RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES - An analysis of criminal justice bodies in Latin America and West Africa
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RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES An analysis of criminal justice bodies in Latin America and West Africa
Transparency International is a global movement with one vision: a world in which government, business, civil society and the daily lives of people are free of corruption. With more than 100 chapters worldwide and an international secretariat in Berlin, we are leading the fight against corruption to turn this vision into reality. Resisting corruption along drug trafficking routes An analysis of criminal justice bodies in Latin America and West Africa Authors: Andy McDevitt, Jessie Bullock Reviewers: Ádám Földes, Anne Liedloff, Kaunain Rahman Cover: Bogdan Vija / shutterstock.com Every effort has been made to verify the accuracy of the information contained in this report. All information was believed to be correct as of March 2021. Nevertheless, Transparency International cannot accept responsibility for the consequences of its use for other purposes or in other contexts. ISBN: 978-3-96076-177-8 2021 Transparency International. Except where otherwise noted, this work is licensed under CC BY-ND 4.0 DE. Quotation permitted. Please contact Transparency International – copyright@transparency.org – regarding derivatives requests. This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of Transparency International and can under no circumstances be regarded as reflecting the position of the European Union.
TABLE OF CONTENTS Executive summary 2 Key findings 14 Key findings 2 Socio-political context 14 Recommendations 3 Legal frameworks 16 Introduction 7 Assessment of criminal justice institutions 18 Assessment of investigation bodies 19 Drug trafficking, organised crime and 7 corruption Assessment of prosecution bodies 23 Drug trafficking routes: Latin America and Assessment of adjudication bodies 27 7 West Africa Fighting organised crime along drug trafficking 10 routes Recommendations 32 The CRIMJUST project 10 Methodology 12 Endnotes 35
TRANSPARENCY INTERNATIONAL EXECUTIVE SUMMARY Drug trafficking threatens good governance and fuels corruption, creating a vicious cycle where criminal justice institutions falter and the drug trade grows. Ordinary people become caught up in violence, extortion and drug addiction. Money laundering from drugs reduces economic growth and reinforces income inequality. Cocaine is one of the most lucrative and damaging drug KEY FINDINGS trades. It stretches from producer countries like Bolivia, Colombia and Peru through the entire Latin American The nine countries all vary in both their legislation region. In recent years, Europe has become the world’s for organised crime and drug trafficking and the fastest-growing market for cocaine. Most cocaine socio-political contexts in which their criminal justice reaches Europe through the Caribbean and, since the institutions operate. Consequently, it is not possible mid-2000’s,1 West Africa, where drug cartels have taken to make any direct cross-country comparisons advantage of institutional weaknesses, corruption and between the different investigation, prosecution and unguarded coastlines to establish new trafficking routes. adjudication bodies. Nevertheless, an analysis of the data across all nine countries reveals some general As part of a multi-partner initiative led by the United trends and suggests common areas for intervention: Nations Office on Drugs and Crime (UNODC) known as the CRIMJUST project, Transparency International + Formal internal accountability mechanisms were has developed the Justice and Law Enforcement the strongest dimension across all three criminal Accountability Dashboard (JustLEAD). JustLEAD aims justice areas (investigation, prosecution and to identify and address integrity, accountability and adjudication) in almost all countries (Colombia, transparency gaps in the criminal justice institutions Ghana, Guatemala, Honduras, Nigeria, Panama, fighting organised crime and drug trafficking in Peru and Venezuela). Nevertheless, while there countries along the cocaine route, namely Colombia, are generally strong rules of professional and the Dominican Republic, Guatemala, Honduras, ethical conduct and moderately strong internal Panama, Peru and Venezuela in Latin America, as well control measures in place, regular training and as Ghana and Nigeria in West Africa. Transparency capacity building on ethics is consistently lacking. International chapters in each country selected three criminal justice bodies – each charged with the + Financial and human resource capacity was investigation, prosecution or adjudication of organised strong for investigation and prosecution bodies crime cases – for in-depth assessments. The focus across all countries. Limited capacity was one of was the effectiveness of each institution in addressing the most pressing weaknesses of adjudication the risks of infiltration by organised crime, namely: bodies, however. While most investigation and internal and external oversight; protection for victims prosecution bodies receive adequate training and and witnesses; transparency; channels for civil society technical assistance for organised crime and drug participation; financial and human resource capacities; trafficking, capacity gaps exist (in the Dominican and independence and integrity safeguards. Republic, Ghana, Nigeria and Venezuela, and Ghana, Honduras and Venezuela, respectively). This report presents the main trends emerging from the national assessments and provides recommendations + External accountability mechanisms were strong on priorities for reform. or moderately strong in all three criminal justice 2
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES areas in most countries (Colombia, Dominican Capacity building Republic, Ghana, Guatemala, Honduras and Nigeria). + Ensure that criminal justice institutions have + The independence/autonomy and integrity of adequate financial and human resources to criminal justice bodies was limited in all countries, effectively carry out their mandates. particularly in adjudication bodies, which in some cases are seriously compromised by undue external + Provide personnel with capacity building on the influence (Panama, Peru and Venezuela). ethics codes and internal control systems at least once a year. Attendance at trainings and + Limited opportunity for civil society to participate adherence to the ethics code should be criteria in and oversee the criminal justice process was a for promotion and advancement. common weakness, especially in investigation and adjudication bodies. Existing collaborations between Good practices criminal justice institutions and communities, civil society organisations and civilian oversight initiatives + Ensure that nominations, appointments, are often sporadic and inconsistent. Engagement promotions and removals – especially to senior with the media often lacks consistency and a formal positions – are based on transparent, objective protocol. and meritocratic criteria and subject to clearly defined processes to help limit