ACCESS TO JUSTICE AND SOCIAL INCLUSION:
THE ROAD TOWARDS STRENGTHENING DEMOCRACY IN BOLIVIA

CHAPTER I

INTRODUCTION

A.         Scope and legal framework of the report

1.         The Inter-American Commission on Human Rights, in exercise of its primary function of promoting the observance and defense of human rights in the American States, and the powers granted by Article 41 of the American Convention on Human Rights, publishes this report containing its considerations and recommendations based on observations during the visit to Bolivia from November 12 to 17, 2006, and the information provided by government authorities and various representatives of civil society.

2.         While recognizing the political context in Bolivia of recent years, and stressing that the human rights situation described herein has its origins in previous decades and has been inherited by the current government, the Commission placed special emphasis on the administration of justice in Bolivia and on the access to justice for the sectors of society under a special vulnerability situation.  It considers that special attention must be given to these issues in order to strengthen democratic institutions and pave the way for the social inclusion that the government seeks to achieve in the country.

3.         The Commission will first present its observations on the institutional weaknesses in the administration of justice, the problems in implementing several laws, and the impunity that surrounds serious human rights violations that occurred in the past. In the following sections of the report, the Commission will outline the main problems afflicting the most vulnerable sectors and the special risk of being object of human rights violations: persons deprived of liberty; indigenous peoples and peasant communities; women; children; and asylum seekers.  In each of those sections the Commission will stress the obstacles that these groups face in accessing justice and obtaining effective responses to their complaints.

4.         At the end of each section the Commission will list its recommendations on each issue, as a contribution to ensuring that the situation of human rights in Bolivia and the government initiatives to improve it will comply with international standards on human rights, consistent with the obligations that the State has assumed.  In this respect, the frame of reference for the Commission's observations and recommendations will be the inter-American human rights instruments that Bolivia has ratified,[3] with certain references to the provisions of other international instruments, as well as to the Bolivian Constitution and relevant domestic legislation.

B.         The IACHR visit

5.         At the invitation of the Government, the Commission conducted a visit to the Republic of Bolivia from November 12 to 17, 2006, to observe the overall human rights situation.  The delegation consisted of Commission members Evelio Fernández Arévalos, President; Florentín Meléndez, Second Vice-President and Rapporteur for Bolivia; Commissioner Victor Abramovich; and Santiago Canton, Executive Secretary.  The delegation also included the specialists Débora Benchoam, Silvia Serrano and Leonardo Hidaka; and Gloria Hansen provided administrative support.

6.         In the course of its stay in Bolivia, the Commission met with the following government authorities: the Minister of the Presidency, the Minister of Foreign Relations and Cult, the Minister of Justice, the Minister of National Defense, the Vice Minister of Foreign Relations and Cult, the Vice Minister for Intergovernmental Coordination, the Vice Minister for Community Justice, the Vice Minister of Human Rights, a Representative of the Vice Ministry of Gender and Generational Affairs, the Vice Minister of the Interior and Police, the General Director of the Penitentiary System, the President of the Chamber of Deputies, the President of the Constitutional Commission of the Chamber of Deputies, a Representative of the Congressional Commission on Human Rights, the President and the Dean of the Supreme Court of Justice, the President of the Constitutional Tribunal, the President and certain members of the Superior Court of the District of La Paz, the Attorney General of the Republic ("Fiscal General de la República") and the Ombudsman.

7.         The Commission also held meetings with several representatives of civil society, including organizations promoting the rights of indigenous peoples, the rights of women, the rights of children, and the rights of persons deprived of liberty, as well as peasant farmers’ representatives organizations, and organizations devoted to strengthening the administration of justice, journalists and labor union leaders.

8.         As well, a delegation on the Commission visited the Chonchocorro Penitentiary in El Alto and the San Pedro Prison and the Women’s Prison ("Centro de Orientación Femenina Obrajes"), both in the city of La Paz, to observe the human rights situation of persons deprived of liberty.

