The Investigation Chamber of the Supreme Court of Justice met yesterday with Attorney General Francisco Barbosa Delgado, who traveled to the premises of the high court to speak with the magistrates about the case of the former president Álvaro Uribe Vélez.
That meeting, which was called by the Court, lasted approximately 30 minutes and in it, according to sources confirmed to EL TIEMPO, they spoke about how the logistics would be under which the process would be handed over to the accusing entity. At the end of this edition, the Court had not made any decision official and official sources indicated that this morning the official notification will be made to the parties.
(Also read: Cepeda abides by the decision on Uribe, but will recuse the Attorney General).
Lawyer Jaime Granados, who defends Uribe, said that he was in the high court all day for another diligence and approached the Secretariat of the Court. There they informed him that he had not yet downloaded any official notification of the case. He said that what they expected is for the Court to pass the case to the Prosecutor’s Office as they and the Attorney General’s Office have requested.
According to two high-level sources, the future of the Uribe case was debated in a virtual room held since yesterday morning.
Given the possibility that the case goes to the Attorney General, experts and official sources raised several questions about logistics and the scope of a decision in this regard. Initially they indicated that it is not clear how the investigation would continue in the accusing entity. (Also read: Prosecutor and Court spoke about what the delivery of the Uribe process would be like).
The doubts about what is coming
Who will lead the investigation? Under what law? What is the procedural stage? Could the former president be released? Can the Attorney General be impeded in this case? There are at least five of the doubts that arise. On this, diverse opinions arose regarding what is coming.
Regarding who will receive the investigation, a lawyer explained that it should reach the Office of Allocations of the Prosecutor’s Office, which, in turn, should assign it to a specialized prosecutor from the Unit against Public Administration.
And according to the criminal lawyer Camilo Burbano, it is most likely that the prosecutor Francisco Barbosa himself will be the one who designates a specialized prosecutor to handle the case. Another possibility is that, by knowledge of the facts, the prosecutor Daniel Hernández, who charged Diego Cadena with these same facts, is handed over to him, Uribe’s former lawyer, as well as his assistant Juan José Salazar, and knows the case.
If the Prosecutor Francisco Barbosa, decides to use the legal power to assign the processes and deliver it for the interest and importance, for example, to a prosecutor delegated to the Court, to this he adds another ingredient: Senator Iván Cepeda – who is considered a victim in this case – although he affirmed that he abided by and respected the decisions of the Court, he said that he will challenge the Prosecutor Barbosa, as well as the Deputy Prosecutor Martha Mancera, because although they would not carry out the investigations directly, being the heads of the accusing entity, it considers that impartiality is not guaranteed with them.
(Also: Attorney General asks to send Álvaro Uribe’s case to the Prosecutor’s Office).
He also said that by challenging them, he will ask President Iván Duque to declare himself prevented from eventually presenting a shortlist to elect an ad hoc prosecutor.
The jurists consulted agree that Cepeda would have to show that the Attorney General is facing one of the causes (such as that he has a friendship with Uribe, that he has spoken previously in this case, or that he has a particular interest) in order to challenge him.
After defining who the case is assigned to, a more complex issue would come up: establish under which law the investigation continues. This is because the Supreme Court carried out the process by law 600 while, when it comes to events after 2005, the Attorney General’s Office takes the cases by law 906.
This is key because the change in the system would affect the stage in which the case continues and whether Uribe can be released or not. Furthermore, in the old system (Law 600) what was done is considered evidence and in the new one (Law 906) everything that has been done is hardly evidence.
If it continues in Law 600, the Prosecutor’s Office would continue in the stage in which the Court was going, that is, in the investigation to later determine if it calls him to trial before a judge.
But if it changes to law 906, It is not clear whether charges should be brought again before a guarantee judge, whether the Prosecutor’s Office should request – if it considers it so – an assurance measure, or if these stages are already overcome and the prosecution is advanced.
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According to Burbano, who believes that the case should continue under Law 600, the assurance measure would remain intact for the time being, although later the prosecutor can review it, or revoke it at the request of the defense.
But if it passes law 906, he said, everything becomes more complex because “The systems are not comparable”. Thus, he assured, the prosecutor in the case would have to “roll back the investigation”, start over with the evidence it receives from the Court, and decide whether to file charges, and then decide whether to ask a judge for the arrest.
Former magistrate Jaime Arrubla affirms that there is a 2011 ruling by former magistrate Alfredo Gómez which indicates that when the jurisdiction ceases, the processes must continue under the system from which they began, In other words, in this case, Law 600 should continue. But he believes that if the process changes to Law 906, the prosecutor who reaches it is the one who must resolve the gaps on the procedural stage and Uribe’s freedom, adding that according to the law the gaps are always resolved in favor of the accused.
On the other hand, for José Fernando Mestre, director of criminal law at Javeriana, the process should be carried out by law 906 and this would imply that it would have to start from scratch. However, he claims that as Here is a current insurance measure, it does not seem so simple that that decision can be annulled as if it did not exist.
On the other hand, if the process changes to the accusatory system (906), for the criminal Juan José Castro this could lead to a judge controlling evidence that the Court had already included, such as interceptions of calls between Uribe and Diego Cadena, or the interception that was made by mistake on the phone of the former president, evidence that has been rejected by the defense of the former president as they are considered illegal.
According to the professor of law at the Universidad Libre Claudia Orduz, the case should go to law 906, but consider that the entire investigation should not be started again Well, what the Supreme Court of Justice has already done must be taken into account.
In that case, he said, the assurance measure is still in force and as in his opinion the accusation has already been overcome in this case, the Prosecutor’s Office should now define whether to accuse Uribe or whether to preclude the case.