https://doi.org/10.37955/cs.v7i3.327
Received April 19, 2022 / Approved June 10, 2023 Pages: 72-99
eISSN: 2600-5743
The principle of impartiality in the
administrative sanctioning
procedure
El principio de impartialidad en el procedimiento
administrativo sancionador
Mercy Jackeline Aguilar Rodríguez
Abogada, Magíster en derecho mención, Derecho Constitucional, Maestría en Derecho
Procesal y Litigación Oral. Universidad Indoamérica
maguilar14@indoamerica.edu.ec
merckeline33@live.com
https://orcid.org/0000-0002-3295-6395
José Antonio Ruiz Bautista
Abogado. Magíster en Derecho, mención Derecho Administrativo
Docente investigador de la carrera de Derecho de la Universidad Indoamérica.
joseruiz@uti.edu.ec
https://orcid.org/0000-0002-7115-4387
ABSTRACT
The principle of impartiality implies that the judge should not be part
of the legal process during its substantiation. This principle cannot be
limited to the judicial venue, but must be applied in the administrative
sphere in all liability determination procedures, as is the case of the
sanctioning procedure. The problem lies in the fact that the non-
application of the principle of impartiality as a guarantee of the
administrative sanctioning procedure may violate the rights of the
offending parties. Therefore, the objective of the research is to
determine how the non-application of the principle of impartiality in
the framework of the administrative sanctioning procedure violates
the minimum guarantees of due process and does not guarantee the
rights of those subject to liability.
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RESUMEN
El principio de impartialidad implica que el juzgador no ha de ser parte
del proceso legal durante su sustanciación. Este principio no puede
limitarse a la sede judicial, sino que debe ser aplicado en el ámbito
administrativo en todos los procedimientos de determinación de
responsabilidad, como es el caso del sancionador. El problema radica
en que la no aplicación del principio de impartialidad como una
garantía del procedimiento administrativo sancionador puede
vulnerar los derechos de los administrados infractores. Por ello, el
objetivo de la investigación es determinar cómo la falta de aplicación
del principio del referido principio en el marco del procedimiento
administrativo sancionador vulnera las garantías mínimas del debido
proceso y no garantiza los derechos de los sujetos pasivos.
Keywords / Palabras clave
due process, principle of impartiality, administrative sanctioning
procedure.
debido proceso, principio de impartialidad, procedimiento,
administrativo sancionador
Introduction
The public administration has several powers, including the power to
impose penalties. This allows the imposition of sanctions on
individuals for non-compliance with the positive legal system, since
their actions typify administrative offenses. This is executed, in
Ecuador, through administrative procedures enshrined in the legal
norm of a procedural nature. Such procedures, in addition to being
substantiated with observance of the corresponding minimum
guarantees, must respond to principles, based on their
comprehensiveness to avoid infringing the rights of the passive
subjects in this context.
In this sense, in the convergence of administrative powers and
prerogatives, one of the most relevant is the application of the ius
puniendi or sanctioning power, which is correlated with the ius
corrigiendi of the State. The latter establishes a link with
Administrative Law and with the powers enjoyed by the different
administrative authorities, including the power to sanction. This
sanctioning power is applied against improper actions or for
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infractions committed by the administered parties, which may be
minor, serious or very serious.
By virtue of the foregoing, the administrative sanctioning procedures
that are applied by the public administration against the administered
parties in the event of wrongdoing in this area in accordance with the
Ecuadorian legal system are taken as a starting point. Therefore, in the
event that an infraction has been committed, the principle of
impartiality must be applied. This has its origin in the principle of
impartiality, which implies the impossibility of the judge or
administrative authority to carry out procedural activities that
correspond to the parties or subjects of the procedure. This avoids
favoring the parties or getting involved in the development of
procedural activities.
To summarize, the principle of impartiality empowers the judge or
administrative authority not to act or perform procedural activities,
which only correspond to the parties. In addition, it prevents the judge
or administrative authority from becoming both judge and party. In
this way, the rights of the passive subjects of the procedure are
guaranteed, in turn, it perfects the implementation of the principle of
impartiality and contributes to the materialization of the right to due
process. It also allows for a resolution to be issued under the principle
of impartiality and impartiality in such a way that the fundamental
rights of the administrative actors are respected (Suarez, 2016).
Likewise, in order to better study the principle of impartiality, the
doctrine and the Constitution are brought into consideration. The
latter is the supreme norm. However, doubts are generated about the
suitability of the process and the impartiality of the authority or official
when making a decision, for such reason it becomes necessary to
know, apply and make feasible the impartiality within the
administrative procedure, taking into account that such principle
refers to the parties, specifically, that the authority does not occupy
their place, or perform duties that do not correspond to them.
By virtue of the above, the problem of investigation lies in the fact that
the principle of impartiality is not duly regulated within the national
legal system. Specifically, in what refers to administrative procedures,
which in the end, constitutes a fact that generates violations of the
rights of the passive subjects of the administrative procedure,
especially those of determination of responsibility, as is the case of the
sanctioning procedure. This is due to the fact that there is no express
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prohibition that, in all administrative sanctioning procedures, the
public administration should not resolve and substantiate the
procedure since, at the same time, it affects the guarantees of due
process.
