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

CHAPTER II

ADMINISTRATION OF JUSTICE

A.         Introduction

46.       The Commission has been following closely the situation with the administration of justice in Bolivia, and during the visit it paid special attention to this issue, and to the persistent problems that have historically obstructed access to justice for all Bolivians.  The attention given to this issue reflects the fact that, as indicated in the press release at the end of the visit, it is "essential to any social inclusiveness process" to ensure "full independence of the branches of government, particularly the guarantee of an impartial judiciary, access to justice, the enforceability of rights recognized under the Constitution and international law, strict compliance with due process without discrimination, policies for coordination between the community and formal justice systems, and, most especially, fighting the severe problem of impunity for those responsible for human rights violations. "[13]

47.       In recent years, the Commission has identified several reforms marking important structural changes in the organization and operation of the Bolivian judiciary.

48.       The constitutional reform of April 13, 1994, created such bodies as the Constitutional Tribunal and the Ombudsman’s Office, which principal function is to guarantee the fundamental rights expressly enshrined in the Constitution and those recognized by the State through the ratification of international human rights instruments.  The Commission also notes that, with the creation of an exclusive Tribunal for protection of the Constitution, and the Judiciary Council ("Consejo de la Judicatura") and the Institute of the Judiciary ("Instituto de la Judicatura") as the bodies responsible for the administration and disciplinary control of judicial personnel, a step was taken towards decentralizing the functions of the Supreme Court of Justice, which workload was and continues to be a concern, as detailed in this chapter.

49.       Other noteworthy legal and institutional changes are: the decision granting independence to the Prosecutors’ Office, which until 1993 came under the Ministry of the Interior and Justice; the creation of a national system of Public Defenders; the amendment of rules for electing judges, and regulating the judicial career; the legal establishment of a professional career of prosecutors; and the implementation of a new system of criminal prosecution with greater guarantees, at least in theory.

50.       The Commission observed that these aspects have given Bolivian citizens the sense that they can participate more effectively in the administration of justice, with a better understanding of legal language and knowledge of the personalities in the judicial system, so that there is now less skepticism about that system than in the past.[14]  Yet despite this slight improvement in public perception of the Judiciary, government authorities and civil society alike continue to insist that, despite legislative or institutional changes, the administration of justice in Bolivia is marred by procedural delays and corruption.[15]

51.       Important steps have been taken on behalf of the most vulnerable sectors of society or those at special risk, with the creation of "agrarian courts" for the settlement of land disputes.  Progress has also been made through special legal amendments such as Law 2620 of 1999, the Juveniles Code, and Law 1674 of 1995 on family violence.[16]  Nevertheless, as discussed below, the Commission received information to the effect that none of these measures has gone beyond the legislative stage because they are not functioning adequately or with the necessary mechanisms to make them effective.

52.       Civil society, and human rights defenders in particular, believe that the institutional crisis in the administration of justice is the main obstacle to their work.

53.       Following is the analysis of the issues relating to the administration of justice, identified by the Commission during its visit.  Some recommendations will be included at the end of this section.

B.         Access to justice

1.         General aspects

54.       The State as well as various sectors of civil society agree that the main problem with Bolivian justice is that it is not accessible to all citizens, and that even if people can overcome the barriers to access it is not always possible to obtain judicial responses to disputes and, in general, to the demands of society.

55.       In general terms, the problem of access to justice must be viewed from a dual perspective that includes both the physical possibility of taking action before the courts, and the real prospect of obtaining a prompt response, consistent with the specific legislation in question.

56.       As detailed below, the coverage of justice services in Bolivia is minimal, and this is the main obstacle to access.

57.       Another aspect that seems to impede effective judicial responses is the alleged corruption among judges in Bolivia, involving primarily political interference and influence peddling as the only way to obtain a decision.[17]  The Commission was informed that in the eastern part of the country, justice officials are influenced by powerful economic groups, and people who do not have the means to influence decisions have no access to the system.  It is important to mention that the NGO Transparency International indicated in its 2005 report that the judiciary is the fourth most corrupt institution in the country.[18]

58.       Another aspect that impedes access to justice is that alternative dispute settlement services, both from the public sector and for civil society, are not adequately available in all parts of the country, and are distributed without any specific criteria.[19]

59.       The Commission was also informed of the lack of training of justice officials in terms of the treatment of victims, taking into account the specific situations and the human rights violations they have suffered.  As detailed below, there are practices that violate victims' rights, particularly those vulnerable or at-risk such as children, women, and the extremely poor. Generally speaking, this situation leads them to abandon judicial proceedings, and constitutes a factor for impunity.[20]

60.       The Commission also noted some problems with the budgetary allocations for the administration of justice. It found that the lack of physical infrastructure, resources and funds in many rural areas is such that justice services are nonexistent or inadequate to meet people's needs.[21]  According to information received, although there was a significant increase in budget funding for criminal action in the Prosecutors’ Office and the courts in 2003, this has not necessarily been reflected in any improvement in infrastructure, technical support, and institutional administration.[22]  In other areas, the situation is much worse. Funding for the justice system in 2004 amounted to 0.84% of the national budget: 64.21% of the national budget is allocated to the central administration, which covers the three branches of government.  Of that percentage, 62% is absorbed by the executive, while the judiciary receives less than 1%.[23]

61.       The Commission is concerned at these figures, for they suggest that resolving the problems with the administration of justice in Bolivia is not a real priority that includes the respective budgetary allocations.  The situation requires prompt measures, for its effects can be seen daily in the lack of prospects for justice in Bolivia.

2.         Coverage and distribution of justice services

62.       The Commission is deeply concerned at the shortage of personnel of the Judiciary and the Prosecutors’ Office around the country.  It took note of the following figures on the physical presence of various institutions at the municipal level.

