Reform of the Guardianship Action

Guide on the Reform of the Constitutional "Acción de Tutela" in Colombia

This constitutional action aims to protect fundamental human rights. It has become a valued and accessible mechanism for Colombians. However, the Government presented a bill to reform it due to issues like excessive use and judicial congestion.

Will only specialized judges hear "Acción de Tutela" cases?

This is the proposed change, but it has several drawbacks. Not all municipalities have specialized judges (e.g., family, labor, or administrative). Furthermore, some matters don't fall under a specific branch of law, such as health, education, and the free development of personality; these are fundamental rights. Therefore, the "acción de tutela" was designed to be heard by all judges, who in this function are constitutional. The reform could congest certain courts, such as labor courts.

What does it mean that only a legally authorized person can file a "tutela"?

From now on, only the affected party, their legal representative, or attorney can file it. The broad conception that anyone could file it is changing. Restricting the advocacy of others' rights or collective rights that indirectly affect people or resources (such as natural resources) when other actions are ineffective is regressive. An example of another mechanism for the protection of rights is the Right of Petition.

Is there a brake on "tutelas" against judicial rulings?

It is considered that this generates the so-called "train wreck" and judicial congestion. However, this issue is already addressed by constitutional jurisprudence: "tutela" against judicial rulings is inadmissible, except in cases of due process violations (e.g., the judge grossly deviates from the procedure or rules without adhering to the law). Judges can make mistakes, set excessive requirements, or demand attorneys; this hinders the exercise of the "tutela" as a protection mechanism. Due process is a fundamental right that is violated within processes, also generated by the actions or omissions of lawyers.

Can "tutela" no longer be initiated at any time?

A deadline is proposed. While prompt protection of a violated or threatened fundamental right is ideal, this isn't determined by time, but by the judge's assessment of the specific circumstances. Sometimes there's a material impossibility to exercise the "acción de tutela," and in others, the violation or threat persists for years.

Conclusions and Proposals

The Constitutional Observatory of the U. Libre believes the "tutela" should remain as it is. Reforms that denature it, remove its informality and efficiency, or distance it from ordinary citizens should not be introduced. Judicial congestion doesn't lie in the "tutela" itself; to avoid mass "tutelas" (e.g., in healthcare), the problem of poor service delivery must be addressed. Finally, a judicial reform that doesn't seriously address judicial congestion and corruption is useless.

Kenneth Burbano Villamarín Thursday, September 20, 2018

If you need legal advice on this or other matters, you can consult our Lawyer services, including Immigration Lawyers, Alien Law, or Foreigners Law. We also offer advice on Conciliation and ADR in Colombia as an alternative to judicial processes. For more information, please contact Servicio Legal.