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New releases of the duration term in the civil proceedings in Colombia

The Article 121 of the Colombian General Procedure Code establishes that it cannot pass more than one (1) year to give a judgment in a first or only instance trial, counting this term from the claim admission or since the executive order is notified to the respondent party of the proceeding. Also, the term to solve on a second instance, cannot take over a six (6) month term, counted since the file of the proceeding is received in the tribunal secretary.

Exceptionally the judicial officer could extend this term once, up to six more months, to solve the case in the correspondent instance. However, to do so, the judge must provide an explanation that must be established in a decision that admits no appealing.

Besides, this Article establishes that it will be annulled full-fledged (“de pleno derecho”) the procedural actions made by the judicial officers after losing its competence to issue the correspondent decision. This expiration of the terms must be considered as a qualification criterion of the performance of the different judicial officers.

The last few weeks, the Supreme Court of Colombia and the Constitutional Court took important decisions about this legal mandate, like the following:

Constitutional Action - Decision of the Supreme Court of Colombia of September 18, 2019:

The claimant considered that its fundamental rights of due process and access to justice were infringed, based on the fact that since November 21, 2017, an appeal against a judge´s decision ( “Juzgado 6 Civil del Circuito de Popayán”) of September 29, 2017, was pending in the Superior Tribunal of Popayan. In that order the case was almost two years without a judicial decision on a second instance. During these two years, the appeal was submitted to administrative and formal proceedings, like transfers, designations of new judicial officers and competence conflict resolutions.

In accordance to the above, the Supreme Court of Colombia examined of what is established in the Article 121 of the Colombian General Procedure Code, and established that the loss of competence is decisive for the qualification of the judicial officers performance, that is the reason why this term must be counted taking into account its subjective nature, considering the reality of each case, as the change of the judge in charge of each case.

Regarding the above, when a judicial officer takes the position as a judge or a magistrate of a specific Tribunal, the term of the reasonable duration of the proceeding established in the Article 121 of the Colombian General Proceeding Code must be reset due to  it is considered as disproportioned to maintain the term that already started and has been previously running, taking into account that the non- accomplishment of this term influences the judicial officer´s performance qualification.

It is important to highlight that this decision was taken under a constitutional action proceeding and three of the judges stated that they do not agree with this decision (“salvaron su voto”). They considered that the term established in Article 121 of the Colombian General Procedure Code must be counted objectively, no matter the changes on the judge in charge of the case

Press release of the Constitutional Court decision No. C – 443- 19:

On this decision, the Constitutional Court analyzed the following: “If the measures established in the Article 121 of the Colombian General Procedure Code threatened the Constitutional principles on which the jurisdictional function is structured, particularly the right of timely resolutions of judicial proceedings, the efficiency in the State functions, the prevalence of the substantial rights and the fundamental right of access to justice

About the full-fledged annulment (“nulidad de pleno derecho”), the Constitutional Court established that these principles were breached because the full-fledged annulment does not support the principle of timely justice. On the contrary, it is an obstacle to making the justice fluent, and is considered as a total threat to the fundamental right of access to justice.

The Court considered that, from the perspective of the right to timely and material justice, the automaticity of the annulment of the extemporary procedural actions does not contribute in a positive way to the purpose of guarantee a timely justice and also, it constitutes an obstacle to the consecution of this goal, because it opens up a new debate of the validity of the decisions made by the judicial officers.

Regarding the legal disposition related to take into account the expiration of terms as an approach of the qualification of performance of the judicial officers, the Court solved to declare the conditionate constitutionally of the referred precept, clearing up that the expiration of the terms does not imply the automatic decalcification of the performance of the judicial officers.

For all the above, it was declared the unconstitutionality of the expression “full-fledged” (“de pleno derecho”) included in Article 121 of the Colombian General Proceeding Code and the conditioned constitutionality of the second and eight subparagraphs of the same Article.

This recent decisions imply that the duration term of the proceeding of one (1) year on a first or only instance and six (6) months on a second instance, must be reconsidered so it can be prolonged, if subjective aspects like the change of the judicial officer in charge of the case are going to be taken into account, situation that is usual in Colombian Courts.

Authors

Carolina Arenas
Carolina Arenas
Partner
Bogotá
María Fernanda Bejarano
María Fernanda Bejarano
Associate
Bogotá
Michelle-Lichtenberger-CMS-Colombia
Michelle Lichtenberger
Associate
Bogotá