Abstract

LOPEZ-MEDINA, Diego Eduardo  and  MOLANO-SIERRA, Edwin. Constitutional "Res Judicata" at Thirty Years of Evolution: Flexibilization of the Principle and a New Balance between Stability and Change in the Judicial Review of Statutes. Rev. Derecho Estado [online]. 2021, n.50, pp.261-291.  Epub Mar 07, 2022. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n50.09.

This article shows how the Colombian Constitutional Court (CCC) has limited the scope of the principle of res judicata in constitutional judicial review. The authors analyzed the Court's judicial practice between 1992 and 2019 to find that the CCC has relativized the effect of res judicata in most cases, especially when judicial review proceedings have been initiated by a claim, not ex officio by direct constitutional command. According to article 46 of Law 270 of 1996, the Court has the duty of carrying out a complete review of constitutionality: it must examine the statutory rule against the whole of the Constitution, including charges not explicitly brought up by the plaintiffs. Against this fiction, the Court has established through his practice a new default rule, especially since 2002: if judicial review procedure is triggered by a citizen's claim (which occurs in fact in 86% of the cases), res judicata is merely relative to the charges brought up and, thus, it will be further possibilities to open up the constitutional debate against that statute. For the Court, the old exception has become the new principle: 92,4% of its decisions have established a relative res judicata between 2015-2019.

Keywords : Claim preclusion; res judicata; judicial review; Constitutional Court; conflict resolution; deliberative democracy; constitutional law.

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