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2007 Assessment

Colombia: Integrity Indicators Scorecard

Colombia: Integrity Scorecard Report > Sub-Category: Judicial Accountability
Indicators		Score
33	Are judges appointed fairly?	92
34	Can members of the judiciary be held accountable for their actions?	79
35	Are there regulations governing conflicts of interest for the national-level judiciary?	61
36	Can citizens access the asset disclosure records of members of the national-level judiciary?	0

Indicator and sub-Indicator Details

Are judges appointed fairly?

33a: In law, there is a transparent procedure for selecting national-level judges.

Score:

YES

Comments: Justices of the Supreme Court of Justice and the Council of the State are elected by their own institutions from lists of more than five people sent by the Superior Council of the Judicature. Justices for the Constitutional Court are elected by the senate from lists of three candidates presented by the president, the Supreme Court of Justice and Council of the State. (art. 231 and 239 Constitution). Justices for the Superior Council of the Judicature are elected by the congress (senate and lower chamber) from lists of three candidates sent by the government (art. 254).

There are clear rules for the election process, but there is no formal oversight mechanism for the process, and thus it is not public. Citizens can refer to the "citizen oversight committees" established in the Constitution as a mechanism to oversee processes and result in public administration, and that has recently been the case with a group of civil society organizations creating an oversight committee for the election processes of national-level justices.

References: Constitucion Política de Colombia 1991. Art. 231, 239, 254.

33b: In practice, there are certain professional criteria required for the selection of national-level judges.

Score:

100

Comments: According to the Constitution, there are certain qualifications and requirements that have to be met by national-level justices. Those requirements are: the justice has to be a lawyer, without any sentence privative of liberty except for political crimes, with ten years of experience in a judicial post or in the public ministry, or have ten years experience as a lawyer in exercise or university professor.

In practice, almost all national-level justices met these criteria. Political criteria do play a role in the selection, although the independence of the judiciary has increased since the new Constitution was issued in 1991. In 1999, the NGO Corporacion Excelencia en la Justicia, in association with a number of CSOs and universities, started the first exercise of citizen oversight over the process of selection for justices in the Council of the State and the Supreme Court of Justice. The Corporación has conducted similar exercises in 2006 and 2007 in order to make public the CVs of the candidates as well as the selection criteria. The Corporation reports that as a result of this exercise, the courts feel compelled to be more transparent in their actions. For the case of the Constitutional Court, after 1991 a tradition of independence has been established, by which the justices elected are very well known for their qualifications. Political criteria are stronger in the selection of justices for the Supreme Court of Justice.

Since July 2007 there has been a controversy on the election of a new member of the court, for which the government initally sent a list of three conservative women. The move was criticized as a way to reduce the progressive spirit of the court, but especially because the ellaboration of the lists seemed to answer to the demands made by the conservative party to the president. In the end, two of the initial candidates quit the list, and the government ellaborated a new one including the current Juridical Secretary of the Presidency in a very politicized and criticized decision. Thus, critics argue, the independence of the court can be weakened. The risks derived from this decision may lower the score of the indicator in the future.

References: Corporación Excelencia en la Justicia. www.cej.org

El Tiempo. 2007. "Respetar una tradición". 18 July, 2007.

Rios-Figueroa, Julio. Judicial Independence: Definition, Measurement, and Its Effects on Corruption. A Study of Latin America. [ LINK ]

Revista Semana. 2007. La Corte de Uribe El Presidente ya no quiere quitarle poder a la Corte Constitucional, sino darle un rumbo más conservador. 07/28/2007 # 1317

Revista Semana. 2007. La categórica renuncia de las aspirantes a Magistrado de la Corte Constitucional desnuda una elección anunciada. 08/14/2007.

33c: In law, there is a confirmation process for national-level judges (i.e. conducted by the legislature or an independent body).

Score:

YES

Comments: There is a confirmation process for justices of the Superior Council of the Judicature and the Constitutional Court. In these cases, the nominating agency is different from the appointing agency.

For the Superior Council of the Judicature, nominees are proposed by the government, and for the Constitutional Court by the president, the Supreme Court of Justice and the Council of the State. In both cases, congress makes the final election.

