Colombia

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Background

Colombia is divided into 32 departments and 1,070 municipalities and the Capital District of Bogota According to national census has a population of 46,581,823 people. Colombia was colonized by Spain in 1492 and achieved its definitive independence in 1819. In 1991, was formed the National Constituent Assembly, which enacted the current Constitution. According to the Constitution, Colombia is a democratic and social state of law, with autonomous territorial entities. The main religion is Catholicism (90%), nevertheless, Colombia is a constitutionally secular state. Political power is divided into three branches, legislative, executive and judicial. The Constitution recognizes certain fundamental personal rights and provides a mechanism for their protection called “acción de tutela”.

Type of System

Law 906 of 2004, by which the Criminal Procedure Code is issued, established the adversarial criminal system in Colombia. This Law came into force throughout the national territory in 2008.

The criminal justice system in Colombia is based on the equality of two opposing parties, the defendant, represented by counsel; the prosecutor, who conduct the investigation and criminal prosecution. The process is carried out through public hearings, contrary to the previous system (with inquisitorial tendency), in which, the proceedings were conducted through written memorials.

Sources of Defendants' Rights

In Colombia the procedural guarantees and the Defendants’ rights, are enshrined in Chapter 1 of Title II of the National Constitution dedicated to fundamental rights, and particularly in Articles 1, 2, 28 and 29.

The procedural guarantees are also laid down in Articles 1 to 27 of the Criminal Procedure Code. In accordance to Article 93 of the Constitution, International Treaties concerning human rights ratified by Colombia, constitute part of the National Constitution, in that sense, the rights under the International Covenant on Civil and Political Rights (Law 74 of 1968), the American Convention on Human Rights (Law 16 of 1972, Articles 24 and 26), the Universal Declaration of Human Rights, the American Convention on Human Rights (Law 16 of 1972), the Additional Protocol to the American Convention on Human Rights, (Law 319 of 1996), the Geneva Conventions (Act 5 , 1960), their Additional Protocols, and the Statute of the ICC, are also sources of protection of defendants’ rights and the procedural guarantees.

Defendants' Rights

There are several guiding principles for criminal justice system in Colombia, which give guarantees to the defendant. First of all, human dignity (Article 1 of the National Constitution, Art. 1 of the Criminal Code, Article 1 of the Criminal Procedure Code), Secondly, Personal liberty (Article 28 of the NC, Art. 2 of the CCP), according to which no one may be arrested without a warrant duly issued by a court, preventive detention is an exceptional measure, only applicable when it meet the criteria of reasonableness, proportionality and necessity.

Thirdly, the principle of equality, under which is necessary to guarantee to every individual, especially people in manifestly weak position, all the conditions needed to make equality real and effective. The principle of legality (Article 29 of the NC, Art. 6 of the CPP) is other of the guiding principles and it comes from the Latin maxim "Nullum crime, nulla poena sine praevia lege", which means there can be no crime and no person shall be investigated and prosecuted, without a violation of penal law as it existed at the time.

The principle of presumption of innocence and "indubio pro reo", (Art. 29 of the NC, Art. 7 of the CPP) is one of the basic principles of this penal system, implies that each defendant is presumed innocent and treated as such, until judicially proven guilty beyond a reasonable doubt. The right to defense, (art. 29 of the NC, Art. 8 of the CPP) is another fundamental guarantee, according to which, the defendant may contradict the charges and evidence against him. In the Colombian adversarial system, the defendant has the right to have the assistance of counsel for his defense when he acquires the status of accused.

The right to a fair trial, (Art. 29 of the Constitution) states that the process should be public, held before a competent court and should not present undue delay. The principle of favorability, (Art. 29 of the NC) states that in case of doubt about the applicable law, the judge must choose the most favorable to the accused. The right to appeal, (Art. 29 of the NC, Art. 20 of the CPP) provides the possibility to ask to a higher court, the revision of a criminal conviction decided by a judge. Finally, the principle of double jeopardy (art. 29 of the NC, Art. 21 of the CPP) forbids a person from being tried twice for the same offense following a legitimate conviction.

