Category Archives: Legal Analysis

Bolivian Political and Social Landscape: Primer for Pending Presidential Elections

As the presidential campaigns gain momentum, AIN outlines the political and social landscape in Bolivia to provide background to understand upcoming electoral debates.

President Evo Morales is running for a third term in the October 12, 2014 elections.  Critics argue he is not eligible to run for another consecutive term, but the Plurinational Constitutional Tribunal ruled in his favor, and the opposition across the political spectrum lacks a strong, unifying candidate.  Four candidates have formally registered to run against Morales.

Bolivian Government Achievements

  • Macroeconomic success:
    • From 2009 to 2013, Bolivia’s economy experienced steady growth.

1 GDP growth

The population living in extreme poverty fell from 38% in 2005 to 24% in 2011.

2 poverty

  • Bolivia has accrued a significant “rainy day fund.”  According to the New York Times,  “Bolivia has the highest ratio in the world of international reserves to the size of its economy, having recently surpassed China.”
  • Employment rates and wages have both steadily increased under Morales. The minimum wage increased in 2013 from about $145 USD (1,000Bs) to about $174 USD (1,200Bs) a month.
  • Double holiday bonus: In November 2013, President Evo Morales decreed that all employers must pay a double holiday bonus to all employees.  Previously, the bonus was one month’s salary paid in December.  The double holiday bonushad a mixed reception, celebrated by workers, but criticized by many employers and small business owners.
  • Social programs: The Morales administration started several popular cash transfer programs, including benefits to school children and pregnant mothers, which have promoted significant decreases in maternal and infant mortality as well as increases in school attendance and high school graduation.
  • Gas income: The Bolivian government has strengthened the economy by increasing state hydrocarbons revenues as a result of the 2004 hydocarbons law, the 2006 Nationalization Decree, and high gas prices.  This income has permitted significant investment in infrastructure and social programs.

Coca Leaf and Drug Control

  • In 2013, Bolivia successfully petitioned the United Nations to recognize legal coca cultivation and uses within its borders.
  • The Morales administration has achieved sustained reductions in the cultivation of illicit coca leaf using a system of community coca control. (26% reduction from 2010-2013).
  • Unlike previous military forced eradication, this innovative model relies on coca grower participation.  This model guarantees subsistence and enables coca growers to diversify their income, leading to greatly reduced human rights violations.  For more information see this WOLA-AIN memo.

3 eradication
Source: Bolivian Vice-Ministry of Social Defense

  • Bolivia currently has less than half as much coca as Colombia and Peru.  Yet inexpensive and abundant Peruvian cocaine paste base floods through Bolivia to Brazil and other consumer countries, offsetting national control efforts.
  • The Morales’ administration has diligently pursued drug interdiction after the 2009 expulsion of the US Drug Enforcement Agency, reporting significantly increased seizures. However, the great bulk of cocaine sales and profits trafficking occur outside Bolivia’s border, limiting the impact of these initiatives.
  • In spite of tensions, US-Bolivian on-the-ground collaboration on coca reduction continued productively until September 2013, including a trilateral agreement, including Brazil, to improve monitoring technology.

Challenges facing the Morales Administration 

  • TIPNIS issue: In spite of much rhetoric about protecting the rights of Mother Earth, the Morales administration has gone ahead with plans to build a highway through the Amazon, including the TIPNIS, a national park and indigenous territory.
    • This is an enduring point of contention in the country, most notably among lowland indigenous peoples who led two marches to La Paz to protest the lack of prior consultation of TIPNIS resident about the project, which is guaranteed by the 2009 Bolivian constitution.  Both marches, in 2011 and 2012, were met with police repression from the government. The segment of the construction project within the territory is on hold, but may be resumed.  Critics highlighted contradictions with the administration’s pro-indigenous and environmental discourse and its handling of the incident.
  • The lowland indigenous umbrella organization, CIDOB, and its highland counterpart CONAMAQ are both split between factions that support the MAS ruling party and its vocal opponents.
  • Policies of extraction vs. environment: One of the most significant challenges for the MAS administration has been balancing multi-sector demands for basic services financed primarily by extractive industries with its rhetoric of protecting and living in harmony with nature.
    • Bolivia’s economy has always been heavily reliant on extractive industries such as mining and hydrocarbons that have a substantial environmental impact.  Conflicts often arise in mining communities over the benefits of mining income versus the damage to the environment.  In addition, continuing contamination, such as the recent bursting of a damn holding toxic mining tailings in the Chuquisaca department, exacerbates the Morales administration’s inherited legacy of environmental degradations from centuries of mineral exploitation.
  • Violence Against Women: Violence against women and children has always been startlingly prevalent in Bolivia.  In March 2013, the Bolivian Congress passed a comprehensive a law to address these issues, which contained progressive ideas and preventative measures.  However, the government lacks the resources and political will to fully implement the law.  See this AIN update for more information.

4 violence stat

  • Unsafe abortions: This is another concern for women in Bolivia.  Abortions are illegal except in the case of incest, rape, or if the mother’s life is in danger. Pro-choice advocates had a partial victory in a February 2014 constitutional tribunal ruling that upheld the illegality of abortion, but threw out the rule that requires women to get a judge’s consent in the three permitted exceptions.  (See Emily Achtenberg’s article in NACLA for more information on this ruling.)  Lack of access to and information about sexual and reproductive health combined with cultural taboos and widespread sexual violence put women’s health at risk and severely limit their choices.  Although they are illegal, an estimated 60,000 abortions are performed in Bolivia each year, and only 46% of them are performed without complication.  See this AIN update for more information.

5 abortions
Source: La Razón

  • Judicial delay and prison overcrowding: The Bolivian justice system suffers from tremendous judicial delay, resulting in lengthy pretrial detention, as well as severe prison overcrowding.  Only 17% of prisoners in Bolivia are actually serving their sentence, while the other 83% are merely awaiting trial, which could take years.  After prison riot and fire that killed 35 people, Morales a pardon and amnesty decree in September 2013.  However, to date the pardon has benefitted only about 800 people. More comprehensive reforms, including the reduction of disproportionately high drug sentences (drug war prisoners make up almost half of all inmates) need to be enacted.

6 prisoners
Source: La Opinión

  • Legacy of dictatorships: Unlike neighboring Chile and Argentina, which initiated some legal action against those involved, impunity for authors of human rights violations continues in Bolivia.   A group of survivors of the dictatorship have maintained a vigil for more than two years outside the Ministry of Justice, demanding acknowledgment for the crimes of the dictatorship and the declassification of military files from the dictatorship era.  In 2004, the Bolivian government passed a law guaranteeing compensation to victims, but modifications have reduced the initial promised aid to 20%, and only 1,714 of the 8,000 who applied were approved to receive benefits.  See this AIN update for more information, as well as this Amnesty International report and BBC article.

 

7 dictatorship march
Photo: Gonzalo Ordoñez for AIN

Bolivian-US Bilateral Relations

  • A mutual lack of trust is the single largest impediment to improved bilateral relations.  This lack of confidence should be addressed as a prerequisite for reinstatement of ambassadors. In spite of a lack of ambassadors, bilateral relations have varied, depending on the skill of the Chargés and other officials from both nations.
  • A lack of transparency on the part of USAID and credible allegations that the agency was inappropriately aiding lowland opposition led Morales to expel Ambassador Goldberg in 2008.  USAID in Bolivia did not follow international agreements on development. See AIN background.
  • The Morales administration responds positively to genuine diplomatic gestures.  For example, November 2008 meetings with US congressional leaders permitted the sort of frank exchanges that can create rapport and lay the basis for more regular dialogue and better mutual understanding. See WOLA and AIN analysis on bilateral relations.
  • US decisions to “decertify” Bolivian drug control efforts since 2008 are increasingly disconnected from reality. Governments in the region continue to see the US determinations as offensive and politically motivated. More information here.
  • US funding steadily decreased since 2008.  Although the Narcotics Affairs Section, the Drug Enforcement Agency, and USAID are now gone, Bolivia has compensated with funds from its own treasury and increased support from the European Union.
  • Request for extradition of ex-President Gonzalo Sánchez de Lozada: Widespread resentment continues for the US refusal to extradite the ex-president for the death of 69 protestors in October 2003. Although US officials claim the charges are politically motivated, two-thirds of the Bolivian congress, where Sánchez de Lozada’s own coalition had a majority, voted to indict him. The Bolivian government submitted a new extradition request on July 10th, 2014 and the US has promised to respond within sixty days. The US is expected to reject this initiative.
  • US citizen Jacob Ostreicher accused of money laundering:  Although US representatives and Sean Penn have argued for Ostreicher’s innocence, charges against Ostreicher appear credible. He was subject to protracted pre-trial detention in violation of his due process rights, as is every Bolivian arrested on drug charges under drug legislation imposed by the US in 1988.  There was also a great deal of corruption around his case on the part of some Bolivian government officials.  He escaped from Bolivia at the end of 2013 and is considered a fugitive by Interpol.