In that order, the objective of the investigation is to determine how the
lack of application of the principle of impartiality in the substantiation
of administrative sanctioning procedures violates the minimum
procedural guarantees, in order to guarantee the rights of the passive
subjects of the procedure.
Materials and Methods
It is necessary to define the methodology used in this research, which
is qualitative. This is due to the fact that, as stated by Hernández and
Mendoza (2020)focuses on understanding and analyzing complex
phenomena through the collection and interpretation of non-
numerical data that allow the exploration of the criteria developed on
the object of review. In this case, the principle of impartiality is studied
within the framework of the administrative sanctioning procedure,
based on the contrast of doctrine, legal regulation and legal praxis.
On the other hand, the data collection for this research was carried out
systematically from a detailed search of doctrinal and academic
criteria as well as legal documents, among them, norms and sentences
related to the principle of impartiality and the administrative
sanctioning procedure. This made it possible to reach conclusions on
this subject at the national level.
Likewise, the scope of the research used during the investigation is
descriptive, since, as indicated by Hernández and Mendoza (2020) is
based on determining the most relevant properties and characteristics
of any phenomenon under study. The use of this scope made it possible
to gather and organize information on the doctrine and regulations, on
the principle of impartiality and the administrative sanctioning
procedure.
On the other hand, several research methods were applied in the study,
among them the systematic method that allowed the collection,
organization and study of relevant information on the topic addressed.
Likewise, the legal exegetical method was applied, which, according to
Tantaleán (2018) is based on the review and interpretation of legal
norms, in this case, what is regulated in the national legal system on
the administrative sanctioning procedure. This allowed the casuistic
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analysis of the articles of the Administrative Organic Code that provide
for what concerns the subject of investigation. This method
contributed to the understanding of the normative spirit and guided
the analysis and results adequately.
The analytical-synthetic method was also used, which, according to
Pastrana (2016)allows breaking down the object of study into its main
components, analyzing and synthesizing it in order to obtain an
integral perspective of it. This was used when analyzing the figure of
the principle of impartiality and the administrative procedure referred
to above. Its implementation is evidenced in the analysis of the
variables mentioned above and in the examination of the different
perspectives and approaches given by the academic literature,
specialized research and the legal regulation of the sanctioning
administrative procedure. All this allowed the integration of
knowledge and the synthesis of the most relevant.
In this sense, both inductive and deductive methods were applied. The
first one takes into account the criteria that the legislator has on the
subject of the principle of impartiality in the framework of the
sanctioning procedure. The hierarchical structure of the legal
provisions and the legislation in force are also taken into account. All
this allows the development of an inductive process focused on the fact
that legal regulations are not isolated, but form a system. For its part,
the deductive method, allowed to give a logical and analytical approach
based on the principle of impartiality, which led to specific conclusions
from the review of particular cases (De la Puente, 2016).
Similarly, research techniques was used as research techniques, the
documentary analysis through the bibliographic review by identifying
and compiling doctrinal and legal information obtained from different
written sources. From the latter, the most relevant data were selected
to analyze the legal problem under study. This allowed an exhaustive
examination and study of important documents such as textbooks,
academic articles, regulations and jurisprudence.
Results
Principle of Impartiality
Impartiality is the definition of what is required of each party, which
is established and made known beforehand, i.e. each party must know
what it can or must and what it cannot or must not do. Based on the
above, the judicial function is based on directing and controlling the
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development of the processes according to the constitutional
guarantees. In that sense, impartiality is understood as that
impossibility of the judge to perform the tasks that correspond to the
parties (Ferrari, 2016).
Along these lines, the principle of impartiality is based on defining
what each party must perform and what it must not do. This
constitutes a presupposition as well as the independence of
impartiality. Likewise, it determines that in each process the parties
have or must have their definitive function, that is, to know what they
are allowed to do and what they are not allowed to do. The referred
principle supposes or emphasizes the non-interference by the
authority or the judge, in matters alien to his function, otherwise he
would be advocating the non-observance of his functions,
independence, impartiality, impartiality.
On the other hand, impartiality has three aspects: impartiality, which
requires that the judge must not be a party to the process. Another is
impartiality, which is configured when the judge lacks any subjective
interest in the solution of the legal problems or in the litigation. As a
third deployment is the independence that implies that the judge can
act without any hierarchical subordination with respect to the parties
in the process, i.e., this is forbidden to perform those activities of the
parties, and it is precisely here, "where impartiality is reflected"
(Alvarado, 2017,p.107).
It should be noted that, in the processes, the judge is the one who is
responsible for judging and sentencing the litigation, he is the one in
charge of processing and resolving the matter brought before him, that
is to say, he is the one who, obviously, must have this character. For
this reason, he must not place himself in the place of the parties,
because no one can be an actor or accuser and a judge at the same time.
Therefore, it can be said that the judge is a third party who, as such, is
not a party. This generates the difference between impartiality and
impartiality, which implies that he/she must not be personally
interested in the outcome of the process, the same happens with
independence, which is based on the fact that he/she does not receive
orders, which distinguishes him/her from the accuser.
