Content

John Zuluaga, The challenges of digital justice in Colombia. An approach based on the judicial crisis caused by COVID-19 in:

Susanne Beck, Carsten Kusche, Brian Valerius (Ed.)

Digitalisierung, Automatisierung, KI und Recht, page 591 - 604

Festgabe zum 10-jährigen Bestehen der Forschungsstelle RobotRecht

1. Edition 2020, ISBN print: 978-3-8487-7705-1, ISBN online: 978-3-7489-2098-4, https://doi.org/10.5771/9783748920984-591

Series: Robotik und Recht, vol. 20

Bibliographic information
The challenges of digital justice in Colombia. An approach based on the judicial crisis caused by COVID-19 Dr. John Zuluaga, LL.M.* Abstract: The implementation of digital justice in Colombia was accelerated after emergency measures were put into place to ensure judicial work during the COVID-19 pandemic. However, attempts at overcoming judicial paralysis and increasing the digitalization of justice were held back by problems of digital infrastructure and lack of technical skills in handling digital resources. There was an increased reliance on makeshift methods, such as emails and virtual meetings online. Equating digital justice with such platforms is not only an inadequate response to the complexity of digital justice, but also made necessary a rethinking of important procedural principles. In the area of criminal justice, lack of digital resources, together with the relaxation of the rules of criminal procedure in the virtual environment, could lead to the consolidation of private justice. Resumen: La implementación de la justicia digital en Colombia se ha acelerado a partir de las medidas de emergencia para asegurar el trabajo judicial en tiempos del COVID-19. Sin embargo, la posibilidad de superar la parálisis judicial y de profundizar la digitalización de la justicia es reducida debido a problemas de infraestructura digital y de competencias técnicas para el manejo de recursos digitales. La equiparación entre justicia digital y plataformas para el manejo de emails no solo es una respuesta inadecuada para atender la complejidad de la justicia digital, sino, además, propicia un replanteamiento de muchos principios procesales. En el ámbito de la justicia penal, el subdesarrollo digital y la flexibilización de los fundamentos del proceso penal, podría conducir a la consolidación de justicias privadas. * The author is Associate Professor of Law at Sergio Arboleda University (Bogotá, Colombia). The author wishes to thank Sophie Rähme (MPhil./MSoc., Goethe University, Frankfurt am Main) and Jörn Halling (Attorney at Law (Germany/Colombia, at Reed Smith LLP) for their valuable comments. 591 Introduction The process of digitizing society and the expansion of the use of digital resources has been radically accelerated since the COVID-19 pandemic commenced.1 Important examples of this extension are the use of smartphones and technologies from companies such as Google, Netflix, among others2, the increase in digital commerce, and the digitization of supply chains. Similarly, the extension of digitization is seen in the growth in digital educational offerings that needed to be implemented in order to allow school and university education to continue following the imposition of lockdown as a protective health measure.3 Despite the difficulties that the pandemic brought with it, it has been possible to obtain some improvements from digitization. Among these benefits are the speed and breadth of communication and connectivity, division of work and facilitation of daily life.4 These processes have been promoted through the use of smartphones and the multiple offerings of social networks in which we are all engaged. All this confirms that we are experiencing a scenario in which digitization is being used to replace multiple interactions and decision making processes which were previously understood as being strictly human and face to face5. Unfortunately, as regards Colombia, the acceleration of digitization and the increased use of digital technologies has been achieved with great difficulty, as the following two examples show. They are also emblematic of the administration of Colombia’s judicial system. In the private sector, the biggest barriers and challenges that companies face to achieve successful A. 1 Hilbig, Datenleak Mittelmeer, IPG Newsletter (Friedrich Ebert-Stiftung), 08.04.2020, available at https://www.ipg-journal.de/regionen/global/artikel/detail/d atenleak-mittelmeer-4239/. 2 Carrión, La biología está acelerando la digitalización del mundo, New York Times, 29.03.2020. Available at https://www.nytimes.com/es/2020/03/29/espanol/opinion/ coronavirus-revolucion-digital.html. 3 Füller/Spiewak, Digitale Hausaufgabe, Die Zeit, 18.03.2020. Available at https://ww w.zeit.de/2020/13/schule-lernplattform-unterricht-internet-digitalisierung-coronavi rus. 4 Cf. Krüger, Datensouveränität und Digitalisierung, Zeitschrift Rechtspolitik 2016, p. 190 (190 et seq.); Uffmann, Digitalisierung der Arbeitswelt – Wie gestalten wir die notwendigen Veränderungen?, Neue Zeitschrift für Arbeitsrecht 2016, p. 977 (977 et seq.). 