HUGO MARIO CÓRDOBA QUERUZ

Lawyer
Professional Card No. 312383 of the C.S.J.

Sir:
SECOND JUDGE OF SMALL CLAIMS AND MULTIPLE COMPETENCIES OF
VALLEDUPAR
E. S. D.

REFERENCE TUTELAGE ACTION FILED 2019 00141

HUGO MARIO CORDOBA QUERUZ, Judicial Representative of
ACTUATOR :
EIDER AUGUSTO LÓPEZ BOLAÑO
CARIBBEAN ELECTRIC COMPANY “ELECTRICARIBE” S.A.
ACTUATED :
E.S.P.

HUGO MARIO CÓRDOBA QUERUZ, male, of legal age, licensed lawyer and in
exercise, identified with the citizenship card number 77.034.863 issued in the
city of Valledupar, holder of Professional Card Number 312383 from the Council
Higher Judiciary, known in the proceedings of the Reference, I come
to your office to inform you of the following facts:

The defendant sent the document to my email on 06/13/2019 at 10:17 am.

identified under Consecutive No. 201930268671, where its subject is "Request"
No. RE3110201924708

in the capacity of Legal Representative of Mr. EIDER AUGUSTO LÓPEZ BOLAÑO, male,
equally of legal age, identified with the citizenship ID number 72.291.233,
issued in the city of Barranquilla, with domicile and residence in the city of
Valledupar, with my usual respect, I come to your esteemed Office in the exercise of
the CONSTITUTIONAL ACTION OF TUTELA provided for in Article 86 of the Magna Carta and
regulated by Decrees 2591 of 1991 and 1382 of 2000, against the
Caribbean Electric Company 'ELECTRICARIBE' S.A. E.S.P.
forward ELECTRICRIBE E.S.P.], with the purpose of being sheltered and protected the
Fundamental rights to due process, defense, and petition, which over
which are currently and flagrantly violated by the Acting entity, in
virtue of the following:

1. FACTS AND OMISSIONS:

1.1. My principal is a user [or consumer] of ELECTRICARIBE E.S.P., company

that provides the public residential service of electrical energy in the property
located at Carrera 19A1 No. 10-56 Block 02 Floor 1 Apartment 601,
Neighborhood Los Cortijos of this City, distinguished under NIC 6643916.

1.2. The aforementioned property is inhabited by the people who make up the core.
family of my Prosecutor, comprised of Him, his Wife, and two [02] minor children
Ethan Joshep López De La Hoz [2 years + 9 months] and Thiago David
López De La Hoz [4 years + 4 months]1.

1
The Political Constitution in its article 13 establishes that 'the State will especially protect those individuals who, due to their economic condition,
physical or mental, find themselves in a state of manifest weakness and will sanction the abuses or mistreatment committed against them. In this regard,
The Constitutional Court has identified as subjects of special protection children, single mothers, and people in vulnerable situations.
of disability, to the displaced population, to the elderly, and all those people who due to their situation of manifest weakness place them
in a position of material inequality with respect to the rest of the population; reason for which it considers that belonging to these groups
Population factors have a direct incidence on the intensity of the assessment of harm, given that the conditions of manifest weakness
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the C.S.J.

1.3. The average consumption of kilowatt-hours (kWh) of electricity, in the last

six [06] months, that has been registered in the property inhabited by Prohijado
together with their family nucleus, it has been 237.50 kWh.

1.4. However, for the period from Mar_2019 to Apr_2019, it was observed that
absurdly exaggerated increase in consumption that powerfully attracts attention
the attention, since for this period it went to 14,069 kWh, consumption in principle
inexplicable considering that there are no variations in the conditions
usage, inhabitants and appliances in the property.

1.5. The increase presented in the last billed period represents a

increase of 5.912.40% compared to the average of the last six [06] months,
which allows us to conclude that we are facing an undeniable case of
SIGNIFICANT DEVIATION DUE TO INCREASE IN CONSUMPTION, which
configures when the increase is above 370% compared to the average of
the last six [06] months, as provided by the Commission of
Energy and Gas Regulation–CREG- and the same CONTRACT OF
UNIFORM CONDITIONS FOR THE PROVISION OF SERVICE
PUBLIC DISTRIBUTION and/or MARKETING OF ENERGY
ELECTRIC2.

