Impact of Criminal Justice Reform on Transitional Justice in Latin America

In May 2014, Veronica Michel, an assistant professor at the John Jay College of Criminal Justice, published a paper on “Judicial Reform and Access to Justice: The Impact of Criminal Justice Reforms on Transitional Justice Efforts in Latin America.” In the paper, Veronica discusses how criminal justice reform focusing on prosecutors can have a long-term impact on transitional justice. Check out excerpts below!

Although there are studies looking into the advances and failures of judicial reforms in general, systematic empirical research that helps us assess how new institutions and legal rights are actually working to improve individual criminal accountability for human rights violations is still scarce. This paper focuses on two questions: if criminal justice reforms have had an impact on prosecutorial efforts against state agents for human rights violations, and if so, how.

Approach

To answer these questions I have used a mixed-methods approach, using a count model to test the impact of judicial reforms on the number of transitional prosecutions observed in 14 transitional countries in Latin America for the time period 1980-2009. To highlight the causal mechanisms explaining how criminal justice reforms may impact access to justice, I also offer a brief review of the transitional justice efforts in Guatemala and Chile as case studies. This article focuses only on countries that have a civil law system and that underwent a democratic transition in the last 40 years.

How Judicial Reform Related to Prosecution of Crimes Matters for Transitional Justice

Criminal Justice Reform Shapes Politics of Criminal Prosecution: I only focus on reforms directly related to the prosecution of crimes (i.e., the introduction of a new criminal procedure and the reform of the public prosecutor’s office). I argue that criminal justice reforms can potentially shape the politics of criminal prosecution through the creation of a more independent prosecutorial office and the implementation of an adversarial system that over time can be more effective and that, through the expansion of victims’ rights, can potentially introduce checks on the state’s prosecutorial discretion.

Autonomous Public Prosecutor:The creation of a more autonomous PPO opens the room for prosecutorial independence; that is, for prosecutorial decisions to be less influenced from politics. I do not claim here that de jure independence translates in the facto independence, but the data analyzed here does suggest that location matters.

Adversarial System: Furthermore, the introduction of an adversarial system that introduces checks on the PPOs discretionary powers, like through the expansion of victims’ rights, also should be regarded as important as a way to foster prosecutorial accountability.

These changes introduced through criminal justice reforms matter for transitional justice efforts.   

Gaps in Transitional Justice & Human Rights Research

With a few exceptions, most research on the transitional justice and human rights literatures has neglected the role of judicial reform on shaping when and why countries choose to bring state agents to justice for human rights violations. In general the literature on human rights has focused too narrowly only on the judicial bench.

The literature on judicial reform has focused more on explaining the emergence or progress of reforms to increase judicial independence or judicial efficiency. Thus, this research aims to bring attention to some aspects of the judicial reforms that have been overlooked, moving away the focus of attention from judges, to focus instead on the changes introduced to the prosecutorial organ or PPO and the implementation of a new criminal procedure code.

Focusing on Two Reforms Impacting Criminal Prosecution

This paper focuses on:

• The introduction or redesign of the state’s prosecutorial organ or PPO and;
• The introduction of a new criminal procedure code (CPC).

Reform Variations in Latin America

In some countries (like Chile) the redesign of the PPO was a necessity after taking away the investigation and prosecution away from the judge. In others, it seems to have reflected a need to isolate the PPO from political pressures, moving the office away from the executive branch and creating a new autonomous institution. Today, in Latin America we observe quite a variation in the location of the PPO, where some countries have designed it as an autonomous institution (like Argentina or Ecuador), other still keep the office dependent on the executive branch (like Mexico and Uruguay), and finally some other countries instead keep the PPO within the judicial branch (like Costa Rica).

Introduction of Private Prosecution Can Overcome Political Pressure on Prosecutors

In most countries private prosecution rights have been introduced or expanded.  This allows the victim or his/her surviving relatives to initiate criminal prosecution through a criminal complaint as well as to participate in the criminal proceedings. Where the public prosecution represents the interests of the state throughout the criminal proceedings, the private prosecution represents the interests of the victim or their relatives.

When the public prosecutor wishes to dismiss the case or drop the charges, the private prosecutor can request that the judge make the state reconsider the decision.  Criminal justice reforms, therefore, can impact prosecutorial independence by isolating the prosecutorial decisions from political pressures. Furthermore, they can improve prosecutorial accountability depending on the amount of checks that legislators introduce on the criminal procedure code on the discretionary powers of the PPO.

Hypotheses

To assess the relationship between criminal justice reforms and transitional prosecutions, I tested if a country that had reformed its criminal procedure code or that had an autonomous PPO had a higher number of prosecutorial efforts in a given year. Similarly I tested if these factors had an impact on how many convictions a country would have.

Transitional Prosecutions: This is a count variable that measures how many prosecutions were initiated in a given country in a given year for the period 1980-2009.

Transitional Convictions: This is a count variable that measures how many convictions in human rights prosecutions were achieved in a country in a given year in Latin America for the period 1980-2009. 

Hypothesis 1a: the introduction of an accusatorial system, will improve the probability that prosecutions will be initiated against state officials.

