ATTACHMENT 5 - ASSESSMENT OF USAID COLOMBIAS JUSTICE REFORM AND MODERNIZATION PROGRAM.pdf

ASSESSMENT OF USAID/COLOMBIA’S

JUSTICE REFORM AND

MODERNIZATION PROGRAM

MARCH 12, 2010

This publication was produced for review by the United States Agency for International Development. It was prepared by J. Michèle Guttmann and Linn Hammergren, Management Systems International.

ASSESSMENT OF USAID/COLOMBIA’S

JUSTICE REFORM AND

MODERNIZATION PROGRAM

Management Systems International Corporate Offices 600 Water Street, SW Washington, DC 20024

Contracted under RAN-M-00-04-00049-A-FY05-104

Assessment of USAID Justice Strengthening Efforts

DISCLAIMER

The authors’ views expressed in this publication do not necessarily reflect the views of the United States Agency for International Development or the United States Government.

CONTENTS

List of Acronyms and Abbreviations ................................................................................ii

Executive Summary..........................................................................................................iv

I. Introduction A. Assessment Objectives and Methodology B. USAID/Colombia Justice Program Description and History C. The Role of Other Donors D. Contextual Note: the Colombia Strategic Development Initiative

II. The Colombian Justice Sector: Background and Overview

III. Justice Reform and Modernization Program (2006-2010): Key Components

A. Strengthening Implementation of Criminal Procedure Code Reforms B. Strengthening Court Administration and Management C. Increasing Access to Justice

1. Supporting the Justice House Program

2. Supporting Alternative Dispute Resolution Mechanisms

3. Strengthening the Public Defender’s Office

D. Increasing Civil Society Participation in Justice Reform

IV. Overarching Findings, Recommendations, and Priorities

Annex 1: Map of Site Visits (January 2010)

Annex 2: Chart of Colombia Justice Sector

Annex 3: List of Persons Interviewed

Annex 4: Selected Bibliography

Assessment of USAID/Colombia’s Justice Reform and Modernization Program i

LIST OF ACRONYMS AND ABBREVIATIONS

ADR alternative dispute resolution

C&A Casals and Associates

CCP Code of Criminal Procedures

CEJ Corporación Excelencia en la Justicia

CONPES Consejo Nacional de Política y Economía Social

CSDI Colombia Strategic Development Initiative

CSJ Consejo Superior de la Judicatura

CSO civil society organization

CTI Cuerpo Técnico de Investigación

DAS Departamento Administrativo de Seguridad

DEA Dirección Ejecutivo de Administración Judicial

DIJIN Dirección Central de Policía Judicial e Inteligencia

DOJ/OPDAT U.S. Department of Justice, Office of Overseas Prosecutorial Development, Assistance, and Training

EU European Union

FARC Fuerzas Armadas Revolucionarias de Colombia

FES Fundación de Educación Superior

FIU Florida International University

GOC Government of Colombia

IDB Inter-American Development Bank

ISO International Organization for Standardization

JASC Judicial Service Center

JP Justice of the Peace

JRMP USAID Justice Reform and Modernization Program

MIJ Ministerio del Interior y Justicia

MIS Management Information System

MSD Management Sciences for Development, Inc.

MSI Management Systems International, Inc.

NGO non-governmental organization

OEA Oficina Especial de Apoyo

OECD Organization for Economic Cooperation and Development

OPDAT Office of Overseas Prosecutorial Development, Assistance, and Training

PD Public Defender

PDO Public Defender’s Office

SIJIN Seccional de Investigación Judicial e Inteligencia

SPOA Sistema Penal Oral Acusatorio

Assessment of USAID/Colombia’s Justice Reform and Modernization Program ii

Assessment of USAID/Colombia’s Justice Reform and Modernization Program iii

URI Unidades de Reacción Inmediata

UNDP United Nations Development Program

USG Unites States Government

USAID United States Agency for International Development

EXECUTIVE SUMMARY

MSI conducted an assessment of the USAID/Colombia Justice Reform and Modernization Program (JRMP), which began in May 2006 and is scheduled to conclude in June 2010. The goal of the assessment was to gauge the overall impact of USAID’s justice program, identify lessons learned, and make recommendations for future justice programming. The assessment is intended to inform the design of an 18-24 month “bridge” project that will carry over activities until inception of the next major phase of the justice sector program and, to the extent possible at this time, the design of the next major project phase.

The JRMP has focused on four principal areas: 1) implementation of criminal procedure code reforms and the accusatorial system, 2) strengthening court administration and management, 3) increasing access to justice (in main thematic areas of Justice Houses, alternative dispute resolution, and public defense), and 4) enhancing civil society support for and participation in justice reform processes. USAID/Colombia intends to emphasize increased access to justice in its next strategy period, and will concentrate efforts in rural conflict-affected zones in accordance with the 2010-2014 Country Strategy and the U.S. Embassy’s inter-agency Colombia Strategic Development Initiative (CSDI). Consequently, the team directed particular attention to challenges of access to justice in the CSDI zones.

