In accordance with our procedural statue (General Procedural Code), most of the proceeding stages from the presentation of the claim until the instruction and judgmental hearing were developed on site.
However, as a result of the health emergency derived from COVID – 19 the Colombian Judicial system had to face several changes that modified completely the system as we knew it. It is not a secret that the Colombian Judicial system was not prepared for the virtuality, and this situation derived in the suspension of the Judicial terms for more than 3 months in 2020, situation which led to the stagnation in the proceedings stages, and the need to reschedule hearings among others.
To face this situation, the Decree 806 of 2020 emerged, and some call it the “Decree of Digital Justice” as a response to the need to guarantee the fundamental right to have the adequate access to justice during the times of the pandemic.
The suspension of terms ended with the issuance of the Agreement PCSJA20 - 11567 through which the Superior Council of the Judiciary ordered the lifting of the suspension of judicial terms as of July 1, 2020 in order to apply Decree 806 of 2020.
In a prior communication we presented the main changes introduced by the Decree 806 of 2020, however, today, after almost a year after its promulgation, we will present a balance regarding the questions that have been arising around the implementation of the Decree and some of the Decisions of the Supreme Court of Justice and the Superior Tribunal of Bogotá in this regard.
1. Claim presentation
Although the compliance with some of the formal requirements of article 82 of the General Code of the Process must continue, the novelty that this Decree brought was to indicate by the claimant party the digital channel where the parties and intervening parties must be notified in their entirety (that is, parties, attorneys, witnesses, experts, among others.)
Not only this, but it is also required simultaneously that when filing the claim, the claimant must copy the defendants and must also prove this to the Judge, adding to the list one more ground of inadmissibility in addition to the other seven that are listed in article 90 of the General Procedure Code.
The Superior Council of the Judiciary has given a link that leads to a virtual platform which allows filing the claim along with its evidence and annexes. The virtual claim filling generated several questions, among which stands out the debate regarding the documents that must provided in original that now, because of the virtuality must be filled in a digital way. A specific case is the presentation of an executive claim and its evidence and attachments provided through data messages within which the digitized executive title is provided.
On one occasion, the Judge in charge decided to deny the executive order due to the fact that the original document had not been provided. Nonetheless in a Decision issued by the Superior Tribunal of Bogotá – Civil Court room, the Judge determined that judges cannot deny an executive order only because of the non-providing the original documents. In addition, the Judge stablished that, in accordance with the General Procedure Code, claims as the documents that have the executive merit may be presented through data messages. Also, the Tribunal stated that under this situations judges must abstain from demanding formalities that are considered unnecessary. (Superior Tribunal Bogotá – Civil. Rad: 0272020002050. M.P: Marco Antonio Álvarez Gómez).
2. Filling of documental evidence
Doubts have also arisen regarding the way to provide evidence to the process, through digital links such as OneDrive, Dropbox, iCloud, etc…, where the documental evidence is saved.
The Superior Tribunal of Bogotá considered that it is allowed for evidence and communications to be transmitted and provided by any electronic media, without being limited to a specific platform, even more so, when there are larger documents. That also give the proceeding more speed. (Superior Tribunal Bogotá – Civil. Rad: 1100131990012020968000. M.P: Marco Antonio Álvarez Gómez)
In our experience, the implementation of the Decree in this sense has brought great advantages to the Colombian Judicial system, since it speeds up the procedure from the filing of the claim, avoiding cumbersome processes with the documentation and the corresponding copies. The digitization of the file necessarily implies greater ease of access for all parts of the process, including the Judges. This has given greater application to the principles of procedural economy and speed within the processes.
3. Hearing development
Most of the hearings have been developed through the Microsoft Teams virtual platform. Situation which derived in the duty of the Judge to verify that all the proceeding parties have the adequate tools for this purpose. Therefore, in a recent ruling issued by the Supreme Court of Justice was indicated that the interruption of the proceeding and therefore the rescheduling of a hearing is appropriate when, prior to the beginning of this or in during its realization one of the attorneys certify that they do not have such technological means.
