Bolivia

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Additional Resources

Background

Bolivia is divided into 9 departments, 112 provinces, 339 municipalities and peasant indigenous territories, its capital is Sucre, and the city of La Paz is its administrative capital and seat of the executive, legislative and electoral bodies. According to the National Institute of Statistics, Bolivia has a population of 10.426 million people. In 2009 came into effect the current Constitution, after being approved in a referendum. The Constitution defines Bolivia as a unitary state multinational law social community. Spanish is the most spoken language in the territory, but there are 36 indigenous official languages. The predominant religion is Catholicism (78%) but the Separation of religion and government is enshrined in the Constitution. There is a separation of powers among the four branches of government: legislative, executive, judicial and electoral.

Type of system

Law No. 1970 of 1999, in force since 2000, established a new criminal system in Bolivia, the adversarial criminal justice system. The Criminal Procedure Code is divided into two parts; the first part is the general, which uphold the principles of due process and human dignity, and matters relating to jurisdiction and competence. The second part describes the common procedure that includes the pre-trial stage, the development of pre-trial phase, and its conclusion, the intermediate stage, the rules of trial procedure, the deliberations and the judgment.

The 1999 penal code also incorporated the customary law of indigenous peoples.

Sources of Defendants'Rights

In Bolivia the procedural guarantees and the defendant's rights are enshrined in the National Constitution, particularly in Chapter III, dedicated to civil and political rights, in Section IX of Chapter V, related to the rights of persons deprived of liberty and in Chapter I of Title IV, related to judicial safeguards. The procedural guarantees are also laid down in Articles 1 to 13 of the Criminal Procedure Code (Law 1970 of 1999).

In accordance with the second paragraph of Article 13 of the Constitution, treaties and conventions ratified by the Plurinational Legislative Assembly, which recognize human rights and prohibit their limitation in states of emergency will prevail in the domestic order.

In that sense, the rights under the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the American Convention on Human Rights, the Additional Protocol to the American Convention on Human Rights, and the Statute of the International Criminal Court are also sources of protection of defendants’ rights and the procedural guarantees.

Defendants'Rights

  • Human Dignity

Articles 22 and 73 of the Constitution establish the right of human dignity. This right is inviolable and must be guaranteed to all persons deprived of the liberty. Article 6 of the Criminal Procedure Code provides that every person who is suspected of a crime, is entitled to the right to be treated with due respect for their dignity.

  • The due process rights

The due process includes a set of rights such as the presumption of innocence, the principle of legality, the right to defense, the legality of evidence, and the right to a fair and public trial without undue delay.

  • Right to liberty

The Bolivian Constitution provides this right in Article 23, states that this can only be restricted within the limits prescribed by law. No one shall be deprived of his liberty save in and in accordance with a procedure prescribed by law: it is necessary warrants duly issued by a competent judicial authority, in cases of flagrant warrants are not necessary. All adolescents who are deprived of their liberty shall receive priority attention.

  • Presumption of innocence

Article 116 of the Constitution and Article 6 of the Code of Criminal Procedure, set the right of all defendants to be presumed innocent until proved guilty before a competent Court. In that sense, t he burden of proof is placed on the prosecution, who must demonstrate that the defendant is guilty and the doubt must be resolved in favor of the accused.

  • Legality of the sentence

Enshrined in Article 117 of the Constitution, states that no one shall be convicted or sentenced except pursuant to a fair trial before an independent and impartial court. Besides, nobody can be tried or punished more that once for the same offense.

  • The right to defense

Established in Articles 8 and 9 of the Criminal Procedure Code and Article 119 of the Constitution, implies the right to a counsel chosen by the accused and the right to communicate privately with him. The state must provide free legal assistance for defendants with limited resources.

  • Legality of Obtaining Evidence

Means that evidence obtained through ill-treatment torture, abuse, coercion, threats, deceit or violation of fundamental rights of individuals, has no validity.

Pre-Trial Phase

This phase of the proceedings starts with a complaint, later the police is in charge of investigate the facts, collect evidence and provide all the information to the prosecutor. The prosecutor examines evidence in order to determine whether sufficient evidence exists to charge the accused, to continue with the investigation, to file the case, to apply the principle of opportunity, to ask for the application of summary judgment or the conciliation. The maximum period of this stage is 6 months from the imputation, after that the prosecutor must file formal charges if he considers that there is sufficient evidence to bring the person to trial. If the prosecutor finds there is not enough evidence the case must be dismissed.

Court Procedures

Since the implementation of the adversarial criminal justice system in Bolivia, the trial phase is carried out through public hearings, based in a public competition between the prosecution and the defense, before to an impartial judge. The trial came to be handled under the principles of orality; immediacy, which implies that evidence must be presented at a hearing before the trial court, the prosecutor and the counsels, and continuity, which implies that once started the trial should be carried out uninterrupted until the court issues a final judgment.

Upon receipt of the accusation the defendant shall have 10 days to submit rebuttal evidence and after that the judge must be set a date for the trial within 20 to 40 days. The trial hearing will begin with the reading of the indictment, followed by the defendants' statements, the presentation of evidence by both parties and their closing arguments. Finally, the members of the Court will deliberate and then issued a judgment.

Post-Conviction

Sentence

In Bolivia sentences are issued by communal judges, the sentencing courts are composed by two judges and a jury of three citizens. Decisions are taken by majority. If the number of votes to acquit and to convict is equal, the verdict must be the most favorable to the defendant. The judgment will be of acquittal when the evidence is insufficient to prove beyond a reasonable doubt, when the crime did not exist, when there is non- criminality of the act under the Criminal Code's definition or when an intervening cause exists that relieves a defendant of liability. The judgment shall be of conviction when prosecution evidence is legally sufficient to establish the defendant's guilt. Currently, the maximum penalty in Bolivia is 30 years' imprisonment without right to pardon, that penalty is for crimes of murder, parricide, treason and espionage. The Constitution prohibits the death penalty.

Appeal

The appeal can be requested by both parties, when the Tribunal renders a judgment of acquittal or conviction. The appeal may be incidental or restricted, the incidental must be filed within 3 days after the notification of the decision, must be submitted to the tribunal which sends it to a superior court. A new hearing will take place before a different judge of the superior court. The restricted appeal must be filed within 15 days after the notification of the judgment; it will be send to the Court of Appeals which will hold a new hearing. The Court must issue a verdict within 20 days. The Court can reverse a case and change the judgment, or reverse the case and vacate the judgment.

The appeal of cassation is an exceptional appeal, which must be submitted to the Criminal Chamber of the Supreme Court. The Supreme Court has jurisdiction for upholding or annul Higher Judicial District Courts’ rulings, The appeal for review, has the same procedure than the restricted appeal, The Court has jurisdiction to quash the verdict whether to issue another judgment or to order a new trial.


QUICK FACTS

  • At the end of 2011, the total prison population of the country amounted to 11,516 persons. Pre-trial detainees and remand prisoners represent 83.6% of the total prison population.
  • There are 53 establishments in the whole country.
  • The occupancy level, based on official capacity, rates to 185.1%.
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