1.6. Despite this, the entity acted today, flagrantly omitted its duties and obligations.
legal and contractual, noting the evident deviation:inot performed
a preliminary review/analysis in order to detect the unusual consumption, ii] no
investigated the significant deviation of consumption with respect to the
previous consumptions, iii] did not proceed to bill the user taking into account
the average consumption, while establishing the causes that originated the
significant deviation in consumption, and finally, iv] did not inform the user
about such situation. ELECTRICARIBE limited itself to billing and charging for the service to
user, as evidenced in the invoice ID of charges No. 6643916160 15
for a value of $8,133,910,00.

1.7. In light of the facts reported so far, on behalf of my

I filed a complaint by phone with ELECTRICARIBE on the day
April 30, 2019 [to which was assigned the file No. 3110201918460],
in which I requested: [to] initiate the investigation process in order to determine
the causes that led to the significant deviation due to increased consumption,
a provisional invoice will be generated for the period Mar_2019 to
April 2019 based on the normal or average consumption that the user comes from
demanding, as established by the uniform conditions contract for
the provision of the public service of distribution and/or marketing of
electric energy.

The official who handled the phone complaint proceeded to indicate that not
a suspension order would be generated and that, regarding the request for the
provisional billing, it was only possible to attend to it at the physical office of
ELECTRICARIBE in the city where the service is provided.

On May 3, 2019, I filed at the ELECTRICARIBE offices.

Complaint letter No. RE3110201919105, which I attach.
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the C.S.J.

1.10. As a result of the aforementioned claim, ELECTRICARIBE proceeded

On May 8, 2019, to issue service order No. 26284622; order
whose purpose is to conduct a technical visit to the property in order to investigate
and/or collect evidence that allows establishing the causes that originated the
significant increase in electricity consumption.

On May 21, 2019, ELECTRICARIBE contacted me by phone to

indicate that the claim No. 3110201918460 [claim that is
was filed by phone on April 30, 2019 and had been dispatched
unfavorably, since according to service order No. 26229827 dated
April 24, 2019, the reading reported on the billing invoice ID No.
6643916160 15 matches what the meter indicated at the appropriate time.
At this point, Mr. Judge, it is imperative that I make two specific clarifications:
First: There is no discussion whatsoever with ELECTRICARIBE regarding that
there is a difference between the reading recorded on the invoice and the reading that the
has thrown off meter. Second: how ELECTRICARIBE dispatches
unfavorable a a claim made on May 30, 2019 with
a service order issued on April 24, 2019. That is, before
make the claim already ELECTRICARIBE had generated an order of
services to address the complaint.

1.12. On May 23, 2019 [one day before the legal deadlines expire and
constitutional to respond to the claim], ELECTRICARIBE notifies me
via email of the decision contained in the consecutive No. 6285154
with the subject 'NOTIFICATION OF EXTENSION OF SUBMISSION'
RE3110201919105 NIC:6643916”, whose content focuses on the following
This response refers to the claim RE
3110201919105, reported in fact 1.9, ii] that ELECTRICARIBE
requires an additional 30 business days to address the claim in
I comment that the service order No. 26284622 has not yet been executed.
reported in fact 1.1, iv] that the claim will NOT be processed beforehand
on July 8, 2019, which is considered an administrative act that
It contains a procedural decision; no appeal can be made against it.

On May 31, 2019, the defendant sent workers to my home.

Sought, in order to notify you about the suspension of service notice, by
the non-payment of the invoice [amount $8,133,910, 00which is located in
complaint that ELECTRICARIBE has not resolved and has also not allowed
that my godson cancels the average consumption value while it is being resolved
in the background the claim.

1.14. Mr. EIDER AUGUSTO LÓPEZ BOLAÑO has granted me Power to

act

2. VULNERATED and/or THREATENED RIGHTS:

I consider that the actions and omissions displayed by the Defendant violate and
threatens to violate the fundamental constitutional rights of Due Process,
Defense and Right of Petition, as follows:
. With the issuance of the order to suspend the service, the Respondent is
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the C.S.J.

Claim No. RE 3110201919105 [which originated the service order No.

6285154 has not been resolved, therefore TODAY ELECTRICARIBE has not
established the causes that led to the significant deviation due to increase of
consumption, sufficient reason to have the invoice ID of charges No. 6643916160
15 is not final, invoice for which the same defendant demands payment,
under penalty of executing the service suspension.

