Baseless Prosecutions of Human Rights Defenders in Colombia

IV. Prosecutorial Bias

"The government promotes a sinister connection between social organizations and subversion."
José Humberto Torres, human rights lawyer, Committee for Solidarity with Political Prisoners⁶

Prosecutors are to "search and determine the real truth. They must ascertain with equal zeal both the circumstances that demonstrate the existence of the punishable conduct as well as those that reduce or exonerate the responsibility of the accused or that demonstrate their innocence."
Article 234 of the old Procedural Criminal Code⁷

UNDER COLOMBIAN and international law, prosecutors should not continue proceedings when an impartial investigation would show the charge to be unfounded. These standards are already violated by the use of unreliable and uncorroborated evidence described above. However, some prosecutors demonstrate additional prejudice toward a predetermined outcome by beginning an investigation or filing charges in the absence of any evidence at all, or without considering the exculpatory evidence as required by law. The widespread and dangerous practice of publicly describing defenders as terrorists before a trial has even begun further highlights the tendency to conclude guilt prematurely.

Defenders Detained for Years Based on "Mere Suspicions": Mayuza Sisters

Nieves Mayuza is an activist in the National Federation of Agricultural Farming Unions (Federación Nacional Sindical Unitaria Agropecuaria, or FENSUAGRO). Her sister Carmen Mayuza is a regional leader with the Colombian health workers' trade union (ANTHOC). Carmen led a campaign to stop the privatization of hospitals and to defend free access to healthcare and workers' rights. Both were arrested on May 11, 2006, with Fanny Perdomo Hite (see below and Case 26, Annex), and all were charged with rebellion for alleged involvement in kidnappings by the 53rd Front of the FARC. They were detained for over two years before they were found not guilty. In her decision, Judge Carmen Arrieta from the Bogota Criminal Circuit Court 53 held that the investigation was too subjective and ignored clear exculpatory evidence, such as testimony from members of the 53rd Front of the FARC who testified they had never seen the Mayuza sisters.¹ A judicial inspector reviewing the case from the Inspector General's office found that the minimum substantial requirements to accuse the sisters had not been met.² Moreover he stated that in order to charge them with rebellion, it was necessary to gather actual indications of responsibility for a crime rather than "mere suspicions."³

Insufficient Proof to Justify Investigation and Failure to Consider Exculpatory Evidence

It is frequently difficult to understand on what basis a prosecutor has initiated an investigation against a human rights defender. In dismissing the charges against Claudia Montoya, a reviewing prosecutor stated, "Naturally this investigation lacked relevant diligence. The CTI said that certain information was obtained from interviews by prosecution witnesses, but the truth is that studied thoroughly these testimonies do not provide such information."⁸ See case 23, Annex for further details.

In many cases, at the time of a defender's arrest, the witnesses have not identified or named him or her. Their testimony is often so incoherent, far-fetched, and self-contradictory that it fails to reach even the most rudimentary standard of evidence required to underpin the serious charges. Any impartial investigation would reveal the charges, and the evidence upon which they relied, to be unfounded. However, prosecutors frequently do not investigate exculpatory evidence that would conclusively prove the defender's innocence. In these circumstances, the fact that investigations continue appears to demonstrate a lack of objectivity.

Defender Detained for Two Years for Providing Sister with Gifts: Fanny Perdomo

Fanny Perdomo Hite was a member of Citizens Community for Life and Peace (La Comunidad Civil de Vida y Paz, or CIVIPAZ), an organization of displaced citizens working peacefully to reclaim appropriated land. Her brother, Reinaldo Perdomo, was murdered by suspected paramilitaries in August 2003, presumably because of his human rights advocacy. Fanny Perdomo was arrested on May 11, 2006, on suspicion of kidnapping and rebellion. The kidnapping charges were quickly dropped and she was tried for rebellion by the 9th Prosecutor in the Anti-Kidnapping and Extortion Unit in Bogotá. After over two years of detention, she was acquitted in June 2008.⁴ The only evidence the prosecutor had linking Perdomo with the FARC was her purchase of hair and feminine hygiene products and a telephone card for her sister, who the prosecutor alleged was a FARC member. The judge rightly stated that Perdomo's provision of a phone card and hygiene products to her sister for personal use was not a criminal activity and could in no way support a claim that Perdomo engaged in rebellion. The judge stated "the ties of kinship that exist among sisters allow them to engage in gestures of generosity, even if one of them is acting outside the law."⁵ If the prosecutor had followed appropriate laws and standards, it is unlikely he or she would have concluded that Perdomo had committed rebellion by giving her sister these gifts.

Furthermore, the proactive nature of investigations against defenders stands in stark contrast to the lack of investigation or prosecution for many serious crimes in Colombia.⁹ The Colombian justice system suffers from corruption, and a lack of resources and expertise. Many serious crimes, and especially crimes committed against human rights defenders, remain unpunished.¹⁰ Given such widespread impunity, the decision to prosecute cases against defenders on the basis of patently unreliable evidence demonstrates prosecutors' disregard for their function and the rule of law.

