InterAm Database

National Law Center for Inter-American Free Trade

Commentary on the

Ley Del Regimen de la Coca y Sustancias Controladas

Source: Dubberly, David E. (ed). American Bar Association: Inter-American Legal Materials,

Volume 6, Number 3 and 4. p. 278-294. American Bar Association, Chicago: 1995.

I. Introduction

The anti-narcotics law of Bolivia, the Coca and Controlled Substance law (herein after Ley 1008), was enacted in 1988 and since has been the subject of mounting debate. The law establishes a new system, outside of the usual criminal process, for prosecuting traffickers, producers and users of drugs as well as a licensing process for legal coca marketing of as well as a licensing process. Furthermore, the law calls for the gradual eradication coca, with yearly targets of eradication, through voluntary or forced removal of plants, and contingent upon international development assistance.

The criticisms of the law of the are varied and come from such diverse sources as legislators, cabinet members, public interest organizations, and even former authors of the law. The current administration's position on the law has wavered and is of yet, undefined. Within the first fifteen months in office(President Gonzalez Sanchez de Lozada was sworn into office in July, 1993), various government officials of the current administration proposed a total of 20 positions on coca control; suggestions have ranged from continued eradication of "excess" coca leaf, voluntary eradication, and alternative crop development to "opcion 0" total eradication of all coca in the main growing region in six years at an estimated cost of $200 million. The government claims to be seeking a national consensus to address the coca problem.

Many of the criticisms voiced against Ley 1008 are justified. The law, as written, contains provisions which some jurists find unconstitutional; and as practiced it appears to contribute to possible human rights violations. Certainly, as applied the law can be brutal and unfair. However, it is impossible to make a valid judgment about the efficacy of Ley 1008 until the legal system functions in the way it was designed and the law is implemented in a legal, consistent, and humane manner.

II. Description of the Law

The Reagan Administration's promotion of the war on drugs in the United States naturally influenced the U.S. policy in Latin America. The Law of the Regime Applicable to Coca and Controlled Substances, Ley 1008, was written with the assistance of the U.S. Agency for International Development and hurriedly pushed through the Bolivian Congress in order to insure that narcotrafficking would be a defined crime and that the proliferation of coca would be a leaf would be stopped. In their haste to pass the law, the Chamber of Deputies of Congress arguably had insufficient time for its complete review.

The Chapare and the Yungas are the country's principal coca growing regions. Bolivian law allows for the legal cultivation of coca in specified "traditional" areas, primarily in the Yungas, for domestic use in tea and for chewing. The law limits production to that necessary to satisfy the demand for traditional uses, but in no case to exceed 12,000 hectares. Most Chapare and other coca under cultivation at the time of the passage of Ley 1008 was declared "excess and transitional" and was to be gradually eradicated, subject to international financing for crop substitution and alternative development programs. Coca grown outside of the traditional and transitional areas, or planted in "transitional" areas after 1988, is illegal and subject to immediate eradication.

To implement the law's objectives, a separate system of justice was created made up of the Controlled Substance Courts (Juzgados de Sustancias Controladas) and Controlled Substance Judges (Juezes de Sustancias Controladas), which have exclusive jurisdiction over narcotics offenses. A separate set of prosecutors (Fiscales de Sustancias Controladas) are assigned only to narcotics related crimes. One of the primary objectives of the promulgation of Ley 1008 was to accelerate the prosecution of narcotics offenses. Since most arrests are in flagrante delicto, a lengthy instructional trial stage was deemed unnecessary and therefore, unlike the process in other criminal cases, the instructional stage was eliminated. The investigative process by the police and prosecutor, length of trial, closing argument period, and time permitted for sentencing are curtailed. Strictly following the procedures as codified, a case from arrest to the time of sentencing by the Supreme Court should last 111 days; however, a typical case usually lasts an average of three to four years before there is a final sentence.

III. Chronology of a Model Narcotics Prosecution

In the "Operativo" stage (arrest), the "Fuerza Especial de Lucha Contra el Narcotrafico" FELCN (Special counternarcotics force) arrest the suspect and seize assets in the presence of the fiscal (prosecutor) assigned to that division. Suspects can be held up to 48 hours without being charged. It should be mentioned that this time period is interpreted to mean within 48 hours of incarceration per defendant; meaning that if a group of seven suspects are arrested, the whole group can be detained for up to two weeks without being charged. Another relevant observation is that during this time the police and prosecutors may be trying to elicit bribes from those suspects that the state has insufficient prosecute in payment for their release without a charge. In the stage of "Diligencias de Policia Judicial" (stage of initial proceedings), the FELCN police and the controlled substance prosecutor gather evidence and take statements from witnesses. Any drugs seized then must be incinerated within 24 hours of seizure in the presence of a notary and chemist.

