The Bolivian legal system is a civil law system with influences from Roman, Spanish, canon (religious), French, and indigenous law.
Taken from: The Economist, 7th Jan 2012:
In El Alto, residents have little faith in the police or the courts. Instead, they often take justice into their own hands.
The socialist government of President Evo Morales is trying to restore public faith in the judicial system by replacing judges with elected ones. On 3rd January, 2012, 56 judges elected in a national ballot last October, were sworn in and will sit in the country’s four highest courts. 50% are women and some are Amerindian.
The opposition complains that the new judges are in practice handpicked government appointees. It sees the judicial election as intensification of the politicised justice already dispensed under Mr Morales. Many Bolivians heeded an opposition call to register a protest vote in October. Only 40.5% of the votes cast in the judicial vote were valid; 41% were spoiled and 18.5% blank. The opposition campaign was spearheaded by Juan del Granado, a former mayor of La Paz who until 2009 was a close ally of Mr Morales. The government already controlled the nominally independent public prosecutors.
At least two-thirds of the prison population is on remand, awaiting trial. As well as slow, the courts are underfunded, inefficient and often corrupt.
The judicial system’s budget was just $75m last year, and it is due to shrink in real terms this year. Salaries of top judges are capped at $2,174 per month, an invitation to graft. Even the new judges have asked for the cap to be doubled.
Many rural Bolivians have no access to the courts and community justice can sometimes resemble legalised lynching.
Taken from: CIPE Feature Service - "Corruption in Bolivia: Reforming the Judicial System" by José Miguel Fabbri:
There needs to be a balance of powers between the legislative and the executive. However, too often in Latin America one of the branches is excessively strong, resulting in an unbalanced state where, usually the executive, imposes its will. The unfortunate result is inefficient accountability and the discretionary use of public goods, both of which foster corruption.
In Bolivia, the judiciary is endemically corrupted, condemning most of the commercial, civil and public activities to be corrupted too. When those with the legal obligation to guard the legality and rightfulness of civic and official activities are corrupted, economic recovery will take a long time because of the effect corruption has on increasing transaction costs. The need for reform is clear. Investors will not consider a country where there is no guaranteed standard for judicial procedure or reliable process. To attract investors, a country must at least offer some degree of fairness and judicial certainty within a reasonable time frame.
Supreme Court Justice Eduardo Rodriguez found that the average resolution of a commercial dispute, considered an executive process under Bolivian law, takes more than 6 years, while civil cases take between 12 to 15 years to be resolved.
Foreign, as well as, domestic investors are reluctant to do business in Bolivia due to the excessive time and unpredictable outcome of judicial proceedings.
A study by Mitchell Seligson of the University of Pittsburgh found that the perceived levels of corruption in the judiciary have doubled since 1981.
A corrupted judiciary makes it impossible to combat corruption in other government agencies. But, the executive and legislative branches have systematically de-powered the judiciary; especially since the former dictator Hugo Banzer Suarez restructured the legal system. It is this reality that has caused the government of Bolivia to seek to address the problem of corruption in the judiciary. However, internal and external pressures for quick reform are meeting with resistance and have not achieved the desired effects. Alternative solutions are needed to reduce corruption in the judiciary that have not been considered by legislators and reformers.
Legitimate and effective reforms often meet resistance from the Bolivian congress itself, which has for many years been protecting of their own interest as a political class, modifying and altering the laws at their own interest and benefits.The consequence is that laws are promulgated with defects, creating and consolidating an unpredictable legal system. The political elite can be expected to continue accommodating the law to its own benefit without intense pressure from reformers in the business community.
Recommendations for Reform
1. Election of Justices: The legislative and the executive branches have the constitutional right to elect members of the judiciary, allowing them to politicize judicial selections. The Constitution and the Law of the Judiciary need to give more independence to and remove the political influence from the election of members of the judiciary. A meritocracy should be used to elect and members of the judiciary, promoting judicial careers.
