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Committee on Enforced Disappearances examines the report of Bolivia, hails the setting up of the truth commission

Committee on Enforced Disappearances

3 October 2019

The Committee on Enforced Disappearances today concluded its consideration of the initial report of Bolivia on measures taken to implement the International Convention for the Protection of all Persons from Enforced Disappearance.  Committee Experts welcomed the setting up of the Truth Commission, since the creation of such a commission usually represented a turning point in the history of any country.  A number of concerns remained, however, including the need to bring the concept and definition of the crime of enforced disappearance in full compliance with the Convention.

At the beginning of the dialogue, Ruddy Jose Flores Monterrey, Alternate Permanent Representative of Bolivia to the United Nations Office at Geneva, reiterated Bolivia's commitment to the human rights system and the eradication of enforced disappearance.

Guillermo Mendoza Avilés, Vice Minister for the Defence of User and Consumer Rights, Ministry of Justice and Institutional Transparency of Bolivia, addressing the Committee via video link from La Paz, said that in Bolivia, all enforced disappearances had taken place during the period from 1964 to 1982 and had been politically or ideologically motivated.  

The Vice Minister said the Truth Commission to investigate grave human rights violations committed during the period from 1964 to 1982 had been established in 2016 and was fully functional today.  It was an evidence of Bolivia's commitment to investigate the events that had occurred during the dictatorship, establish criminal responsibility for perpetrators, fight impunity, and provide redress to victims in line with the framework of international law. 

Committee Experts welcomed the setting up of the Truth Commission, noting that the creation of such a commission usually represented a turning point in the history of any country.  They, however, regretted the difficulties it had in accessing military archives and urged Bolivia to prevent any interference with its investigative activity.  What protection was being provided to those who had lodged a complaint of enforced disappearance and other human rights violations committed during the military dictatorship of 1964 to 1982?  Bolivia should bring the concept and definition of the crime of enforced disappearance in full compliance with the Convention.

Only seven prosecutions for enforced disappearance had been undertaken, prompting the Experts to raise the question of criminal liability for the crime of enforced disappearance committed in the past and to ask whether both the perpetrators and instigators of the crime had been investigated.

In concluding remarks, Mr. Mendoza Avilés noted that Bolivia was in the midst of a justice revolution; it was becoming a modern country that was more in tune with the wishes of its citizens and that was why it remained open to examination and scrutiny.  Mr. Flores Monterrey said that Bolivia would take on board the Committee's concerns as it sought to continue its fight against enforced disappearance.

In their concluding remarks, Committee Co-Rapporteurs for Bolivia - Horacio Ravenna, Carmen Rosa Villa Quintana and Juan José Lopez Ortega – thanked the delegation in La Paz and Geneva for the frank and open dialogue which offered the evidence of legislative advancements made in the country.

The delegation of Bolivia, which participated in the dialogue via a video-link from La Paz - a concession granted to Bolivia on an exceptional basis - consisted of representatives of the Ministry of Justice and Institutional Transparency, the Truth Commission, and the Office of the Prosecutor.  Representatives of the Permanent Mission of Bolivia to the United Nations Office at Geneva were present in Geneva.

The Committee will issue the concluding observations on the report of Bolivia at the end of its seventeenth session, which concludes on 11 October.  Those, and other documents relating to the Committee's work, including reports submitted by States parties, can be found on the session's webpage

The webcast of the Committee's public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public at 10 a.m.  on Monday, 7 October to meet with States parties, United Nations bodies, specialized agencies, international organizations, and national human rights institutions.

Report

The Committee has before it the initial report of Bolivia (CED/C/BOL/1) and its replies to the list of issues (CED/C/BOL/Q/1/Add.1).

Presentation of the Report

RUDDY JOSE FLORES MONTERREY, Alternate Permanent Representative of Bolivia to the United Nations Office at Geneva, reiterated Bolivia's commitment to the human rights system and the eradication of enforced disappearance, which was evidenced by the constitutional prohibition of such acts.

GUILLERMO MENDOZA AVILÉS, Vice Minister for the Defence of User and Consumer Rights, Ministry of Justice and Institutional Transparency of Bolivia, addressing the Committee via video link from La Paz, stressed Bolivia's commitment to the defence, protection and promotion of human rights, and was deeply convinced of the values of multilateralism and the values and principles of the United Nations Charter and the 2030 Agenda and its Sustainable Development Goals.  With the view to respecting its human rights obligations, Bolivia had done its utmost to ensure that it regularly reported to human rights treaty bodies.

