The National Government issued Decree 806 of June the 4th, 2020, which adopts measures for 2 years, in the implementation of communications and technology in judicial proceedings, to expedite judicial processes that have been suspended for months.
1. PURPOSE AND SCOPE OF APPLICATION
- The decree implements communication technology to expedite all kind of proceedings; it also simplifies customer service, and
- reactivates economic activities that depend on justice.
- When it is not possible or necessary to use technologies, the personal service will be provided according to protocols. There must be evidence in the file of the reason why the technologies were not used.
- The purpose of communication technology’s use is to protect officials and users, allowing them to use it in all actions, hearings, and proceedings, avoiding formalities such as signatures or authentications.
- Authorities must report details on their website.
- Minorities and populations without access or with restrictions on access to technologies require special attention.
- Due process, publicity, and the right of contradiction must be guaranteed by the authorities. E.g. Through frequent online communication with its users.
- Municipalities and “personerías”, if possible, shall guarantee virtual performances.
- The decree will be valid for two years following its issuance.
2. DUTIES OF PROCEDURAL PARTIES TO JUDICIAL PROCEEDINGS
- Appear in the proceedings, and in the hearings online.
- Provide digital channels to proceed in the judicial proceedings.
- Send everything through chosen channels with copy to all procedural parties to judicial proceedings.
- All steps of legal proceedings will be carried out from the chosen digital channel.
- Art 78 # 5 CGP: Communicate changes of address or electronic channel and be served through the informed channel.
- Legal and constitutional duty of collaboration with the administration of justice.
3. PROCEDURAL STAGES AND THE USE OF COMMUNICATION TECH.
If it is not available digitally, the judicial authority, through the secretary (or whoever undertakes his or her office), should provide by any means the procedural pieces required for the development of the next stages.
If the authority’s technological tools manage the file in a hybrid way, said technological tool could be maintained.
Powers of Attorney
These may be granted through a data message without formalities, indicating the lawyer's email, which must correspond with the one registered by the lawyer in the National Registry of Lawyers.
If the power of attorney is forwarded by the person registered in the Commercial Registry, that email address must match the one registered for judicial notifications in the Commercial Register.
- Inadmissible if parties’, representatives’, attorneys’, witnesses’, experts’ and / or third parties’ digital channel to be served is not included
- Exhibits: included digitally and listed on the lawsuit.
- Fileing will be via data message including its exhibits, in the email address provided by the Superior Council of the Judicial Branch.
- It is not necessary to include copies of any kind.
- In all the jurisdictions, and in domestic arbitrations, a copy of the lawsuit and its exhibits must be sent to the respondent. Except when: (i) there is a request for interim measures, (ii) The channel where the respondent receives notifications is unknown. The same rules apply to the amendment of the lawsuit.
- The secretary (or whoever undertakes his or her office) will oversee the correct sending of a file copy to the defendant. The lawsuit will be inadmissible if the copy of the file is not sent to the defendant.
- If the lawsuit and its exhibits were sent to the defendant, the notice of service is limited to sending the first judicial decision accepting the application.
Through technological means arranged by judicial authorities or by the parties, online or by telephone. The authorization of the Art 107, Par 2, CGP, is not required.
Clerks, with the Judge’s authorization, will inform the parties to judicial proceeding, in advance, the means through which the hearings will be carried out.
Hearings of a Judicial Authority’s collegiate body will be chaired by the reporting judge and most of the judges’ part of said collegiate body should attend. If not or the decisions would be void or null.
Personal service of process
- Shall be made by sending an order and attachments, in a data message, to the email address provided by the interested party, without sending a prior summons or notice.
- The interested party declares under oath (which arises from the fact of requesting service) that the provided electronic address is in fact the electronic address of the person to be served. Evidence on how the address was obtained should be provided.
- The personal service of process is fulfilled two business days after the email was sent.
- The procedural terms start the next day of the personal service of process.
- Communication receipt and confirmation systems can be used.
- If there are problems regarding the personal service of process, the interested party must declare it under oath and request nullity of the complete stages of the proceedings (Art.132 to 138 CGP).
- These rules apply to any type of procedural act.
- The judicial authorities, ex officio or by request, may request information from chambers of commerce, superintendencies or other entities; They also can use web pages’ or social networks’ information.
Notifications through “lists of formal notice” and opportunity to reply
- Should be online, including the order or decision, without formalities.
- Except: interim measures, decisions or orders regarding underage users, or information subject to legal reserve.
- Applicable to the opportunities to reply granted out of the hearings.
- Lists of formal notice will be kept online for permanent consultation
- If a Party demonstrates delivering a document through email, opposing’s party time to oppose said document will run as of reception. The opportunity to oppose will be two business days after the sending of said email and the term to reply will start the next day. There are not actions required from the Secretary.
Personal Service of Process through formal writing summons or notice
The decree modifies Art 108 CGP: It will only be done in the National Register of Personal Service of Process through formal writing summons or notice.
Will be supplied virtually as authorized by Art 111 of CGP.
Secretaries will send by email, the communications to necessary public, private or entities or persons, regarding court orders. The communications are presumed authentic if come from the official email of the judicial entity.
4. PROVISIONS ACCORDING TO THE MATTER OF THE PROCESS
a. Decisions regarding preliminary objections
The opportunity to reply will be 3 days, and according to Art. 110 CGP. In the same term, the plaintiff may answer the reply or amend preliminary objections.
The file and decision of preliminary measures will be according to Art 100 to 102 del CGP. If evidence is required (Art 101 CGP), and admitted, the decision which sets date for the initial hearings shall list said evidence. In the initial hearings evidence will be received. On said hearing, the preliminary objections, which required evidence and are pending will be decided.
Res judicata, statute of limitations, settlement, lack of standing, will be decided in the initial hearings as well.
The decision about preliminary objections should be taken in the first instance. The decision can be appeal and decide by subsection, section, or collegiate body of the superior court or State Council. The single instance decision in charge of Superior courts or State Council will be take by the reporting judge. The decision can be subject of plead.
b. Anticipated final decision; it will be issued:
- Before hearings: If there are matters of pure law or matters not requiring evidence. The opportunity to present closing statements should be granted (according to Art 181 Law 1437 of 2011) and the decision will be written.
- In any Stage if the request is presented by both parties’ agreement.
- If the request is presented in the hearings, the closing statements should be presented in the same hearing.
- If there is a writing request, both parties may add the written closing statements to the request. 10 days with the opportunity reply will be granted to other parties, such as the public ministry.
- If there is fraud, the request must be rejected.
- If there necessary third parties, they should be included in the request.
- When the judge accepts the request, it is understood that other actions, against that proceeding’s orders, are waived.
- In the second stage of the Art 179, Act 1477, 2011: If there is Res judicata, statute of limitations, settlement, conciliation; or lack of standing.
- The decision will be rendered in hearings or in writing if rendered out of the hearings.
- The closing statements do not apply
- Acceptance of the claims according to Art 176, Law 1437 of 2011
Civil and Family Jurisdiction
- Until the appeal is completely admitted, parties may request taking evidence. The judge shall accept such request only according to Art 327 CGP during the next 5 days.
- When the appeal is completely admitted, or when there is a decision denying taking evidence during the appeal proceedings, the appeal must be substantiated during the next 5 days. The other party may reply the appeal during the next 5 days. When that term expires the decision will be rendered. If the appeal is not substantiated, it will be declared void.
- If evidence is accepted, the judge will set the time for a hearing in which he or she will also hear the closing statements and will decide the case.
- The final decision should fulfil CGP requirements.
There are some new rules for decisions’ appeals.