2. Reform the Criminal Code. It is important to reform the Criminal Code (C digo Penal) to punish corruption inside the judiciary. In cases where a member of the judiciary is accused of corruption the burden of proof should shift so that they must prove their innocence. This is an approach that has been advocated by organizations such as Transparency International; but only in cases where corruption is endemic, as is the case in Bolivia. The penalties for corruption should also be harsh enough to influence the behavior of the judiciary.
3. Increase salaries. It is important to increase the levels of salaries in the judicial branch as a way to dignify thejudicial profession and reduce corruption.
4. Declaration of Assets. It is worthwhile enforcing the declaration of assets to members of the judicial branch andrelatives and family. It is too easy to cheat when disclosure applies only to the members of the judiciary and not to relatives and family.
5. Proactive Media. One way to make members of the judiciary more accountable and socially responsible is to promote efficient and proactive mass media. The media is important because it has the ability to investigate and expose corruption and corrupt practices. However, journalists need more legal protection because in some cases journalists who discover acts of corruption are victimized.
Taken from Open Letter to his Excellency President Evo Morales from the International Bar Association Human Rights Institute (IBAHRI), 26 March 2010:
The International Bar Association Human Rights Institute (IBAHRI) expressed its concern at the situation of the independence of judges and lawyers in Bolivia. In particular:
1. The provision for direct presidential appointment of interim judges. The IBAHRI considers that the direct appointment of judges by the executive makes the judiciary vulnerable to politicization and limits its independence. Thus the law appears to contravene fundamental principles of international law such as the separation of powers, independence of the judiciary and the right to a fair trial, which are fundamental elements in a democratic society.
In particular, Article 14 of the International Covenant on Civil and Political Rights provides that ‘everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’. The American Convention on Human Rights to which Bolivia is party also guarantees the right to a competent, independent and impartial tribunal.3 In this regard, we would like to highlight the recommendation of the Inter- American Commission on Human Rights to the Bolivian Government of ‘the necessity to effectively implement systems for the administration of judicial and prosecutor’s careers that are strictly in compliance with the relevant norms and conform to international standards’
Further, Principle 10 of the UN Basic Principles on the Independence of the Judiciary require the creation and strengthening of transparent mechanisms for the nomination and promotion of judges that is independent from the Executive, ‘Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives’.
Further, we respectfully reiterate a key recommendation of the IBAHRI 2006 Report regarding the appointments process of members of the high courts that ‘reform should include the establishment of a more transparent process of appointment, involving a broader institutional spectrum, in addition to representatives from the Executive’.
2. The creation of ‘Committees of Social Control’ with supervisory authority over the judiciary. Certain provisions of the Ley del Consejo de la Magistratura with respect to the creation of a ‘Committee of Social Control’, which includes as one of its functions ‘the control of the autonomy and independence of the judicial organs in the exercise of its functions’, are of concern.
The absence of a defined selection and appointment criteria for the members of the Committee of Social Control is alos of concern, In particular the absence of judicial experience as a requisite for membership and safeguards for its independence from the Executive, increases the risk of political influence over the judiciary in the exercise of its functions and decisions.
3. The compulsory registration of lawyers and bar associations with the Ministry of Justice, permitting the Ministry to ‘monitor the proper functioning of bar associations’. The exclusive power of the Executive to register and control the functioning of lawyers and bar associations constitutes a serious threat to the independence of the profession. It is important to recall that the independence of lawyers is fundamental to the guarantee of the right to a fair trial and that the independence of the profession is essential to the effective protection of individual rights.
Executive oversight with respect to the functioning of bar associations risks contravening the principle that ‘The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference’ and could compromise the ability of bar associations to protect its members from ‘persecution, restrictions or unwarranted interference’.
Bolivia: The urgent need for meaningful reform of the justice system
This is a summary of a report following a fact-finding mission by the International Bar Association to the Republic of Bolivia between 14 – 18 August 2006.
