Presentation form Name of the Court: Council of State Name of the - - PDF document

ASSOCIATION INTERNATIONALE DES HAUTES JURIDICTIONS ADMINISTRATIVES INTERNATIONAL ASSOCIATION OF SUPREME ADMINISTRATIVE JURISDICTIONS

Association internationale des hautes juridictions administratives (A.I.H.J.A.) / International Association of Supreme Administrative Jurisdictions (I.A.S.A.J.) Conseil d’Etat – Place du Palais Royal – 75100 Paris cedex 01 – France Téléphone / Phone : (+33) 1 40 20 80 11 – Télécopie / Fax. : (+33) 1 40 20 81 34 Courriel / Email : aihja@conseil-etat.fr – Site internet / Website : www.aihja.org / www.iasaj.org Banque / Bank : HSBC FR PALAIS ROYAL – 3 place André Malraux – 75001 Paris IBAN : FR76 3005 6000 4500 4554 1130 225 – BIC : CCFRFRPP

Presentation form

Name of the Court: Council of State Name of the President/Chief Justice: German Alberto Bula Escobar Address: Palacio de Justicia. Calle 12 No. 7-65 Bogota D.C., Colombia. Phone number : 350-67-00 (+ 571) Fax: (+ ) Website: www.consejodeestado.gov.co E-mail: presidencia@consejoestado.ramajudicial.gov.co 1. NATIONAL JUDICIAL ORGANISATION 1.1. General presentation of the judicial organisation and position of the administrative jurisdictional order The judicial organization of Colombia comprises:

• 1. Ordinary jurisdiction, which includes civil (commonly called "ordinary jurisdiction"),

agrarian, family, criminal and labor jurisdiction. The Supreme Court of Justice, which presides

• ver it, the Superior Tribunals of the Judicial District, the Judicial Circuit Judges and the

Municipal Judges integrate the ordinary jurisdiction.

• 2. The administrative contentious jurisdiction includes Council of State, which chairs it,

Administrative Tribunals and Judicial Circuit Administrative Judges.

• 3. The constitutional jurisdiction is integrated by the Constitutional Court.
• 4. The Office of the Attorney General. The Attorney General, the Deputy Attorney General,

Delegated Prosecutors and other officials determined by law and regulations makes it up.

• 5. The Superior Council of the Judiciary.

This order is not hierarchical, so that the three High Courts: the Supreme Court of Justice, the Council of State and the Constitutional Court are in the same constitutional and legal level in the structure of the Judicial Power. In addition, the Constitution provides for the creation of other special jurisdictions, such as that

• f Indigenous Peoples and Peace Judges.

The Congress exercises certain judicial functions. Exceptionally, law may attribute jurisdictional functions in specific matters to certain administrative authorities, but in no case to investigate and prosecute crimes. In certain cases, individuals may be temporarily invested with jurisdictional functions, such as conciliators and arbitrators. 1.2. Key dates in the evolution of the administrative jurisdictional order and the control of administrative acts Simon Bolivar, the "Liberator", created on October 30, 1817 the "Provisional Council of the State", which would be in charge of preparing the decrees and regulations of the Government and giving its advisory opinion on some issues. This Council of State was suppressed in 1843 to reappear in the Constitution of 1886, which gave it the character of "supreme advisory body of the Government in matters of administration". It also received decision-making capacity in contentious administrative matters, "if the law establishes this jurisdiction ». Eliminated again in 1905, the Council of State was re-established in 1914. In addition to the advisory functions, the Council was the administrative contentious jurisdiction´s supreme court. Act 130 of 1913, Act 167 of 1941 and Decree-Act No. 1 of 1984 were, in that order, the first, the second and the third Administrative Contentious Code in the country. Act 50 of 1967 created the Council of State´s Advisory and Civil Service Chamber. 1991´s Political Constitution instituted the Social Rule of Law and established a strong protection of inhabitants and citizens´ fundamental rights and guarantees. Therefore, it gave great importance to the administrative contentious jurisdiction in our country, mainly by reaffirming the functions of the Council of State and Administrative Tribunals, and by creating the Administrative Judges. The current Code of Administrative Procedure and Contentious Administrative Law, Act 1437 of 2011, harmonized the jurisdiction with the principles and rules of 1991´s Constitution and its

• reforms. It renewed the jurisdiction's procedures, mainly through the introduction of the method
• f verbal hearings, the use of electronic media and the establishment of legal actions to

extraordinarily review a decision and unify the case law. It began to govern on July 2, 2012.

