In Colombia, a small group of 153 public defenders and victims’ advocates must represent 234,964 cases filed by victims of the civil war. That comes out to about 1,535 cases per attorney.
That number is overwhelming, especially considering that for effective representation, a single attorney’s caseload shouldn’t exceed 50, according to the National Association of Public Defenders in Colombia.
These cases involve victims who benefited from peace negotiations between the government of Álvaro Uribe Vélez and paramilitary groups in 2003. But victims’ assistance in Colombia includes other groups as well. For example, some people need help recovering land following a restitution law approved by President Juan Manuel Santos.
The Attorneys Association warns that the saturation of cases public defenders face could get worse during the transition, before the Special Jurisdiction for Peace (JEP) begins operating. The JEP is a judiciary body that emerged from the peace accords signed last year by the government and the Revolutionary Armed Forces of Colombia. It will aid combatants who are imprisoned, as well as those who are demobilized and apply for amnesty or pardons.
On April 11, Colombia’s Execution of Sentences courts went on strike because they aren’t equipped to handle amnesty and pardon requests from those convicted of political crimes, including imprisoned guerrilla fighters.
In Bogotá alone, 15,000 people are imprisoned for political crimes. The JEP’s executive secretary reported that 2,100 are former guerrillas and 1,345 have submitted the paperwork to apply for amnesty.
This could create a difficult situation for Colombia’s National Public Defense System. Some attorneys already are processing requests, among them Gustavo Zuluaga. For the past five years, Zuluaga has represented ex-FARC guerrilla William Cruz, sentenced to 13 years in prison for the attempted assassination of former minister Fernando Londoño. Zuluaga has made no progress on the case, and he has several other cases pending.
César Helcías Huertas, president of the National Association of Public Defenders, expects the Public Defense System will receive 10,000 new cases in coming months, while the number of attorneys will increase by only 100, as of April 1.
Last year, then-Chief Public Prosecutor Gustavo Montealegre presented a report to the government stating that the JEP would likely receive 32,433 open cases investigating 110,086 criminal acts.
The amount of work for public attorneys who assist those affected by war is nearly unbearable. Armando Salcedo Ospina works in the victims program at the National Public Defense System in Bogotá. The responsibility of 850 cases of victims of the armed conflict falls on his shoulders.
“I don’t even want to imagine what will happen when the Special Jurisdiction for Peace is implemented. The avalanche of cases will be enormous. And we’ll be responsible for representing those cases,” Salcedo said. “It’s overwhelming. It can be exhausting. It’s emotionally draining and you don’t see results. That’s frustrating.”
The director of the National Public Defense System, Carlos Rodríguez Becerra, acknowledges the institution’s shortcomings, and says that its growth has not been managed proportionally to the public’s needs.
“The ones who maintain the Penal Adversarial System are the public defenders, and we’ve got to give them more support,” Rodríguez said.
Working for justice
Salcedo, the victims’ legal advocate, is a tireless worker. He labors day after day because he believes in Colombia’s fragile justice. He also does it to send his two kids to college. But he wouldn’t be able to do that without the help of his wife and family, because tuition costs twice as much as his salary.
At least 1,000 victims of brutal crimes have Salcedo’s cellphone number, and they call him at any hour of the day for updates on their cases. Every word of his description of the job is true, Huertas said.
“We’ve deteriorated compared to other countries. We’re well below international standards,” he added.
Public defenders make do with what is available to them. But within Colombia’s justice system, the public defender’s office appears to be the link in the chain that matters least.
An example of this is salaries. In Colombia, a judge and a prosecutor earn an average monthly salary of 7 million pesos ($2,438). Meanwhile, public defender José Fernando López, who currently represents 80 criminal defendants, has an annual services contract for $1,500 a month. His contract expired last March, and it hasn’t been renewed. López has had to take on 20 more clients as a private attorney just to make ends meet.
The work of public defenders is vital to preventing injustices for thousands of people who can’t afford an attorney. López knows this too well. In August 2014, he secured the release of three men who had spent five years in prison for a murder they didn’t commit. The men, whose names López asked us not to publish, were sentenced to 37 years, despite no evidence against them and no witnesses incriminating them of the crime.
López worked that case for 18 months, appealing it all the way to the Supreme Court. He did so while also working 100 other cases.
A similar injustice happened to María del Carmen Monroy, an employee who served coffee and worked as a messenger at a Bogotá health clinic. Monroy spent three years and five months in jail, as well as and under house arrest, after being accused of belonging to a criminal gang that embezzled nearly $2 million from the government.
In October 2015, Monroy, 59, was finally released after public defender Gustavo Zuluaga proved her innocence. Before that, several private attorneys had represented her, but they all abandoned her case.
Authorities had charged her with illicit enrichment, believing she embezzled $350,000 from a government solidarity fund. But they changed their minds after visiting the small, prefabricated home where Monroy lives with her daughter, grandchildren and mother in Barranquillita, a neighborhood in Usme, south of Bogotá.
