantees granted by this Constitution shall not be suspended ipso facto and in general by the mere declaration of a state of siege; but they may be with respect to specified persons charged upon good grounds with conspiring against the public order, in accordance with the provisions set forth in the following paragraphs.

4. The legitimate authority may issue summonses or arrest warrants against the accused, who must be brought before the competent judge within forty-eight hours, together with the documents substantiating the arrest. If the preservation of public order necessitates the removal of the accused, they may be ordered confined to a departmental or provincial capital that is not unhealthful. Banishment for political reasons is prohibited, but a person confined, sought or under arrest on such grounds, who requests a passport to leave the country, may not be denied it for any reason whatever and the authorities must grant him the guarantees necessary for that purpose.

(…)

46.         Although the Decree did not set a time limit on the state of siege in Pando, under Article 111 of the Constitution such a measure may not last longer than 90 days.[47]  The state of siege was lifted at midnight on November 24, 2008. 

47.         It came to the Commission’s attention that on September 12, 2008, in the operation to retake control of Cobija airport, shots were fired that resulted in the deaths of two persons: a conscript named Ramiro Tinini Alvarado and a Mr. Luís Antonio Rivera.[48] 

48.     The Commission has also been informed that between September 15, 2008 and the lifting of the state of siege, a group of between 25 and 38 persons were arrested and taken as internal exiles to the military base of the “Bolívar” regiment located in the city of Viacha, which is situated 20 km from the government headquarters in the city of La Paz.[49] According to testimony from the exiles and information from their next of kin gathered by the Office of the Ombudsman and the Office of the UN High Commissioner, the searches of the homes to make some of the arrests were conducted in nighttime operations in private residences, without an arrest warrant or any information on the reasons for the arrest or detention. The military personnel who took part in the operation reportedly broke into doors, fired in the air outside the houses of the people they were going to arrest, and even wounded one of them with a pellet in the neck. The reports said several persons were kicked and beaten with rifle butts, had their hair pulled, were insulted and threatened, and a weapon was pointed at one person in bed.[50]

49.          According to its international obligations, even in a state of siege, the Bolivian state is required to ensure that any measures connected with the use of force or, in general, to ensure security, is carried out within the limits imposed by respect for the life and safety of persons and by fundamental judicial guarantees not subject to suspension.

50.     In addition, the State recognized that except for ExGovernor of Pando Leopoldo Fernández, none of the detainees was brought before a judge, because the constitutional provision on confinement provides that upon arrest there are two options: to be confined to preserve public order or to be brought before a competent judge for allegedly committing a crime. The State said that the authorities did not consider it appropriate to present the detainees to a judicial authority.[51] In the Bolivian State’s view, the arrests were not the result of a policy decision, but were carried out in the framework of current constitutional provisions, and in accordance with the “substantive and procedural guarantees provided in Article 27.2 of the American Convention.”[52]

51.        Although the available information indicates that except for the use of force in the arrests, the persons confined received humane treatment and were given food and medical care,[53] the Commission is also concerned by the fact that their “exile” status is the result of a political decision and not the decision of a judicial authority able to confirm their detention, as required by the Constitution and in accordance with the case law of the Constitutional Court of Bolivia.  This Court has held that “a state of siege is an extraordinary measure provided for in Article 111 of the Constitution that suspends a number of basic rights for certain individuals; nevertheless, it is necessary in respect of said individuals to observe the conditions set forth at Article 112 (3) and (4) of the Constitution.”[54]

52.        In the Commission’s opinion, the alleged arbitrary raids, mistreatment during detention and transport, and being held incommunicado, as well as the way in which the device of exile was used, namely on the pretext of the need for “political protection by the state of public order”, without a court order or judicial review,[55] and without the persons concerned being promptly charged with the commission of crimes while the state of siege was in force, is incompatible with the substantive and procedural guarantees provided in Article 27(2) of the American Convention precisely as protection mechanisms against abusive measures in states of emergency.  Without these guarantees, persons in the custody of the State are left completely vulnerable and defenseless.

