It is late in the afternoon, and the
municipal building of Sabana
de Torres, a small, dusty town
in Colombia’s Magdalena Medio
region is now deserted. Although
he normally prefers to get home
before dark-Magdalena Medio is
a known hot spot in Colombia’s
perennial struggle among the army,
paramilitary forces and the guerrillas
-Anibal Guerrero has agreed to
keep talking. He does not look like
an enemy of the state. A practicing
physician, Guerrero was elected
president of the municipal council
in late 1994-despite the fact that
he is a jailbird, an accused terrorist.
In 1992, Guerrero joined the
Popular Peasant and Workers’
Movement, a civic organization
which brings together petroleum
workers with farmers seeking better C
credit. The 1,500-member move-
ment was leading an aggressive
campaign of street protests and
local strikes to convince the
Colombian authorities to expedite
the reversion of control over a local
oil concession from an Exxon sub- While the f
sidiary to Ecopetrol, Colombia’s were set u national oil company, which had a
better history of reinvesting locally terrorists and some of its $30 million in annual
profits. Unfortunately for Guerrero, hundreds of
the group’s activism ruffled some
established feathers. So did his and communi
accusation of corruption among been caugh Sabana’s municipal officials.
Several weeks after the 1992 They hav
municipal elections, Guerrero
found himself aboard an army heli- conveniel
copter en route to a prison in “chilling” s Bucaramanga, a five-hour drive
from Sabana. He would spend the
next 20 months in jail, along with
15 other members of the Ecopetrol
movement. Although Guerrero wouldn’t find this out for
six months, he had been accused of being the national
leader and physician of one of Colombia’s main guer-
rilla groups, the Army of National Liberation (ELN). He
was also charged with masterminding the murder of a
i
a
d
tr
t)
t
e
nt
0O
local politician. The authorities
never told Guerrero that his
accuser was a teenage informant
‘ maintained by the army, whose
* identity was kept secret by the
equally anonymous prosecuting
authorities.
In conflict areas like Magdalena
Medio, the military often winds
up exercising control. Colombia’s
presidents use emergency powers
to declare states of exception in
such areas, making official the
obvious fact that the military is in
charge. The military’s power often
reaches beyond its mandate, how-
ever, and combat troops start exer-
cising police powers. In its effort
l to root out “subversives” in con-
flict zones, the army relies on
intelligence gathered from a net-
work of informants, which it often
pays and sometimes houses and
feeds. It’s not uncommon to see
the hooded informants, who go by
code names, perched on a small
tank or in a jeep, pointing out
future defendants. Those fingered celess courts might be guerrillas. Or maybe
to deal with they quarreled with their accuser, failed to repay a debt-or none of
rug traffickers, the above. It’s a small matter, since an informant’s benefits
ade unionists depend more on the effect and the
quantity of the accusations than
~y activists have their quality. “If I don’t denounce
in their web. someone, I can’t buy clothes or
other things,” said one such infor-
become a mant. “I have to give the army a
name or two every week.” Like means of anyone else trying to keep a
cial protest. patron happy, an informant feeds
the military what it wants. They
tend to pick out likely candidates
for the “subversive” label. Some-
one, perhaps, like Anibal Guerrero, who’s caused a little local trouble.
Welcome to Colombia’s faceless-justice system in
action. Everyone but the accused is anonymous. Only
the lawyers, judges and the accused can enter the courts, which are housed in bunkers equipped with one-way
mirrors and voice distorters to ensure that the identity of
those involved cannot be detected. Allegations from an
anonymous informant are enough to arrest and hold
someone for years while the prosecutor investigates.
Vot XXX, No 2 SEPT/Ocr 1996
Robert Weiner is Coordinator of the Latin America and Caribbean Program at the Lawyers Committee for Human Rights in New York City.
31REPORT ON CRIME AND IMPUNITY
or to run peasants off valuable
land. These threats are not to be
taken lightly. Anyone who’s been
fingered has reason to fear.
