EL ESPECTADOR, October 8, 2023
(Translated by Eunice Gibson, CSN Volunteer Translator)
On three occasions, without any luck, Francisco Barbosa’s prosecutors have tried to make this file go away. Both Petrism and the opposition want to use it to their advantage at the polls. That’s what we’re seeing here in a movie that’s highly charged both judicially and politically.
Ex-President Álvaro Uribe Vélez, at 5:03 p.m. last Thursday, tweeted the news that the investigation against him for possible procedural fraud and witness tampering would not be closed, just 24 hours before a hearing on that was scheduled to take place on Friday in the Superior Tribunal of Bogotá. That set off a political storm because, between speculation and analysis of juridical scenarios that he, himself, had nurtured, Colombia could see one of its ex-Presidents hauled before a criminal court.
The media bomb that exploded in 42 letters is summarized in the phrase, “they denied my motion to dismiss, and they ordered me to be brought before the court.” It was let loose 24 days—counting from October 5—before the election in which the country will reconfigure its regional power map, an election in which Uribe is playing a key role. He has spent more than a month electioneering pure and simple, pushing for the candidates of his party, the Democratic Center Party, and embracing in the public plaza all those that are supporting his team.
Because of that, inevitably, the third failure by Francisco Barbosa’s prosecutors who were trying to close down this case, in a decision that was confirmed on Friday in the late afternoon, will require the agency to reassess its options, including whether or not they prosecute Uribe. That will be a political card that—not only the opposition, which includes the ex-President himself, but also all of the officials that support the administration of President Gustavo Petro—want to use to their advantage in a powerfully charged and fiercely polarized campaign.
The Democratic Center is a Party that holds 13 seats in the Senate and 16 in the Chamber of Representatives. At the regional level, counting support by individuals and groups, it has four of 32 governors, 35 of 418 deputies, 154 of 1,102 mayors, and 1,685 of 12,063 members of municipal councils in the entire country. Aided by the more and more fractionalized image of Petro, and with a very active Uribe, who went to five different departments just last week, they hope to gain more local power. That’s why the most powerful voices in the Party immediately came out to label the court decision against their leader as a political act intended to keep him from making progress in the elections scheduled for this coming October 29.
“While the ex-President gave us back our faith in Colombia, he is being persecuted unjustly; the one who set the country on fire in the middle of a pandemic is enjoying power in the midst of the worst scandals of his administration,” was the javelin launched by Senator María Fernanda Cabal. And her fellow Party member, also a Senator, Miguel Uribe, went further and warned that, “those who are governing now have set up a strategy of defamation and slander against ex-President Uribe.”
The Democratic Center Party’s regulations have an unusual element that explains this move. In effect, in the documents that govern the procedures of this Party of the opposition, it is established that there is a board of directors that are the decision makers, but it also provides that the ex-President has the last word on everything, or at least, almost everything.
Because of that, when Uribe fired off his tweet on Thursday, it wasn’t ten minutes before all his followers began to move forcefully to seize political and electoral benefits. And it’s not that Uribe gave the order, but—as a source warned him—in polarized situations like this one, and with only three weeks until the elections, “everything that the ex-President says is a tacit call to action.”
Cabal was even explicit: “Deplorable coincidence in charging ex-President Uribe when there’s less than a month until the elections.” Even though that decision has yet to be made in the bunker, at least until the deadline for this edition, for the ex-President’s followers, there could be no reason other than politics to try to take that step.
“The country is familiar with this record and there is not one single sign of improper conduct,” urged Senator Paloma Valencia. Thus the general call from the center right in the country is to punish Petro’s Historic Pact Party at the polls, because they see some of its members as responsible for the court decision that happened to Uribe.
But since in politics there are always two sides, or 35 sides, which is the number of parties that have been registered by the National Electoral Council (CNE) to support the more than 128,000 candidates that are competing for regional power, even Petrist officialism can also get some benefit from the case of the ex-President who governed Colombia from 2002 to 2010.
In effect, one of those voices was the voice of the candidate for Mayor of Bogotá, Gustavo Bolívar—running second in the polls of those intending to vote—who went out on offense, feasting on the prosecutors’ procedural failure and recalling, tacitly, the scandal of the false positives. “6,402 motives for celebration, but don’t sing a victory song. Santiago Uribe, your brother, was convicted two years ago and the courts have halted the decision. But there’s something here. A light of hope when the truth can blaze out,” he admonished.
