La presunción de legitimidad del acto administrativo y la tutela judicial efectiva

Abstract

The present investigation demonstrates the abuse in the actions of the public administration, under a focus on administrative acts and the legitimacy that they have been endowed with. In this sense, it is identified within the Ecuadorian legislation the evident problems before the challenge of these acts. The disclosure of the problems raised will be dealt with through the analysis of judgments issued by the Administrative Contentious Court; as well as those of a Constitutional nature. On the other hand, the legitimacy of the administrative act is addressed in the legislation of other countries, especially Colombia and Argentina. With the aim of comparatively evaluating the treatment that each jurisdiction maintains in this regard. In this order of ideas, it is essential to analyze the normative treatment that currently has the challenge of administrative acts. More than anything when the Constitution itself assumes that the actions of the Public Administration correspond to the protection of the “common good”. Consequently, administrative acts are endowed with a presumption of legitimacy under which their execution is immediate by those administered; to whom, on countless occasions, rights are violated under the issuance of an administrative act. As a result, a State that becomes a Judge and part of its own decisions, making true justice impossible, which even outrages the principle of innocence of those administered. "The innocence of every person will be presumed, and he will be treated as such, as long as his responsibility is not declared by means of a firm resolution or an executed judgment" (Const, 2008, Art. 76). Although it is true, the State's duty is to guarantee the rights of its administered parties. However, the partiality and iniquity of justice in the face of discretionary events in the public administration is evident, demonstrating little objectivity in the justice system. In this perspective, public administration has led society to doubt the principle of effective judicial protection, legal certainty and due process, which demands a true democratic and constitutional State of rights and justice. Therefore, this study allows us to elucidate the true ethical and legal problems that involve the exercise of public administration through the State.