2 ColomPBIa 2008

Peace Brigades International (PBI) dedicates this special edition to illustrate aform of repression against human rights defenders that has yet to receivemuch attention: malicious prosecutions based on unfounded accusations.

PBI would like to call on the international community to pay attention to theconsequences of this practice and to encourage it to develop appropriate forms ofaction to protect and maintain the working space of human rights defenders.

Through our work in the field accompanying human rights defenders, PBI hasobserved the destructive effects caused by malicious prosecutions. We have alsoanalysed the context in which they occur, and will present several of these cases inthis report. Due to PBI´s permanent presence in different countries around the world,it has identified similar cases in countries such as Guatemala and Mexico, whichproves that malicious prosecutions are not just a practice in Colombia.

Unfounded criminal charges are directed against a broad range of social sectors,including campesinos, entire communities, the youth movement, professors, membersof religious orders, attorneys, and musicians, all of whom are human rights defenders,because they all promote the recognition of fundamental rights and freedoms.

One of the key issues in these unfounded prosecutions is the lack of guarantees todue process, including the use of false testimony. Using the justice system to initiateinvestigations based on unfounded accusations has very harmful implications onthe work, credibility, social integration, freedom of movement, and economicresources of the human rights defender. Minimum conditions for protecting the workof human rights defenders include respect for due process and refraining from initiatingunfounded cases motivated by political interests.

A psychosocial analysis reveals the broad impact on individuals, their families, andtheir professional and social environment. In the case of unfounded charges,protection requires much more than a legal defense. Protection requires measuresreinforcing the legitimacy, credibility, and self-esteem of the person as well as anappreciation for his or her work.

At the end of this publication, PBI makes a series of recommendations for theinternational community with the objective of putting an end to this practice. Wethank in advance the persons and institutions concerned about the issue of humanrights defenders and committed to their protection.

Thank you for your support and trust in the work carried out by PBI.

Why protect human rights defenders? ........................................................................................................................ 3

Human rights defenders trapped in their own defense .................................................................................................. 4

The use of the justice system to hinder human rights work .......................................................................................... 5

Unfounded criminal charges affect Guatemalan campesinos ....................................................................................... 8

The state of Guerrero, Mexico: an emblematic example ............................................................................................. 9

Legal pressure causes psychological damage ........................................................................................................... 10

Recommendations .................................................................................................................................................... 11

EditorialAppletree Foundation (through PBI UK)

Broederlijk Delen

Cafod

Caja de Burgos (through PBI EE)

Canadian Autoworkers(through PBI Canada)

Catalan Agency for Development Cooperation(through PBI Cataluña)

City Council of Pamplona(through PBI Navarra)

Christian Aid

CMC, Mensen met een Missie

Diakonia Sweden

Government of Cantabria(through PBI Spanish State)

Government of Navarra(through Aldea, Mugarik Gabe y PBI Nafarroa)

Kerkinactie

Ministry of Foreign Affairs, Norway(through PBI Norway)

Ministry of Foreign Affairs, Switzerland(through PBI Switzerland)

Misereor

Oxfam GB

PBI Italy

PBI Switzerland

Rufford Maurice Laing Foundation(through PBI UK)

Spanish Agency for International Cooperation(AECI) (through PBI Spanish State)

Tinsley Foundation(through PBI UK)

Trocaire

Weltwärts (through PBI Germany)

PBI Colombia Funders

Peace Brigades Internationaldoes not assume any responsibility for statements

made by third parties in this publication.

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Summary

3ColomPBIa 2008

Human Rights Defenders

1 Declaration on the right and responsibility of individuals, groupsand organs of society to promote and protect universally recognisedhuman rights and fundamental freedoms adopted by the UnitedNations General Assembly on December 9, 1998 (Resolution 53/144), Article 1.

2 “European Union Guidelines on Human Rights Defenders”,Paragraph 5, 9 June 2004.

3 “Report on the Situation of Human Rights Defenders in theAmericas”, OAS/Ser.L/V/II.124, 7 March 2006.

4 Ibid.5 “Human Rights Defenders”, Report of the Secretary-General, A/

55/292, August 11, 2000.

WHY PROTECT HUMAN RIGHTS DEFENDERS?

T he defense of human rightsrepresents the vindication offundamental values for all human

beings. The right to a defense is relatedto the historical origin of human rightsborn of society´s struggle for theapplication of freedom, equality, andjustice.

The activity of the person definesthe condition of human rights defender.This assertion is supported in the UnitedNations declaration on human rightsdefenders, according to which «everyonehas the right, individually and inassociation with others, to promote andto strive for the protection and realiza-tion of human rights and fundamentalfreedoms»1. Consequently, all personswho strive to promote human rights andfundamental freedoms are human rightsdefenders.

An exhaustive list of activitiesconsidered to be actions relating to thedefense of human rights does not exist.Their achievement is the constant pursuitfor the ongoing transformation ofpolitical, social, economic and culturalinstitutions. Considering the principlethat all human rights and fundamentalfreedoms are equal, indivisible, and inter-dependent, human rights defenders actto promote and protect such diverse civil,political, economic and cultural rights asthe right to life, freedom of expression,and food.

The political dimension of the cultureof human rights involves the participa-tion of persons, as democratic subjects,in the political life of the country. Thiscontribution is based on the notion ofhuman beings as the holders and be-neficiaries of their rights and, therefore,taking on an active role in their achie-vement. Their contribution involves,among other activities, following up onthe actions of the State so that it fulfillsits duty to make effective all humanrights. In this respect, activities leadingto the defense of human rights contributeto strengthening democracy, since thefull respect of human rights and theparticipation of citizens are essentialelements for the legitimacy of ademocracy.

The United Nations GeneralAssembly recognized the importance ofthe work carried out by human rightsdefenders in the promotion of democracy,in resolution 60/161 of 2005, emphasizing«the important role that individuals, non-

governmental organizations and groupsplay in the promotion and protection ofhuman rights and fundamental free-doms, including in combating impunity,promoting access to justice, informationand public participation in decision-making and promoting, strengthening andpreserving democracy».

