Petrified compliance with the Petro ruling

Petrified compliance with the Petro ruling

Originally published in Spanish:

The Deputy Attorney General of the Nation in charge, Silvano Gómez Strauch, on May 10, 2022, provisionally suspended for three months the Mayor of Medellín Daniel Quintero Calle, for alleged and reiterated intervention in political activities and controversies.

On May 23, 2020, the District Comptroller of Cartagena de Indias in charge Rafael Ignacio Castillo Fortich, on May 23, 2020, suspended indefinitely “while the investigations and/or the respective fiscal processes are completed” the Mayor of Cartagena William Dau Chamat, for allegedly improperly entering into a contract for Covid diagnostic tests. The decision is pending to be executed by President Iván Duque.

The two suspensions place the State again in open contempt of the judgment of the Inter-American Court of Human Rights, IACHR Court, in the Petro vs. Colombia case, of July 8, 2020, and of the Resolution of November 25, 2021 of the Court, which supervised compliance with the judgment.

The Petro judgment ordered the State of Colombia to reform the Unified Disciplinary Code in order to eliminate the power of the Attorney General to “dismiss” and “disqualify” popularly elected officials. It declared that the validity of the norms that empower the Attorney General’s Office to impose sanctions of disqualification or removal of democratically elected officials generally provided for in the Colombian legal system, constitutes a breach of the duty to adopt provisions of domestic law, and ordered the State to adapt, within a reasonable period of time, its domestic legal system to the parameters of the American Convention on Human Rights. 

In addition, the IACHR Court ordered the Colombian State to adapt the rules that allow the imposition of sanctions for tax debts issued by the Comptroller General of the Republic: “the Court notes that Article 60 of Law 610 of August 18, 2000 states that “the Comptroller General of the Republic shall publish a quarterly bulletin containing the names of natural or legal persons to whom a final and enforceable judgment with tax liability has been issued and who have not satisfied the obligation contained therein”. This article also states that “those who appear in the bulletin of those responsible” may not be appointed to public office until the sanction is cancelled. For the purposes of this analysis, this rule must be understood in relation to Article 38 of the Single Disciplinary Code, (…)”.

The State has been arguing that it has complied with the sentence. It cites Law 2094, an ordinary law passed by Congress on June 29, 2021, which introduced reforms to the General Disciplinary Code. Specifically, jurisdictional functions were attributed to the Attorney General’s Office for the superior supervision of the official conduct of those who perform public functions, including those of popular election, to carry out disciplinary investigations, and to impose the sanctions of dismissal, suspension and disqualification and others established by law.

But this is not the case. Although the legislator may attribute jurisdictional functions to agencies that do not belong to the judicial branch, as in the case of superintendencies or police inspections that are part of the executive branch, in the disciplinary field, when it comes to investigate and punish popularly elected officials with the possibility of restricting their political rights to perform public functions, the option is inappropriate, since Colombia made an international commitment that such rights would only be limited through the actions of a judicial body and in the course of a criminal proceeding according to Article 23. 2 of the American Convention. It was a crazy “jugadita” of Mrs. Cabello, and a wrong decision of the Congress of the Republic, when approving Law 2094 of 2021 and of President Duque when sanctioning it.

This is precisely the focus of the supervisory resolution issued by the IACHR Court in November 2021. The Court found that with the reform carried out through Law 2094 of 2021, the State of Colombia is not adapting its regulations to the provisions of the American Convention and the Petro judgment in that any sanction involving the disqualification of popularly elected public officials must be imposed by the competent judge in criminal proceedings.

In view of the contempt that resulted in Law 2094, the Court determined to “[m]aintain open the procedure of supervision of compliance with respect to the three guarantees of non-repetition of the adaptation of domestic law to the parameters established in the Judgment regarding the restriction of political rights of popularly elected officials, in accordance with what is indicated in Recitals 24, 29 and 32 of this Resolution”, according to the eighth operative paragraph of the Petro judgment.

The precautionary measures of provisional suspension for three months of Mayor Daniel Quintero Calle and indefinite suspension “while the investigations and/or the respective fiscal processes are completed” of Mayor William Dau Chamat, imposed by the Office of the Attorney General of the Nation and the District Comptroller of Cartagena, respectively, ostensibly violate the political rights of the elected officials, since at the procedural moment in which they are issued, the presumption of innocence of the investigated parties has not yet been rebutted.

I reiterate: due to the seriousness of the decisions that could lead to his dismissal and disqualification from the exercise of public functions, it is the criminal justice system that must act and adopt all the corresponding decisions, as contemplated in Article 422 of the Colombian Criminal Code (Law 599, 2000). By doing so, an administrative authority fails to comply with the Petro judgment of July 8, 2020, of the Inter-American Court of Human Rights and contravenes the principle of good faith with which Colombia must honor its international commitments under the Vienna Convention.

That the State continues to be in contempt, that it repeatedly fails to comply with its international obligations, is a national disgrace that can only be corrected with a new government with a true commitment to freedoms, fundamental rights, democracy and the rule of law.

Originally published in:

Rafael Barrios Mendivil
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