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Assessing the Effects of the 2004 CPC on Victim’s Rights

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Victims’ Rights in Flux: Criminal Justice Reform in Colombia

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 62))

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Abstract

This chapter provides an empirical assessment of victims’ rights within the criminal justice reform of the early 2000s. It examines whether the five agendas involved in this process of reform (adversarial system; punitive; restorative justice; victims’ rights to truth, justice, and reparation; and rights of women victims of violence) have actually been put into action. The first section argues that there has been a dominant punitive trend, particularly after punitive counterreforms of the 2004 CPC. However, data indicate that punitiveness does not involve more protection for victims of serious crimes. The second section suggests that actors promoting a restorative justice agenda have only attained some of their goals. Restorative justice programs have not been implemented to respond to the needs of victims of serious crimes. Furthermore, although conciliation is frequently used for processing minor crimes, there is a gap between theory on restorative justice and the practice of conciliation hearings. The third section examines the agenda of rights to truth, justice and reparation by exploring the case of victims of human rights violations. It concludes that victims face various obstacles to participating in criminal proceedings under the 2004 CPC, which especially affect the rights of victims of human rights abuses. The final section explores whether women’s advocates have attained their goals regarding assistance and protection of victims and punishment of offenders, primarily in cases of domestic violence. According to available data, the punitive legal reforms designed to tackle this form of violence have brought mixed results.

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Notes

  1. 1.

    I formally requested information to the Superior Council of the Judiciary, but they did not provide any information.

  2. 2.

    Policía Nacional de Colombia, Revista Criminalidad http://www.policia.gov.co/portal/page/portal/HOME/publicaciones/revista_criminalidad/pub.

  3. 3.

    IACommHR, Report on the use of pretrial detention in the Americas, 2013, par. 79.

  4. 4.

    Some studies have assessed the impact of the wave of criminal justice reforms in Latin America on the number of pretrial detainees (Bhansali and Biebesheimer 2006; Duce et al. 2009). Bhansali and Biebesheimer conclude that effects vary considerably by country (2006, p. 314).

  5. 5.

    According to National Police, the effects of the criminal justice reform of the early 2000s and a strike of the union of judicial representatives can explain the low number of arrests in 2008 (see, Revista Criminalidad, 51, 1, 2008, http://www.policia.gov.co/imagenes_ponal/dijin/revista_criminalidad/vol51_1/51111resultados.html).

  6. 6.

    Other countries in Latin America also have enacted punitive backlashes against the criminal justice reforms that limited preventive detention (Duce et al. 2009; Fuentes Maureira 2010).

  7. 7.

    Some studies conclude that the decline in the homicide rate is partially explained by a reduction in violence related to armed conflict. Significantly, between 2002 and 2006, the sharpest drop in the homicide rate can be attributed to the process of demobilization and reintegration of paramilitaries, as they were responsible for the majority of murders in armed conflict (Restrepo et al. 2009, pp. 93, 94; Restrepo and Muggah 2009, p. 39). Other analysts argue that the reduction in the homicide rate is also a consequence of the government’s security policies and law enforcement activities (Bello Montes 2008).

  8. 8.

    According to some scholars, the decrease in the kidnapping rate can be explained by the application of the Democratic Security policy of President Uribe to fight guerrillas. Guerrillas were marginalized and forced to move constantly, making kidnapping and holding kidnaped persons harder. Another explanation for the reduction of kidnapping is the society’s rejection of kidnapping and international pressure that elevated the political cost of kidnaps for guerrillas (Restrepo et al. 2009, p. 76). In addition, the FARC announced the release of abductees and abandonment of kidnapping in 2012, in the context of peace negotiations with the government of President Santos (see, e.g. La Silla Vacía, February, 28, 2012, “De lo que viven las FARC sin el secuestro,” http://lasillavacia.com/historia/de-lo-que-viven-las-farc-sin-el-secuestro-31683).

  9. 9.

    In Colombia, the regulation of guns and weapons is restrictive; there is no a right to private gun ownership.

  10. 10.

    Many scholars have analyzed a similar punitive trend in criminal justice policies in other countries such as the US and the UK. These policies have expanded the use of incarceration, even for minor offenses, and led to a significant increase in imprisonment rates. See, for example, (Garland 2001; Stuntz 2011).

  11. 11.

    IACtHR, Case of the Mapiripán Massacre v. Colombia, Judgment of September 15, 2005, par. 216, 217.

  12. 12.

    According to Packer, efficiency means “the system’s capacity to apprehend, try, convict, and dispose of a high proportion of criminal offenders whose offenses become known” (Packer 1964, p. 10).

  13. 13.

