FOLLOW-UP REPORT - ACCESS TO JUSTICE AND SOCIAL INCLUSION: THE ROAD TOWARDS STRENGTHENING DEMOCRACY IN BOLIVIA

V.         PRISON CONDITIONS AND RIGHTS OF PERSONS DEPRIVED OF LIBERTY

103.     The prison population in Bolivia remains in a state of vulnerability and no significant progress has been made in that regard.[115]  Civil society organizations have taken on most of the State’s responsibilities, such as, for example, providing skills development and vocational training courses for persons deprived of liberty; training for custodial staff; and support for improvements in the area of building infrastructure, health, food, legal assistance, etc.[116] The Bolivian State has recognized that budgetary constraints have precluded substantive improvements in the infrastructure of all penitentiary centers.[117]

104.          The Commission also notes that preventive custody remains one of the most widespread factors in the violation of prisoners’ rights.  Available information indicates that more than 75% of the inmates are in preventive detention.[118] The Commission has been informed that this situation has to do not only with a failure to comply with statutory deadlines and domestic and international standards on such matters, but also with acts of corruption by a number of justice operators, who allegedly do not attend scheduled hearings or give these cases proper attention.[119]

105.          Accordingly, the IACHR reiterates to the State its recommendations that it adopt the measures necessary to ensure that judicial authorities apply preventive detention reasonably and strictly observing the maximum legal duration[120] in conformity with international standards; that all accused have at their disposal an effective judicial remedy to challenge excessive periods in preventive detention; and that the necessary judicial, legislative and other measures be adopted to correct the excessive application of preventive detention and the procedural delays that persist in the administration of justice.

106.          On the other hand, the IACHR has received information that suggests that the new constitution would introduce a number of significant advances with regard to the situation of persons deprived of liberty. This would signify the beginning of a process of alignment with the standards in force and adoption of new public policies consistent with international rules and treaties.[121]  The IACHR has also been informed that civil society organizations, with the backing of the National Directorate of Prisons, have presented to Congress a bill amending Law 2298 with respect to the benefit of a reduction in sentence (a benefit not available to convicts sentenced for the crimes of rape of a minor, terrorism, or offenses recognized by Law 1008 that are punishable by more than 15 years of imprisonment, which makes them ineligible for a pardon).  The bill, which is said to have passed its first reading in the House of Deputies, would provide all convicted persons with the opportunity to apply for a reduced sentence on grounds of study or work, assuming they have served two-fifths of their sentence and meet other additional requirements.

107.          The IACHR will continue to monitor the passage and adoption of the aforesaid legislation, appraise its results, and evaluate other measures of different types adopted to correct excessive use of preventive custody and the persistent procedural delays in the administration of justice, as well as, in general, to ensure protection of the rights of persons deprived of liberty.

108.          The overcrowding in a number of Bolivian prisons is directly linked to the excessive use of preventive detention.[122]  The information supplied indicates that population in San Pedro Prison in La Paz is exceeds its holding capacity by more than 400% and that a similar situation exists in other prisons in the country.[123]   The Annual Report of the Ombudsman to Congress states that there are around 7,000 persons deprived of liberty in Bolivia (6,000 of them men and 1,000 women) while the combined holding capacity of all the prisons is only 4,700.[124]

109. The State reported on a series of measures that could contribute to reducing the prison population. These measures include application of alternative sentencing or “opportunity criteria.”[125] Also the “Manual for Litigation in Precautionary Measures Hearings” was approved to provide tools for the best use of precautionary measures hearings by justice authorities and defense attorneys. According to government sources, this measure has been disseminated to the departmental offices of the penitentiary system, criminal examining magistrates, prosecutors, defenders of the National Public Defenders’ Service, and private trial lawyers.[126]

110. The IACHR considers that these initiatives could be the genesis of a more comprehensive policy for overcoming the crisis of overcrowding in the jails. The Commission hopes to continue receiving information on the concrete results of the efforts described by the State and additional supplementary judicial, legislative, or other measures.

111.          The Commission has also identified other problems that are of particular concern, such as a failure to separate persons held in preventive detention from convicted prisoners; the absence of a system of classification of prisoners according to the seriousness of their crimes; children living with their parents in prisons; and an absence of policies and specialized centers for juveniles in conflict with the law.

112.          Indeed, the Commission expressed its grave concern that remand prisoners were housed together with convicts and, even worse, juveniles under the age of 18 were held with adult convicts and remand prisoners.  As was noted, the age of criminal liability in Bolivia is 16, which means that juveniles between 16 and 18 years old are subject to the ordinary Criminal Code and held in prisons for adults. While in prison, moreover, those juveniles do not receive any differentiated treatment to meet their specific problems and needs.

113. The Commission is encouraged by the fact that from October 13 to 17, 2008, a feasibility study was done on reorganization of the prison infrastructure, which resulted in the identification of some detention centers to be used only for convicted persons.[127] The Commission hopes that the State will continue reporting on specific steps to follow up on this diagnostic, and the results anticipated in the short, medium, and long term.

