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

VII.        WOMEN’S RIGHTS

192.                The section on Women’s Rights in Access to Justice and Social Inclusion noted the progressive consolidation of a legal framework for protection of women’s rights in Bolivia, following the ratification of international instruments in this area and also given the approval of various domestic laws designed to ensure political participation for women, safeguard equality of opportunities, and prevent and punish domestic violence, among other aspects.  Consequently, the IACHR finds that the State of Bolivia has made significant strides in the definition and adoption of a legal and institutional framework designed to remedy historic forms of discrimination and violence against women.

193.          Indeed, the Commission acknowledges the ratification by the State of international treaties such as the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (hereinafter also “the Convention of Belem do Pará), as well as the adoption of laws to fight violence against women in the home (Law 1674 of 1995) and sexual violence (Law 2033 of 1999).  It also recognizes legislative initiatives to eradicate different forms of discrimination against women in different spheres, such as Law 1674 of 1995 on family or domestic violence, the objective of which is to prevent and eradicate violence against women in the public and private spaces; Law 2033 of 1999 on the protection of victims of crimes against sexual freedom, which defines certain crimes and establishes interdisciplinary teams to cooperate in investigations and the establishment of centers of care and support for victims; Law of 1997 on quotas in the electoral system, establishing minimum percentages that must be filled by women in popularly elected bodies; among others. 

194.          In spite of the foregoing, the IACHR finds that despite the recommendations contained in its report, a twin problem persists with respect to the aforesaid legal framework.  Indeed, the IACHR notes that they have not yet been effectively implemented owing to the lack of resources and institutions necessary for that purpose.  Furthermore, the provisions that promote gender equity do not extend beyond the declaratory realm, giving rise to a number of restrictions for women, from education to the right to land ownership, access to employment, and equal pay.[235]  Furthermore, it has been brought to the Commission’s attention that the provisions identified as contrary to international standards on women’s rights have not been amended or abolished.  Accordingly, it expresses its concern, given that discriminatory provisions still remain, particularly in the country’s criminal and civil law.  In this regard, particular mention should be made of Article 317 of the Criminal Code, which in cases of rape and other abuses allows culprits to evade punishment by marrying their victims.[236]

195.          The Commission reiterates that provisions of this type are discriminatory and run contrary to international standards in this area, in particular the Convention of Belém do Pará, which the Bolivian state ratified in 1994.

196.          Accordingly, the Commission reiterates to the State of Bolivia the need to adopt measures to implement the aforesaid legal framework for protection of women’s rights together with policies to protect women against acts of violence and discrimination, and their political, economic and social consequences, as well as allocating sufficient funding to enforce them effectively throughout the country.  The IACHR also draws attention to the need to adopt measures to introduce the necessary legislative reforms to eliminate cases of de jure discrimination, such as those mentioned above, which are recognized as discriminatory at the international and domestic levels.  The foregoing is all the more necessary given the added consideration that such changes should include efforts to eradicate practices and conduct that give rise to and perpetuate the notion that women are socially inferior.

197.          One serious problem affecting women in Bolivia, which the IACHR identified in its report, it is the high levels of violence against them, in particular in cases of homicide and of family/domestic and sexual violence.  The IACHR has underlined its concern in this regard, noting an absence of comprehensive prevention policies and effective access to justice to remedy them, which leads to impunity in these cases.

198.          The Commission expresses its concern that, according to the information gathered, the various forms of violence against women persist with impunity in the country, noting, in particular, that, on average, seven out of 10 women are victims of violence both in the home and in other spheres of society.[237]  In this regard, although Bolivia has adopted a series of legislative and political initiatives to reduce violence against women, in particular violence in the family and sexual violence, the problem remains as widespread as ever.[238]  The IACHR was also informed about the lack of budget funding and human resources to implement the legal provisions adopted,[239] as well as shortcomings in certain rules and regulations for adequately addressing the problem.

199.          In particular, the IACHR received information about flaws in Law 1674 on family or domestic violence and in Law 2033 on protection of victims of sexual violence, especially because of the priority given to reconciliation and family integrity, and to what several sources describe as the practice of some judicial officials of persuading women victims not to press their claims for justice and convincing them that conciliation is the best option.[240] 

200.          The IACHR also reiterates that Law 1674 is not a criminal statute and that the penalties it provides are exclusively administrative or financial in nature.  In this regard, it is important to draw attention to the fact that Bolivia’s criminal laws do not recognize the crime of family or domestic violence and that the only means to seek a criminal punishment for such acts is to subsume them under criminal attacks on personal integrity such as injuries or threats.[241]  According to the foregoing, victims of family violence may pursue the case through the family courts or through the criminal courts, which two channels are mutually exclusive. Legally, only the victim can decide which channel to follow. However, in practice, judicial officials do not advise victims of the fact that two different channels are available to them, or of the consequences of choosing one route over the other, so that they can make a conscious and informed decision.[242]

201.          The Commission reiterates that conciliation presupposes that the parties involved are negotiating under conditions of equality, and this is not true in family violence cases. Indeed it has been found in many cases that agreements reached through mediation increase women's physical and emotional risk, because of the unequal power relationships between the parties. Moreover, such agreements are generally not respected by the aggressor, and they do not address the causes and consequences of violence.[243]  The Commission urges the Bolivian State to ensure that women who are victims of violence are not pressured into taking part in conciliation processes.  Furthermore, the State must ensure that the use of these mechanisms is accompanied by the necessary guarantees so that victims are sufficiently well advised and have the necessary of information to make free and informed decisions.