    The Superior Council of the Judiciary gathered these data from completed cases. That research analyzed 34,098 cases under the 2004 CPC and 1743 cases under the 2000 CPC. The methodology did not explain the sampling method, so it is unclear whether this was a representative sample and whether this sample was biased (Consejo Superior de la Judicatura, Boletin Estadistico No. 1, 2010).

  14. 14.

    Fiscalia General de la Nación, Informe de Gestión 2013–2014, p. 69.

  15. 15.

    Robbery (Art. 239 and 240 Criminal Code); Homicide (Art. 103 Criminal Code); Embezzlement of public goods (Art. 397 Criminal Code); Drug trafficking, manufacturing or possession (Art. 376 Criminal Code); Trafficking, manufacturing and possession of weapons or ammunitions (Art. 365 Criminal Code).

  16. 16.

    The prosecution rate in the Americas is calculated using data from 11 countries: Bolivia (2009), Canada (2011), Chile (2011), Colombia (2012), Costa Rica (2012), El Salvador (2011), Guatemala (2012), Mexico (2012), Panama (2012), Paraguay (2011), and Dominican Republic (2011). Source: Observatorio Hemisférico de Seguridad de la OEA, Alertamerica (http://www.oas.org/dsp/observatorio/database/indicatorsdetails.aspx?lang=es&indicator=215).

  17. 17.

    UNDOC, Global Study on Homicide, 2013, p. 92 (http://www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf).

  18. 18.

    UNDOC, Global Study on Homicide, 2013, p. 94 (http://www.unodc.org/documents/gsh/pdfs/2014_GLOBAL_HOMICIDE_BOOK_web.pdf).

    This study includes data from 14 countries in the Americas, 13 countries in Asia, and 30 countries in Europe in relation to 2011 or the latest available year.

  19. 19.

    The National Police has implemented community policing strategies since 2006. In 2010, the National Police created the National Plan for Community Policing by zones. For more information, see, Policía Nacional de Colombia, Modelo Nacional de Vigilancia por Cuadrantes (http://www.policia.gov.co/portal/page/portal/HOME/concurso-subintendente/Actualice_Conocimientos/5.%20TOMO%202.2.%20Modelo%20Nacional%20de%20vigilancia%20Comunitaria%20p.pdf).

  20. 20.

    Interviews with attorneys Mildred Hartmann (February 8, 2013), Alejandro Cadena (July 9, 2014), Esperanza Calderón (lawyer of the Secretary for Women of Bogotá, CAIVAS, July 28, 2014), Bayron Góngora (Corporación Jurídica Libertad, July 16, 2014), Luis Guillermo Pérez (José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014).

    Interviews with prosecutors María Cecilia Jaimes (Attorney General’s Human Rights Unit, July 31, 2014), Sandra Janeth Castro (prosecutor and former Coordinator of the Attorney General’s Human Rights Unit, July 18, 2014), Lyda Valdiri (prosecutor CAVIF, July 28, 2014), Miguel Eduardo Martínez (Prosecutor CAIVAS, August 1, 2014).

  21. 21.

    Attorney General’s Office, Directive 001 of 2012.

  22. 22.

    Interview with Manuel Garzón, Intercongregational Commission of Justice and Peace, July 14, 2014.

  23. 23.

    Some scholars claim that the vast majority of persons incarcerated for drug trafficking or possession are not large-scale drug traffickers (Iturralde 2011; Uprimny and Guzmán 2010). According to Guzmán and Uprimny, “98% of the persons deprived of liberty for this crime had not had—or it had not been possible to prove that they had—major participation in drug-trafficking networks” (Uprimny and Guzmán 2010, p. 45).

  24. 24.

    After Law 1453 of 2011, possession of only ammunitions and parts or accessories of weapons can constitute illegal weapon possession or trafficking.

    Law 1142 of 2007 and Law 1453 of 2011 increased imprisonment penalties. In Law 1142, the minimum penalty became four years and the maximum became eight years. Law 1453 established nine years as minimum penalty and twelve years as maximum punishment.

  25. 25.

    Gun control has been a strategy to reduce violent crimes.

    http://www.policia.gov.co/imagenes_ponal/dijin/revista_criminalidad/vol52_1/07Elcontrol.html.

  26. 26.

    Interview with Julio Sampedro Arrubla, June of 2013.

  27. 27.

    United Nations Office on Drug and Crime, The Handbook on Restorative Justice Programmes, 2006, p. 7.

  28. 28.

    United Nations Office on Drug and Crime, The Handbook on Restorative Justice Programmes, 2006, p. 77.

  29. 29.

    Interviews with prosecutors of CAVIF, July 28, 29 and 30, 2014.

  30. 30.

    See, National Victims Unit, Victims Register http://rni.unidadvictimas.gov.co/?q=node/107

    The Law on Victims and Land Restitution (Law 1448 of 2011) created the National Victims Unit as part of the Administrative Department of the Presidency of the Republic.

