General Aspects of Administrative Resources:
Decree 500/991 substantially modifies the rules contained in Decree 640/973 of 8/8/73. In its section II, title III the Disc. 500/991 regulates in two chapters and twenty-six articles (142 to 167), what is related to administrative resources as an important aspect in itself with regard to the defense and guarantee of human rights in general, as well as the correct application of the constitutional principle of good administration that arises from the harmonious and contextual interpretation of articles 60 inc.
1 and 311 inc. 2. The Disc. 500/991 has a primary purpose of clarifying and interpreting in the most harmonious way possible within the limits of the regulatory power, since being a decree of the Executive Power, it cannot authentically interpret the Constitution and legal norms that they have a higher hierarchy, and therefore greater value and strength.
Historical Synthesis of Administrative Resources
In the 1952 Constitution, the issue of administrative resources was regulated for the first time at the constitutional level, seeking to achieve a single and uniform system for the entire Public Administration, since previously there were various laws that in turn established different criteria, that is, until 1952 matters relating to resources were the subject of ordinary law.
The 1967 Constitution maintained the administrative appeals regime of the 1952 Constitution. At the legislative level, three laws were enacted: Law 12,243 of 12/20/55, which established that the administrative terms or deadlines that expire on a holiday shall be they will extend until the next business day. Law 13.032 of 12/7/61, which established the term of ninety days for the procedures, for the proper instruction of the matter. And the law 13,318 of 12/28/64 by which the term was established in sixty consecutive days to file the annulment action before the Administrative Contentious Court.
During the de facto period, the Executive Power issued the so-called Institutional Act No. 8 dated 7/1/77, which imposed a different regime on administrative appeals, providing for three types of appeals: revocation, hierarchical and nullity. The term to file the appeals was twenty days from the day following the personal notification or its publication in the Official Gazette.
Finally, the deadline for the Administration to decide was seventy days and the annulment action had to be filed within twenty days from the personal notification or formal publication.
Subsequently, the Executive Branch issued Institutional Act No. 12 of 11/10/81 in whose transitory provision letter A established that as long as the organic law of the Contentious-Administrative Tribunal was not issued, the regulations of Section XVII would continue to be in force. of the 1967 Constitution and its regulations.
Under the provisions of Institutional Act No. 12, Decree-Law No. 15,524 dated 8/9/84 was enacted, which established the following system:
- a) the appeals were for revocation, hierarchical and annulment b) the term to file appeals was twenty calendar days c) the term that the Administration had to resolve appeals was sixty days if only the appeal was filed revocation, of one hundred and twenty days if the appeals for revocation and hierarchical subsidy were filed, or revocation and subsidiary of annulment before the Executive Power, of one hundred and eighty days in cases of joint filing of appeals for revocation, hierarchical and annulment.d) finally the application for annulment before the Contentious Court
Administrative had to be filed within sixty peremptory days following the exhaustion of administrative proceedings.
As a consequence of the agreements of the Naval Club, the Executive Power issued Institutional Act No. 19 dated 8/15/84 by which it was resolved to keep the provisions of Sections XV and XVII of the Constitution in abeyance insofar as they do not oppose the Organic laws of the Judiciary and the Administrative Litigation Tribunal.
Once the constitutional government was installed on 3/1/85, Parliament proceeded to validate the legislative acts of the Council of State (legislative body of the de facto regime) by Law 15,738 dated 3/13/85 and among those laws it validated the Decree -Law No 15.524. But once Institutional Act No. 19 expired on 3/1/86, Section XVII of the Constitution came into force again, and consequently its administrative appeals regime, and Decree-Law No. 15,524 (arts. 32 to 37) was abrogated. by supervening opposition.
Finally, the issue was remedied by Law 15,869 dated 6/22/87.
Administrative Appeal Concept
For there to be an administrative appeal, there must be an administrative act, this is a manifestation of the will of the Administration that produces a legal effect that can be a decree or a resolution.
The administrative act can be illegitimate, contrary to the Constitution, laws, or decrees or regulations, but it can also be inappropriate (with a problem of legality) or inconvenient (with a problem of merit).
Before an administrative act the Administration, any natural or legal person, public or private, has the right, the faculty, the power to file an administrative appeal for reasons of legality or merit.
