ACCESS TO JUSTICE AND SOCIAL INCLUSION:
RIGHTS OF ASYLUM SEEKERS
396. During its visit the Commission held meetings with civil society organizations devoted to promoting the rights of refugees in Bolivia, and it received information on certain practices that may disregard international standards in this matter.
397. Article 22 of the American Convention provides that: “(7) Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the State and international conventions, in the event he is being pursued for political offenses or related common crimes”, and “(8) In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.”
398. Bolivia is party to the international instruments that sets parameters in this regard and that determines the scope and content of the previous provisions: the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol.
399. Consistent with that framework, offices of the United Nations High Commissioner for Refugees were established in Bolivia in 1980, and in 1983 Supreme Decrees 19.639 and 19.640 were issued regulating internal procedures for the institution of asylum and creating the National Refugees Commission (hereafter CONARE).
400. In 1996, Decree 24.423, the Legal Migration Regime, was promulgated, incorporating rules governing the delivery of documents to refugees, and their right to stay in Bolivia.
most recent rule in this matter is Supreme Decree 28.329, now in
force, which regulates all matters relating to procedures, processing
and guarantees for persons seeking asylum, and prohibits the return in
any manner of persons with such status.
B. Guarantees of due process for asylum-seekers and the principle of no forced return
402. Despite Bolivian regulations in this area, the Commission received complaints about their application, in three respects: (i) lack of due process in the handling of refugee applications; (ii) difficulties in obtaining identity documents; and (iii) disregard of the guarantee against forced return.
403. On the first point, the Commission learned of irregularities in the make-up of CONARE. According to the rules, in order to take decisions on a person's refugee status, the CONARE must comprise government officials, representatives of the UNHCR, and representatives of civil society. However, the Commission learned of cases in which representatives of the UNHCR and civil society were not invited, and their place was taken by representatives of the Ministry of Foreign Affairs.
404. The Commission also received complaints that in some cases the decisions were taken in a summary manner without a hearing, meeting, interview or any other opportunity for the applicant, with the optional assistance of a lawyer, to present evidence substantiating his application.
405. The Commission also noted persistent irregularities in the notification of decisions, particularly those denying or revoking refugee status. On several occasions, the Commission was informed, such resolutions are not notified directly to the applicant, and this obviously has an impact on his ability to file appeals within the legal time limit. The use of indirect means of notification has even resulted in situations where persons learned of the resolution revoking their status only some years later, when any possibility of challenge had expired.
406. Another shortcoming is the inadequate substantiation of decisions denying or revoking refugee status, which creates confusion about the grounds for the decision and impedes the presentation of appeals. In some cases, this is compounded by problems in accessing the files on interested persons, on grounds of "confidentiality".
407. On the second aspect, there were complaints of excessive bureaucracy in processing the documentation for refugees in Bolivia, which can lead them to follow alternative routes such as engaging in informal activities that do not require proof of identity, or to use a travel document, or even to obtain falsified documents.
408. On the third point, the Commission has received complaints about decisions that may be contrary to the guarantee against forced return for persons who have a well-founded fear for their lives or personal integrity. This principle is enshrined in the American Convention, and in various international instruments, and does not distinguish the form of return.
409. In this respect, the Commission reminds the Bolivian State that extradition constitutes a form of forced return and that, in the case of persons recognized as refugees, the State has the duty, within its legally established framework, to determine whether the circumstances that gave rise to such recognition still prevail, and to ensure that the person in question can defend himself and file an appeal against any decision revoking his status, preparatory to extradition.
410. By virtue of the foregoing, the Commission recommends that the Bolivian State:
1. Take all steps necessary to eliminate the obstacles facing refugee applicants in Bolivia, and facilitate the processing of applications and the obtaining of identity documents, whether provisional, in the case of persons whose application is being processed, or permanent, in the case of persons already recognized as refugees.
2. Ensure strict compliance with due process in administrative procedures relating to application for refugee status or its revocation. In this respect, the State must establish mechanisms whereby the applicant may submit all the evidence he deems pertinent and present arguments in favor of recognition.
3. Ensure that decisions denying or revoking refugee status are adopted through due process, with sufficient substantiation and in full observance of the notification and publicity mechanisms that allow the interested party to present an appeal within the legally established time limits.
4. Refrain from returning a person to his country of origin, by any means, if that person has valid refugee status in Bolivia, and in all cases ensure that before any decision on his deportation or extradition is taken there is an adequate assessment of the situation of risk facing the person, using the legally established procedure for this purpose that allows the person to participate and defend himself and to file an appeal with suspensive effect.