  31. 31.

    United Nations High Commissioner for Refugees (UNCHR), Statistical Yearbook, 2013.

  32. 32.

    Semana, October, 3, 2012, “Denuncian amenazas contra líderes de restitución de tierras,” http://www.semana.com/nacion/articulo/denuncian-amenazas-contra-lideres-restitucion-tierras/265769-3

    Semana, June, 5, 2013, “Denuncian amenazas contra reclamantes de tierras,” http://www.semana.com/nacion/articulo/denuncian-amenazas-contra-reclamantes-tierras/345643-3

    Verdad abierta, Líderes de tierras, http://www.verdadabierta.com/lideres-de-tierras.

  33. 33.

    IACommHR, Report on the Situation of Human Rights in Colombia, 1981, Conclusions par. 5; Second Report on the Situation of Human Rights in Colombia, 1993, Chapter IV, lit F; Third Report on the Situation of Human Rights in Colombia, 1999, Chapter V, lit A; Annual Report, 2011; Truth, Justice and Reparation: Fourth Report on the Situation of Human Rights in Colombia, 2013.

    Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, March 20, 2001, par. 57; Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, February 13 and 17, 2004, par. 77; Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Colombia, January 23, 2015.

  34. 34.

    See, IACtHR, Case of the Moiwana Community, Judgment of July 15, 2005, par. 203; Case of the Serrano Cruz Sisters, Judgment of March 1, 2005, par. 170, and Case of the Gómez Paquiyauri Brothers, Judgment of July 8, 2004, par. 148.

  35. 35.

    The Colombian state has been held responsible for violating Articles 8(1) and 25 of the Convention in many cases in the Inter-American Human Rights System. See, for example:

    IACtHR, Case Caballero Delgado and Santana v. Colombia, Judgment of December 8, 1995; Case of Las Palmeras, Judgment of December 6, 2001; Case of the 19 Tradesmen, Judgment of July 5, 2004; Case of Gutiérrez Soler v. Colombia, Judgment of September 12, 2005; Case of the Mapiripán Massacre v. Colombia, Judgment of September 15, 2005; Case of the Pueblo Bello Massacre v. Colombia, Judgment of January 31, 2006; Case of the Ituango Massacres v. Colombia, Judgment of July 1, 2006. Case of Escué Zapata v. Colombia, Judgment July 4, 2007; Case of the La Rochela Massacre v. Colombia, Judgment May 11, 2007; IACtHR, Rodríguez Vera et al. (Persons Disappeared of the Palace of Justice) v. Colombia, Judgment November 14, 2014.

  36. 36.

    IACtHR, Case of the La Rochela Massacre v. Colombia, Judgment May 11, 2007, par. 289.

  37. 37.

    The Attorney General’s Office reported to the Historical Memory Group information of cases of enforced disappearances under the 2004 CPC and the 2000 CPC. However, provided information of cases under the 2000 CPC has serious issues of consistency and reliability and it does not include the number of convictions (Grupo de Memoria Histórica 2014).

  38. 38.

    Prosecution rate: percentage of persons prosecuted for cases reported.

  39. 39.

    Conviction rate: percentage of people convicted for cases reported.

  40. 40.

    According to the Historical Memory Group, the lack of security of judicial representatives is particularly alarming and permanent, and this is one of the main mechanisms of impunity in the Colombian context (Grupo de Memoria Histórica 2010, 2013).

  41. 41.

    See, e.g., Constitutional Court, Judgment SU-1184 of 2001, Justice Eduardo Montealegre; Judgment C-740 of 2013, Justice Nilson Pinilla.

  42. 42.

    See, e.g., IACtHR, Case of Castillo Petruzzi et al. v. Peru, Judgment of May 30, 1999; Case of Durand and Ugarte v. Peru, Judgment of August 16, 2000; Case of Cantoral Benavides v. Peru, Judgment of August 18, 2000; Case of Las Palmeras, Judgment of December 6, 2001; Case of the Mapiripán Massacre v. Colombia, Judgment of September 15, 2005; Case of the Pueblo Bello Massacre v. Colombia, Judgment of January 31, 2006; Case of Almonacid Arellano et al. v. Chile, Judgment of September 26, 2006; Case of La Cantuta v. Peru, Judgment of November 29, 2006; Case of Escué Zapata v. Colombia, Judgment July 4, 2007; Case of the La Rochela Massacre v. Colombia, Judgment May 11, 2007; Case of the Santo Domingo Massacre v. Colombia, Judgment of November 30, 2012; Case of Rodríguez Vera et al. (Persons Disappeared of the Palace of Justice) v. Colombia, Judgment November 14, 2014.

  43. 43.

