Originally published in Confidencial Colombia.
Last week, the Constitutional Court issued a decision in the case against Álvaro Uribe for alleged procedural fraud and witness bribery, which, being technical, is a big one. What happened and why is it important?
As a reminder to readers, the Supreme Court of Justice opened a formal investigation against Álvaro Uribe in July 2018, coinciding with the beginning of his third term as Senator of the Republic. More than a year after that, in October 2019, he is being questioned as accused of committing bribery and procedural fraud. Months after, on the August 4th, 2020, the Supreme Court imposed house arrest. Uribe’s response was known on the August 18th, 2020, when he resigned his seat in the Senate of the Republic, betraying the will of his voters. He and his lawyer immediately requested that the case against him by the Instruction Chamber of the Supreme Court of Justice be transferred to the Prosecutor’s Office, a request that was granted by the Chamber at the end of August, which itself facilitated the change of jurisdiction.
On October 10, 2020, the 30th Municipal Criminal Judge with control of guarantees accepted a request from the Attorney General’s Office and ordered Uribe’s release, considering that the indictment could not be equated to the indictment and that it was unconstitutional to maintain a security measure imposed under the inquisitorial system of Law 600 of 2000 when, under the accusatory procedure of Law 906 of 2004, it only proceeds against those who have the status of accused.
On November 6, 2020, the 4th Criminal Court of the Bogotá Circuit with knowledge function ratified that Uribe could be released but declared him formally charged with the crimes of procedural fraud and bribery, making it clear that the Supreme Court’s decision was fully valid. This decision revealed an interpretation gap that remained to be clarified.
On January 15, 2021, Uribed filed a charging action against the decision of the Fourth Court of Bogotá, considering that his fundamental rights were violated, since the Court should have ruled only on the appeal made by the parties to grant his release.
On January 26, the Criminal Chamber of the Superior Court of Bogotá declared Uribe’s charge inadmissible because the subsidiarity requirement was not satisfied, since the decision under attack had occurred within the framework of an ongoing criminal proceeding. However, the tutela came before the Constitutional Judge on July 19, 2021, at the insistence of the Attorney General’s Office and two magistrates of the same Court, who considered that the matter was new in view of the lack of clear rules in the Supreme Court of Justice on the processes applicable to aforados in Law 600 of 2000 and the one applicable to the rest of citizens in Law 906 of 2004.
On November 10, 2021, the reporting judge Alejandro Linares Cantillo, read a statement of the Constitutional Court in which it was stated that when there is a change of procedural system due to waiver or acquisition of constitutional jurisdiction, during the investigation stage, everything that has been done will remain valid. In addition, it is assumed that, prima facie, there is a functional equivalence between the inquiry and the indictment, adding that if any of the procedural parties identify areas of defenselessness of fundamental substantive guarantees, they may request an unnamed hearing before the judge of control of guarantees for the purpose of adapting the procedural action in the terms of Article 10 of Law 906 of 2004.
Based on the above reasoning, the Court revoked the sentence issued on procedural grounds by the Superior Court of Bogotá on January 26, 2021 and denied the charge of Álvaro Uribe against the order of November 6, 2020 of the Fourth Criminal Court of the Circuit of Knowledge of Bogotá, already on substantive grounds. This decision has a direct impact on the judicial proceeding against former president and former senator Álvaro Uribe Vélez in the 28th Court of Bogotá.
Judge 28 of knowledge, Carmen Helena Ortiz, said at the time that the indictment was comparable to the inquiry, and furthermore, it should be understood that everything done under Law 600 of 2000 was fully valid. In view of this, the process must continue and decide whether to preclude the case, as requested by prosecutor Humberto Jaimes, or not, as requested by the representatives of the accredited victims, including Dr. Reinaldo Villalba Vargas of the José Alvear Restrepo Lawyers’ Collective, who represents the interests of Senator Iván Cepeda Castro.
The determination made by the Constitutional Court is of great importance. It has as a consequence that the charge validates what has happened in the process since it arrived at the Prosecutor’s Office, under the understanding that Uribe is formally linked to the process and everything that happened in the Supreme Court of Justice is valid. Thus, the former president will remain in a judicial process in which he is accused of bribery and procedural fraud throughout the 2022 election campaign.
The Special Chamber of Instruction of the Supreme Court of Justice and the Constitutional Court are also in tune with each other today by using the same arguments: the inquiry and the indictment are equivalent, and the differences in the procedures of laws 600 and 906 do not mean that any of them is not a guarantee. Since the two Courts coincide in the legal response in the cases of Álvaro Uribe Vélez and Richard Aguilar Villa, the former charged with procedural fraud and bribery of witnesses, and the latter investigated for corruption, not only is a “train wreck” or conflict between them avoided, but also the questioning of their decisions loses force, since each one provides legitimacy to the decision of the other.
In addition, the bad example of the senators of the Republic choosing their judges is reduced. Since Dr. Uribe resigned from the Senate to be investigated by the Attorney General’s Office, three other congressmen, among them Richard Aguilar Villa, followed the same path. Now, having the decision of the Constitutional Court in the case of Uribe as a precedent, the incentive to resign in order to change the fate of the criminal process is reduced, unless it is before he is summoned for questioning by the Investigation Chamber, a moment in which there is no public information on how advanced his process is.
On the same day that Judge Linares Cantillo read his report, the Civil Chamber of the Supreme Court of Justice denied a tutela action filed by the former representative to the House of Representatives and former member of the Democratic Center, Álvaro Hernán Prada, who also resigned his seat and claimed the right to equality. He also claimed that his natural judge should no longer be the Supreme Court of Justice and that the file should remain in the hands of the Prosecutor’s Office, as it happened with Dr. Álvaro Uribe. Both politicians are immersed in the same process of alleged witness tampering. It can be expected that Prada will suffer the same fate as Uribe.
Although in today’s Constitutional Court there are no defined ideological and political groups that vote in one direction or another, since the very night of Wednesday, November 10, several members of the Democratic Center began to move in social networks the idea that the decision obeyed political logic and, for sure, the threat of a constituent assembly to reform the justice system will be aired again with more force.
The fact is that Dr. Álvaro Uribe continues to be charged with procedural fraud and bribery of witnesses during the 2022 election year, with his rights and guarantees respected. The Constitutional Court’s tutelage sends a clear and forceful message to all those who have been charged that what was done in the Supreme Court of Justice is valid and that their days of seeking advantage by going “from store to store” are over.
