ACCESS TO JUSTICE AND SOCIAL INCLUSION:
THE ROAD TOWARDS STRENGTHENING DEMOCRACY IN BOLIVIA

EXECUTIVE SUMMARY 

1.                  At the invitation of the Government, the Inter-American Commission on Human Rights (hereafter "the Commission" or "the Inter-American Commission") visited the Republic of Bolivia between November 12 and 17, 2006, to observe the human rights situation in that country, as part of its primary mission to promote the observance and defense of human rights in the American States, and the powers granted to the Commission under Article 41 of the American Convention on Human Rights (hereafter "the Convention" or "the American Convention").[1]

2.                  The Commission met with authorities and officials of the Executive Branch, the Legislative Branch and the Judiciary, as well as the Prosecutors’ Office ("Ministerio Público") and the Ombudsman’s Office ("Defensoría del Pueblo"). It also held meetings with various organizations of civil society. A delegation of the Commission visited the Chonchocorro Penitentiary in El Alto and the San Pedro Prison and the Women’s Prision ("Centro de Orientación Femenina Obrajes"), both in the city of La Paz. Working meetings were also held on various cases and precautionary measures before the Commission, and a lecture was given on the human rights protection mechanisms of the inter-American system.

3.                  During its visit, the Commission observed different issues related to respect of human rights in Bolivia, as well as the political and social context of recent years, which has been characterized by institutional fragility and persistent social conflicts.  That situation has hampered the design and implementation of measures aimed to overcoming those problems, principally the lack of access to justice and the social exclusion.

4.                  The Commission acknowledges that the issues observed about the human rights situation in Bolivia represent the legacy of previous eras. It also considers that the current political and social context represent the beginning of an important democratization and social inclusion process which may help the traditionally excluded majority of the population to participate actively in decision-making on political, economic, and social questions that affect them directly.

5.                  While the Commission learned of several important reforms proposed by the current government, however, social and political conflicts continue, demonstrating the deep polarization amount of the different sectors of Bolivian society, and the need to find channels of dialogue for consensus building and negotiation.

6.                  For example, the Commission found that, during 2006 and thus far in 2007, demonstrations, strikes and blockades continued to be the principal means of pressure and protest, leading in some cases to acts of violence. This was the case with the mining conflict in Huanuni on October 5 and 6, 2006, between salaried mine workers and cooperative miners, which led to 16 deaths and dozens of injured.

7.                  On the other hand, after the enactment of the Special Law 3364 calling for the Constituent Assembly on March 6, 2006, two important democratic mechanisms started to have place in Bolivia: i) the creation and constitution of the Constituent Assembly; and ii) the referendum on autonomy for regions. Nonetheless, in the context of these processes the deep polarization has continued.

8.                  For example, the strong discussion regarding the voting system lead to some members of the Constituent Assembly to adopt extreme measures as a hunger strike in November 2006, followed by some acts of violence during demonstrations of groups close to both groups of Assemblers in dispute. The Commission is also concerned about the acts of violence that took place on December 14, 15 and 16 in the municipality of San Julián, department of Santa Cruz, and on January 11 and 16, 2007, in the city of Cochabamba resulting in two deaths and dozens injured, regarding the results of the regions’ autonomy referendum.

9.                  The Commission regrets the continuation of events such as those described which, by their violent nature, disrupt the normal democratic mechanisms of participation and demonstration, and it urges the Bolivian State to take all measures necessary to prevent the repetition of such acts, and to investigate the events seriously and thoroughly, with full respect for human rights.

10.              Nevertheless, the Commission welcomes the channels of dialogue that have recently permitted the negotiations over the voting system in the Constituent Assembly.  It hopes that the process will no longer be blocked by persistent antagonisms, and that consensus-building mechanisms will be pursued to ensure political representation by all sectors of Bolivian society in this important forum.

11.              Together with deepening the channels for dialogue, negotiation and consensus building, it must be stressed that the process of social inclusion championed by the current government must be accompanied by institutional strengthening in all areas, and in particular the guarantee of an impartial judiciary, access to justice, the enforceability of rights recognized under the Constitution and international law, strict compliance with due process without discrimination, policies for coordination between the community and formal justice systems, and, most especially, fighting the severe problem of impunity for those responsible for human rights violations. 