9.         During the visit, working meetings were also held on various cases and precautionary measures under consideration by the Commission, with participation of representatives of the State, petitioners and victims.  At the end of its visit, the Commission presented a public lecture on the human rights protection mechanisms of the inter-American system and the role of its principal organs, the Inter-American Commission and Court.

10.       The Commission emphasizes that it was entirely at liberty to meet with any person of its choosing. The authorities of the Bolivian State extended their full assistance and cooperation to the Commission so that it could carry out its agenda. The Commission thanks the Government of President Evo Morales Ayma for this assistance. It also thanks the various civil society organizations and representatives for their cooperation and the information provided.

C.         Preparation and approval of the report

11.       This report was approved by the Commission on March 8, 2007.  Pursuant to Article 58 of the Commission's rules of procedure, the report was transmitted to the Government of Bolivia on that date, asking it to present any observations within one month.

12.       On April 27, 2007, the Bolivian State requested an extension until May 20, 2007 to present its observations.  The Commission did not receive the observations of the State within that lapse of the extension.  On June 28, 2007 the Commission approved the publication of the report.

D.         The context: mass protests, social conflicts and institutional fragility

13.       In recent years, the Commission has been following closely the political and social situation in Bolivia, which has been characterized by: (i) the fragility of State institutions; (ii) the recurrence of mass demonstrations as a means of participation, protest and pressing demands of several kinds; (iii) the conflict generated by the lack of channels for dialogue between sectors of society that have differing and even antagonistic interests; and (iv) the lack of an adequate government response to these circumstances. The combination of these elements has produced acts of violence that have resulted in serious violations of human rights by State security agents and by individuals involved in those conflicts.

14.       The following paragraphs detail some of the most significant events of recent years: these are a source of concern to the Commission because they not only reflect the above situation but have deepened the gulf between the State and civil society or between sectors of civil society, and have paved the way for new conflicts, as the Commission continues to verify.

1.         The water dispute in Cochabamba in 2000

15.       The dispute began in 1999, when the State granted a 40-year concession to the International Consortium "Aguas de Tunari" to manage the water system.

16.       One action taken by the consortium was to raise the price of drinking water by 300%. At the same time, the Government attempted to pass a law privatizing all water services and watercourses such as rivers, streams and lakes. An organization known as Water and Life Coordinator ("Coordinadora del Agua y la Vida") organized protests against those measures. During negotiations, the dialogue broke down, and in the first days of April 2000, a mass protest was put down by the police and military, resulting in a great number of illegal arrests, about 100 personal injuries, and the death of a 17-year-old boy.  In the wake of these events, the Government cancelled the contract and expelled the company.

2.         The events in February 2003 related to the income tax

17.       On February 12 and 13, 2003, after the enforcement of a decree by the former President of the Republic, Gonzalo Sánchez de Lozada, establishing a tax on wages, many people protested in the streets to put pressure on the former President to withdraw the measure.  Those events were also put down by the police and military, with approximately 30 persons killed and more than 200 injured, including civilians, police and military, by firearms of the caliber used by the Armed Forces and the National Police.

18.       As detailed below (paragraphs 158-173), these events have still not been clarified by the Prosecutors’ Office, and given the persistent difficulties and obstructions in the investigation, no one has been judged or punished.

3.         The gas dispute in September and October 2003

19.       The background to the hydrocarbons conflict dates from 1996, when Laws 1689 and 1731 were issued, at Government initiative, to regulate hydrocarbons exploitation through joint-venture contracts with private firms. In 1997, Supreme Decree 24.806 was issued, approving the mentioned model contract for various exploitation areas.

20.       Protests over the privatization of gas wells intensified in September and October 2003, following the decision of the government to export Bolivian gas to the United States and to transport it to the seaport through Chilean territory.  Demonstrators demanded the resignation of President Gonzalo Sánchez de Lozada.  As a result of the action taken by the security forces during September and October, dozens of demonstrators were killed: the figure varies between 67 and 80 deaths, and more than 400 injured.  As detailed below (paragraphs 158-173), these events have not been adequately investigated or punished.

