In the face of the global pandemic caused by the virus known as COVID-19, Colombia's leaders were compelled to adopt and implement measures aimed at safeguarding the lives and health of all inhabitants of Colombian territory. Consequently, starting in March 2020, a strict lockdown was enforced for over two months, leading to the closure of various state entities and, in particular, the complete shutdown of judicial offices throughout the country by order of the Superior Council of the Judiciary.
From the closure of court facilities and the suspension of services in judicial centers, justice was left in limbo, leaving users and legal professionals uncertain about how services would be provided. While criticism of the justice system in Colombia had centered on delays in service delivery, it was only possible to resume operations three (3) months later, when, as of July 1, 2020, work resumed virtually, accompanied by a new challenge for proceedings and lawyers: the study and implementation of Decree 806 of 2020. This decree has been subject to criticism, as it is considered that its provisions impose new burdens on access to justice.
Although the guidelines set forth in the decree introduce changes in the filing of lawsuits, notifications, appeals, and hearings, it was questioned by trial lawyers who, in the arduous practice of their profession, had to undergo a forced shift in their tools, learning to use technology under duress. Consequently, many expressed opposition to the decree, arguing that it was unconstitutional, imposed undue burdens, and delayed justice.
Given that lawsuits are now to be filed virtually in PDF format, and the criteria for filing vary depending on the jurisdiction, evidencing a lack of unified standards, the first challenge for litigants is to confirm how lawsuits are filed depending on the city.
Furthermore, what has been highly criticized is the simultaneous service of the complaint on the defendants, a modification that jeopardizes the protection of plaintiffs, as defendants' knowledge of the lawsuit from the moment of filing could lead to violations of the plaintiff's interests. However, the decree did establish exceptions for proceedings in which precautionary measures are requested.
In addition, the inability to access the case file promptly and the uncertainty regarding the receipt of motions via email have sparked heated debates among litigants, who argue that the lack of in-person access delays the progress of proceedings, as there is no certainty that motions will be addressed in a timely manner, leaving many pending in institutional email queues.
One could question the other provisions of the decree, but the truth is that not everything has been negative. To some extent, the decree has enabled the step that had been awaited for years in the judicial branch: the implementation of digital justice. Although its implementation was not as expected and was abrupt, it has initiated a process of awareness and adoption of the digital system, which is here to stay. Therefore, adjustments must be made over time to streamline processes and reduce their duration, thereby providing users with security and legitimate trust.
Thus, the implementation of digital justice and Decree 806 of 2020 has placed greater value on the use of technological tools, allowing for optimized time in filing lawsuits, motions, and other documents. It has helped trial lawyers at the firm reduce time spent on filing such documents, travel to judicial offices to review cases, and has facilitated prompt communication with judicial offices. In some cases, it has expedited ongoing proceedings and enabled clients to connect to hearings from anywhere in the city or the world, given that clients may need to leave the city or may not reside where proceedings are conducted. The decree has thus allowed for savings in travel and accommodation for attending hearings.
Finally, it can be observed that the decree has both positive and not-so-positive aspects, leaving challenges to be addressed for its improvement. These can be summarized as the adaptation and implementation over the coming year, as it will remain in effect until 2022. Accordingly, the decree must be amended to unify criteria for filing, processing, and reviewing cases, to include the entirety of case files, and to establish a mechanism whereby each user and lawyer has real-time access to the case file without having to request access via email, which currently limits entry to the file.
Author: Valentina Martínez Ocampo. – Consulting Attorney