Normally a pre-trial stage should start through administrative procedure known as "opening of preliminary investigation". If it is not possible to verify within the following six months the competence of the supervisory body, the occurrence of the behavior and its impact on public property, or the identification of public or private servants that caused the detriment, the procedure must be finalized and its archiving ordered.
Otherwise, that is to say if there is sufficient evidence to proceed with the process, the "Opening the process of fiscal responsibility" is to be ordered, which must be notified to the person under investigation, in order to enable him/her to exercise his/her right of defense. Furthermore, this order directs the investigation of property of persons posing as potential perpetrators of the acts under investigation and the reporting requirements shall be issued immediately to the appropriate authorities.
As a way to ensure payment of the obligation, the CGO is authorized by law to issue an order of precautionary measures (seizure and confiscation) against property and assets, whether they are inside or outside the national territory. This measure ultimately seeks that the fiscal responsible is not insolvent and repairs the damage caused to the State.
As in other areas of law, the absence of the person under investigation, due to the fact that his/her location is unknown or because he/she does not appear to the process, shall be compensated with a legal aid lawyer provided by the State in order to continue the process with him/her1.
The investigated person has the right to request or bring to the process the practice of evidence he/she deems appropriate. This request once valued by the investigating officer shall be dispatched favorably. The denial of the practice of such evidence must as well be notified and may be subject of remedies of revocation or hierarchical appeal . (In administrative matters, appeals may be preceded by a preliminary administrative appeal2, either to the author of the decision - known as remedy of revocation - or to that person's superior, known as a hierarchical appeal).
In addition to the actions of second instance granted to the person being investigated that enable him/her to exercise his/her right of defense in the process, the law provides that any gathering of evidence without fulfilling legal requirements or when affecting fundamental rights will be taken as non-existent. But beyond this, the person under investigation can controvert the legally alleged evidence during the process3.
Similarly, Law 610 of 2000 adopted the general principles of law regarding the rejection and causes of nullity, as a point of procedural equality between the parties. This means that when the person under investigation notices that there is conflict of interest in the case, he/she can use the tools given by law to restore procedural fairness. The above-mentioned law also states that the lack of competence of the official, the violation of the right of defense, or proven and substantial irregularities affecting due process generates annulments that may be proposed any time prior to the final judgment. In addition they can be ordered ex officio by the official and in the case of refusal they may be subject to remedies of revocation or hierarchical appeal.
The law also determines that from the moment of the opening of the process of fiscal responsibility, the CGO may use the power of "judicial police" in order to make more effective and efficient its work, which allows the CGO to:
- Forward informally preliminary investigations concerning detrimental acts against the financial interests of the State.
- Coordinate its actions with those of the Attorney General's Office (Fiscalía General de la Nación).
- Request information from government or private entities in search of data of interest to request the initiation of the process of fiscal responsibility or of interest to inquiries or investigations still pending, and to achieve the identification of assets of those involved in the events giving rise to damage or loss of assets of the State, without a reserve concerning such a request being effective.
- Report assets of the suspects to judicial authorities, in order to allow them to take appropriate precautionary measures, without having to provide any warranties.
1 Article 42 of Act 610 of 2000.
2 Article 24 of Act 610 of 2000.
3 Article 30 of Act 610 of 2000.