Especialización en Casación Penal

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https://hdl.handle.net/11396/3516

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Estructuración de las máximas de la experiencia en la demanda de casación penal por falso raciocinio
(Universidad La Gran Colombia, 2023) Meléndez, Inocencio; Romero, Andrés; Lopéz, Rafael; Suárez, Viviana; Suárez, Viviana
Necesidad de procedencia del recurso de casación contra autos de segunda instancia emitidos por jueces de conocimiento.
(Universidad La Gran Colombia, 2022) Cuadros Cuadros, Cristian Alirio; Sánchez Sarmiento, Camilo Arturo; Oviedo, Islem
The limitations to the extraordinary appeal of cassation are not only presented with respect to the presentation of the demand in compliance with the due support and formulation of the charge and the cause, but also by preventing it from being only admissible against judgments of second instance issued by courts superiors of the judicial district, this is how the second instance orders issued by the judges of knowledge regarding Mechanisms Substitutes for the Deprivation of Liberty and Rehabilitation, according to the content of Article 478 of Law 906 of 2004, also compromise rights of persons deprived of liberty; therefore, they are of great importance when resolving requests for parole and house arrest where the interested parties must prove the requirements contained in article 64 and 38B of the C.P., therefore, it requires the judge to make an assessment that is not free of errors in proceeding or in iudicando; for this reason, this work will develop the urgent need to enable the appeal against these orders and the way in which this refusal can violate fundamental rights such as the administration of justice, due process and the freedom of persons deprived of liberty. Important words: Substitute mechanisms, conditional freedom and house arrest, resources, cassation, judicial decisions.
¿En casación penal hay lugar a violación directa de la ley Sustancial para atacar sentencia condenatoria fundada Exclusivamente en prueba de referencia?
(Universidad La Gran Colombia, 2019) Castillo Pachón, Juan Carlos; Prieto Larrota, Nelson Guillermo; Caceres Tovar, Victor Manuel
Although the Supreme Court - Chamber of Cassation considers that attacking a judgment that is exclusively based on reference evidence, which is against the article 381.2 CPP, constitutes an indirect violation of the substantial law, because to a legal error due to a false conviction and this meaning has allowed fundamental guarantees such as the right of defense to be violated and with this, the principles of contradiction, confrontation and immediacy of the evidence, this legal document proposes, as an alternative to a solution based on the rules of criminal cassation, which the way to attack a judgment based on reference evidence, is the direct route for lack of application of the rule. The method applied is the study of the jurisprudential line sustained over the last four years in terms of reference evidence, negative legal fee and the handling it receives, as a solution through the false reasoning of conviction. As a result of the study it will be indicated, why it is more viable to go to the direct route as a form of attack in the cassation. It will be concluded with all of the above, that the alternate route with more probability of success, despite holding a contrary majority stance by the High Court, is to proceed by the direct route of the substantial law because this error of law ignores the article 381.2 CPP.
El Estándar Daubert y la valoración pericial en el sistema penal con tendencia acusatorial en Colombia
(Universidad La Gran Colombia, 2022) Palacios Martín, Midia Esmeralda; Henao Rodríguez, Fabio; Aldana Sánchez, Willi Efrey; Oviedo, Islen
In the understanding that science is the best method to prove the facts debated in any judicial procedure, its practical theoretical importance grows and continuously transforms, starting for the present work from the set of certain or probable rational knowledge that they obtain in a methodical way and can be verified. through the contrast with reality and whose results and contents favor the construction of laws and theories developed in a rational and experimental way, generally speaking of hard sciences and soft sciences without neglecting the experimental ones, in the case of science Hard these require a standard of reliability that is applied to all sciences of explanation and natural sciences, use the same method among themselves, are governed by the same paradigm, nomological hempeliano, as well as reach a high degree of formalization and predictive power and become experimental, empirical and quantifiable , while the soft sciences require several reliability standards, normally one for each science where they use unique and diverse methods and each one is governed by its own paradigm that is not the nomological one itself, that is, they are in the process of development. and formalization of their theories, laws and predictions, normally they are not quantifiable, more qualifiable and subjective, however, experimental sciences arise from the combination of hard and soft sciences, giving rise to aspects with quantifiable trends that are not properly predictable and with little degree. of formalization of theories and laws to maintain a process of development and materialization. Thus, things in judicial matters supported in science exist technical, expert and expert evidence that must enjoy special quality, reliability