APPLICABILITY OF UNITED NATIONS STANDARDS AND NORMS
IN CRIME PREVENTION AND CRIMINAL JUSTICE
IN THE LATIN AMERICAN AND CARIBBEAN REGION
Cristina Rojas Rodriguez*

I. INTRODUCTION
A Continent of tremendous socio-economic contrasts, the Latin American and Caribbean Region is far
from being homogeneous. It is the cradle of many, different ethnias with their particular backgrounds,
religions, cultural uses and languages; with a very rich elite, while the majority of the population isextremely poor, a gap that in recent years has widened to levels never seen before.
Almost all Latin Americans nowadays are living under elected civilian governments. But the region faces
severe challenges posed by its slow economic growth, the highest levels of inequality in the world, and a
deepening impoverishment1 of its population2; that are triggering popular unrest, and destabilizing andundermining the efforts towards the attainment of democratic governments made over the past 25 years; ahistoric and unprecedented achievement in the developing world.
The increasing socio-economic inequalities in the Latin American Region can be easily evidenced.
According to the most recent UNDP report: “Democracy in Latin America” (April, 2004), in 1990, theRegional Gini3 coefficient was 0.554, but in the year 1999, the coefficient alarmingly raised to 0.580, while
the world coefficient in the 90’s was just 0.381 and one of the developed countries was of 0.337. The same
study indicates that in 1999 the incidence of poverty had reached 35% of the households; however, in theyear 2003, the number of persons living under the line of poverty in Latin America grew to 225 million,(43.9% of the total population). It is important to note that urban critical poverty increased in higher
percentages in this period, indicating the tendency towards urbanization of critical poverty. In this same
period, the index of criminality increased by 5 %, or by 2.5 times the growth in population.
The lack of economic and human resources has weakened administration of justice systems. The issue ofprison population is thus a matter of concern, since the rights of prisoners are frequently violated, asconfirmed by the fact that more than half of all prisoners are being held in pre-trial detention.
The incontrovertible correlations between high indexes of social inequality and increases in violence andcriminality are not any more in discussion. Explicitly all international and multilateral fora have recognizedthem lately, and thus, have to be confronted through the adoption of social, economic, health, education andjustice policies, centred in the holistic development of the individual, with dignity, and free of all fears.

II. CURRENT SITUATION OF THE APPLICATION OF THE U. N. STANDARDSAND NORMS IN CRIME PREVENTION AND CRIMINAL JUSTICEIN LATIN AMERICA & THE CARIBBEAN REGION
Accurate measurement and evaluation of the degree of use and application of the United Nations
Standards and Norms in Crime Prevention and Criminal Justice in Latin America and the Caribbean Region* Former Ambassador of

Costa Rica to Japan. Former Senior Crime Prevention & Criminal Justice Officer, UNOV, Austria.
Parliamentary Advisor. Associate Expert of ILANUD.
1 In 2002, 43.4 % of Latin Americans lived under the line of poverty. In 15 out of the 18 countries studied, by the UNDP, morethan 25 % of the population lives below the poverty line and in 7 of them more than half live under these conditions.
2 In Guatemala 56% of the population lives below the poverty line (surviving on less than two dollars a day), and 26% live
below the extreme poverty line (less than a dollar of income per day).
3 In the Gini coefficient, 0 represents perfect distribution, while 1 absolute inequality. A Gini coefficient of 0.25-0.35 can beconsidered as “reasonable”. A Gini coefficient of 0.55 represents extreme inequality.

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has not been possible. Governments do not collect data using uniform parameters, due not only to thediversity and heterogeneity among criminal justice systems, but also because of the lack of manpower andassigned budget; ineffective coordination among criminal justice institutions; and lack of confidence in theimportance of the standards and norms and on the functions of the UN System in Criminal Justice
Administration.
Non-application or non-implementation is often the outcome, as well as a lack of knowledge of thestandards and norms themselves. In some nations, even domestic laws are not always available to criminal
justice personnel, much less to the public, because of the lack of resources available for document
publication.

A. The Rule of Law in the Region
Law and penal justice are instruments and preconditions of democracy, not so much because they include
prescriptions for individuals, but mainly, because they contain limitations to State power and rights, against
arbitrary power and force.
The rule of law is a key condition for human development, since it is through politics and not only
through economics that it is possible to create more equitable conditions and to expand options for people.
Essential as it is for democratic governance, provides the required potential for the development of aprosperous economy, ensures life and personal security and reduces risks of political instability, fostering
national development.
On the contrary, the absence of the rule of law, contributes to poverty, violence, and unchecked abuses ofpolitical power; as well as unchecked violence by police, prison officers and other public officials. Under
these conditions, the poor, displaced and minority groups, are more likely to be humiliated and subjected toarbitrary treatment and intimidation by public officials, prevailing a culture of fear that displaces the properrole of a culture of legality.
Rampant structural corruption in many countries of the Region has to be considered as one of the mostserious problems that affects negatively the rule of law, with corrosive and harmful effects upon thecredibility of the Justice Administration Systems.
The allocation of resources, both financial and human, to the Criminal Justice Systems offer a clear signof the degree of importance that the Latin American States render to the protection of the Rights of thecitizens as can be observed in the following table (UNDP, 2004). The medium regional average of resources
assigned to the Justice Sector is just 2.5% of the total national budget, and in some cases, even less. In eightout of the fourteen countries in which reliable data was found, there is just one public defender for each
100,000 habitants. 4
Another serious factor that hampers the rule of law in the Latin American and Caribbean countries, is theproliferation of misery zones or slum areas (better known as “tugurios”, “favelas”, “garrison communities”
or “nobody lands”) surrounding the big metropolitan areas. These vast, overpopulated territories are
generally dominated by criminal organizations that impose their will through fear and terror, and represent
indeed, one of the most serious problems for police officers. On many occasions, they don’t even dare to go
in them. Police only enter these areas when there are clashes between rival gangs. During these incidents,
stray bullets often kill innocent passers-by. State social services are rarely present; there are no hospitals,
no schools, no sewage system, and no police. No preventive work of any kind is done by State authorities.