    The Special Rapporteur on extrajudicial, summary or arbitrary executions described disputes over jurisdiction of military courts in cases of extrajudicial executions committed by state agents.

    [T]he Constitutional Court and the Superior Council of the Judicature have clarified that the military courts do not have jurisdiction when force members engage in conduct contrary to the constitutional functions of the forces (such as unlawful killings) and that where there is doubt, civilian jurisdiction should apply. Despite these clear judicial rulings, directives to the same effect from the Minister of Defence and a memorandum of agreement (2006) between the Ministry of Defence and the Fiscalía, it remains the case that jurisdiction over far too many cases is contested. There have been some improvements in recent years – a total of 526 cases have now been voluntarily sent by the military criminal courts to civilian courts. Another 75 cases have been transferred following orders from the Superior Judicial Council. However, as of May 2009, there were still 221 cases of conflict between the military and civilian jurisdictions. One cause of delay can be the Supreme Judicial Council’s failure to decide jurisdictional challenges on a timely basis. These decisions should be made more expeditiously. (UN, Human Rights Council, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Mission to Colombia, 31 March 2010, par. 38–39).

  44. 44.

    For example, in 2012, the government of President Santos proposed a constitutional amendment to reform the military justice system, which was approved by Legislative Act 02 of 2012. It made most criminal offenses committed by soldiers subject to military tribunals, but reserved crimes against humanity and human rights for civilian courts. Human rights organizations, such as Human Rights Watch and Colombian Commission of Jurists, heavily criticized this reform because cases of “falsos positivos” could be transferred to military courts. The Constitutional Court declared unconstitutional the Legislative Act 02 of 2012 (Judgment C-740 of 2013, Justice Nilson Pinilla).

  45. 45.

    In the Palace of Justice case, officers of the Army did not follow any procedure to preserve evidence. Security forces and firefighters moved all of the corpses to the first level. In addition, they stripped the bodies and washed some bodies before sent them to the morgue. The Tribunal of Bogotá said security forces manipulated the crime scene to ensure impunity (IACtHR, Rodríguez Vera et al. (Persons Disappeared of the Palace of Justice) v. Colombia, Judgment November 14, 2014, par. 494–495). Moreover, in the case of La Rochela massacre, security forces failed to protect the judicial officers responsible for investigating and removing the corpses on the day of the facts.

    “The Commander of the Army’s Fifth Brigade, General Alfonso Vacca Perilla, did not provide them with the required protection; consequently, these officials had to travel to the site of the events on their own, and at their own risk. This situation was even more serious if it is recalled that this General was informed that “at the site of the events, there is an injured person who is still alive.” This grave omission is closely related to what the surviving victim, Arturo Salgado, stated before the Court when he expressed his surprise that no member of the Army or the Police came to help him after the massacre, even though the military battalions were only 20 to 40 min from the site of the massacre, and news of the massacre started to circulate at approximately 1 p.m. It was the newspaper reporters who helped him at around 5 p.m. (IACtHR, Case of the La Rochela Massacre v. Colombia, Judgment May 11, 2007, par. 174).

  46. 46.

    For example, in the case of La Rochela massacre, the IACtHR stated:

    The Court also finds that the investigation encountered obstacles when capturing some individuals and ensuring the appearance of some individuals before the judges. These obstacles are documented in several official communications issued by officials of the mobile unit that conducted the initial stages of the investigation. In these documents, officials reported the lack of diligence of senior military leaders (General Farouk Yanine Díaz, General Carlos Julio Gil Colorado, and Colonel Jaime Fajardo Cifuentes) in effectuating the capture of paramilitary members involved in the events. (IACtHR, Case of the La Rochela Massacre v. Colombia, Judgment May 11, 2007, par. 172).

  47. 47.

    Interview with Luis Guillermo Pérez, a lawyer from José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014.

    For example, Angela María Buitrago, the prosecutor who investigated and processed the enforced disappearances in the Palace of Justice case, was dismissed after she achieved the conviction of Colonel Plazas Vega by the judge of first instance and opened a criminal investigation against three retired Generals. She suggested that members of military forces demanded her dismissal (La Silla Vacía, September 17, 2010, “Hubo ruido de sables de algún sector político o militar, y pidieron mi cabeza”: Ángela María Buitrago, http://lasillavacia.com/historia/18114).

  48. 48.

    For instance, the Historical Memory Group reports that the members of the first judicial commission investigating La Rochela massacre, between January 1989 and November 1990, conducted a diligent investigation, despite the threats and context of violence. They designed some strategies to overcome obstacles placed by security forces and to avoid exposing witnesses. For example, judges interviewed passengers of buses and many random people in order to collect information making unclear the specific source. Interviewing many persons made harder for criminals to target witnesses (Grupo de Memoria Histórica 2010).

