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This Wednesday the Plenary Chamber of the Constitutional Court rejected a request that had asked him to annul his ruling of last February 6 on the photo fines, a decision With which the high court overthrew a part of Law 1843 of 2017, specifically the rule that established that the owner of the vehicle had to respond jointly and severally with the driver for the fines imposed with this camera system.
In a decision of eight votes to one, the high court refused to overturn his sentence. The magistrate who deviated from the majority was Antonio José Lizarazo, and there were clarifications of vote by magistrates Alberto Rojas Ríos and Gloria Ortiz.
The Full Chamber of the Court refused to overturn its sentence, stating that the declaration of nullity is an “exceptional and rigorous mechanism”, which means that this mechanism is not designed so that those who are dissatisfied with a decision made by the high court use this procedure “to reopen the debates already exhausted, to the point that they question the foundations of a judgment that acquired the legal force of constitutional res judicata.”
Thus, the ruling that the Constitutional Court maintains intact is the one that, although it maintained the photomultas law, made a key change to one of its articles, noting that the responsibility for traffic violations is personal and the owners do not have to answer for the guilt of third parties.
This means that the tickets that are imposed through technological mechanisms such as photo fines, and that involve economic sanctions or other more serious ones such as the withdrawal of the driving license, can only be apply directly to the offender without claiming some kind of responsibility of the owner of the vehicle if he was not driving.
(In other news: The arguments of three magistrates in favor of decriminalizing abortion).
The judgment that remains final establishes, then, that fines should be imposed on the conduit, not on the license plate of the vehicles. This was one of the most controversial points because, although the Court did not overturn the photomultas law, for many this demand of the high court made this system unfeasible since cameras today do not have the capacity to identify who is the person who is driving and For this reason, fines are imposed on the license plate.
(You may be interested in: Clarifications and doubts that the Court ruling on photomults continues to leave).
Precisely, Gilberto Toro Giraldo, director of the Colombian Federation of Municipalities (Fedemunicipios), had asked the Court to annul his sentence stating that the photo-fines system was based on the possibility of considering dual or joint liability between the owner of the vehicle and driver, otherwise it could not operate this system since “so far there is no technology that allows the identification of the driver at the time of taking the infringement test “.
Even, says the Federation, “there is no system in the whole world that allows the identification of the driver who transits in a vehicle and less if this vehicle involves the use of mandatory elements such as helmets for the driver and his companion in in the case of motorcycles, a barrier type element that prevents the identification of who is driving the vehicle “. And if that technology existed, says the Federation, there is no facial database that would allow us to reach the person responsible.
There is no system in the whole world that allows the identification of the driver who transits in a vehicle
That is why, he assured his request for annulment of the ruling, given these technological limitations, the difficulties in photomulte systems They were resolved by binding the owner of the vehicle to “exercise his legal duty of care.”
In the opinion of Fedemunicipios, limiting the rule that allows vehicle owners to be linked in the process and jointly liable with drivers, leaves the authorities without the possibility of using technological aids in traffic matters.
But also, contrary to what the Court considered, for Fedemunicipios the photo fines law did not violate the due process of vehicle owners since after a fine was imposed on their car or motorcycle, they were notified of the appearance and were allowed to participate in the sanction process to present their arguments, and request that the fine be dropped against them, if they were not responsible.
(Further: The owner of the car should not be liable for an infraction committed by the driver).
Fedemunicipios had also asked to annul the ruling stating that The photomulting law sought to protect collective interests such as road safety, therefore, affirms, the obligation imposed on the owner of the vehicle (which appears in the Single Traffic Registry) to respond for the damages caused by his car or motorcycle, “regardless of whether or not he was the cause of the damage”, was adjusted to the Constitution.
Another institution that had asked to annul the ruling it was the Mayor of Medellín, who had told the Court that one of the essential elements of the land transit system is the formal involvement of the owner of the vehicle with the contravention procedure when the infraction is detected by technological means, since this is a test that “allows to infer that it may be the driver of the vehicle and therefore the alleged offender”. According to the mayor’s office, this is why it has been recognized that the owner of the vehicle has a “guarantor role” since it is the one who has the use, enjoyment and disposition of the car or motorcycle.
The mayor’s office affirms that, although it can be presumed that the owner of the car is responsible, it also affirms that the traffic authority had to demonstrate the personal and culpable responsibility of the owner through an administrative process, which implied that the owner was not it was violating due process.
(We invite you to read: The doubts left by the Government’s draft on photomultas).
He also assured that “the change in jurisprudence” that the Court is doing to prevent joint and several liability in traffic offenses, “is arbitrary and unjustified.”
In the nullity process the Ministry of Transportation had also intervened, who indicated that it accompanied the requests for invalidity that Fedemunicipios and the Medellín Mayor’s Office had presented, affirming that the high court had ignored its judicial precedent that made it possible to declare joint liability between drivers and vehicle owners.
For the Ministry of Transport, the possibility of linking the owner of the vehicle was a useful mechanism for the traffic authorities to be able to impose the infractions and maintain safety on the roads, without this preventing the owner from being able to defend himself during the sanctioning process. claim that he was not the one who committed the irregularity.
JUSTICE DRAFTING