internal and + Transparency was higher in prosecution and external interference. adjudication bodies than investigation bodies, although there are still important gaps in all three + Publish annual asset declarations for judges and areas. Generally speaking, investigation bodies prosecutors and develop internal policies for the publish limited information on the numbers and declaration and verification of assets. types of criminal cases they pursue, although financial information (e.g. budget, spending and + Regularly publish data on the results of internal audit information) tends to be slightly more disciplinary processes, including the number comprehensive. and types of complaints received and sanctions imposed to enable external stakeholders to hold + Inadequate protections for witnesses and victims criminal justice institutions accountable for the of organised crime, as well as inadequate threat ways in which they deal with misconduct. management systems for law enforcement officials, was one of the most critical gaps across the majority + Regularly publish data on the number and of countries for investigation and prosecution types of criminal cases pursued, including the institutions (Dominican Republic, Ghana, Guatemala, investigation’s start date, end date and result. All Honduras, Nigeria, Panama, Peru and Venezuela). information should be published in open data formats. + Process internal matters (nominations, RECOMMENDATIONS appointments, promotions, removals and disciplinary actions) and caseloads in a timely Taking into account distinct national contexts, our manner. analysis of the criminal justice institutions in the nine countries suggests that all investigation, prosecution and The following recommendations addressing integrity, adjudication bodies charged with organised crime and accountability and transparency gaps are relevant drug trafficking should at a minimum: to the criminal justice institutions in most assessed countries: Support and trainings Internal oversight + Provide specialised training and technical support to investigators and prosecutors who work on complex + Ensure that regularly updated and gender- organised crime cases. sensitive complaint channels are in place and 3
TRANSPARENCY INTERNATIONAL disseminated to public officials and civil society + The Superior Council of the Judiciary (Consejo members. Superior de la Judicatura) should conduct training and raise awareness among court officials about + Ensure that the internal disciplinary mechanism the Law on Transparency and the right to access has a sufficient budget to support its functions. public information. Protections + The Superior Council of the Judiciary (Consejo Superior de la Judicatura) should provide the + Build robust and adequately funded witness- National Judicial Disciplinary Commission and and victim-protection and threat-management Disciplinary Commission with adequate technical systems, which also protect personnel and family and financial resources. members, where relevant. + The government should pass a single law for the + Implement comprehensive whistleblower protection of whistleblowers and witnesses of protection mechanisms, which guarantee corruption, and all institutions should strengthen anonymity, protection from reprisals and their respective legal and institutional mechanisms. immunity from disciplinary action. The absence of national-level whistleblower protection legislation Dominican Republic should not impede institutions from adopting such mechanisms. + The National Directorate of Drug Control (Dirección Nacional de Control de Drogas, DNCD) and the Civil society participation Public Prosecutor’s Office (Procuraduría General de la República, PGR) should raise awareness and + Implement formal policies and maintain financial build capacity on human rights and dealing with resources to support engagement with civil society victims of organised crime. organisations and the media, including civilian oversight and monitoring initiatives and legal + The National Directorate of Drug Control engagement with civil society organisations acting (Dirección Nacional de Control de Drogas, DNCD) as plaintiff. and Public Prosecutor’s Office (Procuraduría General de la República, PGR) should establish and The following recommendations were also identified implement guidelines to ensure that admissions for specific countries: and promotions are professional, time-limited, and based on transparent evaluations. Colombia Ghana + A new investigation and prosecution mechanism should replace the current extraordinary judicial + The Narcotics Unit of the Ghana Police Service mechanism for high-ranking public officials2 in should ensure full operationalisation of the order to reduce impunity. recently developed case management and tracking system to enhance transparency during the + The National Police (Policía Nacional) should investigation, prosecution and adjudication of a build capacity in access to public information, case. citizen services, anti-corruption, offences against public administration and human rights; make + The government should establish an Independent public their staff-selection processes; and review Police Complaints Commission, which Ghana the schemes for transferring personnel and accepted at the UN Human Rights Council in monitoring police functions. November 2017. + The Office of the Attorney General (Fiscalía + The Ministry of Justice and Attorney General General de la Nación) should strengthen its should update the Ghana Code for Prosecutors, communication guidelines to protect the integrity which has not been updated since 2010, and of criminal proceedings while ensuring the right to integrate it into the standard operating procedures information. of the Prosecution Division. 4
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES + The Right to Information Commission, in + The National Drug Law Enforcement Agency collaboration with the Ministry of Information (NDLEA) should improve the welfare and and the National Commission for Civic Education, promotion policy of its officers. should scale up its public education efforts on the Right to Information Act, 2019 (Act 989). + The Nigerian government should enact whistleblower protection legislation. + All three institutions should establish online complaint platforms. + The Nigeria Police Force (NPF) should make public its financial report. Guatemala Panama + The National Police (Policía Nacional Civil) and Prosecutor’s Office against Organised + The Judicial Investigation Department (Dirección Crime (Fiscalía contra el Crimen Organizado) Nacional de Investigación Judicial) should review should establish protocols for the protection of its disciplinary mechanism and bring it in line with whistleblowers, victims, witnesses and personnel, human rights protection standards, particularly and implement capacity-building programmes. in relation to due process for the defence of the person under disciplinary investigation. + The Public Ministry (Ministerio Público) should establish protocols for the selection of personnel + An external body should be created by law to in the Prosecutor’s Offices against Organised control, supervise and investigate misconduct