Baseless Prosecutions of Human Rights Defenders in Colombia

Executive Summary

"If they cannot assassinate you, they follow you, threaten you and prosecute you. They prosecute us for whatever matter."
Francisco Ramirez, human rights lawyer and president of the Colombian Mine Workers? Union SINTRAMINERCOL ¹

"Belonging to an organization that defends human rights... carries with it a high risk: constant stigmatization by the media and people who occupy public positions.... [T]hey may try to assemble false criminal charges against people who work in these organizations... which means that judicial institutions must be cautious in the analysis of each element of the evidence."
Hernando Betancur, 3rd Prosecutor, Medellín ²

IN A CRIMINAL JUSTICE SYSTEM plagued by impunity, the tenacity with which Colombian prosecutors pursue human rights defenders for supposed crimes is striking. While corruption and arbitrary actions are a systemic problem throughout the judicial system, those who peacefully promote human rights are singled out for particular intimidation through baseless investigations and prosecutions. Unfounded charges are often widely publicized, undermining the credibility of defenders and marking them as targets for physical attack, often by paramilitary groups.

While defenders are not alone in being subjected to false investigations, their persecution is distinctive due to the nature of the charges and the methods of collecting, and falsifying, evidence. They are usually accused of rebellion and membership in a guerrilla organization. By the time defenders are illegally detained, they have often been investigated in secret for many months or even years. Two of the hallmarks distinctive to defenders? cases are the use of false testimony from ex-combatants and of inadmissible intelligence files. Charges are typically based on spurious allegations by ex-guerrillas whose testimony has been coerced or coached by regional prosecutors. Armed with such erroneous evidence, which is objectively inadequate to initiate an investigation, prosecutors and others publicly pre-judge the defendants, stigmatizing defenders as terrorists. Because defenders are singled out for this type of persecution, solutions that focus specifically on defenders are needed.

The steadfast investigation of spurious criminal complaints against defenders stands in stark contrast to the failure to investigate attacks, threats, and other forms of intimidation perpetrated against them or against civilians more generally. The Colombian state also fails to prosecute or otherwise discipline judicial officials who instigate such specious prosecutions.

Human rights defenders in Colombia play a legitimate and essential role in protecting basic rights and strengthening democratic institutions. Charges against them are often politically motivated and intended primarily to discredit and stigmatize them individually and as a class. Unfounded criminal charges are damaging in many ways:

• The stigmatization of defenders as terrorist sympathizers places them at considerable risk of reprisal and death threats by paramilitaries or others;
• The proceedings force defenders to expend time and resources defending themselves, diminishing their capacity to perform productive human rights work;
• The charges discredit defenders and tarnish their reputations as legitimate human rights activists; and
• The threat of political prosecution has a chilling effect, encouraging defenders to practice self-censorship and limit their activities. In relation to Colombia, the U.N. Special Representative on Human Rights Defenders has stated that such "proceedings are part of a strategy to silence human rights defenders." ³

Despite increasing attention to the issue, in the absence of a detailed study, some Colombian officials refuse to acknowledge that there is a widespread problem. Human Rights First has spent more than a year researching and documenting 32 cases of unfounded prosecutions against defenders. Analysis of primary materials such as interviews with defenders, defense briefs, prosecutors? resolutions, and judicial sentences reveal the spurious nature of these criminal investigations. For the first time, this report reveals a positive development: prosecutors and judges all over Colombia are recognizing the existence of malicious prosecutions against defenders. However, it is not enough to identify the problem or to mitigate its effects after damage has been done. There must be fundamental changes in the justice system.

As a major supporter of judicial reform in Colombia, the United States can play a constructive role in combating malicious prosecutions of human rights defenders. It is clearly in the interests of the United States to have a vibrant civil society in Colombia, which can freely express ideas and strengthen respect for the rule of law.

Based on an analysis of 32 cases and extensive interviews with government officials and human rights defenders, Human Rights First makes the following recommendations.

Recommendations

To the Colombian Authorities

1. The Prosecutor General, or the prosecutors in charge of each case, should close the unfounded criminal investigations against the human rights defenders identified in this report.
   