4 Table Information:

Access To Justice, Country, Year, % of National Budget, Year, number of Judges, Year, number of Public
Defenders, number of Public Defenders per 100,000 habitants.

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Source: UNDP, April 2004 Report on Democracy In Latin America, www.democracia.undp.org

B. Situation of the Indigenous Groups, Migrants, Indigents, Children and Women
Marked inequalities persist in the treatment of persons belonging to different population groups, whilelaws to protect children in the workplace are frequently ignored and workers’ social security protection has
been reduced.
Most countries in the region have ratified the main international treaties and enacted domestic laws
concerned with equality under the law and protection against discrimination as well as women’s rights. But,
although civil rights are recognized legally in most cases, a significant number of citizens suffer overlapping
exclusions and serious failings concerning the effective respect of these guarantees. Programmes such as
witness and victim protection are little developed.
In the Latin-barometer of perception of legal equality5, in the year 2002, the vast majority of Latin
Americans believed that the rich persons always or almost always were able to have their rights respected.
This is a different perception to the one that the poor, women, immigrants and indigenous people had, since
they believed that they confronted serious legal disadvantages. When asked if their rights were respected,
only 67.0% of the Latin American women had a positive answer; 23.1 % of the indigenous people, 17.8 % of
the poor people and 30.8 % of the immigrants, as can be observed in the following chart.
In relation to minority and indigenous groups, not all the Constitutions of the Latin American countries
recognize and protect the multi-ethnic and pluri-cultural characteristic of the composition of their societies,
nor protect their human rights in any specific way. Brazil, Chile, Costa Rica, El Salvador, Honduras,
Dominican Republic and Uruguay don’t even mention them in the Constitution, while Bolivia has just a weakreference.
5 Democracy in Latin America, UNDP, April, 2004, (www.democracia.undp.org).

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Perception7
Perception
Perception
Legal Equality: Legal Equality: Legal Equality:
Woman 2002
Indian 2002
Poor 2002

Inequality
1999: Gini
Coeficient6% Under
PovertyLine

Argentina

0.542

30.3

69.7

9.1

7.9

Bolivia

0.586

61.2

54.8

21.2

13.9

Brazil

0.640

36.9

78.3

34.3

20.1

Chile

0.559

20.0

68.9

33.5

19.9

Colombia

0.572

54.9

70.3

22.1

18.1

Costa Rica

0.473

21.7

59.8

23.2

13.7

Ecuador

0.521

60.2

60.4

40.2

25.2

El Salvador

0.518

49.9

72.0

32.3

32.4

Guatemala

0.582

60.4

65.3

38.7

24.8

Honduras

0.564

79.1

69.8

34.6

23.5

México
xico

0.542

42.3

54.8

7.5

5.6

Nicaragua

0.584

67.4

60.3

23.5

17.7

Panama

0.557

30.8

65.6

10.5

10.7

Paraguay

0.565

61.8

71.5

15.0

10.9

Peru

0.545

49.0

61.9

16.0

11.6

Dominican
Republic

0.517

29.2

76.4

11.5

22.2

Uruguay

0.440

11.4

78.4

17.1

21.8

Venezuela

0.498

48.5

73.7

28.2

26.1

CentralAmerica &Mexico

66.4

22.2

18.9

AndeanRegi nRegión

63.8

27.8

19.2

Mercosur &
Chile

71.2

19.2

14.6

Total
Latin America

67.0

23.1

17.8

C. Obstacles to the Equitable Functioning of Legal and Judicial Systems
1. Political Unsteadiness and Linkages between the Judiciary and the Political and Economical Oligarchies
Corruption and political instability can be identified as some of the gravest obstacles in theaccomplishment of the rule of law in the Region. Most Latin American countries have had few short periodsof democracy, sandwiched between military dictatorships, civil revolutions and intense guerrilla and narcoguerrilla activity.

6 Source: Democracy in Latin America, UNDP, April, 2004, www.democracia.undp.org.
7 The perception of legal equality makes reference to the number of times a woman, an Indian or a poor person thinks his or

her rights are respected, according to the Latinbarometer 2002.