and veracity both in its studies, review and conclusions, which must necessarily be supported by technical and scientific methods; The issue addressed here is due to a drastic change from 1993 in the United States of America, where the Supreme Court of Justice adopts a series of criteria and recommendations to assess and evaluate the scientificity, reliability and validity of these tests, in what is known as the "daubert" case, all of the above weighed in popperian epistemology that was extended to all techniques and sciences in the year 2000 with the khuone case, from which the federal rules of evidence became a situation that was imported and received through legislative act 03 of 2002 and law 906 of 2004, especially in Article 422 and through this Article 420 and 273 of the regulation in question and with them it is intended to face the reality that Colombia lives against the problems of scientific validity of the evidence used to decide on the facts of the case in criminal matters, in the case of an adversarial issue with an accusatory tendency and n or continue ignoring, superficial or inefficient to this type of controls in the head of the administrators of justice who pronounce themselves regarding them considering them to be true and reliable, it is thus that we have prosecutors and judges who continue to support their actions, using, accepting and valuing information or data that are presented as technical or scientific and that in reality lack it, this lack of interest or knowledge leads them to wrong and even disastrous decisions when it comes to pronouncing. For the present investigation, the descriptive legal method was applied, supported by a random sampling of real cases accompanied by doctrinal and jurisprudential content that reveals the reality in terms of technical-scientific evidentiary assessment and that contradicts the constitutional and legal precepts that must govern in the social and democratic state of Colombian law, which allows appealing by way of the third cause of article 181 of the Code of Criminal Procedure, that is, due to the manifest ignorance of the rules of production and appreciation of the evidence on which has based the sentence.
Los elementos subjetivos distintos del dolo, del tipo o del injusto: una inclusión de la jurisprudencia nacional para la descripción de la conducta punible
(Universidad La Gran Colombia, 2022) Narváez Díaz, Omar Hernando; Oviedo, Islen Yahir; Oviedo, Islen Yahir
Subjective elements other than fraud, type or unjust correspond to descriptive and restrictive instruments of typicity, which also involve an intentional or psychic component to define the legally relevant risk, but what is the boundary of the judicial reasoning and the process of inference for its structuring? This discussion stands out not because of the inclusion made by the legislator who is presented as a reference, otherwise in view of the hermeneutic rules set by the closing body for some of the behaviors summarized in the punitive statute, in order to be extensible to others with the development of criminal law. The present work constitutes a critical juridical discernment, whose qualitative method takes as inputs the jurisprudence and the doctrine. It is obtained as a result that the instrumentalization that the Criminal Cassation Chamber makes with respect to such institutes may entail an additional requirement in the criminal hypothesis.
La absolución perentoria en cabeza de la Fiscalía, dimensionada como acto de postulación: ¿Una afrenta al sistema acusatorio adversarial y a la neutralidad del juez?”
(Universidad La Gran Colombia, 2022) Ortiz Coral, Alberto Efraín; Oviedo, Islen Yahir
The implications of the fairly recent jurisprudential shift will be studied, according to which, the claim of peremptory acquittal that the prosecution exposes in oral proceedings - which is nothing more than refraining from requesting a conviction, for having noticed in the practice of evidence an ostensible atypicality of the accused conduct – now is equivalent to a simple application, in order to know how the neutrality of the judge can be affected with his new possibility of rejecting it and autonomous insistence on the issuance of a punitive sentence. At the same time, the founding parameters of the accusatory penal system that are likely to be disrupted by this type of intervention by the judge will be identified, in contrast to its strict legal prohibition to make judgments of guilt "for crimes for which a conviction has not been requested." The central proposition of this work will revolve around the fact that, even temporarily, in the absence of a request for a criminal sanction in the conclusive arguments, by denying the peremptory acquittal, the judicial officer would be attributing to himself the persecutor role reserved for the prosecution, blurring the basic structure of the adversarial process, noting that from the perspective of analytical legal theory, the language in the applicable rules does not exhibit such an opening that allows the aforementioned denaturalization, contrary to the mandates of due process and favorability that protects the accused, under the pretext of applying judicial discretion. The study of regulations, jurisprudence and pertinent doctrine will be of use, from a qualitative approach to suitably mean each of the concepts relevant to the subject; It can be concluded, according to the proposed hypothesis, that the roles of the procedural subjects cannot be exchange currency according to the discretion of the judge.