Likewise, in resolution 2280 of 2007,the General Assembly of the Organizationof American States (OAS) stressed «thatthe protection and promotion of humanrights is legitimate work and that, inthe exercise of their duties, humanrights defenders contribute decisively tostrengthening democratic institutions.

Reaffirming its support for humanrights defenders, in 2004 the Council ofthe European Union adopted theEuropean Union Guidelines on HumanRights Defenders, which indicate that thecritical role of human rights defenderswith respect to the State should not beseen as a negative, since free debate is atried and tested way of establishing abetter level of protection of humanrights2.

In a democratic State, the work ofhuman rights defenders must be protectedand encouraged. The Inter-AmericanCommission on Human Rights (IACHR)asserted this in its report on the situationof human rights defenders in theAmericas3. The need to protect humanrights defenders is linked to the

legitimacy of their activity, which benefitsthe fulfillment of the State�s obligationto guarantee human rights. Hence,their work should not be hindered in anyway4.

States have the obligation ofprotecting, promoting, and makingeffective all human rights and fun-damental freedoms. States also have theobligation of guaranteeing the protectionof human rights defenders as well asthe free exercise of their activities.Furthermore, human rights defendersshould benefit from a special protectionbecause the effect of violations againstthem is to reduce their capacity to defendthe rights of all of society. The effectiveapplication of measures guaranteeingthat human rights defenders may freelycarry out their activities is an indicationof the respect for human rights since, asasserted by the United Nations, humanrights defenders are often the first victimsof violations to these rights5.

The documents of various international authorities highlight the importance of the work of the human rights defendersfor the construction of a state governed by law.

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Colombia

HUMAN RIGHTS DEFENDERS TRAPPED IN THEIR OWN DEFENSE

A great amount of cases of unfoundedprosecutions based on false evidencehave occurred in Colombia. PBI wouldlike to recall just a few of these, whichhave affected persons from diversesectors of society. None of the personsnamed have been convicted. However,most were jailed, stigmatized as beingguerrilla members in the mass media,and have not received any retraction torestore their good name.

Musicians

Pasajeros is a musical group founded in 1991 that was workingwith marginal sectors and social organizations in Antioquia. OnJune 12, 2004, the three members were detained under thecharge of conspiracy to commit terrorism and rebellion, anaccusation based on statements made by seven informants,who alleged that «their music is charged with ideology andencourages the participation in armed groups». The musicianswere released after 173 days of prison, after proving theaccusations had no basis whatsoever. Nonetheless, accordingto their lawyer, the attempts to criminally prosecute them did notcease, which is why the three members decided to go intoexile.

Academics

On September 17, 2004, the university professor AlfredoCorrea de Andreis was murdered by two paid hit men inthe city of Barranquilla. Three months previously, Correahad been detained and accused of rebellion. Correa wasreleased after several weeks in jail, once his lawyerdemonstrated the statements by witnesses had been usedpreviously against another person. One week before hisdeath, Correa had presented a study on the human rightscrisis and the lack of security affecting the internallydisplaced population in the departments of Atlántico andBolívar.

To say Colombia is one of the mostdangerous countries for humanrights defenders is nothing new.

Countless reports draw attention on theshameful numbers of murders, ha-rassment, threats, and public smears orhostile statements against this sector ofthe population. Up to now, however, littlehas been documented on another way ofobstructing or paralyzing human rightswork: malicious prosecutions based onunfounded accusations.

These specious charges are a sadreality for human rights defenders, notonly in Colombia, but in many countrieswhere the human rights movement hastraditionally been repressed in the exerciseof its legitimate work. According to recentreports by such organizations as AmnestyInternational and Human Rights First,in Latin America the governments ofMexico, Cuba, Honduras, Venezuela, andGuatemala have all been responsible forthe judicial persecutions of human rightsdefenders.

According to these reports, actionsby the State hinder the work carried outby these persons, work which includesreiterating to their government itsobligation to protect and promote humanrights. The States� actions also clash with

the recommendations prescribedby the OAS, the United Nations,or the IACHR, stressing the needto create a climate that favors thedefense of human rights.

In Colombia, just as inneighboring countries, humanrights organizations and

different Afro-Colombian,indigenous and campesino communitieshave repeatedly spoken out against casesof unfounded prosecutions which thecontext of Latin America are known as«montajes judiciales». Strictly speaking,criminal prosecution �in other words,investigation and trial� is the rightand obligation of a State, provided theadopted procedures are compatible withthe rule of law and judicial institutionshave well founded grounds to initiate alegal proceedings.

Nonetheless, the use and abuse ofthe judicial system in Colombia, cha-racterized by irregularities, false testimony,manipulated intelligence reports, amongother mechanisms, is framed within acontext of repeated public vilification andharassment of human rights defenders.According to Reinaldo Villalba, a lawyerfrom the José Alvear Restrepo Lawyers�Collective, «this deslegitimization ofhuman rights work, combined with themany cases of criminal prosecution,show that unfounded prosecutions are apart of a systematic repression of anydissident, critical or censorious voice».

Throughout Colombian history,many of the leading human rightsdefenders have been harassed, perse-cuted, threatened, or murdered. Thishostile climate has weakened the humanrights movement and has created ageneralized fear for involving oneself inthe defense of these rights. These formsof repression are very effective, and the

political cost is very high. Nonetheless,unfounded prosecutions go unnoticed bythe international community. Moreover,their effectiveness is undeniable, whetheror not the accused persons are convicted.A criminally prosecuted person and theorganization they are part of will have toinvest much time, money, and energy intheir own defense, to the detriment of theirwork promoting human rights.