114.          As regards imprisonment of persons under 18 together with adult remand and convicted prisoners, the Commission has received information that a series of initiatives are being prepared with the participation of the State, though it would seem that they have yet to translate into concrete results.[128]  The IACHR urges the States to make every effort immediately to eliminate the practice of housing juvenile (that is, under 18) remand and convicted prisoners together with adult remand and convicted prisoners even when the detention is only temporary.[129]

115.          It is a priority to establish effective systems to ensure that persons in pre-trial detention are segregated from those who had been convicted, and to create classification mechanisms for persons deprived of liberty according to sex, age, reason for detention, special needs, and applicable treatment.

116.          Another of the problems that the IACHR identified in its report had to do with prison security and control.  In that respect, the report found that prison administrative staff do not work exclusively as professional prison officers, that the police personnel in charge of the prisons receive inadequate training, and that in many detention centers internal security is generally in the hands of the inmates themselves.[130]

117.          In this regard, the IACHR has received reports that the lack of capacity and resources to control security in prisons has led to the existence of internal control systems overseen by the inmates, who, in some cases, manage illegal operations with contacts outside the prison.[131]  Other security problems in prisons concern the entry of alcohol and drugs as well as outbreaks of violence among prisoners, in some cases with the involvement of the guards.  As yet there are no mechanisms in place for tackling these problems.[132] 

118.          Consequently, the IACHR expresses its concern and reminds the State of its recommendation to adopt the necessary measures to immediately regain control of internal areas of prisons in the country.

119.          It is also a priority to establish special recruitment and training programs for all personnel in charge of the administration, supervision, operation and security of prisons and other places of deprivation of liberty, which must include education on international human rights standards related to prison security, the proportionate use of force, and the humane treatment of persons deprived of liberty.[133]

120.          In this connection, the IACHR has received information about a training initiative for prison officials that could be taken as an encouraging sign.  According to the information, the Universidad Pública y Autónoma de la Ciudad de El Alto de La Paz (UPEA) is organizing a Diploma Course on Restorative Justice as part of a Masters Degree in Prison Administration.  The objectives of this initiative are, inter alia, to replace the police with specialized staff and meet international standards in this area in the sense of “de-policing” or “civilianizing” prisons.[134]  In the same vein, the State has reported plans in coordination with civil society to prepare and offer a distance course titled: “Expert in Legal Psychology, its applications in the penitentiary system,” for personnel in that system at the national level. It has also been working on a “curriculum framework” for the operation of what would be the Prison Personnel Training Institute.[135]

121.          The IACHR hopes that the executive branch supports this endeavor by allocating the necessary funds to accomplish positive results in recruitment and training.

122.          Furthermore, prison facilities remain precarious and inmates are inadequately fed.[136]  According to available information, none of 2007 budget for the General Directorate of Prisons for reconditioning jails [carceletas] –where the Ombudsman of Bolivia confirmed “the awful conditions in which persons deprived of liberty in these facilities are kept”- and making improvements at the main prisons in the departments was use for that purpose, and therefore no progress was possible in terms of the condition of infrastructure.[137]

123.    The IACHR also reiterates to the State its recommendation that it adopt measures with a view to improving infrastructure in those prisons where conditions are precarious and do not meet the minimum requirements with respect to drinking water, sanitary facilities, personal hygiene, floor space, light and ventilation; sufficient and adequate food; and adequate bedding.[138]

124.     With respect to medical care in the penitentiaries, the Commission underscores the information supplied by the State on the signing of interagency agreements for second- and third-level care to benefit the prison population in La Paz, Cochabamba, and Santa Cruz.[139] The Commission also notes that according to the State, basic health services including a general practitioner and a dentist are available in all detention centers.[140]

125.          Although the information received states that healthcare facilities in prisons are deficient,[141] that there is no health care whatsoever available in provincial jails [carceletas], and that, in general, there is an urgent need for specialist medical care according to the need of the inmates.[142]

126. The Commission welcomes information received to the effect that on February 27, 2009, the Ministry of Government issued Resolution No. 014/2009 the daily food allowance for prisoners in the district and provincial penitentiaries from 4.50 Bolivianos to 5.50 Bolivianos as of March 1, 2009.[143] In light of the concerns expressed in the preceding paragraphs, the Commission hopes that the state will continue to report on specific effects of this measure on conditions in Bolivian jails.

127.          Consequently, given the precarious conditions of infrastructure, hygiene and safety indicated above, and the lack of internal control and security by the State, the Commission expressed its particular concern over the physical, mental and moral integrity of children living with their parents in prisons.

