SUPREME COURT CRIMINAL APPEAL BOARD OF
Magistrate: Julio Enrique Socha Salamanca
Approved Minutes No.348
Bogotá DC, two (2) December two thousand and eight (2008). VIEW
the Board decides the extraordinary appeal lodged by the defender of Hermes Vallejo Jiménez against the ruling of Superior Court Judicial District of Ibague (Tolima), which overturned the Court issued in the Fifth Criminal Court of that city , and instead condemned to this and Reinel Torres as authors responsible for the criminal offense of rebellion.
FACTS AND ACTION LITIGATION
1. Based on photocopies taken motu proprio by the Judicial Assistant Attorney Featured at the First Special Tolima Gaula, "the group database" Bolshevik LEBANON " resting in this office, "the March 11, 2003 the owner of the aforementioned Office has opened his preliminary investigation to identify and identify possible members of that rebel group that may be involved in the offense of conspiracy (Abduction and extortion) "committed" against the people and good people who dare to visit the northern Tolima.
To achieve that mission was ordered to listen "in a statement to the ELN guerrillas who are in the reintegration program" and for it commissioned "Investigative Unit URBAN GAULA Group supported by the Judicial Assistant of the Executive, who is familiar with all investigations that are processed against members "of that rebel cell.
2. It was thus based on the results expressed in the report submitted on 17 May 2003 by two agents of the Gaula group commissioned to the aforementioned steps, the 20th of that month the prosecutor opened an investigation and ordered it to bind (28) twenty-eight residents in the towns of Lebanon, Falan, Villahermosa, among others, some workers of the respective municipality (for example, the mayor and the ombudsman of Villahermosa), others, civic representatives of the community (as Hermes Vallejo Jiménez) and even who by then was serving as Bishop of Lebanon (Monsignor José Luis Serna Alzate).
3. In principle, the May 22, 2003, was obtained by the capture of seventeen of these defendants, to which, once heard in questioning, the 30th of that month I was temporarily resolved the legal situation with security measures of preventive detention The offense of rebellion, a decision that, appealed by the defendants of some involved, was overturned on appeal in connection with nine of them.
The apprehension of Hermes Vallejo Jiménez occurred in Bogota on August 13, 2003, and after being heard in investigation, interim legal situation was resolved on the 19th month as a precautionary measure that imposed on other defendants for the crime of rebellion, confirmed the statement following September 16 to mark the appeal filed by his attorney.
4. By order of September 30, 2003 the prosecutor ordered the partial closure of the investigation into Hermes Vallejo Jiménez, Reinel Torres, Jose Alirio Henao Cardona, Lubin Yemison Guzman Nieto, Julian Osorio and Jose Gregorio Moreno Olaya Liberato, and 20 November of that year described the summary of evidence to merit an indictment against the five, as the authors responsible for the crime of rebellion, while that for the last, the investigation, the statement of objections which was confirmed on January 30, 2004 by the Deputy Prosecutor's Office in the High Court of Ibague.
5. The stage of the proceedings went forward in the Fifth Circuit Criminal Court of Ibague, whose head ended the first instance on 26 October 2004 by decision over which acquitted all the accused of the crime attributed to the prosecution because the inadequacy of the evidence put forward as a support of it.
In that decision came a-quo basis, firstly, that in the trial provided a copy of the statement of objections raised by the Attorney General's Office Judicial Assistant against the prosecutor who has opened his preliminary inquiry and subsequent investigation, as well as against the two agents Tolima Gaula "commissioners to hear testimony to the former rebels of the ELN," which accused the defendants of belonging to the faction of that group rebel known as "Bolsheviks of Lebanon", as these officials put pressure on witnesses (Soraya García Nidia Diaz, Alejandro Martinez Vanegas, and Wilder Malagón Sierra) to make accusations against those in this regard, and secondly, because the incriminating material remaining impossible to conclude the militancy of the defendants in that insurgent group.
6. Appealed the decision expressed by the Delegate of the Attorney General's Office and the Superior Court Judicial District of Ibague with yours of July 25, 2007 it revoked only in respect Reinel Hermes Vallejo Jiménez and Torres, because, although held wise decision to exclude testimony crossed the a-quo as flawed, found that other evidence to the aforesaid committed the crime of rebellion and by virtue, to find them responsible for this criminal offense, each imposed key sentences of seventy-two (72) months imprisonment and a fine of one hundred (100) legal monthly minimum wage in force and the ancillary disqualification to hold public functions and rights for the same period of deprivation of liberty, and denied the conditional suspension of execution of sentence and home detention, court of second instance against which the representatives of those convicted filed an appeal.
7. As the special appeal was sustained only by JIMÉNEZ VALLEJO defender, and ad quem did not notice the omission of that burden from the other challenger, the Board on 20 February this year, declared wilderness As formally declared it and claim the first set, on which the Delegate of the Attorney General's Office presented the concept of rigor.
DEMAND 1. Based on the causal third appeal (Act 600 of 2000, Article 207-3), the actor offers two charges claiming the invalidity of the action, based on the following:
1.1. Argues that the sentence was delivered in a mistrial for substantial reduction of instruction on reasonable terms to the detriment of due process, since, according to the actor for his client that stage lasted a little over a month from when he was captured, however, that in accordance with Article 329 of Law 600 of 2000, this phase was to last twenty four months.
indicates that prosecutors dropped an unjustified and substantial, beyond all logic, the reasonable time required under the law in question, thus breaking the structure and contrary to procedural guarantees provided in the Constitution, law and international instruments.
violated rules cites Article 29 of the Constitution, the 14-b of the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and Articles 6 and 329 of the Criminal Procedure Code and 2 of the Penal Code.
requested, based on the foregoing, to cancel all proceedings from the close of the research, in order that the accused can properly prepare and exercise, within a reasonable time, due process and the right of defense.
1.2. Second, he argues that the decision was made within a process null and void due to lack of the right of defense, since not allowed the questioning of witnesses, nor was any statement about the evidence requested by the legal aid .
Stresses that between 2002 and 2004 thousands of citizens were victims of mass arrests under a policy of "democratic security", in which interviews were used to "rehabilitated" as a basis evidence of deprivation of liberty, which he obtained unusual severity when these people have never attended to declare at the process of questioning by defense lawyers.
specifically says the actor that his conviction on appeal against his prohijado was based on the testimony of Nidia Soraya Garcia, Beatriz Eugenia Díaz Alarcón and Alberto Núñez Paz Huber, under which, upon an appeal for reconsideration of the closure of investigations requested were called again to report for questioning, but unsuccessful challenge is permanently prevented that opportunity. Accurate
the right to question prosecution witnesses will not depend on the legal operators, but is a state obligation to make this right effective, unless held with compelling reasons or reasons of force majeure to prevent it.
violated rules invokes as Article 14 of International Covenant on Civil and Political Rights, 8 of the American Convention on Human Rights, 29 of the Constitution, the 8, 9 and 13 of the Code of Criminal Procedure, and 2 of the Penal Code.
concludes that it ignored the said legal rules, not in practice allow the questioning of witnesses in a proceeding based precisely in testimony, so that mechanism contradiction was the best and most suitable for the development of the right of defense.
According to the above order the revocation request from the closing of the investigation, so that they can correct the errors posted.
2. In a subsidiary, with steps on the grounds of appeal first, second body (Act 600 of 2000, Article 207-1), argues the plaintiff's indirect violation of substantive law as a result of various errors in the assessment of the evidence, determinants of the sentence on appeal for the crime of rebellion.
2.1. Argues that the Tribunal made a false view of existence it failed to evaluate the following elements of proof:
The complaint filed by Myriam Consuelo Franco, legal representative of a minor, whom the witness Huber Núñez, publicly defamed complaints have an abortion, the conciliation, and Order adopting it to the Attorney Local 62, based on which ended the criminal prosecution for criminal libel, and the statements made before the Notary of Villahermosa, where the defendant's relatives realize the animosity Paz Nunez against it, by the fact that their amorous toward a young family who were not accepted.
