The implementation of new technologies under Colombian law and incorporation of artificial intelligence in judicial proceedings

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Irma Isabel Rivera
Brigard Urrutia, Colombia
irivera@bu.com.co

The implementation of new technologies under Colombian law and incorporation of artificial intelligence in judicial proceedings: a vision of the past, present and future

Since the end of the last century, Colombian law has regulated the use of technology within judicial proceedings. Under Article 95 of Law 270 of 1996, it was established that courts should make efforts to incorporate new technological advances in justice administration services. Additionally, Law 270 recognised legal validity to documents executed by electronic means.

This regulation was extended by the Colombian Procedural Code (CPC), enacted in 2012. Pursuant to Article 103 of the CPC, any brief or communication was deemed valid if it was originated from an email provided by a party or an authority.

Additionally, Article 103 established the possibility of using any electronic system by means of which information is sent, exchanged or saved, as long as it assures the authenticity and integrity of the information. Furthermore, Articles 291 and 292 of the CPC allowed judicial service of process by electronic means.

Colombia at the forefront of the implementation of artificial intelligence in judicial proceedings

In Colombia, several government entities have decided to take a step towards the implementation of artificial intelligence (AI), including the Superintendence of Companies, the Constitutional Court, the General Accounting Office and the Prosecutor General’s Office.

The Superintendence of Companies

Since 2018, the Superintendence of Companies implemented the first assistant robot in Latin America, called SIARELIS (named for its acronym in Spanish, Sistema con bases de Inteligencia Artificial para la Resolución de Litigios Societarios).^[1] This project was based on the Cyberjustice Laboratory experience at the University of Montreal in Canada. This Canadian project consisted in an experimental court where a robot issues the judgments.

With the same objective, SIARELIS contributes to explore solutions (both for the judge and parties) based on the different characteristics of each judicial process. Currently, SIARELIS is available to support corporate litigation of the following issues:^[2]

• recognition of inefficiency requirements;
• abuse exercise of voting rights;
• directors’ liability;
• piercing of the corporate veil; and
• challenge of decisions of the shareholders or board of directors.

SIARELIS permits Superintendence officials to identify the relevant case law applicable to the particular legal problem, thus simplifying the precedents research. SIARELIS requires certain information regarding the case's facts and automatically produces an opinion.

Moreover, it can assert if the judge shall grant the plaintiff's claims and shows the most relevant rulings issued the past for similar cases. Unlike a Google search, this AI system’s response is specific and responds only to the judicial history that is relevant to that particular case: it can be used by the judge to support its final decision.

The Constitutional Court

Last year, the Constitutional Court, jointly with the University of Rosario, announced that the testing of an AI system named ‘Prometea’ which will review health fundamental rights actions(tutelas)more expeditiously.^[3]

This system was created in Argentina by the Department of Artificial Intelligence of the University of Buenos Aires. It has been applied in the Prosecutor General's Office in Buenos Aires and the Inter-American Court of Human Rights. However, the Colombian Constitutional Court is the first space in which Prometea will be applied in an executive and active way by a supreme court of justice.

Specifically, Prometea integrates:

• smart detection: it reads and suggests a group of urgent cases that need to the addressed with priority;
• smart support: it produces detailed statistical reports;
• document automation;
• integration with blockchain; and
• advanced systematisation of the case law.

The principal function of Prometea is to select the tutelas filed before the Constitutional Court, using the criteria set by the judge. It will also run statistical analysis, allowing the judicial operator to make legal decisions and to construct public policies and regulation. Prometea can read, analyse, detect, and suggest the health priority and urgent cases. Also, it can read thousands of judgments issued by more than 4,000 judges from all over the country.

The Court mentioned that the system was trained with 2016’s decisions and allowed 32 priority cases to be identified from that pool in less than two minutes, something that would take around 96 working days of a single court officer. Prometea is a support system designed to select the tutelas that will be reviewed by the Constitutional Court, but its selection is not mandatory and the Court may review other cases or reject some of the ones selected by the system.

The General Prosecutor’s Office

At the end of 2018, the Prosecutor’s Office reported it was using an artificial intelligence system called Fiscal Watson, which allows associating cases in the database of Colombia’s criminal system (since 2005, it has more than 13 million complaints). Fiscal Watson brings effectiveness to the Prosecutor’s Office’s investigations.

