Key takeaways

Regarding oral trial hearings in criminal cases:

• The Constitutional Court decided that they will always be in person.
• The Superior Council of the Judiciary determined that all hearings may be virtual.
• There is uncertainty as to the position to be adopted.
• The Superior Council of the Judiciary is expected to issue a new Agreement.

Regarding the reform proposal:

• Seeks to decongest the Colombian criminal system.
• Eliminates the arraignment hearing, prioritizing written communication.
• Promotes comprehensive reparations for victims.

In depth

1. The oral trial hearings in the Colombian criminal jurisdiction

Due to the global pandemic of COVID-19, the Colombian Government had to take drastic measures to guarantee access to the administration of justice. Therefore, it issued the former Decree 806 of 2020 (“the Decree”), which prioritized, on a temporary basis, the conduct of hearings through virtual channels. Due to the success of this initiative, the Congress of the Republic decided to convert the Decree into Law, giving way to Law 2213 of 2022.

However, the Congress wanted to go further. That is why it prepared Bill 295 of 2020 - House and 475 of 2021 - Senate (“the Bill”), which seeks to amend Law 270 of 1996 (“the Law”). The Law regulates the fundamental right to access to the administration of justice, so any amendment will do the same. Now, according to the Colombian Constitution, any law that seeks to regulate the fundamental rights of individuals must pass a mandatory review of constitutionality. And this is where Judgment C-134 of 2023 (“the Judgment”) arises, which analyzes whether the Bill is in accordance with the Constitution.

Throughout the Ruling, the Court declared that the vast majority of the Project was constitutional. But it also ruled in particular on certain articles, declaring that they had to be interpreted in a certain way to be constitutional. Some of these were Articles 63 and 64 of the Project.

Article 63 states that “Technological means shall be used for all judicial proceedings (...)”. This implies that all judicial hearings in Colombia could be held in a virtual or hybrid manner. However, the Court determined that this was not absolutely accurate. It explains that oral trials in criminal matters must continue to be face-to-face, in order to protect the rights of those involved. Both the defense and the victims have the right to have the truth built throughout the trial, so the Court considers that virtuality would undermine this.

An example of this, given by the Court itself, is useful. In Colombia, witnesses in criminal trials cannot consult documents while testifying, unless authorized by the Judge. This seeks to ensure that witnesses tell their version of the facts as they know them, and not a version contaminated by outside influence. Well, if the trial were virtual, what prevents the witness from reviewing documents while testifying? The Court considers that this type of situation would be extremely serious in trials where a person's freedom is at stake. Therefore, it considered that the oral trial in criminal matters, in order to preserve the rights of the accused and the victims, should always be face-to-face.

For its part, Article 64 determines that it is the duty of those who intervene in a judicial case “(...) to carry out their actions and attend hearings and proceedings through technological means (...)”. The Court explains, following the same logic of Article 63, that the oral trial will always be in person. In other words, if it was determined in Article 63 that these hearings cannot be virtual or hybrid, the same is true when analyzing Article 64.

Now, this decision is controversial because of the decisions of the Superior Council of the Judiciary (“the Council”). The Council is the highest administrative authority of the Judicial Branch, which in simple terms implies that it has the final decision on the daily functioning of the administration of justice. Within its normal functions, the Council issued Agreement PCSJA24-12185 (“the Agreement”) last May 27, 2024. The purpose of the Agreement was to adopt the new protocol for all judicial hearings held in Colombia.

In general, the Agreement establishes a series of particular rules for all persons involved in court hearings. For example, all subjects of a proceeding (lawyers, prosecutors, plaintiff, defendant, judges, etc.) must remain with the camera turned on at all times and refrain from participating in more than one hearing at a time. In the case of the public, their access is guaranteed (unless the judge considers that the hearing should be reserved, as in criminal cases involving minors) with the proviso that they may never turn on a camera or microphone. The Council has tried to maintain a visionary and avant-garde position, seeking to integrate technological tools to the judicial processes. In this way, the goal of a digital, transparent and effective justice will be achieved.

However, the Agreement established that all judicial hearings could be held in a virtual, hybrid or face-to-face manner, at the decision of each Judge. This is observed in Article 1° of the Agreement, where it is established that “(...) in the hearings, face-to-face, virtual or hybrid, in the matters that are advanced in all jurisdictions and specialties of the judicial offices of the national territory”. In other words, the Council considers that all hearings will be virtual, regardless of the jurisdiction or specialty of the Judge.

The conflict between the Ruling and the Agreement is evident. On the one hand, the Council, the highest administrative authority of the Judges of Colombia, determines that all hearings will be virtual. On the other hand, the Constitutional Court, the main guardian of the Colombian Constitution, determined that all hearings may be virtual, except for oral criminal trials. By hierarchy and in defense of the Constitution, the Ruling takes precedence over the Agreement. However, seeing that the former was notified days after the publication of the latter, a complex scenario is foreseen for the Criminal Judges. What is certain is the need for the Council to issue a new protocol for hearings, which fully reflects the pronouncement of the Constitutional Court.