53.     Accordingly, the Commission hopes to receive more-detailed information from the State on these alleged human rights violations during the state of siege, including measures taken to investigate the actions of the respective security officials.

D.        Other violent acts against state institutions, political leaders or former leaders, and the media

54.       The Commission was informed of attacks against state institutions,[56] at the workplaces and even the homes of senior officials belonging to both the ruling party and the opposition;[57] on the offices of media outlets, as well as on journalists and media workers;[58] and, in general, among groups that support the positions of the opposing political, economic and social actors. 

55.     The Commission finds it particularly disturbing that on March 7, 2009, a group of neighbors attacked the home of Former Vice President Víctor Hugo Cárdenas in the community of Sank’a Jawira some 70 km from La Paz.[59] According to newspaper reports, the intimidation began around 8 a.m. when about a dozen persons gathered a few meters from the property.[60] The former vice president’s wife reportedly called the police but got no response, apparently on orders of the town’s mayor.[61] According to available information, the assailants violently entered the house, broke windows and stole belongings, all in an extremely violent manner. The media reported that Cárdenas family members said they were beaten, pushed, kicked, insulted, forced to go into the yard and were whipped and stoned as they left.[62] The women at home were said to have been brutally struck. The house was painted with slogans like “from the people to the people,” “senior citizens’ house,” and “reclaimed for the people, dammit.”[63]. It was also reported that reporters trying to cover the incident were prohibited from taking photos and were chased “with whips.””[64] After the incident, some news media reported statements by senior government officials, including the President and Vice Presidents of the Republic and the Vice Minister of Community Justice, who denied government participation in the events, but justified them on the basis of pending issues Mr. Cárdenas had with the community.[65]

56.     A similar event occurred on March 3, 2009, against the former deputy of the Movimiento al Socialismo, who was reportedly attacked near her house by a group of persons with strong blows that left her covered with bruises. Some newspaper reports carried the victim’s statement in the following terms: “a man pushed me with a stick to force me down on the ground while the women threw stones at me and lashed me with a whip.” The available information indicates that Ms. Pareces was expelled from the political party in 2003 for speaking out against the current president, Evo Morales, and recently published the book Del gonismo al evismo [a reference to former president Gonazalo Sánchez de Lozada and the current president].[66]

57.       The Commission strongly repudiates the acts described in this section and expresses its deep concern over the increase in events of this sort allegedly occurring along with the progressively greater political polarization noted in Bolivia. The Commission is especially alarmed by the statements of senior government officials that could imply or be interpreted as a justification for these deplorable acts of violence. The Commission urges the Bolivian State to take the necessary steps to prevent the recurrence of similar acts, including the public and unequivocal condemnation of them, and to start and carry out a serious and diligent investigation to clarify what occurred, in order to identify the responsible parties and punish them accordingly.  

            IV.        ADMINISTRATION OF JUSTICE

58.              In the Access to Justice and Social Inclusion, the Commission examined the obstacles traditionally faced by certain, particularly vulnerable sectors of society.  The Commission centered on coverage and distribution of justice services; guarantees of independence, impartiality, transparency, and suitability; implementation of the accusatorial criminal prosecution procedure, and factors of impunity in cases of gross violations of human rights committed during the military dictatorships and in the framework of social unrest.[67]

A.         Coverage and distribution of justice services

59.       The Commission expresses its deep concern at the continued minimal coverage of justice services in the country.  According to the Commission’s findings on its report, only 55% of municipalities have a judge, 22% a prosecutor, and 3% a public defender.

60.       Although the State reported that the Attorney General of the Republic is implementing a project called the Prosecutors’ Map [Mapa Fiscal] to achieve a broader and more even distribution of prosecutors in the national territory, the available information indicates that thus far, the lack of coverage of justice services continues to affect people who live in extremely poor rural areas, inhabited for the most part by indigenous peoples and peasant communities[68]. 