2. The Prosecutor General should pass a resolution empowering his Human Rights Unit in Bogotá to coordinate the review of all criminal investigations against human rights defenders. Its role should be similar to that which it currently assumes in relation to investigations of enforced disappearances.⁴ That Unit should be able to quickly vet the investigation for compliance with due process standards or rapidly delegate the review to the regional prosecutorial Human Rights Unit, if appropriate. All cases found to be specious should be closed immediately. Human rights defenders should be able to lodge complaints directly with the unit. In deciding which cases to review, the Unit should adopt the broad definition of human rights defenders used by the U.N.
   
3. The Prosecutor General should conduct a comprehensive internal investigation into corruption and connections between justice officials and paramilitaries or successor groups, focusing on regional prosecutors. The state should dismiss from judicial and prosecutorial institutions all individuals shown to be corrupt or connected to illegal armed groups.
   
4. The Prosecutor General should discipline and prosecute all prosecutors found to have breached the law in falsely investigating human rights defenders.
   
5. Prosecutors should reject patently implausible witness testimony, refrain from influencing witness testimony, and carefully evaluate witness testimony from ex-combatants who are receiving reintegration benefits. Prosecutors should also provide the accused with any evidence that may impeach the witness?s credibility.
   
6. The Prosecutor General should issue a resolution or directive addressed to all judicial and prosecutorial institutions reemphasizing relevant international law (cited in this report) and provisions of the new Colombian Procedural Code. Those laws set standards for impartial investigations and fair trials and bar politically motivated criminal proceedings against human rights defenders and others.
   
7. All public officials should refrain from making statements that discredit or stigmatize human rights defenders as guerrillas. The President should enact a new Presidential Directive to this effect, similar to those issued by previous administrations.
   
8. The Inspector General?s office should ensure that its judicial inspectors promptly and consistently intervene in cases of malicious prosecutions of human rights defenders. Judicial inspectors should support the dismissal of specious charges against defenders.
   
9. The Colombian Congress should amend the Intelligence and Counter-Intelligence Bill before it to better regulate the collection and use of information in government intelligence reports. The Inspector General should be empowered to review, in an unannounced manner, intelligence reports from any state institution to exclude from those reports all manifestly unfounded information that incriminates or is prejudicial to individuals, including human rights defenders. The law should clarify that information may not be collected for arbitrary reasons, such as membership in a human rights organization, and should also include a bar on the dissemination of information from intelligence reports.
   
10. Congress should amend the Colombian Criminal Code to decriminalize the offenses of slander and libel. While legitimate as civil complaints, such criminal offenses are incompatible with the protection of human rights.

To the Government of the United States

11. The U.S. government at the highest level should publicly support Colombian human rights defenders and this message should not be undercut by subsequent statements or policies.
    
12. U.S. government officials should continue to raise individual cases of specious prosecutions of human rights defenders with their Colombian counterparts and emphasize that such persecution breaches the U.S. Guiding Principles on Non-Government Organizations. In addition, at the highest political levels, U.S. foreign policy should respond to the denigration of human rights defenders by Colombian public officials.
    
13. The U.S. government should support and assist in implementing the structural reforms and recommendations contained in this report, to address the problem at a systemic level. For example:
    • The U.S. Agency for International Development (USAID), a major source of funding for judicial reform in Colombia, should work with the Prosecutor General and the Ombudsman to implement an education program for prosecutors and judges concerning the value of human rights advocacy. The program should emphasize that human rights advocacy has no connection with terrorism and is protected by Colombian and international law.
    • USAID and the U.S. Department of Justice should support the Prosecutor General to enable the Human Rights Unit to monitor and review all criminal investigations against human rights defenders as envisioned in the second recommendation above. Such support could include funding, technical assistance, and training.
14. The U.S. Congress should include in appropriations legislation a condition requiring certification by the State Department that the Colombian armed forces are not involved in human rights violations against human rights defenders.
    
15. In certifying foreign assistance to Colombia under current appropriations legislation, the Department of State should consider the role the armed forces play in assisting malicious prosecutions of defenders.
    
16. The Department of State should end the practice of denying or revoking visas to Colombian human rights defenders based on the fact that they have been subject to a specious criminal prosecution or unfairly branded as a terrorist by public officials.

To the Inter-American Commission n Human Rights

17. The Commission should hold a hearing in March 2009 on allegations of malicious prosecutions of human rights defenders in Colombia. It should also support implementation of this report?s recommendations by including them in its 2009 follow-up report on the situation of human rights defenders in the region.

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