CONCLUSIONS AND RECOMMENDATIONS
411. In this report, the Commission has identified some weaknesses in the rule of law in Bolivia and has proposed recommendations for strengthening Bolivian democracy in the context of respect for and protection of human rights. The Commission reiterates that it is necessary for the Bolivian State, during the process of social inclusion that is taking shape, to develop channels of dialogue for consensus-building and negotiation regarding the different interests and priorities existing in a multiethnic and pluricultural country, especially in the important context of the Constituent Assembly.
412. Throughout the report the IACHR has described a series of problems regarding the functioning of the Judiciary and the Prosecutors’ Office which have impeded access to justice and have resulted in continuing impunity for human rights violations. Some of the problems identified have to do with difficulties in implementation of important reforms, such as the accusatorial criminal prosecution procedure, the Law against Domestic Violence, the Juvenile Code, and legal mechanisms for the protection of victims. Another aspect addressed by the Commission was the independence, impartiality, and suitability of the judicial authorities.
413. As indicated in the report, the Commission reiterates that to strengthen the rule of law it is extremely important to consolidate an efficient Judiciary and a Prosecutors’ Office that will generate trust in society. To achieve that, the State must guarantee that the services offered are accessible to all sectors of Bolivian society without discrimination of any kind and are capable of responding, through adequate investigations and penalties, to past and any continuing human rights violations, including those committed by private individuals.
414. In addition to a guarantee of access to justice allowing all Bolivians to have their claims vindicated through the courts, the Commission reiterates the need for the State to adopt other kinds of preventive and protective measures to address continuing human rights violations against sectors of society that are especially at risk and/or in vulnerable situations. Such is the case for penitentiary conditions; discrimination against indigenous peoples and peasant communities regarding their right to land and their right to participate in projects relating to the development of natural resources; a complete disregard for the labor rights of persons subject to different kinds of bondage analogous to slavery, in violation of international human rights law; violence against women in the various aspects of their lives; child labor and/or child sexual exploitation, to the detriment of their development and best interests; and irregularities in refugee application procedures.
415. The Commission also reiterates that it is the State’s obligation to guarantee the right to life and to humane treatment of all persons who participate in demonstrations in exercise of the right of peaceful assembly. On the other hand, the Commission insists that although State can impose reasonable limitations on demonstrators to ensure that they are peaceful or to contain those who are violent, as well as to disperse demonstrations that become violent, any measures taken must be the safest, most expeditious, and least harmful possible. All kinds of arbitrary or excessive use of force committed by State security forces and any violation of the right to life and to humane treatment by individuals involved in these events must be duly investigated and punished in order to guarantee their non-recurrence.
416. The Commission is aware that many of the aspects examined in this report are structural ones and that it is not easy to achieve a change of direction to correct them. The present report is a sign of the Commission’s willingness to continue collaborating with the State in the protection of human rights in Bolivia in a democratic context. In that sense, the Commission will follow up on all the topics mentioned and on the implementation of the following recommendations:
Administration of Justice
1. Increase the mechanisms of publicity and dissemination for the rights of the citizens and the judicial actions established in the Constitution as an instrument for giving effect to them, as well as the procedures and requirements for accessing them.
2. Adopt the necessary measures to achieve the fullest possible coverage of judges, prosecutors and public defenders, using criteria based on a diagnosis of the real needs in the different areas of the country, both in terms of population and jurisdictions. These measures must include budgetary and human resources so that the respective authority will have not only a physical presence but also permanent and stable personnel.
3. Comply strictly with the procedures for appointing judges and prosecutors, established as a guarantee of independence and impartiality both in the Constitution, in the case of members of the high courts, the district Superior Tribunals, the Attorney General and the district prosecutors, and in the laws and regulations governing the judicial and prosecutorial careers in the case of other judicial authorities and the prosecutors.
4. Effectively implement the judicial and prosecutorial careers systems, and eliminate all provisions relating to hierarchy and promotion for these authorities that could increase levels of corruption in the judiciary and in the Prosecutors’ Office. In particular, ensure that entry and promotion in those careers is done through public competitions and selection based on exclusively technical criteria.
5. Strengthen the disciplinary system for judges and create coordination mechanisms with the criminal jurisdiction to fill the gaps in the law that have so far prevented effective disciplinary or criminal punishment of judicial authorities who commit acts of corruption, who contribute to procedural delay, who take decisions manifestly contrary to law, or who in general obstruct access to justice.
