The assessment of the substantial illegality by the General Inspection in the National Police does not present a defined path regarding its interpretation at the time of evaluating the impairment of functional duty, for which some criteria that have been used and that are relevant to avoid inequality when judging those who display behaviors liable to be sanctioned and in the same way analyze what could be the reference point to discipline the members of the Institution.
KEYWORDS
Substantial unlawfulness, Functional Duty, National Police, General Inspection, Doctrine.
INTRODUCTION
This article of reflection seeks to investigate the interpretation that is currently given by the disciplinary operators of the National Police to the assessment of the criteria of Substantial Unlawfulness, a concept that is taken into account when carrying out Disciplinary processes in against the members of that institution. This is due to the fact that in the course of time there has not been a uniform position regarding the interpretation of the evaluation criterion of substantial illegality at the time of judging and sanctioning the different behaviors classified as disciplinary offenses according to functional duty.
From the foregoing then the relevance of dealing with the issue arises, since the right to equality of the disciplined is affected, since there is not a single line drawn to sanction those who in some way affect their functional duty, leaving as As a consequence, the objective pursued is not fulfilled, which is to impart justice to those who, in the performance of their duty, may incur a disciplinary offense, within a scope that guarantees their rights.
For the development as such of the topic, the need to illustrate the criterion for assessing the substantial illegality of the punishable behaviors committed by the national police officials against the impairment of functional duty in the national doctrine is taken as a point of reference, in order to then then specify the normative framework of said substantial unlawfulness in Colombia in front of the general inspection of the national police, the doctrinal positions on the assessment criteria of substantial wrongfulness and finally establish a position on the assessment criteria of substantial wrongfulness against to the doctrine and behavior of the disciplinary operators of the general inspection of the national police.
A possible response to the problem that is exposed has also been proposed, establishing as hypotheses that there are criteria for evaluating substantial illegality set by the doctrine that have not been unified, consequently different interpretations are presented by the disciplinary operators of the Inspection General of the National Police, showing a lack of uniformity in the assessment of the impact on functional duty.
The general development of this reflection article was used a qualitative approach methodology, because only a documentary analysis was carried out, from which it was started, to interpret the problem presented, which refers to the application of evaluation criteria of the substantial illegality of the functional duty of the members of the national police, also requiring a non-experimental design since only the reality of the facts under study is observed, that is, the interpretation and application of those criteria by the general inspection from that institution,without actually interfering in the possible variables that arise with its development and which is then reflected in the technique that was finally used, this is the doctrinal analysis of the different positions that are held against the assessment of substantial illegality, by the general inspection of the national police.
- REGULATORY FRAMEWORK OF SUBSTANTIAL ILLICIT AND THE GENERAL INSPECTION OF THE NATIONAL POLICE
SUBSTANTIAL ILLICIT
The regulatory framework in which the substantial unlawfulness is developed, arises with the issuance of the Single Disciplinary Code of 2002 and is consolidated with the jurisprudential contributions of the Constitutional Court, State Council and Superior Council of the Judiciary, this from the foundations established in the Political Constitution of 1991.
The norm that currently governs the disciplinary right and therefore the substantial unlawfulness is Law 734 of 2002-Unique Disciplinary Code-, which in its article 5 indicates: "the offense will be unlawful when it affects the functional duty without any justification", but it must be borne in mind that constitutionally the support is created so that one can speak of this substantial illegality.
From the establishment of substantial unlawfulness in Law 734 of 2002, the application of this concept arises for those public servants who have a special disciplinary regime, this because said law is based, such is the case of the National Police that is disciplined by Law 1015 of 2006.
The concept of substantial unlawfulness from the issuance of the Single Disciplinary Code, is the precedent for the issuance of law 1015 of 2006 to speak in the National Police of substantial unlawfulness, based on the experience given in decree 1798 of 2000, Well, despite the fact that some time ago regulations were issued for the control and discipline of the members of that institution, it is only from the aforementioned Code that there is talk of substantial unlawfulness, which is referred to in said Law 1015 of 2006 in the Article 4 that mentions: “substantial illegality. The conduct of the recipient of this law will be contrary to law when it affects the functional duty without any justification ”,being a governing norm and that due to its importance, this substantial affectation must be proven when analyzing the behavior and consequences of the behavior displayed by the members of the National Police.