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Citizens have been disappointed with the judiciary system’s effectiveness in this Region, where the rule
is to denounce abuses made by ex-governors, politicians, and members of the reigning economic and politic
oligarchies, while giving them almost unrestricted impunity.
Several former Chiefs of State have been impeached by Congress for corruption scandals, but only one ofthem has been sentenced to jail in Latin America. (Arnoldo Alemán, Nicaragua, 2003). Such is the recent
story of the Brazilian President Fernando Color de Mello, impeached by Congress in 1992, prosecuted, anddespite abundant evidence, exonerated by the Brazilian Supreme Court. Carlos Menem, former Argentinean
President, in June 2001, received a 600-page indictment charging him with authorizing illegal arms
shipments to Croatia and Ecuador, and was ordered to remain under house arrest pending an investigation,
dealing as well, with money laundering activities. In November 2001, Menem was released from housearrest after being cleared by the Supreme Court.
These two cases are not different from what has happened in other countries, as for example the case ofAlberto Fujimori in Peru; Abdalá Bucaram in Ecuador, Col. Ríos Montt in Guatemala; Carlos Andrés Pérez
and Jaime Lusinchi in Venezuela, and so on.
The case of Peru and Colombia, with very strong military forces combating insurgents and narco-guerrillagroups, is similar to that of Guatemala, where the effects of 36 years of war between armed insurgents andan all-powerful army, has led, as a consequence, to the government resorting to the worst type of
persecution and atrocities that one can imagine, to quell the uprising.
The enormity of the difficulties facing Latin America’s legal and judicial systems, as evidenced, links
themes of access to justice and judicial partiality, justice delay, legislation and cultural disparities in the
discourse of socio-economic inequalities.
It is impossible to separate the judiciary from the oligarchies that dominate the economy and politics. In
the majority of the cases, the dominating considerations on the nomination of Supreme Court Justices
include political criteria.
Two extra examples will illustrate in a clearer way what has been said: a) the 52-page report to theUnited Nations Special Rapporteur on the Independence of Judges and Lawyers, (April 2002) that challenges
the independence and effectiveness of Mexican judges and estimates that 50% to 70% of Mexican judges arecorrupt; and b) the residence of high magistrates in public offices, including the President of the Supreme
Tribunal of Justice, in government-controlled military installations in Venezuela.
2. Access to Justice
Access to the protection of the juridical system in the Latin American countries is not granted to themost underprivileged socio-economic and cultural sectors. Ignorance of the law abounds. The Judicial
resources are not only assigned primarily to the urban centres leaving the rural areas with very scarceprovision of services and judicial infrastructure; but are also limited. Legal terminology is not only different
from that often used by ethnic majorities, but is incomprehensible to the poor, given their insufficient
education and the hermetic terminology involved.
Good legal counsel in the majority of the countries is expensive. Richer citizens can win trials, since
they can afford good lawyers. On the other hand, citizens who cannot afford private legal counsel, whencharged with a crime, receive legal counsel from public defendants, which frequently are of very poor quality.
Therefore, the citizens who end up in the prison system are the poorer ones.
In the Penitentiary System as well, aborigine groups and foreigners, that don’t speak the main local
language, are especially vulnerable. The majority of the norms in penitentiary ordinances and regulations in
the Latin American and Caribbean Region do not specify the right, of those deprived of liberty that are notable to communicate in the official language, to have an interpreter or a translator.

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3. Justice Delays
Justice delays are closely linked with the capacity of the Justice Administration Systems to perform
efficiently and with efficacy its assigned duties. Responsibilities such as the judgment of the offences, thepunishment of the guilty, the protection of the victim and the deprived of liberty, and the retribution of the
injuries, are crucial in the attainment of the rule of law.
Unfortunately, justice delays always work directly against the rights of the most vulnerable social groups
due not only to the high litigation costs, but to the harmful socio-economic consequences it implies when theeconomic provider is imprisoned. On the contrary, if the accused happens to be a member of the political,
social, cultural or economic elite, or can marshal sufficient support among the powerful, the strategy to delay
the process will be effectively applied to grant impunity.
4. Extremely Low Clearance Rates: Police Violence and Corruption.
The prevalence of problematic norm-violating behaviour among Latin American and the Caribbean police
forces may have deeper roots, reflecting repressive State policies and perhaps biases, such as ethnic andracial biases, against particular sub-populations, accompanied by a culture of social tolerance.
In some countries, deficient training and very low salaries that help undermine self-esteem within police
forces; widespread corruption among both the military and the civil police, and their involvement withorganized criminal organizations, is a recognized fact. No wonder the poor fear the police brutality more thanthe criminals.
According to C. Mendes, in Rio de Janeiro, Brazil, the police force is not only corrupt but also extremely
violent and responsible for one out of every ten homicides that take place, with hundreds of victims per year.
A study by Cano (1997) found that practically 50 per cent of the corpses of police victims in Rio, studied by
the Forensics Department in the civil police force, had four or more entry wounds and were basically shot in
the head or in the back, as a clear indicator of the intention to kill and not merely to stop the opponent.
Unfortunately, there is a general belief that respect for human rights is not compatible with police efficiency.

III. CURRENT SITUATION OF PRISON ADMINISTRATION IN LATIN
AMERICA AND THE CARIBBEAN REGION
A. Prison Overcrowding
The problem of prison overcrowding affects, to a greater or lesser extent, almost all countries of theRegion. But, the fact of an imprisonment sentence does not make the offender an extra-social being. He
continues to be part of the community, with full possession of his rights and thus, ought to be treated as ahuman being.
Under no circumstances could we justify the inhuman conditions in which the inmates are kept, nor thecruel and degrading treatments that are given in the penitentiary systems to the deprived of liberty in many
Latin American and Caribbean countries. Prison overcrowding, lack of healthy physical spaces; deteriorationof penitentiary infrastructure; lack of hygiene, douches, toilets; broken sewers; lack of medical attention;
physical and psychological mal-treatment; lack of special premises to keep inmates that require psychiatricattention; lack of separate premises to keep the deprived of liberty that suffer communicable and contagious
diseases (e.g.: Tuberculosis, Hepatitis B and C, HIV/AIDS); and lack of labour and educational facilities, arejust part of the offences to the human dignity and cruel and degrading conditions that the deprived of liberty
have to suffer within most of the penitentiary facilities in the region.
One of the most critical challenges confronting all systems of corrections is prison overcrowding. Thisphenomenon undermines and severely limits reform initiatives and also creates a number of additional
challenges. Until this problem is resolved, efforts to improve other aspects of prison administration, will
unlikely have any meaningful impact.
In many jurisdictions, prison systems are administered not by civilians, but by the police and the military,
and are closely associated with national security and the maintenance of the political status quo.