5 Cf. Klesen, Die Entscheidung von Maschinen über Menschenleben: das Recht auf Leben und der Einsatz autonomer Rettungssysteme in Notfällen und Katastrophen, Baden-Baden 2017, p. 385 et seq. John Zuluaga 592 digital transformation are budgetary (59.2%), lack of digital culture (57.1%), ignorance (55.4%), and absence of clear business models (36.5%), among others.6 At the educational level, there are two major practical problems that hinder the broad digitization of education. On the one hand, not all Colombian students have computers at home. On the other hand, not all schools and universities are able to offer their services virtually. These difficulties are common in many areas of society, including the judiciary. As regards the judiciary, there are various difficulties and many of them coincide with the digital needs of the general population: lack of infrastructure and skills which would enable the use of digital resources. Additionally, in the judiciary, technological development is taking place at the same time there as a kind of constitutional evolution of the judicial system. In other words, in the Colombian context, the system was overloaded because modernization of the judiciary was being carried out at the same time as digitization because it became necessary to replace paper-based and face to face ways of working with digitized work methods. This phenomenon was especially prominent in the criminal justice system. The lockdown measures introduced to contain COVID-19 illustrate this. Due to the need to increase work at home, the judiciary was unable to fully perform many of its duties. Lack of infrastructure and lack of skills for working with digital resources were two factors that contributed to this. Taking the COVID-19 pandemic as a case example, this article seeks to specifically discuss the challenges of digitization for the Colombian judicial system. Firstly, there will be a brief overview of the problems for effective implementation of digital justice that arose during the health crisis. Secondly, the question will be examined of whether this emergency led to increased digitization of the judicial branch or, to the contrary, to increased difficulties, which worsened the judicial crisis. Thirdly, the impact of limited digitization in the midst of the crisis caused by judicial paralysis will be explored. Fourthly, some of the repercussions of adapting to digital justice in the area of criminal justice will be discussed. 6 Redacción Especial, La transformación digital, un reto para las empresas en Colombia, El Espectador, 28.03.2020. Available at https://www.elespectador.com/mt alks/la-transformacion-digital-un-reto-para-las-empresas-en-colombia-articulo-91131 9. The challenges of digital justice in Colombia 593 Problems in the effective implementation of digital justice evidenced during the COVID-19 quarantine The fight against COVID-19 gives us the opportunity to observe how society works digitally and specifically the deficits in planning, technical superstructure, guidelines and skills for the administration of digital resources. Regarding the Colombian judicial system, during the COVID-19 pandemic several shortcomings were revealed. Firstly, before the health emergency was officially decreed, and people went into lockdown in their homes, litigants were already afraid to attend hearings without face masks. Subsequent to lockdown, underlying problems in respect of online judicial proceedings became evident: There were deficiencies in creating and using digital judicial files7 as the infrastructure to support it did not work well. Secondly, during lockdown, lack of training and skills in the use of software and web tools aimed at replacing paper based work with digitized equivalents became obvious as problems. As a result, the Superior Council of the Judiciary of Colombia8 made several decisions in order to mitigate these shortcomings. The first decision was to suspend both hearings and the continued gathering of evidence. That meant that the operations of a large part of the judicial system were stopped. In practice, the criminal justice system became paralysed on account of health concerns. Human rights proceedings remained unaffected by measures to suspend judicial work. The suspension did not apply either to writs of protection of fundamental rights (also called acción de tutela) nor did it apply to the work of supervisory judges (juez de garantías), sentence enforcement judges or courts that were tasked with deciding applications for release from custody9. B. 7 Online judicial files have been a topic that were talked about several years ago as a challenge in construction. Cf. Portafolio, Colombia está en una transición hacia el expediente electrónico, Portafolio, 26.09.2018. Available at https://www.portafolio.c o/economia/colombia-esta-en-una-etapa-de-transicion-hacia-el-expediente-electronic o-521666. 