Proceedings of agreements signed between the Government and Department, and the peasant movement as a result of the marches to demand their rights, which has acted as spokesman and representative of Hermes Vallejo Jiménez and the statements of Pedro Antonio Male Gutierrez, Eugenio Hernandez Corredor and Linderman López Orozco (former mayor of Villahermosa), among others, who aware of the defendant's personal qualities and his condition peasant leader.
indicates that the assessment of the trials was important, because with the first group shows that the witness Huber Nunez was a troublemaker and slanderous, and the reasons for resentment which had for members VALLEJO family, which I found to serve as a witness against the defendant and his brothers.
As for the other evidence requires them to demonstrate that the defendant was indeed recognized as a peasant leader and not as a subversive, and that was representative and spokesman of the farmers at the departmental and national government.
explains that by failing to assess the ad quem those elements of persuasion, ignored factual circumstances that undermine the credibility of the witness's statement and definitive considered key Huber Núñez.
2.2. The actor also claims a "false reasoning" because the Court did not consider that the process had its origin in illegal activity by the officials who made the preliminary and the first steps on the stage itself instructive as it is shown that GAULA investigators and an employee of the prosecuting, rigged trials, promising expedite rehabilitation certifications so that Nidia Soraya García, Alejandro Martínez and Malagón Wilder, among others, testify against several people accused of being guerrilla members without being this way, a circumstance that even the Attorney General's Office will raised objections to the aforementioned officials.
About the statement of Beatriz Eugenia Díaz Alarcón, argues that the first reference to this lady against the defendant appears in an interview before the Patriot Battalion, photocopied to begin the preliminary inquiry, in addition to the item of evidence was not put to this inquiry charges when paid or rated to resolve the legal status, or as the basis of the statement of objections, but, however, the second-degree fallador brought out the signs of that to strengthen the testimony of Paz Nuñez, ignoring the manifest illegality of the aforementioned evidence.
2.3. Question the witness censor appreciation Paz Nuñez charges, by the fact that The Court realized that the declaration of this, reputedly pure and without coercion, can not really be seen well, for in its context was evident in the words of that declarant had access to information or intelligence reports Police, DAS, and the Army, which makes him lose the connotation of disinterested and credible witness. Highlight
nor the judge took into account second-degree Nuñez Huber himself acknowledged in his statement that he had reason to feud with his prohijado, because it did not work out of the hospital in Villahermosa doctor municipal manager with which that had serious differences due to complaints that the doctor had risen for the irregularities committed by him as a nurse at the health center service.
2.4. Concludes pamphleteer medium indicating that a careful reading of the record and proper analysis of evidence, were bound to lead to the court of second instance to support the defendant's innocence, declared the verdict of first degree.
not have made, says the actor, the judicious and careful study of evidence, led to ad quem to ignore that it should acquit, or at least declare the existence of the doubt, and therefore address the inevitable way of applying the principle in dubio pro reo, with similar effects.
CONCEPT OF THE ATTORNEY
1. Deputy Attorney for the Fourth Criminal Appeal on invalid charges, after indicating that neither meets the appropriate requirements and development proposal, states that the two accusations have no vocation to prosperity.
1.1. Regarding the first alleged unnerving habit suggests that it assists reason, not only because of inconsistencies in incurred, but also because it is true that in this case the call unjustified reduction of the reasonable time prescribed by law for the stage instructive, therefore there is no due process grief.
specifically states that it is not acceptable reading that makes the applicant of Article 329 of Law 600 of 2000, because such a rule should be in line with Articles 331 and 393 of the same statute, and thus understand the instruction as a procedural step has specific objectives that once achieved imposing closure, which in no case could exceed the maximum time limit for its duration.
adds that this period is set by the legislature as a procedural guarantee for citizens who can not be perpetual subject to criminal investigations, or at least timeless, that is not an exact term in duration to allow the ways to use delaying tactics in defense research.
Delegate emphasizes that the proceedings are in the particular case lasted more than five months, and that the presence of the accused and their defense was verified during the past two months, during which time the prosecution established the conditions to proceed qualifying, and only when opposing the closure of the investigation the accused's defense gave documents to serve as proof of his claim and warned that practiced other, which could perfectly be requested at trial, as indeed happened.
1.2. About the second charge indicates the delegate that the right to cross the witnesses is one way to counter the test, but not only, as it can also resorted to the practice of critical evidence.
noted that in this event as the instructor did not agree to reverse the closure decision, did not rule on the request for evidence, it seems unlikely that the appellant's assertion that the ground of invalidity is not would have responded to the request probation at the time because it was untimely.
adds that the censor missed what happened in court during the preliminary hearing, acting in requesting the annulment of the closure of investigations by the same circumstances now under discussion, and a-quo denied that claim but accepted the evidentiary demands, including those set to challenge the closure decision. Finally
reiterates that the system of Law 600 of 2000, the evidentiary dispute is not satisfied only with the opportunity to question the witness, but she also meets the test compared with others, with rational critical review the software, historical statements, the witness's motives and other circumstances that should be taken into account to establish its truth, without observing that in this case was filed in violation of the right true defense.
2. About founded reproaches on the grounds of appeal first second body, said the prosecutor that the censor did not meet the guidelines required by this causal logic of dispute in the various forms cited, merely just to make a plea for instance, in which censorship the Court has not acquitted his client of the charge for which he was tried.
It states that the total absence of rigorous censorship leads him to suggest, in contradiction to its initial position, that ultimately the question is limited to the implementation of in dubio pro reo, because the judge will accept imposed reasonable and manifest existence of the doubt on the basis of the evidence, when fact is that the Court never considered the question in its assessment of evidence, on the other hand built his conclusions in a rational way of explaining why them, why the proposed charges should be dismissed. Request
In conclusion, the Delegate of the Attorney General contested the decision not to marry.
CONSIDERATIONS OF THE COURT
1. INVALIDITY.
1.1. The first charge under the proposed causal third of appeal the applicant is linked to an alleged defect structure, ie, by ignoring due process, because the censor believes that the completion of training was not extended the time allowed under Article 329 of Act 600 of 2000, a period which, in its feel, it was necessary to exhaust for their prohijado to be that the "reasonable time, appropriate and sufficient to exercise due process" and the law of contradiction of the evidence gathered against them before it was connected to the investigation.
1.1.1. According to the American Convention on Human Rights, every person accused of a crime, in full equality, including guarantees, is entitled to the award of "time and facilities for the preparation of his defense" (Article 8 - 2, c) in the same sense the Covenant International Covenant on Civil and Political Rights provides that persons charged with a crime during the process shall be entitled in full equality to "adequate time and facilities for the preparation of his defense and to communicate with counsel of his choice" (Article 14-3, b).
The text of those provisions to reveal that these international instruments affirm in the same category an inherent right to the defendant, which can not be unknown in principle by the legislature, as the criminal procedure laws that guarantee when properly abide by in the design of the respective deadlines to be conferred the accused and his counsel to seek and to secure trials, appeals, or present allegations are of a suitable objective terms so that these tasks are performed effectively. This
disclaimers because facing a criminal charge typically implies a task that requires the time necessary and essential to conduct research, identify and collect evidence, dialogues between the accused and his counsel, to prepare actions in which setting forth the arguments and fundamentals of defensive posture, etc., the purposes for which it is necessary to take into consideration the importance, nature and characteristics of procedural or diligence defense technical and material is entitled to.
Now prerogative that connects and complements the right to be tried within a reasonable time, also referred to in international treaties and the Covenant on Civil and Political Rights states that "Anyone arrested or detained on a criminal charge ... shall entitled to trial within a reasonable time ... "(Article 9-3), further reiterating that anyone accused of a crime is entitled" To be tried without undue delay "(Article 14-3, c).
Similarly the American Convention on Human Rights states that "Anyone arrested or detained ... shall be entitled to trial within reasonable ... "(Article 7-5) and, in turn, the American Declaration of the Rights and Duties of Man establishes that" Everyone who has been deprived of his liberty is entitled to have the judge without delay and to be far tried without undue delay ... "(Article XXV).
