Referendum orders then decision to declare life imprisonment unconstitutional

September 3, 2021 – 7:01 p.m.

In a historic decision, the Constitutional Court overturned the reform that introduced life imprisonment for rapists and homicides of minors. The reason given by the high court is that there can be no regression in human rights issues, and a punishment such as life imprisonment would cause serious effects to the human dignity of the person who is convicted.

In this way, the Constitutional Court overturned one of the flag projects of President Iván Duque and united it to his bench, despite pronouncements and even concepts that spoke of the unconstitutionality and the inconvenience of this measure to fight the violence suffered by minors in Colombia. Therefore, as it was a flagship proposal of those close to government, proposals were immediately heard to bypass the Court’s decision and reinstate the life sentence in the Constitution.

The most proposed proposal is to convene a referendum to ask Colombians whether or not they agree with the life sentence being enabled in the Constitution. The approach has come mainly from the ruling party, which has been quite critical of the ruling and has even said that high court has usurped the legislative functions that Congress has.

Can see: Constitutional Court overturned life imprisonment in Colombia

“The parties that defended the life imprisonment for child rapists, we should make a common front for a referendum to achieve this. The fundamental rights of our children must prevail, it is a constitutional principle,” said Senator Paola Holguin. of the Democratic Center, as the alternative for re-enabling life imprisonment

This same position has been given by Christian Senator John Milton Rodriguez. “As a father and grandfather, I am deeply saddened that the Court does not support the decision to punish child rapists and murderers. I invite Colombians to unite to hold a referendum that seeks to protect the families and child victims,” ​​he said. the member of Colombia Just and Free.

However, when consulting experts in the legal field, they agree that the result of bringing this issue to a referendum would have the same results as the draft legislative act. “Nothing changes, it’s the same. If it comes by referendum or initiative. Nothing happens, it would fall again. It could be convened, but the result could not be raised to the Constitution,” the president of Col told this newspaper Law of Criminal Lawyers of Colombia, Francisco Bernate.

The former magistrate of the Constitutional Court José Gregorio Hernández also agreed in this position. For this, meeting the requirements for a referendum, according to Article 368 is quite complex. In addition, he recalled that this request for a referendum should also be studied by the Constitutional Court and the result should be the same as currently favored.

context: The unusual regulation of life imprisonment

“There needs to be a ruling for the summons and in this instance I would declare unconstitutionality again because the ruling is a matter of law and a rule declared unenforceable for substantive reasons cannot be reproduced,” said Hernandez, who recalled that in this decision the high court stressed that such punishments violate human dignity.

At this point, through social media, lawyer Francisco Bernate recalled that the only way to enable life imprisonment would be to change the constitutional text through an assembly “that repeals the Constitution of 91 and makes a totally different one ”and withdrawing from the IACHR. This is because in light of the American Convention on Human Rights this type of punishment can be interpreted as cruel treatment, as outlined in a 2019 concept by the Superior Council of Criminal Policy, an advisory body attached to the Ministry of Justice.

“In fact, the Inter-American Court of Human Rights has held that while there is no express mention of the ban on life imprisonment in the American Convention, it can be understood as cruel, inhuman or degrading treatment. Thus, in Mendoza and Others v. Argentina, this court held that life imprisonment is a disproportionate punishment, which disregards the prohibition of cruel and inhuman treatment, “reads the concept that rejected the viability of a project. which sought to enable life imprisonment.

See also: The arguments in the Constitutional Court for and against life imprisonment

In addition to the referendum proposal, Senator Paola Holguín extended her proposal to make a “request for the nullity of the sentence to violate precedent on how the test should be conducted of constitutional substitution “. Faced with this approach, former magistrate Hernandez was also critical, although he noted that he has a great deal of respect for the senator.

“The nullity of the sentences takes place only when there are violations due process. This must be decided by the full court and it is unlikely that they will declare the nullity before this sentence,” he said. ‘before togat on the other proposal of Holguín, that in this case includes the judicial routes.

In addition to what was expressed by these two members of the Government, the proposals also came from the independent sector, as is the case of the Liberal senator Miguel Ángel Pinto. He, who supported the draft legislative act, said that in response to the ruling he would present a bill to increase the penalties for rape of minors up to 60 years as they currently do not reach more than 30 years.

In addition, proposals began to be heard so that those convicted of rape and homicide of minors could not benefit from reduced sentences for study, work or similar benefits.

Faced with these proposals, the experts also had reservations. For Bernate, the announcement of an increase in sentences is mere “populism”, as “this is already there, this measure already exists”. The criminalist even recalled that currently in the Colombian system have been provided sentences ranging from 60 to 90 years in prison for those involved in crimes of trafficking in children, adolescents and adolescents, so that the penalties do not increase is the solution.

With regard to the second proposal, he noted that in these matters the court has already ruled and said that the possibility of redemption of the sentence can not be removed with study or work because, as noted by the high constitutional court, “is an expression of human dignity and is an instrument by which the state offers the convict the opportunity to resocialize, which in no way constitutes a measure of he said in the back lines, this is materialized through other mechanisms present throughout the criminal intervention “.

On the other hand, the former magistrate Hernández has pointed out that it is feasible to increase the sentences and even remove all the surrogates to those convicted of rape and murder of minors. However, this would not solve the real problem that is the cases of rape and homicide of minors. For him, the issue is both a cultural issue and a lack of judicialization and the work must turn on these points and not continue with punitive populism.