玻利维亚司法部长塞西莉亚•艾利翁•金特罗斯（Cecilia Ayllon Quinteros）在呈报报告时，谈到了玻利维亚推翻独裁以后经历的变革。她强调，对玻利维亚这样的发展中国家来说，摆脱殖民主义的影响并消除一切导致不公平与歧视的行为，是一项真正的挑战。玻利维亚的新宪法内容广泛，指明所有签署和批准的国际人权条约都高于国内立法。自1997年的上一次审议以来，玻利维亚的社会经济环境有了显著改善，大量人口脱贫，最明显的进步莫过于对向来处于弱势的土著人民赋权。
Presentation of the Report
CECILIA AYLLON QUINTEROS, Minister of Justice of Bolivia, recalled that in 1997 the dictatorships of neo-liberal Governments that had governed via states of siege that led to excessive violence against trade unions and situations of slavery, ended. Today, 31 years since recovering democracy, Bolivia had elected, via internationally recognized elections, South America’s first indigenous President, Evo Morales, who alongside rural peasant men and women represented the previously excluded groups who made up the majority of the population. The real challenge for developing countries such as Bolivia was to dismantle the machinery of colonization and eliminate all practices leading to inequality and injustice. In order to fulfil its mandate the Government had put in place educational policies to eradicate forms of colonialism which had engendered all related forms of intolerance. To recognize the plurinational culture of Bolivia was to recognize the equality of all rights of all Bolivian men and women, said the Minister, and to recognize that opportunity must be provided to all: the Government wanted to ensure that everyone had opportunities without distinction being drawn on skill, colour, origin or mother-tongue.
The new Constitution enshrined fundamental rights embedded in international, universal and regional human rights instruments; it was broad-ranging and classified all human rights, including, for the first time, recognition of the rights of particularly vulnerable groups. The Constitution also set out that all signed and ratified international human rights treaties had primacy over domestic legislation. Treaties ratified by Bolivia since its last review included the Optional Protocol to the International Covenant on Civil and Political Rights in respect of the abolition of the death penalty; the International Convention on Enforced Disappearances; the Convention on the Rights of Persons with Disabilities and its Optional Protocol; the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, and on the participation of children in armed conflict; and the Optional Protocol to the Convention on the Elimination of Discrimination against Women. Bolivia had also ratified the Optional Protocol to the Convention against Torture, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, as well as the International Labour Organization’s Conventions no. 169 on indigenous and tribal peoples, and no. 189 on domestic workers.
At the last review in 1997 the Human Rights Committee, in its concluding observations, said that the socio-economic situation had had a severe impact on the rights of people in Bolivia. Since then Bolivia had achieved unprecedented economic growth and in seven short years had really reduced extreme poverty, especially in rural areas, from 40.7 to 20 per cent. That had been done by nationalizing natural resources to ensure the control and possession of resources, and by eliminating impunity for transnational corporations. By July 2013 Bolivia had achieved an economic growth rate of 6.5, the third highest in all of Latin America. International reserves were over 50 per cent of gross domestic product (GDP), the highest in Latin America and the Caribbean. Bolivia had invested in several areas, particularly elementary-level schooling, including incentive payments to parents to send their children to school. Real empowerment had been seen in the traditionally vulnerable groups of indigenous peoples and women. Illiteracy had been eradicated. The legislative, political and economic foundations were being laid to build a better future for all Bolivian men, women and children, and Bolivia welcomed the Committee’s contribution to that process.
Summary of Replies to the List of Issues
CECILIA AYLLON QUINTEROS, Minister of Justice of Bolivia, summarized the most important issues in the light of the Covenant. She said that the new Constitution enshrined the principles of de-colonialization and re-acquirement of traditional knowledge and skills, and prohibited all forms of discrimination. In September 2012 the Special Rapporteur on contemporary forms of racial discrimination visited Bolivia, where he commended the State on progress made, including good practice, and highlighted challenging areas, such as racist groups that could not accept having an indigenous President. A major concern was ensuring that women enjoyed full equality, and progress in that area could be seen by women’s’ presence at all levels of Government; for example 50 per cent of the staff in the President’s Office were women. National elections led to a significant increase of women in parliamentary and senate seats, now 43 per cent.
Speaking about the large amount of new legislation passed since the last review, the Minister said a major achievement was the law to guarantee women had a life free from violence, which protected and provided reparations for women living in situations of violence and prosecuted perpetrators. The judiciary was being strengthened and the Government was working to clear the backlog of court cases, such as by the pardoning of over 250 persons. A new law provided compensation for persons against whom political violence had been perpetrated by agents of non-constitutional governments, and another law provided reparations to victims of torture, under which over US$835,000 in compensation had been paid to 488 beneficiaries so far.
