CRIMINAL LAW: Comprehensive Law to Guarantee Women a Life Free from Violence

Before delving into the scope of Law No. 348, it is important to understand that it emerged as a mechanism to protect women in situations of violence. This law not only modifies the Penal Code and the Code of Criminal Procedure in Bolivia but also arises from the need to complement the Law Against Harassment and Political Violence Against Women - Law No. 243. The main objective of Law No. 243 is to establish elements for prevention, care, and sanction against individual or collective acts of harassment and/or political violence against women, ensuring the full exercise of their political rights. However, the victims under this law were often required to exhaust the administrative process before accessing the criminal justice system, as this first instance was needed to determine whether there was criminal responsibility on the part of the investigated individual before proceeding. A clear example is the case of Juana Quispe Apaza, an elected councilwoman from Ancoraimes in the La Paz Department, who in 2010 was politically harassed and subsequently murdered by the former mayor of the same community. Despite making various complaints over more than six months to the relevant authorities, she was murdered in 2012 by the same individual in complicity with two other councilors. Juana Quispe Apaza had been overseeing the administration of the aforementioned mayor. The Bolivian justice system prosecuted this official for over 10 years and only issued a conviction in January 2024, twelve years after the crime. The Law No. 243 emerged in 2012 but proved insufficient to ensure full justice for women victims of violence.

Thus, Law No. 348 emerged as a procedural mechanism to strengthen Bolivia's sparse existing criminal regulations that protect women's rights, aligning with international standards set by the Inter-American Court of Human Rights (IACHR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women ("Convention of Belem do Para"). These international frameworks obligate the Plurinational State of Bolivia to incorporate guiding principles into its domestic laws that guarantee and protect women’s right to a life free from violence. Many of these principles emerge from rulings issued mainly by the IACHR, through the control of conventionality established in Article 410 of the Political Constitution of the State.

Currently, doubts have arisen in Bolivia regarding the application of this law. Some sectors argue that it is overly protective of women, while others claim it infringes on the constitutional rights and guarantees of those who are accused under its various provisions. It is important to note that of the 100% of complaints made by female victims, less than 5% reach the precautionary measures hearing. Additionally, among the more than 3,000 complaints received annually by the Special Force Against Violence Against Women (FELCV), there are also complaints from men who are victims. Thus, it is not entirely evident that there is a violation of constitutional rights being reported, as this law protects anyone in a situation of violence within the family unit or related to it. The issues with Law No. 348 do not revolve around its content but rather its application.

It is crucial to highlight the role of the courts established to administer justice in cases of violence against women. When resolving the legal situation of the accused under this law, these courts are required to conduct a comprehensive analysis of constitutional rights, considering both the victims' and the accused's rights, and determining when one right takes precedence over another. This analysis involves applying the second and third paragraphs of Article 15 of the Political Constitution of the State, which establishes the dual protection of rights for vulnerable groups in society. These rights, which enjoy a higher standard of protection, include not only women’s right to a life free from violence but also the rights of the elderly and children, among others, who are part of the family unit. Due to their vulnerability, these groups receive double protection from the state, and judges must prioritize their rights over those of the accused to prevent inequality, lack of protection, and re-victimization when rendering a decision.

However, the main issue is not the law itself but its application, which includes aspects such as the lack of operational support for staff assisting violence victims. The existing personnel cannot handle the volume of daily complaints, compounded by a shortage of professionals in multidisciplinary areas (psychologists, social workers, and lawyers) who provide real support to gender violence victims. The technical assistance provided often proves insufficient due to the number of daily complaints. Another significant factor is the lack of ongoing training for technical and administrative staff, which often hampers the progress of investigations, causing delays and procedural lapses that contribute to impunity at the expense of victims and in favor of the accused.

In conclusion, the primary objective of Law No. 348 is to eradicate gender violence, not only in favor of women as the only vulnerable sector but also for children, the elderly, and even men who may be considered victims of intra-family violence. The law aims to provide real solutions to a deeply rooted problem in our community caused by abuse against these individuals. It is important to emphasize the work of the Public Prosecutor’s Office and its investigative police, who, despite the challenges involved in implementing Law No. 348, often manage to safeguard and restore the rights and guarantees of victims of domestic violence.

Silvana Orieta Diaz Gutiérrez
Criminal Lawyer