The 2009 Constitution was the result of historic struggles by the Bolivian people.  It contained the principles of universality, interdependence, indivisibility and progressive realization of human rights, and it defined the primacy of international law over domestic legislation.  Of the 17 Bolivian constitutions, Mr. Mendoza Avilés continued, it was the first ever to have been developed in a democratic fashion by the Constitutional Assembly.  As such, it was one of the most progressive in the world and offered an opportunity for a better future to all Bolivians. 

All enforced disappearances in Bolivia had taken place during the 1964 and 1982 period and had been politically or ideologically motivated.  Since the re-establishment of democracy in 1982, there had not been a single enforced disappearance in the country as Bolivia had put in place measures guaranteeing the right to truth for the victims and their families.  The Constitution provided protection to all persons from enforced disappearance; prohibited all forms of torture, disappearance, or any form of physical or mental violence; and removed statutes of limitations for crimes against humanity.

Bolivia had ratified the Inter-American Convention on the Forced Disappearance of Persons and the Rome Statute; both were part of the domestic legal order and therefore were fully applicable in the country.  The Criminal Code contained a definition of enforced disappearance as per article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance. 

In 2003, Bolivia had set up the Inter-Institutional Council for the Investigation of Enforced Disappearance, while the Truth Commission to investigate grave human rights violations committed during the period from 1964 to 1982 had been established in 2016.  The Truth Commission was fully operational today.  Next year, it would submit two documents: the historical memory on the civil, political, economic, social and cultural conditions in which the crimes had occurred, and the final report with the conclusions and recommendations on how to address grave human rights violations for which it had collected evidence and established truth.

Memorials for several martyrs of national liberation had been set up in La Paz and other cities, while in 2009, the national commission for redress for victims of political violence had been set up.

All those were the evidence of Bolivia's commitment to investigate the events that had occurred during the dictatorship, establish criminal responsibility for perpetrators, fight impunity, and provide redress to victims in line with the framework of international law, stressed the Vice-Minister. 

Questions by the Committee Experts

HORACIO RAVENNA, Committee Co-Rapporteur for Bolivia, opening the interactive dialogue with the delegation of Bolivia, remarked that Bolivia had not yet recognized articles 23 and 24 of the Convention which allowed the Committee to receive individual communications as well as those from States.

Mr. Ravenna noted that different documents and reports, including those Bolivia had presented to this Committee or to the Working Group on enforced disappearance, contained contradictory information about the number of enforced disappearances committed during the 1964 to 1982 period.

Article 15 of the Constitution on the right to physical integrity prohibited enforced disappearance at all times and circumstances, including in states of emergency.  However, the law on enforced disappearance had been overturned, which raised concern about the implementation of the constitutional prohibition.

The Co-Rapporteur remarked that the Migration Act violated the principle of non-refoulement enshrined in the Convention and asked the delegation to comment.

JUAN JOSÉ LOPEZ ORTEGA, Committee Co-Rapporteur for Bolivia, took note of the delegation's statement that all enforced disappearances that had taken place in Bolivia had been politically motivated and had taken place during the military dictatorship from 1964 to 1982. 

The Convention, he stressed, offered a very precise definition of enforced disappearance and had even introduced a category of a "short-term enforced disappearance".  This meant that the definition of a crime of enforced disappearance did not depend on the motives of the disappearance, a particular situation in which the crime occurred, or whether it was committed by an agent of the State or a private citizen working in connivance with the State.  What mattered was that any form of deprivation of liberty or concealment of the fate or whereabouts of the disappeared person occurred, which placed such a person outside the protection of the law.

The definition of enforced disappearance in the legislation did not fully conform to article 2 of the Convention, he said, and asked about the punishment applicable to the crime and was it commensurate with the gravity of the crime?  Was there a statute of limitation to the crime of enforced disappearance?  How did the law deal with criminal responsibility of civilian authority figures and with the refusal to obey superiors?

The Co-Rapporteur asked about court decisions to prosecute the crime of enforced disappearance committed abroad when either the perpetrator or the victim were Bolivian nationals, especially given the legal gap that existed in this regard; the competence of military courts to hear cases of enforced disappearance when military personnel were involved; and the number of complaints of enforced disappearance, investigations, prosecutions and sentences handed down to perpetrators.