128.          In this connection, the IACHR notes from the information received that in June 2007 the General Directorate of Prisons adopted a resolution which stated that children would no longer be admitted to prisons unless they met the legal requirements, which provide that they must be under six years old and that the parents have custody of them.  Thus far, the authorities have not complied with this resolution.  The Commission was also informed of a private scheme introduced in Achocalla by the Efel Ciapa Foundation under which the children are taking to a nearby academic center on a daily basis.[144]

129. The Commission also received information from the State on agreements between governors’ offices and civil society organizations for scholarships for children in this situation. As examples, it mentioned the departments of Oruro and La Paz, in which the agreements provide for food, education, and transportation worth 9 Bolivianos in Oruro and 5 in La Paz. Another example cited by the State is the school and food support given children between 0 and 5 years in the prison centers in the departments of Tarija and Santa Cruz.[145]

130.          Although the Commission salutes these efforts, it considers it essential for the State to adopt comprehensive, ongoing measures of general application to ensure that when children are lodged in detention centers together with their father or mother deprived of liberty, the best interests of the child are taken into account upon establishing pertinent policies, and particularly that they have access to special protection, food, health and educational services necessary for their proper development. The State should also take steps to guarantee, in the same terms, the best interest of children not living in prison with the parent deprived of liberty who has custody of the child. In this context, the State should carry out serious and diligent investigations whenever there is a complaint of sexual abuse to the detriment of persons that live in prisons.

131.          The Commission reiterates that the State should make available adequate and effective remedies of individual and collective nature for judicial control of overcrowding and violence inside penitentiaries. Those remedies must be accessible to persons deprived of liberty, their relatives, their private or public defenders, NGOs, the Ombudsman and other competent institutions.

132.          The IACHR urges the State to take steps to provide and facilitate educational and working opportunities for persons deprived of liberty with a view to assisting in their reform, social readaptation, and personal rehabilitation.  

            VI.        RIGHTS OF INDIGENOUS PEOPLES AND PEASANT COMMUNITIES

133.      The Commission has devoted particular attention to this issue, which involves the majority of the Bolivian population.  The main aspects examined by the Commission in Access to Justice and Social Inclusion may be summarized as access to land and territory; natural resources and participation in development projects; situation of forced labour and bondage analogous to slavery; difficulties in access to the official justice system, and recognition of indigenous justice.

134.          Some progress has been made as regards legislation. The Commission values the fact that the Bolivian State elevated the United Nations Declaration on the Rights of Indigenous Peoples to the rank of law.[146]  The Commission also notes that the new Constitution incorporates numerous provisions on the collective rights of indigenous peoples, including the principle of indigenous autonomy.[147]  The Commission hopes to receive information on the implementation of these initiatives, in particular on the aforesaid Declaration, which is now part of the Bolivian legal system.

135.          The Commission was also informed of the creation of an interagency commission composed of the Vice Ministry of Justice and Human Rights, Vice Ministry of Community Justice, Office of the UN High Commissioner for Human Rights, Ombudsman, Committee for Indigenous Affairs of the House of Deputies, and Universidad Cordillera.  According to available information, this commission prepared a draft antidiscrimination bill which would include in Bolivia’s Criminal Code a chapter titled “Crimes against Human Dignity”, which covers discrimination, dissemination and incitement of discrimination, and discriminatory associations.  The bill is currently before Congress for the approval process.[148]

136.          The aforementioned progress notwithstanding, indigenous peoples and peasant communities continue, in practice, to face a series of abuses that obstruct their full inclusion in decision-making and the full exercise of their human rights,[149] in particular economic, social and cultural rights. It should be noted that despite some governmental efforts such as the establishment of three indigenous universities by Supreme Decree No. 29664 of August 2008,[150] the lack of access to education and health continues mainly to affect the indigenous population, especially children, women, and the elderly.[151]  Access to public services, such as safe drinking water, is a matter of concern; in all, 43% of the rural population has no access to this service.[152]

137.          The Commission sees with concern that in 2007 and 2008, there were a number of incidents of violence of a discriminatory bent against persons who identify themselves as belonging to an indigenous people.  These incidents, which manifest themselves in the form of assault and verbal attacks, have targeted both private citizens and state authorities.[153]  Violence of this type also affects indigenous leaders and human rights defenders and occurs, in many cases, with the support of economic actors and local authorities.[154]

138.          The UN Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people visited Bolivia toward the end of 2007 and concluded in a preliminary note on his findings that discrimination and racism were “still manifested in the behaviour of public officials at the national and subnational levels and in the attitudes of political parties and pressure groups, which sometimes incite violence against persons based on their indigenous status.”  The note also states that “expressions of anti-indigenous racism frequently occur in some media.”[155]

139.          As an example of the foregoing, incidents were recorded in which several members of the Constituent Assembly belonging to the ruling party, the Movement Towards Socialism [Movimiento al Socialismo] (hereinafter also “MAS”), were assaulted and insulted because of their social status.  It is worth mentioning that during her tenure as Speaker of the Constituent Assembly, Silvia Lazarte was insulted by private individuals, who shouted “Dumb chola” [chola ignorante] and burned a rag doll while chanting, “Burn, chola.”[156]

140.          In the city of Sucre, in November 2007, during the demonstrations for full “capitalhood”, similar discriminatory expressions were used against indigenous persons, who, in addition to having been victims of physical violence were referred to as “llama faced indians” [“indios cara de llama”], “stinking” [“hediondos”], and “fucking indians” [“indias de mierda”].  There were also reports that medical assistance was later refused to the indigenous persons injured in these incidents.[157]

141.          During its visit to the country, the IACHR received troubling reports that discriminatory rhetoric had even penetrated some provisions of the autonomy statutes proposed by a number of regions in the country, given that there were aims to establish specific regimes for indigenous peoples in the regions, in disavowal of their rights and guarantees recognized in the Constitution and international instruments ratified by Bolivia.  Specifically, concern was expressed over the text of Article 161 of the Autonomy Statute of Santa Cruz,[158] which states, “In keeping with ILO Convention 169 and the United Nations Convention on Indigenous Peoples, the people of Santa Cruz proudly recognize their mostly mixed racial condition and, to that extent, their obligation to preserve the culture and promote the comprehensive and autonomous development of the five indigenous peoples in the department: Chiquitano, Guaraní, Guarayo, Ayoreo, and Mojeño, pursuant to the provisions set forth in the Statute.”

