The Constitutional Court abolished the jurisdiction that Congress gave to lawyers in Act 2094 of 2021. Investigations are being carried out on officials elected by the people. However, it decided that the organization could continue to impose sanctions on these public officials.. In any event, the decision will be final if a judge approves.
(Read: Attorney General’s reform pending in the Constitutional Court)
This reform in the Office of the Attorney General aimed to comply with the decision of the Supreme Court. The Inter-American Court of Human Rights, in the case of President Gustavo Petro, he says these public officials can only be influenced by a criminal judge.
With the presentation of Judges Juan Carlos Cortés and José Fernando Reyes and by a vote of 5-4, The General Assembly reassured that this formula, which gives jurisdiction to lawyers, is false, and so are the Colombian Lawyers Commission, the José Alvear Restrepo Lawyers Collective, Senator Alexander López Maya and former congressman Ángela María Robledo Gómez.
However, after fierce debate in the Plenary, the Court retained the administrative authority traditionally enjoyed by the Office of the Attorney General.
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In this sense, the decision of the General Assembly shows that the Office of the Chief Public Prosecutor can continue to investigate the servers elected by the public and, if any, dismiss them and disqualify them.
This process must be done with the new disciplinary rules, with those of the claims law 2094 dated 2021; this is more guaranteeing for the Court in that it establishes a double degree and double compliance, and separates the investigative and prosecution functions.
However, the execution of the sanction given by the Chief Public Prosecutor’s Office will be stopped and the process will be transferred to the contentious-administrative judiciary, the Council of State.The administrative judge, not the criminal judge, can review this sanction. And if it continues, the sanction will start to work there.
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“Therefore, in order to weigh the supreme powers enshrined in article 277.6 of the Political Charter and article 23.2 of the ACHR, it is imperative to ensure that the sanctions decisions of the PGN against the public election presenters cannot be executed without judicial review. The constitutional investigative and disciplinary powers of the supervisory body are respected and judicial discretion is exercised.l because the final decision on imposing a disciplinary sanction rests with a Republican judge,” the decision states.
In the decision of the Constitutional Court, it is stated that this application for extraordinary review will only be implemented if the sanctions of “automatic and immediate” dismissal, suspension and dismissal are imposed on public officials elected by the public.
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“In any event, the person who has been sanctioned may take any procedural action he deems relevant to his defence, with regard to the means of invalidation control. L“Sanctions imposed on publicly elected officials will be suspended during the judicial review process, which will end with a penalty that will definitively determine the sanction to be imposed,” the court said.
“It is clear that the sanctioned person is guaranteed a wide opportunity to exercise his right.
A full defense as set out in the Constitutional Court’s 2022 decision C091. In any case, the State guarantees automatic control of the decision,
not harming the rights of voters and
chosen person. Similarly, the determination of PGN’s disciplinary action,
the political rights of the popular election server will correspond to the contentious judge
administrative order thus secures judicial precaution,” the Court added.
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The resolution urges Congress to “adopt a charter for popularly elected public officials, including a special disciplinary regime that embodies the highest national and international standards for the protection and guarantee of political and electoral rights.”
Against this backdrop, the Constitutional Court, as it had done before, returned to the Office of the Prosecutor to defend its power to disqualify those elected by voting.
EL TIEMPO, learning that this majority decision was subjected to harsh criticism by the judges who did not accompany it, they put forward a different thesis: Destroy the judiciary and let’s leave it.The Attorney General’s Office conducts the investigation only about the presenters selected by the public.
(Read: Prosecutor’s Office asks the Court to maintain its role as judge in the case of those elected by vote)
This proposal included the progression of this stage to the statement of charges so that a judicial authority, later understood as an administrative judge rather than a criminal judge, would conduct disciplinary proceedings as the only way to adapt the Colombian legal system to the verdict. Inter-American Court of Human Rights.
judges Diana Fajardo Rivera, Natalia Ángel Cabo, Jorge Enrique Ibáñez Najar and Cristina Pardo Schlesinger They partially saved their votes by opposing the reinstatement of disciplinary authority to the Nation’s Attorney General as an administrative function regarding popular election hosts.
According to dissenting judges andIn this decision of the Constitutional Court, applying for an extraordinary review is a procedure that does not apply to the guarantees of a real process. “because this is just a judicial review and not a comprehensive judicial action.”
They further stated that if the Court realizes that what it should have said was justified in imposing sanctions, it should refer the disciplinary investigation to the contentious-administrative judge to process it as a judicial proceeding. administration of justice, advocacy, conflict and legal process in general, double example and double compliance, while respecting the right to access information, without prejudice to the use of ordinary and extraordinary resources that may be applicable.
Likewise, in the bailout vote, it is stated that the suspension of the enforcement of the sanction while confirming the decision of the contentious judicial review body does not correspond to the standard set in Decision C-146 of 2021. Court, Petro Urrego vs. was clear in the determination of the ruling rule in his case. Colombia can be summarized as follows: “Administrative authorities cannot impose sanctions that restrict political rights and, in particular, are not competent to dismiss popularly elected officials and punish them with disability.”
For the judges who saved the vote, The court deliberately chose not to rule Articles 29 and 93 of the Constitution and Articles 8 and 23.2 of the Convention. on ignoring items.
The law under discussion is Law 2094 of 2021, and the Inter-American Court said it did not comply with its decision in the case of today’s President Gustavo Petro, who was dismissed from office while he was mayor of Bogota to hold public office. For 13 years, for a decision on the city’s garbage disposal, this decision was later overturned by the Council of State.
This was expressed by the I/A Court HR in a judgment of 25 November 2021, in which it oversaw compliance with the Petro decision.The proposed reform “continues to allow a body other than a judge in criminal proceedings to impose restrictions on the political rights of the authorities. Democratically elected in a manner inconsistent with the wording of Article 23(2) of the American Convention and the object and purpose of that document.”
(Read: Prosecutor’s Office asks the Court to maintain its role as judge in the case of those elected by vote)
In the 15-page document in question, the international court said that the reform did not make changes as ordered by Articles 44 and 45 of the Disciplinary Code. Power to impose sanctions of dismissal and dismissal on democratically elected public officials, contrary to the provisions of Articles 23.2 and 2 of the Convention.”
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This law was widely defended by current attorney Margarita Cabello. While estimating that it complies with the international standard of punishment, because it is the judicial authority who makes the final decision on the dismissal of an officer, even if he is not guilty.
The Attorney General’s claims are based on what the Constitutional Court has said in other decisions that refer to Article 23 of the American Convention on Human Rights, regarding the citizens’ right to vote and to be elected.
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“It should not be forgotten that in order to protect the right of the political opposition subject to be elected and therefore the right of the voters to be respected;The Constitutional Court stipulates that the minister of the relevant case should not be an administrative authority, but a judicial authority regardless of its characteristics.. The above is in order to ensure a high level of independence and autonomy in making the relevant decision, and to avoid scenarios of political persecution with it, and thus achieve the same protection as the Inter-American Court reads,” he said in his instant.
In the concept submitted to the Constitutional Court, the Attorney General said the reform was valid because contained, in his view, a new plan for the disciplinary prosecution of publicly elected officials, which respected elements of the guarantees of independence.The presumption of impartiality and innocence is mandated by the Constitution and the American Convention.
“Independence is fulfilled institutionally, as the Attorney General, as part of the controlling body, enjoys autonomy and independence from other branches of authority, similar to the judicial authorities with constitutional authority,” he said. time.
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Source: Exame
