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Is there penal responsibility of political parties in Colombia?

The participation of the parties in electing the leaders of the country (governors, mayors or congressmen, representatives or council members) shows that besides being one of the channels to exert political rights of Colombians, they also attest that citizens nominated to such important positions are suitable for the responsibility they will have, suitability that implies defending our constitutional and legal order.

But what happens when a member of a political party elected for one of these positions breaks his/her oath and violates the law? What is the responsibility of the political and guaranteeing parties when one of its members in a high appointed position uses the chair to steal from the nation? Or what happens with the parties when its senior members, those in charge of endorsing or guaranteeing that these political groups be democratic instruments and not a center for criminal conspiracy, also commit crimes?

The research project entitled “Penal responsibility of political parties in Colombia and restorative justice punishment” claims that to respond to these questions, article 107 of the Colombian Political Constitution should be reviewed:

Political parties or political movements should be held accountable for all violation or infringement of the regulations that govern their organization, operation, or funding, as well as endorsing candidates for popular voting positions, who have been or would be convicted during the exercise of the position endorsed,” [and the penalties also seem accurate:] The penalties could consist of fines, refund of public monies received from the voting replenishment system, up to cancellation of their legal status.

These are clear and concise answers and penalties, but perhaps that has not been enough, as so many convictions ramp up against popularly elected officials.

Rear more: Mandate revoking: how is it carried out and how convenient is it? (in Spanish) 

It seems the administrative penalties imposed on political parties are insufficient, and if they are, the next step is to add to the state criminal policy the investigation and determination of responsibility of the political parties for the crimes of its elected candidates as well as its leaders.

The novelty of this is overshadowed by the background of other regulations according to several international experiences: In Brazil, Law 9.605 of 1998 provided the possibility of criminal persecuting legal entities involved in environmental crimes; in Chile Law 20.393 of 2009 places penal responsibility to legal entities that do not comply with the leadership and supervision when one of its leaders has committed a crime included the scope of his/her responsibilities; in France, according to articles 121-4 to 121-7 of the Penal Code, legal entities are responsible for the crimes of their leaders.

On the means to place penal responsibility to a legal entity –or a political party– for an action attributable to a member of said organization, several theories that escape the purpose of this article: vicarial (technique applicable to the concurrence of the penalty and incarceration), of transferal or bouncing, reporting or inverse imputability.

Read more: Not “war machines” or criminals: recruited and bombarded minors are victims (in Spanish) 

According to the prior, in face of the possibility of legal entities and political parties being legally persecuted, comes the question over the type of punishment to be imposed on a political group and not to lose sight that this is a mechanism to guarantee the exercise of a constitutional right to political participation.

Question that can be solved resorting to the theories of the penalty, including restorative, where “the victims turn into the legal center as it looks into their dignity, its specific damages, needs, its historic condition and the effects that the damage caused” [1].

In this justice mechanism, certain measures are especially important: i) Restorative measures, ii) Satisfaction measures and iii) Non-repetition,  which were taken from articles of Law 1448 of 2011 [2] as well as from multiple rulings of the Council of State [3].

According to the proposal submitted, every political party to be convicted would receive punishment in “restorative” terms, i.e. sentences ordering political organizations to strengthen programs to guarantee the effective exercise of citizen rights. In terms of “satisfaction”, implying the dignity of the victim, order a massive publication of the crime that generated the penalty against the party and in third term, develop a set of measures that look for non-repetition, by establishing mechanisms and tools that look to nominate citizens that have the required morals for exercising a popular vote position.

Finally, besides reflecting on the usefulness of the penalty, national and foreign background in regards to penal actions to legal entities are added to the steps carried out by higher courts in reference to the sentences providing precedence to victims over the punishment of the perpetrator.


[1] Corte Constitucional, Sentencia C 017 de 2018.

[2] Por la cual se dictan medidas de atención, asistencia y reparación integral a las víctimas del conflicto armado interno y se dictan otras disposiciones.

[3] Sentencia del 14 de junio de 2013, sección tercera, subsección – c -, Magistrado Ponente Enrique Gil Botero, Radicado. No. 05001-23-31-000- 1995-00998-01(25180), Sentencia del 28 de agosto de 2014, sección tercera, Magistrado Ponente Ramiro de Jesús Pazos Guerrero, Radicado No. 5001-23-25-000-1999- 01063-01(32988), Sentencia del 20 de octubre de 2014, sección tercera, subsección –c-, Magistrado Ponente Enrique Gil Botero, Radicado 05001-23-31-000-1996- 00439-01(29979), Sentencia del 15 de abril de 2015, sección tercera, subsección –A-, Magistrado Ponente Hernán Andrade Rincón, Radicado No. 54001-23-31- 000-1995-09280-01(30860).


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