By virtue of the foregoing, impartiality leads the judge to refrain from
performing in any way, the acts that are inherent to the controversial
parties or litigants. Among these are pretending to incorporate new
actions or issues after the litigation has been brought and in such a
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way, wanting to prove the alleged facts, whose contradiction cannot be
supplied by the personal knowledge that the judge has on the matter
and on which he must issue a judgment or resolution. (Alvarado,
2017).
Likewise, impartiality means not being a party, therefore, the judge
must not get involved in litigation in emotional or personal matters in
those judicial matters that he must resolve. In addition, the judge must
avoid interfering in the investigation of the facts or in the formation of
the elements of conviction, as well as, ruling according to his sound
judgment or his own knowledge of the case.
In this sense, both independence and impartiality are presuppositions
of impartiality. The first arises when judges must be free from
pressure, which implies that they can rely on internal and external
shields. In the internal order, it requires collaboration and is
composed of two fundamental issues:
It is constituted by two aspects; the technical knowledge of the judge
and on the other hand the so-called professional ethics that is the
doctrine, and the external, is in charge only and exclusively, of the
other powers of both the executive, as the legislative (Ferrari,
2016,p.27).
Continuing with the study of the principle of impartiality, it is
important to state that it is the third party position of the judge in the
process that is under his knowledge. Therefore, he is the one who takes
the function of directing the conflict, which he exercises through the
connection of instances and under the consideration that it is up to
him to dictate the corresponding sentence. Based on this, it is not
possible for him to develop actions that are the responsibility of the
parties. Therefore, both the independence and the principle studied,
allow the judge to reach the character of impartiality, which are
necessary for the due process to be perfected. (Ferrari, 2016).
On the other hand, the moment in which a judge or administrative
resolution authority acts with impartiality, it should not go beyond its
functions as a third party in a litigation, that is, it should act with
limitations by independence and impartiality which implies
impartiality that transforms its guaranteeing nature and would cause
instability in the functions of the process itself, since otherwise the
judge could lose the horizon in the process, who is responsible for
issuing rulings, and whose failure to comply would be attributed a
certain sanction (Cordero, 2016).
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In synthesis, the principle under investigation implies that the person
who has the power to decide should not exercise the power to
substantiate at the same time, since he cannot be both "judge and
party" in a proceeding. This is affirmed because, in the end, it does not
guarantee a procedure free of arbitrariness, since true objectivity and
impartiality is not achieved throughout the procedure. The need to
apply this principle lies in establishing a minimum guarantee of
separation of functions and non-intervention of the parties in
procedural burdens that do not correspond to them, in order to
develop a procedure that complies with the guarantees of due process.
Administrative sanctioning procedure
The administrative procedure is the achievement of continuous and
duly ordered acts that lead the public administration to the adoption
of a decision in relation to the subject matter of knowledge. In the case
of the administrative procedure of sanctioning nature, its purpose is
the determination of administrative responsibility by the
corresponding authority when they have executed conducts that typify
administrative illicit acts positivized as such in the legal system.
In this order, the procedure is the action used by the public
administration to exercise its sanctioning power. It should be noted
that infractions are penalized or sanctioned. These are those
committed by the citizen and determined by the public administration
and are processed by means of a procedure. This, in its substantiation,
is subject to several principles that are aimed at guaranteeing the
rights of the administered. It is also composed of a series of stages and
phases that must be respected throughout its development.
Now, with regard to the stages of the procedure, the first is of a
preliminary nature, in which the public administration investigates
and gathers indications of administrative liability to determine
whether to proceed to initiate the sanctioning procedure; the second is
the preliminary investigation stage, composed of phases such as the
accusation, response, evidence, hearing and issuance of the final
report. In this stage, the procedure is substantiated through a clear,
precise and determined accusation that must be sustained, proven and
contested. Finally, there is the resolution stage in which the
administrative authority issues the corresponding resolution, either
establishing the sanction or ratifying the state of innocence.
In Ecuador, the purpose of the administrative sanctioning procedure
is the enforcement of administrative sanctions and the exercise of
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executive self-protection, in accordance with the provisions of the
Organic Administrative Code. (2017). Similarly, it brings several
reflections, including the principles and guarantees, the analysis of
when the enforcement procedure of the administrative sanction fits,
the means of forced execution of the act and the possibility of
challenging them.
On the other hand, according to Gómez and Sanz (2016)the
administrative sanctioning procedure is considered a manifestation of
the functions focused on ensuring the proper application of the law to
a given case and exercising its guardianship over the citizen. This has
as its characteristic "the search for the balance that protects the public
interests that lead to sanctioning various infringing behaviors of the
legal system and the guarantee of the rights of those who are guilty, i.e.
the infringing citizen". (2016,p.67).
In this sense, it should be remembered that due process must be
respected and guaranteed in administrative proceedings, under
several principles. It is also based on several guarantees, among them
the inviolability of the domicile, which limits and guarantees the
actions so that the executive self-protection is not used in an arbitrary
manner. This is because these acts can be challenged in the courts, so
that the administrative sanctioning procedure is intended to ensure
compliance with the provisions of the resolution imposing a sanction.