Conclusion

Recurring protests and strikes from diverse sectors, including transportation workers, university students, and milk and meat producers have characterized the political and social landscape in the past few months.  However, this does not necessarily equate to discontent with the Morales administration.  Rather, many sectors are strategically taking advantage of election momentum to leverage to get demands met.  As one indigenous protester explained, “We’re not the opposition.  We just want the respect of our people and our rights and a solution.”

Although the administration’s performance has been mixed, Morales still enjoys widespread support and his party will most likely retain a majority in both houses of congress.  Furthermore, the opposition on both the left and the right lack a strong, representative, unifying candidate.  It is likely that Bolivian voters will opt for continuing the status quo.

Bolivian Prison Deaths Highlight Flaws in Judicial and Penitentiary Systems [with VIDEO]

Please take a look into the life of nonviolent drug inmates in Bolivian jails in this video clip [El Mario – Las Cárceles de Bolivia], developed in collaboration with Violeta Ayala and Dan Fallshaw of Cocaine Prison.

On September 11, 2013, President Morales signed a pardon decree designed to benefit between 1,000-2,000 inmates.  The Bolivian congress must still approve the measure. (AIN will post a summary and analysis of the decree soon.)  The pardon decree was a response to an August 23rd riot-turned-fire that killed 35 people in Palmasola prison, including a small child.  A small group of prisoners from the maximum-security block of this Santa Cruz prison attacked other inmates, using kitchen propane tanks as flamethrowers.  Fire spread in the prison, leaving many dead and 58 people with 2nd- and 3rd-degree burns over most of their bodies.

The tragic fire is the result of overcrowding, extremely poor prison conditions and infrastructure, and collapsed judicial and penitentiary systems.  Most Bolivian prisons are filled many times beyond their capacity.  Palmasola, the largest penal facility in Bolivia, was built for 600 people, but currently houses 4,725 prisoners.  While Bolivian prisons have a relatively low level of violence, the extreme overcrowding, understaffing, and poor infrastructure make it difficult for prison staff to monitor and control the tiny, violent minority.

Source: Red Participacion y Justicia


Source: Opinión

The overcrowding is largely due to judicial delay.  Delays are attributed to many factors:

  • Case overload
  • Lack of public defenders
  • Lack of state prosecutors
  • Lack of judges
  • Vacancies in leadership positions
  • Lack of economic resources
  • Suspension of trail without notifying the accused
  • Delays in formal accusations

 

Source: Puente Investigación y Enlace

 

Source: Puente Investigación y Enlace

 

Source: Puente Investigación y Enlace

 

Overcrowding began with Law 1008, US-imposed drug legislation dating to 1988.  Law 1008 greatly intensified punishment for drug-related offenses and caused a massive influx of prisoners into a system that lacked, and still lacks, the ability to handle such a high volume of cases.  Most of these prisoners committed nonviolent crimes, mostly low-level drug production or transport done out of economic necessity.  Currently, 33% of the entire prison population has been incarcerated on drug charges.

 

Source: Puente Investigación y Enlace

Please see AIN’s update, “Prison Detainees in Bolivia: Bad Fruit of a Slow Judiciary System,” for more analysis about the prison and judicial systems in Bolivia and the role of US-imposed anti-drug legislation.

Constitutional Tribunal to Rule on Bolivia’s Abortion Prohibition: Religious and Political Debate Eclipses Public Health Crisis

Constitutional Tribunal to Rule on Bolivia’s Abortion Prohibition: Religious and Political Debate Eclipses Public Health Crisis

The Bolivian Constitutional Tribunal is considering the constitutionality of the country’s abortion legislation.  The emotionally charged and morally focused debate in Bolivia has eclipsed public health crisis of abortion and the risks that Bolivian women face trying to exert control over their bodies.  Lack of access to and information about sexual and reproductive health combined with cultural taboos and widespread sexual violence put women’s health at risk and severely limit their choices.  Examining data about abortion and sexual and reproductive health provides a fact-based perspective about the health issues and complicated social dynamics surrounding abortion.

Incidence of Abortion in Bolivia

Estimates of how many women abort every year in Bolivia range from 60,000 to 80,000.   The following chart is based off of the most conservative estimate:

Abortions Performed in Bolivia Per Year

Abortions performed in Bolivia per year 60,000
Abortions that result in some complication 27,500
Deaths from abortion malpractice 5,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Source: La Razón

The following statistics are from a survey carried out by Marie Stopes International Bolivia and the Center of Information and Development of Women of women ages 15-49 in low-income, peri-urban neighborhoods in Sucre, Santa Cruz, Cochabamba, La Paz, and El Alto.

 

 

 

 

 

 

 

 

Abortion Legislation

Bolivia’s 2009 constitution guarantees sexual and reproductive rights.  As such, advocates for decriminalization have pointed out that the abortion laws in the 1972 criminal code are unconstitutional.  On these grounds, an Aymara congresswoman from President Morales’s party (Movement Toward Socialism – MAS) challenged the constitutionality of the abortion laws and other stipulations of the code in the Constitutional Tribunal, which has the final legal say in Bolivia.

Under current Bolivian legislation, abortion is only legal in the following cases, and requires a judges’ consent:

  • If the pregnancy was the result of rape, kidnapping (without subsequent marriage), or incest or sexual molestation (but only if legal charges have been pressed).
  • If the abortion is indispensable to protect the mother’s life or health[i]

In all other cases, a woman who obtains an abortion can be sentenced to one to three years in prison.  The person who causes the death of a fetus can be sentenced to three months to nine years, depending on the circumstances.[ii] The legislation includes disturbing and vague language; for example, if the abortion was committed to “save the honor of the woman,” the person who performed the abortion receives six months to two years, rather than one to three years.

In May 2013, the UN Committee Against Torture stated that the requirement for a court order in these cases “creates an insurmountable impediment for women in this situation, who are forced to resort to illegal abortions, with the accompanying health risk.“

The member State must guarantee that women rape victims who decide to voluntarily end their pregnancies have access to safe abortion attention and must eliminate any unnecessary impediments to this….The Committee urges the member State to evaluate the impact on women’ health of the existing legislation, which is very restrictive on the abortion issue. (p. 10-11)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Source: La Razón

Abortion “Debate” Within MAS and Overall Society

Although the ruling MAS party is often characterized as a monolithic force, there is no consensus within its leadership on the abortion issue.  Morales has not personally supported changes to abortion laws.  On July 19th, Morales stated,  “Of course we have to discuss this issue.  It’s my understanding that any abortion is a crime, but we need to have an official cabinet debate so that the government can define its position…Fortunately, we have a lot of knowledgeable [women] cabinet members with character who can give us a well-argued explanation on this issue.”  In contrast, cabinet member Claudia Peña affirmed, “I think that abortion should legal.  We also need to strengthen our efforts to give people greater access to information about their sexual and reproductive rights and unlimited access to birth control.”

The loudest voices in Bolivia’s abortion debate appear driven by moralistic and emotional rhetoric.  Arguments from those who want to maintain the criminalization of abortion range from declarations of abortion as a sin to assertions that foreign governments and international non-governmental organizations are behind the push to legalize abortions in order to control Bolivia’s population.

