Nullity for defective notification (Ley 2213 and CGP)

If the notification was made under art. 8 of Ley 2213 de 2022 and there is a disagreement about how it was made, the party claiming to be affected must state under oath, when requesting nullity, that they did not learn of the court order, and comply with articles 132 to 138 of the Código General del Proceso (inciso 5).

Among those articles, article 135 requires the party alleging a nullity to have standing to raise it, to state the ground invoked and the facts it rests on, and to provide or request the evidence it intends to rely on.

That oath is not enough on its own: the judge must weigh the whole proceeding and all the evidence (C-420/2020).

C-420/2020If the defendant alleges nullity

It is numeral 8 of article 133 of the Código General del Proceso: the proceeding is void when the notification of the auto admisorio de la demanda to identified persons, or the emplazamiento of the other persons, even if unidentified, who must be summoned as parties, is not made in legal form.

The same article deals separately with other court orders: if an order other than the auto admisorio or the mandamiento de pago was left unnotified, the defect is corrected by making the omitted notification, and any later step that depends on that order is void, unless it has been cured.

Only the affected person: nullity for improper representation or for lack of notification or emplazamiento may be alleged only by that person (art. 135), and it benefits only the party who invoked it, unless there is a necessary joinder of parties and judgment has been given: then the judgment is annulled and all necessary parties are brought in (art. 134).

Nullities may be alleged in any instance before judgment is given, or after it if they arose in it. Nullity for lack of notification or emplazamiento in legal form may also be alleged at the delivery proceeding, as a defence in the enforcement of the judgment or through the recurso de revisión, if the party could not allege it at the earlier opportunities (art. 134).

In an enforcement proceeding it may be alleged even after the order to proceed with enforcement, as long as the proceeding has not ended by full payment to the creditors or for another legal reason (art. 134).

It may not be alleged by whoever caused the fact it rests on, nor by whoever failed to raise it as a preliminary defence when they had the chance, nor by whoever acted in the proceeding after the ground arose without raising it (art. 135).

Article 136 of the Código General del Proceso deems a nullity cured in these cases, among others:

• When the party who could allege it did not do so in time or acted without raising it.
• When the party who could allege it expressly validated it before the annulled step was redone.
• When, despite the defect, the procedural act fulfilled its purpose and the right of defence was not violated.

The parágrafo of the same article declares incurable the nullities for acting against a final order of the superior court, reviving a proceeding lawfully concluded or entirely omitting the relevant instance. Defective notification is not on that list.

In a nullity motion the affected party's oath is not enough: the judge must weigh the whole proceeding and the evidence (C-420/2020). The judge decides the request after a traslado and after ordering and taking whatever evidence is needed (CGP art. 134).

When the notification was made by email, actual receipt is argued in the nullity motion (STC8435-2023). Freedom of proof governs: the acknowledgement of receipt is confirmation that the message reached its destination, and may be shown by a voluntary or automatic acknowledgement, a record from authorised postal service companies or documents filed by the plaintiff (STC16733-2022).

A «sent» record on its own is weak: what counts is proof that the recipient's server received the message (STC690-2020).

C-420/2020STC8435-2023STC16733-2022STC690-2020

By meeting the burdens of art. 8 and leaving them proved from the first send: the court order with the annexes for the traslado (inciso 1), the oath on the address, how it was obtained and its evidence (inciso 2). And by keeping the proof complete and verifiable for years: the original message, the destination server's acceptance, the file fingerprints and the time of every event.

With Notificado, before it leaves, the exact message is frozen, fingerprinted and timestamped. Afterwards the record holds the recipient mail server's acceptance, bounces, document downloads and the acknowledgement of receipt, each in Colombian legal time and UTC. An open of the message is shown as an indicio, never as proof of reading.

Any perito verifies the constancia with its code on the verification page, or without depending on our system, with the evidence package and OpenSSL.

The requirements, one by oneVerify a constanciaEvidence method

The printable checklist goes through each point in the order the notification happens, and every point comes from the text of article 8, the Código General del Proceso or the case law applying them. One point from each group:

• Before sending: The evidence of that source, especially communications sent to the person to be notified (art. 8, inciso 2).
• The message: Article 8 only: no summons or aviso under CGP arts. 291 and 292.
• After sending: No hard bounce. If there was one, there is no notice: correct the address and send again.
• The memorial to the court: The record of sending and delivery, and the message as .eml (CGP art. 247).
• Retention: The complete evidence package stored: nullity may be raised even after judgment (CGP art. 134).

Open the printable checklist

Every send leaves proof that a third party can verify without Notificado.