. With the non-attendance [at least partial] of claim No. RE

3110201919105, the accused is flagrantly violating the law.
fundamental right of petition, as the respondent not only omitted its obligation
legal and contractual to invoice OFFICIALLY the service for the period
March 2019 to April 2019, but did not respond to the request made in that regard
within the claim letter.

. If the service suspension order notified on May 31 is executed

2019, ELECTRICARIBE threatens to violate fundamental rights of
people who have been constitutionally considered as 'subjects of special interest'
protection by the State" since it is of the absolute knowledge of the Defendant,
that in the property subject to the order to suspend the service, there live
permanent manner two [02] children

3. CLAIMS:

Based on the facts and omissions narrated and the considerations presented,
I respectfully request that the Honorable Judge proceed to safeguard in favor of my ward,
the Fundamental Rights invoked previously and consequently it is ordered to
your next favor:

Order the company ELECTRIFICADORA DEL CARIBE 'ELECTRICARIBE'

S.A. E.S.P., within a period of FORTY-EIGHT (48) HOURS, counted from
from the notification of the Judgment that may be issued, proceed to give
response that SOLVES AT DEPTH, IN A CLEAR AND CONGRUENT MANNER
the requested in point No. 3 of the section "CLAIMS" constitutive in the
RE 3110201919105

2. In the same ruling, order the company ELECTRIFICADORA DEL CARIBE

"ELECTRICARIBE" S.A. E.S.P., while executing service order No.
6285154 dated May 8, 2019, do not generate future invoices having
count the differences in the measurement equipment record between two readings
consecutive, but rather do it based on the average consumption of the last
six [6] months.

4. PROVISIONAL MEASURE:

In a measured manner and by virtue of the provisions of Article 7 of Decree 2591 of

1991, also based on the urgency that the case requires and with the purpose of
to avoid greater harm to the Fundamental Right to Due Process, I request you to order, as
PROVISIONAL MEASURE, the following:

1. Order the company ELECTRIFICADORA DEL CARIBE 'ELECTRICARIBE' S.A.

E.S.P. is to refrain from issuing and/or executing the order to suspend the service of
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the C.S.J.

on the occasion of the non-payment of the invoice ID for collection No. 6643916160 15 until further notice
to resolve in depth the claim No. RE 3110201919105, in order to:
effectively and efficiently protect the fundamental right to due process, and
to prevent causing imminent and irreparable harm since in that
The property is permanently inhabited by two children [aged 4 years and 4 months]
respectively], subjects of special protection by the State.

5. CONSIDERATIONS:

Article 23 of the Political Constitution states: "All persons have the right to present
respectful requests to the authorities for reasons of general or particular interest and to obtain prompt
This right, which is classified as a fundamental right, because it ...
through it, a link is established between the administration and the administered
that allows the latter to have a mechanism that serves as a limit to the powers
from that moment, it encourages participation in its management, facilitating the
exercise and the satisfaction of other individual or collective rights.

There is abundant case law from the Court regarding the protection of rights
the people who make requests, where it is noted that the response given to the
The applicant must meet at least the following requirements:

Be timely
2. Resolve the matter thoroughly, clearly, precisely, and in accordance with what was requested.
3. To be informed of the petitioner.

If these requirements are not met, there is a violation of the Law.

Fundamental constitutional right to petition; however, the authority of the Protection Judge is limited.
initially to the verification of the legally established terms to respond
to the requests made by the petitioners in order to ensure a response that
solve what is requested.

Also in relation to the nature, scope, and importance of this right

fundamental to its essential core can be summarized in two aspects:

1. In a prompt response from the authority to which it has been raised

request.

2. In a substantive response to the request made, regardless of whether it is

favorable or unfavorable to the interests of the petitioner.

It must be understood, then, that there is a violation of the core of this right when
the corresponding entity does not issue a response within a period that, in terms of
the Political Constitution adjusts to the notion of 'prompt solution' or when the alleged
the response is limited to evading the request made by not providing a substantive solution to the matter
submitted for your consideration and when it is not notified to the petitioner.