In accordance with the provisions of the law, substantial illegality is evidenced when functional duty is affected, a concept that will be developed later, making it necessary to indicate at this time its normative support, this is the Political Constitution of 1991:
Article 2: The essential purposes of the State are: to serve the community, promote general prosperity and guarantee the effectiveness of the principles, rights and duties enshrined in the Constitution (…).
Article 6: Individuals are only responsible to the authorities for violating the Constitution and the laws. Public servants are public for the same reason and by omission or excess in the exercise of their functions.
Article 121: No authority of the State may exercise functions other than those attributed to it by the Constitution and the law.
Article 122: No public servant shall enter into office without taking an oath to comply with and defend the Constitution and perform the duties incumbent upon him.
Article 123: (…) Public servants are at the service of the State and the community; they will exercise their functions in the manner provided by the Constitution, the law and the regulations (…).
Article 209: The administrative function is at the service of the general interests and is developed based on the principles of equality, morality, effectiveness, economy, speed, impartiality and publicity, through decentralization, delegation and deconcentration of functions.
The administrative authorities must coordinate their actions for the adequate fulfillment of the purposes of the State. The public administration, in all its orders, will have internal control that will be exercised in the terms established by law.
In addition to the foregoing and in accordance with article 209 of the Political Constitution, article 22 of Law 734 of 2002 called Guarantee of Public Function is established, which says:
The subject to be disciplined, to safeguard public morality, transparency, objectivity, legality, honesty, loyalty, equality, impartiality, promptness, publicity, economy, neutrality, efficacy and efficiency that must be observed in the performance of its employment, position or function, will exercise the rights, will fulfill the duties, will respect the prohibitions and will be subject to the regime of disqualifications, incompatibilities, impediments and conflicts of interest, established in the Political Constitution and in the laws.
Finally, it is necessary to know that substantial unlawfulness is generated when the functional duty is affected, but without any justification, for which the same law is the one that mentions which are those grounds for exclusion of disciplinary responsibility, in article 28 of Law 734 from 2002.
GENERAL INSPECTION OF THE NATIONAL POLICE
The National Police maintains an organized structure to advance the disciplinary processes that are followed against the members of that institution, which is headed by the General Inspection.
In accordance with the provisions of Resolution No. 2047 of 2007 issued by the Director General of the National Police in article 1:
The General Inspection is the agency in charge of fostering and promoting the culture of legality and morality of the Human Talent of the National Police, preventing the commission of conducts considered as disciplinary and criminal offenses, exercising institutional disciplinary control, ensuring the effectiveness of the citizen service systems , strive for respect for Human Rights and International Humanitarian Law, coordinate the activities of Military Criminal Justice and the functions assigned in relation to detention centers.
It is clear then that this agency is in charge of preventing the commission of disciplinary offenses and exercising disciplinary control of the institution, therefore in article 3 of Resolution 2047 of 2007, the following functions of the General Inspection are enshrined, among others:
Coordinate the execution of the institutional policy regarding disciplinary investigation and execution of sanctions in the National Police.
Exercise disciplinary powers in the institution in accordance with the provisions of the legal provisions.
Coordinate with the State control bodies, the support that is required in the exercise of their functions and that are related to the internal disciplinary control of the uniformed personnel of the National Police.
Exercise vigilance, control and monitoring of the disciplinary actions carried out against the uniformed personnel of the institution.
The General Inspection to fulfill these disciplinary functions is organized as follows:
General inspection
Disciplinary Investigations Technical Group
Disciplinary Processes Group of 1st Instance
Second Instance Disciplinary Process Group
Deconcentrated Units
- Regional and Special Delegated Inspections
Disciplinary Processes of the 1st Regional Instance
Disciplinary Processes of 2nd Regional Instance
Regional Monitoring and Control
- Internal Disciplinary Control Offices
DOCTRINAL FRAMEWORK OF SUBSTANTIAL ILLICIT
CONCEPT OF SUBSTANTIAL ILLICIT.
Several writers have written and built their own concept of Substantial Illicit, one of them is Sánchez (2012) who mentions:
The single Colombian disciplinary Code is not a blind instrument of obedience, but rather that statute responds to five material criteria that give true meaning and meaning to the concept of substantial unlawfulness.They are: i) the idea of developing a dogmatic of disciplinary law ii) the model of Social and Democratic State of Law; iii) in matters of disciplinary law, an unjust staff dominates; iv) the ethical foundation must be put into practice, v) the modulators of disciplinary action (p.137).
