Political interference in the justice system is a longstanding problem in Bolivia. Former president Evo Morales repeatedly rejected judicial independence. During his almost 14 years in office, prosecutors filed charges against several of his political rivals in cases that appeared to be politically motivated.
In November 2019, Morales was forced to resign and fled the country amid nationwide protests motivated by allegations of electoral fraud–now disputed–and after the commanders of the armed forces and the police asked him to step down. Since then, former members of the Morales administration and Morales himself have become victims of the same political interference in the justice system that they exerted when in power.
Jeanine Áñez, who replaced Morales as interim president, had a chance to break with the past and ensure judicial independence. Instead, her government has publicly pressured prosecutors and judges to act to further its interests, leading to criminal investigations of more than 100 people linked to the Morales government and Morales supporters for sedition and/or terrorism. Morales is among those charged with terrorism. Scores more are under criminal investigation for belonging to a criminal organization, dereliction of duty, and other crimes. Many of the cases appear to be politically motivated.
Interior Minister Murillo has vowed to “hunt down” and “pursue” members of the Morales administration. He has asked the attorney general to “purge” the prosecutors’ office and warned he would “pursue” judges and prosecutors “who free criminals,” a threat that is a blatant attack on the independence of the justice system. In June, his ministry filed criminal complaints against two judges for granting house arrest to people linked to the Morales administration who were awaiting trial in detention. Police detained one of the judges, who was released the next day after another judge ruled the detention had been illegal.
Human Rights Watch traveled to Bolivia in February 2020 to examine those cases, conducting more than 80 interviews, and followed up with remote interviews. In all, we interviewed 90 people in eight cities, including Interior Minister Murillo and other government officials, Ombudsperson Nadia Cruz, prosecutors, defense attorneys, civil society representatives, participants in roadblocks and demonstrations—some in support of and others against Morales—in October and November 2019, witnesses to violence, and relatives of protestors killed. We also reviewed thousands of pages of police reports, judicial decisions, and other court records.
Abusive Prosecutions and Arbitrary Detention
While Human Rights Watch did not examine all investigations against former members of the Morales administration and supporters, in the 18 cases we did analyze, including some against high-profile individuals, we found instances of baseless charges, due process violations, infringement on freedom of expression, and excessive and arbitrary use of pretrial detention.
- Prosecutors charged Patricia Hermosa, Morales’ attorney and former chief of staff, with terrorism, financing of terrorism, and sedition based on the mere fact that she had telephone contact with Morales after he resigned. Prosecutors say that the phone calls, for which there are no recordings or transcripts, make her a collaborator in the crimes attributed to Morales. Despite the lack of evidence that she committed any crime, Hermosa was arrested on January 31, 2020, and held in pretrial detention while pregnant, a violation of Bolivian law. She received no medical care and had a miscarriage in March. She was transferred from jail to house arrest on August 5.
- Prosecutors charged Mauricio Jara with sedition, instigation to commit a crime, and crimes against public health. At a press conference on April 22, 2020, police cited as evidence of his criminal activity that Jara had admitted he was a supporter of Morales; had used WhatsApp groups to “misinform”; had called the government “a tyrant” and “dictatorial”; and had urged people to protest. Police also cited as evidence that Jara had called the killing of at least 10 protestors in Senkata in November 2019 a “massacre,” a term also used by the Inter-American Commission on Human Rights to describe the case. He remains in pretrial detention.
- Edith Chávez Arauco worked as a maid and babysitter for the family of Morales’ former minister of the presidency, Juan Ramón Quintana. On January 10, police raided Chávez’s home, on the basis of her connection to Quintana, and said they found a handgun. Prosecutors charged her with aiding and abetting, without stating what crime she had allegedly aided and abetted, and with unlawfully carrying a firearm, though the charging document itself says police found the gun inside a cabinet—that is, she was not carrying it. Had Chávez been charged exclusively with unlawful possession of a firearm, a crime punishable with up to two years in prison, pretrial detention would have been unlawful, as Bolivian law prohibits pretrial detention for people charged with a crime for which the maximum sentence is under four years in prison. In contrast, unlawfully carrying a firearm is punished with up to five years in prison. Chávez was held in pretrial detention. On May 22, 2020, judge Hugo Huacani granted her house arrest. Hours later, two government lawyers reported the judge to police, stating he had shown a possible “lack of independence” in his ruling. Police detained the judge and held him in custody until the next day, when another judge ruled his arrest had been illegal. The Interior Ministry filed a criminal complaint against judge Huacani for dereliction of duty and for issuing decisions that violate the law. Chávez was released to house arrest pursuant to Judge Huacani’s order, but another judge revoked the order on June 10 and she returned to pretrial detention, where she remains.
Disproportionate Charges against Evo Morales
In February 2020, Human Rights Watch also had access to the full file of Bolivian prosecutors’ investigation of Evo Morales on suspicion of terrorism and financing of terrorism. Prosecutors issued a warrant for his arrest in December 2019, and formalized charges against him in July 2020.
In addition to reviewing the file, which consisted of more than 1,500 pages, Human Rights Watch interviewed a prosecutor who was working on the case at the time, a prosecutor who had worked on the case at an earlier stage, and the then-chief prosecutor in La Paz, where the case is being prosecuted. Bolivian authorities have not publicly put forward additional evidence in the terrorism case against Morales since February 2020.
The probe focuses primarily on a November 2019 phone call, days after Morales had left office, in which a person alleged to be Morales urged an associate to mobilize protesters to block roads into cities and prevent food from entering.
Blocking roads is a common means of protest in Bolivia and other countries in the region. After the October 20, 2019 presidential election, where results showed Morales narrowly winning by enough margin for a controversial fourth term without the need for a second round of voting, opposition demonstrators blocked roads and went on a strike, alleging electoral fraud. Morales supporters tried to break some of those roadblocks and set up their own roadblocks. After Morales resigned on November 10, his supporters intensified their protests, blocking the main roads leading to some cities. That caused fuel and food shortages that resulted in price spikes in some areas. The call attributed to Morales allegedly took place on November 14. On November 22, after all sides reached an agreement to hold new elections, Morales supporters started lifting road barriers.
While most protests were peaceful, some anti- and pro-Morales demonstrators allegedly abducted people identified as supporting the other side, burned homes and other buildings, and committed other acts of violence during the October and November 2019 upheaval, including the killing of two anti-Morales protesters in the town of Montero by alleged Morales supporters. In addition, at least 20 Morales supporters were killed in two massacres in which witnesses said state forces opened fire against demonstrators. Investigators have not yet identified those responsible.