In the appeal there is a direct, personal and legitimate interest on the part of the appellant, and the Administration is obliged to pronounce itself. The appeal allows the exhaustion of the administrative procedure and consequently the annulment action may be initiated before the Administrative Litigation Court. The silence of the Administration will imply a fictitious refusal.
Administrative Resources Classes
National scope
The Disc. 500/991 in line with the provisions of art. 317 of the Constitution and art. 4 of Law 15,869 refers to three classes of administrative appeals: the appeal for revocation, the hierarchical appeal, and the appeal for annulment.
Revocation resource
The art. 317 of the Constitution provides that “administrative acts may be challenged with an appeal for revocation before the same authority that has complied with them within a period of ten days from the day following their personal notification, if applicable, or their publication in the Official Gazette. "
The art. 142 of Disc. 500/991 prescribes that "administrative, express or tacit acts may be challenged with the appeal for revocation before the body that issued them."
It means that the appeal for revocation corresponds to it being filed against an administrative act issued by any organ of the State. It is brought before the body that dictated the act regardless of its hierarchy.
For example, if the act emanates from the ANCAP Board of Directors, the appeal for revocation corresponds to the person who issued it, that is, to the ANCAP Board.
Correa Freitas maintains that “the name of the appeal for revocation is not exact and in reality it should be called an appeal for reconsideration, because in reality the object of the appeal does not have to be only the revocation of the administrative act, but the reform or replacement may be requested. of the administrative act. "
This appeal can be filed both for reasons of legality and for reasons of merit, that is, the appellant can allege not only the illegitimacy of the contested act, but also the lack of opportunity or convenience for it to be issued and who must resolve it It will do so for reasons of legality or merit.
Hierarchical Resource
The art. 317 of the Constitution says "when the administrative act has been carried out by an authority subject to hierarchies, it may be challenged, in addition to the hierarchical appeal, which must be filed jointly and in a subsidiary manner, to the appeal for revocation"
The art. 142 of Disc. 500/991 prescribes, "when the administrative act has been issued by a body subject to hierarchy, it may be challenged, in addition, with the hierarchical appeal to the highest hierarch of said body, which must be filed jointly and in a subsidiary manner to the appeal revocation ”.
This appeal must then be filed jointly and alternatively in the same writing with the appeal for revocation in those cases in which the administrative act has been issued by a body subject to hierarchy. Greater technical perfection must be taken into account in terms of the terms used with respect to Disc. 640/973, since in its art. 120 spoke of "authority subject to hierarchy" with respect to the hierarchical resource, while in Dto. 500/991 in the two aforementioned hypotheses, there is talk of “before the same body that issued them” and “body subject to hierarchy”, which is more adjusted because the administrative acts must be attributed to the bodies and not to the holders of those organs.
An important solution that was already enshrined in art. 136 of Disc. 640/973 is established in inc. third of art. 142 of Disc. 500/991 insofar as it maintains that the hierarchical appeal must be filed "before the highest hierarch of the body."
This supposes the consecration of the principle of disregard by which intermediate hierarchies are skipped within the organic system and the appeal is raised before the highest hierarch because otherwise the exhaustion of the administrative route would be endless and slow. For example, if the act emanates from the General Management of UTE, it is appropriate to file the appeal for revocation before the person who issued the act, in this case the General Management of UTE and the hierarchical appeal in subsidy in the same letter before the highest hierarch the Board of UTE, because in the Autonomous Entities the link with respect to the Executive Power is broken, it is the maximum degree of decentralization.
This appeal can be filed for reasons of legality and merit, and whoever must resolve it will also do so for reasons of legality or merit.
Appeal for Annulment
The art. 317 of the Constitution says “when the act comes from an authority that according to its statute is subject to administrative protection, it may be challenged for the causes of nullity provided for in art. 309 by means of an appeal for annulment before the Executive Power, which must be filed jointly and in a subsidiary manner to the appeal for revocation. "
The art. 142 of Disc. 500/991 maintains “when the administrative act has been dictated by the Board of Directors or General Director of a Decentralized Service, the appeal for annulment may also be filed jointly and subsidiary to the revocation before the Executive Power, which must be based on the same causes of invalidity provided for in art. 309 of the Constitution. "
The causes of invalidity established by art. 309 of the Constitution are that the final act has been dictated with abuse or misuse of power (that a spurious interest is pursued outside the purpose of the service, or that a disproportionate sanction is applied with respect to the offense committed), or contrary to a rule of law (be it constitutional, legal, regulatory, contractual norm).