6. Take the necessary steps to implement the evaluations and other legal mechanisms of internal and external control, with respect both to the performance and the suitability of judicial authorities and the Prosecutors’ Office.
7. Conduct a clear analysis of the shortcomings in implementation of the 1999 Code of Criminal Procedure and institute comprehensive measures that include, at least, adequate training; the distinction of investigative functions; decongestion and settlement of cases at the investigation stage; guidelines for cooperation between all authorities involved in all instances, whether police, prosecutors or judges; mechanisms to comply with procedural deadlines, notifications and the holding of public hearings within legal parameters; and implementation of measures for participation by victims and their relatives.
8. Take steps to eliminate the legal uncertainty surrounding the statute of limitations for criminal cases, and establish clearly, in accordance with international standards, that its applicability cannot be determined on the basis of whether the affected person availed himself of the remedies and mechanisms of defense that criminal procedural law provides.
9. Strengthen the National Public Defender System with particular attention to the coverage and quality of service, and to the mechanisms for the hiring and tenure of public defenders.
10. Step up investigations of forced disappearances, police and military repression of public demonstrations, and other violations of human rights, using all the means at its disposal to overcome the obstacles that have to date prevented the establishment of the truth, the identification of the material and intellectual authors of the events, imposition of the corresponding sanctions, and determination of reparations for victims and their relatives.
Conditions of penitentiaries and rights of persons deprived of liberty
11. Ensure that the judicial authorities apply preventive detention reasonably and in conformity with the aforementioned international standards, and that all the accused have at their disposal access to a judicial remedy to question excessive time in preventive detention.
12. Take the necessary judicial, legislative and other measures to correct the excessive application of preventive detention and the procedural delays that persist in the administration of justice. Among other measures that the State may deem pertinent, these shall include the release of all detainees who have not been sentenced within a reasonable time without prejudice to the continuation of the proceedings against them.
13. Take judicial, legislative and other measures with a view to reducing overcrowding and improving living conditions in Bolivian prisons, while ensuring that prisoners are treated with the respect due to the inherent dignity of human beings.
14. Establish effective systems to ensure that accused persons are segregated from those who have been convicted, and create mechanisms for classifying persons deprived of liberty according to sex, age, reason for detention, special needs, and applicable treatment.
15. Put an immediate halt to the practice of keeping minors under the age of 18 years, accused or convicted, in prison together with accused or convicted adults, even temporarily.
16. Adopt the necessary measures to immediately regain control of internal areas of prisons in the country, and monitor – also through serious investigations – cases of corruption observed. Also, establish special recruitment and training programs for all personnel in charge of the administration, supervision, operation and security of prisons and other places of deprivation of liberty, which must include education on international human rights standards related to prison security, the proportionate use of force, and the humane treatment of persons deprived of liberty.
17. Adopt measures with a view to improving infrastructure in those prisons where conditions are precarious and do not meet the minimum requirements with respect to drinking water, sanitary facilities, personal hygiene, floor space, light and ventilation; sufficient and adequate food; and adequate bedding.
18. Take the necessary steps to ensure that persons deprived of liberty have access to adequate medical attention, which requires the presence of a medical team sufficient in relation to the number of inmates, with the capacity to respond to medical emergencies, and the availability of medications; in particular, for immediate attention to the elderly, the sick and children living in prisons.
19. Take steps to provide and facilitate educational and working opportunities for persons deprived of liberty with a view to assisting in their reform, social readaptation, and personal rehabilitation.
20. Take the necessary measures to ensure that when children are lodged in detention centers together with their father or mother deprived of liberty, the best interest of the child is taken into account upon establishing pertinent policies, and particularly that they have access to special protection, food, health and educational services necessary for their proper development. Also, take measures to guarantee, in the same terms, the best interest of children not living in prison with the parent deprived of liberty who has custody of the child. In this context, the State shall carry out serious and diligent investigations whenever there is a complaint of sexual abuse to the detriment of persons that live in prisons.
21. Guarantee detention conditions to be controlled effectively by criminal execution judges in the case of those condemned detainees, and by criminal judges in the case of persons under preventive detention.
22. Dispose adequate and effective remedies of individual and collective nature for judicial control of overcrowding and violence conditions incide penitentiaries. Those remedies must be accessible to persons deprived of liberty, their relatives, their private or public defenders, NGOs, the Ombudsman and other competent institutions.
Rights of indigenous peoples and peasant communities
23. Take all steps necessary to eradicate any kind of discrimination based on the indigenous and/or peasant condition of persons subject to its jurisdiction, particularly in access to justice, education and health, and to the benefits of other State policies intended to increase the coverage of economic, social and cultural rights.