202.          The Commission is encouraged by two initiatives of the Ombudsman of Bolivia to address family or domestic violence.  It has received information about the spread of so-called “Family Protection Brigades”,[244] which has come about as a result of the distribution of kits consisting of a handbook and a poster.  The book contains information on family protection brigades and the text of Law 1674, while the poster is designed to encourage victims to report cases of domestic or family violence to the Brigades. In both cases the aim is to inform women about the functions of Family Protection Brigades and provide them with access to the police in charge of raising awareness about these materials to ensure that the law is properly enforced. In addition, an inter-agency team of experts under the Office of the Ombudsman, created to review Law 1674 on family violence and the decree containing its regulations, has reportedly completed a review that includes proposals submitted by different sectors from all over the country on the aforesaid law, and prepared a bill of amendment.[245]

203.          However, the IACHR has been informed that the Family Protection Brigades and comprehensive legal services lack the necessary budget and infrastructure to carry out their protective and advisory functions properly.[246]  Therefore, the IACHR urges the State to make the necessary efforts to provide them with the resources they need to carry out their functions.

204.          The IACHR expresses its concern at information that a series of shortcomings continue to plague investigations into cases of violence against women and that matters are made worse when the victim lacks the necessary wherewithal or information to follow up and ensure that the authorities responsible perform their legal obligations.[247]  Concretely, the IACHR was informed that a series of obstacles continued to hinder access to adequate and effective judicial protection mechanisms, including a shortage of justice operators and the lack of independence and suitability of a number of them; high illiteracy rates among women, in particular indigenous women and those who live in poverty and in rural areas; lack of information about their rights; lack of legal assistance adequate to their needs; delays in judicial proceedings and the costs associated therewith; absence of institutionalized training programs for justice administration officials and the police, and lack of statistical data, among other difficulties.[248] 

205.          In the light of the foregoing, it is up to the State to rekindle its efforts to train its employees -particularly those involved in processing cases of violence against women- in women’s rights and their corresponding obligations to safeguard the dignity of and respect for victims and their next of kin. The State should also design protocols to facilitate and encourage the effective, uniform, and transparent investigation of acts of physical, sexual, and psychological violence.

206.          The IACHR has also received troubling information that reveals that since the new Code of Criminal Procedure came into force the rate of cases closed, rejected, or dismissed has risen to more than 70% of complaints received.[249]  Of that proportion, 40% reportedly corresponds to sex offenses.[250]  It should be stressed that the legal basis for accepting the withdrawal of complaints by victims is provided by Article 317 of the Criminal Code.[251]

207.          In sum, under domestic and international law the State has a duty to act with due diligence in investigating and clarifying violations of fundamental rights.  In particular, the Convention of Belém do Pará establishes that the due diligence obligation has a special connotation in cases of violence against women. This Convention reflects a shared hemispheric concern over the gravity of the problem of violence against women, the relationship between that problem and the discrimination that women have historically endured, and the need to adopt comprehensive strategies to prevent, punish and eradicate violence against women.[252]  Consequently, the Commission urges the State to redouble its efforts to effectively ensure due diligence in the investigation, prosecution, and punishment of violations of women’s rights, and to give priority attention to designing a comprehensive and coordinated policy aimed at eliminating the de jure and de facto barriers that prevent women from having access to effective remedies and mechanisms for judicial protection, especially where violence against women is concerned.

208.          Accordingly, the IACHR reiterates the recommendations to the State that it adopt additional measures to strengthen and institutionalize coordination and the exchange of information among the authorities responsible for investigating acts of violence and discrimination against women; and that it strengthen the institutional capacity of judicial bodies, such as the Prosecutors’ Office, the police, the courts and the tribunals, and the forensic medical services, in terms of both human and financial resources, to combat the pattern of impunity in cases of violence against women, through effective criminal investigations followed by appropriate judicial action, thus guaranteeing proper punishment and reparations.