In the recorded conversation that the interim government attributes to Morales—and which occurred after the violent incidents described above—the speakers discuss blocking roads and use the words “fight” and “battle,” terms that protesters in Bolivia often use to refer to their demonstrations. But they do not, at any point, overtly discuss the use of violence or participation in any of the violent acts that had occurred.
Prosecutors in the case allege that the acts of violence committed by Morales supporters were carried out under Morales’ orders. But the evidence Human Rights Watch reviewed—primarily consisting of the one phone call—simply does not support such allegations.
Conspiring to block essential provisions from entering cities would be an action that Bolivia is entitled to criminalize and punish, but it would not rise to the level of any reasonable definition of terrorism. Indeed, the terrorism charges against Morales are based on a definition of terrorism under Bolivian law that is so broad that it can be used to criminalize behavior protected by freedoms of expression and association, and disproportionately punish actions that fall far short of what most reasonable observers would consider a terrorist act.
Using an overbroad terrorism definition to charge Morales with offenses punishable with up to 20 years in prison is disproportionate to the conduct reflected in the phone call, and appears to be a political attack on Morales and his supporters rather than enforcement of the law.
A History of Arbitrary Prosecutions
This report also documents cases of arbitrary prosecutions of Morales opponents during Morales’ presidency. It finds that the Morales administration weakened the independence of the judiciary, creating a context that allowed the Morales administration then, and the Áñez administration now, to misuse the justice system for political purposes.
To uphold the rule of law and respect the basic rights of all Bolivians, regardless of their political opinions, Bolivia should implement far-reaching changes to its justice system, prioritizing reforms that allow judges and prosecutors to act independently without fear of reprisals.
Prosecutors should drop the terrorism charges against Morales. In addition, the attorney general should carry out an independent, thorough analysis of evidence and due process in all cases involving former members of the Morales administration and supporters, and request that judges dismiss charges in those cases in which the evidence does not support the charges, or where the charges are disproportionate to the alleged conduct.
Legislators should narrow Bolivia’s definition of terrorism so that it cannot be used to criminalize or curb the rights to free speech and assembly, to impose disproportionate punishment, or to encompass crimes that are not genuinely terrorist in nature.
Prosecutors and judges should ensure respect for the basic rights of all people accused of a crime, independently from any pressures exerted by whatever government is in office at the time. They should end the excessive use of pretrial detention and employ it as an exception, rather than the norm, in adherence with Bolivian law and international standards. This is particularly important now, given the very serious threat that Covid-19 represents for those held in Bolivia’s extremely overcrowded prisons and jails. Authorities should consider releasing detainees accused of non-violent crimes pending trial, including those with links to the Morales administration.
Finally, the government and the Inter-American Commission on Human Rights should install the Interdisciplinary Group of Independent Experts, as agreed upon by both sides in discussions in December 2019 and March 2020, to thoroughly investigate the acts of violence and violations of human rights that took place in the country between September 1 and December 31, 2019.
I. Events Surrounding Evo Morales’ Resignation
In 2016, Bolivia’s then-president Evo Morales called a referendum on a constitutional amendment that would have eased term limits and allowed him to run for a fourth term. He lost the referendum.
But a year later, his supporters in the Plurinational Legislative Assembly, as Bolivia’s Congress is called, filed a lawsuit before the Constitutional Tribunal, claiming that the term limit violated Morales’ human rights. They relied on a provision in the American Convention on Human Rights, the main human rights treaty in the Americas, which says that political rights can “only” be limited under very specific circumstances.
The interpretation was far-fetched. The clause was designed in 1969 to prevent abusive governments from arbitrarily barring opposition candidates from running for office, not to impede constitutional re-election limits designed to prevent the rise of autocrats.
In a controversial ruling, Bolivia’s Constitutional Tribunal revoked the constitutional term limit.
Morales ran for re-election on October 20, 2019. With more than 80 percent of votes counted, Morales was ahead of the other candidates but by an insufficient margin to avoid a second round of voting. Then, electoral authorities suspended the publication of vote tallies without any explanation. When they resumed it, almost 24 hours later, Morales had widened his lead and the electoral tribunal declared that he had enough votes to win, by a very narrow margin, without a second round of voting. Electoral observers from the Organization of American States (OAS) pointed out that the change in the voting trend in favor of Morales was “drastic and hard to explain.” People protested in cities around the country, going on strike, and, in the biggest cities, setting up roadblocks. In some areas, anti-Morales protestors clashed with Morales supporters.
Starting on November 8, some police units refused to follow orders and joined the protests against Morales.
Morales invited the OAS to audit the electoral results. On November 10, the OAS published a preliminary report which found serious irregularities in the elections, including the use of two secret servers to process votes, the forging of signatures of poll officials, deficiencies in the chain of custody of sensitive election material, and a “highly unlikely” trend in the last 5 percent of the vote count that gave the victory to Morales without a second round of voting.
On November 10, OAS Secretary General Luis Almagro called for a new election. The same
day, Morales announced a new election and the removal of Supreme Electoral Tribunal members. Later that day, the commanders of the armed forces and the police asked him to step down. Morales did step down, denouncing that there had been a “coup,” and left the country, first to Mexico and from there to Argentina, where he was still residing as of September 2020.
On November 12, opposition lawmaker Jeanine Áñez, second vice president of the Senate, became interim president, after other authorities belonging to Morales’ party–the Movement Toward Socialism (MAS, in Spanish)–who preceded her in the line of succession had also resigned. At the time, Morales said Áñez had been “self-proclaimed” president because she assumed the presidency at a session of the Plurinational Legislative Assembly without the necessary quorum, as MAS representatives had not attended. But the Constitutional Tribunal ruled the same day that Áñez was the legal interim president of Bolivia. The Tribunal stated that the presidency could not remain vacant and that the person in line of succession becomes interim president “ipso facto,” without the need for “a law or congressional resolution.”
In the days leading up to and following Morales’ resignation, 35 people were killed and more than 800 were injured in the context of protests, according to the Ombudsperson’s Office, an independent state body tasked with protecting human rights. In June 2020, a 36th victim died of injuries sustained at a protest in November 2019.
