On this Friday morning, W Radio revealed that the defense of Nicolás Petro filed a formal request to postpone the trial preparatory hearings that were scheduled between April 29 and 30, because the Attorney General’s Office has not fully delivered the material evidence that it collected against the eldest son of the President of the Republic and how it was ordered in the accusation hearing held on January 11 of this year, the judge second Penitentiary of the Specialized Circuit of Barranquilla.
Precisely, Lawyer Diego Henao made the formal request, ensuring that despite the multiple requests that have been made to prosecutor Mario Burgos, It has been impossible for said evidence to be delivered, which is important to build the defense of Nicolás Petro, prosecuted for the crimes of money laundering and illicit enrichment of individuals.
Due to this, W Radio consulted prominent criminal lawyers in Colombia about whether, in their opinion, it is feasible to request a postponement of the preparatory hearing for the trial, when The Attorney General’s Office has not delivered all the material evidentiary elements that are required.
The jurists considered for the most part that the responsibility for delivering the material evidence only falls on the Prosecutor’s Office and recalled that the right to defense is fundamental for every citizen.
Fabio Humar
Precisely, the criminal lawyer told W Radio that the Prosecutor’s Office must deliver all the material elements of evidence and not incompletely and indicated that, in these cases, requesting a postponement is necessary.
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“The duty to deliver the evidentiary material elements is the responsibility of the Prosecutor’s Office, any delay that the Prosecutor’s Office has in completely and totally delivering the elements, the evidence, the evidence to the defender, is a time in which the hearing must necessarily and obligatorily be postponed. ”
Humar also said that “it is a guiding element of current criminal law that the defender has sufficient time to prepare the theory of the case, to study the elements and in turn collect them that contradict the theory of the case, Therefore, any delay that the Prosecutor’s Office has must necessarily be taken in favor of the defender,” he stated.
Sebastian Ruiz
The lawyer, in dialogue with W Radio, explained that it is appropriate to request a postponement of the preparatory hearings for the trial, considering that the defenders must have the necessary time to guarantee the rights of their client.
“Of course, in this scenario it is totally valid and appropriate to request the postponement, firstly because the defense must have sufficient time to study the material elements of evidence, physical evidence and legally obtained information delivered by the Prosecutor’s Office, in order to adequately exercise technical and material defense.”
He also said that it is foolish to think about begin the preparatory hearing for the trial, without having all the material evidentiary elements.
“I consider it absurd to start a preparatory hearing without knowing all the evidence that the Prosecutor’s Office intends to use and of course it is a premise that would ignore the right of defense, even In this context of an incomplete discovery at that stage of the process, what should really be questioned is the attitude of the Prosecutor’s Office towards the defense.”assured the lawyer.
Felipe Alzate
The lawyer said that It is valid to request the postponement of the trial preparatory hearing and indicated that it is not related to a delaying maneuver.
“A postponement would have to be requested for two reasons, first: because the discovery has to be complete as contemplated by the Code of Criminal Procedure and second because in addition to being complete, there must be a reasonable and reasonable time, not only so that the defense can study the evidentiary material elements that they are discovering, but also so that he can collect what he considers relevant to prove his theory of the case“, held.
Likewise, he pointed out that “I consider that the postponement is valid and more than valid, necessary; one cannot go to the framework of a preparatory hearing or to the framework of the oral trial later without having fully known what the Prosecutor’s Office is delivering and without having collected what will be used to prove the theory of the defense case.”
Santiago Trespalacios
The criminal lawyer also assured that the Prosecutor’s Office must discover all the material evidentiary elements before the preparatory hearing, however, he pointed out that the Supreme Court of Justice has clarified that said process can be progressive.
“The constitutional norm establishes the obligation for the Prosecutor’s Office to discover everything favorable and unfavorable at the time of the accusation, that is, for the preparatory hearing and the defense, as a general rule, should have all the elements; however, the Supreme Court of Justice has established that this discovery “It can be done progressively as long as it is acted with good faith and loyalty.”
He specified that if the Prosecutor’s Office does not deliver the material evidence in the middle of an act of procedural disloyalty, what is appropriate is the judge’s rejection of said evidence.
“If the Prosecutor’s Office decided to hide the elements and did not deliver them due to laziness and did not supply them despite the insistence of the parties, the sanction imposed on those elements not discovered by the Prosecutor’s Office is rejection, that is, The Prosecutor’s Office will subsequently not be able to request those elements improperly discovered as evidence, however, that does not prevent the defense from continuing to request it for several reasons, first because they may be elements favorable to the defense, among others.
Lawyer Trespalacios also assured that whether the elements that took time to discover can open new lines of research and the information is abundant and relevant and for this, it requires a lot of time to analyze, “it is completely valid for the defense to request a postponement for the preparatory hearing, because one of the rights that the defense has and that is recognized internationally and national, is to have adequate time to exercise the ideal defense.”
Andrés Felipe Caballero
“The prosecutor cannot reserve anything because he has the duty to investigate objectively,” said criminal lawyer Andrés Felipe Caballero, who pointed out that the defense has the right to know the material elements of evidence, both positive and negative.
He also explained that in the middle of the preparatory hearing, he could ask the judge to order the prosecutor to discover the evidence and to do so, the hearing must be suspended.
The criminal lawyer also referred to the cases in which the Prosecutor’s Office finished discovering the evidence during the month in which the preparatory hearing for the trial was convened and indicated that it is necessary to request the postponement and that this cannot be considered a maneuver. dilatory
“If (evidence) was delivered to me during the month in which the preparatory hearing is scheduled, depending on the volume of the evidence, Of course, you can request a postponement and it is not a delaying maneuver.”.
Next, he explained that “I normally request the postponement at the hearing itself so that it does not look like a capricious postponement of the defense and then in a possible expiration of terms and they can charge that to the defense, but of course according to the volume of the elements, a postponement can be requested, it is totally normal.”
Rodrigo Parada
Lawyer Rodrigo Parada argued that in the face of this type of circumstance the law establishes rejection, as a mechanism to punish failure to comply with the evidentiary discovery peror clarified that the Supreme Court of Justice established what it called a ‘sub-rule’ that makes this type of difficulties overcome.
“The law provides that when any party does not discover evidence prior to the start of the preparatory hearing, the consequence must be the rejection of the request for evidence that will be made at that hearing, however, The Supreme Court of Justice in its Criminal Cassation Chamber has given a kind of sub-rule based on which the judge has broad powers to ensure that the evidentiary discovery is carried out in due form and in that sense.the meaning of the law has changed a little so that today it is understood that what must be rejected must be that evidence that is not discovered by way of fraud, that is, as with a harmful intention that is not actually discovered. conduct discovery, rather than simply reckless or negligent action,” the lawyer said.
Ricardo Burgos
The criminal lawyer and university professor explained that in these cases, the Code of Criminal Procedure establishes that the Attorney General’s Office “has three days after the accusation is verbalized by the writer to make the discovery of all the material evidentiary elements that it intends to bring to trial to demonstrate the responsibility of a person, generally the jurisprudence has been lax and broad, which can be discovered almost at any time, but if, for example, they arrive with a late discovery On the day the preparatory hearing begins, there are two possibilities, first: request the rejection of those material elements of evidence that are being discovered unexpectedly and two: If the judge endorses this late discovery, request a postponement, to carry out the analysis and see if it is possible to counter-propose a material element of evidence that is also novel as a result of this late discovery so that the defense has the opportunity to dispute it,” he stated.
Finally, he assured, “what the defender should do is ask for rejection and the judge should not endorse a late discovery from the Prosecutor’s Office.”