142.          As will be seen in the rest of this section, among the factors that have so far prevented government policies from achieving any visible results or being effectively implemented are the institutional crisis and the tensions that have arisen in recent years between national and subnational authorities and between different branches of government, in particular, between the executive and the judicial branch.  In this regard, the Commission calls for dialogue and engagement to overcome the tensions which have not only caused social strife resulting in tragic losses of life and injuries, but have also prevented the adoption of measures for ensuring full exercise of rights for indigenous peoples and peasant communities in keeping with their worldview, distinct culture, and development priorities.

            A.         Access to land and territory

143.      According to the most recent population census, 60% of the Bolivian population is indigenous.  This population is composed of more than 36 groups, the largest ones being, in descending order, the Quechua, Aymara, Guaraní, Chiquitano, and Mojeño.[159]  According to publicly available figures, 70% of the land is owned by just 7% of the population, with a marked discrepancy where indigenous peoples are concerned.[160]  This state of affairs stems from historical events that have shaped the current land ownership situation in Bolivia.  The first stage, which extends from the founding of the Republic in 1825 to 1952, was noted for the creation of large estates, or haciendas, and exploitation of indigenous labor.  The second stage began in 1952 with the agrarian reform, the purpose of which was the award and titling of lands. At present, a third stage is in progress, which aims to put an end to the historic inequalities in land distribution.  This stage began with the adoption of law 1715 of the National Agrarian Reform Service[161] and Law 3545 on Renewal of the Agrarian Reform,[162] which broaden the scope of the first agrarian reform.  The Commission values the initiatives of the State to overcome the historical inequalities detrimental to indigenous peoples.

144.          As the State indicated to the IACHR,[163] Law 3545 defines state policy on redistribution in Bolivia through implementation of processes of land regularization, reversion to the State, and expropriation.

145.          Under the aforesaid law, regularization is the stage before land titling and consists of “the transitory technical and legal procedure to regularize and perfect agrarian property rights which is carried out sua sponte or on request.”[164]  The regularization process must be completed nationwide within 10 years. [165]  Its purposes are, inter alia, to prepare an official property register of agrarian land, titling of ongoing agrarian property proceedings, settlement of disputes over ownership of agrarian land, and annulment of irregular titles.[166]  Under Law 3545, regularization is done by the National Institute of Agrarian Reform (INRA), “the body that directs, coordinates, and carries out agrarian policy,”[167] and which, according to the Law, verifies that lands are used in accordance with their “Social and Economic Purpose” [Función Económico Social] (FES)[168] and “Social Purpose” [Función Social] (FS).[169]

146.          One regularization mechanism has to do with land recognized as the natural habitat of indigenous and aboriginal peoples and communities, or Aboriginal Community Lands [Tierras Comunitarias de Origen] (TCO), to which they have traditionally had access and where they maintain and develop their own forms of economic, social, and cultural organization, thereby ensuring their survival and development.[170]  These lands are also “inalienable, indivisible, immune from reversion to the State, collective, immune from seizure, and indefeasible.”[171] This regularization mechanism is known as Aboriginal Community Land Regularization [Saneamiento de Tierras Comunitarias de Origen] (SAN-TCO) and Law 3545 guarantees the participation of indigenous peoples in the execution of this process.[172] 

147.          Once regularization has been carried out, it must be determined whether the land should revert to the State or be expropriated.  Reversion is the process whereby or all part of the surface of a piece of land reverts to the ownership of the State because the use to which its owner puts it does not comply with its economic and social purpose or is harmful to the common interest.[173] According to information received by the IACHR during its visit to Bolivia in June 2008, the use of bondage or forced labor on a property constitutes “harmful” use.  As part of the Aboriginal Community Land Regularization process, Law 3545 provides that any property that reverts to the State shall be granted to the relevant aboriginal community.[174]  The Law also provides that, to be valid, reversion must be carried out within two years after a property has undergone the regularization process.[175]

148.          For its part, land expropriation is applicable for reasons of public utility.[176]  The concept of public utility covers, inter alia, redistribution of land in favor of indigenous peoples whose lands are not sufficient in quantity or quality or suitably geographically located to ensure their physical subsistence and ethnic reproduction as a result of the regularization or reversion processes.[177]

149.          Having clarified the preceding concepts and their relationship to the exercise of indigenous peoples’ right to collective property, as well as the situation of bondage in which many families find themselves, the IACHR notes the efforts of the State to recognize the property rights of indigenous peoples through the adoption of Law 3545 and Executive Decree 29.215, which contains the implementing regulations for said law.[178] The Commission also notes the adoption of Executive Decree 29.292, which creates the 2007-2008 Interministerial Transition Plan for the Guaraní People.  One of the objectives of this Plan is to initiate the territorial reconstitution of the Guaraní people through land regularization and implementation of the current agrarian policy.[179]  The Commission hopes that these initiatives contribute to the demarcation and titling of indigenous peoples’ lands and ancestral territories and that their results are quantifiable in the short term.

