1,450,515 complaints were filed last year. There is concern about the increase in the number of defendants set free because of the expiration of the statute of limitations. The majority of the cases ended up being put on ice, with 74.2% of complaints being placed on file.
By María Isabel Ortiz Fonnegra, EL TIEMPO, April 6, 2020
(Translated by Eunice Gibson, CSN Volunteer Translator)
Last year the Attorney General’s Office received almost 1,500,000 complaints. This is some 4,000 every day and 165 every hour. The majority (39%) were property crimes, such as theft, followed by crimes against life and personal safety (14.6%); crimes against the family (12.3%) against public safety (5.6%) and crimes against public health (5%).
Nevertheless, the majority of the cases ended up being put on ice, with 74.2% of cases being placed on file without proceedings. Besides, of the 18, 467 cases that were taken to trial, 57% ended up without a conviction; that is to say, the Attorney General’s Office lost almost six out of every ten cases.
There were convictions in only 43% of the proceedings, and almost half of those (48%) were achieved by plea bargains.
These are the statistics for the criminal prosecution system, published by the Corporation for Legal Excellence (CEJ in Spanish). The statistics show, according to experts, profound failures in the prosecuting entity.
For Julio Sampedro, former Dean of the Juridical Science Department at Javeriana University, these results show that there is a failure in investigation. He adds that in a criminal case, the Attorney General’s Office has to be loaded with reasons to win the cases. “If the Attorney General’s Office files a case and doesn’t win, that’s a failure. The Attorney General acts as the lawyer for our society.”
Sampedro believes that the reason behind the high number of not guilty verdicts is that the prosecutors are dedicated to showing results in arrests and captures without carrying out an investigation that would result in winning the case.
Criminal lawyer Camilo Burbano is of the same opinion. He said that because of the way in which the prosecuting entity is evaluating its prosecutors today, demanding a fixed quantity of results, “the prosecutors are more concerned with having to file a quantity of charges, than with filing cases that are consistent and adequately prepared.”
He added that there are prosecutors who are overloaded, carrying between 300 and 400 cases, and there are not enough judicial police.
With regard to the high number of cases that are placed on file, they both agree that there will always be cases that can’t be pursued because people complain about matters that are not crimes, but that 70% is awfully high. It’s especially concerning that 58% of those cases are placed on file because either the victim or the perpetrator can not be found.
“It’s essential in a criminal investigation to determine the identity of the perpetrator. Being unable to establish the active or passive perpetrator should not be a real cause for filing a case away. Besides, the way they evaluate the prosecutors turns into a perverse incentive, because in order to meet their goals, they don’t have time for an adequate investigation and so they say it was impossible to identify the perpetrators,” commented Burbano.
Added to the problem of a high inventory of cases and of overloaded prosecutors, the statistics published by the CEJ also show that very few methods are used to help reduce the congestion in the courts, such as deferred prosecution, where a prosecutor can defer criminal prosecution of someone in exchange for commitments of reparation or cooperation with the court.
According to the lawyers, because of this country’s punitive populism, and wanting to resolve every case with imprisonment, there is a belief that deferred prosecution means impunity. They have reduced the possibility of applying it to various crimes. Last year only 0.3% of cases (3,461) were concluded by means of deferred prosecution.
Releases because of the expiration of the statute of limitations are increasing in number.
Just like retired General Humberto Guatibonza, investigated for wiretapping and released because of the expiration of the statute of limitations in October of last year, another 5,088 people were set free in 2019 for the same reason.
According to data from the Attorney General’s Office, this represents 10% of all releases last year. For the experts, this fact is concerning, and the figures are increasing.
In the last five years, releases because of the expiration of the statute of limitations increased from 6% of all releases to 10%.
Sampedro commented that these releases are not because of lawyers’ “tricks”. The law makes clear that delays attributable to the defense are not to be counted. He thinks that this extent of release for expiration of the statute of limitations is because “the prosecutors or the judges are not doing a good job.”
For his part, Burbano considers that the failure is structural in the whole system and can’t be attributed to one single part. He adds that, as the whole system is more and more collapsing, these kinds of releases will continue to increase.
The high rates of release for theft and for drug trafficking
Of the 2,438 complaints of trafficking, fabrication or possession of drugs that were charged, 95.3% were flagrant, and of those, in 78%, the decision was not guilty. For theft, 3,550 cases were charged and in 89% of those, the offense was flagrant. Yet 53.7% of those also resulted in no conviction.
For the former Dean of Juridical Science at Javeriana, Julio Sampedro, this shows an investigation failure. Flagrancy is not by itself sufficient to get a conviction. There has to be more proof. The criminal lawyer Camilo Burbano added that in drug cases, many times there is confusion between the minimum dose that is permitted and the possession with intent to deliver. That case cannot be proved.
In another point of view, Gilberto Toro, Director of the Federation of Municipalities, said that it’s discouraging that in spite of the efforts of the police, “there is a system that has too many guarantees of the rights of criminals and that lets them go free.”
Meanwhile, the Secretary of Security in Bogotá, Hugo Acero, stated that, more than discourage, this ought to lead to conducting better investigations, with solid evidence.
He explained that it doesn’t help much to capture the drug dealers or the people that steal cell phones, for example, if they can’t reach the big criminal networks that are behind them.
And he added that using the strategy of doing more investigation to go after the criminal networks as a whole, instead of just capturing the bottom link, they were able to break up 127 gangs in the city in the first three months of this year. He said that the great majority of the offenders were sent to prison.