    Another example is the situation of Judge Stella Jara. She was threatened during criminal proceedings against retired Colonel Plazas Vega for enforced disappearances in the Palace of Justice case. In this context, the Inter-American Commission granted precautionary measures for Judge Jara and her son on June 2, 2010 (PM 221-09). The IACommHR asked the State of Colombia to adopt necessary measures to guarantee the life and personal integrity of the beneficiaries. Shortly after convicting retired Colonel Plazas Vega on June 9, 2010, she was forced to flee Colombia for her own safety (El Espectador, June 22, 2010, “Es doloroso que una juez que ha resuelto un caso deba abandonar el país”, http://www.elespectador.com/noticias/judicial/doloroso-una-juez-ha-resuelto-un-caso-deba-abandonar-el-articulo-209855; Verdad abierta.com, March 31, 2015, “Saquemos la sentencia rápido porque me van a matar”, http://www.verdadabierta.com/victimas-seccion/los-resistentes/5688-saquemos-la-sentencia-rapido-porque-me-van-a-matar. It is worth mentioning here that the Supreme Court of Justice acquited Colonel Plazas Vega in a cassation judgment on December 16, 2015 (Cassation 38957).

  49. 49.

    Interview with Luis Guillermo Pérez, a lawyer from José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014.

  50. 50.

    In the Case of the Mapiripán Massacre, the IACtHR stated:

    96.29 Paragraphs 96.30 to 96.47 are the facts that this Court deems proven based on the acknowledgment of responsibility by the State… 96.30 On July 12, 1997 approximately one hundred members of the AUC landed in the airport at San José de Guaviare on irregular flights coming from Neclocí and Apartadó and were picked up by members of the Army without the latter applying any sort of control measures….96.32 The Colombian army provided transportation for the paramilitary to Mapiripán… During the trip from San José del Guaviare to Mapiripán the members of the paramilitary group went through the training areas of the troops of the 2d Mobile Brigade, under the command of Colonel Lino Hernando Sánchez Prado, without being stopped…96.34 At dawn on July 15, 1997, more than 100 armed men surrounded Mapiripán by land and river. The members of the paramilitary group wore uniforms whose use is restricted to the military forces, bore short- and long-range weapons, also restricted to the State, and used high frequency radios… The statement by Edison Londoño Niño, a member of the 2d Mobile Brigade, on collaboration between the members of the Army and of the AUC, shows that they not only refrained from impeding their arrival in Mapiripán, but also provided munitions and communications…96.37 On July 15, 1997 General Jaime Humberto Uscátegui Ramírez learned of the presence of the AUC in Mapiripán and of the imminent attack against the lives of its inhabitants. Major Hernán Orozco Castro sent Brigadier General Jaime Humberto Uscátegui, Commander of the VII Brigade, a memorandum with urgent information reporting on the incursion and foreseeing the violation of the fundamental rights of the population of Mapiripán…96.39 Testimony of the survivors shows that on July 15, 1997 the AUC separated 27 individuals identified on a list as alleged auxiliaries, collaborators, or sympathizers of the FARC, and that these persons were tortured and dismembered by a member of the AUC known as the “Mochacabezas”. The paramilitary remained in Mapiripán from July 15 to 21, 1997, during which time they impeded free movement of the inhabitants of said municipality, and they tortured, dismembered, eviscerated and decapitated approximately 49 individuals and threw their remains into the Guaviare River. Furthermore, once the operation was completed, the AUC destroyed a major part of the physical evidence with the aim of obstructing the gathering of evidence (IACtHR, Case of the Mapiripán Massacre v. Colombia, Judgment of September 15, 2005).

  51. 51.

    Constitutional Court, judgment SU-1184 of 2001, Justice Eduardo Montealegre.

  52. 52.

    IACtHR, Case of the Mapiripán Massacre v. Colombia, Judgment of September 15, 2005.

  53. 53.

    In the Case of the Mapiripán Massacre, the IACtHR recalled the conclusions of the Colombian Attorney General’s Office about actions and ommissions of Brigardier General Uscátegui and other members of the Army:

    96.38 The Attorney General’s Office concluded that Brigadier General Jaime Humberto Uscátegui Ramírez, Commander of the VII Brigade, and Colonel Lino Hernando Sánchez Prado, Commander of the 2d Mobile Brigade, demonstrated complete functional and operational inactivity despite knowing about the massacre. Furthermore, said Office established that in face of the arrival of the AUC, the troops of the Joaquín París Battalion were mobilized from San José de Guaviare toward other locations, leaving the population of said places and of Mapiripán unprotected. Lieutenant Orozco Castro stated that when it became necessary to send military forces to Mapiripán, they had been deployed elsewhere in places such as Puerto Concordia, el Retorno and Calamar. On July 15, 1997, the last companies of the Joaquín París Battalion were ordered to go to Calamar, despite the fact that there was no confirmation of public order disturbances in that place. Mobilization of the Army troops was unjustified and it was based on conjecture or mere contingencies (IACtHR, Case of the Mapiripán Massacre v. Colombia, Judgment of September 15, 2005).

