CMS Expert Guide to Digital Litigation in Colombia

In recent years, the digitalisation of the Colombian civil justice system has made some progress. 
Even though the Colombian civil justice system currently adopts some features of online litigation, which is not digital justice per se in terms of being a wide conception of digitalisation as described by Richard Susskind, the Colombian system embraces a restricted notion of digital justice. In short, the Colombian justice system up to a point allows litigators to do online what they used to do directly and physically in court.

The Colombian General Procedure Code (CGP) introduced on its article 103 a mandate to use the electronic tools provided to achieve a restricted notion of digital justice. This article includes the definition of justice centred on or as it pertains to Colombian citizens to provide and guarantee the fundamental right of access to justice. Also, one of the main objects of this article is to digitalise in every way possible the system as means to develop this fundamental right.

However, it is important to briefly describe the background and evolution of this restricted notion of Colombian digital justice.

Decree 2150 of 1995 in article 26 introduced a provision that obligated some state entities to implement electronic systems. Also, this article provided a prohibition to block the use of technology for documentary filing.

Law 270 of 1996 brought an important provision regarding the importance to encourage the use of advanced technology within justice administration and litigation.

As a fundamental mandate, Law 527 of 1997 introduced the general regimen of data exchange. This Law is fundamental since some articles that later came into force followed it. This Law provided that some procedural acts might take place through a digital and technological system.

Decree 806 of 2020 was issued during the COVID-19 pandemic. This decree modified some provisions of the CGP created the conception of restrictive digital justice and introduced changes such as electronic filling submissions, power of attorneys given by data message, virtual hearings using such technologies such as “Teams” or “Zoom” and personal servings by data messages.

Decree 806 of 2020 recently became Law 2213 of 2022, which basically gave the force of permanent law to the provisions of the above-mentioned Decree.  

There are a variety of digital and technical measures currently available in litigation.

Regarding the courts, a greatly used tool is the electronic file management system. Circular No. 20 – 27 brought a protocol for document filing entitled “DIGITALISATION OF FILES PLAN”. In accordance with this plan, each court must scan the existing files for online consulting. Furthermore, hearings may be conducted via videoconference, but in our experience the use of several platforms for videoconferencing depends on each court.

For lawyers, claims can be submitted through a special electronic platform. Other digital technical measure includes exchanging the correspondent information via email, creating obligations for the parties to inform each other of relevant filings to their registered email inbox. The procedural parties can grant powers of attorney through data messages. Also, the use of videoconferencing technology is an important tool for lawyers to work remotely.

The use of digital tools or technological tools is mandatory with some exceptions. Article 2 of the Law 2213 of 2022 provides that digital tools can be used for every procedural act, hearing and diligence, and the parties of the proceeding can litigate during the proceeding with the use of digital tools.

The specific exceptions for not using technological tools apply only to minorities such as rural populations, ethnical groups, people with some kind of disability or those that can demonstrate before the court that they are unable to use technological tools or that they lack access to them. 

Litigation in Colombia currently cannot be considered a fully digitalised proceeding. However, procedures are taking place or are mostly conducted through digital communication, but that does not mean that Colombia has a fully integrated digitalised system for litigation.

It is important to consider that right now digital justice in Colombia is mainly a restricted form of digital justice. Other tools such as blockchain technologies, smart contracts and AI are not in place. Moreover, there are certain features that allow online litigation by using some technological tools that allow lawyers and courts to manage procedural acts in a digital way. There is still a long distance to travel before Colombia achieves a fully digitalised justice system. 

Besides the above-mentioned laws and regulations, there are no more specific rules in place that address the use of technology in litigation. 

Through Agreement No. PCSJA20 - 11631 2020, the Superior Justice Council (Consejo Superior de la Judicatura) managed to adopt the DIGITAL JUSTICE PLAN that intends to institutionalize and to integrate a viable, governable, and sustainable policy for a digital justice transformation. 
According to article 2 of this Agreement, this plan provides the following four important and fundamental pillars that must be used as a guide by the judicial entities through  digital justice transformation:

• Access to justice centred on Colombian citizens: meaning that the interaction between common citizens and judicial services must be real and offer easy access. 
• Efficient access to justice: meaning the incidence in the transformation of services provided by the actual system. 
• Control and transparency: meaning that within the Plan there should be mechanisms and tools to manage the risk of open information and control entities. 
• Enforcement and capacities of the courts: meaning that regarding the courts corresponding digital education and transformation within human resources should be provided. 

This Plan pursues the 'massification' of justice with only electronic files used in order to expand the efficiency of justice, among other things. 

There are currently no rules in place that specifically address the use of AI in litigation.

However, Article 5.10. of the Agreement No. PCSJA20 - 11631 of 2020 (Plan) provides some guidelines regarding AI tools.

It is provided in this article that within the Plan, the application of AI tools such as machine learning, natural language processing, etc. must be taken as transversal to every litigation system and entity. However, within the use of AI tools it is also necessary to create a culture that allows proper understanding of the perks, limits, principles, and responsibilities regarding this kind of tools.
At last, it is important to mention that this specific article raises the necessity to gradually adopt AI applications for the litigation system in the future.

This Plan is going to be gradually executed through to 2025.

Other than general data protection statutes, there are no specific rules in place for the use of data or specific measures addressing the issues of unwanted access or IT (i.e. security breaches, in the context of digital justice and litigation).

Even though these kinds of systems can help legal tech companies quickly identify potential claims and analyse relevant data, it is important to note that these systems can also create new risks for companies since automatised systems are often less reliable. Also, since submitting claims and actions, such as “acción de tutela” (action that claims the protection of fundamental rights), is easier when done digitally, this can lead to large-scale filings that could have a negative impact on the system. 

Law 2213 of 2022 provides the specific tools or processes created to improve accessibility to legal services.

However, as explained above, the Plan taking place between 2021 and 2025 within the application of AI tools (e.g. machine learning, natural language processing, etc.) will be taken as transversal to every litigation system and entities with the specific purpose of improving access to legal services.