Responsabilidad del estado por la privación injusta de la libertad
Analyzing the jurisprudence of the Council of State (The highest court in administrative law in Colombia) in relation to the liability of the State as a consequence of false imprisonment, we found that the Council of State has adopted three views: the first one, that we can consider as the subjectiv...
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| Main Authors: | , , |
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| Format: | Article |
| Language: | Spanish |
| Published: |
2006
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| Subjects: | |
| Online Access: | https://dialnet.unirioja.es/servlet/oaiart?codigo=5761437 |
| Source: | Revista Prolegómenos. Derechos y Valores de la Facultad de Derecho, ISSN 0121-182X, Vol. 9, Nº. 17, 2006, pags. 11-21 |
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| Summary: |
Analyzing the jurisprudence of the Council of State (The highest court in administrative law in Colombia) in relation to the liability of the State as a consequence of false imprisonment, we found that the Council of State has adopted three views: the first one, that we can consider as the subjective one, compares this form to a judicial mistake and to the defective operation of the administration of justice as well, because it demands a wrong conduct of the administration of justice and the existence of a judicial decisión fragrantly against the law, as necessary requirements to liability of the State as a consequence of false imprisonment existence. The second one, which we can call objective, affirms that this form of liability, as far as the imputed conduct relates, arises when the person has been incarcerated and freed as a result of a judge's decision within his jurisdiction and this decision is founded on some of the subsections of the section 414 of the old Criminal Procedure Code (Act 2700 of 1991), that is to say, that the human action did not take place, or that it could not be imputed, or it is not an offence, without evaluation of the judge's conduct and without verification about the wrongness, illegality or unfairness of the judge's conduct. The third one, which is the present position of the Council of State, founds the liability of the State as a consequence of false imprisonment in the section 90 of the Constitution, which means that the State is patrimonially liable for the illegal torts that can be imputed to the State. Therefore, if a person is incarcerated in a criminal investigation and later is freed and the discontinuance of proceedings is ordered as a result of a judge's decision, the proven damages caused to that person by the imprisonment must be indemnified, since he was not obliged to suffer them. |
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