THE RIGHTS OF PERSONS DEPRIVED OF THEIR LIBERTY
A. INTRODUCTION AND LEGAL FRAMEWORK
1. Background and Legal Framework
1. Numerous complaints and information from government and private sources required the Inter-American Commission on Human Rights (the "Commission," the "IACHR" or the "Inter-American Commission") to prepare an analysis of the conditions of imprisonment in Colombia. Numerous and serious problems within the prison system led the Commission to characterize, in the press release it published following its on-site visit, "deplorable prison conditions" as one of the most worrisome aspects of the current human rights situation in Colombia.( 1 )
2. Article 5 of the American Convention on Human Rights (the "Convention" or the "American Convention") applies to people deprived of their freedom and establishes the right of all people to "physical, mental and moral integrity." Torture and cruel, inhumane or degrading punishment or treatment are prohibited. Article 5 establishes additional special guarantees for persons deprived of their liberty, based on the fundamental principle that, "[a]ll persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person." These guarantees include, for example, the obligation to separate accused persons from convicts. Article 7 of the Convention includes provisions regarding the circumstances under which a person may be detained and held. There also exist instruments pertaining to detainees adopted within the context of the universal system for the protection of human rights. For example, the United Nations International Covenant on Civil and Political Rights, Standard Minimum Rules for the Treatment of Prisoners( 2 ), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment( 3 ) establish standards and norms for the treatment of detainees.
3. As regards domestic law, the Political Constitution of Colombia establishes the right to freedom and regulates the conditions of imprisonment.( 4 ) It also prohibits torture and "cruel, inhumane or degrading treatment or punishment".( 5 ) Parallel provisions exist in the legislation. For example, the Code of Criminal Procedure establishes that all detainees deprived of freedom "shall have the right to treatment which respects their human rights, including the right not to be subjected to cruel, degrading or inhumane treatment."( 6 )
2. The Current Prison Situation
4. Based on its on-site visit, the Commission was able to determine that the human rights of people detained in Colombia have not been respected. Based on its visit to Cárcel Modelo prison in Bogotá, for example, the Commission concluded that the conditions in said prison constitute cruel, inhumane and degrading treatment of detainees.( 7 )
5. A crucial element of these human rights violations is prison overcrowding. By mid-1997, the Colombian prison system housed more than 40,000 detainees in 176 prison facilities designed for 28,000 persons. Approximately half of the detainees had not been sentenced and were awaiting final sentencing. In most cases, contrary to norms in effect at the time, these detainees were housed with people who had already been sentenced. Services and minimum rights (access to medical and legal services, outdoor privileges, access to employment, family visitation, access to sports and libraries) are difficult to obtain and, in many cases, can only be secured by paying prison personnel or the hierarchical chain of prisoners who, through tacit or explicit delegation by the guards, control parts of the prison. Such conditions cause violence and crime within the facilities, lead to frequent riots, destroy motivation for rehabilitation, and push prisoners into a world of violence and unlawfulness.
6. The Colombian authorities acknowledged this situation in meetings with the Commission during its visit to Colombia and have explained the various measures that are being implemented to alleviate it. However, the scope of the problem is such that only decisive judicial, legal and administrative action can produce a qualitative improvement in the general situation. The Commission would like to emphasize that despite the difficulties, there are prison system authorities, guards, and personnel who do implement innovative measures and demonstrate personal initiative, with dedication and altruism, in an attempt to resolve specific situations.
7. At the same time, the Commission received repeated information regarding corruption in Colombian prisons that affects the human rights of the detainees. For example, with respect to the delegation of authority over certain areas to "internal chiefs", complaints were received which indicated that mini-fiefdoms had been created which possessed de facto authority and which charged fees for access to services, protection, etc. The Commission also received information regarding corruption in food contracts, which leads to the deterioration of the already minimal food standards. Furthermore, complaints were received regarding systems of illegal charges by unscrupulous government officials for the authorization of statutory detainee rights.