63.       Only 180, or 55%, of Bolivia's 327 municipalities have a judge; only 76, or 23%, have a prosecutor; and only 11, or 3%, have a Public Defender[24]. Despite the creation of "agrarian courts" for resolving land disputes, they are operational in only 43 municipalities.[25]

64.       These figures on justice personnel are reflected as follows at the departmental level: in Chuquisaca, 9 of the 28 municipalities have judicial authorities present; in La Paz, 56 out of 80; in Cochabamba, 22 out of 44; in Oruro, 21 out of 35; in Potosí, 17 out of 38; in Tarija, 3 out of 11; in Santa Cruz, 33 out of 56; in Beni, 10 out of 19; and in Pando, 12 out of 15.[26]

65.       The Commission notes that in the last two years the Judiciary Council has taken some steps, such as the creation of 54 new courts, 25 in capital cities and in El Alto, and 29 in provincial towns.[27] Nevertheless, while this implies a fairly significant increase in the number of courts, coverage remains very limited.  For example, the density ratio of local justice officials to the population was 12,455 persons per court, in 2003.[28]  A recent report on access to justice found that there are 10.5 judges for every 100,000 inhabitants in Bolivia, with wide geographic discrepancies: in El Alto there is one judge for every 30,000 people, and only two family judges for every million, while in Santa Cruz there is one judge for every 16,000 people.[29]

66.       In addition to the glaring absence of judicial officials, the Commission noted that in areas in which there is such an authority, the citizens generally have very little information about the services offered.[30]  It also found the inadequate distribution of officials for the most common types of disputes,[31] reflecting the fact that technical criteria are not used to determine the allocation of resources.[32]

67.       These figures are alarming, because they reflect an endemic situation where coverage of the administration of justice is minimal, and this effectively excludes certain sectors of society from any possibility of access to justice, especially in extremely poor rural areas, inhabited for the most part by indigenous peoples and peasant communities.[33]

68.       The Commission reminds the Bolivian State that, pursuant to Article 25 of the American Convention, one of the human rights that must be guaranteed is that of judicial protection, which implies that all persons must have the possibility of recourse to the courts, and must be able to obtain a response to their demand within the guarantees of due process established in Article 8 of the Convention.  This right presupposes that there is a judicial system that covers as much as possible of the national territory, in accordance with the population census.  While the Commission recognizes that full judicial coverage is a complex task that requires a great budgetary effort, the State must take all measures within its power to achieve this.  In light of the State's obligation to guarantee access to justice for all persons within its jurisdiction, it is unacceptable that there should be no judges in more than half of the municipalities.

69.       In addition to these general problems regarding access to justice, the Commission learned of more specific situations affecting certain sectors of society, including women, children, indigenous peoples and peasant communities.  These aspects are detailed in the sections on each of these groups, under the heading of access to justice.

C.         Guarantees of independence, impartiality, transparency and suitability

1.         General aspects

70.       The Commission noted various elements that call into question the independence, impartiality and suitability of judges in Bolivia. In the first place, as detailed in this report, it found shortcomings in the process of appointing justice officials and those of the Prosecutors’ Office, and weaknesses and gaps in the disciplinary system.

71.       There is also a very strong perception that the executive and legislative branches do not respect the independence of the judiciary. The Commission received complaints about continuing interference by senior State authorities through public statements that directly challenged certain judicial decisions, or expressed positions on pending cases, particularly those of greatest sensitivity for public opinion.

72.       With respect to the legislative branch, the Commission is concerned that the Attorney General and even the case prosecutors are occasionally hailed before congressional commissions to report on specific cases that in practice are the most controversial ones. The Commission was told that this situation reflects a mistaken interpretation of Article 125 of the Constitution, which provides that the Attorney General's functions are to be exercised by the legislative chambers, by the Attorney General, and by other officials. It was told that Law 2175 of 2001, constituting the Prosecutors’ Office, is not clear as to the prosecutorial powers of the Legislature, for it gives that body certain powers over matters of national interest, in addition to the ability to hold senior officials accountable.[34]

73.       On this point, the Commission welcomes the recent decision of the Constitutional Tribunal stressing the responsibility of the Attorney General, and establishing that in the trial of senior officials, the prosecution function may not be exercised by commissions of the Congress, because this is a function of the Attorney General and, in any case, criminal charges can be laid by an eminently political body such as the Congress.[35]

74.       It is important to highlight that, during its visit, the Commission met with some Judiciary officials and prosecutors who expressed feelings of uncertainty and considered that their independence in solving cases was affected, given the social and political pressure generally exerted on them.

75.       There are other procedures that raise further questions among members of society and among some State officials, who referred to them as "legal forms of immunity" such as procedural privileges and specialized criminal jurisdictions that remain in effect.  The Commission received several complaints that there is no clear legislation or jurisprudence on this issue, and that in practice the excuse of protecting the public function has become a device underpinning an approach to the administration of justice that is excessively protectionist, formalistic and inquisitorial, procedurally inefficient, and open to political influence and social pressure.[36]  As indicated below (paragraphs 169-171), political pressure and the lack of clarity about procedures when senior State officials are involved, has obstructed the pursuit of investigations into the repression of demonstrations cited in the introduction to the report.

2.         Appointments and the professional career of judges and prosecutors

76.       The Bolivian Constitution provides that the 12 ministers of the Supreme Court of Justice, the five Magistrates of the Constitutional Tribunal, the four members of the Judiciary Council, the Attorney General and the Ombudsman are to be elected by a two-thirds vote of all members of the Congress, in the case of members of the Supreme Court, and by a two-thirds vote of members present in the case of the other authorities.  The Ministers of the Supreme Court of Justice appoint the judges of the District Superior Tribunals (court acting with a panel of judges) and they in turn appoint other judges. All judges are appointed from lists provided by the Judiciary Council.[37]

77.       When it comes to the selection of ministers and magistrates of the Supreme Court and the Constitutional Tribunal, and the Attorney General, the Commission was told that these appointments continue to be made through lack of transparency procedures, and that the constitutional reform of 1994, on the two-thirds vote, did not remedy this situation.[38]

78.       In addition to complaints about the lack of transparency in this selection process, the Commission is concerned at the large number of positions that remain vacant for months at the highest levels of the State.  For example, at the time of the Commission's visit, more than half of the full and alternate judgeships of the Constitutional Tribunal[39] and the Supreme Court were temporarily vacant.  This situation, which constitutes a risk to the ongoing functioning of the senior bodies of the Judiciary, is aggravated by the lack of an effective system of alternates, especially in the Supreme Court.