61.        The Commission reiterates that the lack of judicial coverage perpetuates the exclusion of certain sectors of society from access to justice.  This situation also fosters impunity in human rights violations and encourages their repetition, as has happened, for instance, in the cases of mob lynching described hereinbelow. The Commission reminds the Bolivian State that, pursuant to Article 25 of the American Convention, all persons under its jurisdiction must have the possibility of recourse to the courts, and must be able to obtain a response to their demand within the guarantees of due process.  The exercise of these rights presupposes that there is a judicial system that covers the entire national territory.

62.         The Commission urges the State to adopt forthwith measures to increase the presence of judicial authorities, prosecutors, and public defenders throughout the country.  If it does not, the guarantee of the right to judicial protection for persons subject to Bolivian jurisdiction will continue to be illusory.

63.         The Commission has also been informed of the creation of Integrated Justice Centers as forums “of and for the local community, implemented in order to improve access to justice for vulnerable sectors of the Bolivian population.”  These centers began to operate in 2004 and were later recognized by Executive Decree 28.586 of January 17, 2006, as part of the National Program on Access to Justice.  Their function is to provide free information services, legal advice, and conciliation services, as well as processing birth certificates and providing neighborhood training on matters connected with the exercise of citizen rights.  They also have courts of first instance with jurisdiction over certain disputes in civil, criminal, and family-law matters.[69]

64.        According to available information, at present there are 11 such centers in the country: six are located in the city of El Alto; one in Santa Cruz de la Sierra; one in La Paz, one in Chimoré, Cochabamba; one in Coroico, Yungas, and one in Yapacaní, Santa Cruz.  As of December 2007, 55,000 cases had been heard.[70] During 2008 32,380 cases were heard[71] and as of June 2008, 16,259 individuals had received free comprehensive assistance at the centers.  There are plans to strengthen and create new Integrated Justice Centers in coordination with municipal governments, the judiciary, the Prosecutor’s Office, and universities.[72]. 

65.         The Commission values the efforts to extend and strengthen alternative dispute settlement mechanisms, which have proved effective at reducing procedural delays and congestion in the courts, as well as offering viable alternatives to people who, for a variety of reasons, are unable to access the official justice system.  In this regard, the IACHR hopes that the problems to do with allocation of sufficient funding to ensure that these centers can operate adequately properly on a permanent basis are overcome.  The foregoing notwithstanding, the Commission considers that these measures are not sufficient to ensure access to justice, particularly for the inhabitants of the more remote rural areas.  The presence of Integrated Justice Centers should not be regarded as a substitute for institutions such as the Prosecutor’s Office and public defenders in rural parts of the country.

            B.         The status of the Constitutional Court

66.         On May 17, 2007, the Constitutional Court warned that democracy, the rule of law and state institutions were in danger as a result of the government’s intention to institute proceedings for misfeasance in office against the five members of the Court who announced that the term for which certain justices of the Supreme Court had been appointed had expired. The Commission received reports that the charges of misfeasance in office were permanently dropped; however, two of the accused justices decided to tender their irrevocable resignation in response to what they saw as harassment and a systematic attack on their independence and impartiality,[73] owing to the public exposure and politicization of the trial.[74]

67.         The Commission has been informed that since December 13, 2007, when a judge on that court resigned, this body has lacked the necessary quorum to convene and adopt decisions.

68.     The Commission was subsequently informed that on May 26, 2009, the only female justice still serving on the Constitutional Court resigned, which means that all seats on the tribunal have been vacated. On June 23, 2009, the Commission formally asked the government to provide information on the current status of the Constitutional Court, inquiring specifically about the possibility that its members could be appointed soon by the Congress and measures that will be taken to address the backlog of cases due to the delay in the appointments. As of the date of approval of this report, the Commission had not received a reply to this request.

