HomeNewsAnalysisSentenced Without Conviction: A Tale of Pretrial Detention in Colombia

Sentenced Without Conviction: A Tale of Pretrial Detention in Colombia


On April 3, 2014, a dozen plainclothes police officers crashed through the door of Norbert Reinhart's Medellín apartment brandishing an arrest warrant for murder. Over three years later, and Reinhart is neither a free man nor a convicted criminal, instead he is one of tens of thousands of inmates in Colombian prisons trapped in the legal limbo of pretrial detention.

In Colombia, as in much of Latin America, the overuse of pretrial detention has fueled an overcrowding crisis: Colombia's prisons stand at 154 percent of their capacity, and around a third of inmates are on remand. Authorities struggle to maintain control of these jails' tens of thousands of prisoners, a significant number of whom are innocent or only guilty of minor crimes. Inmates routinely endure prolonged physical and mental suffering as well as exposure to hardened convicts and organized crime networks.

In July 2017, a legal reform came into effect designed to ease overcrowding by imposing new time limits on the use of pretrial detention. But as Norbert Reinhart was to discover, the gap between the law and its application in Colombia may limit its impact.

For Reinhart, a 65-year-old Canadian citizen who has lived in Colombia for over 20 years, his ordeal began in the holding cells of Colombia's judicial police (Seccional de Investigación Criminal - SIJIN). Two days after his arrest, he was cuffed and escorted to the court room for his indictment, legalization of capture and security measures hearings, which all flashed by in a five-hour blur.

At the hearings, Reinhart heard how he was accused of paying a paramilitary hitman to murder one of his business partners in a mining venture -- charges he vigorously denies -- and how he would be held on remand throughout his trial.

Guidance issued to prosecutors states that incarceration should always be the last resort for pretrial security measures, but in reality, it is usually the first resort. In Reinhart's case, the prosecutor argued the circumstances met the three requirements for showing proportionality for such measures: he was deemed a flight risk as he was a foreign citizen, a risk to the victims or the community as it was a murder case involving organized crime, and a risk of interfering with the case, as he had illegally been in possession of investigation files related to the case at the time of his arrest.

However, the process, Reinhart claims, was a done deal from the start and he had little opportunity to contest the security measures or the accusations they were based on.

"It was like a rubber stamp," he told InSight Crime during a visit to El Pedregal prison on the outskirts of Medellín.

Fearing he would be cut off from the outside world once he entered the actual prison system, Reinhart bribed the SIJIN guards to let him stay in the holding cells for 30 days to give him time to find a lawyer and, he believed, to secure his release.

"I thought I could solve this in 30 days, I thought it was that obvious I was innocent, that this was a mistake," he said.

After 20 days, and with the gravity of his situation sinking in, he was hauled out of the SIJIN cells and transported up the Medellín mountainside to the grim concrete tower blocks of El Pedregal.

SEE ALSO: Colombia's Mirror: War and Drug Trafficking in the Prison System

On arrival, Reinhart was taken to a reception area consisting of three tiny cells and a small open area. The area was packed wall to wall with other prisoners, who slept in whatever space they could find on whatever bedding they had brought with them. Reinhart had a thin camping mat his partner's wife had got to him in the SIJIN cells, but he was forced to spend several nights sleeping on the floor, wet from the overflowing urinals.

Reinhart was only in reception for one week, making him one of the lucky ones. Other inmates he knows have spent close to a year and a half in the reception area waiting to be assigned a cell.

As an elderly man, Reinhart was assigned to Patio F -- the wing reserved for vulnerable prisoners, such as people with physical disabilities, members of at-risk minorities such as the LGBT community, and public officials. This was another stroke of luck as the common patios are rife with violence and crime, and brutally controlled by bosses known in the Colombian prison system as "caciques" or chieftains.

"It's pure hell" in the other wings, he said. "Every day I count my blessings, because I wouldn't last three days in there."

Nevertheless, while Reinhart has been spared the violent regime of the caciques, conditions in Patio F are no better than in the rest of the crumbling concrete shell of El Pedregal, and he feels his three years there have already taken their toll.

"It's an environment where, by necessity, your mental and physical health has to deteriorate, it leaves you mentally debilitated," he said.

Guidance issued to prosecutors states that incarceration should always be the last resort for pretrial security measures, but in reality, it is usually the first resort.

