Having already presented the general panorama of collective actions in Colombia, this section deals with the procedures provided by the law for their processing, and exposes some of the practical problems that have been evidenced during the 20 years of the application of Law 472 of 1998.
It must be clarified that collective actions are those aimed at guaranteeing either the defence and protection of collective rights and interests, in which case there would be a popular action, or in the face of a claim seeking compensation for massive or group damages, in which there would be a class action.i Types of action available
The Colombian legal system provides two types of collective actions, according to the object of protection pursued by each of them. Thus, if what is intended is the safeguarding and protection of collective interests and rights, recourse should be made to a popular action; whereas if the aim is the defence of the rights and interests of a number of people (i.e., a group), the procedural method will be the class action. In this way, the determining factor will be the damage caused.
The damage that intangibly affects the quality of life of an entire community is a collective damage, and the preventive or restorative action must be exercised on behalf of the entire affected community through a popular action. In contrast, group damage affects a number of victims who suffer individual personal damage that, when it touches a significant number of individuals, sets up the group or massive damage, whose compensation can be claimed in the same judicial process, through a class action. In the case of mass or group damage, each of the affected victims can seek compensation for their damage through an individual claim; however, owing to the scale of the damage the law provides for class action as a theoretically more flexible procedural mechanism for the protection of the affected group's interests. The word 'theoretically' is used as, in practice, claimants do not always obtain the aforementioned benefit provided for class actions.
Although the object of protection of the actions in question is different, nothing prevents the same event leading to both types of action being initiated, for example, when some fishermen fall ill or are deprived of their daily activity because of the contamination of a river. It was already mentioned that a common theme in popular actions is environmental damage, in which through this action, protection of the healthy environment would be requested, while individual damage caused to the health and patrimony of the fishermen would be the object of a class action.
On the other hand, in previous publications we have argued that, despite the fact that Law 472 of 1998, in Article 46, establishes as the exclusive purpose of class actions the recognition of damages, it would be absurd that in the process of a class action for massive damage already caused, the judge could find a latent threat of new individual damage or the aggravation of the same damage in the future and could not order the suppression of such threat under the argument that the law created the class action exclusively for indemnification purposes. A correct interpretation of this Article would consider that class actions are meant not only to collect compensation for individual damage already caused to the class, but also to suppress the threat of contingent damage to the property of individuals. Our interpretation has been accepted by national jurisprudence on several occasions.
In addition to the damage, other elements of procedural processing allow the differentiation of popular actions from class actions, such as: the time frame to initiate the action, the individuals legitimated to exercise the action, the passive subject of the action, the precautionary measures, the possible agreements of the parties and their execution, the sentence and its execution.
This section outlines the elements of these actions, as well as briefly studies the expiration periods to exercise the actions. In later sections, those legitimised to initiate and resist the actions, the possible agreements between the parties and the judgment and its execution are discussed.Elements of the actions
In addition to the damage to the collective interest, for a popular action to be admissible the defendant must be potentially liable for the damage. This means that the principles of civil liability are applicable to popular actions, because they imply the verification of a contingent or already caused collective harm, a fact attributable to the defendant and a causal link between one and the other.
As in popular actions, class actions require the defendant to be responsible. This implies the verification of civil liability, because if this is not so, the compensation is not deemed appropriate. In this way, a popular action process will be one of non-contractual civil liability or contractual civil liability, according to the elements of one or other liability regime.The expiration periods of both actions
In terms of popular actions, the current procedural rule establishes that a 'Popular Action may be promoted during the time that the threat or danger to the collective right and interest persists'. This implies that the action is not extinguished by the passage of time, when what is involved is a request that a latent or continuous threat of damage to collective or individual interests be eliminated. If damage is already caused whose repair or compensation fails to prevent the production of new damage, the action will be subject to the terms of prescription of ordinary actions in the legal system.
In relation to class actions, Law 472 of 1998, in Article 47, states that 'without prejudice of the individual action corresponding to the compensation of damages, the class action shall be promoted within two years of the date in which the damage was caused or the injurious action that caused it ceased'. This Article states that if two years have passed since the damage was caused or since the harmful action ceased and no class action has been commenced, the individual action of each member of the group can still be filed and will be valid in accordance with the terms of expiration and prescription conceived in the jurisdiction.
In addition, in accordance with subparagraph h) of numeral 2, Article 164, Law 1437 of 2011, in administrative matters the previous expiration rule has an important exception: 'If the damage caused to the group comes from an administrative act and is intended to void it, such a request must be submitted within four months, counted from the day following the communication, notification, or publication of the administrative act.'ii Commencing proceedings
In relation to legal standing in popular actions, Law 472, Article 12 provides that every citizen, whether a natural or legal person, can file actions. These actions can be exercised by a single person, who must be the holder of an individual right under threat and who wishes to protect it by means of a popular action. It can also be any member of the community whose collective interests are threatened, when it comes to the affecting or threatening of collective rights.
It should also be noted that there can only be one popular action in progress against the same plaintiff and for which the same claim is requested, under penalty of pending litigation.
In relation to class actions, Law 472, Article 48 establishes that any aggrieved party may initiate the action, but it also requires the plaintiff to identify a group of at least 20 affected people who meet the same conditions in the case. In this regard, it is important to specify that it is enough for a single member of the group to give power of attorney to initiate the action on behalf of the group, indicating in the lawsuit the criteria that allow the identification and delimitation of the affected class. This person must file the claims in the name of the whole group, not just for those victims who granted power of attorney.
Once the action is filed by at least one member of the group, the effects of the process extend to all the members covered by the class, except, exclusively, to those affected who have decided to exclude themselves from the group expressly, to whom are left open the possibility to sue separately and individually. The above places the class action in Colombia as a type of opt-out action.Defining the class
Limiting the class is where the greatest disadvantages of class actions lie because once the identification is presented by the plaintiff in the lawsuit, there is no specific law that establishes the specific procedure to follow regarding the moment when the class must be completely identified. It is also important to consider that in judicial practice, judges often ignore the criteria to identify the class and end up ruling on the case without there being a clear delimitation. Such situation leads in many cases to the emergence of doubts about the effects of the process and the ruling against the possible new members of the class that did not grant power of attorney.
In our opinion, the identification of the class should be established by the judge before admitting the claim, based on the requisite contained in Article 53 of Law 472 of 1998.
The importance of the delimitation of the class is also that, if not done this way, the distribution of compensation before the judgment would be unmanageable and would make the compensation open to discussion by people who did not become part of the process and whose membership in the class action could be debatable. The non-determination of the class in case of an acquittal could also generate avoidance of the effects of res judicata. Finally, an inadequate delimitation of the class could impede the settlements, as there would be no clarity as to who would have to be called to the settlement and there would not be sufficient guarantees for the defendant to ensure the closing of the event in a definitive manner.iii Procedural rulesEffects of class exclusion
The exclusion of one of the members of the class the group occurs after he or she states a desire to be excluded, and this must take place within a time limit of five days.Effects of the judgment
The judgment that ends the process of class actions has effects of res judicata against all those involved, and it benefits those who claim within 20 days of the publication of the judgment, except those who were expressly excluded from the class at the beginning of the action and so are not affected by the decision.
Likewise, the acquittal has the effects of double jeopardy for all the members of the class, except for those who were expressly excluded in a timely manner. We consider this situation absurd and unjust for the victims, because those who did not expressly exclude themselves from the class and did not become part of the class action process see the violation of their right of defence, as they are linked by an unfavourable ruling in a lawsuit in which they did not even participate.
However, we emphasise that Article 56 of Law 472 of 1998 provides an important instrument for the benefit of the victims belonging to the class that may be unfairly affected by the ruling. Paragraph b) of this Article establishes that the members of the group will not be bound to the sentence when, having not participated in the process, they 'prove in the same term (five days after the judgment) that their interests were not represented in appropriate form by the group representative or that there were serious errors in the notification of the action'.The presiding judge
Both popular and class actions apply the jurisdiction rules to determine which judge is competent. The Colombian legal system contemplates a civil jurisdiction and a contentious-administrative jurisdiction. If we simplify the analysis, it could be said that the jurisdiction will depend on whether the litigation is about a matter that involves a public function or a state entity. Therefore, the collective actions will be processed before civil judges or before administrative judges, depending on the jurisdiction called to review the matter in dispute and the parties involved.Applicable regulations
The rules that govern the processing of collective actions are those enshrined in Law 472 of 1998. In cases of normative gap, the same rule (Article 68) provides for referral to the Code of Civil Procedure, which was called to govern conflicts in the sphere of private law and that has now been replaced.
This normative compilation was replaced by the General Procedural Code, which today corresponds to the applicable legislation but, given its novelty, there are still claims being processed under the previous legislation. To this we should add that part of the jurisprudence and the doctrine have understood that popular and class actions known by the contentious-administrative jurisdiction must apply as residual rules of the Contentious-Administrative Code (Law 1437 of 2011). The plurality of the mentioned laws can create confusion regarding the procedural norm applicable to a popular or class action; this may end up affecting the right of defence of the parties in the proceedings or it may create uncertainties in the procedure and bring about legal uncertainty.iv Damages and costsCost recovery
For both popular and class actions, the legal system admits that the parties agree with their lawyers the fees they will charge for the representation of their interests in the process. It must be specified that in Colombia, the pact of contingency fees is admitted, as well as other mechanisms of remuneration for services whose agreement and content are lawful. There is, therefore, no special regulation or prohibition for the remuneration of the trial lawyer.
Anyone can file a popular action without the need for the presence of a qualified lawyer; so the interested party can directly access the courts intending the protection of the interests of the community.The jury
The Colombian legal system does not contemplate the existence of a jury, so the presiding judge decides the processes of any nature.Tort compensation
The recognition of monetary compensation in favour of the plaintiff is, as a rule, predicated about class actions. In these actions, the damage that can be compensated corresponds to the damage that the plaintiff tries to prove in the process, both in relation to the damage of the group and in respect of the individual damage of each member of the class that becomes part of the process. Traditionally, the recognition of the damage has been governed by the limits to compensation for non-pecuniary damage recognised in case law and applicable to liability proceedings. As far as damage to property is concerned, within the process compensation for the damage that can be proven will be recognised, if every element of tort law has been proven.The compensation imposed in the ruling of a class action
The judgment that ends the class action must provide for the amount of collective compensation and the weighted sum of the individual compensation of the members of the class. The sum corresponding to the compensation must be delivered to the Fund for the Defence of Rights and Collective Interests, which will handle the distribution of the resources to the claimants who present themselves and prove their class member status. This fund is administered by the Ombudsman to guarantee the interests of the members of the class and to give a suitable adequate management of the resources.v Settlement
Law 472 foresees the scenarios in which the parties in collective actions can reach an agreement to put an end to the process, before it begins.
In the case of popular action, Article 27 of the Law orders the holding of a compliance hearing, which is decreed ex officio by the judge, and to which the parties are obliged to attend to subscribe a compliance agreement. In the compliance agreement, the parties discuss measures to protect the collective right or interest that has been threatened by the defendant, and if possible, accept the agreement. In case it has been approved, it is then signed and the judge reviews it and approves it through a judgment. If the trial judge considers that the agreement signed by the parties does not comply with the purposes of protection of the collective right, or that it does not comply with current regulations or that for any other reason it is not appropriate, he can also reject it through a judgment.
Finally, if the compliance agreement is approved, it becomes res judicata. This we find especially problematic, especially in cases of environmental damage owing to contamination, because it can close the doors to a future action if the defendant continues polluting. However, the Constitutional Court has foreseen and managed this risk, and it has said that there is no res judicata if as a result of new behaviour of the defendant, the collective assets are again put at risk.
In relation to class actions, according to the applicable regulations, the early termination of the process could be done through a settlement hearing or a transaction between the parties, and by reference to the regulations of the General Procedural Code it could be said that it would also end the withdrawal of the class action lawsuit. Regarding each of the early termination mechanisms of the process, the following are of note.
The settlement can be agreed between the parties during the settlement hearing provided by law for class actions. The settlement agreement signed by the parties is treated as a judgment and has the effects of res judicata. Once the agreement is signed, the judge will order its publication in national journals, so that the members of the class that did not become part of the process may present themselves to prove their quality and claim the corresponding weighted compensation.
Regarding the transaction and withdrawal, despite the fact that Law 472 does not rule on its admissibility or inadmissibility for class actions, nothing would prevent the early termination mechanisms of the process from being applicable, by remission to the General Procedural Code. In relation to the transaction, we believe that it would have to be governed by the rules provided by the law regarding settlements, except that there is no mandatory settlement hearing. There is also the doubt of whether, once the transaction contract is concluded, it must be approved by the presiding judge, because the law is silent in this regard.
Concerning the withdrawal, also applied by referral to the General Procedural Code, many doubts arise about its origin and convenience to prematurely end the class action, especially for the effects on the members of the class that are not present in the process and that would be affected by what is decided in the process. Finally, we would like to expand on what was mentioned previously, regarding the inadequate identification of the class. This generates conflicts in practice, as it makes it impossible to settle because there is no clarity in the potential claimants or in the members of the class.