79.       The Commission learned that the President of the Republic recently issued Supreme Decree 28.993, appointing four members of the Supreme Court as interim judges until permanent judges could be appointed by a two-thirds vote of the Congress.[40]  The Commission was also informed that recently the Constitutional Tribunal adopted a decision to cease the term of office of the members appointed on the basis of their provisional appointment and the need that Congress appoints the Ministers definitively.  Apparently that decision originated a conflict between the Executive and the Judicial branches and the magistrates of the Constitutional Tribunal that adopted the decision are now under a "responsibilities trial" for adopting judicial decisions contrary to Constitution and law.  Besides the discussion whether the decision is constitutional or not, the Commission considers that the mechanisms of provisionary appointment could fail to guarantee the independence of the judiciary of the person appointed for the higher exposure of judges to external pressures affecting them and the beneficiaries of the service of justice.[41]  This situation also reveals the institutional weakness of the Legislature to appoint important judicial authorities through constitutional procedures that ensure judicial independence and impartiality.

80.       On the selection of other judges, Law 1817 of 1997, governing the Judiciary Council, created the judicial career system, which includes the following subsystems: i) entry; ii) evaluation and tenure; iii) qualifications and training; and iv) information.

81.       Despite this regulation, the Commission received complaints that the judicial career has not been effectively implemented, and that traditional selection systems dominated by political interests are still used.

82.       In general terms, it is denounced that the administration, implementation, monitoring and evaluation of career judges are still limited and inefficient, because of the centralized and bureaucratic structure responsible for these tasks; the lack of procedures for decentralizing careers at the District level; and the financial weakness of the Judiciary Institute.  However, there is consensus that the Institute’s work has produced good results and has reduced corruption, at least in the initial stages of entry to the judicial career.[42]

83.       Criticism tends to focus on the selection stage, after the list of candidates has been sent by the Judiciary Council to the other bodies responsible for appointing judges, which may and often do use different criteria, in most cases ignoring the initial technical evaluation resulting from the entry competitions.  As the Commission was informed, the regulation of the subsystems of the judicial career make no reference to the order of selection at the time the lists are presented, which means that, regardless of the results from the initial evaluations, the appointing bodies are free to select names from the list in accordance with their own criteria. The Commission also received information on the lack of tenure for judges.[43]

84.       Bearing in mind the Basic Principles of the United Nations on the Independence of the Judiciary, the Commission believes there is a direct relationship between guarantees of independence and impartiality in the administration of justice, as a precondition for meeting the standards of due process, and the creation and strengthening of transparent mechanisms for the appointment and promotion of judges on the basis of their qualifications, and not for other, improper motives.[44]

85.       The Commission was also concerned to note that the mechanisms established by the Regulations for the Judicial Career for controlling the suitability of candidates have not been implemented. That regulation requires judges to be evaluated every two years and that, depending on their score, they may be automatically promoted or they may be challenged by the citizens.  Nongovernmental organizations have reported that no such evaluation has been conducted since 1998.

86.       In addition to the foregoing, the Judiciary Council has been criticized over delays in preparing lists for the appointment of judges, magistrates and support personnel, and in preparing the Regulations for the Judicial Career.[45]

87.       An example of the effects of the failure to implement the judicial career and of all of these shortcomings is the recent challenge to more than 30 judges of the District Courts who are still serving although their appointments have expired because they entered the Judiciary during the transitional process and for a specific period.  Because of the failure to appoint new judges using the judicial career procedures, these judges are unclear about their positions and persons who litigate before them are uncertain about the validity of the decisions issued by these judges after expiry of their appointments.[46]

88.       Complaints about the shortcomings in the appointment of officials extend as well to the public prosecution offices at all levels.  For example, the Commission is concerned for the institutional difficulties in the appointment of the Attorney General.  This situation implied that the former District Prosecutor of Chuquisaca assumed the position on an interim basis since September, 2006 until now.[47]

89.       The Commission also learned that the nine district prosecutors, who follow the Attorney General in the order of hierarchy, were functioning on an interim basis for more than 10 years.

90.       In the face of this situation, President Carlos Mesa promulgated a decree on July 30, 2004, appointing the nine district prosecutors under supposedly constitutional powers.  The President's intent was to resolve the problem of politicization of the positions and the lack of institutional guarantees.  That decree was declared unconstitutional by the Constitutional Tribunal in December 2004, on the grounds that, under the Constitution, the President can only appoint positions that fall within the responsibility of other bodies if those bodies are in recess, and if the previous incumbent has died or resigned.  These conditions were not fulfilled, and the decision was therefore ruled unconstitutional.  Notwithstanding this, and in order to keep the basic political institutions operating without interruption, the Tribunal delimited the effects of its decision, ordering that the bodies legitimated by the Constitution should elect those authorities promptly.[48]

91.       In effect, it was only in January 2005 that the nine district prosecutors were appointed by the National Congress, as required by the Constitution.  The Commission recognizes that steps were taken to deal with the interim status of those authorities, but it notes that there have been continued complaints of irregularities in the appointment of district prosecutors, reflecting the direct influence of local political and economic pressures.

92.       With respect to the system of entry and tenure for prosecutors, Law 2175 of 2001 created the professional career of prosecutors, but it has yet to be consolidated in the country.

93.       The Commission recognizes the recent efforts to implement the career system in the Prosecutors’ Office through the respective human resources department, and the public competitions that were held in May and October 2005 and in May 2006, designed to appoint approximately 300 public prosecutors.  Nevertheless, this evaluation process ended with 35% of the selected candidates on stand by[49] and there is no information whether they actually took up their positions or not.

94.       While the Commission is pleased that the Prosecutors’ Office is open to allowing various sectors of civil society and NGOs, universities and the Bar Association (“Colegio de Abogados”) to observe internal and external competitions for the selection of prosecutors,[50] it continues to receive complaints about corruption in their final appointment,[51] and their lack of stability in their professional status in practice.

