(Washington, DC, March 11, 2021) – A presidential decree approved by Bolivia’s Congress in February 2021 opens the door to impunity for serious crimes, Human Rights Watch said today.
The decree provides a blanket amnesty to people prosecuted during the previous government for crimes related to the “political crisis” that started in October 2019. It appears designed to favor supporters of the pro-government party Movement to Socialism (MAS, in Spanish).
“There is strong evidence indicating the previous government persecuted MAS supporters in politically motivated cases,” said José Miguel Vivanco, Americas director at Human Rights Watch. “But granting a blanket amnesty to MAS supporters without clear criteria undermines victims’ access to justice and violates the fundamental principle of equality before the law.”
Instead, prosecutors and judges should review all cases and withdraw or dismiss baseless or disproportionate charges, and in cases in which there were due process violations, apply the remedies provided by Bolivian law, Human Rights Watch said.
Bolivia’s Congress, the Plurinational Legislative Assembly, where MAS has a majority, approved the decree on February 12. President Luis Arce, from MAS, enacted it on February 18.
After approving the decree, the Senate president, MAS leader Andrónico Rodríguez, said it will apply to his “brothers” and “colleagues” who opposed the government of former interim President Jeanine Áñez, and “have been harmed for absolutely no reason.” “What we want is that they be freed from any criminal charge,” he said. He said that the decree would be applied to “more than 1,000 people,” but neither he nor the government have published a list or any details about the specific cases.
The vagueness of the decree’s language allows for an overly broad interpretation of what crimes can be amnestied or pardoned. This is particularly problematic because legal interpretation of the decree rests with executive branch offices that lack the necessary independence, with no meaningful judicial review, Human Rights Watch said. Those offices will only have three working days after an individual files a petition to review the case and make a decision, an extremely short time period for a thorough review.
The decree can potentially result in amnesty for arson, abduction, murder, and other very serious crimes allegedly committed by MAS supporters, as Human Rights Watch documented in a September 2020 report.
The decree grants amnesty to people “who were criminally prosecuted during the de facto government, in clear violation of human rights [and] Constitutional guarantees and freedoms, for allegedly committing crimes directly related to social conflicts as part of the institutional [and] political crisis of the State that occurred in the country from October 21, 2019 to October 17, 2020.” Another article grants a pardon to people convicted of crimes “directly related” to those same social conflicts, though the decree excludes certain serious offenses from the pardon.
The decree does not provide any explanation of what crimes prosecuted during the Áñez government should be considered “directly related” to those social conflicts.
While the decree generically references “clear violation[s] of human rights [and] Constitutional guarantees and freedoms” as the justification for the amnesty or pardon, it does not lay out any mechanism or criteria to determine if those rights were violated in specific cases. Accordingly, there is a risk that the amnesty and pardon will be applied widely to cases that did not involve rights violations, Human Rights Watch said.
Other sections of the decree suggest that anyone prosecuted by the Áñez government for actions during social protests had their rights violated. Its preamble says that although “the events during recent political and institutional crisis can formally be considered crimes,” the “intention” of those who committed them was clearly not to break the law, but rather they were protesting “to defend democracy and civil and political rights.” Prosecution of those actions by the previous government was “evident political persecution,” the decree says.
Another article states that the purpose of the decree is to “reestablish civil and political rights” for those who were prosecuted “as a consequence of political and social conflicts, characterized by massive and generalized violations of fundamental rights and constitutional guarantees, that occurred during the political [and] institutional crisis of the State that occurred in the country between October 21, 2019 and October 12, 2020.”
The decree also grants amnesty and pardons to certain categories of detainees in response to the Covid-19 pandemic and to reduce severe prison overcrowding, in cases unrelated to what it calls “political persecution.” That effort is positive considering that Bolivia’s unsanitary, overcrowded detention facilities can facilitate the spread of Covid-19, endangering detainees, staff, and the community at large, Human Rights Watch said.
“The decree risks establishing a system of selective justice, allowing the government to grant amnesty to supporters who committed serious crimes, while prosecuting opponents for similar crimes,” Vivanco said. “Instead, prosecutors and judges should review all cases, remedy rights violations, and dismiss baseless or disproportionate charges, while letting the rest move forward.”
For recommendations and further details, please see below.
