The Legal Fiction of the Right to Defense in the Colombian Criminal Justice System

Abstract

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 middleor upperclass 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