This law, which is inherent in every person subject to a criminal matter and is not deprived of their liberty because of it, means that within a reasonable time the State, through the court, must decide how Ultimately, Celera, ie, without undue delay, his status before the law and society, as one of the pillars fundamental due process is based on the speed in the determination of causes, including non-criminal nature, because without this component can not be efficiency and security of law and therefore justice.
1.1.2. In domestic law, no doubt, the safeguards provided in the aforementioned international instruments, there is room from the Constitution, as in Article 29, to enshrine in the broad sense of due process, said:
"Anyone who is accused has the right to defense and assistance of counsel chosen by him, or craft, during the investigation and prosecution, to a fair public trial without delay unjustified to present evidence and which witnesses for the prosecution, to challenge the conviction, and not be tried twice for the same offense. "
Under the systematic procedure that governed the conduct of this case, that is, in Act 600 of 2000, the legislature was careful in pointing out some time providing protection for fundamental rights in consideration, ensuring that the defendant and defense have the time and opportunities necessary to have knowledge of the investigation, knowing the evidence against them and seek favorable to their interests, exercise their right of contradiction, making defensive statements, appeals, etc.
specifically for the stage of preliminary investigation indicates the order cited a maximum of six (6) months (Article 325), and for training a term of eighteen (18) months from the date of initiation, period extending to four (24) months in those events that are three (3) or more the accused or the crimes for which appropriate (Article 329).
For its part, Article 393 of the same encoding adjectival states that "When you have collected evidence required to qualify or expiration of the term of instruction, by an Order of conduct to be notified personally which only supports administrative appeal was declared closed the investigation .... "
These provisions, particularly those that regulate the duration of the instructional period, consult with superior warranties alluded to in the adversarial trial system with the prevailing trend in the aforementioned regulations, for the prosecution, as has already pointed out the Chamber must develop the investigation only to the extent that it can mobilize the necessary evidence to indict before the judges or preclude the investigation, without being indispensable to exhaust the term of this phase, and less all the collection of evidence, which, with more importantly, can be left for the trial stage, where the immediacy and the possibility of contradiction embodied its essence.
is that the law, as the Court has explained, does not set a minimum term to end or close the instructional stage, but the subject has been raised to the test needed to qualify, so that, regardless of time lapse (unless the scope prescribed by law as the maximum time duration of the investigation phase), if the instructor believes that the evidentiary requirement to qualify is true and closes the investigation, simply make a procedural action authorized by law .
1.1.3. In the case considered the Prosecutor General's Office following a previous investigation that took place between March 11 and May 20, 2003 (two months and nine days), the date last mentioned, ordered the opening of the investigation and capture of several individuals identified of being caught by the crime of rebellion, including that of Hermes Vallejo Jiménez, and by order of conduct of 30 September the same year (four months and ten days) partially closed cycle instructive, considering that with the evidence collected identified in two stages was likely rate the merits of the summary.
noteworthy that during this period, August 13, 2003, was captured the said defendant and was immediately linked through questioning, after which time, together with his counsel, knew the evidence, and through legal assistance obtained copies of the action, challenged the decision of 19 August following with which it was resolved its provisional status, as well as of Sept. 30 ordering the closure of the investigation, filing jointly at that time application testing, and after being refused reconsideration of the order closing had time and opportunity to marshal the arguments corresponding pre-qualifying.
The fact that all procedural acts referred had been completed within a relatively short time, does not reflect the breakdown of the guarantee to have the time and facilities for the preparation of the defense, as mistakenly understood by the applicant, it is glaring, based on the above summary that met timely processing of the complaint, had time to consult with his lawyer defensive strategy of confidence, and was granted the exercise of contradiction in the prosecution evidence gathered during this first stage, which is not only secure evidence that deems appropriate to promote the status, but also questioning by exercising those resources law against adverse decisions that wield as its foundation.
Nor is it correct the alleged violation of the provisions contained in Article 329 of Act 600 of 2000, a provision that in no way establishes the obligation to extend the investigation to the maximum term provided there, as I think the censor, but, by contrast, is developing the fundamental right to a fair trial without undue delay or, in this case not to be subjected to criminal investigations or perpetual timeless.
Indeed, what is intended with the time limits for the deployment of the investigative activity of the State, which must comply with the obligation of the burden of proof, has a different meaning to seek a reasonable exercise of punitive power in order not to generate undefined situations when you are putting the legal status of a person who is charged with committing a crime, so that these expectations be met before time expected, which is necessary to give full implementation to what is established in Article 393 of Law 600 of 2000.
can not be understood to have Article 329 of the Criminal Procedure Act cited a maximum period of eighteen (18) or twenty (24) months, as appropriate, to advance research, you're setting up imposing its fatal exhaustion feasible to close the investigation, but equal to as in the event of collection of evidence required to finalize, this also imposes a ceiling on state guarantees in order to minimize the uncertainty in the formulation of the indicted charges, if the case so requires, or failing that, to be proceed to issue a resolution of preclusion of the investigation.
This is sufficient to affirm the improsperidad office.
1.2. Sheltered by the same grounds, also proposed pamphleteer invalid on the grounds that the defendant had no opportunity to cross-examine prosecution witnesses Soraya Nidia Díaz, Beatriz Eugenia Díaz Núñez Alarcón and Huber Paz, activity of the right of defense ensures that the appellant was prevented because the prosecution refused to replace the closure of the investigation and did not order the tests requested by counsel in the instructional phase, tending to prove that the defendant was oblivious to the signs as member of a group rebel.
1.2.1. Under section 8, subsection 2, paragraph f) of the American Convention on Human Rights, every person accused of a crime during the process, in full equality, has the right to "... examine witnesses present in court and to obtain the appearance, as witnesses, of experts or others who can shed light on the facts ", likewise the International Covenant Civil and Political Rights provides in Article 14, paragraph three, letter e) that any person charged with a criminal offense, in full equality, is entitled to "... examine or have examined witnesses against him and to obtain the attendance of witnesses discharge and that they be questioned in the same conditions as those in charge. "
Standard Minimum Rules for the United Nations Criminal Procedure Rules also known as Mallorca, where Numeral 29
state that "... if the finding of a fact is based on the perception of a person, it must be questioned in the trial. This interrogation can not be replaced by reading a document or statement written above. National laws shall establish the exceptions to this principle by reason of impossibility or great difficulty of reproduction of this test. In these cases, may be used in the trial performed prior statements, provided that they had taken place with the participation of defense and ensure the other parties the opportunity to object to the evidence provided. "
In domestic law, the aforementioned Article 29 of the Constitution establishes that he is accused is, inter alia, the right to present evidence and that has been gathered against him, played a fundamental guarantee as a guiding principle in Article 13 of Law 600 of 2000 Criminal Procedure Code that governed this case and in which there accusatory systematic trend designed, was divided into two stages of instruction, including pre-inquiry here , and the judge, that model still inherent in the principle of consistent evidence, according to which, in the case, the legal tests and regularly practiced in the previous phase (prior research / training), still effective and can be taken as support for the decision to fund (above).
1.2.2. In the case which calls the attention of the Board, the complaint that the claim based of nullity is basically confined on the one hand, the fact that the defense had no opportunity to cross-examine prosecution witnesses, and otherwise, that this was due to the refusal of the instructor to replace the closure of the investigation and sequencing pretense consequential evidence requested.
