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The process against former senator Álvaro Uribe Vélez for bribery of witnesses and procedural fraud is so unprecedented that not only was he the first to take a former president of the country into custody, but his constant turns have meant that the legal paths in this case are always uncertain and are yet to be built.
(We recommend: ‘Uribe still does not have freedom’: Iván Cepeda on Court decision)
Yesterday, 20 magistrates of the Plenary Chamber of the Supreme Court of Justice (one was impeded and two deviated from the majority decision) considered that this case was It must be governed by Law 906 of 2004, that is, by the rules of the accusatory criminal system.
(In context: Uribe case will continue by accusatory system and judge will define his freedom)
The Court resolved a conflict of jurisdiction in which it did not agree with the lawyer for Senator Iván Cepeda (considered a civil party), who asked to continue taking the case by law 600 of 2000, with which it was developed in the Investigation Chamber of the high court.
Instead, supported what was said by Uribe’s defense, the prosecutor in this case Gabriel Jaimes and the delegate of the Attorney General’s Office, affirming that after Uribe’s resignation from the Senate, the Court not only lost competence to investigate him but also, since the acts allegedly committed are subsequent to the entry into force of the accusatory criminal system (they are from 2018), the case must go to the law 906 and can not follow the old inquisitorial system.
It also endorsed what was decided by Judge 30 of guarantee control and resolved that it is she who has the power to define the request that Uribe’s defense will make so that the former senator, detained since August at his El Ubérrimo farm in Córdoba, is released.
(Also read: Uribe will continue to be detained while the Court evaluates which law applies in his case)
What is clear, for now, is that the Court will send the file to the judge and, therefore, she must set a date for a new hearing. But the high court did not rule on what stage is this caseTherefore, what follows is not clear and the jurists consulted have divided positions on this issue.
Court sources explained that the magistrates decided not to rule on the procedural stage for two reasons: the first, because they consider that in her autonomy the judge must define this situation. And the second, because they considered that there is sufficient jurisprudence that would help resolve those doubts.
(You may be interested: Court will continue to prosecute Uribe for ‘Ñeñepolítica’)
According to consulted magistrates, this jurisprudence indicates that what the Court did in this case must be maintained and, therefore, the Prosecutor’s Office should move forward to the next stage and not start from the beginning.
In fact, that was the position that the delegate of the Attorney General’s Office presented to the high court, where she stated that what the Court has already done must be adapted to the new system, “preserving the validity of the investigation acts, without implying nullity of the actions ”, since the call for an investigation, the resolution of Uribe’s legal situation –where charges were brought against him– and the security measure were issued by competent authorities.
(It may interest you: To date, Santos has a better favorable image than Uribe)
What the experts say
According to the Externado University professor Camilo Burbano, the first thing that should happen is that at the next hearing the judge must immediately release Uribe because in law 906, for there to be an assurance measure, it must be requested before a court, which would imply that the order that the Court gave to arrest him should be dropped.
But, in addition, he affirms that the old system and the accusatory penal system are not comparable and have different stages, which means that the case must start from scratch. So, he said, you must start in the inquiry and the prosecutor Gabriel Jaimes will have to define whether or not to summon Uribe to indictment and if he requests an arrest again.
(Also: Court refers to the Prosecutor’s Office the process against Uribe for the El Aro massacre)
The criminalist Andrés Felipe Paláez Reyes agrees that the case should continue in a preliminary investigation, and what the Court managed to do can no longer be considered as evidence, but rather as material evidence.
But Peláez believes that the one in charge of resolving the procedural stage should not be the judge, since she affirms that she should only define if she releases him, but it is the Prosecutor’s Office that corresponds “as the holder of the criminal action” establish where the case remains.
On the other hand, for the criminal lawyer Helena Hernández, with the Court’s ruling, the judge will now have to decide on the request for freedom and it will be in her arguments to deny or grant it that she must specify the stage of the process.
Hernández affirms that the Court has analyzed a change in a process from Law 906 to Law 600, but not the other way around. However, in those rulings the high court has made an equivalence analysis between the accusation and the investigation, Therefore, it considers that with these antecedents the judge could determine that in the Uribe case the investigation has already begun and it should go to the prosecution.
(Also read: ‘The process against Álvaro Uribe must start from scratch’: Director of Excellence in Justice)
Something similar believes Francisco Bernate, president of the College of Criminal Lawyers, who explains that what will happen here is that after setting up the hearing, Uribe’s defense will surely affirm that the case must start from the beginning and that the former senator must be released, as which will lead the judge to have to decide whether what has already been done for the Court works or not.
For Bernate, however, what the Supreme Court of Justice has already done “is absolutely legal and must be maintained”. Thus, he affirms, with what that corporation managed to advance, it should be understood that there has already been an accusation “and, indeed, what proceeds is for the Prosecutor’s Office to define whether to accuse or preclude before a hearing judge.
Without certainty about what is coming, all eyes will now be on the next hearing and on Judge 30 of guarantee control, who will have to make key decisions in one of the most controversial judicial processes in the history of the country.
MILENA SARRALDE DUQUE
Deputy editor of Justice
Twitter: @MSarralde
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