The annulment appeal is like the hierarchical one, a subsidiary appeal that must be filed jointly with the revocation appeal before the Executive Power in cases where the act emanates from a Decentralized Service (body subject to administrative supervision, not hierarchy of the Executive Power) It is not the maximum degree of decentralization.
Unlike what happens in revocation and hierarchical appeals, the annulment appeal may only be founded for reasons of legality because the act is contrary to a rule of law or has been dictated with abuse or misuse of power, and the Executive Power You can only resolve it for reasons of legality.
For example, if the act emanates from the ANTEL Board of Directors, it is appropriate to file the revocation appeals before the aforementioned Board and the annulment appeal before the Executive Branch in subsidy and in the same letter for being a decentralized service.
If the act emanates from the General Management of ANTEL, the three appeals (revocation before the Management, hierarchical before the Board and annulment before the Executive Power) jointly and subsidiary in the same writing.
Departmental scope
The appeal for reversal is filed before the same body that issued the act regardless of its hierarchy, in accordance with the provisions for the appeal for revocation at the national level. The appeal is filed before the highest hierarch of the body by application of the principle of omisso medio, skipping all the intermediate hierarchies, according to what is established for the hierarchical appeal at the national level in subsidy and in the same writing (appeal before the Mayor).
They can be filed for reasons of legality and merit, and whoever must resolve them will also do so for reasons of legality and merit. For example, if the act is dictated by the Mayor, it corresponds to file the appeal for reconsideration before the person who dictated it (before the Mayor), if the act emanates from the Traffic Directorate, it corresponds to file the appeals for reconsideration before whoever dictated it (Transit Directorate) and of appeal in subsidy before the highest hierarch (the Intendant).
The art. 317 of the Constitution says "when the act emanates from an organ of the Departmental Governments, it may be challenged with remedies for reconsideration and appeal in the manner determined by law."
Forms of Interposition
The Disc. 500/991 establishes that they must be filed in writing, admitting as a novelty that they can be filed in writing on plain paper, form or printed, certified telegram with delivery notice, telex, fax, any other suitable means, by application of the principle of informality in favor of the administrated that is enshrined in art. 9 of Disc. and the principle of flexibility and the absence of ritualism that is enshrined in art. 8 of the Disc.
Written on plain paper
If the appeal is filed in writing on plain paper, the formalities provided for by art. 119 of Disc. 500/991 must contain:
- a) name and address of the appellant b) the facts and legal grounds set out clearly and precisely c) the specific request is made, formulated with all precision (if the revocation of the act or its replacement by another is requested)
- d) It must be indicated with all precision which administrative act is being appealed, identifying it with the corresponding number (if any) and the date of issue
Every document containing an appeal must bear a legal signature as well as the documents that are presented in the processing of the file. If it is filed without the legal signature, the Administration grants a period of ten days for the omission to be rectified, and failing that, it will be deemed not presented.
As for the justification based on Judgment No. 98 of the Administrative Litigation Tribunal of 1956, it is prescribed that "it is a right of the appellant that may be fulfilled after the filing of the appeal at any time while the matter is pending resolution."
Cassinelli maintains that “ art. 317 of the Constitution does not condition the viability of administrative appeals to any burden of substantiating the petition, it is enough that the will to challenge the act is expressed even if the reasons for the challenge are not stated so that the appeal must be constitutionally considered as having been filed ”.
Form or Printed
This form was foreseen for the eventuality that the Administration may establish forms for special and repetitive situations that do not offer major difficulties, such as appealing against the setting of a fine or a surcharge in a collection office, etc. With This seeks to simplify as much as possible the access of the administrator to a quick and simple decision.
Collated Telegram, Telex, Fax, Etc.
Given the technological advance, it is necessary to admit new forms of filing administrative appeals, without prejudice to legal security and the guarantees of those administered, therefore art. 154 of Disc. 500/991 expressly supports these forms.
In these cases, the appellant will have a period of ten business days counting from the one following receipt of the corresponding document by the Administration, to ratify in writing with a legal signature their willingness to appeal. If he does not do so without just cause, the appeal will be considered as not presented (art. 157 Dto. 500/991).
The inc. 2 of art. 157 establishes that for reasons of legal certainty and the preservation of documentation in cases of appeals submitted by telegram, telex, fax, etc., it must be reproduced immediately through the relevant means (photocopy) and form the corresponding file.