150.          The Commission observes that according to official sources, by 2007 the land regularization process in Bolivia had been carried out in 32.61% of the national territory.[180]  However, the Commission finds that in spite of the government’s intentions to implement the agrarian laws, the measures have been severely hampered by groups of landowners, timber companies, and industrialists, sometimes supported by departmental and local authorities.[181]

151.          During its visit, the IACHR was also informed that in regions where captive communities or families exist, the owners have resisted government inspections as part of the regularization process, confronting and threatening government employees as they went about their work in those areas.  An example concerns the process initiated by a land regularization application made by the Guaraní People’s Assembly to the INRA for an area covering 157,000 hectares in the Alto Parapetí region.[182]  In this context an incident occurred in which “armed groups of landowners” and the Unión Juvenil Cruceñista opposed to the aforesaid regularization process surrounded a delegation composed of INRA staff, the Vice Minister of Land, policemen, and indigenous persons, obstructing their free circulation, as well as physically assaulting and verbally abusing them.[183]

152.          During the Commission’s visit it learned that the Guaraní lawyer who was with the aforementioned delegation was taken by force to the square by members of the landowners’ organizations, whipped, and then tied to a post, where he remained for two hours.  During that time, the lawyer was allegedly the butt of racist insults and was told that because of his activities he would be “flogged with a belt” to teach him manners.[184]  The lawyer identified one of the local landowners as the person responsible for the whipping he received and as the ringleader of the organizations that carried out the aforesaid attacks.[185]  It should be noted that the information received shows that on the same day a female journalist was pulled from the vehicle in which she was traveling, threatened with physical and sexual violence, and then tied to a post.  The journalist was taken to a hotel where she remained incommunicado and later told the Mayor of Cuevo that “she had been well treated and that she was in a hotel, not a cell.”[186]  With respect to these events, the IACHR is concerned by the acts of racism and violence that accompany the steps taken to resist implementation of the State’s agrarian policies.

153.          The Commission is troubled that the Government’s attempts to overcome and remedy a situation of historic discrimination and exclusion should have triggered conflicts that have led, in turn, to deplorable acts of violence.

154.          Furthermore, the land regularization process and verification of bondage in one particular property is hampered by a lack of figures or data on the exact number and location of the families that find themselves in such a plight.[187]  The Commission has also been informed about the displacement of these communities “because the estate owners evict them to avoid any problems when they learn of the arrival of government officials to inspect the properties” where bondage is alleged to exist.[188]  The Commission has also heard that landowners take reprisals against Guaranís who offer testimony or statements about their plight.[189]

155.          The initiative to do with the titling of Aboriginal Community Lands has not achieved the most favorable results.  In several cases the IACHR was informed that the regularization process failed to meet indigenous peoples’ expectations for the reconstitution of their territory due to the fact that some INRA procedures are beset with irregularities.  The Commission underlines the importance that the State ensure that said institution act in strict accordance with the law governing regularization.[190]

156.          The Commission reiterates that the case law of the inter-American system for protection of human rights has maintained that Article 21 of the American Convention recognizes the right to property of members of indigenous communities within the framework of communal property, which includes recognition of “the close ties the members of indigenous communities have with their traditional lands and the natural resources associated with their culture thereof, as well as the incorporeal elements deriving therefrom.”[191]  The Commission also reminds the parties involved in the conflict that all expropriation procedures must be carried out in accordance with international standards on such matters and in the framework of due process.[192]

            B.         Natural resources and participation in development projects

157.     On this point, in Access to Justice and Social Inclusion the Commission made recommendations designed to ensure that indigenous peoples and other affected communities be involved in the processes of design, implementation, and evaluation of development projects carried out on their lands and ancestral territories.  Specifically, the Commission drew attention to the importance that the State ensure that indigenous peoples be consulted on any matters that might affect them, noting that the purpose of such consultations should be to obtain their free and informed consent, as prescribed in ILO Convention 169 and the United Nations Declaration on the Rights of Indigenous Peoples.