  54. 54.

    The Attorney General’s Office has opened investigations against high-ranking military officers such as Generals Luis Alfonso Zapata and Héctor Jaime Fandiño for their alleged complicity in the 2005 massacre in the San José de Apartadó Peace Community; retired Generals Faruk Yanine Díaz, Juan Salcedo Lora, and Alfonso Vaca Perilla for La Rochela massacre.

  55. 55.

    For example, retired General Jesús Armando Arias Cabrales was sentenced for their role in the forced disappearance of 11 persons during the 1985 Palace of Justice siege. Colonel Rito Alejo del Río was convicted for the homicide of a civilian by paramilitaries in criminal activities perpetrated in coordination with Military Forces. Colonels Gabriel de Jesús Rincón, Wilson Javier Castro Pinto, Juan Borja, and Hernán Mejía Gutiérrez were convicted for their participation in extrajudicial executions.

  56. 56.

    Interview with Luis Guillermo Pérez, Lawyer, José Alvear Restrepo Lawyers’ Collective-CAJAR, July 30, 2014.

  57. 57.

    Constitutional Court, Judgment T-234 of 2012, Justice Gabriel Mendoza; Judgment T-339 of 2010.

  58. 58.

    Interviews with Bayron Góngora (Corporación Jurídica Libertad, July 16, 2014), Liliana Uribe (Corporación Jurídica Libertad, July 10, 2014), Manuel Garzón (Intercongregational Commission of Justice and Peace, July 14, 2014), and Luis Guillermo Pérez (José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014).

  59. 59.

    Interviews with Bayron Góngora (Corporación Jurídica Libertad, July 16, 2014) and Luis Guillermo Pérez (José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014).

  60. 60.

    Interview with Liliana Uribe, Corporación Jurídica Libertad, July 10, 2014.

  61. 61.

    Interviews with Manuel Garzón (Intercongregational Commission of Justice and Peace, July 14, 2014) and Luis Guillermo Pérez (José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014).

  62. 62.

    Interviews with Juan Carlos Fajardo (prosecutor of the Unit on crimes against life, Bogotá, June 17, 2014) and María Cecilia Jaimes (Attorney General’s Human Rights Unit, July 31, 2014).

    Interviews with attorneys Alejandro Cadena (July 9, 2014), Bayron Góngora (Corporación Jurídica Libertad, July 16, 2014), and Luis Guillermo Pérez (José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014).

    Interview with a lawyer of Secretary for Women of Bogotá (July 28, 2014).

  63. 63.

    Interviews with Fabio Bernal (judge at the Criminal Chamber of the Tribunal of Bogotá, July 22, 2014), María Victoria Parra (prosecutor of the Delegate Unit before the Supreme Court of Justice, July 18, 2014), Juan Carlos Fajardo (prosecutor of the Unit on crimes against life, Bogotá, June 17, 2014), and Nilson Pinilla Pinilla (Justice of the Constitutional Court 2006–2014, August 8, 2014).

  64. 64.

    Interviews with María Cecilia Jaimes (prosecutor in Attorney General’s Human Rights Unit, July 31, 2014), Sandra Janeth Castro (prosecutor and former coordinator of the Attorney General’s Human Rights Unit, Bogotá, July 18, 2014), Pedro Oriol Abella (judge at the Criminal Chamber of the Tribunal of Bogotá and former prosecutor, July 24, 2014), and Augusto Ibáñez (justice of the Supreme Court of justice 2007–2012, August 6, 2014).

  65. 65.

    Constitutional Court, Judgment C-1154 of 2005, Justice Manuel José Cepeda.

  66. 66.

    Interviews with a lawyer of Secretary for Women of Bogotá (July 28, 2014), Juan Carlos Fajardo (prosecutor of the Unit on crimes against life, Bogotá, June 17, 2014), attorney Alejandro Cadena (July 9, 2014), and Liliana Uribe (Corporación Jurídica Libertad, July 10, 2014).

  67. 67.

    Constitutional Court, Judgment C-1154 of 2005, Justice Manuel José Cepeda.

  68. 68.

    Interviews with a lawyer of Secretary for Women of Bogotá, July 28, 2014, Bayron Góngora (Corporación Jurídica Libertad, July 16, 2014), and Luis Guillermo Pérez (José Alvear Restrepo Lawyers’ Collective, CAJAR, July 30, 2014).

  69. 69.