21.       On October 17, 2003 President Gonzalo Sánchez de Lozada resigned.

4.         Political instability and presidential successions (October 2003-December 2005)

22.       According to the Constitution, the Vice President of the Republic, Carlos Mesa Gisbert, replaced Gonzalo Sanchez de Lozada as President.

23.       In 2005 public protests against the measures adopted by the new President of the Republic were intensified. One example occurred in January 2005, when the Federation of Neighborhood Councils of the City of El Alto ("Federación de Juntas Vecinales de la ciudad de El Alto") called an indefinite strike due to the award of a water management contract to a French company. These complaints were generated by the hike in water prices, the inadequate quality of the water, the lack of service in large areas, and the lack of investment by the Company.  After the city of El Alto had been paralyzed for three days running, former President Carlos Mesa Gisbert cancelled the concession.

24.       Nevertheless, protests as an instrument of social pressure continued with the demand for nationalization of hydrocarbons, led by the Movement to Socialism ("Movimiento al Socialismo").  President Carlos Mesa Gisbert resigned in June 2005.

25.       Following his resignation, the President of the Supreme Court of Justice, Eduardo Rodriguez Veltzé, was appointed President of the Republic on an interim basis until elections could be called in accordance with the Constitution. Finally, on December 18, 2005, the current President, Evo Morales Ayma, was elected by a wide majority.

5.         Continued protests and social conflicts

26.       The Commission noted that, during 2006 and thus far in 2007, strikes, blockades and mass demonstrations have continued as the principal mean of protest by groups that disagree with Government policies and that on some occasions they degenerated into social conflicts and new acts of violence.

27.       Among some examples that may cite are: the strike and suspension of flights at Lloyd Aéreo Boliviano in February 2006, when the company's workers asserted their claims to ownership of the airline.  The situation led to the dismissal of the Minister of Transport and the resignation of the Transport Superintendent; the highway blockade by the so-called "Landless Movement" in March 2006, demanding the release of some of its members; the march and blockade by taxi drivers in La Paz in April 2006, over the issuance of receipts; and the teachers' strike in August 2006; the civic march for the return of powers to Sucre in March 2007; the blockade of roads between La Paz and Oruro by community activists, and demonstrations in March 2007 by the retired-worker sector as well as by parents over school supplies for their children; the violent clashes in the Villamontes and Yacuiba regions in April 2007 over the borders of Chaco; the violent attacks by miners on the headquarters of the Constitutional Tribunal, in April 2007; and demonstrations by various groups such as disabled persons, and teachers in April 2007.

28.       The event that produced the greatest social upheaval took place in October 2006, after international mineral prices rose, generating concern among both the mining cooperatives and the salaried mine workers.  The confrontations on October 5 and 6 over control of a government-owned mine in the municipality of Huanuni, Department of Oruro, caused at least 16 deaths and more than 80 injured. The situation was stabilized after State security agents intervened to control violence.[4]

29.       On October 31, 2006, President Evo Morales approved Supreme Decree 28.901 introducing the New National Metals Mining Policy that included specific measures such as the incorporation of more than 4000 cooperative miners into the Huanuni mining company.  Subsequent to the dispute, the cooperativists, the salaried mine workers and the national government have been working within a tripartite commission to achieve consensus on implementing the new policy.

6.         Constituent Assembly and referendum on autonomy

30.       The promulgation of Special Law 3364 convening the Constituent Assembly on March 6, 2006 sparked two democratic events of great importance for Bolivia at the current time: (i) the creation and establishment of the Constituent Assembly, and (ii) the referendum on autonomy.  As indicated below, these processes have been influenced by the persistent polarization and lack of dialogue and negotiation that in some cases have resulted in new acts of violence.

31.       On July 2, 2006, members of the constituent assembly were elected.  That body is now drawing up a new constitution for the country.  The Movement to Socialism, the political party of the current President, won 137 of the 255 seats in the assembly.  The other seats were won by various opposition parties.  The Commission observed that the constituent process was delayed by disputes among the political factions involved over the very nature of the assembly, and over the voting mechanism.