About the first thing you must remember that the law of contradiction proof or demonstration is an expression of law purified of defense, with the budget for the exercise of that prerogative advertising testing, since only thus allows the parties to the knowledge and the consequent opportunity to reply.
also taking time ago Hall said that the controversy of the test is implemented through various ways, for example, attending practice and participating actively in the respective due diligence, that in the case of the testimony may lead to the questioning of the witness, allowing the processing and his defense in a plane contradict those argumentative evidence incorporated into the whole side to it, through the application and provision of evidence favorable to their own interests, challenging the decision which granted a probationary merit which they disagree; or demonstrating the illegality of the means or the way was obtained to exclude the analysis of the judge.
not presented in this If ignorance of the security in question, given that the defendant and his counsel knew of the adduct timely, instructive phase of the statements of Soraya Nidia Díaz, Beatriz Eugenia Díaz Alarcón and Alberto Núñez Paz Huber, and although proceedings at that stage was not possible to realize their right to refute by questioning, it is also true that the possibilities were open to direct the controversy of these means of persuasion by any other mechanisms exist, as indeed they exercised without any limitation through appeals against decisions of principle in the belief that those items were the foundation of adverse decisions, and the time of the defensive position on the allegations pre-qualifying, being, therefore, safeguarded with sufficient concrete exercise of the right to defend themselves from such tests.
is not limited to legal defense, the prosecution had decided not to replace the closure of the investigation and, tip, no access to practice tests that the same opportunity for the defendant requested, because, as was clarified by studying the previous plea of \u200b\u200bnullity, the instructor entity has no legal obligation to exhaust all pertinent evidence and relevant, but when you consider that it has the necessary proof to provide the merits of the summary rating, the law enables him to close the investigation, even if not complied with the practice of all the evidence, which can be reserved for the trial which, to reiterate, the immediacy and the possibility of contradiction embodied its essence.
And the defender disregards what happened in this particular event at the beginning of the trial phase, this is in the preliminary hearing, diligence in the development of which the a-quo did not accept the annulment of the closure research proposal based on an argument similar to our study, but instead did order the practice of all tests documentary and testimonial order sought by the defense, including just the extension of the testimony of Nidia Diaz and Huber Soraya Núñez Alberto Paz, in order to guarantee the right of contradiction evidence.
However, the fact that during the trial was not possible to cross-examine respondents mentioned lately, also stands as collateral damage of conflict, since it is necessary to emphasize an aspect that also bypassed the censor: the witnesses were repeatedly referred to the addresses known on the record and did not attend, then the failure to practice properly ordered that evidence is not attributable to inertia or whim officials, in addition, material and technical defense had the opportunity to disprove the validity and effectiveness of these means of persuasion in an argumentative level present their final arguments in open court, and so strong was the criticism that was obtained for defendant's acquittal.
In conclusion, the charge fails.
2. OF INDIRECT VIOLATION. Unlike
and without a rigorous analysis is completed the Officer's Office, the complainant reported the reproaches on the basis of the grounds of appeal first, second body, even if you do not see an orthodox language to identify the defects, refined his argument some inaccuracies, enough to articulate the proposition of three errors violation of that path, namely a false view of law as to the accusations that the ad quem was tested based on the version of Beatriz Eugenia Alarcón; false view of identity to appreciate the statements made by Huber Alberto Núñez Paz-one provided as evidence taken and other collected directly in this action, "and false view of existence in relation to the evidence legally and regularly close to the process designed to certify, on one hand, the hostility of the witness against the defendant said recently, and second, that this was a civic leader farmer, which was crucial to the military authorities identified him as a member of a subversive organization (the ELN).
is why what the applicant on the one hand, violated the rules cited as the Criminal Procedure Code (Act 600 of 2000), Articles 232, related to "the need to base decisions on legal evidence, regular and timely made, 234 and 238 "about the fairness in the assessment of the evidence in finding the real truth ... together in accordance with the rules of sound criticism" and 277 "which establishes the criteria for assessing the testimony "and the other, ensures that because of the violation the Court engaged in the misapplication of substantive law to condemn his prohijado for the crime of rebellion (Act 599 of 2000, Article 467).
2.1. False view of legality.
2.1.1. The false view of legality, as a species of legal error in the indirect violation is linked to the training of proof, the rules governing the legitimate way to produce and incorporate the process, the principle of legality in evidentiary and enforcement of budgets and the formalities required for each mode of knowledge, so that nonsense is crystallized when the judge valued or appreciated half unknown test some of these rituals, it was unlawful or one that does the meet and is therefore invalid.
2.1.2. Criticism that kind of service in this event is referred to the estimate that second-degree fallador made the investigation of Beatriz Eugenia Díaz Alarcón, as an element of conviction of that extracted from the processed signaling VALLEJO JIMÉNEZ as "Soldier" car called "National Liberation Army (ELN), namely the faction" The Bolsheviks of Lebanon. "
Apart from the actor claims made about the lack of merit to be given to the version of that veteran of that rebel group by the fact that, unlike the sentencing as stated in the second degree, that does not accurately identifies your prohijado as a member of that organization, it alludes to a "Hermes Vallejo" whose data do not fully agree the trial here, in addition to the interest of making remarks attributed to realize benefits from the Government for their reintegration and demobilization, the really important point is analyzed vice blame on Injured that could not be assessed because they moved irregularly to acting and in fact was not taken into account as the basis of the statement of objections.
Replication is successful, in effect, the inquiry Alarcón Diaz-rendered on December 4, 2001 - work in process as part of a package of measures proprio motu photocopied by the judicial assistant of the Outstanding First Special Prosecutor, Gaula Tolima, which were accepted by the relevant officer to order based on preliminary investigation, not to mediate auto judicial officer (prosecutor or judge) to order certified and certify compliance with legal requirements in the respective production process and its origin authenticity.
back highlighted aspects result in a manifest violation of due process and incorporation adduction of the aforementioned documents, irregularities, incidentally, had already been warned by the prosecutor on appeal the ruling in appeal regarding the car that were concerned with security measures captured the first seventeen, ordering the recall of that determination in relation to nine of them.
noted at that time the Unit of Prosecutors Delegated before the Supreme Court Ibagué:
"[E] s should be emphasized that these measures have a number of irregularities very unfortunate, because this instance is not explained how an unknown officer procedural due process, which is investigating crime, while delegating to the practice of some police officers prosecuted in court, that although they have the best intentions, lack of experience and knowledge are not routed or direct research toward the desired end, as is to establish the existence of the act and the possible perpetrators of it, because otherwise it ends up as in the case subject matter by asking a series of punishable acts, which, as rightly held the sixth fiscal specialist, are being investigated by other judicial offices, leaving only this whole to do with the guilt of rebellion.
"If we realize the proceedings began with a report of the Technical specializes in the prosecution of GAULA, without resolution ordering it will voluntarily (sic), certifying a copy and passed to the prosecutor's table so she decides it appropriate and in a light and irregular support testing moved and without examining the legality, that is, if those tests were performed in the process valid sender, decides to order a preliminary inquiry. "
2.1.3. According to Article 29 of the Constitution, is null and void, the evidence obtained in violation of due process, "senior policy content indicates that when it violates the substantial forms of each form of evidence or it is introduced to the detriment of fundamental rights, the sanction is the lack of proof.
Article 232 of Law 600 of 2000 provides that any decision must be based on evidence "legal, regular and timely allegations to action", and ditto 239 states that "The evidence presented in a valid judicial or administrative action in or outside the country may go to another genuine copy and will be valued in accordance with the rules provided in this Code. "
For his part, Article 259 of that procedural law provides that documents must accrue to the original process or a certified copy and, as noted this room, authenticity is acquired "when authorized by the official where the genuine document or certified copy, when such a condition is certified by a notary, when it is certified or verified in judicial inspection, and when the party against who is alleged in the criminal process does not reject it before the public hearing (art. 1, Number 117 of Decree 22882/89 and 274 and 277 of the Code of Criminal Procedure. "
The content of these rules is apparent , firstly, that decisions taken in a judicial ruling has binding effect only when they find support in evidence which is not prohibited by the Constitution or law, ordered and carried out by a competent official, subject to the ritualices that are proper and within the corresponding procedural opportunity.
And second, that the evidence in criminal matters validly made within other action (judicial or administrative) may move in a certified copy, provided that there have not been ignored or overturned by illegals, as well as for removal or adduction substantial requirement is that there is a providence so ordered, ie there is a clear expression of will play the respective court ordered evidence in order to initiate or other officer before new research for events not yet discussed, or to serve the purposes inherent in action already underway and it is also essential that the target process to ensure advertising and contradiction in evidence transferred.
2.1.4. In this case a photocopy of the Injured Diaz Alarcon and other documents as it was close to start the preliminary investigation forward in this process were not ordered by a competent official, but by an assistant or employee of the state's non has jurisdictional powers, and the owner of the relevant official to whom they were directed release those documents did not verify that its output in the performance of home had been adapted to the requirements outlined in the Constitution and the law, much less verified the authenticity of them.