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Most systems of corrections lack a well developed body of empirical knowledge upon which to base theformulation of policies and the operation of programmes and are affected by a variety of factors including
political considerations and public opinion, lack of experimental research and rigorous evaluation ofcorrectional policies and programmes, and lack of independent evaluation to assess their effectiveness.8

Regionally speaking, national overcrowding averages are extremely high. In 19 out of 25 countries withprison overpopulation, the overcrowding situation is critical, presenting density equal or superior to 120%,
as it is evidenced in the 2004 UNDP report: Democracy in Latin America. While the number of persons
deprived of liberty varies considerably from country to country, the low index of penitentiary population for
8 Table Information:

Right of Accused and Prisoners, Country, Year, Total of penitentiary population (including detainees thatare not sentenced and in conditional liberty), Index of penitentiary population (per each 100,000 national population), % ofinmates without process in conditional liberty (in relation to total penitentiary population), Level of penitentiary occupation (inrelation to the official capacity, overcrowding).

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every 100,000 inhabitants in Venezuela, Ecuador, Guatemala and Paraguay is very low, while in othercountries such as Panama, Costa Rica and Chile is very high.
In most countries, the number of prisoners awaiting trial is higher than the figures shown in the chart
since persons in police stations are not included, and it is in these places where most of the prisoners
predominantly are. Sentenced persons deprived of liberty but waiting appellation are not included in the
figures of people awaiting trial.
Besides presenting a high penitentiary population growth resulting from an increase in the use of
imprisonment and stricter penal laws, mainly in relation to violent and drug related offences; thepenitentiary systems of the Latin American and the Caribbean Region face meagre budgets. With the
exception in the trend of Ecuador and Venezuela, each year, the number of persons within a group of 100,000
persons that goes to prison, has increased.
Most penitentiary facilities are built inadequately, creating conditions that impede proper classificationand security, thus promoting internal violence. Under these conditions, it is not possible to fulfil an
acceptable standard of almost any other essential penitentiary function, such as health, food, hygiene,
security, visits, and other much less important functions such as recreation, sport, training and work, all ofwhich limit the deterioration of persons deprived of liberty.
The Polinter centre of detention in Brazil gives us a good perspective of imprisonment overcrowding in
the Region9. Some 65 to 70 prisoners are kept in cells measuring three by four meters (12 square meters).
Of course, there is no room for all of them, even if they decide to spend 24 hours a day standing up. With a
lot of imagination and a sense of survival they have created their tier cells: there are those who live on the
ground; those who live on the “second” and “third” floors, on hammocks made out of different materials. A
doctor specialized in public health, visiting these cells, stated: “The condition of the prisoners in thisinstitution is one of maximum deprivation: overcrowding, lack of air, promiscuity, bad odours, no privacy
whatsoever, radical discomfort. One can affirm that the prisoners are living in a situation of physical andmental torture. The intensity of human misery imposed upon these men is unspeakable and indescribable.
Most of these men are awaiting trial, although sentenced prisoners may be often also found. A special noteshould, however, be added: if one has a university diploma, one will never see the interior of these cells…”

Polinter Centro, Brazil, the Central Police Station Lock-up

9 Mendes, Candido;“Drugs, arms, poverty and gobernability: a Brazilian city in the 21st. Century”, published in the memoryof the Expert Group Meeting on the Application of the UN Standards & Norms in Crime Prevention and Criminal Justice,
Stadtchlaining, Burgenland, Austria, 10-12 February, 2003.

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Unfortunately the description of the infrahuman conditions in which the deprived of liberty live in the
Polinter Centre of detention, as it was said before, is not very different from the ones that prisoners live inother latitudes in the Region.
As the next chart shows, the number of foreign prisoners in some countries of the region, such as Costa
Rica and Panama has been steadily growing mainly due to drug trafficking offences that use their territory
for transit operations from Colombia, destined to the United States and Canada; and the high percentage oflegal and illegal migrant population.
Costa Rica in the last two decades has gone through a constant increase in the absolute and relative
number of its penitentiary population. This situation is revealed both in the statistics that show the increasein the total number of persons deprived of liberty, and in the ones that calculate the total number of inmatesin relation to 100,000 inhabitants. For the period 1998-2001, the above-mentioned tendency was emphasized
dramatically. In 1998 the increase in the relative numbers with respect to 1997 was 28%. In 1999, theincrease in the number of inmates was still very high at 27%. The tendency diminished a little to 18% for
the year 2000, even though it always remained high. And for the year 2001, the tendency diminishedsignificantly with respect to the immediate former year, going down to 7%.
Persons Deprived of Liberty, Waiting SentenceMonths of Imprisonment
Im risonment Durin
During the Period 1994-2003 in the Costa Rican Penetentiary
Penetentiar System
S stemTime of Imprisonment
Total
Up to 3 Months
More than 3 Months, Less than 6 Months
More than 6 Months, Less than 9 Months
More than 9 Months, Less than 12 Months
More than 12 Months

Absolute Values
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003
612 867 933 784 800 902 1289 1295 1427 1501
373 520 519 407 473 413 618 680 766 743
125 197 225 184 171 283 370 364 331 414
77
71
96 111 102 114 153 160 167 188
17
39
42
41
28
48
91
76
75
83
20
40
51
41
26
44
57
15
88
73

Source: Statistics Department Supreme Court of JusticeIn December 1998, the total number of persons deprived of liberty was 4,448, while in November 2001
this number was 11,858 inmates, with a total increase of 60 % in the said period. It is interesting to confront
this data with the total numbers of the sentenced persons in a semi-institutionalized condition, that went, atthe beginning of the same period of the study, from 669 to 1,138 in the year 2000, diminishing again to 934 in
the year 2001, with a total increase rate of 40 % in the period.
The situation is more serious when we analyze the case of institutionalized minors. In the same period ofstudy, the increase in the number of minors deprived of liberty was 88%.
This is a very grave national situation that should call local authorities to perform a serious in-depth
evaluation, specially if we consider that the total rates for each segment of 100,000 inhabitants increased in
the last quinquennium, from 159 for each 100,000 inhabitants, to 288 for each 100,000 inhabitants, placing
Costa Rica as one of the countries with the largest number of persons deprived of liberty in the whole
American Continent.
It is possible to identify different kinds of reasons that could help to understand such a social
phenomenon. Perhaps the primary and first reason is of a political character, and is consistent with thedecision of the national authorities, mainly legislative and executive, to provide a more repressive responseto the aggravation of social conflicts and violence. Other factors such as a major improvement in thefunctioning of the judicial agencies in charge of investigation, prosecution and judgment of the cases that
increases at the same time the number of sentenced persons, and, the excessive use of imprisonment
penalties, instead of alternative measures to imprisonment, have also been crucial.