Throughout Bolivia, there have been sizeable demonstrations against decriminalization, as well as many demonstrations in favor.  In Cochabamba, some parents reported that their children’s schools obliged students to go to the anti-abortion march on August 27th, threatening to fail the child if he or she did not attend.  The Catholic University in Cochabamba cancelled classes during the march so that students could attend.

On July 22nd, 2013, the Catholic Archbishop of Santa Cruz claimed that international foundations are promoting population control and the legalization of abortion as well as using their own resources to modify the criminal code.  This opinion has also been expressed in editorials and anti-abortion demonstrations.  During the demonstration held on August 27th, anti-abortion protesters made many claims, including that the US government is secretly trying to promote abortion in Bolivia to keep the population in countries like Bolivia down.

Although Bolivia is officially a secular state, religion has undoubtedly entered the political debate about abortion.  The indigenous leader of MAS’s parliamentary bloc in the lower house of congress, Emiliana Ayza, declared that she believes abortion is “murder that is a sin in the eyes of God.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Source: International Journal of Gynecology and Obstetrics

More Facts and Figures[iii]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



[i] Bolivian Penal Code, Article 266

[ii] Any person who causes the death of a fetus in the womb or its premature removal can be sentenced to three months to nine years, depending on the circumstances: (Bolivia’s Penal Code, Articles 263-269)

  • A woman consenting to an abortion or performing an abortion with her consent (1-3 years)
  • Failed attempts to abort are not punishable by law
  • Accidental abortion (3 months-3 years)
  • Abortion performed to protect a woman’s honor (6 months-2 years) and up to 1/3 longer if she dies as a result
  • Practitioners who regularly carry out abortions (1-6 years)
  • One year of service/work for the a person who provokes an abortion
  • One to three years if the abortion was practiced with the consent of the woman
  • With the woman’s consent, and resulting in injury (1-4 years); 50% longer if the woman died as a result of the abortion
  • Without the consent of the woman, who sustained injuries as a result (1-7 years), if she dies as a result of the abortion (2-9 years)
  • Without the woman’s consent or younger than 16 years-old (2-6 years)
  • Without the woman’s consent, resulting in her death (2-9 years)
  • Physical, psychological, or sexual violence against a woman that causes an abortion— (4-8 years) from new “Comprehensive Law to Guarantee Women a Life Free of Violence,” passed on March 9th, 2013.  See AIN’s update on the law.

New Law Mandates Harsh Penalties and Broad Services to Address Violence Against Woman in Bolivia

On March 9th, 2013, the Bolivian government passed a new comprehensive and progressive law to combat violence against women.  The law includes preventative measures, wide-ranging services to survivors of abuse, and severe penalties for violence against women.  The law represents a great advance from previous legislation, which did not consider spousal rape a crime and dictated sentences of only 4-10 years.  The impetus for the new law was in large part from several high-profile, brutal attacks over the past few months.  While the law is a victory for women’s rights advocates, it real impact remains to be seen.  Sources of funding for the ambitious new programs and services have yet to be defined, and compliance and enforcement of the new law will be an uphill battle.

Recent High-Profile Cases

On Monday, February 11th, a police lieutenant stabbed his ex-wife, journalist Hanalí Huaycho, 15 times.  On the same night as Huaycho’s attack, a woman from Santa Cruz was stabbed 17 times by her husband.   Just two days later, another female journalist was brutally assaulted by her boyfriend, also a police officer.

These attacks come in the wake of a December 2012 scandal that captured two members of the Chuquisaca Departmental Assembly on a security camera raping an employee who had passed out during an office Christmas party.  The footage was widely broadcast by Bolivian television stations.

These incidents reveal the deep flaws in the legal system and its failure to protect Bolivian women against violence.  Huaycho had denounced her ex-husband, Jorge Clavijo, 14 times since 2008. Huaycho reported that Clavijo beat her, cut the breaks of her car, and locked Huaycho and their six-month old son inside a vehicle and threw tear gas inside.  However, her attempts to obtain protection from Clavijo only resulted in death threats to her and her lawyer.  Minister of the Government Carlos Romero affirmed that Clavijo enjoyed police protection.

There was immediate public outrage over Huaycho’s death, including a demonstration in La Paz.  Police tear-gassed protesters, among which were the wife of the vice-president, the president of the Chamber of Senators, the president of the Chamber of Deputies, the president of the Permanent Human Rights Assembly, and the Autonomy, Justice and Communications Ministers.

The attacks provided impetus for the government to pass a new, comprehensive law with preventative measures as well as harsh sanctions against offenders.  It is important to note, however, that in Bolivia and around the world, countless cases of violence against women are invisible to the media.

Scope of Violence Against Women in Bolivia

Source: Los Tiempos

The Comprehensive Law to Guarantee Women a Life Free of Violence

President Morales passed the “Comprehensive Law to Guarantee Women a Life Free of Violence,” on March 9th, 2013.  The law is extremely ambitious and comprehensive, with provisions for educational and awareness programs, practical measures to prevent reoccurring violence, plans to rehabilitate offenders, detailed descriptions of 15 different types of violence against women, and strict sanctions against offenders.

Highlights of the new law include:

  • Increased and harsher sentences for violence against women
    • Sentences increased from 4-10 years to 20-30 years.
    • Spousal rape is now a crime, and adds five years to the standard rape sentence.
  • Comprehensive sanctions against a wide range of types of violence against women
    • The law defines 15 categories of violence against women, including violence in the media; violence against the honor, dignity, and name of women; patrimonial and economic violence; and institutional violence, which includes purposely delaying or denying access to services.
  • Culturally sensitive and inclusive language, including:
    • A guarantee of equal opportunities regardless of ethnic origin or sexual orientation
    • An intercultural perspective
  • Priority of service to rural areas, where incidents of violence are greater
  • Training programs about violence against women in all public institutions and health institutions
  • Media campaigns to inform and sensitize the population about the causes, types, and consequences of violence against women
    • The media must provide a minimum, free broadcast space to the government.
  • A sanction against holding public office for those with convictions related to violence against women
  • New requirements for people in public posts or services related to women to have training and experience in either themes of gender, women’s rights, or human rights
  • Participation of social organizations and civil society organizations dedicated to women’s rights in the design, evaluation, and management of public policies against violence
  • Compliance and the adoption of prevention strategies for indigenous, Afro-Bolivian communities, and autonomous territories
  • Curriculum about peaceful conflict resolution, human rights, and violence against women in the education system, including at the university level
  • Sanctions for people in positions of authority who fail to report violence
  • Access to job placement systems and training for women in shelters
  • Rehabilitation of offenders, including therapy and conflict resolution training
  • Comprehensive protocols for protecting women after an act of violence, including procedures to recover her possessions and secure safe housing
  • Sanctions against “media violence,” including sexist language
  • Sanctions against economic violence
    • It is now a crime to hinder a women’s ability to generate income.
  • Free medical certificates for women who require treatment for violence

Enforcements, Funding, and Lack of Clarity Complicate Law’s Implementation

While the new law is ambitious and progressive, there are several causes for concern.  It includes problematic gray areas, which could provoke conflict.  For example, the law states that it will regulate the media, but does not specify how, which could lead to protests of censorship.  It also requires the media to adopt a self-regulated ethics code regarding portrayals of women, but does not specify its content or mechanisms for enforcement.  In addition, the new law stipulates that workplaces must have a “system of flexibility and tolerance” for women in situations of violence, but fails to provide the means to evaluate these measures.

Furthermore, the question still remains of how the government will fund all the mandatory educational programs, sensitivity training, prevention mechanisms, rehabilitation programs, mass media campaigns, and increased law enforcement.  The language regarding funding is extremely vague; the law states that necessary adjustments must be made in 2013 budgets, but does not say where institutions should obtain this money.   Silvia Vega, a representative of the Integrated Feminine Education Institute (IFFI) explained that although there may be laws protecting women on paper, there is no budget to implement them, and because of this, the existing three laws and five decrees that legislate against violence against women have not been enforced.

Source: Los Tiempos

In addition, although the law specifically states that indigenous communities, Afro-Bolivian communities, and those living in autonomous territories are also subject to this law, in most cases, these communities lack the resources and infrastructure to properly implement it.