158.          By and large, the Commission continued to receive information about violations of human rights committed by companies in the mining, lumber, and petroleum industries to the detriment of indigenous peoples and communities in the vicinity of the areas where the respective projects are carried out.  In particular, mention was made of adverse effects on health and production systems; changes in domestic migration patterns; a decline in the quantity and quality of water sources; impoverishment of soils for farming; a reduction in fishing, animal life, plant life, and biodiversity in general, and disruption of the balance that forms the basis of ethnic and cultural reproduction.[193]

159.          The Commission welcomes some important progress in the legislation area. On May 9, 2007, Supreme Decree No. 29.124 was approved to implement Supreme Decree No. 29.033 of February 16, 2007, which establishes provisions and procedures for consultation and participation of native indigenous peoples and peasant communities when there are plans for hydrocarbon activities on their community lands, common property, and lands reserved for their occupation and access.[194] Also approved were the Regulations for Socio-Environmental Monitoring of hydrocarbon activities on the land of native indigenous peoples and peasant communities (Supreme Decree No. 29.103).[195] Later, on August 31, 2007, the Law for Sustainable Development of Hydrocarbons was approved.[196] The latest advance was the establishment of the constitutional right to prior and informed consultation in Article 403 of the new Constitution.[197]

160.          The Commission is appreciative of the adoption of a broad concept of indigenous land and territories, wherein the latter category includes not only physically occupy spaces but also those used for their cultural or subsistence activities, such as routes of access.  The Commission finds this approach to be compatible with the cultural reality of indigenous peoples and their special relationship with the land and territory, as well as with natural resources and the environment in general.  The Commission hopes to obtain information on the implementation mechanisms for this legal framework and on their results in effectively safeguarding the right to prior consultation.

161.          In spite of the foregoing, the Commission continued to receive information about cases in which development projects allegedly have a profound and serious adverse impact on indigenous communities.  Thus, for example, it received reports that the pollution brought about by the resumption of mining[198] and hydrocarbons extraction in the departments of Oruro,[199] Potosí and La Paz, has caused considerable environmental damage.

162.          The Commission had already highlighted the contamination of the River Pilcomayo and the serious ill effects on health caused by extractive activities in the area.  The Commission laments that there is no record of any efforts to improve the situation.  According to the most recent reports, the contamination of the River Pilcomayo watershed by extractive industries has harmed some 100 indigenous communities in the departments of Potosí, Chuquisaca and Tarija. According to estimates, this pollution has brought about the loss of 80% of crops, 60% of livestock, and 90% of fish life.[200]

163.          Attention should also be drawn to the mercury contamination of the River Beni, which id harmful for all the inhabitants of that zone, but in particular the members of the Ese Ejja indigenous people.  According to a recent report from the Ombudsman “all 923 members of this extremely vulnerable indigenous people have mercury levels in their body that are four times over the limit established by the World Health Organization.”[201]

164.          One problem connected with this issue is the shortage of housing and the attendant increase in forcible evictions of peasant farmers and indigenous persons to make way for mining and lumber concessions, particularly in Bolivia’s Chaco region.[202]

165.          The very limited information on these isolated cases precludes a complete follow-up on measures that the Bolivian State could adopt to tackle this situation.  The Commission hopes to receive detailed information in this respect and reiterates its recommendations regarding the need to minimize the adverse effects of development projects on indigenous peoples; eliminate any threat to their lives, safety and cultural integrity; and ensure, through clear consultation procedures, that their free and informed prior consent is obtained in order to carry out said projects.

            C.         Situation of forced labour and bondage analogous to slavery

166.     The Commission has given special attention to this issue since 2005, when it held a hearing at which it was informed of the appalling living conditions of a high number of indigenous families that live on large estates, or haciendas, where they have to work for a tiny wage.[203]  This means that in order to meet their basic needs they have to go into debt with their employers, thereby cementing a deplorable situation of debt bondage analogous to slavery.  International human rights law vigorously outlaws and requires states to adopt immediate measures for their permanent elimination.[204]

167.          The Commission continued to monitor this situation by means of the visit conducted from November 12 to 17, 2006, the report Access to Justice and Social Inclusion, several press releases,[205] and the recent visit exclusively to examine this issue from June 9 to 13, 2008. On this last occasion, the Commission received valuable information from government sources and civil society organizations. It also had the opportunity to visit a number of estates, where it gathered testimony from witnesses.

168.          During that visit, the Commission was informed that in the last 20 years a number of Guaraní communities have formed, which are considered free after managing to escape from their situation of bondage and settling on properties near the estates -in some cases purchased by Catholic Church or nongovernmental organizations- or to non-productive lands located on the private estates.  However, many of their members have to go back to working as laborers on the estates in order get by, given the scant amount that they manage to produce on their smallholdings, or chacos.[206]

169.          The testimony collected on the visits in 2006 and 2008 continued to report physical mistreatment of Guaraní people, such as being lashed with whips or having their crops burned and their animals killed as punishment for “disobedience” or for wanting to end their bondage. This situation has been corroborated by the responses of a number of landowners who were questioned in that regard, who said that Guaranís have no initiative for anything and that it is necessary to “sting them” into work.^[207]  During the visit to the community of Ytacuatia, situated in the aboriginal territory of Alto Parapetí, the Commission noted that the public roads that cross through one estate are kept closed on the orders of the owner.  In response, the landowners argued that the road belongs to them because it is private property that they built.  Furthermore, testimony received from members of Guaraní communities mention that they are not permitted to move from one place to another because the only roads in the area by which to reach the public highway are “blocked with padlocked barriers or gates” by the owners.  They also reported that they are forbidden to organize and that if they attend community meetings they are then refused admittance to the estate, whether to access their properties or to visit family members who still work for the landowner.

