Are Legal Precedents Compulsory for Judges in Colombia?

Author: J. Ian Raisbeck

Recent decision STC263-2020 issued by the Supreme Court of Justice (SCJ) - Civil Cassation Chamber - of January 23, 20201, reminds us that in Colombia judicial precedents are there to guarantee constitutional rights to equality and due process, and therefore, judges must follow them in their rulings. However, said ruling did not delve into the exceptions that allow a Judge to refrain from applying a precedent. 

Although the facts of the case decided via the mentioned ruling are quite interesting in themselves, dealing with the exceptions to the prohibition to seize the goods indicated by numeral 1 of article 594 of the Colombian General Procedure Code (goods, income and resources incorporated into the general budget of Colombia or territorial entities, the accounts of the general participation system, royalties and social security resources), I will focus on the constitutional aspects followed by the SCJ in the aforementioned ruling, which decides over a Tutela2 filed by the plaintiff against the first and second instance decisions for violation of the constitutional rights of equality and due process as the judicial precedent on the merits was not followed.

When analyzing the facts of the case, Presiding Magistrate, Ariel Salazar Rodríguez, indicates that the second instance decision, which confirms the first instance decision, is clearly contrary to the precedent established by the Constitutional Court over the exceptions to the prohibition to seize the goods indicated by numeral 1 of article 594 of the Colombian General Procedure Code. Thus, the Magistrate rules for the plaintiff and proceeded to withdraw the sentence issued by the second instance judge, for violating the constitutional fundamental rights to equality and due process, ordering the second instance judge to issue a new decision which follows the considerations established by Magistrate Salazar Rodríguez.

To reach his decision, Magistrate Salazar Rodríguez first recalls that a Tutela proceeds exceptionally against judicial rulings when said rulings violate constitutional fundamental rights, since all arbitrary, capricious and legally unfounded judicial actions are reprehensible. He notes:

One of the causes that justify the origin of the tutela against judicial decisions occurs when, in the course of judicial activity, the official manifestly departs from the substantial or procedural norms applicable to the case, which situation ends up producing a ruling that violates fundamental rights.” (My translation)-

In sentence STC263-2020, Magistrate Salazar Rodríguez cites sentence SU-241 of 2015 of the Constitutional Court, to indicate:

"... when similar issues are resolved dissimilarly, disownment of the right to equality occurs." (My translation).

Magistrate Salazar Rodríguez ends decision STC263-2020, stating the following:

"Thus, the proceeding of the accused Tribunal of failing to incorporate the considerations that were due in the accused decision, violates the right to due process and defense of the plaintiff ..."  (My translation).

From the above, we can establish that when a judicial decision does not follow a judicial precedent, it violates the fundamental rights to equality and due process, and therefore the Tutela action to protect said fundamental rights proceeds.

Notwithstanding the foregoing, Presiding Magistrate Salazar Rodríguez’s decision STC263-2020, did not focus on explaining certain additional and important elements in relation to precedents in Colombia that are worth recollecting.  As such, we will analyze some of them.

First, it is important to remember what is indicated by articles 228 and 230 of the Colombian Political Constitution, which establish the principles of independence and autonomy for judges:

"ARTICLE 228. The Administration of Justice is a public function. Their decisions are independent. The activities will be public and permanent with the exceptions established by law and in them the substantial law will prevail. The procedural terms will be diligently observed and their non-compliance will be sanctioned. Its operation will be decentralized and autonomous." (My translation).

"ARTICLE 230. Judges, in their decisions, are only subject to the rule of law.

Equality, jurisprudence, general principles of law and doctrine are auxiliary criteria of judicial activity." (My translation).

In other words, according to articles 228 and 230 of the Colombian Political Constitution, judges and their decisions are autonomous and independent, and must abide by the law.  Other elements, such as jurisprudence, are auxiliary criteria of their decision-making process. It is based on this aspect that the application of the precedents in Colombia becomes relevant.

Notwithstanding the aforementioned constitutional articles, and as well noted by previously cited decision STC263-2020, precedents in Colombia became mandatory years ago, with the exceptions that we will mention below, which were constructed precisely to guarantee the fundamental constitutional rights to equality and due process.

Second, the Constitutional Court has clearly indicated that the precedent applies to similar cases, for which the judge must consider the following points:

"i. In the ratio decidendi of the decision is a rule related to the case to be resolved later.

ii. The ratio [ratio decidendi] must have served as the basis for solving a similar legal problem, or a similar constitutional question.

iii. The facts of the case or the norms judged in the previous decision must be similar or raise a point of law similar to the one that must be resolved subsequently. It is in this sense that it will be reasonable that ‘when in a similar situation, it is observed that the determining facts do not correspond to the factual assumption [of the precedent], the judge is entitled to not consider the precedent binding.’ 3 (My translation).