209.          As regards participation of women in public affairs, the Commission has said that it welcomes the legal framework consisting of the Elections Code, the 1997 30% Quotas Law, and the 1999 Law on Political Parties.  Furthermore, information received on the appointment of a large number of women to leadership positions in the government is an encouraging sign.[253] However, the IACHR has been informed that the quotas law has not yet been effectively implemented and that women are underrepresented in positions of responsibility in many spheres of professional and public life,[254] such as, for example, the judiciary, especially at the highest levels.  In addition, the data available shows that in the legislative branch, of the 130 persons that comprise the House of Deputies, 106 (82%) are men and only 24 (18%) are women; that the Senate only one principal senator is a woman; that there are no women working in the Governor’s offices, whose incumbents were for the first time elected by popular ballot; that at municipal government level, of a total of 314 municipalities, 287 (91.40%) are administered by mayors and 27 (8.50%) by mayoresses; and that of a total of 1,804 municipal councillors, only 336  (18.6%) are women.[255]

210. Moreover, the IACHR has taken note of reports that legislation against gender-based harassment and political violence has been promoted and was to be approved by the House of Deputies.[256] The Commission received information that the bill was rejected because of opposition from some lawmakers.[257] However, the Commission is encouraged by information from the State that the bill is still pending in the House of Deputies.[258] The Commission hopes that processing will be expedited and that when the legislation is approved the necessary steps will be taken for its implementation.

211.          Finally, with respect to this issue, it has come to the attention of the IACHR that a high number of women, in particular indigenous women in rural areas, older women, and women with disabilities, do not have identity documents and cannot, therefore, exercise their political rights, gain access to public institutions, and obtain the services and social benefits to which they are entitled.[259]

212.          Based on the foregoing, the IACHR calls on the States to strengthen women’s participation and representation in elected office and other decision-making forums. The Commission also reiterates its recommendation that the State ensure the enforcement of laws that guarantee women's participation in public affairs; that it take the necessary steps to prevent and punish any act of discrimination against women who accede to public office, in all circumstances; and that it make the necessary efforts to move forward with the process of registration of women, in particular indigenous women in rural areas, older women, and women with disabilities, in order to provide them with the necessary documents to enable them to exercise their rights in full.

213.          The IACHR has received information about the persistence of high levels of poverty and social exclusion among Bolivian women, particularly among women living in rural areas, indigenous women, older women and women with disabilities, and their insufficient access to land, housing and basic social services. The poverty conditions of women are reflected in their high illiteracy rates, low school enrolment and completion rates, and poor access to health care, including sexual and reproductive health, leading to high rates of maternal mortality.[260]  Indeed, the lack of a gender perspective in the delivery of health services constitutes an obstacle for women of child-bearing age.  The IACHR is concerned at the high rates of mortality in the State, caused mainly by pregnancy-related problems and the lack of appropriate medical care, particularly in the rural areas.[261]

214.          The information also indicates that poverty continues to cause large migration flows abroad.  It has reportedly been confirmed that most migrants are women who, in addition to facing the dangers of trafficking in persons, are very often forced to leave their families.[262]

215.          Furthermore, the information indicates that rural and indigenous women and girls continue to be at a serious disadvantage in terms of access to and quality of education, as well as the number of years they attend school, basically owing to the lack of infrastructure, distance, the risk of violence, the cost of transport and language.[263]  The Commission has also been informed about the persistence of limited employment opportunities for women and the existence of a huge gap in men’s and women’s wages, clear-cut job segregation and poor working conditions.[264]

216.          Finally, the IACHR has received information about the lack of statistical data disaggregated by sex, age, rural and urban area and ethnicity, which makes it difficult to accurately assess the real situation of women. This also impedes the State’s own efforts to design and implement specific policies and programs, and to evaluate their effectiveness.[265]  The Commission, therefore, reiterates its recommendation that the State create and strengthen systems for recording statistical and qualitative information on incidents of violence against women within the systems for the administration of justice. Strengthen the recording of cases of violence against women to guarantee that such records are uniform, accurate and transparent. The IACHR also reiterates that the State should develop educational programs for citizens, starting at a young age, to promote respect for women as equals and to recognize their particular needs as women, and to respect their right not to suffer violence and discrimination.

VIII.       CHILDREN’S RIGHTS

217.          In Access to Justice and Social Inclusion, the Commission took a positive view of the legal framework for the rights of the child and noted that Bolivia was a party to the United Nations Convention on the Rights of the Child. It also observed that the Constitution established (Article 199) that the State had the duty to protect the physical and mental health of children and to defend their rights to a home and to education, provisions that were regulated by the Juvenile Code [Código del Niño, Niña y Adolescente] of 1999.

218.          Despite the foregoing, the Commission found that a high proportion of children in Bolivia continued to be victims of human rights violations, affecting their civil and political rights as well as economic, social and cultural rights.

219.          First, as regards children’s education in Bolivia, the IACHR has received information that in March 2006 the government launched the National Literacy Plan, setting the goal of eradicating illiteracy -which, according to the 2001 National Population and Housing Census, affected 13.3% of the Bolivian population (approximately 1.2 million people)- within 30 months.[266]  In that respect, it was reported that the Ministry of Education carried out a “census” in mid-2007 to determine how many illiterate persons there were and found, as a result, that the number had declined to approximately 700,000.[267]  The Commission regards it as a distinctly positive sign that a significant reduction has been achieved since the findings of the above-mentioned 2001 census.