To appear in court also casts doubton the credibility and legitimacy of theaffected person, which jeopardizes theirpossible support in the future. Further-more, since criminal prosecution is aform of public smear, it places thephysical integrity of the person at risk,as indicated in the 2002 annual reportby the Office of the United NationsHigh Commissioner for Human Rights(OHCHR).

Moreover, the burden of legal pro-ceedings represents a psychologicalwearing down, both for the affectedperson and his or her social environment.Additionally, the fear and distrust thatarises may result in a breaking-up of socialnetworks, which are the foundation for acivil society conscious and vindicatingof its rights. Lastly, impeding humanrights defenders from carrying out theirwork limits the protection they offer totheir principal beneficiaries, includingcommunities of ethnic minorities, victims,trade unionists, political prisoners and thecampesino population, among others.

In the context of Colombia and othercountries of Latin America, unfoundedcriminal charges against human rightsdefenders become another way tostigmatize persons not conforming to thestatus quo. They are another example ofhow international standards, in particularthe presumption of innocence, are re-peatedly violated.

5ColomPBIa 2008

«T he aim of these unfoundedprosecutions is to produce acriminalization of social action»,

according to Agustín Jiménez, presidentof the Foundation Committee forSolidarity with Political Prisoners, who hasclosely seen the effects of unfounded cri-minal charges against members of his

organization. Cases concerning the Inter-Ecclesiastical Commission of Justiceand Peace, the Corporation for JudicialLiberty, and the Foundation Committeefor Solidarity with Political Prisonersare presented below. These threeColombian organizations accompaniedby PBI are voices from civil society

demanding respect for human rights,each with their own approach to theproblem. Based on these exemplary ca-ses, the common characteristics ofunfounded prosecutions will be identifiedas well as their repercussions in theaffected persons and their organizationsor communities.

The Church

In the department of Tolima, the Attorney General´s Office broughtMonsignor José Luis Serna to trial in 2003 for his supposedcollaboration with guerrilla groups when he was the bishop ofthe Diocese of Líbano and Honda. As witnesses in this case,former guerrilla members of the National Liberation Army (ELN)accused the religious leader of having coordinated kidnappingsand the payment of ransoms for their liberation. Severalcontradictions undermined the veracity of these testimonies.Later, it was discovered that an agent from the Unified ActionGroup for Personal Liberty (GAULA) had given the reintegratedcombatants a list of persons to accuse of rebellion, includingMonsignor Serna, in exchange for financial benefits.

1 Resolution of dismissal: Filing of a case due to not finding merit to open a formal investigation.2 “Proceso 1701 – Inhibidos de los cargos de rebelión integrantes de Justicia y Paz”, Executive Report 12, Inter-Ecclesiastical Commission of Justice

and Peace, 12 February 2005.3 “Presiones militares y amenazas a un nuevo proceso judicial contra Justicia y Paz”, Executive Report 13, Inter-Ecclesiastical Commission of Justice

and Peace, 21 February 2005.4 “Los defensores de derechos humanos frente a la política de seguridad”, International Federation of Human Rights, 13 April 2004.

Inter-Ecclesiastical Commission for Justice and Peace (CIJP)

Miners and Campesinos

Teófilo Acuña, president of the Agro-MiningFederation of Southern Bolívar, was detainedfor 10 days in April 2007. Members of theArmy's Nueva Granada Battalion, who hadviolently entered the Federation's office,accused him of being a member of theELN. Acuña played an important role in thedefense of natural resources in the region.He recovered his freedom after theprosecutor in charge of the case found noevidence to substantiate his detention.Nonetheless, the case remains open.

Human Rights Organizations

The office of the Sumapaz Foundation, a human rightsorganization from Medellín, was searched in March 2005with the purpose of uncovering evidence to establishlinks between the organization and the insurgent groupcalled the Peoples' Revolutionary Army (ERP). Hoursbefore the search, Alejandro Quincena, member ofSumapaz, was arrested under the accusation of beingan ERP member. Quincena was jailed for three months,and kept under house arrest for another three, until hiscase was dismissed, after demonstrating contradictionsbetween the testimony made against him and theevidence presented by State security agencies.

Colombia

The people living in remote areas of Colombia, such as themembers of the communities of Cacarica, Curbaradó andJiguamiandó, have also been forced to defend themselvesagainst unfounded accusations. (© Jorge Mata/Surimages)

THE USE OF THE JUSTICE SYSTEM TO HINDER HUMAN RIGHTS WORK

CIJP accompanies victims of humanrights violations and in particularinternally displaced communities

living in humanitarian zones and areas ofbiodiversity. In May 2003, the Office ofthe Attorney General opened a preli-minary investigation against five CIJPmembers. Specifically, they were chargedwith rebellion, conspiracy to commit acrime as members of the RevolutionaryArmed Forces of Colombia (FARC), andordering murders and forced disap-pearances. During a press conference,convened by the then commanding generalof the armed forces, in August 2003, thoseunder investigation were accused of beingresponsible for corruption and for tieswith the FARC. However, at the beginningof 2005, the Attorney General´s Officeissued a resolution of dismissal1 when itdetermined that the evidence was basedon false testimony2.

In 2004, in parallel to the previouslydescribed case, the Attorney General´sOffice opened another case implicatingan additional fifteen people from theHumanitarian Zones of the Curbaradó andJiguamiandó (Department of Chocó) Afro-Colombian collective territories. Severalof the CIJP members, already investiga-

ted in the previous case, were newlyimplicated through false testimonies inthese new proceedings. The personsbeing investigated only learned of thecase against them in 2006.

Both these prosecutions are basedon statements by the same witnesses,statements proven to be false andcentered on the same issue, namely theCIJP-advised communities and leadersorganizing their survival and returnprocesses after they were forciblydisplaced ten years ago from the riverbasins of the Cacarica, Jiguamiandó, andCurbaradó.

A third case came before the AttorneyGeneral�s Office against CIJP and mem-bers of these same communities andcommunity councils in which more than20 persons were issued arrest warrants.Additionally, in February 2005, CIJPlearned of another criminal charge lodgedbefore the Attorney General´s Office inRío Sucio, which newly investigatedseveral members of CIJP, coordinators fromthe communities of Jiguamiandó andCacarica, and international accompaniers3.