La casación penal en la jurisdicción especial penal para la paz
(Universidad La Gran Colombia, 2022) Perico Aranzazu, Jaime Enrique; Yahir Oviedo, Islen
Criminal cassation is an extraordinary resource to attack sentences considered by the plaintiff to be illegal, as there are errors in proceeding, or in judging, the latter by direct or indirect means. The foregoing, based on what is stated in article 181 of the Code of Criminal Procedure (Law 906 of 2004), this within the Colombian ordinary justice. Within the procedural regulations of the JEP, we find the procedure contained in Law 1922 of 2018, where it establishes the steps to evacuate the proceedings before said Court and the rules for the filing of appeals such as replacement (article 12), appeal (articles 13, 14 and 43), complaint (article 16); In addition, there is an action to review convictions handed down (Article 52 A). We even observe the right to appeal convictions handed down for the first time, as stated in article 15 idem. However, we do not find within said regulations the extraordinary appeal of cassation, which could generate uncertainty when reaching the instances of an adversarial trial where the appearing parties of the JEP do not accept responsibility, which should exhaust the pertinent instances to guarantee the due process. But what happens if within this system the sentences of the case are pronounced, and the ordinary resources are exhausted? Would the ruling automatically become final? This questioning has not been resolved so far in the transitional justice. As a legal problem, it is questioned: In the framework of the transitional justice of the Colombian peace agreement, does the extraordinary appeal of cassation proceed?
Ataque en sede de casación ante la motivación aparente, falsa o sofística
(Universidad La Gran Colombia, 2018) Villegas Jiménez, César Augusto; Torres Vásquez, Henry
When the attack in the Criminal Cassation of statements contains apparent motivation, false or sophisticate, it must lead to a judgment replacement; that is why it is essential to identify and apply the attack correctly. For this purpose, this work is presented, with the intention of providing theoretical tools to jurists who are seeking to sue to the Supreme Court of Justice in extraordinary appeal of cassation, adjudication under the third cause provided for in Law 906 of 2004, in the Article 181; this document in addition presents a guide for judicial operators, in order to invite them to accomplish the principles of logic and establish a full legal argument in their decisions to achieve a legal perception of security in the receiving society. The document presented here, heeds the thesis exposed by the well-known lawyer and philosopher Robert Alexy, "Theory of Legal Argumentation" as a guide and direction of the essence of the content described in the following pages, added to the theorists of modern logic as the case of Andrés Páez in his work "Introduction to the Modern Logic ", without ignoring important statements of national corporations, which determine a precedent of immeasurable worth.
Retractación del allanamiento a cargos
(Universidad La Gran Colombia, 2019) Caballero Morales, Marcel de Jesús; Zea Blandón, Adelmo Antonio; Díaz Pedrozo, Alexander
The restricted legal action offered by the predicate that contains the regulations of article 293 contained in Law 906 of 2004, which determines the figure of the acquiescence or acceptance of charges in the imputation hearing, makes it necessary to listen to each of the aspects that relate the behavior of the people and their manifestation of accepting the guilt manifested when the person is put before the Warrant of Control of Guarantees. Given the impossibility of retracting the search of the charges, it is necessary to analyze from the psychological and psychic point of view, can derive a legal framework that offers a solution in the interpretation and application more in line with the condition of the human being of the regulations that determine the procedure in the imputation hearing. In-person situations, which arise from the moment an individual is captured, submitted to an imputation hearing and passed to the investigated roll; it allows us to raise arguments that may well vary the conditions in the systematic interpretation that is currently made of the norm that admits the figure of the acquiescence to the charges in the imputation hearing; to finally obtain fairer decisions based on real guarantees that correspond to the citizen.
El indicio, medio de convicción para establecer la actividad subyacente del lavado de activos
(Universidad La Gran Colombia, 2018) Merchán Gutiérrez, Luis Fernando; Torres Vásquez, Henry
The clue in its legal conception is a logical construction that allows reaching concrete truths. It is not really a test, and this is evident in our Colombian Criminal Accusatory System, being clear that in the oral trial what is really tested with the different means of evidence, are the indicator facts; the logical inference and the indicated fact are constructed orally by the parties when presenting their theory of the case and their final arguments and the judge when evaluating the evidence may or may not accept the logical inferences and therefore those facts indicated that are legally relevant that are reflected in the motivation of the sentence. Under this horizon in cassation the plaintiff may invoke an indirect violation of the substantive rule, by different means, depending on the error and where it is presented, because if it is in the indicator fact (which is duly proven) there may be an error of fact or law, but if it is in the logical inference or the indicated fact can only speak of an error of fact, where we show that the sign legally speaking is a logical triumvirate, used in a high percentage in the washing processes of assets to establish the underlying crime or the illicit origin of the assets subject to laundering.
