Responsabilidad extracontractual del Estado en Colombia por privación injusta de libertad. Un análisis desde los aportes del positivismo jurídico

The State’s Council as the highest Court of Contentious Administrative Jurisdiction has been prolific regarding the unjust deprivation of liberty and has even issued unification sentences for the events in which the defendant and deprived of liberty within the criminal proceedings were given an acquittal decision, or its equivalent, because the act did not exist, the accused did not commit it, the conduct did not constitute a punishable act, in the investigation preclusion and even in the application of the principle of in dubio pro reo. Despite the above, the recent jurisprudence of the State’s Council in file 56,386 of November 21, 2018, indicated that by evidencing an acquittal ruling, it did not constitute automatic compensation and the conduct displayed by the victim must also be examined. In turn, in file 54271 of April 24, 2020, he stated that although the actor was not convicted of the crime of violent carnal access, the decision to impose a security measure on him according to the facts and evidentiary material was reasonable. From this document, a critical approach was made to the foundations that led to denying the responsibility of the State for unjust deprivation of liberty by the Council of State, in apparent contradiction of its own rulings, which has been modified with the application of criteria such as the exclusive fact of the victim or the legal duty to endure the deprivation of liberty because the security measure was necessary or reasonable at the time and in accordance with the law. As investigation’s result, the State’s responsibility for unjust deprivation of liberty has been in constant evolution, especially after the Political Constitution of 1991 was issued, which allowed the constitutionalization of the State’s responsibility, however, there is still a long way to go, because the State’s responsibility requires a new approach that responds to the current demands of the legal system and rights of those administered. On the other hand, the jurisprudence of the State’s Council regarding cases of unjust deprivation of liberty has not been able to reach an agreement when it comes to establishing responsibility for these cases. Even within the highest body of administrative litigation there are insubstantial discussions on points that should have been completely overcome years ago. In fact, it is incomprehensible that there is doubt regarding the title of imputation, defenses of responsibility, entity responsible for the damage, among others; These events do not allow a clear evolution of the law and cause ambiguity on a daily basis, ultimately generating high pockets of legal insecurity in an issue that has been increasing. In conclusion, it is important to positivize the State’s responsibility for unjust deprivation of liberty, given that jurisprudence demonstrated that it could not solve this type of matter and instead, current circumstances require the intervention of the legislator to correctly regulate the matter, in this way, trivial problems are resolved that only harm the administrator and hinder the work of the justice’s administrators.

• Autores: García Capera, Yeison Hernán
• Fecha de publicación: 2023
• Institución: Universidad de Ibagué
• Repositorio: Repositorio Universidad de Ibagué
• Idioma: spa
• OAI Identifier: oai:repositorio.unibague.edu.co:20.500.12313/4373
• Acceso en línea: https://hdl.handle.net/20.500.12313/4373
• Palabra clave: Positivismo jurídico; Estado en Colombia - Responsabilidad extracontractual; Responsabilidad del Estado; Privación injusta de la libertad; Daño antijuridico; Hecho dañoso; Nexo causal; Responsabilidad patrimonial; Presunción de inocencia; Ley Estatutaria de Administración de Justicia; State responsibility; Unjust deprivation of liberty; Unlegal damage; Harmful act; Causal nexus; Patrimonial responsibility; Presumption of innocence; Statutory Law of Administration of Justice
• Rights: openAccess
• License: http://purl.org/coar/access_right/c_abf2