Beginning the second phase, the Plenario Stage (Trial), the prosecutor has 24 hours to prepare the request for indictment and remit it to the Controlled Substance Trial Court. At this point the prosecutor assigned to the District Court handles the case until the appellate stage. When writing the request for indictment, prosecutors have no discretion -they may not request a sentence outside that set out in Ley 1008. The prosecutor submits the request to the Controlled Substance Trial Court, which in turn, has 24 hours to issue the indictment (Auto de Procesamiento). The indictment is then forwarded to the penal chamber of the Appellate Court (Sala Penal del Juzgado de la Corte Superior de Distrito) for review, modification, approval, or rejection and within 48 hours, passed back to the Controlled Substance Trial Court, and is now called the "Auto Motivado.'' The Defendant has three days to answer this charge by submitting testimony, character evidence and other evidence.

The trial period is limited to 20 days then, in the following three days, both the Defense and the State make closing arguments.

The bench is composed of a panel of three judges, and at least two of them must rule within ten days. The sentence includes number of days of incarceration, fines, and dispositions of seized goods and assets. The sentence

is passed to the Appellate Court for review, the stage known as the "consulta". All permissible appeals (limited to those specified within the law; for example, impermissible appeals are questions of prejudice and appeal of exception) must be raised within nine days of sentencing, during this "Apelacion" (appeal). If there is an acquittal, or the sentence is less than that recommended by the prosecutor, the State has the OBLIGATION to file an appeal. All cases before the Appellate Court are handled by the more experienced prosecutors assigned there. Cases before the Appellate Court may not take more than 21 days.

Final appeals made to Supreme Court (Corte Suprema de Justicia) will be reviewed within 23 days. This is the stage of "Casacion y Nulidad'(appeals for annulment or reversal of the lower court sentence). These 23 days are comprised of 15 days for the Supreme Court justices to review the sentence and eight days for the Penal Chamber of the Attorney General to review and comment.

Note that from the time of arrest to time of sentencing there is NO PROVISIONAL RELEASE allowed, ever. However, time spent in detention, pending resolution, is considered time served toward sentence reduction and prisoners are eligible for parole after 2/3 of their sentence has been completed, provided that they meet the requirements set out in the Sentence Execution Law. If the convict does not have sufficient funds to pay the fine, additional jail time may be substituted. Note that in the scheme outlined above, there are numerous different individuals involved in the trial process: multiple prosecutors, multiple judges, multiple courts in each stage. The law was designed with a system of checks, so that the corruption of one person could not result in a lost case. However, in consequence no ONE person is responsible nor accountable for the time delays.

IV. Analysis

The sentencing provisions of the law have been criticized as ruthless and inflexible, with the most frequent adjective used to describe the law being draconian. As noted earlier, the accused remain in jail throughout the entire judicial process. Furthermore, the sentencing provisions are mandatory. For example, the crime of trafficking mandates imprisonment for a term of 10-25 years. The prosecutor may not request a sentence and the judge may not impose a sentence outside that proscribed in the Law. There is no discretion; prosecutors have none, judges have none. The prisons of Bolivia are filling with narco-offenders and the majority of them are poor.

The rigidity of the Bolivian system has created certain problems such as an unwillingness to prosecute and an overburdened court system. Since all cases brought under Ley 1008 require full implementation of the procedures,

cases against minor offenders are often ignored in order to avoid the work involved and curtail the seeming injustice done to the poor. Although the intent of the law was to provide a mechanism to punish narcotraffickers who exploit the poor and bring violence and crime to Bolivia, in reality it is the poor who feel the brunt of the law.

Those attacking the law on constitutional grounds argue that the law presumes the accused's guilt contrary to the presumption of innocence espoused in the Bolivian Constitution, Penal Code, and Code of Criminal Procedure. Ley 1008 mandates incarceration of prisoners (including those ACQUITTED by a lower court) until the Supreme Court has made a ruling. By holding those arrested while the prosecution appeals an acquittal, Ley 1008 does in fact, create a system where the accused are treated guilty until proven innocent. Others argue that the sentencing provisions for aggravating circumstances can far exceed the maximum 30 years of imprisonment set forth in the Bolivian Constitution. According to Ley 1008, a convicted trafficker who cannot afford to pay the imposed fines could receive jail time in lieu of payment ,thus, the combined sentence could exceed the constitutional limits. However, this argument is without merit since judges, aware of the constitutional maxim and principles of supremacy, should never impose a sentence exceeding 30 years. Here the fault lies not with Ley 1008 but potentially in its application.