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IV. SYSTEMS FOR SECURING TRANSPARENCY AND ACCOUNTABILITY IN
THE ADMINISTRATION OF PENITENTIARY INSTITUTIONS AND THEIRIMPLEMENTATION IN THE LATIN AMERICAN & CARIBBEAN COUNTRIES
Latin American countries have enacted very modern and progressive legislation that creates different
types of institutions which, among other functions, supervise the application of human rights and the United
Nations Standards and Norms in the prevention of Crime and the Treatment of Offenders in the functioningof the judicial and penitentiary systems, such as the Ombudsman, Commissions of Human Rights, andTribunals that deal with the Inspection of the Judiciary and the Execution of the Penalty, among others.

A. Tribunals of Execution of the Penalty: the Case of Costa Rica
The institute of Execution of the Penalty is ruled under Title V, Articles 452 - 463, of the new Procedural
Criminal Code of Costa Rica enacted in January 1998. It introduced significant transformations in the iter ofthe national Penitentiary System, establishing a series of norms for the control and vigilance of theexecution of penalties and of the security measures of the deprived of liberty, through an aggregate of
Tribunals of Execution of the Penalty that come to play a radically new role in respect with what, up to thatdate, the judges of execution of the penalty had been doing. The new legislation assigned a series of generaland specific functions to these officers, mainly dealing with the control of the legality of the acts of the
Administration.
These series of norms respond to the constitutional mandate that assigns to the Judicial Power thefunction of: a) administrating Justice, b) resolving definitely the cases that are brought under its knowledge,
and c) executing the resolutions of the sentences it pronounces, with the help of the police if it is necessary.
Specifically the Procedural Criminal Code stipulates that the deprived of liberty could exercise the rights
and faculties that the laws and the regulations grant them, being able to submit to the knowledge of the
Tribunal of the Execution of the Penalty all the pertinent observations.
Two preliminary conclusions could be extracted out of this text:••that the deprived of liberty or the person that is under a security measure has the legitimacy topresent its case directly before the Tribunal of the Execution of the Penalty;
that this right is referred to, generically, as “any observation”… and thus, it is understood that theconcept refers to petitions, requests, complaints, demands, etc. in relation to any decision of thePenitentiary Administration that the inmate might consider prejudicial to their rights and interests.

The exercise of this right does not demand any other prerequisite other than the subjective belief of theinterested person that he or she is becoming a victim of a violation of their human and constitutional rights
and that the acts of the Penitentiary Administration, illegitimately are violating the principles of equality,
proportionality, no discrimination, and/or reasonableness.
The Judge of Execution of the Penalty emerges as a guarantee that the prison penalty and/or the security
measure will be executed in conformity with the constitutional and legal mandates. It is legally authorized tointervene, attending the petition of the inmate or of any third person interested, (prosecutor, defender,
victim); and to resolve what is pertinent in order to amend the situation. The judge will appraise the gravityof the situation and according to criteria of reasonability will decide what he esteems as more convenient,even if that decision implies a modification of any measure that the Administration might have adopted.
The procedural norm also mandates that all matters in relation to successive settlements, extinction,
substitution or modification of any of the conditions of the execution of the penalty, will be under thecognizance of the Tribunal of Execution of the Sentence. It means that this jurisdiction has the legitimacy tointervene once the Penitentiary Administration has fulfilled all the functions assigned to its level ofdecisions, such as the ones in relation to the modality of the treatment that should be administrated to theinmate, the place and conditions under which the penalty or the security measure should be executed, etc.
These functions and attributes of the Penitentiary Administration are stipulated in detailed regulations thatdeal specifically with the penitentiary regime.
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the Administration, before a petition of an inmate, thus controlling the legality of the measures, preventing
in this way, the adoption of arbitrary and/or illegal decisions. It must be clear that this does not imply at all,that the Judge will be substituting the functions of the Administration. The Judge, in a motivated resolution
will identify clearly the specific violations of the human and constitutional rights of the inmate in which the
Administration has incurred, and will order what he deems pertinent to restore them.
According to Article 454 of the Procedural Criminal Code, either the inmate, the prosecutor of the case,the defender or the victim can also go before the Judge of the Execution of the Penalty and present any legal
petition in relation to the execution, substitution, modification or extension of the said penalty or measure of
security. In case the Judge considers it to be relevant to the case, before adopting the pertinent resolution,
can order a summary investigation of the facts and evidence to support his criteria. The matter will besolved in an oral audience.
The Judge of Execution of the Penalty with ample faculties, can order the provisional suspension of themeasures adopted by the penitentiary administration that have been objected to, before pronouncing his
sentence, during the time that he/she is evaluating evidence and conducting the summary investigation.
(Article 455 CPP).
It must be clear that the interested party can go directly and present their case before the Judge of
Execution of the Penalty, without having to comply previously with any administrative prerequisites orprocedures. The mere adoption of a measure that any of the said parts considers, even in a subjective way,that is harmful and that will affect its interests in any way, will give him the legitimacy to present an incident
before the Judge of Execution of the Penalty.
The Judge can confirm the measure adopted by the Penitentiary Administration, or else, substitute it foranother, either partially or totally ordering in such case what he considers that proceeds in due respect of theLaw.
The resolutions adopted by the Judge of Execution of the Penalty can be appealed before the Judge of theSentence (paragraph 3, Article 454 CPP).
In January 1998 article 458 of the Procedural Criminal Code (PCC) was modified in order to establish in aclearer way the attributions of the jurisdiction of the Tribunals of Execution of the Penalty, in relation to thevigilance and control of the penitentiary administration. It ought to be understood that the Judge of
Execution of the Penalty can intervene both by request of an interested party, or else diligently, by his own
initiative when he considers it to be necessary.
According to the law, the functions of the Judge of Execution of the Penalty are:(i) Maintain, substitute, modify or stop the effects of the penalty or the security measure, as well as theconditions in which it is accomplished.
(ii) Visit the Penitentiary centres in order to verify the respect of the fundamental rights of the inmates,(those that are protected by the constitution, International Treaties and Conventions, laws andregulations) ordering imperatively, the corrective measures to be adopted to correct what heestimates are pertinent.
(iii) Resolve the petitions and complaints that have been submitted to his consideration, in relation withthe regime and the penitentiary treatment that the inmate is being subjected to.
(iv) Resolve the claims of the inmates in relation to the disciplinary sanctions imposed on him by the
penitentiary administration.
(v) Approve (or disapprove) all the disciplinary sanctions of isolation for more than forty eight hours
that the Penitentiary Administration might impose on an inmate.
(vi) Order, previous practice of due medical examinations, the reference of an inmate to a facility inwhich he can receive adequate medical treatment, ordering the measures that have to be adopted, inorder to prevent his escape. Of course in emergency situations, the Penitentiary Administration canauthorize what appears pertinent, having the obligation to submit the matter immediately to theknowledge of the Judge of Execution of the Penalty who can confirm or revoke it.
(vii) Defer the execution of the penalty in the case of a mother in an advanced state of pregnancy or themother has a child less than three months of age, when the life of either one or both may beendangered.