It was in this way that in sentence T-215 of March 28, 2011, being Magistrate
Speaker: MAURICIO GONZALEZ CUERVO, said:
The right of petition established in the Political Constitution in its article 23 is a right
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the S.C.J.

respectful to the authorities for reasons of general or particular interest and to obtain prompt
resolution (...)
The Constitutional Court summarized the following in the previous ruling:

The right of petition is fundamental and decisive for the effectiveness of the mechanisms.
of participatory democracy, while also guaranteeing other constitutional rights, such as the
rights to information, political participation, and freedom of expression; (ii) the core
the essence of the right to petition lies in the prompt and timely resolution of the issue;
the request must be resolved substantively, clearly, timely, precisely, and consistently with what
requested; (iv) the response must occur within a reasonable timeframe, which should be as soon as possible.
as short as possible; (v) the response does not imply acceptance of the request nor is it specified
always in a written response; (vi) this right, as a general rule, applies to entities
state entities, and in some cases to private individuals; (vii) the negative administrative silence, understood
as a mechanism to exhaust the administrative route and access the judicial route, does not satisfy the
fundamental right of petition, as its object is different. On the contrary, silence
administrative is the incontrovertible proof that the right to petition has been violated;
the right to petition is also applicable in the governmental avenue; (ix) the lack of jurisdiction of the
entity before whom it is raised does not exempt it from the duty to respond; and (x) before the presentation
from a request, the public entity must notify its response to the interested party.

In our particular case, this right has been violated because the company
"ELECTRICARIBE" is obligated to provide a partial response to the
Claim No. RE 3110201919105 filed in accordance with the law and resolving
in the background the request; in addition to the fact that what is requested should not respond to a raised petition
by the service user, but the Respondent should have done it ex officio, as
as established by the uniform conditions contract for the provision of the service
public for the distribution and/or commercialization of electric energy, adhesion contract
where the contractual clauses are set by the Defendant.

On the other hand, the CONTRACT OF UNIFORM CONDITIONS FOR SERVICE PROVISION
OF THE PUBLIC SERVICE OF DISTRIBUTION and/or MARKETING OF ENERGY
ELECTRICAL establishes in its clauses that:

Significant deviations in the corresponding billing period will be understood as increases

or reductions in consumption according to the criteria and percentages established below:
1. Significant Deviation due to increased consumption: Deviation will be considered for all users.
significant, if consumption shows an increase of 370% compared to the mentioned average...
[Clause 39A]. [Underlining and bolding own].-

Duties and obligations of the company: 'Make the prior review of the invoices'
to detect abnormal consumption and investigate significant deviations in consumption
compared to previous consumption, at the time of preparing the invoice."[Clause 16A numeral 8].
[Underlining and bolds of one's own].-

BILLING IN CASE OF SIGNIFICANT DEVIATIONS: "While it is established

the cause of consumption deviation, THE COMPANY will issue the document equivalent to the invoice of
public services based on the previous normal consumption of the subscriber user, or with the
average consumption of subscribers or users under similar conditions, either through individual estimation or,
taking into account the load installed on the site. THE COMPANY will inform the subscriber or user, through
of the document equivalent to the utility bill regarding the situation presented.
40A]. [Underline and bold text].-

Given the circumstances, in the case we are dealing with, it is evident that ELECTRICARIBE, being
in the face of a case of significant deviation due to increased consumption, grossly omitted and
deliberately their legal and contractual obligations of:
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the C.S.J.

. Conduct a review/analysis prior to the invoice ID of charges No. 6643916160 15

in order to establish the abnormal consumption, to investigate officially and not
AT THE REQUEST OF THE PART regarding the significant deviation of consumption
from the user's previous consumption. Please note, Your Honor, that with an increase
from 370% we are facing significant deviation due to increase of
consumption, however for the specific case, this deviation was 6,000%.

. Prepare and issue an invoice or equivalent document to the user considering

the average consumption, while establishing the causes that led to the deviation
significant consumption and informed the user about this situation.

Ruling T 281/2012: The importance of public services within the framework of the State
Legal social. The public domestic service of electric energy:

The Constitutional Court has stated on previous occasions that public services
to be found within the framework of the Social State of Law, constitute 'concrete application of
fundamental principle of social solidarity" and are established as the main instrument through which the
that the State fulfills its essential purposes of serving the community, promoting prosperity
general and ensure the effectiveness of constitutional principles and rights." They are the
ideal tool to "achieve social justice and promote conditions of real equality"
effective,” as well as to ensure minimum conditions of material justice.
In accordance with the provisions of Article 365 of the Constitution, the provision of services is guaranteed.
efficiently to all the inhabitants of the national territory, which translates into the
installation, continuity, regularity, and quality of the service.

