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Project to Reform Colombia’s Justice System

Winds of justice reform have been blowing in Colombia for some time now. In December 2009, the government created a Commission of Experts that was to develop a proposal for a justice reform. The body issued its final report in June 2010. The country’s new administration has presented a reform project that uses some of the proposals of the Commission as well as those developed as part of earlier projects. It presents various interesting and polemical points, each of which merits special consideration. There is also a need to analyze other proposed topics such as: 1) the introduction of binding case law for judges and administrative authorities, which transforms the legal concept by which judges are only subject to the rule of law and where case law only has inter-parte effects; ii) the definition of attorneys as private parties who administer justice in a transitory manner; iii) the creation of a National Bar Association; and iv) changes to some aspects of the model used to manage the Judicial Branch in order to achieve greater separation between the levels of governance and management and re-organize them (here the constitutional incorporation of a high-level professional management profile for the branch is particularly important).

The following changes are suggested in the proposal in regard to criminal justice reforms:

As a result, various proposals have been made to expand the implementation of Colombia’s adversarial criminal system. For example, the elimination of “prosecutorial autonomy” involves leaving aside the widespread notion by which the prosecutor exercises judicial functions. The elimination of the participation of the Attorney General’s Office, for its part, reinforces the idea that the adversarial process takes place between the parties and that there is no basis for that entity’s participation in addition to those of the Prosecutor’s Office and Public Defender’s Office. Similarly, the separation of the function of judging from those of investigation and the laying of charges for criminal cases handled by the Supreme Court and the express incorporation of the principles of the adversarial criminal system in said procedure further develop the idea that the adversarial system should dominate in criminal matters.

However, the proposal does not resolve four issues that stand as obstacles to the true implementation and appropriation of the adversarial system in Colombia. First, the Prosecutor’s Office continues to be the entity that “administers justice,” which promotes the erroneous idea that investigation and the laying of charges form part of a judicial function. The second is that it preserves judicial functions that, exceptionally, the Attorney General’s Office is to have in the context of the adversarial system, which promotes this flawed understanding as well. Third, it maintains the notion that a judge, even a Supreme Court justice, can exercise the functions of investigation and the laying of charges in the context of a procedural system that respects the principles of the adversarial system, which also makes it harder to understand that said functions are not judicial. Finally, it does not make any statement regarding the need to terminate the inquisitorial aspects of the previous criminal justice system in which the Prosecutor’s Office did exercise judicial functions.

On the other hand, some aspects of the project are designed to resolve other criminal procedure problems. For example, the concept of victim is redefined, and he or she is placed on the same level as a procedural party, though it is not clear how this will be done and what role the Prosecutor’s Office will play in this. Furthermore, the government is to design and execute criminal policy and will be responsible for several aspects of the fight against crime. The government also proposes, and not without controversy, that the State no longer have an absolute monopoly on the function of criminal investigation and the laying of charges. Instead, private parties are to develop these functions before judicial authorities in cases involving specific crimes. This might be a method of unclogging the courts, overseeing public sector work or even facilitating access to justice for victims.

* Villadiego holds a law degree from Universidad de los Andes de Colombia. The author would like to thank Néstor Julián Ramírez for the comments that he provided to her on a preliminary version of this text.

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