The assessment team reviewed project-generated reports and other documents, reports, and publications provided by the Mission and others. During a month of field work, the team interviewed over 200 people in five departments, in addition to Bogotá. The team found significant advances in strengthening and modernizing the justice sector and several areas of positive JRMP impact. The team could not, however, accurately assess the program’s overall impact because of the lack of necessary diagnostics, statistics, evaluations, and other monitoring tools. Two factors account for this deficiency and should be addressed in future projects: the absence of adequate performance monitoring in almost all of the Colombian institutions surveyed, and the JRMP’s prioritization of deliverables over evaluations, especially as the program nears its end.

A. Colombian Justice Sector Context and Background

Colombia has always had an extremely complex justice sector, even for a region where complexity seems to be the rule, and the constitutional reform of 1991 added yet more layers. Since the passage of the 1991 Constitution and related secondary laws, the Colombian government has made substantial changes to justice sector organization and operations. Criminal laws and jurisdiction have been a focus of national reform efforts, as well as USAID support, culminating in the passage of a revised Code of Criminal Procedures (Law 906/2004) implementing an oral accusatory system. The new Code (the third enacted since 1991) has now taken effect in all regions of Colombia, with resulting improvements in due process guarantees and the expedited handling of the least complex (in flagrante) crimes. Problems with police investigation, police-prosecutorial coordination, and judicial administration and management have impeded the prosecution of more complex crimes. Although Colombians’ level of confidence in their justice system is among the highest in the region, rising urban crime rates and public perceptions of inadequate prosecution of more serious crimes have led to increasing criticism of the reforms.

Colombia’s formal justice institutions are fairly well distributed throughout the country, but function under serious constraints in conflict-affected regions. In those areas, illegal armed groups may act as the de facto justice system, or may effectively constrain the operation of judicial actors. Availability of justice sector services to rural and other poor citizens is further limited. Although judges are present in nearly every county, there are other barriers to access, including logistics, costs, availability of legal representation, and citizens’ ignorance of basic rules and legal rights. In CSDI regions, formal and alternative services can only operate effectively once a certain degree of security can be assured. Many of the armed bands operating in rural areas, however, now appear to be moving into the cities, where crime rates are rising.

Assessment of USAID/Colombia’s Justice Reform and Modernization Program iv

B. Findings and Recommendations Regarding the Current Program

Strengthening Implementation of Criminal Procedure Code Reforms and the Accusatorial System:

The JRMP has helped the Colombian authorities advance code implementation (Law 906). The USAID program’s principal flaw was in adopting the Colombians’ assumption that simply implementing the new code would be sufficient. The problem is the new system’s failure to meet public expectations as regards not only human rights guarantees, but also the investigation and prosecution of serious crimes. This is more an institutional than legal issue, and will require attention to enhancing the ability of sector organizations to carry out their roles adequately.

Recommendations:

• Encourage the review and discussion of existing studies that attempt an in-depth, empirically based analysis of advances and problems under the new criminal procedures;

• Review the two indicator projects financed by USAID and the EU with members of sector institutions and try to reach a consensus on: 1) desired impacts, and 2) the indicators that would be most useful in tracking them;

• Engage the Inter-Institutional Commission on Code Implementation and its individual members in both exercises to encourage their development of remedies in areas where the system’s performance has been weakest;

• Review methodologies developed under the JRMP to assess the impact of training programs and either encourage their application or, if found wanting, develop better programs to emphasize impact-oriented training;

• Coordinate with OPDAT on all of the above, as they recognize the problems and their work with Public Prosecution and the investigative police is obviously critical.

Strengthening Court Administration and Management: The JRMP has had limited impact on court administration and management. This is due to the government and the program’s lack of a comprehensive strategy for making improvements in these areas and linking them to improved system outputs. Instead, both have focused on processes – automation, the introduction of audio and video equipment for recording proceedings and facilitating “virtual hearings,” ISO certification, and raising the quality and accelerating the speed of what has always been done – without a clear notion as to the ultimate objectives or a consideration of the need to change other long-standing practices. The most valuable part of USAID’s efforts in this area is the work being done in Paloquemao (the Bogota criminal court complex) to pilot basic structural changes in support services affecting individual court operations, and to turn Siglo XXI (the judiciary’s rudimentary case tracking software) into a management information system (MIS), as well as augmenting its other functionalities.

Recommendations:

• Work currently under way in Paloquemao to improve judicial services should be continued, evaluated, and discussed with the Judicial Council to explore expansion to other courts. The improvements to Siglo XXI are particularly important. Discussions should emphasize short- to medium-term improvements in the ability to track performance and addition of functions that could immediately improve courtroom performance;

• While the ISO exercise has achieved some improvements in the courts to which it was applied, USAID should emphasize ways to encourage their wider adoption without repeating the entire ISO procedure;

Assessment of USAID/Colombia’s Justice Reform and Modernization Program v

• Use of “virtual hearings” should be closely monitored for possible due process violations, and means to make audio transcripts of all hearings more user friendly (i.e. easier to review) should be explored.

