Decree 806 and digitization
In Colombia, the administration of justice is faced with different challenges that impede its proper functioning. Among the main challenges to be overcome are access to justice and judicial congestion. The first of them represented in the excessive formalities required by law to access justice and the second represented in the times that the administration of justice takes to resolve matters of their knowledge.
For their part, information technologies are the right ally to face these challenges, first because they reduce the costs associated with the management of physical files, and second, because they allow people to access justice regardless of the location in the they meet.
Although the efforts made by Colombian legislators have opened doors for digitization in the administration of justice, these efforts have not been sufficient because there are still regulations that prevent the full use of information technologies in this area.
Aware of the above, the Ministry of Justice and Law, in the framework of the Economic, Social and Ecological Emergency, issued Decree 806 of June 4, 2020, through which it adopts measures to implement information technologies and communications in court proceedings.
Decree 806 of June 4, 2020
The purpose of this decree is to eliminate those procedural barriers that prevent digitization in judicial processes. The objective is to resume the provision of judicial services taking into account the need to meet the needs of citizens, but without putting the staff working in the judicial branch and the lawyers who use it at risk of COVID-19 contagion.
For such purposes, Decree 806 of June 4, 2020 focuses on three topics in particular:
- the use of electronic mail as a means of sending information (requests, transfers, notifications);
- the possibility of signing documents digitally, that is, being able to use the electronic signature;
- the use of information and communication technologies to conduct audiences in person.
The tools of digitization
Regarding the use of email as a means to send information and the possibility of signing documents digitally, it is worth noting that Decree 806 of 2020 in article 2 established that:
“Information and communication technologies must be used in the management and processing of judicial processes and ongoing matters, in order to facilitate and streamline access to justice, as well as protect judicial officials, such as users of this public service.
Technological means will be used for all actions, hearings and proceedings and procedural subjects will be allowed to act in the processes or procedures through the available digital means, avoiding demanding and fulfilling face-to-face or similar formalities, which are not strictly necessary. Therefore, the proceedings will not require handwritten or digital signatures, personal presentations or additional authentications, nor be incorporated or presented in physical media.”
In addition to the above, article 5 of Decree 806 of 2020 indicates that the special powers for any digital action may be conferred by means of a data message, without a handwritten or digital signature. They must indicate the email address of the attorney, which must match the one registered in the National Registry of Lawyers.
Lastly, Article 8 of Decree 806 of 2020 indicates that the notifications that must be made personally can be made by sending the respective order as a data message to the electronic address provided by the interested party. Said personal notification shall be deemed to have been made once two business days have elapsed following the date of sending the message and the terms will begin to count from the day following the notification.
Electronic signature and eDelivery
As can be seen, Decree 806 of 2020 finishes establishing the bases for technology to be the tool that allows access to justice for all citizens.
With this regulation, eDelivery and electronic signatures become an ally of lawyers and the administration of justice, thanks to which the efforts of the Ministry of Justice and Law to speed up the provision of judicial services are instrumentalized, becoming essential tools for the digitalization era.
In relation to the legally valid certified email, it will be the appropriate mechanism to have the evidence on the transmission of data messages. It is important to highlight that the sending of the eDelivery allows the parties to have unequivocal evidence about the dates of sending and receiving the messages, guaranteeing clarity for the parties regarding the legal terms.
For its part, the electronic signature, legally accepted in Colombia, is the appropriate mechanism to sign documents electronically for the administrators of justice, since with it use, there is certainty about the originator of the document and any alteration to it after its signature, aspects that are not fulfilled with the scanned signatures.
In this regard, it should be noted that the digitized signature (scanned image of a signature) cannot be considered as an electronic signature since it does not meet the attributes of authenticity, integrity and non-repudiation, which is why it cannot be considered as valid in the signing of documents.
However, the electronic signature grants certainty about its origin (it is known with certainty who the signatory is) and identifies any alteration to the document after its subscription, thus complying with the attributes of authenticity, integrity and non-repudiation required by law, which gives it the presumption of validity in accordance with the provisions of Decree 2364 of 2012.
In the workplace, this tool can be used to make formal notifications to employees, for example, to impose a disciplinary sanction, make changes to working conditions, or even to terminate employment relationships. The eDelivery collects all the evidences of sending and receiving, making it a means of notification at any time and from anywhere. Again, we would be looking at a tool that allows companies to save time and money.