by Crime, Extortion, Drug Trafficking and Corruption high-ranking officials of the public security forces. (Fiscalías de Crimen Organizado, Extorsiones, This body should have the power to investigate Narcotráfico y Corrupción). misconduct and decline to refer it to the Public Prosecutor’s Office (Procuraduría General de la + The Guatemalan judicial system should be Nación), if the allegations indicate a crime under reformed in order to ensure judicial and criminal law or special laws. prosecutorial independence. + The judicial career system should be fully Honduras implemented, so that interim judges and magistrates cease to exist. In order to guarantee + The judicial system should develop and implement judicial independence and gain pubic trust, a access-to-information standards, and promote short-term timetable should be established for the greater participation and oversight of citizens and selection of judges, especially those serving in the civil society organisations in order to replace the adversarial criminal justice system. need for assistance from international cooperation agencies. + The Public Prosecutor’s Office (Procuraduría General de la Nación) should adopt a code of + The judicial system should establish ethics based on the Uniform Code of Public Ethics, comprehensive and sustainable policies to fight especially for personnel tasked with investigating organised crime and corruption, which will not be organised crime. influenced by changes in government. Peru Nigeria + All criminal justice institutions should update + The criminal justice institutions should adhere to their virtual platforms to include the following: the provisions of the Freedom of Information Act information on investigations with a major impact 2011. on society and on judicial decisions in accordance with Legislative Decree No. 1342; statistical data on + The Nigeria Police Force (NPF) should increase organised crime investigations; and information publicity for the Police Complaint Response Unit on offenses committed by police officers and (CRU) complaint channels. prosecutors and their respective penalties. In 5
TRANSPARENCY INTERNATIONAL addition, police officers, prosecutors and judges’ curricula vitae and information on the institutions’ accounting and financial audits should be published. + Information campaigns on organised crime should be developed in communities’ mother tongues, and with a focus on drug and human trafficking. + The implementation process of the national control authorities at the Judiciary and the Prosecutor Office, which were created in 2019, should be strengthened in order to reinforce and enhance autonomy of internal control. Venezuela + The Scientific and Criminal Investigation Body (Cuerpo de Investigación Científica, Penal y Criminalística, CICPC) should build capacity for the protection of whistleblowers, victims and witnesses. + The appointment of the Director of the Scientific and Criminal Investigation Body (Cuerpo de Investigación Científica, Penal y Criminalística, CICPC) should be subject to a public and competitive process and based on objective and meritocratic criteria in order to eliminate external and internal political influences. + The independence of the Public Ministry (Ministerio Público) and the Criminal Cassation Chamber of the Supreme Tribunal of Justice (Sala de Casación Penal Tribunal Supremo de Justicia) should be re-established. + All criminal justice institutions should establish clear protocols for the protection of public officials involved in the investigation, prosecution or adjudication of organised crime cases. 6
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES INTRODUCTION DRUG TRAFFICKING, ORGANISED CRIME AND Drug trafficking also hurts the economy. Money CORRUPTION laundering, including from illicit drug activities, can reduce economic growth rates,17 “particularly According to Europol, over one third of the in smaller and less developed countries”.18 This international organised crime groups active in the money “has the potential to inflate property prices, European Union were involved in drug trafficking in distort export figures, create unfair competition, and 2017,3 making it “more widespread than organised reinforce skewed income and wealth distributions property crime, smuggling of migrants, trafficking in and increase corruption”.19 An extreme example is a human beings, excise fraud or any other illicit activity”.4 narcoeconomy,20 with direct costs such as decreasing foreign investment due to non-functional justice Drug trafficking threatens governance and the rule of systems and reputational concerns, and the closing law and fuels corruption in a vicious cycle.5 According down of correspondent banks due to high money to the UNODC, “the wealth and power of some drug laundering risks.21 Indirect or social costs may include trafficking organisations can exceed that of local increased income inequalities, which in turn may governments, allowing them to buy protection from lead to more drug trafficking, as criminal activities law enforcement agents, criminal justice institutions, may present a source of income for marginalised politicians and the business sector”.6 As a result, population groups.22 weak rule of law is both a consequence7 and an “underlying factor that feeds this cycle”.8 Organised DRUG TRAFFICKING ROUTES: LATIN AMERICA criminal groups may attempt to influence the judicial AND WEST AFRICA system by seeking to corrupt the police to protect their illegal activities from planned operations,9 or The cocaine trade is one of the most lucrative and influencing judges and prosecutors “ to undermine damaging forms of drug trafficking. It has evolved police investigations, influence witnesses, reduce significantly in recent years, expanding from Bolivia, sentences or provide special prison treatment”.10 The Colombia and Peru to the entire Latin American region vulnerability11 of criminal justice institutions may be with Brazil, Central America, Mexico and Venezuela as influenced by different legal, social, cultural, economic central corridors for trafficking. At the same time, the and political factors.12 Issues include failure to appoint primary destination for cocaine has also changed, with officials based on merit, poor working conditions, Europe becoming the world’s fastest growing market.23 a lack of accountability mechanisms and a lack of Cocaine has become Europe’s most commonly used transparency with the media and civil society.13 Where illicit stimulant drug, with about four million adults weak institutions and drug trafficking come together, estimated to have used it in 2018.24 According to ordinary people suffer from violence, extortion and UNODC estimates from 2009, about one third of drug addiction. Organised crime undermines criminal the proceeds of cocaine sales at the global level are justice institutions with bribery, extortion and threats, laundered abroad.25 which result in failed investigations and prosecutions.14 The resulting impunity creates opportunities for new From the South American producer countries, cocaine crime and corruption. The public also loses trust in shipments reach Europe via various routes and political and criminal justice institutions.15 Fragile methods.26 There are two main transit areas: the states come under additional pressure and can face an Caribbean (principally the Dominican Republic and increased risk of electoral violence.16 Jamaica), from where cocaine is transported via sea 7
