No 23259
SUPREME COURT CRIMINAL APPEAL BOARD OF
Magistrate
ALVARO ORLANDO PEREZ PINZÓN
APPROVED
ACTA No. 26 Bogotá, DC, twenty (23) March of two thousand six (2006). VIEW
Addresses Chamber decision on the doctor's responsibility CARRASCAL PACHECO RAFAEL ORLANDO, against whom the process is advanced for the crime of malfeasance through action. Dr. Pacheco
CARRASCAL born in Corozal, Sucre, on August 4, 1948, married with three children, an attorney at the University of Medellín, with a specialization in criminal law and criminology and procedural law in the Corporation CECARE Sincelejo. Was promiscuous municipal judge in 1977 and has since been linked the judiciary and municipal criminal court, criminal judge and prosecutor assigned to the Superior Court of Sincelejo since 1 July 1992 to June 8, 2004. Is identified with citizenship card No. 8,288,102 issued in Medellin. FACTS
The resolution of September 2, 2003, the fiscal 16 Sincelejo sectional measure of detention imposed syndicated to 128 for the crime of rebellion, gave some house arrest, failed to arrest 14 more, precluded research for 5 and ordered the arrest of 4 absent.
The ruling was appealed by the advocates of 63 unionized and the November 7, 2003 Attorney 1 delegate to the High Court of Sincelejo, doctor CARRASCAL PACHECO RAFAEL ORLANDO, overturned in its entirety and ordered the release of all detainees.
ACTION LITIGATION
Knowing the doctor's decision PACHECO CARRASCAL through the media, on November 11, 2003 a prosecutor before the Supreme Court officially began a preliminary investigation that culminated in the opening statement and fiscal bonding process through inquiry. On May 4, 2004 was secured detention, replaced by house arrest, on charges of malfeasance through action, As ratified on 2 June.
After the September 16 arrest was revoked by extinction of the goals that had been taken into account to impose, on December 29, 2004 was indicted for the crime of malfeasance per share, compounded by being a judicial decision adopted in a process of rebellion. Received
action in the Court on February 3, 2005 is made available to the parties to the proceedings for the purposes specified in Article 400 of the Code of Criminal Procedure. School and public hearings were held on June 27 and Sept. 5, in that order. ACCUSATIONS
Two criticisms will did the accused in an indictment: to clearly violate the limits governing the second instance and test bias, which committed the accused to value so whimsical.
On the first point, the prosecution recalled that in accordance with the provisions of Article 204 of the Code of Criminal Procedure and the Courts have consistently held, the decision of who unleashes an appeal can only relate to what is material challenge, indivisible issues linked to this and similar cases of strict legal or probation.
For this reason, Dr. Pacheco could not rule on the appeal but proposal on behalf of 63 detainees and not the 128, as he did, taking by surprise the other participants in criminal proceedings. Nor could revoke
other determinations made by the prosecutor of first instance in matters various and even contradictory to the proposed resources, such as the granting of freedoms, arrest warrants, the arrest, the failure to impose security measures and estoppel.
defendant attorney's decision, strictly speaking, meant that those released were arrested, the arrest warrants canceled, the accused enjoyed home detention be transferred to prison, to stop those their legal situation was resolved favorably and are tied to process the accused benefited by the estoppel.
No matter that the damage to all these people had not materialized, because the crime of prevarication is a pure action to be consumed even if the decision is not enforceable scope, revoked or not to fulfill the purposes for which it was issued.
Regarding the second topic, the indictment states that the conduct alleged against Dr. Pacheco is called prevarication on aspects of evidence, which is set up, as he said the Supreme Court of Justice on July 29, 2003, when an order is issued that manifestly contrary to reality proceedings.
After stating that in assessing whether this is so should be taken into account i) the apparent contradiction between the factual decision and ii) the particular circumstances of the adoption of the measure; iii) available information, iv) the complexity of the case and, v) the clarity and content of the test, the prosecutor concluded that the defendant had ample time to review the cases, there was plenty of accurate information to solve the complexity of the case came down to the extensive record, the evidence was clear and able to frame, but not fair value, to the point that scrapped the star witness who had similar cases given credibility.
The other element, the contradiction between the evidence known to the prosecutor and the decision he made, is shown with the following arguments:
1) Instead of assessing what racing, began to question the police report and "order of battle" to conclude that they were not evidence.
2) devoted time and effort to decry the lack of reason to start the process, an issue that had already been defined by other officials.
3) The text of the Order, as stated in the investigation and expressed by a defense, we conclude that the only reason for reversing the decision of first instance was because the arrest originated in mass arrests suspected illegal.
But that is no reason to revoke the arrest because, as stated by the Court and he knew the investigation, the illegality of the capture does not affect the structure of the process and the seriousness of the test.
4) disqualified witnesses by virtue of being demobilized, as if the only condition was sufficient to dispose of personal testimony.
5) Tilda suspects to the witnesses because, for being demobilized, they were interested in obtaining benefits from the collaboration provided. However, the blemish is not admissible because they were not paid for the number of people who betray or remove them from the blame not CODA his former teammates.
addition, the suspect testimony is not deleted but is valued more precision and care.
6) The rejection of such testimony was improper because it did not sound criticism has attributed to the witness statements that did not admit that a guerrilla collaborator could be active military and not value the words of Rudy Montes Mackdonal Cohen, among others.
7) is contradicted in the assessment of the evidence, because it had a witness to prove CODA carnetizado of interest and then questioned their identity cards, no credit given to the report police, but he used on some occasions gave no credibility to the patrol Blandon Quintero, but clashed with former rebels to disqualify them.