8. An investigative commission of the Congress of the Republic has noted, in relation to the prison crisis, that:
the multiple manifestations of violence and non-conformity present in the country’s prisons are a clear demonstration of the Government’s lack of preparedness, reflected in a series of factors such as the absence of a clear and appropriate criminal policy, the current socioeconomic, political and institutional crisis affecting the country, and the slow processing and high level of impunity associated with criminal cases handled by the Colombian justice system.( 8 )
9. In her interview with the Commission, then Minister of Justice Almabeatriz Rengifo acknowledged the serious overcrowding conditions in the prisons and the Government’s reluctance to invest resources in sustaining the infrastructure of the common prisons and penitentiaries, favoring instead the construction of high security facilities and special imprisonment centers. At the same time, the Government demonstrated its commitment to promoting integral reform of the Colombian justice system within one year, particularly in the area of criminal law. Other governmental measures are being implemented, as described later in this Chapter.
10. The unequal investment in different categories of prison centers implies that prison conditions vary from one facility to another. The Commission was able to conclude, for example, in its visit to the maximum security prison in Itagüí, that conditions in this facility comply with prevailing international standards. The Commission highlights the effort made by the Government to guarantee the human rights of all prisoners detained there. Nevertheless, the Commission is concerned with the marked difference which currently exists between the maximum security detention centers--where leaders of criminal groups are detained, including armed dissident groups and drug trafficking cartels--and the centers where the majority of prisoners are detained.( 9 ) The Commission believes that the Itagüí prison should serve as a model for other prison facilities.
B. PRISON OVERCROWDING
11. Overcrowding dominates penal facilities. The average overcrowding rate for the entire system is 142%, but this figure reaches 332% at the Bellavista detention center, where 4,980 people live in a facility designed for 1,500 people; 275% in Villahermosa, where 2,514 detainees live in a facility with a capacity of 914 people; and 222% at the Cárcel Modelo in Bogotá, which houses 4,275 prisoners in a prison designed for 1,920.
12. Statistics demonstrate that this overcrowding is neither chronic nor unsolvable. In fact, although overcrowding was 14.17% in 1990, this situation had ceased to exist by 1992. Since that time, however, overcrowding has again begun to increase.
13. The Commission witnessed horrific examples of overcrowding at the Cárcel Modelo prison and observed the conditions endured by prisoners in four patios and five special pavilions. The Commission viewed 30-square-meter rooms where approximately 80 people lie or sit. The Commission was also shown the spaces between roofs and ventilation ducts used for sleeping. The Commission also noted deficient sanitary services and saw the high-security cells where dozens of individuals are locked away for days without being allowed out.
14. The distortion of the prison investment policy, as mentioned above, aggravates the overcrowding situation. Between 1995 and 1997, investment favored the "high security pavilions," which house 400 "privileged" detainees who received 10 times more prison investment per capita than did the remaining 42,000 detainees.( 10 )
C. PROBLEMS ASSOCIATED WITH PREVENTIVE DETENTION, PRE-TRIAL RELEASE AND PAROLE
15. By the end of 1997, there were 19,812 detainees who had not been sentenced and 23,409 who had been sentenced. In other words, 45.85% of the prison population was comprised of people who had not been sentenced but had been deprived of their freedom.
16. Colombian legislation and practice provide special provisions for preventive detention as a security measure, which makes it difficult to apply alternatives such as house arrest.
17. Article 388 of the Code of Criminal Procedure authorizes prosecutors to apply security measures based on mere suspicion in most cases. When the public prosecutor decides to dictate security measures, these usually consist of pre-trial or "preventive" detention. For cases which are processed by the regional justice system, the only security measure permitted is preventive detention.( 11 )
18. The Commission has also received information indicating that not all defendants receive the same consideration when security measures are being imposed. According to this information, for example, those defendants with more resources or more influence have a greater likelihood of obtaining house arrest instead of preventive detention.