8 The Superior Council of the Judiciary (Spanish: Consejo Superior de la Judicatura) is a Colombian institution that is responsible for the administrative and disciplinary management of justice in Colombia. 9 Consejo Superior de la Judicatura, Acuerdo PCSJA20-11546, 25.04.2020. Available at https://www.ramajudicial.gov.co/documents/10228/3385454/amplian+suspensi% C3%B3n+de+terminos+CSJ.pdf/56414cd3-71af-4b3d-90f1-cdd768bba8c4; Acuerdo PCSJA20-11532 11.04.2020. Available at http://actosadministrativos.ramaj udicial.gov.co/GetFile.ashx?url=~/App_Data/Upload/PCSJA20-11532.pdf, through John Zuluaga 594 Until the end of March 2020, judges tasked with fundamental rights worked in their offices with the help of biosafety suits, while defence lawyers and prosecutors had to attend hearings with face masks as their only protection measure.10 Only later was it decided that supervisory judges could hold hearings from their homes. This was made possible by the collaborative efforts of engineers of the Judicial Service Centres.11 In addition, the judiciary created an institutional email for each judicial district, so that the filings and procedures for the writ of protection of fundamental rights were carried out electronically12. Despite this emergency plan, many questions remained unanswered: The first question was about the modalities of teleworking. Until the end of March there was no access to institutional emails outside of the official court buildings. Consequently, the procedure was very primitive. An assistant went to the courthouse. From there he forwarded the information to the personal email addresses of the respective officials. Then the officials worked on the files, after that, the same assistant, by himself, went back to the courthouse to send the final decisions by official mail.13 The second question was about the security of online communications. Here the questions included: Would encryption be used? How would information about writs of protection of fundamental rights that arrived during or after quarantine be stored? Could the work be done entirely online? Did back-up paper files need to be created? All this shows serious organizational problems for the effective implementation of digital justice. It is important to understand that digital justice was implemented during the COVID-19 crisis by improvisation. Inwhich the suspension of prison terms were extended and other measures were adopted for reasons of public health. 10 Cf. Justicia, Con trajes de pies a cabeza trabajan los jueces de garantías, El Tiempo, 18.03 2020. Available at https://www.eltiempo.com/justicia/servicios/con-trajes-depies-a-cabeza-trabajan-los-jueces-de-garantias-de-bogota-474312. 11 Consejo Superior de la Judicatura, Acuerdo PCSJA20-11546 26. 04. 2020 and Acuerdo PCSJA20-11532 11. 04. 2020 (Fn. 9); Consejo Superior de la Judicatura, Acuerdo PCSJA20-11526 22.03.2020. Available at http://actosadministrativos.ramajud icial.gov.co/GetFile.ashx?url=%7e%2fApp_Data%2fUpload%2fPCSJA20-11526.pd f. 12 Consejo Superior de la Judicatura, Circular PCSJC20-11, 31.03.2020. Available at https://www.ramajudicial.gov.co/documents/10228/0/Circular+11.pdf/7d8378f6-e e54-43a5-bde5-c966ad7adc27. 13 Bonilla Mora, Los retos en justicia digital que evidenció la pandemia, El Espectador, 25.03.2020. Available at https://www.elespectador.com/noticias/judicial/los-re tos-en-justicia-digital-que-evidencio-la-pandemia-articulo-911231. The challenges of digital justice in Colombia 595 credible as it may seem, one of the first emergency measures undertaken was the acquisition of an Office 365 license with One Drive, which allowed officials to have shared folders.14 This raised many other questions: would it be a useful tool for this contingency? How could the file created for each application for a writ of protection of fundamental rights be sent to the Constitutional Court for its respective review? Additionally, there were several issues in respect of the level of security used and the use of digital signatures. Could a document with a digital signature be sent from an institutional mail account without doubts about the authenticity of the decision? This was one of the most prominent debates that judicial teleworking sparked in Colombia15. Lastly, another problem was that the shift from face-to-face justice to digital justice was made without transition and under great pressure because of the health emergency. These circumstances had as a consequence that judicial officials often had no scanned files and, therefore, did not have the documents they needed to do their work from home.16 Did the implementation of digitization make things better or did it make the judicial crisis worse? Despite the need for teleworking and the use of digital resources, there was no administrative policy to guide responses to this exigency. This was not achieved due to lack of budget, insufficient personnel, and due to the same judicial congestion. Additionally, there were connectivity problems in remote regions and the deficient implementation of the digital justice project. An additional obstacle was lack of willingness on the part of judi- C. 14 Bonilla Mora (Fn. 13), El Espectador, 25.03.2020. 