Principles Of Opportunity In Criminal Law

PRINCIPLES OF OPPORTUNITY IN CRIMINAL LAW

Introduction

This principle was born with the implementation of Legislative Act 03 of 2002 through which the 1991 Political Constitution is reformed to be more exact in its ART. 250, this important tool was introduced in order to achieve an alternative solution of conflicts that originate from criminal acts, thus, being a form of extinction of the criminal process with the principle of opportunity, the Attorney General’s Office can suspend, interrupt or give upCriminal prosecution. 

Developing

The principle of opportunity as an exception to the general rule that falls on the Prosecutor’s Office to advance the criminal action and carry out the investigation of the facts that have the characteristics of a crime, has among its purposes rationalize the investigative activity of the State, make more efficient theCriminal Justice Administration, responding proportionally to the facts that affect legal stability, comprehensively and timely repair victims, provide real social insertion opportunities for prosecuted.

Reveal the low social significance of certain crimes, dismant. "The philosophy of the principle of opportunity lies therefore, in the need to simplify, accelerate and make the administration of criminal justice more efficient, decongesting it from crime". The normative support of this principle can be evidenced in Title IV of Law 906 of 2004 in which in its art. 324 The scenarios are taxatively found.

In which its application can be given in this application of this principle, the interests of the victim to which their rights to truth, justice and reparation must be taken into account. In all the scenarios of application of the principle of opportunity, the jurisdictional control should be attended as the Constitutional Court has highlighted, concluding that the judge of guarantees proceeds in front of any modality or scenario of this principle. As general characteristics of the principle of opportunity, this court has identified:

a) It must be applied within the framework of the state’s criminal policy;b) is an exceptional and regulated figure;c) The causes of application must be established by the legislator in a clear, precise and unequivocal way and be in accordance with the Constitution;d) Its regulation must be compatible with the validity of a fair order, the principle of legality and the rights of victims;e) The prosecutor enjoys a reasonable margin of interpretation in the application of the law, but this is not unlimited;f) will be subject to the control of legality by the Judge of Control of Guarantees.

Example of the application of the principle of opportunity: Juan is a member of a criminal gang that plagues the city of Cartagena being one of the most powerful in the country. The function he performed was to keep the weapons with which the criminal acts were committed, but one day he decides not to carry out this activity, later he comes to knowledge of the Prosecutor’s Office that Juan was in charge of keeping the weapons therefore the prosecution accuses him of therespective crime, but Juan decides to collaborate for the dismantling of this criminal gang clearly in order for the Attorney General’s Office not to process it.

Which is beneficial for the State, since due to its complaint it will reach the capture of the leaders of this band which is in accordance with the principle of opportunity adapting to the cause 4 of the application of the same indicated in Art. 324 of Law 906 of 2004 which says: “When the accused or accused, until before starting the trial hearing, he effectively collaborates to prevent the crime from continuing to be executed, or that others are carried out, or when it provides effective information for theDisarticulation of organized crime bands ”.

It is necessary to point out that criminal coding is clear in expressing that the principle of opportunity will not be applied in investigations or accusations for facts that threaten international humanitarian law, crimes against humanity, war or genocide crimes, or when the victim is a minoreighteen -year -old. As already mentioned, the process of application of the principle of opportunity is at the head of the Attorney General’s Office of which for this request a mandatory format that will contain: 

Filming number of action, indicating its parts and intervening, summary of the factual situation object of investigation, elements of conviction related to the budgets of the cause invoked, list of the facts or circumstances that allow the application of the cause,the reasons of legal and procedural order that motivate the application of the principle of opportunity.

conclusion

Finally, the Guarantees Control Judge must determine the legality of the application by the Prosecutor’s Office to apply to the principle of opportunity This is within the term of 5 days, this control will be carried out in a special hearing where the victimand the Public Ministry may controverswal the evidence raised by the Prosecutor’s Office. The application of this principle does not compromise the presumption of innocence unless there is a minimum of evidence that can infer the authorship or participation in the respective behavior.