Prescripción de la acción disciplinaria en el marco de los procesos iniciados bajo los términos del artículo 132 de la ley 1474 de 2011 por la aplicación del principio de favorabilidad.

Abstract

Taking into account that Law 1474 of 2011, in its article 132, modified the prescription term of disciplinary processes by indicating that the prescription of five (5) years, to exercise disciplinary action, began to be counted from the order opening of the disciplinary investigation. Now, what happens if, after having initiated a process under the protection of this regulation, a law is promulgated, which establishes that the prescription of five (5) years, must be computed, from the occurrence of the act or from the last Made for continued enforcement offenses, eliminating the expiration term of five (5) years existing in the previous regulation? Well, in that event, the application of the norm after the investigated subject will be more favorable, because it contains a more beneficial procedural guarantee.

It is precisely the preceding legal situation that is currently presented, as a result of the fact that the (Congress of the Republic, Law 1952 of 2019, article 33) or the General Disciplinary Code [CGD], has established that the prescription would begin to be counted long before the issuance of the opening order; that is, from the very moment of the performance of the conduct. For this reason, although article 22 of the CGD is not yet in force, it will certainly lead to the promotion of numerous requests before the Internal Disciplinary Control Offices of public entities, or before the Ombudsmen or Attorneys that exercise preferential power, so that the most favorable regulations are applied, when the processes are being processed under Law 734 of 2002 and the modification that in this understanding made Law 1474 of 2011, in order to request the prescription of disciplinary processes where it has not been proffered failed.