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Baseless Prosecutions of Human Rights Defenders in Colombia
Introduction
"We know they manufacture accusations [against defenders]"
Colombian Deputy Prosecutor General Guillermo Mendoza 9
"While the actions of human rights defenders are founded in constructing an authentic rule of law, malicious prosecutions, among other forms of persecution, represent a degeneration of that law. The state trivializes justice and criminalizes collective conscience."
Danilo Rueda, Director, Inter-Church Commission for Justice and Peace 10
INTERNAL ARMED CONFLICT has existed in Colombia since at least the 1960s, when the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia, or FARC) and later the National Liberation Army (Ejército de Liberación Nacional de Colombia, or ELN) began engaging in guerrilla insurgency against the Colombian state. Paramilitary groups were initially formed to support the government and fight the insurgents. Decades of conflict has displaced millions of civilians, while both guerillas and paramilitaries have increasingly played a role in drug trafficking and organized crime. Paramilitaries, originally under the direction of regular armed forces, have now supposedly demobilized. Various legal frameworks have allowed members of illegal armed groups to obtain legal, economic, protective, health, and educational benefits if they demobilized and cooperated with authorities (see section II. A.). Paramilitary structures clearly remain intact, however, as evidenced by their continual threats and attacks against civilians and human rights defenders. 11
One legacy of the conflict and the political polarization it produced is that Colombia is one of the most dangerous states in the world for human rights defenders. A human rights defender is anyone who nonviolently promotes or protects human rights. 12 In Colombia, authorities and paramilitaries have traditionally assumed that defenders are leftists, and thus sympathetic to the guerrilla movement, and have subjected them to considerable persecution. Dozens of human rights defenders are murdered every year, including labor rights activists, lawyers, indigenous leaders, members of non-governmental organizations (NGOs), and community and religious leaders. Reports estimate that from 2002 to 2006, 138 human rights defenders were killed or disappeared. 13 Defenders also face a range of other attacks and forms of intimidation, such as smear campaigns and break-ins, threatening and omnipresent surveillance, death threats, physical assaults, kidnapping, violence directed toward family members, and assassination attempts. In very few cases are those responsible brought to justice.
Overview of a Typical Specious Investigation of a Defender
False criminal investigations of human rights defenders follow a clear pattern. A regional prosecutor generally initiates a preliminary investigation of a defender in secret. During that stage the prosecutor may receive intelligence reports from the army, judicial police, or other state security entities, usually containing irrelevant and inflammatory material. The prosecutor obtains false, incoherent, or contradictory witness testimony from ex-combatants receiving reintegration benefits from the state. At this stage of evidence-gathering, the defender is likely arrested and detained and subsequently, often significantly later, charged with rebellion for allegedly being a terrorist or guerilla. Under section 467 of the Criminal Code, rebellion is defined as any "attempt to destroy the national government or abolish or amend the constitutional regime by employing arms..." 5 In none of the cases reviewed in this report was there any evidence of a defender resorting to the use of violence or arms. Instead, the prosecution usually relies on innuendo and the assertion that the defender is covertly involved with the FARC.
The investigation is often closed by a senior prosecutor after the defense has sought a review of the case. This report refers to such individuals as reviewing prosecutors. There is no automatic review process, however; the defense must use a variety of legal motions to appeal an initial prosecutor's decision in order to seek a review from another prosecutor or judge. An investigation may be closed after only a few days, though in some cases the investigation, and detention, can extend for years. Occasionally the prosecutor proceeds to trial, where the judge is likely to acquit the defender. However, in a small number of cases defenders have been found guilty of rebellion, even though the evidence objectively did not support such a verdict. Even if the investigation is promptly closed, as the example of Alfredo Andreis de Correa illustrates (see Case 12, Annex), the defender remains stigmatized as a terrorist and at considerable risk of attack. Many defenders are systematically harassed by paramilitaries after an investigation is closed, sometimes forcing them to leave the country.