69.     Available information indicates that the problem of the Constitutional Court vacancies will be resolved with the election of the members of the new Plurinational Constitutional Court.[75] However, the Commission notes that the new constitutional text indicates the need for several preliminary steps before justices can be named to that institution through universal suffrage as called for in the new Constitution. Among those steps is the election of the new Plurinational Legislative Assembly scheduled for December 6, 2009. After the legislative organ is installed, it has 180 days to enact legislation for the electoral system, the judicial organ, and the Plurinational Constitutional Court, all of which are needed to proceed with the elections for the Court. According to the timeline of the new Constitution, the new Plurinational Constitutional Court will not be elected until at least the second half of 2010.[76]

70.     The Commission understands that the current Constitutional Court continues to exist in Bolivia’s present political and juridical system, just as there is continued operation of the other State institutions such as the Congress, which will be replaced by the Plurinational Legislative Assembly once it is chosen under the new Constitution. The status of the Constitutional Court is that its seats are vacant, but this does not mean the institution has ceased to exist nor that its functions of constitutional control and protection of basic rights have disappeared from the Bolivian government structure.

71.     According to statistics published by the Constitutional Court Secretariat, this lack of justices has paralyzed 4,489 constitutional cases, affecting an estimated 29,069 persons.[77] Since by its very nature the role of the Constitutional Court is to defend the Constitution and guarantee basic rights, the Commission is alarmed that a year and a half has gone by with no progress in appointment of the justices. The Commission considers that this situation seriously jeopardizes citizens’ right to proper administration of justice and upsets the system of Constitutional checks and balances, thereby threatening the country’s democratic institutions.

72.     In this regard, the Commission urges the Bolivian State to name justices to the Constitutional Court immediately for the term remaining until that institution is replaced by the Plurinational Constitutional Court. The Commission feels it is essential for this appointment to ensure the guarantees of independence for the justices and the necessary resources for them to carry out their functions.

            C.         Guarantees of independence, impartiality, transparency, and suitability

73.       In Access to Justice and Social Inclusion the IACHR analyzed the irregularities in the appointment processes for judges and prosecutors, as well as in enforcement of the disciplinary system of the judiciary and the Prosecutor’s Office.  The report also referred to the perceptions of some sectors of society regarding interference by the executive branch in the judiciary and complaints about the lack of transparency in these selection processes. In a similar sense to what was described supra, one aspect that the IACHR has found troubling is the high number of vacancies lasting months in top posts of different branches of government and the present provisional status of the position of Attorney General.

74.        The problem of provisional appointments continues to plague the Prosecutor’s Office.  According to information received by the IACHR during it visit to Bolivia in June 2008, Mr. Mario Uribe continues to occupy the post of Attorney General on a pro tem basis as Congress has not taken the necessary steps to appoint his successor.

75.     The foregoing notwithstanding, the Commission notes the information supplied by the State on the implementation of a prosecutor career through a system of public competitions with monitoring and participation of civil society through the Network for Participation and Justice, to guarantee transparency. The Commission continues to receive information on the results of this initiative to implement the prosecutor career definitively and permanently in accordance with the internal rules of procedure of the Prosecutor’s Office, which establishes procedures for the appointment of prosecutors with a prosecutor career based on merit competition and progressive accreditation of knowledge.[78]

76.     The Commission also welcomes information supplied by the State concerning some undertakings aimed at overcoming the problems and barriers for the proper implementation of the judicial career. These initiatives include directive CJ-GRH-022/08 of September 29, 2008, to human resources chiefs of all judicial districts, which orders that all jobs be posted on the official website.[79] The State also reported that there will be reforms in the whole system for selection and discipline of the judicial branch.[80] The State said that under the new Constitution, the Magistrates’ Council will pre-select candidates for the departmental courts, who will be appointed by the Supreme Court, and select the district examining magistrates [jueces de partido e instrucción] through merit competition. It added that under the new Constitution, the Plurinational Legislative Assembly will nominate candidates for the Plurinational Constitutional Court, the Supreme Court, the Agro-environmental Court, and the Magistrate’s Council, who will then be elected by universal suffrage under Article 158 of the new Constitution.[81] 

77.              The Commission trusts that the State will continue to provide information on the consolidation of the judicial career in the framework of the new Constitution and the institutions to be established under it.  The IACHR reminds the State of the need for it to effectively implement the judicial and prosecutorial careers systems in strict accordance with the rules that govern them and in keeping with international standards in such matters.  In that regard, the Commission reiterates that the Basic Principles of the United Nations on the Independence of the Judiciary establish that there is a direct relationship between guarantees of independence and impartiality in the administration of justice, as a precondition for meeting the standards of due process, and the creation and strengthening of transparent mechanisms for the appointment and promotion of judges on the basis of their qualifications, and not for other, improper motives.