Increasing Access to Justice – Supporting the Justice House Program: Justice Houses have been the flagship of USAID assistance since the mid 1990s and represent the largest JRMP investment. They are an important inter-institutional resource to address community needs and provide for peaceable resolution of everyday legal disputes and increased access to services, especially in marginalized and vulnerable areas. The JRMP has, however, focused to a large extent on increasing the number of Justice Houses without sufficient emphasis on monitoring and evaluating their use and impacts. Sustainability is also a serious unresolved challenge. Achievement of a co-financing agreement with the Ministry of Interior and Justice was a major step toward sustainability, but has been fraught with problems in its execution. Similar support agreements with local authorities and national institutions have not been completely or consistently fulfilled, thus compromising staffing, services, and operation of many Justice Houses.

Recommendations:

• Under the “bridge” project, USAID should concentrate efforts on evaluating the Justice House program to identify impacts, needs, and determine how to strengthen the existing Justice Houses and resolve operational difficulties before carrying out significant program expansion. Special attention should be given to issues of staffing, preliminary studies/placement strategies, utility, national/local support, and program sustainability;

• At the same time, USAID should consider how Justice House services can be extended to more dispersed populations, and explore alternatives to the placement of traditional Justice Houses in rural conflict-affected counties and CSDI regions, where different approaches might be necessary;

• Finally, adequate monitoring, oversight, and reporting mechanisms should be put in place to collect and analyze information necessary to shape and direct the future of the program.

Increasing Access to Justice – Supporting Alternative Dispute Resolution Mechanisms: Broad legislative authority, minimal standards of certification, and proliferation of training have created a cottage industry in various methods of conciliation with competing or overlapping jurisdiction. ADR practice and practitioners have gained strength and prominence, but the assessment revealed a fundamental lack of information concerning the activities and impact of ADR providers. Standards are not in place, and conciliation practices are largely unregulated and unmonitored. The program deliverables have focused too much attention on total numbers of people trained without adequate attention to follow up and monitoring of practitioners. The majority of those trained in equity conciliation do not practice actively, and caseloads of these and other practitioners vary dramatically. In the future, attention should be directed at both the quantity and quality of conciliation processes and agreements reached through ADR mechanism, actual compliance with agreements or orders, and the differences between urban and rural zones in ADR needs and effectiveness.

Recommendations:

• Support policy, legislative, and regulatory reforms to consolidate and streamline ADR services, reduce overlap and duplication of jurisdiction, and impose meaningful and consistent professional standards to distinguish ADR service provision, assure a higher quality of practitioner, and improve services;

• Any significant expansion of training or support for specific ADR activities/entities should await preliminary studies and diagnostics to determine needs, utility, and impact of various types of dispute resolution mechanisms, with specific attention to CSDI regions.

Assessment of USAID/Colombia’s Justice Reform and Modernization Program vi

Increasing Access to Justice – Strengthening the Public Defender’s Office: The only program element where the impact is indisputable and plainly attributable to the USAID justice program is the significant strengthening of the Public Defender’s Office and the improvements to the quality of its services, for which USAID was largely and primarily responsible. With JRMP assistance and support, the institution has become much stronger and more credible, coverage has been expanded, and the office is recognized for providing quality representation and services. The project has also made considerable strides toward sustainability.

Recommendations:

• USAID should maintain its support to the Office of the Public Defender. Although this office is not in jeopardy, care should be taken to assure that it continues to operate and function at high levels;

• Assistance should be directed to resolving operational and ethical issues posed by victim representation obligations under the Justice and Peace Law, and to helping the office to develop a strategy and plan to accommodate the increased demand for other types of non-criminal defense.

Attention should be directed to institutional strengthening as needed, setting appropriate workloads, and developing effective and lawful approaches to assure adequate public defender coverage, especially in CSDI regions.

Increasing Civil Society Participation in Justice Reform: Support to a variety of grassroots organizations and coalitions appears to have helped to raise the profile, legitimize, and create a venue and tools for increased justice-related initiatives, participation, and advocacy; technical management and financial oversight, however, has been time-consuming and problematic. This component also encompassed funding to more sophisticated, national-level CSOs and research institutions for the provision of services and preparation of studies and diagnostics. Dispersed support to numerous small grantees of widely varying and diverse capacity and skills has led to questionable impact and sustainability, has required substantial investment of time and resources, and has hindered the project’s ability to achieve more than modest generalized impact.

This project component has suffered from the lack of a clear strategic direction or defined objective.

Recommendations:

• Civil society strengthening should accompany and complement the justice program elements, but significant further investment should await a strategic framework for future civil society work clarifying and defining the criteria for support, the impact being sought, and through which categories of actors;

• In CSDI regions in particular, civil society efforts to monitor, oversee, and strengthen the justice sector should be combined with work to increase citizen education and awareness of legal rights and resources;

• The project should differentiate design strategies and processes depending on the size, capacity, interests, and sophistication of potential grant recipients, as well as the objectives sought through their involvement;

• Administrative and logistical management should be improved.