If so, the reason is on the side of the plaintiff, because as I was warned from the beginning of the investigation, the breach of due process in the incorporation of that evidence was not taken into account in the statement but sidelined him full of debates and the various decisions relating to the situation VALLEJO JIMÉNEZ taken over that stage, so much so, that the statement of objections, first and second instance, was based solely and expressly Albert Huber statements Peace and Soraya Núñez García Nidia Diaz, the latter dismissed by the courts of first and second grade for the irregularities for their production, thus incurring the Court in the error alleged by the plaintiff, in assessing an element of conviction does not meet the to have as a legal budgets and regularly incorporated.
It also noted that the judge at the second level, in order to strengthen the credit granted to the signaling expressed in irregular form of evidence that he said it was corroborated by the "interview" conducted Diaz Alarcon on 3 December 2001 by the National Army, which was provided with the report of May 17, 2003, rendered by the agents of Tolima Gaula, following the "commission" conferred by the prosecutor began a preliminary investigation.
However, that finding evidence of ad quem is also flawed, this time, a mock trial of conviction, served as the date of the aforementioned interview, it is plain that was received prior to the prosecution of Díaz Alarcón , plus who does not have the signature of the alleged official of the Armed Forces of Colombia - National Army gathering, this document has no probative value to the wording of the provisions contained in Article 314 of Act 600 of 2000 because according to this precept that kind of diligence and exhibitions rendered for any witnesses to authorities that perform judicial police are not valid evidence or evidence and only serve as guiding criteria for research.
In sum, it is indisputable that the probation service consistent estimation of legality mock trial denounced by the actor in relation to the assessment of the photocopy of the investigation of Diaz Alarcon has full configuration.
2.2. Trial false identity.
2.2.1. As is known, errors of fact is not disputed the legality of the item of evidence or due process on its management, and adduction practice, it is logical condition of the argument accept that it is permeated by a defect in those areas, as discussed in error is a factual nature.
trial in the false identity he must demonstrate to the caller that the judge to seize the contents of a particular test, we cut-false factual circumstances transcendent view of identity-removal, or was added equally relevant facts that do not match its text-false view of identity by adding, "or changed his expression meaning literally false view of identity distortion or misrepresentation.
The accreditation of a nonsense as the aforementioned is not more demanding than being absolutely loyal to the text or wording of the test, as the dialectical exercise is a comparison between what reliably reveals the test, and the synthesis or warrants that its content was the official, in order to show or demonstrate the removal, addition or misrepresentation of literal expression.
2.2.2. Now studied compared to vice interesting to note that the Court, in addition to the photocopy of the investigation of Beatriz Eugenia Díaz Alarcón-vitiated by illegality, false view, assessed as evidence against the witness poured JIMÉNEZ VALLEJO in this process by Huber Alberto Núñez Paz and photocopying gathereth in judicial inspection, the same diligence rendered before the Fourth Specialized in research Ibagué No. 109142 also advanced for the crime of rebellion, among others, against the above-mentioned trial.
The reference in the court of second degree the content of the statement Núñez Paz, comes down to it, as a nurse at the hospital in Villahermosa,
noted that "... several years ago, is Vallejo Jiménez militiaman subversive organization "The Bolsheviks' ideologue, political and military leader, and contact with official bodies such as the Municipal Government, the Hospital and the health workers of this department, bringing together people to hold demonstrations in the cities of Lebanon and Ibague (fl 59 et seq and 121 et seq . co N º 5).
"... the February 12, 2002, after transferring a patient to the Hospital Federico Lleras Acosta" in this city [Ibagué], on the road that leads to the Lebanese city of Villahermosa (Tolima), noted the aforementioned processing together with other rebels, wearing camouflage fatigues and carrying a firearm (revolver). (F. 15-4). ... Was president of ASOPEMA " frequent the City Hall to represent the "Guerrilla" in the meetings held in that place. "
ad quem For this indication deserved "full credibility" because it "looks well informed, reasoned, and objective" and given that it did not receive "any interest or petty to involve mobile unjustly, wrongly or aware of people who have not had any relationship with this guerrilla organization. "
2.2.3. However, as indicated by the applicant, the credit given to that item of evidence would have been different if the judge had referred to second-degree in its full extent and faithfully the story of that witness, as did the first instance, as several passages from it to reveal that their version not only lacks objectivity and disinterest, but also not the result of a direct perception but obtained by "community input" and based on the knowledge that improperly obtained an intelligence report of the National Army in the process obrante 109142 processed by the Fourth Special Prosecutor, and openly accept the deponent.
Indeed, Paz Núñez statement as proof that work move, it is obvious that encourages rivalry against whom he held the position mayor of Villahermosa to the time of their stories (March-June 2003), considering that it was imposed by the rebels, and against persons belonging to that municipality who says that "does not fulfill his duties properly" is " a degenerate, alcoholic "," an informant, a collaborator and contact with the guerrillas and the local hospital manager, who claims to be responsible for "numerous cases of abortion" and to provide medical care to members of subversive groups, indicating praenomen that make up a "network of corruption that exists" in that county, which is anchored by a large unknown number of [members of] the family BETANCOURT, PEÑA, VALLEJO, AGUIRRE, linked to the guerrillas. "
Specifically, about VALLEJO JIMÉNEZ, the Respondent asserts that:
"... has served on the UMATA seems to be Overseer of the works done at City Hall ... [is] requested by the prosecution and intelligence to be the ideologue, who has links with the guerrillas for many years, ASOPEMA leader, for several years, which is responsible for talking with their leaders to gather people and make them at the city of Ibague and Lebanon recognized by the community of being a guerrilla for many years, as his brothers Rigoberto Vallejo, Mauricio Vallejo ... and I've seen in camouflage and armed, February 12, 2002, and on one occasion when I moved from the city of Villahermosa Lebanon, leaving a patient at the Hospital Federico Lleras Ibague, I found him in camouflage uniform and armed with the gun ... a friend and compadre personero Mr. Hermes Vallejo, aka Marcos ... the Representative Peña Libardo Bedoya nothing helped the medical community to dismiss Manuel González [manager Hospital] despite the many complaints from the community ... Mr. Hermes Vallejo also collaborated on anything, being a member or community leader, although he personally requested the favor ... and there is a very good relationship between them, and they are drinking buddies and the football team ... "(Emphasis added.)