Analyzing that dogmatics being the one that makes possible the birth and development of disciplinary law cannot be neutral but must take into account the axiological aspect, also discarding concepts such as material unfairness and giving way to substantial illegality as such, which It is related to the parameters of the Social State of Law, since fundamental rights must be made effective, respecting the principle of the prevalence of the substantial over the formal, supported by the latter in Article 20 of Law 734 of 2002, as Disciplinary responsibility is based on the conduct that effectively violates the interests or protected values aimed at affecting the public function and its principles.
For there to be substantial unlawfulness, the subject to be disciplined must be aware of his commitment to the purposes of the State and the principles of the public function, making an analysis of the conception that handles that subject of what values and principles are, and verify if the breach of its duty is supported by the principles of necessity, adequacy, proportionality and reasonableness.
Finally, it states that the substantial unlawfulness is typical of disciplinary law and refers to that study against the breach of functional duty that substantially affects the purposes of the State and the principles of the public function, which is supported by Law 734 of 2002 and of course in the Political Constitution of 1991.
In this same sense, it has been said that Substantial Unlawfulness is a term proper to Disciplinary Law, according to Gómez (2007) “it cannot be understood as a mere contradiction of the conduct with the norm, because it would be understood as the infringement of duty by duty itself ”. (p. 277).
Likewise, Gómez (2007) says that:
The disciplinary illegal that is reflected in the substantial wrongdoing, cannot occur with the formal breach, but rather a substantial breach of duty is required, which is evidenced when the reason for that duty is unknown in a Social and Democratic State of Law, For this reason, when it is verified that a duty was violated but that its functionality has not been affected, the conduct is apparently illegal (p. 285).
In turn, Gómez (2012) structures Illicit in two judgments, these are: Deontological Judgment, understood deontics as the judgment of the duty to be, this judgment refers to the fact that disciplinary law through norms seeks to channel the conduct of subjects subject to discipline. through guidelines of conduct, understanding then that the Deontological judgment is fulfilled when disobeying this rule is incurred; and the axiological judgment which makes reference to the fact that in addition to the observance of the norm, the functional duty must be assisted by the principles, values and fundamental rights as basic premises since these are the matter from which the duties emanate, having constitutional support.
Indicating that both trials are required inasmuch as if only the rule is attended to, the principle of the prevalence of the substantial over the formal is violated.
Finally, Ordoñez (2009) analyzes the approach that should be given to substantial unlawfulness, describing that it cannot be understood as formal unlawfulness as follows:
(…) Even when the conduct fits into the typical description, but such behavior corresponds to a mere formal violation of the legal norm, this cannot be subject to the imposition of a disciplinary sanction, since an understanding in such conditions, it would become an objective responsibility, when sanctioning measures are applied to the individual, without there being a true and just reason for being (p.10.11).
But, in turn, he affirms that it cannot be seen as material unlawfulness either, noting that:
The disciplinary offense does not require for its configuration the production of a result consisting of the injury or interference of legal rights, since it is enough that the behavior works contrary to the functional duties required of the disciplined, in such a way that the production of a result it becomes an objective factor to dose the disciplinary sanction and not the structuring of the offense (Ordoñez 2009, p.11).
Indicating that "Substantial Unlawfulness must be understood as the substantial impairment of functional duties, as the principles that govern the public function are contradicted" (Ordoñez 2009, p.11).
And also that:
The substantiality of the unlawfulness will be determined when it is proven that the enforceable duties of the disciplined have been set aside and when said non-compliance works contrary to the principles that govern the public function, understood as the substantial unlawfulness of the behavior ”(Ordoñez 2009, p.13).
Regarding the management of substantial unlawfulness in the National Police, it must be remembered that Law 1015 of 2006 implemented the Concept of substantial unlawfulness based on the parameters given by Law 734 of 2002 and has been building its position in accordance with that has been studied in a general way and taking what is appropriate to your particular case.
Therefore, the National Police-General Directorate-Planning Office (2011) establishes that:
Substantial unlawfulness is undoubtedly the performance of a conduct contrary to law (formal unlawfulness) by a public servant, as a consequence of the breach of his functional duty without any justification and capable of affecting the public function; which makes it appropriate to impose a disciplinary sanction against any of the behaviors and behaviors foreseen as a disciplinary offense, either in the special regime for the National Police of Colombia and / or in the Single Disciplinary Code (p.19)
Being clear that the Substantial Illicit is presented whenever there is a functional duty breached by a disciplined subject that generates as a consequence the affectation to the purposes of the State and / or the principles of the Public Function, which is why it is necessary conceptualize that functional duty.
