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How is the civil justice working in Colombia?

All sectors and industries have faced changes and challenges due to the health emergency caused by COVID-19.  Probably one of the most affected sectors is the administration of justice.

A recurring concern among businessmen, and the Colombian people in general is the way in which the Judicial sector is working through the pandemic, specially the civil jurisdiction.

It is a fact that the Judicial system in Colombia was not prepared to face the challenge brought by the pandemic and, consequently, it took almost four months to resume its activities. The suspension of the judicial terms, that was applied mid-March, only came to an end until July 1st of 2020.                                                

In consequence the courthouses, tribunals and high courts that were working only in specific matters (that weren't tied to judicial terms suspension –specifically the actions related to fundamental rights-) reassumed their normal activities online, with no on site attention to the justice users, unless it is extremely necessary, and in that case a judicial authorization needs to be uttered.

In order to resume the administration of justice according to the 2020 806 Decree, the terms of the new normality were applied to the Judicial system and modified some of the General Procedural Code rules, that we thought were immutable.

We highlight the following changes:

Regarding the power of attorney:

Before the pandemic it was required that who was going to grant the power of attorney fulfilled a proceeding named “personal presentation” in a notary or in a courthouse. With this new Decree, this requirement was modified and now the power of attorney can be given through a data message and without any handwritten or digital firm. Its authenticity will be presumed only with indication of the name of the grantor. There is no need to go before a notary or a courthouse for a power of attorney to be granted.

In this power of attorney, the email address of the attorney must be included, and must be the same that is subscribed in the National Attorney Registration office.

Claim filling:

With the new Decree the claims and its attached documents are filled through data message through the virtual channels authorized by the “Superior Council of the Judiciary” for that matter.

The claim must include all the email addresses to notify all the proceeding parties including the defendant, the attorneys, the witnesses, experts and any other third party of the proceeding.

Before the expedition of the Decree 806 it was necessary to attach to the courthouse a hard-physical copy for the parties and for the filing of the courthouse. This obligation disappeared.

In order to admit the claim, the data message must be also sent directly to the defendant. If this does not happen the claim will be declared inadmissible by the judge. Once the claim is admitted by the judge, a personal notification of the admission will be sent to the defendant.

By this means, it is possible to file a claim and other constitutional actions during the pandemic.

Hearings:

The hearings are going to take place virtually using the electronic methods that are available to all the proceeding parties including the courthouse.

The presence of all the procedural subjects in the diligence must be facilitated and allowed.

Personal notifications:

Before the pandemic, it was usual to deliver the personal notification of a judicial decision through certificate mail. Now these decisions are going to be notified through data message to the email address given by the interested party.

The personal notification will be done after two business days since the data message was received. The judicial terms will run the day after the notification. Confirmation systems will be allowed to proof the reception of the email.

This matter has special relevance because it is not necessary for the recipient to open the email to be considered notified. The notification is done since the moment of the data message is received.

According to the above, the parties and attorneys must be constantly checking their emails, specially the address registered for companies subscribed in the commercial registration, the email addresses that appear in the company web site and all email addresses used during the normal development of commercial activities including the spam file.

Such adjustments were needed in order to reactivate the judicial system and all the economic activities that depend on it. Many of these modifications are applauded because they revoked unnecessary formalisms and paperwork that delayed access to justice.

We expect that with this Decree, the Judicial system will finally start working virtually in a permanent way.

However, as natural, the implementation of all of these changes must respect the fundamental rights of all of the proceeding parties ( including the users and the courthouses workers) who sometimes do not have access to the technological  requirements to fulfil the new regulations.

In that order, ensuring the due process of all the parties of the proceeding, whose rights can be affected under the new Decree, is fundamental.

It is mandatory to pay special attention to guarantee the fundamental rights as publicity, the right to be heard and the right to have an adversarial proceeding.

Another challenge for Judicial system users, such as companies, natural persons, experts, attorneys and representatives, is the new responsibility to be updated and constantly checking our emails in order to accomplish the constitutional and legal duties to collaborate with the administration of justice.

Authors

María Fernanda Bejarano
María Fernanda Bejarano
Associate
Bogotá
Michelle-Lichtenberger-CMS-Colombia
Michelle Lichtenberger
Associate
Bogotá
Carolina Arenas
Carolina Arenas