Law 2586 of 2026 brought a series of profound changes to the customs sanctions regime. Among them was the incorporation of due diligence as both a principle and a cause for exoneration from liability. After years of applying a predominantly objective regime, culpability is once again being considered in the procedure.
Article 2 incorporates due diligence as a criterion for rebutting guilt in customs sanction proceedings. Consequently, the person under investigation may be exonerated from liability if they demonstrate that they acted with due care; however, it is their responsibility to provide the evidence that proves such diligent conduct.
Due diligence requires demonstrating the prior adoption of specific measures to prevent and manage the risks associated with the customs operation. In accordance with paragraph 9 of Article 23, which establishes the grounds for exemption from liability, these measures must be effective, timely, verifiable, and evaluable, and accompanied by monitoring and auditing mechanisms that allow for demonstrating their actual implementation prior to the events under investigation.
The law provides an initial answer regarding what must be proven. Simply invoking good faith is insufficient. Exoneration depends on a dossier compiled before the transaction, containing documented, verifiable, and evaluable actions.
Despite the above, a tension remains. Article 15 stipulates that the punishable conduct will be applied to the customs user who fails to comply with the obligations set forth in Decree 1165 of 2019 and other foreign trade regulations, “regardless of the analysis of culpability and without prejudice to the events exempting from liability provided for in this law.”
The origin of the contradiction lies in the legislative process. The wording of Article 15 appeared in the bill submitted by the Government, whose preamble did not include due diligence and dispensed with the analysis of culpability, arguing that “customs activity and responsibility are regulated and expressly supported by the obligations and procedures described in customs regulations. Consequently, given that customs users are professionals and are aware of the rules to which they are subject, in the event of non-compliance with such obligations, only the exemptions from liability provided for by law are admissible, including due diligence, which is the structural element of subjective liability.”
The principle was introduced through a second bill, a parliamentary initiative. Its authors objected that this approach overwhelms the administration by pursuing formal errors made by legitimate companies and discourages investment in compliance, since it "punishes the negligent and the diligent equally." Their proposal relieved the DIAN (Colombian Tax and Customs Directorate) of the burden of proving intent in each case and established due diligence as an objective standard, placing the burden on the investigated party. This would facilitate swift sanctions for those who fail to demonstrate controls, penalize structures that cannot show traceability or audits, and create an incentive for operators who invest in internal controls.
Following the consolidation of both initiatives, the joint report retained both approaches. On the one hand, it incorporated due diligence as grounds for exoneration from liability; on the other, it maintained in Article 15 the rule according to which customs infractions are applied without regard to culpability. This coexistence of regulations gave rise to the contradiction that persists in the final text.
From the legal framework governing due diligence, one could conclude that an analysis of culpability does indeed exist. Few pieces of evidence are more telling regarding the absence of guilt or intent than proof of prior, verifiable, and evaluable due diligence. When the person under investigation invokes the grounds for prosecution and the authority rules on them, it is undeniably assessing their conduct and, consequently, their culpability. The wording of Article 15 remains, and with it the contradiction, but exoneration based on due diligence is expressly provided for in the law.
The difficulty then shifts to the content of the standard, because to grant an exemption, it will be necessary to determine how much due diligence was required, an analysis that will also involve a judgment on fault. Although the regulation offers some criteria, several aspects still need to be clarified, and the scope of this standard will likely be determined on a case-by-case basis by the Colombian Tax and Customs Authority (DIAN), international trade operators, and judges.
In this new scenario, companies will need to strengthen the documentary traceability of their customs operations, maintain sufficient evidence of the controls applied, and promptly record the decisions, verifications, and corrective measures taken. Complete, organized, and verifiable documentation will not only allow them to identify and manage risks, but also demonstrate, in the event of any action by the customs authority, that the company acted with due diligence.
Column written by José Cubillos, lawyer in our Customs and Exchange Law unit, for Legal Affairs: Due diligence in the new customs sanctions regime