The experience of community
leaders like Guerrero-and
hundreds of other trade-union
leaders, activists and left-wing
politicians-suggests that the
faceless courts are a convenient
means of “chilling” social
protest. No one can prove this, of
course, and government officials
reject the charge. Yet this is pre-
cisely the problem with any legal
framework that lacks procedural
protections. Official intentions
notwithstanding, the system
invites abuse. An informant’s
creativity can set in motion the
nightmare machine, and few if
any have the power to stop it.
Prisoners in a Bogota jail await their food.
Crimes are vaguely defined, and allegations often
change during the process. The accused may not be
informed of the nature of the evidence against him, and
defense attorneys are not usually allowed to cross-exam-
ine witnesses. The process is painfully slow, and
because of the prosecutor’s procedural advantages, often
arbitrary.
Anfbal Guerrero was lucky. The secret “witness” who
testified against him was later caught assaulting a
policeman and possessing forged documents, forcing
the prosecutor’s office to take a second look at the
evidence in his case. They conceded that no grounds
existed to detain Guerrero or any of his colleagues. The
“evidence” was so flimsy that the prosecution had never
even issued a formal indictment against them during the
20 months they spent in jail. In April, 1994, nearly two
years after his arrest, Guerrero was free to go, although
another year would pass before the state prosecutor’s
office dropped the case altogether. (Prosecutors are
understandably wary of dumping cases brought to them
by the military.) Guerrero continues to receive death
threats, however, presumably from paramilitaries–
private armies that work closely with the local military
to harass, neutralize or eliminate troublesome elements,
C olombia’s faceless-justice
system dates back to a
1984 law which desig-
nated 200 special courts to inves-
tigate cases of organized crime,
kidnapping, terrorism and extor-
tion. In response to the govern-
ment’s redoubled efforts in the
early 1980s to prosecute narcotics cases, the drug mafia
launched a campaign of terror against judges and the
legal system itself. Between 1979 and 1991, 278 judges
were killed in cold blood-rendering an already ineffi-
cient judicial system virtually impotent to prosecute
drug traffickers. At one point the Cali Cartel announced
that it would kill ten judges for each trafficker extradited
or asset seized. By 1987, President Virgilio Barco
decided that something more drastic than the special
courts was needed. Taking advantage of the presidential
prerogative to wield emergency powers, he decreed the
“public-order” courts-Colombia’s first “faceless”
courts-into existence.
U.S. support for Colombia’s faceless courts got its
impetus from the top. Shortly before taking office in
1990, President Cdsar Gaviria met with then-President
George Bush. Gaviria hoped to convince Bush to fund
an ambitious plan to “reform” the Colombian legal sys-
tem in order to strengthen its prosecutorial potential in
drug cases. The Bush administration, immersed in
another chapter of the “war on drugs,” was buying.
Unhappy over the Colombian Supreme Court’s decision
declaring the extradition of Colombian drug traffickers
unconstitutional, the U.S. government was seeking
32NACLA REPORT ON THE AMERICAS
4
NACIA REPORT ON THE AMERICAS 32REPORT ON CRIME AND IMPUNITY
alternative ways to strike against the Medellin and Cali
cartels. Bush approved U.S. legal-reform assistance as a
counter-narcotics measure, and the public-order courts
were singled out as a prime beneficiary.
Planning was soon underway at U.S. AID for a 6-year,
$36 million administration-of-justice program, its
largest ever. The U.S. government had previously
funded a few justice-reform programs in Colombia, most notably police training to protect judges. But with
Gaviria’s reforms, the United States began to make its
influence felt-“in spades,” according to Lars Klassen,
the director of U.S. AID’s Colombia mission. U.S. assis-
tance helped strengthen the administration of the face-
less courts, including measures to improve case tracking
and information management. Office equipment pur-
chased by the United States helps the courts process
detainees. Ongoing support provides training to the
anonymous prosecutors and judges, as well as to a hand-
ful of defense lawyers.
On July 4, 1991, the day the Colombian Congress
promulgated a new Constitution, the faceless courts cel-
ebrated a birthday of sorts as well. The new charter
rechristened the former “public-order” courts as “regional” tribunals and moved them to a more
respectable legal neighborhood: Colombia’s newly
reformed ordinary criminal-procedure code. In other
words, the rechristened tribunals were upgraded from
emergency-decree status. But they were still the same
faceless courts: the Supreme Court itself noted that the
transition from “public-order” courts to “regional”
courts entailed “no change whatsoever” in the courts’
jurisdiction or functioning.