24. Ensure that all measures taken in connection with the right to education and health for indigenous peoples are compatible with their particular worldview and the maintenance and strengthening of their cultural identity, and that they in no way imply a form of assimilation of indigenous peoples into the non-indigenous culture.
25. Guarantee effective enforcement of the new law relating to agrarian reform, adopting the necessary measures to eliminate the obstacles cited by the Commission that have prevented access to land and territory for all sectors of Bolivian society. As part of this process, it is essential that the State bear in mind the particular relationship that indigenous peoples have with the land and that consequently, in the process of land titling, it must give priority to recognizing their ancestral lands and territories as essential for the survival of their cultural identity.
26. Incorporate the provisions of ILO Convention 169 on this issue into its domestic legislation on development projects, and adopt measures for their effective enforcement.
27. Consistent with its international obligations, guarantee the participation of indigenous peoples and affected communities in projects for the exploration and exploitation of natural resources, through prior and informed consultations designed to obtain their free consent in the design, execution and evaluation of those projects, as well as in determining benefits and compensation for damages, according to their own development priorities.
28. In the context of projects underway, implement participatory mechanisms to determine the environmental damages they may be causing and their effects on the basic subsistence activities of indigenous peoples and peasant communities living in the vicinity of such projects. If their lives or personal integrity are threatened, such projects should be immediately suspended and the appropriate administrative and criminal penalties imposed. If the projects continue, the State must guarantee that affected persons will share in the benefits from those projects, and it must determine and enforce compensation for such damage.
29. Guarantee access to an adequate and effective judicial remedy for challenging environmental damages of a collective nature so that, in addition to criminal action, there will be a mechanism of a judicial nature to obtain an immediate response in circumstances where projects are causing irreparable damage to groups of individuals.
30. Give priority to measures for eradicating forced labor and bondage, and take immediate steps to strengthen the recognition and regularization of property for persons affected by this situation, and to prevent any weakening of labor and social rights for persons working in the rural sector.
31. Conduct an immediate analysis of the situation of bondage analogous to slavery and/or forced labor in various parts of Bolivia, including data on all families and persons subjected to this form of life, the related social, cultural and psychological factors, and the various private and State players involved, particularly weaknesses in the various administrative and judicial bodies.
32. Adopt necessary measures to guarantee that recognition of community justice does not depend on the coverage or procedural workload of official justice, but stems from the pluricultural nature of the Bolivian State and from respect for the autonomy of indigenous peoples.
33. Establish, in the short term, guidelines for coordinating official justice with community justice, taking into account at a minimum the parameters set out in the respective section of this report.
Rights of women
34. Enforce existing national legislation and policies to protect women against acts of violence and discrimination, and their political, economic and social consequences, and allocate sufficient funding to enforce them effectively throughout the country.
35. Design a comprehensive and coordinated policy, with sufficient public funding to permit continuity, to ensure that the victims of violence have full access to adequate judicial protection to remedy their suffering and to prevent, investigate, punish and provide reparations for acts of violence.
36. Implement measures and publicity campaigns targeted at the general public, on the duty to respect women's civil, political, economic, social, cultural, sexual and reproductive rights; on the judicial services and remedies available for women whose rights have been violated; and on the legal consequences for the perpetrators.
37. Develop educational programs for citizens, starting at a young age, to promote respect for women as equals and to recognize their particular needs as women, and to respect their right not to suffer violence and discrimination.
38. Identify and institutionalize new forms of training for public employees in all sectors (justice, security, health and education) that will include a comprehensive approach to women's right to live free of violence and discrimination, and the need for public servants to respect women's physical and psychological integrity, in the exercise of their functions.
39. Ensure effective enforcement of laws that guarantee women's participation in public affairs, and take the steps necessary to prevent and punish any act of discrimination against women who accede to public office, in all circumstances.
40. Create and strengthen systems for recording statistical and qualitative information on incidents of violence against women within the systems for the administration of justice. Strengthen the recording of cases of violence against women to guarantee that such records are uniform, accurate and transparent.
41. Strengthen the institutional capacity of judicial bodies, such as the Prosecutors’ Office, the police, the courts and the tribunals, and the forensic medical services, in terms of both human and financial resources, to combat the pattern of impunity in cases of violence against women, through effective criminal investigations followed by appropriate judicial action, thus guaranteeing proper punishment and reparations. This will involve the purchase of the necessary technical equipment to conduct chemical and forensic tests, as well as all the evidence required to clarify the facts investigated.