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RESOURCE MATERIAL SERIES No.67(viii) Defer the execution of the penalty in the case of inmates with severe terminal diseases, or affectedby serious maladies that might endanger their lives.
All the jurisdictional attributions in relation with the execution of the penalty are applied in the same way
in the case of the security measures imposed on an inmate. In such a case, the Judge has as well, the duty toreview the application of the measure every six months in order to check if the motivation that justified its
imposition still exits or has disappeared, having the mandate that authorizes him to substitute or modify it.
The efficacy and credibility of the Tribunals of Execution of the Penalty in Costa Rica can easily beverified in the accelerated growth of the number of cases submitted to its knowledge:
Number of Cases Submitted to the Tribunals of Execution of the Penalty
Tribunal

1999

2000

2001

2002

Alajuela

2911

2379

2390

2611

Cartago

668

641

573

544

Limón

627

612

584

517

Puntarenas

345

430

470

513

San José

1271

1436

1030

1153

5117

5498

5047

5338

Total

1997

213

1998

3974

B. Tribunal for the Inspection of the Judiciary
The Courts have an internal disciplinary jurisdiction, to review cases in which justice administration
personnel have been faulted for justice delays, poor service to the public, etc. But, this jurisdiction is notalways very functional, since judges can always argue work overload and logistical deficiencies.
As can be observed in the next chart, the total number of judges that have been sanctioned in the Costa
Rican Tribunal for the Inspection of the Judiciary is extremely low, and the number of cases in which thesentence has been to revoke their mandate, is even lower.10

10 Table Information: Judges Sanctioned by the Tribunal for the Inspection of the Judiciary 1998-2002, Year, Judges accused,
Judges sanctioned, % of sanctions, Revocation of their appointment (dismissed).

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C. The Ombudsman
From 1990 on, with the exception of Brazil, Chile and Uruguay, the countries of the Region haveinstitutionalized a new organ of control: the Ombudsman, that operates both as an agent of vertical andhorizontal control, thus differentiating itself from other control institutions. The Ombudsman receives
inquiries and complaints about the practices and services provided by public agencies. While not an
advocate, the Ombudsman can conduct impartial and confidential investigations to determine if a publicagency is being fair to the people it serves.
The Ombudsman can: provide information about what steps to take in dealing with a public agency; try tosettle complaints through consultation; investigate complaints about administrative unfairness by a publicagency; make recommendations to a public agency to resolve an unfairness; report to Parliament; issue
public reports and submit cases to the Constitutional Branch of the Supreme Court of Justice whenfundamental rights are being violated. Also, it investigates complaints about maladministration when a public
body fails to act in accordance with the rule of law.
Citizens can complain to the Ombudsman when institutions fail to do something they should have done,
when they do it in the wrong way, or when they do something they should not have done. Some of the mostcommon problems that the Ombudsman deals with are unnecessary delays, refusal of information,
discrimination and abuse of power.
In all the countries the Ombudsman has helped to ensure transparency and accountability of publicauthorities, including of course the ones in charge of the penitentiary administration, applying, whennecessary, pressure so that the institutions prove in practice their compliance with the Constitution. As aresult, the service the institutions provide has certainly improved.
Justice delays, failures in the administration of the Penitentiary Systems, prison overcrowding andviolations of the rights of prisoners in the process of execution of the penalty, are recurrent themes that havebeen present in the annual reports of the Ombudsman.11

11 Table Information:

Central America: Number of cases submitted to the Ombudsman. 1995-2001 (CUADRO 7.19), Central
America: Percentage of cases submitted to the Ombudsman in relation to the institution informed against. Various years(CUADRO 7.20)

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The use that citizens give to the Ombudsman’s office in the Central American countries, as can beobserved in the above charts, published in the Ninth Report of the State of the Nation on Sustainable Human
Development, (2002, www.estadonacion.or.cr ), in a period that goes from 1998 to 2002, varied a lot fromcountry to country, ranging from 870 cases in Honduras to 17,612 cases in Costa Rica. It could be that someof the main reasons for the occurrence of such phenomenon are: the low levels of literacy, ignorance of thelaw, ignorance of the existence of the institution itself, and doubts on the efficacy of its work, among others.