8) Incurred in the fallacy of making the particular in general: as Benilde Scissors was a guerrilla, all former guerrillas who said several people were suspected rebels, as Blandon Quintero said that for some captured only had the alias None of the individual was apprehended and identified previously, such as scissors Benildo identified several accused, identified them all and, therefore, other former rebels also identified all, as is witnessed Scissors profession other witnesses also reinserted profession.
9) Do not understand why in addition to the demobilized, were also discarded the testimony of the police.
10) That they are not found weapons and explosives to the captives is a trivial argument, because none was captured in combat and guerrilla collaborators in the cities usually are unarmed, disguised as decent people and even in high public office and private.
Finally, noting that the conduct alleged against the doctor PACHECO caused damage to public administration and justice because it affected the credibility and good name and revoked firm decisions could not amend the indictment was held to prove the intent with which the defendant acted.
said Dr. PACHECO CARRASCAL i) did not claim ignorance or error and could not do it because it is a judicial career professional with sufficient expertise ii) knew how they act in the irregular groups and sometimes gave credence to intelligence reports, so that should explain why now rejected iii) did not attend the judge's decision to guarantee control, which had reviewed the legality of the process, constitutional decision that bound him as well as the previous vertical horizontal; iv) in another study gave credence to the accusation made by a former Benilde Scissors fellow guerrillas, and now varies inexplicably concluded, v) asserted the police report to discredit witnesses and excluded the statement as evidence independent of who signed, and vi) was not the ethical and legal height of a public prosecutor.
INTERVENTIONS AT THE PUBLIC HEARING
A public hearing attended by all parties to the proceedings whose allegations contained in the tape recording was ordered to append to the file, can be summarized as follows:
1. Deputy Attorney General of the Nation.
With regard to the objective criminality, said that in effect was set because the defendant violated the limits of jurisdiction under Article 204 of the Criminal Procedure Code for the official second instance, because even though there actually some indivisible issues linked to the subject of appeal, there were others who had no connection, such as estoppel and abstention of security measures enacted by the prosecution to quo.
Although the disappointment expressed with the law in this respect, in another point he referred to the prosecution, the standard of proof, not to the same conclusion can be arrived because the arguments in the second degree decision are reasonable and not beyond the limits of legality.
Contrary to what is recorded in an indictment, in the providence that he questioned the process if it is a broad assessment of the evidence and outlines the reasons why it does not qualify the intelligence report, so that its assessment was not biased and fragmented and the decision was the result of a weighted consideration of all the material collected, which makes unusual behavior attributed to Dr. Pacheco. Having dispatched
above, the prosecutor then addressed the study of subjective criminality in the first of these aspects, that of overcoming the limits of jurisdiction of the Ad quem officer to conclude that the defendant did not intend to infringe the law because what he was hit by its decision on appeal, without realizing that the first grade had dealt with issues that could not be subject to revocation.
If examined in detail the resolution in question, we find that the defendant made an effort to understand what was going on in the process and believed the decision it deemed just, relate only to those security measures to which he devoted his analysis without stopping for anything in the other provisions contained in the Order to which no reference made in the relevant part.
The charges against Dr. PACHECO, for a general assertion that his act was intentional, it refers to some situations that have nothing to do with that element of the criminal offense. The long history of the defendant, without blemish, reinforces the conclusion of the absence of intent and that full reversal of the contested ruling due only to a careless action on your part.
Calls, therefore, the defendant is acquitted of the charges against him.
2. Delegate of the Attorney General's Office.
The lack of competition for the second instance to extend its decision to non-recurring, says that in effect processing is exceeded and therefore the decision is manifestly contrary to the law, given your artwork and experience, knew well. He said nothing in the relevant part of the decisions other than those security measures, but in solving any void left. Even if in respect of non-recurring sought to protect their security, should refer to them in Providence and the particular situation of each and not, as he did, take a global decision to know the differences in the signs. That
to valuation evidence challenged the ruling is manifestly contrary to law, credit for the following reasons:
1) showed that not reinserted receive some sort of retribution for their statements or the comments that made their former colleagues and, therefore, no interest is credited to the defendant criticized for not addressing their claims.
2) One of them, Benilde Scissors, had already declared in another case he met Dr. Pacheco. If at that time gave him credibility, the foregoing jurisprudence horizontal linking him or at least demanded a greater burden of argument for disposal.
addition, the Board of Criminal Appeal had said in a ruling dated February 18, 2004 that the mere ownership of a witness a criminal organization was not sufficient reason to exclude their testimony, vertical precedent must be respected in processing.
3) The profile of the accused did not correspond to that described in the statutes of the FARC, not a reason to consider non-subversion.
4) It is unacceptable that they were not created to police officers who gave the report citing a nonexistent interest, nor to other people who reported having been victims, they or their relatives "subversives. Both sides have evidence that specifically assessed and compared against the rest of the evidence collected, what did Dr. Pacheco.
From the point of view of the typical objective, then the challenged decision is manifestly contrary to law by the two points covered.
It is also unlawful, because it put into question the credibility, transparency and honesty of public administration and in particular the administration of justice.
on the subjective aspect of criminality, as it is not necessary to establish the motive of malfeasance, just say to find it established that the former prosecutor was a trained and expert staff, who not only knew what he was doing but was warned by his friend, the director of prosecutions branch, and then refused to answer he calls.
There was no reason to act so hastily, to the point that since the morning when he had not yet taken the decision had already instructed its employees to develop communication and free tickets.
therefore seeks an order to Dr. PACHECO CARRASCAL for committing the crime of malfeasance per share.
3. Processed.
widely
After criticizing the government program called "democratic security" and criticized the collective responsibility that, in his view, is to develop the country through mass arrests, the doctor referred CARRASCAL PACHECO the two key aspects in the accusatory resolution: overdo the powers he had as attorney ad quem and capriciously assess the evidence collected.