220.          The Commission has also received information about an important initiative to boost child attendance in primary education called the “Juancito Pinto Bonus,” a school attachment subsidy of 200 bolivianos.[268] The subsidy is granted to all children enrolled in state primary schools from first to eighth grade, making a total of 1.2 million children nationwide.[269]  The aim of the Juancito Pinto program is to provide support to low-income families by enabling them to supplement their limited budgets and purchase more food.[270]  As a result of this initiative, according to figures supplied by the Ministry of Education, school enrolment rose by 9.54%.[271]  In absolute terms, the information indicates that in 2007 the program benefited more than one million children in more than 13,000 schools.[272]  The Commission welcomes this information and urges the State to continue its efforts in this regard.

221.          The foregoing notwithstanding, it should be noted that one comment made about the aforementioned subsidy by a number of civil society organizations is that the benefit is confined to primary education when the school dropout rate starts to increase in secondary schools.[273]

222.          Another problem identified in the Report of the IACHR concerns child labor. The conditions of poverty and extreme poverty in Bolivia are such that many children under the age of 14 find themselves in the labor market,[274] working in unacceptable conditions.  In this connection, the Juvenile Code sets the minimum working age at 14 years and expressly prohibits children under that age from working, in particular in cotton, nut and sugarcane harvesting.

223.          The information received is cause for concern since, according to data supplied by the Department of Employment [Dirección General de Empleo], there are approximately 38,000 cane harvesters in Santa Cruz and Tarija combined, of whom 9,860 are said to be children and adolescent day workers. Traditional small-scale gold mining, which is confined largely to seven municipalities in Oruro, Potosí and La Paz, is thought to employ more than 38,000 persons, 3,800 of whom are reported to be children and adolescents.  The IACHR has also been told that according to a recent study by CEDLA and UNICEF, around 17,800 people work as nut harvesters, including 4,600 children and adolescents.[275]

224.          In this respect, the Commission has been informed that in recent years the Bolivian government has been carrying out a series of initiatives through the Commission for Progressive Eradication of the Worst Forms of Child Exploitation, with the participation of the Ministry of Labour and support provided by the ILO and UNICEF.  The measures proposed include, for example, construction of schools, improvement of workplace infrastructure, and student breakfasts programs at cane stockpiling centers.  However, these measures have been marked as insufficient as they do not address the core problem, which is exploitation of family labor as a cumulative mechanism used by sugar companies, where children are employed in the form of indirect labor as “assistants of household heads”.[276]

225.          For its part, in the nut industry, child labor is widely used throughout the production chain under the guise of family labor and justified by entrepreneurs who describe child labor as a “cultural feature” of the employment strategies of families in the Amazon region.[277]

226.          Furthermore, in June 2008, as the IACHR was travelling to the community of Itacuatía, situated in the department of Santa Cruz, it received a number of testimonies regarding the work done by children on estates in the Bolivian Chaco region and witnessed firsthand the abject poverty in which children live and that they perform a variety of farm labors.

227.          In particular, the testimonies state that, inter alia, the work consists of feeding animals, carrying water to houses on the estates, fetching firewood, and helping in the harvest.  Girls are made to work from a very young age, helping with household chores and cooking without receiving any pay whatsoever and without being permitted or having the possibility to go to school.  The Commission was also told that it is common for them to be taken to the homes of the estate owners in cities to work as unpaid domestic servants.  In general, the IACHR was informed that children who work alongside their parents received no pay because employers regard the work they do as helping their parents to complete their allotted tasks.[278]

228.          Consequently, the IACHR emphatically reiterates to the State the need to design policies to eradicate rural and urban labor for children in slavery-like conditions.

229.          Another serious problem identified in the report concerns sexual exploitation of children.  According to information received by the Commission a comprehensive bill against the sale and trafficking of persons has been presented to Congress. The bill is currently before the House of Deputies for review and approval.[279]

230.          According to the information supplied, there are 1,119 children, including newborn infants,[280] living in Bolivian prisons.  For its part, the Office of the Ombudsman reported that in Bolivia’s 54 prisons and nine police jails, there is a considerable number of persons deprived of liberty who live with children of both sexes.[281]  According to the figures provided by that entity, children in this situation make up 18% of the prison population, living in unsuitable conditions, given their inadequacies in terms of infrastructure, education facilities, and staff.[282]  In view of these circumstances, the Commission considers it apt to reiterate to the State the need for it to ensure that deprivation of liberty is imposed only as a last resort, and that the necessary measures are taken to create establishments for the reeducation of children in this situation. 

231.          The IACHR also reiterates to the State that it should adopt the necessary measures to ensure that when children are lodged in detention centers together with their father or mother deprived of liberty, the best interest of the child is 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 Commission draws attention to the fact that states have the obligation to ensure that children are not exposed to abuse and to investigate any complaint in that respect.  By the same token, the State is required to adopt measures to safeguard the best interests of children who are in the custody of persons deprived of liberty but do not live in prison with them.