The cases against CIJP and the Afro-Colombian communities of Jiguamiandó,Curbaradó and Cacarica clearly demonstratethe arbitrary nature of many of theseprosecutions. In the different investigations,the same evidentiary material was usedeven though it had been dismissed anddiscredited in the first case. This constitutesa failure to abide by the principle of reaso-nableness. Lastly, as expressed by the In-ternational Federation for Human Rightsin its 2003 annual report, the statementsmade during the press conference organizedby the commanding general contributed«to the stigmatization and discredit of thisassociation»4, and violated PresidentialDirective 07 and Ministry of DefenseDirective 09, which prohibit public officialsfrom issuing statements stigmatising thework of human rights organizations. «Publicvilification by government officials is a partof the strategy, as it clearly has conse-quences on the criminal prosecutions»,stated Abilio Peña from CIJP.

6 ColomPBIa 2008

Campesino Organizations

Six members of the Peasant Farmer Association of the CimitarraRiver Valley (ACVC) are presently detained in a maximum-securityprison in Bucaramanga, all charged with rebellion. Four of them havebeen imprisoned since September 2007, waiting for the preliminaryinvestigations to conclude. The Association has learnt of another fivearrest warrants against their campesino leaders, meaning that at thismoment all former members of their board of directors are in prison orunder the threat of imprisonment. In addition to these detentions, otherattacks have been carried out against members of the organization andthe people living in the Cimitarra River Valley. During the last ten yearsthey have been victims of murders, threats, arbitrary detentions, internaldisplacement, forced disappearances, torture, the burning of their houses,and military or armed blockades of food and medical supplies.

Corporation for Judicial Liberty (CJL)

Foundation Committee for Solidarity with Political Prisoners (FCSPP)

Youth Organizations

Since 2002, the lawyer Claudia Montoyahas been involved with the Youth Networkof Medellín, an antimilitarist and non-violentorganization. In October 2002, she wasdetained for the crime of rebellion, an accu-sation based on testimony of reintegratedcombatants, who indicated she was amember of the guerrilla. She was jailed for49 days and was under house arrest foranother 30 days. In January 2007, theAttorney General's Office issued a resolutionto close the investigation and Montoya wascompletely exonerated.

The lawyer Elkin Ramírez, from the Corporation for JudicialLiberty, represents merely one of the cases of human rightsdefenders that have to dedicate time and resources to defendtheir work in front of the justice system.

Colombia

Principe Gabriel González from FCSPP, and his wife BanessaEstrada Martínez, celebrating his release from jail afterone year and three months of imprisonment.

5 “Combinación de todas las formas de guerra contra la Corporación Jurídica Libertada”, Corporación Jurídica Libertad, Medellín, mayo 28 de 2007.6 Ibid.7 “Denuncia pública”, Corporation for Judicial Liberty, 18 August 2006.8 “2005 Annual Report”, Amnesty International, 2005.9 “El Observatorio”, Observatory for the Protection of Human Rights Defenders, Bulletin No. 42, COL 001/0106/OBS 004.1, 12 April 2007.

CJL carries out the investigation anddenunciation of human rightsviolations and in recent years has

focused on the issue of extrajudicialexecutions. In May 2007, the CoordinationColombia - Europe - United States andthe Seeds of Liberty Human RightsCollective published the report Extra-judicial Executions: Case EasternAntioquia, based primarily on CJLdocumentation, and denounced thatmembers of the Army�s IV Brigade wereresponsible for some 110 homicides. Thethen commander of this brigade describedthis publication as «part of the politicaland legal war» carried out by NGOsagainst the army5.

Within this context, CJL learned thata criminal investigation had been inexistence against CJL lawyer ElkinRamírez for the crime of rebellion sinceNovember 2006. However, in a joint mee-

ting convened by the OHCHR in February2007 to clarify the legal situation of theCJL lawyers, members of the judiciaryand the security forces failed to confirmthe existence of a criminal case againstmembers of this organization.

In 2005, criminal charges were lodgedagainst Ramírez and others for the crimeof defamation, motivated by the differentreports presented by this lawyer beforethe Inter-American Commission on HumanRights. The case was closed after provingno criminal conduct existed whatsoever6.Another CJL lawyer, Bayron Góngora, wasalso the object of a possible unfoundedprosecution. According to CJL, in August2006, members of the Metropolitan Policeof the Valle de Aburrá (Department ofAntioquia) visited prisoners in several jailsto «invite them», in exchange for legal andeconomic benefits, to acuse Góngora ofbeing a member of a guerrilla organization7.

In the case against CJL, the exerciseof defense was obstructed by the fact thatthe existence of legal proceedings wasnot disclosed to the persons beingprosecuted. Just as in the case of CIJP,the evidence consisted of false testi-monies and the case coincided with otherpublic smears by army officers.

As the coordinator for the FCSPPchapter in Bucaramanga, GabrielGonzález worked on the docu-

mentation and denunciation of humanrights violations, especially the rights ofthe prison population. In July 2005, hedenounced the threats, surveillance, andharassment he was the target of beforethe Attorney General´s Office. Never-theless, his situation worsened to theextent that he was forced to move to Bo-gotá. The Ministry of Foreign Affairs, theVice-President�s Office, and the Ministryof Interior reinforced his security detail.

In these circumstances, Gonzálezwas detained and charged with rebellionin January 2006. His case was based ontestimony provided by two reintegratedcombatants and intelligence reports bythe Technical Investigation Unit (CTI) of

the Attorney General´s Office. One of thewitnesses made a declaration filled withcontradictions. Another witness came toa FCSPP office denouncing he had beenforced to testify against Gonzálezthrough the threats made by the policeand the CTI. The intelligence reportsindicated González belonged to theFARC, but did not mention any sourceto support this accusation8.