The Committee was informed about resourcing difficulties that the Truth Commission experienced and the difficulty it had in accessing military archives.  What steps were being taken to facilitate the investigations by the Truth Commission and to prevent any military unit from interfering with any investigative activity?  What protection was provided to those lodging a complaint of enforced disappearance?

CARMEN ROSA VILLA QUINTANA, Committee Co-Rapporteur for Bolivia, took positive note of the prohibition of incommunicado detention but raised concern that the law allowed a 24-hour incommunicado period for a person under investigation.  If the detainee so requested, was the legal counsel available, including the State-provided legal aid?  The Co-Rapporteur asked about the oversight of the – often collective and random - transfer of members of criminal gangs from one prison to another and the legal counsel available to them.

Turning to detention registers, Ms. Villa Quintana asked whether they contained all data as prescribed by international norms, such as time and date of detention, and health status, including mental health, etc.  What processes and regulations were in place to inform detainees of their fundamental freedoms and rights?  Welcoming the creation of a national mechanism for the prevention of torture, the Co-Rapporteur asked whether there was another body that could visit places of detention.

Was there a legal definition of victim - direct and indirect alike - and was there a register of victims?  On what grounds had more than 70 per cent of the 6,178 requests for reparations been denied and what budget had been allocated for the purpose?  Was there a mechanism that guaranteed reparations to victims of enforced disappearance?

Finally, the delegation was asked about legislative initiatives in the context of article 25 of the Convention regarding children subjected to enforced disappearance.

Replies by the Delegation

The delegation said that today Bolivia had an internationally-focused Constitution which fully respected international treaties that Bolivia had entered into.  In addition, Bolivia was assessing its declaration under articles 31 and 32 of the Convention and it was under the jurisdiction of the Inter-American Court for Human Rights.

The Truth Commission was working to ascertain the exact number of enforced disappearances.  To date, 48 sets of remains had been exhumed during the 1997-2013 period.

Explaining the legal framework, the delegation said that although Bolivia did not have a specific law on enforced disappearance, there was constitutional prohibition of the crime and the International Convention for the Protection of All Persons from Enforced Disappearance applied directly.  The legislation recognized the long- and short-term nature of the crime as prescribed by the Convention.  Because the Rome Statute recognized enforced disappearance as a crime against humanity, there was no statute of limitation.  Furthermore, the law recognized enforced disappearance as a stand-alone crime.

Article 27 of the Criminal Code prescribed the criteria for minimum and maximum punishment for the crime of enforced disappearance, which went from five to 30 years imprisonment.  The 2017 Penal Code defined enforced disappearance as a crime against human dignity, while the recently adopted law 11-73 prescribed procedural steps.

There had been five prosecutions for the crime of enforced disappearance, all of which had taken place before Bolivia's ratification of the Convention.  All the perpetrators had received a 30-year prison term without a possibility of parole.  Court marshals were no longer competent to hear the cases of enforced disappearance. 

On the declassification of military files, the delegation said that in criminal procedures, a judge could coordinate with the Ministry of Defence and the Public Ministry, while family members could also access military files.  The law on the Truth Commission contained a provision on the declassification of files in order to shed light on events during the military dictatorship.  The criminal investigative body and the Truth Commission had an agreement on gathering information that would shed more light on the cases being investigated.

Questions by Committee Experts

In the next round of questions, HORACIO RAVENNA, Committee Co-Rapporteur for Bolivia, remarked that some very notable individuals were currently in the Truth Commission, and asked whether the Commission enjoyed legal and judicial independence to enable it to carry out its work.

CARMEN ROSA VILLA QUINTANA, Committee Co-Rapporteur for Bolivia, took note of the fact that 20 per cent of the reparations to victims had been paid and asked when the remaining 80 per cent would be paid out.  Where did the money for reparations come from?  The Co-Rapporteur emphasized the importance of adopting measures that would guarantee an effective access to justice and the enjoyment of detainees' fundamental rights.

JUAN JOSÉ LOPEZ ORTEGA, Committee Co-Rapporteur for Bolivia, asked the delegation about the authority and the procedures in place to ensure that all extradited individuals were not at risk of a violation of their fundamental rights or at risk of being forcibly disappeared. 

The Co-Rapporteur asked about human rights training dispensed to judges, lawyers, prosecutors, prison officials and others and whether it included the provisions of the Convention.

The Committee objected to the inclusion of disappeared persons in the civil registry as deceased.  The presumption of death by the State was an affront to the individual and this status must be replaced with "absent".