    Interview with Sandra Janeth Castro, prosecutor and former coordinator of the Attorney General’s Human Rights Unit, Bogotá, July 18, 2014.

  70. 70.

    Interviews with Juan Carlos Fajardo (prosecutor of the Unit on crimes against life, Bogotá, June 17, 2014), María Cecilia Jaimes (prosecutor in Attorney General’s Human Rights Unit, July 31, 2014), and Manuel Álvarado Jiménez (prosecutor CAVIF, July 28, 2014).

  71. 71.

    Interviews with María Cecilia Jaimes (prosecutor in Attorney General’s Human Rights Unit, July 31, 2014), Manuel Álvarado Jiménez (prosecutor CAVIF, July 28, 2014), and Pedro Oriol Abella (judge at the Criminal Chamber of the Tribunal of Bogotá and former prosecutor, July 24, 2014).

  72. 72.

    Interview with Manuel Álvarado Jiménez (prosecutor CAVIF, July 28, 2014).

    Pedro Oriol Abella (judge at the Criminal Chamber of the Tribunal of Bogotá and former prosecutor) said that he had designed protocols for victims assistance in his office when he was prosecutor (Interview July 24, 2014).

  73. 73.

    Manuel Garzón provided details and information on this case, as the Intercongregational Commission of Justice and Peace represents the victims in the criminal process (Interview with Manuel Garzón, Intercongregational Commission of Justice and Peace, July 14, 2014). For more information, see, (Human Rights Watch, 2013).

  74. 74.

    http://www.eltiempo.com/archivo/documento/CMS-12710724.

  75. 75.

    Human Rights Watch documented many other cases of killings or threats against displace land claimants and leaders in the country since 2008 (Human Rights Watch, 2013).

  76. 76.

    Interviews with Liliana Uribe (Corporación Jurídica Libertad, July 10, 2014), a lawyer of the NGO Humanas (August 6, 2014), and Manuel Garzón (Intercongregational Commission of Justice and Peace, July 14, 2014).

  77. 77.

    Interviews with Liliana Uribe (Corporación Jurídica Libertad, July 10, 2014) and Manuel Garzón (Intercongregational Commission of Justice and Peace, July 14, 2014).

  78. 78.

    Consejería Presidencial Para Equidad de la Mujer y Ministerio de Relaciones Exteriores, VII y VIII Informe Combinado de Colombia al Comité de las Naciones Unidas para la Eliminación de la Discriminación contra la Mujer (CEDAW), 2011.

  79. 79.

    Interview with Mabel Carrero, Sub-direction for Victims, Attorney General’s Office, June 13, 2014.

  80. 80.

    The situation is similar in most countries in Latin America. According to the Inter-American Commission of Women:

    Some progress has obviously been achieved in recent years in the provision of services for abused women and children; hotlines; emergency assistance, including legal services; shelters; special health services; and counseling. However, in most countries, the amount of services available bears no relationship to the demand for these services (Inter-American Commission of Women, Violence in the Americas – A Regional Analysis, Including a Review of the Implementation of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, Convention of Belém do Pará, October 2000, p. 57).

  81. 81.

    In Colombia, abortion is criminalized except in only three cases: serious risk to the life or health of the pregnant woman, severe fetal malformations, or pregnancy resulting from rape or non-authorized artificial inseminations (Constitutional Court, Judgment C-355 of 2006, Justices Jaime Araújo and Clara Inés Vargas). In the latter case, reporting the crime to justice officials is necessary to get approval for a legal abortion.

  82. 82.

    Interviews with prosecutors of CAVIF and a lawyer of the Secretary for Women of Bogotá, July 28, 29 and 30, 2014.

  83. 83.

    There is no data on violation or fulfillment of the protective orders.

  84. 84.

    Interviews with prosecutors of CAVIF and a lawyer of the Secretary for Women of Bogotá, July 28, 29 and 30, 2014. Interview with a lawyer of the NGO Humanas, August 6, 2014.

    The Inter-American Commission has also noted that the approach to domestic violence of police officers is problematic in the region:

    As for the specific conduct of the police, various research studies have found that the police do not regard the problem of violence against women as a priority among criminal offenses and tend not to believe the victims when they report threats of imminent violence, even when specialized units have been established and a number of training programs introduced to make police more sensitive to gender issues (IACommHR, Access to justice for women victims of violence in the Americas, 2007).

  85. 85.

    Fiscalía General de la Nación, Informe de Gestión 2013–2014, p. 29.

  86. 86.

    Taking into account that the majority of women victims of domestic violence are older than 20 years, educational attainment can be a proxy measure of their socioeconomic status (SES).

    Education is perhaps the most fundamental aspect of SES. Higher levels of education are associated with better economic outcomes (e.g. likelihood of employment, income, less financial hardship), more social and psychological resources (e.g. greater sense of control, more social support) (American Psychological Association 2007, p. 9).

