The administrative silence is a legal[1] presumption. It is an effect the law grants for the absence of administrative will: either positive or negative. Such presumption turns into a necessary imperative, given the fact that if there should not exist a statement, the Public Administration could escape from the judicial control of its acts due to their inactivity. That was the reason for the creation when it was established for the first time in France, under the 1900[2] Law.
Therefore, the law presumes the administrative will when there exists the absence of it and, hence, it occurs a true presumed administrative act, accepting the petition of the individual and, other times, denying such pretension based on the law.
It would not have any sense the petition right enshrined in the Constitution (art. 66, number 26) if the Public Administration should not be obliged to respond such petitions in an argued manner. For this reason, the legal presumption called administrative silence guarantees the right to a fundamental right consecrated in the Constitution.
From the theoretical point of view, as García de Enterría and Tomás Ramón Fernández mention, “negative silence is not a presumed act itself, but the absence of it, which enables the interested party to appeal before the contentious court. However, the positive silence is itself a presumed administrative act and with generation of the legal effects that go beyond the exercise of the rights.
It is clear the fact that, for the administrative silence to be effective, it shall be within the law as any other explicit administrative act. In my opinion, there should be three elements for the configuration of the legal presumption of positive silence:
i. A petition initiated by an interested party to a competent authority;
ii. A real or potential right of the interested party that should be acknowledged by an administrative act (legal and possible petition); and,
iii. The absence of a statement within the term determined by the law for the enforcement of the legal presumption.
Traditionally in Ecuador, the administrative silence was negative. This was modified with the Law for the Modernization of the State in 1994, where the form of the positive administrative silence was incorporated, undoubtedly inspired in the Spanish Law of the Legal Regime of the Public Administration dated November 26, 1992, amended in 1999.
In the practice, the challenge was turning effective those rights attained by means of the administrative silence. The absence of a legal norm provoked the Supreme Court to generate through their decisions a sui géneris contentious administrative execution procedure. The Ecuadorian law acknowledged the right attained as a result of the administrative silence as an autonomous right generated by the law, hence, the judge shall limit to execute said right and therefore the procedure itself was not of knowledge but of execution. Several problems were derived from these judicial precedents, mainly that its enforcement was not automatic but when judicially executed.
The Organic Administrative Code (“COA”) has included important amendments to the institution of the administrative silence in Ecuador, keeping its positive sense. It is worth mentioning the following:
a. Pursuant the OAC, the term of 30 days for the positive administrative silence to be in effect, while it was 15 days in the Law for the Modernization of the State;
b. It is acknowledged an automatic effect of the positive administrative silence; therefore, it does not require a later act by the Public Administration in order to make it effective;
c. The OAC acknowledges the positive administrative silence as a title for execution under the terms of the COGEP and, consequently, in case of inobservance of failure to fulfill by the Public Administration, the individual shall be enabled to file an execution action before the contentious administrative court, as for a mediation act, a transactional act or a past judgment in authority of a res judicata. For this purpose, it would only be required the document with the dated and signed receipt of the petition to the competent authority and a sworn statement that, having the legal term elapsed, no answer had been received from the Public Administration;
d. The OAC impedes the Public Administration to make later statements related to unattended petitions of the citizen, except if such statement shall confirm the positive effect of the administrative silence (Art. 207);
e. The OAC sets forth that the positive right, as a tacit administrative act, shall not be effective only if there should be irremediable deficiencies resulting in the nullity of the whole administrative act (Art. 105). If the administrative silence has deficiencies that can be validated, and the Public Administration deems convenient its enforcement, only a harmfulness action could be filed to leave it without effect.
The OAC acknowledges certain exceptions for the enforcement of the positive administrative silence.
a. Within the contact relationships, since in pubic contracts there is no exercise of legal authority but the fulfillment of mutual contractual obligations;
b. In the requests between public entities, since these do not hold rights but they make use of legal attributions to pursue their ends and competences;
c. In general consultations, particularly in those with a binding character; even though it is a controversial matter where other criteria can be included;
d. Within administrative proceedings that impose different terms and effects;
e. Particularly in proceedings regulated by the Organic Law of the General Attorney’s Office;
f. Within the Motion of Appeal when is requested the suspension of the administrative act and, if the authority does not respond, it is understood that it has not been suspended (Art. 229 OAC); and,
g. In an Extraordinary Appeal process: i) if within 20 days there is no statement about the admission, it is understood as dismissed; and ii) if admitted but not resolved within one month, it is understood as dismissed.
Personally, my opinion is favorable to the amendments included in the COA for the administrative silence, although it will always be necessary to observe the behavior of the Public Administration and of the individuals in order to objectively assess the enforcement of these norms.
[1] Civil Code Art. 32.- The consequence deduced from certain background or known circumstances is called presumption.
If the background or circumstances causing the presumption are determined by the law, it is called a legal presumption.
It will be allowed to prove the non-existence of the fact that is legally presumed, although the background or circumstances that infer the law are true; unless the law itself shall expressly reject such proof, assuming the background or circumstances.
If one thing, pursuant the expression of the law, is presumed to be legal, it is understood that the contrary proof is admissible, assuming the background or circumstances.
[2]If within three months there was no statement of the Public Administration, it was understood that the petition had been denied and therefore the citizen had the possibility to file a judicial appeal.
