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27 Indiana J. Global Legal Studies 1 (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 telling

illustration 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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