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Law 2213 of 2022 the use of technologies and communications in judicial proceedings

The beginning of the Pandemic in Colombia implied multiple changes that affected all sectors of society. Decree 806 of 2020 was issued with the precise goal to implement changes in procedural law and enable digital justice. Namely, the new law allowed the judicial system to normally function during the pandemic.

However, Decree 806 of 2020 was in force only for two years from its issuance, that is until the 4th of June of 2022. After its validity ended, great uncertainty was generated because it had not been stablished whether the new rules that enabled digital justice would become general legislation, or if, alternatively, the advances in the operation of the digital justice would be wasted.

After a few days of uncertainty, Law 2213 of 2022 was approved with the object to adopt the regulations contained in the Decree 806 of 2022 as permanent legislation and implementing the use of technologies and communications in judicial proceedings.

In the following paragraphs we highlight some of the advances introduced by Law 2213, that are now the permanent legislation:

1. Regarding the duties of the parties: as the general rule, the parties of the proceeding must carry out the procedural acts and attend the correspondent hearings virtually. Thus, parties must provide the communication channels of all the subjects involved in the proceedings. Memos and writings must be sent as data messages and a copy must be sent also to the Court and the parties.

2. Filling of the claim: in addition to strict compliance with the formal requirements of the claim (General Procedure Code, Article 82) an additional requirement was introduced, and the claimant must bring into evidence to the Court that the claim was sent to the counterparty.  When filing the claim, the document must be sent simultaneously by email to the counterparty including evidence and annexes and prove the compliance of the requirement before the correspondent Court. Failing to do so will result in the inadmissibility of the claim, except for a couple of exceptions corresponding to the request for precautionary measures and the lack of information on the defendant.

The filling of the claim can be done through a digital platform provided by the Superior Council of the Judicature.

3. Regarding the power of attorney: special powers of attorneys can be granted by simple means of a data message without the need for a handwritten or digital signature. These are presumed as authentic and therefore do not require personal presentation before a Notary.

4. Regarding the hearings:  As a general rule, the hearings will take place through the digital platforms provided by the corresponding Court. Exceptionally, they will be carried out in person if the parties reasonably state the reasons why they cannot access through technological means.

5. Regarding the notifications: the personal notification changed radically; as a general rule, it must be done by sending the correspondent decision as a data message to the electronic address provided for this purpose.  It is important to bear in mind that the personal notification will be understood to have been provided after two (2) business days following the sending of the message and the terms will begin to count when the initiator receives acknowledgement of receipt or the recipient's access to the message can be verified.

The Supreme Court of Justice held that the acknowledgment of receipt is not the only means of proof of receipt of the communication since: "the information by electronic means can be proven by any pertinent, conducive and useful means of conviction (...) 1 Radicado No. 1100020300020200102500, Magistrado Ponente Aroldo Wilson Quiroz Monsalvo.

Regarding the status notification, these will be set virtually with the inclusion of the correspondent ruling or decision of the Court.

6. Regarding the files: The parties must collaborate through technological means with the procedural pieces that are in their possession. Likewise, the courts must have the technological tools at their disposal and conduct the digitalization of the files.

Pros and cons:

The use of technology has streamlined much of the proceedings, saving the parties time and resources in traveling to court and the cost of simple and authentic copies.

However, there are some gaps and disadvantages in the implementation of digital justice, since not all judicial offices have the same access and response time to the digitalization of files, a situation that, contrary to expectations, delays even more the proceedings. On the other hand, according to several studies, Internet connection throughout the national territory is approximately 56.5%, so the fundamental right of access to justice would be violated in the most remote populations of the country, nonetheless, exceptionally, Law 2213 enables  presential “face to face” contact in such cases.

Authors

Portrait ofSergio Rodríguez-Azuero
Sergio Rodríguez Azuero
The Senior Partner
Bogotá
Portrait ofMaría Fernanda Bejarano
María Fernanda Bejarano
Senior Associate
Bogotá
Portrait ofMichelle Lichtenberger
Michelle Lichtenberger
Associate
Bogotá
Jorge Ramírez, LL.M.
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