The first issue, the prosecutor noted that no branch left at his disposal only the 63 appellants, but to all detainees awaiting trial, that the appellant did not challenge the motivation of the ruling but the determination that it is adopted , so there is no limit or the content of the resource or its purpose and therefore can modify, add, clarify or revoke the decision under attack, and did not have the Ad quem no limitation regarding the evaluation of evidence, which must re-examine material seeking truth and justice when it finds irregularities and vices as he warned in that process.
is false, as stated in the indictment, that under the decision should be released some prisoners, others who benefited from house arrest must return to jail and arrest warrants were revoked, because the resolution did reference to any of these issues.
Regarding the second point, he recalled that in an indictment issued against him reproached disregard habeas corpus, custody and control of legality that had prompted some union members. But if you read the ruling of judge who conducted the review of legality, we see that it states the warranty of the second instance. Also habeas corpus were declared inadmissible because it was resolving the legal status of those arrested and a guardianship was unsuccessful due to lack of legitimacy of the applicant. In addition, the signatures on record those decisions were not sent, so officially unknown.
Nor is it true that he always had given credibility to the witness Benildo Scissors, says the indictment, because it only happened on two occasions, one of which the defendant was acquitted by the court precisely for lack of merit of that testimony. In contrast, was the fourth time that gave credence to the witness, all listed in Annex 26 notebook.
However, the mistakes of the past can not justify the mistakes of the present or the future, because as taught by the Chamber in a ruling dated April 10, 2003, File 16,272, the judicial officer is not bound by previous reviews.
addition
other judicial authorities, including a prosecutor before the Supreme Court, nor have believed Benildo Scissors. Considered
resolution opening statement, we see that the only support was the intelligence report referred to orders of battle, anonymous human sources y entrevistas de reinsertados que no fueron escuchados en declaración antes de iniciarse el proceso. Por eso insinuó en su decisión que con esos presupuestos, a lo sumo se podría iniciar una investigación previa.
Se le reprochó también “calificar como antitécnico algún interrogatorio sin precisar la razón valedera”, crítica que se refiere precisamente al testimonio del señor Tijeras, en el que participó como digitador el mismo agente que suscribe los informes de inteligencia y las solicitudes de allanamiento. En ese interrogatorio se inducen las respuestas porque se pregunta por nombres, apellidos y alias de los sospechosos a pesar que el testigo en una declaración anterior no da these signs. Also it is possible that a statement of 50 pages last about an hour, prompting the judge to judicial review to suggest an investigation into this situation as can be verified at folio 25 of book 13.
Indeed, the testimony of scissors, according to himself was raised to 7 or 8 days, began in the Sijin of Sincelejo and ended in the police school in Corozal, none of which are indicated in the minutes left.
On the witness said he provided a certificate issued by the human rights unit of the prosecutor on the preclusion of an investigation, that the legal adviser to the CODA reported that Maldonado had not Scissors been certified by the committee and appeared registered in any of the shelters that manages the program received humanitarian aid for more than 9 million dollars and that his credibility has been questioned in several decisions, copies of which are in the annexes notebooks 22, 23 and 28. Therefore, if a witness is trained, paid, which since 2001 participated in operations with the army, police and marines, dressed in camouflage making statements as he acknowledges in his statements must be concluded that address the rules of sound criticism is not reliable.
also censured the credibility of other witnesses for the contradictory incurred, the people who received favorable decisions they pointed out, the comments that the police patrol and were reinserted together with each other, so that told what they heard, not what you know directly, and the use by some witnesses lists containing the names of the accused.
acknowledged that the police officer's testimony merely assessed Blandón agent, but did not examine the other does not fall within any malfeasance as all converged on what appeared to be the head of their peers.
concluded that the decision was reversed given in a process that is used hooded informants to produce evidence, intelligence reports and orders of battle as evidence and witness tampering. They have not found weapons and communications equipment in the hands of those arrested because there were no arrests in combat or immediately after, as the prosecution contends, is an unacceptable argument precisely because the search warrants was made in haste because it ensured in those households had guns, explosives, ammunition and uniforms of exclusive use by the military.
Therefore, if what is evidence in this case is a difference in the assessment of evidence or a mistake in the test study, it can not be criticized for having committed the crime of malfeasance, because this behavior is not wisdom but of legality.
4. Defender.
began his speech criticizing the mass arrests as part of the government strategy of democratic security. Then took up consideration of the background to the report which led to the arrest warrant issued against 207 people, 158 of which were seized, recounting how they were taken some photos and personal data to residents of the municipalities of Sheep, Chalan, Colosó , Corozal and Sincelejo, who is misleading to assert that it was a census to improve community-police relations, photos and data which will then appear in the report in seeking to capture the massive fiscal first instance accepted without verifying the information. Therefore
processing providence wondered what previous research done then if not to avoid mistakes and sort the catch, although they were massive, but with serious foundations. So farmers were arrested, city officials, trade unionists, teachers, pastors, religious, medical mission, housewives, members of community action groups, victims of the guerrillas and even police informants whose activities are not mentioned in the report.
During the three-month investigation were committed many irregularities, including threats proffered by the police to people who would later be caught; photographic surveys without counsel, a report of the illegally built Dipol reporting process and testifying with list in hand, conduct the prosecution supposedly justified because, as were so many people was normal not to forget them, but nobody asked where they got those names.
claimed that in this case there is no objective or subjective criminality and cited several decisions of the Criminal Appeals Chamber reiterated that the mere difference of opinion or the errors do not constitute the crime of malfeasance, but the discrepancy between what the officer did and had to make the expressed disappointment with what was ordered or authorized by law.
