On January 25, 2021, Law 2080 was enacted, reforming Law 1437 of 2011, the Code of Administrative Procedure and Administrative Litigation (CPACA). Undoubtedly, this reform, which was an initiative of the Council of State, will have a significant impact on the speed and efficiency of administrative processes. The changes introduced by this law can be summarized as the use of technological means, procedural speed, correction of antinomies, and modification of remedies in judicial proceedings.
In general, the reform came into effect on January 25, 2021; however, the same law, in its Article 86, establishes rules for its application that must be considered: the allocation of jurisdiction among judges to hear administrative proceedings will apply to all processes initiated from January 25, 2022. Furthermore, the amendments to expert evidence will apply to all proceedings in which the evidentiary stage has not yet begun; for those that have already passed that stage, Law 1437 of 2011 will continue to govern.
This resolves the current problem between the former Administrative Litigation Code and Law 1437 of 2011, which resulted in two laws being in force for proceedings not yet concluded. Law 2080 of 2021 provides that procedural actions initiated under the CPACA will conclude under its regulation, and subsequent actions will be conducted in accordance with the provisions of the new law.
The initial articles of the reform seek to implement electronic means in all proceedings before the administration. The authorities and the administrative litigation jurisdiction have always been a step ahead of other jurisdictions regarding the use of ICTs; however, it is true that the rules adopted by Decree 806 of 2020 within the framework of the health emergency must influence the speed and technological management of processes, and Law 2080 of 2021, which makes their application permanent in administrative proceedings, undoubtedly signifies progress in achieving this.
Among the most significant innovations regarding the use of information technologies is the express recognition of citizens' right to identify themselves electronically before public entities, the implementation of a Single State Portal, and the obligation for all entities to have an electronic headquarters, so that citizens can find all information and administrative procedures on a single website.
Furthermore, regarding judicial proceedings, Law 1437 of 2011 established that for notifications within a process, the general rule was the use of physical means, unless the parties wished to be notified electronically. Law 2080 of 2021, in its Article 56, reverses this rule and imposes on the parties involved in the process the obligation to state that they do not wish to be notified electronically. Information about judicial proceedings and the transfer of information between parties will also be conducted electronically, with the secretary of the relevant court being responsible for verifying that notifications are properly carried out.
The above, among other rules, signify a change in the way administrative processes and all proceedings before state entities are conducted; however, it should be noted that their implementation will depend on the knowledge and willingness of lawyers, contractors, state entities, and administrative judges.
Law 2080 of 2021 has been concerned with being pragmatic and has focused on the legal administrative reality to make the necessary changes to favor effective access to justice. Among the most significant changes in the law are the reduction of time limits, for example, especially in fiscal sanctioning matters, where time limits are significantly reduced by half. Additionally, the law provides detailed regulation of the grounds and timing for issuing early judgments in judicial proceedings, and seeks to decongest the Council of State to strengthen its unifying function in difficult cases and reduce its role as a court of last resort.
One of the major problems of Law 1437 of 2011 is that within its text there are several contradictions that give rise to interpretive issues. For this reason, Law 2080 of 2021 addresses various topics to clarify and generate legal certainty in access to justice.
To resolve some of these problems, the expert opinion figure in administrative proceedings was clarified. Previously, Law 1437 of 2011 referred to the former Code of Civil Procedure for the regulation of expert opinions submitted by the parties, so Law 2080 of 2021 had to expressly refer to the General Code of Procedure to avoid a legal vacuum in this matter. On the other hand, the expert opinion that the judge orders without being submitted by a party is regulated by Law 2080 of 2021 in its Article 54.
Article 55 of the new Law 2080 of 2021, which regulates expert opinions submitted by the parties, states in its fourth paragraph that the public entity may request an extension of the deadline for holding the hearing if it needs to hire technical advisors or experts. This rule contains provisions that will need to be resolved by case law and will be left to the discretion of justice operators, as it grants exclusively to the public entity the power to request an extension of the deadline, disregarding equality with private parties, and does not specify a maximum period by which the initial term can be extended, leaving its determination to the entity's or judge's discretion.
Another problem that the text of Law 2080 of 2021 attempts to solve is the interference of public servants in the fiscal sanctioning administrative process, so it established in the Office of the Comptroller General of the Republic the power to suspend the investigated public servant from their functions, provisionally, for a term of one (1) month, without any remuneration, provided there are serious elements to infer that their continuation in office will hinder the successful outcome of the process.
Furthermore, in its function of eliminating antinomies, Law 2080 of 2021, in its Article 17, eliminates one of the grounds that allow a judge to refuse to apply a unification judgment of the Council of State, which stated that the judge may deny the request for extension of jurisprudence if they consider that the unification judgment does not adequately interpret the law. The reform correctly eliminates the mentioned ground because judges are subject to the Constitution, the law, and jurisprudence, especially the provisions of the Council of State in judgments of this type.