TRANSPARENCY INTERNATIONAL Mexico DOMINICAN REPUBLIC Cape Belize HONDURAS GUATEMALA Nicaragua El Salvador VENEZUELA Costa Rica PANAMA COLOMBIA Guyana Suriname Ecuador or air routes; and the West African mainland and neighbouring islands with shipments to Europe by sea, air and land.27 The region’s growing role in the global cocaine market is shown by record cocaine PERU Brazil seizures in recent years in transit to West Africa or inside the region itself.28 Latin American cartels Bolivia have taken advantage of the institutional weakness, high corruption levels and unguarded coastlines in many African countries to establish this route for Chile Paraguay trafficking.29 “The growth in drug trafficking comes as the region is emerging from years of political conflict and, in some countries, prolonged violence. This instability has left a legacy of fragile state institutions Argentina Uruguay and weak criminal justice systems that are vulnerable to infiltration and corruption by organised crime”.30 Drawn from the Map of the Global Illicit Flows Programme of the European Union.31 8
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES Belarus Ukraine Moldova Kazakhstan Bosnia & Serbia Herzegovina Montenegro UNMIK North Georgia Uzbekistan Kyrgystan Macedonia Albania Armenia Azerbaijan Turkey Turkmenistan Tajikistan Afghanistan Morocco Iran Pakistan Verde Mauritania Mali Niger Senegal Chad The Gambia Burkina Faso Guinea Guinea Benin Bissau Sierra Togo Leone Cote d’Ivoire Central African Ethiopia Republic Cameroon GHANA NIGERIA Uganda Kenya Gabon DRC Tanzania Seychelles Zambia Mozambique Mauritius Namibia Madagascar South Africa 9
TRANSPARENCY INTERNATIONAL FIGHTING ORGANISED CRIME ALONG DRUG are examples of regional anti-corruption mechanisms TRAFFICKING ROUTES in the Americas. In Africa, the ECOWAS Protocol of the Fight against Corruption “was adopted with the At the global level, there are a number of international objective of strengthening effective mechanisms to legal instruments in place to combat drug trafficking prevent, suppress and eradicate corruption in each and organised crime, including the United Nations of the State Parties through cooperation”40 and Convention against Transnational Organised Crime the African Union Convention on Preventing and (UNTOC), United Nations Convention against Combating Corruption provides “a shared roadmap for Corruption (UNCAC) and the United Nations member states to implement governance and anti- Convention against the Illicit Traffic in Narcotic Drugs corruption policies and systems”.41 and Psychotropic Substances. These complement each other and provide the legal foundation to investigate, THE CRIMJUST PROJECT prosecute and adjudicate organised crime and corruption cases.32 In particular, the United Nations The CRIMJUST project is a key cross-regional initiative Convention against Illicit Traffic in Narcotic Drugs and funded by the European Union and implemented Psychotropic Substances “provides comprehensive by UNODC in partnership with INTERPOL and measures against drug trafficking, including provisions Transparency International. CRIMJUST is aimed at against money laundering”.33 Furthermore, it allows strengthening criminal investigation and criminal for “international cooperation through, for example, justice cooperation as well as institutional integrity extradition of drug traffickers, controlled deliveries and and accountability along drug trafficking routes in transfer of proceedings”.34 Latin America, the Caribbean and West Africa. The project also assists member states towards the These international legal instruments are supported by further development of the Global Goals of the 2030 various regional initiatives to combat drug trafficking, United Nations Agenda with special focus on Goal organised crime and corruption. In the Americas 16: “Promote peaceful and inclusive societies for region, for example, the Organisation of American sustainable development, provide access to justice States (OAS) has developed the Hemispheric Plan for all and build effective, accountable and inclusive of Action on Drugs (2021-2025), which identifies five institutions at all levels”.42 strategic areas, and sets objectives and priority actions for each of the 34 member states, namely: institutional strengthening; measures of prevention, treatment and recovery support; measures to control and counter THE ROLE OF CIVIL SOCIETY IN THE the illicit cultivation, production, trafficking and FIGHT AGAINST ORGANISED CRIME distribution of drugs, and to address their causes and consequences; research, information, monitoring and Combatting drug trafficking and organised evaluation; and international cooperation.35 In West crime requires resilient and properly resourced Africa, meanwhile, UNODC developed the Regional criminal justice institutions that the public can Programme for West Africa (2016-2020)36 to support trust. Civil society organisations (CSOs) can the Regional Action Plan in line with the Political play a crucial role in constructively pressuring Declaration on the Prevention of Drug Abuse, Illicit governments and institutions to be more Drug Trafficking and Organised Crime in West Africa – transparent and accountable.43 At the same the Abuja Declaration, which had been adopted by the time, “governments are increasingly sensitive to Economic Community of West African States (ECOWAS) allegations of involvement or complicity in drug in 2008.37 The Regional Programme for West Africa trafficking”.44 Civil society can be a watchdog that (2016-2020) addressed issues such as strengthening monitors institutions for potential infiltration criminal justice systems; preventing and countering by organised crime and an advocate for policy transnational organised crime and illicit trafficking; and reforms.45 In recognition of the importance of preventing and countering corruption.38 such cooperation in addressing transnational organised crime, the CRIMJUST project includes a The Inter-American Convention against Corruption strong focus on multi-stakeholder and civil society “which recognises the international reach of corruption partnerships for capacity-building and South- and the need to promote and facilitate cooperation South cooperation. between states in order to fight against it”39 and MESICIC, its follow-up mechanism for implementation, 10