This constitutional sleight of hand not only normal-
ized the system of faceless justice, it also created an
ingenious mechanism for converting any presidential
emergency decree into permanent law. If a president
proposes that an emergency measure become perma-
nent law, it automatically happens unless Congress
votes it down. Ironically, as Colombia’s ordinary legal
framework becomes increasingly laden with repressive
provisions, Colombian presidents will have less need
to resort to exceptional measures. The renamed
regional tribunals, for instance, needed no new laws
detailing procedure; they simply incorporated the leg-
islation that had previously been converted from emer-
gency-decree status into permanent law.
This legal alchemy has a long history in Colombia, where the extraordinary and the extralegal are often
made over and incorporated into the regular legal frame-
work. Colombians call it “making the extraordinary
ordinary.” Its use has helped the country’s legal system
deflect a lot of human rights criticism, a fate its neigh-
bors must envy. Peru, for example, which modeled its
own faceless courts on Colombia’s, summarily shut
Congress and purged the courts in order to set up its
faceless-justice system. Gaviria was hailed as a legal
reformer, while Peru’s Fujimori was roundly-and
rightly-criticized for rupturing the rule of law.
The term “regional,” as applied to the faceless courts,
derives from an idiosyncratic division of Colombian ter-
ritory into six regional jurisdictions. These do not corre-
spond to any of the ordinary judicial districts. Each
regional seat has one regional court, through which all of
that region’s cases must pass. Access to the case files is
carefully controlled, though distance is probably an
equally effective guardian of the state’s “secrets.” Few
lawyers are able to travel repeatedly-in some cases, for
up to ten hours-to review a file sitting in regional head-
quarters or to join in the evidentiary and other proceed-
ings. Even if they were able to travel such distances with
more frequency, defense
lawyers in subversion cases
are rarely notified of the pro-
ceedings. In Guerrero’s case, for instance, the initial pro-
ceedings took place in Sabana.
The regional trial court is ten
hours away in Clicuta, and an
appeal would have gone to the
National (regional) Tribunal in
Bogotd–a 14-hour drive
through dangerous territory.
The prosecutor has his own
solution to the problem of
travel-he doesn’t move. A
local prosecutor handles the
case on one end, while a team
in Bogota takes over the
appeal on the other.
The U.S.
government,
immersed in
another chapter
of the drug
war, decided to
pour $36 milion
into the faceless
courts.
Though the regional courts are bad in their own right, their worst effects are due to broader phe-
nomena. The crucial legacy of Colombia’s legal
reform-for which the United States gets a dubious
“assist”-has been the effective dismantling of the inde-
pendent role of the judge and the creation of prosecuto-
rial hegemony. In the Orwellian lexicon of Colombia’s
reformed criminal procedure, the word “judicial” refers
to the prosecutor. I learned this in 1992 after twenty
minutes of arguing with several Colombian lawyers
about whether an arrest had to be authorized by a judge.
In exasperation, I produced a copy of the Constitution
and pointed to Article 28: “judicial order required.” My
counterparts smiled. Judges don’t issue judicial orders.
Prosecutors do. Functionally speaking, prosecutors are
the judges, and the real judges are largely window dress-
ing. Since 1991, the number of prosecutors has grown to
20,000. Judges have almost no role until the “trial”
phase of the case-a paper-shuffling process that hasn’t
changed much since the old Constitution.
VOL XXX, No 2SEr’rIOa 1996 33 VOL XXX, No 2 SEPT/OCT 1996 33REPORT ON CRIME AND IMPUNITY
A second problem is Colombia’s tradition of a perma-
nent “state of exception,” which has allowed presidents
to decree-ostensibly temporarily-extraordinary pow-
ers that consistently benefit the security forces by legal-
izing arbitrary and repressive measures. Under one
name or another, states of exception characterized
Colombia for about 35 of the 40 years prior to the 1991
Constitution. “We broke with the past,” says Vice
Minister of Justice Jaime Cabrera of the new Consti-
tution, which lifted the state of siege then in effect. For
Colombian heads of state, however, going cold turkey
has failed. Gaviria was on the wagon barely a year
before issuing the first of three “states of internal com-
motion”-their new name under the 1991 Constitution
-during his term. So far, current President Ernesto
Samper has declared two.