That is, to apply a precedent, which is constructed from the ratio decidendi, the judge must establish that the facts of the case and the legal problem to be resolved are similar to those of the precedent.

Third, the Constitutional Court on multiple occasions4 has indicated that precedents can be vertical or horizontal, defining each as follows:

 "3.4.1. Horizontal precedent. This precedent refers to those sentences dictated by authorities of the same hierarchy or, even, the same judicial operator.


3.4.2. Vertical precedent.

This figure refers to the duty to observe the guidelines established by the bodies in charge of unifying jurisprudence. In that sense, a lower-ranking judge must follow the position adopted by the higher judicial entities. For most cases, the interpretation to be followed by judicial officials is determined by the Supreme Court of Justice or the Council of State, as closure bodies within their respective jurisdiction. In matters that are not subject to review by these corporations, those who are in charge of dictating the hermeneutical guideline in judicial matters are the Superior Tribunals of each District.” 5(My translation).

In other words, the horizontal precedent is that issued by the same judge or another judge of the same hierarchy. On the other hand, the vertical precedent is that dictated by the closing entities, be they the High Courts or the Superior Tribunals, as the case may be.

Fourth, the Constitutional Court has also indicated on several occasions the exceptional possibility for a judge to depart from a precedent6, in terms such as the following:

In any case, although respect for the precedent is fundamental in our legal organization for the reasons stated, compliance with it, however, should not mean the petrification of law. In this sense, the judge can depart from both the horizontal and vertical precedents; But for this, he must rigorously base its position and express strong reasons for distancing himself validly from binding precedents. Said argumentative burden includes showing that the precedent is contrary to the Constitution, in whole or in part. However, there are other valid reasons to depart from the precedent, indicated by the Court itself.

 In SU-047 of 1999 (PM [Presiding Magistrate] Alejandro Martínez Caballero) it was stated precisely that the possibility of detaching from the preceding in specific circumstances, may be due to reasons such as the following: i) eventual past jurisprudential errors that make it necessary to correct a jurisprudential line; ii) an interpretation that, having been useful and adequate to resolve certain conflicts, in its current application, may cause unexpected and unacceptable consequences in similar cases. iii) historical changes against which it is unreasonable to adhere to traditional hermeneutics.7 (My translation).

That is, even though the precedent is mandatory, said obligation yields in exceptional circumstances that the judge must note and argue exhaustively to adequately support his deviation from the existing precedent. These exceptional considerations are as follows:

i. That the precedent is contrary to the Constitution.

ii. That the precedent is erred and must be corrected.

iii. That the current application of the precedent may cause unexpected and unacceptable consequences.

iv. That there are historical changes before which it is unreasonable to interpret the rules in the manner indicated by the precedent.

By reviewing the circumstances under which a precedent may not be applied, we can see that this possibility provides a necessary plasticity to the system of precedents, thus avoiding an absolute rigidity in said system that would neither allow for the correction of errors in the construction of the precedents, nor adapt to the changing social, cultural and legal circumstances that legal norms and decisions must reflect.

In sum, the judicial precedent, whether horizontal or vertical, is mandatory for judges to guarantee the rights to equality and due process, notwithstanding the possibility for a judge not to apply a legal precedent as long as he duly substantiates his deviation from it based on the exceptional considerations established by the Constitutional Court.

1 Republic of Colombia. Supreme Court of Justice - Civil Cassation Chamber.  Presiding Magistrate Ariel Salazar Ramírez. Decision STC263-2020 of January 23, 2020.

2 Briefly, a Tutela is a constitutional preferential and quick legal mechanism available to protect against violation or threat of violation of constitutional fundamental rights.

3 Republic of Colombia. Constitutional Court. Decision T-292 of 2006. Presiding Magistrate Manuel Jose Cepeda Espinosa 

4 See Constitutional Court decisions SU-354 of 2017, SU-241 of 2015, T-620 of 2013, T-760A of 2011, T-100 of 2010, T-468 of 2003, among many others.

5 Republic of Colombia. Constitutional Court.  Decision T-794 of 2011.  Presiding Magistrate Jorge Iván Palacio Palacio.

6 See decisions T-460 of 2016, C-621 of 2015, T-100 of 2010, T-292 of 2006, T-698 of 2004, among others.

7 Op. Cit. Decision T-292 of 2006.

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