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1.3. Criteria of competence of the administrative jurisdiction The criteria of competence of the administrative jurisdiction are two: i) a public entity that participates in an act, contract or fact, and ii) the submission of the act, contract o fact to administrative law. Article 104 of the Code of Administrative Procedure and Contentious Administrative Law sets, in a general and abbreviated manner, such criteria of competence of our administrative jurisdiction, in the following terms: "The Administrative Contentious Jurisdiction is established to know, in addition to the provisions of the Political Constitution and special laws, disputes and litigations arising from acts, contracts, facts, omissions and operations, subject to administrative law, in which public entities are involved, or individuals when they exercise administrative function ». The same article mentions several cases in which the jurisdiction is competent. In other words, the contentious administrative jurisdiction knows, in general terms, the controversies in which a public entity is involved, whether at the national, departmental, district

• r municipal level.

The contentious administrative jurisdiction is also competent to decide complaints against administrative acts and claims for damages caused by public entities´ contractual activity or their actions or omissions. This jurisdiction also knows about electoral disputes and actions of loss of investiture of congressmen, departmental deputies and municipal councilors. In addition, it is competent to resolve: i) "tutela" action, created for the protection of people´s fundamental rights, ii) popular and group actions, whose purpose is to protect collective rights and interests, or a specific group of people, and ii) "habeas corpus" petitions.

• 2. ORGANISATION OF THE ADMINISTRATIVE JURISDICTIONAL ORDER

2.1. Key founding texts There are several constitutional and legal statutes that underlie and support administrative jurisdiction´s organization, operation, procedures and innovations. The most relevant are: First of all, 1991´s Political Constitution and its numerous reforms. Statutory Law for the Justice Administration, Act 270 of 1996, and its reforms. Code of Administrative Procedure and Contentious Administrative Law, Act 1437 of 2011. Other laws, such as Act 472 of 1998 on popular and group actions, and Act 1755 of 2015 on the right to petition, etc.

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Reports and selections of case law from the Council of State, the Constitutional Court and the Supreme Court of Justice. Advisory opinions of the Council of State´s Advisory and Civil Service Chamber, which publishes its memories annually. Memories of forums, seminars, colloquia and meetings where the administrative jurisdiction participates. Works of foreign and national authors. 2.2. Organisation and competence of the administrative jurisdiction 2.2.1. General organisation of the administrative jurisdictional order Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts? The contentious administrative jurisdiction is the specialized jurisdiction that runs the administrative justice in Colombia. The jurisdiction is made up by:

• A Council of State.
• Administrative tribunals in the departments.
• Administrative judges in the departments, capital cities and other country´s relevant cities.

The contentious administrative jurisdiction comprises several levels, as follows:

• Administrative judges know about some matters, when acting as sole or only instance. As first

instance, they hear about nullity actions of administrative acts issued by district or municipal

• authorities. Likewise, they know about other contentious actions against authorities, when they

have a moderate value.

• Administrative Courts are also competent to solve, as a single instance, certain matters. As first

instance, they decide contentious actions against national, departmental, district and municipal authorities, taking into consideration the matter and values indicated by the Code. Finally, they act as second instance, when solving appeals against administrative judges´ decisions.

• The Council of State knows, as a single instance, certain matters concerning national
• authorities. As a second instance, it knows decisions issued in first instance by administrative
• tribunals. In addition, it is competent to decide extraordinary appeals and unification of

jurisprudence´s actions. The Council of State has also the faculty to unify the case law on the occasion of actions of its knowledge or administrative tribunals, by its own initiative or by request of one of the parties or the Public Ministry, for legal, economic or social reasons, or when there is a need to unify the case law on a specific topic.

