A few hours before the definition at the polls of who is to be elected president of the Republic of Colombia in the second round, one of the two candidates -engineer Rodolfo Hernández- finds himself in a difficult situation, from a legal point of view, since , in the case known as Vitalogic, he has been charged by the Attorney General's Office, which points him out as responsible for the crime of improper interest in the execution of contracts, according to events that occurred during his tenure as mayor of Bucaramanga.
Here we will not refer to the background of the matter, nor to the details of the criminal process in progress, but to the hypotheses that could be configured from the constitutional perspective, whether the aforementioned candidate is elected or loses.
If the former, we would be talking about a President of the Republic who, by the time of his inauguration on August 7, would be imputed or -if, before that date, there is a judicial decision against him- sentenced in the first instance.
If the latter, we would have a future congressman in those same circumstances, since, since 2015, the Constitution has established that the second in votes for the presidency will occupy a seat as senator of the Republic.
Of course, as long as there is no final conviction, the innocence of the accused is presumed, and nothing prevents the engineer from continuing to participate in the electoral process, since there is no inability to be elected due to an imputation.
There is only inability to be elected who has been sentenced at any time by judicial sentence, to imprisonment, except for political crimes or negligent.
This is the result of articles 179-1 and 197 of the Political Charter.
The problem is not insignificant, since it is not about the election of any official, but of the head of state, head of government and supreme administrative authority of the Nation.
Who, as article 188 of the Constitution says, "symbolizes national unity and by swearing to comply with the Constitution and the laws, undertakes to guarantee the rights and freedoms of all Colombians."
From the director of foreign relations of Colombia.
From the supreme commander of the armed forces of the Republic.
The President of the Republic enjoys special constitutional jurisdiction, in terms of investigation and prosecution, for common crimes, crimes in the exercise of functions or indignity due to misconduct.
He shares it with the magistrates of the high corporations of Justice - the Constitutional Court, the Supreme Court of Justice, the Council of State and the National Commission for Judicial Discipline - and with the Attorney General of the Nation.
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In accordance with article 199 of the Constitution, "the President of the Republic, during the period for which he is elected, or whoever is in charge of the Presidency, may not be prosecuted or tried for crimes, except by virtue of an accusation of the House of Representatives and when the Senate has declared that there is room for the formation of a cause”.
I underline: during the period for which he is elected, which means that, if engineer Hernández were elected, his term only begins on August 7.
In this type of process, which has a first political part -the Accusation Commission of the House of Representatives, a plenary session of the House and a plenary session of the Senate- and a criminal part -before the Supreme Court of Justice-, in the event that there is room for to follow-up of cause, there are rules that the Constitution indicates in its articles 174 and 175.
The House of Representatives may impeach or refrain from impeaching.
A precedent on this power is found in the case of former President Ernesto Samper Pizano, who was not charged before the Senate.
Article 174 of the Constitution provides that the Senate is responsible for knowing the accusations that -after investigation by its Accusations Commission- formulate the House of Representatives against the President of the Republic or whoever takes his place.
The Senate may or may not admit the accusation made by the House.
If he does not admit it, the process ends there, which shows the clearly political nature of the procedure that is carried out in Congress.
If the Senate admits the accusation coming from the Chamber, article 175 establishes several procedural rules, which in this case, depending on whether or not there is an accusation, should be applied:
-The defendant - expressly states the rule - "is in fact suspended from his job, provided that an accusation is publicly admitted."
That supposes that there is an accusation by the Chamber and that the Senate admits it.
Some think that this accusation may be the imputation of the Prosecutor's Office, but it is debatable, and the Senate could not admit it if it does not come from the Chamber.
-If the accusation alludes to crimes in the exercise of functions, or to indignity, the Senate may impose the penalty of dismissal from employment, or the temporary deprivation or absolute loss of political rights.
In addition -in the first hypothesis- the defendant must face the criminal trial before the Supreme Court of Justice.
If the accusation deals with common crimes, it establishes the norm that "the Senate will limit itself to declaring whether or not there is room for follow-up of the case and, if so, it will place the accused at the disposal of the Supreme Court."
In the case of not being elected president, the candidate would be a senator of the Republic, and, therefore, would have -during the period- constitutional jurisdiction before the Supreme Court of Justice.
And, in the case of conviction, there would be what we call an “empty chair”: “In no case may those convicted of crimes (…) intentional against the public administration be replaced.”
As can be seen, since, for now, there is no conviction, nor has there been a popular vote, at this time it is not possible to be sure what the fate of the candidate Hernández will be from the constitutional point of view.
It all depends on what is happening.
José Gregorio Hernández Galindo is former president of the Constitutional Court of Colombia.
University professor.