throughout the procedure and even now in the highly respectable opinion expressed
by the majority of this Court.
86.
I consider it procedurally and legally inappropriate to distort the traditional
concept of the amicus curiae and consider it as a means of proof or as a act of defense
supplementary to the statement of the accused or injured party, since on altering
concepts that are peacefully accepted by the doctrine and case law, confusion and
legal insecurity towards the future are sown. Therefore, in order to neutralize this
effect, it is necessary to ask what is the true legal nature of the brief that the Court
allowed the person who will ultimately bear the political and property sanctions as a
consequence of the Court's decision, to present.
87.
Ruling out the aforementioned conceptual alteration, it must be understood
that the majority of the Court decided that, instead of a hearing, the political
opposition leader could express himself only through a written document. He has
therefore been given the opportunity to submit a brief to express his points of view,
with the sole certainty that he would not be returned to him in limine as inadmissible.
88.
It is known that a brief is not equivalent to a statement at a hearing, where
the person who may be sentenced or seriously prejudiced can elaborate, be crossexamined by the parties and the judges and dispel doubts, in addition to the always
important direct impression the declarant gives the judges, which is still relevant
when it comes to assessing the veracity of the content of their statements, the
spontaneity of the answers, the degree of sincerity of their statements, their state of
mind, whether they are steady or nervous, or hesitate, etc.
89.
For these and other reasons, for some time written procedure has tended to
be shelved in procedural legislation, not only criminal, precisely because it prevents
this face-to-face, direct communication. This is so true that, with all wisdom and
prudence, this Court only admits written procedure when it comes to cases in which
only questions of pure law are discussed, which is obviously not the assumption in
this case.
90.
The conclusion reached in light of the above is that, on this occasion and in
the proceedings before this Court, a well-known leader of the main opposition party
was deprived of this right, and it is this leader who will bear the political and property
effects of the conviction, formally pronounced by this Court against the State.
III.4. Possible damage to democracy
91.
The effect of a sentence formally condemning the State, but actually or
ontically harmful to a popular leader of the main opposition force of the State, in
circumstances of very strong and ruthless political polarization and with a contested
institutional framework, is highly worrying for the future of democracy in the country,
given that nothing less than democratic pluralism and the elementary principles of
the rule of law are at stake, not to mention that it can be understood as the admission
of some of the forms of the so-called plebiscitary democracies, that they are not quite
that in the sense of international law in effect on the continent.
92.
In this regard, it should be noted that, with all clarity and precision, this Court
pointed out in 2010 in the case of Manuel Cepeda Vargas v. Colombia, the vital
importance of democratic plurality: “(…) it should be emphasized that opposition
voices are essential in a democratic society; without them it is not possible to reach
agreements that satisfy the different visions that prevail in society. Hence, in a
democratic society States must guarantee the effective participation of opposition
individuals, groups and political parties by means of appropriate laws, regulations
and practices that enable them to have real and effective access to the different
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