And here is the key, at least for the political spectrum and electoral base for the first leftist President that Colombia has had in its more than 200 years as a republic, the role being played by Attorney General Francisco Barbosa and those who have been leading the process since 2020, when it was referred to them by the Supreme Court of Justice.
Senator Iván Cepeda, (Democratic Pole Party), who is recognized as the victim in this case, warned that, “for these three years, we have to be clear about this, Attorney General Barbosa has made sustained efforts trying to keep this case from going to court. The prosecutor Gabriel Jaimes, whose actions are definitely biased, tried early on to get the case dismissed. Then Attorney General Barbosa tried again to get it dismissed, this time using prosecutor (Javier) Cárdenas.”
But since that didn’t work, and the criminal case against Uribe is continuing, it’s a fact that in these three weeks before the elections, all of the actors are moving their cards on the elections card table and are going to try to take advantage. There’s more, the arrows have more and more poisoned, and the candidates, on both sides, are making more visceral attacks. Several of the campaigns have confirmed this. But how did this court case get to such a political implosion?
The court looks at the record in the Uribe case
The case against Álvaro Uribe has its origin in a complaint he himself filed against Democratic Pole Party Senator Iván Cepeda, who, in a debate in the Congress, offered the testimony of former paramilitaries who connected the ex-President with the Self-Defense Forces in Antioquia. Uribe filed a complaint in the Supreme Court and six years later, in February of 2018, the High Court concluded that Cepeda’s conduct had not been irregular in any way but, on the contrary, it identified possible irregularities in the conduct of Uribe’s defense. At that time, the High Tribunal detected some alleged pressure by the ex-President and his defense team against the witnesses who had been testifying against him.
Thus, the Court closed the case against Cepeda, but opened the door to this record, a record that’s unique in the judicial history of this country. One of the pressures that the Court identified, for example, took place during visits by Uribe’s then-counsel, Diego Cadena, to the star witness against him, the former paramilitary, Juan Guillermo Monsalve. In those visits, the lawyer in question apparently promised him legal benefits if he were to change his testimony. The Court carried out its investigation in total secrecy and nearly four months later, after corroborating the allegation that Uribe’s allies had engaged in witness tampering, supposedly with his knowledge, announced that it would open a formal investigation against Uribe.
Ever since its commencement, the case has undergone every kind of controversy. One of them got started months after the Court began its investigation of Uribe in September of 2018. At that time the High Court admitted that it had intercepted the ex-President’s phone calls in a manner that was “unforeseen and unavoidable”. It had happened in connection with the inquiry into the “cartel de la toga”,[1] in which the High Court wanted to intercept calls made by ex-Member of Congress Nilton Córdoba, but, the Justices explained, Uribe’s telephone number had appeared. That has been the point of the lance used by the ex-President to insist, over and over, that the evidence against him was obtained illegally. However, the Court has rejected that argument on several occasions.
The Supreme Court summoned Uribe Vélez to appear for questioning in October of 2019, and the ex-President attended at the Palace of Justice. Ten months later, in an unusual action, the Investigations Branch of the High Tribunal, in charge of investigating the ex-President, ordered his preventive arrest so as to avoid any alterations in the regular judicial procedure. The ex-President, then a Senator, was arrested at his ranch, El Ubérrimo, in Córdoba. He remained in custody until October 2020, after his lawyers moved the case to the Attorney General’s Office and went before a judge to request his release.
How did this record end up in the hands of Francisco Barbosa’s Attorney General’s Office? It turned out that 14 days after the Court had ordered him to home detention, Uribe gave up his seat in the Senate, causing the High Court to lose its jurisdiction to investigate him as a person (member of Congress) entitled to a constitutional privilege. “I don’t have any guarantees in the Supreme Court,” said Uribe at the time through Twitter. His departure from the Congress not only represented an advantage for the ex-President, but it also opened a dangerous gap for other members of Congress who might follow his footsteps: quitting their seats to escape any investigation by the High Court.
With his release, the case followed its path, now in the Attorney General’s Office and in the hands of one of the highest-ranking prosecutors, Gabriel Jaimes Durán. So in November of 2020, the case took another of its many pitfalls it has had to sort out: determining whether what the Court had done amounted to the filing of charges. In summary, this was a purely legal discussion, but absolutely transversal to this case, for one reason. What the system had to determine was whether Uribe was the subject of an investigation or not. For the Court, if he had that status, well, he had already furnished testimony and the High Court itself had already resolved his legal situation, linking him to the case.
