The unconstitutionality of debt imprisonment

Before the Constitutional Court was filed, by attorney Carlos Lizcano, a claim of unconstitutionality seeking the declaration of unenforceability of a part of the paragraph of article 402 of the Criminal Code, which was recently amended by law 1819 of 2016 (last tax reform). Such norm establishes that the withholding agent or collector who does not consign the amounts withheld or self-withheld for withholding at the source, sales tax or national consumption tax, within the two months following the date set by the national government will incur in imprisonment from 48 to 108 months and that only whoever makes the payment of the obligation "together with its corresponding interests provided in the Tax Statute" may obtain the corresponding benefit of inhibitory resolution, preclusion of investigation or cessation of proceedings. It is precisely this expression in quotation marks that is being challenged, since it would be subjecting the cessation of the criminal proceeding to the payment of the interest for late payment, thus giving equal weight to the tax due and the interest, although both concepts have a different nature, both ontologically and in terms of degree.

To support his charges, through a clear dogmatic-criminal argumentation, the plaintiff indicates that the material object on which the typical conduct falls and on which the governing verb is made is the non-consignment of the withheld or self-withheld sums of money, within which the default interest is not included. For this reason, "by assigning criminal effects to the non-payment of default interest, the principle of legality would be violated since criminal consequences would be established for the omission in the payment or consignment of an element that is not part of the criminal offense, which also violates the right to due process since it does not comply with the strict content of the criminal offense".

He also indicates that criminal law is instituted to protect essential values of society, determined in accordance with the criminal policy of the State, and limited to the "principle of necessity of intervention", since criminal law can only be used subsidiarily as an "ultima ratio", that is, when there are no other mechanisms to protect the interests of the State in a less harmful way for the defendant. This is not the case here, since the State -through the Dian- can coercively collect such amounts without having to deploy criminal consequences for non-payment.

Likewise, he indicates that the payment of late interest is due to the payment of a penalty for the delay incurred and represents, in turn, the profit or opportunity cost generated by the capital, thus constituting a debt or civil obligation whose noncompliance-according to Article 28 of the Political Constitution-cannot entail a prison sentence or arrest.

Finally, the plaintiff indicates that according to the recent jurisprudence of the Criminal Cassation Chamber of the Supreme Court of Justice (Judgment of June 14, 2017), "the obligation to economically repair the victims for the damages caused with the crime is essentially of a civil and not criminal nature (...) so it is not legitimate to assign criminal consequences for the breach of a civil obligation".

Therefore, within the framework of this lawsuit, a necessary debate is opened to define the extent to which a conduct that by express stipulation of the Political Constitution does not admit criminalization can be criminalized.

In this sense, the active participation of the professionals of the fiscal and criminal areas in Colombia is required so that -through their intervention as coadjutants or contradictors in the present process- they contribute to generate a definitive solution for this case.