Derecho disciplinario y el sistema de numerus apertus

Abstract

In disciplinary matters, specifically in Colombian disciplinary law, a double system is used to configure the imputation of conducts or behaviors qualified as misconduct in the disciplinary statutes, as well as the qualification of the same, The first one is based on the open types that are contained in the disciplinary law and that allow the judge to adjust the conduct committed at the time of formulating the charges according to each particular case, since it is impossible to incorporate or list in the disciplinary statute each and every one of the duties and functions of each public servant whose breach, non-observance or omission could lead to a disciplinary offense, therefore they are called open. The other system consists in the use of the numerus apertus model as a response to the legislative omission in said normative bodies regarding the modality or title in which the conduct constituting a disciplinary offense may be committed, a system that allows the disciplinary judge to modify the title of imputation of the behavior constituting a disciplinary offense after the facts have been committed, even after the formulation and notification of the charges of which the official is accused, that is, at the moment of incriminating the disciplined subject, which contravenes the principle of legality and with it the constitutional postulates of due process, since it directly affects the prerogative of the right of contradiction, thus violating the guiding principle of respect for human dignity. DISCIPLINARY LAW AND THE NUMERUS APERTUS Thus, as long as the legal-disciplinary operator is empowered to implement the model of incrimination of clauses or open lists in the development of a disciplinary process, it is justified that he can also decree the use of open lists in the development of a disciplinary process, it is justified that he may also decree the nullity of the administrative act through which the charges are formulated and imputed and proceed again with its issuance but this time modifying the description of the behavior as to the qualification of guilt, from malice to guilt as a parameter of opportunity in order to respect the administrative due process that is recognized to the disciplined and that he may fully exercise his right to the contraction and not be undermined.