Behind these high levels of violence and intimidation lie two related and pernicious types of attacks against Colombian defenders: stigmatization as terrorist sympathizers and unfounded criminal prosecutions. 14 This report focuses on the latter problem, the use of politically motivated criminal charges to harass, stigmatize, detain, and endanger the lives of human rights defenders. These criminal charges typically:
- are based on two unreliable sources: false allegations by ex-combatants receiving economic benefits from the state and intelligence reports that contain false information;
- entail prolonged arbitrary detention, sometimes for years, during open-ended criminal investigations; and
- pertain to offenses that are particularly open to politically-motivated misuse, including rebellion, slander, and defamation.
Criminal investigations of human rights defenders take place in a broader context marked by human rights violations in the name of combating terrorism and defending "democratic security." Colombia is one of many states that, since 2001, have enacted counterterrorism laws, policies, and practices that are used to suppress the legitimate conduct of human rights defenders and marginalized groups. 15 Under this rubric, detention of members of other groups is also common in Colombia. For example, in November 2008, a prosecutor ordered the disproportionate inspection of all databases and books of five universities from 1992-2008 to find evidence of students and teachers connected to subversive groups, leading to a number of arrests. 16 The same prosecutor also ordered the interception of emails and telephone conversations of over 150 people, including many human rights defenders. 17 Corruption and failure to abide by national and international due process standards are endemic to the criminal justice system in Colombia. Nevertheless, this report demonstrates clear patterns and practices that set the judicial mistreatment of defenders apart from that of the general population.
Alfredo Correa de Andreis Murdered after Stigmatization by Malicious Prosecution
Alfredo Correa de Andreis was a well known sociologist, human rights activist, and professor at the University of Magdalena. The Administrative Security Department (DAS) detained him in Barranquilla on June 17, 2004, and the 33rd Prosecutor of Cartagena soon accused him of rebellion and of membership in the the FARC. He was subsequently released after a judge found the case against him to be baseless. However, on September 17, shortly after his release, he was killed by presumed paramilitaries who apparently believed the prosecutor's assertion. In April 2006, a former senior ranking official of the DAS reported that the agency had provided paramilitaries with a "death list" on which Correa allegedly appeared. 6
Spurious investigations can also have particularly severe consequences for defenders beyond the judicial system. For example, prosecutions are frequently accompanied by death threats from paramilitaries or harassment from the armed forces. There is also considerable overlap between defenders on paramilitary "hit lists" and those subject to specious prosecution. This combination of intimidation intensifies the legal, financial, and psychological impact on defenders.
One positive trend is that some Colombian prosecutors and judges are effectively reviewing cases and dismissing specious prosecutions when they can. Frequently these prosecutors are from regional Human Rights Units, which are well versed in due process standards. The case may come before them because the defense has appealed a decision by the initial prosecutor, such as the imposition of preventative detention. However, even if a prosecutor reviews and closes the investigation, the damage is done. Widely publicized accusations undermine the credibility of defenders and mark them as targets of physical attack. Long after investigations have closed, defenders continue to receive death threats. The Correa case, at left, demonstrates that even if the judicial system resolves baseless prosecutions, defenders remain at risk. The Colombian government must therefore ensure not just that malicious prosecutions are closed, but that they are not initiated in the first place.
Some aspects of the Colombian state provide important support to human rights defenders. Frequently, defenders receive official protection from the Justice and Interior Ministry in recognition of their dangerous profession. The protection program provides physical protective measures such as phones, bodyguards, and even bulletproof cars, to a wide variety of human rights defenders and to representatives of other vulnerable groups such as Afro-Colombians. 18 The inter-agency program considers the risk that a particular individual faces and what degree of protection is warranted.