95.       An example of the foregoing can be found in the provision of the Organic Law of the Prosecutors’ Office, which requires it to use the means necessary to avoid interruption of service.  This has meant that in practice, to avoid entry through the career system, district prosecutors abuse the mechanism of direct contracting for their prosecutors, in total disregard of legal procedures.  This practice has been growing, and has reached alarming proportions.  For example, the Commission was told that one-half of the prosecutors in the district of La Paz were recruited by this method.[52]

96.       Shortcomings in establishing a professional career of prosecutors are an aspect of concern to the Commission, given the essential role that the Prosecutors’ Office plays in promoting criminal investigations, a role that requires independence, impartiality and suitability on the part of the prosecutors to ensure that their work is effective and will contribute to eliminating the factors of impunity in human rights cases which, as indicated below (paragraphs 153, 154 and 163), frequently have to do with the action of the investigating officials.

3.        Functional control and disciplinary system of the Judiciary and the Prosecutors’ Office

97.       In addition to criticisms about corruption in the systems for appointing judicial officials and prosecutors, the Commission noted that the mistrust and lack of legitimacy of these institutions extends also to legally established disciplinary and control mechanisms.[53]

98.       The Commission welcomes as a step forward the possibility of consulting judicial decisions at the official web sites of the Supreme Court and the Constitutional Tribunal as an important element in bringing publicity to proceedings.[54]  However, it notes that in general the mechanisms of internal and external control have still not been implemented or are not working properly. In practice the performance in the administration of justice is not measured by any standards and indicators of quality, efficiency and effectiveness of the services provided, nor are there any mechanisms for making judges and prosecutors accountable to society for their performance.[55]

99.       There is a general perception of excessive bureaucracy within the Judiciary Council, which implies a waste of budgetary funds to the detriment of other judicial bodies.  As well, the Council is criticized for being ineffective in meeting the salary and material needs of its officials and their offices, and in creating courts in a pattern that does not correspond to the workload in different areas.[56]

100.     The Commission also observed that both the Prosecutors’ Office and the various judicial bodies do not have adequate systems for keeping regular and unified statistics.  Nor is there any standardized registry of criminal investigations, for the police assigned to each case keep disorganized files that make it difficult to update and provide information on the status of individual cases.[57]

101.     The Commission also received information showing that disciplinary procedures for judges and prosecutors are ineffective.  As to judicial officials, the Commission noted that the disciplinary powers of the Judiciary Council are challenged both by civil society and by various government bodies, including the judiciary itself.[58]

102.     The Commission noted that the Constitutional Tribunal's ruling that dismissal for serious breach of discipline is unconstitutional has aroused sharp criticism.  As interpreted by that tribunal, the power of dismissal violates the principle of tenure that the Constitution grants to judges.  The Tribunal holds that judges may only be removed upon a confirmed criminal conviction, and not in the context of disciplinary proceedings.

103.     The Commission noted some confusion in the way the Judiciary Council handles its disciplinary powers in the case of serious misconduct in the administration of justice that does not constitute a crime but that should be punished by dismissal according to existing laws.[59] In addition, the Commission is concerned that criminal action is the only mean of removing persons who have committed serious breaches or who do not meet the standards of suitability, in a context of complaints of inaction by the Prosecutors’ Office in offenses relating to the administration of justice, particularly the delay of justice, which is one of the principal problems obstructing access to justice in Bolivia.[60]

104.     The Commission observed that although the Prosecutors’ Office had made some efforts, such as creating a National Council and an Inspector General for the Prosecutors’ Office, and Internal Audit Offices, these have yet to be fully implemented, and so these bodies are functioning on an interim or ad hoc basis, depending on the circumstances.[61]

105.     While Law 2175 of 2001 establishes a system of hierarchy according to which the case prosecutors are supervised by the district prosecutors and these in turn by the Attorney General, in practice such supervision amounts to requiring quarterly reports from those officials, and although the Commission was informed that false information has been submitted in some of those reports there is no record of any disciplinary proceedings against the officials concerned.  The few disciplinary cases of which the Commission is aware are moving very slowly, because of institutional problems in the Prosecutors’ Office, in particular the instability and turnover of its personnel over the years.[62]

106.     The Commission considers that one of the fundamental aspects of effective access to justice is the guarantee of suitability of the officials involved, both those in the Prosecutors’ Office in cases of a criminal nature, and those of the judicial authorities in all cases.  To ensure such suitability demands clear rules for promotion within the professional prosecutor and judicial careers, and strengthening of a disciplinary system which, in strict compliance with the demands of due process, will exert control over the errors committed by justice officials when these frustrate the legitimate expectations of users of the system.

D.         Implementation of the accusatorial criminal prosecution procedure

1.         General aspects

107.     On March 25, 1999 the current Code of Criminal Procedure was promulgated, reforming the 1973 code, and it came into force for the entire national territory on May 31, 2001.[63]  As noted above (paragraphs 48 and 60) this marked a substantial change in the Bolivian judicial system, for it incorporated the accusatorial criminal prosecution procedure into criminal procedures.