232.          Another matter of particular concern has been brought to the Commission’s attention.  The IACHR has been informed that chronic malnutrition affects more than one in four Bolivian children and that this problem has the following characteristics: the highest levels of malnutrition are amongst Bolivians living in rural areas; children in the poorest households have levels of malnutrition six times that of children born into the richest 20% of households; families of indigenous Quechua, Aymara, Guaraní and other peoples are far more affected by chronic malnutrition (28%) than non-indigenous children (16%); many of Bolivia’s minorities, such as afro-bolivianos, are also particularly affected by high levels of malnutrition; More than half of Bolivian children suffer from micronutrient deficiencies, particularly of iron, iodine and Vitamin A, and 80% of children between 6 and 23 months suffer from anemia.  According to information, child mortality remains high, although there are great disparities among different regions, depending on the level of wealth in each zone.[283]

233.      The Commission applauds the launching of the Zero Malnutrition program in mid-2008,[284] and the approval of Supreme Decree No. 0066 of April 3, 2009, which established an incentive for safe maternity and comprehensive development of the child population 0-2 years of age. This initiative has been named the Juana Azurduy Mother’s and Children’s Grant; it seeks to reduce maternal and child mortality and chronic malnutrition of children in their first two years.[285] The Commission hopes to continue receiving information on these programs’ effect on the malnutrition statistics provided previously.   

            IX.      RIGHTS OF REFUGEES AND ASYLUM SEEKERS

234.          In Access to Justice and Social Inclusion the Commission noted a number of shortcomings with respect to due process guarantees for persons seeking asylum, in particular,  irregularities in the  composition of the National Refugees Commission (hereinafter CONARE); decisions taken without a hearing or interview, and irregularities in the notification and adoption of decisions contrary to the guarantee against forced return.  

235. The Commission welcomes the steps taken by the Bolivian State that have improved the situation of refugees and persons seeking refugee status. In particular, the Commission underscores that the new Constitution contains an explicit ban on deportation of persons with refugee status.[286]

236.          Given the high number of persons in this situation in Bolivia,[287] -in particular Peruvian nationals-  the Commission welcomes the signing in La Paz on May 4, 2007, of a Mutual Cooperation Agreement between CONARE  and the Office of the United Nations High Commissioner for Refugees.  The IACHR was informed that training workshops were held for CONARE officials under this agreement.[288]

237. The Commission also hails important improvements in the operations of CONARE, particularly the implementation of new administrative documents, the establishment of appropriate physical space,[289] training for personnel in the area of international refugee law, diligence in processing of applications for refugee status, respect for the principle of non-deportation, and continuity in the staff of the technical secretariat.[290] 

238. With respect to difficulties reported in obtaining documents, the Commission welcomes the issuance of Ministerial Resolution No. 731/2008 of November 26, 2008, which exempts refugees from document legalization fees.[291] In addition, the Commission takes note of information provided by the State on the joint work of institutions involved in the process of documentation for the refugees. The State said that there have been meetings with the Ministry of Government and National Police to work on simplification of requirements for delivery of the refugee identity card.[292] The Commission hopes that these efforts will lead to a substantive improvement in the processing of identity documents.

239.          In spite of the foregoing, the Commission continued to receive reports of stigmatization and discrimination against refugees, in some cases by state authorities, coupled with an absence of programs to provide them and their families with opportunities for advancement and integration.[293]

240.          The considers that the State should continue taking all steps necessary to eliminate the obstacles facing asylum seekers in Bolivia, in particular the difficulties in obtaining identity documents, whether provisional or permanent.[294]

241.          As to due process guarantees for asylum seekers, the Commission was informed that significant strides have been made as regards the "right to an interview".  However, according to information received this right is not as stringently observed where family groups are concerned.[295]

242.          There has been no change as regards guarantee of the right to challenge decisions refusing refugee status.  According to the information available, Executive Decree 28.329 remains in force on this point and the only guarantee it provides is a petition for administrative reconsideration to the same body that initially adopted the decision.[296]

243.          The Commission reminds the Bolivian State that procedures relating to applications for refugee status should be carried out in strict compliance with due process guarantees, in which the right “to be heard” in an interview or a hearing is paramount, as is the possibility of appeal against the respective decisions.[297] To that end, it is essential that the State adopt measures to overcome the difficulties reported with respect to notification of decisions lest they prevent the timely presentation of appeals.[298]

244.          A number of civil society organizations expressed concern to the Commission regarding legal restrictions on the right to seek asylum, in particular, due to strict observance of Article 23 of Executive Decree 28.329, which provides, "Anyone who enters Bolivian territory seeking refugee status is required to present themselves within not more than 30 days to the Secretariat of CONARE in order to submit their application.  Failure to do so shall make them ordinary immigrants and subject to statutory penalties.”[299]  The Commission hopes to obtain more information about the enforcement of this provision and its effects on the possibility of applying for refugee status.

245.          Finally, the Commission received with satisfaction information about measures adopted to ensure the guarantee against forced return.  Specifically, the Commission draws attention to a number of decisions of the Supreme Court of Justice that voided arrest warrants for extradition purposes because the person concerned had refugee status.  The Commission was also informed of extradition requests which were rejected based on said status.[300]

246.          With regard to this point, the Commission reiterates that based on the rule against forced return, the Bolivian State may not deport or extradite individuals who have been recognized as refugees until a procedure has been carried out to assess the risk in their country of origin or any other requesting country, which procedure shall include all the guarantees of due process, including the possibility of review of decisions.[301]

X.        RECOMMENDATIONS

247.          Based on the information and observations contained in this report, the Commission reiterates to the State of Bolivia the need to continue its efforts to implement the recommendations contained in the report Access to Justice and Social Inclusion - which are transcribed below - and to maintain the results achieved to date.

