addressed the issues of delay and court congestion. What should be the subject of judicial reform
REPUBLIC OF COLOMBIA BOGOTA
COURT OF CRIMINAL
Chamber Magistrate:
ALBERTO PERDOMO POVEDA
Act Approved Judgement No. 148
CARE - FIRST INSTANCE
Filing
11001220400020100313800 Applicant RAFAEL Defendant Gonzalez Tellez
Octavian Attorney's Office before the Superior Court of Bogota
Rights Decision Denies Due Process
Bogotá, DC, Tuesday, fourteen (14)
December two thousand and ten (2010).
1. VIEW:
1.1. Solve the Board's action by
protection RAFAEL GONZALEZ TÉLLEZ Octavian against the Prosecutor's Office of Bogotá
208 for alleged violation of due process in
processing of a complaint made to ascertain those responsible
.
2. BACKGROUND AND RATIONALE FOR ACTION:
2.1. RAFAEL GONZALEZ said Octavian TÉLLEZ
on 8 September 2009 filed a criminal complaint for investigation
responsible for the crimes of falsifying documents
groups, procedural fraud, fraud, illegal collection of money and planning
illegal.
2.2. The matter initially corresponded to the Attorney
Local 159 Bogota, but as of November 17, 2010 was
competition assigned by the Attorney Section 208.
2.3. Considered the plaintiff who had spent more than two years from the time
filing of the complaint without even the Attorney
date has taken decisions on the merits, why
which ruled that it is abusing its right
fundamental to due process by the delay in making decisions
.
3. ACTION STEP:
3.1. By order of November 11, 2010 the Sixth Criminal Court Circuit
took cognizance and decided to run
transfer to the Local operated Office 159 Bogotá
to guarantee the right of defense and conflict, learning
after the complaint was available to the Attorney
Section 208, which is why
ordered to refer the action to court.
3.2. Tuition custody admitted by decision of 6 December
Hogan and notified of the action to the Attorney
defendant.
4. RESPONSE ACTION:
4.1. The Prosecutor said that Section 208 did not infringe fundamental rights of the plaintiff
.
4.2. Said it has assigned 7,243 inquiries, which
has a judicial assistant and a researcher,
why it is impossible to respond immediately to issues that are in charge
.
4.3. He stated that the issue that caused the constitutional
action, it was decided to hear the petitioner to
expand its release because there is no material evidence
elements.
5. CONSIDERATIONS:
5.1. Competition: In accordance with the precepts of
Article 1, paragraph 2 of Decree 1382 of July 12, 2000, is competent
this Court to rule on custody
action brought by a citizen against the Attorney Sectional
208 Bogotá.
5.2. The protection against judicial authorities:
Article 86 of the Constitution established the concept of guardianship as an extraordinary mechanism
, preferred alternative,
residual protection of fundamental constitutional rights to
the impairment or threat or action arising
omission attributable to public authorities or individuals in specific situations
specified in the law.
5.3. Jurisprudence teaches that the tutela can
exercise to claim the protection of a fundamental right that is violated when
during the process, the judicial officer
act and decide in an arbitrary or capricious
, or those events which providence
issued is overflowing the functional level or in
manifestly contrary to law, that is, when configured
calls made or causal pathways
procedurability objective, under the condition that in such circumstances
concerned does not have ideal
other legal advocate for the enforcement of constitutional rights
, or where proceedings as a mechanism to avoid
transitional nature irremediable prejudice.
5.4. By the decision of constitutional
was made to Article 185 of Act 906 of 2004, were consolidated and systematized
procedural requirements of the tutela
against judicial decisions. It was stated by the Constitutional Court
what were the circumstances that have to be
present for the constitutional court may enter
study and decide a petition for protection against judicial decisions.
were identified as follows: a.
That the matter under discussion be of obvious relevance
constitutional. B.
Have been exhausted all-media-ordinary and extraordinary
legal defense available to the person
affected, except in the case of preventing the consummation of a legally and fundamentally
irremediable prejudice. C.
That meets the requirement of immediacy, ie that the
protection has been filed within a reasonable and proportionate
from which triggered the violation. D.
In the case of a procedural irregularity,
should be clear that it has a decisive effect in determining
or sentence being challenged and
affecting fundamental rights of the plaintiff. E.
That the plaintiff reasonably identifies both
facts that breach
the rights violated, and that any such alleged infringement in the judicial process
provided it has been possible. F.
They are not sentences of custody.
5.5. In developing the line of jurisprudence which considers very exceptional
tutela against
prosecutions and judicial decisions, judicial authorities have accepted that
tutela
may be the constitutional remedy against serious and flagrant violations
fundamental rights coated
a mere appearance of legality, reaching out that even under applicable
protection against the judgments of the Constitutional Court.
5.6. Now well: in fact the recognition that action must care
exceptionally
against judicial orders and only when the decision involves a judge or prosecutor
serious breach of law, constitutional jurisprudence
has also highlighted the need for
procedural shortcomings are addressed in the natural context of the regular judicial processes
because they are all properly equipped
mechanisms that allow parties and interveners claim
inside there
errors may occur.
5.7. While the process is in progress any application for protection of rights
should be fundamental in that scenario
only because otherwise all
interim decisions taken in the course of criminal proceedings
would always be subject to possible review by a judge
foreign to her, as if it were an instance
superior or additional to those provided for
normal development of the judicial process.
5.8. The above statements are supported by the Constitutional Court
specifying that the application for protection is not necessary when developing a
judicial process where the parties have had the opportunity to propose
arguments precisely
motivate action of guardianship, and have not done so. Well, is the natural judge of the competent
resolverlos2 process.
