On the decay of the sanction procedure A little over a month away, it is difficult to assess extent they may come to have the very interesting statement
Dec. 28, issued by the public room of the Supreme Court in an appeal against a fine imposed by the Superintendency of Electricity and Fuels Shell Chile SACI
The ruling accepts the claim for formal consideration (without going to the legality of the decision), having been unduly prolonged punitive proceedings. The circumstances of the case are compelling: between the formulation of disclaimers by the accused and the resolution of the issue the court claimed infraction left after four years, two months and twenty days "period that exceeds all bounds of reasonableness" and is contrary to "various principles. " This state of affairs gives rise, in the opinion of the Court, "the" decay of punitive administrative procedure ", ie extinction and loss of efficiency", which justifies illegal estimate Penalty and accept the claim.
Is there legal hypothesis of decay of an administrative proceeding? National doctrine recognizes that name leaving only the institution of administrative proceedings (A. Vergara B., "Notes on the revocation as a source of exhaustion of rights and decay of the administrative procedure"), collected in the general law Administrative Procedures, art. 43. This institution which is of fine features of the inactivity of interest, seems to find justification from the perspectives of the administrative act in the loss of interest that requires the abandonment of the procedure. It is doubtful whether such an institution to extend to the very different case scenarios Shell. Had to find a different justification here.
The ruling relies on the idea of \u200b\u200b"due process." As much as the "principle" is an idea not so easy to deploy directly to the administrative field. The Constitution, where the guarantee of due process is formal recognition just include it in the field of judicial safeguards the individual, describing precisely the judicial process (until 1997, when the demands of rationality and justice were extended to the "research" in the context of the reform to the criminal jurisdiction). It is known that the idea of \u200b\u200bdue process arouses great enthusiasm in some writers and some case law has sought to extend to administrative law, but we must remember that their natural environment is not the functioning of administrative bodies. The ruling discussed, without going any further, stressed that "for us to meet before a fair and rational procedure
Case must be timely."
The transposition and extrapolation to field administrative safeguards similar to the court can only be done indirectly, by a record as the standard of reasonableness or the prohibition of arbitrariness, especially if the procedure difficult to properly grasp the facts that they are eligible. Where is that, almost as with criminal guarantees, and import the administrative level must at least be "nuanced."
In any case, how to use the notion of due process was relevant in this case? Not resort to any of the figures that the Chilean domestic procedural law provides. True, outside the notion of "reasonable time" has a growing importance in the control of the judicial activity (perhaps through lack of orders likely to be invoked in Chile, I think especially in the case of art. 6 of the European Convention on Human Rights). But even here the delay of civil and criminal justice in Chile have led to sanctions of ineffective processes. Nor do I have to remember the notable exception to the inevitability of legal deadlines in civil proceedings, are fatal all "except those established for the conduct of court proceedings themselves." What then?
impresentable do not deny that is a situation like the matter discussed: a delay of this nature is difficult to justify. I just wonder on what basis could be shared sitting on the fault finding.
In administrative law, things were not very different from what could be concluded procedural law. A traditional jurisprudence of the Comptroller said that the deadline for the Administration are not fatal and only aiming at the implementation of good administrative order to comply with the functions or powers of the organs of state administration, who can meet their performance at a later date to that established by the laws and regulations (see lately, Opinion 957 of 2010). Procedures Act of 2003 did not alter this state of things is true that the terms "force the authorities and staff to the administration ... and interested in them" (art. 23), but then to have a preclusive effect is a huge distance. Nor do I have to remember that generally the field of administrative silence, Chile's positive law, it is mainly the proceedings initiated at the request of interested, thereby excluding punitive procedures.