In conclusion, while the law represents a significant advance in the fight against violence against women, its successful implementation faces tremendous challenges.

Wall Street Journal Warps Impact of American’s Arrest in Bolivia

The Wall Street Journal’s recent article from August 1st, “Jailed American’s Drug Case Stokes Tension With Bolivia,” fails to acknowledge the many discrepancies in the Ostreicher case, dramatically exaggerates the effect the case has had on Bolivian-US relations, and contrives false connections between Ostreicher’s case and other drug-related cases.  Prolonged pretrial detention and harsh conditions take a dramatic toll on prisoners and their families.  However, the fact that Ostreicher is imprisoned under a law that the US pressured Bolivia to pass is noticeably absent in the article’s extensive discussion of US-Bolivian relations and the drug war.  (Please see the AIN report, “Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions.”)

US-Bolivian Relations

“The case of an American jailed in Bolivia without trial for more than a year is gaining increased attention from human-rights groups and members of the U.S. Congress, adding to frictions between the U.S. and Bolivia over the country’s antidrug efforts.”

  • Although one Bolivian human rights group criticized the proceedings early in the case, international human rights organizations have not emitted any public statements regarding the Ostreicher case.
    • While the issue has clearly rubbed both Bolivian and US government officials the wrong way, there has yet to be any tangible impact on the countries’ relations or bilateral drug cooperation.
      • In fact, Republican Representative Chris Smith has been an outspoken critic of the US government’s lack of attention to the issue.  On August 2nd, Representative Smith introduced a bill he calls the “Justice for Imprisoned Americans Overseas Act” that would ban travel to the US by foreign officials from countries in which American citizens “unjustly languish in their prisons.”  The bill has so far not made it out of committee, and GovTrack.us estimates it has a 3% chance of passing.
      • In response to Smith’s bill, Bolivian Vice-President Alvaro Garcia Linera responded:
        • The US does not have moral grounds to stand on considering it has been protecting Bolivian ex-president Gonzalo Sánchez de Lozada for more than eight years, who has been accused in Bolivia of genocide for the events of the 2003 Gas War.
        • The attitude the US has taken towards the Ostreicher is blatantly hypocritical given the harsh sanctions the US has imposed on Bolivians in the fight against drug trafficking.  It appears to have a double standard when it comes to its own citizens in Bolivia.

“The Bolivian government has had an increasingly fraught relationship with the U.S. government over drug policy.”

  • Although friction persists over these and other issues, bilateral relations have recently improved. On the ground, daily cooperation between the Narcotic Affairs Section of the US embassy and Bolivian drug control officials and agencies continues.
  • Other US officials have also recognized Bolivian counterdrug efforts.  In October 2011, Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, William Brownfield, told a congressional committee, ”In Bolivia, eradication efforts are a highlight of a sometimes difficult bilateral relationship and actually exceeded the 2010 target of 8,000 hectares. These efforts appear to have stopped the expansion of coca cultivation…Furthermore the U.S. estimate that actually showed a 500 hectare decrease in land under coca cultivation.  In Bolivia, U.S. assistance, including support for training and canine programs, has resulted in Bolivian seizures of coca leaf that are 19 times higher than they were a decade ago.”

“Mr. Morales expelled U.S. antidrug agencies from Bolivia in 2008 after accusing them of interfering in Bolivia’s political affairs…”

  • The Bolivian government announced it would expel one agency, the US Drug Enforcement Agency (DEA) in November, yet the much larger US Narcotics Affairs Section (NAS) of the Embassy continues to fund antidrug and coca control efforts – albeit with a reduced budget – and coordinates with the Bolivian government on a daily basis.
  • US Chargé de Affaires John Creamer confirmed on July 15, 2012 that “NAS is staying…[Its] mission is changing as a result of the Bolivian’s government’s nationalization of the drug war, an initiative we welcome…so we are approving less operating costs and emphasizing training more.”

“Mr. Ostreicher’s lawyer says his client is being used by Bolivia to get back at the U.S. after a Miami court last year sentenced Gen. Rene Sanabria, Bolivia’s top-ranking antidrug official, to 14 years in jail for trying to smuggle cocaine into the U.S….Relations sank further after Gen. Sanabria was sentenced.”

Drug Control Record

“Concerns about Bolivia’s role in the international cocaine trade have risen in recent months. A U.N. study released in June showed the cultivation of coca, the raw material in cocaine, has risen more than 20% since Mr. Morales took office in 2006, and Brazilian federal police report a rise in drug trafficking to Brazil from Bolivia.”

“’The Bolivian government has failed in its struggle against narcotics trafficking and wants to camouflage its defeat and surrender to the drug trade by waving Jacob as a trophy,’ said Yimmy Montano, Mr. Ostreicher’s attorney, who is scheduled to testify Wednesday.”

  • While the international drug trade remains a pernicious problem for the Morales administration, the Bolivian government has made significant strides against illegal coca production and drug trafficking in recent years.
  • The UN released their last coca cultivation study in September 2011.  It concluded that “there are 31,000 hectares of coca crops in Bolivia, a 0% increase, which reflects stability in the evolution of the size of the coca crop.”  Preliminary reports suggest that the UNDOC will report a 12% reduction in Bolivia ‘s coca crop to 27,000 hectares, less than their estimate for 2006, Morales’s first year in office.
  • While cultivation of coca initially rose during Morale’s tenure, cooperative coca reduction is beginning to show results, and coca production has actually decreased significantly in the past year.  Although US and UN statistics vary, John Creamer, the highest-ranking US official in Bolivia, also affirmed there has been an “impressive reduction” in coca production in the past year, and the statistics provided are reliable.  Creamer stated, “During the last three years, the Bolivian effort has been impressive; in 2009 they eradicated 5,400 hectares, in 2010, the amount went up to 8,200, in 2011 it reached 10,500 hectares…In 2010 and 2011, we saw an impressive net reduction in the number of hectares of coca.  In other words, they have eradicated more than they replanted, and this is an important achievement for the Bolivian government.”
  • The 2012 International Narcotics Control Strategy Report also notes: “The government took significant steps to control coca production in the Chapare.”  In addition, “The FELCN [Bolivian antidrug police] achieved numerous high-profile successes during 2011,” and “ Bolivia intensified coca eradication efforts, reporting the eradication of more than 10,000 hectares for the first time since 2002, even as eradication forces continued to meet resistance from coca growers.”
  • Bolivian and Brazil law enforcement signed multiple bilateral agreements that seek to contain drug trafficking. One important achievement is the arrest and extradition of Maximiliano Dorado in 2010, a large-scale Brazilian trafficker residing in Bolivia who sold land to Jacob Ostreicher and partner through their associate, a Colombian woman previously romantically linked to Dorado. This land sale, and Ostreicher’s meetings with Dorado were stated as sufficient evidence to maintain Mr. Ostreicher in custody.
  • Furthermore, that the Bolivian government is “waving Jacob as a trophy” is an exaggeration.  In fact, the Ostreicher case has received little attention in domestic press.  Most articles have been brief, and primarily report the US reaction to the case.

Accusations of Morales Administration’s Ties to Drug Trade

“The case comes as Bolivian President Evo Morales’s government is scrambling to defend itself against allegations that it protects drug traffickers.”

“Brazil recently granted asylum to a leading Bolivian opposition senator, who claimed to be the victim of death threats and trumped-up criminal investigations after denouncing on the Senate floor what he said were Bolivian government links to drug traffickers.”