Election-Related Violence and Human Rights Abuses
Then-president Evo Morales, a member of MAS, ran for a controversial fourth term on October 20, 2019, but allegations of electoral fraud – now disputed – sparked nationwide protests. Morales was forced to resign on November 10, 2019, after the commanders of the armed forces and the police asked him to step down. Two days later, an opposition lawmaker, Jeanine Áñez, became interim president. New presidential elections were held on October 18, 2020, and Luis Arce, from MAS, won by a wide margin.
The decree applies to criminal cases for events that occurred from October 21, 2019 to October 17, 2020.
In the days leading up to and following Morales’ resignation, 35 people were killed and more than 800 were injured in the context of protests, according to the Ombudsperson’s Office, an independent state body tasked with protecting human rights. An additional victim died of his injuries months later.
Of the 36 people who died, at least 21 were MAS supporters shot during protests at Sacaba, Senkata, and Betanzos in November 2019. Witnesses said that government forces opened fire on protesters in those three instances.
During the Áñez administration there was little progress in investigating those killings. Instead, the government focused on seeking criminal investigations of Morales supporters for alleged sedition, terrorism, and other crimes. In a September 2020 report, Human Rights Watch documented instances of baseless or disproportionate charges, due process violations, infringement of freedom of expression, and excessive and arbitrary use of pretrial detention in cases pursued by the interim government that appeared to be politically motivated.
One of them was the terrorism case against Morales, which Human Rights Watch concluded did not include any evidence that he had carried out terrorist acts. Human Rights Watch said in issuing its report that prosecutors should drop the terrorism charges against him.
The decree says “the events during the recent political and institutional crisis can formally be considered crimes under the Penal Code,” but that is not necessarily the case. Human Rights Watch found cases of criminal prosecution of people merely for having phone contact with Morales and for exercising their legitimate right to free speech. Those people should not receive an amnesty, which implies a recognition that they committed a crime. Instead, prosecutors should withdraw those charges and judges should dismiss them.
But not all cases were baseless. Some Morales supporters did appear to commit serious crimes in October and November 2019.
For instance, two anti-Morales protesters were shot dead, allegedly by MAS supporters, in the town of Montero, near Santa Cruz. At Playa Verde, Vila Vila, and Caracollo, along the road from Oruro to La Paz, MAS supporters attacked buses carrying anti-Morales protesters to demonstrations in the capital, 14 witnesses and victims told Human Rights Watch.
A man said he lost his hand when dynamite allegedly thrown by Morales supporters exploded next to him; five anti-Morales protesters said they suffered gunshot wounds; and four men said Morales supporters abducted them along with another 11 men, robbed them, forced them to strip, and beat them for hours. Alleged Morales supporters also burned the homes of a human rights defender, Waldo Albarracín, and a journalist, Casimira Lema.
Some anti-Morales protesters also allegedly carried out acts of violence. For instance, a mob ransacked and set fire to the mayor’s office in Vinto and abducted and publicly humiliated the mayor, Patricia Arce, a member of MAS. A mob also burned the house where the sisters of Víctor Borda, then president of the Chamber of Deputies for MAS, lived and the house of his brother, Marco Borda. The mob took Marco Borda hostage and forced him to walk naked through the streets of Potosí. Víctor Borda resigned, as the kidnappers had demanded.
Such crimes should not be subject to an amnesty or pardon, Human Rights Watch said. All serious crimes and human rights abuses from the period should be thoroughly investigated, and those responsible, regardless of their political opinions, should be punished according to the law and with full respect to due process rights.
Problematic Mechanism for Amnesty and Pardon Decisions
The decree establishes that the public defender’s office, under the Ministry of Justice and Institutional Transparency, will review amnesty petitions. Legal assistance services in prisons, which are also part of the Justice Ministry, or the regional directorates of prison administration, part of the Interior Ministry, will review pardon petitions.
Moreover, those offices will only have three working days to review the cases and make a decision, an extremely short time period for a thorough review.
If, after those three days, they decide to grant an amnesty or pardon to the petitioner, they are to communicate it to the judge in charge of the case. The judge “will ratify” that decision within three days and, if the person is in detention, order their release, the decree says. The decree does not consider the possibility of a judge objecting to or rejecting the amnesty or pardon decision.
The decree establishes that if the institutions tasked with implementing the decree find that prosecutors or judges are causing “an evident delay” when handling amnesty or pardon petitions, they should report them for disciplinary action.
