Por: NATHALIA OSORIO LENIS
Cuando las personas piensan en la Constitución Política de 1991 y sus aciertos, la gran mayoría menciona la Acción de Tutela, y cómo no hacerlo, ya que desde sus inicios ha sido un mecanismo expedito, sencillo y garantista en cuanto a la protección de los derechos fundamentales.
La tutela al ser una garantía constitucional de gran envergadura posee características importantes a la hora de su presentación como lo es la subsidiariedad, inmediatez, eficacia, especificidad y sencillez; permitiendo que millones de colombianos puedan verse beneficiados al momento de incoar este mecanismo de protección de sus derechos cuando exista una violación o amenaza inminente en cuanto a su derecho fundamental, bien sea por parte de una autoridad pública o por un particular.
Por otra parte el papel de la Corte Constitucional en la revisión de Tutelas ha sido significativo, ya que a través de la jurisprudencia emanada por dicho órgano, se ha logrado extender los efectos de la tutela a derechos que aunque no están plasmados en la carta política como fundamentales, si lo pueden ser en conexidad con otros, verbigracia la salud.
Sin embargo en los últimos años, se ha podido vislumbrar una problemática no sólo de índole jurídica sino también de tipo social e incluso político, toda vez que día tras día llegan más acciones de tutela a los despachos judiciales, colapsando en muchas ocasiones el acceso a la justicia, la celeridad y manejo en cuanto a otros trámites y procesos como es el caso de demandas y audiencias.
Y no sólo eso, también se puede observar la falta de cumplimiento por parte de las entidades accionadas respecto a las órdenes emanadas por los jueces, prolongando la violación eminente de un derecho fundamental. La pregunta que surge es si ¿Existe pasividad por parte de las autoridades públicas o particulares que prefieren conculcar un derecho fundamental y esperar a que por vía judicial se ordene su efectividad? Vemos que a pesar de los fallos favorables a las personas que ejercen como accionantes en la tutela, las entidades necesitan de manera urgente un “jalón de orejas” para evitar más atropellos con los colombianos.
En días próximos, la Cámara de Representantes estudiará la propuesta de establecer un aumento de la tercera parte a la mitad de la pena a quien no cumpla con los términos impuestos en fallos de tutela relacionados con el derecho fundamental a la salud. Para los ponentes, este incremento en las penas se justifica dada la condición de derecho fundamental que hoy se le reconoce estatutariamente a la salud, de manera que resulta particularmente grave que el mismo se haga nugatorio a pesar de la existencia de una orden judicial de tutela que ordene su protección.
No obstante, es menester que el Estado siga haciendo uso de forma efectiva de su poder coercitivo a través del Incidente de desacato y las respectivas sanciones impuestas por parte del órgano judicial para materializar el cumplimiento de estos derechos, puesto que en muchas ocasiones, la tutela termina convirtiéndose en un trámite tedioso y meramente formal, donde el carácter expedito, sencillo y eficaz se diluye al no existir una solución pronta por parte del Estado como garante de sus asociados con respecto al derecho conculcado, dejando de ser la Tutela ese mecanismo 100% efectivo.
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