Sanctions in consumer proceedings: unconstitutional or wrong?

Article 58 of the Consumer Statute (the "E. del C.") contains a series of special provisions applicable to the processing of consumer protection proceedings brought by the Superintendence of Industry and Commerce (the "SIC"). Pursuant to the tenth paragraph of said article, once the sentence that ends the consumer proceeding is issued, in addition to the corresponding sentence in favor of the consumer, the SIC may impose on the producer or supplier a fine of up to 150 minimum wages in its favor, based on the breach of contractual or legal obligations on the part of the sanctioned parties. In our opinion, the application of the referred provision is problematic, since it is not clear whether this sanctioning power is of a jurisdictional nature, is incorporated to the judgment and, therefore, is not subject to appeal in the consumer protection processes of minimum amount, that is to say, in the generality of the processes; nor if it is of an administrative nature, it is incorporated to an administrative act and, therefore, it is subject to appeals in administrative proceedings and control before the contentious-administrative justice; nor if it is a provision that empowers the SIC to sanction, but it is still pending regulation; nor if it is simply a slip of the legislator that is unconstitutional and could be declared unconstitutional since it violates the due process of the potentially affected producers and suppliers.

The tenth numeral of article 58 of the E. del C. provides that "if the final decision is favorable to the consumer, the [SIC] and the judges may impose on the producer or supplier that has not complied with its contractual or legal obligations, in addition to the corresponding sentence, a fine of up to one hundred and fifty (150) legal monthly minimum wages in favor of the [SIC]". A first interpretation of this article seems to endorse the usual practice of the delegates for jurisdictional matters of the SIC, who impose such sanction immediately after taking the judicial decision, incorporating it to the sentence. However, this interpretation and its execution are problematic from the point of view of the right to defense and due process of the potentially sanctioned parties, and do not stand up to a deeper analysis, which is why it would be worthwhile to review them.

Considering their amount, most consumer protection proceedings are conducted through the summary verbal procedure of sole instance (Cf. Article 390, Paragraph one, General Code of Procedure). This means that if the sanction imposed is incorporated into the sentence that ends the sole instance proceeding, there is no procedural occasion to have the decision of its imposition reviewed by the functional superior of the authority that imposes it. Although this reason alone should suffice to cast doubt on the legality of the interpretation and practice discussed, it is possible to find additional reasons of equal weight: such a decision, supposedly judicial, is imposed without the disclosure of a punitive claim, with respect to which to exercise the right of defense and to predicate the congruence of the decision; it is imposed without a process in which the producer or supplier can request, provide or practice evidence whose relevance, pertinence or usefulness are analyzed in view of such claim and the defense; It is enforceable, even when the reasons for the penalty have not even been discussed throughout the consumer protection process, since, in view of the SIC's ultra and extra petita ruling powers, they could only be revealed in the sentence imposing the penalty (Cf. Art. 58, numeral 9, E. del C.). Inasmuch as all these considerations conflict with the right to due process under Article 29 of the Constitution, if it is necessarily persevered that the analyzed power is jurisdictional, its unconstitutionality would be imposed, unless a procedure is regulated, even incidental, that leads to the imposition of the sanction and preserves, along the way, the fundamental rights of the potential sanctioned parties.

Now, having carefully reviewed the analyzed provision, we find that it could also be thought that such power is of an administrative nature. Think, for example, that the sanctioning power is enabled if previously "the final decision is favorable to the consumer" and that it materializes in the form of a fine "in addition to the corresponding sentence", imposed "in favor of the SIC". The first indicates that the sanction takes place after the jurisdiction has been exhausted with the issuance of the judgment; the second, that the fine, in any case, is different from the benefit recognized in favor of the consumer and at the expense of the producer or supplier; and the third, that the active subject of such benefit is the SIC itself. This interpretation would also make sense under the understanding that the imposition of the fine does not imply, in any way, the resolution of a conflict or the administration of justice, but, rather, the exercise of the ius puniendi of the State on the occasion of the infringement of its rules.

If it were an administrative power, the decision to impose the sanction would correspond to an administrative act subject, in accordance with the provisions of Article 74 of Law 1437 of 2011 (the "Cpaca"), to the appeals of "reconsideration, before the person who issued the decision for clarification, modification, addition or revocation" and "appeal, (...) before the immediate administrative or functional superior for the same purpose". Additionally, considering the residual nature of the general administrative sanctioning procedure of the Cpaca (Cf. Art. 47), such decision should take place after a process exhausted in accordance with the provisions of Articles 47 and 52 of the Cpaca, through which the rights provided in Article 29 of the Constitution are guaranteed, with the notification of a statement of charges, the opportunity to present arguments, the practice of evidence and the possibility of presenting concluding arguments. And, finally, the decision to impose the sanction could be subject to the means of control of nullity and reestablishment of the right before the administrative contentious jurisdiction, whenever the administered party considers that the elements referred to in article 138 of the Cpaca are present.

Should none of the above considerations be accepted and, instead, opt to consider that the disputed power has a sui generis nature, the need to preserve the fundamental rights of the potentially sanctioned parties should prevail. Thus, since it is inappropriate to resort to existing provisions to regulate the procedure for the imposition of this sui generis sanction, it must be concluded that as long as there is no regulation governing the enforcement of such power, it cannot be applied. The contrary would imply the irresponsible decision of the State to make irregularity the rule and, by that means, to convert the action of tutela, exceptional in itself, into a regular mechanism of defense against this form of arbitrariness.

In view of the foregoing, it is only possible to conclude by returning to the questions and inviting to a healthy legal discussion, of which we have been in default during the seven years of validity of the E. del C. : the sanctioning power of the SIC, within the framework of consumer proceedings, is either of a jurisdictional nature, it is incorporated into the judgment and, therefore, it is not subject to appeal in consumer protection proceedings of minimum amount, that is to say, in most of the proceedings; or it is of an administrative nature, it is incorporated into an administrative act and, therefore, it is subject to appeal in administrative proceedings and control before the contentious-administrative justice system; or it is a provision that empowers the SIC to sanction, but it is still pending regulation; or it is simply a slip of the legislator that is unconstitutional and could be declared unconstitutional as it violates the due process of potentially affected producers and suppliers. The debate is open.