criminal proceedings, which are more strict than the guarantees of due process required in administrative
procedures.”83
122.
The Commission understands that the requirement of a final criminal judgment can be
explained because, if the disqualification of an officer is based on solely administrative offenses, which do not
constitute a crime, this could prevent some individuals from holding public office. There are less injurious
means to accomplish the objective, which must be assessed by fully taking into account, as stated by the
European Court, that it is, in principle, the electorate in the democratic system who will be responsible for
determining through their right of active suffrage who is a suitable candidate for public office. Disqualification
for mere administrative offenses that do not constitute a crime does not satisfy the standard of
proportionality, neither in the ranking of effect on political rights, both of the individual and of society as a
whole, and it is especially significant in light of guaranteeing the suitableness of candidates to hold public
office where they may have committed administrative offenses of a certain gravity, by not reaching the level of
a crime, that this cannot justify the intense effect on political rights in the terms explained. 84
123.
In sum, both organs of the Inter-American System have reached the same conclusion in their
analysis of Article 23(2) that there is a clear rule according to which the sanction of disqualification from being
elected by popular vote must be imposed by a final criminal conviction, not through administrative
procedures.
2.
Analysis of the present case
124.
In the present case, the Inspector General of the Nation imposed on the alleged victim a
sanction of general disqualification from office for a period of 15 years on December 9, 2013, for signing an
inter-administrative contract and for issuing Mayoral Decrees 564 and 570. Likewise, he imposed a new and
special disqualification on June 27, 2016, for issuing Decree 4002, which modified the norms of the Guidelines
of Territorial Planning. The Commission highlights that the Political Constitution grants disciplinary powers to
the Office of the Inspector General of the Nation without expressly mentioning the possibility of imposing a
sanction of disqualification. Said sanction is considered in the Single Disciplinary Code among the various
sanctions that said entity can impose in the exercise of its disciplinary powers as provided by the constitution.
125.
The IACHR observes that the disqualification of Mr. Petro Urrego was not imposed by a final
decision of a criminal court as is required by the above-mentioned standards. Additionally, the authority is not
the suitable one to impose a sanction of this nature, given that the disciplinary offenses that Mr. Petro Urrego
may have committed did not constitute criminal offenses, and it is evident that the sanction of disqualification
is incompatible with Article 23 of the American Convention as analyzed above. The Commission highlights that
the sanctions of dismissal and disqualification were imposed on the alleged victim, then Mayor of Bogota and
elected by popular vote, during his mandate. For the above reasons, the sanction of disqualification imposed
on Mr. Petro Urrego constituted an arbitrary restriction and contravenes his political rights.
126.
In addition to this conclusion, the Commission is profoundly concerned about the recent
adoption of Article 5 of Law 1864, which imposes a prison sentence of 4-9 years on a person elected to office
by popular vote while also disqualified due to a “judicial, administrative, or fiscal” decision. This norm, while
validating that disqualification may be imposed by “disciplinary or fiscal” decision, contravenes Article 23 of
the American Convention, and, therefore, as stated in the recommendations herein, would constitute another
violation of the political rights of Mr. Petro Urrego, who has not been disqualified by a final decision of a
criminal procedure as required by the Convention.
127.
Finally, the Commission is cognizant that the main defense of the Colombian State relies on
the prior decision of its Constitutional Court holding that the Inspector General of the Nation may disqualifies
21.
83
IACHR, Report No. 92/09, Case 12.668, Merits, Leopoldo López Mendoza, Venezuela, August 8, 2009, para. 91.
84
In similar sense, see also expert witness report from Humberto Nogueira Alcalá in the López Mendoza v. Venezuela Case, p.
23