DuRussel Fernandez, Graciela B. c. Santa Fe s / resource full jurisdiction litigation.
Opinion of the Attorney General's Office.
A fs. 56/61 Supreme Court of Justice of the Province of Santa Fe decided to reject the appeal promoted fs contentious. 5 / 10.
against this ruling, the plaintiff filed the federal appeal was only granted as had not welcomed the charge of unconstitutionality made in respect of art. 65 of dec. provincial 10.204/58.
The challenge to the constitutional validity of the aforementioned rule that establishes, under certain conditions, revocation for instance lapsing of any management that is promoted to the executive branch and its decentralized agencies when the persons concerned are to spend 1 year without any action tending to the service processing or resolution, which was founded is withdrawn, at the discretion of the plaintiff, the rules of due process and legal defense and the principle of equality.
In my opinion the protest should not be welcomed.
is that, as stated by the Court, the constitutional guarantee of the defense is not opposed to its regulation for the benefit of the proper conduct of the causes (faults, v. 185, p. 242, t. 229, p. 761 - Rev. THE LAW, v. 16, p. 1012; Rep. LAW, t. XVI, p. 284, sum. 15 -) and that power includes the right to make reasonable distinctions between those who are not in the same condition (Fault, v. 216, p. 69 - ; Rev. LAW, v. 58, p. 536 -).
Moreover, the law in question meets undeniable principles of legal certainty, especially if one takes into account the long period of inactivity that affects the application of the forfeiture of the institute. To this can be
adding that the appellants (which does not address federal remedy demonstrate that the penalty imposed by the standard, leading to the inability to start a new administration) does not prove that article has been prevented from carrying out acts aimed at avoiding delay in processing and demonstrated their interest in it will be held on time.
On the contrary, the record indicates not a reliable means any activity on their part despite the long period of inactivity has elapsed. Hence, as applied to the case, it is not unreasonable to presume that the rule's lack of interest in managing the plaintiff had made.
it should be remembered that, according to the understanding that the Court has assigned to the guarantee of art. 18 of the Constitution, it does not safeguard the individual from the legal consequences of his own omissions or negligence (Decisions, v. 188, p. 120, t. 196, p. 19, t. 229, p. 507, t. 239, p. 51 - Rep. THE LAW, t. III, p. 774, sum. 3; Rev. LAW, v. 32, p. 76, t. 75, p. 573, t. 90 , p. 83 -).
For these reasons, I consider that the failure to confirm the fs. 56/61. December 6, 1985. - John O. Gauna.
Buenos Aires, April 24, 1986.
Considering: 1) against the decision of the Supreme Court of Santa Fe, which rejected contentious resource sponsored by the plaintiff in order to leave without effect admnistrativa resolution that had ordered the closing of the case for having a lapse of jurisdiction, the party concluded a special appeal, which was only granted in regard to of unconstitutionality of art. 65 of dec. provincial 10.204/58.
2) That the statements of the administrative record string added by here comes the plaintiff filed an administrative appeal against the decision of the Supervisory Commission of the Provincial Bank of Santa Fe, which rejected the appeal for reconsideration against the above that had ordered his dismissal as an agent of the body. After grievances expressed her view, it ran for transfer to the Directorate General of Legal Counsel, Ministry of Finance, whose opinion was favorable. He then spent the proceedings for the opinion of the prosecution of State, which passed with over a period of one year referred to in art. 65 of dec. 10.204/58, suggested declaring the lapsing of the proceedings and was the closing of the case, a criterion which was followed by the Minister referred.
3) That if it is true, as the Attorney General has told the Court that the constitutional guarantee of the defense at trial does not preclude its regulation the benefit of the proper conduct of the causes (faults, v. 185, p. 242, t. 229, p. 761) and that power includes the right to make reasonable distinctions between those who are not in the same condition (Fault, t. 216, p. 69), this court also noted that the legislative and regulatory rules relating to administrative silence to avoid such an attitude that individuals are outside of court protection in a situation of helplessness. Faced with the inertia of the body, the way of legal fiction can not be used to destroy individual rights and legitimate interests of the governed (Decisions, v. 300, p. 1292).
4) That, in light of such principles and under the circumstances, it is unreasonable for him to be a clear and express statement of the appellant to challenge an administrative act, sufficient to determine the extent and scope of your claim, and found the proceedings pending the ruling of the administrative body and that there was no due diligence by the owners - the file had been received by the State Prosecutor's Office as follows fs seal. 12 -, applies the law in question when the body does not comply with their obligation to settle and the person did not urge the decision. At the point, can not also ignored the advice required to State prosecutors was not a futile process because it is a requirement for the resolution of unfailing appeal (art. 52, part. 2 nd, dec. 10.204/58).
5) It should also be recalled that under general principles governing the matter, the applicant attends as a partner in the development of the administrative decision even when defending their individual rights, so informality prevailing rules and drive trade. Moreover, good faith, loyalty and integrity that should characterize all processes and activities of the parties to it, determine that the adjective regulatory standards for their conduct does not contain requirements that are contrary to these principles (Bugs, t. 300, p. 1292).
6) That, under such conditions, the application of art. 65 of dec. 10.204/58 by the fact the applicant had not urged the procedure by the silence of the administrative body is not consistent with the rules concerned or with the provisions of art. 66 of that legal regime established for all staff of the provincial administration "the obligation to devote maximum attention and contraction to work in their tasks ...", nor with his art. 41 which requires the departments to "specify the foot of the last performance, the time that the record remained rooted in the same" and provides that "when it exceeded the terms established in the preceding article, the reasons for the delay.
By contrast, the contested decision matters unreasonable unequal treatment of the subject of the relationship of public law and violates the guarantee of protection established in article . 18 of the Constitution.
7) That, in short, the application in the present circumstances of art. 65 of dec. 10.204/58 is unconstitutional because of its disagreement with the arts. 16 and 18 of the Constitution, as the penalty provided by this rule should be reserved for cases in which the person leaves the period of time "without any action tending to his service processing or resolution, but not in those any steps he had to be done because the administration was able to act.
Furthermore, it should be noted that subsidiary apply the provisions of the Code of which are more tailored to the case (art. 73, dec. Above), and art. 232, the latter prevents the declaration of revocation when the cars are pending judicial resolution.
Therefore, having ruled the Attorney General, appealed the sentence is revoked and declared, in the case, the unconstitutionality of art. 65 of dec. provincial 10.204/58. Costs borne by the expired (Art. 68, Code. Procedure). Return the case to the court of origin, for whom it may concern, new standard is issued under this. - Augusto C. Belluscio. - Charles S. Fayt. - Jorge A. Bacqué.
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