References: Constitución Política de Colombia 1991. Art. 239 and 254.

Can members of the judiciary be held accountable for their actions?

34a: In law, members of the national-level judiciary are obliged to give reasons for their decisions.

Score:

YES

Comments: According to the Constitution the administration of justices has to be public except in the cases specified by law. However this obligation is limited to the moment of a process in which a final decision is formally made. There is a prohibition to inform, reveal or publish actions, while there is no final sentence on a process.

According to the Law 270 of 1996, the acts of sessions of the Superior Council of the Judicature, the Supreme Court of Justice, the Constitutional Court and the Council of the State referring to administrative matters are public. All decisions on individual or collective cases are reserved until a decision is made.

References: Constitución Política de Colombia 1991. LEY 270 DE 1996 (marzo 7) Diario Oficial No. 42.745, de 15 de marzo de 1996 ESTATUTARIA DE LA ADMINISTRACIÓN DE JUSTICIA .

34b: In practice, members of the national-level judiciary give reasons for their decisions.

Score:

100

Comments: All judges are compelled to explain their judgments, however in practice, explanations are given at the national level, but are more limited at the local level, and this is the reason for the score given to this indicator

The rulings of national-level courts are available and constitute a body of precedent that guides further judicial decisions. However, at the local level, security constraints on judges, prosecutors and lawyers limits them to give full explanation of their decisions. They can be threatened by armed groups, drug traffickers, and corrupt politicians if they fully publicize their decisions, or it might be impossible to explain decisions that have been made answering to these pressures.

It is important to note however, that the security situation for judges has improved as there haven't been reports on kidnapping, murders or physical attacks to them during 2006 and 2007. However, there are indications that judges are still threatened or bribed by different actors, especially paramilitary and guerrilla groups. According to the results of a recent survey made among citizens on perceptions about democracy, about 66 percent of respondents consider that corruption of judges is generalized and from all justice institutions; local tribunals are the least trusted. It suggests that citizens are less confident in the institutions that work as the first level of a judicial decision, those that are closer to the citizen.

References: US Embassy. Colombia - Informe sobre Derechos Humanos, 2006. [ LINK ]

Rodriguez Raga, Juan Carlos and Sellingson, Mitchell. 2007. La Cultura Política de la Democracia en Colombia. USAID.

34c: In law, there is a disciplinary agency (or equivalent mechanism) for the national-level judicial system.

Score:

YES

Comments: The Superior Council of the Judicature (Consejo Superior de la Judicatura) is the agency in charge of examining and sanctioning disciplinary faults of the judicial system in what respects to the acts of judges (art. 256 Constitution).

The Procuraduria General de la Nación (general attorney's office) has the power to investigate all public servants including employees of the judiciary that do not administer judgments. The national-level justices are judged by the Commission of Accusations of the lower chamber.

References: Constitución Política de Colombia 1991, Art. 256, 178, 277.

34d: In law, the judicial disciplinary agency (or equivalent mechanism) is protected from political interference.

Score:

YES

Comments: Article 228 of the Constitution states that the administration of justice in general is independent. The Law 270 of 1996 enforces that independence, stating that it is a crucial principle of the Administration of Justice. The disciplinary agency (Superior Council of the Judicature) can act without the approval of judges themselves, but the justices of this court are elected by congress from lists of three candidates sent by the government, and thus there can be political interference in their election.

References: LEY 270 DE 1996. Diario Oficial No. 42.745, de 15 de marzo de 1996 ESTATUTARIA DE LA ADMINISTRACIÓN DE JUSTICIA .

Constitución Política de Colombia 1991. Art. 228, 254.

34e: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) initiates investigations.

Score:

100

$Scoring Criteria :: 100 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) aggressively starts investigations -- or participates fully with cooperating agencies\' investigations -- into judicial misconduct. The judicial disciplinary agency (or equivalent mechanism) is fair in its application of this power. <p>50 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) will start or cooperate in investigations, but often relies on external pressure to set priorities, or has limited effectiveness when investigating. The judicial disciplinary agency (or equivalent mechanism), though limited in effectiveness, is still fair in its application of power. <p>0 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) rarely investigates on its own or cooperates in other agencies\' investigations, or the judicial disciplinary agency (or equivalent mechanism) is partisan in its application of this power.$

Comments: The judicial disciplinary agency (The Superior Council of the Judicature) does start investigations on members of the judiciary. According to the most recent statistics, in 2005 the Superior Council received 1,256 disciplinary investigations against members of the judiciary and made decisions on 184 cases. There were absolutions in 53 percent of cases, and the majority of sanctions were fines (30 percent), followed by amonestations (8 percent), suspensions (6 percent) and destitutions (3 percent).