19. Once preventive detention has been ordered, it is extremely difficult for detainees to secure their freedom while awaiting trial. The Code of Criminal Procedure does allow pre-trial release under certain circumstances.( 12 ) However, the Commission has received information which indicates that there is a "systematic tendency" to not grant requests for liberty even when the objective requirements for such a ruling have been fulfilled.( 13 )
20. Access to the habeas corpus recourse as a mechanism for questioning the legality of preventive detention and obtaining freedom is also restricted. Colombian law requires that this writ be lodged before the same public official who the detainee believes caused his/her illegal detention. Furthermore, according to various studies, filing a request for habeas corpus is interpreted by some prosecutors as constituting an indication of guilt.( 14 )
21. The Commission understands, as has been reiterated on many occasions,( 15 ) that preventive detention is a special measure which should only be applied in cases where reasonable suspicion, and not mere presumption, exists that the defendant may flee from justice or destroy evidence. If preventive detention is utilized without meeting these standards, the principle of innocence and the detainee’s right to physical liberty, as protected in Articles 5 and 8 of the Convention, are violated. These rights are frequently violated in Colombian penal proceedings.
22. The violation of the rights of accused persons in detention are compounded, not only by the illegal and immoral physical conditions of confinement, but also by the extensive duration of trials which can easily go on for two or three years before a sentence is reached, in violation all of the time periods set forth in Colombian law. The defendant is usually detained throughout the whole process, even when acquitted in the first instance.( 16 )
23. Despite the fact that the number of judicial personnel almost doubled between 1985 and 1996, the average trial period is still approximately 1,000 days.( 17 ) The lack of public prosecutors and the difficult situation of all defense attorneys contribute to the delay. In recent years, more than 200 trial attorneys have been assassinated for exercising their profession. Trials usually last even longer if pressure is not exerted by a defense attorney.
24. The Code of Criminal Procedure guarantees pre-trial release when the established time periods for the penal proceedings have been exceeded.( 18 ) Nevertheless, pre-trial release has been restricted even in these cases. Faced with collective judicial action by millions of defendants whose legal time periods had been exceeded, prior administrations have declared states of emergency to keep these individuals in prison.
25. Keeping an accused person in pre-trial detention without finalizing the trial for periods "beyond the limits strictly necessary to ensure that he will not impede the efficient development of the investigations and that he will not evade justice," violates the presumption of innocence guaranteed in Article 8(2) of the Convention and the right to trial within a reasonable time period, established in Articles 8(1) and 7(5) of the Convention.( 19 )
26. According to a May 1997 report by the Superior Council of the Judiciary, another reason for the overcrowding is the difficulty of processing requests for parole by sentenced detainees. Parole is a benefit which sentenced prisoners may request after having served a set portion of their sentence with good behavior. The difficulty is due in part to the fact that, in accordance with the current Code of Criminal Procedure, requests for parole must be made to the Courts for Execution of Sentences.
D. JOINT IMPRISONMENT OF DEFENDANTS AND CONVICTED PRISONERS
27. The Commission received many complaints regarding the fact that accused individuals are usually imprisoned with convicted prisoners. The Commission was able to confirm that this situation exists during its visit. This situation openly violates both the provisions of Colombian domestic law and the provisions of the American Convention.
28. Article 5(4) of the Convention explicitly states that "[a]ccused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons." The Colombian Code of Criminal Procedure also states that "unless a final guilty verdict has been executed, no person shall be detained in premises established as sites for serving prison sentences."( 20 )
29. According to information received by the Commission, defendants without sentences do not receive treatment corresponding to their status. In fact, in some cases, they receive inferior treatment, as shall be demonstrated later in this Chapter. In these cases, the fact that they are not formal prisoners serving a definitive adjudicated sentence limits their access to available services.
