Author: Mirte Postema

CICIG’s investigations show web of corruption in Guatemalan state. Now, what’s next?

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Two weeks ago, CICIG (International Commission against Impunity in Guatemala) revealed that the Partido Popular (PP), the former governing party of now disgraced and imprisoned former president Otto Pérez Molina and his—also incarcerated—vice president Roxana Baldetti, was engaged in a web of corruption far more extensive than initially thought. Shortly after reaching power, the party, under the direction of President Pérez Molina, had established an organized criminal structure that had seized the state, and developed an elaborate scheme of collusion between the local private sector and the state to enrich public servants and grant companies easy access to government contracts.

The revelations come just as the so-called Northern Triangle countries (Guatemala, El Salvador, Honduras) are about to receive a large infusion of international assistance through the $750 million U.S. funded Alliance for Prosperity that, rather than being limited to security sector support, seeks to stimulate economic development and strengthen democratic institutions. But given what CICIG has now revealed, are Guatemala and the other recipients ready to adopt the structural changes necessary to effectively channel and apply these funds, to address corruption at its roots?

CICIG was established in 2007 under the auspices of the United Nations to investigate organized criminal networks with links to the state. It is bound by Guatemalan law and must work closely with the country’s Public Ministry. CICIG’s operations have had their ups and downs, as has been documented in a recent report by the Open Society Justice Initiative. However, under the current leadership of Colombian prosecutor Iván Velásquez, it has made important strides in uncovering corruption and eroding impunity of even some of the most powerful.

CICIG’s most important case to date was brought to light in April 2015, when the investigatory body revealed a corruption scheme within the country’s customs authority. That case, named “La Línea,” implicated then-President Otto Pérez Molina and Vice-President Roxana Baldetti, as well as other high-level officials. The massive public outcry that followed led to the resignation of both the President and the Vice-President. Since then, CICIG and the Public Ministry have continued their investigations, and in the following months uncovered more such corruption rings involving high-level officials and prominent businesspeople.

Additional information retrieved through searches and phone taps exposed an even more extensive scheme than originally thought. In June 2016, CICIG concluded that the PP, the former government party, rather than having engaged in occasional (but serious) acts of corruption, was essentially an organized criminal enterprise whose primary purpose was to reach power to gain access to public resources for private gain. Continue reading →

Brazilian Judiciary Discusses Alternative Sentencing

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Over 600,000 people are in prison in Brazil, according to data from the Prison Studies Centre from June 2014. This makes it the country with the 4th largest prison population in the world, after the United States, China, and Russia. With about 202 million inhabitants, 301 people are incarcerated for every 100,000 Brazilians. And with an occupancy level of about 154%, the prisons in which they are held are very overcrowded.

The country’s prison population has grown exponentially in the last two decades. In 1995, 173,104 people were incarcerated, but in June 2014, 607,731 people were held in detention centers (in the prison system and police detention facilities): an increase of more than 350%.

The past decade demonstrates that increased incarceration produces no significant measurable effect on homicides. Over the last thirteen years, the national homicide rate remained virtually constant: 28.5 per 100,000 in 2002 and 27.0 in 2013 (the most recent data available). During that period, the incarceration rate continued to soar, from 122 per 100,000 inhabitants in 2002 to 301 in 2014. While no discernible reduction in homicides occurred, tens of thousands of families were destabilized and millions of Brazilian reais spent on incarceration.

Prisons impose enormous costs. On the imprisoned, on his or her family members who might depend on them for care and (financial) support, but also on the State. It is hard to calculate these costs exactly, but a number of studies in the United States have attempted to do so. However, it is important to note, first, that it is hard to make sound comparisons between countries because of methodological differences in the calculation of those costs, as well as because of a general absence of recent data. Moreover, the type of detention regime has an important impact on costs: logically, stricter security regimes are more expensive than lower-security settings. Lastly, richer countries have more money to spend on public institutions, including prisons, than poorer countries. This means that the monetary costs of the U.S. prison system do not necessarily reflect the situation in Latin America. However, it is fair to assume that the “collateral costs” of imprisonment are proportionately comparable.

This makes it relevant to note that in 2012, the Vera Institute calculated in The Price of Prisons that incarceration cost U.S. taxpayers about $39 billion per year—13.9% more than was reflected in the budgets of the 40 states that participated in the study. And the Pew Charitable Trusts found in 2010 that incarceration has a lasting negative economic impact on economic opportunity and mobility for inmates in the U.S., that those costs are largely borne by a person’s family and community, and that they reverberate across generations. Moreover, the Vera Institute’s The Human Toll of Jail provides an illustration of the impact of imprisonment, as well as the positive contributions that alternative sentencing can have.