12.              During its visit the IACHR gave special attention to these aspects and observed closely the general circumstances and the access to justice of some groups of society that require special attention given their particular situation; persons deprived of liberty, indigenous peoples and peasant communities, women, children and asylum seekers.  The following are the topics that the Commission considers that require priority attention by the government in the context of the reforms that it is proposing.  The specific considerations regarding those aspects are indicated in the text of the report with specific indication of the international law applicable, the relevant international standards and the respective recommendations.

Administration of justice

13.              The Commission noted the legal and institutional changes that have been made in recent years. However, it found that most of these reforms and legal provisions have not been properly implemented, for their promulgation and entry into force have not been accompanied by the necessary budgetary and human resources to ensure their effective application.

14.              With respect to the coverage of justice services, the Commission was deeply concerned at the widespread absence, nationwide, of officials of the Judiciary, the Prosecutor’s Office and the Public Defender's Office.  For example, only 180, or 55%, of Bolivia's 327 municipalities have a judge; only 76, or 23%, have a prosecutor; and only 11, or 3%, have a Public Defender.

15.              With respect to guarantees of independence, impartiality, suitability and transparency in the Judiciary, the Commission received information about the persistence of vacancies in the highest judicial authorities, and the widespread use of interim personnel to make up for the lack of constitutionally appointed officials. As well, it received complaints about irregularities in the system of appointment and promotion of judges, and shortcomings in the development of a professional career for prosecutors. This situation has been aggravated by gaps in the law and irregularities in the systems for disciplining judges and prosecutors.

16.              The Commission also learned of problems in implementing the accusatorial criminal prosecution procedure, reflecting the lack of training, technical support, infrastructure, institutional coordination, and clearly defined responsibilities for the equitable distribution of cases and the failure to take steps to resolve the serious backlog of cases.  It also noted that the National Public Defenders System has not been fully implemented: its coverage remains minimal, and the quality of service is poor.

17.              The Commission identified some factors that lead to impunity for serious violations of human rights, such as the forced disappearances that occurred during times of military dictatorship, and the deaths and injuries caused during suppression of social protests by the police and the military. These factors point to the lack of institutional coordination, shortcomings in the collection of evidence, the absence of adequate investigation protocols, obstruction by institutions to which the alleged perpetrators belonged, and in general, procedural delays.

18.              In the following paragraphs the Commission will indicate the general problems affecting the groups identified (para. 12), highlighting for some of them the aspects observed by the Commission regarding their particular situation on access to justice.

Conditions in prisons and penitentiaries and the rights of persons
deprived of liberty

19.              The Commission identified a number of problems of special concern with respect to rights of persons deprived of liberty in Bolivia, in the course of its visits to some penitentiaries. In the first place, it noticed that the prisons are severely overcrowded, to the extent of 400% in San Pedro prison, a situation that is the direct result of excessive resort to preventive arrest.  On this point, the Commission learned that 74% of persons in prison are awaiting sentence.  The Commission was also informed of certain preventive detention criteria such as “danger to others” or “danger to relapse” that may be contrary to international standards.

20.              There are still inadequate criteria for separating and distinguishing the prison population by categories. The Commission noted in particular that there is no distinction between convicted and accused persons, or between juveniles and adult convicts and accused. In terms of security, the Commission also found that prison police personnel do not meet the training standards, and that internal security is generally in the hands of the inmates themselves.

21.              The Commission noted that living conditions are so precarious and may constitute inhumane and degrading treatment under international law. The penitentiaries have no study and work programs for the social readaptation of convicts.  Given the circumstances, the Commission is concerned that in some penitentiaries, persons deprived of liberty have their families living with them.

Indigenous peoples and peasant communities

22.              On the rights of indigenous peoples and peasant communities ("comunidades campesinas") the Commission notes the institutional framework constituted by ministries and vice ministries in this area, and the legal framework introduced through ratification of Convention 169 of the International Labour Organization (therefore "Convention 169 of the ILO"), as well as the proclamation in the Constitution that Bolivia is a "multiethnic and pluricultural" country. Nevertheless, these rights are still not effectively exercised. An example of this is the continued discrimination that these communities suffer in the accessibility and quality of health and education services.