Likewise, it establishes that if the person who committed an infraction
does not comply with its conduct, it will pay a fine. In case of non-
compliance with the fine, the public administration has the power to
use the means of forced execution such as the execution on the
patrimony and the substitutive execution.
Based on the foregoing, the procedure for the enforcement of
administrative sanctions will allow the control to be effective and to
achieve the purpose of restoring public order and the protection of the
rights of those individuals affected by the actions and actions of the
offender. Said administrative sanctioning procedure is established in
Article 256 of the COA, which also stipulates that the burden of proof
is under the power of the public administration, so that the
presumption of innocence of citizens is guaranteed (Villacreses, 2019).
Likewise, in Administrative Law, sanctions are applied to maintain the
order of the system and to be able to reduce those conducts that are
opposed to state policies. This can be done through the use of coercive
means. Therefore, the procedure under study is defined as that
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sanctioning power that is granted to the administration, "by virtue of
which it may impose sanctions for those citizens who fail to comply
with the law, or rules, or for those actions or omissions that occur
within the regulatory scope, which will be applied according to the case
(Escola, 2018,p.207)..
Continuing with the conception of the administrative sanctioning
procedure, this is configured at the moment in which the person has
committed an action or omission, or for a conduct that goes against
the legal administrative acts. In this order, the sanctioning power is
considered as that power expressly delivered by the legislator, which
upon determining the affectation caused, imposes a sanction and
delivers its knowledge and determination to the administration; which
is based on a legal regime and model that is proper of this state
authority. This is because the Administrative Law must have an
administrative procedure that takes place through its respective
stages; in these stages the type of liability and the corresponding
sanction are defined, which will be carried out by means of an
administrative act that must be respected.
Along these lines, Vargas (2016) mentions that, doctrinally,
administrative sanctioning law is purely administrative. In this, the
principles that guarantee the rights of citizens who commit an action
or omission must be put into practice, which are applicable, both in
criminal law and administrative law, since they are on the same level.
However, these differ in their sanctions, which depend on the
seriousness of the infraction or the acts committed. Specifically, the
administrative sanctioning procedure is written, i.e., the proceedings
must be recorded in a file. This is essential both for the administration
and for the citizen under investigation, with which it will be possible
to prove the existence of the fact attributed to him, with the purpose of
determining the responsibility according to the case.
The principle of impartiality in the administrative sanctioning
procedure
In order to review the application of the impartiality principle in the
administrative sanctioning procedure, it must be assumed that the
judge who sanctions in administrative matters, as in other matters,
acts with impartiality. This is formed by impartiality and
independence, which will help to achieve greater clarity, understood
that the judge or the resolving administrative authority must not be
part of the administrative process. This implies that he/she may not be
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either a claimant or a resisting party, in order not to displace the other
procedural subjects of the proceedings and due to the role he/she
plays.
In this sense, in the administrative sanctioning procedure, the quality
of impartiality is considered. This is assumed by the authority within
a process, based on the respect of constitutional norms, which
guarantees the inviolability of the defense to the litigation. Its
application allows differentiating both the role of the sanctioning
judge and that of the parties, the former being considered a third party
with authority.
For the foregoing reasons, the authority is the third party in the
proceeding, so it will always use the position of alienity or neutrality
with respect to the procedural parties, which places the judge in the
position that he cannot do what corresponds to others. Moreover, he
cannot assert claims, discover exceptions that have not been raised,
attach facts, or prove on his own the factual issues asserted by others.
In conclusion, he may not act or unduly occupy those places,
emphasizing that, if he acts in this way, he would no longer occupy his
place as a judge and would become one of the parties, in such a way
that denaturalizes and delegitimizes his function. (Garcia, 2017).
In general terms, the administrative sanctioning process is identified
as a mechanism used to resolve conflicts that take place within the
State. This must be legally organized, it has a branch of public power,
which is the judiciary, which must act autonomously, with
independence, impartiality and impartiality. Only in this way, disputes
can be solved rationally based on legal rules, which are previously
adopted by the legislative and executive branch, since these are public
authorities (Alzate, 2017).
On the other hand, reference must be made to the principles that must
be used in administrative sanctioning procedures to guarantee the
right to defense. Among them are contradiction, impartiality, in which
the authority is defined as the one that should not have any type of
interest with respect to the claims of the parties in the litigation. There
is also that of independence, which refers to the fact that the ruling
authority must not be subordinated to the parties, and that of
impartiality, which identifies the judge as a third party different and
totally alien to the parties to the process, so he must occupy a place
equidistant between the two. This means that the judge must not be
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placed in the position of a party in the procedural legal relationship
that is created from a conflict between them.