Of the 36 fatal victims, at least 10 were Morales supporters shot in the central town of Sacaba on November 15. Seven witnesses told Human Rights Watch that soldiers and police who were blocking passage at a bridge opened fire against demonstrators. Prosecutors told Human Rights Watch that 49 of the 50 witnesses they interviewed said the shots came from soldiers or police. One of the prosecutors in charge of the case said that, based on the evidence, he believed that soldiers, not police, had killed the protestors. In a separate incident, at least 10 people were killed in front of the Senkata fuel plant in El Alto, on the outskirts of La Paz, on November 19. Prosecutors told Human Rights Watch that military forces were inside the plant, because they had been deployed to protect it.
In a preliminary report in December 2019, the Inter-American Commission on Human Rights (IACHR) said that “the patterns of injuries” in the two cases “point strongly to extrajudicial killing practices.” A report in July 2020 by the International Human Rights Clinic at Harvard Law School and the University Network for Human Rights based on witness testimony and other evidence concluded state agents were responsible for the killings in both cases. In August, the Office of the United Nations High Commissioner for Human Rights issued another report that included information about multiple sources verified by its staff who suggested that security forces used lethal ammunition to disperse protesters. By contrast, Interior Minister Murillo told Human Rights Watch that MAS leaders killed the party’s own supporters in Sacaba and Senkata.
Witnesses also told Human Rights Watch that military forces opened fire against pro-Morales protestors in the Andean town of Betanzos on November 12, killing one. Prosecutors had not pressed any charges related to any of the three incidents as of September 2020.
The Office of the United Nations High Commissioner for Human Rights also documented 28 cases of people who it said were arbitrarily detained and tortured by police in the city of El Alto on November 11, 2019.
Other people died in clashes between anti- and pro-Morales protestors, including two men killed allegedly by Morales supporters in the town of Montero, near Santa Cruz, in the tropical lowlands. Two police officers also died in separate incidents.
Other acts of violence in November 2019 included the attack against and burning of the mayor’s office in Vinto by a mob that also abducted and publicly humiliated the mayor, Patricia Arce, a member of MAS.  A mob also burned a house where the sisters of Víctor Borda, president of the Chamber of Deputies for MAS, lived and the house of his brother, Marco Borda. The mob took Marco Borda hostage and forced him to walk naked through the streets of Potosí. Víctor Borda resigned, as the kidnappers demanded.
At Playa Verde, Vila Vila, and Caracollo, along the road from Oruro to La Paz, Morales supporters attacked buses carrying anti-Morales protestors to demonstrate in the capital, 14 witnesses and victims told Human Rights Watch. A man said he lost his hand when dynamite allegedly thrown by Morales supporters exploded next to him; five anti-Morales protestors said they suffered gunshot wounds; and four men said Morales supporters abducted them along with another eleven men, robbed them, forced them to strip, and beat them for hours. “We were all soaked in blood,” one of them said. The homes of human rights defender Waldo Albarracín and journalist Casimira Lema were also burned, allegedly by Morales supporters.
In December 2019, the interim government and the IACHR agreed to establish an Interdisciplinary Group of Independent Experts to investigate acts of violence and violations of human rights in the country between September 1 and December 31, 2019. In April 2020, they agreed that the group would start its work after presidential elections, currently scheduled for October 18, 2020.
On December 4, 2019, the OAS issued its final report on the elections, reaffirming its preliminary findings and concluding it had found “intentional manipulation” of electoral data and “serious irregularities” that made it impossible to validate the electoral results. On December 20, 2019, European Union electoral observers issued their own report, which also pointed out “numerous errors and irregularities,” and described the process of tallying votes as “chaotic.”
In February 2020, two US academic researchers disputed the OAS observers’ conclusion that the change in the voting trend in the last 5 percent of the vote was highly unlikely, arguing, among other things, that votes from poorer areas, which may have favored Morales, could have come in later than votes from elsewhere due to longer polling lines and delays in counting and reporting votes.
In June, another three researchers from two universities in the United States said that the sudden change in the voting trend appeared only when they excluded results from manually processed, late-reporting polling booths, which suggested to them that the OAS had used an incorrect data set. The researchers also claimed that the organization used an inappropriate statistical method that artificially created the appearance of a break in the voting trend.
The OAS stood by its findings. The two studies by researchers in the United States did not address the other alleged irregularities identified by OAS and EU observers.
II. Prosecution of People with Links to the Evo Morales Administration and Supporters
Shortly after taking office, the interim government said it was investigating close to 600 members of the Morales administration and people associated with them, including “all relatives” of Morales, some for terrorism and sedition and others for corruption, dereliction of duty, and other crimes.
Interior Minister Murillo has vowed to “hunt down” and “pursue” members of the Morales administration. He has also asked the attorney general, who under Bolivian law is supposed to operate independently from the executive branch, to “purge” the prosecutors’ office and warned he would “pursue” judges and prosecutors “who free criminals.”
The Attorney General’s Office told the Office of the United Nations High Commissioner for Human Rights (OHCHR) that it had opened criminal investigations for sedition, terrorism or belonging to a criminal “association” or a criminal organization against 159 people from November 11, 2019 to February 3, 2020. Those investigated were former Morales administration officials of different seniority levels, said the OHCHR.
In most of the cases examined by Human Rights Watch, the interim government had filed formal complaints prompting the Attorney General’s Office to open those criminal investigations.
In some of those cases, prosecutors filed charges without evidence that the accused had committed any crime.
- On January 31, 2020, police detained Patricia Hermosa, Morales’ attorney and former chief of staff. On February 1, prosecutors charged her with terrorism, financing of terrorism, and sedition. The only evidence contained in the charging document and case file, which Human Rights Watch reviewed, was that Hermosa had telephone contact with Morales in November 2019, after he resigned, as well as with a former minister and with a member of MAS. In the charging document, prosecutors argued that those calls “led to violence.” They provided no proof, nor did they describe the content of the calls. In a statement to prosecutors, Hermosa said that on those calls, she and Morales discussed the removal of his clothes from the presidential residence and administrative paperwork that she would fill out for him, as required under Bolivian law when an official resigns. Despite the lack of evidence that Hermosa committed any crime, she was held in pretrial detention from January 31 to August 5, 2020, when she was transferred to house arrest.