E. DEFICIENCIES IN HEALTH SERVICES AND OTHER PROGRAMS FOR DETAINEES
30. In its visits to the prisons and through testimonies, the Commission received numerous complaints regarding the lack of medical attention and of other programs and services, including social rehabilitation programs in the detention centers in Colombia. On April 15, 1998, then Director of the National Penitentiary and Prison Institute ("INPEC"), Francisco Bernal, testified before Congress and noted that there continues to be a significant deficit of specialized personnel in psychiatric, social, pedagogic, health and legal areas in the prisons.( 21 )
31. The Minister of Health, María Teresa Forero, declared before Congress that, as far as the provision of health services is concerned, "the floating population" (those who have not been sentenced) have no right to continuous health services. Consequently, these detainees are in a worse situation regarding health services than that of the convicted prisoners. This situation conflicts with Colombian law. Article 408 of the Penal Procedures Code explicitly states that all detainees deprived of their freedom have a right to medical attention. The Minimum Rules for the Treatment of Prisoners also state that all penitentiary centers shall provide the services of physicians who shall care for the health of all detainees.( 22 )
32. The Commission also received complaints, in the presence of the authorities, regarding a case at the Cárcel Modelo prison wherein convicted prisoners who were ill went without medical attention for 36 hours because the medical provision contracts had not been renewed. The Commission also received credible evidence from different facilities that the infirmaries place 25 to 30 prisoners at a time, including injured and ill persons as well as AIDS-infected and psychiatric patients, in a single cell which measures 4 x 8 meters.
33. The Commission would like to reiterate that it is the State's responsibility to care for the physical and mental health of all persons in its custody. The State, in its capacity as administrator of the detention facilities, is the guarantor of the rights of the detained.( 23 ) If the State does not fulfill its obligation, by action or omission, it violates Article 5 of the Convention and, in cases of deaths of prisoners, violates Article 4 of the Convention.
34. The Commission received information indicating that the National Plan for Production Projects, which allows detainees to perform tasks in industrial or agricultural facilities, reaches only 4,200 prisoners, less than 10% of the prison population. However, the State has provided information indicating that it has implemented programs and workshops for industrial work, metalworking, baking, handicrafts, etc. which have benefited 10,253 prisoners. At the same time, education programs for detainees include 9,400 prisoners receiving formal education (24%), of which 6,000 are studying at a primary level and 3,400 at a secondary level. Furthermore, 1585 (4.1%) receive informal education at the secondary or higher education level (85 detainees). Another institutional program which has been implemented is related to the prevention of drug addiction.
35. The Commission continues to be concerned by the fact that these programs do not cover a significant percentage of the prison population.. In the case of convicted prisoners, the ultimate objective of sentences which impose deprivation of liberty is "the reform and social readaptation of the prisoners".( 24 ) An important part of this readaptation is ensuring that convicted prisoners have the opportunity to work for pay and to study.( 25 ) According to international standards, people detained in preventive prison must also be given the opportunity to work.( 26 )
36. Colombian prison centers have programs for female detainees, for mothers who are detained, for prisoners who are senior citizens and for indigenous detainees. They also provide access, though limited, to psychiatric treatment and integral drug addiction prevention programs.
F. INADEQUATE NOURISHMENT
37. The Commission received information indicating that the food provided to the prisoners is inadequate. The cost of providing food to the prison population is approximately 70,800,000 Colombian pesos per day, while the annual budget in Colombia for this purpose is only slightly more than 2,400,459,000 pesos.( 27 )
38. This situation infringes international standards and domestic legislation. The Minimum Rules for the Treatment of Prisoners state that every prisoner "shall be provided by the administration . . . with food of nutritional value adequate for health and strength."( 28 ) The Colombian Code of Criminal Procedure also guarantees the detainees' right "to receive adequate nourishment."( 29 )
G. RIGHTS OF DETAINEES TO MAINTAIN TIES WITH THEIR FAMILIES
39. The Commission has previously established the importance of the right of detainees to maintain ties with their families.( 30 ) In this sense, detainees generally have the right to receive visits by family members.( 31 ) This right must be even more encompassing for accused persons, since their separation from society is preventive, not punitive.( 32 )
40. At the Cárcel Modelo prison, the Commission gathered information indicating that the authorities do not allow detainees who have not been sentenced to see their families for time periods of up to a month. This situation appears to violate their rights. Furthermore, many of the prevailing conditions in Colombian prisons infringe upon the right of prisoners to maintain contact with family members. The Commission received reiterated information indicating that in some prisons the detainees or their families must secretly pay for visitation authorization. The security conditions in the detention centers also make family visitation difficult.