  87. 87.

    Interview with a lawyer of Secretary for Women of Bogotá, July 28, 2014.

    Similarly, the Inter-American Commission has observed that “[w]omen of means have far greater access to the justice system than do economically disadvantaged women” (Inter-American Commission on Human Rights, Access to justice for women victims of violence in the Americas, 2007, par. 184).

  88. 88.

    From 2005 to 2011, there were 357,078 reported cases of domestic violence and 1970 convictions for this crime.

  89. 89.

    United Nations Office on Drug and Crime, The Handbook on Restorative Justice Programmes, 2006, p. 8.

  90. 90.

    I chose these two criminal offenses to make this comparison for the following reasons. Interpersonal violence is similar to domestic violence; in fact, some justice officials use the regime of interpersonal violence to circumvent the rules of domestic violence in less serious cases.

    Weapon possession and domestic violence were part of the crime control agenda of 2007. Law 1142 increased the prison penalties and expanded pretrial detention for both offenses. Thus, this comparison shows the differential effects of the implementation of the crime control measures.

  91. 91.

    The measure is:

    Ratio of inmates per reported cases of a particular crime = number of prisoners for that particular crime divided by the cases reported of that particular crime.

  92. 92.

    This criminal offense regulates weapons of self-defense, so the data analyzed in this section only refers to unlawful possession of weapons of self-defense. My analysis does not discuss possession and trafficking of military weapons.

  93. 93.

    Control of weapon possession was central to ensure public security in the Democratic Security Policy of President Uribe. See, e.g. http://www.policia.gov.co/imagenes_ponal/dijin/revista_criminalidad/vol47/14.pdf

    Gun control has been a strategy to reduce violent crimes.

    http://www.policia.gov.co/imagenes_ponal/dijin/revista_criminalidad/vol52_1/07Elcontrol.html.

  94. 94.

    A police officer explained that National Police gives incentives for arrests of offenders of weapon possession.

    See, for example, Policía Nacional de Colombia, Lineamientos Generales de Política para la Policía Nacional de Colombia. http://pdba.georgetown.edu/Security/citizensecurity/Colombia/politicas/lineamientospolicia.pdf.

  95. 95.

    Sally Merry notes that police officers and courts subvert laws that criminalize domestic violence in many parts of the world (Merry 2009, p. 51).

  96. 96.

    Interview with a lawyer of Secretary for Women of Bogotá, July 28, 2014. Interview with a lawyer of the NGO Humanas, August 6, 2014.

  97. 97.

    Interview with a lawyer of Secretary for Women of Bogotá, July 28, 2014.

  98. 98.

    Interviews with Director of CAVIF and prosecutors of CAVIF, July 28, 29 and 30, 2014.

  99. 99.

    The lawyer of the Secretary for Women of Bogotá noted that applying other criminal offenses was a frequent practice of prosecutors and family commissioners to avoid the rules on domestic violence (Interview, July 28, 2014).

    I observed a conciliation hearing at a Family Commissioner’s Office in which the facts were identified as interpersonal violence to allow conciliation, even though this incident constitutes domestic violence according to the Criminal Code. The father slapped his 6 years old daughter as a form of discipline and caused a small injury. The Family Commissioner explained that she was applying the provisions about interpersonal violence because she thought this act was not serious enough to send the father to jail (Conciliation hearing at Ciudad Bolívar, Bogotá, June 10, 2014).

  100. 100.

    The Attorney General’s Office uses the case disposition index to measure the management of cases during a period. This represents the number of ended cases (outgoing) as a percentage of registered cases (incoming).

  101. 101.

    Interviews with Director of CAVIF, prosecutors of CAVIF, and a lawyer of the Secretary for Women of Bogotá, July 28, 29 and 30, 2014. Interview with a lawyer of the NGO Humanas, August 6, 2014.

  102. 102.

    A prosecutor of CAVIF claimed that after he describes the legislation, some victims do not come back to his office, and he has to close the case for lack of evidence (Interview with a prosecutor of CAVIF, July 28, 2014).

  103. 103.

    Interviews with Director of CAVIF, prosecutors of CAVIF, July 28, 29 and 30, 2014.

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  1. School of Law, Pontificia Universidad Javeriana, Bogotá, DC, Colombia

    Astrid Liliana Sánchez-Mejía

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Sánchez-Mejía, A.L. (2017). Assessing the Effects of the 2004 CPC on Victim’s Rights. In: Victims’ Rights in Flux: Criminal Justice Reform in Colombia. Ius Gentium: Comparative Perspectives on Law and Justice, vol 62. Springer, Cham. https://doi.org/10.1007/978-3-319-59852-9_4

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