A propósito de la prueba ilícita y de las excepciones de la cláusula de exclusión: una lectura crítica desde la reserva judicial en Colombia

Abstract

From a doctrinal and jurisprudential perspective, this study examines the structural tension between the constitutional mandate of evidentiary exclusion established in Article 29 of the Political Constitution and the exceptions introduced by Article 455 of Law 906 of 2004, questioning whether doctrines such as the independent source, inevitable discovery, and attenuated connection constitute a subversion of nullity ipso jure. Based on a critical analysis of the case law of the Constitutional Court and the Criminal Chamber of the Supreme Court of Justice—particularly Decisions C-591 of 2005, C-336 of 2007, and SP61025-2022—the hypothesis is validated that these exceptions operate as mechanisms of flexibilization that erode the deterrent effect of the exclusionary rule, subordinating due process to a pragmatism oriented toward punitive efficiency. It is therefore concluded that evidence obtained in violation of fundamental rights must be understood as legally nonexistent, which prevents the propagation of its effects and requires a restrictive interpretation of such exceptions, in order to safeguard judicial authorization and human dignity as material limits of the Social Rule of Law. Keywords: Exclusionary rule, unlawful evidence, legal inexistence, due process,