23.              On access to land, the Commission received information about corruption, institutional weaknesses, irregular practices, and the failure to recognize legal status, among other factors that have obstructed the regularization and distribution of lands.  The Commission noted approval and promulgation of Law 3545 of November 28, 2006, renewing the agrarian reform, and hopes that this will serve to eliminate the problems observed.

24.              The Commission also learned of projects for the exploitation of natural resources that were designed and executed without proper participation by the indigenous people affected, and in particular without any prior consultation to obtain their free and informed consent.  As well, the Commission was concerned at the continuation of mining projects that are contaminating the environment and posing a risk to the life and health of many indigenous and peasant families.

25.              The Commission was deeply concerned at the persistence of various forms of debt bondage analogous to slavery, including some elements of forced labor, despite the absolute prohibitions in the international legal framework to which Bolivia is a party.  This situation has been worsened by the lack of government response, through either administrative or judicial channels, and by the absence of comprehensive policies for resolving this complex problem.

26.              Finally, the Commission observed that indigenous peoples and peasant communities have problems of access to justice which, in the few rural areas to which the system's coverage extends, continues to be meted out in a discriminatory manner that takes no account of the particular features of these groups and their special situation.  The Commission also learned of the glaring gap in the law with respect to guidelines for coordinating official justice with community justice, and the serious confusion this has generated, whereby important groups continue to interpret lynchings as a reflection of indigenous justice, or as an alternative or fallback mechanism of dispute settlement.

Rights of women

27.              On women's rights, the Commission observed that an important legal framework has been established with ratification of the international instruments in this area, and a number of internal laws to guarantee women's political participation, their access to land, and to prevent and punish family violence, among other aspects. Nevertheless, there are still laws on labor, family and even criminal matters that contain highly discriminatory language and that continue to exclude women from various spheres of national life and from exercise of their rights to education, health, work, etc.

28.              With respect to women's participation in the conduct of public affairs, the Commission received information that legislation calling for fixed percentages has yet to be effectively implemented, and is not being strictly enforced.  The Commission also learned of "political harassment" against women who win elections to public office.

29.              The Commission learned of alarming statistics relating to cases of violence against women, involving both "femicide"[2] and family or domestic violence and sexual violence, including physical and psychological violence.  The situation is compounded by the lack of comprehensive and consistent policies for preventing and punishing conduct of this kind.  As well, there are few complaints laid, there are no official records, and disparities in the statistics suggest that many cases go unreported.

30.              There is a high degree of impunity attached to such offenses as well. Some of the factors identified as the cause of this situation are the institution of conciliation proceedings for premature termination of legal proceedings; the interpretation regarding the fact that sexual crimes are public that need private denounce in the sense that the victim must provide the required evidence; the inadequate treatment of victims by officials before whom they must lay their complaints, and who in many cases arrange for them to be withdrawn; and in general misinformation about the available legal remedies, and social pressure that continues to discourage women from reporting crimes of this kind.

Rights of children

31.              The Commission observed that, despite the current legal framework protecting the rights of children in Bolivia, the lack of information and discrepancies in the statistics tend to conceal the issue in the face of persistent practices that are of profound concern to the Commission.

32.              The Commission learned of many children who are not recorded in the civil registry, especially in rural areas even though the legal framework establishes the gratuity of the service.  The Commission also received some alarming figures on the number of children working under conditions that ignore international standards.  As well, it learned of many cases of sexual trafficking and exploitation as well as physical and psychological violence against children in many areas.

33.              The Commission was also informed of some disturbing aspects of the criminal system for dealing with juvenile delinquents, especially procedural delays, the lack of specialized authorities for hearing such cases, the widespread use of imprisonment as punishment, and preventive detention under the excuse of "public threat."

Rights of asylum seekers

34.              The Commission also received complaints about the situation of refugee applicants in Bolivia, particularly relating to guarantees of due process in administrative procedures.  Specifically, it learned of irregularities in the make-up of the National Refugees Commission, problems with the presentation of evidence, inadequate justification for decisions rejecting or revoking refugee status, shortcomings in the notification of decisions, and obstacles to the presentation of appeals.