            D.         Accusatorial Criminal Prosecution Procedure and Public Defenders

78.       In Access to Justice and Social Inclusion the Commission identified a series of obstacles and problems in the effective implementation of the accusatorial criminal prosecution system.

79.       In this respect, the Commission was informed that the National Public Defenders Service embarked on redesign of its functions, which resulted in a Defender’s Handbook and the Regulations of the National Public Defenders Service Training Institute, which documents detail the activities that public defenders are required to carry out.[82]  The Commission regards as positive the implementation of a computerized data system that will make it possible to follow up electronically on every case taken up by public defenders.[83]

80.       In spite of the foregoing, efforts to improve the coverage of the Public Defenders Service have not been sufficient.[84]  There is still a shortage of public defenders, particularly in rural areas, since what few public defenders there are provide their services in departmental capitals and a number of intermediate cities.[85]  In addition, there are no studies on the caseload of public defenders from which to make a determination as to the geographic coverage needed.[86]

81.        The Commission reiterates the crucial role that public defenders perform in guaranteeing the right to a fair trial for persons in positions of great vulnerability, and it reminds the State of the need to adopt measures to increase the number of active defenders and ensure the quality of their work.

82.     The Commission takes note that measures have been adopted and/or continued to cope with the processing backlog for criminal cases. These measures include the Early Solution Unit, which is a filter or screening mechanism for cases that warrant the start of criminal proceedings.[87] In addition, the State reports that studies have been completed and manuals have been published for the application of alternative vehicles.[88] The State also mentioned that the guidelines for coordination at the police, prosecutor, and court levels have been implemented with software for databases that show the status of the proceedings with an indication of the dates and subjects involved, which makes it possible to follow up on the deadlines for the proceedings.[89] The State adds that the National Plan of Action on Human Rights contains a comprehensive diagnostic of the weaknesses in implementation of the Penal Procedure Code and other penal system legislation, taking into account the IACHR’s recommendations. This action is to be taken between 2009 and 2013 with the goal of reducing the country’s case backlog.[90] 

83.     Nevertheless, the State emphasized that there are two major weaknesses in the current penal procedures. The first is the problem in forming the courts with citizen judges, for lack of candidates, which has caused delays and stays in the trials. The second refers to the “excessive guaranteeism” on behalf of the defendants, who use a series of delaying tactics and then claim that the statute of limitation for the proceeding has expired.[91] 

84.        The Commission welcomes the State’s efforts to implement the accusatorial criminal prosecution system. However, available information indicates that the case backlog continues to be the major problem of criminal justice. In this regard, the Commission urges the State to continue striving to do whatever is needed to overcome these problems. The Commission stresses that the design of these efforts must achieve a fair balance between the need to resolve cases expeditiously and to provide judicial guarantees for the defendants.

85.              Finally, the Commission was informed that the preliminary draft of a proposed Law on Comprehensive Protection and Assistance for Victims of Violent Crime was prepared in coordination with the Prosecutor’s Office. Furthermore, the Ministry of Justice intends to implement the National Legal Protection Service on behalf of violence victims.[92]  The Commission also received reports that the Ministry of Finance granted an additional appropriation to the Prosecutor’s Office in order to implement the Victim and Witness Protection Program through the creation of new budget items for prosecutors and to hire part-time staff, such as paralegals, psychologists, and social workers.[93]  The Commission values these government initiatives to improve assistance to victims of human rights violations and hopes to receive further information on their implementation and results.