41. The Commission was also made aware of the fact that, in order to prevent the surreptitious introduction of drugs, a number of centers have implemented a general vaginal inspection requirement for female visitors. Female family members must consent to this examination in order to enter, often after having waited from 7 to 10 hours for visitation authorization.
42. The Commission has established that such generalized vaginal inspection systems constitute violations and has specified that the need for a vaginal inspection must be evaluated in each specific case. The Commission also established that the following four conditions must be present, in a particular case, for the vaginal inspection to be considered legitimate: (1) the inspection must be absolutely necessary to ensure safety in that particular case; (2) there must not be any other alternatives; (3) the inspection must be authorized by prior court order; (4) the inspection must only be performed by health professionals.( 33 ) Based on the information received, the Commission cannot conclude that the Colombian State is performing the vaginal inspections in accordance with these criteria.
H. CONSEQUENCES LIKELY TO CAUSE OTHER HUMAN RIGHTS VIOLATIONS
43. The general deplorable situation of Colombian prisons gives rise to consequences with a propensity to lead to additional human rights violations. During the first half of 1997, 60 riots occurred in Colombian prisons, giving rise to 8 inmate deaths and approximately 100 serious injuries. During one of these riots, at the San Isidro National Prison in Popayán, 585 family members joined forces with the prisoners and refused to leave the prison in order to call attention to the demands of the 1,120 detainees from different regions of the country who were serving sentences of more than 10 years.( 34 ) Fortunately, negotiations were successful, a series of demands were accepted, and the occupation ended peacefully.
44. Recently, following this tragic trend, on December 15, 1997, a guard was killed and three people were hurt in an armed rebellion carried out by the wives of the detainees in the Cárcel La Picota prison. In Popayán, six more deaths occurred and 20 people were hurt during a riot on April 23, 1997. In Bogotá, a riot on June 12, 1997 ended in 5 deaths and 20 injuries.
45. The riots at the Cárcel Modelo prison and the tragedies which occurred during their suppression led the Government to enter into negotiations with the detainees. The negotiations resulted in a series of measures to alleviate the situation, including a change of officials. The Commission, in its visit to said prison, witnessed the labor of the working group comprised of prisoner representatives, formed for the purpose of studying and proposing solutions to the legal and practical problems of life in prison. The Commission also learned about the creation of a Human Rights Committee at the facility. The Commission further learned of measures designed to prevent harassment and abuses and to punish those responsible, including through the administrative retirement of many guards. Finally, the Commission was informed of measures to improve public services and security based on a new directive ordering that revenge measures not be adopted against rioters.
46. Although these measures did not alleviate the overcrowding and its consequences, they had at least temporarily calmed the prevailing climate of tension, explosions of violence, and internal criminal activity. The pacification committees established after the riot had also begun to yield results. According to the prison director, "up until two months ago, it was not uncommon for there to be one or two deaths per day in the prison, but in the last 50 days there has only been one homicide."( 35 )
47. On April 14, 1998, detainees from two patios of the Cárcel Modelo prison rebelled against the assassination of an internal leader and took "justice" into their own hands, massacring those they believed to be the aggressors. The massacre cost the lives of 15 prisoners. The assassinated internal leader was the coordinator of one of the working groups created to reach agreement with the Government after the riots. In prior weeks, other assassinations had occurred which, according to the director, led up to the revenge killings. The weapons used in these violent acts had been secretly brought into the prison.