Although Monroy had nothing to do with the crime she was accused of, she was deprived of her liberty for a total of 41 months. It could have been longer if not for a technical defense carried out by a public attorney working 130 other cases, 17 hours a day.
“I’m doing this because I believe in justice, despite the difficulties,” Zuluaga said. “Judges and prosecutors have more resources to support them than public defenders like us. Be we must carry on, because if we quit, who will defend those who have no money?”
In Colombia’s prisons, 38,000 criminal defendants await their day in court. They are incarcerated with 80,000 other inmates convicted of crimes, according to the National Institute of Corrections.
A constitutional right
Colombia’s National Public Defense System was created by the Constitution of 1991 to improve citizens’ access to the administration of justice and quality technical defense. But the institution has lagged for years despite a budget increase of 244% in the last decade.
In 2007, the institution received $20.4 million. In 2017, that figure grew to $70.2 million. The number of lawyers also increased. In 2002, the country had 1,026 public attorneys. Today, it has 4,029. But that’s still not enough for the volume of work.
All of the institution’s public defenders are contracted externally and none are on the government’s payroll. Their salaries don’t always increase each year to account for inflation. From 2010-13, public defenders’ monthly salaries were frozen at 3.5 million pesos ($1,200).
Meanwhile, more and more Colombians are turning to the judiciary to resolve conflicts and demand punishment for violators of the law. That creates increased pressure on public services. From 2005-15, the rate of litigation – calculated by dividing the number of cases filed by the population – increased by 60%, according to the Corporación Excelencia en la Justicia (Excellence in Justice Corporation), a government-created civil society organization.
“A structural reform of the National Public Defense System is urgently needed,” said Rodríguez, the system’s director. “The exponential growth seen by the Prosecutor’s Office and the judiciary is not the same as what the Public Defender’s Office has seen in terms of public defense.”
Several lawyers consulted by El Tiempo believe that constitutional guarantees are not reflected in the Public Defender’s Office’s performance, particularly given that half of the country lives below the poverty line. If people have no money for food, they have even less for expensive private attorneys.
Criminal lawyer Aristides Betancur Ciuffetelli worked for the Public Defender’s Office for 10 of his 25 years as a practicing attorney.
“I left because our workload, compensation and security were unfit to allow us to exercise our profession,” Betancur said.
Betancur lives in Manizales, capital of the department of Caldas, one of Colombia’s coffee-growing regions. In 10 years, he had become acutely aware of the public defense system’s precariousness, which exposed its attorneys to numerous risks.
“We didn’t have the right to vacation, not even once a year, because our service contract wouldn’t allow it. We ended up enslaved to the Public Defender’s Office rather than working as public servants with fundamental rights,” Betancur said.
“At times I had 100 cases simultaneously. Added to that were weekend shifts accompanying clients. Many of my colleagues got sick from the volume of work, and others were killed. I quit when they killed one of my coworkers and no one was ever brought to justice. The judiciary to which we provided our services wasn’t even bothered by the incident,” he added.
In the past four years, four public defenders – a woman and three men – have been murdered in Puerto Tejada, Cauca; Villavicencio, Meta; Barranquilla, Atlántico and Cali, Valle del Cauca. The deaths of these four people, killed in the line of duty, demonstrate that the state can’t guarantee the necessary security to protect those who defend the system’s most vulnerable people – the poor. Additionally, 32 public defenders have survived attempts on their lives, according to information from the National Association of Public Defenders.
“If there is one thing that’s inhumane in this country, it’s the Public Defender’s Office,” Betancur said. “Many are there because of necessity.”
Betancur quit as a public defender because of the job’s heavy workload and low pay. A private attorney charges up to 10 million pesos ($3,500) for one criminal case. A public attorney, with the same training, earns about $1,400 for working at least 100 cases. In other words, for a month’s work, public defenders earn less than half of what a private defense attorney can make on a single case.
The last in the chain
The president of the National Association of Public Defenders, César Huertas Valencia, said the creation of the Special Jurisdiction for Peace seeks to strengthen the system. The association estimates that at least 2,000 more attorneys are needed. But there is no budget to pay for them.
A possible solution that hasn’t been officially debated yet – one that’s addressed by the same law that created the public defense system – is for clients to pay public defenders in specific cases if they have the means. The nongovernmental organization Dejusticia recommended that policy change two years ago.
Rodríguez, director of the National Public Defense System, said the institution presented a draft bill to regulate charging clients to the legislature, but discussion is pending.
“We’re aware of our weaknesses, and we’re working to strengthen the defender’s office. … Our objective is to improve our capabilities and citizens’ access to justice,” he said.
But the truth is that the system’s problems impede access to justice for many innocent people who can’t afford private attorneys.
Meanwhile, nothing seems to be improving. The system’s many problems prevent innocent people who can’t afford private attorneys from seeking justice.