In response to perceived escaltions in Colombia’s
armed conflict, the government resorts to declaring a
“state of internal commotion,” which provides special
presidential powers to issue emergency decrees giving
broad powers to the military. Since 1992, Presidents
Gaviria and Samper have issued more than 50 such
emergency decrees. When peace talks with the guerril-
las collapsed in 1992, for example, Gaviria declared a
state of internal commotion. Samper did the same in the
aftermath of escalating violence in the northern region
of Urubi and some well-publicized guerrilla attacks on
oil facilities. States of internal commotion legitimize the
soldier as policeman. The military has been quick to
jump in-and slow to depart after a state of internal
commotion expires. Taking advantage of the possibility
granted by the faceless courts of using secret, paid wit-
nesses, the military has been able to arrest anyone it sus-
pects of “subversive” tendencies, setting in motion a
drawn-out legal process that keeps suspects off the
streets for years. Vague, one-page “intelligence
reports”-“pretty generic,” according to one faceless
prosecutor assigned to review them-become the basis
for arresting someone like Anibal Guerrero or Arturo
Ulloa [see “Colombia’s Most Unlikely Prisoner”].
Law, it seems, has become war by other means-and
wars are run by soldiers, not lawyers or judges. Despite
its 800-pound gorilla status among civilian institutions,
the state prosecutor’s office has proven no match for an
army that lets few legal niceties get in the way of its
work. This is no surprise, since the military is used to
rolling over civilian authorities. Reformers have lost
ground in their attempt to obtain civilian jurisdiction
over the military’s human rights abuses, for example,
which are now tried in military courts by active-duty
army officers. Successful prosecutions in the military
tribunals of officers accused of human rights violations
are, according to an attorney in the state prosecutor’s
Bogota headquarters, “conspicuous by their absence.”
In Barrancabermeja, virtually all arrests in regional-
court cases are carried out by the local military. Soldiers
rarely wait for a prosecutor to issue an arrest order, nor
do they bother to notify the state prosecutor’s office
before bringing in the latest suspect. Local prosecutors
are often consigned to “legalizing” the army’s modus
operandi by authorizing arrests after the fact. In Bogota,
Deputy Prosecutor General Adolfo Salamanca sounds
tired of repeating that his office doesn’t agree with the
army’s legal interpretations-for instance, that anyone
suspected of subversion-related offenses can be arrested
without a warrant at any time of day or night.
Subversion, according to the military, is a 24-hour-a-day
offense. Hence, subversives are permanently in fla-
grante delicto. Suspects are their own walking arrest
warrants, and the military insists it has carte blanche.
“We have no control over this,” says Salamanca, making
it clear that he’s tried.
ince 1992, the faceless courts have opened files in
some 70,000 cases, many involving more than one
suspect. Justified as a necessary weapon in the
fight against Colombia’s most dangerous criminals, the
faceless courts now account for 40% of the nation’s
criminal-justice docket. Half of Colombia’s 30,000
prison inmates come from the faceless-court cases;
more than 90% of these are still awaiting trial.
Barrancabermeja’s prison officials estimate that 30% of
their faceless-court detainees are innocent, and that the
accused will have to wait a year to find out if a court
agrees with them.
Are the 70,000-plus suspects who have gone through
the faceless courts hardened desperados, guerrillas who
blow up oil installations and kidnap the rich? Or are they
those who move cocaine by the ton, and kill presidential
candidates, justice ministers, and judges by the hun-
dreds? Statistics are scarce, in part because the faceless
courts have been removed from the nation’s regular judi-
cial-information system. A recent National University
study of a sample of 350 cases provides one of the few
bases for analysis. The accused are overwhelmingly
male and under 40. One of every two are peasants or
workers, and most earn less than $100 per month. It is
impossible to tell how many are actually guerrillas-an
affiliation rarely advertised. What is known is that many
detained trade unionists and left-wing politicians, after
years of enduring a grueling legal process and jail time,
turn out to belong nowhere
near a faceless court. Only a
small fraternity of those tried It took me
are cocaine kingpins, and fewer
still are soldiers or members of two minutes,
paramilitary groups. without money, Some three-fifths of the face-
less courts’ caseload consist of mirrors or
narcotics offenses and arms advance notice,
possession. The offenses are so
broadly defined and cover so to discover the
wide a range of activity, how-
ever, that it’s nearly impossible identity of
to gauge the seriousness of the a faceless typical case. It is clear that the
faceless courts operate as if two prosecutor in one
distinct jurisdictions existed.