The art. 159 of Disc. 500/991 establishes that whatever the documentary form used, the receiving official must write down the date of receipt of the administrative appeal under his signature.
Term to File Appeals
The general principle is that the appeal or appeals, if there are more than one, must be filed within ten calendar days following the personal notification, if applicable, or its publication in the Official Gazette.
The deadline for filing administrative appeals is suspended during Judicial Fairs and Tourism or Easter Week. If the term expires on a holiday, it is extended to the next business day, according to the wording of art. 144 of Disc. 500/991 in line with the provisions of art. 10 of Law 15,869 dated 6/22/87.
The expression "running days" that appears in art. 4 of Law 15,869 and in art. 142 of Disc. 500/991 means that Saturdays, Sundays and holidays must be counted.
If the administrative act was not notified personally (resolution) or published in the Official Gazette (decree) there is no time limit for filing any appeal in accordance with the provisions of art. 142 inc. 2 of the Disc. 500/991.
The art. 143 of Disc. 500/991 and art. 1135 of the TOFUP (Dto. 200/997) establish that in no case the informal knowledge of the harmful act on the part of the interested party replaces the personal notification or the publication in the Official Gazette, therefore it does not make the calculation of the term to appeal run.
The art. 104 of the Disc. 500/991 establishes the same as art. 63 of Disc. 640/973 when saying that the decrees will be published without further processing in the Official Gazette. The novelty of the Dto. 500/991 is that it says that the lack of publication is not corrected with the personal notification of the decree to all or part of the interested parties and that the period to challenge them begins to run from the day following its publication in the Official Gazette.
Without prejudice to the power to appeal the acts of execution even when it has been omitted to contest regarding the act of a general nature as provided in art. 25 of Decree-Law 15,524 of 1/9/84.
If a person is personally notified of a decree before it is published in the Official Gazette, the term to file appeals does not correspond to him, and it will begin to run from the publication in the Official Gazette.
Deadline to Decide on Resources
The Administration has a period of one hundred and fifty days to resolve the appeal for revocation or replacement if an act of the Departmental Government is challenged.
Two hundred days to resolve revocation and hierarchical appeals or, where appropriate, reinstatement and appeal. And two hundred and fifty days to resolve the revocation, hierarchical, and cancellation resources, in accordance with the wording given by law 17.292.
According to art. 318 of the Constitution, the Administration has one hundred and twenty days to resolve after the thirty-day instruction established in art. 146 of the Disc. 500/991, totaling one hundred and fifty days for appeals for revocation and replacement, but this will not apply to hierarchical, annulment and appeal appeals, as it is argued that Law 17.292 of 2000 makes a new interpretation of the constitutional rule.
A first period is thirty days for the instruction of the appeal, this period is counted by consecutive days and is computed without interruption and is not suspended. This term only corresponds to the appeal for revocation at the national level and for the appeal for reconsideration at the departmental level (it arises from art. 146 of Decree 500/991 and from art. 11 of Law 15,869).
The period of one hundred and twenty days that is of constitutional origin will be counted by consecutive days and is computed without interruption, if it expires on a non-business day it is extended to the next business day, and it will be suspended during Tourism or Easter Week.
The art. 150 of the Disc. 500/991 provides for the possibility that the Administration, at the request of a party or ex officio, may order the suspension of the execution of the contested administrative act provided that it may cause serious damage to the appellant and that the suspension does not cause serious disturbance to the general interests or fundamental rights of a third party.
In the matter of contracting, the administrative resources that are interposed in the contracting procedures have suspensive effect as provided in art. 1146 TOFUP (Dto. 200/997), unless the acting Administration by founded resolution declares that the suspension affects unavoidable needs of the service or causes serious damage as provided by the TOCAF.
Promotions will be interim until the terms to appeal expire or administrative and jurisdictional appeals are decided.
Retroactivity of Administrative Acts
The resolution that gives rise to the administrative appeal against a general rule will imply the repeal, reform or annulment of said rule, its effects will be general. In the event of cancellation, repeal or reform for reasons of illegitimacy, they will also be retroactive to the enactment of the act but the firm acts already completed or the rights acquired will subsist.
Exhaustion of the Administrative Way
The Constitution establishes in its art. 319 that the annulment action before the Administrative Litigation Court cannot be exercised if the administrative procedure has not been exhausted beforehand through the corresponding resources.