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There are no specialized administrative jurisdictions in Colombia 2.2.2. Internal organisation of administrative courts and composition of the bench of judges Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single judge, collegiate panels with three, five ... judges, full court)? In Colombia, the Council of State and some administrative tribunals are organized in sections or specialized chambers. There are several degrees of formation of the courts: administrative judge is a single judge. Most

• f administrative tribunals have a collegial formation with panels of several magistrates. Finally,

some administrative tribunals and the Council of State are divided in sections or specialized chambers, composed by several magistrates or justices. The Council of State includes the following chambers: a) A Plenary Chamber integrated by the Contentious Administrative Plenary Chamber and the Advisory and Civil Service Chamber. It administratively directs the Council of State and the administrative jurisdiction. b) A Contentious Administrative Plenary Chamber. It has five (5) Sections or specialized

• chambers. The First Section has a residual jurisdiction. It means that it hears matters not known

by other sections. The Second Section decides matters related with public employees. The Third Section solves cases related with State´s contracts and non-contractual liability. The Four Section knows about tax and customs matters. Finally, the Fifth Section exercises competence in contentious matter concerning elections. The Contentious Administrative Plenary Chamber resolve certain matters established by law, such as, for example, the unification of case law on a specific topic, when proposed by any of the Sections or an administrative tribunal. c) An Advisory and Civil Service Chamber, which gives national government advisory opinions

• n legal issues related to public administration. It also solves disputes over administrative

competences between two or more national public entities, or at least one national authority. In addition, it carries out, at the request of the government or the Council of State´s Plenary Chamber, or on its own initiative, studies on constitutional or legislative reform projects. d) A Government Chamber integrated by the Council of State´s President and Vice President, the President of the Advisory and Civil Service Chamber, the Presidents of each of the five (5) Council of States´ Sections, and the General Secretary of the corporation. 2.2.3. Do administrative courts have advisory powers (advice to the administration, government, parliament, etc.)?

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The Colombian Council of State has an advisory jurisdiction practically since its creation by the "Liberator" Simon Bolivar in 1817. In accordance with 1991´s Political Constitution, the Council of State is the "supreme consultative body of the Government in matters of administration". In effect, the Council of State´s Advisory and Civil Service Chamber can be consulted by government (trough Ministers and Administrative Departments´ directors) regarding general or special legal issues. The Chamber may hold hearings with public entities´ officials related to the consultation. Moreover, it can request information and documents, if necessary, to issue the opinion. The advisory opinions are not mandatory for government. However, it often follows the advice given by the Chamber. The advisory opinions are confidential for six (6) months, but the Minister or the administrative department director may authorize its publication. 2.2.4. Tools and documentary resources available to judges The tools and documentary resources available to justices, magistrates and judges are essentially the Constitution, codes, books, case law from the Council of State, Constitutional Court, Supreme Court of Justice and tribunals, and the advisory opinions of the Council of State´s Advisory and Civil Service Chamber, which are accessible physically and electronically on the website: www.consejodeestado.gov.co. In addition, the Palace of Justice´s library in Bogota is very well documented. There is also information of the Congress, government and many public entities in its corresponding web pages. 2.3. Status of administrative judges How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are their statutory guarantees while in office, particularly in terms of independence? The Council of State´s Plenary Chamber appoints Council of State´s justices. The Superior Council of the Judiciary proposes the candidates, after a prior selection. The Council of State appoints administrative tribunals´ magistrates. Finally, administrative tribunals appoint administrative judges. In both cases, after a merit contest. Judicial independence is one of the fundamental principles for justice administration. The Political Constitution, the Code of Administrative Procedure and Contentious Administrative Law and the General Procedure Code enshrine this principle.

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Council of State´s justices are elected for a period of eight (8) years and their independence is guaranteed by their human and professional quality, and the respect and prestige of the institution. Administrative tribunal´s magistrates and administrative judges are part of the judicial career, which guarantees them stability and protect their rights. In addition, the career system reaffirms their independence for the exercise of their duties.

• 3. PROCEDURAL RULES BEFORE ADMINISTRATIVE COURTS

3.1. Types of plea What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims? Plaintiffs can file before the administrative jurisdiction the following actions: 1.- Misuse of power action (litigation of legality). 2.- Full jurisdiction contentious action. In this case, the administrative judge can annul the illegal act and grant damages. 3.- Electoral nullity action. Here the plaintiffs may request the nullity of: i) popular election acts to be part of a corporation; ii) administrative acts by which public officials are appointed. 4.- Direct reparation action. The administrative judge decides directly on damages. 5.- Contractual disputes action. The plaintiffs can request, for example, the nullity of an administrative contract and the corresponding damages 6.-Repetition action: The State can sue the public agent who caused the damage that made the State liable and sentenced to damages. Emergency procedures Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?