However, as it is not usual for Members of Congress to renounce their seats so that the Court loses jurisdiction to investigate them, it was not clear what ought to be done. After studying the case, a judge in Bogotá decided that the ex-President indeed had been formally charged with the crimes of procedural fraud and bribery in connection with a criminal action. On November 6, 2020, in a first appellate decision, the judge in the 4th Criminal Branch of the Circuit Court of Bogotá held that Uribe definitely should face a criminal investigation. Months later, the Constitutional Court itself confirmed that decision and made clear that the “shortcut” that the ex-President had chosen to derail the investigation by the Court was a dangerous precedent for the legal system.
From September of 2020 until March of 2021, Prosecutor Gabriel Jaimes Durán undertook a questionable investigation procedure, contrary to the Supreme Court’s whole theory of the case. His inquiries culminated in a questionable conclusion: in April of 2021, Jaimes requested closure of the Uribe case, going before another Judge in Bogotá. Thus he began a series of interminable hearings. For one thing, the recognized victims in the case, Iván Cepeda, Eduardo Montealegre, Jorge Perdomo, and Monsalve’s wife, stated the reasons why the Prosecutor’s theory was completely mistaken. For another thing, Uribe’s defense, the investigating agency, and the Inspector General’s Office explained why the case did indeed have to be closed down.
The parties made their arguments for nearly a whole year. A year after Jaimes had submitted his petition for dismissal of the case, the courts decided, for the first time, that the record could not be placed on file for no further action. On the contrary, the decision placed in evidence the errors made in the investigation by Prosecutor Gabriel Jaimes Durán. One of those was not even calling ex-President Uribe in for questioning. With that finding, which was revealed in April of 2022, the most logical thing to do, according to criminal procedures, ought to have been taking Uribe to trial. However, Barbosa’s prosecutors surprised us again. First, they announced that the case would be assigned to a different Prosecutor, a subordinate of Gabriel Jaimes Durán himself: Javier Cárdenas.
In a second surprise, the new Prosecutor, after making his own evaluation of the evidence (He did call in the ex-President for questioning.) went back to requesting that the investigation be closed down. At that point in the case, May of 2022, history repeated itself. The parties explained their arguments, for and against, in eternal hearings that once again lasted nearly a whole year. Not much had changed in the Prosecutors’ arguments, a situation that the new Judge took into consideration, and her opinion didn’t hold back criticism of the investigating agency.
Two months after Cárdenas had asked that the case be dismissed, the court system once again delivered a flat-out no. That decision made clear, once again the gaps in the investigation.
The Judge pointed out, for example, that she found the Prosecutors’ attitude had slowed the case down, that Cárdenas had not even been clear in the presentation of his investigation, and that, in any case, if there were doubts about the evidence in the case, the correction should be investigating further, not just closing down the whole investigation.
With this new decision another scenario came back to life. Logically, for experts in criminal law, the investigating agency would charge ex-President Uribe. However, that logic didn’t apply to this case either. Although the Attorney General’s Office didn’t appeal the decision to not to close the case, the ex-President’s defense team did appeal it, and so the case landed in the Superior Tribunal in Bogotá.
And, for the third time, the courts said that the prosecutors’ decision to close down the investigation is wrong. During a little more than four hours, Justice Carlos Andrés Guzmán read excerpts from the 271-page decision, in which he was joined by his two colleagues in the Criminal Branch, Hermens Lara and Dagoberto Hernández. And once again history repeated itself. The Justices, unanimously, held that the investigating entity did not do its work well, that there were pieces of evidence to be pursued in the case against Uribe, and, by the way, they once again reminded the Attorney General’s Office: if there is doubt about evidence, the thing to do is investigate and not close the file with puny arguments in an investigation of this importance.
As of the close of this edition and during this weekend, the Attorney General’s Office has made no official statement about the steps it plans to take. Once again, the logic of criminal procedure would indicate that the only path is to file charges against the ex-President. Nevertheless, the investigating agency has not confirmed that, nor even whether the case will be turned over to another prosecutor.
The history, with no end in sight as of now, of the record against Álvaro Uribe shows that the prosecutors have their work cut out for them, not just because the latest decision came in the heat of the pending elections, but also because Barbosa’s days in the Attorney General’s Office are numbered. For a while now everything indicates that it will be the new Attorney General who will have to untangle this political and juridical record, the most important record in many years for a lot of people.
[1] “Cartel of the Robe”, a network in which judges and lawyers accepted bribes in exchange for providing political elites with favorable outcomes. See https://insightcrime.org/News