In the face of the global pandemic due to the virus called COVID-19, Colombia, through its leaders, adopted and made decisions aimed at safeguarding the life and health of all inhabitants of Colombian territory, which is why since March 2020, strict confinement was carried out for more than two months, bringing with it the closure of the various state entities and, in particular, the total closure of judicial headquarters throughout the territory by order of the Superior Council of the Judiciary.
Since the closure of the headquarters and the suspension of service in judicial centers, justice was left in limbo, where users and legal professionals were uncertain about how services would be provided. Although criticism of justice in Colombia had been about the delay in service provision, it was only possible three (3) months later, when as of July 1, 2020, work resumed virtually and with a new mitigating factor for proceedings and lawyers: the study and implementation of Decree 806 of 2020, which has been subject to criticism as it is considered that the provisions of the aforementioned decree impose new burdens on access to justice.
Indeed, although the guidelines set forth in the decree introduce changes in the filing of claims, transfers, appeals, and hearings, it was questioned by litigation attorneys who, in the arduous process of the profession, had to make a turn where they had to forcibly learn the use of technology. Therefore, many expressed opposition to the decree, arguing that it was unconstitutional, imposed burdens they should not bear, and delayed justice.
Since the filing of claims will be done virtually in PDF, and the criteria for filing them vary depending on each jurisdiction, evidencing the lack of unification of criteria, the first challenge for litigants is to confirm how claims are filed, depending on the city.
In turn, what is highly questioned is the simultaneous sending of the claim to the defendants, a modification that puts the protection of plaintiffs at risk, as knowledge from the filing of the claim to the defendants could lead to a violation of the protection of the interests of the claimant; however, the decree generated exceptions in proceedings where precautionary measures are requested.
In addition to the above, not being able to have prompt access to the case file, and the uncertainty of receiving pleadings via email, has generated heated discussions among litigants, who state that not having in-person access delays the progress of proceedings, as there is no certainty that pleadings will be addressed on time, with many remaining in the review queue of institutional emails.
And one could question the other sections of the decree, but the truth is that not everything has been bad. In part, the decree has allowed taking the step that had been awaited for years in the judicial branch, such as the implementation of digital justice. This implementation was not as expected and was abrupt, but it has allowed starting a process of awareness and adoption of the digital system, which has come to stay. Therefore, it is necessary to make adjustments over time to minimize processes and their development time, thereby providing users with security and legitimate trust.
Therefore, the implementation of digital justice and Decree 806 of 2020 has allowed giving greater value to the use of technological tools, optimizing time for filing claims, pleadings, among others, helping litigation attorneys of the firm reduce time in filing such documents, travel to judicial offices to review proceedings, prompt communication with judicial offices, and, in some cases, agility in ongoing proceedings. It also allows clients to connect to hearings from anywhere in the city and the world, since clients for some reasons must leave the city or, failing that, they do not belong to the city where proceedings are carried out, allowing the decree to achieve savings in travel and lodging for attending hearings.
Finally, it can be observed that the decree has both positive and not-so-positive points, leaving challenges that must be faced for its improvement, which could be summarized in adaptation and implementation during the following year, as it will be in force until 2022. Thus, the decree must be subject to modification in order to unify criteria for filing, processing, and review of proceedings, bring with it the entirety of case files, as well as generate a mechanism where each user and lawyer have real-time access to the case file and do not have to request access to it by email, which limits respective access to the file.
Author: Valentina Peña – Consulting Attorney