Prosecutors routinely offer of the conflict
drastic sentence reductions and zones. cozy conditions of confinement
to high-level narcotics traffick-
ers. For all others, particularly those accused of subver-
sion, prosecution has been full bore. The “class” dis-
tinction is crucial. Poor peasants accused of helping the
guerrillas often plead guilty after serving what would
have been their minimum sentence while still in pretrial
detention, while rich drug traffickers have well-paid
lawyers who negotiate better deals. “Major” cases of the
sort which prompted the courts’ creation constitute a
small percentage of the docket.
The United States used to tout Colombia as the model
for U.S.-sponsored judicial reform. Colombia was a
committed partner, not one dragged in like other aid
recipients, such as El Salvador. Officials of both coun-
tries claimed concrete results: of the cases that went to
verdict, early reports had conviction rates way up. No
one, it seemed, had taken a serious look at problems of
due process until human rights groups began making
noise in Washington and Geneva. Now, the U.S. govern-
ment limits itself to a soldierly defense of the courts as
a necessary evil to combat serious crimes. Yet available
VOL XXX, No 2 5EPrfOa 199635 VOL XXX, No 2 SEPT/OCT 1996 35REPORT ON CRIME AND IMPUNITY
statistics suggest that this faceless-justice system can
scarcely be called a success. Despite well-publicized
arrests, drug trafficking continues undaunted. The gov-
ernment itself claims that guerrilla ranks have swelled
dramatically. Paramilitaries, particularly groups with
names like Cirugia-as in “surgery,” for its notorious
creativity with chain saws-are an obvious source of
terrorist offenses, but they are protected by the military
and not hassled by the courts. Serious violent crimes
have increased since 1992.
Have the faceless courts at least protected judges from
attack? The number of judges killed has effectively
dropped since the regional-court system was put in
place. Yet it’s easy to find out
who many of the anonymous
“Would
you
functionaries
are. Many say
that those with the means and
want to be the inclination to arrange mur-
ders–even from a jail cell– one who can easily find out who is
abolished these handling their case. It took
me two minutes, without
courts if they money, mirrors or advance
notice, to discover the true start shooting identity of a faceless prosecu-
judges again?” tor who was assigned to cases
coming from the military in
one of the conflict zones.
If success is defined by the
large number of people swept off the streets and into
jail-15,000 since the faceless-justice system was estab-
lished-then the combination of faceless courts and mil-
itary-run states of exception has been a triumph. U.S. and
Colombian officials have also pointed to a 95% criminal
conviction rate as a measure of the system’s effective-
ness. But this is never a measure of a system’s fairness.
The figure doesn’t measure the efficiency of the faceless-
justice system either, since it refers to the minuscule pro-
portion of cases-a mere 4%-which have actually
come to judgment.
Despite the extensive use of another imported con-
cept-the plea bargain-the system’s slowness remains
legendary. A defendant waits in jail without formal
charges on average for 14 months-six months longer
than the law allows. Between the time charges are filed
by the prosecutor to the final verdict, the average wait is
11 months, despite a statutory limit of 45 days. If the
defendant is acquitted, he is not released until the pros-
ecutor’s appeal and the acquittal have been confirmed by
the National Tribunal–on average, another six months.
From the moment the case enters the investigative
phase, this adds up to an average of two years and seven
months-if the defendant is acquitted.
Some, like Deputy Prosecutor General Salamanca,
freely admit the system’s problems, while noting that
the attorney general’s office opposes the worst abuses.