Under Colombian law, inmates on remand are supposed to be kept separate from the convicted to protect them from being victimized or recruited by hardened criminals. However, in El Pedregal, as in most Colombian prisons, this never happens, and every wing is a mix -- among Reinhart's current cellmates is a convicted hitman.

"The condemned people are much more involved in extortion and threatening behaviour," he said. "They say I'm condemned, I've got nothing to lose, I'll kill you."

Many of those who enter the prison, innocent or guilty, will end up with drug problems. Reinhart estimates that 30 to 40 percent of people in his wing use drugs, but this rises to a staggering 80 to 90 percent in the common wings, generating large numbers of addicts. As a result, drug debts are the principal cause of violence.

"There is so much need, but so much poverty," Reinhart said.

The drugs offer one of the only escapes from the tedium of prison life. But one of the few other breaks in routine, attending the endless court hearings, is less a relief than another ordeal, Reinhart says. The arduous processing and transportation process is compounded by eight- to ten-hour stints crammed into the court house's small holding cell with over 40 other inmates and no furniture.

However, Reinhart adds, these trips have a silver lining.

"The only sunlight I've seen in three years is walking from the door to the bus," he said.

Presumed Innocent, Treated Guilty

Even after settling into El Pedregal, Reinhart still believed he would be out of prison within six months. However, as his case progressed he began to understand the reality of the Colombian justice system: its glacial pace, endless delays, strange maneuvers and at times baffling interpretation of the laws.

By the time his trial started, nearly 22 months after his arrest, Reinhart's pretrial detention had exerted a chokehold not only over his own life but also over his young daughter's.

It was the day after her 18th birthday when Molly Reinhart received an email saying her father was in jail. At first, she stayed in Canada, trusting his assurances that the case would be rapidly resolved. However, on New Year's Day 2015, she found herself on a plane to Colombia.

Since arriving, Molly's time has revolved around organizing her father's defense, while the rest of her life has been put on hold.

"The most difficult thing the whole time is not knowing how long," she said. "I haven't been able to make plans for the past three and half years."

With no end in sight, her family, friends and life in Canada have receded into the past.

"My mom's been the only one to say, 'You should come back.' But it's not that simple. I can't just leave," she said.

As the trial dragged on, Reinhart, his daughter and his lawyer filed numerous motions to try to secure his release for the trial period, all of which were rejected. However, with the new law coming into effect, they believed they finally had a watertight case.

SEE ALSO: The Prison Dilemma in the Americas

Law 1786 changes the previously vague condition that defendants could only be held for a "reasonable term" with specific time limits. Defense lawyers can apply for release under one of two types of time limits. The first sets a limit of one year for the whole process, with the possibility for prosecutors applying to extend to two for certain types of cases such as those involving multiple charges or organized crime. The other sets limits for each stage of the trial: 60 days from the indictment to the presentation of the written accusation, 120 days from the accusation to the start of the oral trial, and 150 days for the trial itself, with each term doubled for the special cases.

At the July 19 hearing, Reinhart's lawyer made a simple case. As his is an organized crime case, the 150-day limit for the trial doubles to 300. He has been held for 530 days, although he drops this to 480 days after discounting delays for which Reinhart and his legal team accept they were responsible. Whichever way you look at it, the defense argued, the terms have long expired.

The prosecutor responded with a barrage of arguments: the law should not be retroactively applied, it is not supposed to be automatically applied, Reinhart has been planning this all along, delaying and delaying until he can get out and escape to Canada.

Both lawyers play on the arguments that swirl around pretrial detention and the law to curb its use.

"It is possible that some people who have committed crimes will be set free, but right now there are a lot of innocent people unjustly serving sentences," the defense argued.

"The legislators cannot want the chaos of a mass release!" the prosecutor batted back. "The state has to assume responsibility for its actions."

The judge ruled that Reinhart will stay in prison. He stated the law cannot be applied retroactively, arguing that instead the count started when the law came into force, a decision that seemingly flies in the face of the national Prosecutor's Office's own interpretations of the law and, Reinhart's defense argues, constitutional law. For the judge, law 1786 does not apply to the case and Reinhart has not yet spent an unreasonable amount of time in prison.

They will appeal, but in the meantime the trial continues. The prosecution is expected to conclude in August, meaning some time before the end of the year Reinhart will finally get a chance to present his defense -- over three and half years after his arrest. The arguments over his guilt or innocence will almost certainly drag on into 2018. But for the time being, he, along with tens of thousands of other presumed innocents in Colombia, continues to live as a condemned man.

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