Summary
The nature that surrounds each man and in the midst of which he develops his life is not a permanent and immutable element doomed to last without altering, as may have been thought at some historical moment.
Resources are perishable, expendable and present the danger of succumbing to the corrosive and exhausting acts of humans, thus making the tension between development and environmental degradation evident.
It is obvious that, apart from the great catastrophic phenomena, unfortunately not so infrequent today, the different Administrations, especially the local ones, have been increasingly pushed to dispatch daily battles in environmental matters on the most diverse fronts, such as water pollution, atmospheric pollution, or even effects on privately owned assets, problems whose solution requires technical capacity, means and good management of resources. And it is here where the most diverse deficiencies and shortcomings begin to be found when facing this issue, due largely to the lack of useful instruments, both in the legal and technical order, and why not say it, lack of serious will and coordination in many cases, which cannot overcome the image of a fragmented Administration.
But it should not be forgotten that environmental protection is an extremely complex task, thus imposing the difficult task of scrutinizing the instruments and guarantees that the Law provides in order to achieve this cause, and this without losing sight of the multidisciplinary nature that their study suggests.
Environmental administrative responsibility as a legal institution.
1.1 Administrative responsibility. Special reference to the contravention system.
According to the dictionary of the Royal Spanish Academy, the term "Responsibility" indicates the "obligation to repair and satisfy a loss or damage." Another meaning, according to the Academy, is that which refers to responsibility as "the debt or obligation that results from a possible mistake."
Legally, the term admits two main concepts: the ability to respond to certain acts in the abstract, and the need to respond to other specific and attributable to a certain subject. In the first case we speak, for example, of the one that has in the performance of certain legal acts an adult. The second case, on the other hand, refers to the consequences for acts carried out, that is, responsibility is understood as the situation that concerns a subject on whom the law imposes the reparation of a harmful event, which affects a protected interest.
In the field of civil law, a distinction is made between contractual liability, which occurs when the obligation to repair the damage caused derives from the breach of agreed obligations established in a contract entered into within the framework of a singular legal relationship, and non-contractual liability, which is It generates when the obligation to compensate the damage derives from the action or omission that violates the general principle of not causing harm to another.
This extra-contractual liability, an original and proper figure of Civil Law, in turn can be of two types: direct, that is, that produced by own and indirect, that produced by acts of people or things whose direction or custody is exercised by the responsible party.
But administrative law is also aware of this institution and after much evolution in most countries a thesis is accepted, autonomous from civil law, of the responsibility of the State for the damages caused by the activity of its actions in the administered ones.
The recognition and effective application of a general principle of patrimonial responsibility of the public powers constitute one of the masterpieces within the system of legal relations existing between the Administration and the citizens. Well, in effect, today it is admitted without dispute that to subject the public power to the rule of law, judicial controls of legality are not enough, nor are extrajudicial controls of a political or social nature. It is also necessary that the Administration compensate or repair the damages that its activities cause to individuals.
The role of responsibility as a constitutional principle of the rule of law refers to the effectiveness of the necessary submission of Power to the law. Such submission includes, mainly, the control of the legality of the acts of the bodies that exercise power -interdiction of arbitrariness-, and by way of consequence, but no less important, the obligation to compensate the damages caused. for illegal activity.
The repressive power of the State has manifested itself during its development in two ways: The Punitive Power that is made effective through the use of Criminal Law and the Sanctioning Power of the Administration that does so from the Sanctioning Administrative Law, which by regulating relations of the State with the citizens, they belong to Public Law.
The sanctioning power of the Administration is recognized as the attribution of a legal power to demand responsibility and sanction for the commission of actions or omissions contrary to the Sanctioning Administrative Law.