Administration of justice

1.            Increase the mechanisms of publicity and dissemination for the rights of the citizens and the judicial actions established in the Constitution as an instrument for giving effect to them, as well as the procedures and requirements for accessing them.

2.            Adopt the necessary measures to achieve the fullest possible coverage of judges, prosecutors and public defenders, using criteria based on a diagnosis of the real needs in the different areas of the country, both in terms of population and jurisdictions. These measures must include budgetary and human resources so that the respective authority will have not only a physical presence but also permanent and stable personnel.

3.            Immediately appoint the judges of the Constitutional Court, the Supreme Court of Justice, and the Attorney General, in keeping with the appropriate constitutional and legal procedures.  In the case of the Constitutional Court, the State should design and implement a mechanism to deal with the procedural delays caused by the fact that it has been inoperative for more than one year.

4.            Comply strictly with the procedures for appointing judges and prosecutors, established as a guarantee of independence and impartiality both in the Constitution, in the case of members of the high courts, the district Superior Tribunals, the Attorney General and the district prosecutors, and in the laws and regulations governing the judicial and prosecutorial careers in the case of other judicial authorities and the prosecutors.

5.            Effectively implement the judicial and prosecutorial careers systems, and eliminate all provisions relating to hierarchy and promotion for these authorities that could increase levels of corruption in the judiciary and in the Prosecutors’ Office. In particular, ensure that entry and promotion in those careers is done through public competitions and selection based on exclusively technical criteria.

6.            Strengthen the disciplinary system for judges and create coordination mechanisms with the criminal jurisdiction to fill the gaps in the law that have so far prevented effective disciplinary or criminal punishment of judicial authorities who commit acts of corruption, who contribute to procedural delay, who take decisions manifestly contrary to law, or who in general obstruct access to justice.

7.            Take the necessary steps to implement the evaluations and other legal mechanisms of internal and external control, with respect to both the performance and the suitability of judicial authorities and the Prosecutors’ Office.

8.            Conduct a clear analysis of the shortcomings in implementation of the 1999 Code of Criminal Procedure and institute comprehensive measures that include, at least, adequate training; the distinction of investigative functions; decongestion and settlement of cases at the investigation stage; guidelines for cooperation between all authorities involved in all instances, whether police, prosecutors or judges; mechanisms to comply with procedural deadlines, notifications and the holding of public hearings within legal parameters; and implementation of measures for participation by victims and their relatives.

9.            Take steps to eliminate the legal uncertainty surrounding the statute of limitations for criminal cases, and establish clearly, in accordance with international standards, that its applicability cannot be determined on the basis of whether the affected person availed himself of the remedies and mechanisms of defense that criminal procedural law provides.

10.         Strengthen the National Public Defender System with particular attention to the coverage and quality of service, and to the mechanisms for the hiring and tenure of public defenders.

11.         Step up investigations of forced disappearances, police and military repression of public demonstrations, and other violations of human rights, using all the means at its disposal to overcome the obstacles that have to date prevented the establishment of the truth, the identification of the material and intellectual authors of the events, imposition of the corresponding sanctions, and determination of reparations for victims and their relatives.

12.         Ensure that investigations of cases of lynching are initiated sua sponte and carried out by the appropriate authorities with due diligence in the identification and punishment those responsible.

13.         Initiate the necessary investigations to determine the truth of allegations of abuses committed by the police and military during the state of siege in the Department of Pando from September 12, 2008 to November 24, 2008.  Furthermore, move forward with the necessary investigations of the officials who, in abuse of their powers under the decree instituting the state of siege, refused to recognize inalienable rights under Article 27(2) of the American Convention and disregarded judicial decisions adopted in the framework of habeas corpus proceedings.

Prison conditions and rights of persons deprived of liberty

14.         Ensure that the judicial authorities apply preventive detention reasonably and in conformity with the international standards mentioned in the relevant section of this report, and that all accused have access to a judicial remedy to question excessive time in preventive detention.

15.         Take the necessary judicial, legislative and other measures to correct the excessive application of preventive detention and the procedural delays that persist in the administration of justice. Among other measures that the State may deem pertinent, these should include the release of all detainees who have not been sentenced within a reasonable time without prejudice to the continuation of the proceedings against them.

16.         Take judicial, legislative and other measures with a view to reducing overcrowding and improving living conditions in Bolivian prisons, while ensuring that prisoners are treated with the respect due to the inherent dignity of human beings.

17.         Establish effective systems to ensure that accused persons are segregated from those who have been convicted, and create mechanisms for classifying persons deprived of liberty according to sex, age, reason for detention, special needs, and applicable treatment.

