Originally published in Spanish in: confidencial.com

On April 27, 2022, Judge Carmen Helena Ortiz Rassa read the ruling, rejecting the petition filed on April 6 by prosecutor Gabriel Jaimes to preclude and file the proceedings against former president Álvaro Uribe Vélez for the crimes of bribery of witnesses and procedural fraud. The reading lasted 12 hours. The prosecutor did not appeal the ruling and the judge’s decision was final.

Let’s remember part of the story. The Instruction Chamber of the Supreme Court of Justice opened an investigation against the then senator and former president Uribe in July 2018 for bribery of witnesses and procedural fraud. In October 2019, Uribe was questioned. On August 4, 2020, he was placed under house arrest. On August 18, 2020, Uribe resigned from his seat as senator and requested that his case be transferred to the Attorney General’s Office.

The resignation of former President Uribe to evade the jurisdiction of the Supreme Court was an abuse of law, which violates the duty of every person to cooperate with justice. The cessation of office enshrined in Article 235 of the National Constitution does not include this type of resignation, but refers to objective and justified reasons, such as illness or the end of the term.

In concrete terms, Uribe’s defense sought to have the investigation start over. The courts decided that the move would not go through. On November 10, 2021, the Constitutional Court denied Álvaro Uribe’s charge action, arguing that due to his resignation as senator there was a change in the procedural system. It specified that the investigation maintains its validity in all the actions taken by the Supreme Court of Justice because there is a functional equivalence between the indagatory and the indictment, which corroborated the position of Judge 28 in the previous decision that provoked the charge action.

Thus, the process continued its course in the instance he decided to take, at the hands of a career judge who was not and is not involved in the political confrontation with the former president, and where his argument of being a politically persecuted person has no credibility.

Prosecutor Gabriel Jaimes argued in his request for preclusion three grounds to close the case against Uribe: that the evidence collected by the Prosecutor and by the Supreme Court of Justice did not allow concluding that Uribe was responsible for crimes; that if there were crimes in the facts under investigation, there was no proof that Uribe had committed them; and, in case it was considered that this was not appropriate, the case should be closed because it was impossible to prove that Uribe was innocent.

Judge Ortiz dismissed all their arguments, considering that none of the grounds used by the prosecutor were applicable.  She affirmed that in all the facts there was evidence that former president Uribe had committed crimes that should be solved in trial, and severely questioned the investigative activity of prosecutor Gabriel Jaimes.  Without being her objective, the precise and judicious analysis of the judge gives new elements to those of us who affirm the lack of independence of the prosecutor Francisco Barbosa, political pupil of President Iván Duque, who publicly defended the innocence of former President Uribe disrespecting the principle of independence of the branches of public power.

During the press conference on April 28, Senator Iván Cepeda of the Historic Pact (Pacto Histórico), accompanied by his lawyer Reinaldo Villalba Vargas of the José Alvear Restrepo Lawyers Collective, CAJAR, said that the Prosecutor’s Office has no alternative but to call Álvaro Uribe to trial as soon as possible. He highlighted the transcendence of the decision, “which is unprecedented in Colombia. For the first time, a head of state will have to appear before a judge to assume his criminal responsibility for very serious acts”. Cepeda added that “this process has been a democratic lesson in the country”.

Former Deputy Prosecutor Jorge Perdomo emphasized that the decision of Judge 28 is wise, reasoned and responds to the questions that many had during the marathon judicial days of the last months. He added that Carmen Helena Ortiz responded to the arguments put forward by the representatives of the victims and gave them the reason.

For his part, attorney Miguel Ángel del Río -defender of Deyenira Gómez, ex-partner of the witness Juan Guillermo Monsalve-, called the role of the Prosecutor’s Office in the case “shameful”.  He warned that there are no guarantees from Francisco Barbosa’s prosecution to bring the former president to trial and it will be the judges who will guarantee the due process of all parties.

There is a non-judicial element that should be highlighted. This case began with unfounded accusations by Uribe aimed at damaging Senator Cepeda’s political career, but it has turned out to be a boomerang. In the midst of the current electoral period we are in, former president Uribe has acknowledged that the legal process for bribery and procedural fraud that he himself earned has expropriated his reputation, so it does not add up in the current electoral process. In addition, the lousy government of Iván Duque, erased him from the media agenda. Now the process against him has been revived with the judge’s announcement that Uribe must go to trial, less than a month before the elections.

The decision of Judge Carmen Helena Ortiz sends a clear and forceful message to all those who are subject to legal action, especially to the members of the Democratic Center: what was done in the Supreme Court of Justice is fully valid and the use of legal tricks to take their case to more favorable judicial instances does not work. The principle of checks and balances or balance of powers, key in a democracy, showed its strength and legitimacy in the judge’s ruling against former president Álvaro Uribe Vélez.

A good gesture for democracy and the rule of law would be for the Supreme Court of Justice to modify its jurisprudence on the capacity of congressmen, according to which if the person investigated and judged by the Court resigns his position and the crime for which he is investigated is not related to the functions of the position of congressman, the matter should go to the Prosecutor’s Office. The case of former President Uribe shows that the previous jurisprudence of the High Court is wrong and has contributed to the move that Uribe tried to make.

Addendum: I applaud the decision of the Council of State on April 28 that ordered President Iván Duque to suspend the extradition process of Dairo Antonio Úsuga, alias Otoniel, the top leader of the Gulf Clan, until a charge filed by a group of victims is studied in depth. Well done.

Originally published in Spanish in : confidencial.com

Rafael Barrios Mendivil
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