Under this concept of the Court and by the means to guarantee the access to justice and the equality of the parties, the judge must analyze each concrete case and after that will provide a decision to suspend the proceeding. (Radicación No. 25000-22-13-000-2020-00209-01. MP: Octavio Augusto Tejeiro Duque).
On this same ruling the Cout included the following requirements that the Judge must follow to realize the virtual hearing: (i) Summon the interested parties with due anticipation, so that between the appointment of the hearing and its celebration there is enough time for them to "prepare"; (ii) Provide them with the data in a timely manner so that they can enter the virtual audience, this is, the platform, the technical conditions to access it, a brief description of its operation, among other aspects, that allows you to "access and become familiar with the technological medium through which the hearing will be held", and (iii) to put at disposal of the parties the file sufficiently in advance and through the channels available or the mechanisms provided by the Superior Council of the Judiciary. (Circulares PCSJ20-11, 31 March 2020 y PCSJ20-27, 21 July.,2020), or in failing of the above, the relevant pieces for the hearing development, so that, the parties can practice their fundamental rights.
The notifications that must be made personally may also be made by sending the respective ruling as a data message to the electronic address or site provided by the interested party in which the notification is made, without the need to send prior summons or physical or virtual notice. At this point, several questions also arose, such as verifying whether the notification made via data message can be only proven by acknowledging the receipt of the email.
The above-mentioned question was solved by the Supreme Court in a negative way. The Court considered that, even though the notification is understood made one the e-mail is received, it cannot be understood made after the reception of the e-mail when the user opens their inbox and reads this communication because being that way, would leave the notification under the discretion of the receiver (usually the defendant) and consequently the accounting of the judicial term.
However, the Court also warned that the acknowledgement of receipt is by no means the only proof of receipt of the communication, since: “The electronic communication can be proven by any pertinent, conducive and useful means of conviction.”
(Radicado No. 1100020300020200102500, Magistrado Ponente Aroldo Wilson Quiroz Monsalvo).
Regarding the “status notifications” (in Colombia “notificación por estado”) that is regulated in the article 9 of the Decree 806 of 2020, the Court indicated that these notifications will be also virtually made including the correspondent ruling or decision. With this, another debate came along regarding that if in addition to its virtual publication, it is necessary for the Judge to notify the ruling or decision via e-mail to all the parties. The response of the Supreme Court of Justice by means of a ruling made by the Doctor Francisco Ternera, was negative since this article only requires publishing the decisions and notifications on the correspondent website and placing a link that leads to the decision rendered, without being possible to impose additional requirements on the Judges to carry out the notifications that by law correspond. (Supreme Cout of Justice. Radicado 11001-02-03-000-2020-02669-00. M.P Francisco Ternera).
Indeed, the rulings of the Court and Tribunal have contributed to adequate the implementation of the Decree where guarantees of the procedural subjects are respected and at the same time is verified that neither of the parties nor the judges impose excessive formalities or ritualism that impair access to justice.
The advantages of the Decree 805 of 2020 after almost a year of validity are evident: with digital justice, long hours of travel and waiting in the Offices are avoided, agility was given in the presentation and reception of the claim and memorials, there is greater ease of communication between the parties by virtue of the duty of procedural loyalty and the principles of speed and procedural economy are applied.
It is clear that the changes incorporated by Decree 806 of 2020 are here to stay and although its validity is scheduled for two years, it is to be expected that what was implemented on the occasion of an exceptional situation will now be the general rule of our system.
However, it must be taken into account that digital justice can present greater disadvantages for those who do not have access to electronic media, however, this and surely many other legal problems and difficulties will have to be faced by the Judicial Branch that must guarantee the fundamental right of access to justice in a comprehensive and continuous way.