Moreover, Gonzalez�s detention wasexcessively long: he was released afterone year and three months ofimprisonment after being acquitted by theCriminal Court of Bucaramanga9.

Nevertheless, since there was no publiceffort to restore his good name, due tothe public vilification he was subjectedto, he and his colleagues fear for hissafety, his physical and psychological

7ColomPBIa 2008

Communities

In 2003, members of the Community for Self-Determination, Life and Dignity of Cacarica (CAVIDA)(Department of Chocó) and five members of the Inter-Ecclesiastical Commission of Justice and Peace learnedof legal proceedings against them during a pressconference by the then commanding general of the armedforces. On that occasion, specious accusations werepresented of links between CIJP, CAVIDA and the gue-rrilla, and the misappropriation of funds. This informationwas broadly disseminated by the mass media, but in2005 the Attorney General´s Office compelled to issue aresolution to dismiss the case because no evidencewas found to substantiate the accusations.

Colombia

Iván Cepeda, one of the spokespeople of the VictimsMovement, during the event organized in San Onofre.

10 “Colombia´s Human Rights Defenders in Danger, Case Studies ofUnfounded Criminal Investigations against Human RightsDefenders”, Human Rights First, September 2007.

11 “El Debido Proceso en las decisiones de los órganos de controlconstitucional de Colombia, Perú y Bolivia”, Andean Commission ofJurists, http://www.cajpe.org.pe/guia/debi.htm.

12 “Report on the Situation of Human Rights Defenders in theAmericas”, Inter-American Commission on Human Rights, Doc. 5Rev. 1, OEA/Ser.L/V/II.124, 7 March 2006.

The location of the cases of unfounded chargespublicized in this bulletin.

Pattern of irregularities

integrity. It should also be mentioned thethreats he received and denounced inJuly 2005 have yet to be resolved10.

Over the last years, FCSPP has beenaffected by other similar cases of criminalprosecutions and prolonged detentions.Yolanda Amaya was detained for two anda half years until she was finally declaredinnocent.

In 2004, an army intelligence reportaccused lawyer José Humberto TorresDíaz of belonging to an insurgent group.An investigation was initiated, but wasthen closed due to lack of evidence.However, the public smears resultingfrom the investigation caused para-military groups to harass him and Torres

With respect to the FCSPP cases, itshould be stressed that criminalinvestigations were initiated and arrestwarrants were issued based on speciousand contradictory evidence, whichresulted in the prolonged detention ofthe accused persons. These actionsmay constitute a violation to the pre-sumption of innocence, as indicated bythe IACHR11. Additionally, this insti-tution recommends that «states mustguarantee that no human rights defenderwill be subjected to detention or im-prisonment by causes and methodswhich, even if considered legal, may beincompatible with respect for thefundamental rights of the person»12.

Díaz was forced go into exile in Spain forsix months.

There are many more cases like these.In an interview with PBI, ReinaldoVillalba, member of the José Alvear

Restrepo Lawyers� Collective (CCAJAR),mentioned that «in its 25 years ofexistence, the Lawyers� Collective hashandled thousands of cases of unfoun-ded charges against grass root leadersand representatives of communities andsocial organizations». Most of the casesdemonstrated the same irregularities seenin the three previously mentioned cases,such as false testimonies by paid wit-nesses or reintegrated combatants,obstruction to the access of defense,manipulated evidence, and source lessintelligence reports.

With respect to the Attorney Ge-neral´s Office questionable handling ofthese cases, there is a strong contrast inhow cases denouncing human rightsviolations are kept at a standstill for years,while investigations against human rightsdefenders are carried out much morevigorously. «There is a clear imbalance inthe way in which the public prosecutorsact when it concerns investigatingpersons accused of links with parami-litaries and those who accuse [these

people», stated Iván Cepeda, one of thespokespeople for the Victims� Movement,when he explained the case of slander hefaced after publicly presenting a denun-ciation against a member of congress forhaving links with paramilitaries andconspiring to murder a member of theDemocratic Pole party. «The imbalance isevident in the course of the cases. Theprinciple of justice �of independence� isnot being applied. If they were inde-pendent and neutral, the cases wouldhave to be investigated in the samemanner», commented Peña from CIJP,comparing the investigations initiatedagainst this organization and crimesdenounced by the NGO over ten yearsago, which remain in impunity.

On several occasions, unfoundedcriminal charges coincide with smears bypublic servants. These public smears andthe criminal prosecutions that precede orfollow them almost always occur wherethe person has testified against theactions of State actors or of certaineconomic or political interests. Cepedaconfirms this in the context of the diffi-culties faced by the Victims� Movementin Colombia: «There is an attempt tosilence the Movement�s investigationsand cases searching for the truth».

These human rights defenders, thevictims of malicious prosecutions, face anumber of different consequences,including fear, self-censure, loss ofeconomic resources, paralysis of theirwork, loss of trust and support, risk tophysical integrity, and rupture of socialnetworks due to distrust and fear, amongother factors.

In the case of internally displacedcommunities, unfounded criminal chargeshave even more impact. Peña from CIJP

indicated that the communities managefear in a different manner, since they needmore time to understand the interestsbehind the malicious prosecutions and«to become conscious of the implicationsof the actions in law». Likewise, Peñamentioned the isolation of the commu-nities and the physical risk involved forthose subjected to unfounded criminalcharges who live in highly militarizedareas and run a high risk of beingarbitrarily detained, which in practice leadsto a confinement of the communities.

In large part, the consequences ofmalicious prosecutions based on un-founded accusations are similar to thoseresulting from other methods of re-pression. Furthermore, analyzing theaffected persons, it could be consideredthat spurious prosecutions of humanrights defenders «are part of a strategy tosilence human rights defenders», asstated by Hina Jilani, UN Special Ra-pporteur on Human Rights Defenders.