During the mission, the delegation of high-level jurists carried out extensive consultations with the Deputy Minister for Justice and other public servants whose roles are related to the legal profession. The Attorney-General, Magistrates and members of the judiciary, including members of the Corte Constitucional (Constitutional Court) and Corte Suprema (Supreme Court), as well as lawyers, law societies and bar associations, academics from different law faculties and representatives of non-governmental organisations,among others, were also consulted.
The IBA would like to take this opportunity to thank those who gave their time to meet the delegation for their hospitality and assistance.The mission was organised by the Human Rights Institute (HRI) of the International Bar Association (IBA) and was generously funded by the Foundation Open Society Institute (FOSI).
The purpose of the mission to Bolivia was:·
To analyse the legal situation in Bolivia, specifically the independence of the legal system and that of the legal profession in carrying out its duties.·
To examine any obstacle, de facto and de jure, which limits or compromises the administration of justice.·
To check the existence of legal safeguards for the efficient functioning of the legal system and if these safeguards are respected in practice.·
To draw up necessary recommendations with respect to all of the above.
The IBA mission was concerned to hear of reports indicating threats to the independence of the judiciary and therefore decided to visit the country.
The summary of conclusions and recommendations follow.
Summary of conclusions
· The current appointment procedure for high court judges by Congress lacks transparency and the necessary safeguards. This makes the judiciary vulnerable to possible interference. In addition, the IBA is concerned at a recent proposal presented to the Asamblea Constituyente (Parliament) by President Evo Morales, in which he suggests the appointment of judges by means of direct and universal election, as it may further exacerbate the current lack of independence of the judiciary.
· The 1994 constitutional reform and the establishment of a new Código de Procedimiento Penal (Code of Criminal Procedures), which introduced a prosecutorial system, can be regarded as potentially positive advances towards the establishment of an independent judicial system in Bolivia. However the current tense political climate and lack of confidence between state authorities can be seen as an obstacle to these advances. A further stumbling block to the implementation of the reforms has been that the reform process has not received sufficient provisions from the national budget. All of the above combine to negatively affect the administration of law in Bolivia.
· The IBA was concerned at the lack of adequate budgetary funding for the legal system and the extent to which this undermines the implementation of the new prosecutorial system in Bolivia. The Defensa Pública (Public Defenders Office) is being weakened by the lack of resources and the low level of investment in professional development. Opposition to the new Código de Procedimiento Penal was apparent among the public prosecutors, members of the police and the population as a whole.
· Members of the current government have made public statements against members of the Poder Judicial (High Court) in relation to on-going cases in the law courts. Such behaviour can undermine the principle of independence and is contrary to fair trial guarantees as it maybe interpreted as an attempt to interfere with judiciary.
· The recent salary reduction measure implemented by the Government should be reviewed. The IBA believes that insufficient efforts were made by the authorities to engage the judiciary in any meaningful way to discuss this important issue prior to the decision being made.
· Access to justice in Bolivia is denied to millions due to widespread corruption, a shortage of courts throughout the country, the absence of interpreters for cases in which one of the parties speaks an indigenous language and persistent delays in hearing cases.
· The divisive atmosphere and public disagreements among the members of the Poder Judicial, as well as the absence of internal coordination within the Poder Judicial, has a very negative impact on the proper administration of justice.
· The establishment of new judicial bodies such as the Tribunal Constitucional (Constitutional Court) and the Consejo de la Juricatura (Judicial Council), as a result of the 1994 constitutional reform, constitute a praiseworthy advance. It is important that these bodies be strengthened and supported to enhance their impact.
· The recent moves aimed towards the development of the legal career in Bolivia must be recognised and should be facilitated further with the creation of the Instituto de la Judicatura (Judicial Institute). However, the absence of a career structure for judges and a transparent disciplinary procedure, continue to present threats to the advances carried out, and to the administration of law as a whole.
· The recognition of Justicia Comunitaria (Community Justice) is a key advance for the indigenous majority of Bolivia in that it potentially facilitates greater access to justice. However, the absence of a legal structure to regulate this system has generated numerous problems and has impeded the development of clear laws, leading to legal uncertainty.