For example, in the case of Amaury Padilla (cited above and in Case 24, Annex), the Prosecutor General dismissed the case, citing the alarming lack of preparation by the prosecutor who opened the investigation against Padilla. Neither DAS nor the prosecutor could apparently say which officials interrogated one of the witnesses. Moreover, the Prosecutor General noted that the initial prosecutor did not even interrogate that witness, but rather relied on a transcript provided by DAS.¹¹ These insights into the prosecution generate grave doubts about the process through which that witness was deposed or even why he was deposed. It is also unclear how, given the scant and faulty evidence, the investigating prosecutor could reasonably order Padilla detained for six months.

Publicly Equating Human Rights Defenders with Terrorists

"The stigmatization against human rights defenders originates fundamentally from the government, headed by President Uribe, his presidential adviser José Obdulio Gaviria, and other sectors of the extreme right. They have been generating a climate of polarization, hostility and false evidence, the consequences of which are detentions of human rights defenders."
Luis Jairo Ramirez, Executive Director, Permanent Committee for Human Rights¹²

DAS, the army, and regional prosecutors have consistently shown a propensity to detain human rights defenders and publicly smear them as terrorists, often before formal charges have been brought. Such behavior renders a fair trial impossible and breaches the presumption of innocence by which all prosecutors and judicial authorities must abide. Moreover, in a politically polarized society such as Colombia, this stigmatization puts the lives of defenders at grave risk by potentially encouraging attacks against defenders. By publicly marking the individual as a FARC terrorist, such allegations encourage attacks against the defender by paramilitaries or others (see, for example, Case 12, Annex). Of the 28 relevant cases listed in the Annex, at least eight involve public pre-trial comments made by state officials equating the defender with terrorism, including the following:

• During the investigation of Juan Carlos Celis Gonzalez, an NGO activist from Bogotá, the prosecutor reportedly made statements equating Celis' human rights activities with support for the FARC, saying that those activities constituted "instruction, indoctrination, international relations, recruitment, publicity, planning, and infiltration" on behalf of the FARC.¹³ Celis was detained for almost a year before the 13th Specialist Prosecutor in Bogotá charged him with rebellion and other related offenses (see Case 10, Annex).¹⁴
• Luz Perly Córdoba Mosquera was President of the Rural Association of Arauca (Asociacion Campesina de Arauca, or ACA). Notwithstanding both national and international recognition as an important human rights leader, ¹⁵ Córdoba was arrested in Arauca by DAS members on February 18, 2004 (see Case 11, Annex). A DAS document reportedly alleged that the ACA was a political arm of the FARC and that Córdoba's human rights advocacy was a façade for terrorism and rebellion.¹⁶ The prosecutor also reportedly stated that human rights advocacy is a part of the FARC's campaign to smear and discredit the Colombian nation.¹⁷ Such comments demonstrate bias by the prosecutor and DAS against Córdoba in particular and human rights defenders in general. It was not until six months later that a prosecutor brought formal charges of rebellion and narco-trafficking against Córdoba; a judge annulled these charges in March 2005.¹⁸

In addition to public statements, prosecutors have frequently released photos or videos of human rights defenders to the media. Media coverage of defenders as terrorists severely stigmatizes them. Teresa de Jesús Cedeño Galindez is a criminal defense attorney and former President of the Colombian Permanent Committee of Human Rights (CPDH), one of the oldest human rights organizations in the country.¹⁹ On July 30, 2003, the CTI detained Cedeño and others who worked with her in Arauca.²⁰ Prosecutor 287 in Bogotá charged her with procedural fraud and bribery, although the fraud charges were quickly dropped (see Case 8, Annex). The CTI and prosecutor provided media outlets with a video of an unidentifiable woman counting money, which was used to publicly denounce Cedeño. The prosecution did not introduce the video as evidence at the trial, but its dissemination may have been intended to prejudice her trial. On appeal, a court criticized the publication of the video on television: "We question the diffusion of the video by the mass media, which ... certainly should have led to an investigation of those authorities responsible for the custody of this piece of evidence."²¹ The publication of the video before trial likely breached articles 7 and 14 of the Colombian Criminal Procedural Code, which respectively protect the presumption of innocence and restrain publicity before trial.

Prosecutors also have a propensity to assert guilt by association. The reviewing prosecutor in the ACVC case noted that just because a person was allegedly seen meeting with an alleged insurgent, does not mean that the person is himself an insurgent (see Case 2, Annex). The prosecutor noted that this is especially important to remember in the Colombian context, where people are often coerced into having contact with guerillas.²² Prosecutors must have clear evidence to fulfill all the elements of rebellion under article 467 of the Criminal Code, namely an "attempt to destroy the national government" or use of arms to abolish the constitutional regime. ²³

---