Others, such as the Ministry of Justice, assert that the
regional courts have developed into a rights-oriented
system- “una justicia garantista “-as though they had
been designed by a Colombian version of the American
Civil Liberties Union. Another problem, of course, is
that being “faceless” provides judges with the perfect
cover for corruption. Even if the defendant can deter-
mine a judge’s identity, the public can’t. Payoffs become
easier, and public accountability harder.
In Colombia, word and deed are rarely identical, par-
ticularly when human rights issues are at stake.
Consider the right to cross-examine witnesses. Initially,
the faceless-court system denied the defense the right to
question the secret witnesses-whose testimony is often
the primary, if not the sole, evidence against the
accused. Stung by criticism of this blatant violation of
due process, the Colombian Congress in 1993 granted
the defense the right to cross-examine secret witnesses, provided their identity remains protected. In subversion-
related cases, however, the defense rarely has an effec-
tive opportunity to participate in evidentiary proceed-
ings-let alone to cross-examine the prosecution’s
witness. Jaime Prieto, director of the Solidarity
Committee for Political Prisoners, notes that out of an
estimated 500 faceless-court cases handled by his office,
they have never been notified of such proceedings, nor
have they ever taken part in one.
The debate over whether the faceless courts should
continue to exist is polarized, and the stakes are high.
“Would you want to be the one who abolished these
courts if they start shooting judges again?” asks U.S.
AID director Lars Klassen. This would be a more diffi-
cult question if the courts dispensed even a semblance of
justice, and if it were certain that they actually protected
judges from the most serious threats.
What Colombia’s justice system needs are police who
perform better investigations, prosecutors who know
how to try cases properly, and judges who are able and
willing to enforce procedural rights. A system which
relies on secret evidence and places strict limitations on
the right to defense in order to ensure a high conviction
rate breeds incapacity among these officers of the law.
Putting the military in the driver’s seat does little to
enhance the integrity of beleaguered legal institutions.
Meanwhile, U.S. AID’s assistance no longer places
special emphasis on the faceless courts. The U.S. gov-
ernment is now training both ordinary and faceless pros-
ecutors and judges, as well as some public defenders, to
help them overcome some of the procedural problems in
the system. Perhaps their efforts will succeed. Six years
after Colombia’s touted legal reform, however, it
appears that the United States and Colombia are likely
to be remembered as the ones who replaced the blind-
fold of Justice with a hood.
War by Other Means 1. For additional information on the faceless-justice system, see Nat- ional University of Colombia Faculty of Law, Political and Social Sciences, Justicia sin rostro (Bogot6: National University Press, 1996); Ministry of Justice and Law, El crimen organizado y la justicia
(Bogot6: National Press of Colombia, 1995); Lawyers Committee
for Human Rghts, Public Order Private Injustice, (New York, 1994).
2. See Justicia sin rostro, pp.19-33; and Organization of American
States, Second Report on the Situation of Human Rights in
Colombia (Washington, D.C.: Inter-American Commission on
Human Rights, 1993).
3. El crimen organizado y la justicia, p. 32. Statistics compiled by
the International Commission of Jurists and the Andean
Commission of Jurists (Colombian Section), Justicia para justicia:
Violencia contra jueces y abogados en Colombia, 1979-1991
(Bogota: Andean Commission of Jurists, 1992).
4. Constitutional Court Decision C-090 (Februrary 27, 1993).
5. For a study of Peru’s faceless-court system, see the U.S. State
Department, Report of the Commission of International Jurists on
the Administration of Justice in Peru (Washington, D.C., 1993).
6. Since April 1948, every Colombian President has issued an emer-
gency decree. See Public Order Private Injustice.
7. Diario Nacional (Bogot,), various.
8. El crimen organizado y la justicia, p. 176.
9. Author interview, Colombian Comission of Jurists, Bogota, May,
1996.
10.Author interview, Barrancabermeja, May, 1996.
11. Justicia sin rostro, pp. 142-143. The 350 case sample repre-
sented 15% of the 2,327 cases that went to verdict between
June, 1993 and May, 1994.
12.Justicia sin rostro, p. 53; El crimen organizado y la justicia, p. 196.
13.Justicia sin rostro, pp. 47-48.
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