15 Montejo, Firma escaneada: ¿es o no es válida en Colombia?, Asuntos:legales, 25.03.2020. Available at https://www.asuntoslegales.com.co/analisis/maria-montej o-2599087/firma-escaneada-es-o-no-es-valida-en-colombia-2982642; Casas, La adopción digital: la gran tarea en tiempos de COVID-19, Colombia Fintech, 05.04.2020. Available at https://www.colombiafintech.co/novedades/la-adopciondigital-la-gran-tarea-en-tiempos-de-covid-19. 16 The idea of an electronic file is not new in Colombia. Several years ago, an implementation plan was proposed, but it was never carried out due to budgetary problems. Cf. Redacción, En estos cinco procesos se implementará el expediente electrónico, Ambito Jurídico, 13.12.2018. Available at https://www.ambitojuridic o.com/noticias/tecnologia/procesal-y-disciplinario/en-estos-cinco-procesos-se-impl ementara-el-expediente. John Zuluaga 596 cial officials to achieve and standardize digital justice procedures following principles of reliability, authenticity, and inalterability, among others.17 It was only because of the health emergency that the high courts began to modify their rules and hold their first virtual court sessions. The Supreme Court of Colombia made some initial decisions, although it did not yet need to vote secretly by virtual means.18 The Constitutional Court met to study the decrees issued during the COVID-19 state of emergency and to stipulate the procedures to be used for the administration of digital signatures and the duration of the processes.19 The President of Colombia issued Decree 491 of 2020 that promoted work at home by making the obligations of personalized attention to the user more flexible in aspects such as recognition of the digital signature, public judicial and administrative hearings, and the provision of justice services.20 As a result, thanks to technology, it was possible to maintain communication between judicial officials. However, there were some rushed decisions and rulings that did not match the complexity of judicial communications during the COVID-19 pandemic. All this had an immediate consequence: effective and correct administration of justice became impossible. Prompt and effective access to the administration of justice could not take place in the days when COVID-19 raged. This was due to lockdown, deficits in infrastructure, and lack of skills on the use of digital resources that would make teleworking viable. The consequence was judicial paralysis. The result was that the judicial branch had to reduce or suspend its work. This meant the inability to per- 17 Bonilla Mora (Fn. 13), El Espectador, 25.03.2020. 18 The Agreement PCSJA20-11521 19 March 2020 had already enabled them to define the virtual form of judicial work. Later, the President of Colombia authorized the virtual sessions of all the organs of the government. Cf. Justicia, El salto virtual de las cortes para seguir administrando justicia, El Tiempo, 19.04.2020. Available at https://www.eltiempo.com/justicia/cortes/cambios-tecnologicos-de-las -altas-cortes-para-administrar-justicia-en-medio-de-coronavirus-485886. 19 Through Internal Circular No. 09, the Constitutional Court adopted a protocol for the electronic or digital handling of judicial proceedings. Cf. Corte Constitucional de Colombia, Boletín No. 51, 21.04.2020. Available at https://www.corteco nstitucional.gov.co/noticia.php?Corte-Constitucional-crea-protocolo-interno-paragarantizar-su-operatividad-durante-la-emergencia-por-el-COVID-19-8891. 20 Ministerio de justicia y del derecho, Decreto Legislativo 491, 28.03.2020. Available at https://dapre.presidencia.gov.co/normativa/normativa/Decreto-491-28-mar zo-2020.pdf. After the edition of this chapter, Decree 806 of June 4, 2020 was issued. This decree sought to regulate some of the aspects that are considered essential for judicial work in the digital scenario. However, it is unable to solve the multiple problems that digital underdevelopment in Colombia drags. The challenges of digital justice in Colombia 597 form tasks as essential as controlling of legality of state interference in fundamental rights. The problems internal to the judiciary were mirrored by deficits that became evident outside the court rooms. For example, the impossibility of effective and timely judicial control also affected the judicial surveillance of the detention of many prisoners during the health crisis. In the prisons, the lack of effective protection of detainees could be seen quite starkly. The system of justice was simply unable to function digitally. During COVID-19 crisis, the lack of availability to prisoners of judicial remedies exacerbated the existential questions they faced from infection. The tragedies that each one carries during the confinement deepens. For that reason, measures aimed at releasing prisoners during the health crisis became necessary.21 The COVID-19 crisis taught us that digital justice cannot be an effective response to such an emergency