8 ColomPBIa 2008

Guatemala

P BI Guatemala Project accompanies Julio Archila, co-founder and legaloutreach worker from the Campesino Workers Movement (MTC). Thismovement brings together campesino community associations working to

defend their labor rights. Since 2005, Archila and his family have endured severalacts of intimidation and threats due to their fight for campesino rights. In 2007,Archila was accused of theft, evasion, and coercion and threatened with a 40 yearprison sentence, even though the worth of the supposedly stolen coffee did notexceed 200 US Dollars.Julio Archila and his son, accompanied by a PBI volunteer, during

his hearing.

UNFOUNDED CRIMINALCHARGES AFFECT CAMPESINOS

Last year on November 15, the cam-pesinos from the Las Delicias estate,who had been advised by Archila intheir action to seek payment for theirwork and the benefits they were owed,finally reached an agreement with theowner, who agreed to pay them500,000 quetzales (equivalent to66,000 US dollars). Furthermore, theowner promised to drop the chargesagainst Archila and his son. Finally,the campesinos were able to purchasea new estate in January 2008 andnow are in the process of constructingtheir new community. At the time ofpublication, the promise to drop thecharges against Archila had yet to befulfilled.

Is there currently a case being broughtagainst you and your son? Can you tellus more about this?Yes, there is a judicial process open againstme. It is unfortunate and sad; becauseone works honorably fighting to achievethe fundamental rights of campesinoworkers on the estates, while the businessinterests seek ways in which to make ourwork more difficult.In November 2005, my son and I boughtcoffee from Mr. Eduardo Chalet from theLas Estrellas plantation. While we weretransporting the coffee, we were arrestedby the police and the inspector from theLas Delicias farm, which borders theplantation. They claimed the coffee wasfrom that estate. The business people fromLas Delicias have accused us of theft,evasion, and coercion.

Has the court issued a final judgment?Up to now, a final decision has yet to bemade in the case against us. There was asix-month investigation, during which wehad to register ourselves every two weeksat the Peace Court in San Pablo. Later, inJune, our hearing was held and the judgeruled in our favor. He said sufficientevidence did not exist. In other words,what the company was accusing us waslegally demonstrated to be false.However, the case was then taken to theappeals court in Quetzaltenango. In July,the judges revoked their decision andestablished a six-month period toinvestigate the evidence again.

Do you think your case is connected toyour work with MTC?Yes. I am training campesinos in laborrights so they can demand these rightsfrom the estate owners. For instance, inthe specific case of the community fromthe Las Delicias estate, MTC is advising26 campesino families in the fight for theirlabor rights and the payment of theirwages, which the owner owes them since2001.

Have you been intimidated or threateneddue to your work?I �as well as my family� have beenthreatened and intimidated. Some armedmen came looking for me on some of myuncle�s land in San Pablo. When the casewas initiated against me and my son atthe end of 2005, we also heard rumorssaying it would be easier to kill me thanimplicate me in a legal case, which is muchmore expensive and longer.

We have seen cars come and park in frontof the house in order to watch us.Sometimes the persons in the cars havebeen armed.

Have you received more threats becauseof the case?Yes. In the hearing in June, two pick-uptrucks with armed men inside were parkedin front of our house. For me, this is aclear sign of intimidation. And when wewere at the court, the owner came withhis bodyguards, without exaggerating,some ten well-armed persons. It was notjust intimidating for me, but also for myfamily and my colleagues.

There have also been indirect threatsagainst the work of MTC, defamation,rumors against me and other colleagues,rumors that foretell of forced evictions inestates where campesinos seized land inthe demand for their rights.

How does this case affect your private lifeand work environment?In a way, it has been a succession ofadversities, since one knows the familysuffers and one has to support them, butour strength is limited. With the intimi-dation, we are afraid something couldhappen to us. Now with this legal process,my family has many concerns, especiallymy son Antonio, who faces an uncertainsituation with regard to his future.

Of course, in the same way, all of theseconcerns also affect labor conditions. To

have to go register yourself at the peacecourt is an imposition on your time. Youhave to be much more careful with yoursecurity situation. Presently, we areaccompanied by PBI, which we requestedafter the prosecution was initiated. Thisaccompaniment has strengthened us andhas helped us continue with our work.And thanks to God, now we are alsostrong spiritually.

Do you know of other cases of criminalcharges against human rights defendersin Guatemala?There are colleagues with criminalcharges, but right now I would especiallylike to mention three colleagues fromMTC who have security problems dueto their fight for a more dignified lifein the San Marcos communities. JoséRamo and Luciano Ramírez have beenthreatened for defending their laborrights. Additionally, José ManuelMorales is threatened due to his fight todefend the natural resources in the regionof San Rafael, where there is a hy-droelectric construction project.

9ColomPBIa 2008

Mexico

THE STATE OF GUERRERO: AN EMBLEMATIC EXAMPLE

1 “Campaña de Desprestigio contra Defensores de Derechos Humanos en el Estado de Guerrero”, ‘All Rights for Everybody’ National Network ofCivilian Human Rights Organizations, September 23, 2004.

2 “La Represión y el Encarcelamiento como Método de Atención a los Conflictos”, Tlachinollan Human Rights Centre, Chilapa Citizen’s Council,Council of Ejidos and Communities Opposed to La Parota, Carrizalillo Community Authorities, Regional Council for the Development of the Me´phaaBathaa Peoples, José María Morelos y Pavón Regional Human Rights Centre, November 12, 2007.

3 “Diagnóstico sobre la Situación de los Derechos Humanos en México”, Office of the High Commissioner for Human Rights, December 2003, page 11.4 Tlachinollan Human Rights Centre, ob cit.5 “Acción Urgente”, Tlachinollan Human Rights Centre, August 10, 2007.6 La Jornada Guerrero, October 14, 2007.7 El Sur, August 13 and October 16, 2007.8 “Boletín de prensa”, Tlachinollan Human Rights Centre, October 19, 2007.9 “Urgent Action”, Amnesty International, AI Index: AMR 41/019/2007, May 2, 2007.