FUNCTIONAL DUTY
As established by Gómez (2007):
The duties imposed by reason of their position are solely and exclusively functional in nature.
Obtaining a behavior in accordance with the social function of the public servant, the disciplined individual and the professional whose profession is intervened is achieved through the imposition of duties. (…) The duties that the public function imposes on the worker at the service of the State are derived from the purposes that the laws establish to carry out the public good. (p 235).
Historically, it has been demonstrated that “the instrument or guideline by means of which, as a formula of parameters, the behavior of public servants and professionals is channeled is duty” (Gómez 2007, p.236).
Sánchez (2012), states that it should be understood as:
Constitutional, legal or regulatory burdens or requirements imposed by reason of the exercise of the public function, conditioned to their imperative fulfillment, limiting the freedom to act by virtue of subordination to the State, determining how to act, to what extent it is prohibited and the repressive effects of its substantial non-observance, that is, its non-compliance without any justification generates disciplinary responsibility (p. 64).
On the other hand, Ordoñez (2009) expresses that the functional duty has legal support in article 113, 123 of the Political Constitution, articles 5 and 23 of law 734 of 2002; in the same way express that the functional duty is:
A harmonious combination of missionary and legal elements that make it possible to fulfill the purposes of the State, since the functions of the state agent are in a relationship of means to end with respect to the same objectives of the State. The expectations of the citizens in relation to the State can only be crystallized through the fulfillment of the functions of its servants, so that the ends of that constitute at the same time the purpose of the functions of those. (p.15).
Likewise, it says that "functional duty includes the public burden imposed on those who perform state functions within the framework of the so-called" Special Relations of Subjection "that govern them in order to achieve the aforementioned purposes" (Ordonez 2009 p. 16).
Understanding the special relations of subjection as that special bond that certain people have for being an integral part of the State apparatus fulfilling its own functions, in which they are under the direction and surveillance of the State, and that has a certain task entrusted to it.
Regarding the functional duty in the National Police, the National Police-General Directorate-Planning Office (2011) establishes:
Functional duty in the Colombian National Police is nothing other than the fulfillment of the institutional mission imposed by the Political Constitution of Colombia, which in turn guides the police activity carried out by the men and women who make up the institution, in accordance with the public functions indicated in the law and / or regulations among others, that allow the development of the entrusted mission (p.48).
Due to the nature of its members, discipline in the National Police is an essential and indispensable element for the proper functioning of that institution, which must be present at all times and even more so in the exercise of its functions, so in the Articles 25, 26 and 27 of Law 1015 of 2006 establish the scope, importance, maintenance and means of channeling this discipline.
In this regard, the Constitutional Court in Sentence C-819 of 2006:
(….) Thus, in terms of its nature, the Constitutional Court has established that disciplinary law is an essential branch to the functioning of the State “aimed at regulating the disciplinary behavior of its personnel, setting the duties and obligations of those who comprise it, the offenses, the corresponding sanctions and the procedures to apply them.
Regarding the areas it includes, it has indicated that the sanctioning power attached to the State legitimizes it to: (i) typify, through the legislator, the disciplinary offenses that may be incurred by public servants, their degree of intensity and the corresponding sanctions, and (ii) establish the set of procedural regulatory statements that regulate the constitutional authority granted to the public administration to impose sanctions on all servants who, with their actions or omissions, violate the rules of conduct related to the proper performance of functions assigned.
Regarding its purposes, this Corporation has highlighted that disciplinary law was structured in order to ensure the minimum conditions inherent to official activity, which are essential for the efficient handling of matters in charge of the State. This reason is what justifies its existence within the legal system; Thus, its consecration within a system of rules is an imperative to ensure, on the one hand, the fulfillment of the aims of the state political organization through the exercise of a public function that responds to the principles of equality, morality, efficiency, economy, promptness, impartiality and publicity; and on the other hand, to ensure that public servants in the exercise of their functions respond to the concept of citizen compliant with their legal obligations and therefore,do not harm the public image of the State.