in the absence of appropriate levels of digital skills. Furthermore, the health crisis made it necessary for a large part of the public budget be directed toward the humanitarian needs of the population. As a result, the attempt to digitize the judiciary was limited and ended up causing more problems than it resolved. Digitizing files and the presentation of lawsuits and evidence electronically, by mail or with special platforms, did not solve all problems in respect of access to justice during the COVID-19 crisis, nor did it resolve transparency deficits, therefore it will not immediately return the trust to citizens. What did digitization mean during the judicial crisis? Regarding the judicial paralysis caused by quarantine as a containment measure for COVID-19, it could be said that digitization did not provide the judiciary with a positive response. Thus, digitization did not lead to D. 21 In Colombia, a decree was issued which adopted measures to replace prison sentences and preventive detention. Cf. Ministerio de justicia y del derecho, Decreto Legislativo 546, 14.04.2020. Available at https://dapre.presidencia.gov.co/normati va/normativa/DECRETO%20546%20DEL%2014%20DE%20ABRIL%20DE%2020 20.pdf. This decree generated a lot of criticism and was considered late, ineffective and unable to reduce prison overcrowding or prevent the risk of infection by coronavirus; Cf. Durán, ’Tardío’ e ‘ineficaz’: así califican expertos decreto de excarcelaciones por COVID-19, El Espectador, 15.04.2020. Available at https://www. elespectador.com/coronavirus/tardio-e-ineficaz-asi-califican-expertos-decreto-de-ex carcelaciones-por-covid-19-articulo-914836. John Zuluaga 598 better case management or better information management as regards the various judicial proceedings taking place. Furthermore, it did not serve to improve citizens' access to justice. The process of digitizing justice that was accelerated to contain the effects on the court system of COVID-19 produced a vacuum in the administration of justice. The effect was not the modernization of justice, but the exacerbation of many other judicial problems. Despite the attempt at digitization, the logic of secrecy and judicial discretion did not change. In addition, it did not improve the situation for victims and did not help span the gap between judges and parties. As regards criminal prosecutions, digital underdevelopment made it very difficult to exercise judicial control over investigations or provide legal protection to persons under criminal investigation. This means that the possibilities for supervisory judges to control criminal investigations were significantly reduced, thereby, strengthening the hand of prosecutors and police in criminal proceedings. The apparent use of digital technologies to facilitate the continuity of judicial work during quarantine, seems more a way to disguise the inability of the judicial system to do its work properly. This cover-up was, at the same time, tantamount to complicity with authoritarian actions by other players in the criminal justice system. In other words, the digital justice given in Colombia during the crisis could be described as sham justice, because judicial officials were unable to carry out their work effectively, especially in controlling the actions of the police. This sham justice, provided by the judicial apparatus during the COVID-19 crisis, created a judicial vacuum which was filled by private justice, particularly by criminal organizations in Colombia.22 22 Cf. Corredor/Rincón, El crimen organizado como regulador de pandemias. El caso del COVID-19 en América Latina, Lagaitana Portal, 14.04.2020. Available at https://www.lagaitanaportal.com/single-post/2020/04/14/El-crimen-organizado-co mo-regulador-de-pandemias-El-caso-del-COVID-19-en-America-Latina?fbclid=IwA R0gXIHP8Uap_IdUmpolGTl9XQ2xb4O5zDMx3iCSXm7RufZzBQESE7v2hTU; Gurk/Dörries/Lipkowski, Wie Drogenkartelle und Verbrecherbanden sich an das Virus anpassen, Süddeutsche Zeitung, 18.04.2020. Available at https://www.suedd eutsche.de/panorama/coronavirus-organisierte-kriminalitaet-drogen-1.4879070?re duced=true. The challenges of digital justice in Colombia 599 Rethinking the foundations of criminal justice? The health crisis caused by COVID-19 had widespread repercussions for the administration of justice. In the Colombian case, digital justice was implemented ineptly, leading to a “relaxation”, meaning noncompliance with the principles, rules, and practices for the investigation and prosecution of crimes. In other words, digital underdevelopment intersected with a relaxation of procedural standards. In the case of oral hearings and other court proceedings that require the immediacy (presence) of the participants, videoconferencing in various formats was used to cope with this exceptional situation. This involved not only the use of technology by judges, but also the incorporation into court proceedings of applications such as Zoom, Skype or video calls through various social networks (WhatsApp, Facebook, etc.).23 