Author: Atty. María Alexandra Guerrero del Pozo
Legal and Compliance Manager
Dear Friends and Clients:
M&Z, in defense of its client, succeeded in having the Constitutional Court rule that the declaration of abandonment in a contested administrative proceeding does entitle the client to cassation appeal (ruling No. 2407-16-EP/21, May 19, 2021). What does it means?
This means that contentious administrative judges are not allowed to declare the abandonment of a proceeding without prior consultation with the interested parties, thus precluding the continuation of the process.
This outstanding news contributes to the fair treatment of its citizens by Ecuador's courts of justice.
Antecedents:
In 2011, on behalf of our client, we filed a challenge action against the Municipality of Quito and the Office of the General Attorney of the State (hereinafter, "PGE"), for the administrative act that imposed a fine, for being an illegal act null and void. The District Court admitted the lawsuit and ordered the summons of the defendants.
In the process, we filed several motions requesting that the defendants be summoned and our will to continue with the process. 7 writs were filed on this sense.
Surprisingly, on September 7, 2015, the District Court determined that the action raised was suspended for more than eighteen months and declared its abandonment.
Against this decision, we filed a cassation appeal. However, the judge of the Contentious Administrative Chamber of the National Court of Justice resolved to inadmissible the appeal raised through an" order of inadmissibility of cassation".
Consequently, we filed an extraordinary action of protection before the Constitutional Court against such inadmissibility, alleging the violation of the rights to effective judicial protection.
Analysis of the Constitutional Court
Regarding the right to judicial protection, the Court considers that the order of abandonment issued in this contentious administrative proceeding is a final order that ended the process and prevents it from continuing. Further, it has a rigid effect in contentious matters, since it does not allow interruptions of any kind and, once expired, it does not allow a new proposal of the action. In this sense, the order of abandonment is susceptible to be appealed through cassation. Further, it constitutes a violation of the right to judicial protection.
In effect, the judge ruled the following:
To declare that the order of inadmissibility of cassation issued on October 13, 2016, by the Contentious Administrative Chamber of Justice violated our client's right to judicial protection.
To backtrack the process to the time before the issuance of the order of inadmissibility of cassation issued on October 13, 2016.
Refer the case to the Contentious Administrative Chamber of Justice to hear the admissibility of the cassation appeal.