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The Plenary Chamber of the Constitutional Court this week gave the final blow to the system of photo detection of traffic offenses, better known as ‘fotomultas’, by rejecting a request for annulment of the sentence by which that Court overturned the norm that established that the vehicle owner had to respond jointly and severally with the driver for the fines imposed with the cameras.
Last February, the Constitutional Court struck down paragraph 1 of article 8 of Law 1843 of 2017. With this decision, he made it clear that vehicle owners should not be liable for infractions committed by a third party, and that it is the authorities who must prove responsibility in these cases.
The rule that the Court overthrew allowed to impose, through the cameras, the fine to the license plate of the vehicle and not to the driver. In the Court’s opinion, the fine should be imposed on the driver; Furthermore, the burden of proof cannot be reversed by placing that responsibility on the owner of the vehicle.
(Also read: Constitutional Court refuses to annul its ruling on photo fines)
The ratification of the Court’s decision was conclusive not only in the vote (eight votes to one) but also in its arguments. Assured that the declaration of nullity is an “exceptional and rigorous mechanism”, which was not designed so that those who are dissatisfied with a decision taken for the high court to use this procedure “to reopen the debates already exhausted, to the point that they question the foundations of a sentence that acquired the legal force of constitutional res judicata.”
Thus, the Court rejected the claims of the Ministry of Mobility of Medellín and the Colombian Federation of Municipalities, which requested the annulment of the ruling. Medellín is one of the capitals with the largest number of chambers, while Fedemunicipios receives 10 percent of the collection from the Integrated Information System on Fines and Penalties for Traffic Violations (Simit) in some municipalities.
In its February ruling, the Court also drew attention to the function of fines, ratifying that they should go to road safety programs and should not become “an instrument of mere collection of resources for state entities”.
(We recommend: Everything you need to know about photomulting in Bogotá)
And although the Law of ‘fotomultas’ is maintained for other infractions such as expired Soat or revision, which are attributable to the owner of the vehicle, it is then clear that the responsibility for traffic offenses, specifically those of speeding is personal and the Owners do not have to answer for the guilt of third parties, that is to say that the fines should be imposed on the driver, not on the license plate of the vehicles.
In this way, If there is no full identification of the driver, no summons can be imposed, unless the Congress of the Republic, as ordered by the Constitutional Court in February, throws a ‘lifeline’ into the cameras.
At this point, an Accidental Commission presented a report that was approved by the Senate Plenary last July and then presented a bill but this has not happened yet. The most complicated thing is how Congress could, through a law, reactivate the cameras in accordance with the Court’s ruling, since it is clear that these systems do not have the technical capacity to identify offenders.
And above all, because as the former president of the Constitutional Court, José Gregorio Hernández Galindo, warned at the time, “there is a presumption of guilt, inadmissible in light of article 29 of the Constitution“; Furthermore, article 6 of the Constitution is violated, according to which individuals are not liable to the authorities but “for violating the Constitution and the laws.” Not when they don’t violate them or there is no proof that they have. The principle of legality is unknown ”.
Fines should go to road safety programs and should not become a mere resource collection instrument for state entities
And despite the fact that authorities such as the Bogotá Mobility Secretariat allege that there is a due process because the citizen, in this case the owner of the vehicle, can appear and make the discharges, for the experts, this is not possible because it is the authority that must demonstrate responsibility and not shift the burden of proof.
Finally, it is difficult for Congress to go down the road of eliminating the text of the paragraph that expressly speaks of systems that allow “precisely the identification of the vehicle or the driver”, because according to Hernández Galindo “it would be a way to circumvent the sentence and of ignoring the effects of res judicata ”.
VEHICLE DRAFTING