18.         Put an immediate halt to the practice of keeping minors under the age of 18 years, accused or convicted, in prison together with accused or convicted adults, even temporarily.

19.         Adopt the necessary measures to immediately regain control of internal areas of prisons in the country, and monitor – also through serious investigations – cases of corruption observed. Also, 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.

20.         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.

21.         Take the necessary steps to ensure that persons deprived of liberty have access to adequate medical attention, which requires the presence of a medical team sufficient in relation to the number of inmates, with the capacity to respond to medical emergencies, and the availability of medications; in particular, for immediate attention to the elderly, the sick and children living in prisons.

22.         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.

23.         Take the necessary measures to ensure that when children are lodged in detention centers together with their father or mother deprived of liberty, the best interest of the child is 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. Also, take measures 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 shall carry out serious and diligent investigations whenever there is a complaint of sexual abuse to the detriment of persons that live in prisons.

24.         Ensure that detention conditions are effectively controlled by criminal enforcement judges in the case of convicted persons, and by the respective judges in cases of persons under preventive detention.

25.         Make available adequate and effective remedies of and individual and collective nature for judicial control of overcrowding and violence in prisons. Those remedies must be accessible to persons deprived of liberty, their relatives, their private or public defenders, NGOs, the Ombudsman and other competent institutions.

Rights of indigenous peoples and peasant communities

26.         Take all necessary steps to eradicate any kind of discrimination based on the indigenous and/or peasant status of persons subject to its jurisdiction, particularly in access to justice, education and health, and to the benefits of other state policies intended to increase the coverage of economic, social and cultural rights.

27.         Ensure that all measures taken in connection with the right to education and health for indigenous peoples are compatible with their particular worldview and the maintenance and strengthening of their cultural identity, and that they in no way imply a form of assimilation of indigenous peoples into the non-indigenous culture.

28.         Guarantee effective enforcement of the new law relating to agrarian reform, adopting the necessary measures to eliminate the obstacles cited by the Commission that have prevented access to land and territory for all sectors of Bolivian society. As part of this process, it is essential that the State bear in mind the particular relationship that indigenous peoples have with the land and that consequently, in the process of land titling, it must give priority to recognizing their ancestral lands and territories as essential for the survival of their cultural identity.

29.         Ensure that all judicial proceedings concerning such matters before the National Agrarian Tribunal comply strictly with due process guarantees and, in particular, that they be disposed of within a reasonable time.

30.         Incorporate the provisions of ILO Convention 169 on this issue in Bolivia’s domestic legislation on development projects, and adopt measures for their effective enforcement.

31.         Consistent with its international obligations, guarantee the participation of indigenous peoples and communities concerned in projects for exploration and exploitation of natural resources, through prior and informed consultations designed to obtain their free consent in the design, execution and evaluation of such projects, as well as in determining benefits and compensation for damages, according to their own development priorities.

32.         In the context of projects underway, implement participatory mechanisms to determine the environmental damage they may be causing and their effects on the basic subsistence activities of indigenous peoples and peasant communities living in the vicinity of such projects. If their lives or personal integrity are threatened, such projects should be immediately suspended and the appropriate administrative and criminal penalties imposed. If the projects continue, the State must guarantee that the persons concerned share in the benefits from those projects, and it must determine and enforce compensation for such damage.

33.         Guarantee access to an adequate and effective judicial remedy to enable collective challenges against environmental damages, so that, in addition to criminal action, there is also a judicial mechanism available to seek an immediate response in circumstances where irreparable damage is being caused to groups of persons.

34.         Give priority to measures for eradicating forced labor and bondage, and take immediate steps to strengthen the recognition and regularization of property for persons affected by this situation, and to prevent any weakening of labor and social rights for persons working in the rural sector.

35.         Conduct an immediate analysis of the situation of bondage analogous to slavery and/or forced labor in various parts of Bolivia, including data on all families and persons subjected to this form of life, the related social, cultural and psychological factors, and the various private and State players involved, particularly weaknesses in the various administrative and judicial bodies.

36.         Adopt necessary measures to guarantee that recognition of community justice does not depend on the coverage or procedural workload of official justice, but stems from the pluricultural nature of the Bolivian State and from respect for the autonomy of indigenous peoples.

37.         Establish, in the short term, guidelines for coordinating official justice with community justice, taking into account as a minimum the parameters set out in the respective section of this report.

Women’s rights

38.         Enforce existing national legislation and policies to protect women against acts of violence and discrimination, and their political, economic and social consequences, and allocate sufficient funding to enforce them effectively throughout the country.

39.         Design a comprehensive and coordinated policy, with sufficient public funding to permit continuity, to ensure that the victims of violence have full access to adequate judicial protection to remedy their suffering and to prevent, investigate, punish and provide reparations for acts of violence.

40.         Implement public awareness measures and campaigns on the duty to respect women's civil, political, economic, social, cultural, sexual and reproductive rights; on the judicial services and remedies available for women whose rights have been violated; and on the legal consequences for the perpetrators.

41.         Develop educational programs for citizens, starting at a young age, to promote respect for women as equals and to recognize their particular needs as women, and to respect their right not to suffer violence and discrimination.