This administrative sanction is clearly explained through the concept given by García de Enterría when he points out that for such it is considered “… the evil inflicted by the Administration on an administered person as a result of illegal conduct. That evil (afflictive purpose of the sanction) will always consist in the deprivation of a good or a right (revocation of a favorable act, loss of an expectation or a right, imposition of an obligation to pay a fine…) "
In this sense, the circumstance that the role of responsibility is a control mechanism of the Power, explains the need for special rules - in consideration of the public interest that the activity entails - and the need for the same order of courts to make effective both the control of legality and the compensation due for the damages caused. However, the principle of the patrimonial responsibility of the State involves an affectation of the Public Power, hence the bodies that are responsible for its exercise have been removed on many occasions from its exhaustive and effective execution.
Modern administrative law contemplates principles that support a liability system even broader than that provided for in civil law, since liability for lawful activity of the Administration is provided. Undoubtedly a paradoxical situation that arises, since the non-application of the rules of civil law for the determination of the responsibility of the State that was previously justified to create situations of exception with respect to it, today is justified to avoid a limitation or attenuation of its responsibility.
The existence of its own system of public law responsibility is evident in expressions such as Cassagne's when he says that “nowadays the application of schemes and solutions from civil law have aggravated the difficulties that arise around the responsibility of the State and its agents ”.
However, it must be recognized that even in administrative law systems, the absence of normative regulation of State responsibility has given rise to its flexibility, attenuation and exceptionality. The compensation by the State for damages caused to individuals by their activity will depend on the degree of development of the relationships that arise between law and power, as the former stands as the main limitation to the exercise of the latter. Indeed, the attitude of the Power to the limit implied by the imposition of responsibility for its exercise, undoubtedly depends on the greater or lesser development of the rule of law.
In this sense, although administrative responsibility is traditionally analyzed from the perspective of the administered, as a mechanism that guarantees the integrity of their assets, the truth is that this is not their only function.
Administrative responsibility fulfills a dual function because, in addition to being a guaranteed guarantee in favor of the individual to obtain compensation for the damage caused by the State, it is also shown, especially in cases of faulty responsibility, as a means of controlling the own Administration. Responsibility thus plays a formative or "pedagogical" role on the actions of the Administration since it imposes the guidelines that should govern its behavior; responsibility contributes to the better functioning of the State.
Indeed, from the moment in which the State is obliged to compensate a damage by virtue of its responsibility, constitutionally or legally enshrined, it is obliged to try to adapt its actions in order not to cause that damage in the future. In this way, responsibility achieves, and this is its control function, that the administration moderates its actions in order to avoid being subsequently convicted.
1.1.1 Conceptual delimitation of liability
Administrative
According to a traditional principle of law, anyone who causes harm to another must repair it. This obligation of reparation translates into the responsibility of the cause of the damage, which can be criminal or civil.
Criminal liability occurs when the act causing the damage consists of a conduct that the State has classified as a crime and translates into a responsibility towards the State, which, consequently, imposes a penalty on the person responsible to repair the social damage caused by their unlawful conduct. In turn, civil liability translates into the obligation to repair the damage on the part of its cause against the person specifically injured and no longer against the society represented by the State. So the same event can give rise to both criminal and civil liability.
However, it must be taken into account that criminal responsibility is eminently subjective and personal and is only applicable to the natural person who has committed the wrongful act. In this way, legal persons do not incur this kind of responsibility, and therefore, neither do public entities. As a consequence of the foregoing, if an official acts unlawfully, criminal responsibility falls on him and not on the public legal person on whose behalf he acts.
Therefore, according to Libardo Rodríguez “when talking about administrative responsibility, only reference is made to the civil liability of public persons”, that is, public persons are responsible when they cause damage as a result of an irregular activity, which constitutes a failure of the service they provide.
In other words, the Administration should only respond when a deficiency is proven in the development of the service. Therefore, if the exercise of the function does not imply any deficiency or irregularity, there will be no place for liability.
For Benoit “administrative responsibility is a right of the individual to be compensated for any unjust injury, right of which, administrative responsibility constitutes the sanction; In other words, administrative responsibility would be, in essence, the sanction of a pre-existing obligation of the Administration to ensure the equality of citizens before public charges ”.