With regard to the testimony of Benilde Scissors, said that on other occasions had rejected the prosecution, that the defendant did not rule out a priori as stated by the prosecutor but that he considered suspect, that does not mean but be shrift more cautious in its assessment, it is not true that the prosecutor accused always has given credibility because 7 times did not, and other prosecutors and judges do not believe him in 8 other processes, and that the officer can not require always decide issues the same way, because it has to do under the circumstances of each case.
On the first of the complaints that were made in an indictment, said that in reality there are two claims: that gave more freedoms to be granted because the appellant to non-revoked and other determinations.
On the first point, Article 204 of the Criminal Procedure Code, which is said to have upset the prosecutor manifestly-authorizes the decision to extend the inseparable issues related to the subject of dispute. What is at issue, then, is whether the other freedoms are linked or not, for what should be repaired in the office 2057 October 16, 2003, visible to the notebook folio 65 Annex 10 by which the fiscal first made available to the Ad quem a second list of detainees, just as inseparable from that of the case.
is not true that the accused had to decide only on the 63 detainees on whose behalf the appeal, because the law also allowed to settle on what was attached to being challenged, which in this case is evident in two situations: The first was that they had also found the prosecutor quo by leaving the second available to the superior group of detainees, the second to extend the release order for the appellant is not a legal, constitutional and ethics officer when the test Case sees no valid reason to keep them in detention. Can not be justified if it concludes that all security measures do not support, ordering the appellants' freedom only when they are predictable arguments and circumstances of non-appellants. It violates fundamental rights to equality, due process, freedom and the achievement of justice.
If you read the final part of the ruling, which said that fully revoke the order interlocutory appellate decision and order the immediate release of detainees, and then solving, which has fully revoke the resolution within explained in the motivation, is clear that what was rescinded as regards the security measures that is what motivates referred to, no other decisions made by the prosecutor quo. Is that such orders must be read in its entirety, which did the prosecutor or the prosecutor. So clear was the intent of the accused, then the resolute says that "therefore it is decreed the immediate release of the accused arrested ....".
Regarding the second issue of the indictment, the bias of the trial, attacked the claims or arguments that the prosecution supported the accusation to say, first, that the prosecution spent the time to be censored analyze the police report because this report is precisely the source of the process, the outcome of the research work carried out, which said each of the witnesses reinserted, the detainees themselves information that gave the agent as he Blandón himself recognizes, moreover, if the appellants referred to the report in its resources, the second request was answered.
to devote special attention to the testimony of scissors, obviously because that is the central witness, which does not mean you have neglected the examination of other witnesses.
Second, the indictment said ad quem the prosecutor had no reason to question the lack of reason to start the process because other authorities had had no objection. However, it was forced to censor that was not taken into account the purpose of the preliminary investigation, the preparation of a report by the way has been criticized now, linking the main witness in the Sijin, Navy and Army, declaration list in hand of some former rebels, the arrest warrant provided for the sole report irregularities in the taking of testimony they surrendered even in the presence of members of the National Police, in several sessions in different places.
He reproached freedom granted to the same people that did not reach through habeas corpus or who were not granted the protection they had or who brought judicial review, regardless of the habeas corpus was not successful because it was found that there was an arrest warrant, the protection because it was rejected for lack of legitimacy and the legality, because not only did not join the respective decision record, but because this instrument does not suspend the proceedings and because in any case when it thrives not binding on the officer issuing the measure and who is least reviewed on appeal, as even the judge said it resolved.
The third argument, or claim the indictment says that there was malfeasance because the reason for revocation was due to the fiscal stance against the mass arrests, which is clear from the very providence of what was said at the inquest and to a defense position. It's amazing that even the concepts of defense are used to conclude that the defendant committed a trespass. There are certain
fourth and fifth claims, according to which the testimony of former rebels were disqualified by the mere fact of being, since what is said in the ruling was that they were suspects, whose witnesses said they did not find support in other tests, which also received perks.
The sixth, referring to not having attended the rules of sound criticism in evaluating the testimony of scissors, which he described as anti-technical, is also wrong. Just read some of the questions, which prompted the witness to speak of "alias Golerin corresponding to the name of ..." to watch the vice. Anyway, criticize him for malfeasance is not anti-technical.
Nor is it true that there were errors in the assessment of the evidence because the accused is not only considered the substance of the testimony but also the circumstances in which they were received, the conditions of those who surrendered, the context in which it occurred catches, irregularities in the collection of information, indicated why they were suspicious, with examples highlighted the absurdity of some charges.
Seventh, it is criticized that included a witness certified by CODA and then doubted it. The situation is understandable because the document did not act in the process and if later the certification proving that in fact it was a demobilized, this occurred long after when the prosecutor made the decision.
On the other statements contained in an indictment, he reiterated what was said by Dr. Pacheco as to the reasons to favor the testimony of the agent analysis of Blandon, the condition of suspects from witnesses and the conclusion obtained from the failure to find weapons or explosives in the houses searched, which was precisely the reason for the agent to request the order Blandón for those measures.
defender concluded that the assessment of evidence that the defendant was forced to take the decision taken, or not even set the target rate because there is a decision manifestly contrary to law. He then asked for the acquittal of his client for this reason and in any case, because he acted without malice.
I. CONSIDERATIONS Budgets.
1) Since the objective point of view, the crime of malfeasance through action occurs when a public servant utters resolution, opinion or concept manifestly contrary to law.
2) The ingredient policy that entails highlighting provided on collision with the order, the unknown and is directed against it. If not, is lacking in the typical behavior.