• Yes. They involve different fields of administrative action.

The precautionary measures (emergency procedures) can be preventive, conservative, anticipatory or suspensive. 3.2. Procedural principles before administrative courts

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What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants? The contentious procedure before the administrative contentious jurisdiction has as a purpose the effectiveness of the rights recognized by the Colombian Political Constitution. Accordingly, the principles of the right to defense, fair procedure and all the other procedural guarantees derived from those principles are applied. The relationship between the administrative judge and the parties is based on respect for fundamental procedural rights. 3.3. Reference standards for the control exercised by administrative judges In relation to which norm (regulations, laws, international conventions, constitution ...) do administrative judges control administrative acts? Are they competent to control the conformity

• f laws and regulations with the Constitution (constitutional judicial review)? Are they

competent to control the conformity of laws and regulations with international treaties (judicial review of international law)? Colombian administrative judges controls that administrative acts conform with the Constitution, international treaties, law and case law. 3.4. Scope and nature of administrative judicial review May administrative judges control all acts taken by the administration? Are certain acts exempted from this control? In general, Colombian administrative judges controls general administrative acts that are not within the competence of the Constitutional Court. Administrative judge knows, in addition to what is provided by the Political Constitution and special laws, controversies arising from acts, contracts, facts, omissions and operations, when they are subjected to administrative law and there are public entities involved, or private individuals exercising an administrative function. Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration? Administrative judge has a broad control. For example, in administrative actions of full jurisdiction, the administrative judge may annul the illegal act and award damages.

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3.5. Dissident opinions When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?

• Yes. A judge who disagrees with a decision may issue a dissenting opinion.

3.6. Alternative methods of dispute resolution Are there alternative dispute resolution methods? Please specify.

• Yes. The main alternative dispute settlement mechanisms are the following:
• 1. Transaction.
• 2. Direct arrangement.
• 3. Conciliation
• 4. Arbitration.

3.7. Digitised procedures Is there a specific digital procedure for the submission of claims? In Colombia, it is being consolidated to act before the contentious administrative jurisdiction through dematerialized means, for example, electronically. Substantial economic resources are needed to strength the contentious administrative jurisdiction´s systematization.

• 4. EFFECTS AND EXECUTION OF JUDGMENTS

4.1. Powers of administrative judges May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)? A judge can substitute or modify administration´s decisions and force it to act in a certain way.

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4.2. Impact and authority of administrative judgements To whom do decisions rendered by administrative judges apply (absolute effect – erga omnes - of res judicata, relative effect of res judicata)? What criterion is used to choose between these two

• ptions?

There is absolute authority of res judicata when the taken decision implies the administrative act´s nullity. On the other hand, in a contentious full jurisdiction action, the effects arising from the restoration

• f the right impact the parties (inter partes).

In summary, when it comes to deciding on the legality of a general administrative act, the effects are erga omnes, but as regards the restoration of rights, the effects are limited to the parties (inter partes). 4.3. Appeals May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities / jurisdictions can these rulings be challenged? There are several legal remedies to challenge the decisions taken by the contentious administrative jurisdiction:

• I. Regular remedies:

1.-Reversal: it applies when the decision is not appealable. The same judge that adopted the decision review it. Time: within the three (3) days following decision´s notification. 2.-Appeal: its purpose is that the superior judge to examine the decision made by the lower judge. Time: within the three (3) days following decision´s notification.

• II. Extraordinary remedies:
• 1. Extraordinary revision: it proceeds against the judgments of administrative judges,

administrative tribunals and the Council of State. Time: within the year following decision´s notification.

• 2. Extraordinary remedy for unifying case law: its objective is to provide legal security and

ensure the uniform application of the law. Time: within five (5) days after decision´s notification.