In this case, liability carries a penalty for inappropriate behavior, and it also becomes an objective mechanism of reparation, which is put into operation only and to the extent that a property damage has occurred.
That is why the jurisprudence repeatedly affirms that the illegality, fraud, fault, negligence of the Administration is not precise, since in administrative responsibility the requirements are limited to the existence of damage and the relationship of cause to effect between this and the operation of public services, without the classical element of guilt having to intervene.
For his part, Luis Cosculluela states that administrative responsibility is generated whenever the damage is caused by the operation (normal or abnormal) of public services, understood in a broad sense, that is, as an activity of any nature of the Public Administration, and also in cases of pure inactivity in which it breaches an obligation to act.
The responsibility of the Public Administration does not eliminate that of the official or authority directly causing the damage, but the injured individual may choose to demand the direct responsibility of the Administration and it corresponds to this, to exercise the action of return against those officials or authorities, to compensate of the expenses caused by the duty to indemnify.
The direct responsibility of the Administration only excludes cases in which the damage occurs as a consequence of force majeure.
However, Guido Zanobini affirms that in administrative law, both active subjects and taxpayers of administrative authority may incur liability, referring both to the State, as well as to natural persons and other subjects of private law, stating that there are substantial differences that divide the responsibility of the former from that of the latter.
The principle of the responsibility of the State and public entities for damages caused to individuals, due to the illegitimate activity of the bodies themselves, is based on the ethical and legal character of the State, which cannot commit illegal acts since its function is that of creating the Law.
The responsibility of public entities in no case can dispense with a harmful event since there may be a liability derived from a harmful event even when it is the consequence of a lawful and legitimate activity. Regarding the content of the responsibility of public entities, it is specified exclusively in the obligation to compensate the damage.
On the other hand, the non-observance of any duty of individuals towards the public Administration constitutes an illegal act of administrative law and is the cause of the offender's responsibility towards the entity that owns the interest protected by the norm that imposes the duty.
Said responsibility is not limited to the only case in which the non-observance had produced damage but extends to any disobedience, to a law or an administrative act; where the content of the responsibility of these individuals is not only manifested in the obligation to compensate the damage, but with it or in its place, it can import other obligations, among which is mainly that of suffering punitive sanctions, of an administrative nature or criminal, therefore, administrative responsibility is intended to apply penalties that are not yet part of criminal law because they are applied by the State in its judicial function, but in the exercise of administrative authority.
1.1.2 Administrative responsibility-contravention relationship.
Administrative Law arises to legally protect the relations between the Public Administration and the administered ones, the power to sanction assigned by the State to it to demand responsibility for actions that are harmful to the public interests of administrative management, must constitute a regulated power, inasmuch as it involves the restriction of goods and rights of citizens, that is, that the exercise of the Sanctioning Power of the Administration subject to certain procedural rules, must also constitute a guarantee that concerns the principle of Legality, that is, that the administrative activity to sanction must be strictly formalized by means of a Law that regulates it,because on occasions it happens that many of the contraventional provisions are not directed towards the entire population (but towards certain sectors), promoting a partial disclosure of them, which does not always cover all risk groups, leaving spaces in which Ignorance of these rules can cause not only their infringement, but also the defenselessness of citizens before the reaction of the Administration and therefore, the violation of the principle of Legality due to lack of certainty, creating a precedent for the principle to cover the matter And it is that, the administered must know, what would be the possible infraction and the reaction that the Administration has to expect for it, but in turn this infraction must respond to a legal reservation on the object of regulation,for the liability requirement to be legitimate.
For many authors, talking about Contraventional Law is talking about Administrative Penalty Law and vice versa. Eduardo Jorge Prats, defines administrative sanctions as «an act issued through the corresponding procedure that imposes a legal evil on the administered, depriving, limiting or restricting part of their rights or imposing certain obligations to do or not to do, as a consequence of the breach of a legally predetermined obligation ”.
