Colombia 1991 Constitution (reviewed 2015)

TITLE VIII. On the Judicial Branch

Chapter I. General Provisions

Article 228

The administration of justice is a public function. Its decisions are independent. Its proceedings shall be public and permanent with the exceptions established by statute, and substantive law shall prevail in them. Legal limits shall be diligently observed and failure to apply them shall be sanctioned. The functioning of the judiciary shall be decentralized and autonomous.

Article 229

The right of any individual to have access to the administration of justice is guaranteed. An Act shall stipulate in which cases this may be done without the representation of counsel.

Article 230

In their decisions, the judges are bound exclusively by the rule of law.

Fairness, jurisprudence, and the general principles of law and doctrine are the auxiliary criteria of judicial proceedings.

Article 231

The Magistrates of the Supreme Court of Justice and the Council of State will be elected with their respective body, with prior public call, from a list of ten eligible people sent by the Judicial Government Council after a public call was made according to the law and by the Administration of the Judicial Branch.

In the set of selection processes for the Magistrate of the Supreme Court of Justice and the Council of State the equilibrium criteria will be followed among those people that come from professional practice, from the Judicial Branch, and from academia.

The Supreme Court of Justice and the Council of State will determine the voting formula and the time period in which they should elect the Magistrates that form part of that body.

Article 232

In order to be a judge of the Constitutional Court, the Supreme Court of Justice, or the Council of State, the following requirements must be met:

1. To be Colombian by birth and a citizen in good standing.
2. To be a lawyer.
3. Not to have been charged by a court sentence to imprisonment, except for political or similar crimes.
4. Having worked, during fifteen years, in positions within the Judicial Branch or the Public Ministry, or having exercised, with good record, during the same period, the profession of attorney or an academic position in a university in judicial disciplines in officially known institutions. For the rank of Magistrates of the Supreme Court of Justice and the Council of State, the academic position in the university should be in a judicial discipline related with the area of expertise of the Magistrate office.

Paragraph

In order to be a judge of these courts it shall not be necessary to be engaged in a legal career.

Article 233

The judges of the Constitutional Court, the Supreme Court of Justice, and of the Council of State shall be elected for a period of eight years. They cannot be re-elected and shall remain in office as long as they display good behavior, perform satisfactorily and have not reached the age of mandatory retirement.

Chapter II. On Ordinary Jurisdiction

Article 234

The Supreme Court of Justice is the highest court of ordinary jurisdiction and shall comprise an uneven number of judges determined by an Act. The latter shall divide the Court into Houses, shall assign to each of them the matters that it has to take cognizance of separately, and determine those matters that must be heard by the entire bench.

Article 235

The Supreme Court of Justice has the following powers:

1. To act as a court of cassation.
2. To judge the President of the Republic or whoever replaces him/her and the senior officials covered by Article 174 for any punishable deed imputed to them, in accordance with Article 175, paragraphs 2 and 3.
3. To investigate and try members of the Congress.
4. Judge, with prior indictment from the Attorney General of the Nation, the Deputy Attorney General of the Nation, or its delegates from district attorney units before the Supreme Court of Justice, the Vice President of the Republic, the Ministers of the Cabinet, the General Prosecutor of the Nation, the Ombudsman, the agents of the Public Ministry before the Court, and the Council of State and before the tribunals; the Directors of the Administrative Departments, the Controller General of the Republic, the Ambassadors and the Chiefs of Diplomatic or Consular Missions, the Governors, the Magistrate of Tribunals, and the Generals and Admirals of the Public Force, for punishable acts that are imputed.
5. To take cognizance of all contentious issues of diplomatic personnel accredited before the national government in cases provided by international law.
6. To draft its own rules of procedure.
7. To exercise other powers stipulated by an Act.

Paragraph

When the officials mentioned above have ceased holding office, these provisions shall apply only for punishable offenses related to the functions that they used to exercise.

