Responsabilidad del Estado por el Hecho del Legislador al Emitir la Ley 1996 del 2019

Abstract

Among the multiple responsibilities that a State must assume, there are those that imply “responding” for that is attributable, due to the actions or omissions of those who hold the status of legislators. One of these possibilities refers to the treatment and definitions related to people who have a disability to act “normally” within a social group. In order to give responsability to the state responsible for the aforementioned, three basic elements are necessary: The imputation of the state, exposure of the unlawful damage and demonstration of the causal link. Colombian legislation, historically, takes as reference an other countries and in this case it has taken French and Spanish legislations: in France, through the Arret de la Fleurette ruling, the “equality of burdens” was argued, referring to the state's responsibility to know how to issue laws. and of the people to comply with them, including compensation when the law fails, especially for the less fortunate and/or disabled; In Spain, “Patrimonial Responsibility by fact of the Legislator” was supported, but more politically than patrimonially: The legislator would not be individually responsible, but the state that must guarantee the principles of legitimate trust and good faith of the law would be. In Colombia, foreign examples are taken and after some considerations, state patrimonial responsibility is proposed based on Special Damage. For the specific case, Law 1996 of 2019 will be analyzed, through a brief jurisprudential study, that demonstrates the need to establish measures that allow protecting and guaranteeing the rights of people with disabilities, of legal age.