It should be emphasized that both doctrine and jurisprudence have
shown that the administrative sanctioning procedure, including
imprudence, is punishable only for having carried out acts that imply
a typical conduct, without the need to have caused an injury or
endangered the protected legal property. Likewise, most of the
infractions or damages caused are precisely of abstract danger, which
will be evaluated by the authority or the one who is called to apply the
rule. Specifically in the administrative field, it is limited to making a
simple factual finding of non-compliance or prohibition of the
provisions of the legal regulation in force, taking into consideration the
following:
The judge must act with total impartiality and impartiality in the
procedure since he must not have any interest in the process and must
always be a third party who does not act as the procedural parties, i.e.
he must not take the place of the latter (Moreno P. , 2016,p.15).
It is worth mentioning that both the laws and the concepts of
administrative act and procedure must be strictly applied. In this
regard, the administrative authority is the competent authority to
assess the legal regularity of administrative actions that incur in
infractions. Likewise, it must interpret the process between
individuals and, if the typical conduct that goes against the norm is
doubtful, it must request the initiation of the sanctioning procedure
and act in the litigation under principles such as impartiality and
impartiality.
By virtue of the foregoing, it means that absolute power was granted
to the judicial courts in administrative matters, to rule on disputes in
administrative matters. Therefore, they must have in front of them an
impartial and impartial third party, that is to say, one that has no
interest whatsoever in the claims that gave rise to the litigation or
process. This must be an outside third party that does not act or act as
the procedural parties, realizing that it would commit a breach of duty,
so it is necessary to develop guidelines for an administrative
jurisdiction, which will help justice. (Vargas A. , 2016).
Likewise, the administrative sanctioning procedure is considered
serious and formal because it is a power granted by the State, to
determine whether or not to sanction a citizen. In addition, it is
considered as those acts carried out by the organizations of public
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entities, where all sanctions will be focused on guarantees and
principles and in such a way to ensure the administered to effectively
exercise the guarantees, among them, those of due process.
It is worth mentioning that the sanctioning procedure is activated by
the public administration in case a citizen has incurred in any
inappropriate conduct that violates the administrative authority. This
leads to a sanction, which is dictated by an administrative authority,
which operates as a third party under the principles of impartiality and
impartiality. It must recognize or protect rights and interests, as well
as submit to the principles for the administration of justice. This
authority is the decision maker, makes decisions, protects and
guarantees the public interest. (Jácome et al., 2021)..
In that order, the administrative authority must act under the
principles of impartiality and impartiality, that is to say, without any
type of interest in the process, nor acting as a procedural party in the
litigation. This is an outside third party that must act and sanction a
citizen, taking into account that the sanctioning procedure. In
addition, the burden of proof is entirely on the administration, since it
is the one that initiates the procedure, proves what it itself has done
and, in the end, will sanction according to the case. (Jácome et al.,
2021)..
It should be added that the judge or administrative authority must
always act under a neutral, impartial and impartial position, being the
effect of the result of all these processes res judicata. Also, the decision
may be challenged, in these cases they are called full and plenary
processes, the first of them because it is developed under the
jurisdictional activity in all its stages and are plenary by the effects that
develops the process which will be determined by the claims of the
parties within the administrative procedure (Sumaria, 2018). (Law 67.
Organic Law of Health, 2015)..
Administrative sanctioning procedures vs. the principle of impartiality
It should be noted that in the country there are clear examples of
administrative sanctioning procedures in which the principle of
impartiality is violated. Among them are those conducted by control
bodies such as the Agency for Regulation and Health Control -ARCSA-
or the Agency for Quality Assurance of Health Services and Prepaid
Medicine -ACCES-. The legal and procedural rules that regulate them
do not establish a separation between the functions of investigation
and resolution of the procedure, which violates the principle of
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impartiality, since the resolutor is at the same time the substantiator,
which means that he is both "judge and party" of the procedure.
In order to prove the foregoing, I quote the Organic Law on Health
(2015) which determines the procedure for the substantiation of the
administrative sanctioning procedure:
When acting ex officio or on the basis of a report or complaint, the
relevant health authority shall issue an initial order.
The summons with the initial order shall be issued personally to the
offender, at his domicile or place of work; if he cannot be found, he
shall be summoned by means of three slips left at the domicile or place
of work, on different days, stating the reason for the summons.
At the trial hearing, the offender shall be heard, who shall intervene by
himself or through his attorney; the evidence presented by him shall
be received and added to the proceedings, which shall be recorded in
minutes signed by the person appearing, the corresponding health
authority and the secretary.
If so requested by any of the parties or ex officio, in the same
proceeding, the case shall be opened for evidence for a term of six days,
during which time all evidence requested shall be taken.
In the absence of a request to open the case to evidence, the
corresponding health authority shall proceed to issue the resolution
within five days.
Once the term of proof has expired and all the proceedings requested
and ordered in due time have been carried out, the corresponding
health authority will issue its resolution within five days (Art. 227 to
231). (Law 67. Organic Health Law, 2015, p.36)..
In the same sense, Resolution No. ACESS-2023-0010 (2023) (2023)
which contains the instructions for the substantiation of
administrative sanctioning procedures under the jurisdiction of the
Agency for Quality Assurance of Health Services and Prepaid
Medicine, does not provide, in any part of its regulations, such
separation of functions. This implies that the decision-maker is at the
same time the subject of the procedure, thus violating the principle of
impartiality.