Another Expert asked whether, in the absence of a stand-alone law on enforced disappearance, a judge could sentence a person for the crime of enforced disappearance based solely on the Convention.  Could a judge sentence someone for a crime against humanity based solely on the Rome Statute?

Replies by the Delegation

Bolivia's Criminal Code defined enforced disappearance as an ongoing crime – it started from the moment of disappearance and lasted until the person appeared.  The crime was recognized as a stand-alone crime and was recognized as a crime against humanity if – pursuant to the provisions of the Rome Statute - it was committed as a part of widespread or systematic attacks, and if the civilian population was targeted as a result of the policy of the State or an organization.

In February 2018, the Supreme Court of Justice had issued a decree stating that certain crimes that were on the books could become crimes against humanity under certain circumstances.  Such were the crimes of torture, sexual violence and enforced disappearance, and conditions were set forth in the Rome Statute.

The Criminal Code and the Code of Criminal Procedure contained the sentencing guidelines for the crime of enforced disappearance and defined the minimum and maximum sentence that courts could give.  The maximum sentence was 30 years imprisonment and there were no special attenuating circumstances. 

Since enforced disappearance could be a crime against humanity, therefore an international crime, it was not subject to a statute of limitation nor to amnesty.  This meant that an investigation into this crime could be launched at any time, regardless of how long ago the crime had been committed.

The Bolivian Constitution was a guarantor of human rights, stressed a delegate.  It clearly stated that the declaration of a state of emergency or any other exceptional circumstances would not mean a suspension of protected rights and fundamental freedoms.  Those included the right to life, the right to physical and mental integrity, and the right to sexual integrity.  Enforced disappearance was thus prohibited, including in a state of emergency. 

The law empowered subordinates to refuse compliance with orders to commit an illegal act and violate protected rights.  Those included enforced disappearance, killing, raping or torture. 

The family of a disappeared person could petition for a declaration of absence.  A judge could appoint a designated person as a steward of the disappeared person's legal affairs, for example property or inheritance.

Responding to questions raised on the investigation and prosecution of crimes of enforced disappearance, the delegation said that the law defined the obligation to investigate all crimes committed under Bolivian jurisdiction, both on the national territory or abroad.

On the principle of non-refoulement, the delegation said that the Protection of Refugees Act 251 contained the protection regime for refugees and asylum seekers, including from expulsion or extradition.  This meant that no refugee or asylum seeker could be sent to another country if his or her life, liberty and security were at risk.  The law also established the complaint mechanism.  On an exceptional basis, an expulsion was possible on the grounds of national security and public order but the refugee was nevertheless given sufficient time to find a safe third country.

The decision on whether or not to extradite was made by the Criminal Chamber of the Supreme Court of Justice.  According to the Criminal Code, no person under Bolivian jurisdiction could be extradited unless the conditions set forth by international treaties were met, including that the crime had to be on the books of both States. 

The Constitutional Court had ruled in 2012 that under no circumstances should serious human rights violations fall under the competence of the military court. 

Law 747 had created the Service for the Prevention of Torture - the Bolivian national prevention mechanism – as a decentralized public body that acted throughout the country and enjoyed full independence, financially and otherwise.  The Service had the mandate to visit all places of liberty, including detention centres, special establishments, juvenile justice centres, military prisons and military schools, and training centres.  Since its establishment, the Service had conducted 235 unannounced visits, issued 22 recommendations and followed up on 28 possible cases of torture and 75 deaths in custody.

The State had pursued seven prosecutions for enforced disappearance, four of which had been initiated before the ratification of the Convention and had been concluded.  Ongoing were the cases of Félix Melgar Antelo, the Teoponde disappeared, and the criminal process initiated by the Public Ministry against the perpetrators which had been initiated in compliance with the decision of the Inter-American Court for Human Rights in the case of Renato Ticona Estrada. 

The Institute for Forensic Investigations assisted with unearthing and identifying the remains.  The delegation thanked the Argentinian forensic team that had recently assisted with the identification of remains of 48 forcibly disappeared persons.  In 2018, the Office of the Prosecutor and the Truth Commission had signed an agreement for information exchange that would reinforce the localization of remains. 