- On December 20, 2019, police detained Luis Hernán Soliz Morales, Morales’ cousin, who worked as an assistant in the president’s office; and 10 days later they detained Fernando Morales Virreyra, a businessperson who told prosecutors he was Morales’ friend. Prosecutors charged them with terrorism, financing of terrorism, and sedition based solely on their maintaining phone contact with Morales after he had resigned, according to the case files, which Human Rights Watch reviewed. The case files do not include transcripts or recordings of those calls. Morales Virreyra was granted house arrest, while Soliz Morales was initially held in pretrial detention and later transferred to house arrest.
Some cases are based on generic information, not on individualized evidence of crimes:
- On November 10, 2019, police detained Eulogio Núñez Aramayo, Ramiro Valle Mandepora, and Gober López Velasco, members of the Santa Cruz Department Electoral Tribunal, and Sandra Kettels Vaca, the tribunal’s president during the October 2019 elections. Defense lawyers say police did not have arrest warrants or search warrants when they entered the homes of the suspects and arrested them. Police presented the accused, handcuffed, to the press.
- Prosecutors charged the four with forging documents, altering election results, and dereliction of duty. They based the charges solely on the report by the Organization of American States (OAS) that alleged serious irregularities in the presidential elections of October 2019, according to the charging document and the official transcripts of three hearings reviewed by Human Rights Watch. Prosecutors have not alleged or provided evidence of any specific actions taken by each of them resulting in electoral fraud in Santa Cruz, where the official election results showed that Carlos Mesa, a former president of Bolivia and Morales’ main rival on the ballot, won the vote. The former officials were initially held in pretrial detention and are now under house arrest.
Prosecutors are also pursuing charges against people connected with the Morales government for their public statements, in ways that undermine freedom of expression. Under international human rights standards, a government may impose restrictions on the right to free speech only if such restrictions are provided for in legislation, necessary for a legitimate purpose, and proportional to that end.
- On February 7, 2020, prosecutors charged Gustavo Torrico, a member of the Plurinational Assembly and a former minister under Morales, with terrorism, financing of terrorism, sedition, and incitement to commit crimes. The terrorism and sedition charges are solely based on public statements Torrico made on the radio on October 29, 2020, when Morales was still president and thousands of people were protesting against the government. “The only thing we need to see is whether mothers, fathers are willing to have their children in the street when there is a confrontation. I don’t know how many are willing to sacrifice their children, to carry such a criminal pain [sic], to feel the pain of the death of a child,” said Torrico. “We need to see if Mr. Carlos Mesa is willing to start a war,” he added. While those statements are serious, it is disproportionate to prosecute them as acts of terrorism and sedition. Torrico was initially kept in pretrial detention and is now under house arrest.
- Orestes Sotomayor and Alejandra Salinas were detained on December 31, 2019, and charged with sedition, influence peddling, and improper use of government property. Prosecutors claim both were associated with the online news site “La Resistencia” (The Resistance) and with social media accounts and radio programs linked to it. They asserted that La Resistencia publications were generating “animosity” toward the interim government and “misinforming.” A police report provided, as evidence, several news stories and memes that criticized the interim government, such as posts attributing responsibility for the killing of protestors in 2019 to the interim government and pointing out that President Áñez was inaugurating public works initiated by Morales. Prosecutors claim Sotomayor registered the internet domain for La Resistencia and that he and Salinas used equipment at the government agency where they were employed to work on the news site. Prosecutors did not provide any evidence that either Sotomayor or Salinas were the authors of the articles, posts, and memes. But even if they were, they should not be prosecuted for exercising their right to free speech. The courts granted house arrest to Salinas and, after holding him for one month in pre-trial detention, to Sotomayor. La Resistencia continues to publish, and the articles highlighted in the police report are still online.
In response to the spread of Covid-19, the interim government has adopted policies that have threatened to curb free speech, particularly by political opponents. These include an overly broad provision in an emergency decree that authorities could use to prosecute those who criticize government policies.  In response to public outcry, the government first made cosmetic changes to the decree and, on May 14, revoked the problematic provision.
On March 18, 2020, Interior Minister Murillo announced that he had ordered the armed forces, police, and his staff to “cyberpatrol” the internet to identify and prosecute those who “misinform” the public about the coronavirus, and he warned Luis Arce, the MAS presidential candidate, “not to misinform.”
- One result of that “cyberpatrolling” was the arrest of Mauricio Jara. Police presented him in handcuffs surrounded by heavily armed guards at a press conference on April 22, 2020, during which they cited as evidence of criminal activity that Jara had admitted he was a supporter of Morales; had used WhatsApp groups to “misinform”; had called the interim government “a tyrant” and “dictatorial”; and had urged people to protest.  Police also cited as evidence that Jara had described the killing of at least 10 protestors in Senkata in November 2019 as a “massacre,” a term also used by the Inter-American Commission on Human Rights to describe the case. Prosecutors charged Jara with sedition, instigation to commit a crime, and crimes against public health. A judge ordered his pretrial detention, and he remained in pretrial detention as of August 27, 2020.
Some of the cases against Morales’ allies appear to include violations of due process rights including arbitrary denial of bail, which constitutes arbitrary deprivation of liberty and may infringe on the presumption of innocence.
- On January 8, a group of anti-Morales protestors blocked for three days the door of the home of Carlos Romero, Interior minister under Morales, calling for his arrest. A friend of Romero’s, who is a former Morales minister, told Human Rights Watch that Romero called him at midnight on January 8 and told him he was afraid the protesters would try to enter his home, and asked for help to leave. That former minister, who asked not to be identified for fear of reprisal by the interim government, said he called two police colonels he knew. Police arrived at the scene but did not help Romero leave his home. Romero remained locked up without water, after an unknown person closed the main water valve, or access to food until January 10, when a friend called an ambulance that took him to the hospital. Doctors said he suffered dehydration, hypertension, pain from an ulcer in the upper abdomen, and anxiety and depression. Prosecutors ordered police to bring Romero in to make a statement on January 14, after his release from the hospital. He was detained after making his statement. A judge said in a ruling, reviewed by Human Rights Watch, that Romero’s arrest was illegal because there was no arrest warrant against him at the time. Nevertheless, the judge ordered his pretrial detention. Romero was held in pretrial detention on charges of influence peddling and dereliction of duty in connection with a corruption case until June 30, when he was transferred to house arrest after posting bail.