  • Pinto accused high-ranking Bolivian official of connections with same trafficker, Maximiliano Dorado, who owns the land that Ostreicher farmed—this is the only apparent connection between the cases.
  • The case of the Senator Roger Pinto is not connected with Ostreicher.  His asylum request seems to have been a dramatic political maneuver. Pinto has a long history of vehement opposition to MAS.[1]
  • In 2010, opposition senator Roger Pinto made highly public but vague denunciations, accusing the Morales administration of having ties to drug traffickers and covering up said ties.  However, these claims were never substantiated.  Most recently, in July 2012, the right-leaning sensationalist Brazilian magazine, Veja, published an article called, “The Cocaine Republic,” alleging that Minister of the Presidency Juan Ramon Quintana and former Miss Bolivia and current Regional Director of Development of Beni Jessica Jordan met with convicted Brazilian drug trafficker Maximiliano Dorado.[2]

Discrepancies in the Ostreicher Case

The case has been riddled with contradictory information and odd accusations even from the defense:

  • For example, it seems questionable that Ostreicher and his partner would chose to invest approximately $25 million dollars through a Colombian woman they barely knew in a country in which they had no experience.  Also, Ostreicher did not speak Spanish or have any experience in agriculture.
  • Apparently, Ostreicher and his partner did not have access to legal documentation of their investments. They claim that after three years, they discovered that the land they were farming still belonged to a Brazilian drug trafficker.
  • Furthermore, Ostreicher has given misleading and inaccurate portrayals of the Bolivian prison.  In an interview with ABC’s Nightline, he showed a cell with nothing but a mat on the floor; however, prisoners are free to bring furniture, personal belongings, appliances, etc. into their cells.
  • The conditions that Ostreicher faces in Palmasola Prison are clearly harsh, but there is no indication that he has been treated differently from other prisoners.  According to the United Nations High Commissioner of Human Rights (UNHCHR), “the delays that have occurred in Mr. Ostreicher’s case are not unusual.”[3]  (Please see AIN report, “Prison Detainees in Bolivia: Bad Fruit of a Slow Judiciary System.”)

In addition, there have been questionable circumstances regarding the family’s campaign for Ostreicher.

“The Bolivian government denies it is holding Mr. Ostreicher for political reasons. “Mr. Ostreicher is being investigated for presumed crimes of money laundering and links to people involved in drug trafficking,” said Fernando Rivera, the lead prosecutor in the case.”

  • While Ostreicher has endured a lengthy wait for his trial, this is by no means atypical in Bolivia.  As confirmed by the UNHCHR office in Bolivia, “many of the procedural delays that have occurred in Ostreicher’s case are commonplace throughout the Bolivian judicial system,” and “the delays which have occurred in Mr. Ostreicher’s case are not unusual.”[4]

“Mr. Ostreicher said he came to Bolivia on August 2010 to check into reports that the company that he co-owns, Coliagro SA, a Bolivian agriculture venture that produces mainly rice and soy, had been swindled in land deals by its local administrator.”

  • The article omits some important background information.  According other press accounts, Ostreicher invested from $25,000 to $200,000 USD in a rice business in which his Swiss partner, Andre Zolty, invested a combined $25 million USD on the recommendation of Colombian Claudia Liliana Rodriguez.  Ostreicher had never been to Bolivia, did not speak Spanish, and had no experience in agriculture.  Ostreicher and his partner’s choice to invest in a country, sight unseen, and without any capacity for oversight provoked prosecutors’ suspicion.  Prosecutors also produced a 2009 marriage certificate for Ostreicher and one of Rodriguez’s employees, which further complicates the investigation.

“Bolivian police arrested the administrator in April 2011 based on Mr. Ostreicher’s complaints, and she is now in a Bolivian jail awaiting trial on charges of “illicit enrichment.” She has pleaded innocent.”

  • Police arrested Rodriguez on money laundering charges during an investigation of trafficker Maximiliano Dorado’s properties.  Bolivian police allege she has ties to Dorado and a Colombian drug trafficker charged with transporting 944 kilos of drugs to Argentina from Bolivia.

“The Bolivian government is accusing Mr. Ostreicher of laundering money for an alleged Brazilian kingpin, Maximiliano Dorado, who lived in Bolivia before his 2010 extradition to Brazil, where he is in jail awaiting trial on drug charges.”

  • Dorado is a convicted drug trafficker. He was serving a 15-year sentence in Brazil for drug trafficking, murder, and money laundering, but escaped from prison in 2001.

“One of the administrator’s deals was a land purchase from Mr. Dorado. Bolivian prosecutors viewed the link as evidence against Mr. Ostreicher and arrested him. Mr. Dorado couldn’t be reached to comment.”

  • Although Rodriguez claimed that she had purchased the land for them, Ostreicher and his partners’ rice farm was still legally in Dorado and his brother’s name, as a result, the property, equipment and contents are subject to confiscation under Bolivian drug laws.

“Mr. Smith, the congressman, said he witnessed a June 11 bail hearing in Bolivia in which the prosecutor, Mr. Rivera, threatened to penalize the presiding judge if the hearing was held.

  • Fernando Rivera is a legal advisor for the Bolivian Government Ministry, not the lead prosecutor.

“Mr. Smith said he was ‘shocked by how a clearly innocent man was being sent back to jail by a judge who was clearly intimidated.’”

  • Representatives of the Bolivian court system also perceived Smith’s attendance as an attempt to pressure the hearing’s outcome.

 “Mr. Ostreicher, 53, recently declared himself on hunger strike. His lawyers say he has lost about 44 pounds and his health is failing. Doctors who examined him last week recommended his immediate transfer to a hospital. He says that prison officials have refused to move him, his lawyers say.”

  • A hunger strike is clearly an extreme measure, but not uncommon in Bolivia.  During the same week in Bolivia, there were at least three other hunger strikes, including that of El Alto prostitutes demanding affordable sexually transmitted infections testing.
  • Ostreicher told the press he began his hunger strike in mid-April, three and a half months before the WSJ article was published.  There have been several warnings about his health since then.  However, when US embassy officials requested that medical personnel within the prison, as stipulated by Bolivian regulations, to verify his condition and advocate for his transfer to a hospital if necessary, but Ostreicher initially refused. He has since been released for medical treatment and returned to prison.

Conclusion

Ostreicher was denied bail for a third time in his most recent hearing on August 30th, 2012.  Under Bolivian law, as Ostreicher does not have fixed residency in Bolivia or sufficient ties to Bolivia, he does not meet the conditions for bail.

While Ostreicher’s judicial process has been protracted and tedious, the Wall Street Journal’s attempt to inflate this case into a bilateral dispute over drug policy is not helpful to Ostreicher or the many other prisoners awaiting trail on drug charges under the US-authored Law 1008.



[1] Pinto’s dramatic and highly public request for asylum in Brazil seemed to be a politically motivated attempt to stir up conflict.  As a member of the opposition, Pinto may have been trying to drive a wedge between MAS and Brazil at a particularly delicate time when with the recent cancellation of a contract with a Brazilian company to build the Amazonian highway through TIPNIS and the imminent summit of the Organization of the American States in Bolivia.  Interestingly, although Pinto is from Pando, which borders Brazil, and could have easily crossed the border to leave his country as he himself admits in a dramatic letter published in the press, he decided to go to the site of MAS’s power, in La Paz, and hole up in the Brazilian embassy.

Pinto was a support and member of dictator Hugo Banzer’s party, National Democratic Action (ADN) and Democratic Social Power (PODEMOS), which evolved out of ADN.  Pinto is a close ally to Leopoldo Fernández, the former governor of Pando who was is awaiting sentencing for his role in the massacre of eleven people in the remote Pando province in September of 2008.  Although Pinto was not legally implicated in the massacre, a Bolivian diplomat accused Pinto of being an accomplice.

[2] Inter-American Security Watch’s translation of the article: http://interamericansecuritywatch.com/bolivia-the-cocaine-republic/

[3] Email Communication, “Report on Meeting with UNHCHR” from Felicia D. Lynch. 12 July 2012 included in http://foreignaffairs.house.gov/112/HHRG-112-FA16-WState-MooreS-20120801.pdf

[4] Ibid

Prison Detainees in Bolivia: Bad Fruit of a Slow Judiciary System

Prison Detainees in Bolivia: Bad Fruit of a Slow Judiciary System

On June 3, 2011, the Bolivian antidrug police arrested Jacob Ostreicher, an Orthodox Jew from Brooklyn, New York, for money laundering and involvement with drug trafficking.  Ostreicher, a flooring contractor who had invested in a rice-growing agricultural venture, had come to Santa Cruz to oversee his business venture when he was arrested.  Ostreicher has been in the Palmasola prison in Santa Cruz, Bolivia for over a year awaiting trial.  After several hearings, the judge ordered on September 23, 2011 that Ostreicher be released. A week later, the judge reversed his decision.  A new judge was assigned to the case, but this judge recused himself, and no other judge has been appointed.

