— The best defense is a good offensive
In chess, the good player must anticipate his opponent’s moves in order to secure a game. Litigation is no exception, since the plaintiff must formulate strategies that anticipate the possible moves of its counterpart, making use of procedural tools that contribute to satisfactory results.
As we all know, the Administrative Law in El Salvador, as of the year 2018 began a more dynamic stage and in line with the current times, leaving aside the concentration of processes in a single Court, (the Contentious Administrative Chamber); such circumstance had generated delay and little effectiveness in the right of prompt and fulfilled justice of the citizens.
This new stage was accompanied by the Law of the Contentious Administrative Jurisdiction (LJCA), which defined the competence of the Courts, linked to know the claims derived from the actions or omissions of the Public Administration, indicating the types of claims that can be deduced in this area: a) Administrative acts; b)Administrative contracts; c) Inactivity of the Public Administration; d) Material activity of the Public Administration constituting a de facto action; e) Actions and omissions of an administrative nature of the concessionaires; and f) Claims related to the direct patrimonial liability of the official or the concessionaire, or direct or subsidiary patrimonial liability of the Public Administration, as the case may be.
In this order, the LJCA creates a novel procedural tool, a manna that allows the plaintiff to anticipate the filing of any of the claims described above, this tool is known as: notice of claim provided in Articles 26 and 27 of the LJCA.
It is valid that at this point we ask ourselves: What is the benefit of using the notice of claim in administrative contentious proceedings? Through its request, the defendant or the plaintiff can benefit in the following terms: 1) requesting the administrative file in possession of the Public Administration; 2) the preparation of the lawsuit and the eventual process; and 3) the request for the adoption of precautionary measures.
Regarding the request of the administrative file, once the Court admits the notice of claim, according to the provisions of the LJCA, it will require the remission of the file to the Administration, an aspect that is important for any public servant, since it can have unrestricted access to the file to prepare its case, instead of relying on the process of requesting information that can be given through the units of access to public information, which to date has been of little effectiveness for the public servants.
In this way, the previously exposed point is related to the second utility referred to the preparation of the claim and an eventual process, since the diligences of the notice of claim constitute preparatory acts in the administrative contentious process that have a facultative character; that is to say, the plaintiff has the faculty to initiate it or not.
Therefore, the plaintiff can anticipate in order to formulate a better claim, since having
had the administrative file at his disposal, he can know the documents, evidence, opinions, reports, agreements and other diligences contained therein and thus clarify unknown or ignored elements that have occurred in the administrative proceeding that allow him to build a more solid claim that weakens any opposition raised by the Public Administration in the process.
Finally, an important aspect is that in the content of the notice of claim, the Court may request the adoption of precautionary measures, which must be accredited by the plaintiff, because there is a possibility that if the requested measure is not decreed, it may cause serious damage to the legal sphere of the applicant; and for clarifying examples, one could cite a fine imposed by any administrative authority. However, with a precautionary measure requested in the notice, the suspension of the collection of the fine may be requested while the referred process is being developed and if the results are good, the Judge may declare the illegality of the act that entails the fine imposed.
Therefore, through the concepts expressed on the effectiveness in the filing of the notice of claim, the plaintiff who intends to initiate a contentious process against the Public Administration, as any good player can allow him to propose a good strategy and get positive results that put in check the actions or omissions of the Public Administration that have been unfavorable in an administrative proceeding of any kind.
About the Author
Xavier Rodríguez
Jr Associate Lawyer
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