Some critics identify substantive defects, including undefined or vague terms. For example, there is a passing reference in the law to "money laundering," but without definition. The effect, and the sinister consequence, is that there is no prohibition against "money laundering." As noted above, critics are correct when they comment that the penalties of Ley 1008 are harsh and applied disproportionately against the poor underclass. Thus, the law as applied gives human rights activists legitimate grounds for alleging discrimination of the underclass and the desecration of the rights of incarcerated. The basis for this, in part, is the state of Bolivian prisons.

As the unconvicted (or worse EXONERATED by a lower court) prisoner waits through the years of process, without the possibility of bail, in an unsanitary, overcrowded jail, it appears that their fundamental rights were forgotten.

The remedy human rights activists would want would be to keep the poor pisa-coca out of prison. The "campesino," or the farmer who cultivates coca, the "transport mules," or those in low level narco-activity, are readily replaceable commodities subject to manipulation by the reaI narcos. It is acknowledged that they are hardly threats, as individuals, to society. Human rights violations are part of Bolivia's violent military past, and unfortunately, especially in the prisons they remain so today.

V.Policy

The U.S. counternarcotics goal in Bolivia is to eliminate the cultivation of illegal coca and the production of cocaine and to assist the Bolivian government in developing the capability to combat narcotrafficking on its own. Therefore, from the U.S. policy standpoint, Ley 1008 is a coherent, serviceable law that, if fully implemented, would solve Bolivia's and some of the United States cocaine problem. Many of the potentially beneficial aspects of the law (continued eradication at required pace, involuntary eradication of illegal coca, market regulation, and transportation regulation) have not been fully implemented due to the political pressures of the cocaleros. Many believe that implementation of these projects would put Bolivia on the path it has chosen -- moving out of the cocaine business forever.

However from the standpoint of many Bolivians, the law is viewed as a threat to the national sovereignty. The cultural history of Bolivia, depending on which history you prefer, includes the widespread use of coca since atleast the 15th century and religious use from the 12th century. Many believe its deep roots are unique to Bolivia and they take prlde in these traditions; thus, Ley 1008 with its eradication mandates presents a threat to the conventions of the country.

Furthermore, it is widely believed that all U.S. assistance to Bolivia is conditioned on cooperation in the drug war. And rightfully so, the 172 milllon counter narcotics initiative dollars that the U.S. Agency for International Development earmarked for Bolivia for the years of 1991-1993 were conditioned on the country meeting coca eradication targets. This fact, coupled with the U.S. role in the creation of the law, has led to the common nomenclature, "Ley de Extranjeros."

It can not be denied that the promulgation of Ley 1008 was at the behest of the U.S. Government, and it is the primary legislation behind coca eradication. Because the U.S. provides equipment, facilities and bonuses to the prosecutors responsible for prosecuting crimes under this law, and further, because U.S. foreign aid is conditioned on the eradication of enumerated hectares of coca, it may be accurate to describe the law as foreign.

However, this aspect does not violate the national sovereignty of Bolivia. U.S. contributions to Bolivia are serving to improve their country more so than the U.S. Coca regulation and eradication by Bolivians should help to keep the country free of the violence and crime which is a consequence of liberal drug use and trafficking. It is doubtful that the majority of Bolivians would trade the repercussions inherent in a free coca market for their occasional cup of coca tea. Institution building of the legal system and social sectors with U.S. Assistance dollars can only serve to make Bolivia a stronger country and allow it to retain the qualities that make Bolivia Bolivia.

VI. Conclusion

The primary solution to the inadequacies of the Ley 1008 lies with the successful reform of the legal system. The criticisms of the implementation of the law, not the law itself, present the most damming evidence of its draconian character. As in other areas of the Bolivian criminal justice system, Ley 1008 begs for proper and accurate interpretation. Instead, its haphazard creation, its incomplete regulation, the lack of firm support from the Bolivian government, corruption and conflict within the system and a litany of other problems stem from the skewed development of the Bolivian Criminal Justice system. From police, to court clerks ,to judges, to attorneys, the problem is one of growing pains. Ley 1008 does not need significant amendments, instead the system needs to become more accountable, professional and effective.