May 4, 2010

No one is above the law, and former heads of state should be held accountable if they commit crimes while in office.
José Miguel Vivanco, Americas director at Human Rights Watch

(Washington, DC) – Bolivia should modify its legal framework for prosecuting and putting on trial former heads of state to ensure that it protects basic due process guarantees, Human Rights Watch said today.

The Bolivian Legislative Assembly has recently approved two laws, and is debating a third, establishing norms that do not meet the basic right to a fair trial, Human Rights Watch said. The new and proposed laws undermine the prohibitions in international law on the retroactive application of the criminal law, the right to be present during trial, and the right to appeal a conviction. There are also questions about the independence or perceived independence of the tribunal that will prosecute the cases.

“No one is above the law, and former heads of state should be held accountable if they commit crimes while in office,” said José Miguel Vivanco, Americas director at Human Rights Watch. “But they are entitled to the same due process guarantees that the Constitution and international law provide for everyone else.”

The right to trial by an independent tribunal
President Evo Morales, who as a legislator accused three former presidents and a former vice president of committing several crimes, has recently appointed the justices who will preside over their trials. One former president is accused of treason, while the rest face corruption charges. After the Legislative Assembly passed a law in February 2010 authorizing Morales to appoint judges personally to vacant positions in high-level courts, Morales appointed 5 out of 12 justices to the Supreme Court. The appointed justices will remain in office until December, when an election will be held to fill the vacant seats.

International treaties that are binding on Bolivia, such as the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR), require that individuals be tried by “independent and impartial tribunals.”

According to the United Nations Basic Principles on the Independence of the Judiciary, “[i]t is the duty of all governmental and other institutions to respect and observe the independence of the judiciary,” and the judiciary “shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

“The direct presidential appointment of interim judges, through a process that lacks the usual safeguards for selecting judges, at a minimum raises questions about the appearance of the tribunal’s independence and impartiality,” Vivanco said. “It will be critically important to scrutinize the judges’ performance closely.”

The prohibition on the retroactive application of the criminal law
In March 2010, the Legislative Assembly passed an anti-corruption law that creates new crimes with harsher penalties. In the case of two of these crimes (illegal enrichment of public officials and illegal enrichment of private individuals with public funds), individuals can be prosecuted for actions and behavior they engaged in before the law was adopted.

International law forbids the retroactive application of criminal provisions. Both the ICCPR and the ACHR state that no one shall be held guilty of any criminal offense that did not constitute a criminal offense, under national or international law, at the time that it was committed. In addition, both treaties provide that no one shall be subject to a heavier penalty than the one applicable at the time that the offense was committed.

The right to be present during trial
Under the new anti-corruption law, it is possible to try former heads of state in absentia. The law requires the government to appoint a public defender to represent the accused.

This provision is incompatible with the right to be present during trial to be able to exercise a proper defense, a basic element of a fair trial. The ICCPR, for example, states that every individual has a right “[t]o be tried in his presence, and to defend himself in person or through legal assistance of his own choosing.”

Under international law, trials in absentia are tolerated only in exceptional circumstances and where there has been an explicit waiver of one’s right to be present. The accused must have been summoned in a timely manner to appear before the tribunal and informed of the proceedings against him. An accused tried in absentia should also be entitled to a retrial in his presence when apprehended.

The right to appeal a conviction
The proposed law to regulate criminal prosecutions of former heads of state (Ley de Juicio de Responsabilidades) provides in article 17 that a conviction by the Supreme Court of a former president or vice president may not be appealed. This is contained in draft legislation approved by the Chamber of Deputies, and is pending before the Senate.

This provision directly violates the right to appeal a conviction, guaranteed under the ICCPR (article 14 (5) explicitly provides that “[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law) and the ACHR (article 8 (2) (h)).

Finally, the anti-corruption law repeats and retains the overly broad and vague language of the Bolivian Criminal Code, which allows criminal charges against public officials who “issue resolutions that contradict the Constitution and the law.” Under the new law, officials convicted of this crime may be sentenced to up to 10 years in prison.

This provision clearly violates a basic principle of human rights law that criminal offenses must be defined precisely so that their application is foreseeable. As the Inter-American Court pointed out, “Crimes must be classified and described in precise and unambiguous language that narrowly defines the punishable offense.” This principle is essential to ensure that individuals can adequately regulate their behavior, which public officials would not reasonably be able to do under the new law.

“We are profoundly concerned that the Morales administration is using its support in the Legislative Assembly to push for laws that fall far short of basic due process standards,” Vivanco said. “If core guarantees are not respected, the risk that the justice system will be subject to political influence increases dramatically.”