42.         Identify and institutionalize new forms of training for public employees in all sectors (justice, security, health and education) that include a comprehensive approach to women's right to live free of violence and discrimination, and the need for public servants to respect women's physical and psychological integrity, in the exercise of their functions.

43.         Ensure effective enforcement of laws that guarantee women's participation in public affairs, and take the steps necessary to prevent and punish any act of discrimination against women who accede to public office, in all circumstances.

44.         Create and strengthen systems for recording statistical and qualitative information on incidents of violence against women within the systems for the administration of justice. Strengthen the recording of cases of violence against women to guarantee that such records are uniform, accurate and transparent.

45.          Strengthen the institutional capacity of judicial bodies, such as the Prosecutors’ Office, the police, the courts and the tribunals, and the forensic medical services, in terms of both human and financial resources, to combat the pattern of impunity in cases of violence against women, through effective criminal investigations followed by appropriate judicial action, thus guaranteeing proper punishment and reparations. This will involve the purchase of the necessary technical equipment to conduct chemical and forensic tests, as well as all the evidence required to clarify the facts investigated.

46.          Take immediate steps to provide effective training on women's rights to all public officials involved in handling cases of violence against women (including prosecutors, police officers, judges, court-appointed lawyers, administrative officials and forensic medical professionals) so that domestic and international standards can be applied for prosecuting these crimes, and so that the integrity and dignity of victims and their relatives will be respected when they complain of such events and during their participation in the judicial process.

47.          Take steps to institutionalize cooperation and information sharing among the authorities responsible for investigating acts of violence and discrimination, in particular between the Prosecutors’ Office and the police.

48.         Design protocols to facilitate and promote effective, uniform and transparent investigation of acts of physical, sexual and psychological violence, including a description of the complexity of the evidence, and a detail of the minimum proof that must be compiled to substantiate charges, including scientific, psychological, material and testimonial evidence. It is important to encourage multidisciplinary investigation of such crimes.

Children’s rights

49.         Give priority to implementing policies for preventing the situations described in this section and others that constitute gross violations of the human rights of Bolivian children, through a clear analysis of the situation that afflicts this sector of society.

50.         Guarantee access to the civil registry free of charge, as established in the Constitution, and take steps to identify all children who have been prevented by various means from obtaining an identity document.

51.         Take all steps necessary to expand the coverage of public education as far as possible, both in terms of access and in terms of educational continuity and quality.

52.         Adopt measures to expand the coverage of the Juvenile Defenders' Offices and other institutions provided for in the legislation, both for protection and for the prevention, investigation and punishment of crimes of all kinds committed against children.

53.         Adopt all necessary measures to ensure that children are protected from all forms of violence, making certain that national norms do not include any ambiguous wording, for example, “abuse of corrective measures” or "discipline" or "disciplinary," since such terms raise doubts about the criteria used to determine when corrective measures are excessive and harmful to children. In their place, it must be established clearly that corporal punishment of children is prohibited.

54.         Design policies to eradicate labor in rural and urban areas for children under the age of 14, and to ensure strict compliance with the rules according to which the employment of persons under 18 years is allowed, in terms of their social rights and restrictions on working hours and activities performed.

55.         Take immediate steps to prevent and eradicate all forms of sexual exploitation of children, and to investigate and punish such conduct. To that end it is essential to take steps for the effective enforcement of existing legislation.

56.         Ensure that, in applying the so-called "social responsibility" or criminal liability of juveniles, deprivation of liberty is imposed only as a last resort, and that the necessary measures are taken to create establishments for the reeducation of children in this situation.

57.         Take steps necessary to grant special guarantees of due process enshrined in domestic legislation in accordance with international standards, and in particular the effective implementation, with the widest possible coverage, of specialized courts for determining the criminal liability of children.

58.         Repeal the provisions of the Juvenile Code that establish "public threat" as grounds for preventive detention of children. The State must guarantee that this measure is used only exceptionally and for exclusively procedural purposes.

Rights of asylum seekers

59.         Take all steps necessary to eliminate the obstacles facing persons who apply for refugee status in Bolivia, and facilitate the processing of applications and the obtaining of identity documents, whether provisional, in the case of persons whose applications are being processed, or permanent, in the case of persons already recognized as refugees.

60.         Ensure strict compliance with due process in administrative procedures relating to application for refugee status or its revocation. In this respect, the State must establish mechanisms whereby the applicant may submit all the evidence he deems pertinent and present arguments in favor of recognition.

61.         Ensure that decisions denying or revoking refugee status are adopted through due process, with sufficient substantiation and in full observance of the notification and publicity mechanisms that allow the interested party to present an appeal within the legally established time limits.

62.         Refrain from returning a person to his country of origin, by any means, if that person has valid refugee status in Bolivia, and in all cases ensure that before any decision on his deportation or extradition is taken there is an adequate assessment of the situation of risk facing the person, using the legally established procedure for this purpose that allows the person to participate and defend himself and to file an appeal with suspensive effect.