Map of the state of Guerrero, Mexico.

The PBI Mexico Project has carriedout accompaniment work in theState of Guerrero since 2001. This

state has been shown to be a paradig-matic example of the situation expe-rienced by human rights defenders andleaders of social movements, who havebeen victims of discrediting, threats,intimidation, persecution, and criminalprosecution by the authorities to punish,obstruct, or impede their human rightswork1. In 2007, social and human rightsorganizations were particularly outspokenabout the lack of dialogue offered by thenational government in response to thesocial conflicts and demands2. Accordingto these organizations, repression and theuse of the criminal justice system doesnot resolve the root problems; instead,the problems are worsened.

In 2003, the Office of the UnitedNations High Commissioner for HumanRights in Mexico (OHCHR) indicated theneed to reform the Mexican justice systembecause «the absence of due process inMexico [...] allows persons to be jailed forpolitical motives by charging them withcommon crimes»3. The lack of dialoguehas caused the organizations to carry outactions such as occupying public spacesor blocking highways so their demandscould be heard. According to the Tla-chinollan Human Rights Centre, «thepublic institutions, including the Officeof the State Attorney General, have beenmotivated by evident political criteriawhen dealing with enforcing the law onsocial activists»4.

For instance, on November 8, 2007,José Manuel Olivares Hernández, directorof the José María Morelos y PavónRegional Human Rights Centre and wellknown human rights defender wasdetained while documenting policeabuses during a social protest lead by theChilapa Citizen�s Council. The municipalassistant gave the order to detainOlivares: «detain this jerk that is causingus problems». Olivares Hernández arguedin vain that he was only carrying out hiswork as a human rights defender and thathe was not participating in the blockades.The protesters were beaten and 15 of themwere arrested. On November 9, they werereleased on bail, and although they wereall accused of the same crimes, OlivaresHernandez�s bail was much higher thanthat of the other detainees.

This is not an isolated case. The mo-vements demanding respect for theindigenous population have also beenaffected by the arbitrary detentions in thestate of Guerrero, as seen in the followingcases:

In August 2004, David ValtierraArango, leader of Radio Ñomndaa, theindigenous community radio station inthe municipality of Xochistlahuaca, wasdetained and accused of unlawfuldeprivation of liberty5. On October 13,Cirino Plácido Valerio, founder andcouncilman of the Regional Coordinationof Community Authorities, which is acommunity police force, was detainedunder the same charges, as well as for theabuse of authority and the impersonationof a public officer6. Both were releasedon bail7. In the opinion of these orga-nizations, their members are criminalizedfor exercising their right to the freedom ofexpression through the use of the radio,and for enforcing their own legal systemto administer justice within their com-munities.

In October 2007, Cándido FélixSantiago, director of the Regional Councilfor the Development of the Me�PhaaPeoples, was arrested and accused ofattacking communications networks8.Félix Santiago has led a series of proteststo demand the fulfilment of agreementsalready signed with the governmentconcerning the education of the Me�PhaaPeoples in their own language. This washis fourth detention in 2007.

Lastly, Rodolfo Chávez Galindo wasdetained in April that year. He is one ofthe members of the Council of Ejidos andCommunities Opposed to La Parota,CECP, a hydroelectric dam to beconstructed in the state of Guerrero. Thepolice had used an arrest warrant that hadbeen cancelled in 2004. Local humanrights organizations secured the releaseof Chávez later that day, emphasizing thefact his illegal detention had beenpolitically motivated9.

10 ColomPBIa 2008

Psychosocial impacts

LEGAL PRESSURE CAUSES PSYCHOLOGICAL DAMAGE

AVRE Corporation has been carrying out interdisciplinary psychosocial and mental health work in Colombia with afocus on human rights since 1992. In this interview, three professionals from the organization explain how the psychosocialimpact caused by spurious criminal charges not only affects the victim, but also the entire organizational, family and

social environment. This impact is similar to psychological torture and has an evident purpose of breaking people down,undermining opposition, and destroying the social and community fabric.

With respect to your work assistingvictims of political violence, do you haveexperience working with persons orcommunities affected by unfoundedprosecutions?Yes, we offer individual clinical consul-tations here in Bogotá and in differentparts of the country. As we have ob-served, it is not only the unfoundedcharges against a single person, but alsoa series of actions against what theperson represents. There are many otheractions �legal or otherwise�, whichsurround the specious accusations andcast doubt, uncertainty, and fragmentationon the collective action, includingincreased military presence in the organi-zation�s areas of influence, furtherstigmatization and intimidation, andsurveillance of family members and theactivities of the organization.

What psychosocial impact is caused bythese unfounded charges?It is something that touches absolutelyevery aspect of life. It affects the personand family. A very considerable uneaseeven develops within society. We haveidentified an increase in irritability, distrust,rage, and indignation. People often do nothave anywhere to place these sentiments,which often comes back to haunt them oraffects their interaction with family andfriends, causing pessimism, hopeless-ness, and distrust. When a human rightsdefender goes from accuser to accused,these manifestations are reinforced, whichcan result in a loss of confidence inoneself, a lack of belief in society and inthe conception of justice. We find thereto be greater vulnerability in physical andmental health. There are also elementssimilar to psychological torture, such asongoing hyper-watchfulness due to thefear of being harmed. This can reach a

breaking point when the person is not ableto be their former self again.

How long may this impact last?The effects can become permanent. Theycan cause emotional wounds if one doesnot recognize what is happening and doesnot take the appropriate measures. Fur-thermore, reliving what happened �recei-ving phone calls, seeing unknown persons,knowing they have the personal infor-mation of your family� perpetuates thisimpact. This is especially true when thesetting of impunity has remained in place.