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES Building on the CRIMJUST project, Transparency + To formulate specific and measurable International has developed the Justice and Law recommendations for the institutions; Enforcement Accountability Dashboard (JustLEAD) to identify and address integrity, accountability and + To advocate for reforms in criminal justice transparency gaps in criminal justice institutions institutions, on a regional and international scale; fighting organised crime along drug trafficking routes.46 JustLEAD was developed through an in-depth review + To monitor progress and improvements made of international instruments47 in consultation with over time, which incentivises reform. experts and practitioners from Latin America, the Caribbean and West Africa, and from UNODC. The Recognising that criminal justice institutions do not approach has been implemented by Transparency operate in a vacuum, Transparency International International chapters in Colombia, the Dominican chapters first analysed the legal, social and political Republic, Guatemala, Honduras, Panama, Peru and contexts of their respective countries to identify Venezuela in Latin America, as well as in Ghana underlying causes of institutional weaknesses. Based and Nigeria in West Africa, to achieve the following on this analysis, three institutions were selected in each objectives: country for an in-depth assessment: one institution that focuses on investigation, one that focuses on + To identify the specific problems that criminal prosecution and one institution that focuses on justice institutions must address, by assessing the adjudication of organised crime cases of drugs their integrity, accountability and transparency trafficking (see Table 1).48 mechanisms against international standards; Table 1: Principle investigation, prosecution and adjudication bodies assessed in each country COUNTRY INVESTIGATION PROSECUTION ADJUDICATION COLOMBIA Dirección de Antinarcóticos - Dirección de Narcotráfico - Consejo Superior de la Judicatura Policía Nacional Fiscalía General de la Nación GHANA Narcotics Unit - Ghana Police Ministry of Justice & Attorney- Criminal Division of the High Service General Court DOMINICAN Dirección Nacional de Control de Procuraduría General de la – 48 REPUBLIC Drogas (DNCD) República (PGR) Subdirección General de Análisis e Fiscalía contra el Crimen Juzgados y Tribunales de Mayor GUATEMALA Información Antinarcótica, Policía Organizado - Ministerio Público Riesgo, Organismo Judicial Nacional Civil HONDURAS Agencia Técnica de Investigación Fiscalía Especial contra el Crimen Juzgado de Letras Penal con Criminal Organizado Jurisdicción Nacional NIGERIA Nigeria Police Force (NPF) National Drug Law Enforcement Federal High Court Agency (NDLEA) PANAMA Dirección Nacional de Procuraduría General de la Órgano Judicial Investigación Judicial Nación PERU Policía Nacional - Dirección Ministerio Público - Fiscalías Poder Judicial - Sala Penal Nacional de Investigación Criminal contra la Criminalidad Organizada Nacional VENEZUELA Cuerpo de Investigación Científica, Ministerio Público Sala de Casación Penal Tribunal Penal y Criminalística (CICPC) Supremo de Justicia 11
TRANSPARENCY INTERNATIONAL METHODOLOGY Civil society participation: The channels through which an institution engages with the public and civil Each of the criminal justice institutions was assessed society to improve internal decision-making processes using indicators in seven key dimensions (see Table and develop or improve security or crime-fighting 2, below)49 to evaluate the mechanisms in place to policies, including via external civilian oversight promote integrity, accountability and transparency, as and engagement with the media. The indicators well as their implementation.50 The seven dimensions assess whether the institution actively engages with were: the public and civil society; and has sound policies for engagement with the media that disseminate Internal oversight: Policies, procedures and important information to the public but at the same safeguards to self-regulate and prevent personnel from time safeguard the integrity, independence and abusing their powers, rights and privileges. The internal impartiality of criminal investigations, prosecutions and oversight indicators include the existence of clear rules adjudications. of conduct and ethics; an effective internal complaints and disciplinary process to address misconduct; and Capacity: The financial, technical and human a system of checks on internal functions, such as resources for criminal justice institutions to carry out prosecutorial discretion. their respective mandates to investigate, prosecute and adjudicate organised crime cases. The indicators Protections: Processes and mechanisms to examine whether the necessary resources are in provide essential protections for victims, witnesses, place and examine the levels of specialised training whistleblowers and public officials, as well as their and technical support provided to public officials with families, involved in the investigation, prosecution or investigative and prosecutorial responsibilities. adjudication of an organised crime case. Independence and integrity: The mechanisms to External supervision: Mechanisms that enable an protect an institution’s integrity and carry out its outside independent entity, such as an anticorruption mandate free from undue external influence. The agency, ombudsman, independent commission, indicators assess whether the institution has selection, legislative committee or civil society organisation, to appointment and recruitment processes that are effectively investigate allegations of misconduct by an based on merit and are transparent, especially institution’s personnel and recommend disciplinary for the head of the institution and the head of the sanctions or refer cases for criminal prosecution. specialised units. This dimension also includes whether The external oversight indicators examine the performance-evaluation and promotion processes accessibility of external complaint channels, and the promote independence and adherence to ethical rules; powers, responsiveness and independence of the whether the institution has unencumbered access to external oversight body. They also assess whether and management discretion over its budget; whether the institution’s senior personnel are required to removal processes of public officials have been submit asset declarations and whether those asset misused to undermine the investigation, prosecution declarations are effectively reviewed. For each or adjudication of organised crime; whether the selected institution, the national chapters identified for institution’s personnel have fallen victim to interference evaluation at least one public body with the authority by organised crime groups; and whether the principle to investigate allegations of corruption and/or to of limited immunity is implemented to prevent undue ensure that appropriate action is taken if violations are external influence while also allowing public officials to found. be held accountable for wrongdoing, including criminal acts. Transparency: The availability and accessibility of information on the performance and internal functions The indicators guided Transparency International of an institution. The indicators examine pro-active chapters by providing a scoring question with three transparency, meaning the information that the possible answers: “Yes/Green”, “Partial/Yellow” and institution publishes or makes readily accessible, “No/Red”. The assessment of each institution was its quality and whether it is systematically collected carried out through the collection of data from primary and updated. The indicators also assess whether the and secondary sources: interviews with key actors such institution meets basic requirements of transparency in as public officials in the selected institutions, contacts responding to requests for information. in external oversight bodies, civil society organisations, 12