108.     The principal guidelines governing the reform, at least in theory, from an inquisitorial to accusatorial criminal prosecution procedure were the following: (i) the Prosecutors’ Office was to have independence and exclusive control and direction over the investigation, while the previous investigating magistrate (“juez de instrucción”) was now to guarantee fundamental rights; (ii) trials were to be oral and public, and the judgment was to be issued in the courtroom; (iii) trial tribunals (tribunales de sentencia) were created, consisting of two professional judges and three lay jurors in cases of crimes for which the penalty exceeded four years; (iv) criminal action was to lapse if the preparatory stage exceeded six months, or if the entire process exceeded three years without a definitive sentence; (v) the process was to be simplified through various measures such as summary proceedings, dismissal of criminal action for restitution of damages, the scope of discretion of prosecutor to accuse (“principio de oportunidad”) with judicial control, conciliation, and conditional suspension of proceedings; and (vi) there was to be judicial oversight of the sentence execution stage.[64]

109.     One aspect confirmed to have been implemented relates to publishing the judgment of first instance, and having it read at the wrap-up of the oral and public trial.  Most cases are handled in this way, and an extension of three days may be requested for drafting the text in exceptional cases.[65]

110.     The Commission also recognizes the efforts to create courts to facilitate implementation of the reform, as reflected in a 19% increase, to September 2004, in the number of criminal courts.[66]

111.     The Code assigned the task of implementing the new system to two bodies: the National Commission for Implementation of the Criminal Procedures Reform, responsible for defining policies and overseeing their compliance; and the Executive Committee for Implementation, responsible for carrying out those policies.  Those two bodies established the Technical Implementation Team, which focuses on four areas: regulatory adaptation, diffusion, training, and institutional adjustment.[67]

112.     In these areas of work, the Commission noted that regulatory adaptation has produced significant results, such as the new Organic Law of the Prosecutors’ Office; the Law on the Execution of Criminal Sentences and its regulations; the Law on the National Public Defender Service; the Regulations for the Administration of Confiscated Goods; Amendments to the Customs Law; Amendments to the Tax Code; a first draft of an organic law for the National Police; a draft law on procedures for the trial of senior government officials; and a draft law establishing the community justice system.[68]

113.     The Commission also recognizes and welcomes the recent efforts to address problems in implementing the accusatorial criminal prosecution procedure.  It was informed of initiatives such as creation of an organization for service to the public through the Case Registration and Analysis Units for receiving complaints, providing guidance to users, and preliminary screening of cases that are not of a criminal nature so that they can be sent to quick settlement units or to specialized investigation divisions.

114.     The Commission also learned of the recent creation of Evidence Notification and Deposit Centers, and of the intent to adopt measures to increase protection for victims, witnesses, and also officials of the Prosecutors’ Office responsible for pursuing complex cases that might put them at risk.  The Commission hopes that the necessary budgetary and human resources will be provided so that these major initiatives can be implemented shortly.

115.     The Commission also welcomes the positive impact that the new Code of Criminal Procedure has had in reducing the number of arbitrary arrests and cases of police abuse during arrests.[69]

116.     Nevertheless, most of the areas where the reform is to be implemented still have serious institutional and operational weaknesses that could well frustrate the expected outcomes and could exacerbate the long-standing problems of impunity and lack of access to justice in Bolivia.

2.         Problems identified

117.     The Commission received general information about institutional weaknesses arising from lack of training, infrastructure, technical support and personnel stability, as well as the inequitable distribution of cases among courts and tribunals.[70]

118.     The Commission found that one of the main weaknesses in the Prosecutors’ Office is the disparity and lack of coordination with respect to criteria for criminal prosecution, and the lack of effective controls over the performance of the prosecutors.  These situations leave too much autonomy to the district level and even to individual prosecutors, particularly when it comes to rejecting complaints, prioritizing cases for investigation, applying alternative solutions, applying scope of discretion, selecting cases for oral trial, and even the parameters for allocating prosecutors by type of crime.[71]

119.     As mentioned above (paragraph 108), one of the structural reforms was to give the Prosecutors’ Office exclusive responsibility for directing the investigation. Nevertheless, in practice this important change has not been effectively implemented.[72]  In response to the situation, an Agreement on Institutional Cooperation was signed and a Manual of Actions to be taken by the prosecutor and the police during the investigative stage was prepared. There are complaints, however, that the police are acting as if they still had control and direction over the investigation before submitting the case to the prosecutor, and in their investigation strategy they are following orders from their superiors in the police force, rather than those issued by the corresponding prosecutor, which in most cases consist of standard formats that do not reflect the particular circumstances of each case.[73]

120.     Besides ignoring the spirit of the reform, this situation constitutes a factor for impunity, given the weaknesses of the so-called "police investigation", particularly when it comes to the custody and protection of evidence.[74]

121.     With respect to mechanisms for early termination of proceedings, it is important to mention that there is no judicial control over dismissals and that the only way to challenge them is by appeal to a superior prosecutor.  This aspect is of concern to the Commission, because one of the most frequent complaints over implementation of the accusatorial criminal prosecution procedure is that the investigations are not thorough, a fact reflected in the significant increase in the number of cases closed, rejected or dismissed without further justification, representing more than 70% of complaints received.[75]

122.     The Commission is concerned by the fact that the prosecutor must screen all complaints, a duty that occupies most of his time and leaves him little opportunity to conduct and direct the investigations for which he is responsible.  The Commission notes that most rejections are decided when the six-month investigation period has expired, even when the rationale for the rejection is that the acts are not of a criminal nature, and is based on patently obvious criteria that should not require further analysis.[76]  In practice this results in long periods of inactivity for the prosecutors on the other cases under their responsibility.[77]

123.     As to the trial stage, the Commission learned of various shortcomings that have a direct impact on complying with procedural deadlines and on the real possibilities of holding public hearings as legally required.  These weaknesses include lack of coordination between the notification offices and the courts and tribunals. In practice, given the shortage of notification officers, summonses are issued between 24 and 48 hours before the hearing is to be held, and this creates difficulties of various kinds, especially for the notification of jurors, and can entail repeated suspensions of hearings.[78] Moreover, there are no uniform criteria among the various jurisdictional units within the same district for setting such hearings.[79]

124.     In contrast to the trial tribunals, the trial courts (juzgados de sentencia, which hear cases of crimes for which the penalty is less than four years) do not have courtrooms and use their offices to hold hearings. Consequently, they have no recording system and records are kept by the secretary, who uses his own portable tape recorder.[80]

125.     As well, while public opinion in general sees citizen participation as lay jurors in the mixed tribunals as a step towards democratizing justice, implementation of this measure has been obstructed because the voters’ lists that are sent to the district tribunals for selecting such judges by law are generally out of date, and it may be difficult to locate the selected candidates.[81] These lay jurors are also dissatisfied with the information provided to them on the case.[82] The Commission notes that these matters need to be properly regulated to avoid infringing Article 8 of the American Convention with respect to due process.

