El principio de oportunidad en el nuevo sistema penal acusatorio

Abstract

With the expedition of the legislative act 03 of 2002, a new accused system was introduced in the Ordenamiento Jurídico Colombiano. That is, a system of accusatory tedency which determines that not all the criminal behaviours must be investigated and judge. Because the principle of legality permits the application of criterions of opportunity in a subsidiary way or being against the first mentioned postulate. According to the more outstanding position which has elaborated this doctrine with the objective of explaining the nature of the legal figure by comparing it with the obligatory that has prevail in the criminal procesal schema. According to the reconceptualization of the criminal law, the objective of the process is not to obtain a historic truth, an absolute justice and the function of the penalty is not exclusively rewarded. On the contrary, the interest for solving the social conflict generated by the commitment of a crime would prevail. Then, the efforts of the investigation are directed to pursue punishable behaviours which caused more damage to the community. The illicits of less entity can be negociated by the same community. In that way, according to the new criminologist tendencies the seriousness of the investigated facts determines the consequences of the criminal sanction; but considering the peculiarities of the case. As a consequence of the innovation that had been implemented, the superior statute in its article 250 regulates the scope, objectives and limits of the principle of opportunity. This postulate was materialized with the expedition of the law 906 of 2004 as a development of this constitutional precaution, this normative suggests that the necessity of applying the principle of opportunity must be focused on the criminal politic defined by the government. In addition, it establishes that the criminal action may be practiced just and exclusively by the district attorney’s office. It has been decided by the national constitution, the law and the internal proceedings of this entity. Therefore, the possibiliy to resing, suspend or interrupt it, is a responsibility of this investigative organism. It is also important to emphasize on the impossibility to take advantage of the criminal action, because in its practice, the district attorney’s office must be guided by the restricted causals established in the article 324 of the new criminal procesal schema, taking into account the obligatory of the pursue of crimes as the legality statement which is still current, due to the fact that it is consider as a determined and exceptional opportunity because it just operates in the restricted hypothesis previously defined by the legislator in the referred norm. It is conditioned in the case in which the legal demands that have been established for each one of them concur. Attending to “derecho comparado”, it can be infer that this legal institution was adopted and designed following the rules that have established some countries, in which the judgement system is based on the European model, but not on the Anglo-Saxon. Although there come the developments that have been adopted in some legal codes as a consequence of predominance of the compulsority during the penal code and the exceptional opportunity. With the goal of knowing the procedure determined in the politic letter as well as in the law. It was established the automatic control and compulsory by the guaratee control judge according to the precision done by the H. Constitutional Court in its judgement C-975 of 2005, it is also necessary to apply it during the interruption and suspension of the process and not only in those that carry to the end of the dominion extinction. About this mentioned before, the high court ratifies the imposibility of an absolute discretionality. In the same way, it was not established the postulate as a simple instrument based on getting a bigger efficiency and effectiveness in the justice administration. It means, as a mechanism of reliefing the congestion. Although its main goal is to know the benefit that this mechanism will bring and the possibility that the judge staff work harder following bad behaviours in the social aspect. There are other advantages like: descriminalizacion (if the criminal behaviour has little social meaning or has a minimum guilt), desjudicialización, despenalización (if the criminal reward is getting in a natural way or in the case that criminal reward will be minimum, it is better to avoid its criminal effects and to look for a resocialitation and to avoid a prision treatment for the accused with a bail freedom.); the cooperation with the justice accusing the other participants, the international cooperation in the extradition cases or the judgment by the international court. In similar fashion, as a practic effect it shows that this principle can reduce the mistakes that appear in the colombian judge system, because the legislator just determine the events followed by its application. According to the causals established in the article 324 of the penal code: It excludes serious crimes to the human international right, the crimes of lese-humanity or genocide accordint to the Rome statute and the drug trafficking and terrorism crimes. It demands that the cases which are in numerals 2 to 17, if the criminal bahaviour has a exclusive right penalty of freedom that exceeds 6 years of jail, the fiscal has a notification by the director of the public prosecutions. In the same way, for the events that take place in numerals 15 and 16, this figure is not include for bosses, organizers or promoters or those who have elements for supporting those activities. In the relationship with the causals 1, 8, 14 and 15 its application is coditioned to repairing the victims. For that reason, the expiry of the criminal action would not proceed until the effectiveness will be proved. So, if the guilty adquires the compromise to solve the damage with crime commision, necessarily it should go to the hypothesis defined as suspension of the process, it is related with the interests of the justice, this figure was also introduced by the law 906 of 2004. According to the procedure that is used in the legality control that is applied by the judge, it can be defined like this: • The district attorney’s office, should request to the judge to do an audience for that purpose which should be done in the following 5 days from the decision. But it does not have value until being approved. • In the special audience the victim, Public Ministry, the labor union and his defense can take part, but they should be summoned before. • The fiscal determination to suspend, to interrupt or to finish the penal action, should be showed by adding the means in order to demonstrate the facts of the causal. And the first act should be the case presentation. • Then, following the order of intervention established by the law 906 of 2004, the judge will hear the defending of the victim, the Public Ministry and finally to the victim and his defending who can present evidences for disscusing those argued by the fiscal. Another important aspect that must be considered is that the judge is not able to use the postulate of opportunity without the request of the fiscal. But it would be possible in the case in which the despondency of interest by the state in the pursue of the crime is present, following the application of the right of equality (article 329, law 906 of 2004). There also have been elaborated some critics about the negative effects that will bring the implementation of the principle of opportunity for some guarantees such as: The access to penalty justice (article 229 of the National Constitution) because in its application the feeling that the clarification of actions and that the responsible was not punished would be generated. And specifically for the victims the ignorance of the rights of truth and justice. Just like that, an arbitrary decision in this institution, may generate inequality in the application of the law, not only for the criminal behaviours but also for their authors. As a summary, the principle of opportunity is the faculty that the fiscal has as the titular of the criminal action and his capacity to suspend and interrupt it but taking into account certain causals and conditions previously established by the law. There would not be ignorance of the legality, because the investigative organ is subject to the law either when it exercises the crimminal action or not. In that sense, the only sensitive actions are those established in the constitutional article 250.