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• 5. STATISTICS

5.1. Number of cases and time taken to judge cases (over the last 5 years) Council of State – Final inventory: 2018 (as of June): 32.689 2017: 32.948 2016: 31.513 2015: 19.579 2014: 25.804 Administrative tribunals. Final inventory: 2018: (As of June) 81.560 2017: 76.066 2016: 68.482 2015: 51.056 2014: 35.983 Administrative judges. Final inventory: 2018: (As of June) 148.617 2017: 144.330 2016: 132.613 2015: 118.542 2014: 103.047 Source: https://www.ramajudicial.gov.co/web/estadisticas-judiciales/ano-2018 Length of judicial proceedings According to a study about judicial proceedings length done by Corporación Excelencia en la Justicia in 2016, the following data were obtained:

• a. Written procedures - Decree 01, 1984

First instance´s length: First instance national average in the Contentious Administrative Jurisdiction was established in 615 calendar days, that is, 369 working days of the Judicial Branch, which, according to the calculation of legal terms made in the same study, exceeds the legal mandate in 121 working days. However, less than half of first instance proceedings are carried out within the normative expectations. From a qualitative perspective, numbers show that repetition actions last much longer than other actions, while those of nullity and reestablishment of rights are the ones with the shortest duration. It is necessary to highlight that while labor nature actions lasts in first instance 539 calendar days, on average, nullity and restoration of right actions concerning tax claims last, in the same instance, 814 calendar days, on average.

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Equally remarkable is the length difference of the first instance when assumed by administrative courts instead of administrative tribunals. A proceeding at the court lasts 168 calendar days less,

• n average, than in the Tribunal.

Number of proceedings Average lengths Administrative courts 163 600 calendar days Administrative Tribunals 60 768 calendar days Source: Estudio de Tiempos Procesales. Cálculos: CEJ Second instance´s length: 77 proceedings processed in the different regions of the country within second instance proceedings were located. They had an average national duration in this procedural stage of 1466 calendar days, although the normative provisions have set up a maximum term of 88 working days (according to calculations made by the same study).

• b. Oral proceedings – Act 1437 of 2011

First instance´s length: on average, a proceeding lasts 331 calendar days or, what is the same, 199 working days of the Judicial Branch. Law does not fix a maximum time to begin with or conclude the initial hearing. In this regard, the Administrative Code only indicates that the hearing must be cited once the term to answer the complaint has expired. Regarding the evidence hearing, the study indicates that the legislator does set up two deadlines:

• ne of 40 business days after the end of the initial hearing, to begin with it, and another of 15

working days. These terms are clearly being fulfilled. The registered data shows that, notwithstanding the suspensions, the hearings during 2016 lasted 2.4 business days on average. In the understanding that the allegations hearing and judgment must be convened for the 20 working days following the end of the hearing of evidence, and that the average between the citation and the hearing´s beginning has been established in 36 calendar days indicates that there is no substantial difference between what is intended by the norm and what has been achieved in reality, since we are facing a difference of 3 current days. Second instance´s length: With second instance proceedings, the field work located 84 processes processed in the different regions of the country. They had an average national duration of 269 calendar days. 5.2. Number of administrative judges Administrative judges: 342 Administrative Tribunal´s Magistrates: 176 Council of State´s Justices: 31

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5.3. Economic and financial data (budget, etc.) Between 2000 and 2018 judicial branch´s budget had a share in the Gross Domestic Product between 0.36% and 0.40%. The latter figure remained constant during the last five (5) consecutive years. On the other hand, budgetary allocations of the Judicial Branch for the 2017 term correspond to 1.70% of the General Budget of the Nation with only 0.30% in relation to the year 2000. By 2018, there was a slight increase in the participation, which reached 1.74%. Total 2018 budget: $ 4.089.962.000 million pesos discriminated as follows: Operation: $ 3,807,135,000 Investment: $ 282,827,000 It is important to note that the total budget allocated to the Judicial Branch corresponded to an initial allocation and two subsequent additions, as follows:

• Through Act 1873 of December 20, 2017 and Decree 2236 of December 27, 2017, resources

were appropriated to the judicial branch for $ 4,083,834 million pesos.

• Subsequently, resources amounting to $ 707 million were added through Resolution No. 0053
• f January 12, 2018, from the Ministry of Interior - Protection Fund.
• A second addition worth $ 5,421 million, authorized by Resolution No. 0211 of January 26,

2018, issued by the Ministry of Finance and Public Credit, for the Supreme Court of Justice to comply with the provisions of Legislative Act No 01 of 2018, regarding the double instance right´s implementation by means of the Criminal Chamber´s special Chamber of Instruction.