Chapter III. On Contentious Administrative Jurisdiction

Article 236

The Council of State shall be composed of an uneven number of judges determined by statute. The Council shall be broken down into Houses and sections to separate its jurisdictional functions from the others assigned to it by the Constitution and the statute.

An Act shall stipulate the functions of each of the Houses and sections, the number of judges that comprises them, and their internal organization.

Article 237

The powers of the Council of State are as follows:

1. To exercise the functions of supreme contentious administrative court in accordance with the rules stipulated by an Act.
2. To take cognizance of invalid decrees issued by the national government and held unconstitutional by the Constitutional Court.
3. To act as the supreme consultative body of the government in matters of administration, whose opinion must mandatorily be heard in all cases determined by the Constitution and the statutes.In cases of the transit of foreign troops across Colombia’s national territory, the stationing or transit of foreign warships or aircraft in the waters or territory or airspace of the nation, the government must first seek the opinion of the Council of State.
4. To prepare and present proposals amending the Constitution and other bills.
5. To take cognizance of cases regarding the loss of the investiture of congressmen in accordance with the Constitution and statute.
6. To draft its own rules of procedure and exercise other functions determined by an Act.
7. To rule on petitions for the annulment of elections subject to the rules of competence established by statute.

Transitional Paragraph

It is a condition for the admissibility of electoral disputes directed against the act of popular election which are based on causes for annulment due to irregularities in the voting process and the counting of the votes before the administrative jurisdiction that they are submitted to the review of the competent administrative authority headed by the National Election Commission before the proclamation of the election results

Article 238

The jurisdiction of the contentious administrative apparatus may temporarily be suspended for the causes, and following the requirements, established by statute because of the effects of administrative measures that may be subject to challenge by the judiciary.

Chapter IV. On Constitutional Jurisdiction

Article 239

The Constitutional Court shall be composed of an uneven number of members determined by statute. The makeup of the court shall take into account the need to select judges belonging to various specialised jurisdictions.

The judges of the Constitutional Court shall be elected by the Senate of the Republic for single terms of eight years from lists presented to it by the President of the Republic, the Supreme Court of Justice, and the Council of State.

The judges of the Constitutional Court are not eligible for reelection.

Article 240

Those who, during the year previous to the election, had exercised the functions of Cabinet minister or judges of the Supreme Court of Justice or of the Council of State are not eligible for election.

Article 241

The safeguarding of the integrity and supremacy of the Constitution is entrusted to the Constitutional Court in the strict and precise terms of this article. For such a purpose, it shall fulfill the following functions:

1. Decide on the petitions of unconstitutionality brought by citizens against measures amending the Constitution, no matter what their origin, exclusively for errors of procedure in their formation.
2. Decide, prior to a popular expression of opinion, on the constitutionality of the call for a referendum or a constituent assembly to amend the Constitution, exclusively for errors of procedure in their formation.
3. Decide on the constitutionality of referendums about laws and popular consultations and plebiscites of a national scope, in case of these last ones exclusively for errors of procedure in their convocation and implementation.
4. Decide on the petitions of unconstitutionality brought by citizens against statutes, both for their substantive content as well as for errors of procedure in their formation.
5. Decide on the petitions of unconstitutionality brought by citizens against decrees with the force of law issued by the government on the basis of Article 150, numeral 10, and Article 341 of the Constitution for their substantive content as well as for errors of procedure in their formation.
6. Decide on the exceptions provided for in Article 137 of the Constitution.
7. Decide definitively on the constitutionality of the legislative decrees issued by the government on the basis of Articles 212, 213, and 215 of the Constitution.
8. Decide definitively on the constitutionality of the bills opposed by the government as unconstitutional and of proposed statutory bills, both on account of their substantive content as well as for errors of procedure in their formation.
9. Revise, in the form determined by statute, the judicial decisions connected with the protection of constitutional rights.
10. To take a final decision on the execution of international treaties and the statutes approving them. To this end, the government shall submit them to the Court within six days following the adoption of the ratifying statute. Any citizen may intervene to defend or challenge their constitutionality. Should the Court declare them constitutional, the government may proceed to the exchange of notes; in the contrary case they shall not be ratified. When one or several provisions of a multilateral treaty are declared unenforceable by the Constitutional Court, the President of the Republic may declare consent, formulating the pertinent reservation.
11. Resolve the conflicts and competences that occur between the different jurisdictions.
12. Enact its own regulations.

