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After learning that the magistrate of the Chamber of Instruction César Agusto Reyes Medina had a contract with the government of Juan Manuel Santos in July 2016, Uribismo questioned the magistrate who until this Monday was the investigator in the process that the high court was following against Álvaro Uribe Vélez for alleged bribery of witnesses and procedural fraud.
(Context: Uribe talks about the magistrate’s contract who investigated him)
That case, by decision of the same Chamber of Instruction – with a presentation by the same magistrate Reyes Medina – left the orbit of the Supreme Court this Monday when the high court established that, after Uribe’s resignation from the Senate, he lost the competence to continue investigating him for those facts and, therefore, he passed the file to the Attorney General’s Office.
(Also: ‘Prosecutor in the Uribe case will act autonomously’: Attorney General’s Office)
Thus, although Reyes will no longer have that investigation against Uribe, for the followers of the former president and former senator of the Democratic Center, he supposedly should have declared himself prevented at the time he had the case, alleging that Juan Manuel Santos is one of Uribe’s main political opponents.
The contract for 570 million pesos was signed on July 14, 2016, before Reyes reached the high court, since he entered in mid-2018. That contract was signed through a firm of which Reyes was the legal representative, called Nueva Justicia y Litigation Oral Consultores Ltda, hired by the Fund for Special Programs for Peace of the Government to carry out an investigation on the detained ex-guerrillas of the Farc.
EL TIEMPO consulted with several analysts about whether or not there was an impediment in this case.
The professor of criminal law at the Externado University, Camilo Burbano, pointed out that in this In this case, there is no cause for impediment or challenge to Magistrate Reyes.
“Having a contract with a previous government cannot be configured in any of the causes of impediment,” said Burbano, noting that it should be remembered that the causes for removing an investigator or judge are set by law.
Having a contract with a previous Government cannot be configured in any of the causes of impediment
Therefore, Burbano explained, the impediments are “objective requirements and there must be specific proof of the issue” for which it is alleged that one of these causes was incurred. Thus, the jurist insists, “here there is no cause that can be framed.”
Like Burbano, the criminal lawyer Andrés Felipe Hernández considers that there was no legal argument to remove Judge Reyes.
Hernández recalled that in the judicial world, it is very important that whoever judges provide full guarantees that their decisions will be in accordance with the Constitution and the law, and that they do not have “malicious inclinations to favor any of the interveners or procedural subjects.”
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In this sense, he says, it is that we are talking about objective impartiality for which it is necessary that the judge does not have an interest in the process.
However, Hernández said, a judge cannot declare himself impeded by an “abstract or subjective motive” since the grounds for impediment are established in the law.
In the investigation that was being followed in the Court against Uribe, which was carried out by law 600, it is article 99 of that norm that establishes in which cases the impediments proceed, which are exhaustive, which means that to allege that someone is prevented, the challenge must be pigeonholed into one of those reasons.
“If we review them carefully, we will conclude that in none of them is the fact of having been a contractor of the previous government adequate, among other things, because this does not necessarily imply being a political activist for these ideas,” Hernández said.
If we review them carefully, we will conclude that in none of them the fact of having been a contractor of the previous government is adequate
The lawyer added that if in the grace of discussion the possibility that a contract implies declaring himself prevented is noticed, in Uribe’s case “no procedural subject worked with the previous government, which prevents even more that a link is legally established that would allow to consider the pronouncements of the examining magistrate partialized “.
The president of the Criminal Lawyers Association, Francisco Bernate, pointed out that in the first place in this case there is no longer any place to talk about impediments or challenges because Reyes no longer has this investigation in charge, since it went to the Prosecutor’s Office.
(Also: The Court’s reasons for passing the Uribe process to the Prosecutor’s Office)
Therefore, he says, it can be a debate from the ethical or the political, but legally it no longer has any consequence on the case.
However, Bernate added that it is important to state that it was this same Chamber of Investigation that “in a broad interpretation of the impediments and challenges, implanted a criterion that did not exist in Colombia, which is the appearance of impartiality,” therefore In this context, Bernate considers that “it is a bit unfortunate that these facts were not made known at the time of the election” of the magistrate to take the case, because it precisely gives rise to this type of questioning.
It is a bit unfortunate that these facts were not made known at the time of the election.
Thus, Bernate concludes, although from the legal point of view this is already an irrelevant debate, “it is a very unfortunate coincidence that this happens in this same Chamber where the thesis of the appearance of neutrality was created.”
Bernate refers to the case of Judge Cristina Lombana, who had the Uribe process after the Investigation Chamber was created by the double instance law, when the process passed from the hands of the then magistrate José Luis Barceló to his.
However, Lombana was challenged by Iván Cepeda -considered as a victim in this case- because she was part of the Military Forces and being within those forces, said Cepeda, she “had a relationship of dependency and subordination to then-President Uribe.” Cepeda’s second reason for recusing her was that Lombana worked 20 years ago for a period of three months in the office of Jaime Granados, Uribe’s defender.
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The Investigation Chamber did not accept the argument of having worked with Granados, but finally it did remove her from the case because she was an active member of the Public Force and at the same time a judicial officer, which in the opinion of her roommates “quarrels with the preservation of the guarantees of independence, impartiality and natural judge indicated in the Constitution “. That is why the case was removed and it was handed over to the magistrate César Augusto Reyes Medina.
JUSTICE
Twitter: @JusticiaET
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