Project description

Title: Strengthening the Rule of Law (FortalEsDer)
Commissioned by: German Federal Ministry for Economic Cooperation and Development (BMZ)
Country: Colombia
Lead executing agency: „Dirección de Justicia y Seguridad“ at „Departamento Nacional de Planeación“ (DNP)
Overall term: 2004 to 2014

Context

Colombia’s Constitution of 1991 defines the country as a social constitutional state. The core elements of this are the guarantee of (legal) peace and freedom from indiscriminate government activity.

All citizens have the constitutional right to effective state protection against the violation of their rights by the Colombian administration; however, there is still a considerable gap between this principle and its implementation. The victims of armed conflict are particularly affected by this. Some of the reasons for this failing include the inefficiency of the justice system and public supervisory bodies, the occasionally arbitrary application of the law and a lack of progressive legal and justice policies. On the whole, individuals are denied the right to defend their interests as enforceable legal rights using a structured process. The law is falling short in its key role of reducing conflict between individual and social interests.

Objective

The quality of legal protection provided against illegal government activities is improved by fostering the law’s role in finding a peaceful resolution to conflict. This creates legal peace and strengthens the institutions upholding the rule of law.

Approach

The project strengthens the external measures in place to monitor the administration’s legal activities. This monitoring is carried out by the judiciary and public supervisory bodies. The first stage of this process aims to enable the bodies of the judiciary (the State Council) and the public supervisory institutions (such as the Ombudsman’s Office and the Inspector General) to carry out their institutional mandate more efficiently. The project comprises four areas of work:

1. Consolidating achievements in institutional promotion
   The focus is on the State Council’s Senate for State Liability, whose responsibilities include providing reparations to victims and streamlining the internal organisation of processes and systems. Support is also given to the Inspector General to implement a policy to promote personnel development. This will ensure that staff have the skills needed to competently carry out their wide-ranging tasks. The Ombudsman’s Office receives advice on shaping the strategic direction of its planning processes in order to increase its influence within the structure of the state and improve human rights protection.
2. Extra-judicial settlement of administrative disputes
   The Inspector General is given support to develop human resources and competences in order to provide a means for settling public legal disputes out of court. The law now states that a dispute must go through a mediation process before it can be brought before the administrative courts.
3. Developing a proactive legal and justice policy / globalisation of law
   The areas of work outlined above are bolstered by legal policy. In order to improve legal protection, it is necessary to implement a coherent legal and justice policy focusing on the technical standards that are applied when drafting and implementing legislation. Binding and increasingly complex international principles must be taken into account more and more frequently when applying and interpreting domestic administrative law. This affects institutional promotion and the development of appropriate methods. The project therefore supports the work being carried out by research institutions in selected legal areas, which addresses the impact of the globalisation of law on Colombian public law.
4. Transitional justice
   The project supports efforts to fast-track legal protection for the victims of armed conflict. The focus is on identifying issues and forming working groups which aim to develop a coherent approach that can then be adopted by the Ministerio Público (attorney general). The Ministerio Público consists of the Inspector General and the Ombudsman’s Office. In the past, neither of these institutions has shown particular interest in a united presence and this has had a negative impact on their respective resolutions. This new approach will support the institutions in developing their capacities, ensuring that constitutional reparations proceedings are more reliable and helping victims to assert their claims for compensation effectively.

Results achieved so far

Respect for the jurisdiction of the administrative courts with regards to transparency, independence and quality has increased steadily since the beginning of the advisory process. This conclusion is based on a number of sources, including comments made by people involved in court proceedings and also increased demand from the population.

The Inspector General and the Ombudsman’s Office have started developing a joint system for evaluating the extent to which public policy respects, protects and guarantees the right to reparation. The first stage involves analysing and systemising national and international obligations for the first time in order to ensure that legal protection for victims is coordinated and as efficient as possible.

The number of proceedings completed every year by the State Council’s Senate for State Liability (which was understaffed for a long time) has increased. A change in the law, which was initiated by the project, has helped to triple the number of judges in the Senate. This ensures that proceedings are settled quickly and that appropriate legal protection is given.

At the beginning of 2009, an extra-judicial mechanism was implemented for settling public legal disputes and it has had considerable success within its first year. The average number of disputes settled each month has risen steadily, which shows that the advice provided on overcoming legal and procedural uncertainties has been a success. In the medium term, the aim is to ease the burden on the jurisdiction of the administrative courts and also to fast-track legal protection. As a result of the increasingly comprehensive collection of cases and resources, it will be possible to achieve this.

The Inspector General and the Ombudsman’s Office have agreed to use the ‘Estrategos’ software, which was launched in 2009, to carry out joint results-based monitoring in the future and to document this procedure in line with the basic principles of alignment. Since the end of 2010, the software has also been available for use by measures implemented by the project. Some partners do not have access to similar software programmes and in these instances different approaches have been established that still emphasise the joint strategic objectives.

Some achievements in figures

• The number of proceedings completed in the third senate of the country’s supreme administrative court rose by almost 10 % in a year (2008: 425, 2009: 466).
• In 2009, the Inspector General was assigned around 61,000 mediation cases. The institution was able to settle more than two thirds of these within the same year.