170.          The Commission was informed that the State has also been prevented from travelling along estate roads by the above-mentioned measures of estate owners.  This has made it impossible for state officials to perform their functions and carry out regularization processes and inspections of the working conditions of members of indigenous peoples on the estates.  As a result of this situation, various rights of indigenous peoples have been severely curbed.  In this connection, the Commission calls on the State take the necessary steps to ensure freedom of movement on estates for members of indigenous peoples and for government authorities so that the latter can carry out their duties as normal.

171.          In addition, with respect to the effortrs of the Bolivian State since publication of Access to Justice and Social Inclusion, the Commission notes that on November 28, 2007, the government decreed the need to expropriate 180,000 hectares of land in the Provinces of Luis Calvo and Hernando Siles, Department of Chuquisaca, in order to turn them over to the more than 12,000 Guaraní persons in the area.[208]

172.           The Commission also notes that the government managed to obtain compensation for more than 150 Guaraní indigenous persons who never received any pay for their work on estates.[209]

173.          The Commission was also informed of Executive Decree 29.292, which was issued on October 9, 2007, creating the Inter-Ministerial Council for the Eradication of Bondage, Forced Labor, and Analogous Forms of Labor.[210]

174.          The above Decree created the 2007-2008 Interministerial Transition Plan for the Guaraní People, the purposes of which are to lay the foundations for creating fit living conditions for registered Guaraní families in the Bolivian Chaco region, eradicate forced labor, and stimulate social, cultural, and economic development in the region as part of the National Development Plan. The Interministerial Plan has five components: i) restore the exercise of human rights in the Bolivian Chaco region; ii) move forward with regularization processes and the redesign of the system of ownership of agrarian land, so as to benefit not only indigenous communities but also small and medium-sized landowners; iii)  implement a contingency plan to ensure fit living conditions for liberated families until the resettlement process is completed; iv) carry out productive, infrastructure, and environmental programs and projects for liberated families; and, v) create an execution, follow-up, and evaluation mechanism.[211]  On December 19, 2007, Executive Decree 29.388 was passed, approving an appropriation of US$ 2 million to put the Interministerial Plan into effect.[212]

175.          The Commission reiterates that it deplores the situation of the families and communities subjected to contemporary forms of slavery, such as debt bondage.  It also notes that various international agencies have confirmed, as the Commission has, that this practice continues and that it is not confined to the estates in the Bolivian Chaco zone,[213] but also occurs in other parts of the country, including the Norte de Amazonico in the context of mining, chestnut production, flower production and livestock slaughtering.[214]

176.          The Commission notes the efforts of the Bolivian State to eradicate this unfortunate situation, as well as the multitude of obstacles that government authorities have encountered, in particular the refusal of estate owners -in some cases with the encouragement of local authorities- to recognize the existence of debt bondage on their properties; the acts of violence against indigenous leaders, human rights defenders, and state officials who have sought to take steps to resolve the situation; the blocking of official inspections in the areas concerned;[215] and the lack of access to justice in rural areas.  All of the foregoing increases the state of defenselessness and vulnerability in which these families find themselves.  A complete analysis of these issues will be included in the report on the visit made from June 9-13, 2008.

            D.         Access to justice

177.     In Access to Justice and Social Inclusion, the IACHR examines the issue of access to justice for indigenous peoples from two perspectives: a) access to the official justice system; and, b) recognition of indigenous law and justice.

178.          With regard to the first perspective, the Commission observed difficulties in access to justice in order to press claims relating to ownership of land and territories; access to basic services; recognition of the legal personality of indigenous peoples and communities; enforcement of labor rights for persons who work on large estates; and claims for environmental damages occasioned by projects for development of natural resources.

179.          The Commission is concerned that although the Bolivian Criminal Code penalizes “the forcing of persons into slavery or a similar state,”[216] in practice, the law is not enforced, among other reasons, because of the insufficient coverage of the Prosecutor’s Office and criminal courts, as well as ignorance of the law by the persons affected.[217]  Another aspect worth highlighting is the lack of court interpreters,[218] despite the fact that Article 10 of the Code of Criminal Procedure requires the judge hearing a case to provide an official translator free of charge for persons who do not speak Spanish.  In this connection, the Commission notes that the new Constitution stipulates at Article 235(7) that it is a requirement for all public servants to speak at least two of the official languages, which category includes all the languages of the indigenous and aboriginal nations and peoples and peasant communities.[219]

180.          The Commission continued to receive information about other obstacles that indigenous peoples face in accessing justice to protect their rights. During its visit to Bolivia in June 2008, the IACHR received expressions of a lack of confidence in jurisdictional institutions, which are seen as biased toward the interests of the landowners.