Due administrative process
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The following is a review of due process in the administrative sphere.
In this regard, Santofimio (2018) argues that due process is
understood as:
That broader system of guarantees that seeks, by means of the
realization of the material law, those just decisions, if the material
development of the same is not complied with, the just decision will
remain in doubt, which will not be reflected in the legal act, thus
damaging the stability of the State of rights (p.24).
Along these lines, due process is presented as a fundamental right in
administrative proceedings. This is considered as a guarantee that
assures the individual an appropriate legal certainty. This allows him
to face administrative decisions, that is to say, the development of an
adequate jurisdictional protection. In relation to this topic, the due
process is analyzed by Jaén (2017) as a right that is made up of "a
catalog of fundamental rights, which aims to ensure the effective
realization of the principles of the parties and of contradiction"
(p.148).
It should be noted that due process satisfies those requests and
requirements that are necessary to effectively guarantee the material
right. It helps all persons who are involved in a judicial process to be a
party to things that are just and enforceable. Its purpose is to achieve
a fair administration of justice, which is focused on immediately
bringing about adequate protection for the parties to the proceedings.
It is worth mentioning in the context of the study of due process, case
N.- 0261-09-EP, judgment N.- 035-10-sep-CC/ 2015. (2015) specifies
that such right is recognized in Article 76 of the Constitution of the
Republic of Ecuador and is defined as:
That which every person or justiciable subject has, to invoke within the
jurisdictional body the respect of that set of fundamentally procedural
principles (exceptionally substantive) and otherwise relevant, so that
a case can be heard and resolved with true justice (Judgment N.- 035-
10-sep-CC/2015, 2015, p.23).
In accordance with the above, it is worth mentioning that the Inter-
American Convention on Human Rights has determined that the
rights and obligations of individuals of any order, whether criminal,
civil or administrative, must consider those guarantees that ensure
according to the procedure in question, including compliance with due
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process, considering that such non-compliance constitutes a violation
of the aforementioned rule. (Case Yatama vs. Nicaragua, 2015)..
On the other hand, the Ecuadorian Constitution establishes that in all
processes that stipulate rights and obligations of any kind, the
application of the right to due process must be guaranteed. This
includes several guarantees, in which reference is made to the right to
defense that all persons have. Within this right, important guarantees
are stipulated, such as the fact that no one should be deprived of the
right to defense at any stage of the proceedings involving him/her.
Likewise, the parties must be heard at the appropriate procedural
moment for the defense of their interests, among others. (Constitution
of the Republic of Ecuador, 2008. Art 76, p.34)..
For its part, the Organic Administrative Code (Código Orgánico
Administrativo) (2017) in line with the constitutional text, establishes
that, in the face of due administrative procedure, individuals have the
right to an administrative procedure adjusted to the provisions of the
legal system (Art. 33).
Procedural guarantees
It should be made known that due process in an administrative
proceeding is a fundamental right that includes the unavoidable
guarantees for judicial protection to be effective. Among these are: the
presence of a natural judge, which must always be adequate and
characterized by acting under the principles of independence,
impartiality but above all impartiality. On the other hand, there are the
guarantees contained in the right to defense in the different phases of
the procedure. Likewise, these are required in any process without
delay, the same that does not seek to ensure swift justice, but rather,
that which is done in the necessary time that complies with all the
requirements of due process (Castillo, 2016).
It is worth mentioning that the guarantees of due process are those
mechanisms for the protection of individuals who are faced with the
exercise of the powers of the bodies that have the power of
administrative control and make use of it. Therefore, the basic
guarantees are legal instruments that allow the protection of those
fundamental rights in a reliable, timely and objective manner. Their
purpose is to seek justice, which will be possible once the principles of
independence, impartiality and impartiality are correctly applied.
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Likewise, both formal and material guarantees of due process ensure
the procedure jointly where the protagonist is a person who is a passive
subject. These guarantees operate from the beginning with the
protection and respect of all the rights and assumptions that comprise
it. Therefore, if one of these rights is violated, the right to due process
is violated. (Oyarte, 2018).
Similarly, in several cases in administrative proceedings, it is provided
that due process is a guarantee that has its natural scope in the judicial
venue and is applicable in those administrative proceedings.
Therefore, it is considered as an integral part of the effective judicial
protection, both the formal and material guarantee, which are
necessary for the decisions to be taken must be fair. (Castillo, 2016).
By virtue of the foregoing, the guarantees of the fundamental right
under study are considered a set of rules that are created in order to
define the framework of action of the judges or relevant authorities
depending on the matter. This is constituted as a means of action of
the judges and as an instrument of protection of the rights of
individuals within a given process. "These guarantees of due process
are extended when the Constitution establishes that no one can be
judged or punished before a judge or competent authority and with
observance of the proper procedure of each procedure." (Wray,
2016,p.40).
For its part, the Organic Administrative Code (Código Orgánico
Administrativo - COA) (2017) provides that:
Article 248 - Procedural guarantees. The exercise of the sanctioning
power requires a legally foreseen procedure and shall be observed:
1. In the sanctioning procedures, due separation shall be provided for
between the investigating and sanctioning functions, which shall
correspond to different public servants.