2. Internal Violence
48. Not only do Colombian prisons not fulfill basic prisoner rehabilitation and reeducation objectives, but they also serve as schools and recruiting spaces for turning people towards crime, drug trafficking and armed subversion. This situation is aggravated by the fact that there is currently an average of one guard for every eight prisoners; this figure is as high as one guard for every fourteen prisoners in some detention centers. According to INPEC and Ministry of Justice studies, a ratio of one guard for every five prisoners is needed.( 36 )
49. The overcrowding and lack of services and productive opportunities, coupled with the frustration of the prisoners detained due to simple procedural inefficiency, creates a climate of internal violence which turns prison facilities into centers for crime, increasing the likelihood of creating individuals who will confront the law again after leaving prison. These conditions are also at least partly responsible for "the alarming number of homicides, injuries, crimes against property and escapes from these facilities, aggravated by the problem of drug trafficking and drug consumption inside the prisons."( 37 )
50. According to information received by the Commission, 30 prisoners died and 150 were injured between January and May, 1998. An example of this violence is the attack which occurred at the Cárcel Modelo prison on April 7, 1998, during which prisoners from another part of the prison entered a security pavilion housing 60 detainees who needed special protection from attacks. The detainees in the security pavilion were stripped of their scarce belongings and one of them was hit and bruised.
3. The Lack of Control in the Prisons and its Effects on the Ability of the Government to Suppress Unlawfulness
51. The Commission must express its concern about another of the consequences of the ineffectiveness of the prison system in achieving its objectives. We refer to the inability to maintain a capacity to repress or effectively contain guerrilla groups, drug traffickers and paramilitary activity. The inability of the State to control criminals and detained defendants places the rights of the population in general at risk.
52. The current lack of control in the prison system and the influence that illegal groups can have on this system can be seen in an episode which took place on April 14, 1998 at the San Diego District Prison in Cartagena, where, according to newspaper reports, "seven prisoners escaped in the midst of a party involving drugs and alcohol, including five prisoners under investigation for paramilitary activities."( 38 ) The prison director admitted that every weekend there are parties in both men’s and women’s cells during which the detainees consume drugs and alcohol before the passive watch of the guards, stating that this irregularity is the product of rampant corruption among guards (in that district).( 39 )
53. The fugitives accused of links to paramilitary groups had been detained since February 28, following a joint operation by the Marines and the Police. According to the Police commander, this escape ruined an investigation of paramilitary groups begun in the Sucre and Bolívar Departments.
54. In another incident, in May 1998, the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia - "FARC") attacked the San Isidro prison in Popayán, enabling the escape of 330 people, many of them guerrillas.( 40 )
I. MEASURES ADOPTED BY THE COLOMBIAN STATE
55. The Colombian State recognized, in its observations regarding this Report, that the principal problems relating to persons deprived of their liberty are prison overcrowding, joint imprisonment of defendants and convicted prisoners, deficiencies in health services and other programs for detainees, and inadequate nourishment of prisoners. The State noted that the Constitutional Court also found these problems to exist in the prison system in its Decision T-153 of April 28, 1998 and ordered the State to eradicate them. The State informed the Commission that the Government of President Pastrana has developed a policy plan for the prison system entitled Institutional Development Plan 1998-2002.
1. Legislation Designed to Alleviate Prison Overcrowding
56. In December 1997, Law 415, known as the alternative sanctions law, was passed to attempt to alleviate the prison crisis, especially overcrowding, through making norms regulating parole more flexible. Generally speaking, parole is available to prisoners once they have served a specific period of their sentence and have demonstrated good behavior. The law allows sentenced detainees who are not eligible for parole to leave the prison without supervision for significant periods of time. Providing certain conditions are met, these prisoners may leave for weekends and for periods of up to 15 continuous days for a total of no more than 60 days per year. These provisions do not apply to prisoners convicted in the regional justice system.
57. This legislation will undoubtedly have a positive effect on prison overcrowding. Nevertheless, it has been the object of harsh criticism for allowing individuals already convicted of serious crimes to go free.
58. Also, new draft legislation introduced in 1998 would shorten the list of crimes punished by imprisonment. Thus, convictions for certain crimes, such as illegal possession of identification cards and incest, would be punished by a monetary fine rather than by deprivation of liberty. This new legislation would also broaden the category of crimes susceptible to early parole and would shorten the maximum sentence available for certain crimes. Finally, the legislation would allow certain convicted individuals to serve prison sentences in the hospital or in their homes.