The government should immediately amend the decree to make sure that those responsible for serious crimes, whether MAS supporters or not, are held accountable for those offenses, Human Rights Watch said. Meanwhile, legislators, the Ombudperson’s Office, or regional authorities, who have standing before the Constitutional Court, should file a petition to review the decree’s constitutionality.
Instead of a blanket amnesty for people “prosecuted during the de facto government,” the Arce administration should promote judicial review on a case-by-case basis. The attorney general should carry out an independent, thorough analysis of evidence involving former members of the Morales administration and its supporters, and prosecutors should ask judges to dismiss charges in cases where the evidence does not support the charges, or where the charges are disproportionate to the alleged conduct.
Prosecutors and judges should also review whether due process was respected in all cases and, if there were violations, apply the remedies provided by Bolivian law, including dismissing the criminal proceedings if the due process violations were particularly serious.
In addition, the Plurinational Assembly should amend the vague laws that were used to persecute MAS supporters during the Áñez administration, in particular by narrowing the overbroad definition of terrorism to comply with international standards, Human Rights Watch said.
Finally, the government, police, prosecutors, and other Bolivian institutions should support the work of the Interdisciplinary Group of Independent Experts, established under an agreement between the Inter-American Commission of Human Rights and Bolivia’s government, that is investigating the acts of violence and violations of human rights that took place in the country between September 1 and December 31, 2019. Thorough, independent investigations into all of those cases, regardless of the political opinions of the accused or the victims, is crucial to ensure accountability.
Bolivia has international obligations to ensure effective remedies for human rights abuses, and to protect people from violations of their rights by private actors. Accordingly, it is also obligated to investigate serious criminal acts that violate basic rights, such as the right to life, irrespective of the accused. Referring to the Inter-American Convention on Human Rights, which Bolivia has ratified, the Inter-American Court of Human Rights ruled in Velásquez-Rodríguez v. Honduras that:
The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.
The Inter-American Court has also said in the same case that “[w]here the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.”
As drafted, the decree also appears designed to favor MAS supporters, creating the context for amnesty or pardons that discriminate based on political opinion, in violation of principles of nondiscrimination and equality before the law. The decree provides only very vague criteria to inform the decision of who deserves that benefit, allowing for arbitrariness and political considerations.
The International Covenant on Civil and Political Rights (ICCPR), ratified by Bolivia, says that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion (emphasis added), national or social origin, property, birth or other status.” It also states that “[a]ll persons shall be equal before the courts and tribunals.”
The UN Human Rights Committee, the treaty body that is the authoritative interpreter of the ICCPR, has stated that “[n]on‑discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights.”
The Committee has said that the covenant “not only entitles all persons to equality before the law as well as equal protection of the law but also prohibits any discrimination under the law.” It has explained that the term “discrimination” means:
any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.
Bolivia’s constitution states that international human rights treaties ratified by the Plurinational Legislative Assembly prevail over internal law and that the constitution must be interpreted in accordance with those treaties.
Decree Provisions to Reduce Prison Overcrowding
The decree also grants amnesty and pardons to certain categories of detainees in response to the Covid-19 pandemic and to reduce severe prison overcrowding, in cases unrelated to what it calls “political persecution.”
For instance, it grants an amnesty to people whose prosecution has lasted more than 15 years without a final judicial decision on the case, to those who have served their sentence but are still in detention because there are appeals pending, and to certain categories of detainees when the maximum time period for judicial proceedings has been exceeded. It also grants a pardon to first-time offenders sentenced to up to 8 years in prison; and any offender sentenced to up to 10 years in prison who has served at least a fourth of their sentence.
Significantly, the decree bars any pardon of people convicted of serious crimes, such as kidnapping and homicide, and also bars amnesty for serious crimes in most cases. But that exclusion does not apply to amnesty for those prosecuted during the Áñez administration for crimes related to “social conflicts.”
Last year, the Áñez administration issued an amnesty in response to the Covid-19 pandemic, but the number of people released as a result appeared to be very small. In February 2021, Bolivian jails and prisons still held 17,800 people, almost three times the number of detainees that they were built for, official data shows. The Arce government estimates 3,180 detainees – 18 percent of the prison population – could receive an amnesty or pardon under the new decree.