Bolivian Prisons: Poor Conditions and Severe Overcrowding

Jacob Ostreicher is not the only prisoner in Bolivia detained for over a year without trial.  On June 25, 2012, the National Prison Administrator reported that 84 percent of Bolivian prisoners are detainees, like Ostreicher, waiting for trial.[i]  The article also pointed to the slow court system that continuously postpones trial dates, as well as citing the statistics provided by the 2011 annual report of the United Nations High Commissioner for Human Rights, stating that Bolivia prisons designed to house 4,700 inmates actually house 7,500 persons.[ii]  The UNHCR office also highlights that recusal of judges, changes in prosecutors, and extension of judicial deadlines in cases like Ostreicher’s are extremely common, and that “the delays that have occurred in Mr. Ostreicher’s case are not unusual.”[iii]

Origins of Prison Overcrowding in US-Imposed Drug Legislation

Part of the problem is rooted in legislation passed under substantial pressure from the US government.  Law 1008, passed in 1988, overhauled Bolivia’s anti-drug legislation, greatly intensifying punishment for drug-related crimes.  Among many other things, the law imposed longer and harsher sentences than those of non-drug-related crimes and placed the burden of proof of the accused (which violates the Bolivian constitution), the majority of whom lack the financial resources for an attorney.  Before its partial reform in 1999, Law 1008 also stipulated that those charged under the law were not eligible for pretrial release or parole once convicted.  (See: “Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions” for more analysis of the US role in the passage of Law 1008 and issues with the law.)

The impact of the harsh law was further exacerbated by “Bolivia’s notoriously weak, corrupt, and slow judiciary,” which simply did not have the capacity to deal with the sudden increase in cases.[iv]  After the imposition of Law 1008, “Trials often lasted five years or more before a sentence was declared.”[v]  As a result, Bolivian prisons soon swelled with people detained on low-level drug charges.  For example, “In one Cochabamba prison that receives prisoners from the Chapare, twenty times more prisoners entered the prison in 1994 than in 1987, the year before Law 1008 was passed.”[vi]  At the peak of the drug war, over 90 percent of all inmates were prosecuted under Law 1008.[vii]  Although law has since been reformed,[viii] the number of current inmates prosecuted by Law 1008 still hovers around 85 percent.[ix]

In summary, US-imposed drug legislation provided the framework that facilitated prison overcrowding by funneling a massive influx of prisoners into a judicial system that lacked, and still lacks, the infrastructure to handle that volume of cases.

Additional Analysis from Legal Expert

To further understand the Bolivian prison system, the Andean Information Network interviewed Joseph Loney, a lawyer who has practiced law in both the United States and Bolivia.

Why are there so many pre-trial detainees in Bolivia?

Actually, the percentage of people whose cases have not come to trial yet is more like 30-40 percent.  The configuration of rights of the accused in Bolivia includes the right to a speedy trial (debido proceso—due process).  In Bolivia, it takes two to three years to get to trial, as opposed to six months in Michigan.

Before 2010, a prisoner was free to go if his or her case did not come to trial within three years’ time. After two years, the accused had a right to be released on personal bond or bail.  In 2010, the Bolivian Constitutional Court ruled that there is no time limit in drug cases and other serious crimes.[x]

Why has the prison population increased?

In 2010, there were approximately 1,600 prisoners in Cochabamba; in 2012, there are 2,500 prisoners, reversing a previous trend[xi] and exacerbating prison overcrowding.  There are multiple explanations for this phenomenon.  Urban growth has increased the crime rates and caused per capita police-to-person rate to drop. Newly autonomous departmental governments often failed to disburse nominally larger law enforcement budgets, and international and federal funding for police appeared insufficient.   Growing public concern about law enforcement and mob violence in peri-urban environments led to pressure on legal authorities to “get tough on crime.” Unfortunately, many criticisms unfairly blamed the 1999 Criminal Procedures Code, which instituted significant due process guarantees for the accused, for citizen insecurity.  The Bolivian legal system has responded to public opinion with the following measures.

  1. Sentences have increased.  For example, first-degree offenders for aggravated sexual assault receive 20 years, which is a mandatory minimum sentence, and could be sentenced up to 25 years.  Judges have increasingly handed out longer maximum sentences to appear tough on crime.
  2. The accused are detained before trial.  Judges want to allay public fears by locking up the accused immediately, in an effort to prevent a “revolving door” syndrome, where the accused may be given “pre-trial release” but commit another crime before his or her trial.
  3. In 2010, the passage of Law 007 modified criminal procedures and expanded the pre-requisites for pre-trial release, making it even more difficult to obtain bail.
  4. The judges’ dockets are overflowing with cases.  The courts have few resources to make the “speedy trial“ a reality.
  5. Even if the accused is initially acquitted, the prosecution can repeatedly appeal the ruling, and the person must stay in jail throughout this lengthy appeal process.  Although the Criminal Procedures Code attempted to restrict this type of appeal, the practice has become commonly accepted again.
  6. A recently passed Citizen Safety law establishes harsher penalties for some crime, but also sets badly-needed guidelines and quotas for law enforcement budgets and oversight, and creates division of labor between local and national entities as well as other measures designed to reduce crime.

Why is plea-bargaining rare in Bolivia?

The Bolivian legal system began to employ plea-bargaining in 2003, although infrequently.  In the United States, over 90 percent of the criminal cases are resolved through plea bargains.  Realistically, only about 10 percent of the cases in the US can be tried before a jury or judge.  In Bolivia, a plea-bargain is an option for only six months, even though trials average about two years from the time of initial detention.  Trial and detention periods in drug trafficking cases can be even longer.  As a result, virtually all cases go to trial, creating further judicial backlog.

Bolivia has inherited the Spanish model of justice: the trial is the tool to discover the historical truth; in an ideal world, judges try to determine what factually occurred through testimony.  Unfortunately, the number of judges has not increased to meet the swelling caseloads.  Constant vacancies even at the highest level of the judiciary[xii] and long interim replacements, often reticent to make unpopular rulings, exacerbate the problem.  In Bolivia, detainees awaiting trials, those awaiting further appeals, and those who have exhausted all their appeals reside in the same facilities.

Why are prerequisites for pre-trial release hard to meet?

  • The accused must have an established domicile. For renters, there must be a rental agreement[xiii], something low-income Bolivians rarely possess.
  • The accused must demonstrate that they have employment (a written contract, in which the employer pays taxes).[xiv] Many employers refuse to provide these contracts in order avoid paying workers’ benefits and to avoid audits.  About 70 percent of the Bolivians are employed in the informal sector—self employed or working “under the table.”
  • Third, the accused must have family ties in the area where the trial is to take place, such as a spouse, children, parents or siblings.  Many people in the lower classes have trouble showing that they have ties to the community.
  • The risk of flight can keep the judge from granting pre-trial release.[xv]
  • The risk of the accused obstructing justice, as for example, influencing the witnesses,[xvi] can prevent the judge from granting bail.  Even if the first four requirements can be fulfilled, it is hard for the accused to prove a negative–he or she will not flee.  The judge is inclined to keep the accused in prison to avoid any possible obstruction of justice.  The Criminal Procedures code states that there need only be “sufficiently convincing elements that the accused is probably the author of or a participant in a punishable act.”[xvii]

Although Bolivian law respects the right to a defense, the public defenders’ office is grossly underfunded and under-staffed—a huge impediment for low-income people facing trial. Furthermore prisons, with some exceptions like El Abra near Cochabamba, do not have space for private attorney-client conference.  Time alone with the client is essential for the accused to develop trust in the lawyer and prepare the defense.

What legal benefits exist for prisoners?

Several legal options exist in Bolivia to reduce time served in prison.  With the exception of sexual assault, drug trafficking, and first-degree murder, crimes in which the offender must serve “flat time,” or time in calendar years, the inmate can work off his or her sentence.