diligence in that explained why everything stated in his account, saying it was:
"... because they wanted to open up (sic) a disciplinary process against me unjustly, I left the information verbally to the secretary, that if they made me unjustly expelled from the hospital by the faculty that they have [referring to the Mayor, the Representative and the manager of the hospital] I denounce presenting me with a lawyer and senior officers and police and in front of them, he had many things to sing (sic) .... "
By expanding your version does not hesitate to assert that this region is the bush "or" cradle "of the guerrillas, and refers back to Vallejo family members, including Vallejo Rigoberto who he says is the commander" Bochica "and that he is who" has been seen in uniform with guns at checkpoints in Palocabildo "which is the brother of Hermes Vallejo, and both are" registered in the archives of the National Army, "noting that the latter is "political leader and contact with official agencies, the mayor, the hospital, the health workers of Ibague, is that people gather for protests in the cities of Lebanon and Ibague, the Patriot Battalion has a photo where you clearly acknowledge the event, said from the moment I arrived at municipality as a guerrilla camouflaged amidst the civilian population .... "
In testimony given in this action, as in the transferee, it is clear the enmity of reporting to the mayor and the city of Villahermosa personero and against the doctor who manages the hospital of the town, and for others related to those and, according to their research, make part of a rebel faction (the ELN) operating in the region, noting that:
"... the mayor was or is a friend of Mr. Hermes Vallejo VALLEJO, alias Commander MARCOS, RIGOBERTO VALLEJO VALLEJO, alias Commander Bochica, and a brother this apparently Mauritius VALLEJO VALLEJO, whom I have been disguised and armed twice, close friends of Agapito, Agapito comrades ... according to research I did, well, Mr. Hermes Vallejo had a voice-command in the town hall meetings and was who he said he speaks and speaks and who does not ... and Mr. Hermes Vallejo VALLEJO RIGOBERTO were always fellow mayor's campaign contributors or campaign, who celebrated the victory on election day through the streets, apparently handing Mr. Hermes Vallejo remittances in the Land Rover ambulance (sic) of the hospital ... Hermes Vallejo Jiménez is a military political leadership ... not if VALLEJO VALLEJO or VALLEJO JIMÉNEZ ... he is a member or chairman of asopena (sic) of the peasant movement in the region is responsible for contacting the hospital and city hall with something that has to do with the guerrillas ... if not Mr. HERMES visit the administration what purpose will but I've seen in the administration in meetings with the doctor, Mr. Hermes Vallejo occasionally comes to town but not live there ... "It should be stressed that
about the episode reviewed by the court of second degree, according to which the respondent would have seen to that defendant wearing camouflage and carrying guns, the version given in the witness of that event in this new story differs from the one made previously, as well as synthesized by the ad quem, being clear that he was wearing "camouflage" was not a HERMES VALLEJO but his brother
"... Mr. GERALD EFRÉN Patino had links with the guerrillas, according to information was an informant for the guerrillas, it relates to all the people there in the village freely until the day he was confirmed on 12 February, the witness thinks, was a Wednesday, two thousand and three saw it getting off a motorcycle with Mr. DIEGO PÉREZ apparently the husband of a teacher in rural areas, GERARDO PATINO carrying a case and would like barbecue who (sic) contained grenades and came to give them to the guerrillas in the village was altobonito (sic) making a catch, I came to complete the census, and was standing on the road Mr. MAURICE VALLEJO and SILVIO commander and other subversives who interrogated me was doing and he went, in a few moments appeared Mr. Gerardo Patiño and brought in what they were asking me, which I left and they stayed with the guerrillas ... "
also interesting to note that development of that instructor diligently recorded that the respondent supply various data consulting a calendar, and the exponent itself made the following suggestion:
"... I recommend reviewing a report from Battalion Patriots or Patriot Battalion made a report, I know about that report because I have very good intentions to work with government and I know many people in the region that could help with his capture. QUESTION: You were sent by someone to conduct the management there? ANSWER: I did voluntarily wanted to end the corruption that exists in the hospital ... and I knew the guerrillas would hurt to attack the doctor for links to them, then I had no other to denounce them all, I had access or least two pages of the report about the Patriot Battalion, because I wanted to verify the information I had, or I knew them by face, but they do not know the name ... I mean I saw a small part. QUESTION: Who was the person who gave you to make the report? ANSWER: The clerk of the DISTRICT ATTORNEY 4 specialist, because I was going to work. "
2.2.4. Asides transcripts what, in general, is the statement Núñez Paz, certainly not lead to the unequivocal conclusion that Hermes Vallejo Jiménez actually do some of the guerrilla group that blew up, and comprehensive assessment of all narrated by that exponent not rule out the possibility that such ambiguous and vague accusations obey personal or political differences with the defendant, and even to some extent be determined by management as developed by one community leader, mistakenly regarded by intelligence agencies Forces Military in the report that you could get the witness, in a research obrante parallel by the same criminal offense.
It is therefore indisputable that if the judge would have appreciated second-degree faithfully and in full size so exposed by the respondent, one would have been the decision, because in doing just that only evidence of defendant's alleged membership in a faction rebel, ie in the absence of any element of strengthening conviction that a failure could not last sentence in it, especially since, as will be seen below, however there are other ways in the process of knowledge offering backup version of the defendant about his work and mentioned disagreements with the respondent, which does not were being valued.
2.3. False view of life.
2.3.1. Made false view of existence that fails to appreciate fallador content legally provided proof-service process that is called false default view of existence, "or, conversely, makes factual details from half of conviction that is not part of the process, or do not belong to any of the close-false view of existence assumption.
analyzed in the case, the defendant VALLEJO JIMÉNEZ, and defense, have argued that the identification as a member of a rebel organization has its origin or cause in his activity as leader community and representative of farmers, noting, in relation to the only evidence on which he attributes the militancy, that is, the declaration of Huber Alberto Núñez Paz, who deserves credit for what he says is due to reprisals against the family of the accused, by the fact that he was emotionally rejected by a relative of the former and because the defendant did not take part in a personal conflict between the witness and the director or manager of a local inn where he worked as a nurse.
2.3.2. First, about the status of civil leader VALLEJO JIMÉNEZ processing in the city of Villahermosa (Tolima), it must be admitted that it not only is recognized by Núñez Paz himself, albeit with a different connotation, but it is documented with photocopies to gather his possession of the records of consultations between representatives of Government / departmental and various civic groups in that region, that between September 1999 and June 2000, staged marches and protests to demand their rights to employment, health, etc., actions in which the defendant participated as a delegate of the Association of Small and Medium Farmers of Tolima (ASOPEMA).
should clarify that these documents even when they appear initialed by those involved in them were made to the copy process in informal and even if the trial phase is requested the competent authorities a certified copy thereof, the inertia of the respective public officials found to be not fulfill that role, as part of the Government of Tolima was obtained by the simple response that such request would be met by the file of that entity, from which he never answer, unlike the Personality of Villahermosa, the entity that I certify the work as an overseer of the citizen accused of various works of the municipality.
however, about the defendant's social activity, account, among others, statements of Flor Maria Orozco Bedoya, Fanny Martínez Marín, Pedro Antonio Males Gutierrez, Eugenio Hernández and Linderman Corridor López Orozco-the latter former mayor of that municipality during the 1998-2000 period - measures that were practiced in the trial request of the defense response.
also prevails note that these same respondents deny any link or relationship VALLEJO JIMÉNEZ with illegal armed groups (guerrillas or paramilitaries), as reported in the same way as their relatives, Marco Tulio Franco Vallejo, Maria Nelly Sanchez and Jesus Vallejo María Sánchez Vallejo in a statement that they also received the prosecution phase, through commissioning, and were intended to ratify authority extrajuicio judicial statements rendered by them in August 2003 in the Notary of Villahermosa, presented by the defense after the close of the investigation-which drew in this hostile attitude against his family Paz Núñez by rejecting their foreplay love to Maricela Sanchez Vallejo, cousin of the accused.
About personal characteristics of the respondent Núñez Paz, during the tutorial also were close copies of various memoranda filed against it by the Manager of the Hospital of Villahermosa Ismael Perdomo, between February 1999 and October 2001 due to failure their work and community complaints about of aggressive treatment and to use that institution's stationery to order treatments to patients without the preparation or to be authorized, and for contesting or disapprove medical actions towards patients.
These circumstances should be noted that relationship makes the complaint made by Mrs. Consuelo Franco as the legal representative of a minor who defamed Paz Núñez arguing that he had undergone the practice of abortion methods, an allegation that determined the start of a proceedings against the respondent in the prosecutor said Sixty-two Local de Villahermosa, which ended July 11, 2001 based on the withdrawal and compensation made by the defendant for the victim.
In this incident the same concerns in his statement Paz Núñez moved, arguing that is the basis of the disciplinary process that unfairly the Representative of the Municipality and the Director of the Hospital wanted to open for reporting an abortion if done to a child, noting also that Ms. Consuelo Franco "Take suspicion" of helping the guerrillas, and that it the "cheated" to "force" to reconcile the amount of eight hundred thousand dollars in the respective criminal case. Finally
about reporting cited as emphasized in addressing the false view identity, it is necessary to emphasize that this indeed expressed dissatisfaction with the fact that HERMES VALLEJO "being a member or community leader" would not cooperate with the request that he personally did to help dismiss the manager of the Hospital of Villahermosa, negative, as the defendant said, afforded him the enmity of praenomen witness.
