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State’s Non-Contractual Liability In The Organic Administrative Code

The Organic Administrative Code (hereinafter “OAC”) came into force on July 7, 2018. The inclusion of this new codification brings with it: (I) The delimitation of the state body, as well as its attributions; (II) The normative regulation on administrative procedures; (III) The determination of special procedures; and, (IV) The extension of the responsibility of the State towards its administered.

Following is a brief summary of the essential points of the State’s non-contractual liability:

This figure only had constitutional recognition, making impossible the materialization of the right consecrated to the administered. The OAC is considered the first regulatory codification that regulates the extra contractual responsibility of the State, establishing a procedure and regulating its competence.

What Does It Consist Of?

All State institutions as of July 7, 2018 will be liable for qualified damages arising from their actions or omissions, even when these are lawful. Qualified damages are understood as the one that the administered is not legally bound to support or that results from the violation of the principle of equality in the distribution of public charges.

When Must The State Respond?

The State must respond when the public service is directly provided by it.

In the case of concessionaires and legatees, these are the ones who respond directly, leaving only the joint and several liability to the State.

What Requirements Must Be Fulfilled?

* The lack or deficiency when providing a public service or any other service to which the administered has right.

* The damage must be qualified.

* The existence of a causal link between the action or omission of the State and the damage described.

The administrator must prove both the damage and the causal link, and may submit his claim within a period of up to 90 days, after the action or omission of the State.

What Is The Procedure?

* You can opt for the administrative procedure under the ordinary procedure regulated by the OAC, or directly by judicial means.

* The claim must be presented directly by the affected party, detailing: the damage, the causal link, the assessment of the damage and the request for reparation.

Faculties Of The State

* The State, once it has complied with the compensation for the damage imputed under its responsibility, has the right to repeat against the officials who in the exercise of their functions are responsible for the imputed action or omission.

* The process of repetition is governed by the General Organic Code of Processes, through the ordinary procedure before the administrative contentious judges. Same that does not admit any counterclaim.

The State may be exempt from liability in case of unforeseeable and unavoidable circumstances; envents of force majeure; the victim’s fault; and, actions of a third party.