C. Recommendations Regarding the “Bridge” Project

The anticipated “bridge” project provides an opportunity for USAID to conduct a stock-taking exercise to review and evaluate progress/impact to date and assess future needs. Specifically, the team recommends:

• During the “bridge” project, USAID should shift its focus from replication and expansion of project deliverables to analyzing impact, sustainability, and consolidation of existing programs and activities. Ongoing plans and programming elements should be continued at their current levels, but plans for further significant expansion should be scaled back pending diagnostic

Assessment of USAID/Colombia’s Justice Reform and Modernization Program vii

Assessment of USAID/Colombia’s Justice Reform and Modernization Program viii results. USAID should conduct diagnostics of justice sector needs so as to appropriately direct and shape the next phase of programming;

• Special attention should go to reviewing the fate of certain initiatives (especially development of training evaluation methodologies, of Criminal Procedures Code indicators, of draft legislation and so on) which appear not to have been adopted. Aside from determining their intrinsic worth, the reasons for the limited or null follow-through should be identified, as they may indicate future problems beyond those that are likely to be resolved by a contractor;

• For targeted CSDI regions, USAID should conduct assessments to determine the existence and extent of unmet needs, as well as to identify the most appropriate formal or informal mechanisms and service providers to increase meaningful access to justice. These regions are geographically, politically, and culturally different from those where USAID has focused judicial strengthening, and their individual circumstances also vary. For USAID to achieve its goals, it must have a nuanced and up-to-date understanding of the particular needs of these populations, as well as a better grasp of by what means and how well they are currently addressed;

• Security concerns should be paramount when determining how and to what extent access to justice in CSDI regions, whether formal or informal, can realistically be enhanced. In some areas, the presence of illegal armed actors constrains or supplants a functioning justice system.

Efforts to reduce impunity in these areas will likely face serious limitations. It is probably unrealistic to assume that legitimate actors promoting access to justice can accomplish this as well, both because of the threats this may pose to them and those who access their services, and because they are unlikely to have the special skills needed for this additional work;

• USAID should continue to focus on coordination with other donors during the design of the follow-on justice program. Special attention should be paid here to the three large projects about to start (the IDB and World Bank loans, and the EU grant for work with the Prosecutor’s Office);

the first two are likely to provide substantial resources for funding equipment and infrastructure, meaning that USAID contributions here can either be cut back or should be channeled more carefully. Another EU project with “peace laboratories” will target many conflict-affected regions and USAID should likewise explore opportunities for coordination there.

Assessment of USAID/Colombia’s Justice Reform and Modernization Program 1

I. INTRODUCTION

A. ASSESSMENT OBJECTIVES AND METHODOLOGY

The USAID/Colombia Mission contracted with MSI to conduct an assessment of its Justice Reform and Modernization Program (JRMP). The program has been implemented by Florida International University’s Center for the Administration of Justice (FIU) since its inception in May 2006, and is scheduled to conclude in June 2010. USAID/Colombia commissioned this assessment to review its justice strengthening efforts under the JRMP, assess fundamental impact, identify lessons learned, and develop recommendations for future justice programming.1

The assessment team consisted of four rule of law experts, including three lawyers and one political scientist with extensive regional experience and expertise in legal systems and reform. J. Michele Guttmann (team leader, MSI) and Linn Hammergren (senior rule of law expert, MSI) were the expatriate team members. Two Colombian lawyers and technical experts also served on the team: Luís Alfonso Fajardo Sánchez, an expert in human rights, humanitarian law, and access to justice for vulnerable populations; and Adriana Ortíz Serrano, a specialist in constitutional law, human rights, and access to justice for displaced populations. A fifth team member, Beatriz Alvarez, handled in-country logistics and coordination. Jonathan Brunson of MSI provided research and logistical support throughout. The team would especially like to thank Jene Thomas, Anu Rajaraman, Orlando Muñoz and Ayda Cardoza of the USAID/Colombia Democracy and Human Rights team for their substantial assistance and support in both the preparatory phase and field work.

The study began with a desk review of USAID project-generated documents and reports, along with other assessments, reports, and publications provided by the Mission. The expatriate assessment team held initial planning meetings and conducted preliminary interviews over two days in Washington, D.C., in December 2009.

