El Administrative Silent It is a procedure by which the law contemplates that in certain cases the lack of decision on the part of the Administration in the face of certain requests or resources raised by the administered generates an effect that can be negative or positive. That is to say, that in matters of administrative contention, an omission in the response by the state authorities to the respective requests that are presented by the company, is known as Administrative Silence, which according to Law 1437 of 2011 is positive. or negative.
When dealing with administrative silence, it must be taken into account that this process occurs within a class of administrative mechanisms that are regulated and classified according to the provisions in procedures automatic approval or prior evaluation by the entity. Therefore, this prior evaluation procedure is subject, in case of lack of timely pronouncement, to two forms of resolution, one to positive silence and the other to negative silence. (According to Art. 83 of Law 1437 of 2011).
This prior evaluation must be carried out through some steps that are the instruction, substantiation, evidence and finally, the pronouncement of the entity, where, the request of the administrator will be suspended while the process is resolved.
Through administrative silence, the procedure can be terminated. However, this is divided into two categories: positive silence and negative silence, according to the aforementioned article.
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The Positive Silence.
The positive administrative silence is given automatically by the Public Administration by direct will of the law. The effects incur directly on the administrative procedures, through which they are automatically approved in the terms in which they were initially requested. There are two main requirements by means of which the automatic probation of positive administrative silence is carried out, these are:
- That the period established by law has elapsed.
- That the entity has not communicated the pronouncement to the manager when it had the opportunity.
For the positive administrative procedure to be carried out, the terms of said decision must be counted from the day the petition or appeal was presented, however, it is also possible that the positive act may be subject to direct revocation, this by part of the authorities that have pronounced them or their immediate hierarchical superiors, ex officio at the request of a party, as provided in article 93 of Law 1437 of 2011, through which, for this case of positive administrative procedure, there is :
- When opposition to the Political Constitution or the Law is expressly presented.
- When it is in disagreement with the public or social interest or an attempt is made against it.
- When these unjustified injury to a person occurs.
What is the administrative procedure to proceed to positive silence?
To invoke the positive administrative silence process, according to article 85 of Law 1437 of 2011, the person who finds under the legal conditions the benefit of positive silence, the following requirements must be protocolized:
- The record or copy as referred to in article 15 of the same Law 1437.
- An affidavit specifying that the decision has not been notified within the term provided by law.
In both cases, the public deed and the authentic copies of the same application produce the same legal effects on the favorable decision on the application that was initially made. And therefore, it is the duty of all individuals as public entities, to recognize about the legal stipulations.
What are the assumptions of origin of the Positive Administrative Silence?
There are four assumptions by which the procedure is subject to positive silence, they are:
- Those requests whose appreciation authorizes for the exercise of pre-existing rights.
- The resources that are intended to question the disapproval of a specific request, in the event that the individual has opted for the respective application of negative administrative silence.
- In the procedures in which the consequence of the final decision cannot directly transcend in administrations other than the petitioner, by means of the limitation, damage or affectation to the interests or legitimate rights.
- All those procedures at the request of a party not subject to exclusive negative administrative silence, with the exception of ex gratia request and consultation procedures that are governed by specific regulation.
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The Negative Administrative Silence.
This negative administrative silence is based on an optional right that in this case is in favor of the individual who does not operate automatically. According to article 83 of Law 1437 of 2011, where it explains that the negative administrative silence provides that once the petition has been submitted, if three (3) months have elapsed without notification of the decision that resolves it, it will be understood that the answer is negative.
If the case is presented, that the law indicates a period of more than the three (3) months mentioned above to be able to resolve the petition without it having been decided, then the administrative silence will occur after one (1) month that is they count from the date the decision should have been made. It is also important to note that in the event of negative administrative silence, this act does not generate an exemption from responsibility before the authorities, nor does it excuse the duty to decide on the initial petition, only in the case in which the The interested party has made use of the remedies against the alleged fact or, that despite having gone to the jurisdiction of the contentious-administrative matter, an order admissibility of the demand has been notified.
To carry out the procedure, the administrator has two options:
- Wait for the public administration to pronounce itself.
- Make the decision to challenge administrative inactivity.
In this way, in the event that the company makes the decision to challenge, it may do so through a higher administrative instance or, in such case, before the Judicial Power through the contentious-administrative process as mentioned above.
Negative silence also has the effect of authorizing the administration to file administrative appeals and pertinent legal actions, which means that this figure can also generate effects on the administration and, therefore, it will have the duty to resolve , under respective responsibility. However, this duty is maintained until it is notified that the matter in question has been brought to the attention of the jurisdictional authority or, consequently, the company has made use of the corresponding administrative resources.
What are the assumptions of origin of negative administrative silence?
The cases of origin that are subject to negative silence will be given according to the following:
- In the event that the request focuses and deals with matters of public interest.
- When other previous administrative acts are debated, except in the case of resources.
- In the case of trilateral procedures and all those that generate an obligation to give or take charge of it to the state.
- Those procedures that correspond to registration.
- All those cases, in which by virtue of the express law, the administrative silent modality is applicable.
What is the period of time to carry out the automatic evaluation procedure or evaluation prior to the administrative silence?
Generally, the prior evaluation procedure must be carried out within a period of no more than 30 business days, unless new procedures are established by law or legislative decree that require a period greater than that established above. In the event that the term established for the procedure is concluded and no act is issued, administrative silence is taken for granted.
What are the exceptions to administrative silence?
Regarding the exceptions to administrative silence, the following cases can be identified:
- Those mediation, arbitration and conciliation procedures.
- Cases terminated by agreement or agreement.
What is the relationship of the administration in these situations presented in terms of administrative silence?
In principle, after the corresponding period, the obligation of the administration to resolve is lost, since the procedure is ended. On the other hand, an administrative act is generated, in this case favorable for the administered, of a presumed or tacit nature. In addition, the act to follow has for all purposes the character of a resolution that ends the respective procedure and therefore, and finally, maintains the authority to nullify it ex officio.