Contravention is punishable by light penalties, also distinguished by the lesser importance of its results. Two groups of offenses are usually differentiated: One constituted by what are called criminal offenses or venial offenses, which coincide in their essence with crimes, are of less importance than these, thus minor thefts, injuries that take a short time to heal, etc., to the second group belong the offenses that are characterized by the absence of intention, that do not cause harm and are punished with the preventive purpose of avoiding possible evils; These are normally called offenses or offenses of a regulatory nature, since they generally violate police, hygiene, etc. standards established in favor of the community. "
Given the quasi-criminal nature of the administrative sanctioning activity, one of the essential elements for the existence of the offense is the guilt of the sanctioned person who transgressed the administrative rules, which brings with it the requirement of responsibility for non-compliance, which is specified in through administrative sanctions (administrative offenses).
1.1.3 The administrative offense system
The term contravention according to the Encyclopedia Salvat para todos, is defined as: “Contravene an order or a precept contained in a legal norm”.
The way in which each country structures its Contraventional System will depend on various circumstances, for example, the traditional legal element, the political system, the ethnic and cultural issue, the extension and territorial organization of the State, the criminal and administrative policy that is traced, the economic factor for the qualification of institutions and specialized personnel, the organizational possibilities of the Judicial sector to assume these processes, etc.
In this sense, we can state that various models of legal protection in infringement matters have been developed, which is manifested in comparative law studies in Latin America, because while some countries have maintained the treatment of violations within the Penal Code, subject to the framework institutional and guarantor of Criminal Law, others have extracted them from the Criminal Code, but have developed numerous variants for its application.
However, when the Contraventional Law is extracted from the Criminal Law, its norms are elaborated and approved in the executive instances of the state power, because these are the ones that regulate the protection of assets linked to the public interest within the framework of administrative management; and in the cases in which the violations are part of the Penal Code, the norms that regulate them also refer to Regulations and legal-administrative instruments that are the result of the creation of the Administration as a legislative body.
When referring to the sanctioning power of the Administration, an allusion is made to the infringement figure, to the imposition of a sanction in the event of an act and the specific application of this sanction, indicating that the police activity, inherent to any administration, is its own. enforcement and generality, not being effective if the administration is deprived of sanctioning power. Although there is only one ius puniendi, there are two valid and concrete manifestations, which the legislator has reserved for the regulation of different aspects of human conduct.
Although the identity of the nature of administrative offenses and criminal offenses is mostly admitted, the majority of the doctrine maintains that the administrative sanctioning power is one of the expressions of the punitive power of the State.
García de Enterría, Eduardo. "The Legal Problem of administrative sanctions" RAP 10, 1976, Page 399.
The definition of contravention was taken from The Encyclopedia "Salvat para todos", Salvat SA Editions Italy, Spain, 1965, Volume 4, Page 9.
However We also consult other sources such as the Reasoned Dictionary of Mexican Legislation and Jurisprudence. Volume I Second Edition, Editorial Lihto, Impresiones Macabsa, SA de CV 1992. The Publisher in turn refers to the source used for this definition (Escriche Dictionary) of Dr. Joaquín Escriche, Honorary Magistrate of the Madrid Court 1905) that It defines it as: The fault that one commits by not fulfilling his word or his duties and the transgression or violation of an order, rather due to incompetence or negligence than due to malice
. It is also said that he who acts against it or in fraud of it contravenes the Law. He who does what it prohibits is acting against the Law; and she is acting in fraud of the Law who, apparently respecting the words of the Law, basically attacks its disposition. " Because it is more complete, the first was the one that we included in the text of the work.
Cf. Penal Codes of Uruguay, Paraguay, Chile, Venezuela, Guatemala, Costa Rica, Honduras, etc. all contain the last book dedicated to misdemeanors or offenses, subject to Criminal Procedure.
Cf. Contraventional legislation of Argentina, Brazil, Bolivia, Cuba, Mexico. In all these countries, the offending norms are contained in special Laws, although their application may be subject to several variants: Administrative with Judicial control (Argentina), Judicial with Judicial control (Brazil) and Administrative with Administrative control (Cuba), in this regard see Chapter III of this work.