The manifesto is, in other words, patent, legal objectively contrary to the message, so damaging in the light of what is regulated by the provisions.
3) In conclusion if you set out in resolution, concept or opinion is contrary to law, it is also necessary to compare what shaped, with the right, essentially with the law and jurisprudence, on the understanding that this contains the substance that gives it.
4) If the resolution, concept or opinion deviates considerably, no doubt, above, is objectively prevaricante, otherwise not.
5) It follows from the preceding paragraph, that if the resolution, concept or opinion, due to serious criteria, attend, admissible against the regulations, it is not possible to talk about malfeasance.
II. Legal issues discussed.
As mentioned earlier, a prosecutor at the Supreme Court accused the doctor ORLANDO PACHECO RAFAEL CARRASCAL as the alleged perpetrator of the crime of malfeasance through action, because the sentence that As a prosecutor in the High Court of Sincelejo issued November 7, 2003, so clearly violated the limits governing the second instance to revoke the Order in its entirety, which issued on 2 September of that year a sectional fiscal the same city, however he had only been contested by advocates of some union members, and assessed the evidence against him whimsically.
In order to verify whether the alleged conduct fits the target rate, for consideration:
1) If indeed the evidence assessment was made by the defendant in a biased, arbitrary, outside the parameters of sound criticism .
2) If the conclusions obtained were applicable to all detainees.
3) If for this reason and for fully reversed the ruling of first instance which contained other decisions of various kinds, went beyond the law imposes an official ad quem.
III. In the assessment of evidence by the prosecution.
As recalled, in this connection the prosecution claims the doctor PACHECO CARRASCAL unnecessarily criticize judicial police report and the "order of battle" to complete obviously were not tested, and decry the lack of reason to start the process, because only lost a valuable time and effort. He added that the underlying reason to revoke the decision appealed against was his position on the mass arrests as illustrated by the text of the Order, as stated in the investigation and claims of a defense, and focused on the assessment complaint of testimonial evidence to conclude with the argument that nothing refute the fact of not having found explosives, weapons and communications equipment on the records.
And although the central issue concerns the evidential assessment to see if there was indeed "the contradiction between the evidence known to the prosecutor and the decision censored" as concluded prosecutors in an indictment, however it should make some reference to other statements that purport to show the defendant an interest different from that of the line justice.
This is because the Court believes that despite the clarity of the text that prohibits giving probative value to the judicial police reports, in this case its analysis processing was necessary because Attorney A quo, not expressly say so, appreciated that report and so I reviewed in the chapter on "The collection of evidence" and mentioned it then under the heading of "enunciation and legal assessment of evidence" to clarify how it was initiated the investigation.
said:
Accompanying information, or otherwise extended, the application is attached capture each and every one of the people there referenced. The circumstance alluded to above combined with the full identification and isolation of citizens allegedly involved have made viable for certain capture, while for others, the citation, with the purpose of being linked to a process, a charge of rebellion.
He noted that the testimony of members of the National Police had been allowed to know how all this information collected, and later said:
is important to reiterate that this work was done in partnership, and not as it seems thought originated from a single source of information or a brilliant mind (...) The National Police has been clear in stating in its various interventions in the process and thus corroborated the witnesses, that the investigation threw the report that gave rise to this reato lasted more than three months in which exclusive personal highlight of the Police and attended by the former rebels who contributed and I want to be clear on this because it is inferred from the statement by the police, aliases, names or surnames, and even data, or both, who underwent a thorough analysis to achieve relationship of the people featured in the report, data that is subsequently provided to the witnesses. Now, all this because of the judicial police functions mandated by Section 250 of the Constitution lies with the National Police to undertake, and which correspond to the development of pre-judicial stage of verification and then prosecute and instructive at this stage witnesses were heard in a statement.
sectional fiscal That would have hastened to declare the opening statement and order the arrest of several dozen people only supported in a voluminous report of the judicial police on the same day it was delivered, without making check any work prior, gives the idea of \u200b\u200bmerit and warrants granted the prosecutor's repeated criticism not only ad quem for the initiation but the strength of the investigation conducted by the judicial police.
On the other hand, it is the Court that the decision challenged by the prosecution, "the fundamental reason to revoke" the first instance was due to the position of the accused against the mass arrests, which barely referred to indicate that "must always be a last resort."
But it seems safe to say that "the position of defending technique against the subject can be concluded that the ultimate motivation was that it was based processing, as if it, whose proof is not necessary to infer responsibility for malfeasance-could be explained by the statements of defense and not to Based on the actual conduct of the judicial officer. Apart
these digressions, we initially consider matter as was said, is whether the evidence assessment made by Dr. PACHECO CARRASCAL is openly contrary to law or, which is, if it departs from the rules arbitrarily sound criticism that govern it.
regard, the Court considers that, in general terms, the appreciation of testimonial evidence by the defendant was within normal limits and abide by the rules of law.
These are the reasons behind the above conclusion:
1) As stated in the resolution of status issued by the tax branch, "the cornerstone of multiple signaling" was the collaboration of the five witnesses that once belonged to the guerrilla organization, activism recognized by them and confirmed by the National Police and the certificates issued by the Operational Committee on Laying Down Arms, CODA.
Therefore, was necessary to undertake the analysis of such evidence, the accused work, unlike the first instance referred to them as a homogeneous group, performed separately and jointly as follows: a.
Maldonado said Benilde Scissors recognize almost all captured by their names and nicknames, but the agent Blandon said he did not submit complete information, so that "natural and spontaneous that knowledge of scissors Maldonado is no longer reliable. And from that perspective either SILGAR versions of OMAR HERRERA, RENE BENITEZ WILMER, MOISES DIAZ VARGAS ALEXANDER MONTES and SIMANCAS. " B.