Of the 1,256 processes that entered the Superior Council, 1,105 were acted upon, representing an improvement in the number of cases effectively processed and an advance in reducing backlog, although it is still a problem in effective sanctioning of disciplinary faults.

At the local level, the sections of the Superior Council received 9,932 cases against judicial servants and made decision on 197 cases and sent 9,932 cases to archives.

Besides congestion in the judiciary, another hindrance for the effective initiation of investigation is that besides the Superior Council of the Judicature, the Procuraduria General de la Nacion (general attorney's office) and the Fiscalia General de la Nacion (general prosecutor for penal offences) have responsibilities to investigate members of the judiciary. In consequence, sometimes there is confusion about which is the most appropriate agency to initiate the investigation, generating delays and inefficiencies.

References: Consejo Superior de la Judicatura. 2006. Informe al Congreso. 2005 - 2006.

Corporación Excelencia en la Justicia. 2003. Percepciones sobre la corrupción en la justicia y régimen disciplinario. [ LINK ]

34f: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) imposes penalties on offenders.

Score:

100

Of the 1,256 processes that entered the superior council, 1,105 were acted upon, representing an improvement in the number of cases effectively processed and an advance in reducing backlog, although it is still a problem in effective sanctioning of disciplinary faults.

At the local level, the sections of the Superior Council received 9,932 cases against judicial servants and made decision on 197 cases and sent 9,932 cases to archives. From the 197 acted upon, 110 received fines as the sanction.

Although statistics show that there are sanctions effectively imposed, the majority of them are minor sanctions and it is considered that a reform is still needed in order to clarify better types of offences that judiciary employees can commit and the most appropriate sanctions for each offence.

References: Consejo Superior de la Judicatura. 2006. Informe al Congreso. 2005 - 2006 Informe de coyuntura de la justicia.

Corporación Excelencia en la Justicia. 2003. Percepciones sobre la corrupción en la justicia y régimen disciplinario [ LINK ]

Are there regulations governing conflicts of interest for the national-level judiciary?

35a: In law, members of the national-level judiciary are required to file an asset disclosure form.

Score:

YES

Comments: According to Law 270 of 1996, before taking office, every two years, when leaving the position and when requested by the relevant authority, members of the judiciary are obliged to declare the amount of their assets and rents.

References: LEY 270 DE 1996. Diario Oficial No. 42.745, de 15 de marzo de 1996 ESTATUTARIA DE LA ADMINISTRACIÓN DE JUSTICIA.

35b: In law, there are regulations governing gifts and hospitality offered to members of the national-level judiciary.

Score:

YES

Comments: According to Law 270 of 1996, it is a disciplinary fault to receive gifts, hospitality, and any other form of economic gain from other judicial employees, or from those involved in judicial processes.

References: LEY 270 DE 1996. Diario Oficial No. 42.745, de 15 de marzo de 1996 ESTATUTARIA DE LA ADMINISTRACIÓN DE JUSTICIA .

35c: In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national-level judiciary.

Score:

YES

Comments: There is no formal requirement for independent audit of asset disclosure forms. Law 190 of 1995 only states that this information has to be always in the personnel offices of each entity and is a requirement for taking office. The Decree 2232 of 1995 establishes that the responsibility to review asset disclosure forms is in the hands of the chief of personnel in each government entity, but there is no specific regulation for the judiciary. It is stated that the chief of personnel has to review every six months the veracity of declarations using a random selection method.

The Administrative Department for Civil Service has created software called SIDEC to file and monitor asset disclosure forms, but there are no statistics on the follow up to asset disclosure forms.

