Expiration Applied To Administrative Lawsuits Filed By The Office Of The Comptroller General To Determine Liabilities – Constitutional & Administrative Law

In general terms, doctrine tends to define expiration as
“(…) the period that produces the termination of a thing
or a right,” or as “the loss of force and effect
of a power upon expiration of the term for its
execution.“

In the field of administrative law, an adequate doctrinal
definition would be: “Expiration of a lawsuit constitutes
an abnormal mode of termination thereof resulting from expiration
of the maximum term established by law without the competent
government body having issued any express
resolution.”

Ecuadorian administrative law refers to expiration, particularly
in the Law of the Office of the Comptroller General (hereinafter
“LOCGE,” from its Spanish acronym), as analyzed in this
article.

Article 71 of the LOCGE provides for the Office of the
Comptroller General’s power to issue orders related to
government activities and actions by persons subject to said law,
also establishing its power to determine liabilities. This power
expires seven years after the date in which such activities were
carried out.

Other than the above, articles 26 and 56 of the LOCGE provide
for two special types of expiration:

• Article 26 provides that government audit reports, whatever
  their type or modality, must be conducted in a maximum and
  unextendible term of one hundred eighty days from the time the
  audit work order is issued until the final report is approved; this
  includes a 30-day period that the Comptroller General has to issue
  its approval.

The legal consequence of the report not being approved within
said unextendible period is that the authority loses its power to
continue with the audit process.

• Article 56 of LOCGE provides that the resolution determining
  civil liability for negligence must be issued within a 180-day term
  counted from the business day following notification of the initial
  determination.

Failure to do so within the indicated period results in
expiration of the Comptroller’s power on the matter. As a
result, the Comptroller shall not issue a resolution confirming or
eliminating the fines determined within the special audit.

The expiration set out in the LOCGE occurs ipso jure,
by operation of law, and results in the Comptroller losing its
power to issue a resolution, which must be formally ratified and
certified by the Comptroller itself as required under article 72 of
the LOCGE, in accordance with the rules of due process set out in
the Constitution of the Republic of Ecuador (hereinafter, the
“Constitution”) and the administrative principles of the
Organic Administrative Code.

Consequently, the lack of competence of the Comptroller’s
Office on the grounds of expiration of the term, leads to absolute
and irremediable nullity of everything performed outside of the
established term. This means that any actions, decisions, or issue
of determinations or fines within the special audit must be subject
to the deadlines and unextendible terms set out in articles 26, 56,
and 71 of LOCGE.

Turning to the expiration provided for in articles 26 and 56 of
the LOCGE, the Plenary Session of the National Court of Justice
issued Resolutions Nos. 10-2021 and 12-2021, dated September 29 and
October 25, 2021, respectively. Through these, and by virtue of a
judicial ruling repeated on three occasions in reference to
application of expiration set out in the abovementioned laws,
mandatory jurisprudential precedents were established, as
follows:

“. HEREBY RESOLVES: . Art.- 3. Declare the
point of law that contains the following rule to become MANDATORY
JURISPRUDENTIAL PRECEDENT: “Article 26 of the Organic Law of
the Comptroller General of the State establishes a deadline or
term, as appropriate, which is mandatory for the control entity.
After said time period, said office’s power to exercise control
expires, and the government audit report’s approval becomes
completely null and void because the public official approving it
loses all of its power due to the passage of time. As a result, the
Office of the Comptroller General, whether through an
administrative procedure, or Contentious Administrative Courts, as
the case may be, are required to declare it to be as such, whether
ex officio or at the request of one of the parties, applying the
guarantee of expiration of a legal right and the principle of legal
certainty.”

“. HEREBY RESOLVES: Art. 1.- Declare the following
point of law to be mandatory jurisprudential precedent: The one
hundred eighty-day term set out in Article 56 of the Organic Law of
the Office of the Comptroller General is a mandatory deadline that
establishes expiration of the Office of the Comptroller
General’s power to make determinations regarding civil
liability for negligence. As a result, if it issues resolutions
after said deadline has passed, the procedure becomes null and
void, as does the resulting administrative act. To this effect,
once the abovementioned deadline has passed, the Office of the
Comptroller General, whether through an administrative procedure or
the Contentious Administrative courts, either ex officio or at the
request of one of the parties, must declare expiration of the
Office of the Comptroller General’s power to issue
determinations. This is consistent with safeguarding the principles
of legality and legal certainty set out in Articles 226 and 82 of
Ecuador’s Constitution.”

In conclusion, the rules and principles that govern
administrative procedures require that all public officials act
with valid jurisdictional power, defined as the extent to which the
Constitution and the law enable a government body to act and
fulfill their mandate, whether based on the subject matter,
territory, term, or level. Doing so without having the due
jurisdictional power negatively affects the constitutional rights
of due process and legal certainty, both set out in the
Constitution.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.