The Disc. 500/991 establishes when the exhaustion of the administrative procedure takes place.
If a single appeal, revocation or replacement was filed if the Administration has not ruled on it within a period of one hundred and fifty days, it will be understood as a fictitious refusal. If two appeals were filed, revocation and hierarchical, or revocation and annulment, or reinstatement and appeal if the Administration has not ruled on them within a period of two hundred days, it shall be understood as false denial.
If three appeals were filed (only possible case in the matter of Decentralized Services and at the national level), revocation, hierarchical and annulment if the Administration has not ruled on them within a period of two hundred and fifty days, it will be understood as a false refusal.
Fifty days are added per appeal (hierarchical, annulment, appeal).
Before Law 17,292, the terms were one hundred and fifty days for each appeal as it arises from the original wording of art. 147 incs. 1 and 2 of Disc. 500/991.
In accordance with the principle of ex officio impulse that is enshrined in art. 318 of the Constitution the expiration of the terms that the Administration has for
resolve administrative appeals, does not exempt the competent body to resolve the appeals in question, from its obligation to issue a resolution on the same, this is also included in art. 148 inc. 2 of the Disc. 500/991.
The express refusal is configured when the Administration rejects the filed appeals and decides to maintain the administrative act as it was issued at first.
Annulment Action - Budgets
The art. 319 of the Constitution says "the annulment action before the Administrative Contentious Court, may not be exercised if the administrative route has not been previously exhausted through the corresponding resources. The nullity action must be filed, under penalty of expiration, within the terms determined by law in each case ”.
It must be a definitive administrative act (last expression of will on the resources and can be fictitious or express), that the administrative route has been exhausted. It must be a challengeable act (all acts may be annulled with the exception of legislative and jurisdictional acts, government and economic content according to articles 26 and 27 of Law 15,524).
The term to act before the Administrative Litigation Tribunal is sixty days from the personal notification of the act or its publication in the Official Gazette, if the pronouncement was fictitious, they will be counted from the day following the configuration of the fictitious refusal. When the Administration resolves the appeals but fails to notify or publish the interested party, the interested party may file the annulment action at any time, except for a period of two years from the filing of the appeals according to art. 9 of Law 15.869.
For Cassinelli, if the Administration notifies or publishes after two years, the nullity action does not proceed, only the patrimonial reparation before the Judicial Power.
That act must be contrary to a rule of law (constitutional, legal, contractual, regulatory norm), or have been issued with abuse or misuse of power (for purposes spurious to those of the service or in the form of an exaggerated penalty for the offense committed).
The owner must have a direct, personal and legitimate interest injured by the act, and according to art. 312 of the Constitution can choose to request the nullity of the act before the Administrative Contentious Court, or the patrimonial reparation before the Judicial Power, if you request the first you can then request the second, but if you request the second you will not be able to request the first. Also if you claim the nullity of the act and the Administrative Litigation Court does not annul the act, it confirms it, but the grounds for nullity invoked are declared sufficiently justified, you may request patrimonial reparation.
Bibliography
Constitution 1967
Law No 15.524
Law No 15.869
Law No 17.292
Institutional Act No 12
Decree 640/973
Decree 500/991
Decree 200/997 (TOFUP)
Judgment No 98 TCA
Horacio Cassinelli, Public Law, Fundación de Cultura Universitaria, Montevideo 1999, pp. 371 to 376.
Secretariat of the Presidency of the Republic, The New Administrative Procedure, National Debureaucratization Program, third edition, Montevideo, 1991, pp. 41 to 53.
Enrique Tarigo, Procedural Approach to the Administrative Litigation of Annulment, Fundación de Cultura Universitaria, second edition, Montevideo year 2001, pp. 25 to 34.
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Dr. Esc. Maximiliano Mauri Vidal
Correa Freitas, Ruben, The New Administrative Procedure, Secretariat of the Presidency of the Republic, third edition, Montevideo, 1991, p. Four. Five.
Cassinelli, Horacio, Public Law, Fundación de Cultura Universitaria, Montevideo, 1999, pp. 371 to 376.
Tarigo, Enrique, Procedural Approach to the Administrative Litigation of Annulment, Fundación de Cultura Universitaria, second edition, Montevideo 2001, pp. 25 to 34.
