Lawyers file case against Chief Public Prosecutor in hope to restore public trust in the Rule of Law
In light of new evidence regarding the Odebrecht corruption scandal, the Colombian Commission of Jurists, DeJusticia and other lawyers have legally challenged the appointment of Néstor Humberto Martínez as General Public Prosecutor of the Nation (Public Prosecutor). New evidence revealed that Martínez withheld substantial information about his prior knowledge of the Odebrecht corruption during the selection process, which could have changed the decision of the Court to appoint him. Thousands of people have taken to the streets in key cities across Colombia calling for Martinez to resign.
On Friday, 11 January 2019, the Colombian Commission of Jurists (Comisión Colombiana de Juristas – CCJ), together with the lawyer Jorge Iván Cuervo and Dejusticia filed a legal action before the Council of State, demanding the annulment of the appointment of incumbent General Public Prosecutor Nestor Humberto Martinez.
Martinez is currently the head of the National Public Prosecutor’s Office, one of the most powerful offices in the Colombian legal system, which has the monopoly for launching criminal cases. Additionally, reports from the Public Prosecutor’s Office will play an important role in Colombia’s transitional justice system. The Special Jurisdiction for Peace (JEP) opened its doors in 2018 to address war crimes, human rights violations and other crimes committed during Colombia’s armed conflict.
A recent report on the Government’s responsibility for the killing of Human Rights Defenders during the armed conflict, which Martinez submitted to the JEP in January 2019, is an example of the importance of Public Prosecutor’s Office in the transitional justice process. The report acknowledges the involvement of Colombian state agents in the killings of human rights defenders (HRDs) and social leaders between 1985 and 2016. However, civil society organisations in Colombia have expressed concerns about Martinez’ statements denying state responsibility for the killings of social leaders and human rights defenders since 2016, despite reports indicating that HRDs are systematically targeted in Colombia.
Evidence indicates that Martinez had known about aspects of the Odebrecht corruption scandal but chose not to disclose them. When Martinez was listed as candidate for the office of General Prosecutor by President Santos, he did not inform the Supreme Court that he was aware of multiple irregularities regarding public procurement for the construction of section II of the Ruta del Sol, a motorway between Colombia’s interior and the Caribbean coast (still under construction).
The evidence has strengthened allegations of a conflict of interest, given that some of Martinez previous clients during his time as private lawyer in 2015 and 2016 were involved in the contracts affected by the Odebrecht corruption scandal, which has had a ripple effect in Colombian politics. Only two months ago, recordings of conversations between Jorge Pizano, the now deceased Comptroller of the contract, and Martinez were made public. In these conversations, Pizano alerted Martinez to possible criminal activity linked to the contract. Martinez has now admitted publicly that he had been asked to draft a transaction contract to reconcile the “poorly spent” funds between Odebrecht and the other members of the concession.
In light of new evidence, CCJ, Dejusticia, together with Jorge Iván Cuervo, argue that Martinez’s appointment was flawed, as it was based on incomplete and insufficient information. There was a lack of transparency in the selection and appointment process, making it unsound. Judges on the selection panel for Martinez’s post needed access to all the information in order to assess the potential conflict of interest and to choose the candidate best suited to the job. The decision in this case could set a judicial precedent regarding conflict of interest.
Colombian citizens are angry about the high levels of corruption and poverty. As a result, thousands took to the streets in January 2018 they gathered in front of the various Prosecutor’s offices in cities across Colombia with the largest demonstration in Bogota. They were demanding the resignation of Martínez, after reading evidence that Martínez knew about the bribes of the Brazilian construction company Odebrecht. The Odebrecht investigation into the case of corruption has seen the death of three people: the ex-comptroller Jorge Pizano, his son Alejandro and, recently, the former Secretary of Transparency Rafael Merchán.
As Colombia starts on the long road to a lasting and sustainable peace, the rule of law and guarantees of judicial impartiality are crucial elements. The UK Foreign Office, in a recent report, stated that “[c]orruption undermines the cohesion of a state, impacts the rule of law, and can be a disincentive to doing business in the region.”
 It specifically calls for the annulment of the Colombian Supreme Court Agreement 871 of 2016, by which Martinez was appointed.
 The bribes paid by the construction company Odebrecht to win government contracts led to one of the largest corruption cases on record; a number of high-ranking officials, politicians, senators, judges, business leaders and even ex-presidents across Latin America are under investigation or have been sentenced for their involvement in the scandal. More information: The Observer, ‘Brazil’s corruption scandal spreads across South America’ (11 February 2017)
DeJusticia, Pedimos al Consejo de Estado que anule la elección del Fiscal General de la Nación Néstor H. Martínez (12 January 2019)
DeJusticia, ¿Por qué demandar la elección del fiscal general? (13 January 2019)
El País, La fiscalía de Colombia archiva la investigación por la muerte de un testigo del caso Odebrecht (10 January 2019)
Fiscalía General de la Nación, Fiscalía presenta el informe de las rentas criminales de las desmovilizadas Farc y el recuento histórico de la victimización a líderes sociales por parte de agentes del Estado (10 January 2019)
Colombia Reports, Colombia’s state admits to assassinating 348 social leaders between 1985 and 2016 (13 January 2019)