El Principio de Congruencia Dentro del Enfoque Adversarial en el Contexto Colombiano.

Abstract

Through the constitutional reform of 2002, Colombia welcomed the criminal prosecution model commonly designated by the general theory of the process as "ADVERSATIVE ACUSATORY." As is known, the incorporation of an institution that profoundly modifies the judicial practices conserved until the moment of entry into force implies a process known as individuation. which means that society appropriates the institution, printing some adaptations to its particular way of conceiving criminal law, criminal policy, as well as judicial policy and justice itself. However, this process has limits, informed mainly by the determining aspects of the principality of the institution. that is, the institution is socially adequate, but without investing its fundamental postulates. One of the essential postulates of the adversarial adversarial model is that the judges cannot alter the charges made by the accusers in the exercise of their function. Otherwise, a negative chain reaction is generated against the budgets of the procedural model. among them, the impartiality of the judge, the accusatory principle, the adversarial principle, the right of defense, the legality of the procedural forms is to say due process, the right of contradiction, the non bis in idem and, the interdiction of res judicata. It is commonly known as metalegal congruence principle. whose significance indicates that the tendency of the procedural model depends on its management. in this way, it is innate to the adversarial accusatory model to prohibit judges from practicing faculties iura novit curia, to prevent the aforementioned principal budgets from being reversed. While the models of inquisitorial approach, are characterized to the contrary. that is, that the judges in exercise of constitutional powers iura novit curia, can modify for correction purposes, the charges for which they will issue a judgment of merit. Despite having a constitutional order to practice the accusatory-adversarial lineage model, the supreme court of justice through its jurisprudence, contrary to not only the constitution but also Law 906 of 2004, has been granting powers iura novit curia judges, empowering them to modify the charges specified in the indictment by the attorney general of the nation. This is based on the absence of a “pure” accusatory-adversative model, but one appropriate to the local conditions of the country. The research analyzes the effects of this jurisprudential trend, the solidity of its foundations and the need to reorient this trend, formulating specific mechanisms for reconduction.