2. In no case shall a sanction be imposed without the necessary
procedure having been followed.
3. The alleged offender shall be notified of the facts with which he is
charged, of the offenses that such facts may constitute and of the
penalties that, if applicable, may be imposed, as well as of the identity
of the instructor, of the authority competent to impose the penalty and
of the rule that confers such competence.
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4. Every person maintains his legal status of innocence and must be
treated as such, as long as there is no firm administrative act that
resolves otherwise (Art. 248). (Código Orgánico Administrativo,
2017,p.32)..
These guarantees of the administrative sanctioning procedure must be
observed in all procedures for determining administrative liability in
which the sanctioning power is exercised in administrative matters.
After reviewing the doctrine and defining the research results, it is
proposed that, considering the implications of the right to due process
in the framework of the sanctioning administrative procedure, it is
endowed with several guarantees, for that reason; this right implies
that in each procedure or process the interests of the parties are
resolved, guaranteeing the right to defense or the rights of society,
therefore, this is aimed at defending and ensuring compliance with a
right, if it is a procedural part (Castillo, 2016).
In this sense, due process as a fundamental right implies respect for
constitutional norms so that there is a sufficient and effective
procedural system. In this way, it is intended to guarantee justice in
the proceedings. Therefore, it does not require any intermediation,
every person enjoys the right to a fair process and procedural
guarantees are not violated in any way. If the procedure is carried out
in this manner and under certain conditions that make this
fundamental right effective, it is possible to observe the procedural
formalities that are established by the State, through the law. This
allows or enables people to use and exercise this right, applicable in
the administration of justice. (Gozaini O. , 2015)..
On the other hand, Bandrés (2016)considers that the due process
constituted as a fundamental right, which guarantees the parties
within a process to be heard and taken into account by an impartial
and impartial judge, and through a clearly equitable process,
considering, as well as: "The right to due process that groups and at
the same time unfolds in a bundle of subsidiary rights recognized at
the same time all of them, as fundamental rights" (p.125).
It should be noted that the implications of due process can be
identified in its complex nature. It encompasses a set of other rights
that are considered fundamental to achieve equality in any type of
procedure. This applies to civil as well as criminal or administrative
matters and its purpose is to seek to obtain adequate justice. In this
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sense, it can be observed that due process is a constitutional right that
must be applied to guarantee the parties in a process or procedure.
Regarding the considerations on due process, it is important to
highlight its implication since it has a direct approach to the process,
whether administrative or judicial. It must be applied to all
procedures, as it is a fundamental constitutional right. Its objective is
to guarantee the real exercise of the right to defense, equality before
the law and the proper application of legal norms in order to reach
justice or a resolution in accordance with the law. For such reason, it
is important that the administrative authorities act under the
principles that guarantee due process. (Pérez L. , 2018)
On the other hand, Prieto (2016) explains that, due, in a first meaning,
means what is owed, what a subject owes to another, in terms of
performance. "Thus, due is that which is adequate to do something,
and, as adequate is that which is in accordance with a principle, due is
to proceed in accordance with a principle or principles" (p.76).
Based on the analysis of the above arguments, one of the results of this
study is that the right to due process is the activity that all actors within
a process or procedure must follow in an orderly manner. As well as
the strict compliance of its requirements in accordance and
observance of the guarantees and principles so that it meets the
requirements of an adequate procedure, whatever the scope of
application.
Likewise, so that the right to due process is not violated in its
application; the first meaning means that due attention is given, with
fair procedures. Thus, due process is that which is adequate to do
something, meaning that both the judge and the parties must have an
adequate process in accordance with the principles, among them is
that of impartiality and impartiality, thus understanding that due
process implies acting subject to such principles.
In this order of analysis, it is necessary to mention that the due process
is the activity that allows to order in an orderly manner the claims or
requirements of the individuals. This must be put into practice under
the principles, which and the procedural rules that regulate each
process. In addition, the guarantee of due process is limited to
consider that legal certainty is guaranteed with the mere knowledge of
the law, even more so if the precept that the law is known by all
citizens. (Castillo, 2016)
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It should be noted that individuals, when subject to an administrative
sanctioning procedure, have the right to due process based on the
administrative action. This implies that the State is obliged to
guarantee respect for the rights of individuals. Among such rights are
that they must be informed of the initiation of a sanctioning procedure
against them. Also, the judge must act impartially, which will allow
him not to become one of the parties. In this way, under the referred
principle, it will be possible to guarantee an adequate resolution by the
sanctioning administrative authority.
It is worth mentioning that Ruling No. 232-17-SEP-CC. (2017) refers
to the guarantees of due process and the guarantees of an impartial
judge. Specifically, the guarantee that whoever resolves the dispute
must be a competent judge in order to respect the rules of due process.
This must be applied from the moment of the predetermination of the
authority and the follow-up of the appropriate procedure for each
proceeding.