The penitentiary system was being reformed and enlarged in order to reduce the problem of overcrowding, with three new prisons, with modern and progressive facilities, recently being opened. A new legal code guaranteed children and adolescents, especially girls, dignity and freedom from repression and violence in the family or at school or the workplace. Other pieces of new legislation included the National Human Rights Action Plan 2009 to 2013, as well as laws against racism and all forms of discrimination; to protect refugees; against trafficking in persons; on migration; on the judiciary; on indigenous peoples; on protecting members of the press; to support persons with disabilities; and to protect the elderly.
Questions by the Experts
An Expert said the fact that the State party was here was testimony and spoke volumes about its will to fulfil the Convention. The Expert thanked the State party for its detailed description of the sheer amount of legislation it had adopted, but said his concerns were about the implementation of that legislation. How could the Committee help Bolivians better access the United Nations appeal system? He also asked about lynching, saying that the Committee had been informed that lynching continued and that State actions were more concentrated on prosecution than preventative measures. He asked about the submission of complaints of torture, and the related declassification of archived documents.
Another Expert raised the issue of trafficking in persons, and noted that Bolivia continued to be a source country for trafficking. He hoped that the efforts taken by the State party to tackle the issue would have a practical and prompt effect. Few cases had been successfully prosecuted with perpetrators sentenced; for example in 2012 there were around 400 cases reported but only seven were prosecuted. Could the delegation explain why so few cases resulted in a sentence?
There had been serious problems of discrimination in both the public and private sectors, an Expert said, and there was a need to change prevailing attitudes, partly by education and partly by sanctions, to incentivize people not to discriminate. The Special Rapporteur on contemporary forms of racism had visited the country and pointed out the need to enforce prohibitive legislation and to change mind-sets. What was being done to ensure that discrimination led to negative consequences for those who discriminated?
Regarding sexual orientation and gender identity, an Expert said there was great need for educational measures to change attitudes, for the police for example, to help them recognize not only that it was wrong to discriminate on that basis, but also wrong to use violence against people for those reasons.
The State party said that significant progress had been made in increasing the numbers of women in decision-making posts, as illustrated by the Minister of Justice leading the delegation today, who was a woman. However, it seemed that sometimes women were appointed to decision-making roles as a second choice, the Expert said, also asking how women from indigenous communities were being promoted to positions of responsibility.
Violence against women and domestic violence were serious problems in Bolivia. The State party had partly responded to the Committee’s request for more data, but had not provided details of the number of complaints made and sanctions given. However, the State party was making progress in helping women be aware of their rights and remedies.
The Committee had been informed that as many as 67,000 illegal abortions took place in Bolivia every year and around 700 women were prosecuted annually. Legally, only victims of rape and incest could have an abortion, but only if they filed an official complaint and had permission granted by a judge, which was a barrier to them. The Committee urged Bolivia to decriminalize abortion, as the current law contributed to the maternal mortality rate. The Expert asked what measures the State party was taking to prevent unwanted abortions - not only in cases of rape and incest, but more generally for adolescents and young people who had unsafe sex. It seemed that religion got in the way of sex education.
Torture was raised by an Expert who asked about the definition of torture; were acts of intimidation by a public authority included? He asked about the status of the draft anti-torture law. The Committee had raised specific cases in its list of issues, and would like to hear updates on them. Many actions and programmes were in place to eradicate forced labour, an Expert noted, but could the State party describe what it was doing in practice?
An Expert raised the problem of overcrowding in prisons, and said that many people were in pre-trial detention who did not need to be there, and who were often absolved. Judges should use alternative methods to pre-trial detention, which was too heavy-handed. Furthermore many people in prison had completed their sentences – why was it so difficult to release them? What was the State party doing to come up with more creative solutions to ensure only people who needed to be incarcerated were in the prisons? What about the issue of systemic corruption that seemed to govern the penitentiary system?
Response by the Delegation
Responding to these questions and comments and others, the delegation said that the new Constitution had been in force since 2009, and it was true that a lot of work had been done at the legislative level – all of the laws mentioned today dated from 2010 onwards when the plurinational legislative assembly took office. In 2010 the five fundamental laws, which were the pillars of the State, were adopted. It was important that the Committee understood Bolivia was in transition from being a colonial State to being a plurinational State. Implementing legislation was difficult, for example the law 2012 law on trafficking in persons and the law on work done in the home – a form of domestic employment. In 2014 the Government was going to reform the Criminal Code and would introduce a number of new crimes, for instance on the protection of assets, a delegate said. Then the Criminal Code would fully meet all the concerns raised by the Committee.