The entire team met in Bogota, Colombia, in early January 2010 and began a month of field work that included travel to six locales (covering five departments) outside of Bogota: Cartagena, Sincelejo, Tumaco, Medellín, Apartadó, and Villavicencio. (See Annex 1) The site visits were selected with the input and approval of USAID/Colombia and the Mission assisted with the identification of appropriate people and organizations for interviews in both Washington and Colombia. To the extent possible, the team sought to interview similar organizations and institutions in all the sites visited, and to cover similar questions for comparison and contrast. In addition, the team observed courtroom proceedings and hearings in all locations, visited Justice Houses and other centers for alternative dispute resolution, and conducted a number of group interviews and focus groups. To expand the geographical scope and simultaneously test project equipment, a series of three “virtual” interviews were conducted using the “virtual courtroom” facilities and equipment in Villavicencio for interviews of judicial personnel in outlying areas of the region. In addition, equity conciliators from three outside areas traveled to Villavicencio for a focus group. In total, the team interviewed more than 200 people. (See Annex 3)

1 The predecessor to the JRMP, the Administration of Justice Program, was implemented by Checchi and Company Consulting, Inc., from 2001 to 2006. Many of the JRMP assistance efforts and program components were initiated under that prior program, and continued and were modified during the FIU contract. Although this assessment focused on the current JRMP, both phases of USAID/Colombia justice programming are interrelated and are therefore discussed at times in this report.

Assessment of USAID/Colombia’s Justice Reform and Modernization Program 2

B. USAID/COLOMBIA JUSTICE PROGRAM DESCRIPTION AND

HISTORY

The JRMP has its roots in a justice sector program that began in Colombia in 1986 as one of USAID’s earliest justice assistance programs. In 1986, USAID awarded a series of small grants to be managed by a private foundation, the Fundación de Educación Superior (FES). The grants financed research, a diagnosis of judicial needs, pilot programs to modernize court systems, training, and the creation of an inter-institutional Advisory Committee. The work from those initial projects influenced and provided input to the restructuring of the Colombian justice system that culminated in the constitutional reform of 1991. In 1992, USAID initiated a $36 million project, also channeled through FES, to support the implementation of the constitutional reforms and further restructuring of the justice sector.

Throughout the 1990s, the justice program was affected by significant swings in support and funding, including the planned closure of the Mission in late 1999. Notwithstanding, USAID was able to implement and maintain a program to increase access to justice at the local level beginning in 1994, when it introduced the pilot model for local Justice Houses (Casas de Justicia). At around the same time, USAID also began to provide institutional support to develop and strengthen the Colombian Public Defender’s Office. USAID assistance and programming were increased significantly at the end of 2000 as a consequence of the passage of “Plan Colombia.” The justice program has continued in two phases without interruption since then.2

In 2001, USAID awarded a contract to Checchi and Company Consulting, Inc., to implement its Colombia Administration of Justice Program (2001-2006). The broad objective was to increase access to justice in Colombia. The program worked principally in four areas: 1) support for the introduction of the oral accusatorial criminal justice system and criminal procedure code reform; 2) institutional strengthening and professionalization of criminal public defender services; 3) establishing Justice Houses to offer a variety of services, primarily in low-income, urban neighborhoods; and 4) support for alternative dispute resolution mechanisms. Civil society activities supporting the four principal programs, mainly through the issuance of small grants, constituted a fifth, cross-cutting area. An additional cross-cutting focus on ethnic and gender issues was added midway through the contract.

In 2006, USAID awarded the contract for a follow-on justice project – the Justice Reform and Modernization Program – to Florida International University’s Center for the Administration of Justice (FIU). The project will conclude in June 2010 after four years (the three-year base period plus one additional option year). The project is directed towards overarching goals of judicial reform and expanded access to justice, and focuses on four major areas:

1. Implementation of criminal procedure code reforms and the accusatorial system;

2. Strengthening court administration and management;

3. Increasing access to justice in main thematic areas of Justice Houses, alternative dispute resolution, and public defense; and

4. Enhancing civil society support for and participation in justice reform processes.3

Extension of justice services to rural, conflict-affected, and marginalized populations is a cross-cutting theme applicable to each of the above areas. A further underlying goal of the program is to promote “Colombianization,” i.e., to promote sustainability of rule of law reforms beyond the end of foreign assistance, to generate local ownership, and to develop institutional capacity to meet public demands.

2 For more details concerning the history and contributions of USAID/Colombia’s justice sector support through 2001, see MSI, “Achievements in Building and Maintaining the Rule of Law: MSI’s Studies in LAC, E&E, AFR, and ANE,” (Washington, DC: USAID, 2002) pp. 46-51.

3 This component has been carried out by FIU’s subcontractor, Casals and Associates, Inc.

The current justice program has worked alongside the human rights program implemented by Management Sciences for Development, Inc. (MSD), and has worked jointly to develop and implement training modules for public defenders on international human rights law and victims’ rights. In addition, the project has partnered with the U.S. Department of Justice Office of Overseas Prosecutorial Development, Assistance, and Training (OPDAT) to carry out mock trial competitions and to create a model Center for Victims of Crime in Bogota. USAID and OPDAT have collaborated and coordinated further to implement justice sector reform initiatives and extend training and activities without duplicating efforts. FIU has also monitored other justice support efforts and has been in close contact with other international donors in this area, although its initial attempts to undertake a more active coordination role met resistance from the Colombian government agency that organizes international cooperation and coordination with international/national agencies and donors (Acción Social).

