FERVENT DEBATE AT THE NEXT COLOMBIAN CONGRESS OF PROCEDURAL LAW
Between the 5th and 9th of September 2022, the 43rd Congress of Procedural Law will be held in Cartagena. It will be the first face-to-face congress after 2 years of virtuality, and it coincides with the 10-year celebration of the the issuance of the General Code of proceedings, recently renewed because of the pandemic with Law 2213 of 2022.
Although there are many issues to be discussed, a priority will certainly be the support of the appeal of rulings. One of the changes brought about by the General Code of Proceedings in Colombia was the scheme of the appeal of rulings, which was designed to be filled in three stages:
(i) interposition -in which the interested party simply mentions that it appeals-;
(ii) a specific objection -in which the party that has just appealed sets out the fundamental points on which its appeal consists of;
(iii) support -in which the objections are developed through a plot exposition-.
The first two stages were to be completed before the first-instance judge. The third one, before the judge or court of appeals in a hearing convened for that purpose.
This scheme was inconvenient from the beginning, since the stage of specific objections was confused with that of support, aiming to exhaust both simultaneously and before the judge of the first instance. This led to the emergence of contradictory points of view within the courts: the first consisted on declaring the deserted, not supported, appeal; and, the second, aimed to resolve it based on the arguments that were presented before the judge of first instance.
The indiscriminate application of these two, even within the same court, led to the filing of multiple constitutional actions. These actions were known in the first instance by the Civil Chamber of the Supreme Court of Justice, which supported the decision to declare the appeal void; whereas, the second instance was known by the Labor Chamber, which considered the opposite.
The Constitutional Court also became involved in the discussion. Thus, by judgment SU-418 of 2019, the corporation unified the jurisprudence and declared that the appeal had to be supported orally before the judge or the court of appeals, under penalty of being declared void.
When the discussion seemed settled, the pandemic arrived and, with it, Decree 806 of 2020, where the appeal of rulings in civil and family matters was partially modified in section 14. The amendment consisted of moving from an oral support scheme to a written scheme, which still had to be submitted before the judge or court of appeals.
By means of judgment STC 5499 of 2021, the Civil Chamber of the Court considered that Decree 806 of 2020 allowed the early support of the appeal before the judge of the first instance. In words of the Court: «in force of Legislative Decree 806 of 2020, if, from the filing of the motion of appeal the appellant completely exposes the objections for which it disagrees with the judicial order, there is no reason for the superior to demand the support of the challenge». Some justices did not agree with this decision.
The position today remains as that set out in the previous paragraph, some courts and judges do not agree and continue to declare void the appeals of rulings that are not timely sustained in the second instance. For example, in a recent ruling in July 28, 2022, the Court of appeals of Bogotá considered that the decisions issued by the Civil Chamber of the Supreme Court of Justice have not been issued unanimously «because they have the vote savings of Justices Luis Armando Tolosa Villabona and Hilda González Neira; recently, also justice Martha Patricia Guzman has joined the dissenting voices.»
For more details on this topic and other current issues, we hope to see you in Cartagena!