El derecho del juez natural en el delito de concusión en la jurisdicción penal militar en Colombia

Abstract

In matters of military criminal law, it is understood that the jurisdictional jurisdiction of military criminal courts subsists due to two specific situations, namely: 1. That the punishable conduct committed by the member of the public force is carried out while on active duty; and, 2. That the punishable conduct committed by the member of the public force is carried out in relation to the same service (Law 1407 of 2010, art. 4). Thus, the relationship with the service is the element that provides for the application of Law 1407 of 2010 (Military Penal Code) and not the application of Law 906 of 2004 (Code of Criminal Procedure); However, once the content of the Military Penal Code has been verified, it is identified that the criminal type of concussion is not classified in its content. The above implies specifying and insisting that the Military Penal Code does not contain the criminal type of concussion, which is why it is a conduct that is judicialized in the ordinary jurisdiction and based on the Penal Code (Law 599 of 2000), resulting incongruent. in cases in which the concussion is committed by a member of the public force while on active duty or during the same service, a situation that surrounds the topic under investigation. Thus, when a member of the public force, abusing his or her position and functions, constrains or induces someone to give or promise the same member of the public force or a third-party undue money or any other utility or requests them, he or she would be incurring the non-military criminal type of concussion (Cárdenas, M., 2013). The contradiction that is identified is that it is considered that if the member of the public force commits the crime of concussion while on duty or in relation to the same service, he would not have to be prosecuted by an ordinary judge taking into account the same service. , entailing by virtue of art. 4 of Law 1407 of 2010 to be a conduct that should be the responsibility of a Military Criminal Judge.