2. The Ministry of Justice's proposed reform to the Criminal Procedure Code

This reform proposal of the Ministry of Justice and Law (“the Ministry”) has not been filed before the Congress of the Republic. However, it is a clear manifestation of the National Government's criminal policy, which seeks to renew Colombia's oral accusatory criminal justice system.

1. It eliminates the arraignment hearing, prioritizing written communication

It should be noted that the Colombian criminal system is currently governed mainly by Law 906 of 2004, which introduced the Code of Criminal Procedure (“the Code”). Within this system, with an accusatory tendency, oral proceedings are prioritized above all else. So much so, that in its current version, there are only two formally written acts: the Indictment and the Sentence. This seeks to guarantee the due process of the parties, generating a true legal debate on the responsibility of individuals.

However, oral proceedings take longer than a written case. This is due to the need for multiple hearings, where all parties can speak. The prosecution, the defense, the victims and the Public Prosecutor's Office have the right to intervene in the hearings, in order to guarantee the rights of all of the above. Therefore, hearings tend to take a considerable amount of time. In addition to the number of hearings required by the Code, criminal cases tend to take a considerable amount of time. To exemplify this, a normal criminal proceeding may have 8 separate hearings.

Because of this, the Ministry proposes to eliminate one of the first hearings of the Code: Arraignment Hearing (“the Hearing”). The Hearing seeks for the Prosecutor's Office to communicate the preliminary charges for which it is investigating a person. In addition, the accused is formally linked to the investigation. As mentioned, the fundamental purpose of the hearing is the effective and clear communication of the charges. However, under the Ministry's criteria, this communication of charges could be done in a more efficient manner. The charges would be brought by means of the Arraignment Writ in the offices of the Prosecutor in charge of the case. In other words, the charges would not be filed before a Criminal Judge, which would reduce time.

For the defenses, this decision would be very positive, since it would reduce the time needed for the charges to be clarified. If there are any doubts, they can be resolved by speaking directly with the Prosecutor, without the need to reschedule the hearing. For Prosecutors, it means one less hearing to attend, so they can focus their efforts on fighting crime. And finally, for Criminal Judges, it would be very positive, as it would decongest their already busy schedules.

In general, this proposal is received with optimism, but with some caution. Although it is true that it would simplify the procedure, it would eliminate the control of legality exercised by the Criminal Judge. At the Hearing, the presiding Judge verifies that the charge presented complies with all legal requirements. If it does not, the Prosecutor is ordered to correct it. If this control is eliminated, it would be left to the Prosecutor himself to verify that his arraignment complies with the relevant procedural rules. This may present problems, as it could violate the rights of the accused. However, it will be necessary to wait until the final text that will reach the Congress of the Republic is published.

2. It promotes the comprehensive reparation of the victims

But perhaps the most transcendental proposal of the Ministry has to do with the rights of the victims. It is the addition of a new cause for the extinction of the criminal action: Comprehensive reparation. It should be mentioned that the extinction of the criminal action implies that the Prosecutor's Office cannot prosecute the person who allegedly committed a crime. In other words, once the action is extinguished, the person cannot be prosecuted again for the same facts and crimes.

Comprehensive reparation, which extinguished the criminal action in the repealed Law 600 (former Code of Criminal Procedure) but not in the current Code, seeks to promote that the defendant repair the damage caused to the victim. But these reparations do not only imply pecuniary and economic benefits. On the contrary. The Code and the Supreme Court of Justice understand that comprehensive reparation can be symbolic (such as asking for forgiveness), non-pecuniary (such as volunteering and community service), economic (payment of reparation using money) or of any other nature that effectively compensates the victim. This criterion of reparation is what defines comprehensive reparation, since the victim must be truly satisfied and redressed in their pain and/or affectation.

In exchange for these compensatory acts, the Code would allow the criminal action to be extinguished for the benefit of the defense. This implies ending the criminal proceeding without conviction, which is very attractive for those who are being prosecuted by the Prosecutor's Office. In this way, the right of the victim to be compensated is promoted and an early termination is encouraged, decongesting our judicial system.

However, it should be mentioned that this possibility already exists in the Code, but in a slightly more complex manner. Through public settlement agreements, which are an instrument that allows the Prosecutor's Office to waive the criminal action for criminal policy reasons, the defense can make full reparations to the victim and see the case against him/her terminated without conviction. However, the Code does not allow this form of termination to apply to all crimes. In fact, this modality allows the criminal case to be terminated as long as the prosecuted crime does not have a prison term of more than six years. If the offense prosecuted exceeds this limit, the comprehensive reparation cannot currently terminate the case through public settlement agreements.

This is a welcome proposal, since it allows the victims of a crime to receive early reparation, without having to go through the whole trial process to request the compensation due by law. In addition, it encourages the accused to repair the consequences of their acts, benefiting the victims and decongesting the Colombian judicial system.

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