With Watson’s implementation, it has been possible to review criminal complaints, correlate them and carry out context analysis on similar elements such as modus operandi, physical characteristics, and types of weapons and vehicles, among others^[4] – bringing effectiveness, promptness and accuracy to the investigations.

The General Prosecutor's Office, the General Accounting Office and the Inspector General of Colombia reported that the AI system will help to carry out almost immediate control over government contracting under the Covid-19 pandemic. The Prosecutor revealed that, with the new AI system, control authorities could have evidence of contractual irregularities in 12 hours.^[5]

Colombia’s response to Covid-19: accelerating the use of new technologies within legal proceedings

Since the beginning of this year, due to the mandatory quarantine measures adopted due to Covid-19, the Colombian government has been forced to accelerate the application of new technologies in different areas.

Regarding judicial proceedings, the Covid-19 emergency forced the Judiciary Council to order the courts’ closure and the suspension of legal terms from 16 March 2020. Since then, the National Government and the Judiciary Council have enacted several decrees with the purpose of implementing technological means in judicial proceedings.

Consequently, Decree 491 of 28 March 2020 of the national government endorsed using technology in alternative dispute resolution (ADR). This Decree stated that arbitral proceedings, conciliation, arbitration and insolvency proceedings for non-merchant individuals will be advanced through technological means. The electronic and virtual means necessary for the receipt of documents and the holding of meetings and hearings.will be made available to parties, representatives, arbitrators, conciliators and arbitrators ex aequo et bono,

Likewise, Decree 806 of 4 June 2020 established the measures that, for a two-year period, shall be implemented for the use of technologies in judicial proceedings. This Decree sought to implement technology in judicial proceedings to expedite the different types of proceedings, make attention to users more flexible, and improve the speed of activities that depend on justice. It states that the judicial authorities must guarantee due process, publicity, and the right of contradiction.

According to Decree 806, the parties to the proceeding must, among others:

• use the designated digital channels to submit the briefs and any document related to the proceeding;
• attend the hearings virtually; and
• use the digital channels to send briefs to the court, copying all the parties of the proceeding.

If the dockets are not in digital form, the Decree states that the judicial authority must provide the parties the briefs required for the development of the next action.

The Decree provides that powers of attorney can be granted through a data message without formalities, indicating the lawyer's email, which must match with the registered email in the National Register of Lawyers of Colombia. The Decree also provides that the service of the process will be made either by posting on the court's website and/or by sending the document to all the parties of the proceeding to the registered email, depending on the type of service.

In concordance to this Decree, the Judiciary Council, through the agreement PCSJA20-11581 of 27 June 2020, decided to raise the legal terms from 1 July. As a result, all court proceedings are currently running virtually.

Trends regarding the implementation of new technologies and what is expected to come

Currently, Colombia has around 100 LegalTech providers which offer applications for:

• digital evidence;
• contract management software and court proceedings;
• legal investigation;
• online legal services; and
• document and process automation.

Additionally, recent developments have shown that we can expect to see an expanded use of technology in litigation and online dispute resolution, based on a growing reliance on algorithms^[6] and AI in Colombia and all around the world.

For example, regarding negotiations, there have been some developments by means of which computer software uses optimisation algorithms that create representations of party’s preferences and interests to generate information packages to help to reach a solution.^[7] These developments might be used within judicial or extrajudicial negotiation, or in litigation before courts and arbitration tribunals.

Also, there have been recent developments on decision support systems (DSS). DSS replace human activities regarding dispute resolution by receiving, using, storing, and giving information pertinent to improve decision making by automate tools, such as the following:^[8]

• rule-based and case-based reasoning: a reasoning based on ‘rules of the form if <condition(s)> then action/conclusion’ and on the use of previous experiences to analyse a problem;
• machine learning using artificial intelligence; and
• neuronal networks, consisting of self-adjusting processing elements that cooperate in a network.

Colombia has been moving forward in the implementation of new technologies in judicial proceedings. Even government entities have decided to take a step towards this implementation by the developing and using different types of AI. Due to the COVID-19 emergency, this implementation has been accelerated through several decrees that regulate the use of technology in judicial proceeding. This implementation will likely continue to expand and improve based on more complex and advanced forms of algorithms and AI.

[5]‘Lucha contra la corrupción en Santander se hará con inteligencia artificial’, (Vanguardia) available at www.vanguardia.com/politica/lucha-contra-la-corrupcion-en-santander-se-hara-con-inteligencia-artificial-XC2532257, accessed 12 October 2020.

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