The ruling lists many legal rules to support its decision, but I hardly think that come to mind. The notions of efficiency and effectiveness, for example, have the peculiarity to characterize control results, not procedures, and This is what is at stake is precisely the procedure. The notion of speed, on the other hand, has positive recognition in several laws, and is certainly more directly applicable, but it goes without insisting that the legislature has never given any legal consequence for their violation. In the rare
climate of suspicion that has been installed in this country for a while, probity has acquired a certain importance, and hardly surprisingly, the ruling also makes use of it, as if the delay in deciding a case was also a corrupt act. Is it so? The ruling refers to Article 53 of the Basic Law of State Administration, and certainly we agreed that "the issue in fulfilling its legal functions" on the part of management is one of the requirements of general interest. But this rule does not relate to probity, except indirectly (by reading the article. 52), but the general interest. So, no attack on the integrity in the backlog, unless justified by the prominence of particular interest in the general. In other words, just because of the delay, no doubt the public interest suffers, but not for corruption or anything like it. The confusion is unfortunate, though perhaps reveals a useful rule to address the issue.
The statement defines the decay "as termination of an administrative act, caused by supervening circumstances of fact or law affecting the legal content, rendering it useless or outright illegitimate. " You mean the truth to act or is talking about the procedure? It would have been enlightening to know the source of the dogmatic definition.
It seems reasonable to argue that the occurrence of certain circumstances becomes useless certain procedures. If, for eg., in an expropriation proceeding the operation is abandoned in view of which is required to acquire the property, is probably no need to continue with it. The reasoning can be extended to the expiration of certain events, changed circumstances. To not change a lot of example is this, apparently, a similar scenario to the housing by the action of retrocession. Or what happens when closing a street to vehicular traffic, ready to allow passage of a rally, it loses its usefulness since the demonstration was dissolved, annulled or decide to go through another site. It is possible that this kind of reasoning has general application in the administrative level, because the singular administrative acts always justifiable by facts set that can evolve over time.
Taking into account that Procedural Law does not venture into this area (covered only the invalidation and revocation as of extinction of an administrative act unilaterally, without reference to the forfeiture), is here probably a point of great interest in the sentence, but not really new (as was said earlier that the change of circumstances may justify loss of effectiveness of an administrative act, distinguishing such a case of pure illegality: Supreme Court, November 25, 2003,
Urzúa Basaure and others Municipality of Santiago, Lexis Nexis No. 29,017).
But the ruling does not say what the circumstances have changed. Actually reads: "The supervening factual in this case, is excessive time elapsed. " Not talking about any factor which becomes useless sanctioning procedure, only judging the excessiveness of the delay. Did miss something that makes sense to sanction procedure? He spent time. A lot. Nothing happened.
The ruling concludes by explaining why the procedure would be lost meaning. As punitive, address "a prevention-repressor" because the punishment "pursued the discouragement of future similar unlawful conduct, it seeks to repress the unlawful conduct and restoring the legal order previously broken." As I understand (the punitive administrative law is not a specialty practice often), not yet dead dogmatic discussion about the roles of sentence, or a fortiori
about those who meet the administrative penalty, give it to me baffles so easily settled. You can probably admit that seek administrative sanctions in general disincentive goals and suppression of unlawful acts. But to restore the shattered order punishment is always late, so the backlog frustrates that goal (of taking it for good). "The delay of punishment makes sense to lose the repression? The proceedings to avoid just looking for reactions, taken in the immediacy of facts, probably would lack rationality. Per
is , time is not bad here. The question is how much delay is tolerable: return to the starting point. As for the "signs" would tend to think that it is never too late to remind the public that breaking the law is in principle wrong, except that the regulatory change on the contrary, from the standpoint of incentives, I do not especially reassuring signal to argue that breaking the law can legitimately go unpunished.
I think there is a major concern in the sentence, trying to set time limits on the instruction of a procedure penalties. Perhaps we have to construct rules more precise on this matter, but given the difficulty of finding a solid foundation for that purpose, it is clear that the task falls mainly to the legislature, and indeed some of that exists in the bill
(unfortunately filed) referred the penalty procedures, although it is encouraging that the Supreme Court has dared to venture into this area, remember that acted as judge of the background here, so that the technique is difficult to implement the sometimes tasteless control effected Court of Cassation . The argument for the change of circumstances is rich in concerns for administrative law, although it is still a Pandora's box whose consequences we can not measure (like many, I have in mind the problem of "stability" of the resolution of environmental rating.) My main question concerns the case: the circumstances justified a sentence really so bold?
