De los motivos “fundados” para la afectación de derechos fundamentales en el proceso penal colombiano

• Main Author: John Zuluaga Taborda
• Format: Article
• Language: Spanish
• Published: Universidad EAFIT 2014-12-01
• Series: Nuevo Foro Penal
• Subjects: reasonable grounds; reasonable inference; law 906 of 2004; supervisory judge (guarantee control judge); investigation proceedings; subsequent judicial control
• Online Access: http://publicaciones.eafit.edu.co/index.php/nuevo-foro-penal/article/view/2878/2907

The criminal dogmatic treatment of and case law doctrine on reasonable grounds in Colombia do not adequately clarify aspects as essential as purpose, need for concretion, precision and determination of reasonable grounds. Failures in a systematic procedural and case law treatment of the requirement to justify infringements of fundamental rights during the criminal investigation phase lead to major restrictions on the possibility to conduct judicial review of the reasons behind investigation proceedings. On the one hand, such failures reduce the potential to verify the reasonable grounds, which is an intrinsic characteristic of them, as they are an undetermined legal concept. On the other hand, such failures facilitate subrogation of the competences of the supervisory judge, which is also promoted by a relativization of the principle of judicial reservation, as well as structural deficiencies related to budgetary limitations and methods of control of investigation proceedings.