126.     When it comes to appeals level, the Commission was informed that the distribution of judges for hearing appeals is disproportionate. More progress has been made with the courts of first instance, since the system of appeals produces greater congestion in criminal proceedings.  The general perception of appeals is that they are inaccessible: only wealthy people can challenge decisions, because the Public Defender's office does not have a system for handling cases before the Supreme Court.[83]

127.     A point to note has to do with the length of the investigation and of the entire criminal process, which according to the reform is not to exceed six months and three years, respectively.  Despite this rule, the Commission noted that after the Constitutional Tribunal's decisions regarding the statute of limitations to criminal action there was deep confusion on the part of litigants, lawyers, prosecutors and even lower-ranking justice officials, most of whom saw the decisions as creating gaps in the law on certain issues that in practice have been left entirely to the discretion of the judges in each case.[84]

128.     This Tribunal interpreted the rule as meaning that the six-month term must start to run from the time the formal charge is notified, which means in practice the indefinite extension of the term in cases where there are several consecutive charges.  This suggests a gap in the control over the time in which the prosecutor must evaluate preliminary actions and issue a formal charge.[85]

129.     That same court also ruled that the three-year limit on criminal proceedings from the first act of investigation (defined as "the first accusation in judicial or administrative chambers")[86] does not apply automatically or absolutely, but must be determined case-by-case in light of the defendant's action.

130.     The Commission is concerned with the interpretation of the Constitutional Tribunal that the right to conclusion of proceedings within a reasonable time is not violated "when as the consequence of use of the various means of defense and appeals that the legal system provides; if through excessive precaution, the defendant prolongs the process needlessly (the capacity for precaution being inherent to any human being) he must assume the consequences of his acts, and in this circumstance the statute of limitations does not apply."[87] In effect, this interpretation has led to the systematic rejection of applications to apply the statute of limitations, on the grounds that the filing of legal appeals by the defense is tantamount to a delaying tactic by the defendant.[88]

131.     Regardless of whether three years constitutes a reasonable time limit for criminal proceedings in the terms of Article 8.1 of the American Convention (a situation that must be analyzed in each case, according to repeated rulings of the Inter-American Court),[89] it must be stressed that by virtue of Article 8.2.h) of the Convention, the right to challenge unfavorable decisions is one of the minimal judicial guarantees that States must respect, and under no circumstances may it be considered as an undue delaying tactic, with the legal consequence of preventing application of criminal procedure mechanisms to protect defendants from procedural delay.

132.     The foregoing acquires special relevance in Bolivia because, as the Commission verified, this is a major problem in the administration of justice that extends even to the Supreme Court in cases held over from the previous system of criminal trial.  The transition model from the previous system indicated that cases under that system must be concluded within five years, i.e. by May 2004.  The Supreme Court issued a report in September 2003 indicating that it had 4,000 cases pending because it did not have the budgetary capacity to resolve them, and that in its opinion the accusatorial criminal prosecution procedure did not have the financial backing required. In any event, this portion of the reform was declared unconstitutional, and to date there has been no progress in settling cases from the previous system.[90]

133.     On the other hand, the Commission is concerned that the most recent figures on the ratio of cases registered to cases resolved show that a great many cases fail to observe procedural time limits, both in the investigation phase and that of the trial.[91] For example, between January 2003 and September 2004 there were 13,842 cases registered in the juzgados cautelares (courts that handle preliminary proceedings and seek possible alternative solutions to cases) and only 422 resolved; there were 2,339 cases registered in the trial courts and 125 were resolved; and there were 757 cases registered in the trial tribunals and 112 were resolved.[92]

134.     The Commission also received information that with constitutional actions in criminal proceedings, such as habeas corpus and amparo (judicial remedy designed to provide rapid protection for fundamental rights), where the Constitutional Tribunal must be consulted after a decision is rendered, it takes more than nine months for that Tribunal to decide.[93]

135.     With respect to due process, the Commission noted some irregularities at various stages of the process. On one hand, it noted the problems facing the Public Defenders in holding private interviews with defendants,[94] and on the other hand it noted that interrogations are conducted in the absence of the prosecutor and the public defender, who merely sign a form at the beginning of the procedure and a report at its end.  The Commission also received information that, to make up for the staff shortages in the Public Defender's office, when the person handling the case is not present any available lawyer may be called to take over the defense of the accused, without having any prior knowledge of the case.[95]

136.     In addition to these practices, the Commission was informed that interrogations continue to be clearly inquisitorial, with incriminating, suggestive and misleading questions.  Despite these anomalies, which affect the exercise of the right to defense, the defendant's statement is still taken as fundamental evidence in the police investigation, especially in support of applications for precautionary measures such as preventive arrest.[96]

137.     Another aspect noted by the Commission is that both the prosecutors and the police investigators continue to observe the concept of investigation secrecy (“secreto sumarial”), a situation that impedes access by the defense to the case files, under the excuse that the files contain the strategy for possible charges. In practice, the defense is usually able to ask the judge for access to the information only during the hearing on precautionary measures.[97]

138.     Finally, the Commission recognizes that, with respect to victims, the new Code of Criminal Procedure and the Law on the Prosecutors’ Office incorporate important changes such as the right of non-parties to be informed of progress in the proceedings; the power to exercise rights and to be represented by organizations in various circumstances; and the possibility of deciding between criminal or civil action to obtain reparations, under an expedited process in the first case.[98]

139.     Nevertheless, the Commission observed no significant changes in practice.  For example, there has been no action yet to implement the program for permanent protection of witnesses, victims and officials, as called for in the Prosecutors’ Office Act.[99]  This means that there has been no resolution of the historic problems affecting victims’ rights, such as the excessive formality surrounding their participation, the failure of the prosecutor to hear their opinions and statements, and in general circumstances of revictimization in many instances.  Another problem facing victims results from the high number of rejections during the preliminary investigation: because the prosecutors do not direct the investigation, the victims must initiate it and try to find evidence if they want to continue the process as plaintiffs.[100]