Paragraph

When the Court finds an amendable error in the procedures of formation subject to its control, it shall order their return to the authority which issued them so that, if possible, that authority should correct the observed flaw. Once the error is corrected, it shall proceed to decide on the validity of the measure.

Article 242

The processes promoted before the Constitutional Court in the matters referred to on this score shall be regulated by an Act in accordance with the following provisions:

1. Any citizen may implement the public actions provided in the preceding Article and intervene as challenger or defender of the provisions submitted to control in processes promoted by others as well as in those cases where no public action has occurred.
2. The General Prosecutor of the Nation shall intervene in all the processes.
3. Actions to correct errors in form lapse within a year starting from the publication of the said act.
4. Ordinarily, the Court shall have 60 days to decide, and the General Prosecutor of the Nation 30 days within which to give his/her opinion.
5. In the processes referred to in numeral 7 of the previous Article, the ordinary deadlines shall be reduced to a third and the missing of the deadline shall constitute cause for a misdemeanor to be sanctioned according to statute.

Article 243

The decisions of the Court while exercising legal checks bars double jeopardy.

No authority may reproduce the substance of a juridical measure declared invalid for fundamental reasons while the provisions that served to challenge the ordinary provision and the Constitution remain.

Article 244

The Constitutional Court shall notify the President of the Republic or the President of Congress, depending on the case, of the initiation of any process seeking to examine the constitutionality of provisions stipulated by them, respectively. Such notification shall not delay the deadlines of the process.

Article 245

The government may not provide employment to the judges of the Constitutional Court during the period that they exercise their function or in the year following their retirement.

Chapter V. On Special Jurisdictions

Article 246

The authorities of the indigenous [Indian] peoples may exercise their jurisdictional functions within their territorial jurisdiction in accordance with their own laws and procedures as long as these are not contrary to the Constitution and the laws of the Republic. An Act shall establish the forms of coordination of this special jurisdiction with the national judicial system.

Article 247

An Act may create justices of the peace entrusted with the equitable resolution of individual and community conflicts. It may also order that they be popularly elected.

Article 248

Only sentences handed down definitively in judicial trials qualify as a criminal record or a violation in all legal matters.

Chapter VI. On the Office of Attorney General of the Nation

Article 249

The Office of the Attorney General of the Nation shall consist of the Attorney General, his/her assistant attorneys, and other officials as determined by an Act.

The Attorney General of the Nation shall be elected for a period of four years by the Supreme Court of Justice from a list originating with the President of the Republic and is not eligible for re-election. The candidate shall have the same qualities required for a judge of the Supreme Court of Justice.

The Office of the Attorney General of the Nation is part of the judicial branch and shall have administrative and budgetary autonomy.

Article 250

It is the responsibility of the Office of the Attorney General of the Nation, in the discharge of its duties or following a denunciation, special petition or dispute, to bring criminal charges and to conduct the investigation of the facts which may constitute offenses, if there are sufficient reasons to assume the commission of an offense. Excepted are the crimes committed by members of the public force in active service and related to the same service. For such a purpose, the Office of the Attorney General of the Nation shall do the following:

1. To request the judge responsible for the control of [the constitutional] guarantees to take the measures which ensure the appearance of the presumptive offenders of the penal law at the trial, the conservation of evidence and the protection of the community, and in particular of the victims.The judge responsible for the guarantees may be in no case the judge competent to try the matter.

   Exceptionally, an Act may authorize the Office of Attorney General of the Nation to carry out administrative detentions. In these cases, the judge responsible for respect of the guarantees exercises his/her control within thirty-six (36) hours following the detention at the latest.

