By: Maria Fernanda Gonzalez

In a recent Judgment from the Superior Civil Tribunal of Bogotá that solved an appeal against a decision by the Superintendence of Industry and Commerce (“SIC”) rejecting a complaint in a procedure of infringement of intellectual property rights, the Superior Tribunal of Bogota – Civil Section ruled that all communications, including evidence supporting the complaint, can be submitted by any suitable mean, including solutions for storing information in the cloud, particularly useful when dealing with large files due to the difficulty of sending via email.[1]

The Case

The Delegation for Jurisdictional Affairs of the SIC rejected the complaint of the plaintiff for not having corrected the initial inadmissibility of the claim of the plaintiff by presenting the chapter of evidence and annexes through a link to a repository located in the cloud (Dropbox/Google Drive) and not through the mechanisms provided in the protocol issued by the SIC for the virtual processing of judicial procedures.

The Appeals

The Appellate Tribunal based its ruling on the following:

1. The documents were provided through a technological mean.
2. The SIC could not claim compliance (i) with additional requirements that are unnecessary, considering the informality principle established in the General Statute of the Procedure (“CGP”, by its initials in Spanish);[2] (ii) overpassing the duty of the judicial authorities to use information and communication technologies to facilitate access to the administration of justice instead of restringing such access;[3] (iii) contradicting the rule according to which documents must be provided in the same format they were issued or in any other format reproducing them accurately;[4] and (iv) ignoring that the use of information and communication technologies in judicial proceedings was intended to make the access to justice more flexible for users.[5]

The main premise of the ruling holds that access to justice through information and communication technologies must be given in such a manner that the user can take advantages of and use any available technological means, provided that the judicial servants can access them. Thus, the Appellate Tribunal indicated that, the fact that the judicial authorities inform in their websites the official communication and information channels available to provide their services as required by law,[6] does not imply that they can impose formalities on the provision of evidence, as such formalities are exclusive for the law, based on the right to prove under the due process protected by the Colombian Constitution.[7]

Imposing on users the use of e-mail, with the limitations that it entails to transmit large files, even recognized by the SIC in the appealed decision, by means of a protocol issued by the judicial authority, it is not only unusual in these days but nugatory of the users’ right to access to justice.

Similar problems had been already identified by litigators derived from the limitations found in the system implemented by the judicial branch for virtual proceedings, which does not allow to process complaints with attachments larger than 50Mbyes, difficulties that would be easily solved by submitting the complaint, with its evidence and annexes through additional technological means such as providing access to information hosted in the cloud.

Conclusion

This ruling is of great importance, as it lays the foundations for the use of information and communication technologies in the administration of justice, in a practical and dynamic manner at the service of users, guaranteeing greater and easier access to the judicial system and preventing from ending up being truncated through unnecessary and dissimilar mechanisms designed by judicial authorities for its own convenience.

[1] Bogota Superior Court- Civil Section, February 10, 2021, File 001202096800 01
[2] Article 11, CGP
[3] Article 103, CGP
[4] Article 247, CGP
[5] Article 1, Decree 806 of 2020
[6] Article 2, Decree 806 of 2020
[7] Article 29, Colombian Constitution

By: María del Pilar Duplat M. – Peña Mancero Abogados

Through Law 2080 of 2021 the National Congress approved the modification of the Code of Administrative Procedure and Contentious-Administrative Matters (CPACA) in Colombia, to include new developments in the use of digital and technological resources and other long-due changes, hereunder we make a brief summary of the main modifications:

1. Right of Petition

People may submit petitions in any way, i.e. verbally, in writing, or through any technological or electronic means available in the public entity or embedded within the “unified Access mechanisms to the public administration”, and without the need of doing it through an attorney.   Furthermore, the petitions made through electronic mechanisms shall not demand a previous registration before said entity.