3.         The Public Defender

140.     The institution of the Public Defender was challenged by many sectors of the State, including State institutions that have to work with that office, as well as civil society.  The Commission considers that Law 2496 of 2003, creating the National Public Defender Service as a decentralized institution of the executive branch, constitutes a first step in strengthening an entity that has a fundamental role in the State's duty to guarantee the technical defense of defendants who are unable to pay for it.  Among the highlights of this initiative are: the creation of an administrative career to depoliticize the system; the establishment of greater disciplinary controls over the work of the public defenders; the possibility for the user to submit complaints about the service; and coverage of the service as of the initial police investigation.[101]

141.     As the Commission was told, this system still coexists with the previous defense system, which was criticized for years as producing ineffective technical defense in which the lawyer merely rubber-stamped proceedings.[102]

142.     The Commission was concerned at the persistence of serious institutional weaknesses in the Public Defender Service, most of them attributable to the entity's low budget.  The Commission learned, for example, that in 2004 Bolivia had a total of 56 public defenders, i.e. an average of 0.8 for every 100,000 inhabitants, a situation that necessarily affects the possibility of effective defense, given the excessive workload on each defender.[103]  Currently, the public defense system has 73 defenders throughout the country, and in 2005 the rural public defense service, covering approximately 30 localities, was suspended.[104]

143.     In the Commission's view, this is reflected in the high number of complaints about the effectiveness of the service.  The main complaints that the Commission received over the action of the public defenders had to do with the poor quality of the defense; the delay in presenting submissions; the lack of legal guidance for the defendant; and the fact that the defender systematically advises the defendant to make a confession, in order to be subjected to a summary proceeding.[105]

144.     The future outlook is not promising.  As the Commission was informed, the institution's own direction told that the budget was designed “to provide 25% coverage of courts in the most populous provinces, and that to achieve 100% would be very difficult for the State alone.”[106]  In fact, according to the most recent figure, the Public Defender's office covers 126 courts out of a total of 343.[107]

145.     The Commission reiterates that an effective Public Defender service is a necessary condition for improving access to justice,[108] and it hopes that measures will be taken in the short term to implement the service fully at the national level.

E.         Factors of impunity in cases of gross violations of human rights

146.     The Commission considers that the shortcomings described in this section of the report reveal endemic problems in Bolivia, in the lack of access to justice, and the absence of an efficient Prosecutors’ Office and of a judiciary that offers guarantees of independence and impartiality.  These are fundamental requisites for fighting impunity as one of the international obligations of the Bolivian State with respect to the persons under its jurisdiction who have been the victim of human rights violations.

147.     Because impunity is such a serious problem for Bolivian society, the Commission has paid special attention to the way in which the State has approached the investigation of human rights violations, both the forced disappearances that occurred during the dictatorships from 1964 to 1982, and the excessively repressive police and military action against demonstrators under democratic governments.  The irregularities apparent in these cases are emblematic of the obstacles facing victims and their relatives in determining the truth and in obtaining justice and reparations in Bolivia.

1.         Impunity in cases of forced disappearances

148.     The Commission has been following the measures taken by the State to fulfill its duty to investigate forced disappearances, to locate the remains of the victims and to punish those responsible.  During its visit the Commission found that progress in this area is tenuous. It verified that, despite creation in 1982 of the National Commission to Investigate Forced Disappearances (“Comisión Nacional de Investigación de Ciudadanos Desaparecidos Forzados”), it was dissolved in 1984 with little to show for results.

149.     The Interagency Council for the Clarification of Forced Disappearances (“Consejo Interinstitucional para el Esclarecimiento de Desaparecidos Forzados”) was created in 2003[109], but as the Commission learned it only began formal operations in August 2005, and has yet to consolidate itself.  By regulation, this Council includes representatives of the relatives of missing persons. According to the State the progress it has made can be summarized in terms of representation before the courts to demand prompt processing of cases; incorporation of the Attorney General as an active member of the council; and the allocation of a modest budget to search for remains.

150.     Although several criminal actions were initiated as a result of the investigation by the first Investigation Commission, the Commission noted that, more than 20 years after its launch, the outlook for justice is very dim.

151      On the basis of information received from the Ministry of Justice, the Prosecutors’ Office and civil society organizations involved in this issue, as well as relatives of victims, the Commission was able to identify the most common causes that have obstructed justice in these cases.

152.     On one hand, there is the lack of interagency cooperation, particularly between the Prosecutors’ Office and the Armed Forces. Government authorities themselves have the perception that the State security bodies cover up for their officers through mechanisms such as submitting incomplete or inaccurate information, excessive delays in responding to requests for information,[110] and failure to appear at investigation hearings.

153.     The Commission also received complaints about the passive attitude of officials responsible for the investigation, and about irregularities committed by those officials in their minimal efforts to collect evidence, and in assessing possible lines of investigation and obtaining proof as suggested by the victims' relatives.

154.     Another aspect of concern reported to the Commission by the Prosecutors’ Office involves failures, including some recent ones, in measures taken to locate the remains of missing persons.  That entity told the Commission that in a place where there were strong indications that human remains were to be found, a backhoe was used to inspect the area, operated by no specialized personnel following no specific protocol.

155.     The Commission was concerned to note that cases were continuously passed between judges, because of impediments, recusals and inhibitions. An emblematic case was that of José Carlos Trujillo Oroza,[111] in which the investigating judge was changed nearly 40 times, and jurisdiction was finally lodged with a civil judge, because no more criminal judges were available in the respective jurisdiction.

156.     All of these factors of impunity are exacerbated by the lack of a strong disciplinary system and the failure to implement mechanisms of control over the actions of prosecutors and justice officials in events that perpetuate impunity, such as those described in this section.

157.     The Commission noted that forced disappearance was recently made a crime, by means of a law published on January 21, 2006.  With respect to that text, the Commission reminds the Bolivian State that forced disappearance constitutes a multiple and continuing violation of human rights[112] and that failure to determine the whereabouts of the victims' remains, ignorance of the circumstances in which the disappearance took place, and failure to identify and punish those responsible will perpetuate the violation and extend its effect to relatives of the victims. In this respect, impunity constitutes a source of international responsibility for the State in light of its obligations under the Convention to guarantee human rights through investigation and punishment.