2. To conduct searches, house visits, seizures and interceptions of communications. In such cases, the judge responsible for the control of guarantees carries out his/her subsequent control within thirty-six (36) hours at the latest.
3. To take possession of the material elements of evidence, keeping them in custody while they are being refuted [by the accused]. When additional measures that imply the infringement of fundamental rights are required, the corresponding authorization must be obtained from the judge responsible for the control of guarantees in order to proceed.
4. To present the indictment before the judge competent to try the matter with a view of initiating a public, oral, adversarial trial with immediacy of the evidence and all the other guarantees.
5. To request the preclusion of investigations before the judge competent to try the case when there are no merits to the case.
6. To request before the judge competent to the try the case the necessary judicial measures to assist the victims, and order the restoration of the law and the integral redress of those affected with the crime.
7. To oversee the protection of victims, juries, witnesses, and all other intervening parties in the criminal procedure. An Act shall determine the manner in which the victims may intervene in the criminal procedure and mechanisms of restorative justice.
8. To manage and coordinate the functions of the Judicial Police which are permanently carried out by the National Police and other organs that an Act establishes.
9. To comply with all other functions determined by an Act.

The Attorney General and his/her deputies have competence in all the national territory.

In the event an indictment is brought, the Attorney General or his/her deputies shall provide, through the judge competent to try the matter, all the elements of proof and information he/she is aware of, including those favorable to the defendant.

Paragraph

The Office of the General Prosecutor of the Nation shall continue to perform, in the new system of inquiry, investigation and criminal judgment, the functions of Article 277 of the National Constitution.

Paragraph 2

Depending on the character of the protected interest and the minor gravity of the punishable conduct, the legislature may authorize the victim or other authorities to bring criminal charges. In any case the action by the Office of Attorney General shall have priority.

Article 251

The following are special functions of the Attorney General of the Nation:

1. To investigate and, if there are sufficient grounds, to bring charges, directly or through the Deputy Attorney General of the Nation or his/her representatives from the investigation unit at the Supreme Court of Justice, against senior officials who are subject to a trial determined by the Constitution, with the exceptions provided in the Constitution.
2. To appoint and remove from office, in accordance with an Act, employees under his/her control.
3. To take charge directly of the investigations and procedures, whatever their stage may be, and freely assign and move his/her officials in the investigations and trials. Likewise, by virtue of the principles of unitary management and of hierarchy, to determine the position and views that the Office of Attorney General should adopt, without prejudice to the position of the deputy prosecutors in the terms and conditions defined by an Act.
4. To participate in the planning of state policy in criminal matters and to present draft laws in that respect.
5. To grant temporary powers to public entities that may accomplish functions of the judicial police under the responsibility and functional dependence of the Office of the Attorney General of the Nation.
6. To provide the Government with information about the investigations that are being conducted when these are necessary for the preservation of the public order.

Article 252

Even during states of exception pursuant to Article 212 and 213 of the Constitution, the Government is barred from eliminating or modifying either the organizations or the basic functions of indictment and trial.

Article 253

An Act shall determine matters relative to the structure and functioning of the Office of the Attorney General of the Nation at entry and retirement from the service for those who are unqualified or have incompatibilities with respect to appointment, qualifications, compensation, social benefits, and discipline of the officials and workers under his/her authority.

Chapter VII. Government and Administration of the Judicial Branch

Article 254

The government and administration of the Judicial Branch will be the responsiblity of the Judicial Government Council and the Administration of the Judicial Branch. These organs will carry out the functions that are attributed by law with the objective to promote the access to justice, the efficiency of the Judicial Branch, the effective judicial protection, and judicial independence.

The Judicial Government Council is the organ in charge of defining the policies of the Judicial Branch according to the law and to postulate the lists and shortlists of candidates that the Constitution orders. Also, it corresponds to the Judicial Government Council to regulate all the judicial and administrative proceedings in the judicial offices, for the aspects not anticipated by the legislator; issue the regulations of the system of judicial career and the Commission of Judicial Career, which will serve to oversee and control the career; approve the budget of the Judicial Branch to be sent to the Government; approve the judicial map; define the organic structure of the Administration of the Judicial Branch; supervise this entity, and provide reports about its performance to the Congress of the Republic.