42. Take immediate steps to provide effective training about women's rights to all public officials involved in handling cases of violence against women (including prosecutors, police officers, judges, court-appointed lawyers, administrative officials and forensic medical professionals) so that domestic and international standards can be applied for prosecuting these crimes, and so that the integrity and dignity of victims and their relatives will be respected when they complain of such events and during their participation in the judicial process.
43. Take steps to institutionalize cooperation and the exchange of information among the authorities responsible for investigating acts of violence and discrimination, in particular between the Prosecutors’ Office and the police.
44. Design protocols to facilitate and promote effective, uniform and transparent investigation of acts of physical, sexual and psychological violence, including a description of the complexity of the evidence, and a detail of the minimum proof that must be compiled to substantiate charges, including scientific, psychological, material and testimonial evidence. It is important to encourage multidisciplinary investigation of such crimes.
Rights of children
45. Give priority to implementing policies for preventing the situations described in this section and others that constitute gross violations of the human rights of Bolivian children, through a clear analysis of the situation that afflicts this sector of society.
46. Guarantee access to the civil registry free of charge, as established in the Constitution, and take steps to identify all children who have been prevented by various means from obtaining an identity document.
47. Take all steps necessary to expand the coverage of public education as far as possible, both in terms of access and in terms of educational continuity and quality.
48. Adopt measures to expand the coverage of the Juvenile Defenders' Offices and other institutions provided for in the legislation, both for protection and for the prevention, investigation and punishment of crimes of all kinds committed against children.
49. Adopt all necessary measures to ensure that children are protected from all forms of violence, making certain that national norms do not include any ambiguous wording, for example, “abuse of corrective measures” or "discipline" or "disciplinary," since such terms raise doubts about the criteria used to determine when corrective measures are excessive and are included in the framework of prohibited actions as corporal punishment against children. In their place, it must be established clearly that the corporal punishment against children are prohibited.
50. Design policies to eradicate rural and urban labor for children under the age of 14 years, and to enforce the rules that allow the employment of persons under 18 years, with respect to social rights and restrictions on working hours and activities performed.
51. Take immediate steps to prevent and eradicate all forms of sexual exploitation of children, and to investigate and punish such conduct. To this end it will be essential to take steps for the effective enforcement of existing legislation.
52. Ensure that, in applying the so-called "social responsibility" or criminal liability of juveniles, deprivation of liberty is imposed only as a last resort, and that the necessary measures are taken to create establishments for the reeducation of children in this situation.
53. Take steps necessary to grant special guarantees of due process enshrined in domestic legislation, in accordance with international standards, and in particular the effective implementation, with the widest possible coverage, of specialized courts for determining the criminal liability of children.
54. Repeal the provisions of the Juvenile Code that establish "public threat" as grounds for preventive detention of children. The State must guarantee that this measure is used only exceptionally and for exclusively procedural purposes.
Rights of asylum seekers
55. Take all steps necessary to eliminate the obstacles facing refugee applicants in Bolivia, and facilitate the processing of applications and the obtaining of identity documents, whether provisional, in the case of persons whose application is being processed, or permanent, in the case of persons already recognized as refugees.
56. Ensure strict compliance with due process in administrative procedures relating to application for refugee status or its revocation. In this respect, the State must establish mechanisms whereby the applicant may submit all the evidence he deems pertinent and present arguments in favor of recognition.
57. Ensure that decisions denying or revoking refugee status are adopted through due process, with sufficient substantiation and in full observance of the notification and publicity mechanisms that allow the interested party to present an appeal within the legally established time limits.
58. Refrain from returning a person to his country of origin, by any means, if that person has valid refugee status in Bolivia, and in all cases ensure that before any decision on his deportation or extradition is taken there is an adequate assessment of the situation of risk facing the person, using the legally established procedure for this purpose that allows the person to participate and defend himself and to file an appeal with suspensive effect.
 Bolivia has been a party to this instrument since February 9, 1982.
 Human Rights and the Actions of Defenders. Specialized journal of the Bolivian Ombudsman. Indigenous Rights. Year 1, No. 1. 2006.
 Report on the situation of the human, economic, social and cultural rights of refugees in Bolivia. Included in the Report of Civil Society to the United Nations Committee on Economic, Social and Cultural Rights: Situation of economic, social and cultural rights in Bolivia as of 2005. Bolivian Chapter of Human Rights, Democracy and Development, pp. 366-367.