Those minimum conditions inherent to official activity, whose safeguarding the disciplinary law is oriented, are obedience, discipline, rectitude and efficiency of public servants. It is precisely in the performance of the aforementioned purposes that the basis for disciplinary responsibility is found, which implies the non-observance of the functional duties of public servants or individuals who exercise public functions, in the terms provided in the Constitution, laws and regulations that are applicable. The breach of functional duty as a requirement for the structuring of the disciplinary offense has been highlighted as follows by jurisprudence:
The non-observance - by action or by omission - of positive norms, as a structural element of the infraction of functional duty, has been highlighted by this Corporation by pointing out that the disciplinary law is "composed of all those norms by which the servants are required to public a certain behavior in the exercise of their functions, regardless of the body or branch to which they belong. The foregoing occurs because all public servants must strive for the achievement of the main objective for which they were appointed, that is, to serve the State and the community in general in strict accordance with the provisions of the Constitution, the law and the regulations (CP Arts. 6 and 122). Hence, any official of the State,may be subject to a process of public responsibility of a disciplinary nature, not only when in its performance it violates the superior and legal order in force, but also when it incurs in omission or excess in the exercise of its functions (CP art. 6 ° and 123) (….) ”.
Thus, and when observing the jurisprudential guidelines of the Constitutional Court, the functional duty as indicated at the beginning of this writing, in any case must jeopardize the good performance of the public administration, in terms of its effectiveness, efficiency, morality, and smooth running of the function.
Regarding the National Police, it is necessary that such behaviors must affect the purposes of the police activity, which is aimed at the fact that the disciplinary offense can be configured when the public servant at the service of the Institution is involved in the commission of any conduct described in the law as a crime or contravention, but it must be analyzed within the conduct displayed by the institutional, that behavioral nexus and the violation of the entrusted function, so that in this way a police officer can be investigated and eventually punished for this type of behaviors, since such constitutional conditions occurred regarding the fact that said behaviors must affect the purposes of police activity, purposes that are none other than the protection of all persons residing in Colombia, in their lives,honor, property, beliefs, and other rights and freedoms, thus ensuring compliance with the social duties of the State and individuals, for the maintenance of the necessary conditions in this regulated exercise of public rights and freedoms, for a peaceful coexistence.
IMPORTANCE OF SUBSTANTIAL ILLICIT
The orientation and the meaning that should be given to the concept of substantial illegality is important, because in Disciplinary Law it is the specific topic of discussion, in terms of its content, foundation and interpretation.
Substantial illegality is one that grants autonomy to Disciplinary Law, since it is only analyzed and has to do with the functional duty that each Public Servant or individual who performs public functions, for the specific case, is the members of the National Police.
The relevance of the concept lies in the different points of view that are held, since it is assumed that there are doctrinants who from their criminal thinking do not separate the substantial illegality of the Unlawfulness that is handled in criminal law generating analyzes that tend to confuse the essence of disciplinary law.
Not to mention that Substantial Unlawfulness is a guiding criterion and therefore it is necessary that there be clarity when applying it because it is the basis from which it starts to impose the respective sanction according to the case.
CONSEQUENCES THAT HAVE BEEN GENERATED WITH THE APPLICATION OF SUBSTANTIAL ILLICIT IN THE NATIONAL POLICE.
The disciplinary norm establishes Substantial Unlawfulness as an impairment of functional duty without any justification, as mentioned above is established in articles 5 of Law 734 of 2002 as: “Substantial Unlawfulness. The offense will be unlawful when it affects the functional duty without any justification ”and article 4 of Law 1015 of 2006“ Substantial Unlawfulness. The conduct of the recipient of this law will be contrary to law when it affects the functional duty without any justification ”.
In this sense, the debate is based on the fact that the behavior displayed by the public servant must in any case affect that functional duty that relates him to the State and that for the public servant attached to the National Police, is established in paragraph 2 of article 2; Article 6 and Article 218 of the Political Constitution, and regarding the functions that it develops for the National Police in Article 19 of Law 62 of 1993, which then conceives the configuration of the unjust disciplinary when the institutional one affects that entrusted function, as be it by action, omission or excess in the exercise of its functions.
Hence, by not clearly establishing that affectation to the public function, consequences may be generated that eventually trigger administrative claims, with a view to reestablishing rights that were omitted by the Disciplinary Operators.
For its part, and with a view to preventing negative results from being evidenced, the Constitutional Court in judgment C-948 of 2002 ”has stated:
The foregoing, in harmony with article 5 of Law 734 of 2002 and 4 of Law 1015 of 2006, already stated, lead us to clearly understand that a public servant must respond in a disciplinary way, by substantially violating the law with his behavior. functional duty, that is, by exceeding the exercise of their rights and functions, incurring prohibitions, or violating with their conduct the regime of disabilities, incompatibilities, impediments and conflicts of interest, without this type of fault being protected by any of the causes provided in article 28 of Law 734 of 2002.