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES journalists and donor organisations working on the This report does not intend to offer a comprehensive criminal justice sector; official documents; and media picture of the institutional strength of law enforcement articles. Transparency International chapters also and justice institutions charged with fighting organised conducted field tests of requests for information and crime in the respective countries, but a qualitative site visits to the institutions. The analyses of relevant approach that builds on the best efforts made by areas of law in each country were based on the Transparency International chapters to collect detailed UNCAC and UNTOC Conventions to which all assessed information and to identify gaps in the integrity, countries are States Parties. The socio-political context accountability and transparency mechanisms of these was analysed through a set of guiding questions and institutions. key indicators. The assessments and collection of data cover the years 2017 and 2018. The findings for each All nine countries vary in terms of both legislation in country, once externally validated, were presented place to tackle organised crime and drug trafficking via the JustLEAD online dashboard.51 These findings and the socio-political contexts in which their criminal form the basis of the analysis in the remainder of this justice institutions operate. The report reveals report. some general trends but does not make any direct cross-country comparisons between the different investigation, prosecution and adjudication bodies. Table 2: Dimensions and indicators INTERNAL PROTECTIONS EXTERNAL TRANSPARENCY CIVIL SOCIETY CAPACITY INDEPENDENCE OVERSIGHT SUPERVISION PARTICIPATION AND INTEGRITY Power of Publication of Financial Checks on internal Ethics rules Whistleblower external information on Engagement with and human investigative protections oversight body/ cases civil society resources functions ies Organised Witness Independence Publication of Support of civilian crime Professional Ethics training and victim of external information on oversight of training appointment/ protection oversight body/ internal oversight institution and selection/ ies technical recruitment support52 Resources Responsiveness Publication and Performance Checks Protection of external of financial Policy toward support evaluations and oversight body/ information media for internal promotions ies disciplinary mechanism Internal Asset Responsiveness disciplinary declarations to requests for mechanism information Internal Transparency responsiveness of jurisdictional to complaints functions53 13
TRANSPARENCY INTERNATIONAL KEY FINDINGS SOCIO-POLITICAL CONTEXT + Colombia, the Dominican Republic and Peru scored lower than the top two countries, but the The JustLEAD assessments find differences between majority of their ranks vis-à-vis other countries the countries’ criminal justice institutions’ vulnerability were in the third quintile (40th percentile) or to corruption. There is still significant variation higher. between the measures these countries have taken to fight organised crime. In social and political context, + Guatemala, Honduras, Nigeria and Venezuela: the assessed countries diverge across broad measures These four countries score in the bottom two of impunity, corruption, rule of law, accountability, quintiles in most of the analysed governance media freedom and political rights, which directly affect metrics. In particular, Venezuela stands out as their ability to fight organised crime and build strong performing significantly worse than its peers, with crime-fighting institutions. Table 3, below, presents the scores in the bottom quintile in all of the seven results of several leading governance metrics.54 indices. + Ghana performs best with scores in the top and second quintile in three of the seven indices, followed by Panama scoring in the second quintile in two of the seven indices. 14
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES Table 3: Percentile ranks of assessed countries on key governance metrics INDEX NAME COL REP. GHA55 GUA HON NIG56 PAN PER VEN (YEAR) DOM Global Impunity Index 12 32 28 17 23 7 9 (2017)57 Corruption Perceptions 47 24 56 19 19 19 44 44 4 Index (2019)58 Worldwide Governance Indicators 55 54 66 35 31 35 67 57 10 (WGI): Voice & Accountability (2019)59 Worldwide Governance Indicators 38 42 55 14 15 19 51 33 0 (WGI): Rule of Law (2019)60 Worldwide Governance Indicators 48 25 52 19 23 13 30 37 4 (WGI): Control of Corruption (2019)61 World Press Freedom Index 28 69 85 36 19 33 56 53 18 (2019)62 Freedom in the 55 57 71 43 37 40 73 61 16 World (2019)63 The percentile rank indicates the relative position of each country relative to all countries in the respective index. 0 corresponds to the lowest rank and 100 corresponds to the highest rank. In the table below, each index has been re-scaled to provide the percentile rank for each country. Percentile ranks are colour coded according to five groups, which represent the top 20%, second 20%, third 20%, fourth 20% and bottom 20% respectively for each index. KEY Top quintile Second quintile Third quintile Fourth quintile Bottom quintile (80-99) (60-79) (40-59) (20-39) (0-19) 15
TRANSPARENCY INTERNATIONAL There are a couple of troubling trends across all + Ghana and Peru had the strongest legislation assessed countries. All scored poorly on the Global to combat organised crime and drug trafficking. Impunity Index, with four countries falling in the Both countries have implemented laws in all 12 bottom quintile (Colombia, Honduras, Peru and assessed areas. Venezuela) and on the Worldwide Governance Indicator’s Rule of Law index, with four countries also + The Dominican Republic, Guatemala and Nigeria falling in the bottom quintile (Guatemala, Honduras, lack a whistleblower protection law and legal Nigeria and Venezuela). The Global Impunity Index provisions to protect witnesses and victims. measures the level of impunity based on an analysis of the security sector, the justice sector and respect + Colombia and Honduras have not enacted for human rights, and serves as a useful proxy for the legislation in two different areas to tackle effectiveness of the criminal justice institutions in the organised crime and drug trafficking: a respective countries. The Rule of Law index is another whistleblower law and any type of criminal, civil indicator for the functioning of justice institutions. It or administrative liability of legal persons for measures the confidence of citizens and the private participation in serious crimes involving organised sector in the rule of law in their countries, as well as crime. the protection of property rights, the quality of contract enforcement, the justice sector and the prospect of + Panama and Venezuela were only deficient in one crime. of the 12 areas of law. They fell short on enacting a law to protect whistleblowers. By contrast, the assessed countries perform