In 2010, as the JRMP comes to a close, USAID anticipates putting in place a short-term (18-24 month) “bridge” project to carry over activities and planning until inception of the next major phase of the justice sector program. This assessment will inform activities under the “bridge” project and, to the extent possible at this time, the design of the third major project phase. Although a central goal of this assessment was to gauge the overall impact of USAID’s current justice program, the team’s efforts were impeded by the dearth of evaluations, diagnostics, statistics, and monitoring. The effect of this lack of information will be discussed in each of the relevant program component sections that follow. From a broad overall perspective, however, the evaluation of impact must rely on evidence that is largely anecdotal; causal links between USAID programming and impact are thus necessarily speculative.

C. THE ROLE OF OTHER DONORS

USAID and the U.S. government (USG) as a whole are doubtless the donors providing the longest and most sustained support to Colombia’s justice sector reforms. Recently, however, other donors have taken a large role. The Inter-American Development Bank (IDB) has sponsored at least three large loan projects: one in the 1990s to support reorganization of the Prosecutor’s Office, a second to modernize the Inspector General’s Office, and a third $25 million effort to improve information management and related activities in the three high courts and the Judicial Council. The World Bank recently ended a small loan project to support model court administration and recently approved a $42 million loan aimed at improving civil, administrative, and labor justice. The European Union’s program for “Justice and the Rule of Law” has sponsored several activities, including a 12 million euro grant for strengthening the rule of law (largely focusing on judicial training), an eight million euro grant for attention to the victim, and a second rule of law program phase that will focus mainly on the Prosecutor’s Office and its investigative police – the Cuerpo Técnico de Investigación (CTI).

The contributions of other donors have been smaller, if not necessarily less critical. Under the JRMP, FIU made a concerted effort to coordinate with them, as well as with other USG contractors and agencies. Both individually and collectively, the donor contributions still represent a small part of the sector budget, and all tended to agree that their ability to “encourage” some of the fundamental changes most believe are necessary was consequently quite limited. As a result, they often end up funding equipment, training and infrastructure, which is what their counterparts most desire.

D. CONTEXTUAL NOTE: THE COLOMBIA STRATEGIC

DEVELOPMENT INITIATIVE

The conduct of this assessment was guided to a great degree by the stated intent of USAID/Colombia to emphasize increased access to justice in its next strategy period, and to concentrate efforts in rural conflict-affected zones in accordance with the 2010-2014 Country Strategy and the U.S. Embassy’s inter-agency Colombia Strategic Development Initiative (CSDI). The CSDI aims to complement and support the

Assessment of USAID/Colombia’s Justice Reform and Modernization Program 3

Assessment of USAID/Colombia’s Justice Reform and Modernization Program 4

National Consolidation Plan now being undertaken by the government of Colombia (GOC), and constitutes the focal point for agency initiatives in the Embassy in the upcoming strategy period.

The goal of the GOC’s National Consolidation Plan is to extend security and development throughout the country. Although Colombia at the national level has made impressive strides in developing technical capacity of national democratic institutions, significant challenges remain to the state’s legitimacy and effectiveness in parts of the country, especially in rural and conflict-affected areas where its presence is precarious or nonexistent, in which access to justice and effective, functioning justice institutions are particularly challenging. Some have characterized these regions as “Non-Institutionalized Colombia,” or “Colombia in Conflict,” where democratic institutions and processes, rule of law, governance, and citizen security remain fragile and economic opportunities are few. The National Consolidation Plan seeks to consolidate security and social gains by building state presence in previously ungoverned areas of the country, and to sequentially provide security, law enforcement, rule of law, and development assistance in a coordinated and combined manner.

The CSDI was designed to support the National Consolidation Plan by focusing U.S. assistance in strategic territories to reduce imbalances between the more institutionalized regions of the country and historically marginalized regions – an attempt to level the playing field. CSDI activities are carried out in an integrated, sequenced approach and concentrate in five geographic areas, known as “consolidation zones.” The assessment team devoted substantial time to investigating and analyzing justice issues confronted in rural, conflict-affected areas, and was able to conduct field work in four of the five CSDI consolidation zones, e.g., the Southern Band, Montes de María, the Central Band, and Pacific-Urabá.4

4 The five CSDI consolidation zones are: 1) Southern Band (Nariño and Putumayo), 2) Montes de María, 3) Central Band (Buenaventura to Meta), 4) Bajo Cauca and Catatumbo, and 5) Pacific-Urabá.