2.        Impunity in cases of excessive police and military force in the repression of demonstrations

158.     The Commission has also followed closely the excessive acts of police and military repression against demonstrators, which have resulted in hundreds of persons killed and injured.  The events that have most shocked public opinion are those that took place in the context of the "water conflict" protests in April 2000, the taxation protest of February 2003, and the "gas dispute" or "Black October" between September and October 2003, briefly described in paragraphs 15 to 21.

159.     The excessive use of force by State security agents and the consequences in terms of loss of life and harm to personal integrity, constitute publicly actionable crimes that States must investigate ex officio in order to identify those responsible, impose criminal or other penalties as appropriate, and establish adequate reparations for the victims or their relatives.

160.     Among the factors of impunity for such violations of human rights we find, similar to those indicated with respect to forced disappearances, the lack of coordination and in particular obstruction on the part of the State security institutions and individual officials.

161.     An example of this situation is the case of Ana Colque Quispe, who died during the disturbances of February 2003. A group of nongovernmental organizations formed a committee to monitor the case, in which her mother filed a criminal complaint that encountered a complete lack of cooperation, especially by the Army. As the complainant reported, that institution refused to provide copies of the reports supplied by the soldiers who took part in the events of February 13, 2003, under the argument that the documentation was under secrecy.[113]

162.     This was confirmed by authorities of the Prosecutors’ Office. The previous Attorney General declared that the obstacles impeding investigation of the violent acts of February and October 2003 included the fact that the military high command, although released from military secrecy, had refused to appear before the prosecutor to give statements that might have helped clarify the events.[114]

163.     Failures and delays in gathering evidence obstructed progress of the investigations.  For example, in March 2003, in interviews with Amnesty International, the prosecutors involved declared their concern over the lack of resources for carrying out their work, and problems with some of the autopsies and in collecting evidence, because the bodies had been moved from the scene.[115]

164.     Another aspect that the Commission considers a factor for impunity is that the investigation of the April 2000 events was conducted by the military criminal justice system, in which the soldiers involved were absolved.  The events of February 2003 were also handled for a time through the military justice system, because the defendants were four soldiers on active duty.  The Commission welcomed the ruling of the Constitutional Tribunal allowing an appeal for amparo against military jurisdiction in these cases, on the grounds that the crimes committed by soldiers must be judged by the ordinary courts, for although soldiers are members of the Armed Forces this was not a “crime of function” that affected military legal interests, but rather an ordinary crime that involved the violation of human rights.[116]

165.     Nevertheless, the Commission is concerned that the previous decision was sharply rejected by the Armed Forces, which ordered troops confined to barracks.  Although this order was lifted after a meeting between the military high command and former President Carlos Mesa Gisbert, other devices were used to protect officials from ordinary justice.

166.     The Armed Forces presented a demand to amend the decision of the Constitutional Tribunal, which they rejected. They also prepared a draft law interpreting Article 209 of the Constitution[117] to mean that only the military courts could decide on questions of military jurisdiction or matters of military competence, and that the organs of military jurisdiction must be guaranteed independence.

167.     The Commission reiterates the jurisprudence of the inter-American system in the sense that military criminal jurisdiction is restrictive in its scope and applies solely to personnel on active duty who commit crimes that affect juridical interests of a military nature, excluding absolutely the consideration of human rights violations and the judging of civilians.[118]

168.     On this last point, while the Commission recognizes that progress has been made on this issue with the decision of the Constitutional Tribunal, there are still provisions from the Organic Law of the Armed Forces,[119] the Organic Law of Military Justice,[120] and the Military Criminal Code[121] according to which the military courts could conceivably judge civilians for "crimes of a military nature".  Nor is the Constitution clear in this respect, since the guarantee of Article 34 is limited to indicating that "those who violate constitutional rights and guarantees shall be subject to ordinary jurisdiction."  In this respect, the Commission reminds the State that in applying military criminal justice to these acts of social repression or to acts of any nature, international standards relating to independence, impartiality and the "natural judge" must be observed.

169.     An issue of special importance in the investigation of these acts of political and military violence is the so-called "trial of responsibilities" for prosecuting senior State officials, including the President of the Republic and his ministers.  The Commission noted that this has been an issue of special public interest, because former President Gonzalo Sanchez de Lozada and his then-cabinet ministers are being investigated under this provision for the events of October 2003.

170.     The Commission notes that there are legal gaps in the procedures that must be followed in these trials.  As it was informed, notwithstanding laws 2445 and 2623, there is a void as to which authorities of the executive may be tried under this procedure, and the mechanisms of notification.

171.     Application of this provision to acts of police and military violence has not been uniform. Initiation of the procedure was not authorized for the events of February 2003, but it was authorized for the events of October 2003.  With respect to the latter events, there has been no progress in the investigation, because it was not possible to notify former President Sanchez de Lozada and some of his ministers.  The Commission noted obstacles facing the Bolivian authorities, despite legal and diplomatic efforts, to have this process continue, but the lack of notification and the recent declaration of some of the defendants as fugitives cannot be considered an excuse for paralyzing investigations against the other defendants, and for failing to identify all the other senior military officers responsible, and the actual perpetrators.

172.     The Commission is concerned that the persons responsible for these events have not yet been identified, and because of the shortage of personnel assigned, proceedings have not moved beyond the investigation stage.  The Commission urges the State to give impetus to the investigations and the resulting trials in order to punish those responsible and obtain reparations for the victims and their relatives.

173.     Finally, the Commission noted some legislative efforts to establish reparations for the victims and relatives of the events of October 2003.  The Commission welcomes this initiative and urges the State to ensure that reparations are negotiated with the beneficiaries, and that they include moral and intangible damages, and do not exclude victims of other similar events.

F.         Recommendations

174.     By virtue of the above considerations, the Commission recommends that the Bolivian State:

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.