References: Organización de Estados Americanos. 2004. Informe del Comité de Expertos a la Organización de Estados Americanos. Implementación en Colombia de las disposiciones de la Convención Interamericana contra la corrupción. DIARIO OFICIAL. AÑO CXXXI. N. 42152. 18, DICIEMBRE, 1995. PAG. 2

DECRETO NUMERO 2232 DE 1995. por medio del cual se reglamenta la Ley 190 de 1995 en materia de declaración de bienes y rentas e informe de actividad económica y así como el sistema de quejas y reclamos.

35d: In law, there are restrictions for national-level judges entering the private sector after leaving the government.

Score:

YES

Comments: The regime of inabilities and incompatibilities for members of the judiciary (Law 270 of 1996) does not mention any restriction on private sector employment after leaving the government, but only during and before being in office. However, Law 734 of 2002 prohibits former public servants to give advice or representation on matters related to their previous responsibility within one year after leaving office, and also prohibits to influence or participate directly or indirectly on matters that used to be under their responsibility. Law 734 of 2002 states that when the general interest is in conflict with a private a direct interest of a public servant, he or she should declare impeded, but it does not make specific mention to post-government employment.

The only express regulation about employment after leaving office exists for the justices of the Constitutional Court. They are forbidden of being employed with the government one year after leaving office (Art. 245 CN).

References: Constitucion Politica de Colombia, art. 245.

LEY 270 DE 1996. Diario Oficial No. 42.745, de 15 de marzo de 1996 ESTATUTARIA DE LA ADMINISTRACIÓN DE JUSTICIA LEY 734 DE 2002. (febrero 5). por la cual se expide el Código Disciplinario Unico.

Peer Review Comments: Although a broad array of inabilities and incompatibilities exists for members of the judiciary (Law 270 of 1996), no specific regulations restrict national-level judges from taking positions in the private sector after leaving their government jobs.

35e: In practice, the regulations restricting post-government private sector employment for national-level judges are effective.

Score:

100

Comments: There is no system to monitor the activities of public servants after leaving office. In fact, there is a widespread perception that there is a "revolving door" between the public and the private sector.

References: Constitucion Politica de Colombia 1991, Art. 245.

LEY 270 DE 1996. Diario Oficial No. 42.745, de 15 de marzo de 1996 ESTATUTARIA DE LA ADMINISTRACIÓN DE JUSTICIA.

LEY 734 DE 2002. (febrero 5). por la cual se expide el Código Disciplinario Unico.

Misas Arango, Gabriel. 2005. La Lucha Anticorrupción en Colombia, teorías, prácticas y estrategias. Contraloría General de la República, Bogotá.

35f: In practice, the regulations governing gifts and hospitality offered to members of the national-level judiciary are effective.

Score:

100

Comments: There is a general restriction on members of the judiciary receiving gifts and hospitality from those involved in judicial processes or from functionaries in their same office. In practice, the regime of inabilities and incompatibilities may work as a restriction on receiving gifts, however there is a widespread perception that corruption and bribing are generalized in the justice sector, especially at the local level.

Following the results of a recent survey made among citizens on perceptions about democracy, about 66 percent of respondents considered that corruption of judges is generalized and from all justice institutions, tribunals are the least trusted.

In general, although there are legal frameworks to prevent conflicts of interests, there are still weaknesses in the detection of those conflicts and in the coordination of the institutions that have a responsibility in controlling and preventing conflicts of interest. It is important to note, however, that in recent years, the perception about the existence of petty corruption has decreased in Colombia.

References: Rodriguez Raga, Juan Carlos and Sellingson, Mitchell. 2007. La Cultura Política de la Democracia en Colombia. USAID.

Transparency International. Integridad Pública en América Latina: ¿Contribuye el marco legal latinoamericano a que los funcionarios sean íntegros? ¿Coincide la práctica con la ley?. www.transparency.org/content/download/17926/242560

35g: In practice, national-level judiciary asset disclosures are audited.

Score:

100

Comments: The asset disclosure forms of the judiciary are audited, but there is no mechanism or procedure to ensure regular auditing. As analyzed by the Corporation Transparency for Colombia, there are different limitations in effectively auditing asset disclosure forms. First, habeas data regulations and the public order situation by which citizens can be prey of kidnapping by ransom make disclosure difficult. Second, it is difficult to monitor increases in assets, because they are hidden behind practices such as money laundering, foreign accounts, and the use of legal entities to hide real assets. Third, the information still lacks reliability.

