Upon determining that his behavior as a lawyer can be censored ethically but not from criminal law, the Supreme Court of Justice annulled the sentence of 4 years in prison against former magistrate Rodrigo Escobar Gil. He ratified the acquittal in his favor, because he did not commit the crime of private influence peddling with the role of attorney that he fulfilled in the corruption scandal of the guardianship of the Fidupetrol firm before the Constitutional Court.
In a unanimous decision, the Criminal Cassation Chamber concluded that Escobar Gil’s actions do not reach the connotation of undue influence. “If anything they prove that he wanted to appear to the principal before him that he would influence before the reporting magistrate (sale of smoke).” In other words, he did not execute his offer despite having announced to the Fidupetrol Board, in emails, that he would discuss the guardianship with magistrate Mauricio González Cuervo, as the lawyer Víctor Pacheco would have already done with three other members of the Constitutional court.
The events for which Escobar Gil was prosecuted occurred in 2014, when he represented that trustee in the review of a guardianship action before the Constitutional Court, a resource through which the company sought to annul a ruling by the Court of Cassation. Penalty that forced her to pay $22,500,000,000 to the Government of Casanare.
Former magistrate Escobar Gil was present at a restaurant in Bogotá at a lunch sponsored by the then Constitutional Court magistrate, Jorge Ignacio Pretelt Chaljub, a meeting that was also attended by the magistrate rapporteur for protection, Mauricio González Cuervo.
The Criminal Cassation Chamber determined that, although at that lunch Escobar Gil spoke to the then magistrate González Cuervo about the guardianship of Fidupetrol, this was just a mention, without it being an undue influence on the rapporteur. Circumstance that did not constitute the crime of private influence peddling, because what penalizes criminal law is undue, certain and specific influences.
“To this extent, the pronouncement specifies, the reference of the lawyer Escobar Gil to the magistrate González Cuervo does not contain a specific request about the case, but corresponds to a passing comment”, since the behavior of influence peddling of individuals determines or it alters the way of thinking of the public servant in front of the case that he knows by his function.
In the opinion of the Court, for the crime of influence peddling to be established, the influence “must be real, explicit, concrete and as such contain a specific request, for which reason it is not the comment or the mere reference to a matter that It does not penalize the criminal type, but the ability to interfere and put the public function at risk as a consequence of the timely request. That is why the criminal type does not include tacit or presumed influences.
In this specific case, the Chamber highlighted the importance of the statement of the ex-magistrate rapporteur for the guardianship to distort the materialization of the crime accused of Escobar Gil, since González Cuervo is a lawyer of the highest qualities who can clearly distinguish between a comment and a undue influence.
Indeed, former magistrate González declared that there was no pressure from Escobar Gil at that meeting. The witness said specifically that it was “a circumstantial mention, very fleeting and I did not feel that any insinuation was being made in the direction of the ruling, or any recommendation to favor one of the parties in the case.”
The Court also ruled out that undue influence could be based on the collegial relationship between González Cuervo and Escobar Gil: “Having served as a Constitutional Court magistrate, maintaining a collegial relationship with magistrate Mauricio González and acting as attorney for Fidupetrol, a company with which it agreed to a success bonus for its professional management, are circumstances that give an unpleasant tint to the conduct and that can be ethically censured, but not from criminal law”, the sentence indicates.
In the legal considerations on the crime of individual influence peddling, the Supreme Court of Justice made it clear that “the individual must be penalized if his conduct has the possibility of determining the public servant to act in accordance with his statement -so do not do so, in order to obtain an economic benefit”.
“In this case, it is possible that the lawyer Rodrigo Escobar Gil, with everything and his record as a former magistrate, and in favorable circumstances, has offered [a Fidupetrol] influence or even had the intention of doing so, but what he did was not precisely what is punishable by the criminal type of influence peddling. Therefore, from the condition of former magistrate and from his personal relationship with magistrate González, it cannot be inferred that he has dabbled in the crime of influence peddling, by not carrying out the conduct described in the criminal offense.
“The Court cannot overlook the fact that the conduct judged here has some special characteristics, both because of what happened and because of the characters involved in the facts. It warns that the conduct of the lawyer and former magistrate Rodrigo Escobar Gil has very serious links with criminal behavior admitted and denounced by the lawyer Víctor Pacheco Restrepo. This relationship, if one takes into account that the defendant did not carry out what he offered to the firm that hired him according to the emails he exchanged with her, even if it were a hypothesis of ‘smoke sale’, is a categorical sign of the unethical accent of the conduct that was imputed to him”, pointed out the Criminal Cassation Chamber.