When Judicial Error Constitutes Damage

With the issuance of the 1991 Constitution, the general clause of State liability was expressly enshrined in Article 90. The article establishes that 'The State shall be patrimonially liable for unlawful damages imputable to it, caused by the action or omission of public authorities.' This means that if the Colombian State, through its agents, causes damage, it must respond and compensate the affected parties for that damage. In this context, the State is not exempt from liability for irregularities and/or damages committed by judges and magistrates in the exercise of judicial activity.

Even before the issuance of the 1991 Constitution, the liability of judges and magistrates was recognized, which was assimilated to a failure in the administration service, but it was not recognized that the State could be liable for errors in judicial rulings, since it was considered that this would disregard the principle of res judicata. With the issuance of the 1991 Constitution, it was accepted that judges could make mistakes, but State liability only arose when the error or delay in the decision resulted in decisions absolutely contrary to the most elementary logical, legal, and juridical principles, and that this caused serious harm to an individual.

This discussion was somewhat clarified with the issuance of Law 270 of 1996, which expressly establishes the patrimonial liability of the State for judicial error. Article 66 of Law 270 of 1996 establishes that Judicial error: is that committed by an authority vested with jurisdictional powers, during the course of a proceeding, which materializes in a ruling contrary to law.

Thus, and in accordance with Article 67 of the same law, the requirements to sue the State for judicial error are:

1. That the ruling be issued by a jurisdictional authority in the exercise of its functions.
2. That the official issue a ruling containing an error, as it is contrary to law.
3. That the affected party has filed all legal remedies to challenge the official's decision.
4. That the ruling is final.

With this legal basis, since 1997, the Council of State has declared State liability for judicial error on several occasions. For example:

In the judgment of September 18, 1997[1], the Council of State examined a case in which a judge, in a ruling, calculated the payment of amounts for salaries and compensation but did not order the payment of indexation and interest from the time of the ruling until payment of the debt was verified. In this case, the Council of State determined the existence of a judicial error due to the error in the ruling, since compensation must be integral and complete, and the creditor cannot be denied compensation for damages suffered, which should have been taken into account at the time of calculation, due to the balance and fairness of compensation, in order to keep the creditor's assets intact, as they would suffer a loss if they received an amount lower than what they deserve. In conclusion, the Council of State ordered the judicial branch to pay such damages to the affected creditor.

On September 11, 2006[2], the Council of State condemned the Judicial Branch for judicial error, because in a judicial proceeding an attachment was not ordered in a timely manner, and by the time it was ordered, the asset to be attached was already owned by another person. Due to this fact, the plaintiff suffered patrimonial damage by being unable to pursue the debtor's assets. Thus, the Council of State ordered the Nation to pay the injured party the amount that could not be collected in the initial executive proceeding.

These two cases are examples of many others. Likewise, the Council of State has increasingly clarified the concept of judicial error. In a judgment of April 3, 2013[3], it stated:

"Based on the foregoing, the Chamber has considered that judicial error exists when the judge, regardless of whether they act with the subjective element of fault, issues a ruling discordant with the set of actions carried out within the proceeding, which, once final, causes unlawful damage."

It should be clarified that for the patrimonial liability of the State to be configured, that is, to sue the State in order to seek compensation, it is necessary that the requirements of liability be met. These are:

1. The Fact:
2. The occurrence of an event that caused damage.
3. The Damage: It is the certain patrimonial harm suffered by a person as a consequence of the official's actions.
4. The Causal Link: that there is a direct relationship between the judge's actions and the harm suffered.
5. The Basis for Imputation: that there is a ground for liability to declare State liability, which in this case is Judicial Error.

For all the above, if you were in a judicial proceeding and consider that the judge who ruled on the case made a mistake in the ruling, or carried out an action that caused you patrimonial harm, you may consider suing the State to compensate you for the judicial error.