PRESCRIPCIÓN DE LA ACCIÓN PENAL DE CARA A LA APLICACIÓN DEL PRINCIPIO DE OPORTUNIDAD EN MODALIDAD DE SUSPENSIÓN DEL EJERCICIO DE LA ACCIÓN PENAL

Abstract

The present study addresses the structural dialectical tension between the principle of strict legality and the regulated Principle of Opportunity (PO) within the Colombian criminal justice system, focusing the analysis on the effects of the latter on the statute of limitations of the criminal action. It argues that prescription is an institution of substantive nature and constitutional rank (Art. 29 of the Constitution), which operates as an ethical and insurmountable limit on the State’s ius puniendi, ensuring the fundamental guarantee of a reasonable time.

A critical hermeneutical conflict is identified: the suspension of the exercise of the criminal action (as a modality of the PO) is neither conceptually nor functionally equivalent to the suspension of the calculation of the limitation period. The unifying jurisprudence of the Constitutional Court (SU-126/22 and SU-214/23) has had to intervene to correct interpretations which, by blurring this distinction, generated a risk of de facto imprescriptibility and violated the pro homine principle.

It is concluded that the application of the PO, although legitimate as a tool of criminal policy and efficiency, must be strictly regulated and cannot compromise legal certainty. It is proposed that the suspension of the exercise of the criminal action should entail the suspension of the limitation period only for the maximum period established by law (three years), and that, in the event of prosecutorial omission in issuing the waiver once this period has elapsed, the Judge of Guarantees Control must intervene to declare the extinction of the criminal action, thereby preserving procedural loyalty and the rights-protective temporality of the process.