El cambio favorable de criterio jurídico en la acción de revisión en los sistemas mixto y penal acusatorio en Colombia
(Universidad La Gran Colombia, 2018) Del Portillo Gutiérrez, Erich Rafael; Torres Vásquez, Henry
The action of revision was inserted in Colombia in the decrees 409 of 1971 article 584, 050 of 1987, article 231 and 270 of 1991, article 232, in the sixth number already introduced as casual when with a judgment the Court changes the legal criterion that sustain the condemnatory sentence. As of 1987, the review is considered an action, one against another, in accordance with Article 220, numeral 6 of Law 600 of 2000, numeral 7 of Article 192 of Law 906 of 2004. There is tension dialectical contradiction, between the Constitutional, Social and Democratic State of Law and values legal security and justice. The Court demands that innovative jurisprudence be from the Criminal Cassation Chamber which unifies the jurisprudence, implies that the legal bases of the grounds of the sentence are modified and the convicted person is acquitted, is an action that demonstrates the declared procedural truth, implies injustice material and confronts the firmness of the res judicata. . For the Constitutional Court there is no unchallengeable enforceable sentence, the review action allows to challenge the condemnatory sentences. The review action exists in Chile, Costa Rica, Ecuador, San Salvador and Peru.
El desconocimiento de la calidad de interviniente, en el “contrato sin cumplimiento de requisitos legales” y su demanda de casación, por prescripción de la acción penal
(Universidad La Gran Colombia, 2018) Raad Hernández, Bernardo; Torres Vásquez, Henry
The objective of this work is to determine the legal tools employed to present a cassation demand against a condemnatory sentence in which a person is sentenced as an author of the crime “celebration of contracts without the legal requirements” when he really participated as an intervenient, quality which generates the reduction of the prescription term of the penal action as well as the reduction of the maximum penalty. The article 410 of the Penal Code sanctions the public server who in reason of the practice of his functions, celebrates, process, or liquids a contract without its legal requirements or without verifying them. Following this idea, the article 30 of the Penal Code defines the sanction corresponding to the participant in the penal action and in its last paragraph affirms “the intervenient who not having the especial qualities required by the penal type, concurs in its realization, will have a reduction of one quarter of the sanction”. This indent was declared constitutional by the Constitutional Court by sentence c-122/2008. The Honorable Criminal Cassation Room, in the last 15 years has pronounced about the cassation demands for the crime of “contracts without the legal requirements”, in sentences constituting precedents. However judges omit the precedent when they give to the prosecuted the quality of author when he really is a simple intervenient. This aspect has a vital importance at the moment of calculating the prescription term which in case of its production, extinguish the sancionatory power of the state. This can be argued in seat of cassation. Therefore, when the intervenient is condemned as an author of the crime previously mentioned, the due process is being violated as well as his right of defense, because his period of prescription of the penal action is less, which can originates the nullity of the sentence, and impose in seat of cassation a substitutive sentence of ceasing of the process according to the article 39 of the Procedure Penal Code (Law 600/2000).
Casación derivada de la aplicación indebida de la prueba de referencia
(Universidad La Gran Colombia, 2018) Freja Calao, Alait de Jesús; Altamiranda Baldiris, Carlos de Jesús; Torres Vásquez, Henry
El ministerio público frente al recurso de insistencia en la casación penal
(Universidad La Gran Colombia, 2018) Ramírez Torres, Samir Gonzalo; Quintero Rincón, Yamid Alberto; Ruiz Amaya, Javier Mauricio; Torres Vásquez, Henry
When the demand for cassation when qualified by the Supreme Court of Justice is not selected, by self-motivated through which the legal reasons and the possible errors incurred by the Casacionista are exposed, being the same object of the resource of Insistence on the terms provided for in article 184 (2) of law 906 of 2004, Either by some of the judges of the room or by the Public Prosecutor's Office, the case law also states that the insistence can be promoted at the request of one of the parties involved in the process, as the same plaintiff. The importance of the Public Ministry as a special intervening in the criminal proceedings in accordance with the functions set out in article 277 of the Colombian Political Constitution in order to protect individual and public guarantees or the rights and Fundamental guarantees, To the point that the Colombian legislator attributed to him the legitimacy to bring the appeal of insistence on his own initiative, or at the request of the party with interest that the Criminal Cassation Chamber of the Supreme Court of Justice reconsiders the decision of inadmissibility of the Demand, for not meeting the requirements and budgets, to admit and decide on the merits of the appeal initially initiated, But the decision to request the recourse of insistence on the part of the agent of the procurator the Physician.