2. Electronic Mechanisms for the administrative procedure

• People may identify themselves before the authorities through digital authentication mechanisms.
• When authorities enable digital channels to communicate between each other, they shall use these means to develop their functions.
• People may also use the digital channels enabled by the public/administrative authorities to interact with them.
• Implementation of the electronic file: The electronic file is the set of electronic documents that correspond to an administrative procedure. The electronic file shall guarantee the authenticity, integrity and availability of the documents.
• Electronic notification: Authorities may notify their acts through electronic means, provided that the subject has authorized it. In any case, the subject may at any moment request that the subsequent notifications are not made electronically, but through other mechanisms.
• Electronic Office: The electronic office is the official electronic address of the entity. Said office shall contain all legal, organizational and technical measures that guarantee the quality, security, availability, accessibility, neutrality and interoperability of the information and the services pursuant to the standards established by the National Government.

Said electronic office shall be shared with the Unique Portal of the Colombian State, to which people may have access to the contents, procedures, services and formalities available by the public authorities.

Furthermore, there shall be an electronic registration of documents and shall have data systems with sufficient capacity and have the adequate digital security measures.

3. Extension of case-law of the State Council

Authorities shall extend the effects of the unification judgments issued by the State Council where a right has been recognized to whoever requests and proves that it is under the same factual and legal situation than the one in the unification judgment. To do so, the subject interested in the extension of the case-law of the State Council shall:

• File a request before the corresponding authority to acknowledge the right.
• The legal claim must not have precluded.
• Contain a justification where it proves that the petitioner is in the same factual and legal situation in the case-law whose effects it seeks to extend to its particular case.
• Provide the evidence that it wishes to submit in the procedure.
• Make reference to the unification judgment from the State Council effects it seeks to extend.

4. Expert Evidence

The parties to an administrative litigation process may submit or request to the judge to order a specific expert evidence in the way provided by the CPACA. If there is a recusal or an impediment of the expert, the Judge shall decide it immediately and without further discussion through a procedural decision which shall be final.

The Expert shall take possession of its position and shall give an oath pursuant to the law, and if the party who requested or that provided the expert evidence does not deposit the sums ordered by the judge to pay the travel expenses and the ones derived from the rendering of the expertise, it will be understood that the party waived the evidence.

The Parties shall have a term of 15 business days to submit their arguments against the expert’s opinion or to request a complementation or addition, once the expert’s opinion has been completed or added the other party shall have a term of 10 business days to submit its arguments against these new issues on the opinion.

Finally, two new special rules were created:

1. Public entities may choose the experts who shall give their opinion in a judicial process through a direct procurement procedure.
2. When a public entity is the one issuing the expert opinion, the judge shall order the payments of the fees to this entity.

5. Administrative Litigation Procedure

All labor, pension and other matters which are not by nature negotiable matters, may be settled out-of-court, unless it is expressly forbidden by the law.

In declaratory procedures, the plaintiff may withdraw the law-suit provided that no precautionary measures/injunctive relief have been notified or performed. On the other hand, the plaintiff in an executive procedure may withdraw the suit even if precautionary measures/injunctive relief have been carried out.

Furthermore, parties may submit additional evidence in the appeals procedure, when they were decreed but not carried out in the first instance proceedings or when they have been refused in the first instance of the procedure.

Appeals and appeals for reconsideration are no longer available to challenge a sanction for non-compliance with a precautionary measure or injunctive relief, only a reconsideration request (recurso de reposición in Spanish) may be submitted before the judge who issued the decision.

6. Anticipated Judgment

Pursuant to article 42 of Law 2080 of 2021, the Judge may issue an anticipated judgment, i.e. before the initial hearing, in the following cases:

1. In merely legal cases
2. When no evidence needs to be examined.
3. There is only documental evidence submitted with the suit and/or the reply to the suit, provided that there is no claim of falsehood against the documents or allegations of lack of knowledge therein.
4. When the requested evidence is not related to the claims, irrelevant or useless.

Nevertheless, in any of the aforementioned cases, the judge may decide in any case to carry out the initial hearing, if it considers it appropriate.

To sum up hereunder you will find a graphic with the main amendments to the CPACA:

If you have further inquiries about the modifications to the administrative litigation procedure introduced by Law 2080 of 2021, do not hesitate to contact our team of experts at: info@pmabogados.co