In this sense and according to what has been stated, the judges or
competent authorities in the administrative sanctioning procedures
must watch over the interests of the individuals. Therefore, from the
guaranteeing point of view, the judge should not introduce facts,
evidence or allegations in a proceeding. The judge must limit himself
to directing the debate and sentencing by creating a particular legal
rule that will affect both parties. For this reason, the judge is not
empowered to do the work that corresponds to the lawyer, or to the
parties.
It should be noted, for example, that in the case of administrative
sanctioning procedures followed against individuals, as in the case of
the Superintendence of Companies as a regulatory body, when
sanctioning legal entities for committing infractions, the authority
must be impartial. In this context, due process must be followed, since
not respecting it and assuming a power that only corresponds to the
procedural parties, would violate the rights of the passive subjects of
the procedure.
It should be added that impartiality implies that the resolutions enjoy
reliability, since the authorities are not involved in the process.
Likewise, when an administrative sanctioning procedure is applied,
the arguments of the parties and the means of confirmation must be
analyzed and sentences must be passed in accordance with what has
been described. Therefore, in order to provide security and so that the
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rights of the competent authorities or judges are not violated, clear
rules must be established with respect to the principle under study.
Likewise, the sanctions imposed on individuals for having committed
an infraction, by inadequate action or omission, by state entities that
are control entities as in the case of the Internal Revenue Service,
issues its punishment by determining a fine according to the
infraction. This takes place within the framework of the sanctioning
administrative procedure. In this context, the authority should not be
a procedural party, since it is not empowered to introduce evidence
that may change the connotation of the sanction imposed on the
passive subjects of the procedure.
By way of summary, the principle of impartiality must be applied in
the resolutions based on an administrative sanctioning procedure. In
this way, the rules of due process are not violated. This is guaranteed
by the development of a fair procedure for the parties, which is only
ensured with the strict observance of the guarantees that make up this
right. Therefore, the regulations in this sense must be clear and
specific, so that the judges act in accordance with the law and under
no circumstances carry out actions that only correspond to the parties,
so that they are eminently impartial.
Conclusions
The principle of procedural impartiality implies that the parties
involved have clearly defined roles so that the decision-maker or the
official who resolves the case does not participate directly in
procedural matters that may affect the development of the case. This
ensures that the deciding authority is not directly involved in the
procedure and is kept out of the accusation or trial stages, so that,
when making a decision, it does so objectively without compromising
its impartiality and without becoming an interested party in the
procedure. This principle is closely related to the minimum procedural
guarantees and seeks to prevent arbitrary acts, ensuring a procedure
that strictly respects the fundamental right to due process in all
matters, based on the provisions of the current constitutional law.
That, in the administrative field, specifically in the context of the
sanctioning procedure, the principle of impartiality is not explicitly
regulated in any specific regulation. However, its essence is reflected
in article 248, number 1 of the Organic Administrative Code, which
establishes the need to separate the functions of instruction and
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sanction in these procedures. This implies that those exercising the
resolution authority and those in charge of the instruction must be
different persons, to avoid the judge being directly involved in the
process or performing the functions of accusation and instruction.
This ensures that impartiality is preserved and due process is
guaranteed for the accused, preventing the judge from acting as both
prosecutor and investigator at the same time, which could affect the
impartiality of the process.
However, it is determined as a finding of this study that, in special
administrative rules such as the Organic Law of Health and
administrative normative acts such as Resolution ACESS-2023-0010
containing the instructions for the substantiation of administrative
sanctioning procedures under the jurisdiction of the Agency for
Quality Assurance of Health Services and Prepaid Medicine, they tend
to disrespect the principle of impartiality. They establish that the
official who exercises the power of resolution is also the official who
instructs the procedure, i.e., the accuser is similarly the judge, a
situation that affects the rights of the passive subject of the procedure.
This shows that there is no certainty of impartiality, since in the end
the active subject is "judge and party" and there is no guarantee that
the resolution adopted is in accordance with the law and responds to
due process.
The lack of application of the principle of impartiality in Ecuadorian
administrative legislation represents a threat to the rights of
administrators subject to administrative sanctioning procedures. This
is because the competent authorities are not limited in their
participation in the process, which may lead them to perform actions
proper to the parties, calling into question impartiality and the
guarantee of due process. Furthermore, the absence of impartiality in
administrative rulings undermines confidence that procedural rules
will be followed, since the limits of the actions of the adjudicators are
not clearly defined, allowing them to become a party to the process or
have an interest in it. It is crucial that the principle of impartiality be
applied to ensure fairness and objectivity in the decisions of the
adjudicating authorities.
It is shown that, in Ecuador, there is a lack of application of the
principle of impartiality in the substantiation of administrative
sanctioning procedures, which generates the violation of the minimum
procedural guarantees and the constitutional rights of the parties,
specifically of the passive subject. For this reason it is necessary that
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the Ecuadorian legislation establishes and regulates the referred
principle in the framework of the internal sanctioning procedures to
ensure that, the resolving official acts impartially, with defined roles
and clear limits in the procedure, which guarantees the full respect of
the due process and prevents arbitrary actions by the public
administration.
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