These factors still exist even though Law 190 of 1995 requires all public servants to declare their participation in private affairs, foreign accounts, loans and credits, etc. There is no formal requirement for the independent audit of asset disclosure forms. Law 190 of 1995 only states that this information has to be always in the personnel offices of each entity and is a requirement for taking office. Decree 2232 of 1995 establishes that the responsibility to review asset disclosure forms is responsibility of the chief of personnel in each government entity, but there is no specific regulation for the judiciary. It is stated that the chief of personnel has to review every six months the veracity of declarations using a random selection method.

The Administrative Department for Civil Service has created software called SIDEC to file and monitor asset disclosure forms, representing significant advances in monitoring and systematizing asset disclosure forms. However, there are no statistics on the follow up to asset disclosure forms yet.

According to the most recent index of transparency in public institutions done by the Corporation Transparency for Colombia, overall the judiciary has better scores than the executive and the legislature, and in institutional dimension (where the registry of asset disclosure forms is included) the Superior Council of the Judicature is better than the other high level courts.

References: Corporación Transparencia por Colombia. Indice de Transparencia Nacional, Entidades públicas nacionales. 2006. Bogotá.

Organización de Estados Americanos. 2004. Informe del Comité de Expertos a la Organización de Estados Americanos. Implementación en Colombia de las disposiciones de la Convención Interamericana contra la corrupción.

Corporación Transparencia por Colombia. 2002. El sistema nacional de integridad en Colombia. Análisis y resultados del estudio de caso. Bogotá. Organización de Estados Americanos. 2004. Informe del Comité de Expertos a la Organización de Estados Americanos. Implementación en Colombia de las disposiciones de la Convención Interamerican contra la corrupción.

Peer Review Comments: Asset disclosures by national-level judiciary, technically speaking, are not audited.

Can citizens access the asset disclosure records of members of the national-level judiciary?

36a: In law, citizens can access the asset disclosure records of members of the national-level judiciary.

Score:

YES

Comments: The asset disclosure forms are only available for the general attorney's office, the heads of personnel offices in each entity, and the national registry's office. Asset disclosure records are not easily available for citizens, and there is no specific provision to make asset disclosure forms available for the public. Although any citizen can request information through rights of petition, the nature of asset disclosure forms might be reserved as it refers to personal information. Although there is no habeas data law, according to the Constitution and the rulings of the Constitutional Court, citizens can decide upon the use of information about them registered in databases of public institutions. In sum, common citizens might not be able to access asset disclosure forms of members of the judiciary.

References: Ley 190 de 1995 (junio 6) Diario Oficial No. 41.878, de 6 de junio de 1995 "Por la cual se dictan normas tendientes a preservar la moralidad en la administración pública y se fijan disposiciones con el fin de erradicar la corrupción administrativa."

Constitución Política de Colombia 1991. Art. 15.

Sentencia de Unificación de Jurisprudencia de la Corte Constitucional de Colombia SU-082/95, del 1 de marzo de 1995.

Interview with Rodrigo Lara Restrepo, Director of the Presidential Anticorruption Program. July 19, 2007. Bogotá.

36b: In practice, citizens can access judicial asset disclosure records within a reasonable time period.

Score:

100

Constitución Política de Colombia 1991. Art. 15.

Sentencia de Unificación de Jurisprudencia de la Corte Constitucional de Colombia SU-082/95, del 1 de marzo de 1995.

Interview with Rodrigo Lara Restrepo, Director of the Presidential Anticorruption Program. July 19, 2007. Bogotá.

36c: In practice, citizens can access judicial asset disclosure records at a reasonable cost.

Score:

100

Constitución Política de Colombia 1991. Art. 15.

Sentencia de Unificación de Jurisprudencia de la Corte Constitucional de Colombia SU-082/95, del 1 de marzo de 1995.

Interview with Rodrigo Lara Restrepo, Director of the Presidential Anticorruption Program. July 19, 2007. Bogotá.