Hypothesis 1b: the introduction of an accusatorial system will improve the probability of convictions.

Hypothesis 2: the older the accusatorial system, the higher the probability that more prosecutions will be initiated against state officials.

Hypothesis 2b: the older the accusatorial system, the higher the probability that more convictions will be achieved.

Hypothesis 3a: the probability that prosecutions will be initiated against state officials will be higher when the prosecutorial organ is autonomous.

Hypothesis 3b: the probability that convictions will be achieved will be higher when the prosecutorial organ is autonomous

The findings of the count models are interesting and provide support to some (not all) of the hypotheses.

An Autonomous Public Prosecutors Office Increases Number of Prosecutions

The full models show that, even when controlling for development, regime type, and past repression, having a new CPC is not enough for having higher count of prosecutions. Instead, having an Autonomous PPO improves the likelihood of having a higher count of prosecutions along with having a CPC that has been implemented for a while.

Countries with an Older Criminal Procedure Code Likely to Have More Convictions

Interestingly, judicial independence only matters for counts of convictions not for counts of prosecutions. For convictions, once again having an new CPC is not enough. Countries with strong judicial independence and an old CPC are more likely to have higher counts of convictions. And the inflated model shows that countries with a PPO in the executive branch are more likely to always remain in the zero convictions group, meaning that they will never see a conviction. The countries highlighted here is Guatemala, where judicial reform became operational first, in 1994; followed by the case of Chile, where judicial reform entered into force in 2000.

Guatemala

Background & Criminal Justice Reform

It was widely known that the judicial system lacked any real independence.  For decades the system had operated as a repression tool for the ruling elite, and human rights abuses enjoyed absolute impunity. Furthermore, during the dictatorship it was quite common for lawyers, judges, and prosecutors to be threatened or killed if they actually pursued justice in those cases. After decades of repressive regimes and civil war, a new Constitution in 1985 and the subsequent peace process that culminated with the Peace Accords (1996) pushed judicial reform as a priority. Furthermore, a new criminal procedure code entered into force and a new autonomous PPO was established in 1994.

Before these reforms, the PPO was located within the judiciary in an inquisitorial system, following an accusatorial model, the new PPO was designed as an autonomous institution and was given authority over the criminal investigations conducted by the national police. The reform also established important mechanisms that serve as checks on the PPO’s job. First, key decisions regarding the investigation and prosecution are subject to judicial review. And second, participation rights of victims greatly improved with the strengthening of private prosecution rights.

Amnesty & Autonomy of Public Prosecutor

Despite an amnesty that was granted to both military personnel and guerrilla groups as part of the peace agreement in 1996, democratic transition and judicial reform opened the door for societal actors to bring claims to the courts. This was in part due because the amnesty explicitly excluded acts of genocide and certain acts against humanity. But also because all criminal cases for which the opening of a trial had not yet occurred would be tried under the new criminal procedure code. This had two important consequences.

First, the new autonomous PPO would be in charge of criminal prosecution. But the head of the PPO was decided to be appointed by the executive. So, although the PPO was designed to be functionally and financially autonomous, the appointment of the head of the institution by the executive branch has meant that the criminal prosecution policy depends heavily on the executive’s agenda. And second, human rights cases would benefit from the expanded rights to private prosecution that were introduced in the new criminal procedure code, serving as a check on the PPO’s decisions.

Political Climate & Challenges

These facts have translated in a more difficult path for human rights cases, as the political support to prosecute state agents has been lower than in Chile. Thus in Guatemala de jure autonomy of the PPO has been more difficult to translate into de facto autonomy. Furthermore, the vulnerability of judicial actors has continued to be high. Lawyers, policemen, prosecutors, judges, and human rights activists all kept facing constant threats. For instance, from 2005 to 2009, 21 prosecutors, judges, and judges’ clerks were killed, and 19 lawyers working as private prosecutors or public defenders were also killed in Guatemala . And perhaps most important, the still predominant influence of the economic elite on politics has meant that human rights causes depend more on political will.  But the introduction of checks on the PPO has also meant that societal actors willing to absorb the risks of prosecution have introduced criminal complaints and have fought to kept the case files open. Like in Chile, virtually all human rights cases that reached the courts and have managed either to remain open or reach trial, have been cases litigated by private prosecutors.

Rios-Mont case illustrates How Political Will Influences Changes in Prosecution

The case of Rios-Mont best exemplifies this in 2001 the NGO Asociacion de Justicia y Reconciliacion (AJR) introduced a criminal complaint act of genocide committed in the community of Dos Erres in 1982, ordered by former dictator Efrain Rios Montt. This first attempt did not have much success given the various appeals introduced by the defense team. After noticing a more favorable political climate, in 2009 an NGO called CALDH introduced another criminal complaint to reopen the investigation. Despite these efforts, the reality was that Rios Montt was legally protected as he enjoyed immunity as he was considered still a member of Congress. The turning point came in 2012 when he was stripped from this impunity, and when Judge Carol Flores decided that there was enough evidence to continue with the proceedings.

