El derecho procesal electoral como garantía de la democracia en Colombia: incidencia de la acción de reclamación y solicitud de saneamiento de nulidad electoral en la conformación del congreso de la república periodo 2014-2018

Abstract

The legal framework that regulates the claim and request for electoral invalidity is confusing for those who use these mechanisms to guarantee their democratic rights. The administrative headquarters maintains dissimilar criteria in comparison with those maintained by the Council of State. For this reason, controversies over the scrutinies imply ap. earing before the Administration of Justice, degenerating into an excessive wait to know the electoral results, sometimes up to a few months after the end of the period. Such a situation highlights the study of the legal effectiveness of electoral norms, which seems to be in question; above all, in relation to the notion of validity. The available research on the subject concentrates on dogmatic aspects of the norms, without posing a specific position on the problematic subject. This is one of the reasons that, consequently, the present study aims to validate whether the regulations for the electoral claim action are effective, understanding the notion of validity as effectiveness. To account for the hypothesis, first, the elements of effectiveness will be determined based on the decisions at the administrative and judicial headquarters for the 2014-2018 parliamentary elections; second, for this purpose the legal foundations of the judicial and administrative decisions on the claims will be established and classified against the scrutiny of the election studied; and finally, the sociological and legal effects that the lack of criteria regarding the legal effectiveness of the Electoral Code generates in the safeguarding of the fundamental constitutional rights to political participation and due process will be identified.

Key words: efficacy, validity, organic repeal, electoral law.