The US Department of State's Country Commercial Guide for Colombia states that Colombia's judiciary is similar to that of the United States with the "notable exception of a separate 'public prosecutor' and 'attorney general'" (1999).

The following information on the Procuraduría General de la Nación (Office of the Procurator General) and the Fiscalía General de la Nación (Office of the Attorney General or the Office of the Prosecutor General) is additional to that already found in the Section entitled "Denial of Fair Public Trial" in Country Reports 1998.

The Consejo Superior de la Judicatura de Colombia Website provides the following information on the Fiscalía General de la Nación (Dec. 1997).

The Fiscalía General de la Nación has the function to direct, implement and coordinate investigations regarding penal matters. It has administrative and budgetary autonomy. The Fiscalía encompasses the Attorney General (or Public Prosecutor General) of the Nation, the Vice Attorney (or Vice Public Prosecutor), the attorneys (or public prosecutors) who are assigned by the Attorney General for special cases, the judicial civil servants in charge of processing appeals and the attorneys (fiscales delegados) who represent the Fiscalía before the Supreme Court of Justice, the National Tribunal, the Superior Courts of the Judicial District, the regional judges, the circuit judges, the juvenile judges and the municipal penal judges.

The Website makes reference to Article 250 of the Political Constitution of Colombia (Constitución Política) that states that the Fiscalía can, by means of complaint (denuncia) or charge (querella), investigate crimes and accuse the alleged offenders before the competent courts, with the exception of those crimes committed by members of the public forces while on duty or in relation to their duty. To that end, the Fiscalía will do the following:

To ensure the appearance of the alleged offenders of the penal law; furthermore, if it were the case, the Fiscalía would take means necessary to carry out the reestablishment of the law and compensation for damages incurred as a result of the crime.

To qualify and declare excluded (precluidas) those investigations already realized.

To direct and coordinate the functions of the judicial police that in a permanent way complete the National Police and other organizations that are indicated in the law.

To ensure the protection of the victims, witnesses, and other participants in the process.

Human Rights Watch provided the following definition of the role of the Procuraduría in its October 1998 report entitled: War Without Quarter: Colombia and International Humanitarian Law:

The government agency responsible for investigating reports of crimes by government employees and recommending administrative punishment like suspensions, fines and dismissals. Within the agency, specific divisions are responsible for investigating the abuses of various branches of government. They include the Delegate for the Armed Forces and the Delegate for the Police Forces. The Delegate for Human Rights investigates reports linking state agents to forced disappearance, torture, and massacres, defined as the killing of four or more people by the same individuals and at the same time. However, Internal Affairs can only recommend administrative, not criminal sanctions (ix).

In its 1999 report on Colombia, the Inter-American Commission for Human Rights (IACHR) provided more information on both the role of the Procuraduría and the Fiscalía.

The Office of the Procurator General [Procuraduría] is responsible for carrying out disciplinary investigations and sanctions against State agents, including both civilians and members of the State's security forces. The Office thus has the right, for example, to investigate human rights violations and eventually to order the removal from service of members of the Military Forces, the National Police or any other State agent for responsibility in those violations. The Office of the Procurator General of the Nation is divided into the offices of the delegate procurators (procuradurías delegadas) to carry out this work. For example, there exist delegate procurators for human rights (responsible for disappearances, torture and massacres), for the Military Forces, for the National Police and for the Judicial Police.

The Office of the Procurator General also may intervene in judicial and administrative proceedings, including those carried out in the military justice system, when necessary to preserve respect for human rights. In practice, this faculty allows the Procurator's staff to request that additional persons be accused in criminal cases, that investigations be opened or closed, that charges be brought, etc... in both the ordinary criminal justice system and in the military criminal justice system. The Commission notes, however, that the Office of the Procurator General's intervention in criminal proceedings in the military justice system has been extremely limited. The Office of the Procurator General plays an important and generally positive role in human rights cases. The sanction of State agents involved in human rights abuses constitutes an important piece of the reparation which must be provided in such cases. The Office of the Procurator General has applied disciplinary sanctions in many cases where the criminal proceedings have not resulted in the conviction and criminal sanction of the individuals responsible for human rights violations.

Although the State is required in most of these cases to carry out effective criminal investigations and proceedings, resulting in the criminal sanction of those responsible, the State does at least discharge some of its duty to respond through the disciplinary sanction. Those who commit human rights violations, using their authority as public officials, should not continue to hold the same position of authority. Disciplinary proceedings in the Colombian legal system can serve to ensure that they are not allowed to do so.