Regarding trafficking in persons, the Constitution explicitly forbaide any form of slavery of a person and defined trafficking. On 31 July 2012 a law to combat trafficking and related crimes, and to guarantee the fundamental rights of victims through prevention mechanism, as well as prosecution of crimes and provision of compensation, was adopted. Furthermore, the Government was considering adding other crimes to the Criminal Code, such as the crime of conspiracy.
Under the current law there was a possibility of abortion in cases of grave risk to the life of the mother or in cases where the pregnancy was the result of a rape, as set out in the Criminal Code. The Expert was correct in pointing out the difficulties, but the Criminal Code had been cited before the courts as unconstitutional, as it did not allow for the possibility of abortion as it was so restrictive. It was a debate in the press, and the Constitutional Court was due to make a new ruling in 2014 as to whether or not abortion was constitutionally allowed and what measures should be taken by the State to deal with the issue. Therefore the issue was currently held in abeyance.
The delegation provided background on the developments in Bolivia in the area of justice. During the colonial period, a number of legal practices had been established, which had been rather removed from reality. Such inquisitorial code dated from 1972 and had been colonial in nature; it had lasted for more than 20 years, and the country had been working on eliminating it. In 2004, changes had been made to the Constitution, and an adversarial judicial system had been placed instead of the inquisitorial one. The old, singular system of justice, which had not been functioning properly, had collapsed. Since then, the State had invested significant resources in reforms and the development of the new system.
Regarding prison overcrowding, solutions had to be offered to the people so that they could have faster access to justice. Today, some 20 per cent of all prisoners had been sentenced, and the remaining 80 per cent were in pre-trial detention. Presidential pardons had been introduced, but the results had not been fully satisfactory. A presidential decree on amnesty and pardon had been subsequently introduced, earlier in 2013, for a period of one year. As a result, some prisoners, including women with children and adolescents, were now qualified to appeal for pardon and could be released from custody, which should lessen the backlog of cases and decrease the overcrowding of prisons.
Individuals could be held in pre-trial detention if they could not show a proof of identity or employment. Many Bolivians did not have stable employment and a fixed address, and the existing system was punishing them. Those issues were being addressed in the new system and poverty would no longer be punished. Pre-trial detention would become an exception rather than the rule. The new system would address the failings of the previous system; during the transition period, Bolivia was hoping to deal with the backlog of cases and the existing bottlenecks. One of the main problems in the justice system was the concept of citizen judges, which had created more problems instead of resolving them. There were delays because a number of citizens did not have fixed addresses and could not be easily reached.
Juridical pluralism was another peculiarity of the Bolivian system, including the judicial system of the indigenous people, which had existed for centuries. Nonetheless, there were some problems with that system as there was still no full awareness about it among the prosecutors and judges of the ordinary system. The structural problem was at the base of those discrepancies, and there was a long way to go to have all the changes delivered and implemented. The key was in training and education, through schools and institutes for judges, prosecutors and public servants. Training in universities was also necessary; for the time being, there was only training in formal law, but efforts were under way to change that. There was political will among State institutions, but it would take time as it was truly hard work.
Lynching was undoubtedly a crime, and the indigenous people were asked to mark it as such in their own system as well. That had to be a common knowledge among the entire population; everyone had to understand that lynching was prohibited, and under no circumstances could it be accepted as a practice of the indigenous communities. The law prohibited lynching. There had been 15 cases of lynching in 2005; 14 cases in 2006; 31 cases in 2007; 44 cases in 2008; 39 cases in 2009; and 30 cases in 2010. By 2010, the Ministry of Justice had carried out consultations with the view of ensuring that all jurisdictions considered lynching as a crime.
Discrimination had to be put into a historical context in light of what had been happening in the country over the previous decades. For example, indigenous people dressed in traditional dresses used not to be allowed to certain public areas and events. Now, the National Assembly was made up of all types of Bolivian citizens, including those in traditional and modern clothes, and from all spheres of life. There were also indigenous people serving in the Armed Forces, which used to be the privilege of the elite in the past. Those were among major steps forward made in combatting discrimination. The work of the Bolivian President made it possible for the world to see the change in that respect. The Bolivian Government was committed to fully implementing all the necessary changes and ensuring that all Bolivians would enjoy full rights and protection.
A delegate said that by the Constitution all public servants were required to ensure application of accepted international legal norms in the Bolivian legal system. Since 2010, the material on the International Covenant on Civil and Political Rights had been disseminated through the Government and civil society.