To strengthen the unifying function of the Council of State, decongest the volume of matters it must handle, and ensure effective access to justice, Law 2080 of 2021 introduced several changes; thus, the reform aimed to strengthen the reconsideration remedy, simplify procedures, and expand the jurisdiction of administrative courts and tribunals.
The reconsideration remedy before the CPACA reform was not available if the order could be challenged through appeal or complaint. With Law 2080 of 2021, the reconsideration remedy can be filed together with the appeal or complaint against the decision and will be governed by the rules provided for this purpose in the General Code of Procedure. Furthermore, contrary to what was assumed by the CPACA, now orders are generally subject to reconsideration, except for special exceptions provided by law. With this provision, the reform aims for some remedies that must be resolved in the second instance to be resolved by the judge or court that issued them, attempting to reduce the volume of appeals reaching higher instances and thus favor decongestion.
Law 2080 of 2021 unifies the cases in which appeal is available without distinguishing the origin of the order, making its application simpler. It also eliminates some appealable orders and adds others. For example, it resolves the contradiction between Articles 226 and 243.7 of Law 1437 of 2011, which contradicted each other when determining whether the order denying or approving third-party intervention is appealable. In resolving this antinomy, the reform only retains the availability of appeal for the denial of third-party intervention in the process; the order approving it, according to this interpretation, will not be appealable.
On the other hand, the adhesive appeal, a figure that had only been developed by case law, is expressly regulated from Law 2080 of 2021 in its Article 62. The law proposed several changes regarding other ordinary and extraordinary remedies in administrative litigation; additionally, to achieve citizens' access to justice, it eliminated some scenarios where conciliation must be carried out before initiating an administrative process; those scenarios are labor and pension processes. On the other hand, for processes in which a public entity is sued or a repetition action is exercised, as well as in enforcement processes, where conciliation was prohibited, it is introduced as optional - except in cases of municipalities under restructuring -.
Furthermore, in administrative proceedings from Law 2080 of 2021, the complaint is received together with its attachments, so the term to withdraw attachments ceases to run and will be counted from the third day after the sending of the order for its notification.
To favor speed in proceedings, Law 2080 of 2021 allows the judge to issue an early judgment at any stage of the process if they find that no new evidence needs to be practiced, if only documentary evidence was submitted and practiced, if the parties request it by mutual agreement, due to settlement or acknowledgment, or if the expiration of the statute of limitations, lack of standing, res judicata, or negotiation between the parties is proven. This reform, modeled after Decree 806 of 2020, allows processes to end early at any time and does not limit this possibility to a single scenario.
Additionally, in initial hearings, if the public entity does not provide the certificate from the conciliation committee, the hearing is not suspended but it will be understood that there is no conciliatory intent on the part of the entity and the process will continue. One of the most interesting aspects of the CPACA reform is that it allows judges to group recurring issues to resolve them in the same hearing, which favors decongestion and detailed study of processes involving the same legal rules. Furthermore, the reform in its Article 43 opens the possibility for optional public hearings when the matter is of legal or social relevance, when jurisprudence is to be unified, or when expert opinions are needed.
Orality is also privileged by imposing that, when possible, an oral judgment be issued at the hearing of arguments and judgment, and otherwise, it is possible to state the ruling's direction to issue a written judgment later, which is closely related to the regulation on this matter in the General Code of Procedure.
In conclusion, the reforms introduced by Law 2080 of 2021 arrived at a critical moment for legal practice. Just as the COVID-19 health emergency that required virtuality in judicial proceedings is ending, it is necessary to maintain the agility, immediacy, and effectiveness of virtual systems for access to justice. The reform to Law 1437 of 2011, despite its few shortcomings, was pertinent to implement information technologies in administrative processes, as well as to reform rules that in practice raised interpretive problems and to favor speed in all public proceedings and litigation. However, its success will depend on society's skills and adaptive capacity to this new era, and on legal skills to quickly adapt to the paradigm shift posed by Law 2080 of 2021.
REFERENCES:
- Congreso de la República. Ley 2080 de 2021. Por medio de la cual se reforma el Código de Procedimiento Administrativo y de lo Contencioso Administrativo -ley 1437 de 2011- y se dictan otras disposiciones en materia de descongestión en los procesos que se tramitan ante la jurisdicción. Bogotá D.C.
- Instituto Colombiano de Derecho Procesal. Seminario de Actualización Ley 2080 de 2021. Recuperado de:
https://www.youtube.com/watch?v=HhHaI4vnz1k&t=3692sBejarano, R. Reforma al CPACA. (2021) En: Ámbito Jurídico. Recuperado de:https://www.ambitojuridico.com/noticias/columnista-impreso/administrativo-y-contratacion/reforma-al-cpaca
Author: Juliana Carolina Obando Miranda . – Consulting Attorney