The problem is that in Colombia not only the defence, the prosecutor and the judge must be present at hearings, but also the Office of the Inspector General of Colombia (Spanish: Procuraduría General de Colombia) as well as the victims, who can intervene. The difficulty lay in ensuring the virtual meeting of all the procedural subjects, without interruptions in digital transmission, giving each party the opportunity of intervening, which the law contemplates. Digital underdevelopment prevented the high standard of participation in oral hearings required by law. It significantly lessened respect for principles which in Colombia are called immediacy, contradiction and publicity, meaning presence of parties at proceedings, the right to challenge witnesses and evidence, as well the requirement that trials be conducted in public. The failure in digital implementation, in which technology was used “as well as possible”, resulted in reduced opportunities for serious and effective intervention by some parties to proceedings. In particular, it meant, on the one hand, that the defence was restricted in its ability to challenge the arguments and evidence presented by the prosecution and, on the other hand, the prosecution’s power to intervene was strengthened because the defence was less able to oppose it at hearing. Thus the implementation of digital criminal justice resulted in a reduction in procedural guarantees and protection of defendants due to lack of infrastructure and digital skills. E. 23 Cf. Consejo Superior de la Judicatura, Circular PCSJC20-1, 31.03.2020, which stipulated the technological tools to be used to support judicial work during the crisis caused by COVID-19. Available at http://actosadministrativos.ramajudicial.g ov.co/GetFile.ashx?url=%7e%2fApp_Data%2fUpload%2fPCSJC20-11.pdf. John Zuluaga 600 Additionally, the problems of digital justice have had social and political repercussions.24 In addition to digitization, with its correlate reduction of the political, social and human dimensions through the confinement (voluntary and preventive), must be added the relaxation of the limits on punitive power of the state. Due to digital underdevelopment, during the health crisis, the administration of justice’s capacity to control the exercise of punitive power was significantly diminished. Confinement, the closing of borders, the prohibition of national and, especially, international flights, curfews, prohibition of contact with other people25, left the people exposed to raw punitive power, as limits were relaxed for its control26. All this was justified as various means of so-called “social distancing”, with which a kind of immune reaction to COVID-19 is conceived.27 It was a dangerous combination: restrictive lockdown measures affecting fundamental rights, dysfunctional administration of justice and punitive power with flexible limits. If this problem (health crisis, digital underdevelopment, together with lack of protection of rights) cannot be understood and effectively overcome, we can only continue the path - as Byung-Chul Han has said - to- 24 In digital society, forms and means of information management are established that project the human being in a dimension not only physical, but also digital. This implies that the processes of abstraction from real experience are increased, with important repercussions in the internal and external world and their respective interactions. This results in a reduction of the human dimension in its material conception. Cf. Henkel, Digitalisierung der Gesellschaft. Perspektiven der reflexiven Philosophischen Anthropologie auf gesellschaftlichen Wandel durch Digitalisierung, in: Burow et al. (Eds.), Mensch und Welt im Zeichen der Digitalisierung. Perspektiven der Philosophischen Anthropologie Plessners, Baden-Baden 2019, p. 19 (39 et seq). 25 So, for example in Germany, where the Chancellor of the Federal Government, and the heads of government of the federal states adopted new rules for the coronavirus. Cf. Regeln zum Corona-Virus, 22.03.2020. Available at https://www.bun deskanzlerin.de/bkin-de/aktuelles/regeln-zum-corona-virus-vom-22-maerz-2020-17 33310. 26 These are mandates that were highly discussed, however, for some, although keeping physical distance was a general health measure. Curiously, it is something that can bring people closer. Cf. Žižek, Dialektik der Distanz, Philosophie Magazin, 20.03.2020. Available at https://philomag.de/dialektik-der-distanz/. 