It should be noted, nonetheless, that disciplinary proceedings in Colombia have not always functioned in this positive manner. In many cases, the proceedings have been ineffective and inefficient. The State has failed to sanction many human rights violators by allowing the disciplinary action to be barred by the statute of limitations or by acting ineffectively in gathering and preparing the necessary evidence. In other cases, the sanctions assessed have not reflected the seriousness of the violation committed.

The Commission notes that the Office of the Procurator General has the power to carry out disciplinary investigations and sanctions against those judicial authorities who act improperly in carrying out criminal proceedings, in both the ordinary criminal justice system and the military criminal justice system. This faculty could serve as an important tool for combating impunity in the administration of criminal justice. However, to the knowledge of the Commission, the Office has seldom carried out such investigations to a positive conclusion.

The Commission considers that the work of the Office of the Procurator General of the Nation should continue to improve to ensure that the Office fulfills its mission. The work of the Office should and can serve as an important tool for the protection and promotion of human rights in Colombia.

The same IAHRC report offers the following information on the Fiscalía General de la Nación:

The Office of the Prosecutor General of the Nation consists of the Prosecutor General, the delegate prosecutors (fiscales delegados) and other functionaries. The Supreme Court of Justice elects the Prosecutor General of the Nation, from a list of candidates submitted by the President, for a four-year term. The Office of the Prosecutor General forms part of the judiciary and enjoys administrative and budgetary autonomy.

The Office of the Prosecutor General has the responsibility of acting, either independently or in response to a complaint, to investigate crimes and to bring charges against suspects before the competent courts and tribunals in both the ordinary and regional justice systems. The Office of the Prosecutor General does not have this competence in the case of crimes which fall under the jurisdiction of the military justice system. The creation of the Office of the Prosecutor General and the resulting establishment of two separate entities for the investigation and the trial of criminal cases is an innovation in the 1991 Constitution.

In order to carry out its functions as an investigative and prosecutorial body, the Office of the Prosecutor General may adopt measures to ensure that criminal suspects will appear before the courts, including the issuance of preventive detention orders. The Office of the Prosecutor General also directs and coordinates the work of investigative entities which depend upon the National Police and other similar agencies. The Office may also adopt measures to protect victims, witnesses and other persons involved in criminal proceedings.

Within the Office of the Prosecutor General, there exist several areas which work closely with human rights cases. The Human Rights Unit (Unidad de Derechos Humanos) works to prosecute cases of special importance involving alleged human rights violations before the regional justice system tribunals. This Unit works with many of the cases which have been presented before the Inter-American Commission as individual complaints. The Office of International Affairs (Oficina de Asuntos Internacionales) works to coordinate with and provide information to international bodies, including the Commission, in regards to cases which are of interest to those bodies and which are being prosecuted by the Office of the Prosecutor General.

The Commission considers that the creation of the Office of the Prosecutor General of the Nation constituted an important advance in the administration of justice in Colombia. The Office has developed a reputation as a generally credible public office. It has also professionalized and made more efficient the investigation and prosecution of criminal cases, although there continue to exist serious problems in the criminal justice system in Colombia which will be discussed in greater depth later in this Report. As the Commission has previously noted, the Human Rights Unit of the Office of the Prosecutor General of the Nation deserves special recognition for having achieved advances in important human rights cases in the face of strong attacks from various sectors that have sought to impede the work of that office. The Human Rights Unit has ordered numerous detentions of alleged violators of human rights and has obtained some important convictions.

No information on the role of the Vice Public Prosecutor could be found among the sources consulted by the Research Directorate.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.

References

Consejo Superior de la Judicatura de Colombia. December 1997. "Fiscalía General de la Nación." http://www.fij.edu.co/jur_ord/fiscalia.htm [Accessed on 29 Sept. 1999]

Human Rights Watch (HRW). October 1998. War Without Quarter: Colombia and International Law. New York: HRW.

Inter-American Commission on Human Rights (IACHR). 1999. Report on the Situation of Human Rights in Colombia. http://www.cidh.oas.org/ countryrep/ Colom99en/chapter-2.htm [Accessed on 30 Sept. 1999]

United States Department of State. 1999. Colombia: Country Commercial Guide-FY-1999. http://www.state.goc/www/about_sta...guides/ 1999/wha/ colombia99_03.html [Accessed on 29 Sept. 1999]

Additional Sources Consulted

Andean Newsletter [Lima]. 1998.

Human Rights Watch World Report 1999. 1999.

Electronic Sources: IRB Databases, REFWORLD, LEXIS/NEXIS, Internet, WNC.