Excessive use of pretrial detention has been a longstanding problem in Bolivia. In May 2019, the Morales government enacted a law intended to make pretrial detention an exceptional measure, reserved for a narrow group of people accused of serious crimes who are found to be a flight risk or to present a risk of interfering with the investigation. Those criteria are consistent with international human rights standards.
Despite the law, about 65 percent of Bolivia’s detainees were awaiting trial as of January 2020. Prosecutors have repeatedly sought pretrial detention in cases involving people connected to the Morales government. This has been true even when the charges are based on weak or non-existent evidence of criminal activity or when they are clearly excessive in relation to the wrongdoing alleged.
- Edith Chávez Arauco worked as a maid and babysitter for the family of Morales’ former minister of the presidency, Juan Ramón Quintana. In November 2019, prosecutors issued an arrest warrant against Quintana for terrorism and other crimes. On January 10, police raided Chávez’s home, on the basis of her connection to Quintana, and said they found a .22-caliber handgun in a cabinet in her bedroom. Prosecutors claim to have found .22 caliber bullets “of similar characteristics” in Quintana’s home. Chávez’s lawyer told Human Rights Watch that police have not performed any ballistics analysis. Prosecutors charged her with aiding and abetting, without stating what crime she had allegedly aided and abetted, and with unlawfully carrying a gun, though the charging document itself says police found the gun inside a cabinet—that is, she was not carrying the gun. Had Chávez been charged exclusively with unlawful possession of a gun, a crime punishable with up to two years in prison, pretrial detention would have been unlawful, as Bolivian law prohibits pretrial detention of people charged with a crime for which the maximum sentence is under four years in prison.  In contrast, unlawfully carrying a gun is punished with up to five years in prison. Prosecutors argued that she was a flight risk, because Bolivia’s borders were “open,” and a danger to society because she had possessed a gun. A judge agreed, and Chávez remains in pretrial detention.
- César Cocarico, Morales’ minister of land and rural development, was detained on February 21, 2020, on charges of dereliction of duty, influence peddling, exercising a profession illegally, and holding a public role without a proper appointment. All the charges are based exclusively on the fact that he had named Juan Carlos León as director of the National Institute of Land Reform, a role for which a bachelor’s degree and seven years of experience are required. León allegedly lacked both. Even if the appointment did indeed violate administrative law, the charges are disproportionate to the alleged wrongdoing. Cocarico remained in pretrial detention until May 13, 2020, when a judge granted him house arrest. León was detained on February 27 on the same charges as Cocarico and remains in pretrial detention.
- In the case of Patricia Hermosa, prosecutors argued that she should be kept in pretrial detention because, as part of her duties as a public servant in the Morales government, she had travelled abroad. A judge ordered her pretrial detention after her arrest on January 31.
- On February 7, Hermosa showed a jail doctor the result of a test indicating she was pregnant, according to a report written by medical staff at the jail almost three months later. Bolivian law forbids pretrial detention of pregnant women. The doctor told her she had to take another pregnancy test with the doctor as a witness to verify the results, but neither this doctor nor any other staff member at the jail provided her with a test. A month later, Hermosa suffered bleeding for 10 days and, as a result, the doctor’s report says, “it is assumed she had a miscarriage.” The report does not mention any medical care provided to Hermosa during those 10 days, or previously or subsequently. Hermosa’s lawyer told Human Rights Watch there were no health personnel caring for detainees in the jail after early February and that a doctor examined her for the first time only in mid-May. In February, Hermosa’s lawyer petitioned a judge to release her, but the hearing took place only in April, and the judge kept her in pretrial detention on the assumption that she was no longer pregnant. Hermosa was granted house arrest on July 29, but was released from jail only on August 5.
Detention facilities in Bolivia hold more than double their intended capacity, in packed, unsanitary cells with scant ventilation and little access to health care. In April 2020, the interim government issued a decree to reduce overcrowding in response to the spread of Covid-19, but in cases linked to the Morales government it has sought to keep suspects in pretrial detention.
The interim government has gone so far as to seek criminal charges against two judges who granted house arrest, rather than continued pretrial detention, to people linked to the Morales administration. Police detained one of them.
- On May 22, 2020, judge Hugo Huacani ordered the transfer of Edith Chávez Arauco, the babysitter of Morales’ minister of the presidency, from pretrial detention to house arrest, as the time period ordered for her pretrial detention had expired. Hours later, two government lawyers reported the judge to police, stating he had shown a possible “lack of independence” in his ruling, according to a statement from the Interior Ministry. The Interior Ministry argued that the Supreme Court had suspended time limits on pretrial detention because of the coronavirus emergency, effectively suggesting people could be held in pretrial detention indefinitely. Police detained the judge “in flagrante,” the Interior Ministry said. The Prosecutor’s Office clarified it had not participated in the arrest and there was no arrest warrant. Judge Huacani was held in custody until the next day, when another judge ruled his arrest had been illegal. The Interior Ministry filed a criminal complaint against judge Huacani for dereliction of duty and for issuing decisions that violate the Constitution and the law on May 22. Prosecutors opened an investigation into those alleged crimes. Chávez was released to house arrest pursuant to Judge Huacani’s order, but on June 10, another judge revoked the order and she returned to pretrial detention.
- On July 3, the interim government announced it would seek charges of malfeasance and issuing decisions that violate the Constitution and the law against Judge Alan Zárate for granting house arrest to Nemesia Achacollo, a minister of Rural Develoment and Land in the Morales administration who was held in pretrial detention for a corruption case for which she was first detained in 2016, while Morales was still in office. The former minister’s attorney told the Bolivian press that judge Zárate had simply followed the law as the six-month period of pretrial detention determined at an earlier hearing had expired and neither prosecutors nor the government had requested that it be extended.
The interim government is also seeking criminal charges against high-level officials in other branches of government.
- On June 12, the interim government announced it had asked the Attorney General’s Office to prosecute the presidents of the Senate, Eva Copa, and the Chamber of Deputies, Sergio Choque, who are members of MAS, on charges of influence peddling and dereliction of duty for the “delayed and unjustified treatment” of a request to approve a list of promotions to the highest ranks in the armed forces.
