Principios y derechos constitucionales vulnerados con el silencio administrativo negativo

Abstract

In this dissertation is done an analysis between Articles 83 and 84 of Law 1437 of January 18, 2011, current Administrative Procedure Code and of the Administrative contentious CPACA, which enshrines respectively negative administrative silence, as a rule, and the positive administrative silence, as an exceptional rule, and the Articles 60, 40 and 41 of the Decree 01 January 02, 1984, repealed by Act 1437 of 2011. Although Article 60 of the repealed Act provided that "after a period of two (2) months from the filing of the application for reconsideration or appeal without being notified about them express decision means that the decision is negative", this article specifically referring to administrative silence on the decision of the resources and not the silence on the submission of petitions, therefore, the work will make an emphasis on the precepts of the said Articles 40 and 41, considering that Article 40 of Decree 01 of 1984, former administrative contentious code, alluded to the negative administrative silence, as a rule, on terms such that enabled that could be violated Constitutional principles, and that Article 41 of the same administrative contentious code, which enshrined the exceptional rule, give few opportunities to the administered, because this silence operated only in the cases expressly provided for special provisions. Upon enactment of the Political Constitution of Colombia 1991, in Colombia is adopted the model the rule of social law and since this type of state, it must be remembered that the essential purposes must conform to the human, social and fair. Starting from July 02, 2012, entered into force of the law 1437 of January 18, 2011 establishing the new "Administrative Procedure code and Administrative contentious code", which can be seen that continues configuring the phenomenon of the negative and positive administrative silence the same way that is developed in the Articles 40 and 41 of the Decree 01 of 1984 previous CCA. By the above it still has the possibility of violation of some constitutional provisions and principles such as human dignity (Article 1° of the political Constitution), the goals of the State (Article 2 - Ensure the effectiveness of the principles) the supremacy of the Constitution and the consequent political obligation to obey it (article 4 of the political Constitution). Among others.