Two for one: For every two days of work/school, one’s sentence is reduced by one day.  If one works for 365 days, one reduces one’s sentence by six months.  This is called good time, redención (reduction of the sentence).[xviii]

Early release: After serving half of their sentence, inmates may get formal, legal employment outside the prison.  This is called extramuro[xix] (outside the walls), a work release program.  People convicted of three crimes: sexual assault, drug trafficking, and first-degree murder are ineligible for this benefit.  All prisoners, however, can qualify for parole after serving two thirds of their sentence.

Legislation has been proposed to begin to address the deplorable living conditions within the prisons and the slow judiciary process. One, the Humanitarian Pardon bill, seeks to provide release or home detention for 40 percent of Bolivia’s prisoners.  People under 21 or over 60 years old, people with terminal illnesses, first time offenders, or prisoners with sentences of less than eight years would potentially benefit from the legislation.  Current legislation allows home detention for people over 60 and terminally ill inmates, but this is rarely enforced. New measures would enable some of the accused to wear electronic surveillance bracelets in lieu of imprisonment. Other proposed reforms including new regulations to provide access to social services, psychological care, lawyers, and the judiciary.  Cameras would be implemented to reinforce security.

The Bolivian law and constitution provide guarantees that cannot always be enforced.  For example, the accused have a right to an interpreter if Spanish is not his or her first language.  But the system cannot pay for this, so the benefit rarely materializes.  Also, if the trial takes place close to the scene of the crime, but the accused is imprisoned in another city, he or she must pay for transportation to court and the meals for the accompanying guards.  If prisoners cannot pay for transportation, they cannot show up for trial.

Conclusion

Unfortunately, the Bolivian justice system is stymied by a lack of resources, inefficiency and harsh, sometimes externally imposed legislation.  The system is not set up for speedy trials.  New facilities geared for rehabilitation with an included facility for young offenders and the passage of legal reforms that ensure social, psychological, and legal services show that the wheels of the Bolivian justice system are grinding slowly along towards its idealized goals.  But in the meantime, tragically, many detainees are behind prison walls, waiting for their trials, even their initial hearings, in an overextended, underfinanced judicial system.



[ii]See also the Department of State report on “Bolivia Report on Human Rights Practices 2011,” in which the human rights violations are identified as “arbitrary or unlawful deprivation of life, arbitrary arrest or detention, and denial of fair public trial. Other human rights problems included harsh prison conditions, official corruption, lack of government transparency, violence and discrimination against women, and trafficking in persons.” The report also states that the government “took steps in some cases to prosecute officials who committed abuses, whether in the security services or elsewhere in the government.” See http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper

[iii] Email Communication, Report on Meeting with UNHCHR” from Felicia D. Lynch. 12 July 2012 included in http://foreignaffairs.house.gov/112/HHRG-112-FA16-WState-MooreS-20120801.pdf

[iv] Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of US Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.

Source: Linda Farthing, “Social Impacts Associated with Antidrug Law 1008,” in Coca, Cocaine, and the Bolivian reality, Madeline Barbara Leones and Harry Sanabria, eds. (New York: SUNY Press, 1997), p.256.

[v] Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of US Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.

[vi] Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of U.S. Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.

Source: Juzgado de Vigilancia, Informe Annual 1995, Cochabamba, Bolivia.

[viii] See “USAID helps draft current Criminal Procedures Code” in the AIN report “Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions”

[x] Loney explained, “The interpretation at this time is that drug cases do not have a time limit because they are ‘crimes against humanity.’” As AIN has reported in 2004, drug trafficking was classified as a “crime against humanity” in the anti-drug law passed by the Bolivian Congress in 1988, Law 1008. (See AIN report “Bolivia’s Prisons and the Impact of Law 1008.”) The three-year time limit for trials was intended to insure that the defendant had a speedy trial. But in Loney’s view, the courts perceive that this deadline is too politically and socially difficult to implement as written. Further, the judges are should examine how the complexities of each case, the number of defendants, and whether or not the defense is responsible for delays and other factors. Finally, a recent interpretation is that the defendant the three year rule can violate the accused’s right to a defense.

[xi] The passage of the Judicial Bond Law in 1996, and Criminal Procedures Code in 1999 led to a noticeable reduction in the Bolivia prison population from 1997-2004.

[xiii]  Art. 234, Código de Procedimiento Penal, Ley 1970, expanded by Art. 234. Ley de Modificaciones al Sistema Normativa Penal. Ley 007

[xiv] Ibid.

[xv] Ibid.

[xvi] Art. 235, Código de Procedimiento Penal, Ley 1970, expanded by Art. 235. Ley de Modificaciones al Sistema Normativa Penal. Ley 007

Ostreicher Case: US-Imposed Legislation Still Dictates Drug Prosecutions

Although the case of Jacob Ostreicher, an American accused of money laundering and awaiting trial in Bolivia for over a year, has received recurring attention in the US press and has been taken on by several US members of Congress, it has not been a defining factor in US-Bolivia relations.  First, strong statements about Ostreicher’s case from legislators demanding the Bolivian government provide him with bail immediately demonstrates that they grossly underestimate US influence in Bolivia, which has declined consistently even before the 2005 election of Evo Morales.  In previous decades, the US embassy could “call the shots” in the drug war and other areas of Bolivian politics as a result of successive Bolivian administrations’ heavy reliance on US funding. After the expulsion of the US ambassador and the US Drug Enforcement Administration in 2008, as well as the Bolivian decision to define its own drug policy and foot a substantial part of the bill, US funding and influence have shrunk considerably. Furthermore, congressional assumptions that the State Department has the means to put pressure on members of the Bolivian executive branch or influence the judicial branch are inaccurate.  As a result, denunciations by family members that the US Embassy in La Paz has acted negligently in this case appear unfounded.

Ostreicher faces the same systemic delays as Bolivian prisoners

One member of the US Congress cited his concerns about the case:

“For well over a year, even though he was not charged with any crime, the original document that led to his arrest and jailing specifically stated that he was guilty until proven innocent…That’s a violation of Bolivian law and is unconscionable. Jacob Ostreicher’s case is an egregious example of a violation of both the Bolivian constitution and the criminal code.”[1]

Clearly, the extended pre-trial detention and prison conditions Mr. Ostreicher faces are extreme, but they are no different or worse for Bolivian detainees. A representative from the UN High Commission on Human Rights concluded, “Mr. Ostreicher is not being persecuted or targeted by the government but rather he is yet another victim of a brutally slow, inefficient, underfunded and corrupt judicial system.”[2]

U.S-backed legislation and policy provided framework for drug war cases

Unfortunately, the harsh drug policy originated in Bolivia comes as a result of strong US pressure and imposed hardline drug war legislation in 1988 in the form of Law 1008, long before the election of Morales.  Law 1008 violated the Bolivian constitution by placing the burden of proof on the accused and did not allow those acquitted to be released from prison until the Bolivian Supreme Court ruled in their favor.  (See charts below for further analysis of the US pressure to pass Law 1008 and problems with the law.)

Furthermore, the US continues to enforce the its policy objectives through the annual drug “certification” process, which ties most U.S. funding to US approval of a country’s performance.[3]  Since the process’s inception, high levels of arrests, not convictions, have been used by the US to subjectively measure drug producing and trafficking countries’ success or failure in the drug war.  As a result, the Bolivian drug prosecution has traditionally focused on high detention rates, which congest the over-burdened system and slow trials to a snail’s pace. In 1995, Human Rights Watch wrote about the law’s impact: “Innocent or guilty, a person charged with drug trafficking offenses faces years of imprisonment.”[4]

US Pressure to Pass Law 1008[5]

US pressure and leverage of political and economic power

+

Weak Bolivian government institutions

>

Implementation of drug policy without oversight or public scrutiny
Pressure from US officials in La Paz: “US officials in La Paz pushed especially hard for [Law 1008’s] passage”Withholding of economic assistance: “In 1986 US embassy spokespersons affirmed that the adoption of the antidrug law was essential to win the release of economic assistance that had been temporarily withheld.”[6]

Involvement of US officials and expert in creation of drug policy and legislation: “US legal experts reportedly helped draft” Law 1008[7]

“Lack of effective oversight mechanisms in the Bolivian political system”Weak Bolivian congress and political parties

Failure to consult congress “on a number of occasions even when such was constitutionally mandated”

US officials circumvented Bolivian authorities, negotiating instead “with a handful of high-level officials,” thereby “minimizing both public debate and independent legislative action on drug control policies”

These practices, which the US justified “as necessary to avoid corruption,” “gave US policymakers disproportionate influence over both the development and implementation of policy.”

