El derecho disciplinario en Colombia: estructura, evolución y tensiones en la práctica

Abstract

This research study was conducted with the overall objective of determining the state of the art of disciplinary law in Colombia, based on an analysis of theoretical concepts, regulatory developments, and procedural structures, with the aim of understanding the role of disciplinary law in public ethics and the oversight of the administrative function. First, the study addresses fundamental concepts of public administration, the civil service, and public servants. Public administration is understood as an organization serving the public interest, governed by constitutional principles such as morality, efficiency, and transparency, while the public service constitutes the body of regulations and institutions that govern the exercise of public employment. In turn, public servants are understood as those through whom the State exercises its functions, and they are subject to a special legal regime of duties and responsibilities. Second, a historical analysis of disciplinary law in Colombia was conducted, highlighting its evolution from early control mechanisms during the colonial era—such as the trial of residence—to its consolidation into a more structured legal system, as embodied in Law 1952 of 2021. Relevant milestones are identified, such as the 1886 Constitution, Law 165 of 1938, the decrees of 1968, and, especially, the 1991 Constitution, which strengthened the framework of guarantees in disciplinary law. Subsequently, the text highlights the enactment of the Single Disciplinary Code (Law 734 of 2002), its replacement by the General Disciplinary Code (Law 1952 of 2019), and its reform through Law 2094 of 2021, which introduced important safeguards such as the separation of functions and the right to a second hearing. Third, the disciplinary system in Colombia was examined, identifying its guiding principles, duties, prohibitions, procedural stages, and competent authorities, emphasizing that it is founded on principles such as legality, due process, the presumption of innocence, and proportionality. The stages of the disciplinary process are also described, from the preliminary investigation to the enforcement of the sanction, as well as the authorities responsible, such as the Office of the Attorney General, the municipal ombudsmen’s offices, and the internal control offices. Finally, the research concludes with a critical analysis of Colombian disciplinary law, identifying structural issues. Among these are: (i) the lack of impartiality resulting from the concentration of powers in administrative authorities; (ii) regulatory ambiguity in the classification of disciplinary offenses, which may undermine legal certainty; (iii) tensions with international standards regarding political rights, as evidenced in rulings by the Inter-American system; and (iv) the expansion of disciplinary “ius puniendi”, which creates risks of disproportionality and overregulation.