Colombian Prosecutor’s Office Continues a Strategy of Impunity and Re-victimization

(Translated by Richard Henighan, a CSN Volunteer Translator, edited by John Laun)

Source: Justice And Dignity, Inc.

The Colombian Prosecutor’s Office Continues a Strategy of Impunity and Re-victimization in Crimes of Sexual Violence Committed by Members of the Military
Santiago de Cali, June 10, 2014

Next Tuesday will be the fifth anniversary of the sexual attack on Sandra Mosquera, an indigenous woman, who was twenty-two at the time. She was victimized by soldiers belonging to the Pinchincha Battalion of the Third Brigade from Cali.

On that fateful June 10, 2009 at 8PM, the soldiers Hector Lujan Sanchez and Carlos Pulgarin Ramirez took her into custody while she was going along the road to her house located in La Maria neighborhood, Jambalo Municipality, Cauca Department.

The indigenous woman was made a prisoner and searched by the soldiers. One of them who was under the influence of marijuana forcibly raped her; the other did the same. For their part, the military superiors of these sexual aggressors tried to bribe the humble woman, offering her 100,000 pesos ($50) not to report the rape. They then forced her to leave on a local bus.

Nevertheless, in search of justice, the woman and her family undertook the difficult path of filing a criminal complaint with the office of the Public Prosecutor (or Attorney General office, Fiscalia). This has cost her and her children no end of threats from the victimizers. On May 3, 2010, these threats forced her to leave her home.

Such was the State’s neglect and so serious the risk to her safety that the
Inter-American Commission on Human Rights (CIDH) promulgated Orders of Protection, requiring the Colombian State, among other things, to adopt urgent measures to protect the integrity of the life and rights of the indigenous woman and her children. They also sought to move forward the investigation of the facts of the case.

It would not have been surprising had the poor woman declared at this point that it would have been better had she not filed a complaint and thus avoided the forced displacement, the breakup of her family, and the indignities to which she has been submitted by the victimizers, the Public Prosecutor’s office, and other State functionaries.

Despite international mention of this case, the indigenous woman continues to be forcibly displaced and re-victimized by Special Public Prosecutor’s Office 38, assigned to the Human Rights Unit in Cali, and by the Ministry of Foreign Relations. The former, from the beginning of the criminal investigation adopted an attitude prejudging the case. During the preliminary stage the investigation did not comply with either national or international standards for Human Rights, nor was due diligence used as required in an investigation of this type in a setting of armed conflict. On the contrary, strangely, the Public Prosecutor’s office has given total credibility to the sexual aggressors, unjustifiably attributing to the woman licentious behavior and justifying its judicial inaction, arguing that the woman suffers from a psychological disorder. In the course of the court proceedings the Public Prosecutor’s office argued similarly that there were no signs of violence because the victim had not turned over the clothes she was wearing on the day of the assault! Then it wrongfully discounted the psychological determination of the Center of Attention and Full Investigation for the Victims of Sexual Crimes (CAIVAS), a part of the Public Prosecutors Office (Fiscalia) itself, which certified that the woman had in fact been abused sexually. The most scandalous thing of all is that the sexual aggressors admitted during the criminal and disciplinary proceedings to have committed these acts at the specified place over a period of about an hour when they were uniformed and armed with guns, but they argued that said relations were supposedly “consensual”.

Magistrate Victor Manuel Chaparro Borda of the Criminal Branch of the Superior Tribunal of the Judicial District of Cali, in a separate opinion to a decision in an Accion de Tutela (Claim of violation of constitutional rights) (Rad. 2013-100), said the Attorney General’s office had violated the right to petition of the indigenous victim. He stated that the Public Prosecutor’s office had deprived the indigenous woman of her fundamental right of access to the Administration of Justice, part of due process because after more than three years the Public Prosecutor’s office had not decided whether or not to file a criminal complaint. The office of Public Prosecutor 38 has imposed the burden of proof on the indigenous victim, without moving ahead on any action to guarantee her right to justice. It has re-victimized her and pre-judged her by disbelieving her and giving total credibility to the soldiers.

Only after innumerable petitions, orders of protection requested (tutelas), reports, and public accusations did the Prosecutor’s office, in February 2014 request a formal hearing for charges against those implicated in the attack on the indigenous woman. It should be noted that this Office only sought an arrest warrant after having delayed this hearing twice, giving advance warning to the sexual aggressors.

On May 28 and 29, 2014 the formal hearing on the charges against Hector Elias Lujan Sanchez and Carlos Pulgarin took place. However, despite the fact that the representatives of the victim had insistently asked to be present, they were not informed of the hearing date. In this hearing, the aggressors were benefitted judicially due to this inaction of Public Prosecutor 38’s office, leading to the inference that everything had been arranged to favor them.

On May 28, 2014 Municipal Criminal Court 26, which is in charge of financial guarantees for persons on trial, indicated, following the request of the office of Public Prosecutor 38, it decided not to impose any restrictions on Carlos Pulgarin. On May 29, 2014, Municipal Criminal Court 20, also in charge of financial guarantees, did commit Hector Elias Lujan to home detention, without any recommendation from Public Prosecutor 38’s office.

Right now the indigenous woman and her children are left in danger, since the sexual aggressors have been formally linked to the criminal case, but are in full liberty to cause harm to the victims, all with the acquiescence of the of Prosecutor 38’s office.

Now the Colombian Ministry of Foreign Relations, knowing that justice has not been done and the aggressors are free to do more harm, since according to the courts of guarantees and the office of Public Prosecutor 38, these individuals “do not represent a danger to the community”, has cynically on more than three occasions solicited the removal of the Order of Protection that the CIDH has provided to the humble and defenseless woman. The contemptible argument of the Ministry of Foreign Relations is that over the last five difficult years they have already delivered to her two great instances of humanitarian assistance. This weak argument fails to recognize the fact that the indigenous woman remains displaced and totally unprotected, and is in fact now at greater risk due to the questionable judicial actions.

We request that you take the following actions:

-Call on the Inter-American Commission on Human Rights and the Rapporteur for Women to do everything that they can to keep in force the Order of Protective Measures (MC 141/10) on behalf of the indigenous woman and her minor children.

-Call on Dr. Maria Angela Holguin, Minister of Foreign Relations, to comply totally with the Order of Protective Measures (MC 141/10) as laid out by CIDH and to abstain from requesting any lifting of this requirement until the truth is clarified and justice has been done and the victim either returns to her place of origin or is relocated and her safety is guaranteed.

– Call on the Fiscal General (Prosecutor General) of Colombia, Eduardo Montealegre, to order a change in the investigative team from the Public Prosecutor 38’s office of the Unit of Human Rights and International Humanitarian Law in Cali because of the unprofessional, irregular, and suspicious manner in which the present investigation was carried out and because it unfairly tends to favor the soldiers under investigation. And call upon Prosecutor Montealegre to study the possibility of assigning the case to a different Public Prosecutor for Human Rights who would guarantee truth, justice and full reparations in this so dramatic case.

– Call on the social, women’s and human rights organizations: to send communications to the Fiscal General’s (Public Prosecutor’s) Office (File Number SPOA 196986000633200900610) calling for compliance with international standards concerning the investigation of sexual violence in the context of internal armed conflict, and calling on the Fiscal General to avoid any practices that are harmful to or unworthy of women or that make them victims once again.

(This translation may be reprinted as long as its content remains unaltered and the source, author and translator are cited.)

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