The change in the political climate, which gradually improved judicial independence, in part explains how private prosecutors are embracing these renewed efforts for justice. Lawyers and activists report a considerable decrease in threats since the mid-2000s, compared to those they used to receive in the 1990s. Also, the relationship with the PPO has improved as the political will within that institution has improved. A change in political climate was also signaled when the leftist President Alvaro Colom elected in 2010 Claudia Paz y Paz as the new District Attorney, a lawyer who previously worked in academia and human rights organizations. Also NGOs have noticed a considerable change in how “receptive” judges are now to their requests. But the small degree of visible judicial independence is not without limits. Judges had to come to court wearing bullet-proof vests. And the subsequent annulment of the conviction by the Constitutional Court also highlights how vulnerable the top echelons of the judiciary still are to pressures from the elite.

The case of Guatemala, therefore, highlights how important has been the criminal procedure reform, as it introduced victims’ rights that have been used as a societal check over the PPO’s duty to investigate and prosecute crime. Furthermore, this case also highlights how important is de facto independence for how both the PPO and the judicial bench respond to human rights claims.

Chile

Background & Judicial Reform

Judges were the de facto gatekeepers to justice and for many years were complicit with the regime, automatically dismissing cases or neglecting to pursue formal investigations. Despite the enormous power of judges over both prosecution and adjudication, the law introduced some checks over their power with the right to private prosecution. Private prosecution allowed in Chile for the legal fight against human rights violations to begin while the dictatorship was still in place.

During the dictatorship thousands of habeas corpus writs were filed in courts by relatives or NGOs through the right to private prosecution, although the courts systematically dismissed these . After the military enacted a self-amnesty law in 1978 that precluded prosecution for crimes committed between 1973-1978. Judges readily applied amnesty to most cases or submitted them to military jurisdiction were amnesty was then automatically applied transition to democracy in 1989 and the judicial reform that followed would eventually change the fate of human rights cases.

Judicial reform in Chile was quite comprehensive and it involved the transformation towards an accusatorial system (2000) where rights of both victims and offenders were greatly improved. In Chile human rights cases remained under the old criminal procedure code, keeping judges as the key gatekeepers to legal justice. Hence the role of the judge, who investigates, prosecutes, and adjudicates, has remained quite important.

Given that for human rights cases the location of the prosecutorial organ remained in the judiciary, judicial independence had a considerable impact on prosecutorial efforts against state agents. According to data from the Human Rights Observatory in Chile, from 2000-2003 around 400 state agents had been “processed”10 or indicted. In a very short time, Chilean judges moved from keeping cases at the margins, struggling against private prosecution efforts to keep the cases alive, towards a more receptive view for criminal accountability of past abuses.

Factors Leading to Increased Prosecution

Two important changes within the courts contributed to the speed in which this happened. First, the designation of “full time” judges to human rights cases. In 2002, the Ministry of Justice authorized twenty judges to work exclusively on cases of disappearances and fifty-one judges to give preference to such cases. Second, and perhaps more important, the Poblete-Córdoba Supreme Court ruling set the precedent for judges to interpret the 1978 self-amnesty as inapplicable to unsolved cases of disappearances, which are designated as kidnapping and, therefore, “continuing crimes” . Thus, Chile has observed as well an increase in convictions: by 2012, a total of 799 agents of the state had been tried or convicted since 2000.

Chile, then, provides some evidence that supports the claim that when the prosecutorial organ lies within the judiciary, internal judicial independence is important to understand both prosecution and adjudication in human rights cases. This case, victims’ rights that pre-dated the criminal procedure reform have served as a societal check to keep cases open when the political context was not willing to embrace justice. With the PPO within the judiciary, judicial independence would eventually allow prosecutions to reach trial and in some instances reach conviction.

Findings

Both the statistical models and the case studies clearly suggest that criminal justice reforms have had an important impact on transitional prosecutorial efforts. From the case studies it was interesting to note that the introduction of an autonomous prosecutorial office seems to have more of an indirect effect rather than a direct effect. In other words, from these two cases it is not clear that the state, having created an autonomous prosecutors’ office, would actively be pushing for more prosecutions through this newly created organ. This reflects the fact that most human rights violations were committed before the introduction of the reform, hence, for human rights cases that relate to past atrocities a new CPC might not be actually relevant given the non-retrospective character of laws. Therefore, fieldwork data from these two countries suggests that, despite the introduction of new autonomous MPs, human rights cases remained open and achieved trial stage thanks to private prosecutions’ efforts, not the state efforts.

If the reform of the prosecutorial organ mattered, therefore, it was by changing the overall political climate regarding criminal prosecution. In Guatemala, this change in the political climate was reflected by allowing human rights cases that had not yet gone to trial to be tried under the new CPC. In Chile, the change in the politics of criminal prosecution was reflected by the creation of specialized courts that assigned judges exclusively dedicated to the investigation and prosecution of human rights cases. Judicial reform, then serves as a signal of changes in the state’s policy regarding criminal prosecution of past abuses. It may not be sincere, it may be only symbolic, but it clearly signals change through important real changes that improve the chances for victims or their relatives to push for justice and access the courts.