35.              The Commission also received information on decisions taken in the course of deportation or extradition procedures that run counter to the duty not to return persons with recognized refugee status.

Recommendations

36.              In consideration of the observations made throughout the report and highlighted in this executive summary and in order to contribute to strengthening the defense and protection of human rights in a democratic context in Bolivia, the IACHR presented specific recommendations to the State, which will be the subject of close follow-up.

37.              Regarding the administration of justice, the Commission’s recommendations are related to the need to increase the coverage of judicial authorities, prosecutors and public defenders throughout the national territory; to increase budgetary resources in order to solve the serious institutional problems of the Judiciary; to strengthen mechanisms for publicizing and disseminating the rights of citizens and the judicial actions available to make them effective; to consolidate and regulate the professional careers of judges and prosecutors; to guarantee transparency in the appointment of senior judiciary officials; to strengthen the disciplinary system for judges and prosecutors; to adopt measures for guaranteeing effective implementation of the accusatorial criminal prosecution procedure; to strengthen the National Public Defender System; and to promote investigations of gross human rights violations.

38.               With respect to the situation of persons deprived of liberty, the Commission included recommendations to correct the excessive use of preventive detention; decrease persistent procedural delays in criminal proceedings; decrease overcrowding in prisons; improve prison infrastructure conditions; guarantee adequate training of personnel in charge of administration, supervision, operations and security inside prisons; ensure the appropriate separation of convicted and accused persons, and of juveniles and adults; guarantee access to adequate medical care; guarantee opportunities for education and work; take into account the best interests of children when they are living in prison with one of their parents; guarantee the adequate control of detention conditions by criminal judges; and create adequate and effective remedies of individual and collective nature in order to facilitate a judicial control of detention conditions.

39.              Regarding the situation of indigenous peoples and peasant communities, the Commission deemed it appropriate to make recommendations on the effective implementation of ILO Convention 169; the adoption of necessary measures to eradicate all kinds of discrimination against persons within the State’s jurisdiction on the basis of their indigenous or peasant status; the compatibility of the measures adopted in favor of these groups with their particular features and cultural identity; effective implementation of the new legal framework for agrarian reform in order to overcome the obstacles identified; the effective participation of indigenous peoples and communities affected by development projects; the search for a solution to the serious environmental problems caused by some of those projects when environmental standards are not adhered to; and the eradication of bondage and forced labor situations.

40.              With respect to the status of women, the Commission made recommendations on application of the existing legal framework and public policies to protect women from violence and discrimination; the design of integrated, coordinated government policies to ensure that victims of violence have access to judicial protection; the launching of public awareness campaigns on the obligation to respect women’s rights in all spheres; training of civil servants in addressing holistically the right of women to live free from violence and discrimination; ensuring compliance with the legal framework for the participation of women in public affairs; the creation and improvement of data collection systems on violence against women; strengthening of the institutional capacity of respective bodies to fight impunity; and guaranteeing adequate treatment of victims by officials in charge of investigations.

41.              Regarding the situation of children, the Commission included recommendations on the execution of comprehensive public policies to prevent human rights violations; free and effective access to civil registration; the adoption of measures to expand as much as possible access to and the quality of public education; coverage of Ombudsman for Children offices and similar institutions; the eradication of child labor (children under 14 years of age) in both urban and rural areas; the prevention, investigation and punishment of all kinds of sexual exploitation of children; the exceptional application of both deprivation of liberty as a sanction and preventive detention; compliance with special due process guarantees in favor of children; derogation of the articles of the Juvenile Code that establish a "threat to others" as a criterion for preventive detention.

42.              With respect to asylum seekers, the Commission made recommendations to eliminate the procedural obstacles faced by these persons; to facilitate the issuance of identity documents; to guarantee full compliance with due process; to prevent the return to their country of persons with valid refugee status, and to guarantee that, before the adoption of any decision regarding deportation or extradition, actual risks are evaluated and determined in the framework of a procedure with full defense and access to effective remedies.