This Tuesday, the country was officially notified of the judgment of the Inter-American Court of Human Rights in the case of a lawsuit from the former mayor of Bogotá and today senator Gustavo Petro for the dismissal of the Attorney General’s Office, which in 2013 removed him from the Liévano Palace.
The ruling of the Inter-American Court says that the Colombian State violated Petro’s political rights because, according to the court, only criminal judges, and not administrative authorities, can sanction popularly elected officials with this type of limitations to exercise their position.
In essence, the sentence implies a drastic reform of entities such as the Attorney General’s Office, which today have the power to punish public officials with dismissal and disqualification for up to 20 years, whether they are elected by vote or not, and individuals who administer government resources State.
Camilo Gómez Alzate, director of the National Agency for Legal Defense of the State (Andje), which was in charge of defending the country in the case before the Court, spoke with EL TIEMPO about the implications and scope of the ruling.
Is the ruling strictly enforced?
Yes, and Petro’s petition opens the door for the corrupt to claim that only a criminal judge can sanction them, with all the office that criminal judges have …
The Council of State had already overthrown Petro’s dismissal. Should this case have reached the Inter-American System?
It should never have gone as far as it did. The Court did not take into account, or rather, it did take into account but did not care, that the matter had already been resolved in Colombia. We believe that this violates the principles of subsidiarity and complementarity that are essential for the Inter-American Human Rights System to come into operation.
What solutions does Colombia contemplate in the face of the ruling?
We are still analyzing it. There are parts of the sentence that are contradictory. In one part, he assures that it is not necessary to modify the internal legislation or the Constitution, or the Disciplinary Code, and points out that there are no structural problems. But then he orders adjustments to prohibit removals and disqualifications of people elected by popular vote.
Colombia, as ordered by the Council of State, has already modified its Unique Disciplinary Code to make it more guarantor, which is something that the Inter-American Court also requests. What we see is that contrary to world trends, the Court is ordering all disciplinary offenses, many of which do not involve any criminal behavior, to be criminalized.
This scenario is not exaggerated: an official elected by popular vote who arrives at work drunk would have to go before a criminal judge to be punished. That, in a country where the judges cannot cope with the processes for homicides, massacres, murders of social leaders and rapes. Furthermore, the Court orders us a discriminatory process against 1.2 million public officials in Colombia in favor of 20,814 elected by vote.
(You may be interested in: The regulatory changes that will come due to a decision of the Inter-American Court in the case of Petro)
So how do you comply with the court order?
We will ask for the corresponding clarifications. The scenario is a procedural reform for 20 thousand and to think about creating, eventually, criminal judges to control disciplinary decisions. There is also the element of delay in criminal proceedings, which creates a huge risk in cases, for example, of corruption. But in addition, the Inter-American Convention against corruption obliges States to “strengthen the development of mechanisms to prevent, detect, punish and eradicate corruption.”
What the Court orders us is to give back in the fight against corruption. We believe that a review of how the Inter-American System is working is urgent, starting with how the principle of subsidiarity is being understood.
Can lawsuits come from other dismissed by the Attorney General’s Office?
We consider that the presumption of legality prevails in such cases. But of course we are vigilant and there is the possibility that many dismissed, including parapoliticians, seek to take advantage of this ruling.
Petro has a fiscal sanction from the Comptroller’s Office for the same acts for which the Attorney General’s Office had dismissed him. Does this ruling say something about it?
Regarding the SIC and the Comptroller’s Office it says verbatim: ‘The court considered that it is not appropriate to order the cessation of the fiscal decisions issued by the Comptroller’s Office and the SIC’s fine as there is no causal link between the violations declared in the present judgment and the request of the representatives’.
Do you think this removes the teeth of the Attorney General’s Office against corruption and irregularities?
Yes, but compared to elected officials only, that is a contradiction of the ruling. The popularly elected can commit disciplinary or prosecutorial offenses without anything happening to them until a criminal judge says so, while the others are in another regime. The judgment of the Inter-American Court refers to Petro, but this creates a discrepancy with the rest of the public officials.
The judgment of the Inter-American Court refers to Petro, but this creates a discrepancy with the rest of the public officials. The non-elected are subject to a different regime
(We recommend: Court will study petition for ‘political death’ to Gustavo Petro)
Does this mean that the Attorney General’s Office will not even be able to provisionally suspend someone or is it only for final rulings?
It is for all decisions that imply restriction of political rights, which is what Article 23 of the Inter-American Convention on Human Rights says.
But, I want to be very precise, that creates another problem: why are some public officials under one jurisdiction and others under another? Those not popularly elected are subject to a different regime and could be suspended by the Attorney General’s Office or the Comptroller’s Office.
Gustavo Petro’s ruling is opening the door to a very high possibility of impunity for acts of corruption
Do you think that this discrepancy between some public officials and others could lead to demands, for example from those who are not popularly elected to apply the new regime to them?
There could be a guardianship because, as they popularly say, ‘either everyone in bed, or everyone on the floor’, why are some officials under a regime and others not? On that, the Inter-American Court did not say anything, it seems to me that it is discriminatory with the rest of public officials.
Gustavo Petro’s ruling is opening the door to a very high possibility of impunity for acts of corruption.
What the Court did not grant Petro
In the process at the Inter-American Court, Senator Gustavo Petro alleged that the State had violated his rights to personal integrity, judicial guarantees and judicial protection, political rights, and equality before the law. This, Petro said, for a alleged political persecution of which he had been a victim by the branches of public power.
For this reason, it had asked the Inter-American Court, among other things, to order Colombia to reform the Constitution and the disciplinary law, eliminating the possibility of entities such as the Attorney General’s Office applying sanctions such as disqualification and dismissal.
He had also asked to nullify a ruling of the Constitutional Court that says that the powers of the Attorney General’s Office to sanction popularly elected officials are in line with the Constitution.
The former mayor of Bogotá had also asked to overturn Law 1864 of 2017, which created several electoral crimes, among them the ‘Illegal election of candidates’, which is for whoever is elected “to a popularly elected position, being disqualified to perform it by judicial decision. , disciplinary or fiscal “.
Faced with your requests, The Inter-American Court of Human Rights considered that it was not appropriate to order the adoption of laws on the disciplinary procedure provided for in the Single Disciplinary Code, or regarding the time in which the nullity actions and restoration of the right must be resolved in Colombia, since there are no elements to conclude the existence of a structural problem that warrants the modification of said procedure, or the need to implement public policies aimed at sensitizing officials of the Attorney General’s Office.
In addition, a restitution measure in favor of Petro is not necessary since his mandate has already concluded and, in any case, the sanction of the Attorney General’s Office against him was annulled by the Council of State.