Bolivia’s Constitution gives the Senate the authority to “ratify” promotions to general, admiral, vice admiral, and rear admiral. In February, the interim government sent the list of candidates for promotion to the Senate, but the Senate did not immediately approve it. Senator Copa later explained that she was prioritizing bills related to the Covid-19 pandemic. In May, the high command of the armed forces went to the Senate, uninvited, and the commander-in-chief gave the Senate a week to “ratify” the list, warning that otherwise the armed forces would enact the promotions on their own. Two days later, Interior Minister Murillo threatened members of the Plurinational Assembly with prison if they did not approve the promotions. On June 19, Senator Copa said she had just received documentation that was missing from the request for promotions. On July 15, the interim government issued a decree approving the promotions, without Senate ratification.
Prosecutors accepted the interim government’s criminal complaint and opened a criminal investigation against Copa and Choque. They sent Copa a request for information that cited dereliction of duty, but did not mention influence peddling. Bolivia’s Constitution gives no role to the Chamber of Deputies in ratifying promotions to generals, and the interim government did not explain why it was seeking charges against its president.
- After accusing interim Ombudsperson Nadia Cruz of “politicking” on behalf of MAS, the interim government filed a criminal complaint against her on July 24 for “usurping and prolonging” service in a public position.  The interim government accused her of violating the law by remaining in an interim position for longer than 90 days, which it claimed was the maximum period allowed.
The Plurinational Assembly, where the MAS has a majority, had appointed Cruz in January 2019 as interim director of the ombudsperson’s office, the independent state body tasked with protecting human rights. On July 13, the interim government said it would not respond to any requests for information signed by Cruz, claiming that the Constitutional Tribunal had ruled in 2004 that interim public positions could only be held for 90 days. Cruz responded that the ruling was based on an interpretation of the previous Bolivian Constitution and applied to the acting directors of the Customs Authority, not to the Ombudsperson, who is designated by the Assembly, not the Executive. She also argued that under current law, the 90 day limit applies to career public servants and not to “designated” officials, like the Ombudsperson. Cruz accused the interim government of trying to end the work of the Ombudsperson’s Office in defense of human rights, and responded with her own criminal complaint against two government officials for obstructing the work of her office.
III. The Terrorism Case against Evo Morales
Bolivia’s interim government has filed several complaints with the Attorney General’s Office against Morales, calling for his prosecution on terrorism and other charges. In July 2020, prosecutors formally charged Morales with terrorism in one of the cases, concerning a November 14, 2019 phone call in which they allege the former president told a follower to mobilize supporters to block access to cities.
On November 19, 2019, police arrested Alejandro Yucra, a Morales supporter, for allegedly blocking a road along with other supporters and confiscated his phone. On the phone, they found what prosecutors say is a video recording of the November 14 call showing Yucra’s father, Faustino Yucra Yarwi, talking on speakerphone with another man whom prosecutors say was Morales. Prosecutors allege that Alejandro Yucra’s brother had recorded the call and forwarded it to him.
The next day, Interior Minister Murillo made the recording public at a press conference and claimed that in the call Morales was talking to Faustino Yucra and “committing terrorism.” On November 22, 2019, the prosecutor’s office opened a criminal investigation against Morales on suspicion of terrorism and sedition.
In January 2020, the interim government said it had asked Interpol to issue a Red Notice for Morales’ arrest, but that Interpol had declined. On April 8, police detained Faustino Yucra. At the time of writing he remained in pretrial detention, charged with “belonging to a criminal organization,” “incitement to commit a crime,” and “illegal manufacture of explosives” for allegedly organizing a roadblock and making Molotov cocktails.
On July 6, prosecutors charged Morales with terrorism and financing of terrorism and requested his pretrial detention. They did not file sedition charges against him. Terrorism offenses are punishable with up to 20 years in prison each.
Meanwhile, the interim government has been treating Morales as a convicted criminal. At a press conference in January, Minister Murillo showed a pair of handcuffs and said he was waiting for Morales to return to Bolivia so that he could take him to prison. In February, Minister Murillo told Human Rights Watch, “one does not need more than that audio to send him [Morales] to prison for 500 years.” The minister has also publicly called Morales “a terrorist.”
Morales is under criminal investigation in several other cases, including one for alleged genocide, terrorism, sedition, and other crimes for his alleged role in roadblocks that, according to the interim government, stopped medical oxygen from reaching hospitals to treat Covid-19 patients in August 2020. In August, the interim government filed a criminal complaint calling for the prosecution of Morales for statutory rape and human trafficking, alleging that he sexually assaulted a girl under the age of 18. The alleged victim, who is now 19, subsequently wrote a letter to Bolivia’s Ombudsperson in which she said police had subjected her and her family to illegal detention, threats, bullying, and physical and psychological mistreatment. “They told me that if I did not say what they told me to say, they would prosecute me for sedition and terrorism,” she wrote.
The only charges announced against Morales so far are those related to the November 14, 2019 phone call.
Terrorism under Bolivian and International Law
Article 133 of Bolivia’s penal code, adopted in 2012 while Morales was president, defines terrorism as “crimes against public safety, public health and the safety of means of transportation” committed with the aim of “intimidating or keeping the population, or a segment of it, in a state of alarm or collective panic, or forcing the national government, a foreign government or an international organization to do something or refrain from doing something; subverting the constitutional order or deposing the constitutionally-elected government.”
The definition is overly broad on multiple fronts. First, the types of acts that can constitute terrorism are very broadly defined in Bolivia’s penal code. For instance, crimes against public health include “any act that, one way or another, affects the health of the population”; and crimes against the safety of means of transportation include any act to “impede, alter or endanger the safety or regularity of public transportation.” That means the terrorism definition could encompass peaceful protests or other forms of freedom of expression or association that are protected under international human rights law. Overbroad definitions of terrorism carry the potential for “deliberate misuse of the term–including as a response to claims and social movements of indigenous peoples–as well as unintended human rights abuses,” the former UN special rapporteur on countering terrorism has noted.
Second, the definition puts an extreme label, “terrorism,” on acts which may be criminal but that fall short of any reasonable definition of terrorism. It does not exclude, for example, acts that do not cause death or serious physical harm to members of the population and are not intended to do so. As a result, it opens the door to punishment that is disproportionate to the conduct at issue and inconsistent with the basic human right to liberty, the prohibition on cruel, inhuman, and degrading treatment or punishment, and the right of detainees to be treated with respect for their inherent dignity.