V. CONCLUSIONSIn order to conclude the present exposé, it is important to say that the Principles and Guidelines of the
UN Standards and Norms in Crime Prevention and Criminal Justice are simply awaiting implementation in
the Latina American and Caribbean Region.
Solid human rights protection and an independent and vigorous judiciary still need to be significantly
strengthened. Due attention has to be rendered to:
•
•
•
•
•
•
•

the coordination of all crime prevention policies with strategies for social, economic, political andcultural development;
the importance of improved transparency and expediency of the criminal justice system, as well as
fairness in the sanctioning of offenders;the impact of social exclusions and marginalization of the indigenous population, indigents, women,children and migrants, in relation to the application of the rule of law and the access to justice;
the coordination and planning among the different Justice Administration agencies;
the incorporation of community-based judicial practices that pay due respect to the traditions andcustoms of indigenous people - a cross cultural approach;the adequate diffusion of the UN Standards & Norms in this field among concerned officers in thejustice administration systems of the Region as a vital element for their use and application; andthe application of an effective system of transparency and of accountability within the Justice
Administration Sector.

The efforts to implement more equitable standards and norms in crime prevention and criminal justice in
the Region are just starting, but we still aim to see their efficient execution as a reality in the near future.
The burden of labour that this ideal requires is big, but stronger is our will to fight for their application
without claudication.

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APPENDIX A
Ethnic Breakdown
Argentina

European: 85% (mainly Spanish and Italian descent); Indigenous: 9.1%;
Mestizo, Ameridian, and other non-white groups: 15%

Bolivia

Spanish, Mestizo; Indigenous: 21.2%

BrazilPortuguese, Italian, German, Spanish, Japanese, Arab, African
Indigenous people: 34.3%

Chile

Spanish, Mestizo; Indigenous: 33.5%

Colombia

Spanish, Mestizo; Indigenous: 22.1%

Costa Rica

Spanish, Mestizo, African Caribbean; Indigenous: 23.2%

EcuadorSpanish, Mestizo; Indigenous: 40.2%

El Salvador

Spanish, Mestizo; Indigenous: 32.3%

GuatemalaMestizo (Spanish-Indian); Indigenous: 38.7%

Honduras

Mestizo (Spanish-Indian); Afro-Caribbean; Indigenous: 34.6%

Méxicoxico

Indian-Spanish (mestizo), 60%; Indian, 30%; Caucasian, 9%; Other, 1%

Nicaragua

Mestizo (Spanish- Indian); Afro-Caribbean; Indigenous: 23.5%

Panamá
Panam

Mestizo (Spanish-European-Indian): 70%; Indigenous: 10.5%;
Caucasian: 10% Afro-Caribbean: 5%Paraguay

Spanish, Mestizo (Indian & European); Indigenous: 15.0%

Perú
Per

Mestizo (Spanish-Indian); African American; Chinese; Indigenous: 16%

Dominican Republic

Mestizo (Spanish-Indian); Afro-Caribbean; Indigenous: 11.5%

Uruguay

Spanish, Mestizo; Indigenous 17.1%

Venezuela

Spanish, Mestizo African American; Indigenous: 28%

Source: OIT, 2002; University of Georgetown & OAS, 2002; UNDP 2004.

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APPENDIX B

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APPENDIX C

Source: Ninth Report on the State of the Nation on Sustainable Human Development, 2002.

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APPENDIX D
People Killed by the Military Police in the Brazilian State of
Rio de Janeiro, per 100,000 inhabitants - 1995/2001
6
5,1
4,6
4

4,3

3,4

3,4

3,5

2000

2001

3,2
2

0
1995

1996

1997

1998

1999

Source: Police Ombudsman’s offices in the state of Rio de Janeiro

Source: MENDES, Candido, “Drugs, arms, poverty and governability: a Brazilian city in the 21st. Century. In the Expert
Group Meeting Report on the Application of the United Nations Standards and Norms in Crime Prevention and Criminal
Justice, Stadtschlaining, Austria, 2003.

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APPENDIX E
Police Killings 1978-2000
Yearkillings

rate as % homicides

2000
1998
1996
1994
1992
1990
1988
1986
1984
1982
1980
1978

140
145
148
100
145
135
181
179
355
236
234
167

5.4
5.7
5.9
4.0
5.9
5.6
7.7
7.7
15.6
10.9
10.9
8.0

16
15
16
13
19
20
30
29
42
37
21
30

killed

ratio

11
14
10
6
11
6
10
19
10
28
18

1:13
1:10
1:15
1:16
1:12
1:45
1:26
1:20
1:24
1:10
1:09

Data source: Statistics Unit JCF.

Source: MENDES, Candido, “Drugs, arms, poverty and governability: a Brazilian city in the 21st. Century. In the Expert
Group Meeting Report on the Application of the United Nations Standards and Norms in Crime Prevention and Criminal
Justice, Stadtschlaining, Austria, 2003.

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APPENDIX F

Source: UNDP Report on Democracy in Latin America, April 2004.