· Although Bolivia has ratified the most important human rights treaties at the regional and international level, the country has not complied with some of its international obligations under the treaties. With very few exceptions, the State has not submitted reports to the different human rights committees that have requested them, nor has it complied with the order from the Inter-American Court of Human Rights to investigate and prosecute the people responsible for the disappearance of José Trujillo Oroza.
· Given the terrible conditions, overcrowding, ill-treatment and non-compliance with relevant international and regional standards and guarantees, the prison situation in Bolivia constitutes a continued violation of the human rights of the prisoners and their families.
Summary of recommendations
· The IBA believes it is essential that a debate is held, both at the Asamblea Constituyente (Parliament) and at the national level, regarding the 1994 reforms to the Constitution, in particular those in relation to the justice system. The reform is considered as potentially significant to the administration of justice, but measure need to be taken to strengthen it. The constitutional reform debate should also include a discussion covering which changes are necessary to allow for the efficient implementation of the reforms and the Código de Procedimiento Penal.
· The IBA recommends that the appointment procedure for members of the high courts be revised. Congress should allow civil society organisations and representatives of other institutions to serve as a check and balance during the appointments process. The reform should be geared towards formulating a more transparent process of appointments which involves a broad institutional spectrum, as well as representatives of the Executive.
· The IBA respectfully urges the Bolivian Government to avoid putting pressure on or threatening the judiciary, publicly or privately, and to respect at all times the right to the presumption of innocence and the right to defence for all Bolivians. In particular, recent public statements relating to on-going cases should be retracted.
· The IBA recommends that Bolivia reforms its national law in order to adequately protect the salaries of judges and their security of tenure. The IBA also suggests that the salary that judges receive is commensurate to the important role that they carry out. This is an important measure in the battle against corruption.
· The Poder Judicial itself must develop a more active role in the promotion of a coordinated and independent judicial system. One of the issues that must be undertaken, is the need for the establishment of a public policy covering legal issues, as well as the adoption of measures to improve relations between the institutions engaged in the administration of law.
· The capabilities of the Tribunal Agrario (Agrarian Tribunal) should also be expanded so that it recognises disputes not only within the court of cassation, as this would assist in increasing access to justice.
· The development of a judicial career which includes a training and professional development process for judges is crucial. The establishment of an independent, transparent and disciplinary procedure and institution for the judiciary is much needed. This measure will increase the capacity and competence of judges across the country. In this context, it is recommended that sufficient funding is allocated in the budget for the judicial system.
· The IBA recommends the urgent implementation of measures to combat widespread judicial corruption, to increase the number of courts throughout the country and to the implementation of financial measures to guarantee the constant availability of a competent interpreter.
· It is important that the Justicia Comunitaria system in Bolivia is regulated. The debate surrounding this type of justice provision should take place both within the Asamblea Constituyente (Parliament) and at the national level with the objective being to create greater awareness among citizens, particularly from the indigenous communities, of the options at their disposal when seeking access to the legal system.
· The IBA believes that an action plan is needed to address the various failures that have resulted from the implementation of the new prosecutorial system. The action plan must include steps to reduce the number of individuals held in pre-trial detention and to educate citizens about the legal guarantees in the new prosecutorial system. An increase in the budget earmarked for the implementation of penal reform is also necessary and must include greater financial and educational support for Public Defenders.
· The Bolivian Government must establish an efficient inter-institutional committee tasked with writing and submitting reports to international human rights monitoring bodies. An independent committee responsible for the fulfilment of the orders of the Inter-American Court of Human Rights with regard to Mr Trujillo Oroza could be created to help give transparency to this process and publicise progress made in the case.
· The IBA recommends the urgent development of a prison policy aimed specifically at improving the alarming prison conditions in Bolivia, and those of the families that live with detainees. This policy must take into account international rules and norms relating to prison conditions. Urgent and immediate action should be taken to address delays in the justice system and prevent lengthy pre-trial detention.