Such studies are lacking in Brazil. Continue reading →

Custody hearings lower rates of pretrial detention, but show structural problems in Brazilian criminal justice system

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Pretrial detention should be an exceptional measure. According to the inter-American system of human rights (comprised of the Inter-American Commission on Human Rights, based in Washington, D.C., and the Inter-American Court on Human Rights based in San Jose, Costa Rica), States are only allowed to apply it for procedural purposes: when there is a risk that the defendant might flee (and the case might thus not be brought to justice), and/or where proceedings (such as the investigation of the case) might be affected. Even in such situations—which must be corroborated by facts, not suppositions—the application of pretrial detention must be necessary, limited, and proportional, and should be reviewed periodically. The mere existence of indications of guilt of the defendant is not sufficient for the application of pretrial detention.

However, despite the fact that these standards have been applicable for more than two decades, the Inter-American Commission on Human Rights concluded in its 2013 Report on the Use of Pretrial Detention in the Americas that the application of pretrial detention continues to be the norm, rather than the exception, in the region.

That is why it was good news when, just over a year ago (at the end of February 2015), the Brazilian National Judicial Council (CNJ) started a pilot project in the city of São Paulo to organize so-called custody hearings. The initiative was the result of a collaboration between the CNJ, the Ministry of Justice and a Brazilian NGO called IDDD (Instituto de Defesa do Direito de Defesa – Institute for the Defense of the Right to Defense), and aimed to apply international law, transform the criminal justice system, stimulate restorative justice approaches, and collect data about the impact of alternative sentencing in Brazil.

In custody hearings, people detained in flagrante delicto are brought before a judge within 24 hours. This includes cases in which a person can be linked to a crime relatively shortly after its occurrence. However, no time limits are given, so judges can interpret this provision broadly. The judge, after having heard the defendant, the public prosecutor, and the defense counsel (a public defender or a private lawyer), decides whether the defendant will be allowed to await trial in freedom (posting bail or complying with provisional measures), or whether pretrial detention will be applied.

The custody hearings are still in an initial phase—even though they have been implemented throughout the country, their coverage beyond state capitals and outside of normal working hours is still limited. However, in May 2016, all jurisdictions in the country are required to organize these hearings.

The Stanford Human Rights Center, together with graduate student Thiago Reis, is monitoring the impact of these custody hearings in the city of São Paulo. Brazilian human rights organizations, such as IDDD, Instituto Sou da Paz, and Conectas, do this at a larger scale.

The initial results of the custody hearings are promising. Continue reading →

Four questions for MACCIH, OAS-backed anti-corruption body in Honduras

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On Monday February 22, 2016, the Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH) officially presented itself in Honduras. MACCIH is a hybrid mechanism, backed by the Organization of American States (OAS), which was created to assist Honduran institutions tasked with the prevention of corruption and impunity. The establishment of MACCIH is a drastic measure; an admission that the Honduran State, for whatever reason, is unable to adequately investigate and punish corruption cases. But for those who have followed the situation in Honduras, this is no surprise.

The country suffered a coup d’état in June 2009, which further weakened Honduras’ already frail institutions. It caused a severe deterioration in the protection of human rights, and increased poverty and inequality. Violence shot up to 85.5 intentional homicides per 100,000 inhabitants in 2012, according to the National University’s Observatory of Violence (although the UN Office on Drugs and Crime even registered 90.4 intentional homicides that year).

Six years after the coup, the situation remains dire. According to a recently published report by the Inter-American Commission on Human Rights, Honduras continues to suffer from high levels of violence and organized crime, attacks on human rights defenders, militarization, growing inequality, and a lack of judicial independence. (And its highly criticized Supreme Court selection process does not bode well for the future.)

This situation is, unfortunately, not unique in the region. In the countries that compose the Northern Triangle of Central America—Guatemala, El Salvador and Honduras—levels of (organized) violence are high, government institutions are weak, and corruption and impunity are rampant.

Guatemala found its own way of attacking these problems. Following civil society initiative, the UN-backed International Commission against Impunity in Guatemala (CICIG) was created. After some eight years of operation that had ups and downs, CICIG has recently shown impressive results: it has rolled up crime rings run by notorious criminals and State officials, and has brought to light enormous corruption scandals, for example in the customs authority, in which the highest authorities of the country were involved. This led to the resignation of both the President and Vice-President, both of whom are currently imprisoned, awaiting trial.

The reactions in Guatemala’s neighboring countries were almost immediate: citizens in Mexico, El Salvador, and Honduras called for the creation of similar entities in their countries. However, governments have been reluctant to accede to these demands. No initiative has been taken in Mexico, and El Salvador has only agreed to a U.S.-sponsored anti-corruption program. But in Honduras, following a scandal that involved the embezzlement of social security funds (that were, moreover, allegedly used to finance the governing party), national protesters called for the establishment of an investigative body similar to CICIG, to take on corruption in the country.

On September 28, 2015, the Secretary General of the OAS and Honduran President Hernández announced the creation of MACCIH to assist Honduran institutions in preventing, investigating and punishing corruption. Continue reading →