Taped Telephone Conversation Reveals Practice of Bringing Trumped-Up Charges
On October 7, 2008, Colombian media outlets reported on a phone conversation between retired General Rito Alejo Del Río and former Justice and Interior Minister Fernando Londoño Hoyos. The two men are heard planning to lodge false criminal complaints against the Inter-Church Justice and Peace Commission (CIJP) and one of its founders, Father Javier Giraldo. 7 CIJP is an internationally renowned human rights organization that peacefully protects and upholds the rights of marginalized communities such as Afro-Colombians and indigenous people. 8 For many years Fr. Giraldo and CIJP have condemned human rights violations allegedly committed by General Del Río as commander of the army's 17th Brigade in Urabá, Antioquia, from 1995 to 1997. Del Río is currently incarcerated, charged with complicity in the 1997 paramilitary murder of rural leader Marino López. CIJP represents López in these criminal proceedings.
In the taped conversation, Del Río and Hoyos discuss how to discredit CIJP. Hoyos conjectures that by instructing others to publicly denounce CIJP, "it will allow us to criminally condemn the priest." Del Río responds, "Yes, of course, of course." Del Río also indicates that he has previously tried to encourage false criminal investigations against defenders. The phone conversation reveals that a former army general and justice minister think it is acceptable to intimidate and discredit activists who seek to expose human rights violations. The conversation also shows the connection between public stigmatization and criminal prosecution, in this case indicating that public accusations make it easier to file charges.
The existence of this program raises the question of why other institutions, usually regional prosecutors, maliciously prosecute defenders as terrorists. One explanation for this inconsistency is that the Colombian state is not a unitary actor and, despite the existence of institutions to protect human rights defenders, many public officials do not show them same respect. A defender, especially in remote regions and conflict areas, may challenge corrupt prosecutors or illegal armed groupsthat pressure those prosecutors. A false prosecution is one way to attempt to deter defenders from their human rights advocacy.
The problem, however, is by no means just at the local level. While there is no evidence of a central policy of the President or Prosecutor General to maliciously prosecute defenders, senior government officials from the national intelligence service, the army, and the Interior and Justice Ministry have directly conducted specious criminal investigations. Senior officials also routinely encourage the perception that defenders are terrorists. From the head of state down, these officials have denied the legitimacy of human rights work, encouraging the false belief that human rights advocacy is intrinsically linked to subversive activity.
The central government also bears responsibility for failure to correct a systemic problem. Prosecutors and others who engage in false prosecutions of human rights defenders are seldom reprimanded or investigated, implying that the state condones such actions.
Such a widespread problem requires a vigorous response from all components of the Colombian state. The recent establishment of a new Criminal Procedural Code is a welcome development in promoting impartial prosecutions (see Section II for more details). However, the new code requires better implementation, as malicious prosecutions of defenders continue.
The use of baseless charges against Colombian human rights defenders has been recognized by the United Nations, the inter-American system for human rights, the United States government, and even members of the Colombian government. 19Following the publication of a White Paper in 2007 on malicious prosecutions,20 Human Rights First provided further focus on the issue, advocating on behalf of Colombian human rights defenders subjected to spurious criminal charges.21 In a trip to Colombia in late 2007, Human Rights First met with senior members of the Colombian government and policymakers from various state institutions to discuss the problem. 22
Despite this attention, in the absence of a study devoted exclusively to the phenomenon, some Colombian officials continue to express doubt that the problem is prevalent.23 Human Rights First has spent more than a year researching and documenting 32 individual cases of unfounded prosecutions against defenders in the last four years (see Annex). Analysis of primary materials in these cases, such as defense briefs, prosecutors' resolutions, and judicial sentences, reveals the spurious nature of the criminal investigations. The list of cases in this report is not exhaustive, as verifying the cases and obtaining the necessary documents proved impossible in some instances, and some cases may not have come to the attention of Human Rights First at all. However, the cases included in this report allow for the distillation and analysis of common themes in order to expose the root causes of the problem and identify policy prescriptions.
The report consists of seven chapters that describe key aspects of the problem with case examples interwoven into each chapter. The report also contains a series of recommendations to combat the problem and an Annex containing a summary of 32 emblematic cases.
