HOW TO SERVE LEGAL PAPERS IN COLOMBIA

Colombia, or the Republic of Colombia, is a transcontinental South American republic with a North American insular positioning. Colombia is a member of several international and regional organizations, including the United Nations, the World Trade Organization, the OECD, the Organization of American States, the Pacific Alliance, the Andean Community, and a NATO Global Partner. South America’s third-largest economy is based on a wide range of industries.

In Colombia, the serving process has been subject to the strictures of the Hague Service Convention for the last four years.

BACKGROUND

The Supreme Court, Council of State, Council of Superior Justice Administrations, Attorney General’s Office, and lower administrative and civil courts make up the Colombian judicial branch. They are all part of the judicial system of Colombia.

The Constitutional Court (Corte Constitutional) will hear any challenge to the legality of a question of law ( wherever no specific cause of action is required). A legally sanctioned judicial remedy to protect an individual’s constitutional rights is also examined by the Supreme Court. To ensure that treaties are valid before they can be ratified, the Court must perform a final legal review. 

With respect to civil, criminal, and labor disputes, Colombia’s supreme court has the last word. It is possible to override the Superior Tribunals of a certain judicial area. In turn, each judicial district includes municipal courts and circuit courts with jurisdiction based on the subject matter and amount in dispute. Aside from that, it also deals with the recognition of judgments and arbitration awards rendered by courts outside the United States (a process known as exequatur). 

WHO HEARS THE CASES in Colombia

As the highest court to hear cases involving government acts or inaction, Colombia’s Council of State (Consejo de Estado) (including those of the Inspector General and Comptroller General). There is a possibility that the State may be held responsible for paying contractual parties who have been harmed by the overturning of government decrees and administrative regulations. Aside from that, the Court also considers appeals from decisions of the Administrative Tribunal.

Both private citizens and governmental authorities may be subjected to criminal or civil investigations and prosecutions by the independent Office of the Attorney General (with some exceptions for high public officials). Attorney General, Inspector General, and Comptroller General have a tendency to weigh in on public problems and raise the alarm on suspected criminal activities.

Anyone may bring a challenge to the validity of an act of legislation before the Constitutional Court. No specific cause of action is required). Additionally, the Court decides to examine final and conclusive lower court rulings coming from a constitutionally sanctioned legal remedy to safeguard an individual’s constitutional rights (Acción de Tutela). As the last step before treaties may be ratified, the Court must conduct an assessment of their legality.

Individuals and government officials alike may be investigated and prosecuted by the independent Attorney General’s Office (Fiscal General de la Nación) (with some exceptions for high public officials). It is common for the Attorney General, the Inspector General, and the Comptroller General to weigh in on public issues and sound the alarm on suspected illegal activity.

how to serve a subpoena IN COLOMBIA

Subpoenas are not covered by the Hague Service Convention, which is very important. One cannot merely serve a subpoena in another country and specifically need to submit a Hague Evidence Request. Notice or summons service differs significantly. When it comes to civil or commercial concerns, it is important to be able to communicate with each other in a timely and efficient manner, which is why the Hague Convention was created.

The parties to the Hague Convention have agreed to allow for the disclosure of documents and evidence in court. A “Letter of Request” made by the court where the case is pending and sent to the “Central Authority” of the country where the discovery is situated is permitted under the Hague Convention. In order to get a response from a judicial authority, the request must be sent to the Central Authority (Articles 1 and 2). Additionally, a Letter of Request may be submitted to get deposition testimony from diplomatic or consular personnel (Article 3).

Letters of Request must be accepted and processed by the Central Authority established by the contracting States of the Hague Convention.

how to serve legal papers in COLOMBIA under the HAGUE SERVICE CONVENTION

Colombia officially became a party to the Hague Convention in November 2013. Colombia Process Service under Article 5 of the Convention is preferred. It is required to send letters of request to the Central Authority that is responsible for handling international legal papers.

Translations of the papers should be carried out. No specific condition is included in Colombia’s submission to Article 5(3), which merely states that it is preferable that the request was submitted in Spanish. Even though Article 7(2) indicates it does not have to be in Spanish, the form being in Spanish is highly preferred. Unfortunately, the request will be denied if one does not provide Spanish translations of the served papers. This is true even if the request is not rejected by the Central Authority. 

Completing the USM-94 form is necessitated. It is important to make sure that the form is signed by a court official or an attorney and to make sure that it is thorough and succinct. Additionally, it is always preferred to see whether the individual signing is a court-appointed official. It might take up to a year from the time of submission to the time of proof return. The judge has no choice but to accept it as the case stands since there is no other option.

As long as Colombians have not voiced their support or opposition, there is no way to know who qualifies as a “competent person” under Articles 10(b) and 10(c).