In the same vein, the Constitutional Court has stated that public services respond
by definition a need of general interest, whose satisfaction cannot be lacking or
discontinuous, as any lack or interruption in them can cause to the
users face serious problems in their dignified living conditions. The provision and continuity
they thus contribute to the efficiency of the service, as this is the only way to address the dictates of the function
administrative established in Article 209 of the Political Constitution.

From the constitutional perspective, the Constitutional Court in ruling T-281 of 2012 has
it is necessary that the user of a public utility company is entitled, among others,
the following guarantees:

1. Right to be treated with dignity by this (art. 1 of the C.P.), insofar as "users
Public services are people, not a resource that can be periodically extracted.
a sum of money.

Right not to be discriminated against by the public utility company (Art. 13 C.P)

3. Right to be clearly and timely informed of your obligations and the

consequences of failing to comply with them (Art. 15 C.P.).

Right to have their resources resolved before the service is cut off.3(Arts. 23 and
29 C.P.).

5. Right to have the legitimate trust of the good faith user preserved in the continuity of
the provision of the service if it has fulfilled its duties (Art. 83 C.P.)

Sentencing T-270/04: ACTION DE GUARDIANSHIP AGAINST COMPANY DE

DOMESTIC PUBLIC SERVICES - Eligibility in special situations for
settle conflicts with users

Based on the previous jurisprudential tracing, it can be inferred that given the importance and the impact
social that public domestic services have in the daily life of all inhabitants of
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the C.S.J.

national territory has made the exceptional intervention of the protection judge necessary, in order to
materialize the rights contained in the higher order understood not only as the
articulated in the Political Charter but also with the integration of international instruments
about human rights that make up the block of constitutionalism. Therefore, it can be affirmed
i) as a general rule, the action is not suitable for resolving disputes between
the user and/or subscriber and the public utility companies, because for that
There are other means of judicial defense, ii) that exceptionally and only considering the
Depending on the circumstances of each case, the tutela action is appropriate to protect rights.
fundamentals of the administered such as honor, the right to petition, the right to
equality, the right to defense and due process when they have been threatened or
harmed by public utility companies.

5. FUNDAMENTALS OF LAW:

I base this Constitutional Action on:

. Articles 1, 13, 23, 29, and 86 of the Political Constitution of 1991 and its Decrees
regulatory 2591 of 1991, 306 of 1992 and 1382 of 2000; likewise in the
Article 23 of the Magna Carta as well as in Statutory Law 1751 of 2015.

. UNIFORM CONDITIONS CONTRACT FOR THE PROVISION OF

PUBLIC SERVICE OF DISTRIBUTION and/or MARKETING OF
ELECTRIC ENERGY.

. Judgments T281/2012 and T270/2004.

6. TESTS:

In order to establish the violation of the invoked rights, I request Sir

The judge is requested to have and decree the following as evidence:

6.1. DOCUMENTARIES:

. Simple copy of complaint No. RE 3110201919105 filed on 03/05/2019.

. Invoice with collection ID No. 6643916160 15. [05 pages].
. Simple copy of the civil birth registry NUIP 1.043.700.808 in the name of
Ethan Joshep López De La Hoz. [01 folio].
. Simple copy of the civil birth record NUIP 1.043.468.110 in the name of
Thiago David López De La Hoz. [01 folio].
. Simple copy of the Consecutive Administrative Act No. 6285154, whose subject is:
Notification Extension of Term Filed Re3110201919105 NIC: 6643916.
[01 folio].
. Simple copy of the suspension notice dated 31/05/2019. [01 sheet].

7. ANNEXES:

. Power to act. One [01] page

. The documents mentioned in the section on evidence. There are nine [09] pages.
. Copy of the tutela action for transfer to the Respondent
. Copy of the amparo action for filing with the Court

8. OATH:
 HUGO MARIO CÓRDOBA QUERUZ
Lawyer
Professional Card No. 312383 of the C.S.J.

I declare under the gravity of the Oath, that I have not submitted another guardianship for the same.
facts or rights that I present through this writing, before no other authority
judicial.

9. NOTIFICATIONS:

. To the Respondent, at Calle 17 No. 13–67 Sion Building in the City of Valledupar.

. The undersigned at Calle 13B Bis No. 16–34 Office 101 [interior] Alfonso neighborhood
López en the city of Valledupar e-mail
abogado_hugomariocordoba@hotmail.com

Sincerely,

HUGO MARIO CORDOBA QUERUZ

C. C. No. 77.034.863 of Vpar.
TP No. 312383 of the CSJ.