59. The Commission commends the State for seeking out innovative solutions to the problem of prison overcrowding. Nonetheless, the Commission believes that the Colombian Government should focus its efforts above all on adopting stricter limits and controls on preventive detention and on speeding up criminal trials. These measures would protect the rights of the prisoners and the population in general most effectively.
60. Another priority for the State should be the construction of new prisons and the improvement and expansion of current infrastructure. It is estimated that the Colombian authorities would need more than 100 prisons equal to the size of the Bogotá Cárcel Modelo prison in order to carry out all of the arrest orders that have been issued.( 41 ) In this connection, the State has informed the Commission that three new prisons will be constructed with capacity for 1600 prisoners each. At the same time, the most important existing prisons will be expanded and remodeled to provide an additional 13,122 prison beds in the next four years.
2. Increasing Capacity through Private Concessions
61. One of the strategies for solving the overcrowding problem is the grant of private concessions for prison construction. The concessionaire would receive an advance to be put towards construction and an annual sum thereafter for maintenance and services. The first model to be built in Valledupar would receive 800 prisoners who would reside in cells of at least 30 square meters, with common areas for work and study activities, recreation, eating, legal assistance and visitation. Security within the prison will be INPEC’s responsibility. Unfortunately, there have been significant delays in the plans to construct these new prisons as a result of problems and even corruption relating to construction bids.( 42 )
62. Based on the analysis undertaken by the Commission regarding what it was able to directly identify in its visits to Colombian prisons and the information it received from public authorities and non-governmental organizations, the general conditions of prison establishments are inhumane and violate the American Convention on Human Rights and other relevant international instruments. In practice, the Colombian prison system is overwhelmed by prison overcrowding. Furthermore, it has demonstrated that it is unable to separate accused individuals from sentenced prisoners, to create the minimum security conditions needed to prevent internal criminal activity in its own facilities and to design and implement effective rehabilitation programs. This situation is aggravated by the rigidity of criminal legislation, lengthy judicial proceedings, and a failure to use security measures other than prison or to provide alternatives to serving complete sentences.
63. The reforms to the criminal legislation that are being implemented are positive. Likewise, measures for alleviating current specific situations do exist. However, the scope of these measures must be broadened and greater political, technical and financial energy must be invested to yield truly significant changes.
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
The State should adopt all measures needed to improve the situation in the
prison system and the treatment of detainees in order to fully comply with the
Political Constitution of Colombia, domestic legislation, and international
treaties ratified by Colombia. The Commission also recommends that the Minimum
Rules for Treatment of Prisoners and the related United Nations recommendations
be effectively applied as guidelines.
The State should detain, prior to sentencing, only those persons who truly
constitute a danger to society or those whom it is suspected would not comply
with the requirements of the legal proceedings. The decision regarding preventive
detention should be made, in relation to each individual case, by the appropriate
jurisdictional authority, in accordance with legally-established criteria.
The State should establish more expedient, less formalistic and more efficient
judicial processing mechanisms to speed up intermediate, final and parole-related
decisions, as well as decisions regarding other procedural benefits.
The State should consider the possibility of reducing the number of crimes
included as crimes that lead to preventive detention or sentenced incarceration,
excluding from this category those crimes which, by their nature, offer better
guarantees of security and rehabilitation without detention.
The State should take measures to increase the physical capacity of prison
The State should raise nourishment, living, hygiene, work, education and recreation
conditions to acceptable levels in compliance with international standards.
The State should grant detainees the benefits and privileges to which they
are entitled, especially family visitation, recreation, education and parole,
in an efficient and timely manner.
The State should separate detainees in preventive prison from sentenced prisoners,
who in turn should be grouped according to the type and severity of the crime
they have committed, the level of danger they represent, and their age.
The State should create and maintain job opportunities and productive education
systems for detainees, as well as rehabilitation and social readaptation measures.
The State should provide the prison system with the resources necessary to
act in accordance with international standards and laws in effect.
The State should provide preventive programs, permanent negotiation systems, personnel training, communication and information systems to prevent, minimize or suppress riots and other violent situations while respecting legal rights.