In 2011, the Ministry held 179 training sessions and seminars in order to provide training on judicial delimitations and promulgate mandatory judicial norms.
As for the political violence, a delegate said that beneficiaries had to meet criteria to have their cases qualified. A committee had been looking into all the past cases – more than 6,000 requests had been received, and efforts were being made to deal with those cases more quickly. Over 400 people had been provided with compensation thus far. Victims were now requested to produce basic documentation to support their cases. Free medical care was provided for the victims of the political violence. There was a draft law on creating a truth commission which would look into various human rights violations. Families of those who had died in Pando in 2008 had been provided with financial compensation.
On the issue of trafficking in persons, a delegate said that there was intensive training with the justice and law enforcement officers to fully implement the law on this crime. There was a limited appropriation of human resources working on those issues, and the officers were currently being trained to serve better in those capacities. The Ministry of Justice had already approved a protocol to provide services and care to the victims of trafficking, many of whom belonged to very vulnerable groups. Procedures and mechanisms were in place to prosecute and punish offenders, while technical teams were in place to deal with trafficking cases.
Servitude, forced labour and other forms of slavery were also strictly prohibited and actively fought against. There were procedures in place to address those cases wherever they had been reported. A process of consultation was in place between different Ministries in the country, especially when it came to the Guarani people, who had, regrettably, not been very responsive to the Government’s calls to get engaged.
Questions by the Experts
The Chair of the Committee asked that focus be placed on concrete information rather than the legislation. This was an opportunity for the delegation not to explain the legal system as a whole, but rather on how it was or was not working in practice. The delegation was asked to convey detailed responses of interest to the Experts.
An Expert thanked the Minister for the very detailed responses and said that the prison system was not responsible for overcrowding, and what was required was a much more comprehensive solution. There were young people and even children under the age of six living in jails, which meant that punishments for parents were sometimes extended to their children. More focus had to be placed on protecting families.
There was a high level of corruption, the Expert said. He asked what was being done in practical terms to fight that problem. Regarding the election of judges by popular vote, the Expert noted a high number of abstentions and the ineligibility of some lawyers to apply, and asked what plans were in place to address that issue.
The Expert asked about the insufficient number of public defenders in the country and how that number could be increased.
Another Expert asked about how the State was ensuring that the indigenous courts were in line with the Covenant. Was there a strategy in place? Legal pluralism had advantages to a certain point, but there were minimum requirements which all systems had to adhere to. The Expert asked whether the Plurinational Constitutional Tribunal could ensure that compliance was in place across the systems.
The Expert asked about plans to increase the number of courts and easing access of communities to the judicial systems.
As for conscientious objection to the military service, the Expert said that the Bolivian legislation was not in line with the Covenant, and a legal framework was needed. Why was it taking so long for the State party to comply with that requirement?
An Expert asked if anyone had been sentenced for crimes of racism. What measures were being taken to prevent the excessive use of force by the State? The Expert asked whether those involved in corruption were subsequently removed from the judicial system. The Expert said that he had information from more than 20 civil society organizations in Bolivia that they were not involved in the process of preparing the report or even properly informed about the Covenant by the Government.
Another Expert raised the cases of charges against several opposition figures and asked if those charges had been dropped or were still ongoing.
He asked about the possibility that licenses of certain media be suspended for some time for distributing inaccurate content, and stressed the need for clarity in that respect. There had been reported cases of harassment of journalists; in 2012, some 50 such cases had been reported, out of which 33 had involved physical assaults.
Regarding the status of non-governmental organizations (NGOs), there was a provision that their licenses could be revoked if in contradiction with the Governmental policies or if an NGO was engaged in activities not presented in its charter. Revocation of the registration would normally result in the end of funding for such NGOs.
The Expert said that there were reports that over half of the children living in prisons with their parents were over the age of six. He asked for an update on that issue, particularly with regard to the maximum security prisons. The Expert asked for an update on what the State was doing in preventing exploitation of children for forced labour or prostitution.
An Expert asked about a clear vision for the state of delivery of criminal justice in Bolivia. Local jurisdiction authorities had to meet all judicial guarantees of due process, as specified in Article 14 of the Covenant, which was something that the State had to ensure.
The Expert said that very seldom was a pardon given to people who had not yet been convicted, and asked how someone like that could have been pardoned. What about the rights of victims? The Expert said that the State was perhaps addressing the problem from the wrong direction. Why did people have to be placed in the pre-trial detention and how could it be secured that itinerant people were not placed in prisons under wrong jurisdictions? What legal remedies were available to those 80 per cent of people who were
in pre-trial detention?