5.9. Also, projection of the principle of
material autonomy of the judicial function precludes
discredit or question the way the process has been completed or decided
case, because the seat of the tutela
can not make an early assessment a matter to be discussed
into the process, making this action is not the natural scenery
to try to discuss whether a notification
a process was in strict compliance with law or impose a particular approach
on-the-question.
5.10. Blackberry Judiciary: The judicial delays
is one of the most serious disadvantages faced by the administration of justice
, but in many cases it does not depend on
officials and employees who are in charge of the case but
this work emerges as a problem endemic judiciary.
5.11. Systematic interpretation of Articles 29 and 228
of the Constitution allows the duty of all officers to observe rigorously
procedural terms
prescribed for different actions against
State3 advanced. That obligation binds all national authorities to advance
celera and diligent manner all
conocimiento4 matters submitted to it.
5.12. He has also said the Constitutional Court that the failure judicial
violates the fundamental right of access to the administration of justice
when the delay in filing an action is
originated not in the complexity of the case or the existence of structural problems
excess workload of
officials, if not a lack of diligence and failure to systematically
duty on the part of them.
5.13. The backlog of cases, in simple terms can be defined
as dilatory conduct of the judge (or deputy prosecutor)
resolve a particular matter before it in a process Judicial
and is based on such conduct as unknown
the terms of law and lack of proven and reasonable grounds,
event which would constitute the obstacle to access
person justicia6 management.
5.14. It
follows that there is no backlog of cases by the mere passage of time, but
that it must be proven to be unjustified and the negligence of
judicial authority driven.
5.15. The specific question: When examining specific
so what happened to the criminal complaint made by Octavian RAFAEL GONZALEZ
TÉLLEZ, we can see objectively that
has passed a broad term like for the Attorney General's Office
take action, as may be credited,
order to file proceedings or seek preclusion of the investigation
.
5.16. Two years is usually a reasonable for the authority
determine if the issue is relevant
criminal law and, if so, go to the judges
guarantees to raise charges against those responsible or request
preclusion of the investigation. Also, this period is sufficient to
that in cases where this is possible, utters
file order of the diligencias7.
5.17. But when it appears that a prosecutor has
to more than 7,000 issues over which to manage
has a judicial assistant and a researcher, the conclusion can be
other than the impossibility of advancing at a pace appropriate
the handling of complaints that there are .
5.18. This situation becomes even more dire when the concerned
not provide additional information to facilitate research activity
. While the authorities' response to crime
depends neither attached to the support they give the victim or the complainant
, reality dictates that this type of subject
provide a strong collaboration that investigations have opportunities
success, because otherwise the inquiry
activity will not have sufficient support to enable
orient in either direction.
5.19. The Board draws the attention of the authorities of all orders
because the adversarial system implemented with the
Act 906 of 2004 is working with many gaps, and the legislature
justify changes in the legal
covered in situations that do not represent the solution to the problems that have been detected
.
5.20. It is clear that the new Penal Procedure Code
served to quickly resolve cases of flagrante
and searches and negotiations is a response to
petty crime effectively.
5.21. But the great crime,
responsible for the most serious acts of administrative corruption and all
accused of crimes for which the legislature has
closed the doors to obtain reduced sentences,
surrogates and benefits, is putting the brink of collapse
system. And the worst is that no solutions are in sight.
5.22. The reforms to the justice that should be asked to
from its actual impact on the public to administer justice
often forget that the citizens are concerned that certain authorities
have one or the other powers
but in the prompt and complete solution to their requirements
justice.
5.23. And it is going through an absolute respect for the autonomy and
independence of judges and prosecutors, postulates that charge
sense when serious congestion problems and delinquency
receive adequate state response.
5.24. The majority of analysts agree that the main problems
justice
focus on budget gaps, which prevent
appointment of a greater number of officers, employees
and researchers to meet the challenge to proceed before the requirement
justice citizen in the terms required by the Constitution
.
5.25. Grounds to conclude that the failure
reported by the claimant is the result of indolence
officials in charge of the case brought by Gonzalez Tellez, but
result of the weaknesses endemic suffering
apparatus of justice, accompanied by the lack Media filler
knowledge by the individual, why is
dismissed the application for guardianship.
5.26. Amen to the above is that the activity of
inquiry-investigation being conducted by the Attorney
may be subject to audit before the investigating judge, who is
authority in a particular case to call the attention of the authority
requesting not to exceed the reasonable term
depletion of the different stages in the form
must exhaust before making decisions (filing proceedings, charged or
apply the preclusion of the investigation), a fact which stands in grounds
is made additional improper under the
presented.
5.27. Consequently, it was evident that the plaintiff,
in essence, seeks through this instrument
censor performances displayed by the officials responsible
outside of channels arranged by the legislature, it becomes irrelevant
the protection requested for the Constituent
he granted the writ of protection the character
third instance or alternative mechanism or parallel to the normal procedures
legal defense.
DECISION:
In light of the foregoing, the Tribunal Superior de Bogota,
Chamber of the Criminal, to administer justice on behalf of the Republic of Colombia
and by authority of law,
RESOLVED: 1,
. To declare the constitutional
injunction request by RAFAEL GONZALEZ TÉLLEZ Octavian.
2 °. Note that this decision may be challenged and
in any case be forwarded to the Constitutional Court for possible review
.
3 °. NOTIFY concerned by the most expeditious
.
Cópiese, report and enforcement. ALBERTO PERDOMO
POVEDA
Judge JUDGE LUIS FERNANDO RAMIREZ
RAMIRO CONTRERAS RIAÑO RIAÑO
MAGISTRATE
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