2.3.3. The assessment of the evidence alluded to in precedence, allow the applicant to provide the reason in that the Tribunal made a false view of existence by pointing out that issues argued by the defendant to devalue the complaint made against him "are not lower test in the process "because, on the contrary, the conviction related items also evidence that the defendant actually was developed in the home based work as a representative or community civic leader, also illustrated on probable grounds of discord between the accused and the witness who marks it as "militia" of the guerrillas, an allegation that, as is clear from reading comprehensive, careful, painstaking and slow the whole story of it, is released by the aforementioned witness against anyone with who had had a difference.
2.4. Evidentiary significance of the errors. Shown as
was unprecedented in sections (2.1 - 2.3) that indeed the second degree court erred in estimating the errors of passing on evidence that the plaintiff, consisting of law mock trial, mock trial and mock trial identity of existence, the true value, integral, whole and in accordance with the principles of sound criticism of legally incorporated elements of conviction imposes a different legal conclusion about Hermes Vallejo Jiménez.
Indeed, the Board must begin by noting that the story of Núñez Paz, as opposed to estimated ad quem, addressed the peculiarities of his testimony, his personality, the circumstances of place, time and manner of events that narrated, as well as those inherent in the way that was collected in this process (Act 600 of 2000, Article 277), raising it to prevent evidence provided unambiguous and incontrovertible about a possible link of the accused as a member of an organization subversive.
is not clear in the version of the witness in relation to a particular act or conduct of the defendant who can be bracketed as establishing the criminal offense of rebellion, except the reference about once saw him wearing camouflage uniforms and firearms, complaint that is also ambiguous and imprecise, because for sure the story can not be concluded if the witness who observed under these conditions was the accused or any of his brothers, who also points to belong to subversion.
The attribution of "political command and ideologue" that the defendant makes the declarant poya rest or, rather, in the activity of a community leader recognized by witness, and by various inhabitants of the municipality in which it resides, the former mayor of Villahermosa, and the civil authorities at the national and departmental levels with the agreements reached in an attempt to resolve the protests in which intervened in 1999 and 2000, representing a peasant association.
also can not be overlooked in the narration of these witnesses, his vindictive spirit against different people in the town of Villahermosa, as the Mayor, the Representative and the local hospital's medical director, against whom despite having been linked before the trial here, and although they act against Paz Núñez syndication of being "members of the guerrillas they were not high SO, because the instructor felt that not enough material evidence to support an indictment. Important
is equally clear that the irregularities of this action, as to how evidence was collected which resulted in preliminary investigation and the subsequent opening of the investigation and subsequent arrest warrant over twenty-eight people are not completely unrelated to the testimony of Paz Núñez, because just reading your story as a whole is perceived that many of the issues listed are the fruit of their own deductions, or are due to comments allegedly made by third parties for the work of "investigation" developed to "work with the State," refusing it to identify their "informants" on the pretext of protecting life and, at best, only acquiesces to recognize that the data supplied The intelligence report supports the National Army, which was allowed to have inappropriately accessed within it a parallel process and for the same criminal offense.
About the latter, it must be emphasized that the decision of the Attorney General's Office who rose to the statement of disciplinary charges against an employee of the investigating prosecutor and two agents who were involved in Tolima Gaula handling witnesses for the initiation and promotion of this process, we also ordered the issuance of advance copies for the same action against the officer of the Fourth Special Prosecutor Ibague who served as secretary of the "who was who apparently provided the intelligence information referred to in their various statements Huber Alberto Núñez Peace .... "
Faced with this situation, observed the fragile uniqueness of which is coated the only item of evidence that works against the defendant, and addressed the evidence supporting its expression of alienation attached to the criminal offense, it is not possible devalue the credibility of these elements of knowledge, they come from various sources, and that for them, well in order and in documentary or testimonial in nature, there is no reason to believe a possible distortion of the truth or intent of promoting the accused, which corresponds, in conclusion, is the acquittal of prosecution under universal maxim in dubio pro reo, given that the state through the judicial system failed to crack the constitutional presumption of innocence that protects it.
According to the above, will marry the failure of the second degree, in effect leaving the acquittal of first instance.
3. STATUS OF TORRES Reinel.
3.1. As was stated in the summary of the action, the appeal was not upheld by the attorney for Reinel TORRES, but a compelling reason, based on informal faculty attend Court when he observes violations of fundamental guarantees ( Act 600 of 2000, Article 216), requires the study of the fundamentals evidence of the sentence issued against the verdict of second degree, especially when that decision is based, among other evidence, on the statements made by Beatriz Eugenia Díaz Alarcón, who join themselves to the process without the observance of legal formalities inherent to the test moves, as was specified above (item 2.1.).
is why it is needed to confirm whether, apart from that test, the decision is based, a year in which the Board notes that the Court erred in flawed reasoning by false judgments of identity, legality and existence.
3.2. First the foundation of acquittal in favor of this defendant, is that although the procedure statements related to a subversive "ELN" known by the alias of "GIOVANNY" during the investigation and trial was not set out how agencies Army intelligence determined that the defendant here was that character.
For his part, ad quem, after accepting that indeed in this rebel organization "could be several people with the same nicknames in the group The Bolsheviks", considered that the reinserted Luis Gabriel Zuleta Morales,
"... no formula certainly clear that Reinel TORRES, here processed, the organization responds to the alias of "GIOVANNY", thus being clear to the Tribunal, that in the event there are several fighters with the same nicknames, this is one of them. The trainer asked him if he knew Reinel TORRES, aka "GIOVANNY" and the witness, under oath, "ANSWER: He was militant in Lebanon, the Lebanese militia are intelligence, from where the plague, that it to him, the militant look the plague, is a skinny man, peliliso (sic) a little Larguita, carracudo whitey, clear eyes, fantochito or chopped, as I saw him about 6 months there working with the group pretty much understood Silvia (fl ,274-8) "(Emphasis added.)
That is, for the judge at the second level the person referred to in witness Zuleta Morales corresponds unequivocally to the defendant Reinel connected TORRES here.
However, the ad quem trial committed false identity to grasp the content that element of belief because in the same diligence, a little later, the teacher rephrased the question inquiring the witness if he knew "Reinel Towers ", but this put you off this alleged pseudonym, to which the witness' ANSWERED: As I said awhile now, one has contact with them, if it's name own do not know anyone, only with aliases ... "explanation implies that the respondent in the answer that you copied the Court referred to and described the alias" GIOVANNY "and not a" Reinel Torres "to understand and identify with such nicknames.
addition, the judge erred in mock trial plural identity to appreciate the inquiry of this trial, since he did not realize that in the respective minutes shall be made to the following statements about the physical characteristics of the accused: " thin build, has a mustache, straight hair curly, small nose, black eyes, small ears ... " which, as highlighted differ from those of the person described by the respondent.
3.3. The fragmented and biased evidentiary assessment performed by the second grade fallador not limited to the above gibberish, but nevertheless be pointed out that the defendant here was Reinel TORRES subversive GOVANNY "which referred to the witness Luis Gabriel Zuleta Morales to strengthen the attribution of responsibility, said he also was working against that,
"... the statement made by Mr. Joseph Alexander Daza, who relates that it belonged to the urban militias of Lebanon (Tolima), who works in the vehicle Company "Postobón" (the accused said he worked with Coca-Cola "vagueness that results from such a distance to say that this is another person) which allowed him to go that people inquiring about what people could be victims of kidnapping and extortion to finance the aforementioned front 'GUERRILLA'. "
doing a comprehensive review of the entire record, it appears that by Joseph Alexander Daza work a photocopy statement was improperly entered by the Assistant Attorney First Judicial Outstanding, Gaula Tolima, in order to promote initiation of a preliminary inquiry against unidentifiable persons for conduct punishable equally vague evidence that, as established in another part of the considerations (2.1), could not be estimated, and transcribed as the appointment was based on what appears there narrated about alias "GIOVANNY", it is clear that the ad quem again made a mistake by mock trial of legality.