In this sense, the different disciplinary offenses configured by the Legislator in order to channel and guarantee an effective service by the public servants attached to the National Police, must observe the limit of internment in their intimate and private orbit, In order not to violate rights and constitutional guarantees that are also inherent to these as joint associates of the State, such that the Constitutional Court in review of some faults declared numerals 10 of article 34 (very serious) and 18 of article 35 (serious) enforceable of Law 1015 of 2006, providing that these offenses would only be applicable to the National Police servants, if in any case they affected the purposes of the police activity, that is,It is up to the Disciplinary Operators to determine whether the conduct is unlawful when analyzing the factual situation, with respect to the commission of crimes or contraventions, that have entailed that impact on the public function - purposes of the police activity; Well, if the connection between criminal or misdemeanor conduct with the impairment of public function is not found within this type of behavior, no type of disciplinary reproach would definitely be called upon to prosper.Well, if the connection between criminal or misdemeanor conduct with the impairment of public function is not found within this type of behavior, no type of disciplinary reproach would definitely be called upon to prosper.Well, if the connection between criminal or misdemeanor conduct with the impairment of public function is not found within this type of behavior, no type of disciplinary reproach would definitely be called upon to prosper.
In this, there are innumerable dramatic consequences for the application of substantial unlawfulness since different modes of interpretation are established in the dynamics of the disciplinary operator, both jurisprudential and doctrinal.
In the case of the General Inspectorate, there is a decentralization due to competition factors at the national level, thereby extending its national scope and, why not say, international with the institutions that are abroad performing functional tasks as members of the National Police, (regional inspections and Disciplinary Control Offices) who, in their procedural moment, conceive the application of the disciplinary norm according to the Disciplinary conviction and the free interpretation of the auxiliary criteria of the judicial activity (art 230 c.pol), a situation that is denoted in the disciplinary rulings.
That is why disciplinary activity leads disciplinary judges to commit errors in interpretation, even when they are valued in the environment of the highest competent administrative, contentious-administrative judges who must come to resolve the true affectation of the behavior carried out by the investigated, when these criteria of interpretation should exist from the first instance ruling.
Then, the generality in the face of a consequence is administrative, judicial wear, due to the application of the constitutional empire, preserving the application of the primary rule which is mandatory, it is with this that the different disciplinary judges leave a tasteless against the behaviors carried out by institutions, the following example may be considered: the analysis of the norm regarding the criminal behavior carried out by a police officer in the streets of San Andrés could lead to a drastic sanction such as the dismissal of the uniformed person due to the interpretation given by the disciplinary judge, same census in the case in which it was committed in the department of Cundinamarca who would apply a suspension of 6 months, giving a sanction in the legal sphere of the non-application of principles,more when the norm conceives the flexibility of these principles as badly established by the doctrine in the face of the application of Disciplinary Law, which is already seen as a sanctioning right that enjoys the same substantial and procedural guarantees as the criminal, civil, administrative jurisdiction, etc..
In the same consequential line, the enormous patrimonial detriment of the State and the impunity that lead not only to the legal instability of one of the largest institutions in Colombia, but also to the enormous social consequences of having to reinstate a police officer due to poor enforcement. disciplinary justice.
Thus, the consequences that are generated with the lack of clarity in the criteria for applying the disciplinary norm are established and that are known but to which the required importance has not been given because, as stated, is the stability of an institution that has as an essential purpose, social security and the protection of the population governed by its discipline and exemplary behavior in the performance of its duty.
Duty that is classified as functional without intervening in the personal orbit of the men and women who carry out their work in the National Police, although with the lack of clarity, unfortunately, you can run the risk of exceeding the framework of the work orbit like many Sometimes it is abruptly done by disciplinary operators in order to channel a functional discipline but which results in the reproach of social behavior.
UTILITY GENERATED BY THE ESTABLISHMENT OF CLEAR CRITERIA TO ASSESS SUBSTANTIAL ILLICIT IN THE NATIONAL POLICE.
The establishment of clear evaluation criteria, brings as utility the correct application of justice on the part of the disciplinary judges and with it the protection of the national budget supplied for the citizen security in demands before the contentious administrative and direct revocations for the violation of principles by the incorrect interpretation of the substantial illegality mechanisms that within legal rationality could be based on the unification of jurisprudence, as an instrument that enables legal certainty and interpretive equality, which can have one of two purposes: to guide the operators who must interpret or apply the rule -the auxiliary utility criterion-, or the imposition of an interpretation -binding utility criterion-.That which is printed in the procedural mechanisms intended to unify, will determine the prominence of jurisprudence within the system of sources. Given the terrible hermeneutical possibility offered by disciplinary law and even more so by Law 1015 of 2006 regarding sanctions, taking into account the applicability of apertus numbers and normative remission, it would allow us to exterminate the uncertainty that could continue to reign.