27 Byung-Chul Han, La emergencia viral y el mundo de mañana, El Pais, 22.03.2020. Available at https://elpais.com/ideas/2020-03-21/la-emergencia-viral-y-el-mundo-de -manana-byung-chul-han-el-filosofo-surcoreano-que-piensa-desde-berlin.html. Available in English at https://pianolaconalbedrio.wordpress.com/2020/03/29/theviral-emergence-y-and-the-world-of-tomorrow-byun-chul-han/. The challenges of digital justice in Colombia 601 wards the immunological organization of our society.28 This means a way of life mediated by walls, borders, limits, and prohibitions. Therefore, it is not surprising that now, because of the COVID-19, a discussion on "war" has been started.29 What other effects could promote the immunological organization of society? At this point everything is speculation. What is certain is that with digital underdevelopment, and lack of judicial protection of rights, a means seems to have been discovered that facilitates intense social control over private life. Although COVID-19 could have been an occasion to take a leap forward towards the modernization of the state, the only thing it has done so far was to reveal the enormous deficiencies that we suffer with respect to the accountability of digital justice. All this leaves a terrible imbalance of power when today we have new digital developments involving artificial intelligence, big data, machine learning, block chain, cloud computing and thousands of individualized mobile phone users. Currently, it is evident that reactions to the coronavirus have confirmed our inability to think about solutions to our problems going beyond individual and social distancing. Also, it is seen how digitization has provided great benefits in many areas of society, but also opportunities for intense and pervasive social control. Conclusions The health crisis caused by COVID-19 made it difficult for the apparatus of the administration of justice to function without the physical presence of its officials. Consequently, strategies were adopted to ensure the continuity of judicial work in a virtual way. The implementation of remote work has revealed great shortcomings regarding the technological infrastructure and the competencies/skills of officials to use and manage digital resources. The implementation of digital justice was accelerated as an emergency measure due to paralysis of the administration of justice. Digital justice was initially attempted through the use of a common platform for han- F. 28 Ibid. 29 Sandberg, Ausgehsperre in Frankreich: ‘Wir sind im Krieg‘, Der Spiegel, 16.03.2020. Available at https://www.spiegel.de/politik/ausland/coronavirus-in-fra nkreich-wir-sind-im-krieg-a-50b0dce2-6f7e-4cba-bda1-87fe05bfc7ca. On understanding the coronavirus not as a war but as a process, cf. Wyler, Das Virus als Prozess, Philosophie Magazin, 24.03.2020. Available at https://philomag.de/das-vi rus-als-prozess/. John Zuluaga 602 dling emails and conducting virtual meetings (Outlook, office 365 and Microsoft teams). In criminal justice, these resources were used to deal with requests for release from detention, control of the legality of state interference with fundamental rights, fostering the work of judges regarding the enforcement of sentences, and the handling of applications for legal protection of fundamental rights. By means of those measures, a kind of digital “emergency justice” was created. This ensured a partial continuity of the work of judicial officials. However, it was not an answer to many problems related to access to digital resources in regions of Colombia that do not have the Internet, secure of mechanisms to verify the identity of participants in court hearings, storage of information reserved for the court proceedings, the authentication and administration of digital signatures, and the management of files not yet digitized, etc. The use of digital resources as an emergency measure did not ensure the effective and correct administration of justice. Especially questionable was the relaxation of many procedural principles in respect of some proceedings that were carried out virtually. Firstly, the right of the parties to proceedings to be present was affected since not everyone could be present online. Even if everyone was present, not everyone had the same opportunities to intervene due to unstable Internet connections. Secondly, the inability of defendants to defend themselves, i.e. to challenge the prosecution’s case and evidence, followed from the former. Thirdly, the principle that justice must be seen to be done, i.e. public hearings, was not respected as such hearings were only set up for those who were invited to attend the virtual hearing. The weakening of the court system was a valuable opportunity for the state to expand its ius puniendi. The consequence of digital underdevelopment, in a situation in which the administration of justice was severely weakened by COVID-19, was that the institutional limits on the punitive power of the state were softened. At the same time there were lessened opportunities by the procedural parties to raise challenges during proceedings, as well as reduced possibilities for trials to be conducted publicly due to virtual proceedings. Thus, it was not possible to overcome the logic of secrecy and judicial discretion. Paradoxically, given the impossibility of judicial officials carrying out their work effectively due to digital deficits, what might really have been promoted was the emergence of private justice, i.e. private justice by organized crime. The challenges of digital justice in Colombia 603