better on Reporters Without Borders’ World Press Freedom Perhaps the most widespread and urgent gap across Index and Freedom House’s Freedom in the World almost all of the assessed countries is the lack of index, which measure the level of media freedom legislation to protect informants, witnesses and and the level of political rights and civil liberties, victims of corruption and other illegal activities. This respectively. The Dominican Republic and Ghana includes the absence of comprehensive whistleblower ranked above the 60th percentile globally in the first protection legislation in all countries except Ghana and metric, and Ghana, Panama and Peru ranked above Peru, and the absence of procedures for the protection the 60th percentile globally in the second metric. Only of witnesses and victims in the Dominican Republic, Honduras and Venezuela scored in the bottom 20th Guatemala and Nigeria. Another notable failing is the percentile globally on the first index. This suggests absence of criminal, civil or administrative liability that the space for supporting and strengthening the of legal persons for participation in serious crimes criminal justice sector through civil society and other involving organised crime (Colombia and Honduras). non-state actors is relatively larger in the assessed countries than in some of their formal institutional channels. LEGAL FRAMEWORKS Given the differences in socio-political context in the assessed countries, this section analyses the existing legislation within 12 areas of law to combat organised crime and illicit drug trafficking. + The legislation among the assessed countries shows a satisfactory level of implementation, albeit with some notable gaps (see Table 4, below). 16
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES Table 4: Areas of law to tackle organised crime and drug trafficking IN THIS COUNTRY IS THERE … COL REP. GHA GUA HON NIG PAN PER VEN DOM Criminalisation of participation in YES YES YES YES YES YES YES YES YES criminal groups?64 Criminalisation of the laundering of YES YES YES YES YES YES YES YES YES proceeds of crime?65 Adoption of laws combatting money YES YES YES YES YES YES YES YES YES laundering?66 Adoption of laws criminalising corruption (bribery) and taking YES YES YES YES YES YES YES YES YES measures against corruption?67 Criminalisation of the obstruction of YES YES YES YES YES YES YES YES YES justice?68 Enactment of specialised criminal laws targeting trafficking in persons, smuggling of migrants, trafficking in YES YES YES YES YES YES YES YES YES firearms or other types of organised crimes?69 Establishment of the criminal, civil or administrative liability of legal NO YES YES YES NO YES YES YES YES persons for participation on serious crimes involving organised crime?70 Adoption of legal and procedural mechanisms to allow law enforcement agencies to identify, YES YES YES YES YES YES YES YES YES trace, freeze, or seize assets and confiscate the proceeds of crime?71 Enactment of a law enabling law enforcement to overcome bank secrecy laws to obtain evidence such YES YES YES YES YES YES YES YES YES as bank, commercial and financial records?72 Enactment of a law protecting NO NO YES NO NO NO NO YES NO whistleblowers?73 Enactment of laws and procedures for the protection of witnesses and YES NO YES NO YES NO YES YES YES victims?74 Adoption of extradition and mutual YES YES YES YES YES YES YES YES YES legal assistance treaties?75 17
TRANSPARENCY INTERNATIONAL ASSESSMENT OF CRIMINAL JUSTICE INSTITUTIONS As noted above, there is variation in both the socio- in most countries (Colombia, Dominican Republic, political contexts in which criminal justice institutions Ghana, Guatemala, Honduras and Nigeria). operate and the legislation in place to tackle organised crime and drug trafficking. Direct cross-country + The independence/autonomy and integrity of comparisons should be taken with a grain of salt criminal justice bodies was limited in all countries, because each country faces slightly different challenges. particularly in adjudication bodies, which in some This section presents the assessments of the three cases are seriously compromised by undue types of criminal justice institutions in the nine external influence (Panama, Peru and Venezuela). countries: investigation, prosecution and adjudication bodies. Despite cross-country differences, an analysis of + Limited opportunity for civil society to participate the data across all nine countries reveals some general in and oversee the criminal justice process was trends and common areas for intervention: a common weakness, especially in investigation and adjudication bodies. Existing collaborations + Formal internal accountability mechanisms were between criminal justice institutions and the strongest dimension across all three criminal communities, civil society organisations and justice areas (investigation, prosecution and civilian oversight initiatives are often sporadic and adjudication) in almost all countries (Colombia, inconsistent. Engagement with the media often Ghana, Guatemala, Honduras, Nigeria, Panama, lacks consistency and a formal protocol. Peru and Venezuela). Nevertheless, while there are generally strong rules of professional and ethical + Transparency was higher in prosecution and conduct and moderately strong internal control adjudication bodies than investigation bodies, measures in place, regular training and capacity although there are still important gaps in all three building on ethics is consistently lacking. areas. Generally speaking, investigation bodies publish limited information on the numbers and + Financial and human resource capacity was strong types of criminal cases they pursue, although for investigation and prosecution bodies across financial information (e.g. budget, spending and all countries. Limited capacity was one of the audit information) tends to be slightly more most pressing weaknesses of adjudication bodies, comprehensive. however. While most investigation and prosecution bodies receive adequate training and technical + Inadequate protections for witnesses and victims assistance for organised crime and drug trafficking, of organised crime, as well as inadequate threat capacity gaps exist (in the Dominican Republic, management systems for law enforcement Ghana, Nigeria and Venezuela, and Ghana, officials, was one of the most critical gaps across Honduras and Venezuela, respectively). the majority of countries for investigation and prosecution institutions (Dominican Republic, + External accountability mechanisms were strong or Ghana, Guatemala, Honduras, Nigeria, Panama, moderately strong in all three criminal justice areas Peru and Venezuela). 18