- ANALYSIS OF THE CRITERIA FOR THE VALUATION OF SUBSTANCAL ILLICITNESS
HOW SUBSTANTIAL ILLICIT HAS BEEN HANDLED BY THE GENERAL INSPECTION OF THE NATIONAL POLICE.
According to what is referenced by the National Police - General Directorate - Planning Office (2011), the management of substantial wrongdoing is established as follows:
In the handling of substantial unlawfulness by the General Inspectorate of the National Police, interpretations are presented that are brought from criminal law with regard to formal and / or material unlawfulness, concepts that are intended to be confused with that of unlawfulness substantial in disciplinary matters, but that the Constitutional Court in judgment C-948 of 2002 clearly differentiated by making relation to the differences and independence between criminal and disciplinary law, maintaining the term of substantial unlawfulness as an autonomous expression of disciplinary law (p.18).
It is then established by the General Inspection that said substantial unlawfulness are the conditions that the authority with disciplinary powers must take into account, when imposing a disciplinary reproach against the breach of the functional duty, taking into account that the conduct:
- Has no justification, and Is capable of affecting the public function
In the first case, despite the fact that a conduct may be contrary to the law as a consequence of the breach of functional duty by a public servant (formal unlawfulness), it is not possible to impose any disciplinary sanction, as there is no substantial illegality in it, due to because there is a cause of justification.
When one speaks of a cause of justification, it is related to the causes of Exclusion of responsibility contemplated in article 28 of Law 734 of 2002 "Unique Disciplinary Code"; Therefore, even if the conduct is contrary to the law as a consequence of the breach of the functional duty, there is no substantial unlawfulness in it, therefore, there can be no disciplinary reproach when presenting a cause of justification in the breach of duty functional by the public servant.
Now, in the second event so that the conduct contrary to the law as a consequence of the breach of the functional duty without any justification, deserves disciplinary reproach, it is required that said conduct be capable of affecting the public function, without being confused with that said affectation corresponds to the requirement of a result as occurs in criminal law with material unlawfulness; because what this condition " capable of affecting the public function " is related to is simply what is established in Article 22 of Law 734 of 2002 "Unique Disciplinary Code" which states:
That is, once the public servant fails to fulfill his functional duty without any justification according to his employment, position or function respectively, the authority with disciplinary powers within the investigation must determine which of the cited principles that govern the public function were unknown with conduct contrary to law, thus affecting the proper fulfillment of the purposes of the State.
An example that allows us to understand in a broader way in which events there is an unlawful conduct as a result of the breach of functional duty without any justification on the part of a public servant, but, even so, it does not deserve any disciplinary reproach, As they have not affected the public function, they are those behaviors of less importance and that today in the National Police of Colombia are handled through the preventive means indicated in article 27 of Law 1015 of 2006 “Disciplinary Regime for the National Police from Colombia"; that serve to guide the behavior of the members of the police institution and likewise, deter those behaviors that do not transcend or affect the public function (p.19,20,21).
The foregoing is what is stated by the highest body of Disciplinary control of the National Police, the General Inspection, giving the parameters of jurisprudential and doctrinal interpretation about the scope of substantial unlawfulness, but does not give the disciplinary operator the criteria for measuring the impact to functional duty, avoiding adequately assessing substantial unlawfulness as a determining factor to impose sanctions,Leaving aside the principles of equality and due process in the understanding that a disciplinary operator can see in the same conduct a greater impact on functional duty than another operator who sanctions the same conduct since they do not have a well-defined criterion on the matter for that reason The limits of the application of material and / or formal unlawfulness in disciplinary matters should be analyzed more rigorously, especially of the types contracted by law 1015 of 2006.
PERSONAL OPINION ON THE APPLICATION OF CRITERIA TO BE TAKEN INTO ACCOUNT WHEN DETERMINING SUBSTANTIAL ILLEGAL IN THE NATIONAL POLICE.