            E.         Factors of impunity in cases of gross violations of human rights

1.         Facts that occurred during the military dictatorships

86.      As regards human rights violations that occurred during the military dictatorships, the Commission received reports of some progress with respect to the search for and identification of the remains of disappeared persons.  The Commission was informed that the Interagency Council for the Clarification of Forced Disappearances submitted a project proposal for the exhumation, identification, return, and investigation of disappeared persons, which provides for the participation of the Argentine Unit of Forensic Anthropology, thanks to the support of the Argentine government.  The intention is that the project would be financed in large measure with international cooperation funds.[94]

87.     Information provided by the State indicates that the Ministry of Justice signed a memorandum of understanding on technical cooperation with Argentina on November 5, 2007, based on a project for investigation and clarification of cases of forced disappearance during the dictatorship periods (1964-1981). The project includes: i) recovery of the remains of the disappeared persons, to be returned to their families; ii) gathering of evidence for clarification of the forced disappearances; iii) establishment of communication with and provision of social and psychological assistance to the families; iv) establishment of the national archive of the history of forced disappearances and martyrs for national freedom; and v) development of a collective conscience against dictatorships and in favor of democratic development. The project is to be carried out in 36 calendar months and there has already been progress in identification and delivery of some remains.[95]

88.        The Commission received information about the exhumation of the remains of 17 victims of forced disappearance found in the tomb of the Association of Next of Kin of the Disappeared Detainees and Martyrs for National Liberation. At present, the process of identifying the remains is said to be underway.[96]

89.       The Commission was also told about the presentation of a draft Executive Decree on appropriate operational practices in connection with the treatment of human remains and information about the disappeared person.[97]

90.         As regards reparations, the Commission has monitored the steps taken by the National Commission for Redress of Victims of Political Violence (hereinafter also “CONREVIP”), which is in the process of assessing victims of the dictatorships, in particular those of forced disappearance, torture, murder, exile, arbitrary arrest and imprisonment, and political and trade union persecution.[98]  According to government sources, as of June 2008, 6,221 applications had been received and disaggregated as follows: 63 for disappearance; 233 for murder; 1,477 for exile; 3,521 for detention; 816 for persecution, and 17 for torture.  It is estimated that the assessment of all 6,221 applications will be completed in the near term and an Executive Decree issued containing a list of the victims and beneficiaries of redress.[99]

91.     The State added that the Ministry of Justice has made several efforts to obtain financing for 80% of the material compensation for beneficiaries of Law 2640 that established CONREVIP. The project is reported on the negotiation table of the Vice Minister for Public Investment and External Financing to press for funding for the external cooperation. It says that the current Ministry of Finance has granted 20%, so that is assured.[100]

92.        The Commission takes note of these efforts, which are evidence of political will to grant reparations to the next of kin of victims.  However, the Commission notes that difficulties persist in the clarification of the facts because the investigations and judicial proceedings continue to make slow progress.   Military secrecy continues to be one of the main obstacles in the progress of trials.  The Commission was informed that the Permanent Assembly of Human Rights recently reiterated its request to complete the procedures for declassification of the files of the Second Army Department and other documents to enable investigations to continue in order to ascertain the whereabouts of the remains of several persons who disappeared under the military dictatorship of Luis García Meza.[101]  The Commission underscores the importance of access to the files for bringing full reparation and clarification of past human rights violations.

93.     Moreover, the Commission welcomes the efforts the State is making to obtain funds for the location and identification of the remains of victims of the dictatorships, and to pay reparations to the victims found still living and/or their families. However, the Commission wishes to recall that these obligations must be satisfied by the Bolivian State in the framework of its international obligations assumed with the ratification of the American Convention and other human rights treaties. The Commission hopes that if overtures to obtain external funding are not successful,[102] the State will take the necessary budgeting steps to give continuity to the above-mentioned programs for identification of remains and for reparations.

2.         Social conflicts in the last decade

94.        With regard to social conflicts in the past years, the Commission received reports that progress in the investigations connected with the suppression of the mobilizations of February 2003 continues to be delayed by the failure of four accused servicemen to appear before the judicial authorities.[103] Nevertheless, the Commission welcomes the promulgation of Law No. 3955 in November 2008, which establishes reparations to victims of violence in February, September, and October 2003.[104] The Commission hopes that the State will continue to report on the implementation of this law and its concrete results.

