"Aplicación del principio ""verdad sabida y buena fe guardada"" y los derechos fundamentales al debido proceso y a la defensa en Colombia. Análisis de caso"

Abstract

"Known truth and good faith kept"" is a principle of Law whose origin dates from the Spanish mercantilism. Initially its purpose was to be a useful tool to accelerate commercial treatments, because decisions under its application were covered of celerity and absence of formalism, which facilitated conflicts resolutions in a brief and summary way without delays In Colombia, after its application in commercial, administrative, and juridical conflicts resolutions, this principle was incorporated to the Colombian legal system in the political constitution of 1991, as a powerful tool which gives to the Republic General Comptroller the authority to demand the suspension of a civil servant, without motivations and presentations of his reasons.The main objetive of this research is to establish whether the constitutional protection of fundamental constitutional rights to due process and defense, counteracts the effectiveness of the implementation of the requirement of suspension from a job position based on the principle "" Known truth and good faith kept "" so it arises the follow research question: Does the exercise of fundamental constitutional rights to the due process and defending, minimizes the effectiveness and timeliness in the implementation of the suspension from a job position based on the principle Known truth and good faith kept? .To find the answer to this concern, in first instance, the principle of "" Known truth and good faith kept "" is analyzed, based on the knowledge of its historical origin, evolution and constitutional and legal implementation in Colombia, making an analysis of the jurisprudence which exists on the subject. After, it studies its utilization, in order to show whether this instrument is affected in its effectiveness and opportunity for the constitutional protection of the rights to due process and defense, finally, it establish the analyse of a sentence unification, in response to the question raised. In this way after appreciating the fundamentals of constitutional principle, its application, and the position that has laid the Constitutional Court in this matter, is that the suspension of a public servant, based on the principle "" Known truth and good faith kept ""is a legal possibility given to the Fiscal Authority Control contained in the rule of law as a provision intended to safeguard public property, in a quick and efficient manner, which must respect the constitutional and legal guarantees of due process involved and the defense, without the exercise of these rights minimize their effectiveness and timeliness. Nevertheless, in order to guarantee the rights mentioned above, the Comptroller must obey the constitutional norms, providing strong evidential arguments which allow him deduce that with its application, the economic and social stability of the implied won't be illegally involved. To do this, the Comptroller have only the jurisprudence which regulate this issue, and settle the boundaries and ranges of the measure, because this constitutional principle does not require legal development. This aspect must be taken into account by who demands and who obey the legal measure, taking a careful review before its imposition to avoid disastrous consequences for misapplication"