Assessment of USAID/Colombia’s Justice Reform and Modernization Program 5

II. THE COLOMBIAN JUSTICE SECTOR: BACKGROUND

AND OVERVIEW

Country Background: By population (roughly 47 million), Colombia is the third largest country in Latin America. It has historically been characterized by a widely dispersed population – multiple major urban centers rather than a single dominant one – and intense regionalism. The country’s large territory and difficult topography obstructed the formation of a national polity and economy in its early years. After the late nineteenth century, the struggles were for the most part conducted within a constitutional framework, with the 1896 Constitution remaining in effect until 1991. Violence has nonetheless been a constant factor, leading to a period of near civil war in the 1940s and 1950s, the establishment of a short-lived military dictatorship (1953-1957), and subsequent outbreaks of intense internal conflict fomented by guerilla, paramilitary, and drug trafficking groups.

Colombia is still not at peace, but under the two-term Uribe administration has managed to reduce substantially the extreme threats to national survival posed by illegal armed actors. Wide stretches of the country, however, still lack effective government presence, which poses immediate and highly relevant concerns for access to justice and justice programming. In some cases (the vast eastern lowlands or llanos) this is partly a function of very low population density and, until recently, a negligible economic importance.

In others, it is a result of settlement by populations seeking to avoid external control (escaped slaves, indigenous groups, or those simply looking for a new frontier) or domination by local strongmen (caciques) who had earlier proved convenient allies for governments unable or unwilling to expand their direct presence.

Recent studies belie the historical depiction of Colombia as a land of small to medium coffee farmers and thus a fairly homogenous, egalitarian population. The nation currently has one of the highest levels of inequality in the region, a large impoverished population in both rural and urban areas, and a small but significant number of communities laying claim to their own governance traditions. These include some 82 indigenous groups (roughly one percent of the total population) and Afro-Colombians (divided into palenqueros, or descendants of slaves who escaped to the Pacific and Caribbean coasts, and raizales, located largely on the islands of Providencia and San Andres). Afro-Colombians constitute between 19 and 25 percent of the total population, and an estimated 1.2 million (about two percent) live in self-governing communities.5

The Constitution accords indigenous populations the right to their own governance and legal traditions, so long as they do not violate basic human rights; Afro-Colombians have been recognized in a separate law, but lack similar constitutional status.6 For both groups, land ownership constitutes a major legal issue: Afro- Colombians traditionally “hold” land in common, and indigenous populations have traditionally resided on large stretches of otherwise unoccupied land that have recently become economically or politically significant, e.g., they may overlay oil deposits, or be close to vulnerable borders.

Historically, these and other impoverished rural populations lacked title to land, either occupying what was apparently unclaimed by anyone else or using land formally held by absentee or inattentive landlords. This fact, combined with massive displacements of populations owing to the last few decades of violence, the emergence of agro-industry, and the tendency of the newly (and often illegally) wealthy to invest in land, threatens to make land use and ownership a new source of conflicts and of demands for access to the justice system. A second set of legal issues arising from the recent conflicts involves policies concerning reparations to victims, attention to displaced peoples, and identification and prosecution of rights abusers (including those in the government).

5 Davis and Sanchez, 2003.

6 A third group given special recognition is the Roma, but they number only about 40,000 and while they retain their own traditions, tend not to live in isolated communities.

Assessment of USAID/Colombia’s Justice Reform and Modernization Program 6

Justice Sector Organization: Colombia has always had a complex justice sector organization, and the Constitution of 1991 added still more elements. These include the creation of a separate Constitutional Court, the Superior Judicial Council (responsible for various administrative and disciplinary functions for the judicial branch and its three court systems: constitutional, administrative, and ordinary justice), the Prosecutor General (responsible for criminal investigation and prosecution), and the Office of the Ombudsman, which also incorporates the Public Defender’s Office. (See Annex 2) Two special features, existing prior to 1991, are the separate system of administrative courts, headed by its own Council of State,7 and the Inspector General (Procuraduría), a body responsible for investigating administrative abuses and generally guaranteeing respect for legality and constitutional rights, most often through direct participation as an additional party in criminal and civil cases. In practice, however, its role has at times been controversial.

Although criminal investigation and prosecution of corruption rests with the Prosecutor General, the office of the Inspector General is supposed to function as an important disciplinary and internal control on corruption and other abusive actions. Unlike similarly named bodies elsewhere in Latin America, Colombia’s Procuraduría does not represent the State in litigation. That function is performed by other public attorneys attached to individual ministries under the direction of the Ministry of Interior and Justice.

Colombia is a unitary and not a federal republic, but its judicial system has long been influenced by local political elites. Until the mid 20th century, lower level judges were appointed or nominated by departmental and municipal councils while the Supreme Court was elected by the national Congress. This situation ended when the two dominant political parties formed a national front in 1957 (in part to defuse the intense partisan competition blamed for the prior period of violence). A policy of cooptación was substituted, whereby the Supreme Court chose its own members and in turn managed other judicial appointments. This arrangement hardly ended political interference, but it gave the judiciary a level of autonomy unique within the region.

Prior to 1991, the Supreme Court had taken control of some administrative functions formerly handled by the then Ministry of Justice, but under the new Constitution these powers were transferred to the Judicial Council’s Administrative Chamber. The Chamber was also made responsible for vetting all judicial candidates (except for the Constitutional Court), thus setting limits to the high court’s ability to choose its own members and lower level judges.