3.4. But also, and tip, ad quem also stopped appreciating, making a false view of existence, the aforementioned testimony and the version of investigation, legal action contributed to the instructional stage moves as evidence in the inspection in No process 109142 advance for the crime of rebellion in the Fourth Special Prosecutor of Ibague, knowledge elements which show that the witness mentioned anywhere Reinel said Torres, the defendant here, is known in the guerrilla fronts "Bolsheviks Lebanon "with the alias" GIOVANNY ", they appreciated all the stories together this reporting, even at the sake of argument, the irregular," the description provided of the subject distinguished with that alias, as the functions attributed differ radically from the comments of the deponent Zuleta Morales. The diligence
referred by the Tribunal said:
"Tell us that people work together voluntarily and if you know the names of the militiamen who work in towns. ANSWER: There is a boy named GEOVANNY is militia in Lebanon, working on the car of Postobón currently, is weak, it is the pimp, has around 22 or 23 years, swarthy-skinned, is there 1.70 meters tall, the only thing he does is intelligence of those who have money in Lebanon and what they do for kidnapping or extortion, that has over 10 years of militant, I know why he was in the bush a little time ... "(Emphasis added.)
Meanwhile, on the evidence transferred legally and regulate this process, refers to a subversive "is called GIOVANNY" which is "military command", who said:
"... GIOVANNY, is one of the smartest fighters have a lot of intelligence in Lebanon, there are known as guerrilla, I know she has relatives in Lebanon but not where he remains in front of the mall in Lebanon, it is 1.65 in height, the table is hairdressers, sometimes (sic ) leave the mustache and sometimes (sic) no, this guy has photos of the Battalion S2 Patriots, is gay, has with much Chinese, makes meeting people in town who knows he's guerrilla is an expert in explosives, has arto time in the organization, he was a good friend of mine and my wife .... "
And, in turn, in the statement given in this process José Alexander Daza, which also failed to appreciate the Court does not refer to the items listed by the judge plural, but merely limited to describe alias "GIOVANNY" as follows:
"... Question: Describe a GIOVANNY alias. ANSWER: It is more or less than 1.66 or 1.68 in height, is white skin, amonadito, thin, GIOVANNY lasted about 10 years in the organization because he was militant and interned, or militia and fighting and when I came to the organization he was a fighter and had belonged to the city and before I fly me he went to the city again .... "
3.5. As shown, the identification of the respondent said they are not harmonious with each other or with predicates based on the testimony of Zuleta Morales, in addition to not match the physical characteristics of this defendant, it being sufficient to highlight only one aspect: according to Jose Alexander Daza the subversive "is called GIOVANNY" or the knower with that alias, has an estimated age of "22 or 23 years", but according with the investigation of the card processing and preparation of his identity card, he was born on June 1, 1973, which means that by the time the story of Daza (surrendered on February 20, 2003), was close to fulfilling thirty (30) years of age.
In short, the ad quem, as an estimate flawed evidence, as demonstrated paragraphs ago, failed to provide evidence that unequivocally pointed to the defendant as the subversive Reinel TORRES known in the ranks of the organization in rebel with the alias "GIOVANNY" because reliable and comprehensive assessment of those can not come to that conclusion, resulting imperative, then, as I said fallador first degree, promoting the praenomen with the consequence imposed by the principle of in dubio pro reo, since the constitutional presumption of innocence that the blanket can not be removed with the elements of conviction procedure in the process, why the conviction of second instance is married, leaving in force the acquittal of first grade.
as Reinel TORRES was captured after the failure of the second degree, based on what is decided here will be released immediately and unconditionally on behalf of this process, for which the secretariat of the Board will send the ballot to the respective detention center where he is being detained, after verification that no other authority required.
In light of the foregoing, the Criminal Cassation Chamber of the Supreme Court, to administer justice on behalf of the Republic and by authority of the Act,
RESOLVED:
1. CASAR the ruling issued on July 25, 2007 by the Superior Court of Ibague (Tolima), on the occasion of the charges proposed under the grounds first, second body, the lawsuit filed on behalf of Hermes Vallejo Jiménez, and consequently force quit the acquittal in his favor in the Fifth Circuit Criminal Court of that city.
2. DUTY CASAR the ruling issued on July 25, 2007 by the Superior Court of Ibague (Tolima), according to the provisions in the relevant part of this decision, and thus leave the current acquittal in the Fifth Criminal Court circuit of the city for Reinel TORRES.
3. HERMES AWARD to Reinel VALLEJO TORRES JIMENEZ and immediate and unconditional release.
For the secretariat of the Corporation, the relevant ballot get rid of freedom for the last of these, if not required by another authority, and cancélese valid arrest warrant against the former.
notified, fulfill it and return to Office of origin. ESPINOSA PÉREZ
Sigifredo
Service Commission LEONIDAS BUSTOS JOSE ALFREDO MARTINEZ GOMEZ QUINTERO MARIA DEL ROSARIO
L. GONZÁLEZ DE J. AUGUSTO IBANEZ GUZMAN JORGE LUIS QUINTERO
MILANÉS Yesid RAMÍREZ BASTIDAS
Julio Enrique Socha Salamanca
ZAPATA JAVIER RUIZ ORTIZ TERESA NUNEZ
_________________________ Secretary
Footnotes:
Original Notebook 1, pages 1-190. Notebook
original 2, pages 159 to 239. Notebook
original 3, pages 175 to 211; original book 6, pages 202 to 247. Notebook
original 7, pages 20, 28 to 35, and 70 to 78, original book 8, pages 180 to 188. Original Notebook
9, pages 11 to 19; original book 10, pages 90 to 92; original book 11, pages 7 to 37 and 155 to 187. Notebook
original 12, pages 253 to 281. Notebook
12, folios 162 to 179; Notebook Tribunal, pages 19 to 55, 68 and 70. Notebook
Court, pages 88 to 116, the Court Booklet, pages 4 to 10, and 64 to 80.
See Judgement of 29 June 2005, establishment No. 17478. Cf
Auto September 27, 2002, establishment No. 17540. See Judgement
April 2, 2001, establishment No. 14536.
originates Notebook 1, pages 126 to 132. Notebook
original 6, pages 202 to 247. See Judgement
July 8, 2004, establishment No. 19634.
It should be noted that due to the manipulation of evidence by the Attorney First Assistant Specialist Outstanding, Gaula Tolima, and the two officers of this agency commissioned to take the evidence of this and other former rebels of the ELN, the Attorney General's Office opened a disciplinary investigation, and put those SO. Notebook
original 2, pages 81 to 113.
Idem, pages 159 to 190.
This case, after the opening of the investigation ordered by Attorney Outstanding First Specialized, Gaula Tolima, was assigned to the Prosecutor's Office at the Thirteenth Circuit Criminal Courts Ibagué to decide, exclusively, the likely charges of rebellion in which people may be have incurred whose capture was available at that time (Notebook original 2, pages 282 to 284; original notebook 3, pages 29 to 31), and even when the investigating officer in the judicial inspection performed by process No. 109142, confirmed the existence of another investigation against VALLEJO JIMÉNEZ for the same conduct punishable , as events in their jurisdiction, ie, in the city of Villahermosa (original book 4, page 9 to 100), no warning flagrant violation of the guarantee of double jeopardy, since it was not found after "and now there is no news on the record, what was the final decision on the permit application on the praenomen. Notebook
Court, page 40. Notebook
original 4, pages 10 to 46. Notebook
original 5, pages 59 to 73 and 121 to 136. Original Notebook
9, pages 168 to 215.
original notebook 11, pages 285, 286 and 287. Notebook
original 12, pages 48 to 50 and 110 to 116. Notebook
original 12, pages 50 to 52. Original Notebook
9, folios 187 to 190, and original notebook 11, pages 262 to 268. Notebook
original 5, pages 271 to 305. 9
original notebook pages 173 to 186, original notebook 12, pages 97 to 99. Notebook
original 4, pages 20, 21, 41 and 42. Notebook
original 12, pages 13 to 26. Notebook
Court, page 39.
original notebook 8, folio 280. Notebook
original 3, page 116. Notebook
Court, page 45.
original Notebook 1, pages 174 to 181, 189 and 190.
Idem, page 180. Notebook
original 4, pages 10, 11, 47 to 50 and 71 to 82.
original notebook 10, pages 167 to 173. Process
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