32.       On the first aspect, the assembly members of the Movement to Socialism have insisted that the constituent assembly has original and full powers, while the opposition considers that its powers are limited, and that it must therefore respect the constituted powers.  A constitutional appeal was lodged against the assembly's rules of procedure, which characterize the body as plenipotentiary and original, and the Constitutional Tribunal refused to rule on the appeal, arguing that the constitutional reform was not yet in place, and therefore not subject to constitutional control.[5]

33.       With respect to the voting system, the Commission noted that approval of the assembly's internal rules of procedure became a focal point of dispute between a mixed formula for approving decisions, requiring both a simple majority and two-thirds of voters, proposed by the Movement to Socialism, and the formula proposed by the opposition, according to which constitutional provisions must be approved by two-thirds of voters.  The sharp debate over this issue led some members of the assembly to take extreme measures, including a hunger strike during November 2006 by certain opposition members, which was followed by violent demonstrations by supporters of both sides.

34.       The Commission welcomes the channels of dialogue that have recently been opened in the Constituent Assembly for negotiating this point.  It hopes that the process will no longer be blocked by persistent antagonisms, and that consensus-building mechanisms will be pursued to ensure political representation by all sectors of Bolivian society in this important forum.

35.       The Commission considers it pertinent to remind the Bolivian State of the contents of Article 2 of the American Convention, which provides that "the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.”  The Inter-American Court has established the scope of this provision as calling for the adoption of measures in two directions: (i) elimination of rules and practices of any kind that violate the guarantees contained in the Convention or that ignore the rights recognized therein or obstruct their exercise, and (ii) the issuance of rules and the development of practices conducive to the effective observance of those guarantees.[6]

36.       Consistent with the foregoing, the Commission highlights the need to ensure that the provisions of the new constitution are compatible with the international human rights instruments ratified by Bolivia.  In particular, for purposes of facilitating implementation of international human rights standards to which Bolivia has subscribed, the Commission recommends that the constitution should enshrine those treaties with constitutional rank, as other countries have done, thereby substantially increasing the effectiveness of judicial mechanisms for the protection of human rights.

37.       With respect to the autonomy referendum, recent years have seen the development of a so-called "autonomy movement" intended to strengthen the country's regions in their ability to administer and allocate resources, and to elect their own authorities.

38.       In February 2005, leaders of the Civic Committee of Santa Cruz, the Parliamentary Brigade of Santa Cruz, and two business organizations (the Eastern Chamber of Agriculture and the Chamber of Industry and Commerce) delivered the signatures to the National Electoral Court, launching a popular initiative to hold a referendum on autonomy.

39.       On March 6, 2006 the National Congress unanimously approved the following referendum question: "Do you agree, within the framework of national unity, with giving the Constituent Assembly the binding mandate to establish a regime of departmental autonomy, applicable immediately after the promulgation of the new Political Constitution of the State in the Departments where this Referendum has a majority, so that their authorities are chosen directly by the citizens and receive from the National Government executive authority, administrative power and financial resources that the Political Constitution of the State and the Laws grant them?”

40.       Voting was held on July 2, 2006, with the following results: in the departments of Pando, Beni, Santa Cruz and Tarija, the YES side won, while in the five remaining departments victory went to the NO side. Nationwide, 57.58% of voters said NO to autonomy and 42.41% opted for YES.  According to the law convening the constituent assembly (“Ley de Convocatoria de la Asamblea Constituyente”) the results of the national referendum will be adopted by a simple majority of valid votes. The departments that so approved will achieve departmental autonomy once the new constitution is promulgated.