While there is no universally accepted definition of terrorism, the former UN special rapporteur on countering terrorism has set forth a model definition of terrorism that is narrow in scope to reduce the potential for deliberate or unintentional misuse:
Terrorism “is an action or attempted action where”
1. The action:
(a) Constituted the intentional taking of hostages; or
(b) Is intended to cause death or serious bodily injury to one or more members of the general population or segments of it; or
(c) Involved lethal or serious physical violence against one or more members of the general population or segments of it;
2. The action is done or attempted with the intention of:
(a) Provoking a state of terror in the general public or a segment of it; or
(b) Compelling a Government or international organization to do or abstain from doing something;
3 The action corresponds to:
(a) The definition of a serious offence in national law, enacted for the
purpose of complying with international conventions and protocols relating to terrorism or with resolutions of the Security Council relating to terrorism; or
(b) All elements of a serious crime defined by national law.
The Evidence Against Evo Morales
The recording of the November 14 call is the key piece of evidence in the case against Morales, Heydi Gil told Human Rights Watch in February, when she was one of the prosecutors working on the case.
In the recording, the man alleged to be Morales instructs an associate to mobilize protesters to block roads and says: “Brother, don’t let the food enter cities. Let’s block, really cordon them in.” Later in the conversation, he adds: “Fight, fight, fight, okay?” “We are going to wage a hard battle against the dictatorship,” he continues, in reference to the government headed by interim president Jeanine Áñez.
It is not unusual for protesters in Bolivia to refer to their demonstrations as “fights” and “battles.”
Forensic experts from the Colombian Attorney General’s Office examined the recording at the request of Bolivian prosecutors and concluded that the voice “very likely” belonged to Morales, the Bolivian Prosecutor´s Office said in February. Morales has said the audio was “altered” but has neither admitted nor denied that the voice was his. Even if it was indeed Morales speaking on the call, the content of the conversation does not show any involvement in violent acts, including any that would be appropriately categorized as terrorism.
The reference on the call to blocking access to cities echoes a speech Morales had made while still president. In a televised appearance on October 26, 2019, Morales threatened to mobilize his supporters to block access to cities if strikes against him continued.
Prosecutors have obtained hundreds of so-called “pen registers,” records of calls and text messages, including metadata such as time and date of the communication, sent from phone numbers used by Morales. But the case file did not include information on the content of those communications. Gil told Human Rights Watch that prosecutors were attempting to prove that acts of violence allegedly by Morales supporters occurred after Morales spoke with specific regional leaders. But whatever the prosecutors may have been hoping to find, the evidence Human Rights Watch reviewed—after prosecutors had already sought Morales’ arrest—did not support such an allegation.
Gil said that she and her colleagues were also looking for evidence that former members of the Morales government financed the protests with government funds. Such actions, if proven, could point to embezzlement—which is not among the current charges against Morales. The case file does not include evidence that Morales or his associates channeled funds into organizations for the purpose of carrying out violent actions that it would be appropriate to categorize as terrorism.
IV. Weak Judicial Institutions Enabling Abuse
Evo Morales’ Reforms Undermined Judicial Independence
The Bolivian justice system has been plagued by corruption, delays, and political interference for years. As president from January 22, 2006 to November 10, 2019, Morales repeatedly rejected the idea that judicial independence is a key component of democracy. In October 2018, for example, he said that judicial independence was a “doctrine of North America,” meaning the United States, and of “capitalism.”
His administration weakened judicial independence through a range of reforms to the judiciary and other actions. These included the following:
- Under the 2009 Bolivian Constitution, high court judges and members of the Magistrates Council, the body that appoints and dismisses judges, are elected by voters from lists created by the Plurinational Assembly. The Assembly, where MAS had a majority in both houses during most of his time in government, repeatedly packed the lists they created with people linked to the government. In 2017, for instance, six of the 10 candidates for the three-member Magistrates Council had worked for the Morales administration. Of the six, two were elected to the council, including its president.
- In 2010, Morales signed a law providing that judges appointed before the 2009 Constitution would retroactively be deemed temporary, although at the time they were tenured judges.
- In 2017, Morales signed a law creating a commission to reform the judiciary. Five of the commission’s nine members were either Morales supporters in the Assembly or government officials he had appointed. The commission had broad powers, including “controlling” the appointment of new judges and taking “other actions necessary” to reform the judiciary.
- In 2017, the Magistrates Council ruled that it had the power to summarily remove all judges appointed before the enactment of the 2009 Constitution, as the 2010 law had retroactively established that those judges’ posts were temporary. In May of that year, the council summarily removed 88 judges. It removed others in 2019. The dismissed judges received a memorandum “thanking” them for their work and telling them to leave their offices that same day. The memorandums did not indicate the cause of their dismissal, nor were the judges given an opportunity to challenge their dismissals before they were fired.
Bolivia’s judicial system continues to suffer from the changes enacted during Morales’ administration. A 2011 law allowed the Magistrates Council to appoint “provisional” judges until a school to train potential judges was established. About 80 percent of the country’s judges are still “provisional,” creating the risk that they will issue decisions to please authorities and remain in their positions.
The Attorney General’s Office was similarly vulnerable to political pressure during the Morales administration. Fundación Construir, a civil society organization working on justice issues, estimates that about 90 percent of prosecutors are “provisional” and subject to dismissal without clear criteria. The Attorney General´s Office has not published data on the subject.
Cases of Political Persecution during the Evo Morales Administration
Many of Morales’ political rivals and critics were prosecuted or investigated on charges that appeared to be politically motivated. For instance:
- In March 2006, the Morales government initiated criminal prosecution of former president Eduardo Rodríguez Veltzé for “treason” during his term in office, for allegedly having sent obsolete Chinese-made missiles to the United States for their destruction. Rodríguez Veltzé denied that he had authorized their hand-over, and the Plurinational Assembly , which had to decide if the case could move forward because Rodríguez Veltzé was a former president, rejected his prosecution.
- In April 2009, in what became known in Bolivia as “the terrorism case,” police killed two Hungarians (one of Bolivian birth) and an Irishman whom the government alleged were mercenaries involved in a plot to kill Morales. Reports by an Irish government pathologist and an independent forensic consultant suggested that at least two of the three victims may have been extrajudicially executed. Prosecutors charged 39 people in the alleged plot to kill Morales, including leading members of the opposition in Santa Cruz. A video leaked in 2011 showed a person allegedly linked to the Morales government paying the key witness who had implicated Morales’ political opponents in the alleged plot to kill him more than USD30,000 to leave the country. In 2014, the prosecutor in the case fled to Brazil and, from there, said the evidence in the case had been planted and that the Morales government had forced him to incriminate innocent people. In February 2020, the Attorney General’s Office withdrew charges against the 39 accused.