Do unfounded prosecutions also have animpact on the family of the personsdirectly affected?Of course, it affects all intrafamilydynamics. The young suffer from wavesof sadness and rage. They see limitationsto their life in the future. Their partner andchildren also develop contradictoryfeelings: «I admire you for what you do,for what you fight for, but at the sameyou are affecting my life». Moreover, thereis much ambiguity concerning theauthority figure within the family. Pastconflicts are taken up again and, hence,along with the anguish and fear for thecriminally prosecuted family member, thenuclear family is weakened.

From the psychosocial point of view, howhave the unfounded criminal chargesaffected the organizations?The strategic objective of the State is to«break the organization». The «spu-rious charges» thwart response capabilitybecause no one is directly threatened. Noone is being disappeared. It is much moresubtle. Little by little, these investigationsparalyze people, who decide to progres-sively give up what they have been doing.What happens to the criminally prose-

cuted leaders �or those deprived theirliberty� affects other aspects of the samecommunity, creating a climate of anxietyand uncertainty and causing the comm-unity to halt their actions. The membersof the organization fear that what hap-pened to their leaders may also happento them. The collective also experiencesthis hopelessness.

Is this impact intentional or collateral?The impact has the purpose of permeatingeverything: the individual, the family, andthe collective. The three levels are wellrelated and the purpose is evident: ifharm is caused to the individual, there areconsequences in other areas. If confidenceis undermined in the human being, thefamily, and the organization, the oppositionis also undermined. This is a clear purpose.

How do these kinds of unfoundedcriminal charges affect the imaginationof Colombian society? And whatconsequence may this have?The consequence is an apparentpolarization of Colombian society. Humanrights defenders are stigmatized, becausethey are presented as persons hinderingthe development of society and deservingpersecution. This creates paralysis in thedevelopment of civil processes and hastransgenerational impact.

In this context, what role can be played bypsychosocial work?Our duty is to decipher the hiddenpurpose behind these apparently erraticactions. It is important to carry outcomprehensive support and strengthenthe individual, the family, and theorganization so the perverse effects ofmalicious prosecutions do not achievetheir objective of fracturing and breakingup the social fabric.

«Jail created a label, which has made relationshipsdifficult with acquaintances and friends, since somepeople will always wonder if I really was a terrorist asthe Public Prosecutor’s Office stated. On the other hand,there is the exasperation when the issue is mentionedas well as the self-prohibition of remembering suchpainful moments such as the day I entered the jail».Claudia Montoya, lawyer at the Youth Network of Medellín.

«It is logical to imagine the existential turmoil for familyrelations caused by the deprivation of liberty, giventhat the loss of my freedom, as well as the coverage

given by the news, created an environment of anxiety,uncertainty, and anguish, compounded by an acutestress, and an even more complex smear in certainsocial spaces of my personal and family life thatmisinterpreted the situation and immediatelycondemned me». Alejandro Quincena, human rightsdefender in Medellín.

«His mom used to call me up with anguish. She thoughtit was unjust, that fighting for the people wasn’tworth the trouble, because it only caused problems.Gabriel’s family was very upset with him, with his

radical position, with the FCSPP, truly with muchhopelessness. Gabriel told me he wanted to commitsuicide, that he felt very alone, that he was worriedabout the situation in jail, because it was said that theparamilitaries were going to come in and there wouldbe confrontations. I told him: ‘You have a family, youhave a son, and this situation was not going to lastthe rest of his life. You are worth a lot, your work isworthwhile, and you are in jail due to an injustice».Banessa Estrada Martínez, wife of Gabriel González, coor-dinator of the FCSPP Santander chapter.

11ColomPBIa 2008

Recommendations

1 Recommendation number 8 (Paragraph 135) from the 2004 annual report (Session 61, February 2005), recommendation number 6 from the 2005 annual report (Session 62, January 2006, Appendix 1) and recommendationnumber 13 (Paragraph 125) from the 2006 annual report (March 2007) from the United Nations High Commissioner for Human Rights on the Situation of Human Rights in Colombia.

1. Reiterate to the Colombian State its obligation to respect the presumption ofinnocence, to not initiate legal proceedings based on uncorroborated intelligencereports or manipulated testimony, and ensure the right to defense. Furthermore,the State should guarantee that no human rights defender is subjected to detentionor imprisonment through grounds and methods, while still being legal, may beconsidered incompatible with respect to fundamental rights.

2. Monitor cases of legal investigations initiated against human rights defenders,principally when the grounds for these investigations are their very activities to defendhuman rights. Under these circumstances, it could be suspected the investigations arestimulated by political motives.

3. Urge the Colombian State, in accordance with its international obligations, toactively recognize and support human rights defenders and the legitimacy oftheir work and provide a system of comprehensive reparation, including themoral reparation of the affected human rights defender.

4. Request the Colombian State to implement the repeated recommendations of the Officeof the United Nations High Commissioner for Human Rights1. Specifically, therecommendation referring to the revision of the military intelligence files by theProcurator-General's Office so as to exclude baseless, erroneous or biased information,which incriminates or falsely accuses human rights defenders.

5. Remind senior officials from the Colombian State of the applicability of PresidentialDirective 07 (1999) and Ministry of Defense Directive 09 (2003), which prohibitState officials from making groundless accusations against human rightsdefenders, and insist that institutions and senior public officials develop a cultureof support for the service provided by human rights defenders to democracy asan important means of control by civil society.

6. Establish indicators that allow governments and aid agencies to develop certificationparameters for the conditioning of official development aid to the fulfillment ofguarantees to due process.

PBI recognizes that every State demonstrates the existence of the rule of law when accusations against those presumedto be responsible for committing criminal acts lead to legal investigations in which the guarantees to due process arerespected.

However, PBI, through its work accompanying human rights defenders and providing international observation, has observedwith concern a pattern of harassment through judicial persecutions against human rights defenders, as has been presented in thispublication. PBI observes that the unfounded prosecution of human rights defenders hinders the work of those affected,questions their legitimacy, and even violates their safety and integrity.

PBI makes the following recommendations to the international community: