Counterpart of the Supreme Court of Justice's Rulings
February 7, 2024 - Litigation Area - Forvis Mazars in Colombia
By Juan Camilo Duque, Litigation Partner
By Juan Camilo Duque, Litigation Partner
Contrast between Rulings STC12490-2024 and STC15644-2024 of the Supreme Court of Justice
Recent case law from the Supreme Court of Justice has shown divergent positions regarding the waiver of the requirement for extrajudicial conciliation when precautionary measures are requested. On one hand, ruling STC12490-2024, issued on September 25, 2024, by the Civil Panel with a decision by Justice Martha Patricia Guzmán Álvarez, and on the other, ruling STC15644-2024, issued on November 26, 2024, with a decision by Justice Octavio Augusto Tejeiro, have sparked debate over legal certainty and access to justice.
Ruling STC12490-2024 established that extrajudicial conciliation as a procedural requirement cannot be bypassed merely by requesting precautionary measures if such measures are inadmissible, disproportionate, or ineffective. In this regard, the Chamber held that the waiver of the conciliation requirement is only applicable when the requested precautionary measures meet the principles of prima facie legal merit, proportionality, and effectiveness. The ruling emphasized that allowing lawsuits to proceed without exhausting conciliation, under the pretext of baseless precautionary measure requests, would contribute to unnecessary judicial congestion and distort alternative dispute resolution mechanisms. | Conversely, ruling STC15644-2024 adopted a different interpretation, emphasizing the fundamental right of access to justice. According to this decision, pretrial conciliation is not required when precautionary measures are requested, regardless of whether the judge ultimately grants them. This ruling highlighted that rejecting a lawsuit due to the lack of prior conciliation when a precautionary measure has been requested violates the principle of effective judicial protection and material access to justice, as judicial efficiency cannot take precedence over fundamental rights |
Firm’s Position
From the perspective of Forvis Mazars Tax & Legal, the conflicting positions within the Supreme Court of Justice, with two recent rulings issued in close temporal proximity, may generate a sense of legal uncertainty for citizens and judicial operators. The absence of clear guidance on whether merely requesting a precautionary measure suffices to bypass conciliation creates uncertainty in litigants' procedural strategy.
In light of this scenario, we consider prevention to be the best strategy. While the Court’s position in the November ruling is viable, valid, and legalistic—one we fully support—the most prudent course of action to avoid potential procedural setbacks is to exhaust conciliation in all possible cases. Conciliation not only serves a procedural function but also constitutes an effective tool for preventing litigation, reducing costs, and resolving disputes at an early stage. Of course, we recognize that in certain cases, necessity makes it imperative to resort directly to judicial proceedings, and in such situations, the justification for the precautionary measure must be solid and well-founded.
As a firm committed to the efficient and responsible resolution of disputes, we believe that conciliation should remain an essential mechanism in judicial proceedings. This not only prevents unnecessary strain on the judicial system but also strengthens the culture of peaceful and effective conflict resolution.
Conclusions
The disparity in criteria within the Supreme Court of Justice poses a challenge for legal certainty and the uniform application of the law. While ruling STC12490-2024 imposes a stricter analysis of the admissibility of precautionary measures before exempting conciliation, ruling STC15644-2024 prioritizes direct access to justice, without making the exception contingent on the judge’s assessment of the precautionary measure’s viability.
Given this uncertainty, our recommendation is to opt for conciliation in all cases where it is required as a procedural prerequisite, except when there is absolute certainty of the impossibility of reaching an agreement and when the precautionary measure is genuinely effective—in other words, when it adequately supports the claims. This approach not only prevents delays and potential procedural complications but also promotes a more efficient legal practice aligned with the principles of effective justice and early dispute resolution.
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