This blog was published by The Bar Council on 06 August 2020
By Toby Cadman
Poppy Henderson contributed to this article.
The global Covid-19 pandemic has placed state institutions across the globe under significant strain, and Colombia is no exception. The restrictions imposed upon certain essential services on the one hand, and the greater demands placed upon others, have heightened organised criminal activity. The pre-existing overcrowding across the prison estate has further led to questions being necessarily asked regarding the transparency of the rule of law within the region.
Problems created by Covid-19 in Colombia have been seen to directly affect investigations in process. Such hindrances include the lack of access to paperwork and material relating to cases. Through this, prosecutors and defence lawyers will struggle to be able to analyse and manage material in a satisfactory manner, and this in turn may affect compliance with certain legal principles and matters affecting those involved in the cases that sit outside the judicial system.
In the same way, this problem affects investigations in the procedural stage of fiscal investigation (post-crime), since not having 100% of governmental and non-governmental officials in practice obviously slows down the investigative processes of obtaining information as well.
This material includes the collection of elements of previous convictions, as well as the case building process and the presentation and formulation of evidence against defendants.
Resultantly, the focus must be on guaranteeing that defendants in the region do not wait prolonged periods of time to have their case heard and to limit unnecessary (and sometimes entirely unjustified) detention. In light of the UN Subcommittee on the Prevention of Torture’s calls to reduce detention populations in March, the risk of Covid-19 spread in overcrowded prisons is particularly dominant in the region and places such defendants at even further health risk. The existence of unsanitary conditions and lack of access to water in several of Colombia’s prisons (such as La Modelo) highlight the greater need for a balance to be struck between the protection of inmates, and their rights of access to legal services immediately.
The resources, or the lack thereof, only exacerbate this position. With a heightened dependency on humanitarian aid, in conjunction with the present lack of accessibility in the region, the greatest threat to justice begins to unfold through the damaging threats to the state’s economy, which has been expected to contract by 5.5% this year. The government has designated 30 trillion pesos to respond to the coronavirus crisis and another 30 trillion in credit guarantees. As increased funding is crucial to allow the government’s ability to comply with its human rights obligations, such moves indicate a step in the right direction of effective protection to those made most vulnerable during the pandemic.
However, the present lack of resources, seen in conjunction with the restriction in accessibility, must also be considered alongside the increase in organised crime during the pandemic, which has contributed further to the restraints on the efficiency of the rule of law.
Armed groups, including the National Liberation Army guerrillas, the Popular Liberation Army and the Gaitanist Self-Defences of Colombia have used violence to enforce compliance with lockdown measures. Humanitarian workers have claimed that armed groups in parts of Nariño, Arauca, Putumayo, and Guaviare have not allowed people, including those who are sick, to leave their homes at all during curfews.
The ability of the armed groups to seek rule not only through brutality, but also by having political capital and legitimacy with local populations in Latin America, has been bolstered by the pandemic. The Colombian government is obligated under the International Covenant on Civil and Political Rights to protect the right to life and physical integrity by taking adequate preventive measures against reasonably foreseeable threats, including those instigated by organised criminal groups and other armed groups. International humanitarian law is also applicable to all parties to ongoing armed conflicts in Colombia and prohibits deliberate attacks on civilians and requires respect for their rights. In light of Colombia’s failing resources and ability to control the guerrillas, the nationwide access to legal services will remain hampered until either the pandemic lessens, or political stability can be struck.
Unsurprisingly, human rights defenders have also been forced to limit their activities significantly in order to reduce the threats to employees. The rampant increase in murders of activists by armed groups ultimately presents a pressing threat on the resources of Colombian police forces, who are less equipped to provide protective measures. Activists have also received multiple death threats and rightfully, are highly concerned that during the pandemic, they will be acted upon. Therefore, many are still waiting for the government to respond to a longstanding request for collective protection measures.
Such news still occurs following the ruling of the 45th Civil Court of the Bogota Circuit, which provided that the state must guarantee the protection of humanitarian workers where they are subject to threats, in conjunction with effectively investigating the violations committed against them. Primarily, the ruling recognised a systematic failure of the state in its duty to protect the social justice leaders. Despite its different legal instruments, the National Government of Colombia has fallen significantly short of the ability to effectively identify human rights threats and to define adequate prevention policies for those at risk.
The Government has not given satisfactory results in its criminal policy to offer truth, justice and reparation to leaders and victims. The coronavirus pandemic therefore cannot be a legitimate excuse for failure to comply with the order.
Similar concerns for the rights of women are raised by the existence of infrastructural inadequacies. A report has found that 590 police forces in Colombia lack the basic infrastructure, including the internet, to take domestic violence calls. Colombia is among the three countries with the highest levels of inequality in Latin America, with only 35% of households in rural areas having access to water in their homes, and 87.5% in urban areas. The impacts of the prevention of humanitarian workers to assist in the region where they were able to do so before is therefore felt far more severely. In addition to this disadvantage, many rural communities and poor urban populations find that the actions they need to take to prevent the spread of the virus are in tension with the basic needs of food and water. Efforts to resolve widespread poverty remain to be seen as the crucial first step towards ensuring services remain accessible in the face of states of emergencies.
In order to establish stronger safeguarding mechanisms, the root causes of inequality and austerity leading to the prevention of uniform access to services must ultimately be addressed and resolved. Only in this way can Colombia provide a level of transparency and accountability that is sufficient to establish democracy that can protect human rights at a level needed in the midst of a global pandemic.
Toby Cadman, is a barrister at Guernica 37 and a member of the Bar Council's International Committee with a practice in international law and human rights.
Poppy Henderson contributed to the article. Poppy is a Junior Associate at Guernica 37 International Justice Chambers.