181.          However, the IACHR considers that the National Agrarian Court is an important judicial mechanism in the Bolivian judicial system given that its jurisdiction covers one of the main issues affecting the human rights situation in the country, namely agrarian land ownership.  On its visit to Bolivia in June 2008, the IACHR was informed that the National Agrarian Court is composed of 10 judges, including its president, with expertise in agrarian matters.  The Court is divided into three chambers, each of which has three judges pursuant to law 3545. The seat of the Court is in the city of Sucre.[220] 

182.          Specifically, the information states that the Agrarian Court, whose decisions are unappealable, has jurisdiction to hear petitions for nullity and nullification of agrarian property titles that might have served as the basis for issuing titles, processed by the National Council for Agrarian Reform, the National Institute of Colonization and the National Institute of Agrarian Reform. It also presides over contentious administrative proceedings on agrarian matters, inter alia, those concerning challenges to decisions adopted by the INRA, as well as on forest- and water-related matters.[221]  In this connection, during the visit of the IACHR it was explained that the Court only controls legality, particularly in regularization processes, and that its functions include neither any involvement in shaping land policy, nor settlement of disputes concerning the existence of relationships of bondage between landowners and peasants.  Accordingly, it would be unable to hear complaints presented by captive communities.[222]  In other words, its jurisdiction to covers disputes over possession and ownership of land from the point of view of their legality.  Nevertheless, the IACHR was informed that complaints lodged by captive communities could possibly fall indirectly within its jurisdiction in certain cases where questions of ownership were at issue.[223]  According to information received by the Commission during the visit of June 2008, at present the Agrarian Court has before it for review two resolutions adopted by the INRA ordering the reversion to the State of lands because it was found that persons were working in servitude there.[224] 

183.          In that regard, the IACHR values the functions that the aforesaid Court performs and mentions to the State the need for it to continue to support and strengthen the agrarian justice system with the necessary material and human resources.

184.          The IACHR regards as positive the strengthening of “justice of the peace” or alternative dispute settlement mechanisms as a means to attempt to offset the lack of judicial coverage in a worryingly high number of the country’s municipalities chiefly inhabited by indigenous people.  For example, the Commission notes the good reception had by the Integrated Justice Centers and state efforts to improve their coverage.  As is mentioned in the section on Administration of Justice, the Commission finds that while these initiatives may help to reduce procedural delays and deliver justice in remote areas where the judiciary has no presence, they should be regarded as supplementary mechanisms and cannot replace the official justice system, whose absence continues to harm the most vulnerable groups.  The Commission reiterates that the State should take steps to improve the alarming coverage figures mentioned above.

185.          As to the second perspective, namely, recognition of indigenous law and justice, in Access to Justice and Social Inclusion the Commission recommended that the Bolivian State adopt measures to ensure in practice recognition for indigenous justice, regardless of the coverage indicators of the official justice system.  The Commission also recommended the introduction of guidelines for coordinating official justice with community justice and drew attention to the importance of creating public policies and designing campaigns to raise public awareness about the scope of indigenous justice and its necessary distinction with criminal acts such as lynchings, as examined hereinabove.

186.          The Commission notes the efforts of the Vice Ministry of Community Justice -which reports to Ministry of Justice and Human Rights- in the drafting and presentation to Congress of a bill in this respect.[225]  The Commission also notes that the new Constitution[226] includes progressive provisions in terms of recognition of the autonomy of indigenous justice and recognizes the need to develop through legal channels guidelines for coordination between the two systems of justice.[227] The Commission also notes that the new Constitution expressly provides that indigenous justice is limited by the right to life and the rest of the constitutional rights and international human rights standards.[228]

187.          The Commission was also informed that the Ministry of Justice undertook a specific project on community justice, which resulted in a nine-volume publication on the different forms of justice and cultural traditions that exist in Bolivia, together with a tenth volume that completed the research carried out with a concrete proposed law on coordination of jurisdictions.  The Commission regards this as a positive step that could contribute to discussions on coordination guidelines and help to remedy the stigmatization that has plagued indigenous justice.  However, the Commission was informed that this text was not considered by the Legislative Branch with a view to discussion and approval.[229]

188.         The Commission expects to receive information regarding this issues, specially with respect to the advancement of the Separate Jurisdictions Law project, undertaken by the Ministry of Justice and the Judiciary. According to information provided by the State, the scope of the project is the determination of material, personal and territorial jurisdiction, seeking the coordination and support of ordinary jurisdiction.[230]

189.          As mentioned, the Commission continued to receive reports that numerous incidents of lynching or “taking justice into one’s own hands” continue to occur.[231]  According to available information, some sectors of society persist in confusing these deplorable acts with forms of enforcement of indigenous justice.  The media, in particular, have portrayed these criminal acts as expressions of community justice.

190.          The Commission appreciates a number of awareness-raising and training measures adopted by the Ministry of Justice[232] and the Office of the Ombudsman to inform the public about the nature, practices, and scope of indigenous justice, and its conceptual differences with “mob justice” or lynching.  The Commission draws attention to the efforts of the Ombudsman in circulating, in December 2007, a pamphlet clarifying those differences[233] and underscoring that none of the systems of indigenous justice in the country recognizes the death penalty as a punishment.[234]

191.          As the IACHR noted in Access to Justice and Social Inclusion, acts of this kind constitute gross violations of human rights, must be investigated and punished by the State, and usually occur in areas without a judicial presence.[235]  Such acts should not be understood as indigenous justice in the constitutional and internationally recognized sense, given that the fundamental premise for its recognition is respect for human rights.