Pre-Trial Phase

This phase of the proceedings is carried out through preliminary hearings, presided over by a Guarantee Judge, who is in charge of the protection of the fundamental rights of the accused. Once the Attorney General's Office, has knowledge that a crime was committed, start the investigation process. The Judicial Police is in charge of directly collect evidence. This investigative stage does not have a time limit set by law, and continues until the prosecutor collect enough evidence to make the accusation or until he decide to dismiss the case due to lack of evidence.

The hearing of formulation of “imputation” is carried out after the positive identification of the accused, this hearing entitle him to the right to be represented by a counsel. During this phase, the judge decides on the imposition of security measures involving, or not involving, the deprivation of liberty. Throughout this pre-trial phase, the Guarantee Judge must ensure that the prosecutors and the judicial police respect the fundamental rights of the accused, enshrined in the Constitution of Colombia, in the Criminal Code, and international Treaties concerning Human Rights.

Court Procedures

Since the implementation of the adversarial criminal justice system in Colombia, the trial phase is carried out through public hearings, based in a public competition between the prosecution and the defense, before to an impartial judge. The judge determines the guilt or innocence of the accused, after studying the evidence provided by the parties.

The first hearing of this phase is the indictment, in which the prosecutor informs the charges against the defendant, it is also the opportunity to recognize the victims and grant protective measures for them.

If the defendant agrees to plead guilty at this hearing, his sentence will be reduced to up to half. At the end of this hearing, a specific date must be set for the preparatory hearing. During the preparatory hearing, the parties request the evidence they will use at trial to prove their claims. If the defendant accepts his responsibility in this hearing, he will get a reduction of up to one third of the conviction. At the end of this hearing, the judge must be set a date for the trial within thirty (30) days.

The trial stage is held publicly with oral proceedings, during which the parties present their evidence and defend their respective allegations before an impartial judge, who listen to the arguments and the examination and cross-examination of evidence, to determine guilt or innocence. The judge must render an impartial verdict based upon the evidence adduced at the trial. The oral trial is held in accordance to the principles of immediacy, contradiction, and concentration. If the judge finds the defendant guilty, begins the incidence of reparation, in order to repair or compensate the damage caused to the victims of the crime.

Post-Conviction

Sentence

The penalties in Colombia are divided into principal, alternative and accessory. The principal penalties are imprisonment and fine. Among the alternative punishments the most common one is home detention, which replaces the prison, and may incorporate electronic surveillance.

Among the accessory penalties are: the disqualification from the exercise of rights and public office; the loss of public employment; the disqualification from exercising public functions; the prohibition to exercise a profession, trade or business; the suspension of parental rights and the deprivation of the right to possess or carry firearms. These sanctions are imposed when they are substantially related to the crime.

Currently, the maximum sentence in Colombia is 60 years imprisonment. The Constitution prohibits exile, life imprisonment and death penalty.

Appeal

The appeal can be requested by both parties, when the judge renders a judgment of acquittal or conviction. The Appeals against rulings are given in suspensive effect, that means, temporarily suspend the execution of the judgment until the appeal is resolved by the superior court.

In Colombia, the administration of justice in the criminal system is composed by Municipal Courts, which are courts of first instance; Circuit Courts, which act as first instance or second instance for cases heard in Municipal Courts; the Higher Judicial District Courts, which act as second instance or last instance; and the Criminal Chamber of the Supreme Court of Justice, which is the highest judicial body in criminal matters and the Court of last resort.

The appeal of cassation is an exceptional appeal, which must be submitted to the Supreme Court. The Supreme Court has jurisdiction for upholding or annul Higher Judicial District Courts’ rulings, in cases of serious error, incongruence or violation of guiding principles or procedural guarantees.

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