- In August 2012, the government filed criminal complaints against the directors of news outlets Agencia de Noticias Fides (ANF), Página Siete, and El Diario, accusing them of racism. Morales said in a speech that in the eastern part of the country “people go hungry because they are lazy.” The news agency ANF titled its story: “Evo says that hunger in the East is caused by laziness.” The government claimed that that headline and similar ones used by the other two outlets distorted Morales’ words. The outlets’s directors saw the case as an attempt to intimidate them, the then director of Página Siete told Human Rights Watch. Prosecutors held six hearings in which they questioned the editors and executives of the three media outlets, but they never announced charges or the official closure of the case, the director said.
- From 2015 through 2018, the Attorney General’s Office used an anti-corruption law passed in 2010 to charge opposition leaders Jorge “Tuto” Quiroga and Carlos Mesa, both former presidents of Bolivia, and Samuel Doria Medina, a former minister, with “anti-economic conduct” for decisions taken during their time in office prior to 2010. International human rights law prohibits retroactive application of criminal law unless doing so is beneficial to the defendant.
- In May 2016, lawyer Eduardo León was detained and prosecuted for “human trafficking” after he represented Gabriela Zapata Montaño, a former lover of Morales who claimed she had a son with him. Bolivian authorities said that Zapata and León had paid a boy to say he was Morales’ son. According to the Ombudperson’s Office, León was held for seven days without seeing a judge—a violation of Bolivian law, which requires that detainees be brought to a judge within 24 hours of arrest. Later that month, government authorities summarily withdrew León’s license to practice law, alleging he had forged his military service certificate in 1999. (Such a certificate was required to receive a university degree at the time.)
To the Interim Government
- Cease all politically-motivated persecution of people with links to the Morales administration or Morales supporters, and respect prosecutorial and judicial independence.
- Cease the use of “cyberpatrolling” operations to identify people who criticize the interim government.
- Cease seeking criminal charges against judges for issuing decisions the interim government does not agree with.
To the Interim Government and the Next Government
- Overhaul Bolivia’s justice system to ensure its independence, starting by opening a participatory public process that actively seeks and includes input from all political parties, members of civil society and groups working on justice sector reform, and relevant international experts. The goal should be to ensure judicial independence, impartiality, and integrity.
- Ensure that prison conditions comply with Bolivia’s obligations under international law and with the country’s own laws, including the obligation to ensure adequate medical care for detainees.
To the Attorney General’s Office
- Drop terrorism charges against former president Evo Morales.
- Carry out an independent, thorough analysis of evidence and due process in all other cases involving former members of the Morales administration and supporters, and drop charges where the evidence does not support them.
- Cease using the penal code definition of terrorism in ways that criminalize or chill free speech and peaceful protests, or to encompass conduct that is not genuinely terrorist in nature, such as actions that do not involve the intent to deliberately kill or cause serious physical harm to members of the general population with the aim of forcing a government to act in a particular manner.
- Stop unnecessary and excessive use of pretrial detention, and comply with the law regarding categories of people who may not be placed in pre-trial detention. Prosecutors should request pretrial detention only for people accused of serious crimes who are a flight risk or when there is risk that they can interfere with the investigation, in accordance with international human rights standards and Bolivian law. Prosecutors should review the cases of Morales supporters or people with links to his administration who are in pretrial detention and seriously consider requesting their release or, if applicable, transferring them to house arrest, particularly given the grave threat that Covid-19 represents for those held in Bolivia’s extremely overcrowded prisons and jails.
- Initiate a transparent process, free from political pressure, to select permanent prosecutors on the basis of clear criteria. “Temporary” prosecutors who apply should not be rejected because they were appointed during the Morales administration. Their applications should be assessed based on a genuinely independent evaluation of their qualifications, competence, and professional record.
To the Magistrates Council
- Initiate a transparent process, free from political pressure, to select permanent judges on the basis of clear criteria. “Temporary” judges who apply should not be rejected because they were appointed during the Morales administration. Their applications should be assessed based on a genuinely independent evaluation of their qualifications, competence, and professional record.
To the Plurinational Legislative Assembly
- Narrow the overbroad penal code definition of terrorism so that it cannot be used to deliberately or unintentionally criminalize or restrict the internationally protected rights to free speech, association, and assembly, including the right to peaceful protests, or to encompass acts that are not genuinely terrorist in nature, such as those that do not involve the intent to deliberately kill or cause serious physical harm to members of the general population with the aim of forcing a government to act in a particular manner.
To the Interim Government, the Next Government, and the Inter-American Commission on Human Rights (IACHR)
- Establish the Interdisciplinary Group of Independent Experts, as agreed upon by the interim government and the IACHR in December 2019 and March 2020, to investigate acts of violence and violations of human rights in the country between September 1 and December 31, 2019.
This report was researched and written by César Muñoz Acebes, Americas senior researcher. Assistant researchers Nathalye Cotrino Villarreal and Carlos Pérez Rojas provided research support. The report was reviewed and edited by Tamara Taraciuk Broner, acting Americas deputy director; Juan Pappier, Americas researcher; Margaret Knox and Dan Baum, senior editors/researchers; Letta Tayler, senior crisis and conflict researcher; Heather Barr, acting co-director of the Women’s Rights Division; Megan McLemore, health and human rights consultant; Joseph Saunders, acting program director; and Maria McFarland Sánchez-Moreno and Aisling Reidy, senior legal advisors. The report was prepared for publication by Travis Carr, publications coordinator; Fitzroy Hepkins, administrative manager; and José Martínez, senior administration coordinator. Americas division associate Oriana van Praag provided logistical and editing support. Gabriela Haymes translated the report into Spanish.
We would like to thank Franco Albarracín, member of the Permanent Assembly on Human Rights of Bolivia; Kathryn Ledebur, director of the Andean Information Network; Soraya Santiago Salame, Executive Director of the Constitutional Tribune Foundation; Ramiro Orias, Program Officer at the Due Process of Law Foundation; attorney and researcher Leonardo Tamburini; Vivian Lagrava, coordinator of the Colectivo de Derechos Humanos Empodérate; and the Mission in Bolivia of the Office of the United Nations High Commissioner for Human Rights, for their advice and assistance.