Despite the country’s size, and the limited extent of government penetration, the justice sector entities and representatives are fairly well dispersed. The Judiciary’s Statutory Law requires a judge to be present in every county (municipio) and for the most part this is honored; county judges are often accompanied by a prosecutor and a police agent. In areas controlled by armed bands (or just by local caciques), the judge and others may not be able to decide significant cases or even get outside the county seat, but they are present.8 The country’s number of judges, prosecutors, investigative police, and public defenders is on the high end for the region, while its litigation rate (calculated as the percentage of new filings per 100,000 people) is a modest 4,000.

Caseloads are also modest,9 if fairly unevenly distributed, but clearance and congestion rates remain poor.

The problem is historical, as explained below, but Colombians believe it has been aggravated by the post- 1991 introduction of the tutela. A tutela is a form of extraordinary writ to protest violations of individual rights. It can be submitted to any judge and must be decided within 10 days, and now constitutes over 25 percent of the total caseload (and over 50 percent of that for criminal courts). Court congestion is highest in the civil and administrative jurisdictions. For criminal cases, most of the backlog consists of cases still under investigation in the Prosecutor’s Office.

7 Until fairly recently the Council was the only entity in this jurisdiction, but there are now a series of appellate and first instance administrative courts.

8 Garcia, 2008.

9 Over the past few years, average new filings have been 300 per judge. This does not include tutelas (extraordinary writs), which would raise the number by 25 to 50 percent. However, as compared to other more developed judiciaries in the region (Argentina, Brazil, Chile, Costa Rica), this is still on the low side. All judges have cases transferred from prior years, and there are courts with far more (and far less) than the average, so this does not affect the assessment.

Assessment of USAID/Colombia’s Justice Reform and Modernization Program 7

In terms of the quality of justice rendered, Colombia has long been considered, by both its citizens and many external observers, to be less problematic than many of its regional neighbors. According to the 2008 Americas Barometer, it is second in the hemisphere (following only Canada) as regards overall confidence in the justice system (56.3 percent versus 60.0 for Canada and 50.8 for the U.S.). Confidence in the Colombian justice system, as reported in prior annual Americas Barometer surveys, has increased steadily for the past several years (from 48 percent in 2005 to 49.9 percent in 2006, 51.5 percent in 2007, and 56.3 percent in 2008). Its Constitutional Court ranks second only to Costa Rica (55.7 versus 58.3 percent), and its Prosecutor’s Office ranks highest among the eight Latin American countries surveyed. The percentages of citizens reporting high or moderate satisfaction with the work of the first instance courts were 18.2 and 43.9, respectively. The very high rankings are somewhat surprising given often pointed criticisms offered by the legal community and the government itself. However, as Uprimny (2006) and others note, much of the positive perception may stem from the Constitutional Court’s activism in protecting citizens’ rights and the availability of the tutela. In terms of efficiency, delays, and costs, the rest of the system confronts serious problems, but for those who can turn an ordinary complaint into a constitutional issue, much of this can be circumvented. 10

A second series of problems involves the availability of sector services to rural and other poor citizens.

Although judges are present in nearly every county, there are other barriers to access – logistics, costs, availability of legal representation (required for most cases), and ignorance of basic rules and legal rights. The government’s current “National Consolidation Plan,” an effort to introduce, reestablish, or fortify its presence throughout the country in the aftermath of decades of internal conflicts, has put a special emphasis on the justice sector. Concretely, this means placing both formal and alternative services in more isolated areas of the country once a certain amount of security can be assured. The emphasis on rural areas may, however, require some readjustments given recent trends toward a reemergence of urban violence.

Unfortunately, many of the “armed bands” waging war in the countryside have now moved to the cities where they indulge in a variety of criminal actions. Poor communities, and especially those inhabited by displaced populations, are particularly afflicted, although violence has now spread to more affluent urban areas.

Criminal Justice Reforms: As should be evident from the above discussion, Colombia’s justice problems and reforms are not limited to the criminal jurisdiction, but for a variety of reasons it has received the most attention. Colombia has been attempting to improve its criminal justice system for at least 70 years.11 The preferred method has been to enact a new procedural code; since 1938, Colombia has introduced six of them.12 The 1938 code introduced many themes that would be repeated over the ensuing decades:

procedural simplification, concern for the victim of the crime, and the separation of the investigation from the trial stage. Along with the codes enacted in 1971 and 1981, it attempted to improve the system’s ability to deal with rising crime and violence. Nonetheless, by 1964, Colombia’s criminal justice system was processing only about 10 percent of the investigations initiated.13 The simplest cases tended to reach conclusion, while the rest were left either uninvestigated, or with investigations never completed.

Although Colombia’s movement toward an oral accusatory system began earlier, the three post-1991 codes made the greatest advances, culminating in Law 906 enacted in 2004.