The Judicial Government Council will be composed of nine members: the presidents of the Constitutional Court, the Supreme Court of Justice, and the Council of State; the manager of the Judicial Branch, which must be a professional with twenty years of experience, of which ten years must be in the administration companies and public institutions, and must be nominated by the Judicial Government Council for a period of four years; a representative of the magistrates of the tribunals and of the judges, elected by them for a period of four years; a representative of the employees of the Judicial Branch elected by them for a period of four years; three permanent members in exclusive dedication, named by the rest of the members of the Judicial Government Council, for a period of four years. None of the members of the Judicial Government Council can be reelected.

The permanent members in exclusive dedication mentioned in the previous paragraph will be in charge of strategic planning of the Judicial Branch and of proposing the Judicial Government Council, for its approval, the public policies of the Judicial Branch. They should have ten years of experience in the design, evaluation, and monitoring of public policies, administration models or public administration. In its election they must assure the diversity of academic and professional profiles.

Statutory law can determine the specific subjects for which the ministers of cabinet, the directors of administrative departments, the Attorney General of the Nation, as well as representatives of academics and practicing lawyers will participate in the meetings of the Judicial Government Council.

Article 255

The Manager of the Judicial Branch is an organ that is subordinated to the Judicial Government Council and will be organized according to the principle of territorial decentralization.

The Manager of the Judicial Branch is responsible for executing the decisions of the Judicial Government Council, provide administrative and logistical support to this organ, administer the Judicial Branch, draft for the approval of the Judicial Government Council the budget that will be submitted to the Government, and execute it in conformity with the approvals of Congress, make the plans and programs for their approval to the Judicial Government Council, formulate the administration models and implement the procedural models in the national territory, administer the Judicial Career, organize the Commission of the Judicial Career, administer the competitions and oversee the performance of functionaries and offices. The Manager of the Judicial Branch will be the legal representative of the Judicial Branch. The Manager will carry out other functions that are attributed by law.

Article 256

[Abolished by Legislative Act No. 2 of 2015]

Article 257

The National Commission of Judicial Discipline will exercise the jurisdictional disciplinary function over the functionaries and employees of the Judicial Branch.

It will be composed of seven Magistrates, four of which will be elected by Congress in Plenary Session on the basis of short-lists sent by the Judicial Government Council with prior structured public call undertaken by the Management of the Judicial Branch, and three of which will be elected by the Congress in Plenary Session on the basis of short-lists sent by the President of the Republic with a prior structured public call. They will have personal periods of eight years, and they should meet the same requirements for the Magistrates of the Supreme Court of Justice.

The Magistrates of the National Commission for Judicial Discipline cannot be reelected.

There can be Sectional Commission of Judicial Discipline established as the law mandates.

The National Commission of Judicial Discipline will be in charge of examining the conduct and punishing the offences of the attorneys practicing their profession, in the instances that the law indicated, except when this function is attributed to a Board of Lawyers by law.

Paragraph

The National Commission of Disciplinary Justice and the Sectional Commission of Disciplinary Justice will not be competent to hear actions of tutela.

Transitional Paragraph 1

The Magistrates of the National Commission of Disciplinary Justice should be elected within the following year counted from the entry into force of this legislative act. Once taken office, the National Commission of Disciplinary Justice will take over the disciplinary proceedings of the Jurisdictional Disciplinary Chamber of the Supreme Council of the Judicature. The current Magistrates of the Jurisdictional Disciplinary Chamber of the Supreme Council of the Judicature will exerciser their functions until the day that the members of the National Commission of Judicial Discipline take office. The Disciplinary Chamber of the Sectional Judicial Councils will be transformed into Sectional Commissions of Judicial Discipline. It will be guaranteed the rights of career of the Magistrates and employees of the disciplinary chambers of the Sectional Councils of the Judiciary, who will continue knowing about the processes in their charge, without solution to continuity.