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  • The Legal Fiction of the Right to Defense in the Colombian Criminal Justice System
  • Manuel Iturralde (bio)


This is the story of Omar, a man convicted of murder and sentenced to seventeen years in prison. Despite appearances, this is also the story of a criminal justice system that fails to effectively guarantee the fundamental rights of the defendant. Omar’s case is not unique, but a telling example of the systematic failure of the Colombian criminal justice, which is not fit for the purpose of protecting the constitutional rights to access to justice and to defense. This is even more worrisome, when considering that those whom the system fails are, in most cases, members of the most disadvantaged social groups. A middle- or upper- class defendant stands a better chance of justice because they have the economic and social resources to secure the legal counsel of highly skilled and motivated private lawyers, which most people being prosecuted and put in prison cannot afford.

Through the account of Omar’s case, this article will discuss the legal fiction of the right to access to justice and to defense in the Colombian criminal justice system, pinpointing its features and especially its systematic shortcomings, despite legal guarantees and recent legal reforms. This article will also try to make sense of why this is the case and how it is not a peculiarity of the Colombian criminal justice, but rather a worrying trend that affects different liberal democracies from the global north and south. These liberal democracies have embraced a highly punitive and exclusive political economy of punishment, which disproportionately affects members of the lower classes.

As discussed in the introduction of this special issue, there is a clear and direct connection between global poverty and inequality on the one [End Page 289] hand, and limited access to justice on the other. The promises made by liberal democracies regarding access to justice are far from being realized in social reality. In many liberal democracies—both of the global north and south—increasing class, social, and legal market disparities constitute an acute form of discrimination that hinders the government’s provision of effective legal representation for those unable to pay. In the current social and economic conditions of liberal democracies across the globe, such situations affect a substantial portion of the population and act as a form of structural inequality and injustice.

In the first section of the article, I will discuss Omar’s case to show why he did not have a fair trial, and particularly how his rights to access to justice and to defense were infringed, both by the public defense he was provided and by the judges that decided his case.

In the second section, I will show that Omar’s case is a telling illustration of the features of the Colombian criminal justice system, which systematically and disproportionately sentences and imprisons marginalized and poor people––in great measure because they lack the financial resources to pay for better and more motivated legal counsel. Thus, Colombian criminal justice does not treat fairly those who have to resort to the public defense system—the majority of those being processed. Given their limited resources, work overload and lack of incentives, public defenders in practice struggle to effectively provide the minimal standards of an adequate, technical defense. Consequently, this puts the accused in a disadvantaged position vis-à-vis the prosecution, which is more powerful and has more means and incentives to perform its task.

In the third section, I will discuss why the government’s unfair treatment of the most disadvantaged members of Colombian society is made possible by a system that, in practice, is not impartial, and how this trend has continued, if not worsened, under the new accusatorial model. Within this model, the prosecution and the defense legally stand on equal ground before a judge. The former has to prove beyond a reasonable doubt the accused’s guilt, while the latter’s function is to protect the rights of the defendant, particularly the presumption of innocence. This arrangement guarantees the proper function of the criminal justice system and the limits of State coercion. But in practice, the structural and financial...


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pp. 289-327
Launched on MUSE
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