UNDERSTANDING THE HAGUE CONVENTION AND COLOMBIA

This country is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 20 UST361. Most developed nations in the world are covered by this procedural treaty, making it one of the most popular.

The majority of courts have concluded that serving outside of treaty processes is invalid service. If the Convention is not used, there will be repercussions, according to them. It is possible for each treaty nation to implement its own methods. Changes to treaties affecting a foreign nation’s sovereignty, such as which treaty articles will be enforced and which will be disallowed, and whether or not translations will be necessary and into which languages, are all permissible by any country party to the treaty in question. As a result of these reservations, declarations, and notifications, other countries may draught their own treaties..

All Contracting Parties are required under the Convention to establish a system of Central Authorities. Receiving and transmitting Letters of Request under Chapter I to the appropriate authority is the primary function of a Central Authority. When collecting evidence under Chapter II, a Contracting Party may designate an authority from whom approval must be obtained. Furthermore, the Convention allows Contracting Parties to designate other authorities and allows them to establish the scope of their competence.

Using contemporary technology in the transmission and implementation of requests is permitted under the Convention’s text, which is technology-neutral. Both Chapters I and II of the Convention allow for the use of video links to help in the collection and presentation of evidence.

WHAT IF SERVICE IS NOT ACCEPTABLE

Each member state’s diplomatic or consular officers may serve legal papers on foreign nationals directly. In any event, any member state may object to such an arrangement. In addition, each member state’s consular channels may be used to send service-related papers.

Service of process in private cases is explicitly forbidden by Federal rules for U.S. diplomatic employees.  The Hague Service Convention does not permit the international mailing of civil summonses to countries that have made an acceptable reservation under Article 10 of the convention. a) (Article 10, subparagraph a)

how to serve legal papers VIA ELECTRONIC MEANS in Colombia

The Convention does not require the translation of papers to be delivered by registered mail. When a document is served by the foreign Central Authority, the translation requirement of Article 5 is solely applicable to direct postal service

No objection from the other state’s judicial authorities is required before a judicial officer, official, or other competent people may use this approach to serve a court document. 

WHAT SHOULD YOU DO NEXT?

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Sources

1. Corte Suprema de Justicia

2. Consejo de Estado

3. Consejo Supremo de Judicatura

4. Fiscala General De La Nación

5. Acción de Tutela

6. Corte Suprema de Justicia

7. Tribunales Superiores

8. Tribunales Administrativos

9. Colombians have not yet made their statements public

10. Article 5

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either –

a)  by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or

b)  by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.

Subject to subparagraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.

If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.

That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document.

11. Central Authority:

Ministerio de Relaciones Exteriores
Dirección de Asuntos Migratorios, Consulares y Servicio al Ciudadano

Dirección de Asuntos Migratorios, Consulares y Servicio al Ciudadano
Carrera 5 # 9-03
Bogotá D.C.
COLOMBIA

12. Filling the blanks of the forms in Spanish is most appreciated (although Art. 7(2)).

13. Embajadora Fulvia Elvira Benavides Cotes
Directora de Asuntos Migratorios, Consulares y Servicio al Ciudadano

Lina Castillo Bedoya
Coordinadora Grupo Interno de Trabajo de Asuntos Consulares y Cooperación Judicial

14. Article 7

The standard terms in the model annexed to the present Convention shall in all cases be written either in French or in English. They may also be written in the official language, or in one of the official languages, of the State in which the documents originate.

The corresponding blanks shall be completed either in the language of the State addressed or in French or in English.

15. the standards of Natural Justice and Due Process.

16. Article 1

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.

A Letter shall not be used to obtain evidence that is not intended for use in judicial proceedings, commenced or contemplated.

The expression “other judicial act” does not cover the service of judicial documents or the issuance of any process by which judgments or orders are executed or enforced or orders for provisional or protective measures.

17. 92.85 of 22 CFR 92

§ 92.85 Service of a legal process is usually prohibited.

The service of process and legal papers is not normally a Foreign Service function. Except when directed by the Department of State, officers of the Foreign Service are prohibited from serving process or legal papers or appointing other persons to do.

18. Articles 8 and 9

Article 8

Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.

Any State may declare that it is opposed to such service within its territory unless the document is to be served upon a national of the State in which the documents originate.

Article 9

Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose.

Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose

19. Ministerio de Relaciones Exteriores

+57 (1) 381 4000

+57 (1) 381 4747 / +57 561 1796

fulvia.benavides@cancilleria.gov.co

lina.castillo@cancilleria.gov.co

20. Greenfield v. Suzuki Motor Co-Ltd., 776 F Supp. 698, 701-703, 

21. Volkswagenwerk Aktiengesellschaft v. Schlunk, 108 S. Ct 2104, 100 L. Ed. 2d 722, 27 IL.M. 1093

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