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APPENDIX G
103 Inmates Die in Horrific Prison Fire in Honduras
BigNewsNetwork.com Tuesday 18th May, 2004
At least 103 prisoners have died, and many more subjected to serious burns, in a major fire at a northern
Honduras correctional facility. It was the worst jail disaster in Honduras and the second time that dozens ofgang members have been killed inside a Honduran prison in a little over a year, Reuters reported. Some
inmates complained that security forces were slow to help Monday and some family members suspected it
was no accident.
Although there was little specific information about the fire victims, many gang members have been
convicted on charges of murder, drug smuggling or robbery. They are often housed together in prisonsbecause of frequent clashes with other groups of inmates.
One of the members who survived said guards at the prison were extremely slow to help the inmates.
“The explosion was above my bed. The fire started at 1:30 (a.m.) and the police arrived to open up thecells at 3:30, although we were shouting ‘Help, help!’” Antonio Hernandez said in an interview with Radio
America.
Family members gathered outside the prison and some suspected foul play.
“Why was the fire only in the area of the gang members? Why wasn’t it in another area where the otherprisoners are? The same thing happened in La Ceiba,” said Sara Gomez, the mother of a Mara Salvatrucha
member, said the Reuters report.

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Fire Caused By Short-Circuit Kills More Than 100 in Honduras Prison
Monday, May 17, 2004 (05-17) 12:01 Pdt San Pedro Sula, Honduras (AP)A fire sparked by a short-circuit killed more than 100 inmates and injured more than two dozen in a
prison in northern Honduras early Monday. It was the second major jail fire in the country in a little morethan a year.
The short-circuit apparently occurred when a refrigerator motor overheated in a cell block housing 186
gang members, Police Commissioner Wilmer Torres said. Some prisoners were burned to death whileothers died from smoke inhalation. There were no reports of any escapes, Torres said.
As word of the fire spread, hundreds of the inmates’ family members began gathering outside the prison,
located in the city of San Pedro Sula, 110 miles north of the capital, Tegucigalpa.
Authorities closed off all streets near the prison as police, rescue crews and army troops worked tocontrol the situation.
“We’re doing everything possible to work fast, but it is chaos,” Torres said.
“Everything happened fast while we were sleeping,” prisoner Jose Mauricio Lopez told a radio stationfrom his hospital bed. “We woke up with our clothes and our beds in flames.”
Authorities said 103 prisoners died, and 25 were taken to area hospitals with injuries after the fire brokeout about 1:30 a.m. Authorities originally estimated the death toll at 90. They later raised it to 101 after
more bodies were found, then to 103 when two prisoners died at the hospital.
The fire already had consumed a large part of the jail when fire-fighters entered. They were able to bringit under control quickly despite resistance from some of the gang members, prison spokesman
Commissioner Jose Bustillo said.
One of the surviving prisoners, Pablo Cardona, claimed that guards “fired at us repeatedly from outside
the cell block to stop us from leaving, despite our cries for help.”
But Bustillo said guards fired guns in the air “to prevent a massive prisoner escape.”
Honduras’ prisons consist of 27 old buildings housing 13,000 prisoners, twice their capacity. The prison
in San Pedro has room for 800 prisoners, but held 1,960 at the time of the fire, Torres said. Authorities
earlier said the prison’s population was 2,200. Torres later noted that some of the inmates had beentransferred to other facilities in recent days.
All of the prisoners in the affected cell block belonged to the Mara Salvatrucha, one of the most violent ofCentral America’s gangs.
There are more than 100,000 gang members belonging to 500 different gangs in Honduras. Most of themembers are between 8 and 35 years old.
Monday’s was the second major jail fire in a little more than a year. Some prisoners were locked in theircells, doused with gasoline, and set on fire, during an uprising at El Porvenir prison on April 5, 2003, thatkilled nearly 70 people, including guards and visitors.
The uprising began with clashes between prisoners, many also gang members. The violence quickly
escalated, and a government report blamed guards for many of the deaths.
http://sfgate.com/cgi-bin/article.cgi?file=/news/archive/2004/05/17/international1501EDT0645.DTL

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Gang Members Call Honduras Jail Fire Arson
Mark Stevenson
Associated PressSAN PEDRO SULA, Honduras - Survivors of a prison fire that officials blamed on a short-circuit claimed
Tuesday that the inferno that killed more than 100 gang members was intentionally set by fellow inmates.
A similar fire that broke out a year ago during clashes at the nearby La Ceiba prison killed 70 gangmembers. As in Monday’s fire, last year’s blaze burned only a cellblock housing the gangs.
Most of those killed were members of the feared Mara Salvatrucha 13 gang, characterized by tattoos ofsaints, skulls, daggers and dice.
“Many of the guys who died in there were in jail just because they had tattoos,” said 18-year-old gangmember Olmon Alberto Contreras, who lay in a hospital bed with severe burns.
At least 103 of 186 prisoners in the cell block - the only one of 18 at the prison to burn - died in the blazeat the state prison in San Pedro Sula, 110 miles north of the capital, Tegucigalpa.
Some were burned to death; others died from smoke inhalation. The death toll was expected to rise as
many of the survivors lay in hospital beds with burns over as much as half their bodies.
The government acknowledged overcrowding and poor conditions in Honduras jail cells and promised toprovide more funding.
But some survivors alleged that other inmates set the fire by throwing gasoline into their cell block andlighting the fuel, while officials stood by and did nothing. The gang members say the guards’ apathy was partof a government strategy of elimination that began with last year’s federal anti-gang law.
“When you sow hatred, you reap hatred,” Contreras said. “As you treat us, we will treat you. If you hit
me, I must seek revenge.”
Government authorities deny they are out to exterminate the gangs but say tough action is necessary tocontrol an increasingly violent force blamed for everything from common crimes to grisly homicides.
Many of those killed Monday were detained during the country’s recent crackdown on the estimated
100,000 gang members in Honduras.

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