RESISTING CORRUPTION ALONG DRUG TRAFFICKING ROUTES ASSESSMENT OF INVESTIGATION BODIES Even countries that scored relatively higher on this dimension still had challenges with overseeing The first type of criminal justice institutions analysed employee performance. In Colombia, the National were those that investigate organised crime at the Police’s Anti-Narcotics Directorate (Dirección de national level: departments of justice, scientific Antinárcoticos - Policía Nacional) focuses monitoring investigation bodies or investigative police forces. on the operational activities of police officers. This has The selected investigative body in each country generated strong distortions in officer incentives, since was scored on all seven dimensions: 1) internal it forces the police to focus on quantitative results oversight, 2) protections, 3) external supervision, 4) rather than on the quality of policing. transparency, 5) civil society participation, 6) capacity and 7) independence and integrity. Performance on the There was no clear internal disciplinary process to dimensions is described below, from strongest average prevent and sanction misconduct in the Panamanian dimension to weakest.76 Judicial Investigation Department (Dirección Nacional de Investigación Judicial), whereas most investigation Internal oversight bodies tend to have well-functioning internal disciplinary mechanisms (Colombia, Ghana, Guatemala, Internal oversight of investigative bodies was the Honduras and Nigeria). For example, in Ghana, highest-ranking dimension across the assessed officers of the Narcotics Unit are subject to an internal countries. The ethical codes and rules of all disciplinary process that includes being brought before investigative institutions meet most internationally the Police Intelligence and Professional Standards recognised standards, with the institutions in Ghana, Bureau (PIPS). Although PIPS faces resource constraints Nigeria and Peru in line with the UN Code of Conduct and delays in investigating and resolving cases in a for Law Enforcement Officials and INTERPOL’s Global timely manner, officers who are unhappy with the Standards to Combat Corruption in Police. decision of PIPS can escalate the case to the courts for adjudication. Nevertheless, problems were identified However, there tends to be limited training for and in some countries concerning the responsiveness of implementation of these codes of conduct. For internal disciplinary mechanisms (Dominican Republic, example, there was no significant ethics training Honduras, Nigeria and Peru). In Peru, for example, found in the Panamanian Judicial Investigation approximately half of the complaints against police Department (Dirección Nacional de Investigación personnel remain pending a year after they are filed. Judicial), the Peruvian National Police (Policía Nacional Venezuela’s Scientific and Criminal Investigation - Dirección Nacional de Investigación Criminal), and Body (Cuerpo de Investigación Científica, Penal y the Venezuelan Scientific and Criminal Investigation Criminalística, CICPC) is the only investigative body that Body (Cuerpo de Investigación Científica, Penal y was unresponsive to complaints of misconduct. Criminalística, CICPC). DIMENSION COL REP. GHA GUA HON NIG PAN77 PER VEN DOM Internal oversight 19
TRANSPARENCY INTERNATIONAL Capacity National Police (Policía Nacional - Dirección Nacional de Investigación Criminal) had increased since 2014, With the exception of Guatemala, Nigeria and enabling better remuneration of police officers; Venezuela, investigation bodies generally have modernisation of equipment and technical resources; significant financial and human resources, although and continuous training and technical assistance to these are not always sufficient to effectively investigate personnel investigating organised crime. organised crime. One particular strength across the investigation bodies is the level of training Honduras has built out a criminal investigation manual and technical support provided to personnel. For to train staff more consistently on all investigations and example, in Panama, officials from the Judicial provides constant training on more specialised criminal Investigation Department (Dirección Nacional de investigation techniques. In Colombia and Guatemala, Investigación Judicial) receive on-going training investigators also receive adequate specialised on judicial investigation and adequate technology training and technical support. In both high-scoring to support efficient case management thanks to countries (Colombia and Honduras) and Guatemala, technical assistance from the Public Ministry and the institutions’ internal disciplinary mechanism were international organisations. In Peru, the budget of the found to have the resources and support to effectively carry out internal investigations. DIMENSION COL REP. GHA GUA HON NIG PAN78 PER VEN79 DOM Capacity Independence and integrity to executive influence. Indeed, the current Director General was appointed directly by President Nicolás Overall, the countries measured worse on undue Maduro himself. In Panama, the Judicial Investigation influence and integrity. In Guatemala and Honduras, Department (Dirección Nacional de Investigación both investigative bodies had clear protocols for Judicial) does not publish vacancies and recruitment is professional appointment, selection and recruitment; at the discretion of the Director of Police, who makes and both countries met all or some of the standards recommendations to the Minister of Security. for best practices in performance evaluation and promotion of employees. However, in Guatemala, the Similar institutional weaknesses are evident in Ghana, appointment of the Minister of Interior is under the where the appointment and vetting process for the authority of the President of the Republic, and in 2017 head of the Narcotics Unit is not public. Meanwhile, the former Minister of Interior was accused of criminal the appointment of the Inspector General of Police association and conspiracy to commit drug trafficking. (IGP) is not made through a competitive process but instead is carried out by the president in consultation Elsewhere, there are more opportunities for undue with the Council of State in a political process interference and weak procedures for recruitment, that continues despite calls by civil society for the evaluations and promotions that damage institutional appointment of the IGP and other officers on the integrity. In Colombia, for example, a superior officer basis of merit. Senior police officials in Peru are not can transfer any subordinate officer at his or her recruited through an open competitive process and discretion, including to high-risk areas or posts, while police academies lack an effective recruitment system the executive branch controls the promotions of police to prevent possible infiltration by organised crime. In officials. In Panama and Venezuela, the investigative Nigeria, the promotion of police officers is not totally institutions are susceptible to external influence and by merit, including officers attached to politicians lack clear protocols for the recruitment, selection and as orderlies and aides. In the Dominican Republic, appointment of officials. For example, in Venezuela, the legal framework also lacks a formalised system the Director General of the Scientific and Criminal of evaluations and promotions, which leaves the Investigation Body (Cuerpo de Investigación Científica, institution vulnerable to undue internal and external Penal y Criminalística, CICPC) is directly nominated by pressures. the Interior Ministry, making him or her susceptible 20
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