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In the last week, the Supreme Court of Justice rejected the recusal of Iván Cepeda for the attorney general, Francisco Barbosa, to withdraw from the process that his institution is following against former senator and former president Álvaro Uribe Vélez. EL TIEMPO spoke with Hernando Herrera, director of the Excellence in Justice Corporation, about what has happened and what is coming in this controversial judicial process.
What do you think of the Court’s decision not to remove prosecutor Barbosa from the case?
I believe that Senator Cepeda was wrong and promoted an institutional challenge, because he challenged the Attorney General, the Deputy Prosecutor, the delegated prosecutors, and that figure is non-existent. But, in addition, we looked with great concern at Cepeda’s invitation to what would have been a prevaricate by the Supreme Court of Justice if she had accepted his request for her to choose an ad hoc prosecutor without following the process that the Constitution indicates. Regarding the investigation, of course all of society, friends and enemies of Senator Uribe, until recently, will be able to carry out a useful and important oversight so that the process is conducted properly. But a priori, you cannot distrust an official or an entity, as Senator Cepeda tried to do.
(Also read: Attorney General rejected challenge against prosecutor who is handling Uribe case)
Until now it is known that the process will be carried out by Law 906. What do you think is coming in this case?
The change implies the application of a totally different regulation, because the procedures under 906 and Law 600 are totally different compared to how the Court’s Investigation Chamber had been doing it. In Law 906 there is a difference between the person who instructs the investigation and the person who makes decisions on precautionary or preventive measures, such as detention, since that corresponds to a judge. In that sense, with that dissonance, we have said that the investigation must start from scratch. This also leads to the Prosecutor’s Office filing a procedure before the guarantees judge to review the preventive detention placed by the Investigation Chamber.
What do you mean by starting from zeros?
It means leaving at the very beginning of the investigation, which implies that the decisions of the Investigation Chamber on the investigation and preventive detention fall. There is a phenomenon that can be attributed, which is the decline of these decisions, because now the process is being carried out with a different procedure and brings different functions for the Prosecutor’s Office and for the guarantees judges and the ordinary criminal judges. In that sense, it must be started from the beginning, collecting the evidence, summoning the accused for those alleged crimes, and gathering the statements that the Prosecutor’s Office considers in the case.
And could it or not include the evidence that the Court has gathered in the last two years?
The Office of the Prosecutor would have all the leeway to determine whether such evidence is conducive or relevant. There is one that has powerfully caught my attention, which are the conversations between the witness Juan Guillermo Monsalve and Senator Cepeda. First there were versions of the full chats, then they said they were screenshots. Later, the senator said that he dropped his cell phone and his memory had been erased. But there are technical doubts because a cell phone drop does not have the ability to erase memory.
(We recommend: Why didn’t the Court remove the Attorney General from the case against Uribe?)
Could the Prosecutor’s Office review other evidence that the defense has questioned, such as Uribe’s mistaken interception?
So many parts of the file have been leaked, and that is one of the elements that should attract attention. I have great respect for the high courts. My evidence is that the vast majority are made up of men and women of great value. Sometimes, of course, there are irregularities and allegations of corruption. In this case, we would start from good faith, but these tests powerfully attract attention, because in Colombia there are requirements – and they go beyond the Uribe case – on procedural guarantees, and there is the argument about whether in Colombia it can be intercepted by error. There must be a sensible discussion, from every point of view, to clarify this research. Certainly what has been shown is that another person was being intercepted, and the intercepted cell phone reported communications supplied by former Senator Uribe, in which they account for more than 20,000 interceptions.
Defense in freedom should be privileged.
Do you know the file and some evidence? What analysis do you make of them?
Yes, I knew about it because it was disseminated in a generic way, and that is why it seems to me that it is a pertinent and prudent debate to say that the summary reservation should be lifted. This case is very interesting because it is the first time in history that a former president has been brought to justice. When one evaluates the 1,554 pages, there is no recent precedent in Colombia or the world of such an extensive provision. Beyond the Uribe case –because this is not about being an Uribe member or an anti-Uribe member–, one sees that for purposes of determining the arrest, which was the basis for that decision, of those 1,554 pages on the matter they finished it off in very few. In addition, it is striking that for the purpose of giving reasonableness and weight to the assurance measure, the character or temperament of a person is discussed. This corresponds to the Prosecutor’s Office to review it thoroughly.
The Court ordered the arrest stating that there was evidence that he could affect the process and induce witnesses. Should the assurance measure be maintained?
In general terms, I am from the guarantee school in criminal law, which I share with the vast majority of criminal lawyers. Defense in freedom should be privileged. If tomorrow this were against any political actor, for example, Dr. Petro, we would say exactly the same.
The Court said that Diego Cadena and Juan José Salazar, among others, acted on Uribe’s orders, whom it pointed to as the determiner of the bribery of witnesses …
In the record there is no direct evidence of a sharp order that Uribe gave these people. Here we start from the base of a different element of judicial analysis, which is inference, deduction; but not that there is a single or queen proof to make that conclusion.
The witness ‘Caliche’ told Monsalve that he spoke with Uribe on Álvaro Hernán Prada’s phone. Although he later denied that version before the Court, there is an interception of him with a legal advisor in which he repeats that he did speak with Uribe …
When a witness tends to give different versions, one might think that his knowledge of the facts is wrong, wrong or contradictory. When there is a contradiction in the statement, the testimony tends to lose credibility in a judicial system, because at the end of the day it is not known in which of these versions he is telling the truth or if in all of them he is telling lies.
(You may be interested in: The debatable role of Uribe and Petro in these hours of crisis)
Do you think that Magistrate César Reyes was prevented from having a contract with the Santos government?
The best yardstick that can measure a person’s actions is how that person evaluates others in those circumstances. And I precisely analyzed a ruling by Dr. Reyes, which I found interesting, where he pointed out that judicial officials should generate an appearance of credibility and should be outside of any other power, including the Executive. Beyond the fact that the contract with Santos had been signed, the fundamental element was the object of that contract, derived from issues of the development of the peace agreement. And it is clear who was the main political opponent of that agreement. Therefore, keeping coherence with what Reyes has said and with what the Examining Room has said to remove Cristina Lombana, it was necessary for Reyes to expose this to his colleagues, to give them the possibility to debate whether or not there was an impediment. I believe that all judges, in addition to the specific causes, have ethical standards by which they are obliged to reveal any fact that generates reasonable doubt about their objective management.
At some point, Uribe said that the Court had him kidnapped, questioned the impartiality of the magistrates, and his defense said that the process was a revenge. Is what Uribe said good for the institutions?
I believe that two elements must be taken into account. First, the comments regarding the Supreme Court’s determination were certainly striking. But, on the other hand, there was compliance with that determination. And at the end of the day, what matters to us is that the decisions are followed, because here there are friends of anarchism. There are people interested in discrediting the institutions. There are also people interested in generating states of anarchy, deepening the economic crisis, and therefore the only solution to strengthen democracy is respect for institutions and their strengthening. Here the rule of law has acted. After Uribe’s resignation from the Senate, the Court said that it no longer had jurisdiction and passed the case to the Prosecutor’s Office, and now denied the challenge against the Prosecutor. This shows us that we must trust the institutions, the high courts, the justice system in general and, obviously, the Prosecutor’s Office. Prior disqualification is opportunistic.
JUSTICE
Twitter: @JusticiaET
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