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27 Indiana J. Global Legal Studies 289 (2020)


In the first section of the article, I will discuss Omar's case to show why he did not have a fair trial, and particularly how his rights to access to justice and to defense were infringed, both by the public defense he was provided and by the judges that decided his case.

In the second section, I will show that Omar's case is a tellingillustration of the features of the Colombian criminal justice system, which systematically and disproportionately sentences and imprisons marginalized and poor people-in great measure because they lack the financial resources to pay for better and more motivated legal counsel.

Thus, Colombian criminal justice does not treat fairly those who have to resort to the public defense system-the majority of those being processed. Given their limited resources, work overload and lack of incentives, public defenders in practice struggle to effectively provide the minimal standards of an adequate, technical defense. Consequently, this puts the accused in a disadvantaged position vis-A-vis the prosecution, which is more powerful and has more means and incentives to perform its task.

In the third section, I will discuss why the government's unfair treatment of the most disadvantaged members of Colombian society is made possible by a system that, in practice, is not impartial, and how this trend has continued, if not worsened, under the new accusatorial model. Within this model, the prosecution and the defense legally stand on equal ground before a judge. The former has to prove beyond a reasonable doubt the accused's guilt, while the latter's function is to protect the rights of the defendant, particularly the presumption of innocence. This arrangement guarantees the proper function of the criminal justice system and the limits of State coercion. But in practice, the structural and financial differences between the Attorney General's office and the public defense system results in a criminal justice system that is not impartial. Instead, the system promotes and provides perverse incentives and instruments in order to efficiently evacuate cases and obtain convictions, giving a structural advantage to the prosecution that is reinforced by the majority of defendants' lack of resources.

In the fourth section, I will show that such bias is endorsed by the judiciary, who ought to oversee the performance of the parties during a trial to guarantee fairness and the rights of the accused. Even though courts should be impartial in applying the law, they should also favor the protection of defendants' constitutional rights, for they are the most vulnerable party when the State exercises its coercive powers. In a democracy and under the rule of law, these coercive powers must be constrained and kept in check. But in practice, the 'neutrality' of judges tends to transform into a kind of routine callousness, indifferent to the actual situation of those being prosecuted and the effective protection of their rights. Altogether, the supposed 'impartiality' of the system actually works against the interests of the accused, which makes their rights to defense and to access to justice a legal fiction, rather than a working practice.

In the fifth section I will discuss how and why the performance of the Colombian criminal justice and its accusatorial model is not unique or merely anecdotic, but an illustration of a worrisome and increasing trend in many Latin American and global north countries, such as the United States. This trend is linked to a political economy of punishment, where the political, economic, and social transformations in these countries during the last three decades have consolidated a type of liberal democracy that is increasingly unequal and excluding under the rules of market capitalism. Such democracies have a propensity to protect the civil and political rights of the middle and upper classes as well as the market economy that sustains them. This propensity is to the detriment of the social and economic rights of the poorer classes, gradually excluding them from the economy and polity, and progressively dealing with them through repressive policies, among which criminal policies have become salient.

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