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Robotik, Digitalisierung, Künstliche Intelligenz, Festgabe, Technik, Recht, Philosophie

References

Abstract

This anthology contains contributions by scholars from the fields of philosophy, engineering and law. It is being published to mark the ten year anniversary of the founding of the Robotics Law Research Centre at the University of Würzburg, which now has a proven track record of research and policy proposals in response to challenges posed by advances in the field of autonomous systems and digitization. This work includes interdisciplinary reflections on major technological developments of our time. It also focuses on the social and ethical foundations of the right to access technological innovation and civil, criminal and procedural law issu-es raised by recent progress in this fast-paced area. With contributions by Nikolaus Bauer, Prof. Dr. Susanne Beck, Prof. Dr. Dr. h.c. Dieter Birnbacher, Kristine Böhm, Alfons Botthof, Prof. Dr. Jörg Eisele, Sven Elter, Dr. Jochen Feldle, Peter Gabriel,Orlandino Gleizer, Prof. Dr. Armin Grunwald, Christian Haagen, Berthold Haustein, Prof. Dr. Dirk Heckmann, Desirée Heijne, Prof. Dr. Joachim Hertzberg, Prof. Dr. Su Jiang, Prof. Dr. Jan C. Joerden, Prof. Dr. Maria Kaiafa-Gbandi, Dr. Clemens Kessler, Benjamin Kisliuk, Dr. Carsten Kusche, Prof. Dr. Genlin Liang, Dr. Severin Löffler, Anna Lohmann, Annika Schömig, Pia Mesenberg, Prof. Dr. Wolfgang Mitsch, Prof. Dr. Julian Nida-Rümelin, Dr. Christoph Peylo, Prof. Dr. Frank Puppe, Prof. Dr. Tobias Reinbacher, Dr. David Roth-Isigkeit, Prof. Dr. Ronny Thomale, Stephan Scheuren, Prof. Dr. Frank Peter Schuster, Prof. Dr. Gerald Spindler, Klaus Staudacher, Stefan Stiene, Sebastian Straub, Prof. Dr. Brian Valerius, Paul Vogel, Steffen Wischmann, Nicolas Woltmann, Prof. Dr. Feridun Yenisey and Dr. John Zuluaga.

Zusammenfassung

Dieser interdisziplinäre Sammelband mit Beiträgen aus den Wissenschaftsbereichen Philosophie, Technik und Recht würdigt die Verdienste der 2010 an der Universität Würzburg gegründeten „Forschungsstelle RobotRecht“ um eine innovationsoffene Begleitung der Technisierung durch das Recht. Der Band fußt auf interdisziplinären Überlegungen zu den technischen Entwicklungen unserer Zeit sowie den gesellschaftlichen und ethischen Grundlagen eines Zugriffs des Rechts auf technische Innovation. Den Schwerpunkt des Werks bilden Beiträge aus Rechtspraxis und (internationaler Straf-) Rechtswissenschaft zu den zivilrechtlichen, strafrechtlichen und verfahrensrechtlichen Herausforderungen, die die Technisierung mit sich bringt. Mit Beiträgen von Nikolaus Bauer, Prof. Dr. Susanne Beck, Prof. Dr. Dr. h.c. Dieter Birnbacher, Kristine Böhm, Alfons Botthof, Prof. Dr. Jörg Eisele, Sven Elter, Dr. Jochen Feldle, Peter Gabriel,Orlandino Gleizer, Prof. Dr. Armin Grunwald, Christian Haagen, Berthold Haustein, Prof. Dr. Dirk Heckmann, Desirée Heijne, Prof. Dr. Joachim Hertzberg, Prof. Dr. Su Jiang, Prof. Dr. Jan C. Joerden, Prof. Dr. Maria Kaiafa-Gbandi, Dr. Clemens Kessler, Benjamin Kisliuk, Dr. Carsten Kusche, Prof. Dr. Genlin Liang, Dr. Severin Löffler, Anna Lohmann, Annika Schömig, Pia Mesenberg, Prof. Dr. Wolfgang Mitsch, Prof. Dr. Julian Nida-Rümelin, Dr. Christoph Peylo, Prof. Dr. Frank Puppe, Prof. Dr. Tobias Reinbacher, Dr. David Roth-Isigkeit, Prof. Dr. Ronny Thomale, Stephan Scheuren, Prof. Dr. Frank Peter Schuster, Prof. Dr. Gerald Spindler, Klaus Staudacher, Stefan Stiene, Sebastian Straub, Prof. Dr. Brian Valerius, Paul Vogel, Steffen Wischmann, Nicolas Woltmann, Prof. Dr. Feridun Yenisey und Dr. John Zuluaga.

Schlagworte

Robotik, Digitalisierung, Künstliche Intelligenz, Festgabe, Technik, Recht, Philosophie