Moreover, according to Blandon agent, identifications were made from data supplied by informants, but as
Scissors [s] ince I gave myself have been working with the Sijin, with the army, the police, I have like 3 months to be working with them in the sense that they have investigated and tell me to see if these have been or not the guerrillas then I can confirm that if those who are and they do not take their suspicions and I have made names and they make their inquiries,
procedure is said in the ruling, "denatured work must be dedicated, serious and compelling." C.
Despite other reviews made at different levels on the testimony of scissors Maldonado, in the process loses credibility because:
* is a liar, as demonstrated for cases of Enaldo Rodríguez and Francisco Nunez, who rendered military service and therefore were excluded for the fiscal A quo.
distorted
* Also on Assia Pedro and Carlos Salgado, because the former was kidnapped by the FARC and the second was a student of eleventh semester of CECARE.
* It is inconsistent with his statement and part of the test for the qualities they must have a militia, because most of the defendants do not have them and many have physical defects suffer chronic illness or are illiterate. Furthermore, in the raids were not found material logistic support.
Likewise, the statutes of the militia sent by the military authorities, indicates that it must be between 16 and 30 years of age. In this case, some union members rather than the limit.
* Scissors Benildo appears as demobilized between June and August 2001, so until that date could only report what they learned in subversion. Many of the defendants knew them between 1997 and 2000, but was in that group since 1987. Not indicate the dates on which they taught courses. D.
These details are applicable to Silgado Omar, who said he had been in the guerrillas from 1997 to 2002, but despite being guerrilla fighter known to nearly all the militia of Sheep, Colosó and Chalan, scissors, however, that a commander said only have access to information. And although he claimed that known by nicknames or by a single name or surname, induced interrogation ends know names and aliases of all. E.
If the evidence of scissors and do not deserve credibility Silgado, little can be said of Moses Diaz, Wilmer Benitez, Rudy Montes, Mackdonal Cohen, Alexander Vargas, Hernán Góez and William Ospina, who accuse people who do not have the profile to be militia and whose claims are disputed by certificates issued by employers, inspectors or officers and statements from people who do not attend distinct interest to inform the conduct of the accused.
is not known whether those witnesses are certified by the CODA, so it is not known if they have the quality of rehabilitated or demobilized.
f. Alexander Vargas, who said he spent 8 months in the guerrilla,
Details as unlikely after he read aloud the names and aliases are listed in the Judicial Police Report signed by the patrol BLANDON QUINTERO, the morphological characteristics each of the suspects.
g. Wilmer regarding Benitez, who pointed out some of names and other by nicknames,
is noted that most of the initially mentioned by name and surname of the witness being evaluated and will not be listed in the inquiry process except for RAMON ANTONIO SANCHEZ CORREA, mentioned at page 30 of the first original book and 784 of the second original, but with different morphological characteristics investigated in this flatly denies that Benitez OLIVERA ...
Among the members of this group, in general, had said before the ruling that
[s] on obviously an interested party and suspects in the economic stimulus law sought by the informer offered without clarity as to the person or persons who act as the alleged perpetrators or participants of the criminal offense to investigate.
2) processing also appreciated the testimony of Moses Diaz, Rudy Montes, Mackdonal Cohen and William Ospina, of which the first attorney had said that
[p] or his own will, because that is manifest, presented to the police to report that they knew for several reasons and therefore could provide the names of several members of the militias operating in this department in the municipalities Coloso, Chalan, Sheep, Corozal and Sincelejo of 35 and 37 against the FARC, data and found to be consistent with several of the names and aliases provided by the demobilized. Statements and discharged into effect draw attention, however is that even constitutional responsibility in Article 250-4 is protected ...
Above them, the ruling stated Dr. PACHECO CARRASCAL:
a. Hernán Góez
[l] fter know the list of suspects, said that only knows that mentioned by "nicknames" and the other, maybe if you see recognize. However, contrary to note that almost all of the list are "militants." B.
Rudy Montes said the guerrillas withdrew because he was forced to train in explosives and terrorist acts, because he killed a friend and because it attracts the government program to aid workers,
[r] Azon why do a better job intelligence to establish who else is into all this. C.
William Ospina
[d] ice only aware of the "militia" of Colosó, but ends up talking about the militia of Chalan, detailing the morphological characteristics of suspected militants without checking identification parade in a line of people.
D.
Mackdonal Cohen notes that knows about "them" militants since August 2001 while returning from visiting friends from the district of Almagro, six armed men intercepted him the XXXV Front of the FARC, asking for cooperation with cellular cards, food and medicine, but as they are harming the people, he voluntarily testified as an informant for the police.
3) And then, to refer to the general credibility they deserved in the testimony, noted:
The personal interest of the witness, is a circumstance that allows inference of bias because the love or hatred, friendship or enmity, or any other favorable or unfavorable feelings toward the accused, the victim or harmed by the criminal offense, credit control subtracts because those circumstances certainly influence the perception and, therefore, in the statement provided to the judiciary. The witness's personal interest is opposed to being objective and impartial.
Note that the testimonies are analyzed factors affecting their accuracy, in this case, the animosity toward the accused alleged "militants" supposedly because the "guerrilla" without even knowing the results of such criminal investigation, an attempt on the life of family and friends and / or to obtain an advantage of any economic, legal, employment, social, etc. The weighted preparation of the statement, according to Professor Alfonso Ortiz Rodriguez, also affects the accuracy of the testimony, which is usually given to favor either party, where, typically, there are incentives in any of the forms mentioned recently. All these factors reduce credit the testimony or why not, I completely stripped of it by the "vices" linked.
