APLICACIÓN DEL PRINCIPIO DE OPORTUNIDAD EN LA JUSTICIA PENAL MILITAR

Abstract

The study examines the legal and criminal policy feasibility of reinstating the principle of prosecutorial discretion within the Colombian military criminal jurisdiction. Using a qualitative approach based on normative, jurisprudential, and doctrinal analysis, it reviews the principle’s background in ordinary criminal justice, its introduction and subsequent declaration of unconstitutionality in the military sphere, and identifies tensions with the principles of equality, human dignity, and proportionality. The paper proposes a phased reform pathway: first, the amendment of Articles 221 and 250 of the Constitution to expressly enable the application of the principle within the military jurisdiction, subject to judicial oversight and the State’s criminal policy; second, statutory adjustments to the grounds, procedure, and oversight mechanisms, with strict limits, categorical exclusions for serious violations of human rights and international humanitarian law, and effective participation of victims; and third, regulatory alignment with the National Criminal Policy Plan and the establishment of ex post evaluation mechanisms. The study concludes that a narrowly tailored and regulated version of the principle, limited to low-harm conduct and subject to robust legality control, enhances efficiency, reduces case backlog, strengthens reparations, and restores procedural equality, without undermining discipline, hierarchy, or the constitutional mission of the Public Force.