Another Expert asked about the fact that lawyers often did not help clients who could not afford their services. Were there provisions for legal aid?
Response by the Delegation
The delegation reiterated that Bolivia was a plurinational State, and it was perhaps difficult to understand some of the complex points which the delegation was trying to make. She referred to the so-called “avalanche of laws”, which may have been numerous, but were necessary to guarantee all Bolivians full enjoyment of all their rights.
Regarding children in prisons, the law allowed for children under six to live in prisons with their parents. However, the law had degenerated, which had resulted in too many children staying with their incarcerated parents. Children over the age of six were not living in prisons in La Paz, but ensuring that this was the case across the country was the responsibility of government officials at various levels. Many changes were being implemented at different levels of government for there was a shared responsibility.
On the issue of prison overcrowding and presidential pardoning, those measures were applicable to those who had been sentenced. At the same time, amnesty was in place for those who had committed minor offences for the first time. Laws had to be amended to allow that such persons were not held in jail in pre-trial detention.
The indigenous “campusino” justice system had previously not been under the protection of the Constitution but this had since changed. Those indigenous, traditional systems had to be consistent with the Constitution, and their authorities had to answer to the Plurinational Constitutional Tribunal if, for example, there were exceptionally harsh sentences not in line with the Constitution. The Constitution clearly had precedence over all other norms.
In the jurisdictional demarcation law, which had created discussion in the public sphere, there were some 36 indigenous groups in the country and each among them, including subgroups, had their own justice systems. That was why it was impossible to have a single indigenous justice system. It was not possible for the Government to reach all indigenous communities; in some cases, there was no need for ordinary judges as there were indigenous judges in many areas.
The institution of the public defender was rather weak in Bolivia, like in most countries around the world. Efforts were underway to increase assistance to victims, including financial aid, with the goal to have more than 100 public defenders in the country, up from the current 68.
On the fight against corruption, the delegation would provide answers in writing, including statistics which would show what was being done in that respect. The system of the selection of magistrates and judges had been approved through a nation-wide referendum. Opposition had criticized provisions which did not allow some lawyers to run, if they had been involved in the activities of acting against the State. Some of those lawyers had been in powerful positions under the previous system.
The head of delegation emphasized that laws were needed to change bad practices and rid Bolivia of the old scourges of racism, discrimination and corruption.
Questions by the Experts
An Expert asked about the compatibility of the different justice systems. How were crimes against women treated? Had the traditional justice system managed to overcome corruption, or was it still the case there as well? If it existed, how was the State dealing with the problem?
Another Expert asked about the capacity of the Government to implement laws to the benefit of everyone.
An Expert asked which qualifications citizens needed in order to be nominated as judges. The Expert asked if there had been any prosecutions of people responsible for lynching.
Response by the Delegation
CECILIA AYLLON QUINTEROS, Minister of Justice, stressed that there were 36 nations in Bolivia, three of which were large and numerous. There were no known cases of corruption in the delivery of the indigenous “campusino” justice. That justice could not overreach the limits proscribed by the Constitution.
Femicide was a crime in Bolivia and was punishable as such. Several cases had been prosecuted.
Amnesty was meant for those first-time offenders who had committed petty crimes and had not been put to trial yet.
The Constitution of the State stipulated that those running for judges had to be lawyers by training and had to have a minimum of eight years of experience.
Detailed responses on lynching would be subsequently provided. Those involved in the lynching of the major of Ayo Ayo in 2004 had been prosecuted and sentenced to 30 years in prison.
Replies would also be provided in writing regarding conscientious objection.
CECILIA AYLLON QUINTEROS, Minister of Justice of Bolivia, described the experience at the Committee as gratifying and useful, given that Bolivia was presenting its first report in 16 years. Bolivia had transitioned through shameful times of violations of political and civil rights, and was now promoting respect for both diversity and unity. Political and civil rights were being used by the Government as pillars to build transcendental changes in order to offer people a revolutionary future full of freedoms. Indigenous people were now cherished as an integral part of Bolivia’s plurinationality. At the same time, efforts were being made not to lose any major social gains which had been achieved over the years.
NIGEL RODLEY, Chairperson of the Committee, said that he was aware of the complexity and the diversity of the country, which must not have made it easy to govern. A system was being put in place in Bolivia to protect and promote the population which had been discriminated against in the past. A range of human rights treaties had been ratified by Bolivia. The areas of concern for the Committee members remained prison overcrowding, trafficking, lynching, and legal harassment of human rights defenders.
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