4) It is true that not examine in detail the statements of police officers, which the prosecutor referred not to quo, which merely noted that thanks to them
[s] e knew that collecting all this information was a joint action by members of the Central Directorate Judicial Police Dijin, Sijin Judicial Police Section and block terrorist BLAT National Police (...) To achieve those consulted for orders of battle of the agencies studied also (...) concerns and disagreements that had citizens who inhabit these cities with these groups outside the law and the information on condition of anonymity provided to law enforcement. In addition interviews were conducted with people who are currently in the rehabilitation program who provided the nicknames, aliases, names or surnames insurgents, which were subjected to a process of identification and isolation by the National Police to finally verify their identities with the former rebels.
But referring to police testimony not involve any serious irregularity in this case, because if they just explained or ratified the report that initiated the process, the analysis of this ad quem did the prosecutor was sufficient.
5) As shown, the defendant actually took up the study of examining some specific testimony, but without losing the overview.
Even if one compares the ruling upheld by the prosecution to question that this process could be concluded that the first is quite superficial in the field of evidence assessment, while the second is not neglected or evaded any aspects that should be considered or are guided by prejudice or improper generalizations as alleged in the indictment, but the criticism of interest for their particular conditions could be reinserted or indirectly citizens who had suffered the consequences of subversion, said the analysis of each statement to downplay the credibility that had given them unmotivated first instance.
and value all from the perspective the judicial police report that summarizes the verification work carried out for three months as reported by the officer who signed, so that the questions made such intelligence work had an impact, as indeed must be, in the conclusions reached regarding of the objections raised to almost one hundred and fifty individuals were captured.
6) On the issue of evidence assessment, the indictment is aimed at ascribing to the doctor PACHECO statements or omissions in the background outside it.
For example, he criticized forget "that a guerrilla collaborator can also be an active military" argument that belongs In the fiscal quo and argued that to refrain from issuing a security measure against Enaldo Rodríguez and Francisco Núñez-as had been noted by simply reading the folio 30 of that providence, which referred only to indicate that processing at that point the witness lied Scissors, have avoided "any value" of the testimony of Montes and Mackdonal Rudy Cohen, valued at pages 17 and 18 of resolution on appeal.
also abound in the SO lacking some simple statements of support, orphans of any pretension demonstration, and that the defendant "did not attack the substance but marginal" "Dismissed the criticism on the supposed healthy standard of proof" or "anti-technical scored interrogation without specifying a valid reason."
Nor is it true that Dr. Pacheco CARRASCAL had not explained the reasons why the report did not address judicial police, if in such cases sometimes have had them as evidence.
By contrast, after referring to intelligence reports and the judicial police, noting that those are not evidence and that those in the procedural status repealed entirely lacked probative value because it provided in Article 313 , assimilated this standard to the 314, Law 600 of 2000, reproduced as a separate itself from the decision C-392 of April 6, 2000 by the Constitutional Court declared enforceable in Article 50 of Act 504 of 1999, and concluded that the report signed by the agent
Blandón
In light of article 314 CPP is related to previous verification work may serve only as the guiding principle of the investigation, and nothing else.
And though the end of that article refers not to report but the presentations or interviews to listen to the judicial police prosecute before acting, in this case is admissible assimilation is done because, as repeated in this decision, the whole report is based exactly in exhibitions or interviews or other persons demobilized informants.
Finally, with regard to the "exotic variation" unexplained by Dr. Pacheco on the credibility of the testimony of Benilde Scissors, which according to the indictment the former prosecutor gave a similar process but did not admit this, clarification contained in the disputed ruling, which stated that
[s] to take into account in assessments in other instances has been made on the scissors said Maldonado, the truth is that this statement loses credibility (... ), was well
specified in the public hearing by both the defendant and his counsel, who demonstrated how in other times was also discarded the testimony not only by the same doctor PACHECO but also by other courts.
This is shown with a simple review of the resolutions of the December 5, 2002 issued by the prosecution 3rd Sincelejo branch (fl. 78 CA 22), January 22 and July 4, 2003 issued by the prosecution 1st delegate Superior Court of the same city (fls. 9 and 93 CA 26), among others, none of which lends credence to the statements of Mr. Scissors Maldonado.
In all this power to conclude, as as anticipated, that is not configured in this case the malfeasance charge that was charged to the doctor PACHECO CARRASCAL on the assessment of evidence contained in the Order which issued the November 7, 2003 as a prosecutor before the Supreme Court Sincelejo .
And not configured because the study is judicious, is based on the law, is sufficient to conclude and not hurt right abruptly.
IV. The relevance of the findings from all detainees.
general analysis of the means of conviction which took into account the first instance to issue the detention orders, the prosecutor led to the conclusion ad quem, no said explicitly but is easily deduced that the evidence was predicable precariousness of all the accused.
If the report can not be appreciated because it is based on interviews with demobilized soldiers and other people, even anonymous, if you support it, without any prior research, it was decreed the opening statement, if the testimony of rebels from the FARC are not credible and neither partners rendered by citizens who came to the police if, in short, the security measures imposed by the prosecution to quo is supported all the concordance between the report and said with whose help the demobilized prior concurrent and later was drafted and they offer so many doubts, it is hardly clear that the lack of evidence on which the prosecution relied Ad quem revocation of the ruling of first instance, it is predicable of all persons deprived of liberty.
V. Legal limits on the powers of ad quem. Having dispatched
above, it should resolve the legal issue which is whether an officer may issue a second instance decision to the non-recurring, when he finds that the reasons to revoke the adverse action was imposed on the appellants are identical to some and others.