( 1 ) IACHR, Press Release 20/97.
( 2 ) Adopted August 30, 1995 and approved by Economic and Social Council Resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977 [hereinafter Minimum Rules].
( 3 ) A/RES/43/173, December 9, 1988.
( 4 ) See, e.g., Arts. 28, 30.
( 5 ) See Art. 12.
( 6 ) See Art. 408.
( 7 ) IACHR, Press Release 20/97.
( 8 ) Diagnosis of the Prison Situation, Report of the Official Commission, Second Commission of the Chamber of Representatives, Congressional Gazette, July 22, 1997, Year VI No. 279 [hereinafter Prison Situation Diagnosis].
( 9 ) The Commission notes that, in accordance with Colombian law, some senior public officials and others are detained in special facilities and not in ordinary prisons. See Code of Criminal Procedure, Art. 403. This difference in treatment is difficult to justify by security reasons alone or other reasons legitimately related to the goals of their detention, due to the existence of regular high security prisons, such as the Itagüí prison.
( 10 ) "Cuánto demora un proceso judicial?" El Tiempo, April 13, 1997.
( 11 ) See Code of Criminal Procedure, Art. 388.
( 12 ) See id., Art. 415. Grounds for pre-trial release are more restricted for cases processed in the regional justice system.
( 13 ) National University of Colombia, School of Law and Political and Social Sciences, Juridical-Social Investigations Unit, Justicia sin rostro: Estudio sobre la justicia regional.
( 14 ) See id.
( 15 ) See IACHR, Report No. 12/96, Case 11.245 (Argentina), March 3, 1996, pars. 48, 49, 50; IACHR, Report No. 2/97, Multiple cases (Argentina), March 11, 1997, par. 51.
( 16 ) This situation results from the procedure in the regional justice system pursuant to which the sentences of acquittal by regional judges must be revised "in consultation" with the National Tribunal before allowing the detainee to be set free.
( 17 ) El Nuevo Siglo, April 19, 1997, cited by Prison Situation Diagnosis.
( 18 ) See Code of Criminal Procedure, Art. 415.
( 19 ) I/A Court H.R., Suárez Rosero Case, Judgment of November 12, 1997, pars. 75, 77.
( 20 ) Art. 400.
( 21 ) El Tiempo, April 15, 1998.
( 22 ) See Arts. 22-25.
( 23 ) See I/A Court H.R., Neira Alegría et al. Case, Judgment of January 19, 1995, paragraph 60; IACHR, Report No. 28/96, Case 11.297 (Guatemala), October 16, 1996, paragraphs 58, 59.
( 24 ) American Convention on Human Rights, Art. 5(6).
( 25 ) See Minium Rules, Arts. 71-77.
( 26 ) Id., Art. 89.
( 27 ) See "Las cifras del hacinamiento", El Tiempo, August 31, 1998.
( 28 ) Art. 20.
( 29 ) Art. 408.
( 30 ) See IACHR, Report No. 38/96, Case 10.506 (Argentina), October 15, 1996.
( 31 ) See id.; Minimum Rules, Art. 79.
( 32 ) See Minimum Rules, Art. 92.
( 33 ) See IACHR, Report No. 38/96, par. 72.
( 34 ) El Tiempo, January 12, 1998.
( 35 ) El Espectador, December 7, 1997; Testimony received during the Commission’s visit.
( 36 ) "Las cifras del hacinamiento," El Tiempo, August 31, 1998.
( 37 ) Report on the Prison Visits by the Subcommission of Representatives of the Second Commission, National Congress, 1997, reproduced in Desenrejar, No. 1, April-June 1997, at 7.
( 38 ) El Tiempo, April 14, 1998.
( 39 ) Id.
( 40 ) "Colombia: plan guerrillero para liberar a sus militantes presos", El Tiempo, May 28, 1998.
( 41 ) "Hay 214.907 sindicados sin capturar", El Tiempo, January 5, 1998.
( 42 ) See "Bloqueado saqueo de recursos de prisiones", El Tiempo, August 31, 1998.