The General Inspection of the National Police must adopt mechanisms such as the unification of jurisprudence to prevent violations of constitutional principles that lead to the misapplication of labor and administrative justice, also generating a better performance in Disciplinary law taking into account It takes into account the correct concept of substantial unlawfulness as a determining factor of the affectation of functional duty and taking as a starting point the parameters established by the doctrine and jurisprudence on the subject in order to protect the institution and the purposes of the State.
CONCLUSIONS
- Substantial illegality has a fundamental basis to be developed, from the 1991 Political Constitution, specific norms were created that allow the disciplinary operator to act under the protection of the legal system and in turn make the essential purposes of the rule of law and principles of the public function are materialized through the proper and proper exercise of the functions entrusted to each public servant Substantial illegality as a factor in determining that the conduct of the public or private servant who performs public functions is worthy of a disciplinary sanction, indicates that the norm must have been unknown and the purposes of the Social State of Law and the principles of the public function must have been affected.Functional duty as a fundamental axis in State-public servant relations must be aimed at fulfilling the purposes of the State and principles of public function, based on the 1991 Political Constitution, which should be the basis for good behavior. of the members of any institution The lack of clear criteria for the assessment of substantial illegality results in the ignorance of principles such as legal certainty and the wear and tear of the administration of justice, due to errors in the interpretation of the member's behavior institutional face to the true substantial affectation of the aims of the State and its principles, unleashing in turn inconsistencies in the dosage of the sanction.The General Inspectorate, as the highest disciplinary authority in the National Police, does not have clear parameters to determine the degree of affectation to state purposes and principles with the conduct displayed by members of the National Police, preventing substantial wrongdoing from being adequately assessed. The jurisprudential and doctrinal unification of criteria for evaluating Substantial Illicit versus functional duty would allow a better handling and development of investigations and disciplinary sentences to be imposed by the disciplinary operator of the National Police, bringing fair sanctions and legal security for the members. of the institution.preventing substantial wrongfulness from being adequately assessed The jurisprudential and doctrinal unification of criteria for evaluating Substantial wrongdoing versus functional duty would allow better management and development of investigations and disciplinary sentences to be imposed by the disciplinary operator of the National Police, bringing fair sanctions and legal security for the members of the institution.preventing substantial wrongfulness from being adequately assessed The jurisprudential and doctrinal unification of criteria for evaluating Substantial wrongdoing versus functional duty would allow better management and development of investigations and disciplinary sentences to be imposed by the disciplinary operator of the National Police, bringing fair sanctions and legal security for the members of the institution.
BIBLIOGRAPHY
- Political Constitution of Colombia (1991). Ediciones Leyer. Law 734 (2002), Unique Disciplinary Code. Ediciones Leyer. Law 1015 (2006), Disciplinary Regime for the National Police. Ediciones Leyer.Gómez, PCA (2007). Dogmatics of disciplinary law (5th ed). Colombia: Universidad Externado de Colombia.Gómez, PCA (2012). Fundamentals of Colombian Disciplinary Law (1st ed). Colombia: Colombian Institute of Procedural Law and new legal editions. Sánchez, HEM (2012). Probable Dogmatic of Disciplinary Law (3rd ed). Colombia: new legal editions, National Police of Colombia (2011). Jurisprudence and doctrine for the Disciplinary regime of the National Police. Colombia: National Printing Office of Colombia, National Police of Colombia (2010). Historical book General Inspection. Colombia: National printing company of Colombia.Institute of studies of the Public Ministry (2006). Lessons in Disciplinary Law volume I. Colombia: Imprenta Nacional de Colombia.Ordoñez MA (2009). Disciplinary Justice from the substantial wrongfulness to the substantial wrongfulness. Colombia: Mejía OJ Roa SDA (2011). The special relations of subjection (1st ed). Colombia: legal issues axel.Brito RF (2008) evidence in the disciplinary process (1st ed.) Colombia: legal issues axel.Duarte ACA (2009) verbal procedure in disciplinary law. Colombia: legal editions axel.The special relations of subjection (1st ed). Colombia: legal issues axel.Brito RF (2008) evidence in the disciplinary process (1st ed.) Colombia: legal issues axel.Duarte ACA (2009) verbal procedure in disciplinary law. Colombia: legal editions axel.The special relations of subjection (1st ed). Colombia: legal issues axel.Brito RF (2008) evidence in the disciplinary process (1st ed.) Colombia: legal issues axel.Duarte ACA (2009) verbal procedure in disciplinary law. Colombia: legal editions axel.
MP Jaime Córdoba Triviño
MP Álvaro Tafur Galvis.
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