95.     With respect to the events that took place in Sucre in May 2008, described supra, the Commission took note that eight cases were under investigation in the Chuquisaca District Prosecutors’ Office. According to the annual report of the Office of the UN High Commissioner, there have been indictments in three of the eight cases, while the Prosecutors’ Office rejected the other five. That office said some victims were probably reluctant to testify for fear of reprisals by the Civic Committee of the zone.[105]

96.     As for the events that occurred in Pando Department on September 11, 2008, described supra, three investigations are said to be underway.[106] According to information supplied by the State, the first was opened by the Public Prosecutor’s Office for the deaths of three persons. In this investigation, the Fifth Examining Magistrate for criminal cases reportedly ordered the preventive arrest of Former Pando Governor Leopoldo Fernández. The second investigation was opened by the Minster of Justice on September 24, 2008, and the alleged perpetrators are Former Pando Governor Leopoldo Fernández, leaders of the Civic Committee, officials of the Office of the Governor, and others. The accusations are: forced disappearance of persons, attempted assassination, harassment, torture, deprivation of liberty, and very serious, serious, and light wounds. The third investigation was opened with the formation of a Special Muliparty Committee of the House of Deputies, with that chamber assuming the role of the Public Prosecutor’s Office in cases of national significance.[107]

97.         The State also informed the Commission that the national government sent directives and requests to various officials in the Prosecutor’s Office, asking that investigations be opened ex officio regarding the looting and violent attacks on the state institutions and human rights organizations occurred in September, 2008 and mentioned above in the section dealing with the political context and social unrest.  A National Prosecutorial Commission with nationwide jurisdiction and based in the city of La Paz was set up for that purpose.[108] 

98.         The Commission hopes to continue receiving progress reports on these proceedings and urges the State to adopt measures to overcome the difficulties that have hampered clarification of human rights violations committed in the past as well as those that continue to occur in the present.  In particular, the Commission urges the State to intensify its efforts to identify the culprits and impose appropriate penalties, given that the prospect of obtaining justice and ensuring that those responsible are punished dwindles as time passes.

3.           Cases of “street lynching”

99.          The Commission has also received information through press reports collected by the Office of the Ombudsman and other sources regarding repeated cases of lynching characterized by acts of mob violence perpetrated with cruelty.  Generally speaking, the victims are captured on suspicion of having committed a crime and are beaten, mutilated, stoned, or burned, more often than not leading to their death.  These acts are usually committed “in the name of justice” and are justified by the perpetrators as “justice by their own hand” in the absence of state protection.  Cases of lynching are not properly investigated by the Prosecutor’s Office or the courts because there are no judges or prosecutors present in the areas where this practice mostly occurs.[109] An aggravated fact in the “pact” or “silent agreement” between actors to ensure impunity[110].

100. Although this is a problem that goes back decades, media reports suggest that there has been an upswing in recent years.  According to journalistic sources, there were seven cases in 2005, 10 in 2006, and in 2007, 57 cases.[111] The Office of the UN High Commissioner said that at least 23 lynching attempts were reported by the media in 2008, resulting in 20 persons killed and 23 wounded.[112]

101.          The Commission vigorously condemns these acts of violence and assault that constitute gross violations of the rights to life and integrity of the person, as well as denoting the weakness of the rule of law, since they are recurring and increasing to the detriment of people who are utterly bereft of any protection from the State.  The Commission finds it unacceptable that lynchings should continue to occur without the Bolivian State having taken immediate steps to put a permanent stop to this practice.

102.          The Commission urges the State of Bolivia to adopt these measures as a matter of priority and to immediately initiate investigations into these incidents in order to identify and punish those responsible.  In view of the nature of violations of this type, inaction on the part of the State in investigating them could encourage their repetition and be interpreted as a kind of legitimization or acquiescence since, as mentioned in the preceding paragraph, these acts are usually justified by their perpetrators as a form of justice.[113]  Accordingly, the IACHR reminds the Bolivian State that in ratifying the American Convention it undertook to ensure the rights of all persons subject to its jurisdiction, which includes the duty to prosecute and punish those who commit human rights violations, regardless of whether they are agents of the state or private individuals.[114]