It should be remembered that way, that clause 1 of article 204 of the Criminal Procedure Code 2000, provides:
On appeal, the superior's decision will extend to matters that are inseparable linked to contested.
on the understanding of the provision, the court said in the statement of May 25, 2005, within the 22,855 filed:
As it is reasonable to conclude, the legislator about the competence of the functional superior, decided to prescribe an intermediate because although in principle the appeal is its limit, also left the possibility enshrined legal to extend it to include statements on uncontested issues, but so long as they can preached a close bond with the subject of the appeal. Doctrine and jurisprudence
agree in concluding that the extension of the jurisdiction of the superior inseparable issues related to the subject of appeal would be appropriate if advised of the need to enforce the law or substantial influence on the coherence and logic that has observed in the superior's decision functional.
It is therefore reasonable to conclude that the principle of limitation that governs the involvement of officials of second instance, is not absolute, while seen as coming from not only extend to issues inseparable linked to the subject of the challenge, but also allows the possibility of ruling on the existence of defects that affect the structure or due process guarantees of intervening in the judicial action and the affirmation of an immediate procedural consequence of such a situation, even if those issues were not part of The grounds of appeal.
also for the doctrine, the ad quem
is empowered to extend its jurisdiction to matters that were not subject to impeachment, or alleged non-recurring, when there is a close relation to the matters under consideration by the second instance, not operate the phenomenon of breaking the unity of proceedings. Ie, those hypotheses that, given the nature of the case, decisions should apply to all matters or non-recurring, because they are objective phenomena with general effect, or when the decision of second instance is more favorable to the complainants did not [Bernal Cuellar Jaime and Eduardo Montealegre Lynett. Criminal proceedings. Bogotá, External University of Colombia, 4 th edition, 2002, pages 320 / 1].
Indeed, nothing prevents the reasons for disagreement when an appellant be predicable also of the non-recurring, the decision taken in respect of that also applies to them whenever favorable because, as he said the Criminal Division Court on occasion, "to the same reason as provision to the same grievance same solution [ruling of March 5, 1993, establishment number 5849].
do so could lead, at times, absurd situations. Consider, for example, several defendants who were affected by an order whose only proof supporting evidence was illegal and appealed only one measurement. Because it would be unacceptable for others remain in detention or sentenced, it is clear that the Ad quem would be authorized to extend the decision to the non-recurring.
In the instant case, the ground of appeal argued by advocates to support the appeal lodged against the decision of status referred generally to the lack of evidence to impose a security measure because the judicial police report can only be taken as the guiding principle of the investigation and prosecution witnesses not credible.
second instance prosecutor limited his study to these issues and concluded that indeed there was no evidence to stop. He did not consider the particular situation of each appellant, but the source of the collective complaint, while all cases were closely linked because the alleged conviction means were identical.
Thus, if concluded that the judicial police report was entirely unacceptable and that the prosecution lacked evidence in its entirety suasive merit, the decision therefore had to take was predicated on all the people who were involved in the report or testimony, regardless of their quality of recurring or nonrecurring. And applied, without saying so explicitly, he just pointed aphorism: a solution identical identical grievance.
For these reasons, the full reversal of the security measures not clearly negate the law or, in other words, it would set the crime of malfeasance that was Dr. Pacheco CARRASCAL accused.
Finally, remember that the state prosecution did include the obvious illegality of the resolution, moreover, that "fully repeal" the providence of first degree meant a lapse of the other decisions it adopted, as the granting of arrests home, abstaining from uttering security measures, the estoppel and release orders and capture.
However, the same context the question arises clearly ruling she referred exclusively to being challenged, that is, a lack of evidence to impose detention measure, without having been made any reference to other decisions, therefore, have always maintained that were independent of pre-trial detention or referred to persons other than those favored by the recall.
Therefore, in the first section of the operative part, the prosecutor said:
fully REVOKE object resolution interlocutory appeal, according to the reasons explained. Consequently, it is decreed the immediate release of the accused stopped above by signing a measure of commitment under Article 354 CPP. Get rid of freedom the corresponding receipt. Take the notice referred to in Article 364 CPP. (Noting the Board).
Strictly speaking, the ruling is technically designed, it ends unexpectedly extending its benefits to non-recurring and not expressly stated in the decisions that are overturned. But the lack of technique does not mean that the decision is manifestly contrary to the law but, at most, a product of neglect.
As inferred from what has been said, the Board shall acquit the doctor ORLANDO PACHECO RAFAEL CARRASCAL the charge of malfeasance that was formulated by the Attorney General's Office, because objectively the behavior is atypical. This follows from the detailed analysis of the case, the singular test, then global test of comparison of the decision with the law and, most particularly, the interventions of the parties to the hearing.
Obviously, the Court does not address other issues in an indictment, because they point to the subjective aspect of malfeasance, that should only be considered after the accurate demonstration of the target rate, a fact precedent is not fulfilled in this matter.
In light of the foregoing, the Criminal Cassation Chamber of the Supreme Court, administering justice on behalf of the Republic and by authority of the Act,
FAILURE
1. Found the doctor ORLANDO PACHECO RAFAEL CARRASCAL the crime of malfeasance through action that was charged in his capacity as prosecutor in the High Court of Sincelejo.
2. EXTENDER all communications and take all measures inherent in the decision.
Let notification and enforcement. MAURO
SOLARTE PORTILLA
Permit
Sigifredo ESPINOSA ALFREDO GÓMEZ PÉREZ QUINTERO
Edgar Lombana ALVARO O. TRUJILLO MARINA PÉREZ
PINZÓN
POLISHING JORGE L. BARON QUINTERO MILANÉS
Yesid ZAPATA JAVIER ORTIZ RAMÍREZ BASTIDAS
justifiable excuse
TERESA NUNEZ RUIZ
Secretary
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