41.       Notwithstanding the foregoing, between December 14 and 15, 2006 there were organized several mass demonstrations in the regions that voted YES for regional autonomy, and in the Department of Cochabamba, where the NO side won.  This occurred at the time of greatest tension and polarization within the Constituent Assembly over the voting system, as a protest against possible application of the simple majority.  There were even calls to declare the autonomy as de facto.  At the same time as these demonstrations were announced and held, the opponents of autonomy conducted their own demonstrations in favor of national unity.  In this situation, there were new outbreaks of violence involving road blockades, particularly around the municipality of San Julián in the Department of Santa Cruz.[7]

42.       Subsequently, more violence broke out in Cochabamba in the first days of January 2007.  The conflict began on January 8, when groups of peasants burned a portion of the prefecture offices.  The protesters were demanding the resignation of the prefect Manfred Reyes Villa, for his attempt to call for a new referendum on autonomy in his district.  Due to those attacks, many people demonstrated rejecting the violence.  Although it was supposed to be a peaceful march, the media reported that persons on both sides were armed with sticks and other weapons.  As a result of the confrontations, on January 11, 2007, it was reported that two persons had been killed and approximately 200 injured.

43.              As the Commission has said on prior occasions, that the right of assembly and freedom of association have been widely recognized as substantive civil rights that offer protection from arbitrary interference by the state when persons decide to associate with others, and that are fundamental for the existence and functioning of a democratic society. In that regard, the protection of those rights not only entails the obligation of the state not to interfere with the exercise of the right of assembly or association, but also requires, in certain circumstances, positive measures by the state to ensure the effective exercise of that right, for example, by protecting the participants in a demonstration from the physical violence of those who might hold contrary views.[8] 

44.              The Commission reiterates that States may impose reasonable restraints on demonstrators to ensure their peaceful development as well as to disperse those demonstrations that might become violent or obstructive[9], having in mind that those restraints must be bounded by legality, necessity and proportionality. The IACHR considers that the requirement of previous notification should not be transformed into a demand for the prior issuance of a permit by an agent with unlimited discretionary powers.[10]  On the other hand, the actions of State´s agents should protect, rather than discourage, the right to assembly and therefore, the rationale for dispersing demonstrations must be justified on the duty to protect the people demonstrating.  The law enforcement officer in charge of such dispersing must contemplate the use of the safest methods that cause the least harm to the demonstrators.[11]

45.              The Commission regrets the persistence of the violent occurrences described in this section which impede the normal development of citizen participation.  The Commission exhorts the Bolivian State to adopt the necessary measures to guarantee the right of assembly and peaceful demonstration, to create channels of dialogue with demonstrators and to develop the necessary mechanisms for prevention of acts of violence in the context of public demonstrations, including regulation of the use of force by State agents, with strict respect for human rights.  It also reiterates the need to have the events which have resulted in the death or injury of people investigated and punished by the appropriate authorities whether such acts were committed by State agents or by private individuals, so as to prevent impunity of the kind that has surrounded similar deeds in the past.  The Commission reiterates that States should establish administrative controls to ensure only exceptional use of force in public demonstrations, in cases where it is necessary, through measures for planning, prevention, and for the investigation of cases in which an abuse of force may have occurred.  In particular, the Commission recommends measures such as the following: a)  implementation of mechanisms to prohibit, in an effective manner, the use of lethal force as a recourse in public demonstrations; b) implementation of an ammunition registration and control system; c) implementation of a communications records system to monitor operational orders, those responsible for them, and those carrying them out; d) promotion of visible means of personal identification for police agents participating in public law enforcement operations;  e) promotion of opportunities for communication and dialogue prior to demonstrations and of the activities of liaison officers to coordinate with demonstrators concerning demonstration and protest activities and law enforcement operations, in order to avoid conflict situations; f) the identification of political officials responsible for law enforcement operations during marches, particularly in the case of scheduled marches or prolonged social conflicts or circumstances in which potential risks to the rights of the demonstrators or others are anticipated, so that such officials are tasked with supervising the field operation and ensuring strict compliance with norms governing the use of force and police conduct; g) the establishment of an administrative sanctions regime for the law enforcement personnel involving independent investigators and the participation of victims of abuses or acts of violence; h) the adoption of measures to ensure that police or judicial officials (judges or prosecutors) directly involved in operations are not responsible for investigating irregularities or abuses committed during the course of those operations.[12]