“[The Bolivian] executive branch, under pressure from Washington,” was able “to dictate policy with little public scrutiny or input into the policymaking process.”

Problems with Law 1008[8]

Law 1008 violates existing Bolivian laws and the constitution

  • The Bolivian constitution stipulates that the accused is innocent until proven guilty; however, “From 1998 until 1991,” Law 1008 “effectively plac[ed] the burden of proof on the accused.”[9] *(New criminal code modified this in 1999)
  • Bolivian law stipulates that Law 1008 violates “that an investigation judge supervise all investigations.”  However, “Under Law 1008, antidrug prosecutors determined whether or not to press charges, and judges were forced to try the accused on the basis of this determination.”[10] *(New criminal code modified this in 1999)
Law 1008 is not consistent with Bolivian legal norms for sentencing
  • Law 1008 offenses carry harsher sentences than other offenses.[11]
    • Sentences for drug production range from five to fifteen years; sentences for drug trafficking range from ten to twenty-five years.
    • People convicted under Law 1008 are not eligible for parole. *(New criminal code modified this in 1999)
    • The maximum legal sentence in Bolivia (for premeditated murder) is 30 years.  There are no death penalty or life sentences.
The weak Bolivian judiciary exacerbates abuses under Law 1008
  •  “Bolivia’s notoriously weak, corrupt, and slow judiciary also contributed to abuses under the law.”[12]
    • “Trials often lasted five years or more before a sentence was declared.”
    • “Those accused under Law 1008 were not eligible for bail, and even if acquitted by a district court, they had also to be acquitted in two higher courts in order to obtain their release.” *(New criminal code modified this in 1999)
    • “A police report, often poorly prepared and containing scant evidence, was considered sufficient evidence for conviction.”[13] *(New criminal code modified this in 1999)
    •  “Law 1008’s implementation drastically increased the number of men, women, and children in Bolivia’s already overcrowded prisons.”
      • “In one Cochabamba prison that receives prisoners from the Chapare, twenty times more prisoners entered the prison in 1994 than in 1987, the year before Law 1008 was passed.”[14]
      • “[I]n mid-2003, approximately 78 percent of the Cochabamba prison population was serving time under Law 1008 charges.”[15]
Law 1008 disproportionately punishes the poor
  • “Poor Bolivians accused of minor trafficking offenses and without the means to hire capable legal counsel still represent the great majority of Law 1008 detainees and convicts.”[16]  The procedures for 1008 greatly exacerbate pre-existing judicial backlog and delay in an under-funded, overloaded system.


USAID helps draft current Criminal Procedures Code

In an effort to address these and other legal problems, between 1999 and 2010, a regional initiative of the USAID Administration of Justice Program facilitated and contributed to the formulation and implementation of a new Criminal Procedures Code,[17] which eliminated part, but not all, of the unconstitutional and due process problems with Law 1008.  For example, the new code granted the right to bail or conditional release for drug crime detainees that meet certain conditions, such as having an established address and the ability to prove they are not a flight risk and that detainees can be held up to 18 months before trial.[18] A Bolivian judge ruled that Jacob Ostreicher could not meet these conditions.

US policy and legislative impositions created the framework for drug trafficking and money laundering legal procedures, making it difficult to secure pre-trial release or obtain acquittals. For the first time, this has affected a US citizen in Bolivia. Although much of existing system and its injustices in drug prosecutions have their roots in US, not Bolivian, policy and pressure, the US has lost its ability to influence Bolivian legislation or legal processes.   In other words, it is a problem the US helped create, but no longer has the power to change.  Obviously, Bolivian legislators must pass further legal reforms to address judicial delay, extended pre-trial detention, and disastrous prison conditions and over-crowding; however, continued international pressure to take a tough stance against traffickers and maintain Law 1008 has been an obstacle in this process.

 


[1] http://foreignaffairs.house.gov/news/story/?2479

[2] “Report on Meeting with UNHCHR” Email Communication from Felicia D. Lynch. 12 July 2012 included in http://foreignaffairs.house.gov/112/HHRG-112-FA16-WState-MooreS-20120801.pdf

[3] The impact of this process has deteriorated over the years. For example, the U.S. has “de-certified” Bolivia since 2008, but has kept dwindling funds flowing through subsequent “national interests waivers.”

[4] Source: Human Rights Watch, “Human Rights Violations,” July 1995. p.20

[5] All quotes from Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of U.S. Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.

[6] Source: Presencia, 10 February 1986, quoted in Jelsma and Roncken, 1998.

[7] Source: Human Rights Watch, “Human Rights Violations and the War on Drugs,” Human Rights Watch 7, no. 8 (July 1995): 14-15.

[8] All quotes from Ledebur, Kathryn. “Bolivia: Clear Consequences.” Drugs and Democracy in Latin America: The Impact of U.S. Policy. Ed. Coletta A. Youngers and Ed. Eileen Rosin. Boulder, CO: Lynne Rienner Publishers, Inc., 2005.

[9] Source: Constitución Política del Estado, Ley 1615, Artículo 16, 2002.

[10] Source: Human Rights Watch, “Human Rights Violations,” July 1995. p.20

[11] Source: República de Bolivia, “La Ley del Régimen de la Coca y Sustancias Controladas: Ley 1008,” Title III, artciles 47, 48, 19 July 1988.

[12] Source: Linda Farthing, “Social Impacts Associated with Antidrug Law 1008,” in Coca, Cocaine, and the Bolivian reality, Madeline Barbara Leones and Harry Sanabria, eds. (New York: SUNY Press, 1997), p.256.

[13] Source: Human Rights Watch, “Human Rights Violations,” July 1995. p.20

[14] Juzgado de vigilancia, Informe Annual 1995, Cochabamba, Bolivia.

[15] Author interview with judicial emplyees, 23 August 2002.

[16] Roberto Laserna, Gonzalo Vargas, and Juan Torrico, “La Estructura Industrial del Narcotráfico en Cochabamba” (Cochabamba: UNDCP/PNUD, unpublished manuscript, 1995).

[17]The USAID consultant was “actively engaged in the revision process, assembling a team of lawyers and legal experts to review and revise the Code, training justice sector officials to interpret the new Code.” From the website of Management Sciences for Development, Inc.: msdglobal.com/law_bol.html. http://www.checchiconsulting.com/index.php?option=com_projects&country_id=1&Itemid=8

[18] See Ley 1970 Código de Procedimiento Penal Bolivia. Artículo 233°.- (Requisitos para la detención preventiva). Realizada la imputación formal, el juez podrá ordenar la detención preventiva del imputado, a pedido fundamentado del fiscal o del querellante, cuando concurran los siguientes requisitos: 1. La existencia de elementos de convicción suficientes para sostener que el imputado es, con probabilidad, autor o partícipe de un hecho unible; y, 2. La existencia de elementos de convicción suficientes de que el imputado no se someterá al proceso u obstaculicen de la verdad. Artículo 234°.- (Peligro de fuga). Para decidir acerca del peligro de fuga se tendrá en cuenta las siguientes circunstancias: 1. Que el imputado no tenga domicilio o residencia habitual, ni familia, negocios o trabajos asentados en el país; 2. Las facilidades para abandonar el país o permanecer oculto; 3. La evidencia de que el imputado está realizando actos preparatorios de fuga; y; 4. El comportamiento del imputado durante el proceso o en otro anterior, en la medida que indique su voluntad de no someterse al mismo. Artículo 235°.- (Peligro de obstaculización). Para decidir acerca del peligro de obstaculización para la averiguación de la verdad se tendrá en cuenta, especialmente, la concurrencia de indicios de que el imputado:

1. Destruirá, modificará, ocultará, suprimirá o falsificará elementos de prueba; y

2. Influirá negativamente sobre los participes, testigos o peritos para beneficiarse….