The Government was doing its utmost to enable the Truth Commission to access the archives and files held by the military.  In 2008, the Supreme District Court of La Paz had ordered the declassification of archives in Department II of the Bolivian army.  In 2009, the Ministry of Defence had authorised families of victims of the regime and the military dictatorship to access the archives, public registers and any other documents in which they had a legitimate interest.  In 2010, the first inspection of the army's archives had taken place. 

Bolivia had adopted in 2004 law 2640, an embodiment of the commitment to guarantee the right to truth, memory, justice and reparation to persons who had suffered human rights violations during the 1964-1982 period.  The law also aimed to preserve history, support return to democracy in the country, and provide for reparation for the victims of political violence, including victims of enforced disappearance.

The National Commission for Compensation of Victims of Political Violence, established in 2012, had received more than 6,000 requests for compensation of which 63 were for enforced disappearance.

Follow-up Questions and Answers

MOHAMMED AYAT, Acting Committee Chairperson, stressed that the creation of a truth commission usually represented a turning point in the history of any country and wished the Bolivian Truth Commission all the best in its work.

HORACIO RAVENNA, Committee Co-Rapporteur for Bolivia, said that the Committee remained concerned about the way in which the concept of enforced disappearance had been taken up in Bolivian criminal law, which did not comply with the Convention nor with the Inter-American Convention for Human Rights.  The main point of concern was that the definition did not clearly state who the perpetrators of the crime were, since it included non-State actors in the same definition.

The jurisdictional competency was territorial, noted the Co-Rapporteur, and asked about the intentions to enshrine in the legislation universal jurisdiction for enforced disappearance and so bring Bolivia in full compliance with article 9 of the Convention. 

JUAN JOSÉ LOPEZ ORTEGA, Committee Co-Rapporteur for Bolivia, asked whether there was criminal liability for the crime of enforced disappearance committed in the past, from 1964 to 1982.  There had only been seven prosecutions for enforced disappearance in Bolivia, prompting the Co-Rapporteur to ask how deep the investigations had gone, and whether instigators in addition to perpetrators were within the scope.

CARMEN ROSA VILLA QUINTANA, Committee Co-Rapporteur for Bolivia, commended Bolivia for strengthening the provision of free legal assistance, both in criminal and other cases, however, the number of public prosecutors remained scarce, particularly in rural areas.

The delegation said that the Government was rolling out a raft of new legislation and regulations in various areas.  The Criminal Code was being overhauled, said a delegate, expressing confidence that this legislative activity would align the country's law with the Convention and other international human rights instruments.  Restorative justice was at the heart of the juvenile justice system. 

The only body empowered to order a transfer was a sentencing judge.  In the absence of the judge's ruling, a prison transfer could not take place.

Concluding Remarks

GUILLERMO MENDOZA AVILÉS, Vice Minister for Defence of User and Consumer Rights, Ministry of Justice and Institutional Transparency of Bolivia, in concluding remarks, said that Bolivia was in the midst of a justice revolution and expressed pride in its Truth Commission.  Bolivia was becoming a modern country that was more in tune with the wishes of its citizens and that was why it remained open to examination and scrutiny.  The fact that Bolivia was fully up to date with its treaty bodies reporting was another proof of that openness. 

RUDDY JOSE FLORES MONTERREY, Alternate Permanent Representative of Bolivia to the United Nations Office at Geneva, in concluding remarks, thanked the Committee for their efforts to facilitate Bolivia's participation in the dialogue via a video conference.  Bolivia would take onboard the concerns raised as it sought to continue its fight against enforced disappearance in all dimensions.  Bolivia had established specific institutional mechanisms to combat impunity, which was not only a short-term act but evidence of a long-term commitment to confront the past.

HORACIO RAVENNA, Committee Co-Rapporteur for Bolivia, concluded by expressing deep gratitude to the delegation of Bolivia and was pleased that, despite the challenges, the Committee was able to engage in a dialogue.  The Committee hoped the Truth Commission would soon publish its report and findings.

CARMEN ROSA VILLA QUINTANA, Committee Co-Rapporteur for Bolivia, in concluding remarks, thanked the delegation in La Paz and in Geneva for their participation.

JUAN JOSÉ LOPEZ ORTEGA, Committee Co-Rapporteur for Bolivia, expressed appreciation for the frank and open dialogue which offered the evidence of legislative advancements made in the country.

MOHAMMED AYAT, Acting Committee Chairperson, thanked the delegation for a truly constructive dialogue.  While the Committee did not wish to establish a precedence for videoconferencing, it was extremely pleased that it could engage with the Bolivian delegation.

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