El error judicial en la sentencia cuando se desconocen las máximas de la experiencia: “siempre o casi siempre que se da a, entonces sucede b”
(Universidad La Gran Colombia, 2018) Coronado Ricardo, Juan Gustavo; Torres Vásquez, Henry
Entering the mind of the failure is an unavoidable task that we have to assume all those who want to scrutinize the grounds of a decision in criminal matters, that task must be taken more seriously when it comes to seeking the break of a ruling through the resource extraordinary appeal, and it is there when the maxims of experience appear on the stage of reasoning; as a form of knowledge apprehended by the judge outside the court hearing; undoubtedly with an impact on the resolution adopted.
El precedente jurisprudencial y su aplicabilidad en el recurso de casación penal
(Universidad La Gran Colombia, 2018) García Espinosa, José Luis; Torres Vásquez, Henry
The Precedent has been presented as something recent and that it was unknown by jurists. Today it is in the process of positioning itself, warning that since its birth, in Colombia, it has contributed to settling litigious situations that previously were without a just and legal solution. That is why this investigation is specified as a novel subject for the legal community, it will be said the origin of the judicial precedent, its importance, application and binding force to solve judicial disputes, emphasizing that it has not been easy to give legal procedural roots to this new institute of law. It is also remarkable in the development of these pages to make explicit that the judges continue to preserve the autonomy conferred on them in Article 230 of the constitution, because although the application of the precedent is binding for judges, in events that they consider to be dismissed, they must satisfy a sufficient and consistent argumentative burden that eliminates any hint of injustice and illegality.
La aplicación del control de convencionalidad en el recurso extraordinario de casación penal en Colombia
(Universidad La Gran Colombia, 2017) Puentes Ruíz, Willyn Javier; Díaz Pedrozo, Alexander
This document presents the development of a research about the implementation of the Conventionality Management in the Extraordinary Resource of Criminal Cassation in Colombia, taking as a reference historic features to place the guidelines of this resource and take advantage of it to analyze how the American Convention criteria for the Human Rights can be adapted into the accusatory trend model of the country and establish those international instruments organized in the parameters of the national criminal policies to reinforce the intern juridical security. The previous process sustained by the examination of the constitutional reaches recognized by the Constitutional Block in Colombia. It is specially for the ones belonging to the Inter American System of Human Rights as the basic source to be able to verify the viability and efficiency of the implementation of the Conventionality Management in an Extraordinary Resource such as the Criminal Cassation for direct infringement of the substantial law for the first reason exposed in the Article 181 of the law 906 of 2004, with the objective of verifying the dual presumption of legality and success of the Penal Sentences, beyond the legal system.
El falso raciocinio vía para demandar los defectos de cadena de custodia en sede de casación
(Universidad La Gran Colombia, 2017) Chaves Bravo, Gerald Diego; Díaz Pedrozo, Alexander
The research work analyzes which is the purpose of the chain of custody in Colombia in accordance with the current legal system and the jurisprudence of the Criminal Chamber of the Supreme Court of Justice, from the introduction of the Accusatory Criminal System, would consequently condition the way of appreciation of the defects or irregularities occurred in the assurance of the evidence, according to the rules of exclusion as is claimed by some authors or under the postulates of sound criticism as others maintain it, and to concur in errors in such labor by the Judge would constitute the called errors for false legality judgments or mistakes for false reasoning as the case may be.
Los principios básicos de casación penal como fundamento en la construcción una proposición jurídica viable
(Universidad La Gran Colombia, 2017) Blanco Jiménez, Pedro Luis; Díaz Pedrozo, Alexander
The penal cassation as extraordinary resource in the Colombian juridical arranging presents a high tendency in all that to demands unadmission recounts; although at present official statisticians have not been constructed on this matter, - since those who are offered adhere to the prosperity or lacking in this one with regard to the resource once admitted - it is excellent to do the analysis facing the possible cognitive and conceptual bankruptcies that could be a cause of this observed budget of an empirical way. This proposal is based on a study of the basic principles of criminal prosecution in Colombia given that the technical deficiency found in the construction of complete legal propositions that are rooted in these processes, whose main substrate is the non-observance of those at the time of formulation and substantiation that claims causing the loss of this extraordinary opportunity of substantive defense.
La denegación indebida de la prueba como proposición jurídica en casación penal
(Universidad La Gran Colombia, 2017) Ochoa Torres, Diego Fernando; Gómez González, Diego Fernando
The denial of the evidence as a causal of cassation has had a significant variation in Law 906 of year 2004, the importance of its theoretical development, implies addressing the institution of the Criminal Cassation as a development of protection of fundamental rights and guarantees, mainly and As object of the present study it is necessary to approach the legal scenarios in which the decision to refuse the practice of the test has repercussions and projections in the sentence with a vocation of attack through the cassation appeal.

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