The "pro damato" principle

The so-called "pro damato" principle, or "pro proceso" principle, is a rule of law that has been adopted by the Council of State for approximately twenty years, according to which it "seeks to alleviate the rigors of the rules that establish time limits for the exercise of actions and advocates the caution and restrictive criterion with which such rules should be interpreted and applied" (Council of State, Contentious Administrative Chamber, Second Section Subsection B, Presiding Counsel Gerardo Arenas Monsalve, Judgment of July 30, 2009). The application of this principle is intended to prevent the specific circumstances surrounding each particular case from restricting the right of access to the administration of justice when there is no certainty as to the configuration of the relevant rejection.

In other words, "in case of doubt about the fulfillment of the requirements or assumptions of the claim or the means of control, this principle allows it (the claim) to be admitted without prejudice to the judge at a later procedural moment and after analyzing the evidentiary material, to return to the point and decide on it". The Council of State indicates that this principle "constitutes an exception to the rigorous application of procedural rules, since it enables the judge to interpret them in a more flexible manner, in accordance with the purpose to be achieved, i.e., the prevalence of substantial law" (Council of State, Chamber of Administrative Disputes, Second Section, Subsection B, Interlocutory Order O-331-2016 of July 14, 2016).

Pursuant to the provisions of Article 164, paragraph d) of the Code of Administrative Procedure and Contentious Administrative Matters (Cpaca), as a general rule, the opportunity to go to the administrative contentious jurisdiction to sue through the means of control of nullity and reestablishment of the right, expires after four months following the day on which it is published, (the expression "as the case may be", according to the above mentioned Interlocutory Order, refers to the manner in which the defendant knew of the administrative act, which could have been through the notification, communication or execution of the same).

Now, many times the public authorities that issue administrative acts, for different reasons (and in transgression to the principle of publicity contained in numeral 9 of article 3 of the Cpaca, according to which the authorities will make known to the interested parties, without any request, their acts, resolutions and notifications) abstain from delivering a copy of the proof of notification to the interested party. This circumstance, at the time the interested party files the claim of the corresponding administrative act, cannot be taken as a non-compliance of a requirement to access the jurisdiction, but rather -through the application of the "pro damato" principle- the claim must be admitted with the indication that the interested party must provide the corresponding evidence to be evaluated during the procedural process. For this purpose, the interested party may state to the Judge that it is in the process of requesting them and prove it by filing a right of petition before the corresponding entity or a request to obtain a copy of such document.

This approach, on the part of the judicial operator, will demonstrate compliance with the duty of all authorities to interpret and apply the provisions that regulate administrative actions and procedures in light of the principles enshrined in the Political Constitution and especially the constitutional rule that guarantees access to the administration of justice and the prevalence of substantive law over formal law (Cpaca, Art. 3). Likewise, since this rule of law is widely known in contentious-administrative matters, its application will imply compliance by the judicial operator with the duty of the authorities to apply the constitutional, legal and regulatory provisions in a uniform manner to situations that have the same factual and legal assumptions (Cpaca, Art. 10).